[Title 32 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2008 Edition]
[From the U.S. Government Printing Office]



[[Page i]]

          

          32


          Parts 700 to 799

                         Revised as of July 1, 2008


          National Defense
          



________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of July 1, 2008
          With Ancillaries
                    Published by
                    Office of the Federal Register
                    National Archives and Records
                    Administration
                    A Special Edition of the Federal Register

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                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 32:
    Subtitle A--Department of Defense (Continued)
          Chapter VI--Department of the Navy                         5
  Finding Aids:
      Table of CFR Titles and Chapters........................     523
      Alphabetical List of Agencies Appearing in the CFR......     543
      List of CFR Sections Affected...........................     553

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

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

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

[[Page v]]



                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

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

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, July 1, 2008), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
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instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
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inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

OBSOLETE PROVISIONS

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

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
requirement to publish regulations in the Federal Register by referring 
to materials already published elsewhere. For an incorporation to be 
valid, the Director of the Federal Register must approve it. The legal 
effect of incorporation by reference is that the material is treated as 
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This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
    Properly approved incorporations by reference in this volume are 
listed in the Finding Aids at the end of this volume.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed in 
the Finding Aids of this volume as an approved incorporation by 
reference, please contact the agency that issued the regulation 
containing that incorporation. If, after contacting the agency, you find 
the material is not available, please notify the Director of the Federal 
Register, National Archives and Records Administration, Washington DC 
20408, or call 202-741-6010.

CFR INDEXES AND TABULAR GUIDES

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separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Statutory 
Authorities and Agency Rules (Table I). A list of CFR titles, chapters, 
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also included in this volume.
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that volume.
    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

[[Page vii]]


REPUBLICATION OF MATERIAL

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INQUIRIES

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    Raymond A. Mosley,
    Director,
    Office of the Federal Register.
    July 1, 2008.







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                               THIS TITLE

    Title 32--National Defense is composed of six volumes. The parts in 
these volumes are arranged in the following order: parts 1-190, parts 
191-399, parts 400-629, parts 630-699, parts 700-799, and part 800 to 
End. The contents of these volumes represent all current regulations 
codified under this title of the CFR as of July 1, 2008.

    The current regulations issued by the Department of Defense appear 
in the volumes containing parts 1-189 and parts 190-399; those issued by 
the Department of the Army appear in the volumes containing parts 400-
629 and parts 630-699; those issued by the Department of the Navy appear 
in the volume containing parts 700-799, and those issued by the 
Department of the Air Force, Defense Logistics Agency, Selective Service 
System, National Counterintelligence Center, Central Intelligence 
Agency, Information Security Oversight Office, National Security 
Council, Office of Science and Technology Policy, Office for Micronesian 
Status Negotiations, and Office of the Vice President of the United 
States appear in the volume containing parts 800 to end.

    For this volume, Cheryl E. Sirofchuck was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Michael L. White, assisted by Ann Worley.


[[Page 1]]



                       TITLE 32--NATIONAL DEFENSE




                  (This book contains parts 700 to 799)

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

              SUBTITLE A--Department of Defense (Continued)

                                                                    Part

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

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              Subtitle A--Department of Defense (Continued)

[[Page 5]]



                   CHAPTER VI--DEPARTMENT OF THE NAVY




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

    SUBCHAPTER A--UNITED STATES NAVY REGULATIONS AND OFFICIAL RECORDS
Part                                                                Page
700             United States Navy regulations and official 
                    records.................................           9
701             Availability of Department of the Navy 
                    records and publication of Department of 
                    the Navy documents affecting the public.          45
705             Public affairs regulations..................         136
                        SUBCHAPTER B--NAVIGATION
706             Certifications and exemptions under the 
                    International Regulations for Preventing 
                    Collisions at Sea, 1972.................         175
707             Special rules with respect to additional 
                    station and signal lights...............         187
                         SUBCHAPTER C--PERSONNEL
716             Death gratuity..............................         190
718             Missing Persons Act.........................         195
719             Regulations supplementing the manual for 
                    courts-martial..........................         198
720             Delivery of personnel; service of process 
                    and subpoenas; production of official 
                    records.................................         211
721-722

[Reserved]

723             Board for Correction of Naval Records.......         228
724             Naval Discharge Review Board................         235
725             Release of official information for 
                    litigation purposes and testimony by 
                    Department of the Navy personnel........         268
726             Payments of amounts due mentally incompetent 
                    members of the Naval service............         282
727             Legal assistance............................         285
728             Medical and dental care for eligible persons 
                    at Navy medical department facilities...         289
732             Nonnaval medical and dental care............         353

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733             Assistance to and support of dependents; 
                    paternity complaints....................         367
734             Garnishment of pay of Naval military and 
                    civilian personnel for collection of 
                    child support and alimony...............         374
735             Reporting births and deaths in cooperation 
                    with other agencies.....................         376
       SUBCHAPTER D--PROCUREMENT, PROPERTY, PATENTS, AND CONTRACTS
736             Disposition of property.....................         378
744             Policies and procedures for the protection 
                    of proprietary rights in technical 
                    information proposed for release to 
                    foreign governments.....................         382
746             Licensing of government inventions in the 
                    custody of the Department of the Navy...         383
                          SUBCHAPTER E--CLAIMS
750             General claims regulations..................         389
751             Personnel claims regulations................         412
752             Admiralty claims............................         421
755             Claims for injuries to property under 
                    Article 139 of the Uniform Code of 
                    Military Justice........................         424
756             Procedures for processing claims involving 
                    non-appropriated fund activities and 
                    their employees.........................         426
757             Affirmative claims regulations..............         429
              SUBCHAPTER F--ISLANDS UNDER NAVY JURISDICTION
761             Naval Defensive Sea Areas; Naval Airspace 
                    Reservations, areas under Navy 
                    administration, and the Trust Territory 
                    of the Pacific Islands..................         437
762

[Reserved]

763             Rules governing public access...............         449
                    SUBCHAPTER G--MISCELLANEOUS RULES
765             Rules applicable to the public..............         452
766             Use of Department of the Navy aviation 
                    facilities by civil aircraft............         456
767             Application guidelines for archeological 
                    research permits on ship and aircraft 
                    wrecks under the jurisdiction of the 
                    Department of the Navy..................         466
768-769

[Reserved]

770             Rules limiting public access to particular 
                    installations...........................         470
771-774

[Reserved]

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775             Procedures for implementing the National 
                    Environmental Policy Act................         481
776             Professional conduct of attorneys practicing 
                    under the cognizance and supervision of 
                    the Judge Advocate General..............         489
777-799

[Reserved]

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    SUBCHAPTER A_UNITED STATES NAVY REGULATIONS AND OFFICIAL RECORDS





PART 700_UNITED STATES NAVY REGULATIONS AND OFFICIAL RECORDS--Table of Contents




                       Subpart A_Navy Regulations

Sec.
700.101 Origin and history of United States Navy Regulations.
700.102 Statutory authority for issuance of United States Navy 
          Regulations.
700.103 Purpose and effect of United States Navy Regulations.
700.104 Statutory authority for prescription of other regulations.
700.105 Issuance of directives by other officers and officials.
700.106 Control of administrative requirements.
700.107 Maintenance of Navy Regulations.

                  Subpart B_The Department of the Navy

700.201 Origin and authority of the Department of the Navy.
700.202 Mission of the Department of the Navy.
700.203 Composition.
700.204 The principal elements of the Department of the Navy.

                   Subpart C_The Secretary of the Navy

                        The Secretary of the Navy

700.301 Responsibilities of the Secretary of the Navy.
700.302 Responsibilities within the Department of the Navy.
700.303 Succession.
700.304 Recommendations to Congress.
700.305 Assignment of functions.
700.306 Assignment of duty and titles.
700.307 Powers with respect to the Coast Guard.

                 The Office of the Secretary of the Navy

700.310 Composition.
700.311 Sole responsibilities.
700.312 Authority over organizational matters.

     The Office of the Secretary of the Navy/The Civilian Executive 
                               Assistants

700.320 The Civilian Executive Assistants.
700.321 The Under Secretary of the Navy.
700.322 Assistant Secretaries of the Navy; statutory authorization.
700.323 The Assistant Secretary of the Navy (Financial Management).
700.324 The Assistant Secretary of the Navy (Manpower and Reserve 
          Affairs).
700.325 The Assistant Secretary of the Navy (Installations and 
          Environment).
700.326 The Assistant Secretary of the Navy (Research, Development and 
          Acquisition).
700.327 The General Counsel of the Navy.

        The Office the Secretary of the Navy/The Staff Assistants

700.330 The Staff Assistants.
700.331 The Judge Advocate General.
700.332 The Naval Inspector General.
700.333 The Chief of Naval Research.
700.334 The Chief of Information.
700.335 The Chief of Legislative Affairs.
700.336 The Director, Office of Program Appraisal.
700.337 The Auditor General.

                 Subpart D_The Chief of Naval Operations

700.401 Precedence.
700.402 Succession.
700.403 Statutory authority and responsibility of the Chief of Naval 
          Operations.
700.404 Statutory authority and responsibility of the Office of the 
          Chief of Naval Operations.
700.405 Delegated authority and responsibility.
700.406 Naval Vessel Register, classification of naval craft, and status 
          of ships and service craft.

              Subpart E_The Commandant of the Marine Corps

700.501 Precedence.
700.502 Succession.
700.503 Statutory authority and responsibility of the Commandant of the 
          Marine Corps.
700.504 Statutory authority and responsibility of the Headquarters, 
          Marine Corps.
700.505 Delegated authority and responsibility.

Subpart F_The United States Coast Guard (When Operating as a Service of 
                                the Navy)

700.601 Relationship and operation as a service in the Navy.
700.602 The Commandant of the Coast Guard.
700.603 Duties and responsibilities.

[[Page 10]]

           Subpart G_Commanders in Chief and Other Commanders

                     Titles and Duties of Commanders

700.701 Titles of commanders.
700.702 Responsibility and authority of commanders.
700.703 To announce assumption of command.
700.704 Readiness.
700.705 Observance of international law.
700.706 Keeping immediate superiors informed.

                          Staffs of Commanders

700.710 Organization of a staff.
700.711 Authority and responsibilities of officers of a staff.

                      Administration and Discipline

700.720 Administration and discipline: Staff embarked.
700.721 Administration and discipline: Staff based ashore.
700.722 Administration and discipline: Staff unassigned to an 
          administrative command.
700.723 Administration and discipline: Separate and detached command.

                    Subpart H_The Commanding Officer

                     Commanding Officers in General

700.801 Applicability.
700.802 Responsibility.
700.804 Organization of commands.
700.809 Persons found under incriminating circumstances.
700.810 Rules for visits.
700.811 Dealers, tradesmen, and agents.
700.812 Postal matters.
700.815 Deaths.
700.816 The American National Red Cross.
700.819 Records.
700.822 Delivery of personnel to civil authorities and service of 
          subpoena or other process.
700.826 Physical security.
700.827 Effectiveness for service.
700.828 Search by foreign authorities.
700.832 Environment pollution.
700.834 Care of ships, aircraft, vehicles and their equipment.
700.835 Work, facilities, supplies, or services for other Government 
          departments, State or local governments, foreign governments, 
          private parties and morale, welfare, and recreational 
          activities.

                       Commanding Officers Afloat

700.840 Unauthorized persons on board.
700.841 Control of passengers.
700.842 Authority over passengers.
700.844 Marriages on board.
700.845 Maintenance of logs.
700.846 Status of logs.
700.847 Responsibility of a master of an in-service ship of the Military 
          Sealift Command.
700.848 Relations with merchant seamen.
700.855 Status of boats.
700.856 Pilotage.
700.857 Safe navigation and regulations governing operation of ships and 
          aircraft.
700.859 Quarantine.
700.860 Customs and immigration inspections.

       Special Circumstances/Ships in Naval Stations and Shipyards

700.871 Responsibility for safety of ships and craft at a naval station 
          or shipyard.
700.872 Ships and craft in drydock.
700.873 Inspection incident to commissioning of ships.

          Special Circumstances/Prospective Commanding Officers

700.880 Duties of the prospective commanding officer of a ship.

                  Subpart I_The Senior Officer Present

                                Contents

700.901 The senior officer present.
700.902 Eligibility for command at sea.
700.903 Authority and responsibility.
700.904 Authority of senior officer of the Marine Corps present.
700.922 Shore patrol.
700.923 Precautions for health.
700.924 Medical or dental aid to persons not in the naval service.
700.934 Exercise of power of consul.
700.939 Granting of asylum and temporary refuge.

               Subpart J_Precedence, Authority and Command

                                Authority

700.1020 Exercise of authority.
700.1026 Authority of an officer who succeeds to command.
700.1038 Authority of a sentry.

                             Detail to Duty

700.1052 Orders to active service.
700.1053 Commander of a task force.
700.1054 Command of a naval base.
700.1055 Command of a naval shipyard.
700.1056 Command of a ship.
700.1057 Command of an air activity.
700.1058 Command of a submarine.
700.1059 Command of a staff corps activity.

                      Subpart K_General Regulations

                          Standards of Conduct

700.1101 Demand for court-martial.

[[Page 11]]

700.1113 Endorsement of commercial product or process.
700.1120 Personal privacy and rights of individuals regarding their 
          personal records.

                            Official Records

700.1121 Disclosure, publication and security of official information.
700.1126 Correction of naval records.
700.1127 Control of official records.
700.1128 Official records in civil courts.

                          Duties of Individuals

700.1138 Responsibilities concerning marijuana, narcotics, and other 
          controlled substances.
700.1139 Rules for preventing collisions, afloat and in the air.

                         Rights and Restrictions

700.1162 Alcoholic beverages.
700.1167 Supremacist activity.

    Authority: 10 U.S.C. 6011.

    Source: 64 FR 56062, Oct. 15, 1999, unless otherwise noted.



                       Subpart A_Navy Regulations



Sec. 700.101  Origin and history of United States Navy Regulations.

    (a) United States Navy Regulations began with the enactment by the 
Continental Congress of the ``Rules for the Regulation of the Navy of 
the United Colonies'' on November 28, 1775. The first issuance by the 
United States Government which covered this subject matter was ``An Act 
for the Government of the Navy of the United States,'' enacted on March 
2, 1799. This was followed the next year by ``An Act for the Better 
Government of the Navy of the United States.''
    (b) In the years preceding the Civil War, twelve successor 
publications were promulgated under a number of titles by the President, 
the Navy Department and the Secretary of the Navy. A decision by the 
Attorney General that the last of the pre-Civil War issuances was 
invalid led to the inclusion in the 1862 naval appropriations bill of a 
provision that ``the orders, regulations, and instructions heretofore 
issued by the Secretary of the Navy be, and they are hereby, recognized 
as the regulations of the Navy Department, subject, however, to such 
alterations as the Secretary of the Navy may adopt, with the approbation 
of the President of the United States.''
    (c) Thirteen editions of Navy Regulations were published in 
accordance with this authority (later codified as Section 1547, Revised 
Statutes) between 1865 and 1948. The 1973 edition of Navy Regulations 
was published under authority of 10 United States Code (U.S.C.) 6011, 
which provided that ``United States Navy Regulations shall be issued by 
the Secretary of the Navy with the approval of the President.'' In 1981, 
this provision was amended to eliminate the requirement for presidential 
approval.
    (d) While leaving this provision unaffected, Congress enacted the 
Goldwater-Nichols Department of Defense Reorganization Act of 1986 (Pub. 
L. 99-443), which granted each of the service secretaries the authority 
to prescribe regulations to carry out his or her statutory functions, 
powers and duties.



Sec. 700.102  Statutory authority for issuance of United States Navy Regulations.

    Title 10, United States Code, section 6011, provides that United 
States Navy Regulations shall be issued by the Secretary of the Navy. 
Regulations issued under this authority are permanent regulations of 
general applicability, as opposed to regulations issued by the Secretary 
under Sec. 700.104.



Sec. 700.103  Purpose and effect of United States Navy Regulations.

    United States Navy Regulation is the principle regulatory document 
of the Department of the Navy, endowed with the sanction of law, as to 
duty, responsibility, authority, distinctions and relationships of 
various commands, officials and individuals. Other directives issued 
within the Department of the Navy shall not conflict with, alter or 
amend any provision of Navy Regulations.



Sec. 700.104  Statutory authority for prescription of other regulations.

    The Secretary of the Navy may prescribe regulations to carry out his 
or her functions, powers and duties under Title 10, United States Code.

[[Page 12]]



Sec. 700.105  Issuance of directives by other officers and officials.

    Responsible officers and officials of the Department of the Navy may 
issue, or cause to be issued, directives concerning matters over which 
they exercise command, control or supervision, which do not conflict 
with, alter or amend these regulations.



Sec. 700.106  Control of administrative requirements.

    (a) Directives will be issued with due regard for the imposition of 
workload resulting therefrom and benefits or advantages to be gained. 
Issuance of new directives will be in accordance with the following:
    (1) Directives which implement or amplify directives from higher 
authority will not be issued unless absolutely essential.
    (2) Administrative reporting requirements will not be imposed unless 
the expected value of the information to be gained is significantly 
greater than the cumulative burden imposed.
    (b) Each officer or official issuing a directive or imposing a 
reporting requirement will periodically, in accordance with instructions 
to be issued by appropriate authority, review such directive or report 
with a view toward the following:
    (1) Reduction of directives by cancellation or consolidation; or
    (2) Reduction of reporting requirements by elimination of the 
report, reduction in the frequency of the report, or combination with 
other reports.
    (c) When issuance of a directive or a tasking will result in 
imposition of additional administrative requirements on commands not 
within the chain of command or the issuing authority, the first common 
superior of the commands affected by the requirement must concur in the 
issuance.



Sec. 700.107  Maintenance of Navy Regulations.

    (a) The Chief of Naval Operations is responsible for maintaining 
Navy Regulations, and for ensuring that Navy Regulations conforms to the 
current needs of the Department of the Navy. When any person in the 
Department of the Navy deems it advisable that additions, changes or 
deletions should be made to Navy Regulations, he or she shall forward a 
draft of the proposed addition, change or deletion, with a statement of 
the reasons therefor, to the Chief of Naval Operations via the chain of 
command. The Chief of Naval Operations shall endeavor to obtain the 
concurrence of the Commandant of the Marine Corps, the Judge Advocate 
General and appropriate offices and commands. Unresolved issues 
concerning such additions, changes or deletions shall be forwarded to 
the Secretary of the Navy for appropriate action. Any additions, changes 
or deletions to the U.S. Navy Regulations must be approved by the 
Secretary of the Navy.
    (b) Changes to Navy Regulations will be numbered consecutively and 
issued as page changes. Advance changes may be used when required; these 
will be numbered consecutively and incorporated in page changes at 
frequent intervals.



                  Subpart B_The Department of the Navy



Sec. 700.201  Origin and authority of the Department of the Navy.

    (a) The naval affairs of the country began with the war for 
independence, the American Revolution. On 13 October 1775, Congress 
passed legislation for ships. This, in effect, created the continental 
Navy. Two battalions of Marines were authorized on 10 November 1775. 
Under the Constitution, the First Congress on 7 August 1789 assigned 
responsibility for the conduct of naval affairs to the War Department. 
On 30 April 1798, the Congress established a separate Department of the 
Navy with the Secretary of the Navy as its chief officer. On 11 July 
1798, the United States Marine Corps was established as a separate 
service, and in 1834 was made a part of the Department of the Navy.
    (b) The National Security Act of 1947, as amended, is the 
fundamental law governing the position of the Department of the Navy in 
the organization for national defense. In 1949, the Act was amended to 
establish the Department of Defense as an Executive Department, and to 
establish the Departments of the Army, Navy and Air

[[Page 13]]

Force (formerly established as Executive Departments by the 1947 Act) as 
military departments within the Department of Defense.
    (c) The Goldwater-Nichols Department of Defense Reorganization Act 
of 1986 further defined the roles of the military departments within the 
Department of Defense. In addition to establishing the office of Vice 
Chairman of the Joint Chiefs of Staff, and further emphasizing the 
operational chain of command, the Act provided detailed statements of 
the roles of the Secretary of the Navy, the Chief of Naval Operations, 
the Commandant of the Marine Corps, and their respective principal 
assistants.
    (d) The responsibilities and authority of the Department of the Navy 
are vested in the Secretary of the Navy, and are subject to reassignment 
and delegation by the Secretary. The Secretary is bound by the 
provisions of law, the direction of the President and the Secretary of 
Defense and, along with all persons in charge of Government agencies, 
the regulations of certain non-defense agencies addressing their 
respective areas of functional responsibility.



Sec. 700.202  Mission of the Department of the Navy.

    (a) The Navy, within the Department of the Navy, shall be organized, 
trained, and equipped primarily for prompt and sustained combat incident 
to operations at sea. It is responsible for the preparation of naval 
forces necessary for the effective prosecution of war except as 
otherwise assigned, and, in accordance with integrated joint 
mobilization plans, for the expansion of the peacetime components of the 
Navy to meet the needs of war.
    (b) The Navy shall develop aircraft, weapons, tactics, technique, 
organization and equipment of naval combat and service elements. Matters 
of joint concern as to these functions shall be coordinated between the 
Army, the Air Force and the Navy.
    (c) The Marine Corps, within the Department of the Navy, shall be 
organized, trained, and equipped to provide fleet marine forces of 
combined arms, together with supporting air components, for service with 
the fleet in the seizure or defense of advanced naval bases and for the 
conduct of such land operations as may be essential to the prosecution 
of a naval campaign. In addition, the Marine Corps shall provide 
detachments and organizations for service on armed vessels of the Navy, 
shall provide security detachments for the protection of naval property 
at naval stations and bases, and shall perform such other duties as the 
President may direct. However, these additional duties may not detract 
from or interfere with the operations for which the Marine Corps is 
primarily organized.
    (d) The Marine Corps shall develop, in coordination with the Army 
and the Air Force, those phases of amphibious operations that pertain to 
the tactics, technique and equipment used by landing forces.
    (e) The Marine Corps is responsible, in accordance with integrated 
joint mobilization plans, for the expansion of peacetime components of 
the Marine Corps to meet the needs of war.



Sec. 700.203  Composition.

    (a) The Department of the Navy is separately organized under the 
Secretary of the Navy. It operates under the authority, direction and 
control of the Secretary of Defense.
    (b) The Department of the Navy is composed of the following:
    (1) The Office of the Secretary of the Navy;
    (2) The Office of the Chief of Naval Operations;
    (3) The Headquarters, Marine Corps;
    (4) The entire operating forces, including naval aviation, of the 
Navy and of the Marine Corps, and the reserve components of those 
operating forces;
    (5) All field activities, headquarters, forces, bases, 
installations, activities and functions under the control or supervision 
of the Secretary of the Navy; and
    (6) The Coast Guard when it is operating as a service in the Navy.



Sec. 700.204  The principal elements of the Department of the Navy.

    (a) The Department of the Navy consists of three elements; the Navy 
Department, the Operating Forces of the Navy and the Marine Corps, and 
the Shore Establishment.

[[Page 14]]

    (b) The Navy Department refers to the central executive offices of 
the Department of the Navy located at the seat of Government. The Navy 
Department is organizationally comprised of the Office of the Secretary 
of the Navy, the Office of the Chief of Naval Operations, and the 
Headquarters, Marine Corps. In addition, the Headquarters, Coast Guard, 
is included when the Coast Guard is operating as a service in the Navy.
    (c) The operating forces of the Navy and the Marine Corps comprise 
the several fleets, seagoing forces, Fleet Marine Forces, other assigned 
Marine Corps Forces, the Military Sealift Command and other forces and 
activities that may be assigned thereto by the President or the 
Secretary of the Navy.
    (d) The shore establishment is comprised of shore activities with 
defined missions approved for establishment by the Secretary of the 
Navy.



                   Subpart C_The Secretary of the Navy

                        The Secretary of the Navy



Sec. 700.301  Responsibilities of the Secretary of the Navy.

    The Secretary of the Navy is responsible to the Secretary of Defense 
for:
    (a) The functioning and efficiency of the Department of the Navy;
    (b) The formulation of policies and programs by the Department of 
the Navy that are fully consistent with national security objectives and 
policies established by the President or the Secretary of Defense;
    (c) The effective and timely implementation of policy, program and 
budget decisions and instructions of the President or the Secretary of 
Defense relating to the functions of the Department of the Navy;
    (d) Carrying out the functions of the Department of the Navy so as 
to fulfill (to the maximum extent practicable) the current and future 
operational requirement of the unified and specified combatant commands;
    (e) Effective cooperation and coordination between the Department of 
the Navy and the other military departments and agencies of the 
Department of Defense to provide for more effective, efficient and 
economical administration and eliminate duplication;
    (f) The presentation and justification of the position of the 
Department of the Navy on the plans, programs and policies of the 
Department of Defense;
    (g) The effective supervision and control of the intelligence 
activities of the Department of the Navy; and
    (h) Such other activities as may be prescribed by law or by the 
president or Secretary of Defense.



Sec. 700.302  Responsibilities within the Department of the Navy.

    The Secretary is the head of the Department of the Navy. The 
Secretary is responsible for, and has the authority necessary to 
conduct, all affairs of the Department of the Navy, including the 
following functions:
    (a) Recruiting;
    (b) Organizing;
    (c) Supplying;
    (d) Equipping (including research and development);
    (e) Training;
    (f) Servicing;
    (g) Mobilizing;
    (h) Demobilizing;
    (i) Administering (including the morale and welfare of personnel);
    (j) Maintaining;
    (k) The construction, outfitting and repair of military equipment; 
and
    (l) The construction, maintenance and repair of buildings, and 
interests in real property necessary to carry out the responsibilities 
specified in this article.



Sec. 700.303  Succession.

    If the Secretary of the Navy dies, resigns, is removed from office, 
is absent or is disabled, the person who is highest on the following 
list, and who is not absent or disabled, shall perform the duties of the 
Secretary until the President directs another person to perform those 
duties or until the absence or disability ceases:
    (a) The Under Secretary of the Navy;
    (b) The Assistant Secretaries of the Navy, in the order prescribed 
by the Secretary of the Navy and approved by the Secretary of Defense;
    (c) The Chief of Naval Operations;

[[Page 15]]

    (d) The Commandant of the Marine Corps.



Sec. 700.304  Recommendations to Congress.

    After first informing the Secretary of Defense, the Secretary of the 
Navy may make such recommendations to Congress relating to the 
Department of Defense as he or she considers appropriate.



Sec. 700.305  Assignment of functions.

    The Secretary of the Navy may assign such functions, powers, and 
duties as he or she considers appropriate to the Under Secretary of the 
Navy and to the Assistant Secretaries of the Navy. Officers of the Navy 
and the Marine Corps shall, as directed by the Secretary, report on any 
matter to the Secretary, the Under Secretary or any Assistant Secretary.



Sec. 700.306  Assignment of duty and titles.

    The Secretary of the Navy may:
    (a) Assign, detail and prescribe the duties of members of the Navy 
and Marine Corps and civilian personnel of the Department of the Navy; 
and
    (b) Change the title of any officer or activity of the Department of 
the Navy not prescribed by law.



Sec. 700.307  Powers with respect to the Coast Guard.

    Whenever the Coast Guard operates as a service in the Navy under 
Section 3 of Title 14, United States Code, the Secretary of the Navy has 
the same powers and duties with respect to the Coast Guard as the 
Secretary of Transportation has when the Coast Guard is not so 
operating.

                 The Office of the Secretary of the Navy



Sec. 700.310  Composition.

    The function of the Office of the Secretary of the Navy is to assist 
the Secretary in carrying out his or her responsibilities. The Office of 
the Secretary of the Navy is composed of the following:
    (a) The Civilian Executive Assistants:
    (1) The Under Secretary of the Navy;
    (2) The Assistant Secretary of the Navy (Financial Management);
    (3) The Assistant Secretary of the Navy (Manpower and Reserve 
Affairs);
    (4) The Assistant Secretary of the Navy (Research, Development and 
Acquisition);
    (5) The Assistant Secretary of the Navy (Installations and 
Environment); and
    (6) The General Counsel of the Department of the Navy.
    (b) The Staff Assistants:
    (1) The Judge Advocate General of the Navy;
    (2) The Naval Inspector General;
    (3) The Chief of Naval Research;
    (4) The Chief of Information;
    (5) The Chief of Legislative Affairs;
    (6) The Auditor General of the Navy;
    (7) The Director, Office of Program Appraisal; and
    (8) Such other officers and officials as may be established by law 
or as the Secretary of the Navy may establish or designate.



Sec. 700.311  Sole responsibilities.

    (a) The Office of the Secretary of the Navy shall have sole 
responsibility within the Office of the Secretary of the Navy, the 
Office of the Chief of Naval Operations and the Headquarters, Marine 
Corps, for the following functions:
    (1) Acquisition;
    (2) Auditing;
    (3) Comptroller (including financial management);
    (4) Information management;
    (5) Inspector general;
    (6) Legislative affairs;
    (7) Public affairs;
    (8) Research and development, except for military requirements and 
operational test and evaluation, which are the responsibilities of the 
Office of the Chief of Naval Operations and the Headquarters Marine 
Corps.
    (b) The following offices within the Office of the Secretary of the 
Navy are designated to conduct the functions specified in paragraph (a) 
of this section. No office or other entity may be established or 
designated within the Office of the Chief of Naval Operations or the 
Headquarters, Marine Corps, to conduct any of the functions specified in 
paragraph (a) of this section, except

[[Page 16]]

as noted in paragraph (a)(8) of this section.
    (1) The Assistant Secretary of the Navy (Research, Development and 
Acquisition) is the Acquisition Executive for the Department of the 
Navy. The Assistant Secretary of the Navy (Research, Development and 
Acquisition) (ASN(RD&A)) is responsible for research, development and 
acquisition, except for military requirements and operational test and 
evaluation, which remain functions of the Office of the Chief of Naval 
Operations and Headquarters Marine Corps. In addition to Acquisition 
Executive, ASN(RD&A) is also the Navy Senior Procurement Executive and 
Senior Department of the Navy Information Resource Management Official. 
Responsibilities include developing acquisition policy and procedures 
for all Department of the Navy research, development, production, 
shipbuilding and production/logistics support programs; and Department 
of the Navy international technology transfer.
    (2) The Auditor General is responsible for the internal auditing 
function within the Department of the Navy.
    (3) The Assistant Secretary of the Navy (Financial Management) is 
responsible for comptrollership, including financial management, within 
the Department of the Navy.
    (4) The Naval Inspector General is responsible for the inspector 
general function within the Department of the Navy.
    (5) The Chief of Legislative Affairs is responsible for legislative 
affairs within the Department of the Navy.
    (6) The Chief of Information is responsible for public affairs 
within the Department of the Navy.
    (c) The Secretary shall:
    (1) Prescribe the relationship of each office or other entity 
established or designated under paragraph (b) of this section:
    (i) To the Chief of Naval Operations and the Office of the Chief of 
Naval Operations: and
    (ii) To the Commandant of the Marine Corps and the Headquarters, 
Marine Corps; and
    (2) Ensure that each such office or entity provides the Chief of 
Naval Operations and the Commandant of the Marine Corps such staff 
support as the Chief of Naval Operations and the Commandant of the 
Marine Corps consider necessary to perform their respective duties and 
responsibilities.
    (d) The vesting in the Office of the Secretary of the Navy of the 
responsibility for the conduct of a function specified in paragraph (a) 
of this section does not preclude other elements of the Department of 
the Navy (including the Office of the Chief of Naval Operations and the 
Headquarters, Marine Corps) from providing advice or assistance to the 
Chief of Naval Operations and the Commandant of the Marine Corps, or 
otherwise participating in that function within the executive part of 
the Department under the direction of the office assigned responsibility 
for that function in the Office of the Secretary of the Navy.



Sec. 700.312  Authority over organizational matters.

    Subject to the approval or guidance of the Secretary of the Navy, 
the Civilian Executive Assistants, the Chief of Naval Operations, the 
Commandant of the Marine Corps and the Staff Assistants are individually 
authorized to organize, assign and reassign responsibilities within 
their respective commands or offices, including the establishment and 
disestablishment of such component organizations as may be necessary, 
subject to the following:
    (a) The authority to disestablish may not be exercised with respect 
to any organizational component of the Department established by law.
    (b) The Secretary retains the authority to approve the establishment 
and disestablishment of shore activities.

     The Office of the Secretary of the Navy/The Civilian Executive 
                               Assistants



Sec. 700.320  The Civilian Executive Assistants.

    (a) The Civilian Executive Assistants, as identified in Sec. 
700.310, are assigned department-wide responsibilities essential to the 
efficient administration of the Department of the Navy.
    (b) Each Civilian Executive Assistants, within his or her assigned 
area of responsibility, is the principal civilian

[[Page 17]]

advisor and assistant to the Secretary on the administration of the 
affairs of the Department of the Navy. The Civilian Executive Assistants 
carry out their duties with the professional assistance of the Office of 
the Chief of Naval Operations and Headquarters, Marine Corps, as 
presided over by the Chief of Naval Operations and Commandant of the 
Marine Corps, respectively.
    (c) The Civilian Executive Assistants are authorized and directed to 
act for the Secretary within their assigned areas of responsibility.



Sec. 700.321  The Under Secretary of the Navy.

    (a) The Under Secretary of the Navy shall perform such duties and 
exercise such powers as the Secretary of the Navy shall prescribe.
    (b) The Under Secretary of the Navy is designated as the deputy and 
principal assistant to the Secretary of the Navy. The Under Secretary of 
the Navy acts with full authority of the Secretary in the general 
management of the Department of the Navy and supervision of offices, 
organizations and functions as assigned by the Secretary.



Sec. 700.322  Assistant Secretaries of the Navy; statutory authorization.

    There are four Assistant Secretaries of the Navy. The Assistant 
Secretaries shall perform such duties and exercise such powers as the 
Secretary of the Navy may prescribe in accordance with law.



Sec. 700.323  The Assistant Secretary of the Navy (Financial Management).

    The Assistant Secretary of the Navy (Financial Management) is the 
Comptroller of the Navy, and is responsible for all matters related to 
the financial management of the Department of the Navy, including:
    (a) Budgeting;
    (b) Accounting;
    (c) Disbursing;
    (d) Financing;
    (e) Internal review;
    (f) Progress and statistical reporting; and
    (g) Supervision of offices and organizations as assigned by the 
Secretary of the Navy.



Sec. 700.324  The Assistant Secretary of the Navy (Manpower and Reserve Affairs).

    The Assistant Secretary of the Navy (Manpower and Reserve Affairs) 
is responsible for:
    (a) The overall supervision of manpower and reserve component 
affairs of the Department of the Navy, including policy and 
administration of affairs related to military (active and inactive) and 
civilian personnel; and
    (b) Supervision of offices and organizations as assigned by the 
Secretary, specifically the Naval Council of Personnel Boards and the 
Board for Correction of Naval Records.



Sec. 700.325  The Assistant Secretary of the Navy (Installations and Environment).

    The Assistant Secretary of the Navy (Installations and Environment) 
is responsible for:
    (a) Policy relating to Navy installations, facilities, environment, 
safety, shore resources management and quality improvement;
    (b) Development, implementation and evaluation of military 
construction, facilities management and engineering, strategic 
homeporting, housing, utilities, and base utilization issues;
    (c) Environmental policy, safety, occupational health, and Marine 
Corps and Navy environmental affairs, including environmental 
protection, restoration, compliance and legislation, natural resource 
programs, hazardous material/waste minimization, plastics reduction and 
control, afloat environmental issues, state and federal agency and 
environmental organization coordination, and the National Environmental 
Policy Act; and
    (d) Advising on fiscal resources related to shore appropriations.



Sec. 700.326  The Assistant Secretary of the Navy (Research, Development and Acquisition).

    The Assistant Secretary of the Navy (Research, Development and 
Acquisition) is responsible for:
    (a) Research, development and acquisition, except for military 
requirements and operational test and evaluation;

[[Page 18]]

    (b) Direct management of acquisition programs;
    (c) All aspects of the acquisition process within the Department of 
the Navy;
    (d) All acquisition policy, including technology base and advanced 
technology development, procurement, competition, contracts and business 
management, logistics, product integrity, and education and training of 
the acquisition workforce.



Sec. 700.327  The General Counsel of the Navy.

    (a) The General Counsel is head of the Office of the General Counsel 
and is responsible for providing legal advice, counsel, and guidance 
within the Department of the Navy on the following matters:
    (1) Business and commercial law, environmental law, civilian 
personnel law, real and personal property law and patent law;
    (2) Procurement of services, including the fiscal, budgetary and 
accounting aspects, for the Navy and Marine Corps;
    (3) Litigation involving the issues enumerated above; and
    (4) Other matters as directed by the Secretary of the Navy.
    (b) The General Counsel maintains a close working relationship with 
the Judge Advocate General on all matters of common interest.

      The Office of the Secretary of the Navy/The Staff Assistants



Sec. 700.330  The Staff Assistants.

    The Staff Assistants, as identified in Sec. 700.310, assist the 
Secretary of the Navy, or one or more of the Civilian Executive 
Assistants, in the administration of the Navy. They supervise all 
functions and activities internal to their offices and assigned field 
activities, if any, and are responsible to the Secretary or to one of 
the Civilian Executive Assistants for the utilization of resources by, 
and the operating efficiency of, all activities under their supervision 
or command. Their duties are as provided by law or as assigned by the 
Secretary.



Sec. 700.331  The Judge Advocate General.

    (a) The Judge Advocate General of the Navy commands the Office of 
the Judge Advocate General and is the Chief of the Judge Advocate 
General's Corps. The Judge Advocate General:
    (1) Provides or supervises the provision of all legal advice and 
related services throughout the Department of the Navy, except for the 
advice and services provided by the General Counsel;
    (2) Performs the functions required or authorized by law;
    (3) Provides legal and policy advice to the Secretary of the Navy on 
military justice, administrative law, claims, operational and 
international law, and litigation involving these issues; and
    (4) Acts on other matters as directed by the Secretary.
    (b) The Judge Advocate General maintains a close working 
relationship with the General Counsel on all matters of common interest.



Sec. 700.332  The Naval Inspector General.

    (a) Under the direction of the Secretary of the Navy, the Naval 
Inspector General:
    (1) Inspects, investigates or inquires into any and all matters of 
importance to the Department of the Navy with particular emphasis on 
readiness, including, but not limited to effectiveness, efficiency, 
economy and integrity;
    (2) Exercises broad supervision, general guidance and coordination 
for all Department of the Navy inspection, evaluation and appraisal 
organizations to minimize duplication of efforts and the number of 
necessary inspections;
    (3) Through analysis of available information, identifies areas of 
weakness in the Department of the Navy as they relate to matters of 
integrity and efficiency and provides appropriate recommendations for 
improvement. To accomplish these functions, the Inspector General shall 
have unrestricted access, by any means, to any information maintained by 
any naval activity deemed necessary, unless specifically restricted by 
the Secretary of the Navy;

[[Page 19]]

    (4) Receives allegations of inefficiency, misconduct, impropriety, 
mismanagement or violations of law, and investigates or refers such 
matters for investigation, as is appropriate; and
    (5) Serves as principal advisor to the Secretary of the Navy, the 
Chief of Naval Operations and the Commandant of the Marine Corps on all 
inspection and investigation matters.
    (b) In addition, the Naval Inspector General has various functions, 
including (but not limited to):
    (1) Providing of an alternative to the normal chain of command 
channel for receipt of complaints of personnel;
    (2) Serving as the official to whom employees may complain without 
fear of reprisal;
    (3) Cooperating with the Inspector General, Department of Defense;
    (4) Providing oversight of intelligence and special activities;
    (5) Serving as the Department of the Navy coordinator for fraud, 
waste and efficiency matters;
    (6) Serving as Navy Program Manager and focal point for the 
Department of the Navy and Navy Hotline programs; and
    (7) Designation as the centralized organization within the 
Department of Defense to monitor and ensure the coordination of 
criminal, civil, administrative and contractual remedies for all 
significant cases, including investigation of fraud or corruption 
related to procurement activities affecting the Department of the Navy.



Sec. 700.333  The Chief of Naval Research.

    (a) The Chief of Naval Research shall command the Office of the 
Chief of Naval Research, the Office of Naval Research, the Office of 
Naval Technology and assigned shore activities.
    (b) The Office of Naval Research shall perform such duties as the 
Secretary of the Navy prescribes relating to:
    (1) The encouragement, promotion, planning, initiation and 
coordination of naval research;
    (2) The conduct of naval research in augmentation of and in 
conjunction with the research and development conducted by other 
agencies and offices of the Department of the Navy; and
    (3) The supervision, administration and control of activities within 
or for the Department of the Navy relating to patents, inventions, 
trademarks, copyrights and royalty payments, and matters connected 
therewith.



Sec. 700.334  The Chief of Information.

    (a) The Chief of Information is the direct representative of the 
Secretary of the Navy in all public affairs and internal relations 
matters. The Chief of Information is authorized to implement Navy public 
affairs and internal relations policies and to coordinate those Navy and 
Marine Corps activities of mutual interest.
    (b) The Chief of Naval Operations and the Commandant of the Marine 
Corps are delegated responsibilities for:
    (1) Conduct of their respective services' internal information 
programs;
    (2) Conduct of their respective services' community relations 
programs; and
    (3) Implementing the Secretary of the Navy's public affairs policy 
and directives.
    (c) The Chief of Information will report to the Chief of Naval 
Operations for support of the responsibilities outlined in paragraph (b) 
of this section, and will provide such staff support as the Chief of 
Naval Operations considers necessary to perform those duties and 
responsibilities.
    (d) The Deputy Chief of Information for Marine Corps Matters may 
report directly to the Secretary regarding public information matters 
related solely to the Marine Corps. The Deputy Chief will promptly 
inform the Chief of Information regarding the substance of all 
independent contacts with the Secretary pertaining to Marine Corps 
matters. The Deputy Chief of Information for Marine Corps Matters will 
report to the Commandant of the Marine Corps for support of the 
responsibilities outlined in paragraph (b) of this section, and will 
provide such staff support as the Commandant considers necessary to 
perform those duties and responsibilities.



Sec. 700.335  The Chief of Legislative Affairs.

    The mission of the Chief of Legislative Affairs is to:
    (a) Plan, develop and coordinate relationships between 
representatives of

[[Page 20]]

the Department of the Navy and members of committees of the United 
States Congress and their staffs which are necessary in the transaction 
of official Government business (except appropriations matters) 
affecting the Department of the Navy; and
    (b) Furnish staff support, advice and assistance to the Secretary of 
the Navy, the Chief of Naval Operations, the Commandant of the Marine 
Corps and all other principal civilian and military officials of the 
Department of the Navy concerning congressional aspects of the 
Department of the Navy policies, plans and programs (except 
appropriations matters).



Sec. 700.336  The Director, Office of Program Appraisal.

    (a) The Director, Office of Program Appraisal, directs, under the 
immediate supervision of the Secretary of the Navy, the Office of 
Program Appraisal.
    (b) The Office of Program Appraisal will assist the Secretary in 
assuring that existing and proposed Navy and Marine Corps programs 
provide the optimum means of achieving the objectives of the Department 
of the Navy.



Sec. 700.337  The Auditor General.

    (a) The Auditor General of the Navy is responsible for:
    (1) Serving as Director of the Naval Audit Service; and
    (2) Developing and implementing Navy internal audit policies, 
programs and procedures within the framework of Government auditing 
standards.
    (b) The Auditor General can provide information and may provide 
assistance and support to the Chief of Naval Operations and the 
Commandant of the Marine Corps to enable them to discharge their duties 
and responsibilities.



                 Subpart D_The Chief of Naval Operations



Sec. 700.401  Precedence.

    The Chief of Naval Operations, while so serving, has the grade of 
admiral. In the performance of duties within the Department of the Navy, 
the Chief of Naval Operations takes precedence above all other officers 
of the naval service, except an officer of the naval service who is 
serving as Chairman or Vice Chairman of the Joint Chiefs of Staff.



Sec. 700.402  Succession.

    When there is a vacancy in the position of Chief of Naval 
Operations, or during the absence or disability of the Chief of Naval 
Operations:
    (a) The Vice Chief of Naval Operations shall perform the duties of 
the Chief of Naval Operations until a successor is appointed or the 
absence or disability ceases.
    (b) If there is a vacancy in the position of Vice Chief of Naval 
Operations or the Vice Chief of Naval Operations is absent or disabled, 
unless the President directs otherwise, the most senior officer of the 
Navy in the Office of the Chief of Naval Operations who is not absent or 
disabled and who is not restricted in the performance of duty shall 
perform the duties of the Chief of Naval Operations until a successor to 
the Chief of Naval Operations or the Vice Chief of Naval Operations is 
appointed or until the absence or disability of the Chief of Naval 
Operations or Vice Chief of Naval Operations ceases, whichever occurs 
first.



Sec. 700.403  Statutory authority and responsibility of the Chief of Naval Operations.

    (a) Except as otherwise prescribed by law, and subject to the 
statutory authority of the Secretary of the Navy to assign functions, 
powers and duties, the Chief of Naval Operations performs duties under 
the authority, direction and control of the Secretary of the Navy and is 
directly responsible to the Secretary.
    (b) Subject to the authority, direction and control of the Secretary 
of the Navy, the Chief of Naval Operations shall:
    (1) Preside over the Office of the Chief of Naval Operations;
    (2) Transmit the plans and recommendations of the Office of the 
Chief of Naval Operations to the Secretary and advise the Secretary with 
regard to such plans and recommendations;
    (3) After approval of the plans or recommendations of the Office of 
the

[[Page 21]]

Chief of Naval Operations by the Secretary, act as the agent of the 
Secretary in carrying them into effect;
    (4) Exercise supervision, consistent with the statutory authority 
assigned to commanders of unified or specified combatant commands, over 
such of the members and organizations of the Navy and the Marine Corps 
as the Secretary determines;
    (5) Perform the duties prescribed for a member of the Armed Forces 
Policy Council and other statutory duties; and
    (6) Perform such other military duties, not otherwise assigned by 
law, as are assigned to the Chief of Naval Operations by the President, 
the Secretary of Defense or the Secretary of the Navy.
    (c) The Chief of Naval Operations shall also perform the statutory 
duties prescribed for a member of the Joint Chiefs of Staff.
    (1) To the extent that such action does not impair the independence 
of the Chief of Naval Operations in the performance of duties as a 
member of the Joint Chiefs of Staff, the Chief of Naval Operations shall 
inform the Secretary of the Navy regarding military advice rendered by 
members of the Joint Chiefs of Staff on matters affecting the Department 
of the Navy.
    (2) Subject to the authority, direction and control of the Secretary 
of Defense, the Chief of Naval Operations shall keep the Secretary of 
the Navy fully informed of significant military operations affecting the 
duties and responsibilities of the Secretary of the Navy.



Sec. 700.404  Statutory authority and responsibility of the Office of the Chief of Naval Operations.

    (a) The Office of the Chief of Naval Operations shall furnish 
professional assistance to the Secretary, the Under Secretary and the 
Assistant Secretaries of the Navy, and to the Chief of Naval Operations. 
Under the authority, direction and control of the Secretary of the Navy, 
the Office of the Chief of Naval Operations shall:
    (1) Subject to Sec. 700.311(a), prepare for such employment of the 
Navy, and for such recruiting, organizing, supplying, equipping 
(including those aspects of research and development assigned by the 
Secretary of the Navy), training, servicing, mobilizing, demobilizing, 
administering, and maintaining of the Navy, as will assist in the 
execution of any power, duty or function of the Secretary or the Chief 
of Naval Operations;
    (2) Investigate and report upon the efficiency of the Navy and its 
preparation to support military operations by combatant commands;
    (3) Prepare detailed instructions for the execution of approved 
plans and supervise the execution of those plans and instructions;
    (4) As directed by the Secretary or the Chief of Naval Operations, 
coordinate the action of organizations of the Navy; and
    (5) Perform such other duties, not otherwise assigned by law, as may 
be prescribed by the Secretary.
    (b) Except as otherwise specifically prescribed by law, the Office 
of the Chief of Naval Operations shall be organized in such manner, and 
its members shall perform such duties and have such titles as the 
Secretary may prescribe.



Sec. 700.405  Delegated authority and responsibility.

    (a) The Chief of Naval Operations is the principal naval advisor and 
naval executive to the Secretary of the Navy on the conduct of the naval 
activities of the Department of the Navy.
    (b)(1) Internal to the administration of the Department of the Navy, 
the Chief of Naval Operations, consistent with the statutory authority 
assigned to commanders of unified or specified combatant commands, under 
the direction of the Secretary of the Navy, shall command:
    (i) The operating forces of the Navy; and
    (ii) Such shore activities as may be assigned by the Secretary.
    (2) The Chief of Naval Operations shall be responsible to the 
Secretary of the Navy for the Utilization of resources by, and the 
operating efficiency of, the Office of the Chief of Naval Operations, 
the Operating Forces of the Navy and assigned shore activities.

[[Page 22]]

    (c) In addition, the Chief of Naval Operations has the following 
specific responsibilities:
    (1) To organize, train, equip, prepare and maintain the readiness of 
Navy forces, including those for assignment to unified or specified 
commands, for the performance of military missions as directed by the 
President, the Secretary of Defense or the Chairman of the Joint Chiefs 
of Staff;
    (2) To determine current and future requirements of the Navy (less 
Fleet Marine Forces and other assigned Marine Corps forces) for 
manpower, material, weapons, facilities and services, including the 
determination of quantities, military performance requirements and 
times, places and priorities of need;
    (3) To exercise leadership in maintaining a high degree of 
competence among Navy officer, enlisted and civilian personnel in 
necessary fields of specialization, through education training and equal 
opportunities for personal advancement, and maintaining the morale and 
motivation of Navy personnel and the prestige of a Navy career;
    (4) To plan and provide health care for personnel of the naval 
service, their dependents and eligible beneficiaries;
    (5) To direct the organization, administration, training and support 
of the Naval Reserve;
    (6) To inspect and investigate components of the Department of the 
Navy to determine and maintain efficiency, discipline, readiness, 
effectiveness and economy, except in those areas where such 
responsibility rests with the Commandant of the Marine Corps;
    (7) To determine the requirements of naval forces and activities, to 
include requirements for research, development, test, and evaluation to 
plan and provide for the conduct of test and evaluation which are 
adequate and responsive to long range objectives, immediate 
requirements, and fiscal limitations; and to provide assistance to the 
Assistant Secretary of the Navy (Research, Development and Acquisition) 
in the review and appraisal of the overall Navy program to ensure 
fulfillment of stated requirements;
    (8) To formulate Navy strategic plans and policies and participate 
in the formulation of Joint and combined strategic plans and policies 
and related command relationships; and
    (9) Subject to guidance from the Assistant Secretary of the Navy 
(Financial Management), to formulate budget proposals for the Office of 
the Chief of Naval Operations, the Operating Forces of the Navy and 
assigned shore activities, and other activities and programs as 
assigned;
    (10) To exercise authority for intelligence within the Navy.
    (d) The Chief of Naval Operations, under the direction of the 
Secretary of the Navy, shall exercise overall authority throughout the 
Department of the Navy in matters related to:
    (1) The effectiveness of the support of the Operating Forces of the 
Navy and assigned shore activities;
    (2) The coordination and direction of assigned Navy wide programs 
and functions, including those assigned by higher authority;
    (3) Matters essential to naval military administration, such as:
    (i) Security;
    (ii) Discipline;
    (iii) Communications; and
    (iv) Matters related to the customs and traditions of the naval 
service.
    (4) Except for those areas wherein such responsibility rests with 
the Commandant of the Marine Corps, the coordination of activities of 
the Department of the Navy in matters concerning effectiveness, 
efficiency and economy.

[64 FR 56062, Oct. 15, 1999, as amended at 68 FR 2697, Jan. 21, 2003]



Sec. 700.406  Naval Vessel Register, classification of naval craft, and status of ships and service craft.

    (a) The Chief of Naval Operations shall be responsible for the Naval 
Vessel Register (except the Secretary of the Navy shall strike vessels 
from the Register) and the assignment of classification for 
administrative purposes to water borne craft and the designation of 
status for each ship and service craft.
    (b) Commissioned vessels and craft shall be called ``United States 
Ship'' or ``U.S.S.''
    (c) Civilian manned ships, of the Military Sealift Command or other 
commands, designated ``active status,

[[Page 23]]

in service'' shall be called ``United States Naval Ship'' or 
``U.S.N.S.''
    (d) Ships and service craft designated ``active status, in 
service,'' except those described by paragraph (c) of this section, 
shall be referred to by name, when assigned, classification, and hull 
number (e.g., ``HIGHPOINT PCH-1'' or ``YOGN-8'').
    (e) The Chief of Naval Operations shall designate hospital ships and 
medical aircraft as he or she deems necessary. Such designation shall be 
in compliance with the Geneva Convention for the Amelioration of the 
Conditions of Wounded, Sick and Ship wrecked Members of the Armed Forces 
at Sea of 12 August 1949. The Chief of Naval Operations shall ensure 
compliance with the notice shall ensure compliance with the notice 
provisions of that Convention.



              Subpart E_The Commandant of the Marine Corps



Sec. 700.501  Precedence.

    The Commandant of the Marine Corps, while so serving, has the grade 
of general. In the performance of duties within the Department of the 
Navy, the Commandant of the Marine Corps takes precedence above all 
other officers of the Marine Corps, except an officer of the Marine 
Corps who is serving as Chairman or Vice Chairman of the Joint Chiefs of 
Staff.



Sec. 700.502  Succession.

    When there is a vacancy in the office of Commandant of the Marine 
Corps, or during the absence or disability of the Commandant:
    (a) The Assistant Commandant of the Marine Corps shall perform the 
duties of the Commandant until a successor is appointed or the absence 
or disability ceases; or
    (b) If there is a vacancy in the office of the Assistant Commandant 
of the Marine Corps or the Assistant Commandant is absent or disabled, 
unless the President directs otherwise, the most senior officer of the 
Marine Corps in the Headquarters, Marine Corps, who is not absent or 
disabled and who is not restricted in the performance of duty shall 
perform the duties of the Commandant until a successor to the Commandant 
or the Assistant Commandant is appointed or until the absence or 
disability of the Commandant or the Assistant Commandant ceases, 
whichever occurs first.



Sec. 700.503  Statutory authority and responsibility of the Commandant of the Marine Corps.

    (a) Except as otherwise prescribed by law and subject to the 
statutory authority of the Secretary of the Navy to assign functions, 
powers and duties, the Commandant of the Marine Corps performs duties 
under the authority, direction and control of the Secretary of the Navy 
and is directly responsible to the Secretary.
    (b) Subject to the authority, direction and control of the Secretary 
of the Navy, the Commandant of the Marine Corps shall:
    (1) Preside over the Headquarters, Marine Corps;
    (2) Transmit the plans and recommendations of the Headquarters, 
Marine Corps, to the Secretary and advise the Secretary with regard to 
such plans and recommendations;
    (3) After approval of the plans or recommendations of the 
Headquarters, Marine Corps, by the Secretary, act as the agent of the 
Secretary in carrying them into effect;
    (4) Exercise supervision, consistent with the statutory authority 
assigned to commanders of unified or specified combatant commands, over 
such of the members and organizations of the Navy and the Marine Corps 
as the Secretary determines;
    (5) Perform the duties prescribed for a member of the Armed Forces 
Policy Council and other statutory duties; and
    (6) Perform such other military duties, not otherwise assigned by 
law, as are assigned to the Commandant of the Marine Corps by the 
President, the Secretary of Defense or the Secretary of the Navy.
    (c) The Commandant of the Marine Corps shall also perform the 
statutory duties prescribed for a member of the Joint Chiefs of Staff.
    (1) To the extent that such action does not impair the independence 
of the Commandant of the Marine Corps in the performance of duties as a 
member of the Joint Chiefs of Staff, the

[[Page 24]]

Commandant of the Marine Corps shall inform the Secretary of the Navy 
regarding military advice rendered by members of the Joint Chiefs of 
Staff on matters affecting the Department of the Navy.
    (2) Subject to the authority, direction and control of the Secretary 
of Defense, the Commandant of the Marine Corps shall keep the Secretary 
of the Navy fully informed of significant military operations affecting 
the duties and responsibilities of the Secretary of the Navy.



Sec. 700.504  Statutory authority and responsibility of the Headquarters, Marine Corps.

    (a) The Headquarters, Marine Corps, shall furnish professional 
assistance to the Secretary, the Under Secretary and the Assistant 
Secretaries of the Navy, and to the Commandant of the Marine Corps.
    (1) Under the authority, direction and control of the Secretary of 
the Navy, the Headquarters, Marine Corps shall:
    (i) Subject to Sec. 700.311(a), prepare for such employment of the 
Marine Corps, and for such recruiting, organizing, supplying, equipping 
(including those aspects of research and development assigned by the 
Secretary of the Navy), training, servicing, mobilizing, demobilizing, 
administering, and maintaining of the Marine Corps, as will assist in 
the execution of any power, duty or function of the Secretary or the 
Commandant;
    (ii) Investigate and report upon the efficiency of the Marine Corps 
and its preparation to support military operations by combatant 
commands;
    (iii) Prepare detailed instructions for the execution of approved 
plans and supervise the execution of those plans and instructions;
    (iv) As directed by the Secretary or the Commandant, coordinate the 
action of organizations of the Marine Corps; and
    (v) Perform such other duties, not otherwise assigned by law, as may 
be prescribed by the Secretary.
    (2) [Reserved]
    (b) Except as otherwise specifically prescribed by law, the 
Headquarters, Marine Corps, shall be organized in such manner, and its 
members shall perform such duties and have such titles, as the Secretary 
may prescribe.



Sec. 700.505  Delegated authority and responsibility.

    (a)(1) Internal to the administration of the Department of the Navy, 
the Commandant of the Marine Corps, consistent with the statutory 
authority assigned to commanders of unified or specified combatant 
commands, under the direction of the Secretary of the Navy, shall 
command:
    (i) The operating forces of the Marine Corps; and
    (ii) Such shore activities as may be assigned by the Secretary.
    (2) The Commandant shall be responsible to the Secretary of the Navy 
for the utilization of resources by, and the operating efficiency of, 
all commands and activities under such command.
    (b) In addition, the Commandant has the following specific 
responsibilities:
    (1) To plan for and determine the needs of the Marine Corps for 
equipment, weapons or weapons systems, materials, supplies, facilities, 
maintenance, and supporting services. This responsibility includes the 
determination of Marine Corps characteristics of equipment and material 
to be procured or developed, and the training required to prepare Marine 
Corps personnel for combat. It also includes the operation of the Marine 
Corps Material Support System.
    (2) Subject to guidance from the Assistant Secretary of the Navy 
(Financial Management), to formulate budget proposals for the 
Headquarters, Marine Corps, the Operating Forces of the Marine Corps, 
and other activities and programs as assigned.
    (3) To develop, in coordination with other military services, the 
doctrines, tactics and equipment employed by landing forces in 
amphibious operations.
    (4) To formulate Marine Corps strategic plans and policies and 
participate in the formulation of joint and combined strategic plans and 
policies and related command relationships.
    (5) To exercise authority for intelligence within the Marine Corps.

[[Page 25]]

    (6) To plan for and determine the present and future needs, both 
quantitative and qualitative, for manpower, including reserve personnel 
and civilian personnel, of the United States Marine Corps. This includes 
responsibility for leadership in maintaining a high degree of competence 
among Marine Corps officer and enlisted personnel and Marine Corps 
civilian personnel in necessary fields of specialization through 
education, training and equal opportunities for personal advancement; 
and for leadership in maintaining the morale and motivation of Marine 
Corps personnel and the prestige of a career in the Marine Corps.

[64 FR 56062, Oct. 15, 1999, as amended at 68 FR 2697, Jan. 21, 2003]



Subpart F_The United States Coast Guard (When Operating as a Service in 
                                the Navy)



Sec. 700.601  Relationship and operation as a service in the Navy.

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



Sec. 700.602  The Commandant of the Coast Guard.

    (a) The Commandant of the Coast Guard is the senior officer of the 
United States Coast Guard.
    (b) When reporting to the Secretary of the Navy, the Commandant will 
report to the Chief of Naval Operations.
    (c) The Chief of Naval Operations shall represent the Coast Guard 
before the Joint Chiefs of Staff.



Sec. 700.603  Duties and responsibilities.

    In exercising command over the Coast Guard while operating as a 
service of the Navy, the Commandant shall:
    (a) Organize, train, prepare and maintain the readiness of the Coast 
Guard to function as a specialized service in the Navy for the 
performance of national defense missions, as directed;
    (b) Plan for and determine the present and future needs of the Coast 
Guard, both quantitative and qualitative, for personnel, including 
reserve personnel;
    (c) Budget for the Coast Guard, except as may be otherwise directed 
by the Secretary of the Navy;
    (d) Plan for and determine the support needs of the Coast Guard for 
equipment, materials, weapons or combat systems, supplies, facilities, 
maintenance and supporting services;
    (e) Exercise essential military administration of the Coast Guard. 
This includes, but is not limited to, such matters as discipline, 
communications, personnel records and accounting, conforming, as 
practicable, to Navy procedures;
    (f) In conjunction with the Director of Naval Intelligence, and the 
National Intelligence Community, where appropriate, establish and 
maintain an intelligence and security capability to provide support for 
the maritime defense zones, port security, narcotics interdiction, anti-
terrorist activity, fishery activity, pollution monitoring and other 
Coast Guard missions;
    (g) Enforce or assist in enforcing Federal laws on and under the 
high seas and waters subject to the jurisdiction of the United States;
    (h) Administer, promulgate and enforce regulations for the promotion 
of safety of life and property on and under the high seas and waters 
subject to the

[[Page 26]]

jurisdiction of the United States. This applies to those matters not 
specifically delegated by law to some other executive department;
    (i) Develop, establish, maintain and operate, with due regard to the 
requirements of national defense, aids to maritime navigation, ice 
breaking facilities, for the promotion of safety on, under and over the 
high seas and waters subject to the jurisdiction of the United States;
    (j) Engage in oceanographic surveys in conjunction with the Office 
of the Oceanographer of the Navy; and
    (k) Continue in effect under the Secretary of the Navy those other 
functions, powers and duties vested in the Commandant by appropriate 
orders and regulations of the Secretary of Transportation on the day 
prior to the effective date of transfer of the Coast Guard to the 
Department of the Navy until specifically modified or terminated by the 
Secretary of the Navy.



           Subpart G_Commanders In Chief and Other Commanders

                     Titles and Duties of Commanders



Sec. 700.701  Titles of commanders.

    (a) The commander of a principal organization of the operating 
forces of the Navy, as determined by the Chief of Naval Operations, or 
the officer who has succeeded to such command as provided elsewhere in 
these regulations, shall have the title ``Commander.'' The name of the 
organization under the command of such an officer shall be added to form 
his or her official title, e.g., ``Commander, U.S. Atlantic Fleet.'' 
Commander, U.S. Atlantic Fleet, Commander, U.S. Pacific Fleet, and 
Commander, U.S. Naval Forces Europe, may also be referred to as a 
``Geographic Fleet Commander.''
    (b) The commander of each other organization of units of the 
operating forces of the Navy or marine corps, or organization of units 
of shore activities, shall have the title ``Commander,'' ``Commandant,'' 
``Commanding General'' or other appropriate title. The name of the 
organization under the command of such an officer shall be added to form 
his or her official title.

[64 FR 56062, Oct. 15, 1999, as amended at 68 FR 2697, Jan. 21, 2003]



Sec. 700.702  Responsibility and authority of commanders.

    (a) Commanders shall be responsible for the satisfactory 
accomplishment of the mission and duties assigned to their commands. 
Their authority shall be commensurate with their responsibilities. 
Normally, commanders shall exercise authority through their immediate 
subordinate commanders, but they may communicate directly with any of 
their subordinates.
    (b) Commanders shall ensure that subordinate commands are fully 
aware of the importance of strong, dynamic leadership and its 
relationship to the overall efficiency and readiness of naval forces. 
Commanders shall exercise positive leadership and actively develop the 
highest qualities of leadership in persons with positions of authority 
and responsibility throughout their commands.
    (c) Subject to orders of higher authority, and subject to the 
provisions of Sec. 700.106 of these regulations, commanders shall issue 
such regulations and instructions as may be necessary for the proper 
administration of their commands.
    (d) Commanders shall hold the same relationship to their flagships, 
or to shore activities of the command in which their headquarters may be 
located, in regard to internal administration and discipline, as to any 
other ship or shore activity of their commands.



Sec. 700.703  To announce assumption of command.

    (a) Upon assuming command, commanders shall so advise appropriate 
superiors, and the units of their commands.
    (b) When appropriate, commanders shall also advise the following 
officers and officials located within the area encompassed by the 
command concerning their assumption of command.
    (1) Senior commanders of other United States armed services;
    (2) Officials of other federal agencies; and

[[Page 27]]

    (3) Officials of foreign governments.



Sec. 700.704  Readiness.

    Commanders shall take all practicable steps to maintain their 
commands in a state of readiness to perform their missions. In 
conformity with the orders and policies of higher authority, they shall:
    (a) Organize the forces and resources under their command and assign 
duties to their principal subordinate commanders;
    (b) Prepare plans for the employment of their forces to meet 
existing and foreseeable situations;
    (c) Collaborate with the commanders of other United States armed 
services and with appropriate officials of other federal agencies and 
foreign governments located within the area encompassed by their 
commands;
    (d) Maintain effective intelligence and keep themselves informed of 
the political and military aspects of the national and international 
situation;
    (e) Make, or cause to be made, necessary inspections to ensure the 
readiness, effectiveness and efficiency of the components of their 
commands; and
    (f) Develop, in accordance with directives issued by higher 
authority, training strategies and plans for their commands.



Sec. 700.705  Observance of international law.

    At all times, commanders shall observe, and require their commands 
to observe, the principles of international law. Where necessary to 
fulfill this responsibility, a departure from other provisions of Navy 
Regulations is authorized.



Sec. 700.706  Keeping immediate superiors informed.

    Commanders shall keep their immediate superiors appropriately 
informed of:
    (a) The organization of their commands, the prospective and actual 
movements of the units of their commands, and the location of their 
headquarters;
    (b) Plans for employment of their forces;
    (c) The condition of their commands and of any required action 
pertaining thereto which is beyond their capacity or authority;
    (d) Intelligence information which may be of value;
    (e) Any battle, engagement or other significant action involving 
units of their commands;
    (f) Any important service or duty performed by persons or units of 
their commands; and
    (g) Unexecuted orders and matters of interest upon being relieved of 
command.

                          Staffs of Commanders



Sec. 700.710  Organization of a staff.

    (a) The term ``staff'' means those officers and other designated 
persons assigned to a commander to assist him or her in the 
administration and operation of his or her command.
    (b) The officer detailed as chief of staff and aide to a fleet 
admiral or admiral normally shall be a vice admiral or a rear admiral. 
The officer detailed as chief of staff and aide to a vice admiral or 
rear admiral shall normally be a rear admiral or a captain. The 
detailing of a vice commander or a deputy to a commander shall be 
reserved for selected commanders. An officer detailed as chief staff 
officer to another officer shall normally not be of the same grade as 
that officer.
    (c) The staff shall be organized into such divisions as may be 
prescribed by the commander concerned or by higher authority. These 
divisions shall conform in nature and designation, as practicable and as 
appropriate, to those of the staffs of superiors.
    (d) The staff of a flag or general officer may include one or more 
personal aides.



Sec. 700.711  Authority and responsibilities of officers of a staff.

    (a) The chief of staff and aide or chief staff officer, under the 
commander, shall be responsible for supervising and coordinating the 
work of the staff and shall be kept informed of all matters pertaining 
to that work. All persons attached to the staff, except a vice commander 
or deputy responsible directly to the commander shall be subordinate to 
the chief of staff and aide

[[Page 28]]

or chief staff officer while he or she is executing the duties of that 
office.
    (b) The officers of a staff shall be responsible for the performance 
of those duties assigned to them by the commander and shall advise the 
commander on all matters pertaining thereto. In the performance of their 
staff duties they shall have no command authority of their own. In 
carrying out such duties, they shall act for, and in the name of, the 
commander.

                      Administration and Discipline



Sec. 700.720  Administration and discipline: Staff embarked.

    In matters of general discipline, the staff of a commander embarked 
and all enlisted persons serving with the staff shall be subject to the 
internal regulations and routine of the ship. They shall be assigned 
regular stations for battle and emergencies. Enlisted persons serving 
with the staff shall be assigned to the ship for administration and 
discipline, except in the case of a staff embarked for passage only, and 
provided in that case that an organization exists and is authorized to 
act for such purposes.



Sec. 700.721  Administration and discipline: Staff based ashore.

    When a staff is based ashore, the enlisted persons serving with the 
staff shall, when practicable, be assigned to an appropriated activity 
for purposes of administration and discipline. The staff officers may be 
similarly assigned. Members of a staff assigned for any purpose to a 
command or activity shall conform in matters of general discipline to 
the internal regulations and routine of that command or activity.



Sec. 700.722  Administration and discipline: Staff unassigned to an administrative command.

    (a) When it is not practicable to assign enlisted persons serving 
with the staff of a commander to an established activity for 
administration and discipline, the commander may designate an officer of 
the staff to act as the commanding officer of such persons and shall 
notify the Judge Advocate General and the Commandant of the Marine 
Corps, or the Chief of Naval Personnel, as appropriate, of such action.
    (b) If the designating commander desires the commanding officer of 
staff enlisted personnel to possess authority to convene courts-martial, 
the commander should request the Judge Advocate General to obtain such 
authorization from the Secretary of the Navy.



Sec. 700.723  Administration and discipline: Separate and detached command.

    Any flag or general officer in command, any officer authorized to 
convene general courts-martial, or the senior officer present may 
designate organizations which are separate or detached commands. Such 
officer shall state in writing that it is a separate or detached command 
and shall inform the Judge Advocate General of the action taken. If 
authority to convene courts-martial is desired for the commanding 
officer or officer in charge of such separate or detached command, the 
officer designating the organization as separate or detached shall 
request the Judge Advocate general to obtain authorization from the 
Secretary of the Navy.



                    Subpart H_The Commanding Officer

                     Commanding Officers in General



Sec. 700.801  Applicability.

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



Sec. 700.802  Responsibility.

    (a) The responsibility of the commanding officer for his or her 
command is absolute, except when, and to the extent, relieved therefrom 
by competent authority, or as provided otherwise in these regulations. 
The authority of the commanding officer is commensurate with his or her 
responsibility. While the commanding officer may, at his or her 
discretion, and when not contrary to law or regulations, delegate 
authority to subordinates for the

[[Page 29]]

execution of details, such delegation of authority shall in no way 
relieve the commanding officer of his or her continued responsibility 
for the safety, well-being, and efficiency of the entire command.
    (b) A commanding officer who departs from his or her orders or 
instructions, or takes official action which is not in accordance with 
such orders or instructions, does so upon his or her own responsibility 
and shall report immediately the circumstances to the officer from whom 
the prior orders or instructions were received. Of particular importance 
is the commanding officer's duty to take all necessary and appropriate 
action in self-defense of the command.
    (c) The commanding officer shall be responsible for economy within 
his or her command. To this end the commanding officer shall require 
from his or her subordinates a rigid compliance with the regulations 
governing the receipt, accounting, and expenditure of public money and 
materials, and the implementation of improved management techniques and 
procedures.
    (d) The commanding officer and his or her subordinates shall 
exercise leadership through personal example, moral responsibility, and 
judicious attention to the welfare of persons under their control or 
supervision. Such leadership shall be exercised in order to achieve a 
positive, dominant influence on the performance of persons in the 
Department of the Navy.



Sec. 700.804  Organization of commands.

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



Sec. 700.809  Persons found under incriminating circumstances.

    (a) The commanding officer shall keep under restraint or 
surveillance, as necessary, any person not in the armed services of the 
United States who is found under incriminating or irregular 
circumstances within the command, and shall immediately initiate an 
investigation.
    (b) Should an investigation indicate that such person is not a 
fugitive from justice or has not committed or attempted to commit an 
offense, he shall be released at the earliest opportunity, except:
    (1) If not a citizen of the United States, and the place of release 
is under the jurisdiction of the United States, the nearest federal 
immigration authorities shall be notified as to the time and place of 
release sufficiently in advance to permit them to take such steps as 
they deem appropriate.
    (2) Such persons shall not be released in territory not under the 
jurisdiction of the United States without first obtaining the consent of 
the proper foreign authorities, except where the investigation shows 
that he entered the command from territory of the foreign state, or that 
he is a citizen or subject of that state.
    (c) If the investigation indicates that such person has committed or 
attempted to commit an offense punishable under the authority of the 
commanding officer, the latter shall take such action as he deems 
necessary.
    (d) If the investigation indicates that such a person is a fugitive 
from justice, or has committed or attempted to commit an offense which 
requires actions beyond the authority of the commanding officer, the 
latter shall, at the first opportunity, deliver such person, together 
with a statement of the circumstances, to the proper civil authorities.
    (e) In all cases under paragraph (d) of this section, a report shall 
be made promptly to the Chief of Naval Operations or the Commandant of 
the Marine Corps, as appropriate.



Sec. 700.810  Rules for visits.

    (a) Commanding officers are responsible for the control of visitors 
to their commands and shall comply with the relevant provisions of 
Department of the Navy concerning classified information and physical 
security.
    (b) Commanding officers shall take such measures and impose such 
restrictions on visitors as are necessary to safeguard the classified 
material under

[[Page 30]]

their jurisdiction. Arrangements for general visiting shall always be 
made with due regard for physical security and based on the assumption 
that foreign agents will be among the visitors.
    (c) Commanding officers and others officially concerned shall 
exercise reasonable care to safeguard the persons and property of 
visitors to naval activities as well as taking those necessary 
precautions to safeguard the persons and property within the command.



Sec. 700.811  Dealers, tradesmen, and agents.

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



Sec. 700.812  Postal matters.

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



Sec. 700.815  Deaths.

    The commanding officer, in the event of the death of any person 
within his or her command, shall ensure that the cause of death and the 
circumstances under which death occurred are established, that the 
provisions of the Manual of the Judge Advocate General are adhered to in 
documenting the cause and circumstances, and that the appropriate 
casualty report is submitted.



Sec. 700.816  The American National Red Cross.

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



Sec. 700.819  Records.

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



Sec. 700.822  Delivery of personnel to civil authorities and service of subpoena or other process.

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

[[Page 31]]



Sec. 700.826  Physical security.

    (a) The commanding officer shall take appropriate action to 
safeguard personnel, to prevent unauthorized access to installations, 
equipment, materials and documents, and to safeguard them against acts 
of sabotage, damage, theft, or terrorism.
    (b) The commanding officer shall take action to protect and maintain 
the security of the command against dangers from fire, windstorms, or 
other acts of nature.



Sec. 700.827  Effectiveness for service.

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



Sec. 700.828  Search by foreign authorities.

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



Sec. 700.832  Environmental pollution.

    The commanding officer shall cooperate with Federal, state and local 
governmental authorities in the prevention, control and abatement of 
environmental pollution. If the requirements of any environmental law 
cannot be achieved because of operational considerations, insufficient 
resources or other reason, the commanding officer shall report to the 
immediate superior in the chain of command. The commanding officer shall 
be aware of existing policies regarding pollution control, and should 
recommend remedial measures when appropriate.



Sec. 700.834  Care of ships, aircraft, vehicles and their equipment.

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



Sec. 700.835  Work, facilities, supplies, or services for other Government departments, State or local governments, foreign governments, private parties and 
          morale, welfare, and recreational activities.

    (a) Work may be done for or on facilities, supplies, or services 
furnished to departments and agencies of the Federal and State 
governments, local governments, foreign governments, private parties, 
and morale, welfare, and recreational activities with the approval of a 
commanding officer provided:
    (1) The cost does not exceed limitations the Secretary of the Navy 
may approve or specify; and
    (2) In the case of private parties, it is in the interest of the 
government to do so and there is no issue of competition with private 
industry; and
    (3) In the case of foreign governments, a disqualification of a 
government has not been issued for the benefits of this article.
    (b) Work shall not be started nor facilities, supplies, or services 
furnished

[[Page 32]]

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

                       Commanding Officers Afloat



Sec. 700.840  Unauthorized persons on board.

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



Sec. 700.841  Control of passengers.

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



Sec. 700.842  Authority over passengers.

    Except as otherwise provided in these regulations or in orders from 
competent authority, all passengers in a ship or aircraft of the naval 
service are subject to the authority of the commanding officer and shall 
conform to the internal regulations and routine of the ship or aircraft. 
The commanding officer of such ship or aircraft shall take no 
disciplinary action against a passenger not in the naval service, other 
than that authorized by law. The commanding officer may, when he or

[[Page 33]]

she deems such an action to be necessary for the safety of the ship or 
aircraft or of any persons embarked, subject a passenger not in the 
naval service to such restraint as the circumstances require until such 
time as delivery to the proper authorities is possible. A report of the 
matter shall be made to an appropriate superior of the passenger.



Sec. 700.844  Marriages on board.

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



Sec. 700.845  Maintenance of logs.

    (a) A deck log and an engineering log shall be maintained by each 
ship in commission, and by such other ships and craft as may be 
designated by the Chief of Naval Operations.
    (b) A compass record shall be maintained as an adjunct to the deck 
log. An engineer's bell book shall be maintained as an adjunct to the 
engineering log.
    (c) The Chief of Naval Operations shall prescribe regulations 
governing the contents and preparation of the deck and engineering logs 
and adjunct records.
    (d) In the case of a ship or craft equipped with automated data 
logging equipment, the records generated by such equipment satisfy the 
requirements of this section.



Sec. 700.846  Status of logs.

    The deck log, the engineering log, the compass record, the bearing 
hooks, the engineer's bell book, and any records generated by automated 
data logging equipment shall each constitute an official record of the 
command.



Sec. 700.847  Responsibility of a master of an in-service ship of the Military Sealift Command.

    (a) In an in-service ship of the Military Sealift Command, the 
master's responsibility is absolute, except when, and to the extent, 
relieved therefrom by competent authority. The authority of the master 
is commensurate with the master's responsibility. The master is 
responsible for the safety of the ship and all persons on board. He or 
she is responsible for the safe navigation and technical operation of 
the ship and has paramount authority over all persons on board. He or 
she is responsible for the preparation of the abandon ship bill and has 
exclusive authority to order the ship abandoned. The master may, using 
discretion, and when not contrary to law or regulation, delegate 
authority for operation of shipboard functions to competent 
subordinates. However, such delegation of authority shall in no way 
relieve the master of continued responsibility for the safety, well-
being, and efficiency of the ship.
    (b) All orders and instructions of the master shall be in accordance 
with appropriate laws of the United States, and all applicable orders 
and regulations of the Navy, Military Sealift Command, and the Office of 
Personnel Management. A master who departs from the orders or 
instructions of competent authority or takes official action contrary to 
such orders or instructions, shall report immediately the circumstances 
to the authority from whom the prior orders or instructions were 
received.



Sec. 700.848  Relations with merchant seamen.

    When in foreign waters, the commanding officer, with the approval of 
the senior officer present, may receive on board as supernumeraries for 
rations and passage:
    (a) Distressed seamen of the United States for passage to the United 
States, provided they bind themselves to be amenable in all respects to 
Navy Regulations.
    (b) As prisoners, seamen from merchant vessels of the United States, 
provided that the witnesses necessary to substantiate the charges 
against them

[[Page 34]]

are received, or adequate means adopted to ensure the presence of such 
witnesses on arrival of the prisoners at the place where they are to be 
delivered to the civil authorities.



Sec. 700.855  Status of boats.

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



Sec. 700.856  Pilotage.

    (a) The commanding officer shall:
    (1) Pilot the ship under all ordinary circumstances, but he may 
employ pilots whenever, in his or her judgment such employment is 
prudent;
    (2) Not call a pilot on board until the ship is ready to proceed;
    (3) Not retain a pilot on board after the ship has reached her 
destination or a point where the pilot is no longer required;
    (4) Give preference to licensed pilots; and
    (5) Pay pilots no more than the local rates.
    (b) A pilot is merely an adviser to the commanding officer. The 
presence on board of a pilot shall not relieve the commanding officer or 
any subordinate from his or her responsibility for the proper 
performance of the duties with which he or she may be charged concerning 
the navigation and handling of the ship. For an exception to the 
provisions of this paragraph, see ``Rules and Regulations Covering 
Navigation of the Panama Canal and Adjacent Waters,'' (35 CFR Chapter I, 
subchapter C) which directs that the pilot assigned to a vessel in those 
waters shall have control of the navigation and movement of the vessel. 
Also see the provisions of these regulations concerning the navigation 
of ships at a naval shipyard or station, or in entering or leaving 
drydock.



Sec. 700.857  Safe navigation and regulations governing operation of ships and aircraft.

    (a) The commanding officer is responsible for the safe navigation of 
his or her ship or aircraft, except as prescribed otherwise in these 
regulations for ships at a naval shipyard or station, in drydock, or in 
the Panama Canal. During an armed conflict, an exercise simulating armed 
conflict, or an authorized law enforcement activity, competent authority 
may modify the use of lights or other safeguards against collision. 
Except in time of actual armed conflict, such modifications will be 
authorized only when ships or aircraft clearly will not be hazarded.
    (b) Professional standards and regulations governing shiphandling, 
safe navigation, safe anchoring and related operational matters shall be 
promulgated by the Chief of Naval Operations.
    (c) Professional standards and regulations governing the operation 
of naval aircraft and related matters shall be promulgated by the Chief 
of Naval Operations or the Commandant of the Marine Corps, as 
appropriate.
    (d) The Commanding Officer is responsible for ensuring that weather 
and oceanic effects are considered in the effective and safe operation 
of his or her ship or aircraft.



Sec. 700.859  Quarantine.

    (a) The commanding officer or aircraft commander of a ship or 
aircraft shall comply with all quarantine regulations and restrictions, 
United States or foreign, for the port or area within which the ship or 
aircraft is located.
    (b) The commanding officer shall give all information required by 
authorized foreign officials, insofar as permitted by military security, 
and will meet the quarantine requirements promulgated by proper 
authority for United States or foreign ports. However, nothing in this 
section shall be interpreted as authorizing commanding officers to 
permit on board inspections by foreign officials, or to modify in any 
manner the provisions of Sec. 700.828 of these regulations.
    (c) The commanding officer shall allow no intercourse with a port or 
area or with other ships or aircraft

[[Page 35]]

until after consultation with local health authorities when:
    (1) Doubt exists as to the sanitary regulations or health conditions 
of the port or area;
    (2) A quarantine condition exists aboard the ship or aircraft;
    (3) Coming from a suspected port or area, or one actually under 
quarantine.
    (d) No concealment shall be made of any circumstance that may 
subject a ship or aircraft of the Navy to quarantine.
    (e) Should there appear at any time on board a ship or aircraft 
conditions which present a hazard of introduction of a communicable 
disease outside the ship or aircraft, the commanding officer or aircraft 
commander shall at once report the fact to the senior officer present, 
to other appropriate higher authorities and, if in port, to the health 
authorities having quarantine jurisdiction. The commanding officer or 
aircraft commander shall prevent all contracts likely to spread disease 
until pratique is received. The commanding officer of a ship in port 
shall hoist the appropriate signal.



Sec. 700.860  Customs and immigration inspections.

    (a) The commanding officer or aircraft commander shall facilitate 
any proper examination which it may be the duty of a customs officer or 
immigration officer of the United States to make on board the ship or 
aircraft. The commanding officer or air craft commander shall not permit 
a foreign customs officer or an immigration officer to make any 
examination whatsoever, except as hereinafter provided, on board the 
ship, aircraft or boats under his or her command.
    (b) When a ship or aircraft of the Navy or a public vessel manned by 
naval personnel and operating under the direction of the Department of 
the Navy is carrying cargo for private commercial account, such cargo 
shall be subject to the local customs regulations of the port, domestic 
or foreign, in which the ship or aircraft may be, and in all matters 
relating to such cargo, the procedure prescribed for private merchant 
vessels and aircraft shall be followed. Government-owned stores or cargo 
in such ship or aircraft not landed nor intended to be landed nor in any 
manner trafficked in, are, by the established precedent of international 
courtesy, exempt from customs duties, but a declaration of such stores 
or cargo, when required by local customs regulations, shall be made. 
Commanding officers shall prevent, as far as possible, disputes with the 
local authorities in such cases, but shall protect the ship or aircraft 
and the Government-owned stores and cargo from any search or seizure.
    (c) Upon arrival from a foreign country, at the first port of entry 
in United States territory, the commanding officer, or the senior 
officer of ships or aircraft in company, shall notify the collector of 
the port. Each individual aboard shall, in accordance with customs 
regulations, submit a list of articles purchased or otherwise acquired 
by him abroad. Dutiable articles shall not be landed until the customs 
officer has completed his inspection.
    (d) Commanding officers of naval vessels and aircraft transporting 
United States civilian and foreign military and civilian passengers 
shall satisfy themselves that the passenger clearance requirements of 
the Immigration and Naturalization Service are complied with upon 
arrival at points within the jurisdiction of the United States. 
Clearance for such passengers by an immigration officer is necessary 
upon arrival from foreign ports and at the completion of movements 
between any of the following: Continental United States (including 
Alaska and Hawaii), the Canal Zone, Puerto Rico, Virgin Islands, Guam, 
American Samoa, or other outlying places subject to United States 
jurisdiction. Commanding officers, prior to arriving, shall advise the 
cognizant naval or civilian port authority of the aforementioned 
passengers aboard and shall detain them for clearance as required by the 
Immigration and Naturalization Service.
    (e) The provisions of this section shall not be construed to require 
delaying the movements of any ship or aircraft of the Navy in the 
performance of her assigned duty.

[[Page 36]]

       Special Circumstances/Ships in Naval Stations and Shipyards



Sec. 700.871  Responsibility for safety of ships and craft at a naval station or shipyard.

    (a) The commanding officer of a naval station or shipyard shall be 
responsible for the care and safety of all ships and craft at such 
station or shipyard not under a commanding officer or assigned to 
another authority, and for any damage that may be done by or to them. In 
addition, the commanding officer of a naval station or shipyard shall be 
responsible for the safe execution of work performed by that activity 
upon any ship located at the activity.
    (b) It shall be the responsibility of the commanding officer of a 
ship in commission which is undergoing overhaul, or which is otherwise 
immobilized at a naval station or shipyard, to request such services as 
are necessary to ensure the safety of the ship. The commanding officer 
of the naval station or shipyard shall be responsible for providing 
requested services in a timely and adequate manner.
    (c) When a ship or craft not under her own power is being moved by 
direction of the commanding officer of a naval station or shipyard, that 
officer shall be responsible for any damage that may result therefrom. 
The pilot or other person designated for the purpose shall be in direct 
charge of such movement, and all persons on board shall cooperate with 
and assist the pilot as necessary. Responsibility for such actions in a 
private shipyard will be assigned by contract to the contractor.
    (d) When a ship operating under her own power is being drydocked, 
the commanding officer shall be fully responsible for the safety of his 
ship until the extremity of the ship first to enter the drydock reaches 
the dock sill and the ship is pointed fair for entering the drydock. The 
docking officer shall then take charge and complete the docking, 
remaining in charge until the ship has been properly landed, bilge 
blocks hauled, and the dock pumped down. In undocking, the docking 
officer shall assume charge when flooding the dock preparatory to 
undocking is started, and shall remain in charge until the extremity of 
the ship last to leave the dock clears the sill, and the ship is pointed 
fair for leaving the drydock, when the ship's commanding officer shall 
assume responsibility for the safety and control of the ship.
    (e) When a naval ship is to be drydocked in a private shipyard under 
a contract being administered by a supervisor of shipbuilding, the 
responsibilities of the commanding officer are the same as in the case 
of drydocking in a naval shipyard. The responsibilities for the safety 
of the actual drydocking, normally assigned to the commanding officer of 
a naval shipyard through the docking officer, will be assigned by 
contract to the contractor. The supervisor of shipbuilding is 
responsible, however, for ensuring that the contractor facilities, 
methods, operations, and qualifications meet the standards of efficiency 
and safety prescribed by Navy directives.
    (f) If the ship is elsewhere than at a naval station or shipyard, 
the relationship between the commanding officer and the supervisor of 
shipbuilding, or other appropriate official, shall be the same as that 
between the commanding officer and the commanding officer of a naval 
station or naval shipyard as specified in this article.



Sec. 700.872  Ships and craft in drydock.

    (a) The commanding officer of a ship in drydock shall be responsible 
for effecting adequate closure, during such periods as they will be 
unattended, of all openings in the ship's bottom upon which no work is 
being undertaken by the docking activity. The commanding officer of the 
docking activity shall be responsible for the closing, at the end of 
working hours, of all valves and other openings in the ship's bottom 
upon which work is being undertaken by the docking activity, when such 
closing is practicable.
    (b) Prior to undocking, the commanding officer of a ship shall 
report to the docking officer any material changes in the amount and 
location of weights on board which have been made by the ship's force 
while in dock, and shall ensure, and so report, that all sea valves and 
other openings in the ship's bottom are properly closed. The level of 
water in the dock shall not be

[[Page 37]]

permitted to rise above the keel blocks prior to receipt of this report. 
The above valves and openings shall be tended during flooding of the 
dock.
    (c) When a ship or craft, not in commission, is in a naval drydock, 
the provisions of this article shall apply, except that the commanding 
officer of the docking activity or his representative shall act in the 
capacity of the commanding officer of the ship or craft.
    (d) When a naval ship or craft is in drydock in a private shipyard, 
responsibility for actions normally assigned by the commanding officer 
of the docking activity will be assigned by contract to the contractor.



Sec. 700.873  Inspection incident to commissioning of ships.

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

          Special Circumstances/Prospective Commanding Officers



Sec. 700.880  Duties of the prospective commanding officer of a ship.

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

[[Page 38]]

powered ship with the authority and direction necessary to carry out his 
or her responsibilities.



                  Subpart I_The Senior Officer Present

                                Contents



Sec. 700.901  The senior officer present.

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



Sec. 700.902  Eligibility for command at sea.

    All officers of the line of the Navy, including Naval Reserve, on 
active duty, except those designated for the performance of engineering, 
aeronautical engineering or special duties, and except those limited 
duty officers who are not authorized to perform all deck duties afloat, 
are eligible for command at sea.



Sec. 700.903  Authority and responsibility.

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



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

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



Sec. 700.922  Shore patrol.

    (a) When liberty is granted to any considerable number of persons, 
except in an area that can absorb them without danger of disturbance or 
disorder, the senior officer present shall cause to be established, 
temporarily or permanently, in charge of an officer, a sufficient patrol 
of officers, petty officers, and noncommissioned officers to maintain 
order and suppress any unseemly conduct on the part of any person on 
liberty. The senior patrol officer shall communicate with the chief of 
police or other local officials and make such arrangements as may be 
practicable to aid the patrol in carrying out its duties properly. Such 
duties may include providing assistance to military personnel in 
relations with civil courts and police, arranging for release of service 
personnel from civil authorities to the parent command, and providing 
other services that favorably influence discipline and morale.
    (b) A patrol shall not be landed in any foreign port without first 
obtaining the consent of the proper local officials. Tact must be used 
in requesting permission; and, unless it is given willingly and 
cordially, the patrol shall not be landed. If consent cannot be 
obtained, the size of liberty parties shall be held to such limits as 
may be necessary to render disturbances unlikely.
    (c) Officers and enlisted personnel on patrol duty in a foreign 
country normally should not be armed. In the United States, officers and 
men may be armed as prescribed by the senior officer present.
    (d) No officer or enlisted person who is a member of the shore 
patrol or beach guard, or is assigned in support thereof, shall partake 
of or indulge in any form of intoxicating beverage or other form of 
intoxicant while on duty,

[[Page 39]]

on post, or at other times prescribed by the senior patrol officer. The 
senior patrol officer shall ensure that the provisions of this paragraph 
are strictly observed and shall report promptly in writing to the senior 
officer present all violations of these provisions that may come to his 
or her notice. All officers and enlisted personnel of the patrol shall 
report to the senior patrol officer all violations of the provisions of 
this paragraph on the part of those under them.



Sec. 700.923  Precautions for health.

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



Sec. 700.924  Medical or dental aid to persons not in the naval service.

    The senior officer present may require the officers of the Medical 
Corps and Dental Corps under his or her authority to render emergency 
professional aid to persons not in the naval service when such aid is 
necessary and demanded by the laws of humanity or the principles of 
international courtesy.



Sec. 700.934  Exercise of power of consul.

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



Sec. 700.939  Granting of asylum and temporary refuge.

    (a) If an official of the Department of the Navy is requested to 
provide asylum or temporary refuge, the following procedures shall 
apply:
    (1) On the high seas or in territories under exclusive United States 
jurisdiction (including territorial seas, the Commonwealth of Puerto 
Rico, territories under United States administration, and possessions):
    (i) At his or her request, an applicant for asylum will be received 
on board any naval aircraft or waterborne craft, Navy or Marine Corps 
activity or station.
    (ii) Under no circumstances shall the person seeking asylum be 
surrendered to foreign jurisdiction or control, unless at the personal 
direction of the Secretary of the Navy or higher authority. Persons 
seeking political asylum should be afforded every reasonable care and 
protection permitted by the circumstances.
    (2) In territories under foreign jurisdiction (including foreign 
territorial seas, territories, and possessions):
    (i) Temporary refuge shall be granted for humanitarian reasons on 
board a naval aircraft or waterborne craft, Navy or Marine Corps 
activity or station, only in extreme or exceptional circumstances 
wherein life or safety of a person is put in imminent danger, such as 
pursuit by a mob. When temporary refuge is granted, such protection 
shall be terminated only when directed by the Secretary of the Navy or 
higher authority.
    (ii) A request by foreign authorities for return of custody of a 
person under the protection of temporary refuge will be reported to the 
CNO or Commandant of the Marine Corps. The requesting foreign 
authorities will be informed that the case has been referred to higher 
authorities for instructions.
    (iii) Persons whose temporary refuge is terminated will be released 
to the protection of the authorities designated in the message 
authorizing release.
    (iv) While temporary refuge can be granted in the circumstances set 
forth above, permanent asylum will not be granted.
    (v) Foreign nationals who request assistance in forwarding requests 
for political asylum in the United States will not be received on board, 
but will be advised to apply in person at the nearest American Embassy 
or Consulate. If a foreign national is already on board, however, such 
person will not be surrendered to foreign jurisdiction or control unless 
at the personal direction of the Secretary of the Navy.
    (3) The Chief of Naval Operations or Commandant of the Marine Corps, 
as appropriate, will be informed by the most expeditious means of all 
action

[[Page 40]]

taken pursuant to paragraphs (a)(1)(i) and (a)(1)(ii) of this section, 
as well as the attendant circumstances. Telephone or voice 
communications will be used where possible, but must be confirmed as 
soon as possible with an immediate precedence message, information to 
the Secretary of State (for actions taken pursuant to paragraphs 
(a)(2)(i) and (a)(2)(v) of this section, also make the appropriate 
American Embassy or Consular Office an information addressee). If 
communication by telephone or voice is not possible, notification will 
be effected by an immediate precedence message, as described above. The 
Chief of Naval Operations or Commandant of the Marine Corps will cause 
the Secretary of the Navy and the Deputy Director for Operations of the 
National Military Command Center to be notified without delay.
    (b) Personnel of the Department of the Navy shall neither directly 
nor indirectly invite persons to seek asylum or temporary refuge.



               Subpart J_Precedence, Authority and Command

                                Authority



Sec. 700.1020  Exercise of authority.

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



Sec. 700.1026  Authority of an officer who succeeds to command.

    (a) An officer who succeeds to command due to incapacity, death, 
departure on leave, detachment without relief or absence due to orders 
from competent authority of the officer detailed to command, has the 
same authority and responsibility as the officer whom he or she 
succeeds.
    (b) An officer who succeeds to command during the temporary absence 
of the commanding officer shall make no changes in the existing 
organization, and shall endeavor to have the routine and other affairs 
of the command carried on in the usual manner.
    (c) When an officer temporarily succeeding to command signs official 
correspondence, the word ``Acting'' shall appear below his or her 
signature.



Sec. 700.1038  Authority of a sentry.

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

                             Detail to Duty



Sec. 700.1052  Orders to active service.

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

[[Page 41]]

peace. In time of war or a national emergency, such retired officers 
may, at the discretion of the Secretary of the Navy, be ordered to 
active service.



Sec. 700.1053  Commander of a task force.

    (a) A geographic fleet commander, and any other naval commander, may 
detail in command of a task force, or other task command, any eligible 
officer within his or her command whom he or she desires. All other 
officers ordered to the task force or the task command shall be 
considered subordinate to the designated commander.
    (b) All orders issued under the authority of this article shall 
continue in effect after the death or disability of the officer issuing 
them until they are revoked by his or her successor in command or higher 
authority.
    (c) The powers delegated to a commander by this article are not 
conferred on any other officer by virtue of the fact that he or she is 
the senior officer present.

[64 FR 56062, Oct. 15, 1999, as amended at 68 FR 2697, Jan. 21, 2003]



Sec. 700.1054  Command of a naval base.

    The officer detailed to command a naval base shall be an officer of 
the line in the Navy, eligible for command at sea.



Sec. 700.1055  Command of a naval shipyard.

    The officer detailed to command a naval shipyard shall be trained in 
the technical aspects of building and repair of ships and shall have had 
substantial previous experience in the technical and management phases 
of such work. Such officer may have been designated for engineering 
duty.



Sec. 700.1056  Command of a ship.

    (a) The officer detailed to command a commissioned ship shall be an 
officer of the line in the Navy eligible for command at sea.
    (b) The officer detailed to command an aircraft carrier, an aircraft 
tender, or a ship with a primary task of operating or supporting 
aircraft shall be an officer of the line in the navy, eligible for 
command at sea, designated as a naval aviator or naval flight officer.



Sec. 700.1057  Command of an air activity.

    (a) The officer detailed to command a naval aviation school, a naval 
air station, or a naval air unit organized for flight tactical purposes 
shall be an officer of the line in the navy, designated as a naval 
aviator or naval flight officer, eligible for command at sea.
    (b) For the purposes of Title 10 U.S.C. Sec. 5942, a naval air 
training squadron is not considered to be a naval aviation school or a 
naval air unit organized for flight tactical purposes. The officer 
detailed to command a naval air training squadron or an air unit 
organized for administrative purposes shall be a line officer of the 
naval service, designated as a naval aviator or naval flight officer, 
eligible for command. If a naval air training squadron has been 
designated a multi-service training squadron, the officer detailed to 
command that squadron may be a line officer from any armed service 
designated as the equivalent of a naval aviator naval flight officer and 
otherwise eligible to command an aviation squadron or unit under that 
officer's pertinent service regulations.
    (c) The officer detailed to command a naval air activity of a 
technical nature on shore may be an officer of the line in the navy not 
eligible for command at sea, but designated as a naval aviator or a 
naval flight officer or designated for aeronautical engineering duty.
    (d) The officer detailed to command a Marine Corps air unit 
organized for flight tactical purpose shall be an officer of the Marine 
Corps, designated as a naval aviator or naval flight officer.
    (e) Other than an air training squadron, an officer of the Navy 
shall not normally be detailed to command an aviation unit of the Marine 
Corps nor shall an officer of the Marine Corps normally be detailed to 
command an aviation unit of the Navy. Aircraft units of the Marine Corps 
may, however, be assigned to ships or to naval air activities in the 
same manner as aircraft units of the navy and, conversely, aircraft 
units of the navy may be so assigned to Marine Corps air activities. A 
group composed of aircraft units of the Navy and aircraft units of the 
Marine Corps may be commanded

[[Page 42]]

either by an officer of the Navy or an officer of the Marine Corps.



Sec. 700.1058  Command of a submarine.

    The officer detailed to command a submarine shall be an officer of 
the line in the Navy, eligible for command at sea and qualified for 
command of submarines.



Sec. 700.1059  Command of a staff corps activity.

    Officers in a staff corps shall be detailed to command only such 
activities as are appropriate to their corps.



                      Subpart K_General Regulations

                          Standards of Conduct



Sec. 700.1101  Demand for court-martial.

    Except as otherwise provided in the Uniform Code of Military 
Justice, no person in the naval service may demand a court martial 
either on him or herself or on any other person in the naval service.



Sec. 700.1113  Endorsement of commercial product or process.

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



Sec. 700.1120  Personal privacy and rights of individuals regarding their personal records.

    (a) Except as specifically provided in this section, maintenance of 
personal records of individuals, and the release of those records, shall 
be in accordance with the provisions of the Privacy Act and directives 
issued by the Secretary of the Navy.
    (b) Except as specifically provided in this section, the release of 
departmental records to private parties shall be in accordance with the 
provisions of the Freedom of Information Act and directives issued by 
the Secretary of the Navy.

                            Official Records



Sec. 700.1121  Disclosure, publication and security of official information.

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

[[Page 43]]

of the President or departmental regulation.
    (d) Any person in the Department of the Navy receiving a request 
from the public for Department of the Navy records shall be governed by 
the provisions of the Freedom of Information Act and implementing 
directives issued by the Secretary of the Navy.
    (e) Persons in the Department of the Navy desiring to submit 
manuscripts to commercial publishers on professional, political or 
international subjects shall comply with regulations promulgated by the 
Secretary of the Navy.
    (f) No persons in the naval service on active duty or civilian 
employee of the Department of the Navy shall act as correspondent of a 
news service or periodical, or as a television or radio news commentator 
or analyst, unless assigned to such duty in connection with the public 
affairs activities of the Department of the Navy, or authorized by the 
Secretary of the Navy. Except as authorized by the Secretary of the 
Navy, no person assigned to duty in connection with public affairs 
activities of the Department of the Navy shall receive any compensation 
for acting as such correspondent, commentator or analyst.



Sec. 700.1126  Correction of naval records.

    (a) Any military record in the Department of the Navy may be 
corrected by the Secretary of the Navy, acting through the Board for 
Correction of Naval Records, when the Secretary considers that such 
action should be taken in order to correct an error or to remove an 
injustice.
    (b) Applications for corrections under this article may be made only 
after exhaustion of all other administrative remedies afforded by law or 
regulation.
    (c) Applications for such corrections should be submitted to the 
Secretary of the Navy (Board for Correction of Naval Records) in 
accordance with procedural regulations established by the Secretary of 
the Navy and approved by the Secretary of Defense.



Sec. 700.1127  Control of official records.

    (a) No person, without proper authority, shall withdraw official 
records or correspondence from the files, or destroy them, or withhold 
them from those persons authorized to have access to them.
    (b) Except as specifically provided in this section, maintenance of 
personal records of individuals, and the release of those records, shall 
be in accordance with the provisions of the Privacy Act and directives 
issued by the Secretary of the Navy.
    (c) Except as specifically provided in this section, the release of 
departmental records to private parties shall be in accordance with the 
provisions of the Freedom of Information Act and directives issued by 
the Secretary of the Navy.



Sec. 700.1128  Official records in civil courts.

    (a) Department of the Navy personnel shall not provide official 
information, testimony, or documents, submit to interview, or permit a 
view or visit, for litigation purposes, without special written 
authorization.
    (b) Department of the Navy personnel shall not provide, with or 
without compensation, opinion or expert testimony concerning official 
Department of Defense information, subjects, personnel or activities, 
except on behalf of the United States or a party represented by the 
Department of Justice, or with special written authorization.

                          Duties of Individuals



Sec. 700.1138  Responsibilities concerning marijuana, narcotics, and other controlled substances.

    (a) All personnel shall endeavor to prevent and eliminate the 
unauthorized use of marijuana, narcotics and other controlled substances 
within the naval service.
    (b) The wrongful possession, use, introduction, manufacture, 
distribution and possession, or introduction with intent to distribute, 
of a controlled substance by persons in the naval service are offenses 
under Article 112a, Uniform Code of Military Justice. Except for 
authorized medicinal or other authorized purposes, the possession, use, 
introduction, sale, or other transfer of marijuana, narcotics or other 
controlled substances on board any ship or aircraft of the Department of 
the Navy or within any naval base, station or

[[Page 44]]

other place under the jurisdiction of the Department of the Navy by all 
persons is prohibited.
    (c) The term ``controlled substance'' means: a drug or other 
substance included in Schedule I, II, III, IV, or V established by 
section 202 of the Comprehensive Drug Abuse Prevention and Control Act 
of 1970 (84 Stat. 1236), as updated and republished under the provisions 
of that Act (21 U.S.C. 812).



Sec. 700.1139  Rules for preventing collisions, afloat and in the air.

    (a) All persons in the naval service responsible for the operation 
of naval ships, craft and aircraft shall diligently observe the 
International Rules for Preventing Collisions at Sea (commonly called 
the COLREGS) (33 CFR chapter I), Inland Navigation Rules (33 CFR chapter 
I), domestic and international air traffic regulations (14 CFR chapter 
I), and such other rules and regulations as may be established by the 
Secretary of Transportation or other competent authority for regulating 
traffic and preventing collisions on the high seas, in inland waters or 
in the air, where such laws, rules and regulations are applicable to 
naval ships and aircraft. In those situations where such law, rule or 
regulation is not applicable to naval ships, craft or aircraft, they 
shall be operated with due regard for the safety of others.
    (b) Any significant infraction of the laws, rules and regulations 
governing traffic or designed to prevent collisions on the high seas, in 
inland waters, or in the air which may be observed by persons in the 
naval service shall be promptly reported to their superiors, including 
the Chief of Naval Operations or Commandant of the Marine Corps when 
appropriate.
    (c) Reports need not be made under this article if the facts are 
otherwise reported in accordance with other directives, including duly 
authorized safety programs.

                         Rights and Restrictions



Sec. 700.1162  Alcoholic beverages.

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



Sec. 700.1167  Supremacist activity.

    No person in the naval service shall participate in any organization 
that espouses supremacist causes; attempts to create illegal 
discrimination based on race, creed, color, sex, religion, or national 
origin; advocates the use of force or violence against the Government of 
the United States or the Government of any state, territory, district, 
or possession thereof, or the Government of any subdivision therein; or 
otherwise engages in efforts to deprive individuals of their civil 
rights. The term ``participate'', as used in this article, includes acts 
or conduct, performed alone or in concert with another, such as 
demonstrating, rallying, fundraising, recruiting, training, or 
organizing or leading such organizations.

[[Page 45]]

The term ``participate'' also includes engaging in any other activities 
in relation to such organizations or in furtherance of the objectives of 
such organizations when such activities are detrimental to good order, 
discipline, or mission accomplishment.



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




   Subpart A_Department of the Navy Freedom of Information Act (FOIA) 
                                 Program

Sec.
701.1 Purpose.
701.2 Navy FOIA website/FOIA handbook.
701.3 Applicability.
701.4 Responsibility and authority.
701.5 Policy.
701.6 Reading rooms.
701.7 Relationship between the FOIA and PA.
701.8 Processing FOIA requests.
701.9 Referrals.
701.10 Processing requests received from governmental officials.
701.11 Processing specific kinds of records.
701.12 FOIA appeals/litigation.

                  Subpart B_FOIA Definitions and Terms

701.13 5 U.S.C. 552(a)(1) materials.
701.14 5 U.S.C. 552(a)(2) materials.
701.15 5 U.S.C. 552(a)(3) materials.
701.16 Administrative appeal.
701.17 Affirmative information disclosure.
701.18 Agency record.
701.19 Appellate authority.
701.20 Discretionary disclosure.
701.21 Electronic record.
701.22 Exclusions.
701.23 Executive Order 12958.
701.24 Federal agency.
701.25 5 U.S.C. 552, Freedom of Information Act (FOIA).
701.26 FOIA exemptions.
701.27 FOIA fee terms location.
701.28 FOIA request.
701.29 Glomar response.
701.30 Initial Denial Authority (IDA).
701.31 Mosaic or compilation response.
701.32 Perfected request.
701.33 Public domain.
701.34 Public interest.
701.35 Reading room.
701.36 Release authorities.
701.37 Reverse FOIA.
701.38 Technical data.
701.39 Vaughn index.

                           Subpart C_FOIA Fees

701.40 Background.
701.41 FOIA fee terms.
701.42 Categories of requesters--applicable fees.
701.43 Fee declarations.
701.44 Restrictions.
701.45 Fee assessment.
701.46 Aggregating requests.
701.47 FOIA fees must be addressed in response letters.
701.48 Fee waivers.
701.49 Payment of fees.
701.50 Effect of the Debt Collection Act of 1982.
701.51 Refunds.
701.52 Computation of fees.
701.53 FOIA fee schedule.
701.54 Collection of fees and fee rates for technical data.
701.55 Processing FOIA fee remittances.

                        Subpart D_FOIA Exemptions

701.56 Background.
701.57 Ground rules.
701.58 In-depth analysis of FOIA exemptions.
701.59 A brief explanation of the meaning and scope of the nine FOIA 
          exemptions.

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

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

                      Subpart F_DON Privacy Program

701.100 Purpose.
701.101 Privacy program terms and definitions.
701.102 Online resources.
701.103 Applicability.
701.104 Responsibility and authority.
701.105 Policy.
701.106 Collecting information about individuals.
701.107 Record access.
701.108 Amendment of records.
701.109 Privacy Act (PA) appeals.
701.110 Conditions of disclosure.
701.111 Disclosure accounting.

[[Page 46]]

701.112 ``Blanket routine uses.''
701.113 PA exemptions.
701.114 PA enforcement actions.
701.115 Protected personal information (PPI).
701.116 PA systems of records notices overview.
701.117 Changes to PA systems of records.
701.118 Privacy, IT, and PIAs.
701.119 Privacy and the web.
701.120 Processing requests that cite or imply PA, Freedom of 
          Information (FOIA), or PA/FOIA.
701.121 Processing ``routine use'' disclosures.
701.122 Medical records.
701.123 PA fees.
701.124 PA self assessments/inspections.
701.125 Computer matching program.

                    Subpart G_Privacy Act Exemptions

701.126 Purpose.
701.127 Exemption for classified records.
701.128 Exemptions for specific Navy record systems.
701.129 Exemptions for specific Marine Corps record systems.

    Authority: 5 U.S.C. 552.

    Source: 64 FR 49850, Sept. 14, 1999, unless otherwise noted.



   Subpart A_Department of the Navy Freedom of Information Act (FOIA) 
                                 Program



Sec. 701.1  Purpose.

    Subparts A, B, C, and D of this part issue policies and procedures 
for implementing the Freedom of Information Act (5 U.S.C. 552), and 
Department of Defense Directives 5400.7 and 5400.7-R series \1\ 
,Department of Defense Freedom of Information Act Program, (See 32 CFR 
part 286) and promote uniformity in the Department of the Navy Freedom 
of Information Act (FOIA) Program.
---------------------------------------------------------------------------

    \1\ Copies may be obtained if needed from the Navy FOIA Website at 
http://www.ogc.secnav.hq.navy.mil/foia/index.html
---------------------------------------------------------------------------



Sec. 701.2  Navy FOIA website/FOIA handbook.

    (a) The Navy FOIA website (http://www.ogc.secnav.hq.navy. mil/foia/
index.html) is an excellent resource for requesters and FOIA 
coordinators. It provides connectivity to the Navy's official website, 
to other FOIA and non/FOIA websites, and to the Navy's electronic 
reading rooms.
    (b) FOIA requesters are encouraged to visit the Navy FOIA website 
prior to filing a request. It features a FOIA Handbook which provides: 
guidance on how and where to submit requests; what's releasable/what's 
not; addresses for frequently requested information; time limits and 
addresses for filing appeals, etc. FOIA requesters may also use the 
electronic FOIA request form on the website to seek access to records 
originated by the Secretary of the Navy (SECNAV) or the Chief of Naval 
Operations (CNO).



Sec. 701.3  Applicability.

    (a) Subparts A, B, C, and D of this part apply throughout the 
Department of the Navy (DON) and take precedence over other DON 
instructions, which may serve to supplement it [i.e., Public Affairs 
Regulations, Security Classification Regulations, Navy Regulations, 
Marine Corps Orders, etc.]. Further, issuance of supplementary 
instructions by DON activities, deemed essential to the accommodation of 
perceived requirements peculiar to those activities, may not conflict.
    (b) The FOIA applies to ``records'' maintained by ``agencies'' 
within the Executive Branch of the Federal government, including the 
Executive Office of the President and independent regulatory agencies. 
It states that ``any person'' (U.S. citizen; foreigner, whether living 
inside or outside the United States; partnerships; corporations; 
associations; and foreign and domestic governments) has the right 
enforceable by law, to access Federal agency records, except to the 
extent that such records (or portions thereof) are protected from 
disclosure by one or more of the nine FOIA exemptions or one of three 
special law enforcement exclusions.
    (c) Neither Federal agencies nor fugitives from justice may use the 
FOIA to access agency records.
    (d) The Department of Defense (DoD) FOIA directive states that the 
FOIA programs of the U.S. Atlantic Command and the U.S. Pacific Command

[[Page 47]]

fall under the jurisdiction of the Department of Defense and not the 
Department of the Navy. This policy represents an exception to the 
policies directed under DoD Directive 5100.3, ``Support of the 
Headquarters of Unified, Specified, and Subordinate Commands.''



Sec. 701.4  Responsibility and authority.

    (a) The Head, DON PA/FOIA Policy Branch [CNO (N09B30)] has been 
delegated the responsibility for managing the DON's FOIA program, which 
includes setting FOIA policy and administering, supervising, and 
overseeing the execution of the 5 U.S.C. 552 and Department of Defense 
Directives 5400.7 and 5400.7-R series, Department of Defense Freedom of 
Information Act Program (see 32 CFR part 286).
    (1) As principal DON FOIA policy official, CNO (N09B30) issues 
SECNAV Instruction 5720.42; oversees the administration of the DON FOIA 
program; issues and disseminates FOIA policy; oversees the Navy FOIA 
website; represents the DON at all meetings, symposiums, and conferences 
that address FOIA matters; writes the Navy's FOIA Handbook; serves on 
FOIA boards and committees; serves as principal policy advisor and 
oversight official on all FOIA matters; prepares the DON Annual FOIA 
Report for submission to the Attorney General; reviews all FOIA appeals 
to determine trends that impact on the DON; reviews all FOIA litigation 
matters involving the DON and apprises the Director, Freedom of 
Information and Security Review, DoD of same; responds to depositions 
and litigation regarding DON FOIA policy Secretary of the Navy 
Instruction 5820.8A, Release of Information for Litigation Purposes and 
Testimony by DON Personnel; reviews/analyzes all proposed FOIA 
legislation to determine its impact on the DON; develops a Navy-wide 
FOIA training program and serves as training oversight manager; conducts 
staff assistance visits/reviews within the DON to ensure compliance with 
5 U.S.C. 552 and this part; reviews all SECNAV and Operations Navy 
instructions/forms that address FOIA; and oversees the processing of 
FOIA requests received by SECNAV and Chief of Naval Operations (CNO), to 
ensure responses are complete, timely, and accurate. Additionally, 
N09B30 works closely with other DoD and DON officials to ensure they are 
aware of highly visible and/or sensitive FOIA requests being processed 
by the DON.
    (2) SECNAV has delegated Initial Denial Authority (IDA) to N09B30 
for requests at the Secretariat and OPNAV level.
    (b) The Commandant of the Marine Corps is delegated responsibility 
for administering and supervising the execution of this instruction 
within the Marine Corps. To accomplish this task, the Director of 
Administrative Resource Management (Code ARAD) serves as the FOIA 
Coordinator for Headquarters, U.S. Marine Corps, and assists CNO 
(N09B30) in promoting the Department of the Navy FOIA Program by issuing 
a Marine Corps FOIA Handbook; utilizing the Marine Corps FOIA website to 
disseminate FOIA information; consolidating its activities Annual FOIA 
Reports and submitting it to CNO (N09B30); maintaining a current list of 
Marine Corps FOIA coordinators, etc.
    (c) The DON Chief Information Officer (DONCIO) is responsible for 
preparing and making publicly available upon request an index of all DON 
major information systems and a description of major information and 
record locator systems maintained by the Department of the Navy as 
required by 5 U.S.C. 552 and DoD 5400.7-R, ``DoD Freedom of Information 
Act Program.''
    (d) FOIA coordinators will:
    (1) Implement and administer a local FOIA program under this 
instruction; serve as principal point of contact on FOIA matters; issue 
a command/activity instruction that implements SECNAVINST 5740.42F by 
reference and highlights only those areas unique to the command/activity 
(i.e., designate the command/activity's FOIA Coordinator and IDA; 
address internal FOIA processing procedures; and address command/
activity level FOIA reporting requirements); receive and track FOIA 
requests to ensure responses are made in compliance with 5 U.S.C. 552 
and DoD Directives 5400.7 and 5400.7-R and this part; provide general 
awareness training to command/activity personnel on the provisions of

[[Page 48]]

5 U.S.C. 552 and this instruction; collect and compile FOIA statistics 
and submit a consolidated Annual FOIA Report to Echelon 2 FOIA 
coordinator for consolidation; provide guidance on how to process FOIA 
requests; and provide guidance on the scope of FOIA exemptions.
    (2) Additionally, CMC (ARAD) and Echelon 2 FOIA coordinators will:
    (i) Ensure that reading room materials are placed in the activity's 
electronic reading room and that the activity's website is linked to the 
Navy FOIA website and the activity's reading room is linked to the 
Navy's FOIA reading room lobby. Documents placed in the reading room 
shall also be indexed as a Government Information Locator Service (GILS) 
record, as this will serve as an index of available records.
    (ii) Review proposed legislation and policy recommendations that 
impact the FOIA and provide comments to CNO (N09B30).
    (iii) Review SECNAVINST 5720.42F and provide recommended changes/
comments to CNO (N09B30).
    (iv) Routinely conduct random staff assistance visits/reviews/self-
evaluations within the command and lower echelon commands to ensure 
compliance with FOIA.
    (v) Collect and compile command and feeder reports for the Annual 
FOIA Report and provide a consolidated report to CNO (N09B30).
    (vi) Maintain a listing of their subordinate activities' FOIA 
coordinators to include full name, address, and telephone (office and 
fax) and place on their website.

    Note to paragraph (d)(2)(vi): Do not place names of FOIA 
coordinators who are overseas, routinely deployable or in sensitive 
units on the website. Instead just list ``FOIA Coordinator''

    (vii) Notify CNO (N09B30) of any change of name, address, office 
code and zip code, telephone and facsimile number, and/or e-mail address 
of Echelon 2 FOIA Coordinators.
    (viii) Conduct overview training to ensure all personnel are 
knowledgeable of the FOIA and its requirements. See Sec. 701.12.
    (ix) Work closely with the activity webmaster to ensure that 
information placed on the activity's website does not violate references 
in paragraphs (a), (c) and (f).
    (e) Initial Denial Authorities (IDAs). The following officials are 
delegated to serve as Initial Denial Authorities, on behalf of SECNAV 
(see Sec. 701.30 for definition):
    (1) Under Secretary of the Navy; Deputy Under Secretary of the Navy; 
Assistant Secretaries of the Navy (ASNs) and their principal deputy 
assistants; Assistant for Administration (SECNAV); Director, 
Administrative Division (SECNAV); Special Assistant for Legal and 
Legislative Affairs (SECNAV); Director, Office of Program Appraisal 
(SECNAV); DONCIO; Director, Small and Disadvantaged Business Utilization 
(SECNAV); Chief of Information (CHINFO); Director, Navy International 
Programs Office; Chief of Legislative Affairs; CNO; Vice CNO; Director, 
Naval Nuclear Propulsion Program (NOON); Director, Navy Staff (N09B); 
Head, DON PA/FOIA Policy Branch (N09B30); Director of Naval Intelligence 
(N2); Director of Space, Information Warfare, Command and Control (N6); 
Director of Navy Test & Evaluation & Technology Requirements (N091); 
Surgeon General of the Navy (N093); Director of Naval Reserve (N095); 
Oceanographer of the Navy (N096); Director of Religious Ministries/Chief 
of Chaplains of the Navy (N097); all Deputy Chiefs of Naval Operations; 
Chief of Naval Personnel; Director, Strategic Systems Programs; Chief, 
Bureau of Medicine and Surgery; Director, Office of Naval Intelligence; 
Naval Inspector General; Auditor General of the Navy; Commanders of the 
Naval Systems Commands; Chief of Naval Education and Training; 
Commander, Naval Reserve Force; Chief of Naval Research; Director, Naval 
Criminal Investigative Service; Deputy Commander, Naval Legal Service 
Command; Commander, Navy Personnel Command; Director, Naval Center of 
Cost Analysis; Commander, Naval Meteorology and Oceanography Command; 
Director, Naval Historical Center; heads of DON staff offices, boards, 
and councils; Program Executive Officers; and all general officers.

[[Page 49]]

    (2) Within the Marine Corps: CMC and his Assistant, Chief of Staff, 
Deputy Chiefs of Staff; Director, Personnel Management Division; Fiscal 
Director of the Marine Corps; Counsel for the Commandant; Director of 
Intelligence; Director, Command, Communications and Computer Systems 
Division; Legislative Assistant to the Commandant; Director, Judge 
Advocate Division; Inspector General of the Marine Corps; Director, 
Manpower, Plans, and Policy Division; Head, Freedom of Information and 
Privacy Acts Section, HQMC; Director of Public Affairs; Director of 
Marine Corps History and Museums; Director, Personnel Procurement 
Division; Director, Morale Support Division; Director, Human Resources 
Division; Director of Headquarters Support; commanding generals; 
directors, Marine Corps districts; commanding officers, not in the 
administrative chain of command of a commanding general or district 
director. For each official listed above, the deputy or principal 
assistant is also authorized denial authority.
    (3) JAG and his Deputy and the DON General Counsel (DONGC) and his 
deputies are excluded from this grant of authorization, since SECNAV has 
delegated them to serve as his appellate authorities. However, they are 
authorized to designate IDA responsibilities to other senior officers/ 
officials within JAG and DONGC. DONGC has delegated IDA responsibilities 
to the Assistant General Counsels and the Associate General Counsel 
(Litigation).
    (4) For the shore establishment and operating forces: All officers 
authorized by Article 22, Uniform Code of Military Justice (UCMJ) or 
designated in section 0120, Manual of the Judge Advocate General 
(JAGINST 5800.7C) to convene general courts-martial.
    (5) IDAs must balance their decision to centralize denials for the 
purpose of promoting uniform decisions against decentralizing denials to 
respond to requests within the FOIA time limits. Accordingly, the IDAs 
listed in paragraphs (e)(1) through (4) are authorized to delegate 
initial denial authority to subordinate activities for the purpose of 
streamlining FOIA processing. They may also delegate authority to a 
specific staff member, assistant, or individuals acting during their 
absence if this serves the purpose of streamlining and/or complying with 
the time limits of FOIA.

    Note to paragraph (e)(5): Such delegations shall be limited to 
comply with DoD Directive 5400.7, ``DoD Freedom of Information Act 
Program''.

    (6) Delegations of IDA authority should be reflected in the 
activity's supplementing FOIA instruction or by letter, with a copy to 
CNO (N09B30) or CMC (ARAD), as appropriate.
    (f) Release authorities. Release authorities are authorized to grant 
requests on behalf of the Office of the Secretary of the Navy for agency 
records under their possession and control for which no FOIA exemption 
applies; to respond to requesters concerning refinement of their 
requests; to provide fee estimates; and to offer appeal rights for 
adequacy of search or fee estimates to the requester.
    (g) Appellate authorities are addressed in Sec. 701.12.



Sec. 701.5  Policy.

    (a) Compliance with the FOIA. DON policy is to comply with the FOIA 
as set forth in the Department of Defense's FOIA Directives 5400.7 and 
5400.7-R, and this instruction in this part in both letter and spirit; 
conduct its activities in an open manner consistent with the need for 
security and adherence to other requirements of law and regulation; and 
provide the public with the maximum amount of accurate and timely 
information concerning its activities.
    (b) Prompt action. DON activities shall act promptly on requests 
when a member of the public complies with the procedures established in 
the instruction in this part (i.e., files a ``perfected request'') and 
the request is received by the official designated to respond. See Sec. 
701.11 for minimum requirements of the FOIA.
    (c) Provide assistance. DON activities shall assist requesters in 
understanding and complying with the procedures established by the 
instruction in this part, ensuring that procedural matters do not 
unnecessarily impede a requester from obtaining DON records promptly.

[[Page 50]]

    (d) Grant access. (1) DON activities shall grant access to agency 
records when a member of the public complies with the provisions of the 
instruction in this part and there is no FOIA exemption available to 
withhold the requested information (see subpart D of this part).
    (2) In those instances where the requester has not cited FOIA, but 
the records are determined to be releasable in their entirety, the 
request shall be honored without requiring the requester to invoke FOIA.
    (e) Create a record. (1) A record must exist and be in the 
possession and control of the DON at the time of the request to be 
considered subject to the instruction in this part and the FOIA. 
Accordingly, DON activities need not process requests for records which 
are not in existence at the time the request is received. In other 
words, requesters may not have a ``standing FOIA request'' for release 
of future records.
    (2) There is no obligation to create, compile, or obtain a record to 
satisfy a FOIA request. However, this is not to be confused with 
honoring form or format requests (see Sec. 701.8). A DON activity, 
however, may compile a new record when so doing would result in a more 
useful response to the requester, or be less burdensome to the agency 
than providing existing records, and the requester does not object. Cost 
of creating or compiling such a record may not be charged to the 
requester unless the fee for creating the record is equal to or less 
than the fee which would be charged for providing the existing record. 
Fee assessments shall be in accordance with subpart C of this part.
    (3) With respect to electronic data, the issue of whether records 
are actually created or merely extracted from an existing database is 
not always readily apparent. Consequently, when responding to FOIA 
requests for electronic data where creation of a record, programming, or 
particular format are questionable, DON activities should apply a 
standard of reasonableness. In other words, if the capability exists to 
respond to the request, and the effort would be a business as usual 
approach, then the request should be processed. However, the request 
need not be processed when the capability to respond does not exist 
without a significant expenditure of resources, thus not being a normal 
business as usual approach. As used in this sense, a significant 
interference with the operation of the DON activity's automated 
information system would not be a business as usual approach.
    (f) Disclosures--(1) Discretionary Disclosures. DON activities shall 
make discretionary disclosures whenever disclosure would not foreseeably 
harm an interest protected by a FOIA exemption. A discretionary 
disclosure is normally not appropriate for records clearly exempt under 
exemptions (b)(1), (b)(3), (b)(4), (b)(6), (b)(7)(C) and (b)(7)(F). 
Exemptions (b)(2), (b)(5), and (b)(7)(A), (b)(7)(B), (b)(7)(D) and 
(b)(7)(E) are discretionary in nature and DON activities are encouraged 
to exercise discretion whenever possible. Exemptions (b)(4), (b)(6), and 
(b)(7)(C) cannot be claimed when the requester is the ``submitter'' of 
the information. While discretionary disclosures to FOIA requesters 
constitute a waiver of the FOIA exemption that may otherwise apply, this 
policy does not create any legally enforceable right.
    (2) Public domain. Non-exempt records released under FOIA to a 
member of the public are considered to be in the public domain. 
Accordingly, such records may also be made available in reading rooms, 
in paper form, as well as electronically to facilitate public access.
    (3) Limited disclosures. Disclosure of records to a properly 
constituted advisory committee, to Congress, or to other Federal 
agencies does not waive a FOIA exemption.
    (4) Unauthorized disclosures. Exempt records disclosed without 
authorization by the appropriate DON official do not lose their exempt 
status.
    (5) Official versus personal disclosures. While authority may exist 
to disclose records to individuals in their official capacity, the 
provisions of the instruction in this part apply if the same individual 
seeks the records in a private or personal capacity.

[[Page 51]]

    (6) Distributing information. DON activities are encouraged to 
enhance access to information by distributing information on their own 
initiative through the use of electronic information systems, such as 
the Government Information Locator Service (GILS).
    (g) Honor form or format requests. DON activities shall provide the 
record in any form or format requested by the requester, if the record 
is readily reproducible in that form or format. DON activities shall 
make reasonable efforts to maintain their records in forms or formats 
that are reproducible. In responding to requests for records, DON 
activities shall make reasonable efforts to search for records in 
electronic form or format, except when such efforts would significantly 
interfere with the operation of the DON activities' automated 
information system. Such determinations shall be made on a case-by-case 
basis.
    (h) Authenticate documents. Records provided under the instruction 
in this part shall be authenticated with an appropriate seal, whenever 
necessary, to fulfill an official Government or other legal function. 
This service, however, is in addition to that required under the FOIA 
and is not included in the FOIA fee schedule. DON activities may charge 
for the service at a rate of $5.20 for each authentication.



Sec. 701.6  Reading rooms.

    The FOIA requires that (a)(2) records created on or after 1 November 
1996, be made available electronically (starting 1 November 1997) as 
well as in hard copy, in the FOIA reading room for inspection and 
copying, unless such records are published and copies are offered for 
sale. DoD 5400.7-R, ``DoD Freedom of Information Act Program,'' requires 
that each DoD Component provide an appropriate facility or facilities 
where the public may inspect and copy or have copied the records held in 
their reading rooms. To comply, the Navy FOIA website includes links 
that assist members of the public in locating Navy libraries, online 
documents, and Navy electronic reading rooms maintained by SECNAV/CNO, 
CMC, OGC, JAG and Echelon 2 commands. Although each of these activities 
will maintain their own document collections on their own servers, the 
Navy FOIA website provides a common gateway for all Navy online 
resources. To this end, DON activities shall:
    (a) Establish their reading rooms and link them to the Navy FOIA 
Reading Room Lobby which is found on the Navy FOIA website.
    (b) Ensure that responsive documents held by their subordinate 
activities are also placed in the reading room.

    Note to paragraph (b): SECNAV/ASN and OPNAV offices shall ensure 
that responsive documents are provided to CNO (N09B30) for placement in 
the reading room.

    (c) Ensure that documents placed in a reading room are properly 
excised to preclude the release of personal or contractor-submitted 
information prior to being made available to the public. In every case, 
justification for the deletion must be fully explained in writing, and 
the extent of such deletion shall be indicated on the record which is 
made publicly available, unless such indication would harm an interest 
protected by an exemption under which the deletion was made. If 
technically feasible, the extent of the deletion in electronic records 
or any other form of record shall be indicated at the place in the 
record where the deletion was made. However, a DON activity may publish 
in the Federal Register a description of the basis upon which it will 
delete identifying details of particular types of records to avoid 
clearly unwarranted invasions of privacy, or competitive harm to 
business submitters. In appropriate cases, the DON activity may refer to 
this description rather than write a separate justification for each 
deletion. DON activities may remove (a)(2)(D) records from their 
electronic reading room when the appropriate officials determine that 
access is no longer necessary.
    (d) Should a requester submit a FOIA request for FOIA-processed 
(a)(2) records, and insist that the request be processed, DON activities 
shall process the FOIA request. However, DON activities have no 
obligation to process a FOIA request for 5 U.S.C. 552(a)(2)(A), (B), and 
(C) [5 U.S.C. 552] records because these records are required to be made 
public and not FOIA-processed under paragraph (a)(3) of the FOIA.

[[Page 52]]

    (e) DON activities may share reading room facilities if the public 
is not unduly inconvenienced. When appropriate, the cost of copying may 
be imposed on the person requesting the material in accordance with FOIA 
fee guidelines (see subpart C of this part).
    (f) DON activities shall maintain an index of all available 
documents. A general index of FOIA-processed (a)(2) records shall be 
made available to the public, both in hard copy and electronically by 31 
December 1999. To comply with this requirement, DON activities shall 
establish a GILS record for each document it places in a reading room. 
No (a)(2) materials issued or adopted after 4 July 1967, that are not 
indexed and either made available or published may be relied upon, used 
or cited as precedent against any individual unless such individual has 
actual and timely notice of the contents of such materials. Such 
materials issued or adopted before 4 July 1967, need not be indexed, but 
must be made available upon request if not exempted under the 
instruction in this part.
    (g) An index and copies of unclassified Navy instructions, forms, 
and addresses for DON activities (i.e., the Standard Navy Distribution 
List (SNDL) are located on the Navy Electronics Directives System 
(http://neds.nebt.daps.mil/).
    (h) DON material published in the Federal Register, such as material 
required to be published by Section 552(a)(1) of the FOIA, shall be made 
available by JAG in their FOIA reading room and electronically to the 
public.
    (i) Although not required to be made available in response to FOIA 
requests or made available in FOIA Reading Rooms, ``(a)(1)'' materials 
may, when feasible, be made available to the public in FOIA reading 
rooms for inspection and copying, and by electronic means. Examples of 
``(a)(1)'' materials are: descriptions of an agency's central and field 
organization, and to the extent they affect the public, rules of 
procedures, descriptions of forms available, instruction as to the scope 
and contents of papers, reports, or examinations, and any amendment, 
revision, or report of the aforementioned.



Sec. 701.7  Relationship between the FOIA and PA.

    Not all requesters are knowledgeable of the appropriate statutory 
authority to cite when requesting records. In some instances, they may 
cite neither Act, but will imply one or both Acts. For these reasons, 
the following guidelines are provided to ensure requesters receive the 
greatest amount of access rights under both Acts:
    (a) If the record is required to be released under the FOIA, the PA 
does not bar its disclosure. Unlike the FOIA, the PA applies only to 
U.S. citizens and aliens admitted for permanent residence. Subpart F of 
this part implements the DON's Privacy Act Program.
    (b) Requesters who seek records about themselves contained in a PA 
system of records and who cite or imply only the PA, will have their 
requests processed under the provisions of both the PA and the FOIA. If 
the PA system of records is exempt from the provisions of 5 U.S.C. 
552a(d)(1) and the records, or any portion thereof are exempt under the 
FOIA, the requester shall be so advised with the appropriate PA and FOIA 
exemption. Appeals shall be processed under both Acts.
    (c) Requesters who seek records about themselves that are not 
contained in a PA system of records and who cite or imply the PA will 
have their requests processed under the provisions of the FOIA, since 
the PA does not apply to these records. Appeals shall be processed under 
the FOIA.
    (d) Requesters who seek records about themselves that are contained 
in a PA system of records and who cite or imply the FOIA or both Acts 
will have their requests processed under the provisions of both the PA 
and the FOIA. If the PA system of records is exempt from the provisions 
of 5 U.S.C. 552a(d)(1), and the records, or any portion thereof are 
exempt under the FOIA, the requester shall be so advised with the 
appropriate PA and FOIA exemption. Appeals shall be processed under both 
Acts.
    (e) Requesters who seek access to agency records that are not part 
of a PA system of records, and who cite or imply the PA and FOIA, will 
have their requests processed under FOIA, since

[[Page 53]]

the PA does not apply to these records. Appeals shall be processed under 
the FOIA.
    (f) Requesters who seek access to agency records and who cite or 
imply the FOIA will have their requests and appeals processed under the 
FOIA.
    (g) Requesters shall be advised in final responses which Act(s) was 
(were) used, inclusive of appeal rights.
    (h) The time limits for responding to the request will be determined 
based on the Act cited. For example, if a requester seeks access under 
the FOIA for his or her personal records which are contained in a PA 
system of records, the time limits of the FOIA apply.
    (i) Fees will be charged based on the kind of records being 
requested (i.e., FOIA fees if agency records are requested; PA fees for 
requesters who are seeking access to information contained in a PA 
system of record which is retrieved by their name and/or personal 
identifier).



Sec. 701.8  Processing FOIA requests.

    Upon receipt of a FOIA request, DON activities shall:
    (a) Review the request to ensure it meets the minimum requirements 
of the FOIA to be processed.
    (1) Minimum requirements of a FOIA request. A request must be in 
writing; cite or imply FOIA; reasonably describe the records being 
sought so that a knowledgeable official of the agency can conduct a 
search with reasonable effort; and if fees are applicable, the requester 
should include a statement regarding willingness to pay all fees or 
those up to a specified amount or request a waiver or reduction of fees.
    (2) If a request does not meet the minimum requirements of the FOIA, 
DON activities shall apprise the requester of the defect and assist him/
her in perfecting the request.

    Note to paragraph (a)(2): The statutory 20 working day time limit 
applies upon receipt of a ``perfected'' FOIA request.

    (b) When a requester or his/her attorney requests personally 
identifiable information in a record, the request may require a 
notarized signature or a statement certifying under the penalty of 
perjury that their identity is true and correct. Additionally, written 
consent of the subject of the record is required for disclosure from a 
Privacy Act System of records, even to the subject's attorney.
    (c) Review description of requested record(s). (1) The FOIA 
requester is responsible for describing the record he/she seeks so that 
a knowledgeable official of the activity can locate the record with a 
reasonable amount of effort. In order to assist DON activities in 
conducting more timely searches, a requester should endeavor to provide 
as much identifying information as possible. When a DON activity 
receives a request that does not reasonably describe the requested 
record, it shall notify the requester of the defect in writing. The 
requester should be asked to provide the type of information outlined in 
this paragraph. DON activities are not obligated to act on the request 
until the requester responds to the specificity letter. When 
practicable, DON activities shall offer assistance to the requester in 
identifying the records sought and in reformulating the request to 
reduce the burden on the agency in complying with the FOIA. The 
following guidelines are provided to deal with generalized requests and 
are based on the principle of reasonable effort. Descriptive information 
about a record may be divided into two broad categories.
    (i) Category I is file-related and includes information such as type 
of record (for example, memorandum), title, index citation, subject 
area, date the record was created, and originator.
    (ii) Category II is event-related and includes the circumstances 
that resulted in the record being created or the date and circumstances 
surrounding the event the record covers.
    (2) Generally, a record is not reasonably described unless the 
description contains sufficient Category I information to permit the 
conduct of an organized, non random search based on the DON activity's 
filing arrangements and existing retrieval systems, or unless the record 
contains sufficient Category II information to permit inference of the 
Category I elements needed to conduct such a search.

[[Page 54]]

    (3) The following guidelines deal with requests for personal 
records: Ordinarily, when personal identifiers are provided solely in 
connection with a request for records concerning the requester, only 
records in Privacy Act system of records that can be retrieved by 
personal identifiers need be searched. However, if a DON activity has 
reason to believe that records on the requester may exist in a record 
system other than a PA system, the DON activity shall search the system 
under the provisions of the FOIA. In either case, DON activities may 
request a reasonable description of the records desired before searching 
for such records under the provisions of the FOIA and the PA. If the 
records are required to be released under the FOIA, the PA does not bar 
its disclosure.
    (4) The guidelines in paragraph (c)(3) notwithstanding, the decision 
of the DON activity concerning reasonableness of description must be 
based on the knowledge of its files. If the description enables the DON 
activity personnel to locate the record with reasonable effort, the 
description is adequate. The fact that a FOIA request is broad or 
burdensome in its magnitude does not, in and of itself, entitle a DON 
activity to deny the request on the ground that it does not reasonably 
describe the records sought. The key factor is the ability of the staff 
to reasonably ascertain and locate which records are being requested.
    (d) Review request to determine if FOIA fees may be applicable. (1) 
FOIA fee issues shall be resolved before a DON activity begins 
processing a FOIA request.
    (2) FOIA fees shall be at the rates prescribed at subpart C of this 
part.
    (3) If fees are applicable, a requester shall be apprised of what 
category of requester he/she has been placed and provided a complete 
breakout of fees to include any and all information provided before fees 
are assessed (e.g., first two hours of search and first 100 pages of 
reproduction have been provided without charge.)
    (4) Forms DD 2086 (for FOIA requests) and 2086-1 (for FOIA requests 
for technical data) serve as an administrative record of all costs 
incurred to process a request; actual costs charged to a requester 
(i.e., search, review, and/or duplication and at what salary level and 
the actual time expended); and as input to the Annual FOIA Report. 
Requesters may request a copy of the applicable form to review the time 
and costs associated with the processing of a request.
    (5) Final response letters shall address whether or not fees are 
applicable or have been waived. A detailed explanation of FOIA fees is 
provided at subpart C of this part.
    (e) Control FOIA Request. Each FOIA request should be date stamped 
upon receipt; given a case number; and entered into a formal control 
system to track the request from receipt to response. Coordinators may 
wish to conspicuously stamp, label, and/or place the request into a 
brightly colored folder/cover sheet to ensure it receives immediate 
attention by the action officer.
    (f) Enter request into multitrack processing system. When a DON 
activity has a significant number of pending requests that prevents a 
response determination being made within 20 working days, the requests 
shall be processed in a multitrack processing system, based on the date 
of receipt, the amount of work and time involved in processing the 
requests, and whether the request qualifies for expedited processing.
    (1) DON activities may establish as many queues as they wish, 
however, at a minimum three processing tracks shall be established, all 
based on a first-in, first-out concept, and rank ordered by the date of 
receipt of the request: one track for simple requests, one track for 
complex requests, and one track for expedited processing. Determinations 
as to whether a request is simple or complex shall be made by each DON 
activity.
    (2) DON activities shall provide a requester whose request does not 
qualify for the fastest queue (except for expedited processing), an 
opportunity to limit in writing by hard copy, facsimile, or 
electronically the scope of the request in order to qualify for the 
fastest queue.
    (3) This multitrack processing system does not obviate the 
activity's responsibility to exercise due diligence in processing 
requests in the most expeditious manner possible.

[[Page 55]]

    (4) Referred requests shall be processed according to the original 
date received by the initial activity and then placed in the appropriate 
queue.
    (5) Establish a separate queue for expedited processing. A separate 
queue shall be established for requests meeting the test for expedited 
processing. Expedited processing shall be granted to a requester after 
the requester requests such and demonstrates a compelling need for the 
information. Notice of the determination as to whether to grant 
expedited processing in response to a requester's compelling need shall 
be provided to the requester within 10 calendar days after receipt of 
the request in the office which will determine whether to grant 
expedited access. Once the determination has been made to grant 
expedited processing, DON activities shall process the request as soon 
as practicable. Actions by DON activities to initially deny or affirm 
the initial denial on appeal of a request for expedited processing, and 
failure to respond in a timely manner shall be subject to judicial 
review.
    (i) Compelling need means that the failure to obtain the records on 
an expedited basis could reasonably be expected to pose an imminent 
threat to the life or physical safety of an individual.
    (ii) Compelling need also means that the information is urgently 
needed by an individual primarily engaged in disseminating information 
in order to inform the public concerning actual or alleged Federal 
Government activity. An individual primarily engaged in disseminating 
information means a person whose primary activity involves publishing or 
otherwise disseminating information to the public. Representatives of 
the news media would normally qualify as individuals primarily engaged 
in disseminating information. Other persons must demonstrate that their 
primary activity involves publishing or otherwise disseminating 
information to the public.
    (iii) Urgently needed means that the information has a particular 
value that will be lost if not disseminated quickly. Ordinarily this 
means a breaking news story of general public interest. However, 
information of historical interest only, or information sought for 
litigation or commercial activities would not qualify, nor would a news 
media publication or broadcast deadline unrelated to the news breaking 
nature of the information.
    (iv) A demonstration of compelling need by a requester shall be made 
by a statement certified by the requester to be true and correct to the 
best of his/her knowledge. This statement must accompany the request in 
order to be considered and responded to within the 10 calendar days 
required for decisions on expedited access.
    (v) Other reasons that merit expedited processing by DON activities 
are an imminent loss of substantial due process rights and humanitarian 
need. A demonstration of imminent loss of substantial due process rights 
shall be made by a statement certified by the requester to be true and 
correct to the best of his/her knowledge. Humanitarian need means that 
disclosing the information will promote the welfare and interests of 
mankind. A demonstration of humanitarian need shall also be made by a 
statement certified by the requester to be true and correct to the best 
of his/her knowledge. Both of these statements must accompany the 
request in order to be considered and responded to within the 10 
calendar days required for decisions on expedited access. Once the 
decision has been made to expedite the request for either of these 
reasons, the request may be processed in the expedited processing queue 
behind those requests qualifying for compelling need.
    (6) These same procedures also apply to requests for expedited 
processing of administrative appeals.
    (g) Respond to request within FOIA time limits. Once an activity 
receives a ``perfected'' FOIA request, it shall inform the requester of 
its decision to grant or deny access to the requested records within 20 
working days. Activities are not necessarily required to release records 
within the 20 working days, but access to releasable records should be 
granted promptly thereafter and the requester apprised of when he/she 
may expect to receive a final response to his/her request. Naturally,

[[Page 56]]

interim releases of documents are encouraged if appropriate. Sample 
response letters are provided on the Navy FOIA website.
    (1) If a significant number of requests, or the complexity of the 
requests prevents a final response determination within the statutory 
time period, DON activities shall advise the requester of this fact, and 
explain how the request will be responded to within its multitrack 
processing system. A final response determination is notification to the 
requester that the records are released, or will be released by a 
certain date, or the records are denied under the appropriate FOIA 
exemption(s) or the records cannot be provided for one or more of the 
``other reasons'' (see Sec. 701.8(n)). Interim responses acknowledging 
receipt of the request, negotiations with the requester concerning the 
scope of the request, the response timeframe, and fee agreements are 
encouraged; however, such actions do not constitute a final response 
determination under FOIA.
    (2) Formal extension. In those instances where a DON activity cannot 
respond within the 20 working day time limit, the FOIA provides for 
extension of initial time limits for an additional 10 working days for 
three specific situations: the need to search for and collect records 
from separate offices; the need to examine a voluminous amount of 
records required by the request; and the need to consult with another 
agency or agency component. In such instances, naval activities shall 
apprise requesters in writing of their inability to respond within 20 
working days and advise them of their right to appeal to the appellate 
authority.

    Note to paragraph (g)(2): Formal extension letters require IDA 
signature.

    (3) Informal extension. A recommended alternative to taking a formal 
extension is to call the requester and negotiate an informal extension 
of time with the requester. The advantages include the ability to agree 
on a mutually acceptable date to respond that exceeds a formal extension 
of an additional 10 working days, and the letter of confirmation does 
not require the signature of an IDA. Additionally, it does not impact on 
the additional days the appellate authority may take when responding to 
a FOIA appeal.
    (h) Conduct a search for responsive records. (1) Conduct a search 
for responsive records, keeping in mind a test for reasonableness (i.e., 
file disposition requirements set forth in SECNAVINST 5212.5D, ``Navy 
and Marine Corps Records Disposal Manual''). This includes making a 
manual search for records as well as an electronic search for records. 
Do not assume that because a document is old, it does not exist. Rather, 
ensure that all possible avenues are considered before making a 
determination that no record could be found (i.e., such as determining 
if the record was transferred to a federal records center for holding).
    (2) Requesters can appeal ``adequacy of search.'' To preclude 
unnecessary appeals, you are encouraged to detail your response letter 
to reflect the search undertaken so the requester understands the 
process. It is particularly helpful to address the records disposal 
requirements set forth in SECNAVINST 5212.5D, ``Navy and Marine Corps 
Records Disposal Manual'' for the records being sought.
    (i) Review documents for release. Once documents have been located, 
the originator or activity having possession and control is responsible 
for reviewing them for release and coordinating with other activities/
agencies having an interest. The following procedures should be 
followed:
    (1) Sort documents by originator and make necessary referrals (see 
Sec. 701.9).
    (2) Documents for which the activity has possession and control 
should be reviewed for release. If the review official determines that 
all or part of the documents requested require denial, and the head of 
the activity is an IDA, he/she shall respond directly to the requester. 
If, however, the activity head is not an IDA, then the request, a copy 
of the responsive documents (unexcised), proposed redacted copy of the 
documents, and a detailed explanation regarding their release must be 
referred to the IDA for a final release determination and the requester 
shall be notified in writing of the transfer.
    (3) Documents for which the activity does not have possession and 
control, but has an interest, should be referred

[[Page 57]]

to the originator along with any recommendations regarding release (see 
Sec. 701.9).
    (j) Process non-responsive information in responsive documents. DON 
activities shall interpret FOIA requests liberally when determining 
which records are responsive to the requests, and may release non-
responsive information. However, should DON activities desire to 
withhold non-responsive information, the following steps shall be 
accomplished:
    (1) Consult with the requester, and ask if the requester views the 
information as responsive, and if not, seek the requester's concurrence 
to deletion of non-responsive information without a FOIA exemption. 
Reflect this concurrence in the response letter.
    (2) If the responsive record is unclassified and the requester does 
not agree to deletion of non-responsive information without a FOIA 
exemption, release all non-responsive and responsive information which 
is not exempt. For non-responsive information that is exempt, notify the 
requester that even if the information were determined responsive, it 
would likely be exempted (state the appropriate exemption(s).) Advise 
the requester of the right to request this information under a separate 
FOIA request. The separate request shall be placed in the same location 
within the processing queue as the original request.
    (3) If the responsive record is classified, and the requester does 
not agree to deletion of non-responsive information without a FOIA 
exemption, release all unclassified responsive and non-responsive 
information which is not exempt. If the non-responsive information is 
exempt, follow the procedures provided. The classified, non-responsive 
information need not be reviewed for declassification at this point. 
Advise the requester than even if the classified information were 
determined responsive, it would likely be exempt under 5 U.S.C. 552 
(b)(1) and other exemptions if appropriate. Advise the requester of the 
right to request this information under a separate FOIA request. The 
separate request shall be placed in the same location within the 
processing queue as the original request.
    (k) Withholding/excising information. (1) DON records may only be 
withheld if they qualify for exemption under one or more of the nine 
FOIA exemptions/three exclusions and it is determined that a foreseeable 
harm to an interest protected by those exemptions would result if the 
information is released. There are nine FOIA exemptions. See subpart D 
of this part for the scope of each exemption.
    (2) Although a FOIA exemption may apply, DON activities are 
encouraged to consider discretionary disclosures of information when an 
exemption permits such disclosure (see Sec. 701.5(f).)
    (3) Excising documents. The excision of information within a 
document should be made so that the requester can readily identify the 
amount of information being withheld and the reason for the withholding. 
Accordingly, ensure that any deletion of information is bracketed and 
all applicable exemptions listed. In those instances, where multiple 
pages of documents are determined to be exempt from disclosure in their 
entirety, indicate the number of pages being denied and the basis for 
the denial.
    (l) Reasonably segregable information. DON activities must release 
all ``reasonably segregable information'' when the meaning of these 
portions is not distorted by deletion of the denied portions, and when 
it reasonably can be assumed that a skillful and knowledgeable person 
could not reasonably reconstruct excised information. When a record is 
denied in whole, the response to the requester will specifically state 
that it is not reasonable to segregate portions of the record for 
release.
    (m) Making a discretionary disclosure. A discretionary disclosure to 
one requester may preclude the withholding of similar information under 
a FOIA exemption if subsequently requested by the same individual or 
someone else. The following suggested language should be included with 
the discretionary disclosure of any record that could be subject to 
withholding: ``The information you requested is subject to being 
withheld under section (b)(--) of the FOIA. The disclosure of this 
material to you by the DON is discretionary and does not constitute a 
waiver of our

[[Page 58]]

right to claim this exemption for similar records in the future.''
    (n) Other reasons. There are 10 reasons for not complying with a 
request for a record under FOIA:
    (1) No record. The DON activity conducts a reasonable search of 
files and fails to identify records responsive to the request.

    Note to paragraph (n)(1): Requester must be advised that he/she may 
appeal the adequacy of search and provided appeal rights. Response 
letter does not require signature by IDA.

    (2) Referral. The request is referred to another DoD/DON activity or 
to another executive branch agency for their action.

    Note to paragraph (n)(2): Referral does not need to be signed by 
IDA.

    (3) Request withdrawn. The requester withdraws request.

    Note to paragraph (n)(3): Response letter does not require signature 
by IDA.

    (4) Fee-related reason. Requester is unwilling to pay fees 
associated with the request; is past due in payment of fees from a 
previous request; or disagrees with the fee estimate.

    Note to paragraph (n)(4): Requester must be advised that he/she may 
appeal the fee estimate. Response letter does not require signature by 
IDA.

    (5) Records not reasonably described. A record has not been 
described with sufficient particularity to enable the DON activity to 
locate it by conducting a reasonable search.

    Note to paragraph (n)(5): Response letter does not require signature 
by IDA.

    (6) Not a proper FOIA request for some other reason. When the 
requester fails unreasonably to comply with procedural requirements, 
other than those fee-related issues described in paragraph (n)(4), 
imposed by the instruction in this part and/or other published rules or 
directives.

    Note to paragraph (n)(6): Response letter does not require signature 
by IDA.

    (7) Not an agency record. When the requester is provided a response 
indicating that the requested information was ``not an agency record'' 
within the meaning of the FOIA and the instruction in this part.

    Note to paragraph (n)(7): Response letter does not require signature 
by IDA.

    (8) Duplicate request. When a request is duplicative of another 
request which has already been completed or currently in process from 
the same requester.

    Note to paragraph (n)(8): Response letter does not require signature 
by IDA.

    (9) Other (specify). When a FOIA request cannot be processed because 
the requester does not comply with published rules, other than for those 
reasons described in paragraphs (n) (1) through (8). DON activities must 
document the specific discrepancy.

    Note to paragraph (n)(9): Response letter does not require signature 
by IDA.

    (10) Denial of request. The record is denied in whole or in part in 
accordance with procedures set forth in 5 U.S.C. 552, DoD 5400.7-R, and 
the instruction in this part.

    Note to paragraph (n)(10): The requester is advised that he/she may 
appeal the determination and response letter must be signed by IDA.

    (o) Writing a response letter. FOIA response letters should contain 
the following information:
    (1) The date of the request; when it was received; if records were 
not located, where the search was conducted and what the records 
disposal requirements are for those records.
    (2) Cut-off dates. Normally, DON activities shall consider the date 
of receipt of a FOIA request as the cut-off date for a records search. 
Where a DON activity employs a particular cut-off date, however, it 
should give notice of that date in the response letter to the requester.
    (3) If a request is denied in whole or in part, the denial response 
letter should cite the exemption(s) claimed; if possible, delineate the 
kinds of information withheld (i.e., social security numbers, date of 
birth, home addresses, etc.) as this may satisfy the requester and thus 
eliminate an appeal; provide appeal rights, and be signed by an IDA. 
However, there is no requirement that

[[Page 59]]

the response contain the same documentation necessary for litigation 
(i.e., FOIA requesters are not entitled to a Vaughn index (see 
definition in Sec. 701.39 during the administrative process).
    (4) The fees charged or waived; if fees were charged, what category 
was the requester placed in and provide a breakout of the fees charged 
(i.e., the first 2 hours of search were waived and so you are being 
charged for the remaining 4 hours of search at $25 per hour, or $100; 
the first 100 pages of reproduction were waived and the remaining 400 
pages being provided were charged at $.15 per page, resulting in $60 in 
reproduction fees, for a total of $160). These figures are derived from 
Form DD 2086 (FOIA Fees) or Form DD 2086-1 (Technical Data Fees).
    (5) Sample response letters are provided on the Navy FOIA website.
    (p) Press responses. Ensure responses being made to the press are 
cleared through public affairs channels.
    (q) Special mail services. DON activities are authorized to use 
registered mail, certified mail, certificates of mailing and return 
receipts. However, their use should be limited to instances where it 
appears advisable to establish proof of dispatch or receipt of FOIA 
correspondence.



Sec. 701.9  Referrals.

    (a) The DoD/DON FOIA referral policy is based upon the concept of 
the originator of a record making a release determination on its 
information. If a DON activity receives a request for records originated 
by another DoD/DON activity, it should contact the activity to determine 
if it also received the request, and if not, obtain concurrence to refer 
the request. In either situation, the requester shall be advised of the 
action taken, unless exempt information would be revealed.
    (b) While referrals to originators of information result in 
obtaining the best possible decision on release of the information, the 
policy does not relieve DON activities from the responsibility of making 
a release decision on a record should the requester object to referral 
of the request and the record. Should this situation occur, DON 
activities should coordinate with the originator of the information 
prior to making a release determination.
    (c) A request received by a DON activity having no records 
responsive to a request shall be referred routinely to another DoD/DON 
activity, if the other activity has reason to believe it has the 
requested record. Prior to notifying a requester of a referral to 
another DoD/DON activity, the DON activity receiving the initial request 
shall consult with the other DoD/DON activity to determine if that 
activity's association with the material is exempt. If the association 
is exempt, the activity receiving the initial request will protect the 
association and any exempt information without revealing the identity of 
the protected activity. The protected activity shall be responsible for 
submitting the justifications required in any litigation.
    (d) Any DON activity receiving a request that has been misaddressed 
shall refer the request to the proper address and advise the requester. 
DON activities making referrals of requests or records shall include 
with the referral, a point of contact by name, a telephone number 
(commercial and DSN), and an e-mail address (if available).
    (e) A DON activity shall refer a FOIA request for a record that it 
holds but was originated by another Executive Branch agency, to them for 
a release determination and direct response to the requester. The 
requester shall be informed of the referral, unless it has been 
determined that notification would reveal exempt information. Referred 
records shall only be identified to the extent consistent with security 
requirements.
    (f) A DON activity may refer a request for a record that it 
originated to another activity or agency when the activity or agency has 
a valid interest in the record, or the record was created for the use of 
the other agency or activity. In such situations, provide the record and 
a release recommendation on the record with the referral action. DON 
activities should include a point of contact and telephone number in the 
referral letter. If that organization is to respond directly to the 
requester, apprise the requester of the referral.

[[Page 60]]

    (g) Within the DON/DoD, a DON activity shall ordinarily refer a FOIA 
request and a copy of the record it holds, but that was originated by 
another DON/DoD activity or that contains substantial information 
obtained from that activity, to that activity for direct response, after 
direct coordination and obtaining concurrence from the activity. The 
requester shall be notified of such referral. In any case, DON 
activities shall not release or deny such records without prior 
consultation with the activity, except as provided in paragraph (c) of 
this section.
    (h) Activities receiving a referred request shall place it in the 
appropriate processing queue based on the date it was initially received 
by the referring activity/agency.
    (i) Agencies outside the DON that are subject to the FOIA. (1) A DON 
activity may refer a FOIA request for any record that originated in an 
agency outside the DON or that is based on information obtained from an 
outside agency to the agency for direct response to the requester after 
coordination with the outside agency, if that agency is subject to FOIA. 
Otherwise, the DON activity must respond to the request.

    Note: DON activities shall not refer documents originated by 
entities outside the Executive Branch of Government (e.g., Congress, 
State and local government agencies, police departments, private citizen 
correspondence, etc.), to them for action and direct response to the 
requester, since they are not subject to the FOIA.

    (2) A DON activity shall refer to the agency that provided the 
record any FOIA request for investigative, intelligence, or any other 
type of records that are on loan to the DON for a specific purpose, if 
the records are restricted from further release and so marked. However, 
if for investigative or intelligence purposes, the outside agency 
desires anonymity, a DON activity may only respond directly to the 
requester after coordination with the outside agency.



Sec. 701.10  Processing requests received from governmental officials.

    (a) Members of Congress. Many constituents seek access to 
information through their Member of Congress. Members of Congress who 
seek access to records on behalf of their constituent are provided the 
same information that the constituent would be entitled to receive. 
There is no need to verify that the individual has authorized the 
release of his/her record to the Congressional member, since the Privacy 
Act's ``blanket routine use'' for Congressional inquiries applies.
    (b) Privileged release to U.S. Government officials. DON records may 
be authenticated and released to U.S. Government officials if they are 
requesting them in their official capacity on behalf of Federal 
governmental bodies, whether legislative, executive, administrative, or 
judicial. To ensure adequate protection of these documents, DON 
activities shall inform officials receiving records under the provisions 
of this paragraph that those records are exempt from public release 
under FOIA. DON activities shall also mark the records as ``Privileged'' 
and ``Exempt from Public Disclosure'' and annotate any special handling 
instructions on the records. Because such releases are not made under 
the provisions of the FOIA, they do not impact on future decisions to 
release/deny requests for the same records to other requesters. Examples 
of privileged releases are:
    (1) In response to a request from a Committee or Subcommittee of 
Congress, or to either House sitting as a whole.
    (2) To the Federal Courts, whenever ordered by officers of the court 
as necessary for the proper administration of justice.
    (3) To other Federal agencies, both executive and administrative, as 
determined by the head of a DON activity or designee.
    (c) State or local government officials. Requests from State or 
local government officials for DON records are treated the same as any 
other requester.
    (d) Non-FOIA requests from foreign governments. Requests from 
foreign governments that do not invoke the FOIA shall be referred to the 
appropriate foreign disclosure channels and the requester so notified. 
See Sec. 701.11(c) regarding processing FOIA requests

[[Page 61]]

from foreign governments and/or their officials.



Sec. 701.11  Processing specific kinds of records.

    DON activities that possess copies or receive requests for the 
following kinds of records shall promptly forward the requests to the 
officials named in this section and if appropriate apprise the requester 
of the referral:
    (a) Classified records. Executive Order 12958 governs the 
classification of records.
    (1) Glomar response. In the instance where a DON activity receives a 
request for records whose existence or nonexistence is itself 
classifiable, the DON activity shall refuse to confirm or deny the 
existence or non-existence of the records. This response is only 
effective as long as it is given consistently. If it were to be known 
that an agency gave a ``Glomar'' response only when records do exist and 
gave a ``no records'' response otherwise, then the purpose of this 
approach would be defeated. A Glomar response is a denial and exemption 
(b)(1) is cited and appeal rights are provided to the requester.
    (2) Processing classified documents originated by another activity. 
DON activities shall refer the request and copies of the classified 
documents to the originating activity for processing. If the originating 
activity simply compiled the classified portions of the document from 
other sources, it shall refer, as necessary, those portions to the 
original classifying authority for their review and release 
determination and apprise that authority of any recommendations they 
have regarding release. If the classification authority for the 
information cannot be determined, then the originator of the compiled 
document has the responsibility for making the final determination. 
Records shall be identified consistent with security requirements. Only 
after consultation and approval from the originating activity, shall the 
requester be apprised of the referral. In most cases, the originating 
activity will make a determination and respond directly to the 
requester. In those instances where the originating activity determines 
a Glomar response is appropriate, the referring agency shall deny the 
request.
    (b) Courts-martial records of trial. The release/denial authority 
for these records is the Office of the Judge Advocate General (Code 20), 
Washington Navy Yard, Building 111, Washington, DC 20374-1111. Promptly 
refer the request and/or documents to this activity and apprise the 
requester of the referral.
    (c) Foreign requests/information. (1) FOIA requests received from 
foreign governments/foreign government officials should be processed as 
follows:
    (i) When a DON activity receives a FOIA request for a record in 
which an affected DoD/DON activity has a substantial interest in the 
subject matter, or the DON activity receives a FOIA request from a 
foreign government, a foreign citizen, or an individual or entity with a 
foreign address, the DON activity receiving the request shall provide a 
copy of the request to the affected DON activity.
    (ii) Upon receiving the request, the affected activity shall review 
the request for host nation relations, coordinate with Department of 
State as appropriate, and if necessary, provide a copy of the request to 
the appropriate foreign disclosure office for review. Upon request by 
the affected activity, the DON activity receiving the initial request 
shall provide a copy of releasable records to the affected activity. The 
affected activity may further release the records to its host nation 
after coordination with Department of State if release is in the best 
interest of the United States Government. If the record is released to 
the host nation government, the affected DON activity shall notify the 
DON activity which initially received the request of the release to the 
host nation.
    (iii) Such processing must be done expeditiously so as not to impede 
the processing of the FOIA request by the DON activity that initially 
received the request.
    (2) Non-U.S. Government Records (i.e., records originated by 
multinational organizations such as the North Atlantic Treaty 
Organization (NATO), the North American Air Defense (NORAD) and foreign 
governments) which are under the possession

[[Page 62]]

and control of DON shall be coordinated prior to a final release 
determination being made. Coordination with foreign governments shall be 
made through the Department of State.
    (d) Government Accounting Office (GAO) documents. (1) On occasion, 
the DON receives FOIA requests for GAO documents containing DON 
information, either directly from requesters or as referrals from GAO. 
Since the GAO is outside of the Executive Branch and therefore not 
subject to FOIA, all FOIA requests for GAO documents containing DON 
information will be processed by the DON under the provisions of the 
FOIA.
    (2) In those instances when a requester seeks a copy of an 
unclassified GAO report, DON activities may apprise the requester of its 
availability from the Director, GAO Distribution Center, ATTN: DHISF, 
P.O. Box 6015, Gaithersburg, MD 20877-1450 under the cash sales program.
    (e) Judge Advocate General Manual (JAGMAN) investigative records. 
These records are no longer centrally processed. Accordingly, requests 
for investigations should be directed to the following officials:
    (1) JAGMAN Investigations conducted prior to 1 Jul 95--to the Judge 
Advocate General (Code 35), Washington Navy Yard, Suite 3000, 1322 
Patterson Avenue, SE, Washington, DC 20374-5066.
    (2) Command Investigation--to the command that conducted the 
investigation.
    (3) Litigation-Report Investigation--to the Judge Advocate General 
(Code 35), Washington Navy Yard, Suite 3000, 1322 Patterson Avenue, SE, 
Washington, DC 20374-5066.
    (4) Court or Board of Inquiry--to the Echelon 2 commander over the 
command that convened the investigation.
    (f) Mailing lists. Numerous FOIA requests are received for mailing 
lists of home addresses or duty addresses of DON personnel. Processing 
of such requests is as follows:
    (1) Home addresses are normally not releasable without the consent 
of the individuals concerned. This includes lists of home addresses and 
military quarters' addresses without the occupant's name (i.e., 
exemption (b)(6) applies).
    (2) Disclosure of lists of names and duty addresses or duty 
telephone numbers of persons assigned to units that are stationed in 
foreign territories, routinely deployable, or sensitive, has also been 
held by the courts to constitute a clearly unwarranted invasion of 
personal privacy and must be withheld from disclosure under 5 U.S.C. 
552(b)(6). General officers and public affairs officers information is 
releasable. Specifically, disclosure of such information poses a 
security threat to those service members because it reveals information 
about their degree of involvement in military actions in support of 
national policy, the type of Navy and/or Marine Corps units to which 
they are attached, and their presence or absence from households. 
Release of such information aids in the targeting of service members and 
their families by terrorists or other persons opposed to implementation 
of national policy. Only an extraordinary public interest in disclosure 
of this information can outweigh the need and responsibility of the DON 
to protect the tranquility and safety of service members and their 
families who repeatedly have been subjected to harassment, threats, and 
physical injury. Units covered by this policy are:
    (i) Those located outside of the 50 States, District of Columbia, 
Commonwealth of Puerto Rico, Guam, U.S. Virgin Islands, and American 
Samoa.
    (ii) Routinely deployable units--Those units that normally deploy 
from homeport or permanent station on a periodic or rotating basis to 
meet operational requirements or participate in scheduled exercises. 
This includes routinely deployable ships, aviation squadrons, 
operational staffs, and all units of the Fleet Marine Force (FMF). 
Routinely deployable units do not include ships undergoing extensive 
yard work or those whose primary mission is support of training, e.g., 
yard craft and auxiliary aircraft landing training ships.
    (iii) Units engaged in sensitive operations. Those primarily 
involved in

[[Page 63]]

training for or conduct of covert, clandestine, or classified missions, 
including units primarily involved in collecting, handling, disposing, 
or storing of classified information and materials. This also includes 
units engaged in training or advising foreign personnel. Examples of 
units covered by this exemption are nuclear power training facilities, 
SEAL Teams, Security Group Commands, Weapons Stations, and 
Communications Stations.
    (3) Except as otherwise provided, lists containing names and duty 
addresses of DON personnel, both military and civilian, who are assigned 
to units in the Continental United States (CONUS) and U.S. territories 
shall be released regardless of who has initiated the request.
    (4) Exceptions to this policy must be coordinated with CNO (N09B30) 
or CMC (ARAD) prior to responding to requests, including those from 
Members of Congress. The policy in paragraphs (f) (1) through (3) should 
be considered when weighing the releasability of the address or 
telephone number of a specifically named individual.
    (5) DON activities are reminded that e-mail addresses that identify 
an individual who is routinely deployable, overseas, or assigned to a 
sensitive unit should not be made available. Additionally, 
organizational charts for these kinds of units and activities that 
identify specific members should not be placed on the Internet.
    (g) Medical quality assurance documents. The Chief, Bureau of 
Medicine and Surgery (BUMED) is the release/denial authority for all 
naval medical quality assurance documents as defined by Title 10, United 
States Code, Section 1102. Requests for medical quality assurance 
documents shall be promptly referred to BUMED and the requester notified 
of the referral.
    (h) Mishap investigation reports (MIRs). The Commander, Naval Safety 
Center (NAVSAFECEN) is the release/denial authority for all requests for 
mishap investigations or documents which contain mishap information. All 
requests or documents located which apply shall be promptly referred to 
the Commander, Naval Safety Center, Code 503, 375 A Street, Norfolk, VA 
23511-4399 for action. Telephonic liaison with NAVSAFECEN is encouraged. 
The requester shall be notified of the referral.
    (i) National Security Council (NSC)/White House. (1) DON activities 
that receive requests for records of NSC, the White House, or the White 
House/Military Office (WHMO) shall process the requests.
    (2) DON records in which the NSC or the White House has a concurrent 
reviewing interest, and NSC, White House, or WHMO records discovered in 
DON activity files, shall be forwarded to CNO (N09B30), 2000 Navy 
Pentagon, Washington, DC 20350-2000. N09B30, in turn, will coordinate 
the request directly with DFOISR, so DFOISR can coordinate the request 
with NSC, White House, or WHMO. After coordination, the records will be 
returned to the DON activity for their direct response to the requester. 
During the interim, DON activities should notify the requester that they 
are coordinating their request and a response will therefore be delayed.
    (j) Naval attache documents/information. The Director, Defense 
Intelligence Agency (DIA) has the responsibility for reviewing for 
release/denial any naval attache-originated documents/information. 
Accordingly, FOIA requests for naval attache documents or copies of the 
documents located in DON files or referred in error to a DON activity 
shall be promptly referred to the Chief, Freedom of Information Act 
Staff, Defense Intelligence Agency (SVI-1), Washington, DC 20340-5100 
for action and direct response to the requester. Ensure that the 
requester is notified in writing of the transfer to DIA.
    (k) Naval Audit Service reports. The Director, Naval Audit Service 
is the release/denial authority for their reports. All requests or 
documents located which apply shall be promptly referred to the 
Director, Naval Audit Service, 5611 Columbia Pike, NASSIF Building, 
Falls Church, VA 22041-5080 for action. The requester shall be notified 
of the referral.
    (l) Naval Criminal Investigative Service (NCIS) reports. The 
Director, NCIS is the release/denial authority for all NCIS reports/
information. All requests for and copies of NCIS reports located in DON 
activity files shall be promptly referred to the Director, NCIS (Code

[[Page 64]]

OOJF), Washington Navy Yard, Building 111, 716 Sicard Street, SE, 
Washington, DC 20388-5380 for action and, if appropriate, the requester 
so notified. Telephonic liaison with NCIS Headquarters is strongly 
encouraged.
    (m) Naval Inspector General (NAVINSGEN) reports. (1) NAVINSGEN is 
the release/denial authority for all investigations and inspections 
conducted by or at the direction of NAVINSGEN and for any records held 
by any command that relate to Navy hotline complaints that have been 
referred to the NAVINSGEN. Accordingly, such actions shall be promptly 
referred to the Naval Inspector General (Code OOL), Building 200, Room 
100, Washington Navy Yard, 901 M Street, SE, Washington, DC 20374-5006 
for action and, if appropriate, the requester so notified.
    (2) Requests for local command inspector general reports which have 
not been referred to NAVINSGEN should be processed by the command that 
conducted the investigation and NAVINSGEN advised as necessary.
    (3) The Deputy Naval Inspector General for Marine Corps Matters 
(DNIGMC) is the release/denial authority for all investigations 
conducted by the DNIGMC. Requests for local Marine Corps command 
Inspector General reports shall be coordinated with the DNIGMC.
    (n) Naval Nuclear Propulsion Information (NNPI). The Director, Naval 
Nuclear Propulsion Program (CNO (NOONB)/NAVSEA (08)) is the release/
denial authority for all information and requests concerning NNPI. Naval 
activities receiving such requests are responsible for searching their 
files for responsive records. If no documents are located, the naval 
activity shall respond to the requester and provide CNO (NOONB) with a 
copy of the request and response. If documents are located, the naval 
activity shall refer the request, responsive documents, and a 
recommendation regarding release to the Director, Naval Nuclear 
Propulsion Program (NOONB), 2000 Navy Pentagon, Washington, DC 20350-
2000, who will make the final release determination to the requester, 
after coordinating the release through DoD activities.
    (o) Naval Telecommunications Procedures (NTP) publications. The 
Commander, Naval Computer and Telecommunications Command is the release/
denial authority for NTP publications. All requests or documents located 
which apply shall be promptly referred to the Commander, Naval Computer 
and Telecommunications Command (Code NOOJ), 4401 Massachusetts Avenue, 
NW, Washington, DC 20394-5460 for action and direct response to the 
requester.
    (p) News media requests. (1) Respond promptly to requests received 
from news media representatives through public information channels, if 
the information is releasable under FOIA. This eliminates the 
requirement to invoke FOIA and may result in timely information being 
made available to the public.
    (2) In those instances where records/information are not releasable, 
either in whole or in part, or are not currently available for a release 
consideration, Public Affairs Officers shall promptly advise the 
requester of where and how to submit a FOIA request.
    (3) DON activities receiving and processing requests from members of 
the press shall ensure that responses are cleared through their public 
affairs channels.
    (q) Records originated by other government agencies. (1) A DON 
activity may refer a FOIA request for any record that originated in an 
agency outside the DON or that is based on information obtained from an 
outside agency to the cognizant agency for direct response to the 
requester after coordination with the outside agency, if that agency is 
subject to FOIA. Otherwise, the DON activity must respond to the 
request.
    (2) A DON activity shall refer to the agency that provided the 
record any FOIA request for investigative, intelligence, or any other 
type of records that are on loan to the DON for a specific purpose, if 
the records are restricted from further release and so marked. However, 
if for investigative or intelligence purposes, the outside agency 
desires anonymity, a DON activity may only respond directly to the 
requester after coordination with the outside agency.

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    (r) Submitter documents. (1) When a request is received for a record 
containing confidential commercial information that was submitted to the 
Government, the requirements of Executive Order 12600 shall apply. 
Specifically, the submitter shall be notified of the request 
(telephonically, by letter, or by facsimile) and afforded a reasonable 
amount of time (anywhere from 2 weeks to a month depending on the 
circumstances) to present any objections concerning release, unless it 
is clear there can be no valid basis for objection. For example, the 
record was provided with actual or presumptive knowledge of the 
submitter that it would be made available to the public upon request.
    (2) The DON activity will evaluate any objections and negotiate with 
the submitter as necessary. When a substantial issue has been raised, 
the DON activity may seek additional information from the submitter and 
afford the submitter and requester reasonable opportunities to present 
their arguments in legal and substantive issues prior to making an 
agency determination.
    (3) The final decision to disclose information claimed to be exempt 
under exemption (b)(4) shall be made by an official at least equivalent 
in rank to the IDA and the submitter advised that he or she may seek a 
restraining order or take court action to prevent the release. The 
submitter is given 10 days to take action.
    (4) Should the submitter take such action, the requester will be 
notified and no action will be taken on the request until the outcome of 
the court action is known.
    (s) Technical Documents Controlled by Distribution Statements B, C, 
D, E, F, or X shall be referred to the controlling DoD office for review 
and release determination.



Sec. 701.12  FOIA appeals/litigation.

    (a) Appellate authorities. SECNAV has delegated his appellate 
authority to the JAG and the DONGC to act on matters under their 
cognizance. Their responsibilities include adjudicating appeals made to 
SECNAV on: denials of requests for copies of DON records or portions 
thereof; disapproval of a fee category claim by a requester; disapproval 
of a request to waive or reduce fees; disputes regarding fee estimates; 
reviewing determinations not to grant expedited access to agency 
records, and reviewing ``no record'' determinations when the requester 
considers such responses adverse in nature. They have the authority to 
release or withhold records, or portions thereof; to waive or reduce 
fees; and to act as required by SECNAV for appeals under 5 U.S.C. 552 
and this instruction. The JAG has further delegated this appellate 
authority to the Assistant Judge Advocate General (Civil Law). The DONGC 
has further delegated this appellate authority to the Principal Deputy 
General Counsel, the Deputy General Counsel, and the Associate General 
Counsel (Management).
    (1) In their capacity, appellate authorities will serve as principal 
points of contact on DON FOIA appeals and litigation; receive and track 
FOIA appeals and ensure responses are made in compliance with 5 U.S.C. 
552, DoD 5400.7 and 5400.7-R, and the instruction in this part; complete 
responsive portions of the Annual FOIA Report that addresses actions on 
appeals and litigation costs during the fiscal year and submit to CNO 
(N09B30); provide CNO (N09B30) with a copy of all appeal determinations 
as they are issued; and keep CNO (N09B30) informed in writing of all 
FOIA lawsuits as they are filed against the DON. Appellate authorities 
shall facsimile a copy of the complaint to CNO (N09B30) for review and 
provide updates to CNO (N09B30) to review and disseminate to DFOISR.
    (2) OGC's cognizance: Legal advice and services to SECNAV and the 
Civilian Executive Assistants on all matters affecting DON; legal 
services in subordinate commands, organizations, and activities in the 
areas of business and commercial law, real and personal property law, 
intellectual property law, fiscal law, civilian personnel and labor law, 
environmental law, and in coordination with the JAG, such other legal 
services as may be required to support the mission of the Navy and the 
Marine Corps, or the discharge of the General Counsel's 
responsibilities; and conducting litigation involving the areas 
enumerated above and oversight of all litigation affecting the DON.

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    (3) JAG's cognizance: In addition to military law, all matters 
except those falling under the cognizance of the DONGC.
    (b) Appellants may file an appeal if they have been denied 
information in whole or in part; have been denied a waiver or reduction 
of fees; have been denied/have not received a response within 20 working 
days; or received a ``no record'' response or wish to challenge the 
``adequacy of a search'' that was made. Appeal procedures also apply to 
the disapproval of a fee category claim by a requester, disputes 
regarding fee estimates, review of an expedited basis determination not 
to grant expedited access to agency records, or any determination found 
to be adverse in nature by the requester.
    (c) Action by the appellate authority. (1) Upon receipt, JAG (34) or 
Assistant to the General Counsel (FOIA) will promptly notify the IDA of 
the appeal. In turn, the IDA will provide the appellate authority with 
the following documents so that a determination can be made: a copy of 
the request, responsive documents both excised and unexcised, a copy of 
the denial letter, and supporting rationale for continued withholding. 
IDAs shall respond to the appellate authority within 10 working days.
    (2) Final determinations on appeals normally shall be made within 20 
working days after receipt. When the appellate authority has a 
significant number of appeals preventing a response determination within 
20 working days, the appeals shall be processed in a multitrack 
processing system based, at a minimum, on the three processing tracks 
established for initial requests.
    (3) If the appeal is received by the wrong appellate authority, the 
time limits do not take effect until it is received by the right one. 
If, however, the time limit for responding cannot be met, the appellate 
authority shall advise the appellant that he/she may consider his/her 
administrative remedies exhausted. However, he/she may await a 
substantive response without prejudicing his/her right of judicial 
remedy. Nonetheless, the appellate authority will continue to process 
the case expeditiously, whether or not the appellant seeks a court order 
for release of records. In such cases, a copy of the response will be 
provided to the Department of Justice (DOJ).
    (d) Addresses for filing appeals. (1) General Counsel of the Navy, 
720 Kennon Street, SE, Room 214, Washington Navy Yard, Washington, DC 
20374-5012, or
    (2) Judge Advocate General, Washington Navy Yard, 1322 Patterson 
Avenue, SE, Suite 3000, Washington, DC 20374-5066.
    (e) Appeal letter requirements. The appellant shall file a written 
appeal with the cognizant appellate authority (i.e., DONGC or JAG). The 
appeal should include a copy of the DON response letter and supporting 
rationale on why the appeal should be granted.
    (f) Consultation/coordination. (1) The Special Assistant for Naval 
Investigative Matters and Security (CNO (N09N)) may be consulted to 
resolve inconsistencies or disputes involving classified records.
    (2) Direct liaison with officials within DON and other interested 
Federal agencies is authorized at the discretion of the appellate 
authority, who also coordinates with appropriate DoD and DOJ officials.
    (3) SECNAV, appropriate Assistant or Deputy Assistant Secretaries, 
and CNO (N09B30) shall be consulted and kept advised of cases with 
unusual implications. CHINFO shall be consulted and kept advised on 
cases involving public affairs implications.
    (4) Final refusal involving issues not previously resolved or that 
the DON appellate authority knows to be inconsistent with rulings of 
other DoD components ordinarily should not be made before consultation 
with the DoD Office of General Counsel (OGC).
    (5) Tentative decisions to deny records that raise new and 
significant legal issues of potential significance to other agencies of 
the Government shall be provided to the DoD OGC.
    (g) Copies of final appeal determinations. Appellate authorities 
shall provide copies of final appeal determinations to the activity 
affected and to CNO (N09B30) as appeals are decided.
    (h) Denying an appeal. The appellate authority must render his/her 
decision in writing with a full explanation as to why the appeal is 
being denied along

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with a detailed explanation of the basis for refusal with regard to the 
applicable statutory exemption(s) invoked. With regard to denials 
involving classified information, the final refusal should explain that 
a declassification review was undertaken and based on the governing 
Executive Order and implementing security classification guides 
(identify the guides), the information cannot be released and that 
information being denied does not contain meaningful portions that are 
reasonably segregable. In all instances, the final denial letter shall 
contain the name and position title of the official responsible for the 
denial and advise the requester of the right to seek judicial review.
    (i) Granting an appeal. The appellate authority must render his/her 
decision in writing. When an appellate authority makes a determination 
to release all or a portion of records withheld by an IDA, a copy of the 
releasable records should be promptly forwarded to the requester after 
compliance with any procedural requirements, such as payment of fees.
    (j) Processing appeals made under PA and FOIA. When denials have 
been made under the provisions of PA and FOIA, and the denied 
information is contained in a PA system of records, the appeal shall be 
processed under both PA and FOIA. If the denied information is not 
maintained in a PA system of records, the appeal shall be processed 
under FOIA.
    (k) Response letters. (1) When an appellate authority makes a final 
determination to release all or portion of records withheld by an IDA, a 
written response and a copy of the records so released should be 
forwarded promptly to the requester after compliance with any 
preliminary procedural requirements, such as payment of fees.
    (2) Final refusal of an appeal must be made in writing by the 
appellate authority or by a designated representative. The response at a 
minimum shall include the following:
    (i) The basis for the refusal shall be explained to the requester in 
writing, both with regard to the applicable statutory exemption or 
exemptions invoked under the provisions of the FOIA, and with respect to 
other issues appealed for which an adverse determination was made.
    (ii) When the final refusal is based in whole or in part on a 
security classification, the explanation shall include a determination 
that the record meets the cited criteria and rationale of the governing 
Executive Order, and that this determination is based on a 
declassification review, with the explanation of how that review 
confirmed the continuing validity of the security classification.
    (iii) The final denial shall include the name and title or position 
of the official responsible for the denial.
    (iv) In the case of appeals for total denial of records, the 
response shall advise the requester that the information being denied 
does not contain meaningful portions that are reasonably segregable.
    (v) When the denial is based upon an exemption (b)(3) statute, the 
response, in addition to citing the statute relied upon to deny the 
information, shall state whether a court has upheld the decision to 
withhold the information under the statute, and shall contain a concise 
description of the scope of the information withheld.
    (vi) The response shall advise the requester of the right to 
judicial review.
    (l) Time limits/requirements. (1) A FOIA appeal has been received by 
a DON activity when it reaches the appellate authority having 
jurisdiction. Misdirected appeals should be referred expeditiously to 
the proper appellate authority.
    (2) The requester shall be advised to file an appeal so that it is 
postmarked no later than 60 calendar days after the date of the initial 
denial letter. If no appeal is received, or if the appeal is postmarked 
after the conclusion of the 60 day period, the case may be considered 
closed. However, exceptions may be considered on a case-by-case basis.
    (3) In cases where the requester is provided several incremental 
determinations for a single request, the time for the appeal shall not 
begin until the date of the final response. Requests and responsive 
records that are denied shall be retained for a period of 6 years to 
meet the statute of limitations requirement.

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    (4) Final determinations on appeals normally shall be made within 20 
working days after receipt. When a DON appellate authority has a 
significant number of appeals preventing a response determination within 
20 working days, the appeals shall be processed in a multitrack 
processing system, based at a minimum on the three processing tracks 
established for initial requests. (See Sec. 701.8(f)).
    (5) If additional time is needed due to unusual circumstances, the 
final decision may be delayed for the number of working days (not to 
exceed 10) that were not used as additional time for responding to the 
initial request.
    (6) If a determination cannot be made and the requester notified 
within 20 working days, the appellate authority shall acknowledge to the 
requester, in writing, the date of receipt of the appeal, the 
circumstances surrounding the delay, and the anticipated date for 
substantive response. Requesters shall be advised that, if the delay 
exceeds the statutory extension provision or is for reasons other than 
the unusual circumstances, they may consider their administrative 
remedies exhausted. They may, however, without prejudicing their right 
of judicial remedy, await a substantive response. The appellate 
authority shall continue to process the case expeditiously.
    (m) FOIA litigation. The appellate authority is responsible for 
providing CNO (N09B30) with a copy of any FOIA litigation filed against 
the DON and any subsequent status of the case. CNO (N09B30) will, in 
turn, forward a copy of the complaint to DFOISR for their review.



                  Subpart B_FOIA Definitions and Terms



Sec. 701.13  5 U.S.C. 552(a)(1) materials.

    Section (a)(1) of the FOIA requires publication in the Federal 
Register of descriptions of agency organizations, functions, substantive 
rules, and statements of general policy.



Sec. 701.14  5 U.S.C. 552(a)(2) materials.

    Section (a)(2) of the FOIA requires that certain materials routinely 
be made available for public inspection and copying. The (a)(2) 
materials are commonly referred to as ``reading room'' materials and are 
required to be indexed to facilitate public inspection. (a)(2) materials 
consist of:
    (a) 5 U.S.C. 552(a)(2)(A) records. Final opinions, including 
concurring and dissenting opinions, and orders made in the adjudication 
of cases, as defined in 5 U.S.C. 551, that may be cited, used, or relied 
upon as precedents in future adjudications.
    (b) 5 U.S.C. 552(a)(2)(B) records. Statements of policy and 
interpretations that have been adopted by the agency and are not 
published in the Federal Register.
    (c) 5 U.S.C. 552(a)(2)(C) records. Administrative staff manuals and 
instructions, or portions thereof, that establish DON policy or 
interpretations of policy that affect a member of the public. This 
provision does not apply to instructions for employees on tactics and 
techniques to be used in performing their duties, or to instructions 
relating only to the internal management of the DON activity. Examples 
of manuals and instructions not normally made available are:
    (1) Those issued for audit, investigation, and inspection purposes, 
or those that prescribe operational tactics, standards of performance, 
or criteria for defense, prosecution, or settlement of cases.
    (2) Operations and maintenance manuals and technical information 
concerning munitions, equipment, systems, and foreign intelligence 
operations.
    (d) 5 U.S.C. 552(a)(2)(D) records. Those (a)(2) records, which 
because of the nature of the subject matter, have become or are likely 
to become the subject of subsequent requests for substantially the same 
records. These records are referred to as FOIA-processed (a)(2) records. 
DON activities shall decide on a case-by-case basis whether records fall 
into this category based on the following factors: previous experience 
of the DON activity with similar records; particular circumstances of 
the records involved, including their nature and the type of information 
contained in them; and/or the identity and number of requesters and 
whether there is widespread press, historic, or commercial interest in 
the records.

[[Page 69]]

    (1) This provision is intended for situations where public access in 
a timely manner is important and it is not intended to apply where there 
may be a limited number of requests over a short period of time from a 
few requesters. DON activities may remove the records from this access 
medium when the appropriate officials determine that access is no longer 
necessary.
    (2) Should a requester submit a FOIA request for FOIA-processed 
(a)(2) records and insist that the request be processed under FOIA, DON 
activities shall process the FOIA request. However, DON activities have 
no obligation to process a FOIA request for (a)(2)(A), (B) and (C) 
records because these records are required to be made public and not 
FOIA-processed under paragraph (a)(3) of the FOIA.
    (e) However, agency records that are withheld under FOIA from public 
disclosure, based on one or more of the FOIA exemptions, do not qualify 
as (a)(2) materials and need not be published in the Federal Register or 
made available in a library reading room.



Sec. 701.15  5 U.S.C. 552(a)(3) materials.

    Agency records which are processed for release under the provisions 
of the FOIA.



Sec. 701.16  Administrative appeal.

    A request made by a FOIA requester asking the appellate authority 
(JAG or OGC) to reverse a decision to: withhold all or part of a 
requested record; deny a fee category claim by a requester; deny a 
request for expedited processing due to demonstrated compelling need; 
deny a request for a waiver or reduction of fees; deny a request to 
review an initial fee estimate; and confirm that no records were located 
during the initial search. FOIA requesters may also appeal a non-
response to a FOIA request within the statutory time limits.



Sec. 701.17  Affirmative information disclosure.

    This is where a DON activity makes records available to the public 
on its own initiative. In such instance, the DON activity has determined 
in advance that a certain type of records or information is likely to be 
of such interest to members of the public, and that it can be disclosed 
without concern for any FOIA exemption sensitivity. Affirmative 
disclosures can be of mutual benefit to both the DON and the members of 
the public who are interested in obtaining access to such information.



Sec. 701.18  Agency record.

    Agency records are either created or obtained by an agency and under 
agency control at the time of the FOIA request. Agency records are 
stored as various kinds of media, such as:
    (a) Products of data compilation (all books, maps, photographs, 
machine readable materials, inclusive of those in electronic form or 
format, or other documentary materials), regardless of physical form or 
characteristics, made or received by an agency of the United States 
Government under Federal law in connection with the transaction of 
public business and in Department of the Navy possession and control at 
the time the FOIA request is made.
    (b) Care should be taken not to exclude records from being 
considered agency records, unless they fall within one of the following 
categories:
    (1) Objects or articles, such as structures, furniture, paintings, 
three-dimensional models, vehicles, equipment, parts of aircraft, ships, 
etc., whatever their historical value or value as evidence.
    (2) Anything that is not a tangible or documentary record, such as 
an individual's memory or oral communication.
    (3) Personal records of an individual not subject to agency creation 
or retention requirements, created and maintained primarily for the 
convenience of an agency employee, and not distributed to other agency 
employees for their official use. Personal papers fall into three 
categories: those created before entering Government service; private 
materials brought into, created, or received in the office that were not 
created or received in the course of transacting Government business, 
and work-related personal papers that are not used in the transaction of 
Government business.

[[Page 70]]

    (4) A record must exist and be in the possession and control of the 
DON at the time of the request to be considered subject to this 
instruction and the FOIA. There is no obligation to create, compile, or 
obtain a record to satisfy a FOIA request.
    (5) Hard copy or electronic records, which are subject to FOIA 
requests under 5 U.S.C. 552(a)(3), and which are available to the public 
through an established distribution system, or through the Federal 
Register, the National Technical Information Service, or the Internet, 
normally need not be processed under the provisions of the FOIA. If a 
request is received for such information, DON activities shall provide 
the requester with guidance, inclusive of any written notice to the 
public, on how to obtain the information. However, if the requester 
insists that the request be processed under the FOIA, then process the 
request under FOIA.



Sec. 701.19  Appellate authority.

    SECNAV has delegated the OGC and JAG to review administrative 
appeals of denials of FOIA requests on his behalf and prepare agency 
paperwork for use by the DOJ in defending a FOIA lawsuit. JAG is further 
authorized to delegate this authority to a designated Assistant JAG. The 
authority of OGC is further delegated to the Principal Deputy General 
Counsel, the Deputy General Counsel, and the Associate General Counsel 
(Management).



Sec. 701.20  Discretionary disclosure.

    The decision to release information that could qualify for 
withholding under a FOIA exemption, but upon review the determination 
has been made that there is no foreseeable harm to the Government for 
releasing such information. Discretionary disclosures do not apply to 
exemptions (b)(1), (b)(3), (b)(4), (b)(6) and (b)(7)(C).



Sec. 701.21  Electronic record.

    Records (including e-mail) which are created, stored, and retrieved 
by electronic means.



Sec. 701.22  Exclusions.

    The FOIA contains three exclusions (c)(1), (c)(2) and (c)(3) which 
expressly authorize Federal law enforcement agencies for especially 
sensitive records under certain specified circumstances to treat the 
records as not subject to the requirements of the FOIA.



Sec. 701.23  Executive Order 12958.

    Revoked Executive Order 12356 on October 14, 1995 and is the basis 
for claiming that information is currently and properly classified under 
(b)(1) exemption of the FOIA. It sets forth new requirements for 
classifying and declassifying documents. It recognizes both the right of 
the public to be informed about the activities of its government and the 
need to protect national security information from unauthorized or 
untimely disclosure.



Sec. 701.24  Federal agency.

    A Federal agency is any executive department, military department, 
Government corporation, Government-controlled corporation, or other 
establishment in the executive branch of the Government (including the 
Executive Office of the President), or any independent regulatory 
agency.



Sec. 701.25  5 U.S.C. 552, Freedom of Information Act (FOIA).

    An access statute that pertains to agency records of the Executive 
Branch of the Federal Government, including the Executive Office of the 
President and independent regulatory agencies.

    Note to Sec. 701.25: Records maintained by State governments, 
municipal corporations, by the courts, by Congress, or by companies and 
private citizens do not fall under this Federal statute.



Sec. 701.26  FOIA exemptions.

    There are nine exemptions that identify certain kinds of records/
information that qualify for withholding under FOIA. See subpart D of 
this part for a detailed explanation of each exemption.



Sec. 701.27  FOIA fee terms location.

    The FOIA fee terms can be found in subpart C of this part.



Sec. 701.28  FOIA request.

    A written request for DON records, made by ``any person'' including 
a

[[Page 71]]

member of the public (U.S. or foreign citizen/entity), an organization, 
or a business, but not including a Federal agency or a fugitive from the 
law that either explicitly or implicitly invokes the FOIA by citing DoD 
FOIA regulations or the instruction in this part. FOIA requests can be 
made for any purpose whatsoever, with no showing of relevancy required. 
Because the purpose for which records are sought has no bearing on the 
merits of the request, FOIA requesters do not have to explain or justify 
their requests. Written requests may be received by postal service or 
other commercial delivery means, by facsimile or electronically.



Sec. 701.29  Glomar response.

    Refusal by the agency to either confirm or deny the existence or 
non-existence of records responsive to a FOIA request. See exemptions 
(b)(1), (b)(6), and (b)(7)(C) at subpart D of this part.



Sec. 701.30  Initial Denial Authority (IDA).

    SECNAV has delegated authority to a limited number of officials to 
act on his behalf to withhold records under their cognizance that are 
requested under the FOIA for one or more of the nine categories of 
records exempt from mandatory disclosure; to deny a fee category claim 
by a requester; to deny a request for expedited processing due to 
demonstrated compelling need; to deny or grant a request for waiver or 
reduction of fees when the information sought relates to matters within 
their respective geographical areas of responsibility or chain of 
command; fees; to review a fee estimate; and to confirm that no records 
were located in response to a request. IDAs may also grant access to 
requests.



Sec. 701.31  Mosaic or compilation response.

    The concept that apparently harmless pieces of information when 
assembled together could reveal a damaging picture. See exemption (b)(1) 
at subpart D of this part.



Sec. 701.32  Perfected request.

    A request which meets the minimum requirements of the FOIA to be 
processed and is received by the DON activity having possession and 
control over the documents/information.



Sec. 701.33  Public domain.

    Agency records released under the provisions of FOIA and the 
instruction in this part to a member of the public.



Sec. 701.34  Public interest.

    The interest in obtaining official information that sheds light on a 
DON activity's performance of its statutory duties because the 
information falls within the statutory purpose of the FOIA to inform 
citizens what their government is doing. That statutory purpose, 
however, is not fostered by disclosure of information about private 
citizens accumulated in various governmental files that reveals nothing 
about an agency's or official's own conduct.



Sec. 701.35  Reading room.

    Location where (a)(2) materials are made available for public 
inspection and copying.



Sec. 701.36  Release authorities.

    Commanding officers and heads of Navy and Marine Corps shore 
activities or their designees are authorized to grant requests on behalf 
of SECNAV for agency records under their possession and control for 
which no FOIA exemption applies. As necessary, they will coordinate 
releases with other officials who may have an interest in the 
releasability of the record.



Sec. 701.37  Reverse FOIA.

    When the ``submitter'' of information, usually a corporation or 
other business entity, that has supplied the agency with data on its 
policies, operations and products, seeks to prevent the agency that 
collected the information from revealing the data to a third party in 
response to the latter's FOIA request.



Sec. 701.38  Technical data.

    Recorded information, regardless of form or method of the recording, 
of a scientific or technical nature (including computer software 
documentation).

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Sec. 701.39  Vaughn index.

    Itemized index, correlating each withheld document (or portion) with 
a specific FOIA exemption(s) and the relevant part of the agency's 
nondisclosure justification. The index may contain such information as: 
date of document; originator; subject/title of document; total number of 
pages reviewed; number of pages of reasonably segregable information 
released; number of pages denied; exemption(s) claimed; justification 
for withholding; etc. FOIA requesters are not entitled to a Vaughn index 
during the administrative process.



                           Subpart C_FOIA Fees



Sec. 701.40  Background.

    (a) The DON follows the uniform fee schedule developed by DoD and 
established to conform with the Office of Management and Budget's 
(OMB's) Uniform Freedom of Information Act Fee Schedule and Guidelines.
    (b) Fees reflect direct costs for search; review (in the case of 
commercial requesters); and duplication of documents, collection of 
which is permitted by the FOIA. They are neither intended to imply that 
fees must be charged in connection with providing information to the 
public in the routine course of business, nor are they meant as a 
substitute for any other schedule of fees, which does not supersede the 
collection of fees under the FOIA.
    (c) FOIA fees do not supersede fees chargeable under a statute 
specifically providing for setting the level of fees for particular 
types of records. For example, 5 U.S.C. 552 (a)(4)(A)(vi) enables a 
Government agency such as the Government Printing Office (GPO) or the 
National Technical Information Service (NTIS), to set and collect fees. 
DON activities should ensure that when documents that would be 
responsive to a request are maintained for distribution by agencies 
operating statutory-based fee schedule programs, such as GPO or NTIS, 
they inform requesters of the steps necessary to obtain records from 
those sources.



Sec. 701.41  FOIA fee terms.

    (a) Direct costs means those expenditures a DON activity actually 
makes in searching for, reviewing (in the case of commercial 
requesters), and duplicating documents to respond to a FOIA request. 
Direct costs include, for example, the salary of the employee performing 
the work (the basic rate of pay for the employee plus 16 percent of that 
rate to cover benefits), and the costs of operating duplicating 
machinery. These factors have been included in the fee rates prescribed 
in this subpart. Not included in direct costs are overhead expenses such 
as costs of space, heating or lighting the facility in which the records 
are stored.
    (b) Duplication refers to the process of making a copy of a document 
in response to a FOIA request. Such copies can take the form of paper 
copy, microfiche, audiovisual, or machine readable documentation (e.g., 
magnetic tape or disc), among others. Every effort will be made to 
ensure that the copy provided is in a form that is reasonably usable, 
the requester shall be notified that the copy provided is the best 
available, and that the activity's master copy shall be made available 
for review upon appointment. For duplication of computer tapes and 
audiovisual, the actual cost, including the operator's time, shall be 
charged. In practice, if a DON activity estimates that assessable 
duplication charges are likely to exceed $25.00, it shall notify the 
requester of the estimate, unless the requester has indicated in advance 
his or her willingness to pay fees as high as those anticipated. Such a 
notice shall offer a requester the opportunity to confer with activity 
personnel with the object of reformulating the request to meet his or 
her needs at a lower cost.
    (c) Review refers to the process of examining documents located in 
response to a FOIA request to determine whether one or more of the 
statutory exemptions permit withholding. It also includes processing the 
documents for disclosure, such as excising them for release. Review does 
not include the time spent resolving general legal or policy issues 
regarding the application of exemptions. It should be noted that charges 
for commercial requesters may

[[Page 73]]

be assessed only for the initial review. DON activities may not charge 
for reviews required at the administrative appeal level of an exemption 
already applied. However, records or portions of records withheld in 
full under an exemption that is subsequently determined not to apply may 
be reviewed again to determine the applicability of other exemptions not 
previously considered. The costs for such a subsequent review would be 
properly assessable.
    (d) Search refers to time spent looking, both manually and 
electronically, for material that is responsive to a request. Search 
also includes a page-by-page or line-by-line identification (if 
necessary) of material in the record to determine if it, or portions 
thereof are responsive to the request. DON activities should ensure that 
searches are done in the most efficient and least expensive manner so as 
to minimize costs for both the activity and the requester. For example, 
activities should not engage in line-by-line searches when duplicating 
an entire document known to contain responsive information would prove 
to be the less expensive and quicker method of complying with the 
request. Time spent reviewing documents in order to determine whether to 
apply one or more of the statutory exemptions is not search time, but 
review time.
    (1) DON activities may charge for time spent searching for records, 
even if that search fails to locate records responsive to the request.
    (2) DON activities may also charge search and review (in the case of 
commercial requesters) time if records located are determined to be 
exempt from disclosure.
    (3) In practice, if the DON activity estimates that search charges 
are likely to exceed $25.00, it shall notify the requester of the 
estimated amount of fees, unless the requester has indicated in advance 
his or her willingness to pay fees as high as those anticipated. Such a 
notice shall offer the requester the opportunity to confer with activity 
personnel with the object of reformulating the request to meet his or 
her needs at a lower cost.



Sec. 701.42  Categories of requesters--applicable fees.

    (a) Commercial requesters refers to a request from, or on behalf of 
one who seeks information for a use or purpose that furthers the 
commercial, trade, or profit interest of the requester or the person on 
whose behalf the request is made. In determining whether a requester 
properly belongs in this category, DON activities must determine the use 
to which a requester will put the documents requested. More over, where 
an activity has reasonable cause to doubt the use to which a requester 
will put the records sought, or where that use is not clear from the 
request itself, it should seek additional clarification before assigning 
the request to a specific category.
    (1) Fees shall be limited to reasonable standard charges for 
document search, review and duplication when records are requested for 
commercial use. Requesters must reasonably describe the records sought.
    (2) When DON activities receive a request for documents for 
commercial use, they should assess charges which recover the full direct 
costs of searching for, reviewing for release, and duplicating the 
records sought. Commercial requesters (unlike other requesters) are not 
entitled to 2 hours of free search time, nor 100 free pages of 
reproduction of documents. Moreover, commercial requesters are not 
normally entitled to a waiver or reduction of fees based upon an 
assertion that disclosure would be in the public interest. However, 
because use is the exclusive determining criteria, it is possible to 
envision a commercial enterprise making a request that is not for 
commercial use. It is also possible that a non-profit organization could 
make a request that is for commercial use. Such situations must be 
addressed on a case-by-case basis.
    (b) Educational Institution refers to a pre-school, a public or 
private elementary or secondary school, an institution of graduate high 
education, an institution of undergraduate higher education, an 
institution of professional education, and an institution of vocational 
education, which operates a program or programs of scholarly research.

[[Page 74]]

    (1) Fees shall be limited to only reasonable standard charges for 
document duplication (excluding charges for the first 100 pages) when 
the request is made by an educational institution whose purpose is 
scholarly research. Requesters must reasonably describe the records 
sought.
    (2) Requesters must show that the request is being made under the 
auspices of a qualifying institution and that the records are not sought 
for commercial use, but in furtherance of scholarly research.
    (3) Fees shall be waived or reduced in the public interest if 
criteria of Sec. 701.58 have been met.
    (c) Non-commercial Scientific Institution refers to an institution 
that is not operated on a ``commercial'' basis and that is operated 
solely for the purpose of conducting scientific research, the results of 
which are not intended to promote any particular product or industry.
    (1) Fees shall be limited to only reasonable standard charges for 
document duplication (excluding the first 100 pages) when the request is 
made by a non-commercial scientific institution whose purpose is 
scientific research. Requesters must reasonably describe the records 
sought.
    (2) Requesters must show that the request is being made under the 
auspices of a qualifying institution and that the records are not sought 
for commercial use, but in furtherance of or scientific research.
    (d) Representative of the news media. (1) Refers to any person 
actively gathering news for an entity that is organized and operated to 
publish or broadcast news to the public. The term ``news'' means 
information that is about current events or that would be of current 
interest to the public. Examples of news media entities include 
television or radio stations broadcasting to the public at large, and 
publishers of periodicals (but only in those instances when they can 
qualify as disseminators of ``news'') who make their products available 
for purchase or subscription by the general public. These examples are 
not meant to be all-inclusive. Moreover, as traditional methods of news 
delivery evolve (e.g., electronic dissemination of newspapers through 
telecommunications services), such alternative media would be included 
in this category. In the case of ``freelance'' journalists, they may be 
regarded as working for a news organization if they can demonstrate a 
solid basis for expecting publication through that organization, even 
though not actually employed by it. A publication contract would be the 
clearest proof, but DON activities may also look to the past publication 
record of a requester in making this determination.
    (2) To be eligible for inclusion in this category, a requester must 
meet the criteria established in paragraph (d)(1), and his or her 
request must not be made for commercial use. A request for records 
supporting the news dissemination function of the requester shall not be 
considered to be a request that is for a commercial use. For example, a 
document request by a newspaper for records relating to the 
investigation of a defendant in a current criminal trial of public 
interest could be presumed to be a request from an entity eligible for 
inclusion in this category, and entitled to records at the cost of 
reproduction alone (excluding charges for the first 100 pages).
    (3) Representative of the news media does not include private 
libraries, private repositories of Government records, information 
vendors, data brokers or similar marketers of information whether to 
industries and businesses, or other entities.
    (4) Fees shall be limited to only reasonable standard charges for 
document duplication (excluding charges for the first 100 pages) when 
the request is made by a representative of the news media. Requesters 
must reasonably describe the records sought. Fees shall be waived or 
reduced if the fee waiver criteria have been met.
    (e) All other requesters. DON activities shall charge requesters who 
do not fit into any of the categories described in paragraph (a) through 
(d) fees which recover the full direct cost of searching for and 
duplicating records, except that the first 2 hours of search time and 
the first 100 pages of duplication shall be furnished without charge. 
Requesters must reasonably describe the records sought. Requests from 
subjects about themselves will continue to be treated

[[Page 75]]

under the fee provisions of the Privacy Act of 1974, which permit fees 
only for duplication. DON activities are reminded that this category of 
requester may also be eligible for a waiver or reduction of fees if 
disclosure of the information is in the public interest.



Sec. 701.43  Fee declarations.

    Requesters should submit a fee declaration appropriate for the 
categories in paragraphs (a) through (c) of this section, if fees are 
expected to exceed the minimum fee threshold of $15.00.
    (a) Commercial. Requesters should indicate a willingness to pay all 
search, review and duplication costs.
    (b) Educational or noncommercial scientific institution or news 
media. Requesters should indicate a willingness to pay duplication 
charges in excess of 100 pages if more than 100 pages of records are 
desired.
    (c) All others. Requesters should indicate a willingness to pay 
assessable search and duplication costs if more than 2 hours of search 
effort or 100 pages of records are desired.
    (d) If the conditions in paragraphs (a) through (c) are not met, 
then the request need not be processed and the requester shall be so 
informed.



Sec. 701.44  Restrictions.

    (a) No fees may be charged by any DON activity if the costs of 
routine collection and processing of the fee are likely to equal or 
exceed the amount of the fee. With the exception of requesters seeking 
documents for a commercial use, activities shall provide the first 2 
hours of search time, and the first 100 pages of duplication without 
charge. For example, for a request (other than one from a commercial 
requester) that involved 2 hours and 10 minutes of search time, and 
resulted in 105 pages of documents, an activity would determine the cost 
of only 10 minutes of search time, and only five pages of reproduction. 
If this processing cost was equal to, or less than, the cost to the 
activity for billing the requester and processing the fee collected, no 
charges would result.
    (b) Requesters receiving the first 2 hours of search and the first 
100 pages of duplication without charge are entitled to such only once 
per request. Consequently, if a DON activity, after completing its 
portion of a request, finds it necessary to refer the request to a 
subordinate office, another DON activity, or another Federal agency to 
action their portion of the request, the referring activity shall inform 
the recipient of the referral of the expended amount of search time and 
duplication cost to date.
    (c) The elements to be considered in determining the ``cost of 
collecting a fee'' are the administrative costs to the DON activity of 
receiving and recording a remittance, and processing the fee for deposit 
in the Department of Treasury's special account. The cost to the 
Department of Treasury to handle such remittance is negligible and shall 
not be considered in activity determinations.
    (d) For the purposes of the restrictions in this section, the word 
``pages'' refers to paper copies of a standard size, which will normally 
be ``8\1/2\x11'' or ``11x14.'' Thus, requesters would not be entitled to 
100 microfiche or 100 computer disks, for example. A microfiche 
containing the equivalent of 100 pages or 100 pages of computer printout 
however, might meet the terms of the restriction.
    (e) In the case of computer searches, the first 2 free hours will be 
determined against the salary scale of the individual operating the 
computer for the purposes of the search. As an example, when the direct 
costs of the computer central processing unit, input-output devices, and 
memory capacity equal $24.00 (2 hours of equivalent search at the 
clerical level), amounts of computer costs in excess of that amount are 
chargeable as computer search time. In the event the direct operating 
cost of the hardware configuration cannot be determined, computer search 
shall be based on the salary scale of the operator executing the 
computer search.



Sec. 701.45  Fee assessment.

    (a) Fees may not be used to discourage requesters, and to this end, 
FOIA fees are limited to standard charges for direct document search, 
review (in the case of commercial requesters) and duplication.

[[Page 76]]

    (b) In order to be as responsive as possible to FOIA requests while 
minimizing unwarranted costs to the taxpayer, DON activities shall 
analyze each request to determine the category of the requester. If the 
activity's determination regarding the category of the requester is 
different than that claimed by the requester, the activity shall:
    (1) Notify the requester to provide additional justification to 
warrant the category claimed, and that a search for responsive records 
will not be initiated until agreement has been attained relative to the 
category of the requester. Absent further category justification from 
the requester, and within a reasonable period of time (i.e., 30 calendar 
days), the DON activity shall render a final category determination, and 
notify the requester of such determination, to include normal 
administrative appeal rights of the determination.
    (2) Advise the requester that, notwithstanding any appeal, a search 
for responsive records will not be initiated until the requester 
indicates a willingness to pay assessable costs appropriate for the 
category determined by the activity.
    (c) Estimate of fees. DON activities must be prepared to provide an 
estimate of assessable fees if desired by the requester. While it is 
recognized that search situations will vary among activities, and that 
an estimate is often difficult to obtain prior to an actual search, 
requesters who desire estimates are entitled to such before committing 
to a willingness to pay. Should the activity's actual costs exceed the 
amount of the estimate or the amount agreed to by the requester, the 
amount in excess of the estimate or the requester's agreed amount shall 
not be charged without the requester's agreement.
    (d) Advance payment of fees. DON activities may not require advance 
payment of any fee (i.e., before work is commenced or continued on a 
request) unless the requester has failed to pay fees in a timely fashion 
(i.e., 30 calendar days from the date of the assessed billing in 
writing), or the activity has determined that the fee will exceed 
$250.00.
    (e) When a DON activity estimates or determines that allowable 
charges that a requester may be required to pay are likely to exceed 
$250.00, the activity shall notify the requester of the likely cost and 
obtain satisfactory assurance of full payment where the requester has a 
history of prompt payments, or require an advance payment of an amount 
up to the full estimated charges in the case of requesters with no 
payment history.
    (f) Where a requester has previously failed to pay a fee charged in 
a timely fashion (i.e., within 30 calendar days from the date of the 
billing), the DON activity may require the requester to pay the full 
amount owed, plus any applicable interest, or demonstrate that he or she 
has paid the fee, and to make an advance payment of the full amount of 
the estimated fee before the DON activity begins to process a new or 
pending request from the requester. Interest will be at the rate 
prescribed by 31 U.S.C. 3737 and confirmed with respective finance and 
accounting offices.
    (g) After all the work is completed on a request, and the documents 
are ready for release, DON activities may require payment before 
forwarding the documents, particularly for those requesters who have no 
payment history, or for those requesters who have failed to previously 
pay a fee in a timely fashion (i.e., within 30 calendar days from the 
date of the billing).
    (h) DON activities may charge for time spent searching for records, 
even if that search fails to locate records responsive to the request. 
DON activities may also charge search and review (in the case of 
commercial requesters) time if records located are determined to be 
exempt from disclosure. In practice, if the DON activity estimates that 
search charges are likely to exceed $25.00, it shall notify the 
requester of the estimated amount of fees, unless the requester has 
indicated in advance his or her willingness to pay fees as high as those 
anticipated. Such a notice shall offer the requester the opportunity to 
confer with activity personnel with the object of reformulating the 
request to meet his or her needs at a lower cost.



Sec. 701.46  Aggregating requests.

    Except for requests that are for a commercial use, a DON activity 
may not charge for the first 2 hours of

[[Page 77]]

search time or for the first 100 pages of reproduction. However, a 
requester may not file multiple requests at the same time, each seeking 
portions of a document or documents, solely in order to avoid payment of 
fees. When an activity reasonably believes that a requester or, on rare 
occasions, a group of requesters acting in concert, is attempting to 
break a request down into a series of requests for the purpose of 
avoiding the assessment of fees, the activity may aggregate any such 
requests and charge accordingly. One element to be considered in 
determining whether a belief would be reasonable is the time period in 
which the requests have occurred. For example, it would be reasonable to 
presume that multiple requests of this type made within a 30-day period 
had been made to avoid fees. For requests made over a longer period 
however, such a presumption becomes harder to sustain and activities 
should have a solid basis for determining that aggregation is warranted 
in such cases. DON activities are cautioned that before aggregating 
requests from more than one requester, they must have a concrete basis 
on which to conclude that the requesters are acting in concert and are 
acting specifically to avoid payment of fees. In no case may an activity 
aggregate multiple requests on unrelated subjects.



Sec. 701.47  FOIA fees must be addressed in response letters.

    DON activities shall ensure that requesters receive a complete 
breakout of all fees which are charged and apprised of the ``Category'' 
in which they have been placed. For example: ``We are treating you as an 
`All Other Requester.' As such, you are entitled to 2 free hours of 
search and 100 pages of reproduction, prior to any fees being assessed. 
We have expended an additional 2 hours of search at $25.00 per hour and 
an additional 100 pages of reproduction, for a total fee of $65.00.''



Sec. 701.48  Fee waivers.

    Documents shall be furnished without charge, or at a charge reduced 
below fees assessed to the categories of requesters, when the DON 
activity determines that waiver or reduction of the fees is in the 
public interest because furnishing the information is likely to 
contribute significantly to public understanding of the operations or 
activities of the DON/DoD and is not primarily in the commercial 
interest of the requester. When assessable costs for a FOIA request 
total $15.00 or less, fees shall be waived automatically for all 
requesters, regardless of category. Decisions to waive or reduce fees 
that exceed the automatic waiver threshold shall be made on a case-by-
case basis, consistent with the following factors:
    (a) Disclosure of the information ``is in the public interest 
because it is likely to contribute significantly to public understanding 
of the operations or activities of the Government.''
    (b) The subject of the request. DON activities should analyze 
whether the subject matter of the request involves issues that will 
significantly contribute to the public understanding of the operations 
or activities of the DON/DoD. Requests for records in the possession of 
the DON which were originated by non-government organizations and are 
sought for their intrinsic content, rather than informative value, will 
likely not contribute to public understanding of the operations or 
activities of the DON/DoD. An example of such records might be press 
clippings, magazine articles, or records forwarding a particular opinion 
or concern from a member of the public regarding a DON/DoD activity. 
Similarly, disclosures of records of considerable age may or may not 
bear directly on the current activities of the DON/DoD, however, the age 
of a particular record shall not be the sole criteria for denying 
relative significance under this factor. It is possible to envisage an 
informative issue concerning the current activities of the DON/DoD, 
based upon historical documentation. Requests of this nature must be 
closely reviewed consistent with the requester's stated purpose for 
desiring the records and the potential for public understanding of the 
operations and activities of the DON/DoD.
    (c) The informative value of the information to be disclosed. This 
factor requires a close analysis of the substantive contents of a 
record, or portion of the record, to determine whether disclosure is 
meaningful, and shall

[[Page 78]]

inform the public on the operations or activities of the DON. While the 
subject of a request may contain information that concerns operations or 
activities of the DON, it may not always hold great potential for 
contributing to a meaningful understanding of these operations or 
activities. An example of such would be a previously released record 
that has been heavily redacted, the balance of which may contain only 
random words, fragmented sentences, or paragraph headings. A 
determination as to whether a record in this situation will contribute 
to the public understanding of the operations or activities of the DON 
must be approached with caution and carefully weighed against the 
arguments offered by the requester. Another example is information 
already known to be in the public domain. Disclosure of duplicative or 
nearly identical information already existing in the public domain may 
add no meaningful new information concerning the operations and 
activities of the DON.
    (d) The contribution to an understanding of the subject by the 
general public likely to result from disclosure. The key element in 
determining the applicability of this factor is whether disclosure will 
inform, or have the potential to inform, the public rather than simply 
the individual requester or small segment of interested persons. The 
identity of the requester is essential in this situation in order to 
determine whether such requester has the capability and intention to 
disseminate the information to the public. Mere assertions of plans to 
author a book, researching a particular subject, doing doctoral 
dissertation work, or indigence are insufficient without demonstrating 
the capacity to further disclose the information in a manner that will 
be informative to the general public. Requesters should be asked to 
describe their qualifications, the nature of their research, the purpose 
of the requested information, and their intended means of dissemination 
to the public.
    (e) The significance of the contribution to public understanding. In 
applying this factor, DON activities must differentiate the relative 
significance or impact of the disclosure against the current level of 
public knowledge, or understanding which exists before the disclosure. 
In other words, will disclosure on a current subject of wide public 
interest be unique in contributing previously unknown facts, thereby 
enhancing public knowledge, or will it basically duplicate what is 
already known by the general public? A decision regarding significance 
requires objective judgment, rather than subjective determination, and 
must be applied carefully to determine whether disclosure will likely 
lead to a significant public understanding of the issue. DON activities 
shall not make value judgments as to whether the information is 
important enough to be made public.
    (f) Disclosure of the information ``is not primarily in the 
commercial interest of the requester.''
    (1) The existence and magnitude of a commercial interest. If the 
request is determined to be of a commercial interest, DON activities 
should address the magnitude of that interest to determine if the 
requester's commercial interest is primary, as opposed to any secondary 
personal or non-commercial interest. In addition to profit-making 
organizations, individual persons or other organizations may have a 
commercial interest in obtaining certain records. Where it is difficult 
to determine whether the requester is of a commercial nature, DON 
activities may draw inference from the requester's identity and 
circumstances of the request. Activities are reminded that in order to 
apply the commercial standards of the FOIA, the requester's commercial 
benefit must clearly override any personal or non-profit interest.
    (2) The primary interest in disclosure. Once a requester's 
commercial interest has been determined, DON activities should then 
determine if the disclosure would be primarily in that interest. This 
requires a balancing test between the commercial interest of the request 
against any public benefit to be derived as a result of that disclosure. 
Where the public interest is served above and beyond that of the 
requester's commercial interest, a waiver or reduction of fees would be 
appropriate. Conversely, even if a significant public

[[Page 79]]

interest exists, and the relative commercial interest of the requester 
is determined to be greater than the public interest, then a waiver or 
reduction of fees would be inappropriate. As examples, news media 
organizations have a commercial interest as business organizations; 
however, their inherent role of disseminating news to the general public 
can ordinarily be presumed to be of a primary interest. Therefore, any 
commercial interest becomes secondary to the primary interest in serving 
the public. Similarly, scholars writing books or engaged in other forms 
of academic research may recognize a commercial benefit, either 
directly, or indirectly (through the institution they represent); 
however, normally such pursuits are primarily undertaken for educational 
purposes, and the application of a fee charge would be inappropriate. 
Conversely, data brokers or others who merely compile government 
information for marketing can normally be presumed to have an interest 
primarily of a commercial nature.
    (g) The factors and examples used in this section are not all 
inclusive. Each fee decision must be considered on a case-by-case basis 
and upon the merits of the information provided in each request. When 
the element of doubt as to whether to charge or waive the fee cannot be 
clearly resolved, DON activities should rule in favor of the requester.
    (h) The following additional circumstances describe situations where 
waiver or reduction of fees are most likely to be warranted:
    (1) A record is voluntarily created to prevent an otherwise 
burdensome effort to provide voluminous amounts of available records, 
including additional information not requested.
    (2) A previous denial of records is reversed in total, or in part, 
and the assessable costs are not substantial (e.g. $15.00-$30.00).



Sec. 701.49  Payment of fees.

    (a) Normally, fees will be collected at the time of providing the 
documents to the requester when the requester specifically states that 
the costs involved shall be acceptable or acceptable up to a specified 
limit that covers the anticipated costs, and the fees do not exceed 
$250.00.
    (b) However, after all work is completed on a request, and the 
documents are ready for release, DON activities may request payment 
before forwarding the documents, particularly for those requesters who 
have no payment history, or for those requesters who have failed 
previously to pay a fee in a timely fashion (i.e., within 30 calendar 
days from the date of the billing).
    (c) When a DON activity estimates or determines that allowable 
charges that a requester may be required to pay are likely to exceed 
$250.00, the activity shall notify the requester of the likely cost and 
obtain satisfactory assurance of full payment where the requester has a 
history of prompt payments, or require an advance payment of an amount 
up to the full estimated charges in the case of requesters with no 
history of payment.
    (d) Advance payment of a fee is also applicable when a requester has 
previously failed to pay fees in a timely fashion (i.e., 30 calendar 
days) after being assessed in writing by the activity. Further, where a 
requester has previously failed to pay a fee charged in a timely fashion 
(i.e., within 30 calendar days from the date of the billing), the DON 
activity may require the requester to pay the full amount owed, plus any 
applicable interest, or demonstrate that he or she has paid the fee, and 
to make an advance payment of the full amount of the estimated fee 
before the activity begins to process a new or pending request from the 
requester. Interest will be at the rate prescribed in 31 U.S.C. 3717 and 
confirmed with respective finance and accounting offices.



Sec. 701.50  Effect of the Debt Collection Act of 1982.

    The Debt Collection Act of 1982 (Pub. L. 97-365) provides for a 
minimum annual rate of interest to be charged on overdue debts owed the 
Federal Government. DON activities may levy this interest penalty for 
any fees that remain outstanding 30 calendar days from the date of 
billing (the first demand notice) to the requester of the amount owed. 
The interest rate shall

[[Page 80]]

be as prescribed in 31 U.S.C. 3717. DON activities should verify the 
current interest rate with respective finance and accounting offices. 
After one demand letter has been sent and 30 calendar days have lapsed 
with no payment, DON activities may submit the debt to respective 
finance and accounting offices for collection.



Sec. 701.51  Refunds.

    In the event that a DON activity discovers that it has overcharged a 
requester or a requester has overpaid, the DON activity shall promptly 
refund the charge to the requester by reimbursement methods that are 
agreeable to the requester and the activity.



Sec. 701.52  Computation of fees.

    (a) It is imperative that DON activities compute all fees to ensure 
accurate reporting in the Annual FOIA Report, but ensure that only 
applicable fees be charged to the requester. For example, although we 
calculate correspondence and preparation costs, these fees are not 
recoupable from the requester.
    (b) DD 2086, Record of Freedom of Information (FOI) Processing Cost, 
should be filled out accurately to reflect all processing costs, as 
requesters may solicit a copy of that document to ensure accurate 
computation of fees. Costs shall be computed on time actually spent. 
Neither time-based nor dollar-based minimum charges for search, review 
and duplication are authorized.



Sec. 701.53  FOIA fee schedule.

    The following fee schedule shall be used to compute the search, 
review (in the case of commercial requesters) and duplication costs 
associated with processing a given FOIA request. The appropriate fee 
category of the requester shall be applied before computing fees.
    (a) Manual search.

------------------------------------------------------------------------
                                                                  Hourly
               Type                            Grade               rate
------------------------------------------------------------------------
Clerical.........................  E9/GS8 and below............   $12.00
Professional.....................  O1-O6/GS9-GS15..............    25.00
Executive........................  O7/GS16/ES1 and above.......    45.00
------------------------------------------------------------------------

    (b) Computer search. Fee assessments for computer search consist of 
two parts; individual time (hereafter referred to as human time) and 
machine time.
    (1) Human time. Human time is all the time spent by humans 
performing the necessary tasks to prepare the job for a machine to 
execute the run command. If execution of a run requires monitoring by a 
human, that human time may be also assessed as computer search. The 
terms ``programmer/operator'' shall not be limited to the traditional 
programmers or operators. Rather, the terms shall be interpreted in 
their broadest sense to incorporate any human involved in performing the 
computer job (e.g. technician, administrative support, operator, 
programmer, database administrator, or action officer).
    (2) Machine time. Machine time involves only direct costs of the 
central processing unit (CPU), input/output devices, and memory capacity 
used in the actual computer configuration. Only this CPU rate shall be 
charged. No other machine-related costs shall be charged. In situations 
where the capability does not exist to calculate CPU time, no machine 
costs can be passed on to the requester. When CPU calculations are not 
available, only human time costs shall be assessed to requesters. Should 
DON activities lease computers, the services charged by the lessor shall 
not be passed to the requester under the FOIA.
    (c) Duplication.

------------------------------------------------------------------------
                   Type                             Cost per page
------------------------------------------------------------------------
Pre-Printed material......................  $.02
Office copy...............................   .15
Microfiche................................   .25
Computer copies (tapes, discs or            Actual cost of duplicating
 printouts).                                 the tape, disc or printout
                                             (includes operator's time
                                             and cost of the medium).
------------------------------------------------------------------------

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

------------------------------------------------------------------------
                                                                  Hourly
               Type                            Grade               rate
------------------------------------------------------------------------
Clerical.........................  E9/GS8 and below............   $12.00
Professional.....................  O1-O6/GS9-GS15..............    25.00
Executive........................  O7/GS16/ES1 and above.......    45.00
------------------------------------------------------------------------

    (e) Audiovisual documentary materials. Search costs are computed as 
for any other record. Duplication cost is the

[[Page 81]]

actual direct cost of reproducing the material, including the wage of 
the person doing the work. Audiovisual materials provided to a requester 
need not be in reproducible format or quality.
    (f) Other records. Direct search and duplication cost for any record 
not described in this section shall be computed in the manner described 
for audiovisual documentary material.
    (g) Costs for special services. Complying with requests for special 
services is at the discretion of the DON activity. Neither the FOIA nor 
its fee structure cover these kinds of services. Therefore, DON 
activities may recover the costs of special services requested by the 
requester after agreement has been obtained in writing from the 
requester to pay for such fees as certifying that records are true 
copies, sending records by special methods such as express mail, etc.



Sec. 701.54  Collection of fees and fee rates for technical data.

    (a) Technical data, other than technical data that discloses 
critical technology with military or space application, if required to 
be released under the FOIA, shall be released after the person 
requesting such technical data pays all reasonable costs attributed to 
search, duplication and review of the records to be released. Technical 
data, as used in this section, means recorded information, regardless of 
the form or method of the recording of a scientific or technical nature 
(including computer software documentation). This term does not include 
computer software, or data incidental to contract administration, such 
as financial and/or management information.
    (b) DON activities shall retain the amounts received by such a 
release, and it shall be merged with and available for the same purpose 
and the same time period as the appropriation from which the costs were 
incurred in complying with request. All reasonable costs as used in this 
sense are the full costs to the Federal Government of rendering the 
service, or fair market value of the service, whichever is higher. Fair 
market value shall be determined in accordance with commercial rates in 
the local geographical area. In the absence of a known market value, 
charges shall be based on recovery of full costs to the Federal 
Government. The full costs shall include all direct and indirect costs 
to conduct the search and to duplicate the records responsive to the 
request. This cost is to be differentiated from the direct costs 
allowable under information released under FOIA.
    (c) Waiver. DON activities shall waive the payment of costs required 
in paragraph (a) of this section which are greater than the costs that 
would be required for release of this same information under the FOIA 
if:
    (1) The request is made by a citizen of the United States or a 
United States corporation and such citizen or corporation certifies that 
the technical data requested is required to enable it to submit an offer 
or determine whether it is capable of submitting an offer to provide the 
product to which the technical data relates to the United States or a 
contractor with the United States. However, DON activities may require 
the citizen or corporation to pay a deposit in an amount equal to not 
more than the cost of complying with the request, which will be refunded 
upon submission of an offer by the citizen or corporation;
    (2) The release of technical data is requested in order to comply 
with the terms of an international agreement; or,
    (3) The DON activity determines in accordance with Sec. 701.48 that 
such a waiver is in the interest of the United States.
    (d) Fee rates--(1) Manual search.

------------------------------------------------------------------------
                                                                  Hourly
               Type                            Grade               rate
------------------------------------------------------------------------
Clerical.........................  E9/GS8 and below............   $13.25
Clerical (Minimum Charge)........  ............................     8.30
Professional.....................  01 to 06/GS9 to GS15........   (\**\)
Executive........................  07/GS16/ES-1 and above......   (\**\)
------------------------------------------------------------------------
\**\ Rate to be established at actual hourly rate prior to search. A
  minimum charge will be established at \1/2\ Minimum Charge)

    (2) Computer search is based on the total cost of the central 
processing unit, input-output devices, and memory capacity of the actual 
computer configuration. The wage (based upon the scale for manual 
search) for the computer operator and/or programmer

[[Page 82]]

determining how to conduct, and subsequently executing the search will 
be recorded as part of the computer search.
    (3) Duplication.

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

    (4) Review time.

------------------------------------------------------------------------
                                                                  Hourly
               Type                            Grade               rate
------------------------------------------------------------------------
Clerical.........................  E9/GS8 and below............   $13.25
Clerical Minimum Charge..........  E9/GS8 and below............     8.30
Professional.....................  01 to 06/GS9 to GS15........   (\**\)
Executive........................  07/GS16/ES1 or higher.......   (\**\)
------------------------------------------------------------------------
\**\ Rate to be established at actual hourly rate prior to search. (A
  minimum charge will be established at \1/2\ Minimum Charge)

    (5) Other technical data records. Charges for any additional 
services not specifically provided in paragraph (d) of this section, 
consistent with Volume 11A of DoD 7000.14-R (NOTAL) shall be made by DON 
activities at the following rates:

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



Sec. 701.55  Processing FOIA fee remittances.

    (a) Payments for FOIA charges, less fees assessed for technical data 
or by a Working Capital Fund or a Non-Appropriated Fund (NAF) activity, 
shall be made payable to the U.S. Treasurer and deposited in Receipt 
Account Number 172419.1203.
    (b) Payments for fees assessed for technical data shall be made 
payable to the DON activity that incurred the costs and will be 
deposited directly into the accounting line item from which the costs 
were incurred.
    (c) Payments for fees assessed by Working Capital Fund or Non-
Appropriated Fund (NAF) activities shall be made payable to the DON 
activity and deposited directly into their account.



                        Subpart D_FOIA Exemptions



Sec. 701.56  Background.

    The FOIA is a disclosure statute whose goal is an informed 
citizenry. Accordingly, records are considered to be releasable, unless 
they contain information that qualifies for withholding under one or 
more of the nine FOIA exemptions. The exemptions are identified as 5 
U.S.C. 552 (b)(1) through (b)(9).



Sec. 701.57  Ground rules.

    (a) Identity of requester. In applying exemptions, the identity of 
the requester and the purpose for which the record is sought are 
irrelevant with the exception that an exemption may not be invoked where 
the particular interest to be protected is the requester's interest. 
However, if the subject of the record is the requester for the record 
and the record is contained in a Privacy Act system of records, it may 
only be denied to the requester if withholding is both authorized in 
systems notice and by a FOIA exemption.
    (b) Reasonably segregable. Even though a document may contain 
information which qualifies for withholding under one or more FOIA 
exemptions, FOIA requires that all ``reasonably segregable'' information 
be provided to the requester, unless the segregated information would 
have no meaning. In other words, redaction is not required when it would 
reduce the balance of the text to unintelligible gibberish.
    (c) Discretionary release. A discretionary release of a record to 
one requester shall prevent the withholding of the same record under a 
FOIA exemption if the record is subsequently requested by someone else. 
However, a FOIA exemption may be invoked to withhold information that is 
similar or related that has been the subject of a discretionary release.

[[Page 83]]

    (d) Initial Denial Authority (IDA) actions. The decision to withhold 
information in whole or in part based on one or more of the FOIA 
exemptions requires the signature of an IDA. See listing of IDAs in 
Sec. 701.4.



Sec. 701.58  In-depth analysis of FOIA exemptions.

    An in-depth analysis of the FOIA exemptions is addressed in the 
DOJ's annual publication, ``Freedom of Information Act Guide & Privacy 
Act Overview.'' A copy is available on the DOJ's FOIA website (see Navy 
FOIA website at http://www.ogc.secnav.hq.navy.mil/foia/index.html for 
easy access).



Sec. 701.59  A brief explanation of the meaning and scope of the nine FOIA exemptions.

    (a) 5 U.S.C. 552 (b)(1): Those properly and currently classified in 
the interest of national defense or foreign policy, as specifically 
authorized under the criteria established by Executive Order and 
implemented by regulations.
    (1) Although material is not classified at the time of the FOIA 
request, a classification review may be undertaken to determine whether 
the information should be classified based on the Executive Order on 
classification (i.e., Executive Order 12958) and/or a security 
classification guide. The procedures for reclassification are addressed 
in the Executive Order.
    (2) If the information qualifies as exemption (b)(1) information, 
there is no discretion regarding its release. In addition, this 
exemption shall be invoked when the following situations are apparent:
    (i) Glomar response: The fact of the existence or nonexistence of a 
record would itself reveal classified information. In this situation, 
DON activities shall neither confirm nor deny the existence or 
nonexistence of the record being requested. A ``refusal to confirm or 
deny'' response must be used consistently, not only when a record 
exists, but also when a record does not exist. Otherwise, the pattern of 
using a ``no record'' response when a record does not exist, and a 
``refusal to confirm or deny'' when a record does exist will itself 
disclose national security information.
    (ii) Compilation: Compilations of items of information that are 
individually unclassified may be classified if the compiled information 
reveals additional association or relationship that meets the standard 
for classification under an existing executive order for classification 
and is not otherwise revealed in the individual items of information.
    (b) 5 U.S.C. 552 (b)(2): Those related solely to the internal 
personnel rules and practices of the DON and its activities. This 
exemption is entirely discretionary and has two profiles, high (b)(2) 
and low (b)(2):
    (1) High (b)(2) are records containing or constituting statutes, 
rules, regulations, orders, manuals, directives, instructions, and 
security classification guides, the release of which would allow 
circumvention of these records thereby substantially hindering the 
effective performance of a significant function of the DON. For example:
    (i) Those operating rules, guidelines, and manuals for DON 
investigators, inspectors, auditors, or examiners that must remain 
privileged in order for the DON activity fulfill a legal requirement;
    (ii) Personnel and other administrative matters, such as examination 
questions and answers used in training courses or in the determination 
of the qualifications of candidates for employment, entrance on duty, 
advancement, or promotion;
    (iii) Computer software, the release of which would allow 
circumvention of a statute or DON rules, regulations, orders, manuals, 
directives, or instructions. In this situation, the use of the software 
must be closely examined to ensure a circumvention possibility exists.
    (2) Discussion of low (b)(2) is provided for information only, as 
DON activities may not invoke the low (b)(2). Low (b)(2) records are 
those matters which are trivial and housekeeping in nature for which 
there is no legitimate public interest or benefit to be gained by 
release, and it would constitute an administrative burden to process the 
request in order to disclose the records. Examples include rules of 
personnel's use of parking facilities or regulation of lunch hours, 
statements of policy as

[[Page 84]]

to sick leave, and administrative data such as file numbers, mail 
routing stamps, initials, data processing notations, brief references to 
previous communications, and other like administrative markings.
    (c) 5 U.S.C. 552 (b)(3): Those concerning matters that a statute 
specifically exempts from disclosure by terms that permit no discretion 
on the issue, or in accordance with criteria established by that statute 
for withholding or referring to particular types of matters to be 
withheld. A few examples of (b)(3) statutes are:
    (1) 10 U.S.C. 128, Physical Protection of Special Nuclear Material, 
Limitation on Dissemination of Unclassified Information.
    (2) 10 U.S.C. 130, Authority to Withhold From Public Disclosure 
Certain Technical Data.
    (3) 10 U.S.C. 1102, Confidentiality of Medical Quality Assurance 
Records.
    (4) 10 U.S.C. 2305(g), Protection of Contractor Submitted Proposals.
    (5) 12 U.S.C. 3403, Confidentiality of Financial Records.
    (6) 18 U.S.C. 798, Communication Intelligence.
    (7) 35 U.S.C. 181-188, Patent Secrecy--any records containing 
information relating to inventions that are the subject of patent 
applications on which Patent Secrecy Orders have been issued.
    (8) 35 U.S.C. 205, Confidentiality of Inventions Information.
    (9) 41 U.S.C. 423, Procurement Integrity.
    (10) 42 U.S.C. 2162, Restricted Data and Formerly Restricted Data.
    (11) 50 U.S.C. 403 (d)(3), Protection of Intelligence Sources and 
Methods.
    (d) 5 U.S.C. 552 (b)(4): Those containing trade secrets or 
commercial or financial information that a DON activity receives from a 
person or organization outside the Government with the understanding 
that the information or record will be retained on a privileged or 
confidential basis in accordance with the customary handling of such 
records. Records within the exemption must contain trade secrets, or 
commercial or financial records, the disclosure of which is likely to 
cause substantial harm to the competitive position of the source 
providing the information; impair the Government's ability to obtain 
necessary information in the future; or impair some other legitimate 
Government interest. Commercial or financial information submitted on a 
voluntary basis, absent any exercised authority prescribing criteria for 
submission is protected without any requirement to show competitive 
harm. If the information qualifies as exemption (b)(4) information, 
there is no discretion in its release. Examples include:
    (1) Commercial or financial information received in confidence in 
connection with loans, bids, contracts, or proposals set forth in or 
incorporated by reference in a contract entered into between the DON 
activity and the offeror that submitted the proposal, as well as other 
information received in confidence or privileged, such as trade secrets, 
inventions, discoveries, or other proprietary data. Additionally, when 
the provisions of 10 U.S.C. 2305(g) and 41 U.S.C. 423 are met, certain 
proprietary and source selection information may be withheld under 
exemption (b)(3).
    (2) Statistical data and commercial or financial information 
concerning contract performance, income, profits, losses, and 
expenditures, if offered and received in confidence from a contractor or 
potential contractor.
    (3) Personal statements given in the course of inspections, 
investigations, or audits, when such statements are received in 
confidence from the individual and retained in confidence because they 
reveal trade secrets or commercial or financial information normally 
considered confidential or privileged.
    (4) Financial data provided in confidence by private employers in 
connection with locality wage surveys that are used to fix and adjust 
pay schedules applicable to the prevailing wage rate of employees within 
the DON.
    (5) Scientific and manufacturing processes or developments 
concerning technical or scientific data or other information submitted 
with an application for a research grant, or with a report while 
research is in progress.
    (6) Technical or scientific data developed by a contractor or 
subcontractor

[[Page 85]]

exclusively at private expense, and technical or scientific data 
developed in part with Federal funds and in part at private expense, 
wherein the contractor or subcontractor has retained legitimate 
proprietary interests in such data in accordance with 10 U.S.C. 2320-
2321 and DoD Federal Acquisition Regulation Supplement (DFARS), chapter 
2 of 48 CFR, subparts 227.71 and 227.72. Technical data developed 
exclusively with Federal funds may be withheld under Exemption (b)(3) if 
it meets the criteria of 10 U.S.C. 130 and DoD Directive 5230.25 of 6 
November 1984.
    (7) Computer software which is copyrighted under the Copyright Act 
of 1976 (17 U.S.C. 106), the disclosure of which would have an adverse 
impact on the potential market value of a copyrighted work.
    (8) Proprietary information submitted strictly on a voluntary basis, 
absent any exercised authority prescribing criteria for submission. 
Examples of exercised authorities prescribing criteria for submission 
are statutes, Executive Orders, regulations, invitations for bids, 
requests for proposals, and contracts. Submission of information under 
these authorities is not voluntary.
    (e) 5 U.S.C. 552(b)(5): Those containing information considered 
privileged in litigation, primarily under the deliberative process 
privilege. For example: internal advice, recommendations, and subjective 
evaluations, as contrasted with factual matters, that are reflected in 
deliberative records pertaining to the decision-making process of an 
agency, whether within or among agencies or within or among DON 
activities. In order to meet the test of this exemption, the record must 
be both deliberative in nature, as well as part of a decision-making 
process. Merely being an internal record is insufficient basis for 
withholding under this exemption. Also potentially exempted are records 
pertaining to the attorney-client privilege and the attorney work-
product privilege. This exemption is entirely discretionary. Examples of 
the deliberative process include:
    (1) The nonfactual portions of staff papers, to include after-action 
reports, lessons learned, and situation reports containing staff 
evaluations, advice, opinions, or suggestions.
    (2) Advice, suggestions, or evaluations prepared on behalf of the 
DON by individual consultants or by boards, committees, councils, 
groups, panels, conferences, commissions, task forces, or other similar 
groups that are formed for the purpose of obtaining advice and 
recommendations.
    (3) Those non-factual portions of evaluations by DON personnel of 
contractors and their products.
    (4) Information of a speculative, tentative, or evaluative nature or 
such matters as proposed plans to procure, lease or otherwise acquire 
and dispose of materials, real estate, facilities or functions, when 
such information would provide undue or unfair competitive advantage to 
private personal interests or would impede legitimate government 
functions.
    (5) Trade secret or other confidential research development, or 
commercial information owned by the Government, where premature release 
is likely to affect the Government's negotiating position or other 
commercial interest.
    (6) Those portions of official reports of inspection, reports of the 
Inspector Generals, audits, investigations, or surveys pertaining to 
safety, security, or the internal management, administration, or 
operation of one or more DON activities, when these records have 
traditionally been treated by the courts as privileged against 
disclosure in litigation.
    (7) Planning, programming, and budgetary information that is 
involved in the defense planning and resource allocation process.
    (8) If any such intra- or inter-agency record or reasonably 
segregable portion of such record hypothetically would be made available 
routinely through the discovery process in the course of litigation with 
the agency, then it should not be withheld under the FOIA. If, however, 
the information hypothetically would not be released at all, or would 
only be released in a particular case during civil discovery where a 
party's particularized showing of need might override a privilege, then 
the record may be withheld. Discovery is the formal process by which 
litigants obtain information from each other for

[[Page 86]]

use in the litigation. Consult with legal counsel to determine whether 
exemption 5 material would be routinely made available through the 
discovery process.
    (9) Intra- or inter-agency memoranda or letters that are factual, or 
those reasonably segregable portions that are factual, are routinely 
made available through discovery, and shall be made available to a 
requester, unless the factual material is otherwise exempt from release, 
inextricably intertwined with the exempt information, so fragmented as 
to be uninformative, or so redundant of information already available to 
the requester as to provide no new substantive information.
    (10) A direction or order from a superior to a subordinate, though 
contained in an internal communication, generally cannot be withheld 
from a requester if it constitutes policy guidance or a decision, as 
distinguished from a discussion of preliminary matters or a request for 
information or advice that would compromise the decision-making process.
    (11) An internal communication concerning a decision that 
subsequently has been made a matter of public record must be made 
available to a requester when the rationale for the decision is 
expressly adopted or incorporated by reference in the record containing 
the decision.
    (f) 5 U.S.C. 552(b)(6): Information in personnel and medical files, 
as well as similar personal information in other files, that, if 
disclosed to a requester, other than the person about whom the 
information is about, would result in a clearly unwarranted invasion of 
personal privacy. Release of information about an individual contained 
in a Privacy Act System of records that would constitute a clearly 
unwarranted invasion of privacy is prohibited, and could subject the 
releaser to civil and criminal penalties. If the information qualifies 
as exemption (b)(6) information, there is no discretion in its release. 
Examples of other files containing personal information similar to that 
contained in personnel and medical files include:
    (1) Those compiled to evaluate or adjudicate the suitability of 
candidates for civilian employment or membership in the Armed Forces, 
and the eligibility of individuals (civilian, military, or contractor 
employees) for security clearances, or for access to particularly 
sensitive classified information.
    (2) Files containing reports, records, and other material pertaining 
to personnel matters in which administrative action, including 
disciplinary action, may be taken.
    (3) Home addresses, including private e-mail addresses, are normally 
not releasable without the consent of the individuals concerned. This 
includes lists of home addressees and military quarters' addressees 
without the occupant's name. Additionally, the names and duty addresses 
(postal and/or e-mail) of DON/DoD military and civilian personnel who 
are assigned to units that are sensitive, routinely deployable, or 
stationed in foreign territories can constitute a clearly unwarranted 
invasion of personal privacy.
    (4) Privacy interest. A privacy interest may exist in personal 
information even though the information has been disclosed at some place 
and time. If personal information is not freely available from sources 
other than the Federal Government, a privacy interest exists in its 
nondisclosure. The fact that the Federal Government expended funds to 
prepare, index and maintain records on personal information, and the 
fact that a requester invokes FOIA to obtain these records indicates the 
information is not freely available.
    (5) Names and duty addresses (postal and/or e-mail) published in 
telephone directories, organizational charts, rosters and similar 
materials for personnel assigned to units that are sensitive, routinely 
deployable, or stationed in foreign territories are withholdable under 
this exemption.
    (6) This exemption shall not be used in an attempt to protect the 
privacy of a deceased person, but it may be used to protect the privacy 
of the deceased person's family if disclosure would rekindle grief, 
anguish, pain, embarrassment, or even disruption of peace of mind of 
surviving family members. In such situations, balance the surviving 
family members' privacy against the public's right to know to determine 
if

[[Page 87]]

disclosure is in the public interest. Additionally, the deceased's 
social security number should be withheld since it is used by the next 
of kin to receive benefits. Disclosures may be made to the immediate 
next of kin as defined in DoD Directive 5154.24 of 28 October 1996 
(NOTAL).
    (7) A clearly unwarranted invasion of the privacy of third parties 
identified in a personnel, medical or similar record constitutes a basis 
for deleting those reasonably segregable portions of that record. When 
withholding third party personal information from the subject of the 
record and the record is contained in a Privacy Act system of records, 
consult with legal counsel.
    (8) This exemption also applies when the fact of the existence or 
nonexistence of a responsive record would itself reveal personally 
private information, and the public interest in disclosure is not 
sufficient to outweigh the privacy interest. In this situation, DON 
activities shall neither confirm nor deny the existence or nonexistence 
of the record being requested. This is a Glomar response, and exemption 
(b)(6) must be cited in the response. Additionally, in order to insure 
personal privacy is not violated during referrals, DON activities shall 
coordinate with other DON activities or Federal agencies before 
referring a record that is exempt under the Glomar concept.
    (i) A ``refusal to confirm or deny'' response must be used 
consistently, not only when a record exists, but also when a record does 
not exist. Otherwise, the pattern of using a ``no records'' response 
when a record does not exist and a ``refusal to confirm or deny'' when a 
record does exist will itself disclose personally private information.
    (ii) Refusal to confirm or deny should not be used when the person 
whose personal privacy is in jeopardy has provided the requester a 
waiver of his or her privacy rights; the person initiated or directly 
participated in an investigation that led to the creation of an agency 
record seeks access to that record; or the person whose personal privacy 
is in jeopardy is deceased, the Agency is aware of that fact, and 
disclosure would not invade the privacy of the deceased's family.
    (g) 5 U.S.C. 552(b)(7). Records or information compiled for law 
enforcement purposes; i.e., civil, criminal, or military law, including 
the implementation of Executive Orders or regulations issued under law. 
This exemption may be invoked to prevent disclosure of documents not 
originally created for, but later gathered for law enforcement purposes. 
With the exception of (b)(7)(C) and (b)(7)(F), this exemption is 
discretionary. This exemption applies, however, only to the extent that 
production of such law enforcement records or information could result 
in the following:
    (1) 5 U.S.C. 552(b)(7)(A): Could reasonably be expected to interfere 
with enforcement proceedings.
    (2) 5 U.S.C. 552(b)(7)(B): Would deprive a person of the right to a 
fair trial or to an impartial adjudication.
    (3) 5 U.S.C. 552(b)(7)(C): Could reasonably be expected to 
constitute an unwarranted invasion of personal privacy of a living 
person, including surviving family members of an individual identified 
in such a record.
    (i) This exemption also applies when the fact of the existence or 
nonexistence of a responsive record would itself reveal personally 
private information, and the public interest in disclosure is not 
sufficient to outweigh the privacy interest. In this situation, 
Components shall neither confirm nor deny the existence or nonexistence 
of the record being requested. This is a Glomar response, and exemption 
(b)(7)(C) must be cited in the response. Additionally, in order to 
insure personal privacy is not violated during referrals, DON activities 
shall coordinate with other DON/DoD activities or Federal Agencies 
before referring a record that is exempt under the Glomar concept. A 
``refusal to confirm or deny'' response must be used consistently, not 
only when a record exists, but also when a record does not exist. 
Otherwise, the pattern of using a ``no records'' response when a record 
does not exist and a ``refusal to confirm or deny'' when a record does 
exist will itself disclose personally private information.
    (ii) Refusal to confirm or deny should not be used when the person 
whose personal privacy is in jeopardy has provided the requester with a 
waiver of his

[[Page 88]]

or her privacy rights; or the person whose personal privacy is in 
jeopardy is deceased, and the activity is aware of that fact.
    (4) 5 U.S.C. 552(b)(7)(D): Could reasonably be expected to disclose 
the identity of a confidential source, including a source within the 
DON; a State, local, or foreign agency or authority; or any private 
institution that furnishes the information on a confidential basis; and 
could disclose information furnished from a confidential source and 
obtained by a criminal law enforcement authority in a criminal 
investigation or by an agency conducting a lawful national security 
intelligence investigation.
    (5) 5 U.S.C. 552(b)(7)(E): Would disclose techniques and procedures 
for law enforcement investigations or prosecutions, or would disclose 
guidelines for law enforcement investigations or prosecutions if such 
disclosure could reasonably be expected to risk circumvention of the 
law.
    (6) 5 U.S.C. 552(b)(7)(F): Could reasonably be expected to endanger 
the life or physical safety of any individual.
    (7) Some examples of exemption 7 are: Statements of witnesses and 
other material developed during the course of the investigation and all 
materials prepared in connection with related Government litigation or 
adjudicative proceedings; the identity of firms or individuals being 
investigated for alleged irregularities involving contracting with the 
DoD when no indictment has been obtained nor any civil action filed 
against them by the United States; information obtained in confidence, 
expressed or implied, in the course of a criminal investigation by a 
criminal law enforcement agency or office within a DON activity or a 
lawful national security intelligence investigation conducted by an 
authorized agency or office within the DON; national security 
intelligence investigations include background security investigations 
and those investigations conducted for the purpose of obtaining 
affirmative or counterintelligence information.
    (8) The right of individual litigants to investigative records 
currently available by law (such as, the Jencks Act, 18 U.S.C. 3500), is 
not diminished.
    (9) Exclusions. Excluded from the exemption in paragraph (g)(8) are 
the following two situations applicable to the DON:
    (i) Whenever a request is made that involves access to records or 
information compiled for law enforcement purposes, and the investigation 
or proceeding involves a possible violation of criminal law where there 
is reason to believe that the subject of the investigation or proceeding 
is unaware of its pendency, and the disclosure of the existence of the 
records could reasonably be expected to interfere with enforcement 
proceedings, DON activities may, during only such times as that 
circumstance continues, treat the records or information as not subject 
to the FOIA. In such situation, the response to the requester will state 
that no records were found.
    (ii) Whenever informant records maintained by a criminal law 
enforcement organization within a DON activities under the informant's 
name or personal identifier are requested by a third party using the 
informant's name or personal identifier, the DON activity may treat the 
records as not subject to the FOIA, unless the informant's status as an 
informant has been officially confirmed. If it is determined that the 
records are not subject to 5 U.S.C. 552(b)(7), the response to the 
requester will state that no records were found.
    (iii) DON activities considering invoking an exclusion should first 
consult with the DOJ's Office of Information and Privacy.
    (h) 5 U.S.C. 552(b)(8): Those contained in or related to 
examination, operation or condition reports prepared by, on behalf of, 
or for the use of any agency responsible for the regulation or 
supervision of financial institutions.
    (i) 5 U.S.C. 552(b)(9): Those containing geological and geophysical 
information and data (including maps) concerning wells.

[[Page 89]]



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

    Source: 65 FR 24635, Apr. 27, 2000, unless otherwise noted.



Sec. 701.61  Purpose.

    This subpart implements 5 U.S.C. 552(a) (1) and (2) and provisions 
of Department of Defense Directive 5400.7 May 13, 1988 (32 CFR part 286, 
55 FR 53104); Department of Defense Directive 5400.9, December 23, 1974 
(32 CFR part 336, 40 FR 49111); and the Regulations of the 
Administrative Committee of the Federal Register (1 CFR chaps. I and II) 
by delineating responsibilities and prescribing requirements, policies, 
criteria, and procedures applicable to:
    (a) Publishing the following Department of the Navy documents in the 
Federal Register:
    (1) Certain classes of regulatory, organizational policy, 
substantive, and procedural documents required to be published for the 
guidance of the public;
    (2) Certain classes of proposed regulatory documents required to be 
published for public comment prior to issuance; and
    (3) Certain public notices required by law or regulation to be 
published;
    (b) Making available, for public inspection and copying, certain 
classes of documents having precedential effect on decisions concerning 
members of the public;
    (c) Maintaining current indexes of documents having precedential 
effect on decisions concerning members of the public, and publishing 
such indexes or making them available by other means;
    (d) Receiving and considering petitions of members of the public for 
the issuance, revision, or cancellation of regulatory documents of some 
classes; and
    (e) Distributing the Federal Register for official use within the 
Department of the Navy.



Sec. 701.62  Scope and applicability.

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



Sec. 701.63  Policy.

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



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

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

[[Page 90]]

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



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

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

[[Page 91]]

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

[[Page 92]]

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

[[Page 93]]

States Navy-Marine Corps Court of Military Review, although not indexed, 
are available for public inspection at the location shown in Sec. 
701.32(c).



Sec. 701.66  Publication of proposed regulations for public comment.

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

[[Page 94]]

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



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

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



                      Subpart F_DON Privacy Program

    Source: 71 FR 27536, May 11, 2006, unless otherwise noted.



Sec. 701.100  Purpose.

    Subparts F and G of this part implement the Privacy Act (5 U.S.C. 
552a), and the DOD Directives 5400.11 and 5400.11-R series, DOD Privacy 
Program (see 32 CFR part 310) and provides DON policies and procedures 
to ensure that all DON military members and civilian/contractor 
employees are made fully aware of their rights and responsibilities 
under the provisions of the Privacy Act (PA); to balance the 
Government's need to maintain information with the obligation to protect 
individuals against unwarranted invasions of their privacy stemming from 
the DON's collection, maintenance, use, and disclosure of Protected 
Personal Information (PPI); and to require privacy management practices 
and procedures be employed to evaluate privacy risks in publicly 
accessible DON Web sites and unclassified non-national security 
information systems.
    (a) Scope. Governs the collection, safeguarding, maintenance, use, 
access, amendment, and dissemination of PPI kept by DON in PA systems of 
records.
    (b) Guidance. Provides guidance on how to respond to individuals who 
seek access to information in a PA system of records that is retrieved 
by their name and/or personal identifier.
    (c) Verify identity. Establishes ways to verify the identity of 
individuals who request their records before the records are made 
available to them.
    (d) Online resources. Directs the public to the Navy's PA Online Web 
site at http://www.privacy.navy.mil that defines the DON's PA Program, 
lists all Navy, Marine Corps, and Government-wide systems of records and 
provides guidance on how to gain access to those records.
    (e) Rules of conduct. Governs the PA rules of conduct for personnel, 
who will be subject to either civil or criminal penalties for 
noncompliance with 5 U.S.C. 552a.
    (f) Privacy impact assessment (PIA) requirements. Establishes 
requirements for conducting, reviewing, approving, and publishing PIAs.



Sec. 701.101  Privacy program terms and definitions.

    (a) Access. Review or copying a record or parts thereof contained in 
a system of records by any individual.
    (b) Agency. For the purposes of disclosing records subject to the PA 
between or among DOD components, DOD is considered a single agency. For 
all other purposes, DON is considered an agency within the meaning of 
PA.

[[Page 95]]

    (c) Disclosure. The transfer of any personal information from a 
system of records by any means of communication (such as oral, written, 
electronic, mechanical, or actual review), to any person, private 
entity, or Government agency, other than the subject of the record, the 
subject's designated agent or the subject's legal guardian.
    (d) Federal personnel. Officers and employees of the U.S. 
Government, members of the uniformed services (including members of the 
reserve), individuals or survivors thereof, entitled to receive 
immediate or deferred retirement benefits under any retirement program 
of the U.S. Government (including survivor benefits).
    (e) Individual. A living citizen of the U.S. or an alien lawfully 
admitted to the U.S. for permanent residence. The custodial parent of a 
minor or the legal guardian of any individual also may act on behalf of 
an individual. Members of the United States Armed Forces are 
``individuals.'' Corporations, partnerships, sole proprietorships, 
professional groups, businesses, whether incorporated or unincorporated, 
and other commercial entities are not ``individuals.''
    (f) Individual access. Access to information pertaining to the 
individual by the individual or his/her designated agent or legal 
guardian.
    (g) Information in identifiable form (IIF). Information in an 
Information Technology (IT) system or online collection that directly 
identifies an individual (e.g., name, address, social security number or 
other identifying code, telephone number, e-mail address, etc.) or by an 
agency intends to identify specific individuals in conjunction with 
other data elements (i.e., indirect identification that may include a 
combination of gender, race, birth date, geographic indicator, and other 
descriptors).
    (h) Information system. A discrete set of information resources 
organized for the collection, processing, maintenance, transmission, and 
dissemination of information.
    (i) Maintain. Includes maintain, collect, use, or disseminate.
    (j) Member of the public. Any individual or party acting in a 
private capacity.
    (k) Minor. Under this subpart, a minor is an individual under 18 
years of age, who is not a member of the U.S. Navy or Marine Corps, or 
married.
    (l) Official use. Within the context of this subpart, this term is 
used when DON officials and employees have a demonstrated need for the 
use of any record or the information contained therein in the 
performance of their official duties.
    (m) Personal information. Information about an individual that 
identifies, relates, or is unique to, or describes him or her (e.g., 
Social Security Number (SSN), age, military rank, civilian grade, 
marital status, race, salary, home/office phone numbers, etc.).
    (n) Privacy Act (PA) request. A request from an individual for 
notification as to the existence of, access to, or amendment of records 
pertaining to that individual. These records must be maintained in a 
system of records.
    (o) Privacy Impact Assessment (PIA). An ongoing assessment to 
evaluate adequate practices in balancing privacy concerns with the 
security needs of an organization. The process is designed to guide 
owners and developers of information systems in assessing privacy 
through the early stages of development. The process consists of privacy 
training, gathering data from a project on privacy issues, identifying 
and resolving the privacy risks, and approval by a designated privacy 
representative.
    (p) Protected personal information (PPI). Any information or 
characteristics that may be used to distinguish or trace an individual's 
identity, such as their name, SSN, or biometric records.
    (q) Record. Any item, collection, or grouping of information, 
whatever the storage media (e.g., paper, electronic, etc), about an 
individual that is maintained by a DON activity including, but not 
limited to, the individual's education, financial transactions, and 
medical, criminal, or employment history, and that contains the 
individual's name or other identifying particulars assigned to the 
individual, such as a finger or voice print or a photograph.
    (r) Review authority. An official charged with the responsibility to 
rule

[[Page 96]]

on administrative appeals of initial denials of requests for 
notification, access, or amendment of records. SECNAV has delegated 
review authority to the Assistant Secretary of the Navy (Manpower & 
Reserve Affairs) (ASN(M&RA)), General Counsel of the DON (GC), and the 
Judge Advocate General of the Navy (JAG). Additionally, the Office of 
Personnel Management (OPM) is the review authority for civilian official 
personnel folders or records contained in any other OPM record.
    (s) ``Routine use'' disclosure. A disclosure of a record made 
outside DOD for a purpose that is compatible with the purpose for which 
the record was collected and maintained by DOD. The ``routine use'' must 
have been included in the notice for the system of records published in 
the Federal Register.
    (t) Statistical record. A record maintained only for statistical 
research, or reporting purposes, and not used in whole or in part in 
making any determination about a specific individual.
    (u) System manager. An official who has overall responsibility for a 
system of records. He/she may serve at any level in DON. Systems 
managers are indicated in the published record systems notices. If more 
than one official is indicated as a system manager, initial 
responsibility resides with the manager at the appropriate level (i.e., 
for local records, at the local activity).
    (v) System of records. A group of records under the control of a DON 
activity from which information is retrieved by the individual's name or 
by some identifying number, symbol, or other identifying particular 
assigned to the individual. System notices for all PA systems of records 
must be published in the Federal Register and are also available for 
viewing or downloading from the Navy's Privacy Act Online Web site at 
http://www.privacy.navy.mil.
    (w) Web site. A collection of information organized into a number of 
Web documents related to a common subject or set of subjects, including 
the ``home page'' and the linked subordinate information.
    (x) Working day. All days excluding Saturday, Sunday, and legal 
holidays.



Sec. 701.102  Online resources.

    (a) Navy PA online Web site (http://www.privacy.navy.mil). This Web 
site supplements this subpart and subpart G. It provides a detailed 
understanding of the DON's PA Program. It contains information on Navy 
and Marine Corps systems of records notices; Government-wide systems of 
records notices that can be used by DON personnel; and identifies Navy 
and Marine Corps exempt systems of records notices. It includes: PA 
policy documents; sample training materials; DOD ``Blanket Routine 
Uses;'' a checklist for conducting staff assistance visits; a copy of PA 
statute; guidance on how to establish, delete, alter, or amend PA 
systems of records notices; and provides updates on the DON's PA 
Program.
    (b) DON Chief Information Officer (DON CIO) Web site (http://
www.doncio.navy.mil). This Web site provides detailed guidance on PIAs.
    (c) DOD's PA Web site (http://www.defenselink.mil/privacy). This Web 
site is an excellent resource that contains a listing of all DOD and its 
components' PA systems of records notices, DOD PA directive and 
regulation, OMB Circulars, Defense Privacy Decision Memoranda, etc.
    (d) DON Freedom of Information Act (FOIA) Web site (http://
www.foia.navy.mil). This Web site discusses the interface between PA and 
FOIA and provides detailed guidance on the DON's FOIA Program.



Sec. 701.103  Applicability.

    (a) DON activities. Applies to all DON activities that collect, 
maintain, or disseminate PPI. Applies to DON activities and to 
contractors, vendors, and other entities that develop, procure, or use 
Information Technology (IT) systems under contract to DOD/DON, to 
collect, maintain, or disseminate IIF from or about members of the 
public.
    (b) Combatant commands. Applies to the U.S. Joint Forces Command 
(USJFCOM) and U.S. Pacific Command (USPACOM), except for U.S. Forces 
Korea as prescribed by DOD Directive 5100.3.
    (c) U.S. citizens and legally admitted aliens. Applies to living 
citizens of the U.S. or aliens lawfully admitted for

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permanent legal residence. Requests for access to information in a PA 
system of records made by individuals who are not U.S. citizens or 
permanent residents will be processed under the provisions of the FOIA.
    (d) Federal contractors. Applies to Federal contractors by contract 
or other legally binding action, whenever a DON contract provides for 
the operation, maintenance, or use of records contained in a PA system 
of records to accomplish a DON function.
    (1) When a DON activity contracts for the operation or maintenance 
of a system of records or a portion of a system of records by a 
contractor, the record system or the portion of the record system 
affected are considered to be maintained by the DON activity and are 
subject to this subpart and subpart G of this part.
    (2) The contractor and its employees are considered employees of the 
DON activity for purposes of the sanction provisions of the PA during 
the performance of the contract.
    (3) The Defense Acquisition Regulatory (DAR) Council, which oversees 
the implementation of the Federal Acquisition Regulations (FAR) within 
DOD, is responsible for developing the specific policies and procedures 
for soliciting, awarding, and administering contracts that are subject 
to this subpart and 5 U.S.C. 552a.
    (4) Consistent with the FAR regulations, contracts for the operation 
of a system of records shall identify specifically the record system and 
the work to be performed, and shall include in the solicitation and 
resulting contract the terms as prescribed by the FAR (see http://
www.privacy.navy.mil (Admin Tools)).
    (5) DON activities must furnish PA Program guidance to their 
personnel who solicit and award or administer Government contracts; 
inform prospective contractors of their responsibilities regarding the 
DON PA Program; and establish an internal system of contractor 
performance review to ensure compliance with the DON Privacy Program.
    (6) This instruction does not apply to records of a contractor that 
are:
    (i) Established and maintained solely to assist the contractor in 
making internal contractor management decisions, such as records 
maintained by the contractor for use in managing the contract;
    (ii) Maintained as internal contractor employee records, even when 
used in conjunction with providing goods or services to a DON activity;
    (iii) Maintained as training records by an educational organization 
contracted by a DON activity to provide training when the records of the 
contract students are similar to and commingled with training records of 
other students, such as admission forms, transcripts, and academic 
counseling and similar records;
    (iv) Maintained by a consumer reporting agency to which records have 
been disclosed under 31 U.S.C. 3711; or
    (7) DON activities shall establish contract surveillance programs to 
ensure contractors comply with the procedures established by the DAR 
Council.
    (8) Disclosing records to a contractor for use in performing a 
contract let by a DON activity is considered a disclosure within DON 
(i.e., based on an official need to know). The contractor is considered 
the agent of DON when receiving and maintaining the records for that 
activity.
    (e) Precedence. In case of a conflict, this subpart and subpart G 
takes precedence over any DON directive that deals with the personal 
privacy and rights of individuals regarding their personal records, 
except for disclosure of PPI required by 5 U.S.C. 552 and implemented by 
Secretary of the Navy (SECNAVINST) 5720.42F.



Sec. 701.104  Responsibility and authority.

    (a) Delegation. The Chief of Naval Operations (CNO) for 
administering and supervising the execution of 5 U.S.C. 552a, DOD 
Directive 5400.11 and DOD Regulation 5400.11-R. The Director, Navy Staff 
(DNS) will administer this program through the Head, DON PA/FOIA Policy 
Branch (DNS-36) who will serve as the Principal PA Program Manager for 
the DON.
    (b) CNO (DNS-36). (1) Develops and implements DON policy on the 
provisions of the PA; serves as principal advisor on all DON PA matters; 
oversees the administration of the DON's PA

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program; reviews and resolves PA complaints; maintains the DON's PA 
Online Web site; develops a Navy-wide PA training program and serves as 
training oversight manager; establishes, maintains, deletes, and 
approves Navy and joint Navy/Marine Corps PA systems of records notices; 
compiles reports that address the DON's PA Program to DOD and/or the 
Office of Management and Budget (OMB); conducts PA reviews as defined in 
OMB Circular A-130; publishes exempt systems of records in the CFR; and 
conducts staff assistance visits/program evaluations within DON to 
review compliance with 5 U.S.C. 552a, this subpart and subpart G of this 
part.
    (2) Serves as PA Coordinator for the Secretary of the Navy (SECNAV), 
Office of the CNO (OPNAV) and the Naval Historical Center (NHC).
    (3) Represents SECNAV on the Defense Privacy Board (DPO). Per DOD 
Directive 5400.11, the Board has oversight responsibility for 
implementation of the DOD Privacy Program.
    (4) Represents SECNAV on the Defense Data Integrity Board. Per DOD 
Directive 5400.11, the Board has oversight responsibility for reviewing 
and approving all computer matching agreements between the DOD and other 
Federal, State, or local government agencies, as well as memoranda of 
understanding when the match is internal to DOD, to ensure that 
appropriate procedural and due process requirements have been 
established before engaging in computer matching activities.
    (5) Provides input to the DPO on OMB's Federal Information Security 
Management Act (FISMA) Report.
    (6) Coordinates on all PIAs prior to the PIA being submitted to DON 
CIO for review and final approval. Makes a determination as to whether 
the new IT system constitutes a PA system of records. If it does, 
determines whether an existing system covers the collection or whether a 
new systems notice will have to be written and approved. As necessary, 
assists the DON activity in creating and getting a new PA system of 
records notice approved.
    (7) Oversees the administration of OPNAV's PA program.
    (8) Chairs the DON PA Oversight Working Group.
    (c) Commandant of the Marine Corps (CMC). (1) Administers and 
supervises the execution of this instruction within the Marine Corps and 
maintains and approves Marine Corps PA systems of records notices. The 
Commandant has designated CMC (ARSF) as the PA manager for the U.S. 
Marine Corps.
    (2) Oversees the administration of the Marine Corps' PA program; 
reviews and resolves PA complaints; develops a Marine Corps privacy 
education, training, and awareness program; reviews and validates PIAs 
for Marine Corps information systems and submits the validation to CNO 
(DNS-36); establishes, maintains, deletes, and approves Marine Corps PA 
systems of records notices; and conducts staff assistance visits/program 
evaluations within the Marine Corps to review compliance with 5 U.S.C. 
552a, this subpart and subpart G of this part.
    (3) Serves as the PA Coordinator for all Headquarters, U.S. Marine 
Corps components, except for Marine Corps Systems Command and the Marine 
Corps Combat Development Command.
    (4) Provides input to CNO (DNS-36) for inclusion FISMA Report.
    (5) Serves on the DON PA Oversight Working Group.
    (6) Coordinates on all PIAs prior to the PIA being submitted to DON 
CIO for review and final approval, making a determination as to whether 
the new IT system constitutes a PA system of records. If it does, 
determines whether an existing system covers the collection or whether a 
new systems notice will have to be written and approved. As necessary, 
assists the DON activity in creating and getting a new PA system of 
records notice approved.
    (d) DON CIO. (1) Integrates protection of PPI into the overall DON 
major information system life cycle management process as defined in the 
E-Government Act of 2002 (Pub. L. 107-347).
    (2) Provides guidance for effective assessment and utilization of 
privacy-related technologies.
    (3) Provides guidance to DON officials on the conduct of PIAs (see 
their Web site at http://www.doncio.navy.mil) and oversees DON PIA 
policy and procedures to ensure PIAs are conducted

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commensurate with the information system being assessed, the sensitivity 
of IIF in that system, and the risk of harm for unauthorized release of 
that information. Also, DON CIO reserves the right to request that a PIA 
be completed on any system that may have privacy risks.
    (4) Reviews and approves all PIAs for the DON and submits the 
approved PIAs to DOD and OMB according to Federal and DOD guidance.
    (5) Serves as the focal point in establishing and validating DON 
information systems privacy requirements and coordinating issues with 
other DOD Military Departments and Federal Agencies.
    (6) Develops and coordinates privacy policy, procedures, education, 
training, and awareness practices regarding DON information systems.
    (7) Compiles and prepares responses to either DOD or OMB regarding 
PIA issues.
    (8) Develops and coordinates DON web privacy policy, education, 
training and an awareness program in accordance with DON Web privacy 
requirements including annual Web site privacy posting training with CNO 
(DNS-36).
    (9) Provides guidance toward effective research and development of 
privacy-related technologies.
    (10) Serves as the focal point in establishing and validating DON 
Web privacy requirements and coordinating issues with DOD, other 
Military Departments, and other Federal agencies.
    (11) Provides guidance on the use of encryption software to protect 
privacy sensitive information.
    (12) Implements DON IT privacy requirements and coordinates IT 
information system requirements that cross service boundaries with the 
Joint Staff.
    (13) Provides recommended changes to CNO (DNS-36) on policy guidance 
set forth in this instruction regarding IT privacy policy and procedures 
that includes requirements/guidance for conducting PIAs.
    (14) Provides input to CNO (DNS-36) for inclusion in the FISMA 
Report.
    (15) Serves on the DON PA Oversight Working Group.
    (e) The Chief of Information (CHINFO) and U.S. Marine Corps Director 
of Public Affairs (DIRPA). CHINFO and DIRPA, in accordance with DON CIO 
guidance on Department-wide Information Management (IM) and IT matters, 
are responsible for developing and administering Navy and Marine Corps 
Web site privacy policies and procedures respectively per SECNAVINST 
5720.47B. Additionally, CHINFO and DIRPA:
    (1) Maintains master World Wide Web (WWW) page to issue new service-
specific Web privacy guidance. CHINFO will maintain a master WWW page to 
issue DON guidance and DIRPA will link to that page. All significant 
changes to this Web site and/or its location will be issued via Naval 
(ALNAV) message.
    (2) Maintains overall cognizance for DON and U.S. Marine Corps Web 
sites and Web site content-related questions as they pertain to Web site 
privacy requirements.
    (3) Ensures that public-facing Web sites have machine-readable 
privacy policies (i.e., web privacy policies are P3P-enabled or 
automatically readable using some other tool).
    (4) Provides input to CNO (DNS-36) for inclusion in the FISMA 
Report.
    (5) Serves on the DON PA Oversight Working Group.
    (f) DON PA Oversight Working Group. The DON PA Oversight Working 
Group is charged with reviewing and coordinating compliance with DON PA 
program initiatives. CNO (DNS-36) will chair this working group, hosting 
meetings as deemed appropriate to discuss best PA practices, PA issues, 
FISMA reporting and other reporting requirements, PA training 
initiatives, etc. At a minimum, membership shall consist of CNO (DNS-
36), DON CIO, CMC (ARSF), CMC (C4I-IA), OJAG (Code 13), OGC (PA/FOIA), 
CMC (JAR), CHINFO, and CMC (PA).
    (g) DON activities. Each DON activity is responsible for 
implementing and administering a PA program under this subpart and 
subpart G.
    (h) Navy Echelon 2 and 3 Commands and Marine Corps Major Subordinate 
Commands. Each Navy Echelon 2 and 3 Command and Marine Corps Major 
Subordinate Command will designate a PA Coordinator to:

[[Page 100]]

    (1) Serve as principal point of contact on PA matters.
    (2) Advise CNO (DNS-36) promptly of the need to establish a new Navy 
PA system of records; amend or alter an existing Navy system of records; 
or, delete a Navy system of records that is no longer needed.
    (3) Advise CMC (ARSF) promptly of the need to establish a new Marine 
Corps PA system of records; amend or alter an existing Marine Corps 
system of records; or, delete a Marine Corps system of records that is 
no longer needed.
    (4) Ensure no official files are maintained on individuals that are 
retrieved by name or other personal identifier without first ensuring 
that a system of records notice exists that permits such collection.
    (5) Ensure that PA systems of records managers are properly trained 
on their responsibilities for protecting PPI being collected and 
maintained under the DON PA Program.
    (6) Provide overview training to activity/command personnel on the 
provisions of this subpart and subpart G.
    (7) Issue an implementing instruction which designates the 
activity's PA Coordinator, addresses PA records disposition, addresses 
PA processing procedures, identifies those PA systems of records being 
used by their activity; and provide training/guidance to those personnel 
involved with collecting, maintaining, disseminating information from a 
PA system of records.
    (8) Review internal directives, forms, practices, and procedures, 
including those having PA implications and where Statements (PAS) are 
used or PPI is solicited.
    (9) Maintain liaison with records management officials (e.g., 
maintenance and disposal procedures and standards, forms, and reports), 
as appropriate.
    (10) Provide guidance on handling PA requests; scope of PA 
exemptions; and the fees, if any, that may be collected.
    (11) Conduct staff assistance visits or program evaluations within 
their command and lower echelon commands to ensure compliance with the 
PA.
    (12) Work closely with their PA systems managers to ensure they are 
properly trained with regard to collecting, maintaining, and 
disseminating information in a PA system of records notice.
    (13) Process PA complaints.
    (14) Ensure protocols are in place to avoid instances of loss of 
PPI. Should a loss occur, take immediate action to apprise affected 
individuals of how to ensure their identity has not been compromised.
    (15) Work closely with their public affairs officer and/or web 
master to ensure that PPI is not placed on public Web sites or in public 
folders.
    (16) Annually conduct reviews of their PA systems of records to 
ensure that they are necessary, accurate, and complete.
    (17) Provide CNO (DNS-36) or CMC (ARSF) respectively, with a 
complete listing of all PA Coordinators under their jurisdiction. Such 
information should include activity name, complete mailing and E-Mail 
addresses, office code, name of PA Coordinator, and commercial, DSN, and 
FAX telephone numbers.
    (18) Review and validate PIAs for their information systems and 
submit the validation to CNO (DNS-36) for Navy information systems or to 
HQMC (ARSF) for Marine Corps information systems.
    (i) DON employees/contractors. DON employees/contractors are 
responsible for safeguarding the rights of others by:
    (1) Ensuring that PPI contained in a system of records, to which 
they have access or are using to conduct official business, is protected 
so that the security and confidentiality of the information is 
preserved.
    (2) Not disclosing any information contained in a system of records 
by any means of communication to any person or agency, except as 
authorized by this instruction or the specific PA systems of records 
notice.
    (3) Not maintaining unpublished official files that would fall under 
the provisions of 5 U.S.C. 552a.
    (4) Safeguarding the privacy of individuals and confidentiality of 
PPI contained in a system of records.
    (5) Properly marking all documents containing PPI data (e.g., 
letters, E-Mails, message traffic, etc.) as ``FOR OFFICIAL USE ONLY--
PRIVACY

[[Page 101]]

SENSITIVE--Any misuse or unauthorized disclosure can result in both 
civil and criminal penalties.''
    (6) Not maintaining privacy-sensitive information in public folders.
    (7) Reporting any unauthorized disclosure of PPI from a system of 
records to the applicable Privacy Point of Contact (POC) for his/her 
activity.
    (8) Reporting the maintenance of any unauthorized system of records 
to the applicable Privacy POC for his/her activity.
    (j) Denial authority. Within DON, the head of the activity having 
cognizance over an exempt PA system of record is authorized to deny 
access to that information under the exemptions cited in the PA systems 
of records notice. The denial authority may also deny requests to amend 
a system of records or to deny notification that a record exists. As 
deemed appropriate, the head of the activity may further designate 
initial denial authority to an individual properly trained on the 
provisions of the PA and this subpart and subpart G of this part.
    (k) Release authority. Within DON, officials having cognizance over 
a non-exempt PA system of record that is requested by a first party or 
his/her authorized representative are authorized to release records. A 
release authority may also grant requests for notification and amendment 
of systems of records. The PA systems manager, who is properly trained 
on the provisions of 5 U.S.C. 552a, DOD Directive 5400.11 and DOD 
5400.11-R, may be delegated this responsibility.
    (l) Review authority. (1) Assistant Secretary of the Navy (Manpower 
& Reserve Affairs) (ASN(M&RA)) is designated to act upon requests for 
administrative review of initial denials of requests for amendment of 
records related to fitness reports and performance evaluations of 
military personnel.
    (2) Both the JAG and GC are designated to act upon requests for 
administrative review of initial denials of records for notification, 
access, or amendment of records under their cognizance.
    (3) The authority of SECNAV, as the head of an agency, to request 
records subject to the PA from an agency external to DOD for civil or 
criminal law enforcement purposes, under (b)(7) of 5 U.S.C. 552a, is 
delegated to CMC; the Commander, Naval Criminal Investigative Service; 
JAG and GC.
    (m) System manager. System managers are responsible for overseeing 
the collection, maintenance, use, and dissemination of information from 
a PA system of records and ensuring that all personnel who have access 
to those records are aware of their responsibilities for protecting PPI 
that is being collected or maintained. In this capacity, they shall:
    (1) Establish appropriate administrative, technical, and physical 
safeguards to ensure the records in every system of records are 
protected from unauthorized alteration, destruction, or disclosure.
    (2) Protect the records from reasonably anticipated threats or 
hazards that could result in substantial harm, embarrassment, 
inconvenience, or unfairness to any individual on whom information is 
maintained.
    (3) Work closely with their coordinator to ensure that all personnel 
who have access to a PA system of records are properly trained on their 
responsibilities under the PA. Training materials may be downloaded from 
http://www.privacy.navy.mil.
    (4) Ensure that no illegal files are maintained.

    Note: Official files on individuals that are retrieved by name and/
or personal identifier must be approved and published in the Federal 
Register.

    (5) Review annually each PA system of records notice under their 
cognizance to determine if the records are up-to-date and/or used in 
matching programs and whether they are in compliance with the OMB 
Guidelines. Such items as organization names, titles, addresses, etc., 
frequently change and should be reported to CNO (DNS-36) for updating 
and publication in the Federal Register.
    (6) Work with IT personnel to identify any new information systems 
being developed that contain PPI. If a PA systems notice does not exist 
to allow for the collection, assist in creating a new systems notice 
that permits collection.
    (7) Complete and maintain a PIA for those systems that collect, 
maintain or

[[Page 102]]

disseminate IIF, according to DON PIA guidance found at http://
www.privacy.navy.mil and http://www.doncio.navy.mil.
    (8) Complete and maintain a disclosure accounting form for all 
disclosures made without the consent of the record subject, except those 
made within DOD or under FOIA. (See 701.111).
    (9) Ensure that only those DOD/DON officials with a ``need to know'' 
in the official performance of their duties has access to information 
contained in a system of records.
    (10) Ensure safeguards are in place to protect the privacy of 
individuals and confidentiality of PPI contained in a system of records.
    (11) Ensure that records are maintained in accordance with the 
identified PA systems of records notice.
    (12) Ensure that each newly proposed PA system of records notice is 
evaluated for need and relevancy and confirm that no existing PA system 
of records notice covers the proposed collection.
    (13) Stop collecting any category or item of information about 
individuals that is no longer justified, and when feasible remove the 
information from existing records.
    (14) Ensure that records are kept in accordance with retention and 
disposal requirements set forth in SECNAVINST 5720.47B.
    (15) Take reasonable steps to ensure the accuracy, relevancy, 
timeliness, and completeness of a record before disclosing the record to 
anyone outside the Federal Government.
    (16) Identify all systems of records that are maintained in whole or 
in part by contractor personnel, ensuring that they are properly trained 
and that they are routinely inspected for PA compliance.



Sec. 701.105  Policy.

    DON recognizes that the privacy of an individual is a personal and 
fundamental right that shall be respected and protected and that PPI 
shall be collected, maintained, used, or disclosed to ensure that it is 
relevant and necessary to accomplish a lawful DON/DOD purpose required 
to be accomplished by statute or Executive Order (E.O.). Accordingly, it 
is DON policy that DON activities shall fully comply with 5 U.S.C. 552a, 
DOD Directive 5400.11 and DOD 5400.11-R to protect individuals from 
unwarranted invasions of privacy when information is collected, 
processed, maintained, or disseminated. To ensure compliance, DON 
activities shall follow the procedures listed in this section.
    (a) Collection, maintenance and use. (1) Only maintain systems of 
records that have been approved and published in the Federal Register. 
(See http://www.privacy.navy.mil for a list of all DOD, Navy, Marine 
Corps, and component systems of records notices, as well as, links to 
Government-wide systems that the DON is eligible to use).

    Note: CNO (DNS-36) can assist Navy activities in identifying 
existing systems that may meet their needs and HQMC (ARSF) can assist 
Marine Corps activities.

    (2) Only collect, maintain, and use PPI needed to support a DON 
function or program as authorized by law or E.O. and disclose this 
information only as authorized by 5 U.S.C. 552a, this subpart and 
subpart G of this part. In assessing need, DON activities shall consider 
alternatives such as: truncating the SSN by only using the last four 
digits; using information that is not individually identifiable; using a 
sampling of certain data for certain individuals only. Additionally, 
they shall consider the length of time the information is needed and the 
cost of maintaining the information compared to the risks and adverse 
consequences of not maintaining the information.
    (3) Only maintain PPI that is timely, accurate, complete, and 
relevant to the purpose for which it was collected.
    (4) DON activities shall not maintain records describing how an 
individual exercises his/her rights guaranteed by the First Amendment 
(freedom of religion; freedom of political beliefs; freedom of speech; 
freedom of the press; the right to peaceful assemblage; and petition for 
redress of grievances), unless they are: expressly authorized by 
statute; authorized by the individual; within the scope of an authorized 
law enforcement activity; or are used for the maintenance of certain 
items of information relating to religious affiliation for members of 
the naval service who are chaplains.


[[Page 103]]


    Note: This should not be construed, however, as restricting or 
excluding solicitation of information that the individual is willing to 
have in his/her record concerning religious preference, particularly 
that required in emergency situations.

    (b) Disposal. Dispose of records from systems of records to prevent 
inadvertent disclosure. To this end:
    (1) Disposal methods are considered adequate if the records are 
rendered unrecognizable or beyond reconstruction (e.g., tearing, 
burning, melting, chemical decomposition, burying, pulping, pulverizing, 
shredding, or mutilation). Magnetic media may be cleared by completely 
erasing, overwriting, or degaussing the tape.
    (2) DON activities may recycle PA data. Such recycling must be 
accomplished to ensure that PPI is not compromised. Accordingly, the 
transfer of large volumes of records in bulk to an authorized disposal 
activity is not considered a disclosure of records.
    (3) When disposing of or destroying large quantities of records from 
a system of records, DON activities must ensure that the records are 
disposed of to preclude easy identification of specific records.
    (c) Individual access. (1) Allow individuals to have access to and/
or copies of all or portions of their records to which they are 
entitled. In the case of a legal guardian or custodial parent of a 
minor, they have the same rights as the individual he/she represents. A 
minor is defined as an individual under the age of 18. In the case of 
members of the Armed Forces under the age of 18, they are not considered 
to be minors for the purposes of the PA.
    (2) Enter all PA first-party access requests into a tracking system 
and assign a case file number. (Files should comply with DON PA systems 
of records notice NM05211-1, PA Request Files and Tracking System at 
http://www.privacy.navy.mil/notices.)
    (3) Allow individuals to seek amendment of their records when they 
can identify and provide proof that factual information contained 
therein is erroneous, untimely, incomplete, or irrelevant. While 
opinions are not subject to amendment, individuals who are denied access 
to amending their record may have a statement of disagreement added to 
the file.
    (4) Allow individuals to appeal decisions that deny them access to 
or refusal to amend their records. If a request to amend their record is 
denied, allow the individual to file a written statement of 
disagreement.
    (d) Posting and use of PA sensitive information. (1) Do not post PPI 
on an Internet site. Also, limit the posting and use of PA sensitive 
information on an Intranet Web site, letter, FAX, e-mail, etc.
    (2) When posting or transmitting PPI, ensure the following legend is 
posted on the document: ``FOR OFFICIAL USE ONLY--PRIVACY ACT SENSITIVE: 
Any misuse or unauthorized disclosure of this information may result in 
both criminal and civil penalties.''
    (e) Safeguarding PPI. DON activities shall establish appropriate 
administrative, technical and physical safeguards to ensure that the 
records in every system of records are protected from unauthorized 
alteration or disclosure and that their confidentiality is protected. 
Protect the records against reasonably anticipated threats of hazards 
that could result in substantial harm, embarrassment, inconvenience, or 
unfairness to any individual about whom information is kept. At a 
minimum, DON activities shall:
    (1) Tailor system safeguards to conform to the type of records in 
the system, the sensitivity of the PPI stored, the storage medium used, 
and the number of records maintained.
    (2) Treat all unclassified records that contain PPI that normally 
would be withheld from the public under FOIA exemptions (b)(6) and 
(b)(7)(C) as if they were designated ``For Official Use Only'' and 
safeguard them from unauthorized disclosure.
    (3) Ensure that privacy considerations are addressed in the 
reengineering of business processes and take proactive steps to ensure 
compliance with the PA and 5 U.S.C. 552a as they move from conducting 
routine business via paper to electronic media.
    (4) Recognize the importance of protecting the privacy of its 
members, especially as it modernizes its collection systems. Privacy 
issues must be addressed when systems are being developed, and privacy 
protections must be

[[Page 104]]

integrated into the development life cycle of automated systems. This 
applies also to contractors, vendors, and other entities that develop, 
procure, or use IT systems under contract to DOD/DON, to collect, 
maintain, or disseminate IIF from or about members of the public (see 
Sec. 701.115).
    (5) Ensure that adequate safeguards are implemented and enforced to 
prevent misuse, unauthorized disclosure, alteration, or destruction of 
PPI in records per 5 U.S.C. 552a, this subpart and subpart G of this 
part.



Sec. 701.106  Collecting information about individuals.

    (a) Collecting information directly from the individual. To the 
greatest extent practicable, collect information for systems of records 
directly from the individual to whom the record pertains if the record 
may be used to make an adverse determination about the individual's 
rights, benefits, or privileges under a Federal program.
    (b) Collecting information about individuals from third persons. It 
may not always be practical to collect all information about an 
individual directly. For example, when verifying information through 
other sources for security or employment suitability determinations; 
seeking other opinions, such as a supervisor's comments on past 
performance or other evaluations; obtaining the necessary information 
directly from the individual would be exceptionally difficult or would 
result in unreasonable costs or delays; or, the individual requests or 
consents to contacting another person to obtain the information.
    (c) Soliciting the SSN. (1) It is unlawful for any Federal, State, 
or local government agency to deny an individual a right, benefit, or 
privilege provided by law because the individual refuses to provide his/
her SSN. However, this prohibition does not apply if a Federal law 
requires that the SSN be provided, or the SSN is required by a law or 
regulation adopted before January 1, 1975, to verify the individual's 
identity for a system of records established and in use before that 
date.
    (2) Before requesting an individual to provide the SSN, the 
individual must be advised whether providing the SSN is mandatory or 
voluntary; by what law or other authority the SSN is solicited; and what 
uses will be made of the SSN.
    (3) The preceding advice relates only to the SSN. If other 
information about the individual is solicited for a system of records, a 
PAS also must be provided.
    (4) The notice published in the Federal Register for each system of 
records containing SSNs solicited from individuals must indicate the 
authority for soliciting the SSNs and whether it is mandatory for the 
individuals to provide their SSN. E.O. 9397 requires Federal Agencies to 
use SSNs as numerical identifiers for individuals in most Federal 
records systems. However, it does not make it mandatory for individuals 
to provide their SSNs.
    (5) When entering military service or civilian employment with the 
DON, individuals are asked to provide their SSNs. In many instances, 
this becomes the individual's numerical identifier and is used to 
establish personnel, financial, medical, and other official records (as 
authorized by E.O. 9397). The individuals must be given the notification 
described above. Once the individual has provided his/her SSN to 
establish a record, a notification is not required when the SSN is 
requested only for identification or to locate the records.
    (6) DON activities are discouraged from collecting SSNs when another 
identifier would suffice. In those instances where activities wish to 
differentiate individuals, they may find it advantageous to only collect 
the last four digits of the individual's SSN, which is not considered to 
be privacy sensitive.
    (7) If a DON activity requests an individual's SSN even though it is 
not required by Federal statute, or is not for a system of records in 
existence and operating prior to January 1, 1975, it must provide a PAS 
and make it clear that disclosure of the number is voluntary. Should the 
individual refuse to disclose his/her SSN, the activity must be prepared 
to identify the individual by alternate means.
    (d) Contents of a PAS. (1) When an individual is requested to 
furnish PPI for possible inclusion in a system of

[[Page 105]]

records, a PAS must be provided to the individual, regardless of the 
method used to collect the information (e.g., forms, personal or 
telephonic interview, etc). If the information requested will not be 
included in a system of records, a PAS is not required.
    (2) The PAS shall include the following:
    (i) The Federal law or E.O. that authorizes collection of 
information (i.e., E.O. 9397 authorizes collection of SSNs);
    (ii) Whether or not it is mandatory for the individual to provide 
the requested information. (Note: It is only mandatory when a Federal 
law or E.O. of the President specifically imposes a requirement to 
furnish the information and provides a penalty for failure to do so. If 
furnishing information is a condition precedent to granting a benefit or 
privilege voluntarily sought by the individual, then the individual may 
decline to provide the information and decline the benefit);
    (iii) The principal purposes for collecting the information;
    (iv) The routine uses that will be made of the information (e.g., to 
whom and why it will be disclosed outside DOD); and
    (v) The possible effects on the individual if the requested 
information is not provided.
    (3) The PAS must appear on the form used to collect the information 
or on a separate form that can be retained by the individual collecting 
the information. If the information is collected by a means other than a 
form completed by the individual, i.e., solicited over the telephone, 
the PAS should be read to the individual and if requested by the 
individual, a copy sent to him/her. There is no requirement that the 
individual sign the PAS.
    (e) Format for a PAS. When forms are used to collect information 
about individuals for a system of records, the PAS shall appear as 
follows (listed in the order of preference):
    (1) Immediately below the title of the form;
    (2) Elsewhere on the front page of the form (clearly indicating it 
is the PAS);
    (3) On the back of the form with a notation of its location below 
the title of the form; or,
    (4) On a separate form which the individual may keep.
    (f) Using forms issued by non-DOD activities. Forms subject to the 
PA issued by other Federal agencies have a PAS attached or included. DON 
activities shall ensure that the statement prepared by the originating 
agency is adequate for the purpose for which the form will be used by 
the DON activity. If the PAS provided is inadequate, the DON activity 
concerned shall prepare a new statement or a supplement to the existing 
statement before using the form. Forms issued by agencies not subject to 
the PA (state, municipal, and local agencies) do not contain a PAS. 
Before using a form prepared by such agencies to collect PPI subject to 
this subpart and subpart G, an appropriate PAS must be added.



Sec. 701.107  Record access.

    The access provisions of this subpart and subpart G of this part are 
intended for use by individuals about whom records are maintained in 
systems of records. Accordingly, only individuals seeking first party 
access to records retrieved by their name and/or personal identifier 
from a system of records have access under the provisions of 5 U.S.C. 
552a, this subpart and subpart G of this part, unless they provide 
written authorization for their representative to act on their behalf. 
(See Sec. 701.107(e) regarding access by custodial parents and legal 
guardians.)
    (a) How to request records. Individuals shall address requests for 
access to records retrieved by their name and/or personal identifier to 
the PA systems manager or to the office designated in the paragraph 
entitled, ``Record Access Procedures.''
    (1) DON activities may not require an individual to state a reason 
or justify the need to gain access under 5 U.S.C. 552a, this subpart and 
subpart G of this part.
    (2) However, an individual must comply with the requirements of the 
PA and this instruction in order to seek access to records under the 
provisions of 5 U.S.C. 552a, this subpart and subpart G of this part. 
Specifically, individuals seeking access to records about themselves 
that are maintained in a PA system of records must sign their

[[Page 106]]

request and provide specific identifying data to enable a search for the 
requested record. Failure to sign the request or to provide sufficient 
identifying data to locate the record will result in the request being 
returned for non-compliance with the ``Record Access Procedures'' cited 
in the PA system of records notice.
    (b) Authorized access. (1) Individuals may authorize the release of 
all or part of their records to anyone they choose provided they submit 
a signed authorization to that DON activity. Such authorization must 
specifically state the records to which the individual may have access.
    (2) Individuals may be accompanied by anyone they choose when 
seeking to review their records. In such instance, DON activities shall 
require the individual to provide a written authorization to allow the 
record to be discussed in front of the other person.
    (c) Failure to comply. First party requesters will be granted access 
to their records under the provisions of the PA, unless:
    (1) They did not properly identify the records being sought; did not 
sign their request; and/or failed to provide sufficient identifying data 
to locate the requested record(s);
    (2) They are seeking access to information in a system of records 
that is exempt from disclosure in whole or in part under the provisions 
of 5 U.S.C. 552a;
    (3) They are seeking access to information that was compiled in 
anticipation of a civil action or proceeding (i.e., 5 U.S.C. 552a(d)(5) 
applies). The term ``civil action or proceeding'' includes quasi-
judicial and pre-trial judicial proceedings, as well as formal 
litigation. However, this does not prohibit access to records compiled 
or used for purposes other than litigation or to records frequently 
subject to litigation. The information must have been compiled for the 
primary purpose of litigation to be withheld under 5 U.S.C. 552a(d)(5); 
or
    (4) They are seeking access to information contained in the system 
that is currently and properly classified (see 5 U.S.C. 552a(k)(1)).
    (d) Blanket requests. Many DON activities are unable to respond to 
``blanket'' requests from individuals for access or copies of ``all 
records pertaining to them,'' because they do not have a centralized 
index that would allow them to query by name and personal identifier to 
identify ``all files.'' Accordingly, it is the requester's 
responsibility to identify the specific PA system of records notice for 
which they seek information. To assist the requester in identifying such 
systems, DON activities shall apprise the requester that a listing of 
all DON PA systems of records can be downloaded from http://
www.privacy.navy.mil and that they should identify the specific records 
they are seeking and write directly to the PA systems manager listed in 
the notice, following the guidance set forth under the section entitled 
``Record Access Procedures'' of the notice.
    (e) Access by custodial parents and legal guardians. The custodial 
parent of any minor, or the legal guardian of any individual declared by 
a court of competent jurisdiction to be incompetent due to physical or 
mental incapacity or age, may obtain access to the record of the minor 
or incompetent individual under the provisions of the PA, if they are 
acting on behalf of/in the best interest of/for the benefit of the minor 
or incompetent. If the systems manager determines that they are not 
acting on behalf of/in the best interest of/for the benefit of the minor 
or incompetent, access will not be granted under the PA and the request 
will be processed under FOIA (5 U.S.C. 552). See 701.122 regarding 
access to medical records.
    (f) Access by a minor or incompetent. The right of access of the 
parent or legal guardian is in addition to that of the minor or 
incompetent. Although a minor or incompetent has the same right of 
access as any other individual under this subpart and subpart G of this 
part, DON activities may wish to ascertain whether or not the individual 
is being coerced to obtain records for the benefit of another. If so, 
the activity may refuse to process the request under the provisions of 
PA.
    (g) Requests from members of Congress. Requests received from a 
Member of Congress on behalf of a constituent shall be processed under 
the provisions of the PA and this subpart and subpart

[[Page 107]]

G of this part if the requester is seeking access to records about the 
constituent contained in a non-exempt PA system of records (i.e., first 
party request). Otherwise, the request will be processed under the 
provisions of the FOIA (see 5 U.S.C. 552) since the request is received 
from a third party (i.e., not the record subject).
    (1) The DOD ``Blanket Routine Uses'' enables DON activities to 
process requests from Members of Congress on behalf of their 
constituents without submitting a written authorization from the 
constituent granting authorization to act on their behalf.
    (2) In those instances where the DON activity wishes to verify that 
a constituent is seeking assistance from a Member of Congress, an oral 
or written statement by a Congressional staff member is sufficient to 
confirm that the request was received from the individual to whom the 
record pertains.
    (3) If the constituent inquiry is made on behalf of an individual 
other than the record subject (i.e., a third party requester), advise 
the Member of Congress that a written consent from the record subject is 
required before information may be disclosed. Do not contact the record 
subject to obtain consent for the disclosure to the Member of Congress, 
unless specifically requested by the Member of Congress.
    (4) Depending on the sensitivity of the information being requested, 
a DON activity may choose to provide the record directly to the 
constituent and notify the congressional office that this has been done 
without providing the record to the congressional member.
    (h) Release of PPI. Release of PPI to individuals under the PA and/
or this subpart or subpart G is not considered to be a public release of 
information.
    (i) Verification of identity. (1) An individual shall provide 
reasonable verification of identity before obtaining access to records. 
In the case of seeking to review a record in person, identification of 
the individual can be verified by documents they normally carry (e.g., 
identification card, driver's license, or other license, permit/pass). 
DON activities shall not, however, deny access to an individual who is 
the subject of the record solely for refusing to divulge his/her SSN, 
unless it is the only means of retrieving the record or verifying 
identity.
    (2) DON activities may not insist that a requester submit a 
notarized signature to request records. Instead, the requester shall be 
offered the alternative of submitting an unsworn declaration that states 
``I declare under perjury or penalty under the laws of the United States 
of America that the foregoing is true and correct.''
    (j) Telephonic requests. DON activities shall not honor telephonic 
requests nor unsigned E-Mail/FAX/letter requests for first party access 
to a PA system of records.
    (k) Denials. (1) An individual may be denied access to a record 
pertaining to him/her only if the record was compiled in reasonable 
anticipation of civil action; is in a system of records that has been 
exempted from the access provisions of this subpart and subpart G of 
this part under one of the permitted exemptions; contains classified 
information that has been exempted from the access provision of this 
instruction under the blanket exemption for such material claimed for 
all DOD PA systems of records; is contained in a system of records for 
which access may be denied based on some other federal statute.
    (2) Only deny the individual access to those portions of the records 
for which the denial of access serves some legitimate governmental 
purpose.
    (3) Only a designated denial authority may deny access to 
information contained in an exempt PA system of records. The denial must 
be in writing and at a minimum include the name, title or position and 
signature of the designated denial authority; the date of the denial; 
the specific reason for the denial, including specific citation to the 
appropriate sections of the PA or other statutes, this instruction, or 
CFR authorizing the denial; notice to the individual of his/her right to 
appeal the denial through the component appeal procedure within 60 
calendar days; and, the title or position and address of the PA appeals 
official for the DON.
    (l) Illegible or incomplete records. DON activities may not deny an 
individual access to a record solely because the physical condition or 
format of the

[[Page 108]]

record does not make it readily available (i.e., when the record is in a 
deteriorated state or on magnetic tape). DON activities may either 
prepare an extract or recopy the document and mark it ``Best Copy 
Available.''
    (m) Personal notes. (1) Certain documents under the physical control 
of a DON employee and used to assist him/her in performing official 
functions are not considered ``agency records'' within the meaning of 
this instruction. Un-circulated personal notes and records that are not 
disseminated or circulated to any person or organization (e.g., personal 
telephone lists or memory aids) that are retained or discarded at the 
author's discretion and over which the DON activity does not exercise 
direct control, are not considered ``agency records.'' However, if 
personnel are officially directed or encouraged, either in writing or 
orally, to maintain such records, they may become ``agency records,'' 
and may be subject this subpart and subpart G of this part.
    (2) The personal uncirculated handwritten notes of unit leaders, 
office supervisors, or military supervisory personnel concerning 
subordinates are not systems of records within the meaning of this 
instruction. Such notes are an extension of the individual's memory. 
These notes, however, must be maintained and discarded at the discretion 
of the individual supervisor and not circulated to others. Any 
established requirement to maintain such notes (such as, written or oral 
directives, regulations, or command policy) make these notes ``agency 
records'' and they then must be made a part of a system of records. If 
the notes are circulated, they must be made a part of a system of 
records. Any action that gives personal notes the appearance of official 
agency records is prohibited, unless the notes have been incorporated 
into a system of records.
    (n) Compiled in anticipation of litigation. An individual is not 
entitled to access information compiled in reasonable anticipation of a 
civil action or proceeding. Accordingly, deny access under 5 U.S.C. 
552a(d)(5) and then process under FOIA (SECNAVINST 5740.42F) to 
determine releasibility.



Sec. 701.108  Amendment of records.

    Amendments under this subpart and subpart G of this part are limited 
to correcting factual or historical matters (i.e., dates and locations 
of service, participation in certain actions of activities, not matters 
of opinion (e.g., evaluations of work performance and assessments of 
promotion potential contained in employee evaluations, fitness reports, 
performance appraisals, or similar documents)) except when such matters 
of opinion are based solely on inaccurate facts and the accuracy of 
those facts has been thoroughly discredited.
    (a) Individual review and correction. Individuals are encouraged to 
make periodic reviews of the information maintained about them in 
systems of records and to avail themselves of the amendment procedures 
established by 5 U.S.C. 552a, this subpart and subpart G of this part, 
and other regulations to update their records.
    (b) Eligibility. An individual may request amendment of a record 
retrieved by his/her personal identifier from a system of records, 
unless the:
    (1) System has been exempt from the amendment procedure under 5 
U.S.C. 552a and/or
    (2) Record is covered by another procedure for correction, such as 
by the Board for Correction of Naval Records.
    (c) Amendment requests. Amendment requests shall be in writing, 
except for routine administrative changes, such as change of address.
    (1) An amendment request must include: a description of the factual 
or historical information to be amended; the reason for the amendment; 
the type of amendment action sought (e.g., deletion, correction, or 
addition); and copies of available documentary evidence that support the 
request.
    (2) The burden of proof rests with the individual. The individual 
must demonstrate the existence of specific evidence establishing the 
factual or historical inaccuracy, and in the case of matters of opinion, 
must specifically discredit the underlying facts. General allegations of 
error are inadequate.
    (3) The individual may be required to provide identification to 
prevent the inadvertent or intentional amendment of another's record.

[[Page 109]]

    (d) Limits on attacking evidence previously submitted. (1) The 
amendment process is not intended to permit the alteration of evidence 
presented in the course of judicial or quasi-judicial proceedings. Any 
amendments or changes to these records normally are made through the 
specific procedures established for the amendment of such records.
    (2) Nothing in the amendment process is intended or designed to 
permit a collateral attack upon what has already been the subject of a 
judicial or quasi-judicial determination. However, while the individual 
may not attack the accuracy of the judicial or quasi-judicial 
determination under this instruction, he/she may challenge the accuracy 
of the recording of that action.
    (e) Sufficiency of a request to amend. DON activities shall consider 
the following factors when evaluating the sufficiency of a request to 
amend: the accuracy of the information itself and the relevance, 
timeliness, completeness, and necessity of the recorded information for 
accomplishing an assigned mission or purpose.
    (f) Time limits. Within 10 working days of receiving an amendment 
request, the systems manager shall provide the individual a written 
acknowledgement of the request. If action on the amendment request is 
completed within the 10 working days and the individual is so informed, 
no separate acknowledgment is necessary. The acknowledgment must clearly 
identify the request and advise the individual when to expect 
notification of the completed action. Only under exceptional 
circumstances should more than 30 working days be required to complete 
the action on an amendment request.
    (g) Granting an amendment request in whole or in part. A record must 
be accurate, relevant, timely, complete, and necessary. If the record in 
its present state does not meet each of the criteria, the requester's 
request to amend the record should be granted to the extent necessary to 
meet them.
    (1) Notify the requester. To the extent the amendment request is 
granted, the systems manager shall notify the individual and make the 
appropriate amendment.
    (2) Notify previous recipients. Notify all previous recipients of 
the information (as reflected in the disclosure accounting record) that 
the amendment has been made and provide each a copy of the amended 
record. Recipients who are no longer retaining the record need not be 
advised of the amendment. If it is known that other naval activities, 
DOD components, or Federal Agencies have been provided the information 
that now requires amendment, or if the individual requests that these 
agencies be notified, provide the notification of amendment even if 
those activities or agencies are not listed on the disclosure accounting 
form.
    (h) Denying an amendment request. If an amendment request is denied 
in whole or in part, promptly notify the individual in writing and 
include the following information in the notification:
    (1) Those sections of 5 U.S.C. 552a, this subpart or subpart G of 
this part upon which the denial is based;
    (2) His/her right to appeal to the head of the activity for an 
independent review of the initial denial;
    (3) The procedures for requesting an appeal, including the title and 
address of the official to whom the appeal should be sent; and
    (4) Where the individual can receive assistance in filing the 
appeal.
    (i) Requests for amendment of OPM records. The records in an OPM 
Government-wide system of records are only temporarily in the custody of 
DON activities. See the appropriate OPM Government-wide systems notice 
at http://www.defenselink.mil/privacy/govwide for guidance on how to 
seek an amendment of information. The custodian DON denial authority may 
deny a request, but all denials are subject to review by the Assistant 
Director for Workforce Information, Office of Merit Systems Oversight 
and Effectiveness, Office of Personnel Management, 1900 E Street, NW., 
Washington, DC 20415.
    (j) Individual's statement of disagreement. (1) If the review 
authority refuses to amend the record as requested, the individual may 
submit a concise statement of disagreement listing the reasons for 
disagreeing with the refusal to amend.

[[Page 110]]

    (2) If possible, DON activities shall incorporate the statement of 
disagreement into the record. If that is not possible, annotate the 
record to reflect that the statement was filed and maintain the 
statement so that it can be readily obtained when the disputed 
information is used or disclosed.
    (3) Furnish copies of the statement of disagreement to all 
individuals listed on the disclosure accounting form (except those no 
longer retaining the record), as well as to all other known holders of 
copies of the record.
    (4) Whenever the disputed information is disclosed for any purpose, 
ensure that the statement of disagreement is also disclosed.
    (k) Statement of reasons. (1) If the individual files a statement of 
disagreement, the DON activity may file a statement of reasons 
containing a concise summary of the activity's reasons for denying the 
amendment request.
    (2) The statement of reasons shall contain only those reasons given 
to the individual by the appellate official and shall not contain any 
comments on the individual's statement of disagreement.
    (3) At the discretion of the DON activity, the statement of reasons 
may be disclosed to those individuals, activities, and agencies that 
receive the statement of disagreement.



Sec. 701.109  Privacy Act (PA) appeals.

    (a) How to file an appeal. Individuals wishing to appeal a denial of 
notification, access, or amendment of records shall follow these 
guidelines:
    (1) The appeal must be received by the cognizant review authority 
(i.e., ASN (M&RA), OJAG, OGC, or OPM) within 60 calendar days of the 
date of the response.
    (2) The appeal must be in writing and requesters should provide a 
copy of the denial letter and a statement of their reasons for seeking 
review.
    (b) Time of receipt. The time limits for responding to an appeal 
commence when the appeal reaches the office of the review authority 
having jurisdiction over the record. Misdirected appeals should be 
referred expeditiously to the proper review authority and the requester 
notified.
    (c) Review authorities. ASN (M&RA), JAG, and GC are authorized to 
adjudicate appeals made to SECNAV. JAG and GC are further authorized to 
delegate this authority to a designated Assistant JAG or Deputy 
Assistant JAG and the Principal Deputy General Counsel or Deputy General 
Counsel, respectively, under such terms and conditions as they deem 
appropriate.
    (1) If the record is from a civilian Official Personnel Folder or is 
contained on any other OPM forms, send the appeal to the Assistant 
Director for Workforce Information, Personnel Systems and Oversight 
Group, Office of Personnel Management, 1900 E Street, NW., Washington, 
DC 20415. Records in all systems of records maintained in accordance 
with the OPM Government-wide systems notices are only in the temporary 
custody of the DON.
    (2) If the record pertains to the employment of a present or former 
Navy or Marine Corps civilian employee, such as Navy or Marine Corps 
civilian personnel records or an employee's grievance or appeal file, 
send it to the General Counsel of the Navy, 1000 Navy Pentagon, 
Washington, DC 20350-1000.
    (3) If the record pertains to a present or former military member's 
fitness reports or performance evaluations, send it to the Assistant 
Secretary of the Navy (Manpower and Reserve Affairs), 1000 Navy 
Pentagon, Washington, DC 20350-1000.
    (4) All other records dealing with present or former military 
members should be sent to the Office of the Judge Advocate General, 1322 
Patterson Avenue SE., Suite 3000, Washington Navy Yard, DC 20374-5066.
    (d) Appeal procedures. (1) If the appeal is granted, the review 
authority shall advise the individual that his/her appeal has been 
granted and provide access to the record being sought.
    (2) If the appeal is denied totally or in part, the appellate 
authority shall advise the reason(s) for denying the appeal, citing the 
appropriate subsections of 5 U.S.C. 552a or this subpart and subpart G 
of this part; the date of the appeal determination; the name, title, and 
signature of the appellate authority; and a statement informing the 
requester of his/her right to seek judicial relief in the Federal 
District Court.

[[Page 111]]

    (e) Final action, time limits and documentation. (1) The written 
appeal notification granting or denying access is the final naval 
activity action on the initial request for access.
    (2) All appeals shall be processed within 30 working days of 
receipt, unless the appellate authority finds that an adequate review 
cannot be completed within that period. If additional time is needed, 
notify the applicant in writing, explaining the reason for the delay and 
when the appeal will be completed.
    (f) Denial of appeal by activity's failure to act. An individual may 
consider his/her appeal denied if the appellate authority fails to:
    (1) Take final action on the appeal within 30 working days of 
receipt when no extension of time notice was given; or
    (2) Take final action within the period established by the notice to 
the appellate authority of the need for an extension of time to complete 
action on the appeal.



Sec. 701.110  Conditions of disclosure.

    The PA identifies 12 conditions of disclosure whereby records 
contained in a system of records may be disclosed by any means of 
communication to any person, or to another agency, except pursuant to a 
written request by, or with the prior written consent of, the individual 
to whom the record pertains. These instances are identified as:
    (a) Official need to know. Records pertaining to an individual may 
be disclosed without the consent of the individual to any DOD official 
who has need for the record in the performance of his/her assigned 
duties. Rank, position, or title alone does not authorize access to PPI 
about others. An official need must exist before disclosure can be made. 
For the purposes of disclosure, DOD is considered a single agency.

    Note: No disclosure accounting required.

    (b) FOIA. Records must be disclosed if their release is required by 
FOIA. 5 U.S.C. 552 and SECNAVINST 5720.42F require that records be made 
available to the public unless exempted from disclosure by one of the 
nine FOIA exemptions found in the Act. It follows, therefore, that if a 
record is not exempt from disclosure, it must be released. Note: No 
disclosure accounting required.
    (c) Routine use. Each DON PA system of records notice identifies 
what records may be disclosed outside DOD without consent of the 
individual to whom the record pertains.

    Note: Disclosure accounting is required.

    (1) A routine use shall be compatible with and related to the 
purpose for which the record was compiled; identify the persons or 
organizations to whom the record may be released; identify specifically 
the uses to which the information may be put by the receiving agency; 
and, have been published previously in the Federal Register.
    (2) A routine use shall be established for each user of the 
information outside the DOD who needs the information for an official 
purpose.
    (3) A routine use may be established, discontinued, or amended 
without the consent of the individuals involved. However, new or changed 
routine uses must be published in the Federal Register for at least 30 
days before actually disclosing the records.
    (4) In addition to specific routine uses, the DOD has identified 
certain ``Blanket Routine Uses'' that apply to all systems, unless the 
systems notice states that they do not. (See Sec. 701.112 regarding 
Blanket Routine Uses.)
    (d) Bureau of Census. Records may be disclosed to the Bureau of 
Census for purposes of planning or carrying out a census or survey or 
related activity pursuant to the provisions of Title 13.

    Note: Disclosure accounting is required.

    (e) Statistical research and reporting. Records may be disclosed for 
statistical research and reporting without the consent of the individual 
to whom they pertain. Before such disclosures, the recipient must 
provide advance written assurance that the records will be used as 
statistical research or reporting records; only to transferred in a form 
that is not individually identifiable; and will not be used, in whole or 
in part, to make any determination about rights, benefits, or 
entitlements of specific individuals.

    Note: Disclosure accounting is required.

    (f) National Archives and Records Administration (NARA). Records may 
be

[[Page 112]]

disclosed to NARA as a record that has sufficient historical or other 
value to warrant its continued preservation by the U.S. Government, or 
for evaluation by the Archivist of the U.S. or his designee to determine 
whether the record has such value.

    Note: Disclosure accounting is required.

    (1) Records may be disclosed to NARA to carry out records management 
inspections required by law.
    (2) Records transferred to a Federal Records Center (FRC) operated 
by NARA for storage are not within this category. Those records continue 
to be maintained and controlled by the transferring DON activity. The 
FRC is considered to be the agency of the DON for this purpose.
    (g) Disclosures for law enforcement purposes. Records may be 
disclosed without the consent of the individual whom they pertain to 
another agency or to an instrumentality of any governmental jurisdiction 
within or under the control of the U.S. for a civil or criminal law 
enforcement activity provided the civil or criminal law enforcement 
activity is authorized by law; the head of the law enforcement activity 
or a designee has made a written request specifying the particular 
records desired and the law enforcement purpose (such as criminal 
investigations, enforcement of a civil law, or a similar purpose) for 
which the record is sought; and there is no Federal statute that 
prohibits the disclosure of the records to the agency which maintains 
the record specifying the particular portion desired and the law 
enforcement activity for which the record is sought.
    (1) Disclosure to foreign law enforcement agencies is not governed 
by the provisions of 5 U.S.C. 552a. To enable disclosure, a specific 
routine use must be published in the record system notice or another 
governing authority must exist.
    (2) If a DON activity discloses a record outside the DOD for law 
enforcement purposes without the individual's consent and without an 
adequate written request, the disclosure must be under an established 
routine use, such as the ``Blanket Routine Use'' for law enforcement.
    (3) Blanket requests from law enforcement activities for all records 
pertaining to an individual shall not be honored. The requesting agency 
must specify each record or portion desired and how each relates to the 
authorized law enforcement activity.
    (4) When a record is released to a law enforcement activity under 
this routine use, DON activities shall maintain a disclosure accounting. 
This disclosure accounting shall not be made available to the individual 
to whom the record pertains if the law enforcement activity requests 
that the disclosure not be released.
    (5) The Blanket Routine Use for law enforcement records applies to 
all DON PA systems of records notices. Only by including this routine 
use can a DON activity on its own initiative report indications of 
violations of law found in a system of records to a law enforcement 
activity without the consent of the individual to whom the record 
pertains.
    (h) Emergency disclosures. Records may be disclosed without the 
written consent of the individual to whom they pertain if disclosure is 
made under compelling circumstances affecting the health or safety of 
any individual. The affected individual need not be the subject of the 
record disclosed.

    Note: Disclosure accounting is required.

    (1) When such a disclosure is made, notify the individual who is the 
subject of the record. Notification sent to the last known address of 
the individual reflected in the records is sufficient.
    (2) In instances where information is requested by telephone, an 
attempt will be made to verify the inquirer's and medical facility's 
identities and the caller's telephone number.
    (3) The specific data to be disclosed is at the discretion of the 
releasing authority. Emergency medical information may be released by 
telephone.
    (i) Disclosure to Congress. (1) Records may be disclosed without the 
consent of the individual to whom they pertain to either house of the 
Congress or to any committee, joint committee or subcommittee of 
Congress if the release pertains to a matter within the jurisdiction of 
the committee. Note: Disclosure accounting is required.
    (2) See Sec. 701.107(g) regarding how to process constituent 
inquiry requests.

[[Page 113]]

    (j) Government Accountability Office (GAO). Records may be disclosed 
to the Comptroller General, or any of his authorized representatives, in 
the course of the performance of the duties of the GAO.

    Note: Disclosure accounting is required.

    (k) Court orders. Records may be disclosed without the consent of 
the person to whom they pertain under a court order signed by a judge of 
a court of competent jurisdiction. Releases may also be made under the 
compulsory legal process of Federal and state bodies having authority to 
issue such process.

    Note: Disclosure accounting is required.

    (1) The court order must bear the signature of a Federal, state, or 
local judge. Orders signed by court clerks or attorneys are not deemed 
to be orders of a court of competent jurisdiction. A photocopy of the 
order will be sufficient evidence of the court's exercise of its 
authority of the minimal requirements of SECNAVINST 5820.8A, ``Release 
of Official Information for Litigation Purposes and Testimony by DON 
Personnel.''
    (2) When a record is disclosed under this provision and the 
compulsory legal process becomes a matter of public record, make 
reasonable efforts to notify the individual to whom the record pertains. 
Notification sent to the last known address of the individual is 
sufficient. If the order has not yet become a matter of public record, 
seek to be advised as to when it will become public. Neither the 
identity nor the party to whom the disclosure was made nor the purpose 
of the disclosure shall be made available to the record subject unless 
the court order has become a matter of public record.
    (l) Disclosures to consumer reporting agencies. Certain information 
may be disclosed to a consumer reporting agency in accordance with 
section 3711(f) of Title 31.

    Note: Certain information (e.g., name, address, SSN, other 
information necessary to establish the identity of the individual; 
amount, status, and history of the claim; and the agency or program 
under which the claim arose, may be disclosed to consumer reporting 
agencies (i.e., credit reference companies as defined by the Federal 
Claims Collection Act of 1966, 31 U.S.C. 952d).
    Note: Disclosure accounting is required.



Sec. 701.111  Disclosure accounting.

    Disclosure accounting allows the individual to determine what 
agencies or persons have been provided information from the record, 
enable DON activities to advise prior recipients of the record of any 
subsequent amendments or statements of dispute concerning the record, 
and provide an audit trail of DON's compliance with 5 U.S.C. 552a. Since 
the characteristics of various records maintained within the DON vary 
widely, no uniform method for keeping disclosure accountings is 
prescribed. The primary criteria are that the selected method be one 
which will enable an individual to ascertain what persons or agencies 
have received disclosures pertaining to him/her; provide a basis for 
informing recipients of subsequent amendments or statements or dispute 
concerning the record; and, provide a means to prove, if necessary, that 
the activity has complied with the requirements of 5 U.S.C. 552a, this 
subpart and subpart G of this part.
    (a) Record of disclosures made. DON activities must keep an accurate 
record of all disclosures made from a record (including those made with 
the consent of the individual) except those made to DOD personnel for 
use in performing their official duties and those disclosures made under 
FOIA. Accordingly, each DON activity with respect to each system of 
records under its control must keep a record of the date of the 
disclosure, a description of the information disclosed, the purpose of 
the disclosure, and the name and address of the person or agency to whom 
the disclosure was made. OPNAV Form 5211/9, Disclosure Accounting Form, 
is downloadable from http://www.privacy.navy.mil and should be used 
whenever possible to account for disclosures.

    Note: DON activities do not have to maintain a disclosure accounting 
for disclosures made under (b)(1), to those officers and employees of an 
agency which maintains the record who have a need for the record in the 
performance of their duties or under (b)(2)--which is required under 
FOIA.

    (b) Retention. Disclosure accountings must be kept for five years 
after the

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disclosure is made or for the life of the record, whichever is longer.
    (c) Right of access. The record subject has the right of access to 
the disclosure accounting except when the disclosure was made at the 
request of a civil or criminal law enforcement agency or when the system 
of records has been exempted from the requirement to provide access to 
the disclosure accounting.
    (d) Correction. A DON activity must inform any person or other 
agency about any correction or notation of dispute made by the agency in 
accordance with subsection (d) of 5 U.S.C. 552a of any record that has 
been disclosed to the person or agency if an accounting of the 
disclosure was made. The exception is for intra-agency ``need to know'' 
and FOIA disclosures.
    (e) Accurate accounting. A DON activity that does not keep a running 
tabulation of every disclosure at the time it is made, must be able to 
reconstruct an accurate and complete accounting of disclosures to be 
able to respond to requests in a timely fashion.



Sec. 701.112  ``Blanket routine uses.''

    In the interest of simplicity, economy, and to avoid redundancy, DOD 
has established ``DOD Blanket Routine Uses.'' These ``blanket routine 
uses'' are applicable to every PA system of records notice maintained 
within DOD, unless specifically stated within a particular systems 
notice. ``DOD Blanket Routine Uses'' are downloadable from http://
www.privacy.navy.mil (Notices) and are published at the beginning of the 
Department of the Navy's Federal Register compilation of record systems 
notices.



Sec. 701.113  PA exemptions.

    (a) Exempt systems of records. 5 U.S.C. 552a authorizes SECNAV to 
adopt rules designating eligible systems of records as exempt from 
certain requirements of the Act. This authorization has been delegated 
to CNO (DNS-36), who will be responsible for proposing an exemption 
rule. Exempt systems of records are identified at http://
www.privacy.navy.mil.
    (b) Exemption rule. No PA exemption may be established for a system 
of records until the system itself has been established by publishing a 
notice in the Federal Register. This allows interested persons an 
opportunity to comment.
    (c) Access. A PA exemption may not be used to deny an individual 
access to information that he/she can obtain under 5 U.S.C. 552.
    (d) Exemption status. An exempt system of records that is filed in a 
non-exempt system of records retains its exempt status.
    (e) Types of exemptions. There are two types of exemptions permitted 
by 5 U.S.C. 552a, general and specific exemptions.
    (1) General exemptions allow a system of records to be exempt from 
all but specifically identified provisions of 5 U.S.C. 552a. They are:
    (i) ``(j)(1)''--this exemption is only available for use by CIA to 
protect access to their records.
    (ii) ``(j)(2)''--this exemption protects criminal law enforcement 
records maintained by the DON. To be eligible, the system of records 
must be maintained by a DON activity that performs, as one of its 
principal functions, the enforcement of criminal laws. For example, the 
Naval Criminal Investigative Service and military police activities 
qualify for this exemption. Criminal law enforcement includes police 
efforts to detect, prevent, control, or reduce crime, or to apprehend 
criminals and the activities of prosecution, court, correctional, 
probation, pardon, or parole authorities.
    (A) This exemption applies to information compiled for the purpose 
of identifying criminal offenders and alleged criminal offenders and 
identifying data and notations of arrests; the nature and disposition of 
criminal charges; and sentencing, confinement, release, parole and 
probation status; information compiled for the purpose of a criminal 
investigation, including reports of informants and investigators, and 
associated with the identifiable individual; and reports identifiable to 
an individual, compiled at any stage of the enforcement process, from 
arrest, apprehension, indictment, or preferral of charges through final 
release from the supervision that resulted from the commission of a 
crime.

[[Page 115]]

    (B) The exemption does not apply to investigative records maintained 
by a DON activity having no criminal law enforcement duties as one of 
its principle functions; or investigative records compiled by any 
element concerning an individual's suitability, eligibility; or, 
qualification for duty, employment, or access to classified information, 
regardless of the principle functions of the DON activity that compiled 
them.
    (2) Specific exemptions permit certain categories of records to be 
exempted from specific provisions of 5 U.S.C. 552a. They are:
    (i) ``(k)(1)'': Information which is properly classified under E.O. 
in the interest of national defense or foreign policy.
    Note: All DOD systems of records that contain classified information 
automatically qualify for (k)(1) exemption, without establishing an 
exemption rule.
    (ii) ``(k)(2)'': Investigatory material compiled for law enforcement 
purposes, other than material within the scope of exemption (j)(2). If 
an individual is denied any right, privilege, or benefit that he would 
otherwise be eligible, as a result of such material, such material shall 
be provided to such individual, except to the extent that the disclosure 
would reveal the identity of a source who furnished information to the 
Government under an express promise that the identity of the source 
would be held in confidence, or, prior to 27 September 1975 under an 
implied promise that the identity of the source would be held in 
confidence.
    (iii) ``(k)(3)'': Information maintained in connection with 
providing protective services to the President of the United States or 
other individuals pursuant to section 3056 of Title 18.
    (iv) ``(k)(4)'': Information required by statute to be maintained 
and used solely as statistical records.
    (v) ``(k)(5)'': Investigatory material compiled solely for the 
purpose of determining suitability, eligibility, or qualifications for 
Federal civilian employment, military service, Federal contracts, or 
access to classified information, but only to the extent that the 
disclosure of such material would reveal the identity of a source who 
furnished information to the Government under an express promise that 
the identity of the source would be held in confidence, or, prior to 
September 27, 1975, under an implied promise that the identity of the 
source would be held in confidence.
    (vi) ``(k)(6)'': Testing and evaluation material used solely to 
determine individual qualifications for appointment or promotion in the 
Federal service the disclosure of which would compromise the objectivity 
or fairness of the testing or examination process.
    (vii) ``(k)(7)'': Evaluation material used to determine potential 
for promotion in the armed services, but only to the extent that the 
disclosure of such material would reveal the identity of the source who 
furnished information to the government under an express promise that 
the identity of the source would be held in confidence, or, prior to 
September 27, 1975, under an implied promise that the identity of the 
source would be held in confidence.
    (f) Detailed analysis of PA exemptions. A detailed analysis of each 
exemption can be found in the Department of Justice's (DOJ's) ``Freedom 
of Information Act Guide & Privacy Act Overview'' that appears on http:/
/www.privacy.navy.mil.



Sec. 701.114  PA enforcement actions.

    (a) Administrative remedies. Any individual who alleges that he/she 
has been affected adversely by a DON activity's violation of 5 U.S.C. 
552a and this subpart may seek relief from SECNAV through administrative 
channels. It is recommended that the individual first address the issue 
through the PA coordinator having cognizance over the relevant records 
or supervisor (if a Government employee). If the complaint is not 
adequately addressed, the individual may contact CNO (DNS-36) or CMC 
(ARSF), for assistance.
    (b) Civil court actions. After exhausting administrative remedies, 
an individual may file a civil suit in Federal court against a DON 
activity for the following acts:
    (1) Denial of an amendment request. The activity head, or his/her 
designee wrongfully refuses the individual's request for review of the 
initial denial of an amendment or, after review, wrongfully refuses to 
amend the record.

[[Page 116]]

    (2) Denial of access. The activity wrongfully refuses to allow the 
individual to review the record or wrongfully denies his/her request for 
a copy of the record.
    (3) Failure to meet recordkeeping standards. The activity fails to 
maintain an individual's record with the accuracy, relevance, 
timeliness, and completeness necessary to assure fairness in any 
determination about the individual's rights, benefits, or privileges 
and, in fact, makes an adverse determination based on the record.
    (4) Failure to comply with PA. The activity fails to comply with any 
other provision of 5 U.S.C. 552a or any rule or regulation issued under 
5 U.S.C. 552a and thereby causes the individual to be adversely 
affected.
    (c) Civil remedies. In addition to specific remedial actions, 5 
U.S.C. 552a provides for the payment of damages, court costs, and 
attorney fees in some cases.
    (d) Criminal penalties. 5 U.S.C. 552a authorizes criminal penalties 
against individuals for violations of its provisions, each punishable by 
fines up to $5,000.
    (1) Wrongful disclosure. Any member or employee of DON who, by 
virtue of his/her employment or position, has possession of or access to 
records and willfully makes a disclosure knowing that disclosure is in 
violation of 5 U.S.C. 552a, this subpart or subpart G.
    (2) Maintaining unauthorized records. Any member or employee of DON 
who willfully maintains a system of records for which a notice has not 
been approved and published in the Federal Register.
    (3) Wrongful requesting or obtaining records. Any person who 
knowingly and willfully requests or obtains any record concerning an 
individual from an agency under false pretenses.
    (e) Litigation notification. Whenever a complaint citing the PA is 
filed in a U.S. District Court against the DON or any DON employee, the 
responsible DON activity shall promptly apprise CNO (DNS-36)) and 
provide a copy of all relevant documents. CNO (DNS-36) will in turn 
apprise the DPO, who will apprise the DOJ. When a court renders a formal 
opinion or judgment, copies of the judgment and/or opinion shall be 
promptly provided to CNO (DNS-36). CNO (DNS-36) will apprise the DPO.



Sec. 701.115  Protected personal information (PPI).

    (a) Access/disclosure. Access to and disclosure of PPI such as SSN, 
date of birth, home address, home telephone number, etc., must be 
strictly limited to individuals with an official need to know. It is 
inappropriate to use PPI in group/bulk orders. Activities must take 
action to protect PPI from being widely disseminated. In particular, PPI 
shall not be posted on electronic bulletin boards because the PA 
strictly limits PPI access to those officers and employees of the agency 
with an official need to know.
    (b) Transmittal. In those instances where transmittal of PPI is 
necessary, the originator must take every step to properly mark the 
correspondence so that the receiver of the information is apprised of 
the need to properly protect the information. For example, when 
transmitting PPI in a paper document, FAX, or E-Mail, it may be 
appropriate to mark it ``FOR OFFICIAL USE ONLY (FOUO)--PRIVACY 
SENSITIVE. Any misuse or unauthorized disclosure may result in both 
civil and criminal penalties.'' When sending a message that contains 
PPI, it should be marked FOUO. It is also advisable to inform the 
recipient that the message should not be posted on a bulletin board. In 
all cases, recipients of message traffic that contain PPI, whether 
marked FOUO or not, must review it prior to posting it on an electronic 
bulletin board.
    (c) Collection/maintenance. The collection and maintenance of 
information retrieved by an individual's name and/or personal identifier 
should be performed in compliance with the appropriate PA systems of 
record notice (see http://www.privacy. navy.mil). If you need to collect 
and maintain information retrieved by an individual's name and/or 
personal identifier, you must have an approved PA systems notice to 
cover that collection. If you are unsure as to whether a systems notice 
exists or not, contact the undersigned for assistance.

[[Page 117]]

    (d) Best practices. PA Coordinators should work closely with command 
officials to conduct training, evaluate what PPI can be removed from 
routine message traffic, review Web site postings, review command 
electronic bulletin boards, etc., to ensure appropriate processes are in 
place to minimize the misuse and overuse of PPI information that could 
be used to commit identity theft. PA Coordinators should also ensure 
that their PA systems of records managers have a copy of the appropriate 
PA systems notice and understand PA rules. DON activities shall ensure 
that PPI (e.g., home address, date of birth, SSN, credit card or charge 
card account numbers, etc.) pertaining to a Service member, civilian 
employee (appropriated and non-appropriated fund), military retiree, 
family member, or another individual affiliated with the activity (i.e., 
volunteer) is protected from unauthorized disclosures. To this end, DON 
activities shall:
    (1) Notify their personnel of this policy. Address steps necessary 
to ensure that PPI is not compromised.
    (2) Conduct and document privacy awareness training for activity 
personnel (e.g., military, civilian, contractor, volunteers, NAF 
employees, etc.) Training options include: ``All Hands'' awareness 
briefing; memo to staff; formal training; circulation of brief sheet on 
Best Practices, etc.
    (3) Examine business practices to eliminate the unnecessary 
collection, transmittal and posting on internet/intranet of PPI. DON 
activities shall reevaluate the necessity and value of including an 
individual's SSN and other PPI in messages, e-mails, and correspondence 
in order to conduct official business. The overuse and misuse of SSNs 
should be discontinued to avoid the potential for identity theft. For 
example, there is no need to include an individual's SSN in a welcome 
aboard message. Such messages are routinely posted on command bulletin 
boards that are viewable by all. If a unique identifier is needed, 
truncate the SSN using only the last four digits.
    (4) Mark all documents that contain PPI (e.g., letters, memos, 
emails, messages, documents FAXed, etc) FOUO. Consider using a header/
footer that reads: ``FOR OFFICIAL USE ONLY--PRIVACY SENSITIVE: ANY 
MISUSE OR UNAUTHORIZED DISCLOSURE MAY RESULT IN BOTH CIVIL AND CRIMINAL 
PENALTIES.''
    (5) Train DON military members/employees who maintain PPI on their 
laptop computers/BlackBerrys, who telecommute, work from home, or take 
work home, etc., to ensure information is properly safeguarded against 
loss/compromise. Should a loss occur, ensure they are aware of how, 
what, and where to report the loss.
    (6) Review existing postings on activity Web sites and public 
folders to ensure that the PPI is removed to prevent identity theft.
    (7) Remove PPI from documents prior to posting or circulating 
information to individuals without an ``official need to know.''
    (8) Evaluate risks for potential compromise of PPI held in activity 
files, databases, etc., to ensure proper safeguards are in place to 
prevent unauthorized disclosures. Revise protocols as necessary.
    (9) Ensure that PPI is not left out in the open or circulated to 
individuals not having an official need to know.
    (10) Ensure that PA systems of records are properly safeguarded and 
that PPI is properly destroyed (http://www.privacy.navy.mil/
noticenumber/noticeindex.asp).
    (11) Organizations that are moving or being disestablished need to 
ensure they do not dispose of documents containing PPI in containers 
that may be subject to public access/compromise.
    (12) DON activities shall build a Privacy Team to identify ways to 
preclude inadvertent releases of PPI.
    (e) Unauthorized disclosure. In the event an unauthorized disclosure 
of PPI is made, DON activities shall:
    (1) Take immediate action to prohibit further damage/disclosure.
    (2) Within 10 days, the DON activity shall notify all affected 
individuals by letter, including the specific data involved and the 
circumstances surrounding the incident. If the DON activity is unable to 
readily identify the affected individuals, a generalized notice should 
be sent to the potentially affected population. As part of any 
notification process, individuals shall be

[[Page 118]]

informed to visit the Federal Trade Commission's (FTC's) Web site at 
http://www.consumer.gov/idtheft for guidance on protective actions the 
individual can take. A synopsis of the disclosure made, number of 
individuals affected, actions to be taken, should be e-mailed to CNO 
(DNS-36) with ``Identity Theft Notification'' in the subject line.
    (3) If the DON activity is unable to comply with the notification 
requirements set forth in paragraph (e)(2) of this section, the activity 
shall immediately inform CNO (DNS-36) as to the reasons why. CNO (DNS-
36) will, in turn, notify the Secretary of Defense.
    (4) DON activities shall identify ways to preclude future incidents.



Sec. 701.116  PA systems of records notices overview.

    (a) Scope. A ``system of records notice'' consists of ``records'' 
that are routinely retrieved by the name, or some other personal 
identifier, of an individual and under the control of the DON.
    (b) Retrieval practices. How a record is retrieved determines 
whether or not it qualifies to be a system of records. For example, 
records must be retrieved by a personal identifier (name, SSN, date of 
birth, etc.) to qualify as a system of records. Accordingly, a record 
that contains information about an individual but IS NOT RETRIEVED by a 
personal identifier does not qualify as a system of records under the 
provisions of the PA. (Note: The ``ability to retrieve'' is not 
sufficient to warrant the establishment of a PA system of records. The 
requirement is retrieval by a name or personal identifier.) Should a 
business practice change, DON activities shall immediately contact CNO 
(DNS-36) to discuss the pending change, so that the systems notice can 
be changed or deleted as appropriate.
    (c) Recordkeeping standards. A record maintained in a system of 
records subject to this instruction must meet the following criteria:
    (1) Be accurate. All information in the record must be factually 
correct.
    (2) Be relevant. All information contained in the record must be 
related to the individual who is the record subject and must be related 
to a lawful purpose or mission of the DON activity maintaining the 
record.
    (3) Be timely. All information in the record must be reviewed 
periodically to ensure that it has not changed due to time or later 
events.
    (4) Be complete. It must be able to stand alone in accomplishing the 
purpose for which it is maintained.
    (5) Be necessary. All information in the record must be needed to 
accomplish a mission or purpose established by Federal Law or E.0. of 
the President.
    (d) Approval. CNO (DNS-36) is the approval authority for Navy PA 
systems of records actions. CMC (ARSF) is the approval authority for 
Marine Corps PA systems of records actions. Activities wishing to 
create, alter, amend, or delete systems should contact CNO (DNS-36) or 
CMC (ARSF), respectively. Those officials will assist in electronically 
preparing and coordinating the documents for DOD/Congressional approval, 
as electronic processing is both time and cost efficient.
    (e) Publication in the Federal Register. Per DOD 5400.11-R, the DPO 
has responsibility for submitting all rulemaking and changes to PA 
system of records notices for publication in the Federal Register and 
CFR.



Sec. 701.117  Changes to PA systems of records.

    CNO (DNS-36) is the approval authority for Navy/DON PA systems of 
records actions. CMC (ARSF) is the approval authority for Marine Corps 
PA systems of records actions. DON activities wishing to create, alter, 
amend, or delete systems should contact CNO (DNS-36) or CMC (ARSF), who 
will assist in electronically preparing the documents for coordination 
and DOD/Congressional approval.
    (a) Creating a new system of records. (1) A new system of records is 
one for which no existing system notice has been published in the 
Federal Register. DON activities wishing to establish a new PA system of 
records notice shall contact CNO (DNS-36) (regarding Navy system of 
records) or CMC (ARSF) (regarding Marine Corps system of records.) These 
officials will assist in the preparation and approval of the notice. 
Once approval is obtained

[[Page 119]]

from DOD, the systems notice will be published in the Federal Register 
for comment by the public. In the case of an exempt system of records, 
it will also be published at 32 CFR part 701. A listing of all DON PA 
systems of records notices is available at http://www.privacy.navy.mil.
    (2) A DON activity may not begin collecting or maintaining PPI about 
individuals that is retrieved by their name and/or personal identifier 
until a PA system of records notice has been approved and published in 
the Federal Register. Failure to comply with this mandate could result 
in both criminal and civil penalties.
    (3) In those cases where a system of records has been cancelled or 
deleted and it is later determined that it should be reinstated or 
reused, a new system notice must be prepared.
    (4) DON activities wishing to create a new PA system of records must 
conduct a risk analysis of the proposed system to consider the 
sensitivity and use of the records; present and projected threats and 
vulnerabilities; and projected cost effectiveness of safeguards. (See 
Sec. 701.118 regarding PIAs.)
    (b) Altering a system of records notice. A systems manager shall 
contact CNO (DNS-36)/CMC (ARSF) to alter a PA system of records notice 
when there has been:
    (1) A significant increase or change in the number or types of 
individuals about who records are maintained. For example, a decision to 
expand a system of records that originally covered personnel assigned to 
only one activity to cover personnel at several installations would 
constitute an altered system. An increase or decrease in the number of 
individuals covered due to normal growth or decrease is not an 
alteration.
    (2) A change that expands the types or categories of information 
maintained.
    (3) A change that alters the purpose for which the information is 
used. In order to be an alteration, the change must be one that is not 
reasonably inferred from any of the existing purposes.
    (4) A change that adds a new routine use.
    (5) A change to equipment configuration (either hardware or 
software) that creates substantially greater use of records in the 
system. For example, placing interactive computer terminals at regional 
offices when the system was formerly used only at the headquarters would 
be an alteration.
    (6) A change in the manner in which records are organized or in the 
method by which records are retrieved.
    (7) A combining of record systems due to reorganization.
    (c) Amending a system of records notice. DON activities should 
apprise CNO (DNS-36) or CMC (ARSF) respectively when a minor change has 
been made to a system of records.
    (d) Deleting a system of records notice. When a system of records is 
discontinued, incorporated into another system, or determined to be no 
longer subject to this instruction, a deletion notice must be published 
in the Federal Register. The deletion notice shall include the system 
identification number, system name, and the reason for deleting it. If a 
system is deleted through incorporation into or merger with another 
system, identify the successor system in the deletion notice. Systems 
managers who determine that a systems notice is no longer needed should 
contact CNO (DNS-36)/CMC (ARSF) who will prepare the deletion notice and 
submit it electronically to DOD for publication in the Federal Register.
    (e) Numbering a system of records notice. Systems of records notices 
are identified with an ``N'' for a Navy system; ``M'' for a Marine Corps 
system; or an ``NM'' to identify a DON-wide system, followed by the 
subject matter Standard Subject Identification Code (SSIC).
    (f) Detailed information. Detailed information on how to write, 
amend, alter, or delete a PA system of records notice is contained at 
http://www.privacy.navy.mil.



Sec. 701.118  Privacy, IT, and PIAs.

    (a) Development. Privacy must be considered when requirements are 
being analyzed and decisions are being made about data usage and storage 
design. This applies to all of the development methodologies and system 
life cycles used in the DON.

[[Page 120]]

    (b) E-Government Act of 2002. The E-Government Act of 2002 (Pub. L. 
107-347) directs agencies to conduct reviews of how privacy issues are 
considered when purchasing or creating new IT systems or when initiating 
new electronic collections of IIF. See DOD Memo of 28 Oct 05, subject 
``DOD PIA Guidance'' regarding DOD PIA Guidance.
    (c) Purpose. To ensure IIF is only acquired and maintained when 
necessary and the supporting IT that is being developed and used 
protects and preserves the privacy of the American public and to provide 
a means to assure compliance with applicable laws and regulations 
governing employee privacy. A PIA should be prepared before developing 
or procuring a general support system or major application that 
collects, maintains, or disseminates IIF from or about DON civilian or 
military personnel.
    (d) Scope. The PIA incorporates privacy into the development life 
cycle so that all system development initiatives can appropriately 
consider privacy issues from the earliest stages of design. During the 
early stages of the development of a system, both the system owner and 
system developer shall work together to identify, evaluate, and resolve 
any privacy risks. Accordingly,
    (1) System owners must address what data is to be used, how the data 
is to be used, and who will use the data.
    (2) System developers must address whether the implementation of the 
owner's requirements presents any threats to privacy.
    (e) Requirements. Before developing, modifying or establishing an 
automated system of records that collects, maintains, and/or 
disseminates IIF, DON activities shall conduct a PIA to effectively 
address privacy factors. Guidance is provided at http://
www.doncio.navy.mil.
    (f) Coverage. E-Government Act of 2002 (Pub. L. 107-347) mandates 
the preparation of a PIA either before developing or procuring IT 
systems that collect, maintain, or disseminate IIF from or about members 
of the public or initiating a new electronic collection of IIF for 10 or 
more persons of the public. (Note: The public DOES NOT include DON 
civilian or military personnel, but DOES cover family members of such 
personnel, retirees and their family members, and DON contractors.) A 
PIA should be prepared before developing, modifying, or procuring IT 
systems that collect, maintain, or disseminate IIF from or about members 
of the public or initiating a new electronic collection of IIF for 10 or 
more members of the public. A PIA shall also be prepared before 
developing, modifying or procuring a general support system or major 
application that collects, maintains, or disseminates IIF from or about 
DON civilian and military personnel.
    (g) PIA not required. (1) Legacy systems do not require completion 
of a PIA. However, DON CIO may request a PIA if the automation or 
upgrading of these systems puts the data at risk.
    (2) Current operational systems do not require completion of a PIA. 
However, if privacy is a concern for a system the DON CIO can request 
that a PIA be completed. If a potential problem is identified concerning 
a currently operational system, the DON will use all reasonable efforts 
to remedy the problem.



Sec. 701.119  Privacy and the web.

    DON activities shall consult SECNAVINST 5720.47B for guidance on 
what may be posted on a Navy Web site.



Sec. 701.120  Processing requests that cite or imply PA, Freedom of Information (FOIA), or PA/FOIA.

    Individuals do not always know what Act(s) to cite when requesting 
information. Nonetheless, it is DON policy to ensure that they receive 
the maximum access to information they are requesting. Accordingly, 
processing guidance is as follows:
    (a) Cite/imply PA. (1) Individuals who cite to the PA and/or seek 
access to records about themselves that are contained in a PA system of 
records that is retrieved by their name and personal identifier, will 
have their request processed under the provisions of the PA.
    (2) If there is no ``Exemption Claimed for this System,'' then the 
record will be released to the requester unless: it contains classified 
information ((k)(1)

[[Page 121]]

applies); was compiled in anticipation of litigation ((d)(5) applies); 
or contains information about another person. Although there is no 
``privacy'' exemption under the PA, delete any information about other 
persons and explain in the response letter that ``information not about 
you'' was deleted from the response. There is no PA exemption to claim 
and no appeal rights to be given.
    (b) Cite/imply FOIA. (1) Individuals who cite/imply FOIA when 
seeking access to records about themselves will have their request 
processed under PA, if the records they seek are contained in a PA 
system of records that is retrieved by their name and personal 
identifier. However, if the system of records notice contains an 
exemption rule, the release of information will be adjudicated using 
both PA and FOIA, ensuring that the individual receives the maximum 
amount of information allowable under the Acts.
    (2) Individuals who cite/imply FOIA and seek access to records about 
themselves that are not contained in a PA system of records that is 
retrieved by their name and personal identifier will have their request 
processed under FOIA.
    (3) Individuals who cite to the FOIA, but do not seek access to 
records about themselves, will have their request processed under FOIA.
    (c) Cite to PA and FOIA. Individuals who cite to both PA and FOIA 
and seek access to records contained in a PA system of record retrieved 
by their name and personal identifier, will have their request as 
follows:
    (1) If the system of records does not cite to an exemption rule, 
does not contain classified information, or was not compiled in 
anticipation of litigation, the entire file is considered releasable 
under the PA. However, if the file contains information about another 
person, that information shall be withheld and the requester apprised 
that information about another individual has been deleted, since the 
information is not about them. Since no PA exemption exists for 
protecting privacy, no exemption rule can be cited and appeal rights do 
not have to be given.
    (2) If the system of records does cite to a PA exemption rule, claim 
the exemption and process the request under the provisions of the FOIA, 
ensuring the requester receives the maximum release of information 
allowed under the Acts.
    (d) Processing time limits. DON activities shall normally 
acknowledge receipt of PA requests within 10 working days and respond 
within 30 working days.



Sec. 701.121  Processing ``routine use'' disclosures.

    (a) ``Routine use'' disclosure. Individuals or organizations may 
seek a ``routine use'' disclosure of information from a DON PA system of 
records if the system provides for such a disclosure.
    (1) The request must be in writing and state that it is being made 
under a ``routine use'' established by a specific PA system of records 
notice. For example: ``Under the ``routine use'' provisions of PA 
systems notice N05880-1, Security Incident System, that allows release 
of information to individuals involved in base incidents, their 
insurance companies, and/or attorneys for the purpose of adjudicating a 
claim, I am seeking access to a copy of my vehicle accident report to 
submit a claim to my insurance company. Information needed to locate 
this record is as follows * * *.''
    (2) The individual is provided information needed to adjudicate the 
claim. A release authority may sign the response letter since a release 
of responsive information is being disclosed under a ``routine use,'' 
there is no ``denial'' of information (i.e., PA/FOIA exemptions do not 
apply), and no appeal rights cited.
    (3) DON activities shall retain a copy of the request and maintain a 
disclosure accounting of the information released. (See Sec. 701.111.)
    (b) Failure to cite to a ``routine use.'' Individuals or 
organizations that seek access to information contained in a DON PA 
system of records under PA/FOIA, but who have access under a ``routine 
use'' cited in the systems notice, shall be apprised of the ``routine 
use'' access and offered the opportunity to resubmit a ``routine use'' 
request, rather than having information denied under PA/FOIA. DON 
activities shall not make a ``routine use'' disclosure

[[Page 122]]

without having a ``routine use'' request.
    (c) Frequent ``routine use'' requests. DON activities (e.g., 
security and military police offices) that routinely receive requests 
for information for which a ``routine use'' has been established should 
offer a ``routine use'' request form. This will eliminate the 
unnecessary burden of processing requests under PA/FOIA when the limited 
information being sought is available under a ``routine use.''



Sec. 701.122  Medical records.

    (a) Health Information Portability and Accountability Act (HIPAA). 
(1) DOD Directive 6025.18 establishes policies and assigns 
responsibilities for implementation of the standards for privacy of 
individually identifiable health information established by HIPAA.
    (2) DOD Directive 6025.18-R prescribes the uses and disclosures of 
protected health information.
    (3) Detailed guidance on HIPAA compliance is available from the 
Bureau of Medicine and Surgery's Web site at http://
navymedicine.med.navy.mil and from DOD at http://www.tricare.osd.mil/
hipaa/.
    (4) In addition to responsibilities to comply with this subpart and 
subpart G of this part, DOD Directive 6025.18 and DOD 6025.18-R must 
also be complied with to the extent applicable. Although nothing in this 
subpart and subpart G violates DOD Directive 6025.18, compliance with 
this subpart and subpart G in connection with protected health 
information does not necessarily satisfy all requirements of DOD 
6025.18-R.
    (b) Disclosure. DON activities shall disclose medical records to the 
individual to whom they pertain, even if a minor, unless a judgment is 
made that access to such records could have an adverse effect on the 
mental or physical health of the individual. Normally, this 
determination shall be made in consultation with a medical practitioner.
    (1) Deny the individual access to his/her medical and psychological 
records if that access could have an adverse affect on the mental or 
physical health of the individual. This determination normally should be 
made in consultation with a medical practitioner. If it is medically 
indicated that access could have an adverse mental or physical effect on 
the individual, provide the record to a medical practitioner named by 
the individual, along with an explanation of why access without medical 
supervision could be harmful to the individual. In any case, do not 
require the named medical practitioner to request the record for the 
individual.
    (2) If, however, the individual refuses or fails to designate a 
medical practitioner, access will be refused. The refusal is not 
considered a denial for reporting purposes under the PA.
    (c) Access to a minor's medical records. DON activities may grant 
access to a minor's medical records to his/her custodial parents or 
legal guardians, observing the following procedures:
    (1) In the United States, the laws of the State where the records 
are located may afford special protection to certain medical records 
(e.g., drug and alcohol abuse treatment and psychiatric records.) Even 
if the records are maintained by a military medical facility, these 
statutes may apply.
    (2) For installations located outside the United States, the 
custodial parent or legal guardian of a minor shall be denied access if 
all of the following conditions are met: the minor at the time of the 
treatment or consultation was 15, 16, or 17 years old; the treatment or 
consultation was within a program authorized by law or regulation to 
provide confidentiality to the minor; the minor indicated a desire that 
the treatment or consultation record be handled in confidence and not 
disclosed to a parent or guardian; and the custodial parent or legal 
guardian does not have the written authorization of the minor or a valid 
court order granting access.
    (3) All members of the military services and all married persons are 
not considered minors regardless of age, and the parents of these 
individuals do not have access to their medical records without the 
written consent of the individual to whom the record pertains.

[[Page 123]]



Sec. 701.123  PA fees.

    The PA fee schedule is only applicable to first party requesters who 
are seeking access to records about themselves that are contained in a 
PA system of record. DON activities receiving requests under PA, FOIA, 
or PA/FOIA shall only charge fees that are applicable under the Act(s) 
in which the request is being processed.
    (a) PA costs. PA fees shall include only the direct cost of 
reproducing the requested record. There are no fees for search, review, 
or any administrative costs associated with the processing of the PA 
request. The cost for reproduction of documents/microfiche will be at 
the same rate as that charged under the FOIA schedule (see SECNAVINST 
5720.42F).
    (b) Fee waiver. A requester is entitled to the first 100 pages of 
duplication for free.
    (1) DON activities shall waive fees automatically if the direct cost 
for reproduction of the remaining pages is less than the minimum fee 
waiver threshold addressed under FOIA fees (see SECNAVINST 5720.42F).
    (2) However, DON activities should not waive fees when it is 
determined that a requester is seeking an extension or duplication of a 
previous request for which he/she was already granted a waiver.
    (3) Decisions to waive or reduce fees that exceed the minimum fee 
waiver threshold are made on a case-to-case basis.
    (c) PA fee deposits. Checks or money orders shall be made payable to 
the Treasurer of the United States. DON activities will forward any 
remittances to the Treasury Department pursuant to the Miscellaneous 
Receipts Act.



Sec. 701.124  PA self assessments/inspections.

    (a) Self assessments. DON activities are encouraged to conduct 
annual self-assessments of their PA program. This serves to identify 
strengths and weaknesses and to determine training needs of personnel 
who work with privacy records/information. A PA self-assessment 
evaluation form is provided at http://www.privacy.navy.mil 
(Administrative Tools) for use in measuring compliance with the PA.
    (b) Inspections. During internal inspections, DON inspectors shall 
be alert for compliance with this instruction and for managerial, 
administrative, and operational problems associated with the 
implementation of the DON's PA program.
    (1) DON inspectors shall document their findings in official reports 
furnished to the responsible DON officials. These reports, when 
appropriate, shall reflect overall assets of the activity's PA program 
inspected, or portion thereof, identify deficiencies, irregularities, 
and significant problems. Also document remedial actions taken to 
correct problems identified.
    (2) Inspection reports and follow-up reports shall be maintained in 
accordance with established records disposition standards (see 
SECNAVINST 5210.8D). These reports shall be made available to PA program 
officials and to CNO (DNS-36)/CMC (ARSF) respectively.
    (c) Retention of reports. Retain staff visit reports and follow-up 
reports per established records disposition standards contained in 
SECNAVINST 5210.8D. Retain self-assessment reports until the next self-
assessment is completed. Make these reports available, upon request, to 
CNO (DNS-36) or CMC (ARSF).



Sec. 701.125  Computer matching program.

    The DPO has responsibility for coordinating the approval of DOD's 
participation in Computer Matching agreements with other Federal, state, 
and local agencies.
    (a) Purpose. To establish or verify initial or continuing 
eligibility for Federal benefit programs; verify compliance with the 
requirements, either statutory or regulatory, of such programs; or 
recoup payments or delinquent debts under such Federal benefit programs.
    (b) Record comparison. The record comparison must be a computerized 
one between two Federal Agencies or one Federal Agency and a state 
agency. Manual comparisons are not covered.
    (c) Types of programs not covered. (1) State programs and programs 
using records about subjects who are not ``individuals'' as defined in 
Sec. 701.101(e) are not covered.

[[Page 124]]

    (2) Statistical matches whose purpose is solely to produce aggregate 
data stripped of personal identifiers.
    (3) Statistical matches whose purpose is in support of any research 
or statistical project.
    (4) Law enforcement investigative matches whose purpose is to gather 
evidence against a named person or persons in an existing investigation.
    (5) Tax administration matches.
    (6) Routine administrative matches using Federal personnel records.
    (7) Internal matches using only records from DOD systems of records.
    (8) Background investigation and foreign counterintelligence matches 
done in the course of performing a background check for security 
clearances of Federal personnel or Federal contractor personnel or 
foreign counterintelligence.
    (d) Categories of individuals covered. Applicants for Federal 
benefit programs (i.e., individuals initially applying for benefits); 
program beneficiaries (i.e., individuals currently receiving or formerly 
receiving benefits); and providers of services to support such programs 
(i.e., those deriving income from them such as health care providers).
    (e) Features of a computer matching program. A computer matching 
program entails not only the actual computerized comparison, but also 
preparing and executing a written agreement between the participants, 
securing approval of the Defense Data Integrity Board, publishing a 
matching notice in the Federal Register before the match begins, 
ensuring that investigation and due process are completed, and taking 
ultimate action, if any.
    (f) Approval/denial of agreements. The Executive Secretary, Defense 
Data Integrity Board, receives and processes for review all requests for 
computer matching agreements involving DOD activities. Members of the 
Defense Data Integrity Board are provided with a copy of the proposed 
computer matching agreement that details the costs associated with the 
match, length of agreement, and the number of computer matches expected, 
for their approval/disapproval.
    (g) Questions. CNO (DNS-36) represents the DON on the Defense Data 
Integrity Board. Questions from DON personnel should be directed to CNO 
(DNS-36).



                    Subpart G_Privacy Act Exemptions

    Source: 71 FR 27536, May 11, 2006, unless otherwise noted.



Sec. 701.126  Purpose.

    Subparts F and G of this part contain rules promulgated by the 
Secretary of the Navy, pursuant to 5 U.S.C. 552a (j) and (k), and 
subpart F, Sec. 701.113, to exempt certain systems of DON records from 
specified provisions of 5 U.S.C. 552a.



Sec. 701.127  Exemption for classified records.

    All systems of records maintained by the DON shall be exempt from 
the requirements of the access provision of the Privacy Act (5 U.S.C. 
552a(d)) under the (k)(1) exemption, to the extent that the system 
contains information properly classified under E.O. 12,958 and that is 
required by that E.O. to be kept secret in the interest of national 
defense or foreign policy. This exemption is applicable to parts of all 
systems of records including those not otherwise specifically designated 
for exemptions herein that contain isolated items of properly classified 
information.



Sec. 701.128  Exemptions for specific Navy record systems.

    (a) System identifier and name:
    (1) N01070-9, White House Support Program.
    (2) Exemption: (i) Information specifically authorized to be 
classified under E.O. 12,958, as implemented by DOD 5200.1-R, may be 
exempt pursuant to 5 U.S.C. 552a(k)(1).
    (ii) Investigatory material compiled for law enforcement purposes 
may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual 
is denied any right, privilege, or benefit for which he would otherwise 
be entitled by Federal law or for which he would otherwise be eligible, 
as a result of the maintenance of such information, the individual will 
be provided access to such information except to the extent that 
disclosure would reveal the identity of a confidential source.

[[Page 125]]

    (iii) Records maintained in connection with providing protective 
services to the President and other individuals under 18 U.S.C. 3506, 
may be exempt pursuant to 5 U.S.C. 552a(k)(3).
    (iv) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (v) Portions of this system of records are exempt from the following 
subsections of the Privacy Act: (c)(3), (d), (e)(1), (e)(4) (G) through 
(I), and (f).
    (3) Authority: 5 U.S.C. 552a(k)(1), (k)(2), (k)(3), and (k)(5).
    (4) Reasons: Exempted portions of this system contain information 
that has been properly classified under E.O. 12,958, and which is 
required to be kept secret in the interest of national defense or 
foreign policy. Exempted portions of this system may also contain 
information considered relevant and necessary to make a determination as 
to qualifications, eligibility, or suitability for access to classified 
information, and which was obtained by providing an express or implied 
promise to the source that his or her identity would not be revealed to 
the subject of the record. Exempted portions of this system may also 
contain information collected and maintained in connection with 
providing protective services to the President and other individuals 
protected pursuant to 18 U.S.C. 3056. Exempted portions of this system 
may also contain investigative records compiled for law enforcement 
purposes, the disclosure of which could reveal the identity of sources 
who provide information under an express or implied promise of 
confidentiality, compromise investigative techniques and procedures, 
jeopardize the life or physical safety of law-enforcement personnel, or 
otherwise interfere with enforcement proceedings or adjudications.
    (b) System identifier and name:
    (1) N01131-1, Officer Selection and Appointment System.
    (2) Exemption: (i) Information specifically authorized to be 
classified under E.O. 12,958, as implemented by DOD 5200.1-R, may be 
exempt pursuant to 5 U.S.C. 552a(k)(1).
    (ii) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (iii) Testing or examination material used solely to determine 
individual qualifications for appointment or promotion in the Federal 
service may be exempt pursuant to 5 U.S.C. 552a(k)(6), if the disclosure 
would compromise the objectivity or fairness of the test or examination 
process.
    (iv) Evaluation material used to determine potential for promotion 
in the Military Services may be exempt pursuant to 5 U.S.C. 552a(k)(7), 
but only to the extent that the disclosure of such material would reveal 
the identity of a confidential source.
    (v) Portions of this system of records are exempt from the following 
subsections of the Privacy Act: (c)(3), (d), (e)(1), (e)(4)(G) through 
(I), and (f).
    (3) Authority: 5 U.S.C. 552a(k)(1), (k)(5), (k)(6), and (k)(7).
    (4) Reasons: Granting individuals access to portions of this system 
of records could result in the disclosure of classified material, or the 
identification of sources who provided information to the government 
under an express or implied promise of confidentiality. Material will be 
screened to permit access to unclassified material and to information 
that does not disclose the identity of a confidential source.
    (c) System identifier and name:
    (1) N01133-2, Recruiting Enlisted Selection System.
    (2) Exemption: (i) Information specifically authorized to be 
classified under E.O. 12,958, as implemented by DOD 5200.1-R, may be 
exempt pursuant to 5 U.S.C. 552a(k)(1).
    (ii) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or

[[Page 126]]

access to classified information may be exempt pursuant to 5 U.S.C. 
552a(k)(5), but only to the extent that such material would reveal the 
identity of a confidential source.
    (iii) Testing or examination material used solely to determine 
individual qualifications for appointment or promotion in the Federal 
service may be exempt pursuant to 5 U.S.C. 552a(k)(6), if the disclosure 
would compromise the objectivity or fairness of the test or examination 
process.
    (iv) Evaluation material used to determine potential for promotion 
in the Military Services may be exempt pursuant to 5 U.S.C. 552a(k)(7), 
but only to the extent that the disclosure of such material would reveal 
the identity of a confidential source.
    (v) Portions of this system of records are exempt from the following 
subsections of the Privacy Act: (c)(3), (d), (e)(1), (e)(4)(G) through 
(I), and (f).
    (3) Authority: 5 U.S.C. 552a(k)(1), (k)(5), (k)(6), and (k)(7).
    (4) Reasons: Granting individuals access to portions of this system 
of records could result in the disclosure of classified material, or the 
identification of sources who provided information to the government 
under an express or implied promise of confidentiality. Material will be 
screened to permit access to unclassified material and to information 
that does not disclose the identity of a confidential source.
    (d) System identifier and name:
    (1) N01640-1, Individual Correctional Records.
    (2) Exemption: (i) Parts of this system may be exempt pursuant to 5 
U.S.C. 552a(j)(2) if the information is compiled and maintained by a 
component of the agency which performs as its principle function any 
activity pertaining to the enforcement of criminal laws.
    (ii) Portions of this system of records are exempt from the 
following subsections of the Privacy Act: (c)(3), (c)(4), (d), (e)(2), 
(e)(3), (e)(4)(G) through (I), (e)(5), (e)(8), (f), and (g).
    (3) Authority: 5 U.S.C. 552a(j)(2).
    (4) Reason: (i) Granting individuals access to portions of these 
records pertaining to or consisting of, but not limited to, disciplinary 
reports, criminal investigations, and related statements of witnesses, 
and such other related matter in conjunction with the enforcement of 
criminal laws, could interfere with the orderly investigations, with the 
orderly administration of justice, and possibly enable suspects to avoid 
detection or apprehension. Disclosure of this information could result 
in the concealment, destruction, or fabrication of evidence, and 
jeopardize the safety and well-being of informants, witnesses and their 
families, and law enforcement personnel and their families. Disclosure 
of this information could also reveal and render ineffectual 
investigative techniques, sources, and methods used by these components 
and could result in the invasion of the privacy of individuals only 
incidentally related to an investigation. The exemption of the 
individual's right of access to portions of these records, and the 
reasons therefore, necessitate the exemption of this system of records 
from the requirement of the other cited provisions.
    (ii) [Reserved]
    (e) System identifier and name:
    (1) N01754-3, Navy Child Development Services Program.
    (2) Exemption: (i) Investigatory material compiled for law 
enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of such 
information, the individual will be provided access to such information 
except to the extent that disclosure would reveal the identity of a 
confidential source.
    (ii) Portions of this system of records are exempt from the 
following subsections of the Privacy Act: (c)(3) and (d).
    (3) Authority: 5 U.S.C. 552a(k)(2).
    (4) Reasons: (i) Exemption is needed in order to encourage persons 
having knowledge of abusive or neglectful acts toward children to report 
such information, and to protect such sources from embarrassment or 
recrimination, as well as to protect their right to privacy. It is 
essential that the identities of all individuals who furnish information 
under an express promise of confidentiality be protected. Additionally,

[[Page 127]]

granting individuals access to information relating to criminal and 
civil law enforcement, as well as the release of certain disclosure 
accountings, could interfere with ongoing investigations and the orderly 
administration of justice, in that it could result in the concealment, 
alteration, destruction, or fabrication of information; could hamper the 
identification of offenders and the disposition of charges; and could 
jeopardize the safety and well being of parents and their children.
    (ii) [Reserved]
    (f) System identifier and name:
    (1) N03834-1, Special Intelligence Personnel Access File.
    (2) Exemption: (i) Information specifically authorized to be 
classified under E.O. 12,958, as implemented by DOD 5200.1-R, may be 
exempt pursuant to 5 U.S.C. 552a(k)(1).
    (ii) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for Federal 
civilian employment, military service, Federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (iii) Portions of this system of records are exempt from the 
following subsections of the Privacy Act: (c)(3), (d), (e)(1), (e)(4) 
(G) through (I), and (f).
    (3) Authority: 5 U.S.C. 552a(k)(1) and (k)(5).
    (4) Reasons: (i) Exempted portions of this system contain 
information that has been properly classified under E.O. 12356, and that 
is required to be kept secret in the interest of national defense or 
foreign policy.
    (ii) Exempted portions of this system also contain information 
considered relevant and necessary to make a determination as to 
qualifications, eligibility, or suitability for access to classified 
information and was obtained by providing an express or implied 
assurance to the source that his or her identity would not be revealed 
to the subject of the record.
    (g) System identifier and name:
    (1) N04060-1, Navy and Marine Corps Exchange Sales and Security 
Files.
    (2) Exemption: (i) Investigatory material compiled for law 
enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of such 
information, the individual will be provided access to such information 
except to the extent that disclosure would reveal the identity of a 
confidential source.
    (ii) Portions of this system of records are exempt from the 
following subsections of the Privacy Act: (c)(3), (d), (e)(4)(G) through 
(I), and (f).
    (3) Authority: 5 U.S.C. 552a(k)(2).
    (4) Reasons: Granting individuals access to information collected 
and maintained by these activities relating to the enforcement of 
criminal laws could interfere with orderly investigations, with orderly 
administration of justice, and possibly enable suspects to avoid 
detection or apprehension. Disclosure of this information could result 
in the concealment, destruction, or fabrication of evidence, and could 
also reveal and render ineffectual investigative techniques, sources, 
and methods used by these activities.
    (h) [Reserved]
    (i) System identifier and name:
    (1) N05041-1, Inspector General (IG) Records.
    (2) Exemption: (i) Information specifically authorized to be 
classified under E.O. 12,958, as implemented by DOD 5200.1-R, may be 
exempt pursuant to 5 U.S.C. 552a(k)(1).
    (ii) Investigatory material compiled for law enforcement purposes 
may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual 
is denied any right, privilege, or benefit for which he would otherwise 
be entitled by Federal law or for which he would otherwise be eligible, 
as a result of the maintenance of such information, the individual will 
be provided access to such information except to the extent that 
disclosure would reveal the identity of a confidential source.
    (iii) Portions of this system of records may be exempt from the 
provisions of 5 U.S.C. 552a(c)(3); (d); (e)(1); (e)(4)(G), (H), and (I); 
and (f).
    (3) Authority: 5 U.S.C. 552a(k)(1) and (k)(2).

[[Page 128]]

    (4) Reasons: (i) From subsection (c)(3) because the release of the 
disclosure accounting would permit individuals to obtain valuable 
information concerning the nature of the investigation and would present 
a serious impediment to the orderly conduct of any investigative 
activities. Such accounting could result in the release of properly 
classified information which would compromise the national defense or 
disrupt foreign policy.
    (ii) From subsections (d) and (f) because access to the records 
would inform individuals of the existence and nature of the 
investigation; provide information that might result in the concealment, 
destruction, or fabrication of evidence; possibly jeopardize the safety 
and well-being of informants, witnesses and their families; likely 
reveal and render ineffectual investigatory techniques and methods and 
sources of information; and possibly result in the invasion of the 
personal privacy of third parties. Access could result in the release of 
properly classified information which could compromise the national 
defense or disrupt foreign policy. Amendment of the records would 
interfere with the ongoing investigation and impose an impossible 
administrative burden by requiring investigations to be continually 
reinvestigated.
    (iii) From subsection (e)(1) because in the course of the 
investigation it is not always possible, at least in the early stages of 
the inquiry, to determine relevance and or necessity as such 
determinations may only occur after the information has been evaluated. 
Information may be obtained concerning the actual or potential violation 
of laws or regulations other than those relating to the ongoing 
investigation. Such information should be retained as it can aid in 
establishing patterns of improper activity and can provide valuable 
leads in the conduct of other investigations.
    (iv) From subsection (e)(4)(G) and (H) because this system of 
records is exempt from individual access pursuant to subsections (k)(1) 
and (k)(2) of the Privacy Act of 1974.
    (v) From subsection (e)(4)(I) because it is necessary to protect the 
confidentiality of sources and to protect the privacy and physical 
safety of witnesses. Although the system is exempt from this 
requirement, the DON has published a notice in broad, generic terms in 
the belief that this is all that subsection (e)(4)(I) of the Act 
requires.
    (j) System identifier and name:
    (1) N05300-3, Faculty Professional Files.
    (2) Exemptions: (i) Investigatory material compiled solely for the 
purpose of determining suitability, eligibility, or qualifications for 
Federal civilian employment, military service, Federal contracts, or 
access to classified information may be exempt pursuant to 5 U.S.C. 
552a(k)(5), but only to the extent that such material would reveal the 
identity of a confidential source.
    (ii) Portions of this system of records are exempt from the 
following subsections of the Privacy Act: (c)(3), (d), (e)(4)(G) and 
(H), and (f).
    (3) Authority: 5 U.S.C. 552a(k)(5).
    (4) Reasons: Exempted portions of this system contain information 
considered relevant and necessary to make a release determination as to 
qualifications, eligibility, or suitability for Federal employment, and 
was obtained by providing an express or implied promise to the source 
that his or her identity would not be revealed to the subject of the 
record.
    (k) System identifier and name:
    (1) N05354-1, Equal Opportunity Information Management System.
    (2) Exemptions: (i) Information specifically authorized to be 
classified under E.O. 12,958, as implemented by DOD 5200.1-R, may be 
exempt pursuant to 5 U.S.C. 552a(k)(1).
    (ii) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for Federal 
civilian employment, military service, Federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (iii) Portions of this system of records are exempt from the 
following subsections of the Privacy Act: (c)(3), (d), (e)(4)(G) through 
(I), and (f).
    (3) Authority: 5 U.S.C. 552a(k)(1) and (k)(5).
    (4) Reasons: Granting access to information in this system of 
records could result in the disclosure of classified

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material, or reveal the identity of a source who furnished information 
to the Government under an express or implied promise of 
confidentiality. Material will be screened to permit access to 
unclassified material and to information that will not disclose the 
identity of a confidential source.
    (l) System identifier and name:
    (1) N05520-1, Personnel Security Eligibility Information System.
    (2) Exemptions: (i) Information specifically authorized to be 
classified under E.O. 12,958, as implemented by DOD 5200.1-R, may be 
exempt pursuant to 5 U.S.C. 552a(k)(1).
    (ii) Investigatory material compiled for law enforcement purposes 
may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual 
is denied any right, privilege, or benefit for which he would otherwise 
be entitled by Federal law or for which he would otherwise be eligible, 
as a result of the maintenance of such information, the individual will 
be provided access to such information except to the extent that 
disclosure would reveal the identity of a confidential source.
    (iii) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for Federal 
civilian employment, military service, Federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (iv) Evaluation material used to determine potential for promotion 
in the Military Services may be exempt pursuant to 5 U.S.C. 552a(k)(7), 
but only to the extent that the disclosure of such material would reveal 
the identity of a confidential source.
    (v) Portions of this system of records are exempt from the following 
subsections of the Privacy Act: (c)(3), (d), (e)(4)(G) and (I), and (f).
    (3) Authority: 5 U.S.C. 552a(k)(1), (k)(2), (k)(5), and (k)(7).
    (4) Reasons: Granting individuals access to information collected 
and maintained in this system of records could interfere with orderly 
investigations; result in the disclosure of classified material; 
jeopardize the safety of informants, witnesses, and their families; 
disclose investigative techniques; and result in the invasion of privacy 
of individuals only incidentally related to an investigation. Material 
will be screened to permit access to unclassified information that will 
not disclose the identity of sources who provide the information to the 
Government under an express or implied promise of confidentiality.
    (m) System identifier and name:
    (1) N05520-4, NCIS Investigative Files System.
    (2) Exemptions: (i) Parts of this system may be exempt pursuant to 5 
U.S.C. 552a(j)(2) if the information is compiled and maintained by a 
component of the agency which performs as its principal function any 
activity pertaining to the enforcement of criminal laws.
    (ii) Portions of this system of records are exempt from the 
following subsections of the Privacy Act: (c)(3), (c)(4), (d), (e)(2), 
(e)(3), (e)(4)(G) through (I), (e)(5), (e)(8), (f), and (g).
    (3) Authority: 5 U.S.C. 552a(j)(2).
    (4) Reasons: (i) Granting individuals access to information 
collected and maintained by this activity relating to the enforcement of 
criminal laws could interfere with the orderly investigations, with the 
orderly administration of justice, and possibly enable suspects to avoid 
detection or apprehension. Disclosure of this information could result 
in the concealment, destruction, or fabrication of evidence, and 
jeopardize the safety and well-being of informants, witnesses and their 
families, and law enforcement personnel and their families. Disclosure 
of this information could also reveal and render ineffectual 
investigative techniques, sources, and methods used by these components 
and could result in the invasion of the privacy of individuals only 
incidentally related to an investigation. The exemption of the 
individual's right of access to portions of these records, and the 
reasons therefore, necessitate the exemption of this system of records 
from the requirement of the other cited provisions.
    (ii) [Reserved]
    (5) Exemptions: (i) Information specifically authorized to be 
classified under E.O. 12,958, as implemented by

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DOD 5200.1-R, may be exempt pursuant to 5 U.S.C. 552a(k)(1).
    (ii) Records maintained in connection with providing protective 
services to the President and other individuals under 18 U.S.C. 3506, 
may be exempt pursuant to 5 U.S.C. 552a(k)(3).
    (iii) Records maintained solely for statistical research or program 
evaluation purposes and which are not used to make decisions on the 
rights, benefits, or entitlement of an individual except for census 
records which may be disclosed under 13 U.S.C. 8, may be exempt pursuant 
to 5 U.S.C. 552a(k)(4).
    (iv) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for Federal 
civilian employment, military service, Federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (v) Testing or examination material used solely to determine 
individual qualifications for appointment or promotion in the Federal 
service may be exempt pursuant to 5 U.S.C. 552a(k)(6), if the disclosure 
would compromise the objectivity or fairness of the test or examination 
process.
    (vi) Portions of this system of records are exempt from the 
following subsections of the Privacy Act: (c)(3), (d), (e)(1), (e)(4)(G) 
through (I), and (f).
    (6) Authority: 5 U.S.C. 552a(k)(1), (k)(3), (k)(4), (k)(5) and 
(k)(6).
    (7) Reasons: (i) The release of disclosure accountings would permit 
the subject of an investigation to obtain valuable information 
concerning the nature of that investigation, and the information 
contained, or the identity of witnesses or informants, would therefore 
present a serious impediment to law enforcement. In addition, disclosure 
of the accounting would amount to notice to the individual of the 
existence of a record.
    (ii) Access to the records contained in this system would inform the 
subject of the existence of material compiled for law enforcement 
purposes, the premature release of which could prevent the successful 
completion of investigation, and lead to the improper influencing of 
witnesses, the destruction of records, or the fabrication of testimony. 
Exempt portions of this system also contain information that has been 
properly classified under E.O. 12,958, and that is required to be kept 
secret in the interest of national defense or foreign policy.
    (iii) Exempt portions of this system also contain information 
considered relevant and necessary to make a determination as to 
qualifications, eligibility, or suitability for Federal civilian 
employment, military service, Federal contracts, or access to classified 
information, and was obtained by providing an express or implied 
assurance to the source that his or her identity would not be revealed 
to the subject of the record.
    (iv) The notice of this system of records published in the Federal 
Register sets forth the basic statutory or related authority for 
maintenance of the system.
    (v) The categories of sources of records in this system have been 
published in the Federal Register in broad generic terms. The identity 
of specific sources, however, must be withheld in order to protect the 
confidentiality of the source, of criminal and other law enforcement 
information. This exemption is further necessary to protect the privacy 
and physical safety of witnesses and informants.
    (vi) This system of records is exempted from procedures for notice 
to an individual as to the existence of records pertaining to him/her 
dealing with an actual or potential civil or regulatory investigation, 
because such notice to an individual would be detrimental to the 
successful conduct and/or completion of an investigation, pending or 
future. Mere notice of the fact of an investigation could inform the 
subject or others that their activities are under, or may become the 
subject of, an investigation. This could enable the subjects to avoid 
detection, to influence witnesses improperly, to destroy records, or to 
fabricate testimony.
    (vii) Exempt portions of this system containing screening board 
reports.
    (viii) Screening board reports set forth the results of oral 
examination of applicants for a position as a special agent with the 
Naval Investigation Service Command. Disclosure of these

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records would reveal the areas pursued in the course of the examination 
and thus adversely affect the result of the selection process. Equally 
important, the records contain the candid views of the members composing 
the board. Release of the records could affect the willingness of the 
members to provide candid opinions and thus diminish the effectiveness 
of a program which is essential to maintaining the high standards of the 
Special Agent Corps., i.e., those records constituting examination 
material used solely to determine individual qualifications for 
appointment in the Federal Service.
    (n) System identifier and name:
    (1) N05520-5, Personnel Security Program Management Records System.
    (2) Exemptions: (i) Information specifically authorized to be 
classified under E.O. 12,958, as implemented by DOD 5200.1-R, may be 
exempt pursuant to 5 U.S.C. 552a(k)(1).
    (ii) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for Federal 
civilian employment, military service, Federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (iii) Portions of this system of records are exempt from the 
following subsections of 5 U.S.C. 552a: (d)(1-5).
    (3) Authority: 5 U.S.C. 552a(k)(1) and (k)(5).
    (4) Reasons: (i) Granting individuals access to information 
collected and maintained in this system of records could result in the 
disclosure of classified material; and jeopardize the safety of 
informants, and their families. Further, the integrity of the system 
must be ensured so that complete and accurate records of all 
adjudications are maintained. Amendment could cause alteration of the 
record of adjudication.
    (ii) [Reserved]
    (o) System identifier and name:
    (1) N05580-1, Security Incident System.
    (2) Exemption: (i) Parts of this system may be exempt pursuant to 5 
U.S.C. 552a(j)(2) if the information is compiled and maintained by a 
component of the agency which performs as its principal function any 
activity pertaining to the enforcement of criminal laws.
    (ii) Portions of this system of records are exempt from the 
following subsections of the Privacy Act: (c)(3), (c)(4), (d), (e)(2), 
and (e)(4)(G) through (I), (e)(5), (e)(8), (f) and (g).
    (3) Authority: 5 U.S.C. 552a(j)(2).
    (4) Reasons: (i) Granting individuals access to information 
collected and maintained by this component relating to the enforcement 
of criminal laws could interfere with orderly administration of justice, 
and possibly enable suspects to avoid detection or apprehension. 
Disclosure of this information could result in concealment, destruction, 
or fabrication of evidence, and jeopardize the safety and well being of 
informants, witnesses and their families, and of law enforcement 
personnel and their families. Disclosure of this information could also 
reveal and render ineffectual investigative techniques, sources, and 
methods used by this component, and could result in the invasion of 
privacy of individuals only incidentally related to an investigation. 
The exemption of the individual's right of access to his or her records, 
and the reason therefore, necessitate the exemption of this system of 
records from the requirements of other cited provisions.
    (ii) [Reserved]
    (p) [Reserved]
    (q) System identifier and name:
    (1) N05800-1, Legal Office Litigation/Correspondence Files.
    Exemptions: (i) Information specifically authorized to be classified 
under E.O. 12,958, as implemented by DOD 5200.1-R, may be exempt 
pursuant to 5 U.S.C. 552a(k)(1).
    (ii) Investigatory material compiled for law enforcement purposes 
may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual 
is denied any right, privilege, or benefit for which he would otherwise 
be entitled by Federal law or for which he would otherwise be eligible, 
as a result of the maintenance of such information, the individual will 
be provided access to such information except to the extent that 
disclosure would reveal the identity of a confidential source.
    (iii) Investigatory material compiled solely for the purpose of 
determining

[[Page 132]]

suitability, eligibility, or qualifications for Federal civilian 
employment, military service, Federal contracts, or access to classified 
information may be exempt pursuant to 5 U.S.C. 552a(k)(5), but only to 
the extent that such material would reveal the identity of a 
confidential source.
    (iv) Testing or examination material used solely to determine 
individual qualifications for appointment or promotion in the Federal 
service may be exempt pursuant to 5 U.S.C. 552a(k)(6), if the disclosure 
would compromise the objectivity or fairness of the test or examination 
process.
    (v) Evaluation material used to determine potential for promotion in 
the Military Services may be exempt pursuant to 5 U.S.C. 552a(k)(7), but 
only to the extent that the disclosure of such material would reveal the 
identity of a confidential source.
    (vi) Portions of this system of records are exempt from the 
following subsections of the Privacy Act: (d), (e)(1), and (f)(2), (3), 
and (4).
    (3) Authority: 5 U.S.C. 552a(k)(1), (k)(2), (k)(5), (k)(6), and 
(k)(7).
    (4) Reasons: (i) Subsection (d) because granting individuals access 
to information relating to the preparation and conduct of litigation 
would impair the development and implementation of legal strategy. 
Accordingly, such records are exempt under the attorney-client 
privilege. Disclosure might also compromise on-going investigations and 
reveal confidential informants. Additionally, granting access to the 
record subject would seriously impair the Navy's ability to negotiate 
settlements or pursue other civil remedies. Amendment is inappropriate 
because the litigation files contain official records including 
transcripts, court orders, investigatory materials, evidentiary 
materials such as exhibits, decisional memorandum and other case-related 
papers. Administrative due process could not be achieved by the ``ex 
parte'' correction of such materials.
    (ii) Subsection (e)(1) because it is not possible in all instances 
to determine relevancy or necessity of specific information in the early 
stages of case development. What appeared relevant and necessary when 
collected, ultimately may be deemed unnecessary upon assessment in the 
context of devising legal strategy. Information collected during civil 
litigation investigations which is not used during subject case is often 
retained to provide leads in other cases or to establish patterns of 
activity.
    (iii) Subsections (f)(2), (3), and (4) because this record system is 
exempt from the individual access provisions of subsection (d).
    (r) System identifier and name:
    (1) N01000-5, Naval Clemency and Parole Board Files.
    (2) Exemption: (i) Parts of this system may be exempt pursuant to 5 
U.S.C. 552a(j)(2) if the information is compiled and maintained by a 
component of the agency which performs as its principal function any 
activity pertaining to the enforcement of criminal laws.
    (ii) Portions of this system of records are exempt from the 
following subsections of the Privacy Act: (c)(4), (d), (e)(4)(G), and 
(f).
    (3) Authority: 5 U.S.C. 552a(j)(2).
    (4) Reasons: (i) Granting individuals access to records maintained 
by this Board could interfere with internal processes by which Board 
personnel are able to formulate decisions and policies with regard to 
clemency and parole in cases involving naval prisoners and other persons 
under the jurisdiction of the Board. Material will be screened to permit 
access to all material except such records or documents as reflecting 
items of opinion, conclusion, or recommendation expressed by individual 
board members or by the board as a whole.
    (ii) The exemption of the individual's right to access to portions 
of these records, and the reasons therefore, necessitate the partial 
exemption of this system of records from the requirements of the other 
cited provisions.
    (s) System identifier and name:
    (1) N01752-1, Family Advocacy Program System.
    (2) Exemptions: (i) Investigatory material compiled for law 
enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result

[[Page 133]]

of the maintenance of such information, the individual will be provided 
access to such information except to the extent that disclosure would 
reveal the identity of a confidential source.
    (ii) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for Federal 
civilian employment, military service, Federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (iii) Portions of this system of records are exempt from the 
following subsections of the Privacy Act: (c)(3) and (d).
    (3) Authority: 5 U.S.C. 552a(k)(2) and (k)(5).
    (4) Reasons: (i) Exemption is needed in order to encourage persons 
having knowledge of abusive or neglectful acts toward children to report 
such information, and to protect such sources from embarrassment or 
recriminations, as well as to protect their right to privacy. It is 
essential that the identities of all individuals who furnish information 
under an express promise of confidentiality be protected. Additionally, 
granting individuals access to information relating to criminal and 
civil law enforcement, as well as the release of certain disclosure 
accounting, could interfere with ongoing investigations and the orderly 
administration of justice, in that it could result in the concealment, 
alteration, destruction, or fabrication of information; could hamper the 
identification of offenders or alleged offenders and the disposition of 
charges; and could jeopardize the safety and well being of parents and 
their children.
    (ii) Exempted portions of this system also contain information 
considered relevant and necessary to make a determination as to 
qualifications, eligibility, or suitability for Federal employment and 
Federal contracts, and that was obtained by providing an express or 
implied promise to the source that his or her identity would not be 
revealed to the subject of the record.
    (t) System identifier and name:
    (1) N12930-1, Human Resources Group Personnel Records.
    (2) Exemptions: (i) Investigatory material compiled solely for the 
purpose of determining suitability, eligibility, or qualifications for 
Federal civilian employment, military service, Federal contracts, or 
access to classified information may be exempt pursuant to 5 U.S.C. 
552a(k)(5), but only to the extent that such material would reveal the 
identity of a confidential source.
    (ii) Testing or examination material used solely to determine 
individual qualifications for appointment or promotion in the Federal 
service may be exempt pursuant to 5 U.S.C. 552a(k)(6), if the disclosure 
would compromise the objectivity or fairness of the test or examination 
process.
    (iii) Portions of this system of records are exempt from the 
following subsections of the Privacy Act: (d), (e)(4)(G) and (H), and 
(f).
    (3) Authority: 5 U.S.C. 552a(k)(5) and (k)(6).
    (4) Reasons: (i) Exempted portions of this system contain 
information considered relevant and necessary to make a determination as 
to qualifications, eligibility, or suitability for Federal employment, 
and was obtained by providing express or implied promise to the source 
that his or her identity would not be revealed to the subject of the 
record.
    (ii) Exempted portions of this system also contain test or 
examination material used solely to determine individual qualifications 
for appointment or promotion in the Federal Service, the disclosure of 
which would comprise the objectivity or fairness of the testing or 
examination process.
    (u) System identifier and name:
    (1) N05813-4, Trial/Government Counsel Files.
    (2) Exemption. Parts of this system may be exempt pursuant to 5 
U.S.C. 552a(j)(2) if the information is compiled and maintained by a 
component of the agency which performs as its principle function any 
activity pertaining to the enforcement of criminal laws. Portions of 
this system of records that may be exempt pursuant to subsection 5 
U.S.C. 552a(j)(2) are (c)(3), (c)(4), (d), (e)(1), (e)(2), (e)(3), 
(e)(5), (e)(4)(G), (H), and (I), (e)(8), (f), and (g).
    (3) Exemption. Information specifically authorized to be classified 
under

[[Page 134]]

E.O. 12,958, as implemented by DOD 5200.1-R, may be exempt pursuant to 5 
U.S.C. 552a(k)(1).
    (4) Exemption. Investigatory material compiled for law enforcement 
purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an 
individual is denied any right, privilege, or benefit for which he would 
otherwise be entitled by Federal law or for which he would otherwise be 
eligible, as a result of the maintenance of such information, the 
individual will be provided access to such information except to the 
extent that disclosure would reveal the identity of a confidential 
source. Portions of this system of records that may be exempt pursuant 
to subsections 5 U.S.C. 552a(k)(1) and (k)(2) are (c)(3), (d), (e)(1), 
(e)(4)(G), (H), and (I), and (f).
    (4) Authority: 5 U.S.C. 552a(j)(2), (k)(1), and (k)(2).
    (5) Reasons: (i) From subsection (c)(3) because release of 
accounting of disclosure could place the subject of an investigation on 
notice that he/she is under investigation and provide him/her with 
significant information concerning the nature of the investigation, 
resulting in a serious impediment to law enforcement investigations.
    (ii) From subsections (c)(4), (d), (e)(4)(G), and (e)(4)(H) because 
granting individuals access to information collected and maintained for 
purposes relating to the enforcement of laws could interfere with proper 
investigations and orderly administration of justice. Granting 
individuals access to information relating to the preparation and 
conduct of criminal prosecution would impair the development and 
implementation of legal strategy. Amendment is inappropriate because the 
trial/Government counsel files contain official records including 
transcripts, court orders, and investigatory materials such as exhibits, 
decisional memorandum and other case-related papers. Disclosure of this 
information could result in the concealment, alteration or destruction 
of evidence, the identification of offenders or alleged offenders, 
nature and disposition of charges; and jeopardize the safety and well-
being of informants, witnesses and their families, and law enforcement 
personnel and their families. Disclosure of this information could also 
reveal and render ineffective investigation techniques, sources, and 
methods used by law enforcement personnel, and could result in the 
invasion of privacy of individuals only incidentally related to an 
investigation.
    (iii) From subsection (e)(1) because it is not always possible in 
all instances to determine relevancy or necessity of specific 
information in the early stages of case development. Information 
collected during criminal investigations and prosecutions and not used 
during the subject case is often retained to provide leads in other 
cases.
    (iv) From subsection (e)(2) because in criminal or other law 
enforcement investigations, the requirement that information be 
collected to the greatest extent practicable from the subject individual 
would alert the subject as to the nature or existence of an 
investigation, presenting a serious impediment to law enforcement 
investigations.
    (v) From subsection (e)(3) because compliance would constitute a 
serious impediment to law enforcement in that it could compromise the 
existence of a confidential investigation or reveal the identity of 
witnesses or confidential informants.
    (vi) From subsection (e)(4)(I) because the identity of specific 
sources must be withheld in order to protect the confidentiality of the 
sources of criminal and other law enforcement information. This 
exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.
    (vii) From subsection (e)(5) because in the collection of 
information for law enforcement purposes it is impossible to determine 
in advance what information is accurate, relevant, timely, and complete. 
With the passage of time, seemingly irrelevant or untimely information 
may acquire new significance as further investigation brings new details 
to light and the accuracy of such information can only be determined in 
a court of law. The restrictions of subsection (e)(5) would restrict the 
ability of trained investigators and intelligence analysts to exercise 
their judgment in reporting on investigations and impede the development 
of intelligence necessary for effective law enforcement.

[[Page 135]]

    (viii) From subsection (e)(8) because compliance would provide an 
impediment to law enforcement by interfering with the ability to issue 
warrants or subpoenas and by revealing investigative techniques, 
procedures, or evidence.
    (ix) From subsection (f) and (g) because this record system is 
exempt from the individual access provisions of subsection (d).
    (x) Consistent with the legislative purpose of the Privacy Act of 
1974, the DON will grant access to nonexempt material in the records 
being maintained. Disclosure will be governed by the DON's Privacy 
Regulation, but will be limited to the extent that the identity of 
confidential sources will not be compromised; subjects of an 
investigation of an actual or potential criminal violation will not be 
alerted to the investigation; the physical safety of witnesses, 
informants and law enforcement personnel will not be endangered, the 
privacy of third parties will not be violated; and that the disclosure 
would not otherwise impede effective law enforcement. Whenever possible, 
information of the above nature will be deleted from the requested 
documents and the balance made available. The controlling principle 
behind this limited access is to allow disclosures except those 
indicated above. The decisions to release information from these systems 
will be made on a case-by-case basis.
    (v) System identifier and name:
    (1) NM05211-1, Privacy Act Request Files and Tracking System.
    (2) Exemption: During the processing of a Privacy Act request (which 
may include access requests, amendment requests, and requests for review 
for initial denials of such requests), exempt materials from other 
systems of records may in turn become part of the case record in this 
system. To the extent that copies of exempt records from those ``other'' 
systems of records are entered into this system, the DON hereby claims 
the same exemptions for the records from those ``other'' systems that 
are entered into this system, as claimed for the original primary system 
of which they are a part.
    (3) Authority: 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), (k)(3), (k)(4), 
(k)(5), (k)(6), and (k)(7).
    (4) Records are only exempt from pertinent provisions of 5 U.S.C. 
552a to the extent such provisions have been identified and an exemption 
claimed for the original record and the purposes underlying the 
exemption for the original record still pertain to the record which is 
now contained in this system of records. In general, the exemptions were 
claimed in order to protect properly classified information relating to 
national defense and foreign policy, to avoid interference during the 
conduct of criminal, civil, or administrative actions or investigations, 
to ensure protective services provided the President and others are not 
compromised, to protect the identity of confidential sources incident to 
Federal employment, military service, contract, and security clearance 
determinations, and to preserve the confidentiality and integrity of 
Federal evaluation materials. The exemption rule for the original 
records will identify the specific reasons why the records are exempt 
from specific provisions of 5 U.S.C. 552a.
    (w) System identifier and name:
    (1) NM05720-1, FOIA Request/Appeal Files and Tracking System.
    (2) Exemption: During the processing of a Freedom of Information Act 
request, exempt materials from other systems of records may in turn 
become part of the case record in this system. To the extent that copies 
of exempt records from those `other' systems of records are entered into 
this system, the DON hereby claims the same exemptions for the records 
from those `other' systems that are entered into this system, as claimed 
for the original primary system of which they are a part.
    (3) Authority: 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), (k)(3), (k)(4), 
(k)(5), (k)(6), and (k)(7).
    (4) Records are only exempt from pertinent provisions of 5 U.S.C. 
552a to the extent such provisions have been identified and an exemption 
claimed for the original record and the purposes underlying the 
exemption for the original record still pertain to the record which is 
now contained in this system of records. In general, the exemptions were 
claimed in order to protect properly classified information relating to

[[Page 136]]

national defense and foreign policy, to avoid interference during the 
conduct of criminal, civil, or administrative actions or investigations, 
to ensure protective services provided the President and others are not 
compromised, to protect the identity of confidential sources incident to 
Federal employment, military service, contract, and security clearance 
determinations, and to preserve the confidentiality and integrity of 
Federal evaluation materials. The exemption rule for the original 
records will identify the specific reasons why the records are exempt 
from specific provisions of 5 U.S.C. 552a.



Sec. 701.129  Exemptions for specific Marine Corps record systems.

    (a) [Reserved]
    (b) System identifier and name:
    (1) MIN00001, Personnel and Security Eligibility and Access 
Information System.
    (2) Exemption:
    (i) Investigatory material compiled for law enforcement purposes may 
be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual is 
denied any right, privilege, or benefit for which he would otherwise be 
entitled by Federal law or for which he would otherwise be eligible, as 
a result of the maintenance of such information, the individual will be 
provided access to such information except to the extent that disclosure 
would reveal the identity of a confidential source.
    (ii) Records maintained in connection with providing protective 
services to the President and other individuals under 18 U.S.C. 3506, 
may be exempt pursuant to 5 U.S.C. 552a(k)(3).
    (iii) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for Federal 
civilian employment, military service, Federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (iv) Portions of this system of records are exempt for the following 
subsections of the Privacy Act: (c)(3), (d), (e)(1), (e)(4)(G) through 
(I), and (f).
    (3) Authority: 5 U.S.C. 552a(k)(2), (k)(3), and (k)(5), as 
applicable.
    (4) Reasons: (i) Exempt portions of this system contain information 
that has been properly classified under E.O. 12,958, and that is 
required to be kept secret in the interest of national defense or 
foreign policy.
    (ii) Exempt portions of this system also contain information 
considered relevant and necessary to make a determination as to 
qualifications, eligibility, or suitability for Federal civilian 
employment, military service, Federal contracts, or access to 
classified, compartmented, or otherwise sensitive information, and was 
obtained by providing an expressed or implied assurance to the source 
that his or her identity would not be revealed to the subject of the 
record.
    (iii) Exempt portions of this system further contain information 
that identifies sources whose confidentiality must be protected to 
ensure that the privacy and physical safety of these witnesses and 
informants are protected.

[71 FR 27536, May 11, 2006, as amended at 72 FR 64538, Nov. 16, 2007]



PART 705_PUBLIC AFFAIRS REGULATIONS--Table of Contents




Sec.
705.1 Purpose.
705.2 Chief of Information and the Office of Information (CHINFO).
705.3 [Reserved]
705.4 Communication directly with private organizations and individuals.
705.5 Taking of photos on board naval ships, aircraft and installations 
          by members of the general public.
705.6 Releasing public information material to the media.
705.7 Radio and television.
705.8 Motion pictures.
705.9 Availability of motion pictures to external audiences.
705.10 Still photography.
705.11 Supplying photographs and services to other than Navy and Marine 
          Corps.
705.12 Print media.
705.13 Commercial advertising.
705.14 Embarkation of media representatives.
705.15 Employment of Navy personnel as correspondents or staff members 
          of civilian news media.
705.16 Navy produced public information material.
705.17 Participation guidelines.
705.18 Authority and coordination.

[[Page 137]]

705.19 Financing.
705.20 Use of Navy material and facilities.
705.21 Requests for Navy participation.
705.22 Relations with community groups.
705.23 Guest cruises.
705.24 Exhibits.
705.25 Navy Exhibit Center.
705.26 Exhibit availability report.
705.27-705.28 [Reserved]
705.29 Navy Art Collection.
705.30 Aerospace Education Workshop.
705.31 USS Arizona Memorial, Pearl Harbor.
705.32 Aviation events and parachute demonstrations.
705.33 Participation by Armed Forces bands, choral groups, and troops in 
          the public domain.
705.34 Other special events.
705.35 Armed Forces participation in events in the public domain.
705.36 Government transportation of civilians for public affairs 
          purposes.
705.37 Public affairs and public service awards.

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

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



Sec. 705.1  Purpose.

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



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

    (a) The Chief of Information is the direct representative of the 
Secretary of the Navy and of the Chief of Naval Operations in all public 
affairs and internal relations matters. As such, the Chief of 
Information has the authority to implement public affairs and internal 
relations policies and to coordinate Navy and Marine Corps public 
affairs and internal relations activities of mutual interest.
    (b) The Chief of Information will keep Navy commands informed of 
Department of Defense policies and requirements. No command within the 
Department of the Navy, except Headquarters, Marine Corps, will deal 
directly with the Office of the Assistant Secretary of Defense (Public 
Affairs) on public affairs matters unless authorized to do so by the 
Chief of Information.
    (c) The Chief of Information will be consulted on all Navy public 
affairs and internal relations matters and informed of all operations 
and proposed plans and policies which have national or international 
(and in the case of audio-visual material, regional) public affairs 
aspects.
    (d) The Chief of Information heads the Navy Office of Information, 
the Navy Internal Relations Activity (NIRA), the Office of Information 
Branch Offices (NAVINFOs), the Navy Public Affairs Center (NAVPACENs) 
and the Fleet Home Town News Center (FHTNC). In addition, the Chief of 
Information has responsibility (on behalf of the Secretary of the Navy 
as Executive Agent for the Department of Defense) for the High School 
News Service and has operational control of the U.S. Navy Band, 
Washington, DC.
    (e) The Navy Office of Information Branch Offices (NAVINFOs) are 
located in Atlanta, Boston, Chicago, Dallas, Los Angeles, and New York. 
As representatives of the Secretary of the Navy, Chief of Naval 
Operations, and Chief of Information, the NAVINFOs have a primary 
mission of providing direct liaison with local and regional mass 
communications media.
    (1) The function of the NAVINFOs are as follows:
    (i) Establish and maintain close personal relationships with local 
television, radio, film, publishing, and other mass-media organizations 
including minority-group-oriented media.
    (ii) Seek ways through these media to inform the public about naval 
personnel and activities.
    (iii) Provide assistance to media organizations and respond to their 
interest in Navy programs, stories, and features. In this regard, 
maintain informal liaison with various information offices afloat and 
ashore in order to respond to requests from local media representatives, 
particularly those from inland areas, who desire to visit fleet units or 
activities ashore.
    (iv) Provide advice on Navy cooperation and assistance, as 
appropriate, to representatives of national industrial and commercial 
organizations, including advertising agencies.
    (v) Maintain a library of Navy motion picture films for use by local 
television stations, distribute news films

[[Page 138]]

and audio material, and otherwise perform normal audio-visual functions 
at the local level.
    (vi) Provide personnel and other assistance as appropriate, to 
special Command Information Bureaus and public information staffs of 
other naval activities as directed by the Chief of Information.
    (vii) Advise the Chief of Information on current trends and 
significant problems relating to local media requirements.
    (viii) Seek ways to support the long-range goals and immediate 
priorities of the Navy.
    (ix) Provide advice and assistance in the placement of news and 
feature materials to the field activities of the Navy Recruiting 
Command.
    (x) Perform such other tasks as may be assigned by the Chief of 
Information.
    (2) Additionally, NAVINFO Los Angeles is the Navy representative for 
all appropriate liaison with motion picture and network television 
offices in the Hollywood area. Naval activities will channel all 
requests for information or assistance from these media to NAVINFO Los 
Angeles, which will coordinate with CHINFO.
    (3) Additionally, NAVINFO New York is the Navy representative for 
all appropriate liaison with television and radio networks in the New 
York area and with magazine and book publishers in that area. Requests 
for assistance originating from these media should be directed to 
NAVINFO New York, which will coordinate with CHINFO.
    (4) Except as specifically directed by CHINFO, the Branch Offices do 
not have responsibility or authority for community relations or internal 
relations.
    (5) Direct liaison between NAVINFOs and Naval District public 
affairs offices, Navy recruiters and other naval activities afloat and 
ashore is encouraged.
    (f) Areas covered by the respective offices are:
    (1) NAVINFO Atlanta: Alabama, the District of Columbia, Florida, 
Georgia, Kentucky, Maryland, Mississippi, North Carolina, South 
Carolina, Tennessee, Virginia, and Southern West Virginia.
    (2) NAVINFO Boston: Maine, Massachusetts, New Hampshire, Rhode 
Island, and Vermont.
    (3) NAVINFO Chicago: Illinois, Indiana, Iowa, Michigan, Minnesota, 
Nebraska, North Dakota, Ohio, South Dakota, Wisconsin, and Northern West 
Virginia.
    (4) NAVINFO Dallas: Arkansas, Colorado, Kansas, Louisiana, Missouri, 
New Mexico, Oklahoma, and Texas.
    (5) NAVINFO Los Angeles: Arizona, California, Idaho, Montana, 
Nevada, Oregon, Utah, Washington, and Wyoming.
    (6) NAVINFO New York: Connecticut, Delaware, New Jersey, New York, 
and Pennsylvania.
    (g) The Navy Public Affairs Centers (NAVPACENs) are located in 
Norfolk and San Diego. The centers have a primary mission of producing 
Navy stories for dissemination to the media through normal information 
channels.
    (1) The following tasks are included among the functions of the 
NAVPACENs.
    (i) Produce written, audio and photographic feature public 
information material about fleet and shore personnel, units and 
activities, as coordinated with and approved for policy and concept by 
the respective fleet and shore commander concerned.
    (ii) Serve as public affairs emergency reaction teams/resource 
personnel responsive to the requirements of the CNO and CHINFO, and when 
feasible and appropriate and as approved by CNO or CHINFO, serve as 
public affairs emergency reaction teams/resource personnel in support of 
Fleet Commanders.
    (iii) Develop feature material to support the long range goals and 
the immediate priorities of the Navy. Direct liaison is authorized with 
the Navy Recruiting Command, Recruiting Areas, Recruiting Districts, and 
other Commanders as appropriate to achieve this function.
    (iv) Perform such other tasks as may be assigned by the Chief of 
Information.
    (2) NAVPACENs will have no public affairs news media 
responsibilities which conflict with the basic public affairs 
responsibilities of Fleet Commanders-in-Chief. Specifically,

[[Page 139]]

NAVPACENs are excluded from responding to news media queries, releasing 
news information, arranging news media embarkations, or any other day-
to-day news media services concerning the respective fleets. These 
responsibilities remain with the Fleet Commander.
    (3) NAVPACENs have no direct responsibility or authority for 
community relations or internal relations and shall defer in these areas 
to the cognizant Naval District Commandant.
    (4) Direct liaison with Fleet Commanders-in-Chief and NAVINFOs is 
appropriate and authorized. As approved by the Fleet CINCs, direct 
liaison with forces afloat and shore activities under the Fleet CINCs is 
appropriate.
    (5) NAVPACENs will carry out their mission and functions in such a 
manner as not to interfere with the public affairs responsibilities of 
the District Commandants.

[44 FR 6389, Feb. 1, 1979]



Sec. 705.3  [Reserved]



Sec. 705.4  Communication directly with private organizations and individuals.

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

[41 FR 29101, July 15, 1976, as amended at 44 FR 6390, Feb. 1, 1979]



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

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

[[Page 140]]



Sec. 705.6  Releasing public information material to the media.

    (a) Methods of releasing information:
    (1) Release at the seat of government and/or as approved by the 
Assistant Secretary of Defense (Public Affairs).
    (i) Overall responsibility for release of information rests with the 
Assistant Secretary of Defense (Public Affairs). The Chief of 
Information is responsible for coordinating with him releases of 
national and international interest (and in the case of audiovisual 
material of regional interest) and for arranging for local release of 
such material if considered appropriate by OASD(PA). Information of the 
above types and also information proposed for release at the seat of 
government, with the exception of ``spot news,'' as described in 
paragraph (b) of this section, following.
    (2) Releases by local commands:
    (i) News of purely local interest may be released by the command 
concerned. Higher and coordinating authorities (such as the District 
Commandant) will be informed, when appropriate, that the release has 
been made.
    (ii) News of national or other wide interest may be released by a 
local command under the following circumstances:
    (A) The Assistant Secretary of Defense (Public Affairs), having 
approved a release, directs that it be issued by the command concerned.
    (B) An event of immediate and urgent news interest, such as a 
disasterous accident, occurs at the command, and emergency announcements 
must be made as delay in issuing information would be against the best 
interests of the Navy. The officer in command will make a ``spot news'' 
release of all appropriate information considered releasable.
    (1) Copies of spot news releases made (or a description if the 
announcement is made orally) will be forwarded promptly to the Chief of 
Information.
    (2) If the situation is considered critical, the spot news release 
will be forwarded by telephone or message.
    (b) Means through which information is released to media:
    (1) Navy oriented information material (written, taped, motion 
picture, still photo) is regularly released to all media presumed to be 
interested.
    (2) Similar material is provided in response to query from a news 
media representative. The material may be produced by the Navy, or the 
newsman may be assisted in researching, filming, etc. himself.
    (3) Exclusive releases:
    (i) Information concerning naval activities may be provided on an 
exclusive basis only when a specific request or inquiry is received from 
one news media representative for material not requested by other media.
    (ii) In such cases, and assuming that the information is properly 
releasable, the following rules will apply:
    (A) If prior to the time information is given to the newsman making 
the original inquiry or request substantially similar inquiries or 
requests are received from other newsmen, the first inquirer will be so 
informed, and subsequent inquirers will be advised that a prior request 
has been received. None of the inquirers will be told the identity of 
the individuals or media who have placed these similar inquiries.
    (B) If not more than three similar requests are received, the 
information will be provided simultaneously to each inquirer.
    (C) If more than three requests for substantially the same 
information have been received before any are answered, inquirers will 
be advised as soon as possible that the information cannot be given on 
an exclusive or limited basis, and a general release covering the 
subject will be issued to all media.
    (4) News conferences:
    (i) A news conference is held when a command has something specific 
to announce to the press that cannot be handled in a news release or by 
phone call. A news conference should not be called just to get together 
with the press. A request from the press is also a reason for conducting 
a news conference. Special events, significant operations or serious 
accidents are frequent reasons for calling news conferences. If 
requested, spokesmen may be made available to the press for questions 
without specific subject matter in mind, but the press should be clearly 
informed of the nature of this meeting.

[[Page 141]]

Technically, this is not considered a news conference.
    (ii) When a news conference is held, it is essential that all 
interested media be invited to attend.
    (iii) A record of what is said should be kept. Ideally, the news 
conference should be tape recorded and a public affairs officer should 
be present.
    (iv) Official spokesmen will be prepared to answer questions in a 
frank and candid manner. If the answer would compromise military 
security, the inquirer should be so advised. If the answer is not known 
to the spokesman, he should say so and add that the matter will be 
checked and any available unclassified information provided later.
    (v) Newsmen are not normally asked to submit their questions in 
advance. If this is considered advisable, as in cases where highly 
technical answers may be required, the answers are prepared in advance 
and given to all attending newsmen (not just the questioner) at the news 
conference.
    (5) Interviews. These are similar to news conferences except that 
they involve a single newsman (who has usually requested the interview) 
and a single Navy spokesman.
    (i) Required procedures are essentially the same as for news 
conferences. However, a public affairs officer should be present only if 
desired by the person being interviewed. The interview may be taped, if 
the newsman agrees.
    (ii) Without penalizing initiative displayed by a newsman in asking 
pertinent questions, care should be exercised by the naval spokesman not 
to make a major revelation of news material to a single media outlet in 
the course of a routine interview.
    (iii) If major areas of difficulty arise in the interview, the Chief 
of Information should be notified of them.
    (6) Background briefings; ``Not for attribution''; or ``Off the 
record.''
    (i) Since there is a possibility or risk of a misunderstanding 
arising in these briefings, it is important that all concerned 
understand and agree to the ground rules.
    (ii) In general, information will not be made public unless it can 
be openly attributed to the Navy and disseminated without reservation. 
Occasionally, a backgrounder may be helpful. An example is a briefing of 
embarked newsmen in advance of an operation, providing information which 
may not be reported until the operation is over. The purpose is to help 
the newsmen understand the operation while it is taking place.



Sec. 705.7  Radio and television.

    (a) Navy relationships with radio and TV representatives are of two 
types:
    (1) Dissemination to them of Navy produced tapes, photos, films, 
etc. (This is discussed in more detail in Sec. 705.17).
    (2) Cooperation with them when they produce a program on a Navy 
subject. This is discussed in the paragraph following:
    (b) Requirement for approval by higher authority.
    (1) Commanding officers may:
    (i) Release audiovisual material which is spot news, as defined in 
Sec. 705.6(a)(2)(ii) preceding, or is of purely local interest.
    (ii) Participate in local community audiovisual projects of benefit 
to the Department of Defense or in the national interest.
    (iii) Approve one-time, one-station participation by personnel of 
their commands (as individuals) in programs of purely local interest.
    (2) All other audiovisual material originated by the Department of 
the Navy or requiring Navy cooperation must be approved by the Chief of 
Information, who will effect the necessary coordination and/or approval 
of the Assistant Secretary of Defense (Public Affairs).
    (i) Requests for assistance from non-governmental audiovisual media 
will be forwarded, with the maximum available details and an evaluation 
of the request, through the chain of command to the Chief of 
Information.
    (ii) No direct coordination or contact between local naval commands 
and the Assistant Secretary of Defense (PA) is authorized unless 
specifically provided for by separate directives or correspondence.
    (c) Navy cooperation in productions by audiovisual media 
representatives (nongovernment).

[[Page 142]]

    (1) The production or project must:
    (i) Be consistent with the goals and aims of the Department of 
Defense and/or be in the national interest.
    (ii) Portray military operation, historical incidents, persons and 
places, in such a manner as to give a true portrayal and interpretation 
of military life.
    (iii) Comply with accepted standards of dignity and propriety in the 
industry.
    (2) There will be no deviation from established safety standards.
    (3) Operational readiness shall not be impaired.
    (4) Official activities of military personnel assisting the 
production must be within the scope of normal military activities. 
Exceptions to this policy will be made only in unusual circumstances.
    (5) Diversion of ships, equipment, personnel and material resources 
from normal military locations or military operations will not normally 
be authorized for filming. Exceptions to such policy must be authorized 
by the Assistant Secretary of Defense (Public Affairs), through the 
Chief of Information.
    (i) The production company concerned must reimburse the government 
for any extra expense involved. A strict accounting of the additional 
expenses incurred and charged to the production company must be 
maintained by the designated project officer. A copy of this accounting 
will be forwarded to the Chief of Information.
    (ii) [Reserved]
    (6) Naval material and personnel will not be employed in such a 
manner as to compete with commercial and private enterprise. In this 
regard, any person or agency requesting their use will furnish a 
noncompetitive certification.
    (7) Additional details on procedures will be found in DOD 
Instruction 5410.16.
    (8) In addition to cooperation requested by the media, commands will 
be alert to the advantages of providing Navy programming and/or 
encouraging participation by Navy personnel in local radio and TV 
programming. Examples are community forums, local talent shows, 
educational and religious programs, children's shows, sports programs, 
etc.
    (d) Participation by individual Navy personnel on radio or TV 
programs:
    (1) In general, such participation is encouraged if it is:
    (i) Dignified and considered in the interests of the Navy.
    (ii) Compatible with operational commitments.
    (iii) Not in competition with the regular employment of professional 
performers.
    (2) The public affairs officer will screen requests for such 
appearances for members of his command to see that the programs are in 
good taste, and that neither the Navy nor its personnel are exposed to 
embarrassment for the sake of entertainment.
    (3) Approval of participation by Navy individuals:
    (i) Approval is not required for personnel attending audience 
participation broadcasts if they are selected at random from the 
audience.
    (ii) One-time, one-station participation of purely local interest 
may be approved by the officer in command concerned.
    (iii) If participation will be on a network (defined as more than 
one station, even if local) of if the same person or program is 
requested by two or more unrelated stations, approval by the Chief of 
Information must be obtained even if the show is of local interest only.
    (e) Use of official footage:
    (1) Use of official U.S. Navy stock film footage on TV broadcasts is 
not authorized without approval and clearance by the Chief of 
Information and the Department of Defense.
    (2) Use of Navy public information motion pictures cleared for TV is 
authorized and encouraged except that such films may be used on 
subscription or pay TV only when offered to the viewers at no cost.
    (3) Navy films will not be cut or portions duplicated for TV use in 
lieu of stock footage without prior approval by the Chief of 
Information.
    (f) Music clearance. The Navy assumes no responsibility for 
clearance of music

[[Page 143]]

used on Navy recordings, transcriptions, or films not specially produced 
or authorized for radio or TV broadcast.
    (g) Disclaimers. A disclaimer is not necessary if a product is 
advertised on a program in which the Navy participates, but there must 
be no stated or implied endorsement of it by the Navy or by naval 
personnel appearing on the program.
    (h) Requests for courtesy prints of commercial television programs:
    (1) Requests will not be made directly to the producer or network 
concerned, but will be forwarded to the Chief of Information by the Navy 
requester.
    (2) These courtesy prints will be exhibited only under circumstances 
which cannot be construed as competitive with commercial ventures.



Sec. 705.8  Motion pictures.

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

[41 FR 29101, July 15, 1976, as amended at 44 FR 6390, Feb. 1, 1979]



Sec. 705.9  Availability of motion pictures to external audiences.

    (a) Public access. Navy and Marine Corps general motion pictures and 
motion picture projects not previously cleared for public exhibition 
will require clearance by the Chief of Information or the Marine Corps 
Director of Information, as appropriate, prior to public viewing. 
Concurrent review of legal rights and instruments associated with the 
production will be carried out by Patent Counsel, Naval Air Systems 
Command (AIR-OOP). Cleared motion pictures may also be made available 
for free loan as determined by the individual services. In addition, 
cleared motion pictures may be provided for rent or sale through the 
National Audio-Visual Center, National Archives and Records Service 
(GSA), Washington, DC 20409.
    (b) Foreign military training. Motion pictures from the Navy 
inventory may be made available for foreign military training programs 
on approval by the Chief of Naval Operations. Classified motion pictures 
selected for such use will also require a security review by the Chief 
of Naval Operations.



Sec. 705.10  Still photography.

    (a) Policy and procedures on taking photos by the general public, 
given in Sec. 705.5 apply also to media representatives.
    (b) Basic policy and procedures for still photos are set forth in 
the Manual of Naval Photography, OPNAVINST 3150.6D.
    (c) Authority to forbid photography:
    (1) On Navy property, the officer in command may forbid the taking 
of photographs and may confiscate film,

[[Page 144]]

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



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

    (a) To avoid competition with civilian photographic organizations, 
naval aircraft will not be used to take photographs for, nor will 
photographs or mosaic maps be provided to any individuals, corporations, 
or agencies other than departments or agencies of the federal 
government, without specific permission from the Chief of Naval 
Operations.
    (b) In the case of natural catastrophe, or other circumstances where 
prompt action is required, the senior officer present may authorize a 
departure from the preceding paragraph. In

[[Page 145]]

all such cases, a report of the circumstances will be made to the Chief 
of Naval Operations.
    (c) This policy does not preclude releases to the media, news 
companies, and others in accordance with established procedures, or the 
sale of released photographs to private agencies or individuals under 
existing Department of Defense regulations and part 701, subparts A-D, 
Availability to the public of Department of the Navy Information and 
Records. Normally, requests by individuals for still photographs and 
motion picture photography for private use are forwarded to the 
Commanding Officer, Naval Photographic Center, Naval Station, 
Washington, DC 20390, for action. Procedures for the collection or 
authority for waiver of fees for service and material provided are set 
forth in Volume III, NAVCOMPT Manual, and part 701, subparts A-D.
    (d) Navy aerial photography released for sale to the public is 
transferred to the United States Department of the Interior. Inquirers 
regarding the purchase of this photography should be directed to Chief, 
Map Information Office, Geological Survey, Department of the Interior, 
Washington, DC 20025.
    (e) Navy training films suitable for sale to the public are 
transferred to the National Audio-Visual Center, National Archives and 
Records Service, General Services Administration, Washington, DC 20408. 
Inquires regarding the sale of Navy training films should be addressed 
to the National Audio-Visual Center.
    (f) This policy does not preclude releases to contractors and others 
properly engaged in the conduct of the Navy's business. However, when 
services are performed for other agencies of the government, and under 
certain conditions, for other military departments, the Navy Comptroller 
Manual prescribes that such are subject to reimbursement.
    (g) All private inquiries from foreign nationals should be returned, 
advising the addressee to contact his local U.S. Information Service 
officer for the desired materials.



Sec. 705.12  Print media.

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



Sec. 705.13  Commercial advertising.

    (a) The Navy encourages cooperation with advertisers. However, the 
layout, artwork and text of the proposed advertisement must be submitted 
to the Chief of Information for review and for clearance by other 
appropriate authorities.
    (b) Requests from commercial enterprises (including those with Navy 
contracts) for use of Navy personnel, facilities, equipment or supplies 
for advertising purposes must be referred to the Chief of Information.
    (c) Official Navy photos which have been cleared and are released 
for open publication may be furnished for commercial advertising, if 
properly identified and captioned. No photos will be taken exclusively 
for the use of an advertiser.
    (d) Navy cooperation in commercial advertising, publicity and other 
promotional activities will be based on the following requirements.
    (1) It must be in accordance with the provisions of 32 CFR part 721.
    (2) It must be in good taste and not reflect discredit on the Navy 
or the U.S. Government. Statements made must be matters of fact, without 
misleading information or other objectionable features.
    (3) It must not indicate that a product is used by the Navy to the 
exclusion of similar products offered by other manufacturers or appear 
to endorse or selectively benefit or favor (directly or indirectly) any 
private individual, sect, fraternal organization, commercial venture or 
political group, or be associated with solicitation of votes in a 
political election. It will not infer Navy responsibility for the 
accuracy of the advertiser's claims or for his compliance with laws 
protecting the rights of privacy of military personnel whose 
photographs, names or statements appear in the advertisement. It will 
neither indicate that a

[[Page 146]]

product has undergone Navy tests nor disclose data from any Navy tests 
which may have been made.
    (4) It may not promote the use of tobacco or alcohol.
    (e) Use of uniforms and naval insignias. These may be used provided 
it is done in a dignified manner.
    (f) Use of Naval personnel:
    (1) Personnel may receive no compensation.
    (2) Personnel will not be inconvenienced or have their training or 
normal duties interrupted.
    (3) Written consent from the person concerned must be obtained 
before a photo may be used.
    (4) Navy civilians and military personnel on active duty may not use 
their position titles or ranks in connection with any commercial 
enterprise or endorsement of a commercial product. (Retired personnel 
and Reserves not on active duty may use their military titles in 
connection with commercial enterprises if this does not give rise to the 
appearance of sponsorship of the enterprise by the Navy or Department or 
in any way reflect discredit upon them.)
    (5) Testimonials from naval personnel are not banned, but the person 
giving the testimonial must not be specifically identified.
    (i) The use of name, initials, rank or rate of Navy personnel 
appearing in testimonial advertising is not permitted, but such 
expressions as, ``says a Navy chief,'' may be used.
    (ii) Care will be taken to ensure that testimonials from Navy 
personnel are presented in such a way as to make clear that the views 
expressed are those of the individual and not of the Department of the 
Navy.



Sec. 705.14  Embarkation of media representatives.

    (a) General. (1) Although this paragraph applies primarily to 
embarkation in ships, provisions which are applicable to embarkation on 
aircraft or visits to shore installations apply also to those 
situations.
    (2) See also Sec. 705.37 on transportation of non-Navy civilians.
    (b) Invitations to embark. (1) Invitations should be extended as far 
in advance as possible and inclusive information on the following should 
be provided:
    (i) Type, scope and duration of operation or cruise.
    (ii) Communications, methods of press transmission, and charges, if 
any.
    (iii) Transportation arrangements.
    (iv) Approximate cost of meals and/or quarters, and the statement 
that the newsman will be expected to pay for these and other personal 
expenses incurred.
    (2) It should be made clear to the newsman that there may be limits 
on movement from one participating unit to another. If helicopters or 
highline transfers are to be used, their limitations and hazards should 
be explained.
    (3) On operations where security is critical, embarkation of newsmen 
may be made contingent to their agreement to submit copy for security 
review. Under such circumstances, the reason for the review will be made 
clear prior to embarkation, and every effort will be made to avoid any 
interpretation of such review as ``censorship'' or interference with 
freedom of the press.
    (c) Arrangements aboard ship. (1) Where appropriate, a briefing 
should be held at the earliest convenient time after embarkation at 
which newsmen may meet the commanding officer and other key personnel 
and guests and at which previously supplied information is reviewed.
    (2) If feasible, an escort officer will be assigned to each newsman 
(or group of newsmen having similar requirements).
    (3) It should be reported in the ship's newspaper (and on radio and 
closed-circuit TV, if any) that newsmen will be embarked, giving their 
names and the media they represent.
    (4) If a correspondent is interested in home town material, 
personnel from his area should be contacted in advance, if possible, to 
determine if and when they would be available for interviews and photos.
    (5) Representatives of press associations and radio and TV networks 
will be embarked in the Exercise Commander's flagship or the Exercise 
Control ship, when possible. This ship should also control the ship-to-
shore press radio and teletype (RATT).

[[Page 147]]

    (6) When more than one representative from the same medium is 
embarked, an attempt should be made to have them located at separate 
vantage points.
    (d) Communications. (1) Every effort will be made to provide 
suitable communication facilities for newsmen embarked (including 
equipment and personnel, if feasible).
    (2) All persons embarked with permission of proper authority and 
accredited as correspondents are eligible to file press traffic, as 
authorized by the procedures set forth in Naval Telecommunication 
Procedures (NTP-9), ``Commercial Communications.''
    (3) Navy radio or wire transmission facilities, where available, may 
be made available to news media (including accredited civilian 
photographers) when operational requirements permit, in accordance with 
instructions set forth by the Director of Naval Communications. This 
includes making live broadcasts or telecasts. (A live network broadcast 
or telecast must, however, be approved by the Chief of Information.)
    (4) Messages and instructions from editors and station managers to 
embarked newsmen will be handled as press traffic, as authorized in 
Naval Telecommunication Procedures (NTP-9).
    (5) Stations receiving press circuits will be authorized to receipt 
for press traffic without asking for time-consuming ``repeats.''
    (6) Under normal circumstances, press copy will be transmitted on a 
first-come, first-served basis; however, newsmen will be informed that 
the prerogative of limiting the amount to be filed during any one period 
rests with the Exercise Commander.
    (7) If it becomes necessary for operational reasons for newsmen to 
pool copy, such messages shall be filed as ``multiple address messages'' 
or book messages, as appropriate, or when requested by the newsmen 
concerned.
    (8) If the locale of the exercise permits newsfilm and press mail to 
be flown ashore, flights should be scheduled on a high priority basis to 
connect with scheduled commercial air traffic. Operational aircraft as 
well as scheduled government air flights should be considered for 
delivery of television news film, radio tapes and photography to the 
nearest commercial communications facility.
    (e) Voluntary submission of material by a newsman for security 
review. When a review is not required but is sought by the newsman, no 
attempt will be made to delete or change any material, whether or not it 
appears critical of the Navy or of naval personnel. If any classified 
information is included, the newsman will be asked to delete it. In 
addition, his attention will be drawn to any inaccurate or possibly 
misleading statements.

[41 FR 29101, July 15, 1976, as amended at 44 FR 6390, Feb. 1, 1979]



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

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



Sec. 705.16  Navy produced public information material.

    (a) Still photo--(1) General. (i) The policy and procedures given 
for media produced still photos in Sec. 705.10, apply to Navy produced 
photos.
    (ii) The Office of Information does not issue, nor have funds 
available for the purchases of, any photographic equipment or supplies 
for Navy commands. Details on the establishment of authorized 
laboratories and acquisition

[[Page 148]]

of equipment and supplies are given in the Manual of Navy Photography 
(OPNAVINST 3150.6D).
    (2) Photographic coverage of command events. (i) If more than two 
photographers are required to cover a public event, consideration should 
be given to having them wear appropriate civilian attire.
    (ii) Personnel in uniform who are amateur photographers and who are 
attending the event as spectators will not be discouraged from taking 
photos.
    (3) Unofficial photos taken by Navy personnel. (i) The following 
regulations apply to Navy civilian employees and to Navy personnel in 
transit through a command, as well as to active duty personnel assigned 
to the command.
    (ii) Personal cameras and related equipment are permitted on Navy 
ships, aircraft and stations at the discretion of the officer in 
command.
    (iii) An officer in command may screen all photos taken by naval 
personnel with personal cameras within the jurisdiction of the command 
to protect classified information or to acquire photos for official use, 
including public affairs. Photographs taken by bystanders at times of 
accident, combat, or similar significant events can be valuable for 
preparation of official report and public release. They should be 
collected for screening and review as expeditiously as possible.
    (iv) Amateur photographers should also be encouraged to volunteer 
the use of interesting or significant photos for public affairs use.
    (v) Photos made by naval personnel, with either personal cameras and 
film, Navy equipment and film, or any combination thereof, may be 
designated ``Official Navy Photo'' if it is considered in the best 
interests of the Navy.
    (A) All precautions will be taken to protect such film from loss or 
damage, and all unclassified personal photos not designated as 
``official'' will be returned to the owner immediately after review.
    (B) When a photo taken by an individual who is not an official 
photographer is selected for public affairs release:
    (1) The photographer will receive credit for his work in the same 
manner as an official photographer.
    (2) The original negative or transparency will be retained and 
assigned an official file number. It will then be handled like any other 
official Navy photograph.
    (3) At least one duplicate negative or transparency of each 
unclassified personal photo which has been designated as ``official'' 
will be prepared and delivered to the photographer. A black-and-white 
print may also be prepared for the photographer's personal use.
    (b) Audiovisual. (1) The Chief of Information releases TV 
featurettes directly to local TV stations and the Office of 
Information's Branch Offices (NAV INFO's). After such featurettes have 
been cleared for public release by the Assistant Secretary of Defense 
(Public Affairs).
    (2) The Assistant Secretary of Defense (PA) must approve, prior to 
commitment of funds, the initiation of Navy audiovisual productions 
intended for public release.
    (3) Motion picture film.
    (i) Film of major news value will be forwarded immediately, 
unprocessed, to the Commanding Officer, U.S. Naval Photographic Center. 
The package should be labeled as follows:

                         News Film--Do Not Delay

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

                         News Film--Do Not Delay


The Commanding Officer of the Naval Photographic Center will be advised 
(with an information copy to the Chief of Information) of its 
forwarding, the subject, type and amount of footage, method of delivery, 
and estimated time of arrival in Washington.
    (ii) The original negative of motion picture photography of feature 
value (photography which will not lose its timeliness over a reasonable 
length of time) will be forwarded to the Naval Photographic Center, and 
a copy of the forwarding letter will be sent to the Chief of 
Information.
    (c) Fleet Home Town News Center (FHTNC). (1) All public affairs 
officers will assure that appropirate news and photo releases on 
personnel of their commands are regularly sent to the Fleet Home Town 
News Center.

[[Page 149]]

    (2) Procedures, requirements and formats are contained in CHIN-
FOINST 5724.1.

[41 FR 29101, July 15, 1976, as amended at 44 FR 6390, Feb. 1, 1979]



Sec. 705.17  Participation guidelines.

    (a) The provisions of this section refer to participation by naval 
personnel and use of Navy facilities and material in events sponsored by 
nongovernment organizations except where otherwise stated.
    (b) In accordance with the established responsibilities of local 
officers in command, these officers will continue to determine whether 
facilities, equipment and personnel within their cognizance may be 
provided for such programs (except in the Washington, DC area where the 
Assistant Secretary of Defense (Public Affairs) is the authorizing 
authority).
    (c) Officers in command will ensure that participation is 
appropriate in scope and type, and is limited to those occasions which 
are: In keeping with the dignity of the Department of the Navy, in good 
taste and in conformance with the provisions of part 721 of this 
chapter. The national, regional, state or local significance of the 
event and the agency sponsoring the event will be used as guides in 
determining the scope and type of Navy participation to be authorized.
    (d) Participation in community relations programs is authorized and 
encouraged to accomplish the aims and purposes as set forth in Sec. 
705.18 (following). Where mutually beneficial to the Department of 
Defense and the public, support authorized and provided is always 
subject to operational considerations, availability of requested support 
and the policy guidance provided herein.
    (e) Military personnel, facilities, and materiel may be used to 
support non-government public affairs programs when:
    (1) The use of such facilities, equipment and personnel will not 
interfere with the military mission or the training or operational 
commmitments of the command.
    (2) Such programs are sponsored by responsible organizations.
    (3) Such programs are known to be nonpartisan in character, and 
there is no reason to believe that the views to be expressed by the 
participants will be contrary to established national policy.
    (f) The sponsoring organizations or groups will be clearly 
identified in all cases where naval personnel participate as speakers, 
or military support is furnished.
    (g) Public affairs programs sponsored by civilian organizations will 
not be cosponsored by a naval command unless expressly authorized by the 
Chief of Information.
    (h) Participation will not normally be authorized in public events 
when the presence of military participants deprives civilians of 
employment. Officers in command will screen all requests for use of 
material and personnel in Navy-sponsored social functions held off 
military installations.
    (i) Navy participation and cooperation must not directly or 
indirectly endorse, or selectively benefit, or appear to endorse, 
benefit or favor, any private individual, group, corporation (whether 
for profit or nonprofit), sect, quasi-religious or ideological movement, 
fraternal, or political organization, or commercial venture, or be 
associated with the solicitation of votes in a political election.
    (1) Providing use of government facilities, such as transportation, 
housing, or messing, at government expense to private groups is normally 
interpreted as a selective benefit or favor and is not authorized as 
part of a community relations program. Therefore, such provisions are 
normally not authorized as part of a community relations program, even 
though certain uses of facilities may be authorized under directives on 
domestic action or other programs.
    (2) The above does not bar private groups from providing 
entertainment on base. However, the appearance must be for entertainment 
and not for fund-raising, or any political or promotional purpose.
    (j) Community relations programs must always be conducted in a 
manner free from any discrimination because of race, creed, color, 
national origin, or sex.

[[Page 150]]

    (1) Navy participation in a public event is not authorized if 
admission, seating and other accommodations and facilities are 
restricted in a discriminatory manner.
    (2) Exceptions for participation may be made under certain 
circumstances for an ethnic or ideological group when they do not 
entertain any purpose of discriminating against any other group. Any 
such exceptions must be referred to the Chief of Information for 
consideration.
    (3) Support to nationally recognized veterans' organizations is 
authorized when the participation is in support of positive programs 
which are not in themselves discriminatory.
    (4) Navy support to nonpublic school activities is authorized when 
the participation is clearly in support of educational programs or Navy 
recruiting.
    (5) Commands should ensure minority participation in all community 
relations activities and events, as appropriate. This includes but is 
not limited to the following:
    (i) Ensure that the minority community is aware of the procedure for 
obtaining Navy support for community events and that they are appraised 
of the use of Navy demonstration teams, units, and speakers.
    (ii) Encourage Navy involvement in, and attention to, local minority 
community events.
    (iii) Continue to cultivate a rapport with key members of all 
minority communities.
    (k) Participation is not authorized if there is fund raising of any 
type connected with the event, except as provided for in Sec. 705.34.
    (l) No admission charge may be levied on the public solely to see an 
Armed Forces demonstration, unit, or exhibit.
    (1) When admission is charged, the Armed Forces activity must not be 
the sole or primary attraction.
    (2) A general admission charge need not be considered prohibitory to 
Navy participation, but no specific or additional charge may be made 
because of Navy participation.
    (3) Participation shall be incidental to the event except for 
programs of a patriotic nature, celebration of national holidays, or 
events which are open to the general public at no charge for admission.
    (4) The provisions of this paragraph do not apply to the Navy's Blue 
Angel Flight Demonstration Team or to the Navy Band and other special 
bands engaged in authorized concert tours conducted at no additional 
cost to the government.
    (m) Some participation in or support of commercially sponsored 
programs on audio or visual media is allowable. See Sec. Sec. 705.7 and 
705.8.
    (n) Some participation which supports commercial advertising, 
publicity and promotional activities or events is allowable. See section 
0405, par. 3 of the Navy Public Affairs Regulations.
    (o) Navy speakers may be provided for certain events at which other 
forms of Navy participation may not be appropriate. See section 0604, 
par. 8 of the Navy Public Affairs Regulations.
    (p) When participation is in the mutual interest of the Navy and the 
sponsor of the event, participation will be authorized at no additional 
cost to the government. Additional costs to the government (travel and 
transportation of military personnel, meals and quarters, or standard 
per diem allowances, etc.) will be borne by the sponsor.
    (q) Department of Defense policy prohibits payment by the Armed 
Forces for rental of exhibit space, utilities, or janitorial costs. 
Other exceptions may be given under unusual circumstances.
    (r) Navy participation in professional sports events and post-season 
bowl games will frequently be authorized at no additional cost to the 
government, will emphasize Joint Service activity when possible, and 
must support recruiting programs. Chief of Information approval is 
required.
    (s) Navy participation in public events shall be authorized only 
when it can be reasonably expected to bring credit to the individuals 
involved and to the Armed Forces and their recruiting objectives. Naval 
personnel will not be used in such capacities as ushers, guards, parking 
lot attendants, runner or messengers, baggage handlers or for crowd 
control, or in any installations.
    (t) Maximum advantage of recruiting potential will be taken at 
appropriate

[[Page 151]]

events for which Navy participation has been authorized.
    (u) Navy support will not normally be authorized for commercially-
oriented events such as shopping center promotions, Christmas parades, 
and other such events clearly sponsored by, or conducted for the benefit 
of commercial interests. However, this policy does not preclude 
participation of Navy recruiting personnel and their organic equipment, 
materials and exhibits so long as their participation is not used to 
stimulate sales or increase the flow of business traffic or to give that 
appearance. Requests for exceptions will be considered on a case-by-case 
basis by the Chief of Information.
    (v) Questions as to appropriateness of Navy participation, or as to 
existing Navy and OASD (PA) policy, may be referred to the Chief of 
Information.
    (w) Procedures for requesting participation are addressed in Sec. 
705.21.

[41 FR 29101, July 15, 1976, as amended at 44 FR 6390, Feb. 1, 1979]



Sec. 705.18  Authority and coordination.

    (a) Each naval command will coordinate its community relations 
program with the senior authority having responsibility for community 
relations in its area (District Commandant, Unified Commander, or 
other).
    (b) Within policy limitations outlined in this section, the command 
receiving a request for Navy participation, and processing the required 
resources, has the authority to process the request and provide the 
support requested.
    (c) Requests for support exceeding local capability, or requiring 
approval from higher authority, or requiring an exception to policy will 
be referred as directed in Sec. 705.21 for determination.
    (d) The Assistant Secretary of Defense (Public Affairs) has the 
overall responsibility for the Department of Defense community relations 
program. Civilian sponsors should be advised to address requests for 
approval of the following types of programs directly to the Director of 
Community Relations, Office of the Assistant Secretary of Defense 
(Public Affairs), Pentagon, Washington, DC 20301:
    (1) National and international events, including conventions, except 
those taking place in overseas areas which are primarily of internal 
concern to Unified Commanders.
    (2) Events outside the United States which have an interest and 
impact extending beyond the Unified Command areas, or which require 
assistance from outside the command area.
    (3) Public events in the Washington, DC area.
    (4) Aerial, parachute, or simulated tactical demonstrations held in 
the public domain, except those held in areas assigned to overseas 
Unified Commands.
    (5) Aerial reviews on military installations within the United 
States if the review involves more than one Service.
    (6) Programmed national sports, professional athletic events, formal 
international competitions, and contests between a Navy and professional 
team in the public domain. See section 0605, par. 18 of the Navy Public 
Affairs Regulations.
    (7) Performing Navy units appearing on regional or national 
television.
    (8) Overall planning for Armed Forces Day (not including local 
activities).
    (9) Granting exceptions to policy.
    (e) Overseas, Unified Commanders are designated to act for and on 
behalf of the Secretary of Defense in implementing community relations 
programs within their command areas and in granting any exceptions to 
policy or regulations. This authority may be delegated.
    (1) Policy, direction and guidance for Unified Command community 
relations programs are provided to Navy components of these commands by 
the Unified Commander concerned.
    (2) Authority of the Commander-in-Chief, Pacific extends to planning 
and execution of community relations programs in Alaska and Hawaii. 
Participation in events held in Alaska and Hawaii will be governed by 
the same principles as policies applicable to other states.
    (3) Community relations programs and events taking place within the 
United States which have an effect on a Unified or Specified Command as 
a whole, or are otherwise of significant concern to the Unified Command, 
require complete coordination through

[[Page 152]]

appropriate channels between the Unified Command and naval activities 
concerned.
    (4) Unified Commanders overseas requiring Navy support for a 
community reltaions program or participation in a public event should 
coordinate their requirements with the appropriate Navy component 
command.
    (f) The Secretary of the Navy will plan and execute Navy community 
relations programs and approve Navy participation in public events not 
otherwise reserved or assigned to the Secretary of Defense. This 
authority may be delegated.



Sec. 705.19  Financing.

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



Sec. 705.20  Use of Navy material and facilities.

    (a) The loan of equipment and permission to use facilities will be 
dependent on the following:
    (1) The program support must be within the command's public affairs 
responsibility.
    (2) The loan of the equipment must not interfere with the military 
mission of the command.
    (3) Equipment must be available within the command or obtainable 
from another Navy command in the local area.
    (4) The event must be of the type for which participation is 
considered appropriate.
    (5) It must not be in any direct or implied competition with a 
commercial source.
    (6) There must be no potential danger to persons or private property 
that could result in a claim against the government. Safety requirements 
will be observed.
    (b) Use of open mess facilities will be permitted only under one of 
the following conditions:
    (1) Incident to the holding of a professional or technical seminar 
at the command.
    (2) Incident to an official visit to the command by a civic group.
    (3) Navy League Council luncheon or dinner meetings (not to exceed 
one per quarter per group).
    (4) Incident to group visits by the Boy Scouts of America, Boys 
Clubs of America, the Navy League Sea Cadets (by virtue of their federal 
charters), Girl Scouts and the Navy League Shipmates, and a few 
representative adult leaders.
    (c) Use of the official Navy flag will be in accordance with 
SECNAVINST 10520.2C and of official emblem in accordance with OPNAVINST 
5030.11B.
    (d) Requests not meeting the criteria cited here, but which are 
considered by the officer in command to have merit,

[[Page 153]]

may be referred to the Chief of Information.

[41 FR 29101, July 15, 1976, as amended at 44 FR 6391, Feb. 1, 1979]



Sec. 705.21  Requests for Navy participation.

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



Sec. 705.22  Relations with community groups.

    (a) Naval commands will cooperate with and assist community groups 
within their capabilities, to the event authorized by current 
instructions, and will participate in their activitis to the extent 
feasible.
    (b) Navy commands will encourage membership of personnel in 
community organizations.
    (c) Officers in command will withhold approval of requests from 
community groups, organizations or individuals whose purposes are 
unclear, pending advice from the Chief of Information.
    (d) Commands may make facilities, less housing and messing, 
available to community groups, at no expense to the government, when it 
is in the best interest of the Navy to do so. Mess facilities may not be 
used for meetings of civic groups or other asociations unless all the 
members of the group concerned are authorized participants of the mess 
as prescribed in NAVPERS 15951, except as provided below:
    (1) Requests to make open mess facilities available to professional 
or technical seminars or civic groups meeting in connection with an 
official visit to the activity may be submitted to the officer in charge 
of the mess, or other appropriate authority. Such requests may be 
approved when it is shown that the inspection of the activity or the 
holding of a professional seminar is of principal importance and the use 
of mess facilities is incidental thereto.
    (2) Because of the exceptional nature of the Navy League, as 
recognized by the Secretary of the Navy, open mess facilities may be 
used for luncheon or dinner meetings of Navy League Councils, but not 
more often than once per quarter per group.
    (e) Relations with Industry and Labor in the Community (refer to 
SECNAVINST 5370.2F and DOD Directive 5500.7):
    (1) Relations with Navy contractors and with industry and business 
in general are the responsibility of the officer in command, with the 
assistance of his public affairs officer.
    (2) Navy commands will cooperate with industry and its 
representatives in planning and executing community relations projects 
of mutual interest.
    (i) Visits to commands will be scheduled for industrial and employee 
groups under the same conditions as for other civilian groups.
    (ii) A contractor may be identified in a news release, exhibit, or 
the like whenever the major responsibility for the product can be 
clearly and fairly credited to him. In such cases, both the 
manufacturer's name for the product and the Navy designation of it will 
be used.

[[Page 154]]

    (iii) Commands will not solicit, nor authorize others to solicit, 
contractors to provide advertising, contributions, donations, 
subscriptions, etc. Where there is a legitimate need for industrial 
promotion items, such as scale models, the command will contact the 
Chief of Information for advice as to the procedure for requesting 
procurement.
    (iv) Similarly, if Defense contractors wish to distribute 
information material through official Navy channels, the Office of 
Information will be queried as to the desirability and feasibility of 
undertaking the desired distribution.
    (v) Visits to contractor facilities are governed by the provisions 
of DOD Manual 5520.22-M (Industrial Security Manual for Safeguarding 
Classified Information). If nationally known press representatives will 
be involved, prior approval must be obtained both from the contractor 
(via the Chief of Information) and from the Assistant Secretary of 
Defense (Public Affairs).
    (3) Commands will maintain the same relationship with labor unions 
as with other community groups and will not take action in connection 
with labor disputes. Personnel inadvertently or incidentally involved in 
labor disputes will consult officers in command for guidance.
    (f) Emergency Assistance to the Community:
    (1) Navy commands will offer and provide assistance to adjacent 
communities in the event of disaster or other emergency.
    (2) The Chief of Information will be advised immediately of action 
when taken, and copies of subsequent reports to the Chief of Naval 
Operations will be forwarded to the Chief of Information.
    (3) Navy commands will participate in planning by local Civil 
Defense officials.

[41 FR 29101, July 15, 1976, as amended at 44 FR 6391, Feb. 1, 1979]



Sec. 705.23  Guest cruises.

    (a) General policy. (1) The embarkation of civilian guests in Navy 
ships is appropriate in the furtherance of continuing public awareness 
of the Navy and its mission.
    (i) Examples of embarkations for public affairs purposes are (but 
not limited to): Individuals, community service clubs, civic groups, the 
Navy League, and trade and professional associations.
    (ii) Embarkation of media representatives on assignment is discussed 
in Sec. 705.14.
    (iii) Other categories may be established by the Secretary of the 
Navy, subject to the approval of the Secretary of Defense.
    (2) It has also been demonstrated that the occasional embarkation on 
cruises of families and personal guests of naval personnel has 
contributed materially to the morale of the family circle and has 
instilled in each individual a sense of pride in his ship. For further 
information see OPNAVINST 5720.2G.
    (3) Embarkations should be conducted within the framework of 
regularly scheduled operations; underway periods solely to accommodate 
guests are not authorized.
    (4) Commander-in-Chief, Pacific Fleet, Commander-in-Chief, Atlantic 
Fleet, Commander-in-Chief, U.S. Naval Forces Europe, Commander Military 
Sealift Command (and their subordinate commands if so designated), Chief 
of Naval Education and Training, and District Commandants may authorize 
the embarkation of female civilians for daylight cruises. Embarkation of 
civilians for overnight cruises must be authorized by the Chief of Naval 
Operations via the Chief of Information.
    (5) All guest visits are normally authorized on an unclassified 
basis.
    (6) In all instances, due precautions must be taken for the safety 
of the guests. (See section 0403, pars. 6(b) and, 6(e), of the Navy 
Public Affairs Regulations, for procedures to be followed in the case of 
death of, or injury to, civilians embarked on naval ships.)
    (7) For further information on policy, procedures, and eligibility 
criteria, see OPNAVINST 5720.2G.
    (b) Authority. (1) Authority to establish procedures for the conduct 
of the embarkation of guests for public affairs purposes (including the 
Secretary of the Navy Guest Cruise and Guest of the Navy Cruise 
programs, which are discussed in Sec. 705.24) is vested in the 
Secretary of the Navy. This authority is limited only insofar as the 
Chairman of the Joint Chiefs of Staff and the

[[Page 155]]

commanders of the Unified and Specified Commands (and their component 
commanders, if so designated) have the authority to use Navy ships to 
embark individuals other than news media representatives for public 
affairs purposes.
    (i) Public affairs embarkations originating within the geographical 
limits of the Unified Command will be approved by and coordinated with 
the commanders of such commands. This authority may be delegated. 
Requests for such embarkations originating with the subordinate fleet or 
force command of a Unified Command will be submitted via the operational 
chain of command, to the appropriate commander of the Unified Command, 
unless delegated.
    (ii) Requests for public affairs embarkations originating from any 
Navy source other than the Chairman of the Joint Chiefs of Staff, or the 
Unified and Specified Commanders or their subordinate commands, will be 
submitted to the Chief of Information, who will effect coordination with 
the Chief of Naval Operations and/or the Assistant Secretary of Defense 
(Public Affairs) as appropriate.
    (iii) When guests debark in a foreign port which is in the 
geographic area of a Unified Command other than that in which the cruise 
originated, the Chief of Information will coordinate travel by obtaining 
concurrence of all appropriate commanders and the approval of the Chief 
of Naval Operations, and the Assistant secretary of Defense (Public 
Affairs) as appropriate.
    (2) Officers in command to whom authority to embark guests for 
public affairs purposes is delegated will make maximum use of this 
authority.
    (c) Secretary of the Navy Guest Cruise and Guest of the Navy Cruise 
Programs. (1) The objective of these two programs is: To expose top-
level and middle-level opinion leaders in the fields of business, 
industry, science, education, and labor to the operation of the U.S. 
Navy, in order that they may gain a better understanding of its 
capabilities and problems, the complicated nature of modern sea-based 
equipment, and the high levels of responsibility and training required 
of Navy men and women.
    (2) In addition to policy contained in paragraph (c)(1) of this 
section, the following policy guidelines apply to the conduct of the 
Secretary of the Navy Guest Cruise and the Guest of the Navy Cruise 
Programs.
    (i) Secretary of the Navy Guest Cruise Program. (A) Only aircraft 
carriers and cruisers will be used.
    (B) Cruises will be conducted once each quarter on each coast, 
contingent upon the availability of appropriate ships.
    (C) The optimum number of guests is 15.
    (D) Guests will be drawn from top-level executives and leaders who 
have not had previous exposure to the Navy. ``Previous exposure'' is 
defined as active or reserve service in the U.S. Navy or U.S. Marine 
Corps within the last 10 years; membership in the Navy League or any 
other Navy-oriented organization; or participation in a cruise on a U.S. 
Navy ship in the last 10 years.
    (E) Whenever feasible, Secretary of the Navy Guests will be greeted 
by CINCLANTFLT or CINCPACFLT, or in their absence by the SOPA. 
Comprehensive unclassified briefings will be given dealing with the 
Navy's mission, fleet operations, and current problems.
    (F) Cruises will vary in length from 3 to 7 days, when appropriate, 
to conform with the operating schedule of the ship.
    (ii) Guests of the Navy Cruise Program. (A) All types of ships will 
be used. This will include carriers when available, after selection of a 
cruise for the Secretary of the Navy Guest Cruise Program.
    (B) Guest of the Navy Cruise guests will be drawn from middle-level 
executives and leaders who have not had previous exposure to the Navy. 
Guests should include persons who have direct impact on recruiting, such 
as secondary school principals, guidance counselors, coaches and 
teachers.
    (C) Cruises of relatively short duration (3 to 5 days) are 
preferred, although cruises up to 7 days are authorized. Protracted 
cruises will not be approved except for special circumstances.

[[Page 156]]

    (D) Invitations will be extended by the District of Commandants. 
Invitations will include:
    (1) Statement of the purpose of the Guest of the Navy Cruise 
Program.
    (2) Authorization for embarkation and, if applicable, for COD 
flights, with instructions for reporting on board.
    (3) Name and rank of the commanding officer and, if applicable, name 
and rank of embarked flag officer.
    (4) A caution that guests should not accept the invitation unless 
they are in good health.
    (5) Statement to the effect that the tempo of operations might cause 
changes in scheduling which could result in the invitation having to be 
withdrawn.
    (E) The following necessary information may be included separately 
with a letter of invitation: Recommended wardrobe, passport and 
immunization requirements, availability of emergency medical and dental 
facilities, ship's store and laundry facilities, statement that guest's 
use of a camera will be authorized subject to certain restrictions, and 
a listing of those restrictions. In addition, the following statement 
will be included with each invitation, or form part of the attached 
information sheets:

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

    (iii) Applicable to both programs. (A) Guests will provide their own 
transportation from home to the ship and return, and must reimburse the 
Navy for living and incidental expenses while embarked so that the 
program may be conducted at no additional expense to the government.
    (B) Because the number of billets available to accommodate all of 
the potential guests is limited, the guest's opportunity to communicate 
his experience to his associates must be considered. For this reason, 
one of the criteria for selection of guests will be their level of 
activity in civic, professional, and social organizations. In nominating 
and selecting guests, effort will be made to ensure that minority 
citizens are included as appropriate.
    (C) Atlantic cruises will be made on ships operating between East 
Coast ports, or between CONUS and the U.S. Caribbean ports of San Juan, 
PR, or Charlotte Amalie (St. Thomas), Virgin Islands. Pacific cruises 
will be made on ships operating between West Coast ports: Between CONUS 
and ports in Hawaii, Alaska, Mexico or Canada; or between ports within 
Hawaii or Alaska.
    (D) Guests will be informed of security restrictions. Unclassified 
photography should be permitted on board, as pictures renew guests' 
feelings of identification with a ship. Guests will be advised of areas, 
however, where photography is prohibited, and security regulations will 
be courteously but firmly enforced.
    (E) Guests will be billeted in officers quarters and normally 
subsisted in the wardroom. It is not necessary that guests be assigned 
individual rooms. Billeting with ship's officers promotes mutual 
understanding, and guests feel more closely identified with the ship's 
company. They will be invited to dine at least once in each mess on 
board, if the length of the cruise permits. Guests will be encouraged to 
speak freely and mingle with the crew.
    (F) Guests will be accorded privileges of the cigar mess 
commissioned officers mess (open) ashore--with the exception of package 
store privileges--and the use of ship's or Navy Exchange laundry and 
tailor shops. Other Navy Exchange privileges will be limited to purchase 
of items for immediate personal use.

[[Page 157]]

    (G) Only emergency medical and dental care will be provided and then 
only where civilian care is not conveniently available.
    (1) In the event of injury to civilians embarked in Navy ships and 
aircraft or visiting naval activities, commanding officers will notify 
the Chief of information, the appropriate Commandant, and operational 
commanders, by message, of the injury and action taken.
    (2) In the event of an emergency not covered by Navy Regulations, 
the facts and circumstances will be reported immediately to the 
Secretary of the Navy.
    (H) Guests may be allotted time for side trips at their own expense 
when an itinerary includes naval activities or ports adjacent to 
recognized points of interest.
    (I) As a souvenir of the cruise, it is suggested that guests be 
provided with a photograph of the ship, perhaps suitably inscribed by 
the commanding officer prior to debarkation.
    (J) Any publicity will be limited to that initiated by the 
participants. Navy-sponsored publicity will be avoided unless sought by 
the participants. At the same time, media inquiries or inquiries from 
the general public will be answered fully, the purposes of the cruise 
program outlined and the fact stressed that no cost to the government is 
incurred.

[41 FR 29101, July 15, 1976, as amended at 44 FR 6391, Feb. 1, 1979]



Sec. 705.24  Exhibits.

    (a) Navy exhibits are representations or collections of naval 
equipment, models, devices and information and orientation material 
placed on public display for information purposes before audiences at 
conventions, conferences, seminars, demonstrations, exhibits, fairs, or 
similar events. Also included are general purpose displays in public 
buildings or public locations. Museums also occasionally request a Navy 
exhibit on a permanent or temporary loan basis.
    (1) Exhibits may be displayed in any appropriate location or event 
(including commercially owned spaces such as shopping centers, malls, 
etc.) provided it is clearly established that such areas are places the 
general public frequents and that the exhibit is not for the purpose of 
drawing the public to that location, and that it is determined that 
participation is in the best interests of the Department of Defense and 
the Department of the Navy.
    (2) [Reserved]
    (b) Exhibits will be used for the following purposes only:
    (1) To inform the public of the Navy's mission and operations.
    (2) To disseminate technical and scientific information.
    (3) To assist recruiting of personnel for Navy military service and 
for civilian employment in the Department of the Navy.
    (c) Exhibit requests and procedures:
    (1) Requests for Navy exhibits, other than local exhibits may be 
forwarded to the Navy Recruiting Exhibit Center via the local Navy 
recruiter with an information copy to the Chief of Information. The 
primary mission of the Navy Recruiting Exhibit Center is to support 
local Navy recruiters. Requests for exhibits for community relations 
events will be considered favorably only when not in conflict with 
recruiting requirements.
    (i) Requests for exhibits must be submitted well in advance of their 
proposed dates of use.
    (ii) Requests for mobile exhibits requiring tractor-trailer 
transportation should be forwarded prior to November 15th previous to 
the year desired. A tour itinerary of mobile exhibits will then be 
established for the following year.
    (iii) The period of time for which an exhibit is authorized will be 
determined by the nature of the event and the type of exhibit (e.g., 
equipment from local resources used for a local celebration would 
normally not be exhibited for more than three days; but, a formal 
exhibit at an exposition might remain for the duration of the event).
    (2) The office of the Assistant Secretary of Defense (Public 
Affairs) is the approving authority for Navy exhibits in events of 
international or national scope, or those requiring major coordination 
among the Armed Forces, or with other agencies of the Federal 
Government.

[[Page 158]]

    (i) All Navy activities will forward such requests to the Chief of 
Information for coordination with the OASD (PA).
    (ii) Subordinate commands of a Unified Command will forward exhibit 
requests of the above types to the Unified Commander concerned, via the 
chain of command.
    (3) The official OASD(PA) Request Form for Armed Forces 
Participation will be used. See Armed Forces Request Form, Sec. 705.36.
    (4) Requests for exceptions to policy for exhibit displays should be 
forwarded to the Officer in Charge, Navy Recruiting Exhibit Center.
    (5) Policy guidance on costs is defined in Sec. 705.19.
    (6) Occasionally, a project officer will be assigned to coordinate 
use of the exhibit with the sponsor.
    (i) Project officers are normally commissioned officers, equivalent 
civilian personnel, local recruiters or reservists, who have been 
assigned the responsibility of coordinating Service participation in a 
special event.
    (ii) The project officer should establish immediate liaison with the 
sponsor.
    (iii) The project officer should assist in determining the actual 
location of the exhibit, make arrangements for assembling and 
disassembling the exhibit material, and supervise these operations.
    (iv) The project officer will ensure Navy and Department of Defense 
policies are followed, and will coordinate local news releases 
concerning Navy participation.

[41 FR 29101, July 15, 1976, as amended at 44 FR 6391, Feb. 1, 1979]



Sec. 705.25  Navy Exhibit Center.

    (a) The center is a field activity of the Chief of Information and 
is located in the Washington Navy Yard. Its primary mission is to 
produce, transport and display U.S. Navy exhibits throughout the United 
States. It also facilitates assignments of Navy combat artists and, 
additionally, produces exhibits for its own tours and for short-term 
loans to naval commands.
    (b) [Reserved]

[41 FR 29101, July 15, 1976, as amended at 44 FR 6391, Feb. 1, 1979]



Sec. 705.26  Exhibit availability report.

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

[41 FR 29101, July 15, 1976, as amended at 44 FR 6391, Feb. 1, 1979]



Sec. Sec. 705.27-705.28  [Reserved]



Sec. 705.29  Navy Art Collection.

    (a) The U.S. Navy has continued to record its military actions, 
explorations, launchings, etc., in fine art form since before World War 
II. The present Navy Combat Art Collection contains over 4,000 paintings 
and sketches. A significant number of new works is being added each 
year. The combat artists of World War II have been replaced by civilian 
artists who witness today's Navy in action, record their impressions, 
and donate their works of art to the Department of the Navy.
    (1) The voluntary services of most of the artists are arranged 
through the Navy Art Cooperation and Liaison Committee (NACAL) which 
operates in close cooperation with the Salmagundi Club of New York City 
and the Municipal Art Department of the City of Los Angeles.
    (2) The Chief of Information has established liaison with the 
Salmagundi Club in order to maintain a continuing historical record of 
the Navy. Organized in 1871, the Salmagundi Club is the oldest club of 
professional artists in the United States. The Club appointed a Navy Art 
Cooperation and Liaison (NACAL) Committee to advise the Navy on art 
matters and to nominate artists for assignment to paint Navy activities 
through the world. The

[[Page 159]]

Chief of Information reviews the nominations, and issues SECNAV 
invitational travel orders to each artist approved.
    (3) The following policy pertains:
    (i) All finished art portraying the Navy and produced by Navy 
artists on active duty for that purpose and by guest artists working 
under invitational travel orders becomes the property of the Department 
of the Navy.
    (ii) Civilian artists selected to paint Navy life through 
cooperation of a private sponsor and the Chief of Information may be 
authorized by the Chief of Information or the Office of the Secretary of 
Defense to retain their works.
    (iii) Paintings, sketches, drawings and other forms of artwork will 
not be accepted by the Department of the Navy unless all reproduction 
rights are surrendered and unless they become the permanent property of 
the Department of the Navy.
    (iv) Requests for reproduction of combat art for use in advertising 
or publication will be directed to the Chief of Information.
    (b) Responsibilities:
    (1) The Chief of Information exercises supervision and control of 
the Navy Art Program and issues SECNAV invitational travel orders and 
letters of invitation to artists selected for assignment.
    (2) When directed by the Chief of Information or other appropriate 
Navy authority, a NACAL project officer will perform the following 
functions:
    (i) Act as a local liaison officer for the NACAL Program.
    (ii) Assist NACAL artists on assignments within his area.
    (3) The Curator Navy Combat Art Center, in coordination with the 
Chief of Information, will:
    (i) Plan trips for the NACAL Program.
    (ii) Approve requests for art displays.
    (iii) Provide logistic support for the maintenance, storage, 
shipment and display of the Navy Combat Art Program.
    (c) Requests for art displays should be forwarded to the Director, 
Community Relations Division, Office of Information, Navy Department, 
Washington, DC 20350.
    (d) Exhibition of Navy Art:
    (1) Operation Palette I'' is a carefully selected group of 75 to 100 
combat art paintings depicting Navy and Marine Corps activities during 
World War II. The schedule of ``Operation Palette I'' is promulgated by 
the Officer-in-Charge, Navy Recruiting Exhibit Center and supervised by 
the Chief of Information, with the concurrence of District Commandants. 
Schedules are arranged so that the exhibition travels within a 
particular Naval District for several months at a time. District 
Commandants designate project officers for each city where ``Operation 
Palette I'' is exhibited. The project officer makes all arrangements, 
including suitable location, publicity and personnel to assist the chief 
petty officer who travels with the collection. Promotional kits are 
provided by the Officer-in-Charge, Navy Recruiting Exhibit Center. 
Requests for exhibitions are not desired, since the collection always 
travels on a prearranged tour.
    (2) ``Operation Palette II'' consists of 75 to 100 paintings 
representative of the worldwide operations of the contemporary Navy and 
Marine Corps * * * the Navy today * * *, and travels on prearranged 
tours similar to ``Operation Palette I.''
    (3) Other exhibitions of original paintings from the Combat Art 
Collection may be scheduled on request by either Navy commands or 
civilian art groups. Requests should be directed to the Director, 
Community Relations Division, Office of Information, Navy Department, 
Washington, DC 20350 and contain the following:
    (i) The occasion.
    (ii) Inclusive dates. (Not less than 10 days or more than 90 days 
sub-custody.)
    (iii) Expected attendance and type of publicity planned.
    (iv) Amount of space allotted.
    (v) If Navy-sponsored show, certification that 24-hour security will 
be provided for the paintings while in custody.
    (vi) If civilian-sponsored show, statement that transportation and 
insurance requirements will be met. (Physical security must be available 
for exhibit, with an attendant on duty during open hours and locked 
building or

[[Page 160]]

other means of protecting exhibit when closed to the public.)
    (e) Navy Combat Art Lithograph Program:
    (1) This program makes available full color, high quality 
lithographs which are faithful reproductions of the original artwork on 
quality paper of selected works of art from the Navy Art Collection.
    (2) Additional information and ordering details are contained in 
CHINFO NOTICE 5605, which is issued periodically.

[41 FR 29101, July 15, 1976, as amended at 44 FR 6391, Feb. 1, 1979]



Sec. 705.30  Aerospace Education Workshop.

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



Sec. 705.31  USS Arizona Memorial, Pearl Harbor.

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



Sec. 705.32  Aviation events and parachute demonstrations.

    (a) Armed Forces aircraft and parachutists may be authorized to 
participate in appropriate in public events which meet basic Department 
of Defense criteria. This participation may be one of the officially 
designated military flight or parachute demonstration teams, flyover by 
aircraft, a general demonstration of capabilities by aircraft, or the 
static display of aircraft.
    (b) Events which are appropriate for aviation participation include: 
Dedication of airports; aviation shows; aircraft exposition; air fairs; 
recruiting programs; civic events which contribute to the public 
knowledge of naval aviation equipment and capabilities and to the 
advancement of general aviation; public observances of certain national 
holidays (Armed Forces Day, Veterans Day, Memorial Day and Independence 
Day); national conventions of major veterans organizations; memorial 
services for deceased, nationally recognized dignitaries; and receptions 
for foreign dignitaries.
    (c) Support of Armed Forces recruiting is the primary purpose of 
military flight and parachute demonstration teams. Armed Forces 
recruiting teams are available to assist sponsors in coordinating 
advance publicity and information coverage to insure maximum exposure 
for the demonstration team and the event. This assistence is at no 
additional expense to the sponsor; however, the sponsor is required to 
give full support to the recruiting effort and

[[Page 161]]

to cooperate fully with local service officials. Such support could 
include (but is not limited to) the provision of prime space for 
recruiters at the event site and the provision of courtesy passes in 
controlled quantities to recruiters for the purpose of bringing recruit 
prospects and recruiting advisors to view the show.
    (d) DOD support of air show fund raising efforts in the form of 
provision of military flight and parachute demonstration teams is 
limited to charities recognized by the Federal Services Fund-Raising 
Program. These include such agencies as the United Givers Fund, 
Community Chests, National Health Agencies (as a group), International 
Service Agencies and the military aid societies. Armed Forces support to 
fund-raising events for a single cause, even though the charity is a 
member of a federated or joint campaign or donates in part to one or 
several of the campaigns, is inconsistent with the basic position of 
Department of Defense. The name of the nearest Combined Federal Campaign 
coordinator will be supplied to the sponsor, or if he chooses, he might 
elect to work with the local United Givers Fund (Community Chest). As a 
minimum, the sponsor must agree to provide at least half of the profit 
above costs to the Combined Federal or United Givers Campaigns to 
receive Armed Forces support.
    (e) Request form. This form is used to request military flight and 
parachute demonstration team participation in public events. The 
information is required to evaluate the event for appropriateness and 
compliance with Department of Defense policies and for coordination with 
the units involved.

                                 General

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

Name:___________________________________________________________________
Address:________________________________________________________________
City, State: ------------------ Zip:____________________________________
Telephone: (Office) -------- (AC)_______________________________________
________________________________________________________________________
(home) -------------------- (AC)________________________________________
________________________________________________________________________
6. Purpose of this event (explain fully):_______________________________
________________________________________________________________________
7. Expected attendance:_________________________________________________
8. Is this event being used to promote funds for any purpose?___________
9. Admission charge:____________________________________________________
``Charge for seating:___________________________________________________
10. Disposition of profits which may accrue:____________________________
11. Will admission, seating and all other accommodations and facilities 
connected with the event be available to all persons without regard to 
race, creed, color or national origin?__________________________________
12. Will the standard Military Services allowance for quarters and meals 
be provided by the sponsor for Armed Forces participants?_______________
13. Will transportation at sponsor's expense be proviced for Armed 
Forces participants between the site of this event and hotel?
________________________________________________________________________
14. Will telephone facilities, at sponsor's expense, be made available 
for necessary official communications regarding the event?______________
________________________________________________________________________
15. It may be necessary for representatives of the requested unit to 
visit the site prior to the event. Will transportation, meals and hotel 
accommodations be provided by the sponsor?______________________________
________________________________________________________________________
16. Please describe the space which will be provided to recruiters:_____
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
17. Designate charity beneficiary(s):___________________________________
________________________________________________________________________

             Flight Team, Parachute Team, Flyovers, Statics

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

Flight Team Demonstration....................................  .........
U.S. Navy Blue Angels........................................  .........
U.S. Air Force Thunderbirds. (Cost for either team is          .........
 $1500.00 for each day team scheduled at your event.)........
Aircraft Flyover: (No cost to sponsor.)......................  .........
Static Aircraft: (Cost is $25.00 per day per crewmember.)....  .........

[[Page 162]]

 
U.S. Army Silver Eagles: (Cost for this team is $750.00 for    .........
 each day team scheduled at your event.).....................
Parachute Team Demonstration U.S. Army Golden Knights: (Cost   .........
 is $25.00 per day per man for each day required to support
 your event. Team consists of 10-14 personnel.)..............
(Other)......................................................  .........
 

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

                              Certification

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

Signature:______________________________________________________________
                                              (Sponsor's Representative)

Date of Request:________________________________________________________
Return this form to:____________________________________________________

    (f) Definitions. A flight team demonstration is an exhibition of 
precision aerial maneuvers flown by the official Department of Defense 
military flight demonstration teams, the U.S. Air Force Thunderbirds, 
the U.S. Navy Blue Angels and the U.S. Army Silver Eagles. An aircraft 
demonstration is a flight demonstration by aircraft other than those of 
the teams listed above and designed to portray tactical capabilities of 
aircraft by a single aircraft (i.e., the U.S. Marine Corps ``Harrier'') 
or group of aircraft, including air-to-air refueling, helicopter hover 
and pick-up or rappelling capabilities, Low Altitude Parachute 
Extraction System, maximum performance take-off, etc. A parachute 
demonstration is an exhibition of free-fall and precision landing 
techniques by the official DOD parachute team, the U.S. Army Golden 
Knights. Other parachute demonstrations can be performed by the U.S. 
Navy Parachute Team, or another unofficial team or sports parachute club 
representing the Department of Defense. A flyover is a flight of not 
more than four aircraft over a fixed point at a specific time and does 
not involve precision maneuvers or demonstrations. Flyovers are 
authorized for certain events when the presence of Armed Forces aircraft 
overhead would contribute to the effectiveness of the event based on a 
direct correlation between the event and the aircraft. Flyovers can also 
be authorized for occasions primarily designed to encourage

[[Page 163]]

the advancement of aviation and which are of more than local interest. 
Flyovers by any of the official DOD flight teams are not authorized. 
Parades are not considered an appropriate event for authorizing flyover 
support. The static display of aircraft is the ground display of any 
military aircraft and its related equipment, not involving flight, 
taxiing or starting of engines.
    (g) Events which are appropriate for Armed Forces aviation 
participation in the public domain include such activities as dedication 
of airports and facilities, aviation shows, expositions, and fairs; and 
other civic events which contribute to the public knowledge of the U.S. 
Military Services aviation equipment and capabilities. The number one 
priority for utilization of military aircraft and parachutists in such 
events in the public domain is to support the recruiting aspects of the 
all-volunteer force concept. The approval of any such military 
demonstration will only be authorized if a maximum recruiting benefit 
exists at each location.
    (h) Costs. (1) The cost for either the United States Air Force 
Thunderbirds or the United States Navy Blue Angels will be $1500 for 
each day a demonstration is scheduled. If the United States Army Golden 
Knights precision parachute team is scheduled for your event, the cost 
will be $25 per man per day for each day required to support your event, 
to include the days of travel if required. Under normal conditions, this 
group is comprised of fourteen members: Nine jumpers, three aircraft 
crewmen, one ground controller, and a narrator. The sponsor will be 
advised by the Golden Knights in advance of the costs related to his 
event for which the government must be reimbursed. The United States 
Army Silver Eagles helicopter team, composed of seven helicopters, 
performs precision formation manuevers and solo helicopter aerobatics to 
demonstrate the capabilities of modern helicopters and the skill of Army 
aviators. The Silver Eagles performance lasts about 30 minutes and is 
conducted entirely in full view of spectators on the crowd line. The 
cost for the team is $750 for each day a demonstration is scheduled. The 
sponsor should make a check payable to the Treasurer of the United 
States for the required amount and present it to the appropriate 
demonstration team commander in advance of the scheduled event.
    (2) Costs associated with static aircraft are normally $25 per day 
for each crew member plus possible fuel requirements discussed below. 
Charges for any other military parachuting demonstration (i.e., U.S. 
Navy Parachute Team, local Armed Forces sport parachute clubs, etc.) 
will depend on the number of personnel and transportation involved. 
Checks payable to the Treasurer of the United States should be made 
available to the appropriate aircraft commander for static displays or 
parachute team commander upon arrival at the event.
    (i) As noted in the Department of Defense request form, the sponsor 
is required to pay per diem costs for team and static display crew 
members except for flyovers or aircraft demonstrations not involving 
landing.
    (3) These costs are binding after a team or crew personnel have 
arrived at the show site, even though weather conditions or other 
unforeseen circumstances force the event to be cancelled. These funds 
provided by the sponsor will be utilized by team members or crew 
personnel for paying housing and subsistence costs. The actual breakdown 
of the per diem involved is $13.20 for housing, $9.30 for subsistence, 
and $2.50 for incidental expenses. In those locations where housing and 
subsistence cannot be procured for these amounts, it will be the 
responsibility of the sponsor to absorb the additional cost. As stated, 
these costs will cover participation but does not include certain ground 
support requirements (i.e., ground transportation, telephone, etc.) to 
be furnished by a sponsor as outlined in a team support packet.
    (4) Other costs that could be incurred by the sponsor are in the 
area of the sponsor's agreement to provide suitable aircraft fuel 
(defined as JP jet fuel or aviation gas and lubricants) at U.S. 
Government contract prices. Where fuel is available from local military 
stocks--usually military installations--or when fuel is available from 
commercial into-plane contract locations, the U.S. Government will pay 
all fuel costs. If military contract fuel is

[[Page 164]]

not available at the show site, the sponsor will be required to pay all 
costs above the contract price and that price charged by the local 
supplier. However, the sponsor may choose to transport military contract 
fuel from a military base or a commercial airport having a U.S. 
Government into-plane contract. In this case, his cost would be only the 
transporting and handling of this fuel to the show site.
    (5) The Department of Defense no longer requires the sponsor to 
provide the Department with a public liability and property damage 
insurance policy. This should in no way deter the sponsor from obtaining 
such liability and property damage insurance he feels is necessary for 
his own protection. Due to the costs that could accrue to the sponsor in 
case of cancellations because of inclement weather, the sponsor may wish 
to consider rain insurance to protect his investment. Previous sponsors 
have advised us that such insurance is available from most commercial 
companies.
    (i) Other information. (1) Flight and/or parachute team 
demonstrations are restricted to appropriate events at airports, over 
open bodies of water, or over suitable open areas of land. For the U.S. 
Air Force Thunderbirds or U.S. Navy Blue Angels to operate from an 
airport show site, the following operational requirements must be met:
    (i) Minimum useable runway length for the Thunderbirds is 5000 feet 
by 150 feet in width.
    (ii) Minimum useable runway length for the Blue Angels is 6000 feet 
by 150 feet in width.
    (iii) Minimum single landing gear load bearing capacity for 
Thunderbirds is 45,000 pounds; for Blue Angels, 21,000 pounds. Tandem 
landing gear load bearing capacity is 155,000 pounds for Blue Angels and 
Thunderbirds.
    (2) A staged performance may not be given if the location planned 
for the show site does not meet these minimums. The maximum distance for 
a staged performance'' under normal conditions is 50 nautical miles. It 
should be noted that staged performances are seldom authorized since the 
recruiting potential is reduced at such events.
    (3) The type and number of static and/or flyover aircraft which may 
be assigned is entirely dependent upon the Military Services' capability 
to provide such resources at the time of your event. This capability is 
affected by operational commitments and sponsors are advised that 
confirmation of static/flyover aircraft cannot be made by the 
appropriate Service more than 15-30 days before your event.
    (4) The U.S. Army Silver Eagles are normally restricted to 
performances at airports. Other open land areas may be operationally 
suitable but require the prior approval of the team commander in each 
case.
    (5) Only one flight demonstration team and a parachute demonstration 
team may be authorized for any one event. Military aircraft 
demonstrations may not be authorized for events on the days a flight 
team is participating. A flyover is not authorized when a flight team is 
participating unless it can be provided by a locally-based National 
Guard or Reserve component.
    (6) Participation by the U.S. Navy Blue Angels and the U.S. Air 
Force Thunderbirds is normally limited to two consecutive years in any 
one event. This usually involves one appearance by each of the two 
flight teams. This provision may be waived when other appropriate 
requests have not been received, when the team is performing in the same 
geographical area and has open dates or when the event is national or 
international in nature and participation would be in the best interests 
of Department of Defense. Participation in an event is normally limited 
to two days unless a third day can be included without preempting other 
requests.
    (7) Sponsors are required to obtain a Federal Aviation Agency (FAA) 
waiver for any demonstration by military aircraft and/or parachutists in 
the public domain. The final authorization for such Armed Forces 
participation hinges upon the sponsor securing this waiver far enough in 
advance to permit adequate planning (normally not later than 60 days 
prior to the event). Further guidance on the details of obtaining this 
waiver will be contained in the

[[Page 165]]

team support packet or FAA. FAA regulations require that spectators be 
confined 1500 feet from a flight or aircraft demonstration and 250 feet 
from a parachute demonstration.
    (i) In some cases, parachute demonstrations require that the sponsor 
arrange for appropriate transportation for the team and equipment from 
its home station to the event and return.
    (ii) Mass parachute jumps, drops of equipment, assault aircraft 
demonstrations, or tactical helicopter troop landings under simulated 
tactical conditions, will be limited to military installations. These 
activities, except those scheduled as part of regular training programs, 
are not authorized for public events in the civil domain.
    (8) When civilian air racing is involved in an event where Armed 
Forces participation has also been scheduled, prize monies must come 
from sources other than admission charges.
    (9) Flight team, parachute and aircraft demonstrations also require 
that the sponsor provide: (i) Recent aerial photograph of the site; (ii) 
an ambulance and doctor at the site; and (iii) Guards for the Armed 
Forces aircraft during their entire stay. The aerial photograph should 
be recent, taken vertically from at least 5,000 feet.
    (10) Maximum advantage of Armed Forces recruiting will be taken at 
appropriate events in the public domain where demonstrations by military 
aircraft and parachutists have been authorized.
    (11) Exception to the policies contained herein will only be 
considered by OASD(PA) on events of national or international 
significance.
    (12) Department of Defense hosts a scheduling conference in mid-
December each year to prepare U.S. Air Force Thunderbirds, U.S. Navy 
Blue Angels, U.S. Army Golden Knights and U.S. Army Silver Eagles 
participation schedules for the ensuing year. All requests for such 
demonstrations from sponsors should reach OASD(PA) prior to the middle 
of November each year to be considered at this conference. In order to 
accommodate many requests Department of Defense receives for other 
parachuting demonstrations, aircraft demonstrations, static aircraft 
displays, and flyovers, each request must be received by OASD(PA) a 
minimum of 30 days in advance of the event and preferably 60 days in 
advance.
    (13) If there are any points that a member of the public might wish 
to have clarified, contact Chief, Aerial Events Branch, OASD(PA), Room 
1E790, The Pentagon, Washington, DC 20301. Telephone: AC (202) 695-6795 
or 695-9900.



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

    (a) Military musical participation in public events which otherwise 
meet the criteria outlined herein will be limited to patriotic programs 
as opposed to pure entertainment and will not duplicate a performance 
within the capability of a civilian group. For example, music to 
accompany the presentation of the national colors, or a performance of 
military or patriotic music by a military band, drum and bugle corps or 
choral group may be authorized; background, dinner, dance or other 
social music is considered ``entertainment.''
    (b) Requests received for military musical participation in 
appropriate events in the civilian domain must include an indication 
from the sponsor that there is no conflict with the local civilian 
musicians concerning the appearance of Navy musicians. A statement to 
this effect from the cognizant local musicians' union must be obtained 
by the sponsor and attached to his request.
    (c) Armed Forces musical units may be authorized to provide certain 
specified musical programs in the public domain. The performance must 
not place military musicians in competition with professional civilian 
musicians. Background, dinner, dance or other social music cannot be 
authorized. The specified programs which may be authorized usually 
include a short opening or closing patriotic presentation. Musical 
selections normally consist of a medley of military or patriotic songs, 
honors to the President or Vice President (if he is there), or music to 
accompany the presentation of colors by a Color Detail.

[[Page 166]]

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

                              (I) U.S. Army

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

                             (II) U.S. Navy

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

                          (III) U.S. Air Force

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

                         (IV) U.S. Marine Corps

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

    (4) Armed Forces units may not be authorized to participate when:
    (i) The event directly or indirectly endorses or selectively 
benefits or favors (or appears to do so) any private individual, 
commercial venture, sect, fraternal organization, political group, or if 
it is associated with solicitation of votes in a political election.
    (ii) Admission, seating and other accommodations or facilities are 
restricted in any manner with regard to race, creed, color or national 
origin.
    (iii) The sponsoring organization or group excludes any person from 
its membership or practices any form of discrimination in its functions, 
based on race, creed, color or national origin.
    (iv) An admission charge is levied on the public primarily to see 
participation by an Armed Forces unit.
    (v) There is fund-raising of any type connected with the event, 
unless all profits are to be donated to a charity which is one of the 
consolidated programs recognized by the Federal Services Fund-Raising 
Program. These are the United Givers Fund Community Chest, National 
Health Agencies (as a group), the International Service Agencies, and 
the American Red Cross (when not included in a consolidated campaign). 
The Military Services' Welfare Societies (Army Emergency Relief, Navy 
Relief and Air Force Aid Society) are also included.
    (5) Sponsors of an event must agree to reimburse the Military 
Services concerned for transportation and per diem

[[Page 167]]

when participation is authorized at no additional cost to the 
government.
    (6) Participation by Armed Forces musical units in other areas is 
within the authority of local military commanders, and requests for 
participation should be made directly to those local military 
installations. All requests should be submitted no earlier than 60 days 
and preferably no later than 45 days prior to the event.



Sec. 705.34  Other special events.

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

[[Page 168]]

will be at no additional cost to the government.
    (e) Fund-raising events. (1) Navy support of fund-raising events 
must be limited to recognized, joint or other authorized campaigns. Navy 
support of fund-raising events or projects for a single cause, even 
though the cause is a member of one of the federated, joint or 
authorized campaigns, or donates in part to one of several of the 
recognized campaigns, is not authorized by Department of Defense.
    (2) Navy support for a single-cause fund-raising event may be 
authorized if the event is:
    (i) In support of Navy recruiting objectives;
    (ii) Supported by a letter indicating the local United Way 
representative has no objection; and
    (iii) Approved by the local Navy Commander as a single-cause charity 
which has broad local benefit.

[41 FR 29101, July 15, 1976, as amended at 44 FR 6391, Feb. 1, 1979]



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

    (a) Requests for bands, troops, units, teams, exhibits and other 
Armed Forces participation should be addressed to the nearest military 
installation. Local commanders have resources which they can commit to 
appropriate events if mission requirements permit. If no military 
installation is accessible, or if resources requested are not available 
locally or require approval by higher authorities, a standard Department 
of Defense Request Form should be completed. This form is used to 
evaluate the request, determine appropriateness of the event and 
compliance with Department of Defense policies, and eliminate repeated 
correspondence. The request form should be returned to the office or 
military command from which it was received unless another address is 
indicated.
    (b) Basic criteria governing Armed Forces participation in public 
events have been developed by the Department of Defense to ensure 
compliance with public law, to assure equitable distribution of 
resources to as many appropriate events as possible, and to avoid 
excessive disruption of primary training and operational missions of the 
Military Services. the following general rules and information are 
included as an aid to you in understanding Department of Defense 
policies and in planning programs of mutual benefit to the Armed Forces 
and your community.
    (1) When evaluating requests for Armed Forces participation in 
public events, the interests of the Department of Defense and the public 
at large, operational requirements of the Military services, and 
availability of resources are prime considerations. Commitment of 
resources to specific events must be balanced with the above factors and 
with requests for similar participation received from other sources.
    (2) Department of Defense participation and cooperation must not 
directly or indirectly:
    (i) Endorse or selectively benefit or favor or appear to endorse or 
selectively benefit or favor any private individual, group, corporation 
(whether for profit or nonprofit), sect, quasi-religious or ideological 
movement, fraternal organization, political organization, or commercial 
venture.
    (ii) Be associated with the solicitation of votes in a political 
election. Sites such as commercial theaters or department stores, 
churches or fraternal halls; and events such as testimonials to private 
individuals or sectarian religious services, are generally inappropriate 
for Armed Forces participation.
    (3) Participation by the Armed Forces in any event or activity may 
be authorized only if admission, seating and all other accommodations 
and facilities are available to all without regard to race, creed, color 
or national origin, and only if the sponsoring organization does not 
exclude any form of discrimination based on race, creed, color or 
national origin. This does not bar participation in events sponsored by 
nationally-recognized veteran's organizations when the program is 
oriented toward the veterans' interests, nor does it bar participation 
in non-public school events when the program is directed toward 
education or recruiting.
    (i) No admission charge may be levied on the public solely to see an

[[Page 169]]

Armed Forces demonstration, unit or exhibit. When admission is charged, 
the Armed Forces activity must not be the sole or primary attraction.
    (4) Armed Forces participation is authorized in a fund-raising event 
only when the sponsor certifies that all net profits in excess of actual 
operating costs will be donated to one of the consolidated programs 
recognized by the Federal Services Fund-Raising program. These include 
such agencies as the United Givers Fund, Community Chests, National 
Health Agencies (as a group), International Service Agencies and the 
military aid societies.
    (5) When Armed Forces participation in an event is in the mutual 
interest of the Department of Defense and the sponsor of the event, 
participation will be authorized at no additional cost to the 
government. Additional costs to the government--travel and 
transportation of military personnel, meals and quarters or standard per 
diem allowance, etc.--will be borne by the sponsor.
    (6) Department of Defense policy prohibits payment by the Armed 
Forces for rental of exhibit space, connection of electricity, or 
utility or janitorial costs.
    (7) The duration of participation by military units in any one event 
is limited in the interests of proper utilization and equitable 
distribution of Armed Forces manpower and resources. While an exhibit 
might be scheduled for the duration of an event, a unit such as a 
military band is limited to three days.
    (8) Armed Forces participation in professional sports events and 
post-season bowl games will normally be authorized at no additional cost 
to the government, will emphasize joint Service activity and must 
support recruiting programs. Participation in beauty contests, fashion 
shows, pageants, Christmas parades, and motion picture premieres is not 
authorized since military support would violate policy and 
appropriateness.



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

    (a) General policy. (1) Regulations on transportation of civilians 
vary according to whether:
    (i) The civilians are news media representatives or not.
    (ii) The travel is local or nonlocal (see paragraph (b) of this 
section).
    (iii) The purpose of the travel is to get to a desired destination 
or is to observe the Navy at first hand.
    (2) Authority for embarkation of individuals in naval vessels and 
military aircraft is vested in the Chief of Naval Operations by Sec. 
700.710 of this chapter. Nothing in this part shall be construed as 
limiting his authority in this regard.
    (3) The following policy has been established by DOD for providing 
all types of Navy transportation to non-Navy civilians.
    (i) Military transport facilities shall not be placed in a position 
of competition with U.S. commercial carriers.
    (A) When embarkation of a newsman is necessary for him to obtain 
news material about a ship, aircraft, cargo or embarked personnel, or 
when he is invited to report on a matter of special interest to the 
Navy, it is not considered that the transportation furnished him is in 
competition with commercial transport.
    (B) An exception is also made for short trips between an airport (or 
other transportation center) and the command. Cars and buses within the 
resources of the command may be used for meeting guests or taking them 
to make their travel connections.
    (ii) When authorization is requested for travel which is of interest 
to or will affect more than one command or Service, the approving 
authority will coordinate the request with all other interested 
commands, Services and Agencies.
    (iii) Travel in connection with any public affairs program arranged 
by the Navy jointly with another Federal Department or Agency or a 
foreign government will be authorized only by the Assistant Secretary of 
Defense (Public Affairs, or those to whom he has delegated this 
authority. Navy commands desiring authorization of such travel will 
forward the request to the Chief of Information.
    (iv) If a request for travel for nonlocal public affairs purposes is 
disapproved, sufficient reasons should be provided so that the action is 
clearly

[[Page 170]]

understood by the individual or group concerned.
    (b) Definition of local v. nonlocal travel. (1) Local travel is 
travel within the immediate vicinity of the command concerned in 
connection with a public affairs program of local interest only. (For 
air travel within the continental U.S., about 150 miles or less is 
generally considered local.)
    (2) Nonlocal travel is that conducted in connection with a public 
affairs program affecting more than one Service, geographic area or 
major command, usually of primary concern to higher authority.
    (c) Transportation of news media representatives. (1) This section 
applies to media representatives who are embarked for the purpose of 
news gathering or of traveling to an area in order to cover a news 
event. It does not apply to:
    (i) Correspondents when members of groups embarked as regular cruise 
guests of the Navy.
    (ii) Casual trips by correspondents to ships in port or to shore 
stations in CONUS. Such visits may be authorized by officers in command 
or higher authority in accordance with instructions promulgated by the 
Chief of Naval Operations. Written orders are not required.
    (2) Local travel. Commanding officers at all levels are authorized 
(under Defense Department policy) to approve local travel for public 
affairs purposes within the scope of the mission and responsibilities of 
their command, if:
    (i) Public interest in the public affairs purpose involved is 
confined primarily to the vicinity of that command.
    (ii) The travel is being provided for the benefit of local media and 
meets a naval public affairs objective.
    (iii) Scheduled commercial air transportation is not readily 
available.
    (iv) The aircraft to be used is a helicopter, or multiengine dual 
piloted aircraft, and is within the resources of the host command on a 
not-to-interfere basis. This provision does not apply to orientation 
flights.
    (3) Nonlocal travel. (i) Requests for nonlocal travel will be 
submitted to the Chief of Information, who will forward them with his 
recommendations to the Chief of Naval Operations and/or the Assistant 
Secretary of Defense (Public Affairs), as appropriate.
    (ii) When the proposed travel is for news coverage of a major 
emergency nature and the coverage will be impaired or delayed, to the 
serious detriment of the interests of the Department of Defense, if 
military transportation is not provided, requests for such travel will 
be submitted to the Chief of Information, who will forward the request--
if approved--to the Assistant Secretary of Defense (Public Affairs). The 
most expeditious means (including telephone) will be used by commands 
requesting such emergency travel. Justification will include both the 
public affairs purpose and the necessity for military carriers.
    (4) Travel between the U.S. and overseas area. (i) The Chief of 
Naval Operations may authorize military transportation for 
correspondents in unusual circumstances, upon recommendations of the 
Chief of Information and the Defense Department.
    (ii) Requests for government transportation to cover specific 
assignments overseas should be made at least three weeks prior to the 
date required and should be addressed to the Assistant Secretary of 
Defense (Public Affairs) via the Chief of Information or Unified 
Commander, as appropriate. The requests should include:
    (A) A statement that the correspondent is a full-time employee, or 
has a specific assignment, and that the trip is for the purpose of news 
gathering.
    (B) Appropriate date of entry into area, port of entry, method of 
travel, proposed duration of visit and travel termination date.
    (C) Assurance that the correspondent will observe currency control 
regulations, and sponsoring agency will guarantee financial obligations 
incurred.
    (5) Embarkation of male correspondents between ports within CONUS. 
(i) Male correspondents may be embarked in naval ships for passage 
between ports within the area of a single Fleet command for the purpose 
of news gathering at the discretion of the Sea Frontier Commander, 
Commandants of the Naval Districts, the Chief of naval Air

[[Page 171]]

Training, Fleet, Force and Type commanders and flag officers afloat who 
have been delegated authority to arrange directly with appropriate 
Fleet, Force and Type commanders for embarkation of civilians on a local 
cruise basis.
    (ii) Invitational travel orders may be issued.
    (6) Embarkation of female correspondents in naval vessels. (i) 
Privileges equal to those given male correspondents will be accorded 
female correspondents whenever practicable.
    (ii) Female correspondents may not be embarked overnight in a naval 
ship without prior approval of the appropriate Fleet Commander-in-Chief. 
This authority may be delegated to the numbered Fleet Commanders.
    (7) Travel in ships of the Military Sealift Command. Correspondents 
may be carried in ships of the Military Sealift Command on either a 
space-required or space-available basis when travel is in the best 
interests of the Navy or the Department of Defense.
    (i) Space-available travel will be used when practicable. A nominal 
charge is made by the Military Sealift Command and must be borne by the 
correspondents.
    (ii) Space-required travel may be authorized when sufficiently in 
the interest of the Navy, and the charge may be borne by the Navy.
    (iii) In either case, determination of Navy interests will be made 
by the Chief of Information, guided by the transportation policy of the 
Chief of Naval Operations, whose approval of such embarkation is 
required.
    (iv) Requests for such travel will be submitted to the Chief of 
Information, who will coordinate with the Chief of Naval Operations and/
or the Assistant Secretary of Defense (Public Affairs), as appropriate.
    (8) Point to point transportation within the continental United 
States in naval aircraft other than those operated by the Military 
Airlift Command.
    (i) SECNAVINST 4630.2A contains guidance for travel in military 
aircraft other than those operated by the Military Airlift Command.
    (ii) Naval activities desiring to arrange such transportation will 
address requests via the chain of command to the operational command of 
the lowest echelon which has been delegated authority to approve such 
requests.
    (iii) Upon approval of such a request, the naval activity sponsoring 
the correspondent shall:
    (A) Prepare travel orders.
    (B) Ensure that any waiver forms, as may be required by governing 
directives, are executed.
    (9) Embarkation of news media representatives of foreign 
citizenship:
    (i) Requests from foreign news media representatives to cruise with 
units of the U.S. Navy are usually made to the nearest U.S. military 
installation known to the correspondent, and are often not made in the 
proper chain of command to the Fleet Commander unless authorized to 
effect arrangements for an underway cruise.
    (A) if the request is received by a command which is not a 
subordinate of the Fleet Commander concerned, it will be forwarded to 
the U.S. Naval Attache assigned to the foreign newsman's country. The 
Attache will then forward the request to the appropriate Fleet 
Commander, with his recommendations and the result of a brief background 
check on the newsman and his employer.
    (B) If the request is received by a subordinate of the appropriate 
Fleet Commander, it may be forwarded directly to the latter, but the 
U.S. Naval Attache in the newsman's country will be given the 
opportunity to comment on the proposed embarkation.
    (ii) Naval commands should not introduce an embarked third-party 
(i.e., a foreign media representative) into a foreign country other than 
his own without first obtaining appropriate clearance from the country 
to be visited. Approval for entry should be forwarded via appropriate 
command channels to the cognizant U.S. Naval Attache.
    (10) Security considerations. (i) No media representative known to 
be affiliated with a group advocating the overthrow of the U.S. 
government will be permitted aboard naval ships or stations.
    (ii) If security review is directed, the reason will be made clear 
to the correspondent prior to embarkation. News

[[Page 172]]

media people refusing to agree to observe security regulations may have 
their privileges suspended. Failure to observe security regulations will 
be reported to CHINFO and interested commands.
    (d) Transportation of other civilians. (1) Although groups normally 
provide their own transportation to Navy commands, Navy transportation 
may be authorized when:
    (i) Commercial transport is not available.
    (ii) A professional group visit has been solicited by the Navy, such 
as participants in the Naval Academy Information Program (``Blue and 
Gold'') or educators invited to an Aerospace Education Workshop.
    (2) Requests for nonlocal transportation under the above 
circumstances will be made to the Chief of Naval Operations.
    (3) Carrier-on-board-delivery (COD) flights and helicopters flights 
to ships are considered local transportation.
    (4) When units or areas of a Unified Command are involved in the 
public affairs program in connection with which travel authorization is 
requested by a Navy command which is not a component of the Unified 
Command concerned, coordination will be effected by the host command, 
through command channels, via the Chief of Information, to the Assistant 
Secretary of Defense (Public Affairs), who--as appropriate--will consult 
with the Unified Commander concerned.
    (e) Special programs. (1) Cruises are discussed in Chapter 6, 
section 0604, para. 1 of the Navy Public Affairs Regulations.
    (2) Embarkation of news media representatives, especially on 
operations and exercises, is discussed in Chapter 4, section 0405, 
paragraph 4 of the Navy Public Affairs Regulations.
    (3) Other programs subject to special requirements or which have had 
exceptions authorized for them include:
    (i) Naval Air Training Command Civilian Orientation Cruise Program, 
conducted by the Chief of Naval Air Training.
    (ii) Joint Civilian Orientation Conference, conducted by the 
Assistant Secretary of Defense (Public Affairs).
    (iii) Orientation flights in government aircraft, conducted in 
accordance with OPNAVINST 37107H.
    (iv) Space-available air transportation may be provided Navy League 
members if they are invited to accompany a flag officer attending a Navy 
League convention or regional meeting and if the trip is economically 
justifiable, based on military travel considerations and not community 
relations or public affairs reasons. Approval in each instance will be 
obtained in advance from the Chief of Naval Operations.
    (v) Air transportation for the Naval Sea Cadet Corps of the Navy 
League.
    (A) Flights must be in Navy multiengine, transport type craft.
    (B) Point-to-point flights on a space-required basis are governed by 
an annual quota set by the Chief of Naval Operations. Space-available 
transportation is authorized and will not be charged against this quota 
if it will not result in delays of takeoffs or a change in the itinerary 
planned for the primary mission.
    (C) Flights must not interfere with operational commitments or 
training or results in additional expense to the government.
    (D) This transportation is not available to other youth programs, 
including others sponsored by the Navy League.
    (f) Other instructions on transportation of non-Navy civilians. 
Details on policy, procedures, and the transportation of certain 
categories of people will be found in OPNAVINST 5720.2G and DOD 
Directive 4515.13.

[41 FR 29101, July 15, 1976, as amended at 44 FR 6391, Feb. 1, 1979]



Sec. 705.37  Public affairs and public service awards.

    (a) General. (1) A number of public service awards are presented by 
the Department of Defense and the Navy to business and civic leaders, 
scientists and other nongovernment civilians. Other awards--military and 
civilian--are presented to members of the naval establishment.
    (2) These awards are of public affairs interest in the locale where 
they are presented and also in the home towns of those who receive them.

[[Page 173]]

    (b) Department of Defense awards. (1) The Department of Defense 
Medal for Distinguished Public Service is presented to individuals. The 
Department of Defense Meritorious Award honors organizations.
    (2) Details, including nominating procedures, are given in 
SECNAVINST 5061.12.
    (c) Secretary of the Navy awards. (1) The following awards are 
presented by the Secretary of the Navy: The Navy Distinguished Public 
Service Award and Navy Meritorious Public Service Citation to 
individuals; the Navy Certificate of Commendation to members of special 
committees and groups; and the Navy Certificate of Merit to 
organizations and associations.
    (2) Details are given in SECNAVINST 5061.12.
    (3) Nominations for awards to military personnel are considered by 
the Board of Decorations and Medals, in accordance with SECNAVINST 
1650.24A.
    (4) Nominations for honorary awards to Department of the Navy 
civilian employees are considered by the Distinguished Civilian Service 
Awards Panel. (See Civilian Manpower Management Instruction 451.)
    (d) Chief of Information awards--(1) Certificate of Public Relations 
Achievement. (i) This certificate is signed by the Chief of Information. 
It honors individuals who are not Navy employees, corporations, or 
associations.
    (ii) It was established to fill the need for a civilian award for 
public relations achievements which, while not meeting the criteria for 
public service awards presented by the Secretary of the Navy, are of 
such Navy-wide significance as to merit recognition at the Department 
level. Examples of these achievements might be a particularly well done 
feature article about the Navy in a nationally read newspaper or an 
outstanding contribution to a locally sponsored event, which ultimately 
gave national or regional recognition to the Navy.
    (iii) The achievement for which the certificate is given shall meet 
the following criteria:
    (A) Contribute to accomplishment of the public information 
objectives of the Navy.
    (B) Be the result of a single outstanding project or program.
    (C) Have been accomplished within one year of the date of the 
official letter of nomination.
    (iv) Nominations will be submitted through appropriate 
administrative channels to the Chief of Information, and will include a 
description of the service rendered, a statement of its relevance to the 
accomplishment of the public affairs objectives of the Navy and a draft 
of the recommended citation. To avoid possible embarrassment, 
nominations shall be marked ``For Official Use Only'' and safeguarded 
until final action has been taken.
    (2) CHINFO Merit Awards. (i) These awards, or certificates, are 
presented quarterly to Navy publications and broadcasts considered to be 
outstanding or to have shown improvement in meeting professional 
standards of journalism.
    (ii) Publications and broadcasts eligible are those which inform the 
reader concerning aspects of service life or related matters which 
contribute to the well-being of naval personnel, their dependents, and 
civilian employees of the Navy. Civilian enterprise periodicals are 
included if produced for the exclusive use of a naval installation.
    (iii) Nominations are made in two ways:
    (A) Selection during regular review periodicals and broadast air-
checks received by the Internal Relations Activity.
    (B) Nominations from the field. Such nominations are informal and 
may be made by the officer-in-charge, publications editor, broadcast 
station manager, or public affairs officer to the chief of Information, 
Navy Department, Washington, DC 20350 (ATTN: OP-0071).
    (3) Other awards pertaining to public affairs/internal relations. 
(i) Silver Anvil award is given by the Public Relations Society of 
America for outstanding public relations programs carried out during the 
preceding year. Entry blanks and details may be obtained by writing 
directly to Public Relations Society of America, 845 Third Ave., New 
York, NY 10022. All Navy entries will be forwarded via the Chief of 
Information.

[[Page 174]]

    (ii) Freedom Foundation Awards of cash and medals are annually given 
to service personnel for letters on patriotic themes. Details are 
carried in ship and station publications, or may be obtained by writing 
to Freedom Foundations, Valley Forge, PA 19481.
    (iii) Thomas Jefferson Awards are the prizes in an annual 
interservice competition sponsored by civilian media through the 
Department of Defense's Office of Information for the Armed Forces. The 
contest is open to all Armed Forces media--broadcast and print. Details 
can be obtained by writing to Office of Information, Department of the 
Navy, Washington, DC 20350.
    (iv) Navy League Awards. Several annual awards are presented to 
naval personnel and civilians who have made a notable contribution to 
the importance of seapower. The awards are for inspirational leadership, 
scientific and technical progess, operational competence, literary 
achievement, etc. Nominations should be forwarded directly to Board of 
Awards, Navy League of the United States, 818 18th St., NW., Washington, 
DC 20006.
    (v) Nonofficial awards to outstanding Navy students or training 
units.
    (A) Various civilian organizations and private individuals have 
established awards to be presented to outstanding training units or 
naval students.
    (B) Requests to establish an award for students in the Naval Air 
Training program should be forwarded to the Chief of Naval Air Training.
    (C) Requests to establish an award which will involve more than one 
school (other than the Naval Air Training Program) will be forwarded to 
the Chief of Naval Personnel.
    (D) All other cases may be decided by the Navy authority at the 
school concerned.
    (E) Directives in the 5061, 1650 and 3590 series issued by pertinent 
authorities may provide further guidance in individual cases.
    (vi) Awards established by a command to honor non-Navy civilians.
    (A) Examples of such awards are ``Good Neighbor'' or ``Honorary Crew 
Member'' certificates.
    (B) Established to honor persons who have been helpful to the 
command, they are a valuable community relations program. They should 
not be awarded to persons or organizations with which the command is 
associated in a commercial or governmental business capacity.

[41 FR 29101, July 15, 1976, as amended at 44 FR 6391, Feb. 1, 1979]

[[Page 175]]



                         SUBCHAPTER B_NAVIGATION





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




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

    Authority: 33 U.S.C. 1605.



Sec. 706.1  Purpose of regulations.

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

[42 FR 36434, July 14, 1977, as amended at 42 FR 48876, Sept. 26, 1977; 
45 FR 43165, June 26, 1980; 52 FR 4770, Feb. 17, 1987]

[[Page 176]]



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

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

                                Table One
------------------------------------------------------------------------
                                                               Distance
                                                               in meters
                                                              of forward
                                                               masthead
                                                                 light
                                                                 below
                     Vessel                         Number      minimum
                                                               required
                                                                height.
                                                                 Sec.
                                                                2(a)(i)
                                                                Annex I
------------------------------------------------------------------------
USS DOLPHIN.....................................    AGSS 555         0.8
USS MC INERNY...................................       FFG 8         1.6
USS CLARK.......................................      FFG 11         1.6
USS GEORGE PHILIP...............................      FFG 12         1.6
USS SAMUEL ELIOT MORISON........................      FFG 13         1.6
USS SIDES.......................................      FFG 14         1.6
USS ESTOCIN.....................................      FFG 15         1.6
USS JOHN A. MOORE...............................      FFG 19         1.6
USS BOONE.......................................      FFG 28         1.6
USS STEPHEN W. GROVES...........................      FFG 29         1.6
USS JOHN L. HALL................................      FFG 32         1.6
USS JARRETT.....................................      FFG 33         1.6
USS UNDERWOOD...................................      FFG 36         1.6
USS CROMMELIN...................................      FFG 37         1.6
USS CURTS.......................................      FFG 38         1.6
USS DOYLE.......................................      FFG 39         1.6
USS HALYBURTON..................................      FFG 40         1.6
USS MCCLUSKY....................................      FFG 41         1.6
USS KLAKRING....................................      FFG 42         1.6
USS THACH.......................................      FFG 43         1.6
USS DEWERT......................................      FFG 45         1.6
USS RENTZ.......................................      FFG 46         1.6
USS NICHOLAS....................................      FFG 47         1.6
USS VANDEGRIFT..................................      FFG 48         1.6
USS ROBERT G. BRADLEY...........................      FFG 49         1.6
USS TAYLOR......................................      FFG 50         1.6
USS GARY........................................      FFG 51         1.6
USS CARR........................................      FFG 52         1.6
USS HAWES.......................................      FFG 53         1.6
USS FORD........................................      FFG 54         1.6
USS ELROD.......................................      FFG 55         1.6
USS SIMPSON.....................................      FFG 56         1.6
USS REUBEN JAMES................................      FFG 57         1.6
USS SAMUEL B. ROBERTS...........................      FFG 58         1.6
USS KAUFFMAN....................................      FFG 59         1.6
USS RODNEY M. DAVIS.............................      FFG 60         1.6
USS INGRAHAM....................................      FFG 61        1.37
USS FREEDOM.....................................       LCS 1        5.99
USS OGDEN.......................................       LPD 5        4.15
USS DULUTH......................................       LPD 6         4.4
USS DUBUQUE.....................................       LPD 8         4.2
USS DENVER......................................       LPD 9         4.4
USS JUNEAU......................................      LPD 10        4.27
USS NASHVILLE...................................      LPD 13        4.38
USS TRIPOLI.....................................      LPH 10         3.3
LCAC (class)....................................      LCAC 1    \1\ 6.51
                                                     through
                                                    LCAC 100
LCAC (class)....................................      LCAC 1        7.84
                                                     through  (Temp.)\2\
                                                    LCAC 100
USS INCHON......................................      MCS 12         3.0
NR-1............................................        NR 1         2.7
USS SEAWOLF.....................................      SSN 21        4.62
USS CONNECTICUT.................................      SSN 22        4.62
USS JIMMY CARTER................................      SSN 23        4.32
USS PARCHE......................................     SSN 683        3.58
USS KAMEHAMEHA..................................     SSN 642        3.58
USS MENDEL RIVERS...............................     SSN 686        2.40
USS LOS ANGELES.................................     SSN 688        6.10
USS PHILADELPHIA................................     SSN 690        6.10
USS MEMPHIS.....................................     SSN 691        6.10
USS BREMERTON...................................     SSN 698        3.49
USS JACKSONVILLE................................     SSN 699        3.35
USS DALLAS......................................     SSN 700         3.5
USS LA JOLLA....................................     SSN 701         3.5
USS CITY OF CORPUS CHRISTI......................     SSN 705         3.5
USS ALBUQUERQUE.................................     SSN 706         3.5
USS PORTSMOUTH..................................     SSN 707         3.5
USS MINNEAPOLIS-ST. PAUL........................     SSN 708         3.5
USS HYMAN G. RICKOVER...........................     SSN 709         3.5
USS AUGUSTA.....................................     SSN 710         3.5
USS SAN FRANCISCO...............................     SSN 711         3.5
USS HOUSTON.....................................     SSN 713         3.5
USS NORFOLK.....................................     SSN 714         3.5
USS BUFFALO.....................................     SSN 715         3.5
USS SALT LAKE CITY..............................     SSN 716         3.5
USS OLYMPIA.....................................     SSN 717         3.5
USS HONOLULU....................................     SSN 718         3.5
USS PROVIDENCE..................................     SSN 719         3.5
USS PITTSBURGH..................................     SSN 720         3.5
USS CHICAGO.....................................     SSN 721         3.5
USS KEY WEST....................................     SSN 722         3.5
USS OKLAHOMA CITY...............................     SSN 723         3.5
USS LOUISVILLE..................................     SSN 724         3.5
USS HELENA......................................     SSN 725         3.5
USS NEWPORT NEWS................................     SSN 750         3.5
USS SAN JUAN....................................     SSN 751         3.5
USS PASADENA....................................     SSN 752         3.5
USS ALBANY......................................     SSN 753         3.5
USS TOPEKA......................................     SSN 754         3.5
USS MIAMI.......................................     SSN 755         3.5
USS SCRANTON....................................     SSN 756         3.5
USS ALEXANDRIA..................................     SSN 757         3.5
USS ASHEVILLE...................................     SSN 758         3.5
USS JEFFERSON CITY..............................     SSN 759         3.4
USS ANNAPOLIS...................................     SSN 760         3.5
USS SPRINGFIELD.................................     SSN 761         3.5
USS COLUMBUS....................................     SSN 762         3.5

[[Page 177]]

 
USS SANTA FE....................................     SSN 763         3.5
USS BOISE.......................................     SSN 764         3.5
USS MONTPELIER..................................     SSN 765         3.5
USS CHARLOTTE...................................     SSN 766         3.5
USS HAMPTON.....................................     SSN 767         3.5
USS HARTFORD....................................     SSN 768         3.5
USS TOLEDO......................................     SSN 769         3.5
USS TUCSON......................................     SSN 770         3.5
USS COLUMBIA....................................     SSN 771         3.5
USS GREENEVILLE.................................     SSN 772         3.5
USS CHEYENNE....................................     SSN 773         3.5
USS VIRGINIA....................................     SSN 774         2.9
USS TEXAS.......................................     SSN 775        2.90
USS HAWAII......................................     SSN 776        2.90
USS NORTH CAROLINA..............................     SSN 777        2.90
USS OHIO........................................    SSBN 726        3.70
USS MICHIGAN....................................    SSBN 727        3.70
USS FLORIDA.....................................    SSBN 728        3.70
USS GEORGIA.....................................    SSBN 729        3.70
USS HENRY M. JACKSON............................    SSBN 730        3.70
USS ALABAMA.....................................    SSBN 731        3.70
USS ALASKA......................................    SSBN 732        3.70
USS NEVADA......................................    SSBN 733        3.70
USS TENNESSEE...................................    SSBN 734        3.70
USS PENNSYLVANIA................................    SSBN 735        3.70
USS WEST VIRGINIA...............................    SSBN 736        3.70
USS KENTUCKY....................................    SSBN 737        3.70
USS MARYLAND....................................    SSBN 738        3.70
USS NEBRASKA....................................    SSBN 739        3.70
USS RHODE ISLAND................................    SSBN 740        3.70
USS MAINE.......................................    SSBN 741        3.70
USS WYOMING.....................................    SSBN 742        3.70
USS LOUISIANA...................................    SSBN 743        3.70
------------------------------------------------------------------------
\1\ The permanent masthead light is 5.26 meters athwartship to port of
  centerline, 5.49 meters above the main deck.
\2\ The temporary masthead light is 3.98 meters athwartship to starboard
  of centerline, 4.16 meters above the main deck.


                                                                        Table Two
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                      AFT                              Side
                                                                               Forward               anchor                 Side     lights,      Side
                                                                    Masthead    anchor               light,               lights,    distance   lights,
                                                                    lights,     light,    Forward   distance     AFT      distance   forward    distance
                                                                    distance   distance   anchor     below      anchor     below        of      inboard
                                                                    to stbd     below     light,   flight dk    light,   flight dk   forward   of ship's
                        Vessel                            Number    of keel   flight dk   number       in       number       in      masthead   sides in
                                                                       in         in     of; Rule   meters;    of; Rule   meters;    light in   meters;
                                                                    meters;    meters;   30(a)(i)     Rule    30(a)(ii)     Sec.    meters;      Sec.
                                                                      Rule       Sec.               21(e),                2(g),       Sec.     3(b),
                                                                     21(a)      2(K),                 Rule                Annex I     3(b),     Annex I
                                                                               Annex I             30(a)(ii)                         Annex I
--------------------------------------------------------------------------------------------------------------------------------------------------------
CFPM (class)..........................................     CFPM-1       2.32  .........  ........  .........  .........  .........       2.01   \5\ 5.73
                                                          through
                                                           CFPM-2
CSP (class)...........................................    CSP-101       1.62  .........  ........  .........  .........  .........  .........       3.93
                                                          through
                                                          CSP-182
USS KITTY HAWK........................................      CV 63       27.8  .........         1  .........          1        0.2  .........  .........
USS CONSTELLATION.....................................      CV 64       28.2  .........         1  .........          1        0.4  .........  .........
USS JOHN F. KENNEDY...................................      CV 67       27.5  .........         1        9.0          2        0.4  .........  .........
USS ENTERPRISE........................................     CVN 65       28.0  .........  ........  .........  .........        0.4  .........  .........
USS NIMITZ............................................     CVN 68       31.0  .........  ........  .........  .........        0.7  .........  .........
USS DWIGHT D. EISENHOWER..............................     CVN 69      30.00  .........         1        9.3          2        0.7  .........  .........
USS CARL VINSON.......................................     CVN 70       29.9        0.3         2        9.4          2        0.5  .........  .........
USS THEODORE ROOSEVELT................................     CVN 71       30.0  .........  ........  .........  .........       0.51  .........  .........
USS ABRAHAM LINCOLN...................................     CVN 72       30.0  .........  ........  .........  .........        0.6  .........  .........
USS GEORGE WASHINGTON.................................     CVN 73       30.0  .........  ........  .........  .........        0.6  .........  .........
USS JOHN C. STENNIS...................................     CVN 74       30.0  .........  ........  .........  .........        0.6  .........  .........
USS HARRY S TRUMAN....................................     CVN 75      30.02  .........         1  .........          1       0.56  .........  .........
USS RONALD REAGAN.....................................     CVN 76      31.09  .........  ........  .........  .........       0.56  .........  .........
USS TARAWA............................................      LHA 1       10.0  .........         1  .........          1        2.4       71.0  .........
USS SAIPAN............................................      LHA 2       10.1  .........         1  .........          1        2.8       72.1  .........
USS BELLEAU WOOD......................................      LHA 3       10.0  .........  ........  .........  .........        2.7       72.4  .........
USS NASSAU............................................      LHA 4       10.0  .........  ........  .........  .........        2.7       72.4  .........

[[Page 178]]

 
USS PELELIU...........................................      LHA 5       10.0          4  ........  .........  .........        2.6       72.4  .........
USS WASP..............................................      LHD 1        9.0  .........  ........  .........  .........        2.8       89.0  .........
USS ESSEX.............................................      LHD 2  .........  .........  ........  .........  .........        3.1       91.1  .........
USS KEARSARGE.........................................      LHD 3        8.9  .........  ........  .........  .........        3.0         91  .........
USS BOXER.............................................      LHD 4  .........  .........  ........  .........  .........        3.0       90.9  .........
USS BATAAN............................................      LHD 5  .........  .........  ........  .........  .........        2.9       98.6  .........
USS BONHOMME RICHARD..................................      LHD 6        9.0  .........  ........  .........  .........        2.9       89.6  .........
USS IWO JIMA..........................................      LHD 7  .........  .........  ........  .........  .........       2.97      88.80  .........
USS TRIPOLI...........................................     LPH 10       10.6  .........         1        2.2          2        0.4       47.5  .........
LCAC (class)..........................................     LCAC 1       5.26  .........  ........  .........  .........  .........  .........     \3\1.5
                                                          through  (Perm.)\2
                                                         LCAC 100          \
LCAC (class)..........................................     LCAC 1       3.98  .........  ........  .........  .........  .........    \3\ 1.5
                                                          through  (Temp.)\4
                                                         LCAC 100          \
USS INCHON............................................     MCS 12       10.6  .........         1        2.2          2        0.4       47.5  .........
SLWT (class)..........................................     SLWT 1       1.62  .........  ........  .........  .........  .........  .........    \5\3.93
SLWT (class)..........................................     SLWT 2       1.62  .........  ........  .........  .........  .........  .........    \5\3.93
SLWT (class)..........................................     SLWT 3       1.62  .........  ........  .........  .........  .........  .........    \5\3.93
SLWT (class)..........................................     SLWT-6       1.62  .........  ........  .........  .........  .........  .........       3.93
SLWT (class)..........................................     SLWT-8       1.62  .........  ........  .........  .........  .........  .........       3.93
                                                          through
                                                          SLWT-19
SLWT (class)..........................................    SLWT-22       1.62  .........  ........  .........  .........  .........  .........       3.93
                                                          through
                                                          SLWT-24
SLWT (class)..........................................    SLWT-26       1.62  .........  ........  .........  .........  .........  .........       3.93
                                                          through
                                                          SLWT-65
USS OKLAHOMA CITY.....................................    SSN 723       0.41  .........  ........  .........  .........  .........  .........  .........
USS NEWPORT NEWS......................................    SSN 750       0.41  .........  ........  .........  .........  .........  .........  .........
WT (class)............................................       WT-1       2.32  .........  ........  .........  .........  .........       2.01  \5\ 5.73
                                                          through
                                                             WT-4
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ [Reserved]
\2\ The permanent masthead light is 5.26 meters athwartship to port of centerline, at frame 3, 5.49 meters above the main deck.
\3\ The sidelights are on top of the port and starboard deckhouses 3.28 meters above the hull.
\4\ The temporary masthead light is 3.98 meters athwartship to starboard of centerline, 4.16 meters above the main deck.
\5\ Port sidelight only.


                                                                       Table Three
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                              Side      Stern     Forward
                                                                                                             lights     light,     anchor      Anchor
                                                                      Masthead                              distance   distance    light,      lights
                                                                     lights arc  Side lights  Stern light   inboard    forward     height   relationship
                 Vessel                              No.                 of         arc of       arc of    of ship's   of stern    above    of aft light
                                                                    visibility;  visibility;  visibility;   sides in      in      hull in    to forward
                                                                     rule 21(a)   rule 21(b)   rule 21(c)    meters    meters;    meters;     light in
                                                                                                              3(b)       rule       2(K)     meters 2(K)
                                                                                                            annex 1     21(c)     annex 1      annex 1
--------------------------------------------------------------------------------------------------------------------------------------------------------
USS SAN ANTONIO.........................  LPD 17                    ...........  ...........  ...........  .........  .........  .........    1.3 below
USS NEW ORLEANS.........................  LPD 18                    ...........  ...........  ...........  .........  .........  .........  2.36 below.
USS MESA VERDE..........................  LPD 19                    ...........  ...........  ...........  .........  .........  .........  1.42 below.
USS GREEN BAY...........................  LPD 20                    ...........  ...........  ...........  .........  .........  .........  1.29 below.
USS CYCLONE.............................  PC 1                      ...........  ...........  ...........  .........   \1\ 25.5        3.0          1.0

[[Page 179]]

 
USS TEMPEST.............................  PC 2                      ...........  ...........  ...........  .........        \1\       3.01    1.1 below
                                                                                                                       28.26\1\
USS HURRICANE...........................  PC 3                      ...........  ...........  ...........  .........   \1\ 25.5        3.0    1.1 below
USS MONSOON.............................  PC 4                      ...........  ...........  ...........  .........   \1\ 25.5        3.0    1.1 below
USS TYPHOON.............................  PC 5                      ...........  ...........  ...........  .........   \1\ 25.5        3.0    1.1 below
USS SIROCCO.............................  PC 6                      ...........  ...........  ...........  .........   \1\ 25.5        3.0    1.1 below
USS SQUALL..............................  PC 7                      ...........  ...........  ...........  .........   \1\ 25.5        3.0          1.0
USS ZEPHYR..............................  PC 8                      ...........  ...........  ...........  .........  \1\ 28.26       3.01    1.1 below
USS CHINOOK.............................  PC 9                      ...........  ...........  ...........  .........   \1\ 25.5        3.0          1.0
USS FIREBOLT............................  PC 10                     ...........  ...........  ...........  .........   \1\ 25.5        3.0          1.0
USS WHIRLWIND...........................  PC 11                     ...........  ...........  ...........  .........   \1\ 25.5        3.0          1.0
USS THUNDERBOLT.........................  PC 12                     ...........  ...........  ...........  .........   \1\ 25.5        3.0          1.0
USS SHAMAL..............................  PC 13                     ...........  ...........  ...........  .........  \1\ 28.26       3.01    1.1 below
USS TORNADO.............................  PC 14                     ...........  ...........  ...........  .........   \1\ 27.8       3.01    1.1 below
USS DOLPHIN.............................  AGSS 555                  227.5\1/2\     119\1/2\     191\1/2\         2.1       10.8        1.8    0.5 above
NR-1....................................  NR 1                      238.5\1/2\     114[deg]   136.5[deg]         1.5        4.1        2.1
USS SEAWOLF.............................  SSN 21                      225[deg]   111.5[deg]     205[deg]         5.1       10.7        2.8    1.8 below
USS CONNECTICUT.........................  SSN 22                      232[deg]   112.8[deg]     207[deg]         5.1       10.7        2.8  1.63 below.
USS JIMMY CARTER........................  SSN 23                    ...........  ...........    211[deg]        5.12       10.7        2.8  1.63 below.
USS KAMEHAMEHA..........................  SSN 642                     236[deg]     117[deg]     252[deg]         3.8        7.6        2.1  same height
USS PARCHE..............................  SSN 683                     232[deg]   112.5[deg]     209[deg]         4.1        6.8        2.2    0.2 below
USS L. MENDEL RIVERS....................  SSN 686                     236[deg]     113[deg]     252[deg]         3.8        5.2        3.4    1.4 below
USS LOS ANGELES.........................  SSN 698                     236[deg]     115[deg]     252[deg]         4.2        6.1        2.0    1.6 below
USS PHILADELPHIA........................  SSN 690                     238[deg]     115[deg]     252[deg]         4.2        6.1        2.0    1.6 below
USS MEMPHIS.............................  SSN 691                     236[deg]     115[deg]     252[deg]         4.3        6.1        2.0    1.6 below
USS BREMERTON...........................  SSN 698                   ...........  ...........    209[deg]         4.2        6.1        3.5    1.7 below
USS JACKSONVILLE........................  SSN 699                   ...........  ...........    211[deg]         4.2        6.1        3.5    1.7 below
USS DALLAS..............................  SSN 700                   ...........  ...........  ...........        4.1        6.5        3.4    1.7 below
USS LA JOLLA............................  SSN 701                   ...........  ...........  ...........        4.2        6.1        3.5    1.7 below
USS CITY OF CORPUS CHRISTI..............  SSN 705                   ...........  ...........    209[deg]         4.2        6.1        3.5    1.7 below
USS ALBUQUERQUE.........................  SSN 706                   ...........    114[deg]   ...........        4.2        6.1        3.5    1.7 below
USS PORTSMOUTH..........................  SSN 707                   ...........  ...........    209[deg]         4.2        6.1        3.5    1.7 below
USS MINNEAPOLIS-ST. PAUL................  SSN 708                   ...........  ...........    209[deg]         4.2        6.2        3.5    1.7 below
USS HYMAN G. RICKOVER...................  SSN 709                   ...........  ...........    209[deg]         4.2        6.1        3.4    1.7 below
USS AUGUSTA.............................  SSN 710                   ...........  ...........    209[deg]         4.2        6.1        3.4    1.7 below
USS SAN FRANCISCO.......................  SSN 711                   ...........  ...........  ...........        4.1        6.5        3.4    1.7 below
USS HOUSTON.............................  SSN 713                   ...........  ...........    209[deg]         4.3        6.1        3.4    1.7 below
USS NORFOLK.............................  SSN 714                   ...........  ...........    209[deg]         4.3        6.1        3.4    1.7 below
USS BUFFALO.............................  SSN 715                   ...........  ...........    209[deg]         4.2        6.1        3.5    1.7 below
USS SALT LAKE CITY......................  SSN 716                   ...........  ...........    209[deg]         4.2        6.1        3.5    1.7 below
USS OLYMPIA.............................  SSN 717                   ...........  ...........    209[deg]         4.2        6.1        3.4    1.7 below
USS HONOLULU............................  SSN 718                   ...........  ...........    209[deg]         4.2        6.1        3.4    1.7 below
USS PROVIDENCE..........................  SSN 719                   ...........  ...........    209[deg]         4.2        6.1        3.4    1.7 below
USS PITTSBURGH..........................  SSN 720                   ...........  ...........    209[deg]         4.2        6.1        3.4    1.7 below
USS CHICAGO.............................  SSN 721                   ...........  ...........    209[deg]         4.3        6.1        3.4    1.7 below
USS KEY WEST............................  SSN 722                   ...........  ...........    209[deg]         4.2        6.1        3.4    1.7 below
USS OKLAHOMA CITY.......................  SSN 723                   ...........  ...........    209[deg]         4.3        6.1        3.4    1.7 below
USS LOUISVILLE..........................  SSN 724                   ...........    113[deg]     209[deg]         4.2        6.1        3.5    1.7 below
USS HELENA..............................  SSN 725                   ...........  ...........    207[deg]         4.2        6.2        3.5    1.7 below
USS NEWPORT NEWS........................  SSN 750                   ...........  ...........    209[deg]         4.3        6.1        3.4    1.7 below
USS SAN JUAN............................  SSN 751                     229[deg]     113[deg]     208[deg]         4.2        6.1        3.5    1.7 below
USS PASADENA............................  SSN 752                     255[deg]   112.5[deg]     206[deg]         4.2        6.1        3.5    1.7 below
USS ALBANY..............................  SSN 753                     225[deg]   112.5[deg]     209[deg]         4.3        6.1        3.4    1.7 below
USS TOPEKA..............................  SSN 754                   ...........  ...........    206[deg]         4.2        6.2        3.5    1.7 below
USS MIAMI...............................  SSN 755                   ...........  ...........    206[deg]         4.2        6.2        3.5    1.7 below
USS SCRANTON............................  SSN 756                   ...........  ...........    209[deg]         4.3        6.1        3.4    1.7 below

[[Page 180]]

 
USS ALEXANDRIA..........................  SSN 757                   ...........  ...........    205[deg]         4.2        6.2        3.5    1.7 below
USS ASHEVILLE...........................  SSN 758                   ...........  ...........    209[deg]         4.3        6.1        3.4    1.7 below
USS JEFFERSON CITY......................  SSN 759                   ...........  ...........    209[deg]         4.3        6.1        3.4    1.7 below
USS ANNAPOLIS...........................  SSN 760                   ...........  ...........    205[deg]         4.2        6.2        3.5    1.7 below
USS SPRINGFIELD.........................  SSN 761                   ...........  ...........    205[deg]         4.2        6.2        3.5    1.7 below
USS COLUMBUS............................  SSN 762                   ...........  ...........    205[deg]         4.2        6.2        3.5    1.7 below
USS SANTA FE............................  SSN 763                   ...........  ...........    205[deg]         4.2        6.2        3.5    1.7 below
USS BOISE...............................  SSN 764                   ...........  ...........    209[deg]         4.3        6.1        3.4    1.7 below
USS MONTPELIER..........................  SSN 765                   ...........  ...........    209[deg]         4.3        6.1        3.4    1.7 below
USS CHARLOTTE...........................  SSN 766                   ...........  ...........    209[deg]         4.3        6.1        3.4    1.7 below
USS HAMPTON.............................  SSN 767                   ...........  ...........    209[deg]         4.3        6.1        3.4    1.7 below
USS HARTFORD............................  SSN 768                   ...........  ...........    205[deg]         4.2        6.2        3.5    1.7 below
USS TOLEDO..............................  SSN 769                   ...........  ...........    209[deg]         4.4        6.1        3.4    1.7 below
USS TUCSON..............................  SSN 770                   ...........  ...........    209[deg]         4.4        6.1        3.4    1.7 below
USS COLUMBIA............................  SSN 771                   ...........  ...........    205[deg]         4.2        6.2        3.5    1.7 below
USS GREENEVILLE.........................  SSN 772                   ...........  ...........    209[deg]         4.4        6.1        3.4    1.7 below
USS CHEYENNE............................  SSN 773                   ...........  ...........    209[deg]         4.4        6.1        3.4    1.7 below
VIRGINIA................................  SSN 774                   ...........  ...........    205[deg]        4.37      11.05        2.8   0.03 below
USS TEXAS...............................  SSN 775                   ...........  ...........  210.2[deg]        4.37      11.05        2.8   0.30 below
USS HAWAII..............................  SSN 776                   ...........  ...........    205[deg]        4.37      11.05        2.8   0.30 below
USS NORTH CAROLINA......................  SSN 777                   ...........  ...........  205.6[deg]        4.37      11.05        2.8  0.30 below.
USS OHIO................................  SSBN 726                    225[deg]   112.5[deg]     209[deg]         5.3        9.0        3.8    4.0 below
USS MICHIGAN............................  SSBN 727                    225[deg]   112.5[deg]     209[deg]         5.3        9.0        3.8    4.0 below
USS FLORIDA.............................  SSBN 728                  ...........  ...........    209[deg]         5.3        9.0        3.8    4.0 below
USS GEORGIA.............................  SSBN 729                    225[deg]   112.5[deg]     209[deg]         5.3        9.0        3.8    4.0 below
USS HENRY M. JACKSON....................  SSBN 730                  ...........  ...........    209[deg]         5.3        9.0        3.8    4.0 below
USS ALABAMA.............................  SSBN 731                  ...........  ...........    209[deg]         5.3        9.0        3.8    4.0 below
USS ALASKA..............................  SSBN 732                  ...........  ...........    209[deg]         5.3        9.0        3.8    4.0 below
USS NEVADA..............................  SSBN 733                  ...........  ...........    209[deg]         5.3        9.0        3.8    4.0 below
USS TENNESSEE...........................  SSBN 734                  ...........  ...........    209[deg]         5.3        9.0        3.8    4.0 below
USS PENNSYLVANIA........................  SSBN 735                  ...........  ...........  211.5[deg]         5.3        9.0        3.8    4.0 below
USS WEST VIRGINIA.......................  SSBN 736                  ...........  ...........  211.5[deg]         5.3        9.0        3.8    4.0 below
USS KENTUCKY............................  SSBN 737                  ...........  ...........    209[deg]         5.3        9.0        3.8    4.0 below
USS MARYLAND............................  SSBN 738                  ...........  ...........    209[deg]         5.3        9.0        3.8    4.0 below
USS NEBRASKA............................  SSBN 739                  ...........  ...........    209[deg]         5.3        9.0        3.8    4.0 below
USS RHODE ISLAND........................  SSBN 740                  ...........  ...........    209[deg]         5.3        9.0        3.8    4.0 below
USS MAINE...............................  SSBN 741                  ...........  ...........    209[deg]         5.3        9.0        3.8    4.0 below
USS WYOMING.............................  SSBN 742                  ...........  ...........    209[deg]         5.3        9.0        3.8    4.0 below
USS LOUISIANA...........................  SSBN 743                  ...........  ...........    209[deg]         5.3        9.0        3.8    4.0 below
YTB (class).............................  YTB 769                   ...........  ...........  ...........       2.77      14.02  .........  ............
KEOKUK..................................  YTB 771                   ...........  ...........  ...........       3.11      13.00  .........  ............
YTB 781.................................  YTB 781                   ...........  ...........  ...........       2.56      13.41  .........  ............
YTB (class).............................  YTB 789                   ...........  ...........  ...........       2.50      14.99  .........  ............
YTB 806.................................  YTB 806                   ...........  ...........  ...........       2.79      10.97  .........  ............
YTB 812.................................  YTB 812                   ...........  ...........  ...........       3.03      14.02  .........  ............
YTB 813.................................  YTB 813                   ...........  ...........  ...........       2.63       19.2  .........  ............
YTB 820.................................  YTB 820                   ...........  ...........  ...........       3.08      14.20  .........  ............
SHABONEE................................  YTB 833                   ...........  ...........  ...........       2.77      13.34  .........  ............
YTB 835.................................  YTB 835                   ...........  ...........  ...........       3.00      14.02  .........  ............
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Only when towing.

                               Table Four

    1. Ships other than aircraft carrier types (CV, CVN, LHA, LHD, and 
LPH) may not simultaneously exhibit the masthead lights required by Rule 
27(b)(iii) and the lights required by Rule 27(b)(i) for vessels 
restricted in their ability to maneuver when such simultaneous 
exhibition will present a hazard to their own safe operations. In those 
instances, the lights required by Rule 27(b)(i) will be exhibited. Ships 
conducting flight operations also may not exhibit the stern light 
required by Rule 27(b)(iii).

[[Page 181]]

    2. To provide all-round visibility, the lights required by Rules 27 
(a) and (b) will consist of two lights, one light port and one light 
starboard on the mast or superstructure at each location in the vertical 
array.
    3. The second masthead light required by Rule 23(a)(ii) and the 
lights and shapes required by Rules 24, 27, and 30(d)(i) are not 
displayed by submarines.
    4. On mine warfare type ships the masthead lights will not always be 
above and clear of the minesweeping lights, as is required by Annex I, 
Section 2(f). The positions of the masthead lights with relation to the 
minesweeping lights are as follows:

----------------------------------------------------------------------------------------------------------------
                                                        Relationship of     Relationship of     Relationship of
                                                       forward masthead     after masthead      after masthead
             Vessel                    MSO No.           light to all       light to lower      light to upper
                                                         minesweeping        minesweeping        minesweeping
                                                            lights              lights              lights
----------------------------------------------------------------------------------------------------------------
MSB............................              15       below.............  ..................  ..................
MSB............................              16        do...............  ..................  ..................
MSB............................              25        do...............  ..................  ..................
MSB............................              28        do...............  ..................  ..................
MSB............................              29        do...............  ..................  ..................
MSB............................              41        do...............  ..................  ..................
MSB............................              51        do...............  ..................  ..................
MSB............................              52        do...............  ..................  ..................
----------------------------------------------------------------------------------------------------------------

    5. The masthead light required by Rule 23(a)(i) and Annex I, 
Paragraph 3(d), is not located in the forward part of the vessel on the 
CFPM Class, CSP Class, SLWT Class, and WT Class.
    6. [Reserved]
    7. On the following ships the arc of visibility of the forward 
masthead light required by Rule 23(a)(i) may be obstructed through 
1.6[deg] arc of visibility at the points 021[deg] and 339[deg] relative 
to the ship's head.

USS MCINERNEY...............................  FFG 8
USS CLARK...................................  FFG 11
USS GEORGE PHILIP...........................  FFG 12
USS SAMUEL ELIOT MORISON....................  FFG 13
USS SIDES...................................  FFG 14
USS ESTOCIN.................................  FFG 15
USS JOHN A. MOORE...........................  FFG 19
USS BOONE...................................  FFG 28
USS STEPHEN W. GROVES.......................  FFG 29
USS JOHN L. HALL............................  FFG 32
USS JARRETT.................................  FFG 33
USS UNDERWOOD...............................  FFG 36
USS CROMMELIN...............................  FFG 37
USS CURTS...................................  FFG 38
USS DOYLE...................................  FFG 39
USS HALYBURTON..............................  FFG 40
USS MCCLUSKY................................  FFG 41
USS KLAKRING................................  FFG 42
USS THACH...................................  FFG 43
USS DEWERT..................................  FFG 45
USS RENTZ...................................  FFG 46
USS NICHOLAS................................  FFG 47
USS VANDERGRIFT.............................  FFG 48
USS ROBERT G. BRADLEY.......................  FFG 49
USS TAYLOR..................................  FFG 50
USS GARY....................................  FFG 51
USS CARR....................................  FFG 52
USS HAWES...................................  FFG 53
USS FORD....................................  FFG 54
USS ELROD...................................  FFG 55
USS SIMPSON.................................  FFG 56
USS REUBEN JAMES............................  FFG 57
USS SAMUEL B. ROBERTS.......................  FFG 58
USS KAUFFMAN................................  FFG 59
USS RODNEY M. DAVIS.........................  FFG 60
USS INGRAHAM................................  FFG 61
 

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

------------------------------------------------------------------------
                                                             Distance of
                                                             sidelights
                                                             forward of
                Vessel                        Number          masthead
                                                              light in
                                                               meters
------------------------------------------------------------------------
USS MCINERNEY.........................  FFG 8                      2.75
USS CLARK.............................  FFG 11                     2.75
USS GEORGE PHILIP.....................  FFG 12                     2.75
USS SAMUEL ELIOT MORISON..............  FFG 13                     2.75
USS SIDES.............................  FFG 14                     2.75
USS ESTOCIN...........................  FFG 15                     2.75
USS JOHN A. MOORE.....................  FFG 19                     2.75
USS BOONE.............................  FFG 28                     2.75
USS STEPHEN W. GROVES.................  FFG 29                     2.75
USS JOHN L. HALL......................  FFG 32                     2.75
USS JARRETT...........................  FFG 33                     2.69
USS UNDERWOOD.........................  FFG 36                     2.75
USS CROMMELIN.........................  FFG 37                     2.75
USS CURTS.............................  FFG 38                     2.75
USS DOYLE.............................  FFG 39                     2.75
USS HALYBURTON........................  FFG 40                     2.75
USS MCCLUSKY..........................  FFG 41                     2.75
USS KLAKRING..........................  FFG 42                     2.75
USS THACH.............................  FFG 43                     2.75
USS DEWERT............................  FFG 45                     2.75
USS RENTZ.............................  FFG 46                     2.75
USS NICHOLAS..........................  FFG 47                     2.75
USS VANDEGRIFT........................  FFG 48                     2.75
USS ROBERT G. BRADLEY.................  FFG 49                     2.75
USS TAYLOR............................  FFG 50                     2.75
USS GARY..............................  FFG 51                     2.75
USS CARR..............................  FFG 52                     2.75
USS HAWES.............................  FFG 53                     2.75
USS FORD..............................  FFG 54                     2.75
USS ELROD.............................  FFG 55                     2.75
USS SIMPSON...........................  FFG 56                     2.75
USS REUBEN JAMES......................  FFG 57                     2.75
USS SAMUEL B. ROBERTS.................  FFG 58                     2.75
USS KAUFFMAN..........................  FFG 59                     2.75
USS RODNEY M. DAVIS...................  FFG 60                     2.75
USS INGRAHAM..........................  FFG 61                     2.19
------------------------------------------------------------------------

    9. On LCAC-class amphibious vessels, full compliance with Rules 
21(a), 21(b), and 22(b), and Annex I, section 2(a)(i), 72 COLREGS, 
cannot be obtained. Tables One and Two of

[[Page 182]]

section 706.2 provide the dimensions of closest possible compliance of 
LCAC-class amphibious vessels with the aforementioned rules. The 
following paragraph details the specific dimensions of closest possible 
compliance and the basis for certification by the Secretary of the Navy 
that full compliance with the aforementioned rules is not obtainable.
    In LCAC-class amphibious vessels, there are permanent and temporary 
masts. The permanent masthead light is located 5.26 meters athwartship 
to port of centerline 5.49 meters above the hull. The temporary masthead 
light is located 3.98 meters athwartship to starboard of centerline, 
4.16 meters in height above the hull. The temporary masthead light is 
displayed in lieu of the permanent masthead light only when LCAC-class 
amphibious vessels are operating with amphibious assault vessels. When 
operating in this mode, the sidelights are displayed at a height greater 
than three-quarters of the height of the temporary masthead light. The 
sidelights are located on top of the port and starboard deckhouses to 
permit the required unobstructed arcs of visibility and are 3.28 meters 
above the hull, resulting in a vertical separation between those lights 
and the temporary masthead light of 0.78 meters. Because of the minimal 
vertical separation between the sidelights and the temporary masthead 
light and the luminous intensity of the temporary light, the sidelights 
on these vessels may not be distinguishable by the naked eye at the 2-
mile range required by Rule 22(b).
    The arc of visibility of the temporary masthead light required by 
rule 21(a) may be obstructed at the following angles relative to the 
LCAC's heading, from 37.00 degrees thru 90.00 degrees up to a distance 
of 112.5 meters from the craft and from 276.75 degrees thru 277.25 
degrees.
    10. [Reserved]
    11. On USS DOLPHIN (AGSS 555) the masthead light will be visible at 
a distance of 4.3 nautical miles and the sidelights will be visible at a 
distance of 2 nautical miles.
    12.-13. [Reserved]
    14. The following harbor tugs are equipped with a hinged mast. When 
the mast is in the lowered position as during a towing alongside or 
pushing operation, the two masthead lights required by Rule 24(c), and 
the all around lights required by Rule 27(b)(i) will not be shown; 
however, an auxiliary masthead light not meeting with Annex I, section 
2(a)(i) height requirement will be exhibited.

------------------------------------------------------------------------
                                                                Distance
                                                               in meters
                                                                of aux.
                                                                masthead
                                                                 light
                                                                 below
                          Vessel No.                            minimum
                                                                required
                                                                height.
                                                                Annex I,
                                                                  sec.
                                                                2(a)(i)
------------------------------------------------------------------------
YTB 769......................................................      3.86
YTB 771......................................................      3.89
YTB 781......................................................      3.66
YTB 789......................................................      3.30
YTB 806......................................................      3.58
YTB 812......................................................      4.04
YTB 813......................................................      6.15
YTB 820......................................................      3.30
YTB 833......................................................      3.68
YTB 835......................................................      4.04
------------------------------------------------------------------------

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

------------------------------------------------------------------------
                                                            Horizontal
                                                           distance from
                                                           the fore and
                                                          aft centerline
                Vessel                       Number        of the vessel
                                                              in the
                                                            athwartship
                                                             direction
------------------------------------------------------------------------
USS ARLEIGH BURKE....................  DDG 51...........     1.85 meters
USS BARRY............................  DDG 52...........     1.94 meters
USS JOHN PAUL JONES..................  DDG 53...........     1.89 meters
USS CURTIS WILBUR....................  DDG 54...........     1.90 meters
USS STOUT............................  DDG 55...........     1.90 meters
USS JOHN S. MCCAIN...................  DDG 56...........     1.88 meters
USS MITSCHER.........................  DDG 57...........     1.93 meters
USS LABOON...........................  DDG 58...........     1.90 meters
USS RUSSELL..........................  DDG 59...........     1.91 meters
USS PAUL HAMILTON....................  DDG 60...........     1.88 meters
USS RAMAGE...........................  DDG 61...........     1.91 meters
USS FITZGERALD.......................  DDG 62...........     1.90 meters
USS STETHEM..........................  DDG 63...........     1.91 meters
USS CARNEY...........................  DDG 64...........     1.90 meters
USS BENFOLD..........................  DDG 65...........     1.90 meters
USS GONZALES.........................  DDG 66...........     1.90 meters
USS COLE.............................  DDG 67...........     1.90 meters
USS THE SULLIVANS....................  DDG 68...........     1.87 meters
USS MILIUS...........................  DDG 69...........     1.93 meters
USS HOPPER...........................  DDG 70...........     1.83 meters
USS ROSS.............................  DDG 71...........     1.96 meters
USS MAHAN............................  DDG 72...........     1.90 meters
USS DECATUR..........................  DDG 73...........     1.87 meters
USS MCFAUL...........................  DDG 74...........     1.91 meters
USS DONALD COOK......................  DDG 75...........     1.90 meters
USS HIGGINS..........................  DDG 76...........     1.92 meters
USS O'KANE...........................  DDG 77...........     1.92 meters
USS PORTER...........................  DDG 78...........     1.92 meters
USS ROOSEVELT........................  DDG 80...........     1.90 meters
USS WINSTON S. CHURCHILL.............  DDG 81...........     1.87 meters
USS HOWARD...........................  DDG 83...........     1.88 meters
USS LASSEN...........................  DDG 82...........     1.93 meters
USS BULKELEY.........................  DDG 84...........     1.90 meters
USS MCCAMPBELL.......................  DDG 85...........     1.85 meters
USS SHOUP............................  DDG 86...........     1.90 meters
USS MASON............................  DDG 87...........     1.87 meters
USS PREBLE...........................  DDG 88...........     1.93 meters
USS MUSTIN...........................  DDG 89...........     1.93 meters
USS CHAFEE...........................  DDG 90...........     1.90 meters
USS PINCKNEY.........................  DDG 91...........     1.87 meters
USS MOMSEN...........................  DDG 92...........     1.88 meters
USS CHUNG-HOON.......................  DDG 93...........     1.95 meters
USS NITZE............................  DDG 94...........     1.90 meters
USS JAMES E. WILLIAMS................  DDG 95...........     1.89 meters
USS BAINBRIDGE.......................  DDG 96...........     1.90 meters
USS HALSEY...........................  DDG 97...........     1.93 meters
USS FORREST SHERMAN..................  DDG 98...........     1.87 meters
USS FARRAGUT.........................  DDG 99...........     1.84 meters

[[Page 183]]

 
USS KIDD.............................  DDG 100..........     1.89 meters
USS GRIDLEY..........................  DDG 101..........     1.86 meters
USS SAMPSON..........................  DDG 102..........     1.88 meters
USS TRUXTUN..........................  DDG 103..........     1.86 meters
USS STERETT..........................  DDG 104..........     1.88 meters
USS STOCKDALE........................  DDG 106..........    1.90 meters.
------------------------------------------------------------------------

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

------------------------------------------------------------------------
                                                      Obstruction angle
              Vessel                    Number         relative ship's
                                                          headings
------------------------------------------------------------------------
USS ARLEIGH BURKE.................  DDG 51........           100.00 thru
                                                             112.50[deg]
USS JOHN PAUL JONES...............  DDG 53........           103.29 thru
                                                             112.50[deg]
USS CURTIS WILBUR.................  DDG 54........           102.61 thru
                                                             112.50[deg]
USS JOHN S. MCCAIN................  DDG 56........           102.53 thru
                                                             112.50[deg]
USS MITSCHER......................  DDG 57........           109.66 thru
                                                             112.50[deg]
USS LABOON........................  DDG 58........           102.80 thru
                                                             112.50[deg]
USS RUSSELL.......................  DDG 59........            92.62 thru
                                                             109.38[deg]
USS RAMAGE........................  DDG 61........           103.66 thru
                                                             112.50[deg]
USS FITZGERALD....................  DDG 62........           108.30 thru
                                                             112.50[deg]
USS STETHEM                         DDG 63........            108.5 thru
                                                             112.50[deg]
USS GONZALES......................  DDG 66........           101.69 thru
                                                             112.50[deg]
USS COLE..........................  DDG 67........           101.83 thru
                                                             112.50[deg]
USS HOPPER........................  DDG 70........           102.25 thru
                                                             112.50[deg]
USS ROSS..........................  DDG 71........           104.05 thru
                                                             112.50[deg]
USS MAHAN.........................  DDG 72........           102.11 thru
                                                             112.50[deg]
USS MCFAUL........................  DDG 74........           102.00 thru
                                                            112.50E[deg]
USS DONALD COOK...................  DDG 75........           108.78 thru
                                                             112.50[deg]
USS HIGGINS.......................  DDG 76........           108.60 thru
                                                             112.50[deg]
USS O'KANE........................  DDG 77........           102.00 thru
                                                             112.50[deg]
USS PORTER........................  DDG 78........           108.43 thru
                                                             112.50[deg]
USS OSCAR AUSTIN..................  DDG 79........           107.94 thru
                                                             112.50[deg]
USS ROOSEVELT.....................  DDG 80........           109.34 thru
                                                             112.50[deg]
USS WINSTON S. CHURCHILL..........  DDG 81........           103.72 thru
                                                             112.50[deg]
USS LASSEN........................  DDG 82........           109.11 thru
                                                             112.50[deg]
USS HOWARD........................  DDG 83........           109.11 thru
                                                             112.50[deg]
USS BULKELEY......................  DDG 84........           109.60 thru
                                                             112.50[deg]
USS MCCAMPBELL....................  DDG 85........           108.61 thru
                                                             112.50[deg]
USS SHOUP.........................  DDG 86........           190.46 thru
                                                             112.50[deg]
USS MASON.........................  DDG 87........           108.03 thru
                                                             112.50[deg]
USS PREBLE........................  DDG 88........           109.20 thru
                                                             112.50[deg]
USS MUSTIN........................  DDG 89........           107.83 thru
                                                             112.50[deg]
USS CHAFEE........................  DDG 90........           108.88 thru
                                                             112.50[deg]
USS PINCKNEY......................  DDG 91........           107.07 thru
                                                             112.50[deg]
USS MOMSEN........................  DDG 92........           108.10 thru
                                                             112.50[deg]
USS CHUNG-HOON....................  DDG 93........           108.38 thru
                                                             112.50[deg]
USS NITZE.........................  DDG 94........           108.75 thru
                                                             112.50[deg]
USS JAMES E. WILLIAMS.............  DDG 95........           108.79 thru
                                                             112.50[deg]
USS BAINBRIDGE....................  DDG 96........           108.75 thru
                                                             112.50[deg]
USS HALSEY........................  DDG 97........           107.00 thru
                                                             112.50[deg]
USS FORREST SHERMAN...............  DDG 98........           105.59 thru
                                                             112.50[deg]
USS FARRAGUT......................  DDG 99........           109.12 thru
                                                             112.50[deg]
USS KIDD..........................  DDG 100.......           107.67 thru
                                                             112.50[deg]
USS GRIDLEY.......................  DDG 101.......           107.25 thru
                                                             112.50[deg]
USS SAMPSON.......................  DDG 102.......           107.27 thru
                                                             112.50[deg]
USS TRUXTUN.......................  DDG 103.......           110.02 thru
                                                             112.50[deg]
USS STERETT.......................  DDG 104.......           106.82 thru
                                                             112.50[deg]
USS STOCKDALE.....................  DDG 106.......           107.08 thru
                                                             112.50[deg]
------------------------------------------------------------------------

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

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

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

------------------------------------------------------------------------
                                                  Distance in meters of
             Vessel                  Number     sidelights above maximum
                                                     allowed height.
------------------------------------------------------------------------
USS OGDEN......................  LPD 5                             3.40
USS DUBUQUE....................  LPD 8                              1.2
USS DENVER.....................  LPD 9                              4.9
USS JUNEAU.....................  LPD 10                             1.6
USS NASHVILLE..................  LPD 13                            5.37
------------------------------------------------------------------------

    20. On the following ships, the all-round task lights (not under 
command or restricted in ability to maneuver) required by Rule 27(a) and 
(b) are unable to be mounted in a vertical line. Instead, the lights 
deviate from a vertical line by the indicated amount.

------------------------------------------------------------------------
                                                Angle in degrees of task
                                                 lights off vertical as
             Vessel                  Number       viewed from directly
                                                     ahead or astern
------------------------------------------------------------------------
USS SAN ANTONIO................  LPD 17                              10
USS NEW ORLEANS................  LPD 18                              10
USS MESA VERDE.................  LPD 19                              10
USS GREEN BAY..................  LPD 20                              10
------------------------------------------------------------------------

    21. On the following ships, the forward towing light array and 
Restricted Maneuvering light array do not meet the vertical spacing 
requirements described by Annex I, paragraph 2(i)(i).

[[Page 184]]



------------------------------------------------------------------------
                                                  Forward     Restricted
                                                   towing    maneuvering
                                                   light        light
                    Vessel                         array,       array,
                                                  vertical     vertical
                                                  spacing      spacing
                                                  (meters)     (meters)
------------------------------------------------------------------------
CFPM-1 through CFPM-2.........................         1.00         1.00
WT-1 through WT-4.............................         1.00         1.00
------------------------------------------------------------------------

    22. On the following ships the vertical separation of the task 
lights do not meet the vertical spacing requirements described by Annex 
I, 2(i)(iii).

                               Table Four
------------------------------------------------------------------------
                                                     Vertical separation
                                                      of the task light
                                                         array is not
                                                     equally spaced, the
                                                      separation between
             Vessel                      No.            the middle and
                                                       lower task light
                                                          exceed the
                                                      separation between
                                                        the upper and
                                                       middle light by
------------------------------------------------------------------------
USS FREEDOM....................  LCS 1.............  0.39 meter.
------------------------------------------------------------------------


                                                   Table Five
----------------------------------------------------------------------------------------------------------------
                                                      Masthead                      After masthead
                                                     lights not       Forward      light less than
                                                      over all     masthead light    \1/2\ ship's    Percentage
                                                    other lights   not in forward   length aft of    horizontal
             Vessel                     No.             and          quarter of        forward       separation
                                                   obstructions.   ship. annex I,  masthead light.    attained
                                                   annex I, sec.     sec. 3(a)      annex I, sec.
                                                        2(f)                             3(a)
----------------------------------------------------------------------------------------------------------------
 
USS FLINT......................   AE 32            .............  ...............   X                98
USS SHASTA.....................   AE 33            .............  ...............   X                98
USS NIAGARA FALLS..............   AFS 3            .............  ...............   X                97.9
USS CONCORD....................   AFS 5            .............  ...............   X                97
USS SAN JOSE...................   AFS 7            .............  ...............   X                98.1
USS LA SALLE...................   AGF 3            .............  ...............   X                54
USS CORONADO...................   AGF 11           .............  ...............   X                55
USS TICONDEROGA................   CG 47            .............   X                X                38.3
USS YORKTOWN...................   CG 48            .............   X                X                38.0
USS VINCENNES..................   CG 49            .............   X                X                38
USS VALLEY FORGE...............   CG 50            .............   X                X                38
USS THOMAS S. GATES............   CG 51            .............   X                X                38
USS BUNKER HILL................   CG 52            .............   X                X                38
USS MOBILE BAY.................   CG 53            .............   X                X                38
USS ANTIETAM...................   CG 54            .............   X                X                38
USS LEYTE GULF.................   CG 55            .............   X                X                38
USS SAN JACINTO................   CG 56            .............   X                X                38
USS LAKE CHAMPLAIN.............   CG 57            .............   X                X                38
USS PHILIPPINE SEA.............   CG 58            .............   X                X                38
USS PRINCETON..................   CG 59            .............   X                X                38
USS NORMANDY...................   CG 60            .............   X                X                38
USS MONTEREY...................   CG 61            .............   X                X                38
USS CHANCELLORSVILLE...........   CG 62            .............   X                X                38
USS COWPENS....................   CG 63            .............   X                X                38
USS GETTYSBURG.................   CG 64            .............   X                X                38
USS CHOSIN.....................   CG 65            .............   X                X                38
USS HUE CITY...................   CG 66            .............   X                X                38
USS SHILOH.....................   CG 67            .............   X                X                38
USS ANZIO......................   CG 68            .............   X                X                38
USS VICKSBURG..................   CG 69                     N/A    X                X                38
USS LAKE ERIE..................   CG 70                     N/A    X                X                38
USS CAPE ST. GEORGE............   CG 71                     N/A    X                X                38
USS VELLA GULF.................   CG 72                     N/A    X                X                38
USS PORT ROYAL.................   CG 73                     N/A    X                X                38
USS KITTY HAWK.................   CV 63            .............   X
USS CONSTELLATION..............   CV 64            .............   X
USS ENTERPRISE.................   CVN 65           .............   X
USS NIMITZ.....................   CVN 68           .............   X
USS DWIGHT D. EISENHOWER.......   CVN 69           .............   X
USS CARL VINSON................   CVN 70           .............   X
USS THEODORE ROOSEVELT.........   CVN 71           .............   X
USS ABRAHAM LINCOLN............   CVN 72           .............   X
USS GEORGE WASHINGTON..........   CVN 73           .............   X               ...............
USS JOHN C. STENNIS............   CVN 74           .............   X               ...............
USS HARRY S TRUMAN.............   CVN 75           .............   X               ...............  ............
USS RONALD REAGAN..............   CVN 76           .............   X               ...............  ............
USS SPRUANCE...................   DD 963           .............   X                X                46
USS PAUL F. FOSTER.............   DD 964           .............   X                X                46.4

[[Page 185]]

 
USS KINKAID....................   DD 965           .............   X                X                46.4
USS HEWITT.....................   DD 966           .............   X                X                46.4
USS ELLIOT.....................   DD 967           .............   X                X                46.4
USS PETERSON...................   DD 969           .............   X                X                46.4
USS ARTHUR W. RADFORD..........   DD 968           .............   X                X                46.4
USS CARON......................   DD 970           .............   X                X                46.4
USS DAVID R. RAY...............   DD 971           .............   X                X                46.4
USS OLDENDORF..................   DD 972                    N/A    X                X                45
USS JOHN YOUNG.................   DD 973           .............   X                X                46
USS O'BRIEN....................   DD 975           .............   X                X                46.1
USS BRISCOE....................   DD 977           .............   X                X                46.4
USS STUMP......................   DD 978           .............   X                X                46
USS MOOSBRUGGER................   DD 980           .............   X                X                46
USS JOHN HANCOCK...............   DD 981           .............   X                X                46.4
USS NICHOLSON..................   DD 982           .............   X                X                46.4
USS CUSHING....................   DD 985           .............   X                X                46
USS O'BANNON...................   DD 987           .............   X                X                46
USS THORN......................   DD 988           .............   X                X                46
USS DEYO.......................   DD 989           .............   X                X                46
USS FIFE.......................   DD 991           .............   X                X                48
USS FLETCHER...................   DD 992           .............   X                X                46
USS HAYLER.....................   DD 997                    N/A    X                X                44
USS ARLEIGH BURKE..............   DDG 51                      X    X                X                19.0
USS BARRY......................   DDG 52           .............   X                X                14.7
USS JOHN PAUL JONES............   DDG 53                      X    X                X                18.9
USS CURTIS WILBUR..............   DDG 54                      X    X                X                19.6
USS STOUT......................   DDG 55           .............   X                X                20.3
USS JOHN S. McCAIN.............   DDG 56                      X    X                X                19.8
USS MITSCHER...................   DDG 57           .............   X                X                12.4
USS LABOON.....................   DDG 58                      X    X                X                19.6
USS RUSSELL....................   DDG 59                      X    X                X                20.6
USS PAUL HAMILTON..............   DDG 60           .............   X                X                21.2
USS RAMAGE.....................   DDG 61                      X    X                X                19.2
USS FITZGERALD.................   DDG 62                      X    X                X                21.2
USS STETHEM....................   DDG 63                      X    X                X                20.9
USS CARNEY.....................   DDG 64           .............   X                X                14.4
USS BENFOLD....................   DDG 65                      X    X                X                14.8
USS GONZALES...................   DDG 66                      X    X                X                20.4
USS COLE.......................   DDG 67                      X    X                X                14.0
USS The SULLIVANS..............   DDG 68           .............   X                X                21.2
USS MILIUS.....................   DDG 69           .............   X                X                14.7
USS HOPPER.....................   DDG 70                      X    X                X                20.4
USS ROSS.......................   DDG 71                      X    X                X                20.6
USS MAHAN......................   DDG 72                      X    X                X                13.9
USS DECATUR....................   DDG 73                    N/A    X                X                15.0
USS MCFAUL.....................   DDG 74                      X    X                X                13.9
USS DONALD COOK................   DDG 75                      X    X                X                14.8
USS HIGGINS....................   DDG 76                      X    X                X                14.8
USS O'KANE.....................   DDG 77                      X    X                X                14.0
USS PORTER.....................   DDG 78                      X    X                X                14.4
USS OSCAR AUSTIN...............   DDG 79                      X    X                X                14.7
USS ROOSEVELT..................   DDG 80                      X    X                X                14.6
USS WINSTON S. CHURCHILL.......   DDG 81                      X    X                X                14.0
USS LASSEN.....................   DDG 82                      X    X                X                14.5
USS HOWARD.....................   DDG 83                      X    X                X                14.6
USS BULKELEY...................   DDG 84                      X    X                X                14.7
USS MCCAMPBELL.................   DDG 85                      X    X                X                14.6
USS SHOUP......................   DDG 86                      X    X                X                14.6
USS MASON......................   DDG 87                      X    X                X                14.5
USS PREBLE.....................   DDG 88                      X    X                X                14.7
USS MUSTIN.....................   DDG 89                      X    X                X                14.4
USS CHAFEE.....................   DDG 90                      X    X                X                14.6
USS PINCKNEY...................   DDG 91                      X    X                X                14.4
USS MOMSEN.....................   DDG 92                      X    X                X                14.5
USS CHUNG-HOON.................   DDG 93                      X    X                X                14.4

[[Page 186]]

 
USS NITZE......................   DDG 94                      X    X                X                14.5
USS JAMES E. WILLIAMS..........   DDG 95                      X    X                X                14.6
USS BAINBRIDGE.................   DDG 96                      X    X                X                14.5
USS HALSEY.....................   DDG 97                      X    X                X                14.3
USS FORREST SHERMAN............   DDG 98                      X    X                X                14.1.
USS FARRAGUT...................   DDG 99                      X    X                X                14.5
USS KIDD.......................   DDG 100                     X    X                X                14.4.
USS GRIDLEY....................   DDG 101                     X    X                X                14.5.
USS SAMPSON....................   DDG 102                     X    X                X                14.5
USS TRUXTUN....................   DDG 103                     X    X                X                14.6
USS STERETT....................   DDG 104                     X    X                X                14.5
USS STOCKDALE..................   DDG 106                     X    X                X                14.5
USS BLUE RIDGE.................   LCC 19                    N/A    N/A              X                84
USS MOUNT WHITNEY..............   LCC 20           .............  ...............   X                84
USS FREEDOM....................   LCS 1            .............   X                X                23
USS TARAWA.....................   LHA 1            .............   X                X                13
USS SAIPAN.....................   LHA 2            .............   X                X                10.2
USS BELLEAU WOOD...............   LHA 3            .............   X                X                13
USS NASSAU.....................   LHA 4            .............   X                X                13
USS PELELIU....................   LHA 5            .............   X                X                13
USS WASP.......................   LHD 1            .............   X                X                41
USS ESSEX......................   LHD 2            .............   X                X                39
USS KEARSARGE..................   LHD 3            .............   X                X                39.5
USS BOXER......................   LHD 4            .............   X                X                39.3
USS BATAAN.....................   LHD 5            .............   X                X                39.7
USS BONHOMME RICHARD...........   LHD 6            .............   X                X                39.8
USS IWO JIMA...................   LHD 7            .............   X                X                41.5
USS AUSTIN.....................   LPD 4            .............  ...............   X                37
USS OGDEN......................   LPD 5                     N/A    N/A              X                56.6
USS DULUTH.....................   LPD 6                     N/A    N/A              X                56.8
USS CLEVELAND..................   LPD 7            .............  ...............   X                49
USS DUBUQUE....................   LPD 8            .............  ...............   X                57
USS DENVER.....................   LPD 9                     N/A    N/A              X                54.7
USS JUNEAU.....................   LPD 10                    N/A    N/A              X                54.8
USS SHREVEPORT.................   LPD 12           .............  ...............   X                49
USS NASHVILLE..................   LPD 13           .............   N/A              X                54.7
USS TRENTON....................   LPD 14           .............  ...............   X                41
USS PONCE......................   LPD 15           .............  ...............   X                55
USS SAN ANTONIO................   LPD 17           .............  ...............   X                71.0
USS NEW ORLEANS................   LPD 18           .............  ...............   X                70.7
USS MESA VERDE.................   LPD 19           .............  ...............   X                70.9
USS GREENBAY...................   LPD 20           .............  ...............   X                70.9
USS TRIPOLI....................   LPH 10           .............   X                X                12
USS ANCHORAGE..................   LSD 36           .............  ...............   X                46
USS PORTLAND...................   LSD 37           .............  ...............   X                46
USS MOUNT VERNON...............   LSD 39           .............  ...............   X                46
USS WHIDBEY ISLAND.............   LSD 41           .............  ...............   X                65
USS GERMANTOWN.................   LSD 42           .............  ...............   X                65
USS FORT McHENRY...............   LSD 43           .............  ...............   X                64
USS GUNSTON HALL...............   LSD 44           .............  ...............   X                64
USS COMSTOCK...................   LSD 46           .............  ...............   X                64
USS TORTUGA....................   LSD 46           .............  ...............   X                64
USS RUSHMORE...................   LSD 47           .............  ...............   X                64
USS ASHLAND....................   LSD 48           .............  ...............   X                64.1
USS HARPERS FERRY..............   LSD 49           .............  ...............   X                63.9
USS CARTER HALL................   LSD 50           .............  ...............   X                63.9
USS OAK HILL...................   LSD 51           .............  ...............   X                63.9
USS PEARL HARBOR...............   LSD 52           .............  ...............   X                63.9
USS FREDERICK..................   LST 1184         .............  ...............   X                90
USS CAYUGA.....................   LST 1186         .............  ...............   X                89
USS SAN BERNARDINO.............   LST 1189         .............  ...............   X                89
USS LA MOURE COUNTY............   LST 1194         .............  ...............   X                88
USS HARLAN COUNTY..............   LST 1196         .............  ...............   X                89
USS BARNSTABLE COUNTY..........   LST 1197         .............  ...............   X                88
USS AVENGER....................   MCM 1            .............  ...............   X                63

[[Page 187]]

 
USS DEFENDER...................   MCM 2            .............  ...............   X                62
USS SENTRY.....................   MCM 3            .............  ...............   X                62
USS CHAMPION...................   MCM 4            .............  ...............   X                64
USS GUARDIAN...................   MCM 5            .............  ...............   X                63
USS DEVASTATOR.................   MCM 6            .............  ...............   X                64
USS PATRIOT....................   MCM 7            .............  ...............   X                64
USS SCOUT......................   MCM 8            .............  ...............   X                64
USS PIONEER....................   MCM 9            .............  ...............  ...............   64
USS WARRIOR....................   MCM 10           .............  ...............   X                64
USS GLADIATOR..................   MCM 11           .............  ...............   X                64
USS ARDENT.....................   MCM 12           .............  ...............   X                64
USS DEXTROUS...................   MCM 13           .............  ...............   X                64
USS CHIEF......................   MCM 14           .............  ...............   X                64
USS INCHON.....................   MCS 12           .............   X                X                11
USNS KILAUEA...................   T-AE 26          .............  ...............   X                94.1
----------------------------------------------------------------------------------------------------------------


[42 FR 36434, July 14, 1977]

    Editorial Note: For Federal Register citations affecting Sec. 
706.2, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.



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

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

                                Table One
 [The following vessels and classes of vessels, less than 150 meters in
     length, are permanently exempted pursuant to rule 38(d)(i) from
  repositioning of masthead lights resulting from the prescriptions of
                         Annex I, section 3(a)]
------------------------------------------------------------------------
                             Vessel or class
-------------------------------------------------------------------------
USNS HAYES (T-AG-195)
T-AGOR 3 Class
T-AGS 26 Class
T-AOG 77 Class
T-ATF 166 Class
DDG 2 Class
FF 1040 Class
FF 1052 Class
FFG 7 Class
LCU 1610 Class
LCU 1648 Class
USS DOLPHIN (AGSS 555)
SSN 594 Class
SSN 637 Class
SSN 688 Class
SSBN 726 Class
YFU (Ex-LCU 1466 Class)
------------------------------------------------------------------------


[42 FR 36434, July 14, 1977, as amended at 55 FR 27818, July 9, 1990; 60 
FR 22506, May 8, 1995; 65 FR 79742, Dec. 20, 2000]



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




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


[[Page 188]]


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

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



Sec. 707.1  Purpose of regulations.

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



Sec. 707.2  Man overboard lights.

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



Sec. 707.3  Yard arm signaling lights.

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



Sec. 707.4  Aircraft warning lights.

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



Sec. 707.5  Underway replenishment contour lights.

    Naval vessels may display, as a means of outlining the contour of 
the delivery ship during nighttime underway replenishment operations, 
either red or blue lights at delivery-ship-deck-edge extremities.

[42 FR 61596, Dec. 6, 1977, as amended at 44 FR 27991, May 14, 1979]



Sec. 707.6  Minesweeping station keeping lights.

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



Sec. 707.7  Submarine identification light.

    Submarines may display, as a distinctive means of identification, an 
intermittent flashing amber beacon with a sequence of operation of one 
flash per second for three (3) seconds followed by a three (3) second 
off-period. The light will be located where it can best be seen, as near 
as practicable, all around the horizon. It shall not be located less 
than two (2) feet above or below the masthead lights.

[48 FR 4284, Jan. 31, 1983]



Sec. 707.8  Special operations lights.

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



Sec. 707.9  Convoy operations stern light.

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



Sec. 707.10  Wake illumination light.

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



Sec. 707.11  Flight operations lights.

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

[[Page 189]]



Sec. 707.12  Amphibious operations lights.

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

[[Page 190]]



                         SUBCHAPTER C_PERSONNEL





PART 716_DEATH GRATUITY--Table of Contents




    Subpart A_Provisions Applicable to the Navy and the Marine Corps

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

               Subpart B_Provisions Applicable to the Navy

716.10 Procedures.

           Subpart C_Provisions Applicable to the Marine Corps

716.11 Procedures.

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

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



    Subpart A_Provisions Applicable to the Navy and the Marine Corps



Sec. 716.1  Principal rule.

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



Sec. 716.2  Definitions.

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

[[Page 191]]

1002 of title 37 U.S.C. or any other provision of law. The term does not 
include:
    (1) Work or study performed by a member of a Reserve component in 
connection with correspondence courses in which he is enrolled, or
    (2) Attendance at an educational institution in an inactive status 
under the sponsorship of the Navy or Marine Corps.

[24 FR 7523, Sept. 16, 1959, as amended at 37 FR 6471, Mar. 30, 1972; 44 
FR 25647, May 2, 1979]



Sec. 716.3  Special situations.

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

[24 FR 7523, Sept. 18, 1959, as amended at 25 FR 7792, Aug. 16, 1960]



Sec. 716.4  Eligible survivors.

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

[[Page 192]]

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

[24 FR 7523, Sept. 18, 1959, as amended at 37 FR 6471, Mar. 30, 1972]



Sec. 716.5  Delegation of authority.

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

[24 FR 7523, Sept. 18, 1959, as amended at 44 FR 25647, May 2, 1979]



Sec. 716.6  Death occurring after active service.

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

[[Page 193]]

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



Sec. 716.7  Payment of the death gratuity.

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

[24 FR 7523, Sept. 18, 1959, as amended at 44 FR 25647, May 2, 1979]



Sec. 716.8  Payments excluded.

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

[24 FR 7523, Sept. 18, 1959, as amended at 37 FR 6471, Mar. 30, 1972; 44 
FR 25647, May 2, 1979]



Sec. 716.9  Erroneous payment.

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

[[Page 194]]

by the deceased member as to his marital and dependency status, and the 
Government otherwise has no information which would give rise to doubt 
that such status is as represented, the payment is not to be regarded as 
``erroneous.'' The Government has a good acquittance in such cases even 
though it may subsequently develop that the payee is not the proper 
statutory payee of the gratuity and no second payment is authorized.

[24 FR 7523, Sept. 18, 1959, as amended at 44 FR 25647, May 2, 1979]



               Subpart B_Provisions Applicable to the Navy



Sec. 716.10  Procedures.

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

[[Page 195]]

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

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

[24 FR 7523, Sept. 18, 1959, as amended at 44 FR 25647, May 2, 1979; 45 
FR 43165, June 26, 1980]



           Subpart C_Provisions Applicable to the Marine Corps



Sec. 716.11  Procedures.

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

[[Page 196]]

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, 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

[[Page 197]]

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 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,

[[Page 198]]

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]

                         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

[[Page 199]]

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 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;

[[Page 200]]

    (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.
    (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]



Sec. Sec. 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

[[Page 201]]

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 should be taken to indicate that the individual is alleged 
to have committed or is suspected or accused of having committed an 
offense, as distinguished from stating or implying that the accused has 
committed the offense or offenses.
    (4) Information subject to release. On inquiry, the following 
information concerning a person accused or suspected of an offense or 
offenses may generally be released except as provided in paragraph (6) 
of this section:
    (i) The accused's name, grade, age, unit, regularly assigned duties, 
duty station, and sex.
    (ii) The substance of the offenses of which the individual is 
accused or suspected.
    (iii) The identity of the victim of any alleged or suspected 
offense, except the victim of a sexual offense.
    (iv) The identity of the apprehending and investigative agency, and 
the identity of accused's counsel, if any.
    (v) The factual circumstances immediately surrounding the 
apprehension of the accused, including the time and place of 
apprehension, resistance, pursuit, and use of weapons.
    (vi) The type and place of custody, if any.
    (vii) Information which has become a part of the record of 
proceedings of the court-martial in open session.
    (viii) The scheduling of any stage in the judicial process.
    (ix) The denial by the accused of any offense or offenses of which 
he may be accused or suspected (when release of such information is 
approved by the counsel of the accused).
    (5) Prohibited information. The following information concerning a 
person accused or suspected of an offense or offenses generally may not 
be released, except as provided in paragraph (a)(6) of this section.
    (i) Subjective opinions, observations, or comments concerning the 
accused's character, demeanor at any time (except as authorized in 
paragraph (4)(v) of this section), or guilt of the offense or offenses 
involved.
    (ii) The prior criminal record (including other apprehensions, 
charges or trials) or the character or reputation of the accused.
    (iii) The existence or contents of any confession, admission, 
statement, or alibi given by the accused, or the refusal or failure of 
the accused to make any statement.
    (iv) The performance of any examination or test, such as polygraph 
examinations, chemical tests, ballistics tests, etc., or the refusal or 
the failure of the accused to submit to an examination or test.
    (v) The identity, testimony, or credibility of possible witnesses, 
except as authorized in paragraph (4)(iii), of this section.
    (vi) The possibility of a plea of guilty to any offense charged or 
to a lesser offense and any negotiation or any offer to negotiate 
respecting a plea of guilty.
    (vii) References to confidential sources or investigative techniques 
or procedures.
    (viii) Any other matter when there is a reasonable likelihood that 
the dissemination of such matter will affect the deliberations of an 
investigative body or the findings or sentence of a court-martial or 
otherwise prejudice

[[Page 202]]

the due administration of military justice either before, during, or 
after trial.
    (6) Exceptional cases. The provisions of this section are not 
intended to restrict the release of information designed to enlist 
public assistance in apprehending an accused or suspect who is a 
fugitive from justice or to warn the public of any danger that a 
fugitive accused or suspect may present. Further, since the purpose of 
this section is to prescribe generally applicable guidelines, there may 
be exceptional circumstances which warrant the release of information 
prohibited under paragraph (a)(5) of this section or the nonrelease of 
information permitted under paragraph (a)(4) of this section. Attention 
should be given to the Secretary of the Navy instructions implementing 
the Freedom of Information Act (5720.42 series) and the Privacy Act 
(5211.5C series). Consultation with the command judge advocate, if one 
is assigned, or with the cognizant Naval Legal Service Office concerning 
interpretation and application of these instructions is encouraged.
    (b) Spectators. (1) The sessions of courts-martial shall be open to 
the public, which includes members of both the military and civilian 
communities. In order to maintain the dignity and decorum of the 
proceedings or for other good cause, the military judge may reasonably 
limit the number of spectators in, and the means of access to, the 
courtroom, exclude specific persons from the courtroom, and close a 
session. Video and audio recording and taking of photographs, except for 
the purpose of preparing the record of trial, in the courtroom during 
the proceedings and radio or television broadcasting of proceedings from 
the courtroom shall not be permitted. The military judge may, as a 
matter of discretion, permit contemporaneous closed-circuit video or 
audio transmission to permit viewing or hearing by an accused removed 
from the courtroom or by spectators when courtroom facilities are 
inadequate to accommodate a reasonable number of spectators.
    (2) At pretrial investigations. Consistent with Rules for Courts-
Martial 405(h)(3), Manual for Courts-Martial, the Convening Authority or 
investigating officer may direct that all or part of an Article 32 
investigation under 10 U.S.C. 832 be held in closed session and that all 
persons not connected with the hearing be excluded therefrom. The 
decision to exclude spectators may be based on the need to protect 
classified information, to prevent disclosure of matters that will be 
inadmissible in evidence at a subsequent trial by Courts-Martial and are 
of such a nature as to interfere with a fair trial by an impartial 
tribunal, or consistent with appellate case law, for a reason deemed 
appropriate by the commander ordering the investigation or the 
investigating officer. The reasons for closing an Article 32 
investigation, and any objections thereto, shall be memorialized and 
included as an attachment to the report of investigation. Ordinarily, 
the proceedings of a pretrial investigation should be open to 
spectators. In cases dealing with classified information, the 
investigating officer will ensure that any part of a pretrial 
investigation (e.g., rights advisement) that does not involve classified 
information will remain open to spectators.

[38 FR 5997, Mar. 6, 1973, as amended at 47 FR 49644, Nov. 2, 1982; 50 
FR 23800, June 6, 1985; 69 FR 20540, Apr. 16, 2004]

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

[[Page 203]]

    (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 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:

[[Page 204]]

    (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 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]



Sec. Sec. 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

[[Page 205]]

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. 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

[[Page 206]]

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:
    (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.

[[Page 207]]

    (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 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;

[[Page 208]]

    (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.
    (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 an 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

[[Page 209]]

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.);
    (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]



Sec. Sec. 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

[[Page 210]]

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 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

[[Page 211]]

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]



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.

[[Page 212]]



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 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.

[[Page 213]]

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.
    (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 Sec. Sec. 
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

[[Page 214]]

General are authorized to act for the Secretary of the Navy in 
performance of functions under this chapter.
    (b) Authority of the General Counsel. The authority of the General 
Counsel of the Navy is prescribed by Navy Regulation (32 CFR 700.203 (a) 
and (g)) and by appropriate departmental directives and instructions 
(e.g., SECNAVINST 5430.25D).\1\ The principal areas of responsibility of 
the Office of the General Counsel (OGC) are commerical law, including 
maritime contract matters; civilian employee law; real property law; and 
Freedom of Information Act and Privacy Act matters as delineated in 32 
CFR part 701. The Office of the General Counsel shares responsibility 
with the Judge Advocate General for environmental law cases.
---------------------------------------------------------------------------

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

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

[[Page 215]]

Naval Service (provided that naval authorities desire his return) and 
the necessary expenses will be paid from an appropriation under the 
control of the Department of Justice.



Sec. 720.8  Delivery of persons to foreign authorities.

    Except when provided by agreement between the United States and the 
foreign government concerned, commanding officers are not authorized to 
deliver members or civilian employees of the Department of the Navy, or 
their dependents residing at or located on a naval or Marine Corps 
installation, to foreign authorities. When a request for delivery of 
these persons is received in a country with which the United States has 
no agreement or when the commanding officer is in doubt, advice should 
be sought from the Judge Advocate General. Detailed information 
concerning the delivery of members, civilian employees, and dependents 
to foreign authorities when a status of forces agreement is in effect is 
contained in DoD Directive 5525.1 of 9 April 1985 and SECNAVINST 
5820.4F.\2\
---------------------------------------------------------------------------

    \2\ See footnote 1 of Sec. 720.5(b).
---------------------------------------------------------------------------



Sec. 720.9  Circumstances in which delivery is refused.

    (a) Disciplinary proceedings pending. When disciplinary proceedings 
involving military offenses are pending, commanding officers should 
obtain legal guidance from a judge advocate of the Navy or Marine Corps 
prior to delivery 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.

[[Page 216]]



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, 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 Sec. Sec. 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

[[Page 217]]

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 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.



Sec. Sec. 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.

[[Page 218]]

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 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

[[Page 219]]

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 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

[[Page 220]]

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 interests of the United States Government (for example, in State 
criminal trails), travel funds may be used to provide members and 
civilian employees as witnesses as provided in the Joint Federal Travel 
Regulations. Responsibility for the payment of the member's mileage and 
allowances will be determined pursuant to the Joint Federal Travel 
Regulations, Volume 1, paragraph M6300, subsections 1-3.\3\
---------------------------------------------------------------------------

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

    (e) Report where service not allowed. Where service of process is 
not permitted, or where the member or civilian employee is not given 
leave, liberty, or orders to attend a judicial proceeding, a report of 
such refusal and the reasons therefor shall be made by telephone, or 
message if telephone is impractical, to the Judge Advocate General or 
the Associate General Counsel (Litigation), as appropriate.



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

    Where members or civilian employees are subpoenaed to appear as 
witnesses in State courts, and are served as described in Sec. Sec. 
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

[[Page 221]]

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.



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

[[Page 222]]

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.



Sec. Sec. 720.26-720.29  [Reserved]



                Subpart C_Production of Official Records



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

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

[[Page 223]]

    (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 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

[[Page 224]]

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 
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.

[[Page 225]]

    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 
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.

[[Page 226]]



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.
    (d) The Assistant Secretary of the Navy (Manpower and Reserve 
Affairs) (ASN(M&RA)) for requests not covered by Sec. Sec. 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

[[Page 227]]

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 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.

[[Page 228]]

    (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 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.

[[Page 229]]

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 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

[[Page 230]]

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 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

[[Page 231]]

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/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

[[Page 232]]

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, 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.

[[Page 233]]

    (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 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.

[[Page 234]]



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.
    (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

[[Page 235]]

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.
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.

[[Page 236]]

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.
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 AffirmationT 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

[[Page 237]]

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]



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

[[Page 238]]

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 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

[[Page 239]]

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 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

[[Page 240]]

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 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 Sec. Sec. 
724.205 and 724.206. Discharge review may also be initiated on the 
motion of the NDRB (See Sec. 724.220).

[[Page 241]]



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 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.

[[Page 242]]

    (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 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.

[[Page 243]]

    (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 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,

[[Page 244]]

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.
    (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

[[Page 245]]

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, shall be 
considered in accordance with the following:
    (1) If the applicant/accused was required to admit the facts 
contained in the charge sheet, or if the discharge authority was 
required to find that the stated facts were true, then the NDRB can 
presume the truth of such facts, unless there is a substantial credible 
evidence to rebut this presumption; or
    (2) If the discharge in lieu of court-martial only required a valid 
preferral, the NDRB may presume that the signer either had personal 
knowledge of, or had investigated the matters set forth, and that the 
charges were true in fact to the best of the signer's knowledge and 
belief.\1\ The weight to be given this presumption in determining 
whether the facts stated in the charge sheet are true is a matter to be 
determined by the NDRB. To the extent that the discharge proceeding 
reflects an official determination that the facts stated in the charge 
sheet are true; that the applicant/accused admitted the facts stated in 
the charge sheet; or that the applicant/accused admitted guilt of the 
offense(s), then the presumption is strengthened. In accordance with 
paragraph B12f of enclosure (3) to 32 CFR part 70 the presumption may be 
rebutted by ``substantial credible evidence.''
---------------------------------------------------------------------------

    \1\ Charges may be preferred by any person subject to the Uniform 
Code of Military Justice. The charges must be signed and sworn to before 
a commissioned officer authorized to administer oaths, and shall state 
that the signer has personal knowledge of, or has investigated the 
matters set forth therein; and that the charges are true in fact to the 
best of the signer's knowledge and belief. 10 U.S.C. 830 (1976) (Art. 30 
Uniform Code of Military Justice).
---------------------------------------------------------------------------



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



Sec. 724.301  Mission.

    To administer and supervise assigned boards and councils within the 
Department of the Navy.



Sec. 724.302  Functions: Director, Naval Council of Personnel Boards.

    (a) Make recommendations to the Secretary of the Navy regarding 
organization, tasking and resources of the NDRB and its associated 
administrative support.
    (b) Submit recommendations to the Secretary of the Navy regarding 
policy and procedures for discharge review.
    (c) Provide administrative and clerical support for NDRB.
    (d) Inform the Secretary of the Navy of matters of interest to him.
    (e) Maintain a system of records, including as a minimum:

[[Page 246]]

    (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 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.

[[Page 247]]



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).



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

[[Page 248]]

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. 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.

[[Page 249]]



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.
    (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.

[[Page 250]]

    (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 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

[[Page 251]]

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).
    (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 Sec. Sec. 
724.805 and 724.806.)

[[Page 252]]

    (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.
    (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,

[[Page 253]]

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
    (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.

[[Page 254]]

    (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 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

[[Page 255]]

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 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

[[Page 256]]

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 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.

[[Page 257]]

    (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. 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

[[Page 258]]

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.
    (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

[[Page 259]]

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 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.

[[Page 260]]

    (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.



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

[[Page 261]]

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 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

[[Page 262]]

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 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

[[Page 263]]

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.
    (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

[[Page 264]]

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:
    (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;

[[Page 265]]

    (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 unduly 
influence the characterization of service.
    (iv) Discrimination. This includes unauthorized acts as documented 
by records or other evidence.



   Sec. 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.''



 Sec. 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

[[Page 266]]

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.



 Sec. Appendix C to Part 724--Samples of Formats Employed by the Naval 
                         Discharge Review Board

------------------------------------------------------------------------
Attachment              Form                           Title
------------------------------------------------------------------------
        1   Letter......................  En Block Notification of
                                           Decision to Commander, Naval
                                           Military Personnel Command
                                           (No Change).
        2   ......do....................  En Block Notification of
                                           Decision to Commander, Naval
                                           Military Personnel Command
                                           (Change).
        3   ......do....................  En Block Notification of
                                           Decision to Commandant,
                                           Marine Corps (No Change).
        4   ......do....................  En Block Notification of
                                           Decision to Commandant,
                                           Marine Corps (Change).
------------------------------------------------------------------------

    Note: The Forms appearing in appendix C are not carried in the Code 
of Federal Regulations.



             Sec. 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

[[Page 267]]

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 
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--

[[Page 268]]

    (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
    (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

[[Page 269]]

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 [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

[[Page 270]]

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 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.

[[Page 271]]

    (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 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\;
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    \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;
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    \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

[[Page 272]]

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 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, article 0331 
(1990), shall be referred to the Deputy Assistant Judge Advocate General 
for General Litigation, Office of the Navy Judge Advocate General 
(Washington Navy Yard), 1322 Patterson Avenue, SE., Suite 3000, 
Washington, DC, 20374-5066, who will respond for the Judge Advocate 
General or transmit the request to the appropriate Deputy Assistant 
Judge Advocate General for response.
    (2) Litigation requests regarding matters assigned to the General 
Counsel of the Navy under Navy Regs., art.

[[Page 273]]

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

    \5\ See footnote 1 to Sec. 725.1.
---------------------------------------------------------------------------

    (3) Matters involving the Armed Services Board of Contract Appeals 
shall be forwarded to these respective counsel except where the 
determination may involve the assertion of the deliberative process 
privilege before that Board. In such an event, the matter shall be 
forwarded for determination to the Associate General Counsel 
(Litigation).
    (d) Litigation matters in which the United States is not, and is 
reasonably not expected to become, a party--(1) Matters within the 
cognizance of the Judge Advocate General--(i) Fact witnesses. Requests 
to interview, depose, or obtain testimony of any present or former DON 
personnel as defined in Sec. 725.4(b) about purely factual matters 
shall be forwarded to the Navy or Marine Corps officer exercising 
general court-martial jurisdiction (OEGCMJ) in whose chain of command 
the prospective witness or requested documents lie. That determining 
authority will respond for the Judge Advocate General under criteria set 
forth in Sec. 725.8.
    (A) If the request pertains to personnel assigned to the Office of 
the Chief of Naval Operations, the Office of the Vice Chief of Naval 
Operations, or an Echelon 2 command located in the Washington, DC, area, 
it shall be forwarded to that office which will likewise respond for the 
Judge Advocate General under the criteria set forth in Sec. 725.8.
    (B) If a request pertains to Marine Corps personnel assigned to 
Headquarters Battalion, Headquarters Marine Corps, or to other Marine 
Corps commands located in the Washington, DC, area, it shall be 
forwarded to the Commandant of the Marine Corps (JAR), Headquarters, 
U.S. Marine Corps, Washington, DC 20380-0001, which will respond for the 
Judge Advocate General under criteria set forth in Sec. 725.8.
    (C) Nothing here shall prevent a determining authority from 
referring requests or demands to another determining authority better 
suited under the circumstances to determine the matter and respond, but 
the requester shall be notified of the referral. Further, each 
determining authority specified in this paragraph may further delegate 
his or her decisional authority to a principal staff member, staff judge 
advocate, or legal advisor.
    (D) In the alternative, the requester may forward the request to the 
Deputy Assistant Judge Advocate General (General Litigation), who may 
refer the matter to another determining authority for response, and so 
notify the requester.
    (ii) Visits and views. A request to visit a DON activity, ship, or 
unit, or to inspect material or spaces located there will be forwarded 
to one of the authorities stated in Sec. 725.6(d)(1)(i), who will 
respond on behalf of the Judge Advocate General. Action taken by that 
authority will be coordinated with the commanding officer of the 
activity, ship, or unit at issue, or with his or her staff judge 
advocate (if applicable). The military mission of the unit shall 
normally take precedence over any visit or view. The commanding officer 
may independently prescribe reasonable conditions as to time, place, and 
circumstances to protect against compromise of classified or privileged 
material, intrusion into restricted spaces, and unauthorized 
photography.
    (iii) Documents. 10 U.S.C. 7861 provides that the Secretary of the 
Navy has custody and charge of all DON books, records, and property. 
Under DOD Directive 5530.1,\6\ the Secretary of the Navy's sole delegate 
for service of process is the General Counsel of the Navy. See CFR 
257.5(c). All process for such documents shall be served upon

[[Page 274]]

the General Counsel at the Department of the Navy, Office of the General 
Counsel, Navy Litigation Office, 720 Kennon Street SE, Bldg 36 Room 233, 
Washington Navy Yard, DC 20374-5013, 202-685-7039, who will refer the 
matter to the proper delegate for action.
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    \6\ See footnote 1 to Sec. 725.1.
---------------------------------------------------------------------------

    (iv) Expert or opinion requests. Any request for expert or opinion 
consultations, interviews, depositions, or testimony will be referred to 
the Deputy Assistant Judge Advocate General (General Litigation) who 
will respond for the Judge Advocate General, or transmit the request to 
the appropriate DAJAG for response. Matters not clearly within the 
purview of a particular Deputy Assistant Judge Advocate General will be 
retained by the Deputy Assistant Judge Advocate General (General 
Litigation), who may either respond or refer the matter to another 
determining authority for response.
    (2) Matters within the cognizance of the General Counsel of the 
Navy--(i) Matters not involving issues of Navy policy. Such matters 
shall be forwarded for determination to the respective counsel for Naval 
Sea Systems Command, Naval Air Systems Command, Naval Supply Systems 
Command, Naval Facilities Engineering Command, Space and Naval Warfare 
Command, Office of the Navy Comptroller, Commandant of the Marine Corps, 
Office of the Chief of Naval Research, Military Sealift Command, Office 
of Civilian Personnel Policy, or to the Assistant General Counsel 
(Acquisition), depending upon who has cognizance over the information or 
personnel at issue.
    (ii) Matters involving issues of Navy policy. Such matters shall be 
forwarded for determination to the General Counsel of the Navy via the 
Associate General Counsel (Litigation).
    (iii) Matters involving asbestos litigation. Such matters shall be 
forwarded to the Office of Counsel, Naval Sea Systems Command 
Headquarters, Personnel and Labor Law Section (Code 00LD), Washington, 
DC 20362-5101.
    (3) Matters not clearly within the cognizance of either the Judge 
Advocate General or the General Counsel. Such matters may be sent to the 
Deputy Assistant Judge Advocate General (General Litigation) or the 
Associate General Counsel (Litigation), who will, in consultation with 
the other, determine the appropriate authority to respond to the 
request.

[57 FR 2463, Jan. 22, 1992, as amended at 69 FR 20541, Apr. 16, 2004; 70 
FR 12966, Mar. 17, 2005]



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 Sec. Sec. 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.

[[Page 275]]

    (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.
    (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

[[Page 276]]

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 unwillingness to abide by the limits of the 
oral grant, partial grant, or denial.



Sec. 725.8  Considerations in determining to grant or deny a request.

    (a) General considerations. In deciding whether to authorize release 
of official information, or the testimony of DON personnel concerning 
official information (hereafter referred to as ``the disclosure'' under 
a request conforming with the requirements of Sec. 725.7, the 
determining authority shall consider the following factors:
    (1) The DON policy regarding disclosure in Sec. 725.2;
    (2) Whether the request or demand is unduly burdensome or otherwise 
inappropriate under applicable court rules;
    (3) Whether disclosure, including release in camera (i.e., to the 
judge or court alone), is appropriate under procedural rules governing 
the case or matter in which the request or demand arose;
    (4) Whether disclosure would violate or conflict with a statute, 
executive order, regulation, directive, instruction, or notice;
    (5) Whether disclosure, in the absence of a court order or written 
consent, would violate 5 U.S.C. 552, 552a;
    (6) Whether disclosure, including release in camera, is appropriate 
or necessary under the relevant substantive law concerning privilege 
(e.g., attorney-client, attorney work-product, or physician-patient in 
the case of civilian personnel);
    (7) Whether disclosure, except when in camera (i.e., before the 
judge alone) and necessary to assert a claim of privilege, would reveal 
information properly classified under the DOD Information Security 
Program under DOD 5200.1-R\7\, withholding of unclassified technical 
data from public disclosure following OPNAVINST 5510.161; privileged 
Naval Aviation Safety Program information (OPNAVINST 3750.6Q 
(NOTAL))\8\, or other matters exempt from unrestricted disclosure under 
5 U.S.C. 552, 552a;
---------------------------------------------------------------------------

    \7\ See footnote 1 to Sec. 725.1.
    \8\ See footnote 1 to Sec. 725.1.
---------------------------------------------------------------------------

    (8) Whether disclosure would unduly interfere with ongoing law 
enforcement proceedings, violate constitutional rights, reveal the 
identity of an intelligence source or source of confidential 
information, conflict with U.S. obligations under international 
agreement, or be otherwise inappropriate under the circumstances;
    (9) Whether attendance of the requested witness at deposition or 
trial will unduly interfere with the military mission of the command; 
and
    (10) Whether, in a criminal case, requiring disclosure by a 
defendant of detailed information about the relevance of documents or 
testimony as a condition for release would conflict with the defendant's 
constitutional rights.
    (b) Specific considerations--(1) Documents, interviews, depositions, 
testimony, and views (where the United States is, or may become, a 
party). All requests pertaining to such matters shall be forwarded to 
the Judge Advocate General or the General Counsel, as appropriate under 
Sec. 725.6(c).
    (2) Documents (where the United States is not, and is reasonably not 
expected to become a party)--(i) Unclassified Navy and Marine Corps 
records. Where parties or potential parties desire unclassified naval 
records in connection with a litigation matter, the subpoena duces tecum 
or court order will be served, under 32 CFR 257.5(c), upon the General 
Counsel of the Navy, along with a written request complying with Sec. 
725.7.

[[Page 277]]

    (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 records'' will be furnished in 
response to a Freedom of Information Act (FOIA) request, SECNAVINST 
5720.42E\9\ controls.
---------------------------------------------------------------------------

    \9\ See footnote 1 to Sec. 725.1.
---------------------------------------------------------------------------

    (C) Generally, a record in a Privacy Act ``system of records'' may 
not be released under a litigation request except with the written 
consent of the person to whom the record pertains or in response to a 
court order signed by a judge. See SECNAVINST 5211.5C\10\ and 5 U.S.C. 
552, 552a for further guidance.
---------------------------------------------------------------------------

    \10\ See footnote 1 to Sec. 725.1.
---------------------------------------------------------------------------

    (D) Whenever compliance with a court order or subpoena duces tecum 
for production of DON records is denied for any reason, the subpoena or 
court order and complete copies of the requested records will be 
forwarded to the appropriate Deputy Assistant Judge Advocate General 
(General Litigation) or the Associate General Counsel (Litigation) for 
action, and the parties to the suit notified in accordance with this 
part.
    (ii) Classified Navy and Marine Corps records. Any consideration of 
release of classified information for litigation purposes, within the 
scope of this instruction, must be coordinated within the Office of the 
Chief of Naval Operations (OP-09N) per OPNAVINST 5510.1H.\11\
---------------------------------------------------------------------------

    \11\ See footnote 1 to Sec. 725.1.
---------------------------------------------------------------------------

    (iii) Records in the custody of the National Personnel Records 
Center. Court orders or subpoenas duces tecum demanding information 
from, or production of, service or medical records of former Navy and 
Marine Corps personnel in the custody of the National Personnel Records 
Center will be served upon the Director, National Personnel Records 
Center, 9700 Page Boulevard, St. Louis, MO 63132. If records responsive 
to the request are identified and maintained at the National Personnel 
Records Center, that Center shall make appropriate certified 
(authenticated) copies of the information requested. These copies will 
then be forwarded, along with the request, in the case of Navy 
personnel, to Chief, Bureau of Naval Personnel (Pers-06), Washington, DC 
20370-5000, or his delegate, who will respond. In the case of Marine 
Corps personnel, the copies and request will be sent to the Commandant 
of the Marine Corps (MMRB-10), Quantico, VA 22134-0001, who will 
respond. Those requests that do not constitute legal demands will be 
refused by the Director, National Personnel Records Center, and written 
guidance provided to the requester.
    (iv) Medical and other records of civilian employees. Production of 
medical certificates or other medical reports concerning civilian 
employees is controlled by Federal Personnel Manual, chapter 294 and 
chapter 339.1-4.\12\ Records of civilian employees, other than medical 
records, may be produced upon receipt of a court order and a request 
complying with Sec. 725.7, provided no classified or for official use 
only information, such as loyalty or security records, are involved. 
Disclosure of records relating to compensation benefits administered by 
the Office of Workers' Compensation Programs of the Department of Labor 
are governed by Secretary of the Navy Instruction 5211.5C (Privacy Act 
implementation) and Secretary of the Navy Instruction 5720.42E (Freedom 
of Information Act implementation), as appropriate. Where information is 
furnished per this

[[Page 278]]

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

    \12\ See footnote 1 to Sec. 725.1.
---------------------------------------------------------------------------

    (v) JAGMAN investigations (other than to next of kin). The Deputy 
Assistant Judge Advocate General having cognizance over the records at 
issue for litigation or prospective litigation purposes may release the 
records if a complete release will result. The Assistant Judge Advocate 
General (Civil Law) will make determinations concerning the release of 
the records specified in this subparagraph if a release of less than the 
complete requested record will result. A release to next of kin of 
incompetent or deceased DON personnel or their representatives is exempt 
from these requirements and this part.
    (vi) Affirmative claims files. Affirmative claims files (including 
Medical Care Recovery Act files), except to the extent they contain 
copies of JAGMAN investigations prepared under the Manual of the Judge 
Advocate General, or classified or privileged information, may be 
released by the commanding officer of the Naval Legal Service Office 
having cognizance over the claim at issue, without compliance with this 
instruction, to: insurance companies to support claims; to civilian 
attorneys representing injured service persons, their dependents, and 
the Government's interests; and to other DOD components. When a request 
for production involves material related to claims in favor of the 
Government, either the cognizant Command Counsel or the Naval Legal 
Service Office having territorial responsibility for the area should be 
notified.
    (vii) Accounting for disclosures from ``systems of records.'' When 
compliance with a litigation request or demand for production of records 
is appropriate, or when release of records is otherwise authorized, and 
records contained in a ``system of records,'' are released, the 
releasing official will consult Secretary of the Navy Instruction 
5211.5C regarding disclosure accounting requirements.
    (viii) Pay records. Official pay records of active-duty, reserve, 
retired, or former Navy members should be requested from Director, 
Defense Finance and Accounting Service (DFAS), Cleveland Center, Anthony 
J. Celebrezze Federal Building, Cleveland, OH 44199-2055. Official pay 
records of active-duty, reserve, retired, or former Marines should be 
requested from Director, Defense Finance and Accounting Service, Kansas 
City Center (Code G), Kansas City, MO 64197-0001.
    (3) Interviews, depositions, and testimony (where the United States 
is not, and is reasonably not expected to become, a party)--(i) Factual 
matters. DON policy favors disclosure of factual matters when disclosure 
does not violate the criteria stated in this section. Distinguishing 
between factual matters and expert or opinion matters (where DON policy 
favors non-disclosure) requires careful analysis. Opinion matters are 
defined at Sec. 725.4(c).
    (ii) Expert, opinion, or policy matters. Such matters are to be 
determined, under the delegation in Sec. 725.6, by the cognizant Deputy 
Assistant Judge Advocate General or by General Counsel. General 
considerations to identify expert or opinion testimony are in Sec. 
725.4(c). DON personnel shall not provide, with or without compensation, 
opinion or expert testimony concerning official information, subjects, 
or activities, except on behalf of the United States or a party 
represented by the Department of Justice. Upon a showing by the 
requester of exceptional need or unique circumstances, and that the 
anticipated testimony will not be adverse to the interests of the DOD or 
the United States, the appropriate DON official designated in Sec. 
725.6, may grant, in writing, special authorization for DON personnel to 
appear and testify at no expense to the United States. In determining 
whether exceptional need or unique circumstances exist, the determining 
official should consider whether such expert or opinion testimony is 
available to the requester from any other source. The burden of 
demonstrating such unavailability, if any, is solely upon the requester.

[[Page 279]]

    (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 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

[[Page 280]]

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 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.

[[Page 281]]

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, 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

[[Page 282]]

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.

    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

[[Page 283]]

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 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;

[[Page 284]]

    (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.



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.

[[Page 285]]



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 to provide guidelines for the 
continuation of the program.



Sec. Sec. 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, members of Reserve 
Components following release from active duty under a call or order to 
active duty for more than 30 days issued under a mobilization authority 
(as determined by the Secretary of Defense), for a period of time that 
begins on the date of the release and is not less than twice the length 
of the period served on active duty under that call or order to active 
duty, and in overseas areas, 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.

[69 FR 20541, Apr. 16, 2004]



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

[[Page 286]]

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 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

[[Page 287]]

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 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

[[Page 288]]

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 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]

[[Page 289]]



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.



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.

[[Page 290]]

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.
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

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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 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.

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    (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.
    (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.

[[Page 293]]

    (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 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.

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



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:

[[Page 295]]

    (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 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

[[Page 296]]

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 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

[[Page 297]]

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 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

[[Page 298]]

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.
    (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

[[Page 299]]

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 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

[[Page 300]]

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.
    (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.

[[Page 301]]

    (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 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.

[[Page 302]]

    (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, 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

[[Page 303]]

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 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.

[[Page 304]]

    (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.
    (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

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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.
    (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

[[Page 306]]

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.
    (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.

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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, 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

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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 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

[[Page 309]]

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 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.

[[Page 310]]

    (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 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

[[Page 311]]

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 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

[[Page 312]]

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.
    (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

[[Page 313]]

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:
    (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

[[Page 314]]

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 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.

[[Page 315]]



       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 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

[[Page 316]]

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 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

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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 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

[[Page 318]]

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 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.

[[Page 319]]

    (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 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

[[Page 320]]

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 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

[[Page 321]]

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 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).

[[Page 322]]

    (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 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).

[[Page 323]]

    (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:
    (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

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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 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

[[Page 325]]

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 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).

[[Page 326]]

    (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 under report control symbol DD-HA (Q) 1463(6320).



Sec. 728.34  Care beyond the capabilities of a naval MTF.

    When either during initial evaluation or during the course of 
treatment of an individual authorized care in this subpart, a 
determination is made that required care or services are beyond the 
capability of the naval MTF, the provisions of Sec. 728.4(z)(2) apply.



Sec. 728.35  Coordination of benefits--third party payers.

    Title 10 U.S.C. 1095 directs the services to collect from third-
party payers the reasonable costs of inpatient hospital care incurred by 
the United States on behalf of retirees and dependents. Naval hospital 
collection agents have been provided instructions relative to this issue 
and are responsible for initiating claims to third-party payers for the 
cost of such care. Admission office personnel must obtain insurance, 
medical service, or health plan (third-party payer) information from 
retirees and dependents upon admission and forward this information to 
the collection agent.



Sec. 728.36  Pay patients.

    Care is provided on a reimbursable basis to retired Coast Guard 
officers and enlisted personnel, retired Public Health Service 
Commissioned Corps officers, retired Commissioned Corps officers of the 
National Oceanic and Atmospheric Administration, and to the dependents 
of such personnel. Accordingly, patient administration personnel will 
follow the provisions of subpart J to initiate the collection action 
process when inpatient or outpatient care is provided to these 
categories of beneficiaries.



   Subpart E_Members of Foreign Military Services and Their Dependents



Sec. 728.41  General provisions.

    (a) Dependent. As used in this subpart, the term ``dependent'' 
denotes a person who bears one of the following relationships to his or 
her sponsor:
    (1) A wife.
    (2) A husband if dependent on his sponsor for more than one-half of 
his support.
    (3) An unmarried legitimate child, including an adopted or stepchild 
who is dependent on the sponsor for over one-half of his or her support 
and who either:
    (i) Has not passed the 21st birthday; or
    (ii) Is incapable of self-support due to a physical or mental 
incapacity that existed prior to reaching the age of 21; or
    (iii) Has not passed the 23rd birthday and is enrolled in a full-
time course of study in an accredited institution of higher learning.

[[Page 327]]

    (b) Transfer to naval MTFs in the United States. Do not transfer 
personnel covered in this subpart to the United States solely for the 
purpose of obtaining medical care at naval MTFs. Consideration may be 
given however, in special circumstances following laws of humanity or 
principles of international courtesy. Transfer to naval MTFs in the 
United States of such persons located outside the United States requires 
approval of the Secretary of the Navy. Naval commands, therefore, should 
not commit the Navy by a promise of treatment in the United States. 
Approval generally will not be granted for treatment of those who suffer 
from incurable afflictions, who require excessive nursing or custodial 
care, or those who have adequate facilities in their own country. When a 
request is received concerning transfer for treatment at a naval MTF in 
the United States, the following procedures apply:
    (1) Forward the request to the Chief of Naval Operations (OP-61), 
with a copy to the Commander, Naval Medical Command, Washington, DC 
20372-5120 for administrative processing. Include:
    (i) Patient's full name and grade or rate (if dependent, the 
sponsor's name and grade or rate also).
    (ii) Country of which a citizen.
    (iii) Results of coordination with the chief of the diplomatic 
mission of the country involved.
    (iv) Medical report giving the history, diagnosis, clinical 
findings, results of diagnostic tests and procedures, and all other 
pertinent medical information.
    (v) Availability or lack thereof of professional skills and adequacy 
of facilities for treatment in the member's own country.
    (vi) Who will assume financial responsibility for costs of 
hospitalization and travel.
    (2) The Chief of Naval Operations (OP-61) will, if appropriate, 
obtain State Department clearance and guidance and advise the Secretary 
of the Navy accordingly. The Commander, Naval Medical Command will 
furnish the Chief of Naval Operations information and recommendations 
relative to the medical aspects and the name of the naval MTF with the 
capability to provide required care. If approved, the Chief of Naval 
Operations will furnish, through the chain of command, the commanding 
officer of the designated naval MTF authorization for admission of the 
beneficiary for treatment.



Sec. 728.42  NATO.

    (a) NATO SOFA nations. Belgium, Canada, Denmark, Federal Republic of 
Germany, France, Greece, Iceland, Italy, Luxembourg, the Netherlands, 
Norway, Portugal, Spain, Turkey, the United Kingdom, and the United 
States.
    (b) Beneficiaries. The following personnel are beneficiaries under 
the conditions set forth.
    (1) Members of NATO military services and their dependents. Military 
personnel of NATO nations, who, in connection with their official 
duties, are stationed in or passing through the United States, and their 
dependents residing in the United States with the sponsor may be 
provided care in naval MTFs to the same extent and under the same 
conditions as comparable U.S. uniformed services personnel and their 
dependents. Accordingly, the provisions of Sec. 728.12 are applicable 
to military personnel and Sec. 728.31(d) through Sec. 728.34 to 
accompanying dependents.
    (2) Military ships and aircraft personnel. Crew and passengers of 
visiting military aircraft and crews of ships of NATO nations which land 
or come into port at NATO or U.S. military airfields or ports within 
NATO countries.
    (3) NATO liaison officers. In overseas areas, liaison officers from 
NATO Army Forces or members of a liaison detachment from such a Force.
    (c) Application for care. Military personnel of NATO nations 
stationed in the United States and their dependents will present valid 
Uniformed Services Identification and Privilege Cards (DD 1173) when 
applying for care. For other eligible persons passing through the United 
States on official business and those enumerated in paragraph (b) (2) 
and (3) of this section, orders or other official identification may be 
accepted in lieu of the DD 1173.
    (d) Disposition. When it becomes necessary to return individuals to 
their home country for medical reasons, make immediate notification to 
the

[[Page 328]]

NATO unit sponsoring the member or dependent's sponsor. Include all 
pertinent information regarding the physical and mental condition of the 
individual concerned. Following are details of agreements among the 
Armed Forces of NATO, CENTO, and SEATO Nations on procedures for 
disposition of allied country patients by DOD medical installations.
    (1) Transfer of patients. (i) The patient's medical welfare must be 
the paramount consideration. When deciding upon transfer of a patient, 
give due consideration to any increased medical hazard which the 
transfer might involve.
    (ii) Arrangements for disposition of patients should be capable of 
being implemented by existing organizations. Consequently, no new 
establishment should be required specially for dealing with the 
transferring of allied casualties.
    (iii) Transfer patients to their own national organization at the 
earliest practicable opportunity consistent with the observance of 
principles established in paragraph (d)(1) (i) and (ii) of this section 
and under any of the following conditions:
    (A) When a medical facility of their own nation is within reasonable 
proximity of the facility of the holding nation.
    (B) When the patient is determined to require hospitalization in 
excess of 30 days.
    (C) Where there is any question as to the ability of the patient to 
perform duty upon release from the MTF.
    (iv) The decision as to whether a patient, other than one requiring 
transfer under paragraph (d)(1)(iii) of this section, is fit for release 
from the MTF is the responsibility of the facility's commanding officer.
    (v) All clinical documents, to include x-rays, relating to the 
patient will accompany such patients on transfer to their own national 
organization.
    (vi) The decision of suitability for transfer and the arrangements 
for transfer will be the responsibility of the holding nation.
    (vii) Final transfer channels should be arranged by local liaison 
before actual movement.
    (viii) Patients not suitable for transfer to their own national 
organization must be dealt with for treatment and disposition purposes 
as patients of the holding nation until they are transferred, i.e., they 
will be dealt with in military hospitals, military medical 
installations, or in civilian hospitals that are part of the military 
medical evacuation system of the holding nation.
    (2) Classification of patients. Different channels for disposition 
will be required for the following two types of patients:
    (i) Patients not requiring admission. Patients not requiring 
admission to an MTF will be returned to their nearest national unit 
under arrangements to be made locally.
    (ii) Patients admitted to medical installations. All such patients 
will be dealth with per paragraph (d)(1) of this section.
    (e) Care authorized outside the 48 contiguous United States. Major 
overseas commanders may authorize care in naval MTFs subject to the 
availability of space, facilities, and the capabilities of the 
professional staff in emergency situations only, Provided, the required 
care cannot reasonably be obtained in medical facilities of the host 
country or in facilities of the patient's own country, or if such 
facilities are inadequate. Provide hospitalization only for acute 
medical and surgical conditions, exclusive of nervous, mental, or 
contagious diseases or those requiring domiciliary care. Administer 
dental treatment only as an adjunct to authorized inpatient care. Do not 
include dental prostheses or orthodontia.



Sec. 728.43  Members of other foreign military services and their dependents.

    (a) Foreign military service members. For the purpose of Sec. 
728.43, members of foreign military services include only:
    (1) Military personnel carried on the current Diplomatic List (Blue) 
or on the List of Employees of Diplomatic Missions (White) published by 
the Department of State.
    (2) Military personnel assigned or attached to United States 
military units for duty; military personnel on foreign military supply 
missions accredited to and recognized by one of the military

[[Page 329]]

departments; and military personnel on duty in the United States at the 
invitation of the Secretary of Defense or one of the military 
departments. For the purpose of Sec. 728.43, members of foreign 
Security Assistance Training Programs (SATP) and Foreign Military Sales 
(FMS) are not included (see Sec. 728.44).
    (3) Foreign military personnel accredited to joint United States 
defense boards or commissions when stationed in the United States.
    (4) Foreign military personnel covered in agreements entered into by 
the Secretary of State, Secretary of Defense, or one of the military 
departments to include, but not limited to, United Nations forces 
personnel of foreign governments exclusive of NATO nations.
    (b) Care authorized in the United States. Military personnel of 
foreign nations not covered in Sec. 728.42 and their dependents 
residing in the United States with the sponsor may be routinely provided 
only outpatient medical care in naval MTFs on a reimbursable basis. 
Provided, the sponsor is in the United States in a status officially 
recognized by an agency of the Department of Defense. Dental care and 
hospitalization for such members and their dependents are limited to 
emergencies. All outpatient care and hospitalization in emergencies are 
subject to reimbursement as outlined in Sec. 728.46.
    (c) Application for care. All personnel covered by Sec. 728.43 will 
present orders or other official U.S. identification verifying their 
status when applying for care.
    (d) Disposition. When it becomes necessary to return individuals 
covered by Sec. 728.43 to their home country for medical reasons, make 
immediate notification to the sponsoring unit of the patient or 
patient's sponsor with a copy to the Chief of Naval Operations (OP-61). 
Include all pertinent information regarding the physical and mental 
condition of the individual concerned and full identification, 
diagnosis, prognosis, estimated period of hospitalization, and 
recommended disposition. Additionally, the provisions of Sec. 728.42(d) 
(1) and (2) apply.
    (e) Care authorized outside the 48 contiguous United States. Major 
overseas commanders may authorize care in naval MTFs subject to the 
availability of space, facilities, and the capabilities of the 
professional staff in emergency situations only. Provided, the required 
care cannot reasonably be obtained in medical facilities of the host 
country or in facilities of the patient's own country, or if such 
facilities are inadequate. Provide hospitalization only for acute 
medical and surgical conditions, exclusive of nervous, mental, or 
contagious diseases or those requiring domiciliary care. Administer 
dental treatment only as an adjunct to authorized inpatient care. Do not 
include dental prostheses or orthodontia.



Sec. 728.44  Members of security assistance training programs, foreign military sales, and their ITO authorized dependents.

    (a) Policies--(1) Invitational travel orders screening. Prior to 
determining the levels of care authorized or the government or person 
responsible for payment for care rendered, carefully screen ITOs to 
detect variations applicable to certain foreign countries. For example, 
unless orders state differently, Kuwait has a civilian health plan to 
cover medical expenses of their trainees; trainees from the Federal 
Republic of Germany are personally responsible for reimbursing for 
inpatient care provided to their dependents; and all inpatient medical 
services for trainees from France and their dependents are to be borne 
by the individual trainee.
    (2) Elective and definitive surgery. The overall policy with respect 
to elective and definitive surgery for Security Assistance Training 
Program (SATP), Foreign Military Sales (FMS) personnel and their 
dependents is that conservatism will at all times prevail, except bona 
fide emergency situations which might threaten the life or health of an 
individual. Generally, elective care is not authorized nor should be 
started. However, when a commanding officer of a naval MTF considers 
such care necessary to the early resumption and completion of training, 
submit the complete facts to the Chief of Naval

[[Page 330]]

Operations (OP-63) for approval. Include the patient's name (sponsor's 
also if patient is an ITO authorized dependent), grade or rate, country 
of origin, diagnosis, type of elective care being sought, and prognosis.
    (3) Prior to entering training. Upon arrival of an SATP or FMS 
trainee in the United States or at an overseas training site, it is 
discovered that the trainee cannot qualify for training by reason of a 
physical or mental condition which will require a significant amount of 
treatment before entering or completing training, return such trainees 
to their home country immediately or as soon thereafter as travel 
permits.
    (4) After entering training. When trainees require hospitalization 
or are disabled after entering a course of training, return them to 
their home country as soon as practicable when, in the opinion of the 
commanding officer of the medical facility, hospitalization or 
disability will prevent training for a period in excess of 30 days. 
Forward a copy of the patient's clinical records with the patient. When 
a trainee is accepted for treatment that is not expected to exceed 30 
days, notify the commanding officer of the training acvitity. Further, 
when a trainee is scheduled for consecutive training sessions convening 
prior to the expected data of release from a naval MTF, make the next 
scheduled training activity an information addressee. Upon release from 
the MTF, direct such trainees to resume training.
    (b) Care authorized. Generally, all SATP and FMS personnel and their 
ITO authorized dependents are entitled to care to the same extent. 
However, certain agreements require that they be charged differently and 
that certain exclusions apply.
    (1) NATO members and their ITO authorized dependents--(i) Foreign 
military sales (FMS). Subject to reimbursement per Sec. 728.46, FMS 
personnel of NATO nations who are in the United States or at U.S. Armed 
Forces installations outside the United States and their accompanying 
ITO authorized dependents will be provided medical and dental care in 
naval MTFs to the same extent and under the same conditions as 
comparable United States military personnel and their dependents except 
that:
    (A) Dependent dental care is not authorized.
    (B) Dependents are not authorized cooperative care under CHAMPUS.
    (ii) International military education and training (IMET). Subject 
to reimbursement for inpatient care at the appropriate IMET rate for 
members or at the full reimbursement rate for dependents, IMET personnel 
of NATO nations who are in the United States or at U.S. Armed Forces 
installations outside the United States and accompanying dependents will 
be provided medical and dental care in naval MTFs to the same extent and 
under the same conditions as comparable United States military personnel 
and their dependents except that:
    (A) Dependent dental care is not authorized.
    (B) Dependents are not authorized cooperative care under CHAMPUS.
    (2) Other foreign members and ITO authorized dependents--(i) Foreign 
military sales. Subject to reimbursement by the trainee or the trainee's 
government for both inpatient and outpatient care at the full 
reimbursement rate, FMS personnel of non-NATO nations and ITO authorized 
accompanying dependents may be provided medical and dental care on a 
space available basis when facilities and staffing permit except that:
    (A) Prosthetic devices, hearing aids, orthopedic footwear, and 
similar adjuncts are not authorized.
    (B) Spectacles may be furnished when required to enable trainees to 
perform their assigned duties, Provided the required spectacles are not 
available through civilian sources.
    (C) Dental care is limited to emergency situations for the military 
member and is not authorized for dependents.
    (D) Dependents are not authorized cooperative care under CHAMPUS.
    (ii) International military education and training. Subject to 
reimbursement for both inpatient and outpatient care at the appropriate 
rates for members and dependents, IMET personnel of non-NATO nations may 
be provided medical and dental care on a space available basis when 
facilities and staffing permit except that:

[[Page 331]]

    (A) Prosthetic devices, hearing aids, orthopedic footwear, and 
similar adjuncts are not authorized.
    (B) spectacles may be furnished when required to enable trainees to 
perform their assigned duties, Provided the required spectacles are not 
available through civilian sources.
    (C) Dental care is limited to emergency situations for military 
members and is not authorized for dependents.
    (D) Dependents are not authorized cooperative care under CHAMPUS.
    (c) Application for care. Trainees and accompanying dependents will 
present official U.S. identification or orders verifying their status 
when applying for care. If any doubt exists as to the extent of care 
authorized, ITOs should be screened (see paragraph (a)(1) of this 
section).
    (d) Notification. When trainees require hospitalization as a result 
of illness or injury prior to or after entering training, the training 
activity (the hospital if patient has been admitted) will make a message 
report through the normal chain of command to the Chief of Naval 
Operations (OP-63) with information copies to MAAG, COMNAV MEDCOM, Navy 
International Logistics Control Office (NAVIL CO), Unified Commander, 
the affected office, and the foreign naval attache concerned. Include 
details of the incident, estimated period of hospitalization, physical 
or mental condition of the patient, and diagnosis. For further 
amplification, see OPNAVINST 4950.1H and NAVCOMPTMAN 032103.



Sec. 728.45  Civilian components (employees of foreign military services) and their dependents.

    (a) Care authorized. Beneficiaries covered in this section are only 
authorized care in naval MTFs in the United States and then only 
civilian humanitarian emergency care on a reimbursable basis (subpart J) 
rendered at installations which have been designated as remote by the 
Secretary of the Navy. Make arrangements to transfer such beneficiaries 
to a civilian facility as soon as their condition permits.
    (b) Potential beneficiaries--(1) NATO. Civilian employee personnel 
(and their dependents residing with them) accompanying military 
personnel in Sec. 728.42(b)(1), Provided, the beneficiaries are not 
stateless persons nor nationals of any state which is not a party to the 
North Atlantic Treaty, nor nationals of, nor ordinarily residents in the 
United States.
    (2) Others. Civilian personnel not covered in Sec. 728.45(b)(1) 
(and their dependents residing with them) accompanying personnel of 
foreign nations on duty in the United States at the invitation of the 
Department of Defense or one of the military departments.
    (c) Application for care. Personnel covered by the provisions of 
Sec. 728.45 will present orders or other official U.S. identification 
verifying their status when applying for care.



Sec. 728.46  Charges and collection.

    (a) Policy. Pub. L. 99-591, section 9029, contains provisions 
prohibiting the expenditure of appropriated funds ``. . . to provide 
medical care in the United States on an inpatient basis to foreign 
military and diplomatic personnel or their dependents unless the 
Department of Defense is reimbursed for the costs of providing such 
care: Provided, That reimbursements . . . shall be credited to the 
appropriations against which charges have been made for providing such 
care, except that inpatient medical care may be provided in the United 
States without cost to military personnel and their dependents from a 
foreign country if comparable care is made available to a comparable 
number of United States military personnel in that foreign country.''
    (b) Canadian agreement. On 3 November 1986, the Department of 
National Defence of Canada and DOD concluded a comparable care agreement 
that covers certain military personnel. The agreement stipulates that:
    (1) DOD will, upon request, provide Canadian Forces members the same 
range of medical and dental services under the same conditions and to 
the same extent as such services are provided comparable United States 
military personnel. Inasmuch as the agreement covers only certain 
military personnel, the reimbursement provisions

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of Pub. L. 99-591 remain in effect for inpatient care provided to 
Canadian diplomatic personnel, Canadian dependents, and Canadian foreign 
military sales trainees who receive care in the United States. Further:
    (2) Permanently stationed Canadian units with established strengths 
of more than 150 personnel are expected to have integral health care 
capability. Any health care services which members of such units receive 
from the host nation will be provided on a full reimbursement basis. 
Groups of larger than 150 personnel, which conduct collective training 
in the United States, are expected to deploy with an organic unit 
medical capability. Naval MTFs may be requested to provide services, 
beyond the capability of the organic unit, at full reimbursement rates.
    (c) Procedures. (1) Until otherwise directed, naval MTFs in the 50 
United States will collect the full reimbursement rate (FRR) for 
inpatient care provided to all foreign military personnel (except 
Canadians covered by the comparable care agreement in Sec. 728.46(b), 
and military personnel connected with a Foreign Military Sales (FMS) 
case number), foreign diplomatic personnel, and to the dependents of 
both whether they are in the United States on official duty or for other 
reasons.
    (2) Subpart J contains procedures for the initiation of collection 
action when inpatient care is rendered to beneficiaries from NATO 
nations and when either inpatient or outpatient care is rendered to all 
others enumerated in this part. Chapter II, part 4 of NAVMED P-5020 is 
applicable to the collection of and accounting for such charges.



            Subpart F_Beneficiaries of Other Federal Agencies



Sec. 728.51  General provisions--the ``Economy Act.''

    The Economy Act, 31 U.S.C. 1535, generally permits agency heads, or 
heads of major organizational units of agencies, to procure goods and 
services from other agencies or within their own agency so long as funds 
for procurement are available, the order is in the best interest of the 
Government, the source from which the goods or services are ordered can 
produce them or obtain them by contract, and the internal or inter-
agency procurement is more convenient, or less expensive, than 
commercial procurement. Provisions of the Economy Act apply to requests 
from other Federal agencies for medical and dental care for 
beneficiaries for whom they are responsible. Consult specific provisions 
of the Act respecting financial and acounting limitations and 
requirements.



Sec. 728.52  Veterans Administration beneficiaries (VAB).

    (a) Eligible beneficiaries--Those who have served in the Armed 
Forces, have been separated under conditions other than dishonorable, 
and have been determined by the Veterans Administration (VA) to be 
eligible for care at VA expense. Prior to 7 September 1980, veterans 
status could be obtained by virtue of 1 day's honorable service. The 
following restrictions do not apply to individuals who are discharged 
from active duty because of a disability or who were discharged for 
reasons of ``early out'' or hardship program under 10 U.S.C. 1171 and 
1173.
    (1) For individuals with an original enlistment in the military 
service after 7 September 1980, the law generally denies benefits, 
including medical care.
    (2) For individuals entering service after 16 October 1981, the law 
generally denies medical benefits when such individuals do not complete 
the shorter of:
    (i) Twenty-four months of continuous active duty, or
    (ii) The full period for which that person was called or ordered to 
active duty.
    (b) Inpatient control--Each VAB admitted will be required to conform 
to regulations governing the internal administration of the naval 
facility. Restrictive or punitive measures, including disciplinary 
action or denial of privileges, will conform as nearly as possible to VA 
instructions.
    (c) Resolution of problems--All problems pertaining to VABs, 
including admission, medical or other records, and all correspondence 
will be matters of resolution between the commanding officer of the 
naval facility and the VA

[[Page 333]]

office of jurisdiction authorizing admission. Questions of policy and 
administration which cannot be so resolved will be forwarded, through 
the normal chain of command, to the Administrator of Veterans Affairs 
via COMNAVMEDCOM for resolution.
    (d) Care in the United States--(1) Inpatient care. An eligible VAB 
may be admitted to a naval MTF on presentation of a written 
authorization for admission signed by an official of the VA office of 
jurisdiction. Neurological and certain neuropsychiatric patients without 
obvious evidence of psychosis and not requiring restraints, and 
instances of suspected tuberculosis, may be admitted for diagnosis. When 
diagnosed, promptly report instances of psychosis, psychoneurosis, and 
tuberculosis of present clinical significance to the VA office of 
jurisdiction with a request for transfer to a VA facility.
    (i) Extent of care. Provide eligible VABs medical and surgical care, 
including prostheses such as eyes and limbs and appliances such as 
hearing aids, spectacles, or orthopedic appliances when required for the 
proper treatment of the condition upon which eligibility is based.
    (ii) Disposition of emergency admission. Notify the appropriate VA 
office of jurisdiction by message or other expeditious means within 72 
hours after the date and hour of an emergency admission of a potential 
VAB. Include a request for an authorization for admission and emergency 
treatment. If VA denies VAB status to such a person admitted in an 
emergency, the provisions of Sec. 728.81(a) are applicable. Once 
admitted in an emergency situation, discharage a VAB promptly upon 
termination of the emergency unless arrangements have been made with the 
VA office of jurisdiction:
    (A) For transfer to a VA treatment facility if further treatment is 
required.
    (B) To retain the patient as a VAB in the naval MTF.
    (2) Outpatient care. Outpatient care, including post hospitalization 
outpatient care, may be provided upon authorization by the VA office of 
jurisdiction. When outpatient followup care is requested, commanding 
officers are responsible for determining whether capabilities and 
workload permit providing such care. In an emergency, provide necessary 
care.
    (3) Physical examinations. Upon a determination by a naval MTF 
commanding officer that space, facilities, and capabilities exist, naval 
MTFs may provide physical examinations when requested by the VA for the 
purpose of adjudicating claims for VA physical disability compensation. 
If authorized by the VA, patients may be admitted when the examination 
requires more than 1 day.
    (4) Dental care. Limit dental treatment to inpatients who require 
services adjunctive to medical or surgical conditions for which 
hospitalized.
    (e) Care outside the United States--(1) Eligible beneficiaries. 
Beneficiaries described in paragraph (a) of this section who are 
citizens of the United States and residing or sojourning abroad may, 
within the capabilities of the facility as determined by the commanding 
officer, be provided inpatient and outpatient care upon presentation of 
an authorization from the appropriate VA office of jurisdiction listed 
in paragraph (e)(3) of this section.
    (2) Emergency care. Overseas naval MTFs furnishing emergency care to 
potential VABs will promptly notify the appropriate VA office of 
jurisdiction and request authorization for treatment and instructions 
for disposition of the patient.
    (3) Offices of jurisdiction. The following activities are vested 
with responsibility for issuing authorizations for care and furnishing 
dispisition instructions for VABs in overseas naval MTFs:
    (i) In the Trust Territory of the Pacific (Micronesia), VA Office, 
Honolulu, Hawaii.
    (ii) In the Philippines, VA Regional Office, Manila, Philippines.
    (iii) In Canada, Canadian Department of Veterans Affairs, Ottawa, 
Canada.
    (iv) In all other foreign countries, consular offices of U.S. 
embassies.
    (f) Forms required. (1) Complete a VA 10-10 (Application for Medical 
Benefits) when potential VABs are admitted for emergency care without 
prior authorization.

[[Page 334]]

    (2) Prepare a VA 10-10m (Medical Certificate and History) when care 
is rendered. All information required in the medical certificate thereon 
will be furnished whether the admission is subsequently approved or 
disapproved by the VA office of jurisdiction.
    (3) Since the completion of VA 10-10m requires an examination of 
patients, admissions which are disapproved will be reported as medical 
examinations on DD 7A, Report of Treatment Furnished Pay Patients, 
Outpatient Treatment Furnished (part B) (See subpart J).
    (4) Prepare and submit a DD 7 (Report of Treatment Furnished Pay 
Patients, Hospitalization Furnished (part A)) on all VABs and potential 
VABs admitted (see subpart J).
    (5) Complete an SF 502 (Narrative Summary) or SF 539 (Abbreviated 
Clinical Record), as appropriate, when a VAB or potential VAB is 
discharged or otherwise released. When an interim report of 
hospitalization is requested by the VA office of jurisdiction, it may be 
prepared on an SF 502.



Sec. 728.53  Department of Labor, Office of Workers' Compensation Programs (OWCP) beneficiaries.

    (a) Potential beneficiaries. The following may be beneficiaries of 
one of the programs sponsored by the Office of Workers' Compensation 
Programs (OWC) under the conditions set forth. They are not 
beneficiaries of OWCP until authorized as such by the appropriate 
district officer of OWCP. However, they may be carried as potential 
beneficiaries pending OWCP determination of eligibility. DOD civilian 
employees provided medical services under a Defense or service health 
program are not included under this authority (see subpart G).
    (1) Members and applicants for membership in the Reserve Officers' 
Training Corps of the Navy, Army, and Air Force, provided the condition 
necessitating treatment was incurred in line of duty during an off-
campus training regimen. Such care is authorized for injury (a disease 
or illness which is the proximate result of performance of training is 
considered an injury) incurred while engaged in:
    (i) Training.
    (ii) Flight instructions.
    (iii) Travel to or from training or flight instructions.
    (2) The following employees of the Government of the United States, 
regardless of nationality or place of work, are entitled to receive care 
as outlined in paragraph (e) of this section for work incurred traumatic 
injuries at the expense of OWCP. (In addition to injury by accident, a 
disease or illness which is the proximate result of performance of 
employment duties is considered an injury.) This category includes but 
is not limited to:
    (i) Civilian student employees in training at Navy and Marine Corps 
facilities.
    (ii) Civilian seamen in the service of vessels operated by the 
Department of the Army (see paragraph (a)(7) of this section and Sec. 
728.80(c)(2) for civilian Military Sealift Command (MSC) personnel).
    (iii) All civilian employees of the Government except 
nonappropriated-fund-activity employees. Nonappropriate fund employees 
may be covered under the Longshore and Harbor Workers' Compensation Act 
(contact cognizant district office of OWCP).
    (3) Civilian members of the Civil Air Patrol (except Civil Air 
Patrol Cadets) for injury or disease which is the proximate result of 
active service or travel to and from such service, rendered in 
performance or support of operational missions of the Civil Air Patrol 
under the direction and written authority of the Air Force.
    (4) Former Peace Corps enrollees for injury or disease which is the 
proximate result of their former employment with the Peace Corps or 
which was sustained or contracted while located with the Peace Corps 
outside the United States and its territories.
    (5) Former Job Crops enrollees for injury or disease which is the 
proximate result of employment with the Job Corps.
    (6) Former VISTA (Volunteers in Service to America) enrollees for 
injury or disease which is the proximate result of employment with 
VISTA.
    (7) Military Sealift Command (MSC) civilian marine personnel 
(CIVMARPERS or CIVMARS) (including temporary employees, intermittent

[[Page 335]]

employees, and employees with less than 1 year's service) are entitled 
to occupationally related care at the expense of OWCP. CIVMARS are in a 
crew status only after reporting to their assigned ship. They are in a 
travel status from crewing point to ship and return. While in a travel 
status, they are entitled to the same health care benefits as other 
Federal civil service employees in a travel status (5 U.S.C. 8101). 
CIVMARS presenting for treatment with a properly completed CA-16, 
Request for Examination and/or Treatment, will:
    (i) Enter the naval MTF's system through the occupational medicine 
service.
    (ii) Be treated for any injury or disease proximately caused by 
their employment. Although the actual determination of whether an 
illness or injury is occupationally related is a function of OWCP, 
determinations are based on the required injury report along with the 
treatment record from the attending physician. Therefore, when doubt 
exists as to the relationship of the condition to the potential 
patient's employment, the physician should report an unbiased medical 
conclusion and the medical rationale therefor, indicating the conditions 
which are responsible for the claimant's disability. As a general rule, 
the following may be initially considered as occupationally related, 
however, it should be emphasized that OWCP is the final approval 
authority:
    (A) Any injury or illness occurring as a direct result of 
employment. May occur on a ship, at a Government installation ashore, or 
in an aircraft while performing a requirement of employment.
    (B) Any injury or illness which becomes manifest while away from 
work (on leave or liberty) while in a crew status or travel status as 
long as the condition may be directly related to job activities or to 
exposures incident to travel to ship assignment.
    (C) Required immunizations.
    (D) Required physical examinations.
    (E) Periodic medical surveillance screening examinations for DOD 
occupational and industrial health programs, i.e., asbestos medical 
surveillance, hearing conservation, etc.
    (iii) Be referred to a non-Federal source of care where back-to-work 
care may be provided at the CIVMAR's expense after, if necessary, the 
immediate emergency is alleviated when a reasonable determination can be 
made that the injury or illness is not occupationally related.
    (A) Per 5 U.S.C. 7901(c)(3), the health service program for Federal 
civilian employees is limited to referral of employees, upon their 
request, to private sources of care.
    (B) Long term extended care of chronic illnesses such as 
hypertension, diabetes, etc., is not authorized in naval MTFs at the 
expense of OWCP nor at the CIVMAR's personal expense.
    (C) Patients who cannot be referred, because of medical reasons or 
because non-Federal sources are not available or available but 
inadequate, may be retained in naval MTFs at the expense of the CIVMAR 
or of his or her private insurance until transfer becomes possible. 
Although the means of access to the naval MTF may have been through the 
occupational medicine service, retention in the naval MTF is on a 
civilian humanitarian basis. This is also applicable when OWCP disallows 
a CIVMAR's claim (see paragraph (c) of this section).
    (b) Authorization required. Personnel in paragraph (a) (1) through 
(6) may be rendered inpatient and outpatient care as outlined in 
paragraph (e) of this section, unless otherwise stipulated in this 
section, upon presentation of a properly prepared and signed 
authorization from CA-16 (Request for Examination and/or Treatment). 
District offices of OWCP will honor these authorizations for 60 days 
unless written notice of termination of authorization is given earlier. 
Whereas the CA-16 is used primarily for traumatic injuries, it may also 
be used to authorize examination and treatment for disease or illness 
provided the affected agency has obtained prior permission from the 
cognizant district office of OWCP. If the condition for which treatment 
is requested appears related to employment, treatment of beneficiaries 
in paragraph (a) (1) through (7) of this section may be initiated 
without presentation of a CA-16. Patients provided

[[Page 336]]

treatment without a CA-16 may be carried as OWCP beneficiaries from the 
time of initial treatment, provided the appropriate district office of 
OWCP is notified and requested to submit a CA-16 within 48 hours giving 
authorization as of the date of actual treatment. OWCP will not be 
liable for payment of bills for unauthorized treatment. Post 
hospitalization care following authorized inpatient care does not 
require an additional authorization. First aid treatment rendered 
civilian employees does not require an authorization form
    (c) Disallowance by OWCP. When OWCP determines that any claim should 
be disallowed, OWCP will advise the naval facility rendering care that 
no further treatment should be rendered at OWCP expense. The patient 
ceases to be an OWCP beneficiary as of the date of receipt of the notice 
of disallowance by the naval MTF and the patient will be so notified. 
Any treatment subsequent to the date of receipt of the notice of 
disallowance will be at the personal expense of the patient (see Sec. 
728.81(a)).
    (d) Authorization for transfer. Prior approval of OWCP is required 
before a transfer can be effected, except in an emergency or when 
immediate treatment is deemed more appropriate in another Federal 
facility. When transfer is effected without approval, the transferring 
facility will immediately request such authorization from the 
appropriate district office of OWCP. When authorized by OWCP, evacuation 
to the United States can be effected per OPNAVINST 4630.25B. Medical 
records and a CA-16 will accompany such patients.
    (e) Care authorized--(1) Inpatient care. Medical and surgical care 
necessary for the proper treatment of the condition upon which 
eligibility is based. Specific OWCP authorization is required before 
major surgical procedures can be performed unless the urgency of the 
situation is such that time does not permit obtaining said 
authorization. All necessary prostheses, hearing aids, spectacles, and 
orthopedic appliances will be furnished when required for proper 
treatment of the condition upon which eligibility is based. Upon 
specific authorization, damaged or destroyed medical braces, artificial 
limbs, and other orthopedic and prosthetic devices will be replaced or 
repaired, except that eyeglasses and hearing aids will not be replaced 
or repaired unless their damage or destruction is incidental to a 
personal injury requiring medical services.
    (2) Outpatient care. Complete medical and surgical care not 
requiring hospitalization, and posthospitalization services following 
authorized inpatient care in a naval MTF for the proper treatment of the 
condition upon which eligibility is based.
    (3) Dental care. Limit dental treatment to emergencies and that care 
necessary as an adjunct to inpatient hospital care authorized in 
advance. Such care will not include dental prostheses, unless 
specifically authorized, nor orthodontic treatment.
    (f) Reports and records. (1) Copies of medical records will 
accompany OWCP patients being transferred from one medical treatment 
facility to another. Records accompanying OWCP patients to a debarkation 
hospital will be the same as for military personnel and will clearly 
identify the patient as an OWCP beneficiary.
    (2) Forward a CA-20 (Attending Physician's Report) to the 
appropriate district office of OWCP on discharge of the patient unless 
hospitalization exceeds 1 month. In such instances, a report will be 
submitted every 30 days. When extensive hospitalization is required, use 
an SF 502 or a narrative format in lieu of CA-20. When submitted to 
OWCP, the physician's report will include:
    (i) History.
    (ii) Physical findings.
    (iii) Laboratory findings.
    (iv) Abstract of hospital records.
    (v) Diagnosis for conditions due to injury and not due to injury.
    (vi) Rationalized medical opinion for the physician's belief that 
the illness or disease treated was causally related to a specific 
condition or set of conditions to which the claimant was subjected.
    (vii) Condition on discharge with opinion as to degree of impairment 
due to injury, if any.
    (3) Complete and submit, per subpart J, a DD 7 (Report of Treatment 
Furnished Pay Patients, Hospitalization

[[Page 337]]

Furnished, part A) or DD 7A (Report of Treatment Furnished Pay Patients, 
Outpatient Treatment, part B) when outpatient or inpatient care is 
rendered to any OWCP beneficiary.



Sec. 728.54  U.S. Public Health Service (USPHS), other than members of the uniformed services.

    (a) Potential beneficiaries. The following may be beneficiaries of 
the USPHS for care in naval MTFs upon submission of the necessary form 
from appropriate officials as outlined in paragraph (b) of this section.
    (1) Within and outside the United States. Any individuals the USPHS 
may determine to be eligible for care on an interagency reimbursable 
basis.
    (2) Within the 48 Contiguous United States and the District of 
Columbia. American Indians, Alaska Natives, Eskimos, and Aleuts.
    (3) In Alaska. American Indians, Eskimos, and Aleuts.
    (b) Authorization required--(1) Normal circumstances. An American 
Indian or Alaska Native may be rendered inpatient care upon presentation 
of form HRSA 43 (Contract Health Service Purchase Order for Hospital 
Services Rendered) or HRSA form 64 (Purchase/Delivery Order for Contract 
Health Services Other Than Hospital Inpatient or Dental). Either form 
must be signed by an appropriate Indian Health Service or Alaska Native 
Health Service area/program official.
    (2) Emergencies. In an emergency, care may be rendered upon written 
request of patient's commanding officer or superior officer, or the 
patient if neither of the above is available. When emergency care is 
rendered without prior authorization, the facility rendering care must 
notify the service unit director of the patient's home reservation 
within 72 hours from the time such care is rendered unless extenuating 
circumstances preclude prompt notification.
    (c) Care authorized. Unless limited by the provisions stipulated in 
paragraph (a) of this section and subject to the provisions of Sec. 
728.3, the following care may be rendered, when requested, to all 
beneficiaries enumerated in paragraph (a) of this section.
    (1) Inpatient care. Necessary medical and surgical care.
    (2) Outpatient care. Necessary medical and surgical care.
    (3) Dental care. (i) Limit dental care in the United States, its 
territories, possessions, and the Commonwealth of Puerto Rico to 
emergencies for the relief of pain or acute conditions and that 
necessary as an adjunct to inpatient hospital care. Prosthetic dental 
appliances and permanent restorations are not authorized.
    (ii) In overseas areas, dental care is authorized to the extent 
necessary pending the patient's return to the United States, its 
territories, possessions, or the Commonwealth of Puerto Rico.
    (d) Report. Complete and submit, per subpart J, a DD 7 (Report of 
Treatment Furnished Pay Patients, Hospitalization Furnished, part A) or 
a DD 7A (Report of Treatment Furnished Pay Patients, Outpatient 
Treatment, part B) when outpatient or inpatient care is rendered.



Sec. 728.55  Department of Justice beneficiaries.

    Upon presentation of a letter of authorization that includes 
disposition of SF 88 (Report of Medical Examination), SF 93 (Report of 
Medical History), and address for submission of claim, the following 
personnel may be furnished requested care as beneficiaries of the 
Department of Justice. See subpart J on completing and submitting forms 
for central collection of the cost of care provided.
    (a) Federal Bureau of Investigation. Investigative employees of the 
Federal Bureau of Investigation (FBI) and applicants for employment as 
special agents with the FBI may be provided:
    (1) Immunizations.
    (2) Physical examinations and hospitalization when required to 
determine physical fitness. Use this period of hospitalization for 
diagnostic purposes only. Do not correct disqualifying defects.
    (b) U.S. Marshals. U.S. Marshals may receive physical examinations 
and hospitalizations when required to determine physical fitness. Use 
this period

[[Page 338]]

of hospitalization for diagnostic purposes only. Do not correct 
disqualifying defects.
    (c) Claimants against the United States. Claimants whose suits or 
claims against the United States are being defended by the Department of 
Justice may be furnished physical examinations to determine the extent 
and nature of the injuries or disabilities being claimed. 
Hospitalization is authorized for proper conduct of the examination. 
Upon completion, forward the report of the examination promptly to the 
U.S. Attorney involved.



Sec. 728.56  Treasury Department beneficiaries.

    (a) Potential beneficiaries. The following may be beneficiaries of 
the Treasury Department and may be rendered care as set forth below.
    (1) Secret Service Special Agents and support personnel.
    (2) Secret Service Agents providing protection to certain 
individuals.
    (3) Persons being provided protection by the Secret Service.
    (4) Agents of the U.S. Customs Service.
    (5) Prisoners (detainees) of the U.S. Customs Service.
    (b) Care authorized. (1) Secret Service Special Agents may be 
provided routine annual physical examinations upon request and 
presentation of a letter of authorization. Conduct and record 
examinations in the same manner as routine examinations rendered naval 
officers except that they may be conducted only on an outpatient basis. 
If hospitalization is considered desirable in connection with an 
examination, patient administration department personnel will contact 
the United States Secret Service at (202) 535-5641 at the address in 
paragraph (c) of this section. Enter a statement, attesting to the fact 
that hospitalization is desirable, in item 73 or 75 of the SF 88, as 
appropriate, before forwarding to the United States Secret Service as 
directed by the letter of authorization.
    (2) Secret Service Agents providing protection to certain 
individuals and those persons being provided such protection may be 
rendered all required medical services including hospitalization subject 
to the provisions of Sec. 728.3.
    (3) Agents of the U.S. Customs Service and their prisoners 
(detainees) may be provided emergency medical treatment and evacuation 
services to the nearest medical facility (military or civilian) in those 
remote areas of the United States where no other such services are 
available. Limit evacuation to the continental United States and do not 
cross borders. The Navy's responsibility for medical care of such 
prisoners terminates once the medical emergency has been resolved. 
Guarding of prisoners, while they or their captors are receiving 
treatment at naval MTFs, remains the responsibility of the U.S. Customs 
Service or other appropriate Federal (nonmilitary) law enforcement 
agencies.
    (c) Reports and records. (1) When examinations are rendered to 
Secret Service Special Agents and support personnel, forward one copy of 
the SF 88, one copy of the SF 93, and one copy of any forms provided 
with the letter of authorization to United States Secret Service, 
Administrative Operations Division, Safety and Health Branch, 1800 G 
Street, NW., Room 845, Washington, DC 20223 or as otherwise directed by 
the letter of authorization. Provide an information copy to the Deputy 
Comptroller of the Navy.
    (2) Complete and submit, per subpart J, a DD 7 (Report of Treatment 
Furnished Pay Patients, Hospitalization Furnished, part A) or DD 7A 
(Report of Treatment Furnished Pay Patients, Outpatient Treatment, part 
B) when outpatient or inpatient care is rendered.



Sec. 728.57  Department of State and associated agencies.

    Eligibility for care under the provisions of this section will be 
determined by the Department of State, Office of Medical Services.
    (a) Beneficiaries. Officers and employees of the following agencies, 
their dependents, and applicants for appointment to such agencies are 
authorized inpatient and outpatient medical care as set forth below in 
addition to that care that may be authorized elsewhere within this part 
(i.e., Sec. Sec. 728.53, 728.55, 728.56, and 728.58). Limit dental care 
to that delineated in paragraph (b)(6) of this section.

[[Page 339]]

    (1) Department of State-U.S.Arms Control and Disarmament Agency and 
the Office of International Conferences.
    (2) U.S. Agency for International Development.
    (3) International Communications Agency.
    (4) ACTION--Peace Corps Staff.
    (5) Department of Agriculture--Foreign Agriculture Service.
    (6) Department of Commerce--Bureau of Public Roads.
    (7) Department of Interior--Bureau of Reclamation and the U.S. 
Geological Survey.
    (8) Department of Transportation--Federal Aviation Administration 
and the Federal Highway Administration.
    (9) Department of Justice--Drug Enforcement Agency.
    (10) Department of Treasury--U.S. Customs, U.S. Secret Service, 
Office of International Affairs (OIA), U.S.-Saudi Arabian Joint 
Commission for Economic Cooperation (JECOR), and the Internal Revenue 
Service.
    (11) National Aeronautics and Space Administration.
    (12) Library of Congress.
    (13) Beneficiaries of such other agencies as may be included in the 
Department of State Medical Program.
    (b) Care authorized--(1) General. The Foreign Service Act of 1946, 
as amended, authorizes care delineated in this section. Subject to the 
restrictions and priorities of Sec. 728.3 and the restrictions of this 
section, care may be rendered at the expense of the Department of State 
or one of the agencies listed in paragraph (a) of this section. The law 
allows for payment when care is furnished for an illness or injury which 
results in hospitalization or equal treatment. Outpatient care is only 
authorized as an adjunct to hospitalization.
    (2) Overseas. (i) When, in the opinion of the principal or 
administrative officer of an overseas post of the Department of State, 
an individual meets the conditions of eligibility, the post will furnish 
authorization to the naval MTF for care at the expense of the Department 
of State or one of the agencies listed in paragraph (a) of this section.
    (ii) Should the Department of State official determine that the 
illness or injury does not meet the conditions of eligibility for care 
at the expense of one of the agencies, all care provided will be at the 
expense of the patient or patient's sponsor and charged at the full 
reimbursement rate.
    (3) In the United States. (i) Care is not authorized for an injury 
or illness incurred in the United States. Authorizations and other 
arrangements for care in the United States for individuals incurring 
injury or illness outside the United States will be provided by the 
Deputy Assistant Secretary for Medical Services, Department of State, 
using appropriate authorization form(s). When personnel are admitted in 
an emergency without prior authorization, the commanding officer of the 
admitting naval MTF will immediately request authorization from the 
Deputy Assistant Secretary for Medical Services.
    (ii) The extent of care furnished in the United States, to 
individuals in paragraph (a) of this section who are evacuated to the 
United States for medical reasons, will be comparable in all respects to 
that which is authorized or prescribed for these individuals outside the 
United States. When determined appropriate by the Deputy Assistant 
Secretary for Medical Services, officers and employees and their 
accompanying dependents who have returned to the United States for 
nonmedical reasons may be furnished medical care at the expense of one 
of the above agencies for treatment of an illness or injury incurred 
while outside the United States.
    (4) Physical examinations. The Secretary of State is authorized to 
provide for comprehensive physical examinations, including dental 
examinations and other specific testing, of applicants for employment 
and for officers and employees of the Foreign Service who are U.S. 
citizens and for their dependents, including examinations necessary to 
establish disability or incapacity for retirement purposes. An 
authorization will be executed by an appropriate Department of State 
official and furnished in duplicate to the naval MTF, listing the type 
of examination required and stating that the individual is entitled to 
services at the expense of the Department of State. Furnish reports per 
the letter of authorization.

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    (5) Immunizations. Inoculations and vaccinations are authorized for 
officers, employees, and their dependents upon written authorization 
from an appropriate Department of State official. This authorization, in 
duplicate, will include the type of inoculation or vaccination required 
and will state that the individual is entitled to services at the 
expense of the Department of State. Furnish reports per the letter of 
authorization.
    (6) Dental care. Limit dental care to emergencies for the relief of 
pain or acute conditions, or dental conditions as an adjunct to 
inpatient care. Do not provide prosthetic dental appliances.
    (c) Evacuation to the United States. Should a beneficiary in an 
overseas naval MTF require prolonged hospitalization, the commanding 
officer of the overseas facility will report the requirement to the 
nearest Department of State principal or administrative officer and 
request authority to return the patient to the United States. Release 
dependents who decline evacuation to the custody of their sponsor. 
Aeromedical evacuation may be used per OPNAVINST 4630.25B. Travel of an 
attendant or attendants is authorized at Department of State expense 
when the patient is too ill or too young to travel unattended.
    (d) Report. Complete and submit, per subpart J, a DD 7 (Report of 
Treatment Furnished Pay Patients, Hospitalization Furnished, part A) or 
DD 7A (Report of Treatment Furnished Pay Patients, Outpatient Treatment, 
part B) when outpatient or inpatient care is rendered.



Sec. 728.58  Federal Aviation Agency (FAA) beneficiaries.

    (a) Beneficiaries. Air Traffic Control Specialists (ATCS) of the FAA 
when appropriate authorization has been furnished by the FAA regional 
representative.
    (b) Authorization. Written authorization from an FAA Regional Flight 
Surgeon is required and will include instructions for forwarding the 
results of services rendered.
    (c) Care authorized. Subject to the provisions of Sec. 728.3, 
authorized personnel may be rendered chest x-rays, electrocardiograms, 
basic blood chemistries, and audiograms, without interpretation in 
support of the medical surveillance program for ATCS personnel 
established by the FAA.
    (d) Report. Complete and submit, per subpart J, a DD 7A (Report of 
Treatment Furnished Pay Patients, Outpatient Treatment, part B) 
outpatient care is rendered.



Sec. 728.59  Peace Corps beneficiaries.

    (a) Potential beneficiaries. (1) Applicants for the Peace Corps.
    (2) Peace Corps Volunteers.
    (3) Minor children of a Peace Corps volunteer living with the 
volunteer.
    (b) Care authorized in the United States. Upon written request of a 
Peace Corps official, stating care to be provided and disposition of 
reports, the following may be provided subject to the provisions of 
Sec. 728.3.
    (1) Physical examinations. Physical examinations are authorized on 
an outpatient basis only. Except for interpretation of x-rays, make no 
assessment of the physical qualifications of examinees.
    (i) Preselection physical examination may be provided applicants 
(volunteers) for the Peace Corps.
    (ii) Separation or other special physical examinations may be 
provided volunteers and their dependents as listed in paragraph (a)(3) 
of this section. Unless otherwise prescribed in written requests, report 
such examinations of Peace Corps volunteers on SF-88 and SF-93. Include:
    (A) Medical history and systemic review.
    (B) Chest x-ray with interpretation.
    (C) Complete urinalysis, serology, and blood type.
    (D) Pelvic examination and Pap smear for all female volunteers.
    (E) Hematocrit or hemoglobin for all females and for all males over 
40 years of age.
    (F) Electrocardiogram for all volunteers over 40 years of age.
    (2) Immunizations. Immunizations, as requested, may be provided all 
beneficiaries listed in paragraph (a) of this section.
    (3) Medical care. Both inpatient and outpatient care may be provided 
volunteers for illnesses or injuries occurring

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during their period of service which includes all periods of training. 
Dependents of volunteers specified in paragraph (a)(3) of this section 
are authorized care to the same extent as their sponsor.
    (4) Dental care. Limit dental care to emergencies. Render only that 
care essential to relieve pain or prevent imminent loss of teeth. All 
beneficiaries seeking dental care will be requested, whenever possible, 
to furnish advanced authorization.
    (c) Care authorized outside the United States--(1) Physical 
examinations. Termination physical examinations may be provided 
volunteers and eligible dependents of volunteers. In most instances, 
Peace Corps staff physicians will provide these examinations; however, 
help may be required of naval MTFs for ancillary services.
    (2) Immunizations. When requested, immunizations may be provided all 
beneficiaries listed in paragraph (a) of this section.
    (3) Medical care. When requested in writing by a representative or 
physician of a Peace Corps foreign service post, volunteers, eligible 
dependents of volunteers, and trainees of the Peace Corps may be 
provided necessary medical care at Peace Corps expense. When emergency 
treatment is rendered without prior approval, forward a request to the 
Peace Corps foreign service post as soon as possible.
    (4) Dental care. Limit dental care to emergencies. Render only that 
care essential to relieve pain or prevent imminent loss of teeth. All 
beneficiaries seeking dental care will be requested, whenever possible, 
to furnish advanced authorization.
    (5) Evacuation to the United States. When a beneficiary in an 
overseas naval MTF requires prolonged hospitalization, the commanding 
officer of the overseas facility will report the requirement to the 
nearest Peace Corps foreign service post and request authorization to 
return the patient to the United States. Releases custody of dependents 
to their sponsor when evacuation is declined. Aeromedical evacuation may 
be used per OPNAVINST 4630.25B. Travel of attendant(s) is authorized 
when the patient is too ill or too young to travel unattended.
    (d) Report. Complete and submit, per subpart J, a DD 7 (Report of 
Treatment Furnished Pay Patients, Hospitalization Furnished, part A) or 
DD 7A (Report of Treatment Furnished Pay Patients, Outpatient Treatment, 
part B) when outpatient or inpatient care is rendered.



Sec. 728.60  Job Corps and Volunteers in Service to America (VISTA) beneficiaries.

    (a) Beneficiaries. Job Corps and VISTA enrollees and Job Corps 
applicants may be provided services as set forth. For former members, 
see Sec. 728.53.
    (b) Authorization required--(1) Job Corps enrollees. Presentation of 
a Job Corps Identification Card after appointment has been made by the 
corpsmember's Job Corps center.
    (2) Job Corps applicants. Presentation of a letter from a screening 
agency (e.g., State Employment Service) after an appointment has been 
made by that agency.
    (3) VISTA Volunteers and VISTA Trainees. A ``Blue-Cross and Blue 
Shield Identification Card'' is issued to such personnel as 
identification. Each card has a VISTA identification number which will 
be used on all records and correspondence.
    (c) Care authorized. Normally, medical services are provided only 
when civilian of VA facilities are not available. or if available, are 
incapable of providing needed services. However, upon presentation of an 
appropriate authorization, the following services may be rendered 
subject to the provisions of Sec. 728.3.
    (1) Job Corps enrollees are authorized emergency medical care upon 
presentation of their Job Corps Identification Card; however, the 
corpsmember's Job Corps center should be notified immediately.
    (2) Job Corps applicants may be provided preenrollment physical 
examinations and immunizations on an outpatient basis only.
    (3) Job Corps enrollees, VISTA trainees, and VISTA volunteers are 
authorized:
    (i) Outpatient medical examinations, outpatient treatment, and 
immunizations.

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    (ii) Inpatient care for medical and surgical conditions which, in 
the opinion of the attending physician, will benefit from definitive 
care within a reasonable period of time. When found probable that a 
patient will require hospitalization in excess of 45 days, notify the 
Commander, Naval Medical Command (MEDCOM-33) by the most expeditious 
means.
    (iii) Limit dental care to emergencies. Render only that care 
essential to relieve pain or prevent imminent loss of teeth. 
Beneficiaries seeking dental care will be requested to furnish, whenever 
possible, advanced authorization.
    (d) Report. Complete and submit, per subpart J, a DD 7 (Report of 
Treatment Furnished Pay Patients, Hospitalization Furnished, part A) or 
DD 7A (Report of Treatment Furnished Pay Patients, Outpatient Treatment, 
part B) when outpatient or inpatient care is rendered.



Sec. 728.61  Medicare beneficiaries.

    (a) Care authorized. Emergency hospitalization and other emergency 
services are authorized for beneficiaries of the Social Security Health 
Insurance Program for the Aged and Disabled (Medicare) who reside in the 
50 United States and the District of Columbia, Guam, Puerto Rico, the 
Virgin Islands, American Samoa, and the Northern Mariana Islands. Such 
care in naval MTFs may be rendered when emergency services, as defined 
in Sec. 728.61(b), are necessary.
    (b) Emergency services. Services provided in a hospital emergency 
room after the sudden onset of a medical condition manifesting itself by 
acute symptoms of sufficient severity (including severe pain) such that 
the absence of immediate medical attention could reasonably be expected 
to result in:
    (1) Placing the patient's health in serious jeopardy.
    (2) Serious impairment to bodily functions of serious dysfunction of 
any bodily organ or part.
    (c) General provisions--(1) Limitations. Benefit payments for 
emergency services under Medicare can be made for only that period of 
time during which the emergency exists. Therefore, when the emergency is 
terminated and it is permissible from a medical standpoint, discharge or 
transfer the patient to a facility that participates in Medicare.
    (2) Notification. Notify the nearest office of the Social Security 
Administration as soon as possible when a Medicare beneficiary is 
rendered treatment.
    (d) Report. Complete and submit, per subpart J, a DD 7 (Report of 
Treatment Furnished Pay Patients, Hospitalization Furnished, part A) or 
DD 7A (Report of Treatment Furnished Pay Patients, Outpatient Treatment, 
part B) when outpatient or inpatient care is rendered.



                         Subpart G_Other Persons



Sec. 728.71  Ex-service maternity care.

    (a) Eligible beneficiaries. After separation from the service under 
honorable conditions because of pregnancy, or separated from the service 
under honorable conditions and found to have been pregnant at the time 
of separation, the following former members and their newborn infant(s) 
may be provided care as set forth below. The rendering of this care is 
subject to the provisions of Sec. 728.3. When certified by medical 
authorities that the pregnancy existed prior to entry into service 
(EPTE), maternity benefits are not authorized.
    (1) Former women members of the Army, Air Force, Navy, and Marine 
Corps.
    (2) On or after 12 August 1985, former women members of the 
Commissioned Corps of the United States Public Health Service (USPHS) 
and the National Oceanic and Atmospheric Administration (NOAA).
    (b) Care authorized. (1) Former women members may be rendered 
medical and surgical care in naval MTFs incident to that pregnancy, 
prenatal care, hospitalization, postnatal care, and, when requirements 
of SECNAVINST 6300.2A are met, abortions. Limit postnatal care to 6 
weeks following delivery. Do not promise civilian sources under any 
circumstances for either the mother or the infant as such care is not 
authorized.
    (2) Treatment of the newborn infant in USMTFs includes care, both 
inpatient and outpatient, only during the

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first 6 weeks (42 days) following delivery. If the newborn infant 
requires care beyond the 6-weeks postnatal period, the mother or other 
responsible family member must make arrangements for disposition to 
private, State, welfare, or another Federal facility.
    (c) Application for care. In making application for care authorized 
by this section, former women members should apply either in person or 
in writing to the Armed Forces inpatient MTF nearest their home and 
present either their DD 214 (Armed Forces of the United States Report of 
Transfer or Discharge) or DD 256A (Honorable Discharge Certificate) as 
proof of eligibility for requested care. In areas with more than one 
Armed Forces MTF available and capable of providing required care, 
application should be made to the MTF of the service from which 
separated, as applicable. Disengagement in such areas to MTFs of other 
services may be made only when space is not available or capability does 
not exist in the MTF of the services from which the individual was 
separated.
    (d) Charges and collection. Charges and reimbursement procedures for 
care rendered to beneficiaries in paragraph (a)(2) of this section are 
the same as prescribed by current regulations for active Coast Guard, 
USPHS, and NOAA members.



Sec. 728.72  Applicants for enrollment in the Senior Reserve Officers' Training Program.

    When properly authorized, designated applicants (including 
applicants for enrollment in the 2-year program and Military Science II 
enrollees applying for Military Science III) may be furnished medical 
examinations at naval MTFs including hospitalization necessary for the 
proper conduct thereof. Medical care, including hospitalization, is 
authorized for diseases contracted or injuries incurred in line of duty 
while at or traveling to or from a military installation for the purpose 
of undergoing medical or other examinations or for visits of 
observation.



Sec. 728.73  Applicants for enlistment or reenlistment in the Armed Forces, and applicants for enlistment in the reserve components.

    (a) Upon referral by a commander of a Military Enlistment Processing 
Station (MEPS), applicants will be furnished necessary medical 
examinations, including hospitalization when qualifications for service 
cannot otherwise be determined. Use the hospitalization period only for 
diagnostic purposes. Do not correct disqualifying defects.
    (b) Applicants who suffer injury or acute illness while awaiting or 
undergoing processing at Navy and Marine Corps facilities or MEPS may be 
furnished emergency medical and dental care, including emergency 
hospitalization, for that injury or illness.



Sec. 728.74  Applicants for appointment in the regular Navy or Marine Corps and reserve components, including members of the reserve components who apply for 
          active duty.

    (a) Necessary medical examinations may be furnished, including 
hospitalization when qualifications for service cannot otherwise be 
determined. Use such a period of hospitalization only for diagnostic 
purposes. Do not correct disqualifying defects.
    (b) Applicants who suffer injury or acute illness while awaiting or 
undergoing processing at Navy and Marine Corps facilities or MEPS may be 
furnished emergency medical and dental care, including emergency 
hospitalization, for that injury or illness.



Sec. 728.75  Applicants for cadetship at service academies and applicants for the Uniformed Services University of Health Sciences (USUHS).

    (a) Upon presentation of a letter of authorization from the 
Department of Defense Medical Examination Review Board (DODMERB), 
applicants for cadetship at Service Academies (Navy, Army, Air Force, 
Coast Guard, and Merchant Marine) and applicants for the Uniformed 
Services University of Health Sciences (USUHS) will be furnished medical 
examinations at facilities designated by the DODMERB. Hospitalization is 
authorized when qualifications for service cannot otherwise be 
determined. Use the hospitalization

[[Page 344]]

period for diagnostic purposes only, and not to correct disqualifying or 
other defects. Perform examinations and make disposition of completed 
forms per BUMEDINST 6120.3M.
    (b) Applicants who suffer injury or acute illness while awaiting or 
undergoing processing at Navy and Marine Corps facilities or at MEPS may 
be furnished emergency medical and dental care, including emergency 
hospitalization, for that injury or illness.



Sec. 728.76  Naval Home residents.

    Provide necessary medical and dental care, both inpatient and 
outpatient, to residents of the Naval Home when requested by the 
Governor of the Home. In an emergency, care may be rendered without 
prior approval of the Governor; however, the Governor of the Home should 
be contacted immediately and requested to furnish authorization.



Sec. 728.77  Secretarial designees.

    Subject to the capabilities of the professional staff and the 
availability of space and facilities, naval MTFs and DTFs will provide 
treatment to individuals that have been granted Secretarial designee 
status by any of the three service Secretaries (Navy, Army, or Air 
Force), the Secretary of Commerce for NOAA personnel, the Secretary of 
Health and Human Services for USPHS personnel, or the Secretary of 
Transportation for Coast Guard personnel.
    (a) Potential designees. Upon a showing of sufficient cause, the 
Secretary of the Navy may authorize individuals, not otherwise 
authorized by law, to receive such care as is available in naval MTFs in 
the United States. Designation may be extended on a worldwide basis for 
preadoptive children and wards of active duty members, and for abused 
dependents delineated in paragraph (a)(6) of this section. Temporary in 
loco parents or foster parent status of the member with regard to a 
minor is insufficient for approval. Also, civilian health care under the 
CHAMPUS program cannot be authorized for other than abused dependents. 
The Secretary's discretionary authority is exercised most 
conservatively, however, favorable action is usually taken on requests 
involving the following situations:
    (1) Preadoption proceedings wherein an active duty member or a 
retired member has taken affirmative legal action to adopt a child.
    (2) Custodianships and guardianships authorized by a court order 
wherein the member is designated by the court as the custodian or 
guardian and the child is fully dependent upon the active duty or 
retired member sponsor.
    (3) Evaluation and selection of nonbeneficiaries who are donor 
candidates for an organ or tissue transplant procedure in behalf of a 
military service beneficiary.
    (4) Nonbeneficiary participants in officially approved clinical 
research studies.
    (5) Unremarried former spouses who: Require care for a condition 
incurred during or caused/aggravated by conditions associated with the 
member's or former member's creditable service; do not qualify under the 
former spouses act; and do not have medical coverage under an employer-
sponsored health plan which will provide for the care required.
    (6) Abused dependents of discharged or dismissed former uniformed 
services members in need of medical or dental care resulting from 
knowledge of the abuse or for an injury or illness resulting from abuse 
by the former member. Eligibility will terminate the earliest of 1 year 
after the date on which the member is discharged or dismissed from a 
uniformed service, or when care is no longer needed.
    (7) In other instances wherein the circumstances clearly merit the 
providing of treatment in naval MTFs, and in which the best interest of 
the patient, the Navy, and the Government will be served, favorable 
Secretarial action may result. The mere need of medical care by a former 
beneficiary or other person, alone, will not support approval of such a 
request.
    (b) Requests for consideration. Requests for consideration will be 
submitted to the Commander, Naval Medical Command (MEDCOM-33) by 
applicants via their command, when applicable, or by the Medical 
Department command concerned. Requests should include any pertinent 
information

[[Page 345]]

which will support resolution and a return address. Requests involving:
    (1) Preadoption must include a legible reproducible copy of an 
interim court order or adoption agency placement agreement which names 
the sponsor and identifies the other participating parties. A petition 
for a court order is insufficient to support a recommendation for 
approval.
    (2) Custodianships and guardianships must include a legible 
reproducible copy of the court order, identification of the parties, and 
also identify any amounts of income to which the ward is entitled.
    (3) Participants in clinical research studies must include:
    (i) Sufficient clinical information concerning the nature of the 
study.
    (ii) Benefits which may accrue to the individual.
    (iii) The extent, if any, to which access by other authorized 
beneficiaries will be impaired.
    (iv) Benefits which will accrue to the command, e.g., enhancement of 
training, maximum use of specialized facilities, etc.
    (v) Recommended duration of designation.
    (vi) Whether the consenting individual has been informed concerning 
the nature of the study, its personal implications, and freely consents.
    (4) Unremarried former spouses must include:
    (i) A notarized copy of the marriage license.
    (ii) A statement attesting to the fact that the sponsoring former 
spouse achieved 20 or more years of creditable military service.
    (iii) Copy of divorce decree with official date.
    (5) Abused depdendents must include:
    (i) Full name, social security number, grade or rate, branch or 
service, and date and type of discharge or dismissal of the former 
member. Such a member must have received a dishonorable or bad-conduct 
discharge or dismissal from a uniformed service as a result of court-
martial conviction for an offense involving abuse of a dependent of the 
member.
    (ii) Full names, social security numbers (if assigned), and 
relationship to the former member of any dependent in need of medical or 
dental care to treat adverse health conditions resulting from such 
dependent's knowledge of the abuse or any injury or illness suffered by 
the abused person as a result of such abuse.
    (c) Blanket designation. (1) The Secretary of Defense has granted 
Secretarial designee status to full-time Schedule ``A'' faculty members 
of the Uniformed Services University of Health Sciences (USUHS). They 
have been provided documentation substantiating their eligibility and, 
where necessary, an eligibility termination date. These personnel are 
authorized routine care at the Naval Hospital, Bethesda, MD. At other 
naval MTFs, only emergency treatment is authorized while they are 
traveling on official university business. The letter of authorization 
excludes routine dental care, prosthetic appliances, and spectacles.
    (2) The following officials within the Government, the Department of 
Defense, and military departments have been granted blanket Secretarial 
designation for medical and emergency dental care in naval MTFs in the 
United States:
    (i) The President.
    (ii) The Vice President.
    (iii) Members of the Cabinet.
    (iv) Article III Federal Judges.
    (v) U.S. Court of Military Appeals Judges.
    (vi) Members of Congress.
    (vii) The Secretary, Deputy Secretary, and the Assistant Secretaries 
of Defense.
    (viii) The Under Secretary of Defense for Policy.
    (ix) The Under Secretary of Defense for Research and Engineering.
    (x) The Secretaries, Under Secretaries, and the Assistant 
Secretaries of the Military Departments.
    (d) Authorization. Designees will present a signed letter bearing 
the letterhead of the designating service. Secretarial designees are not 
included in the DEERS data base and may not possess Government 
identification cards. Therefore, the only proof of their eligibility for 
treatment may be the letter of authorization. When a Secretarial 
designee presents for treatment:

[[Page 346]]

    (1) Ask for identification of the individual presenting the letter 
of authorization to assure that the person seeking care is the 
individual to whom the letter was issued.
    (2) Check the expiration date on the letter of authorization. Many 
authorizations are issued for only a specified period of time, e.g., 
abused dependents--no longer than 1 year.
    (3) Check to assure that the individual is applying for care 
authorized by the letter of authorization. Designation is often granted 
for a specific diagnosis or specific mode of treatment.
    (4) Check to assure that the individual has not been designated for 
care only as specific facility. Many authorizations are granted for 
conditions or for care that can be rendered only by a specified 
physician or under a specific program.
    (5) Place a copy of the letter of authorization in the individual's 
Health Record or outpatient treatment record on the left side at the 
first visit or admission.
    (e) Charges and collection. (1) Interagency rates are applicable for 
inpatient and outpatient care provided outside the National Capital 
Region to all individuals listed in paragraph (c)(2) of this section 
with the exception of Members of Congress. Charges are at full 
reimbursement rates for Members of Congress provided inpatient or 
outpatient care outside the National Capital Region.
    (2) In the National Capital Region:
    (i) Charges are waived for outpatient care provided to all 
categories listed in paragraph (c)(2) of this section.
    (ii) Charge interagency rates for inpatient care of all individual 
in paragraph (c)(2) of this section except Members of Congress. Charge 
Members of Congress at full reimbursement rates.
    (3) Complete and submit, per subpart J, a DD 7 (Report of Treatment 
Furnished Pay Patients, Hospitalization Furnished, part A) or DD 7A 
(Report of Treatment Furnished Pay Patients, Outpatient Treatment, part 
B) when outpatient or inpatient care is rendered to Secretarial 
designees whose charges for care have not been waived.



Sec. 728.78  American Red Cross representatives and their dependents.

    (a) Potential beneficiaries. (1) Volunteer workers.
    (2) Full-time, paid employees.
    (3) Dependents of personnel enumerated in paragraph (a) (1) and (2) 
of this section when accompanying their sponsor outside the continental 
United States, including Alaska, Hawaii, and Puerto Rico.
    (b) Care authorized. (1) When services of the American Red Cross 
(ARC) have been accepted in behalf of the Federal Government under 
applicable DOD regulations, beneficiaries in paragraph (a)(1) of this 
section are considered ``employees'' of the Government for the purpose 
of this part and are authorized health care in USMTFs, both in and 
outside the United States for work-related conditions. See Sec. 
728.53(a)(2) regarding the specific application of this authorization.
    (2) Beneficiaries enumerated in paragraph (a) (1) and (2) of this 
section are authorized health care in USMTFs located outside the United 
States for both work and nonwork-related conditions. See Sec. 
728.53(a)(2) for treatment of work-related conditions of those in 
paragraph (a)(1) of this section.
    (3) Beneficiaries identified in paragraph (a) (1), (2), and (3) of 
this section are authorized emergency care in USMTFs outside the 
continental United States, including Alaska, Hawaii, and Puerto Rico 
where facilities are not otherwise available in reasonably accessible 
and appropriate non-Federal hospitals. Provide hospitalization only for 
acute medical and surgical conditions, exclusive of nervous, mental, or 
contagious diseases or those requiring domiciliary care. Routine dental 
care, other than dental prosthesis and orthodontia, is authorized on a 
space available basis provided facilities are not otherwise available in 
reasonably accessible non-Federal facilities.
    (c) Records disposal. Upon completion of treatment of accredited 
representatives of the American Red Cross or their dependents, forward 
medical records, including all clinical records and x-ray films, to the 
Medical Director, National Headquarters, American

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Red Cross, 20th and D Street NW., Washington, DC 20006.
    (d) Charges and collection. Charge beneficiaries in paragraph (a) 
(1) and (2) of this section the rate applicable to officer personnel and 
dependents in paragraph (a)(3) of this section the dependent rate. 
Complete and submit, per subpart J, a DD 7 (Report of Treatment 
Furnished Pay Patients, Hospitalization Furnished, part A) or DD 7A 
(Report of Treatment Furnished Pay Patients, Outpatient Treatment, part 
B) when outpatient or inpatient care is rendered to ARC personnel or to 
their dependents.



Sec. 728.79  Employees of Federal contractors and subcontractors.

    (a) Beneficiaries. (1) U.S. citizen contractor, engineering, and 
technical service personnel designated as U.S. Navy Technicians.
    (2) Civilian employees of contractors and subcontractors operating 
under U.S. Government contracts.
    (3) Dependents of personnel enumerated in paragraph (a) (1) and (2) 
of this section when accompanying their sponsor outside the continental 
United States or in Alaska.
    (b) Care authorized. (1) Beneficiaries identified in paragraph (a) 
(1) and (2) of this section may be provided emergency care in naval MTFs 
for illnesses and injuries occurring at work in or outside the United 
States.
    (2) While serving outside the continental United States or in 
Alaska, where facilities are not otherwise available in reasonably 
accessible and appropriate non-Federal facilities, beneficiaries 
identified in paragraph (a) (1), (2), and (3) of this section may 
receive hospitalization and necessary outpatient services in naval MTFs 
on a reimbursable basis. Except for beneficiaries in paragraph (a)(1) of 
this section who are serving aboard naval vessels, all others enumerated 
may only be hospitalized for acute medical and surgical conditions, 
exclusive of nervous, mental, or contagious diseases or those requiring 
domiciliary care. Routine dental care, other than dental prosthesis and 
orthodontia, is authorized on a space available basis provided 
facilities are not otherwise available in reasonably accessible and 
appropriate non-Federal facilities.
    (c) Charges and collection. Care is authorized on a reimbursable 
basis. Complete and submit, per subpart J, a DD 7 (Report of Treatment 
Furnished Pay Patients, Hospitalization Furnished, part A) or DD 7A 
(Report of Treatment Furnished Pay Patients, Outpatient Treatment, part 
B) when outpatient or inpatient care is rendered.



Sec. 728.80  U.S. Government employees.

    (a) Civil service employees of all Federal agencies, including 
teachers employed by Department of Defense Dependent's Schools (DODDS) 
and their dependents, may be provided hospitalization and necessary 
outpatient services, (other than occupational health services), on a 
reimbursable basis, outside the continental limits of the United States 
and in Alaska, where facilities are not otherwise available in 
reasonably accessible and appropriate non-Federal hospitals. Except for 
employees who are serving aboard naval vessels, hospitalization may be 
furnished only for acute medical and surgical conditions, exclusive of 
nervous, mental, or contagious diseases or those requiring domiciliary 
care. Routine dental care, other than dental prosthesis and orthodontia, 
is authorized on a space available basis provided facilities are not 
otherwise available in reasonably accessible and appropriate non-Federal 
facilities.
    (b) Such civilian employees and their dependents may be provided 
medical, surgical, dental treatment, hospitalization, and optometric 
care at installations in the United States which have been designated 
remote by the Secretary of the Navy for the purpose of providing medical 
care.
    (c) The major objective of the following programs for civil service 
employees, regardless of location, is emergency treatment for relief of 
minor ailments or injuries to keep the employee on the job:
    (1) The Department of Labor, Office of Workers' Compensation 
Programs (OWCP), governs the overall medical care program for employees 
of the Government who sustain injuries while in

[[Page 348]]

the performance of duty, including diseases proximately caused by 
conditions of employment (see Sec. 728.53).
    (2) Federal civil service employees and applicants for such 
employment are authorized services as outlined in chapter 22, section 
XIII, of the Manual of the Medical Department (MANMED). When 
appropriated fund and nonappropriated fund employees, including unpaid 
volunteer employees, require emergency and nonemergency occupational 
health services due to an illness or an injury on the job, provide this 
limited care through your occupational health service, emergency room, 
or evening primary care clinic, as appropriate. This care is rendered 
free of charge to the employee, the employee's command, or insurance 
carrier. Included with this group are Military Sealift Command (MSC) 
civilian marine personnel (authorized additional care and services as 
outlined in BUMINST 6320.52 and care under Sec. 728.53(a)(7)) and 
members of the National Oceanic and Atmospheric Administration (NOAA) 
serving with the Navy.
    (3) Under the technical control of the Surgeon General of the Army, 
the DOD Civilian Employees' Health Service is responsible for 
administering the health program for all Federal civil service employees 
in the District of Columbia area.
    (d) Care, other than occupational health services, is provided on a 
reimbursable basis. Complete and submit, per subpart J, a DD 7 (Report 
of Treatment Furnished Pay Patients, Hospitalization Furnished, part A) 
or DD 7A (Report of Treatment Furnished Pay Patients, Outpatient 
Treatment, part B) when outpatient or inpatient care is rendered.



Sec. 728.81  Other civilians.

    (a) General. In an emergency, any person may be rendered care in 
naval MTFs to prevent undue suffering or loss of life or limb. Limit 
care to that necessary only during the period of the emergency, and if 
further treatment is indicated, initiate action to transfer the patient 
to a private physician or civilian facility as soon as possible. 
Further, subject to the provisions of Sec. 728.3, the following 
personnel are authorized care as set forth.
    (b) Beneficiaries and extent of care. (1) Provide all occupational 
health services to civilian employees paid from nonappropriated funds, 
including Navy exchange employees and service club employees, free of 
charge (see Sec. 728.80(c)(2)). Provide treatment of occupational 
illnesses and injuries other than in emergencies per rules and 
regulations of the Office of Workers' Compensation Programs (see Sec. 
728.53).
    (2) Civilians attending the Federal Bureau of Investigation (FBI) 
Academy, Marine Corps Development and Education Command, Quantico, VA, 
may be rendered care at the Naval Medical Clinic, Quantico, VA, for 
emergencies. Such persons who are in need of hospitalization for 
injuries or disease may be hospitalized and classed as civilian 
humanitarian nonindigents with the approval of the cognizant hospital's 
commanding officer. Exception: Certain individuals, such as employees of 
the Federal Bureau of Investigation who are injured in the line of duty, 
may be entitled to care at the expense of the Office of Workers' 
Compensation Programs (OWCP) (see Sec. 728.53).
    (3) The following civilians who are injured or become ill while 
participating in Navy or Marine Corps sponsored sports, recreational or 
training activities may be rendered care on a temporary (emergency) 
basis until such time as disposition can be effected to another source 
of care.
    (i) Members of the Naval Sea Cadet Corps.
    (ii) Junior ROTC/NDCC (National Defense Cadet Corps) cadets.
    (iii) Civilian athletes training or competing as part of the U.S. 
Olympic effort.
    (iv) Civilians competing in Navy or Marine Corps sponsored 
competitive meets.
    (v) Members of Little League teams and Youth Conservation groups.
    (vi) Boy Scouts and Girl Scouts of America.
    (4) Other civilian personnel included below are not normally 
eligible for care in naval MTFs; however, under the conditions set 
forth, care may be rendered.
    (i) Potential beneficiaries.

[[Page 349]]

    (A) Civilian representatives of religious groups.
    (B) Educational institutions representatives.
    (C) Athletic clinic instructors.
    (D) USO representatives.
    (E) Celebrities and entertainers.
    (F) Social agencies representatives.
    (G) Others in a similar status to those in Sec. 728.81(b)(4)(i) (A) 
through (F).
    (H) News correspondents.
    (I) Commercial airline pilots and employees.
    (J) Volunteer workers. This category includes officially recognized 
welfare workers, other than Red Cross.
    (ii) Care authorized. (A) Persons enumerated in paragraph (b)(4)(i) 
(A) through (G) of this section, who are contracted to provide direct 
services to the Armed Forces and who are acting under orders issued by 
the Department of Defense or one of the military departments to visit 
military commands overseas, and their accompanying dependents, may be 
provided medical care in naval MTFs outside the 48 contiguous United 
States and the District of Columbia provided local civilian facilities 
are not reasonably available or are inadequate. Limit inpatient care to 
acute medical and surgical conditions exclusive of nervous, mental, or 
contagious diseases, or those requiring domiciliary care. Routine dental 
care, other than dental prostheses and orthodontia, is authorized on a 
space available basis outside the United States, provided such care is 
not otherwise available in reasonably accessible and appropriate non-
Federal facilities.
    (B) Persons enumerated in paragraph (b)(4)(i) (H) and (I) of this 
section are authorized emergency medical and dental care in naval MTFs 
outside the 48 contiguous United States and the District of Columbia 
provided local civilian facilities are not reasonably available or are 
inadequate.
    (C) Persons enumerated in paragraph (b)(4)(i)(J) of this section, 
both within and outside the 48 contiguous United States and the District 
of Columbia, may receive care in naval MTFs for injuries or diseases 
incurred in the performance of duty as beneficiaries of OWCP (see Sec. 
728.53). Additionally, if such volunteers are sponsored by an 
international organization (e.g., the United Nations) or by a voluntary 
nonprofit-relief agency registered with and approved by the Advisory 
Committee on Voluntary Aid (e.g., CARE), they may receive other 
necessary nonemergency medical care and occupational health services 
while serving outside the 48 contiguous United States and the District 
of Columbia.
    (c) Charges and collection. Care is provided on a reimbursable 
basis. Complete and submit, per subpart J, a DD 7 (Report of Treatment 
Furnished Pay Patients, Hospitalization Furnished, part A) or DD 7A 
(Report of Treatment Furnished Pay Patients, Outpatient Treatment, part 
B) when outpatient or inpatient care is rendered.



Sec. 728.82  Individuals whose military records are being considered for correction.

    Individuals who require medical evaluation in connection with 
consideration of their individual circumstances by the Navy, Army, and 
Air Force Board for Correction of Military Records are authorized 
evaluation, including hospitalization when necessary for the proper 
conduct thereof.



Sec. 728.83  Persons in military custody and nonmilitary Federal prisoners.

    (a) Potential beneficiaries. (1) Military prisoners.
    (2) Nonmilitary Federal prisoners.
    (3) Enemy prisoners of war and other detained personnel.
    (b) Care authorized--(1) Military prisoners. (i) Whose punitive 
discharges have been executed but whose sentences have not expired are 
authorized all necessary medical and dental care.
    (ii) Whose punitive discharges have been executed and who require 
hospitalization beyond expiration of sentences are not eligible for care 
but may be hospitalized as civilian humanitarian nonindigents until 
final disposition can be made to some other appropriate facility.
    (iii) On parole pending completion of appellate review or whose 
parole changes to an excess leave status following completion of 
sentence to confinement while on parole are members of the military 
service and as such are authorized care as outlined in subpart B.

[[Page 350]]

    (iv) On parole whose punitive discharge has been executed are not 
members of the military service and are therefore not entitled to care 
at Government expense. If the circumstances are exceptional, individuals 
herein who are not authorized care may request Secretarial designee 
status under the provisions of Sec. 728.77.
    (2) Nonmilitary Federal prisoners. Under the provisions of this 
section, nonmilitary Federal prisoners are authorized only emergency 
medical care. When such care is being rendered, the institution to which 
prisoners are sentenced must furnish necessary guards to effectively 
maintain custody of prisoners and assure the safety of other patients, 
staff members, and residents of the local area. Under no circumstances 
will military personnel be voluntarily used to guard or control such 
prisoners. Upon completion of emergency care, make arrangements for 
immediate transfer of the prisoners to a nonmilitary MTF or for return 
to the facility to which sentenced.
    (3) Enemy prisoners of war and other detained personnel. Subject to 
the provisions of Sec. 728.3, enemy prisoners of war and other detained 
personnel are entitled to and may be rendered all necessary medical and 
dental care.
    (c) Charges and collection. Care provided individuals enumerated in 
Sec. 728.83(b)(1) (ii), (iv), and (2) is on a reimbursable basis. 
Complete and submit, per subpart J, a DD 7 (Report of Treatment 
Furnished Pay Patients, Hospitalization Furnished, part A) or DD 7A 
(Report of Treatment Furnished Pay Patients, Outpatient Treatment, part 
B) when outpatient or inpatient care is rendered.



                   Subpart H_Adjuncts to Medical Care



Sec. 728.91  General.

    Adjuncts to medical care include but are not limited to prosthetic 
devices such as artificial limbs, artificial eyes, hearing aids, 
orthopedic footwear, spectacles, wheel chairs, hospital beds, and 
similar medical support items or aids which are required for the proper 
care and management of the condition being treated. Generally, expenses 
incurred for procurement of such items, either from civilian sources as 
supplemental care or from stocks maintained by the facility, are payable 
from operation and maintenance funds available for support of naval 
MTFs. However, certain adjuncts may be cost-shared under CHAMPUS for 
CHAMPUS-eligible individuals under circumstances enumerated in the 
cooperative care or services criteria of Sec. 728.4(z).



Sec. 728.92  Policy.

    (a) Provide adjuncts to medical care to eligible beneficiaries 
receiving inpatient or outpatient care when, in the opinion of the 
attending physician, such adjuncts will offer substantial assistance in 
overcoming the handicap or condition and thereby contribute to the well-
being of the beneficiary.
    (b) Unless necessary for humanitarian reasons, do not furnish 
orthopedic and prosthetic appliances on an elective basis to members of 
the naval service with short periods of service remaining when the 
defect requiring the appliance existed prior to entry into service and 
when such members will be separated from the service because of these 
defects.
    (c) For active duty members, make the initial allowance of 
orthopedic footwear and orthopedic alterations to standard footwear the 
same quantity as provided in the initial clothing allowance.
    (d) Base the number of orthopedic and prosthetic appliances issued 
or replaced for other authorized recipients upon the individual's 
requirements as determined by the attending physician to be consistent 
with the highest standards of modern medicine.
    (e) Former members of the uniformed service should be advised that 
they may obtain durable medical equipment, medical care, and adjuncts 
from Veterans Administration facilities.
    (f) Dependents are authorized certain adjuncts per Sec. Sec. 728.31 
(c) and (d) and in instances where items are not normally authorized at 
the expense of the Government, they may be provided at cost to the 
United States if available from Government stocks under the following 
conditions:
    (1) Outside the United States.

[[Page 351]]

    (2) At specific stations within the United States which have been 
authorized by the Secretary of the Navy to sell these items.



Sec. 728.93  Chart of adjuncts.

    The following chart and footnotes provide information relative to 
adjuncts which may be furnished the several categories of beneficiaries 
eligible for medical care at naval MTFs.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                    Others authorized the same
              Adjuncts                 Active duty and retired      benefits as active duty or     Dependents authorized the    Other beneficiaries(\8\)
                                               members                 retired members(\8\)              same benefits
--------------------------------------------------------------------------------------------------------------------------------------------------------
Ambulance service..................  Yes........................  Yes...........................  Yes(\1\)...................  No
Artificial eyes....................  Yes........................  Yes...........................  Yes........................  Maybe(\3\)
Artificial limbs...................  Yes........................  Yes...........................  Yes........................  Maybe(\3\)
Contact or special lenses(\1\\1\)..  Yes(\4\)...................  Yes(\4\)......................  Maybe(\2\) (\4\) (\6\).....  No
Crutches(\7\)......................  Yes........................  Yes...........................  Yes........................  Yes
Dental prostheses..................  Yes........................  Yes...........................  Maybe(\9\).................  Maybe(\9\)
Elastic stockings..................  Yes........................  Yes...........................  Yes........................  Yes
Hearing aids(\1\\0\)...............  Yes(\5\)...................  Yes(\5\)......................  Maybe(\2\).................  Maybe(\3\)
Hearing aid parts and batteries....  Yes(\1\\0\)................  Yes(\1\\0\)...................  Maybe(\2\) (\1\\0\)........  No
Hospital beds (\7\)................  Yes........................  Yes...........................  Yes........................  Yes
Joint braces.......................  Yes........................  Yes...........................  Yes........................  Yes
Orthopedic footware................  Yes........................  Yes...........................  Maybe(\2\).................  Maybe(\3\)
Prosthetic devices, other(\7\).....  Yes........................  Yes...........................  Maybe(\2\).................  No
Respirators and inhalators(\7\)....  Yes........................  Yes...........................  Yes........................  Yes(\1\)
Resuscitators (\7\)................  Yes........................  Yes...........................  Yes........................  Yes(\1\)
Spectacles.........................  Yes........................  Yes...........................  Maybe(\2\) (\6\)...........  No
Walking irons(\7\).................  Yes........................  Yes...........................  Yes........................  Yes
Wheel chairs(\7\)..................  Yes........................  Yes...........................  Yes........................  Yes
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ When considered medically appropriate by the attending physician.
\2\ See Sec.  728.92(f).
\3\ Outside the United States and at designated remote stations when considered medically appropriate by the attending physician.
\4\ Contact or special lenses are not to be issued solely for cosmetic reasons. Further guidelines are contained in NAVMEDCOMINST 6810.1.
\5\ In addition to the hearing aid, include in initial issue one spare receiver cord, approximately 1 month's supply of batteries, and a statement
  indicating make, model, type of receiver, serial number, code, part numbers, ``B'' battery voltage, and type of ``A'' and ``B'' batteries, as
  appropriate. Provide replacement of hearing aids upon the same basis as initial issue and, except in unusual circumstances, will not be replaced
  within 2 years of the initial furnishing or the last replacement of the appliance.
\6\ Spectacles, contact lenses, or intraocular lenses may be provided dependents with eye conditions which require these items for complete medical or
  surgical management of a condition other than ordinary refractive error. For further information, consult NAVMEDCOMINST 6810.1.
\7\ May be loaned on a custody basis at the discretion of the attending physician.
\8\ See subpart of this part relating to specific beneficiary.
\9\ When considered by the attending physician and dentist to be an adjunct to a medical or surgical condition other than dental and when in consonance
  with existing legislation and directives.
\10\ For further guidelines, consult BUMEDINST 6320.41B.
\11\ Includes intraocular lenses required for implantation upon removal of cataracts.



   Subpart I_Reservists_Continued Treatment, Return to Limited Duty, 
            Separation, or Retirement for Physical Disability



Sec. 728.101  General.

    (a) Notice of eligibility (NOE). While the NOE is basically a 
document that substantiates entitlement to a disability benefit equal to 
pay and allowances, it may be accepted when required to substantiate 
eligibility for benefits other than pay and allowances, i.e., treatment 
in USMTFs under the provisions of title 10, United States Code.
    (b) Physical disability benefits. The following, excerpted and 
paraphrased from SECNAVINST 1770.3, paragraph 10, is applicable when a 
reservist may be entitled to physical disability benefits.
    (1) When a notice of eligibility (NOE) has been issued to a member 
hospitalized in a naval MTF and the attending physician is of the 
opinion that recovery is not anticipated or that the reservist is not 
expected to be fit for return to full duty within a reasonable period, a 
medical board will be convened and the case managed the same as that of 
a Regular member. Assure that a copy of the NOE accompanies the medical 
board report forwarded to the Central Physical Evaluation Board.

[[Page 352]]

Disability benefits, equal to pay and allowances, will continue in such 
instances until final disposition.
    (2) There is no limited duty status, per se, for inactive 
reservists. However, if the attending physician determines that a 
reservist is temporarily unfit for full duty, but will be fit for full 
duty following a period of convalescence or following duty with physical 
limitations, not to exceed 6 months, the physician may return the 
reservist to duty with a summary of the hospitalization or treatment. 
The summary will set forth the limitations posed by the member's 
disability and the period of such limitations. Followup hospitalization, 
treatment, and evaluation for the same condition may be provided at 
USMTFs during the period of restricted duty, if required. If, during the 
period of the restricted duty, it appears that the reservist will be 
permanently unfit for full duty, promptly authorize the reservist to 
report for evaluation, treatment if required, and appearance before a 
medical board at the nearest naval MTF capable of accomplishing same. 
Admission to the sicklist is authorized, when required. Should the 
medical board recommend appearance before a physical evaluation board, 
disability benefits equal to pay and allowances should continue until 
final disposition is effected.



Sec. 728.102  Care from other than Federal sources.

    The provisions of this subpart do not authorize care for reservists 
at other than Federal facilities nor out of funds available for 
operation of USMTFs (supplemental care) after a period of active duty or 
a period of training duty ends, including travel to and from such 
training. Such care may be rendered under the provisions of part 732 of 
this chapter.



         Subpart J_Initiating Collection Action on Pay Patients



Sec. 728.111  General.

    The Comptroller of the Navy has approved a system of transactions 
that generates reports to COMNAV MEDCOM on unfunded reimbursable 
transactions. The purpose of the final report is to provide data on 
services furnished by naval health care facilities for which central 
collection from other Government agencies and private parties is 
required.



Sec. 728.112  Responsibilities.

    (a) Patient administration departments. The initiation of the 
collection process begins with patient administration departments. 
Collection action cannot be accomplished unless patient administration 
departments take the initial step to complete:
    (1) DD 7, Report of Treatment Furnished Pay Patients, 
Hospitalization Furnished (part A). Prepare a separate substantiating DD 
7, in triplicate, for each category of pay patient receiving inpatient 
care. At the end of each day that any pay patient is admitted, submit DD 
7's to the collection agent.
    (2) DD 7A, Report of Treatment Furnished Pay Patients, Outpatient 
Treatment Furnished (part B). Prepare a separate substantiating DD 7A, 
in triplicate, for each category of pay patient receiving outpatient 
care. At the end of each day that any pay patient is treated on an 
outpatient basis, submit DD 7A's to the collection agent.
    (b) Collection agents. Upon receipt of a completed DD 7 or DD 7A, 
collection agents will take the action indicated in paragraph 24304 of 
the Resource Management Handbook, NAVMED P-5020, to effect central 
collection action.



Sec. 728.113  Categories of pay patients.

    The categories of patients for whom collection action must be 
initiated are:
    (a) Coast Guard. (1) Active Officers; (2) Retired Officers; (3) 
Active Enlisted; (4) Retired Enlisted; (5) Dependents; (6) Cadets.
    (b) Public Health Service. (1) Active Officers; (2) Retired 
Officers; (3) Dependents of Officers.
    (c) National Oceanic and Atmospheric Administration (NOAA). (1) 
Active Officers; (2) Retired Officers; (3) Dependents of Officers.
    (d) Foreign. (1) NATO Officers (Except Canadians provided care under 
the comparable care agreement.); (2) NATO Enlisted (Except Canadians 
provided care under the comparable care agreement.); (3) NATO 
Dependents; (4) Civilians Accompanying NATO Members; (5) Foreign 
Military Sales (FMS) Officers;

[[Page 353]]

(6) FMS Enlisted; (7) FMS Dependents; (8) FMS Civilians; (9) Military 
Grant Aid Officers; (10) Military Grant Aid Enlisted; (11) Military 
Grant Aid Dependents; (12) Military Grant Aid Civilians; (13) Military 
Officers From Other Than NATO Nations; (14) Military Enlisted From Other 
Than NATO Nations; (15) Dependents of Officers and Enlisted From Other 
Than NATO Nations; (16) Civilians Accompanying Military Members of Other 
Than NATO Nations; (17) Nationals and Their Dependents.
    (e) Secretarial designees not exempted from paying.
    (f) Others. (1) Merchant Marines; (2) Military Sealift Command (MSC) 
Personnel; (3) Public Health Service beneficiaries (Other than 
Commissioned Corps); (4) Veterans Administration beneficiaries; (5) 
Peace Corps beneficiaries; (6) Job Corps beneficiaries; (7) Volunteers 
In Service to America (VISTA) beneficiaries; (8) Office of Workers 
Compensation Program (OWCP) beneficiaries; (9) Bureau of Employees 
Compensation (BEC) beneficiaries; (10) Department of State and Other 
Federal Agencies beneficiaries (prepare a separate form for each Federal 
agency); (11) Civilian Humanitarian Nonindigents (CHNI); (12) Trust 
Territory beneficiaries; (13) Others not specified above who are not 
entitled to health benefits at the expense of the Government.



PART 732_NONNAVAL MEDICAL AND DENTAL CARE--Table of Contents




                            Subpart A_General

Sec.
732.1 Background.
732.2 Action.

         Subpart B_Medical and Dental Care from Nonnaval Sources

732.11 Definitions.
732.12 Eligibility.
732.13 Sources of care.
732.14 Authorized care.
732.15 Unauthorized care.
732.16 Emergency care requirements.
732.17 Nonemergency care requirements.
732.18 Notification of illness or injury.
732.19 Claims.
732.20 Adjudication authorities.
732.21 Medical board.
732.22 Recovery of medical care payments.
732.23 Collection for subsistence.
732.24 Appeal procedures.

  Subpart C_Accounting Classifications for Nonnaval Medical and Dental 
               Care Expenses and Standard Document Numbers

732.25 Accounting classifications for nonnaval medical and dental care 
          expenses.
732.26 Standard document numbers.

    Authority: 5 U.S.C. 301; 10 U.S.C. 1071-1088, 5031, 6148, 6201-6203, 
and 8140; and 32 CFR 700.1202.

    Source: 52 FR 32297, Aug. 27, 1987, unless otherwise noted.



                            Subpart A_General



Sec. 732.1  Background.

    When a U.S. Navy or Marine Corps member or a Canadian Navy or Marine 
Corps member receives authorized care from other than a Navy treatment 
facility, care is under the cognizance of the uniformed service medical 
treatment facility (USMTF) providing care, the USMTF referring the 
member to another treatment source, or under the provisions of this 
part. If such a member is not receiving care at or under the auspices of 
a Federal source, responsibility for health and welfare, and the 
adjudication of claims in connection with their care, remains within the 
Navy Medical Department. Part 728 of this chapter and NAVMEDCOMINST 
6320.18 contain guidelines concerning care for other eligible 
beneficiaries, not authorized care by this part.



Sec. 732.2  Action.

    Ensure that personnel under your cognizance are made aware of the 
contents of this part. Failure to comply with contents may result in 
delayed adjudication and payment or may result in denial of Navy 
financial responsibility for expenses of maternity, medical, or dental 
care obtained.



         Subpart B_Medical and Dental Care From Nonnaval Sources



Sec. 732.11  Definitions.

    Unless otherwise qualified in this part the following terms when 
used throughout are defined as follows:

[[Page 354]]

    (a) Active duty. Full-time duty in the active military service of 
the United States. Includes full-time training duty; annual training 
duty; and attendance, while in the active military service, at a school 
designated as a service school by law or by the Secretary of the 
military department concerned.
    (b) Active duty for training. A specified tour of active duty for 
Reserves for training under orders that provides for automatic reversion 
to non-active duty status when the specified period of active duty is 
completed. It includes annual training, special tours, and the initial 
tour performed by enlistees without prior military service. The period 
of duty includes travel to and from training duty, not in excess of the 
allowable constructive travel time prescribed by SECNAVINST 1770.3 and 
paragraphs 10242 and 10243 of DOD Military Pay and Allowances 
Entitlements Manual.
    (c) Constructive return. For purposes of medical and dental care, an 
unathorized absentee's return to military control may be accomplished 
through notification of appropriate military authorities as outlined 
below.
    (1) For members in an unauthorized absentee (UA) status, 
constructive return to military control for the purpose of providing 
medical or dental care at Navy expense is effected when one of the 
following has occurred:
    (i) A naval activity informs a civilian provider of medical or 
dental care that the Navy accepts responsibility for a naval member's 
care. The naval activity providing this information must also provide 
documentation of such notification to the appropriate adjudication 
authority in Sec. 732.20.
    (ii) A member has been apprehended by civil authorities at the 
specific request of naval authorities and naval authorities have been 
notified that the member can be released to military custody.
    (iii) A naval member has been arrested, while in a UA status, by 
civil authorities for a civil offense and a naval authority has been 
notified that the member can be released to military control.
    (2) When a naval member has been arrested by civil authorities for a 
civil offense while in a UA status and the offense does not allow 
release to military control, constructive return is not accomplished. 
The individual is responsible for medical and dental care received prior 
to arrest and the incarcerating jurisdiction is responsible for care 
required after arrest.
    (d) Designated Uniformed Services Treatment Facilities (Designated 
USTFs). Under Pub. L. 97-99, the following facilities are ``designated 
USTFs'' for the purpose of rendering medical and dental care to all 
categories of individuals entitled to care under this part.
    (1) Sisters of Charity of the Incarnate Word Health Care System, 
6400 Lawndale, Houston, TX 77058 (713) 928-2931 operates the following 
facilities:
    (i) St. John Hospital, 2050 Space Park Drive, Nassau Bay, TX 77058, 
telephone (713) 333-5503. Inpatient and outpatient services.
    (ii) St. Mary's Hospital Outpatient Clinic, 404 St Mary's Boulevard, 
Galveston, TX 77550, telephone (409) 763-5301. Outpatient services only.
    (iii) St. Joseph Hospital Ambulatory Care Center, 1919 La Branch, 
Houston, TX 77002, telephone (713) 757-1000. Outpatient services only.
    (iv) St Mary's Hospital Ambulatory Care Center, 3600 Gates 
Boulevard, Port Arthur, TX 77640 (409) 985-7431. Outpatient services 
only.
    (2) Inpatient and outpatient services. (i) Wyman Park Health System, 
Inc., 3100 Wyman Park Drive, Baltimore, MD 21211, telephone (301) 338-
3693.
    (ii) Alston-Brighton Aid and Health Group, Inc., Brighton Marine 
Public Health Center, 77 Warren Street, Boston, MA 02135, telephone 
(617) 782-3400.
    (iii) Bayley Seton Hospital, Bay Street and Vanderbilt Avenue, 
Staten Island, NY 10304, telephone (718) 390-5547 or 6007.
    (iv) Pacific Medical Center, 1200 12th Avenue South, Seattle, WA 
98144, telephone (206) 326-4100.
    (3) Outpatient services only. (i) Coastal Health Service, 331 
Veranda Street, Portland, ME 04103 (207) 774-5805.
    (ii) Lutheran Medical Center, Downtown Health Care Services, 1313 
Superior Avenue, Cleveland, OH 44113, telephone (216) 363-2065.
    (e) Duty status. The situation of the claimant when maternity, 
medical, or

[[Page 355]]

dental care is received. Members, including reservists, on leave or 
liberty are considered in a duty status. Reservists, performing active 
duty for training or inactive duty training, are also considered in a 
duty status during their allowable constructive travel time to and from 
training.
    (f) Emergency care. Medical treatment of severe life threatening or 
potentially disabling conditions which result from accident or illness 
of sudden onset and necessitates immediate intervention to prevent undue 
pain and suffering or loss of life, limb, or eyesight and dental 
treatment of painful or acute conditions.
    (g) Federal facilities. Navy, Army, Air Force, Coast Guard, Veterans 
Administration, and USTFs (former U.S. Public Health Service facilities 
listed in Sec. 732.11(d).
    (h) Inactive duty training. Duty prescribed for Reserves by the 
Secretary of the Navy under Section 206 of Title 37, United States Code, 
or any other provision of law. Also includes special additional duties 
authorized for Reserves by an authority designated by the Secretary of 
the Navy and performed by Reserves on a voluntary basis in connection 
with the prescribed training or maintenance activities of units to which 
they are assigned.
    (i) Maternity emergency. A condition commencing or exacerbating 
during pregnancy when delay caused by referral to a uniformed services 
medical treatment facility (USMTF) or designated USTF would jeopardize 
the welfare of the mother or unborn child.
    (j) Member. United States Navy and Marine Corps personnel, 
Department of National Defence of Canada Navy and Marine Corps 
personnel, and Navy and Marine Corps personnel of other NATO Nations 
meeting the requirements for care under this part.
    (k) Non-federal care. Maternity, medical, or dental care furnished 
by civilian sources (includes State, local, and foreign MTFs).
    (l) Nonnaval care. Maternity, medical, or dental care provided by 
other than Navy MTFs. Includes care in other USMTFs, designated USTFs, 
VA facilities, as well as from civilian sources.
    (m) Office of Medical Affairs (OMA) or Office of Dental Affairs 
(ODA). Designated offices, under program management control of 
COMNAVMEDCOM and direct control of regional medical commands, 
responsible for administrative requirements delineated in this part. 
Responsibilities and functional tasks of OMAs and ODAs are outlined in 
NAVMEDCOMINST 6010.3.
    (n) Prior approval. Permission granted for a specific episode of 
necessary but nonemergent maternity, medical, or dental care.
    (o) Reservist. A member of the Naval or Marine Corps Reserve.
    (p) Supplemental care--(1) Operation and maintenance funds, Navy. 
Supplemental care of all uniformed services members, at Navy expense, 
encompasses only inpatient or outpatient care augmenting the capability 
of a naval MTF treating a member. Such care is usually obtained from 
civilian sources through referral by the treating naval MTF. If a 
member, authorized care under this part, is admitted to or is being 
treated on an outpatient basis at any USMTF, all supplemental care is 
the financial responsibility of that facility regardless of whether the 
facility is organized or authorized to provide needed health care. The 
cost of such care is chargeable to operation and maintenance funds 
(OM&N) available for operation of the USMTF requesting the care 
regardless of service affiliation of the member (see part 728 of this 
chapter for such care under Navy Medical Department facilities).
    (2) Nonnaval medical and dental care program funds. Adjudication 
authorities will pay claims, under this part, for care received as a 
result of a referral when:
    (i) A United States Navy or Marine Corps member or a Canadian Navy 
or Marine Corps member requires care beyond the capability of the 
referring USMTF and care is obtained for such a member not admitted to 
or not being treated on an outpatient basis by a USMTF, and
    (ii) The referring USMTF is not organized nor authorized to provide 
the needed health care.
    (3) Other uniformed services supplemental care programs. In addition 
to services that augment other USMTF's capabilities, supplemental care 
programs of the other uniformed services

[[Page 356]]

include care and services comparable to those authorized by this part, 
e.g., emergency care and pre-approved nonemergency care.
    (q) Unauthorized absence. Absence or departure without authority 
from a member's command or assigned place of duty.
    (r) Uniformed Services Medical Treatment Facilities (USMTF). Health 
care facilities of the Navy, Army, Air Force, Coast Guard, and the 
former U.S. Public Health Service facilities listed in paragraph (d) of 
this section designated as USTFs per DOD and Department of Health and 
Human Services directives.



Sec. 732.12  Eligibility.

    (a) Regular members. To be eligible for non-Federal medical, dental, 
or emergency maternity care at Government expense, Regular active duty 
United States naval members and Canadian Navy and Marine Corps members 
must be in a duty status when care is provided.
    (b) Reservists. (1) Reservists on active duty for training and 
inactive duty training, including leave and liberty therefrom, are 
considered to be in a duty status while participating in training. 
Accordingly, they are entitled to care for illnesses and injuries 
occurring while in that status.
    (2) Reservists are entitled to care for injuries and illnesses 
occurring during direct travel enroute to and from active duty training 
(ACDUTRA) and to and from inactive duty training.
    (c) NATO naval members. Naval members of the NATO Status of Forces 
Agreement (SOFA) nations of Belgium, Denmark, Federal Republic of 
Germany, France, Greece, Iceland, Italy, Luxembourg, the Netherlands, 
Norway, Portugal, Spain, Turkey, and the United Kingdom, are authorized 
outpatient care only under the provisions of this part when stationed in 
or passing through the United States in connection with official duties. 
Public Law 99-591 prohibits inpatient care of these foreign military 
members in the United States at the expense of the United States 
Government. The other NATO SOFA Nation, Canada, entered into a 
comparable care agreement with the United States requiring the United 
States to provide inpatient and outpatient care under the provisions of 
this part to members of the Department of National Defence of Canada 
receiving care in the United States.
    (d) Absent without authority. Naval members absent without authority 
during an entire episode of treatment are not eligible for non-Federal 
medical, dental, or emergency maternity care at Government expense. The 
only exception occurs when a member's illness or injury is determined to 
have been the direct cause of the unauthorized absentee status. In such 
an instance, eligibility will be:
    (1) Determined to have existed from the day and hour of such injury 
or illness provided the member was not in an unauthorized absentee 
status prior to the onset of the illness or injury and initiation of 
treatment.
    (2) Retained when the member is returned directly to military 
control.
    (3) Terminated should the member return to an unauthorized absentee 
status immediately after completion of treatment. Departmental level 
(MEDCOM-333 for medical and MEDCOM-06 for dental) review is required 
before benefits may be extended.
    (e) Constructive return. When constructive return, defined in Sec. 
732.11(c), is effected, entitlement will be determined to have existed 
from 0001 hours of the day of constructive return, not necessarily the 
day and hour care was initiated.



Sec. 732.13  Sources of care.

    (a) Initial application. If a member requires maternity, medical, or 
dental care and naval facilities are unavailable, make initial 
application to other available Federal medical or dental facilities or 
USTFs. When members are stationed in or passing through a NATO SOFA 
nation and U.S. facilities are unavailable, ensure that members make 
initial application for emergency and nonemergency care to military 
facilities of the host country, or if applicable, to civilian sources 
under the NATO SOFA nation's health care program. When hospitalized in 
Hawaii, Alaska, or in a foreign medical facility, members and 
responsible commands will comply with OPNAVINST 6320.6.

[[Page 357]]

    (b) Secondary sources. When either emergency or nonemergency care is 
required and there are no Federal or NATO SOFA facilities available, 
care may be obtained from non-Federal sources under this part.



Sec. 732.14  Authorized care.

    (a) Medical. (1) Consultation and treatment provided by physicians 
or at medical facilities, and procedures not involving treatment when 
directed by COMNAVMEDCOM, are authorized. Such care includes, but is not 
limited to: treatment by physicians, hospital inpatient and outpatient 
care, surgery, nursing, medicine, laboratory and x-ray services, 
physical therapy, eye examinations, etc. See Sec. 732.17 for prior 
approval of these services in nonemergency situations.
    (2) When transplant (including bone-marrow) is the treatment of 
choice, COMNAVMEDCOM approval is required. If time permits, telephone 
(A) 294-1102, (C) (202) 653-1102 during regular hours or (A) 294-1327, 
(C) 653-1327 after regular duty hours, and followup with a message. 
Request approval via message in nonemergency situations.
    (b) Maternity episode. If a member authorized care under this part 
qualifies for care under the provisions of Sec. 732.17(c) and delivers 
in a civilian hospital, routine newborn care (i.e., nursery, newborn 
examination, PKU test, etc.) is a part of the mother's admission 
expenses. Regardless of circumstances necessitating delivery in a 
civilian facility or how charges are separated on the bill, charges will 
be paid from funds available for care of the mother. If the infant 
becomes a patient in his or her own right--through an extension of the 
birthing hospital stay because of complications, transfer to another 
facility, or subsequent admission--the provisions of part 728 of this 
chapter and NAVMEDCOMINST 6320.18 are applicable, and the sponsor 
becomes responsible for a part of the medical expenses incurred.
    (c) Dental. (1) With prior approval, the following may be provided:
    (i) All types of treatment (including operative, restorative, and 
oral surgical) to relieve pain and abort infection.
    (ii) Prosthetic treatment to restore extensive loss of masticatory 
function or the replacement of anterior teeth for esthetic reasons.
    (iii) Repair of existing dental prostheses when neglect of the 
repair would result in unserviceability of the appliance.
    (iv) Any type of treatment adjunctive to medical or surgical care.
    (v) All x-rays, drugs, etc., required for treatment or care in 
paragraphs (c)(1) (i) through (iv) of this section.
    (2) In emergencies (no prior approval), only measures appropriate to 
relieve pain or abort infection are authorized.
    (d) Eye refractions and spectacles. Includes refractions of eyes by 
physicians and optometrists and furnishing and repairing spectacles.
    (1) Refractions. A refraction may be obtained from a civilian source 
at Government expense only when Federal facilities are not available, no 
suitable prescription is in the member's Health Record, and the 
cognizant OMA or referring USMTF has given prior approval.
    (2) Spectacles. When a member has no suitable spectacles and the 
lack thereof, combined with the delay in obtaining suitable ones from a 
Federal source would prevent performance of duty; repair, replacement, 
or procurement from a civilian source may be authorized upon initiation 
of an after-the-fact request per Sec. 732.17. Otherwise, the 
prescription from the refractionist, with proper facial measurements, 
must be sent for fabrication to the appropriate dispensing activity set 
forth in NAVMED COMINST 6810.1. See Sec. 732.15(g) concerning contact 
lenses.



Sec. 732.15  Unauthorized care.

    The following are not authorized by this part:
    (a) Chiropractic services.
    (b) Vasectomies.
    (c) Tubal ligations.
    (d) Breast augmentations or reductions.
    (e) Psychiatric care, beyond the initial evaluation.
    (f) Court ordered care.
    (g) Contact lenses.
    (h) Other elective procedures.

[[Page 358]]



Sec. 732.16  Emergency care requirements.

    Only in a bona fide emergency will medical, maternity, or dental 
services be obtained under this part by or on behalf of eligible 
personnel without prior authority as outlined below.
    (a) Medical or dental care. A situation where the need or apparent 
need for medical or dental attention does not permit obtaining approval 
in advance.
    (b) Maternity care. When a condition commences or exacerbates during 
pregnancy in a manner that a delay, caused by referral to a USMTF or 
USTF, would jeopardize the welfare of the mother or unborn child, the 
following constitutes indications for admission to or treatment at a 
non-Federal facility:
    (1) Medical or surgical conditions which would constitute an 
emergency in the nonpregnant state.
    (2) Spontaneous abortion, with first trimester hemorrhage.
    (3) Premature or term labor with delivery.
    (4) Severe pre-eclampsia.
    (5) Hemorrhage, second and third trimester.
    (6) Ectopic pregnancy with cardiovascular instability.
    (7) Premature rupture of membrames with prolapse of the umbilical 
cord.
    (8) Obstetric sepsis.
    (9) Any other obstetrical condition that, by definition, constitutes 
an emergency circumstance.



Sec. 732.17  Nonemergency care requirements.

    Members are cautioned not to obtain nonemergency care from civilian 
sources without prior approval from the cognizant adjudication authority 
in Sec. 732.20. Obtaining nonemergency care, other than as specified 
herein, without documented prior approval may result in denial by the 
Government of responsibility for claims arising from such care.
    (a) Individual prior approval. (1) Submit requests for prior 
approval of nonemergency care (medical, dental, or maternity) from non-
Federal sources to the adjudication authority (Sec. 732.20) serving the 
geographic area where care is to be obtained. When the requirements of 
Sec. 732.14(d)(2) are met and spectacles have been obtained, request 
after-the-fact approval per this paragraph.
    (2) Submit requests on a NAVMED 6320/10. Statement of Civilian 
Medical/Dental Care, with blocks 1 through 7 and 19 through 25 
completed. Assistance in completing the NAVMED 6320/10 can be obtained 
from the health benefits advisor (HBA) at the nearest USMTF.
    (3) Upon receipt, the adjudication authority will review the request 
and, if necessary, forward it to the appropriate chief of service with 
an explanation of non-Federal care regulations pertaining to the 
request. The chief of service will respond to the request within 24 
hours. The adjudication authority will then complete blocks 26 and 27, 
and return the original of the approved/disapproved NAVMED 6320/10 to 
the member.
    (b) Blanket prior approval. (1) Recruiting offices and other 
activities far removed from USMTFs, uniformed services dental treatment 
facilities (USDTFs), designated USTFs, and VA facilities may request 
blanket approval for civilian medical and dental care of assigned active 
duty personnel. Letter requests should be submitted to the adjudication 
authority (Sec. 732.20) assigned responsibility for the geographic area 
of the requestor.
    (2) With full realization that such blanket approval is an 
authorization to obligate the Government without individual prior 
approval, adjudication authorities will ensure that:
    (i) Each blanket approval letter specifies a maximum dollar amount 
allowable in each instance of care.
    (ii) The location of the activity receiving blanket approval 
authority is clearly delineated.
    (iii) Travel distance and time required to reach the nearest USMTF, 
USDTF, designated USTF, or VA facility have been considered.
    (iv) Certain conditions are specifically excluded, e.g., psychiatric 
care and elective surgical procedures. These conditions will continue to 
require individual prior approval.
    (v) COMNAVMEDCOM (MEDCOM-333) is made an information addressee on 
each letter of authorization.

[[Page 359]]

    (c) Maternity care. (1) Pregnant active duty members residing 
outside Military Health Services System (MHSS) inpatent catchment areas 
of uniformed services facilities (including USTFs), designated in 
Volumes I, II, and III of MHSS Catchment Area Directories, are permitted 
to choose whether to deliver in a closer civilian hospital or travel to 
a USMTF or USTF for delivery. If the Government is to assume financial 
responsibility for non-Federal maternity care of any member regardless 
of where she resides, the member must obtain individual prior approval 
as outlined in paragraph (a) of this section. Adjudication authorities 
should not approve requests from members residing within an inpatient 
MHSS catchment area unless:
    (i) Capability does not (did not) exist at the USMTF or other 
Federal MTF serving her catchment area.
    (ii) An emergency situation necessitated delivery or other treatment 
in a non-Federal facility (Sec. 732.16(b)).
    (2) Normal delivery at or near the expected delivery date should not 
be considered an emergency for members residing within an MHSS inpatient 
catchment area where delivery was expected to occur and, unless provided 
for in this part, will not be reason for delivery in a civilian facility 
at Government expense.
    (3) When granted leave that spans the period of an imminent 
delivery, the pregnant member should request a copy of her complete 
prenatal care records from the prenatal care physician. The physician 
should note in the record whether the member is clear to travel. If 
receiving prenatel care from a USMTF, the HBA will assist the member in 
obtaining a statement bearing the name of the MTF (may be an OMA) with 
administrative responsibility for the geographic area of her leave 
address, including the telephone number of the head of the patient 
administration department or HBA, if available. If a member is receiving 
prenatal care from other than a USMTF, she should avail herself of the 
services of the nearest HBA to effect the aforestated services. This 
statement should be attached to the approved leave request. In normal 
deliveries, requests for after-the-fact approval should be denied when 
members have not attempted to adhere to the provisions of this part.
    (4) Upon arrival at the designated leave address, members should 
contact the MTF indicated on the statement attached to their leave 
request. The MTF will make a determination whether the member's leave 
address falls within the inpatient catchment area of a USMTF or USTF 
with the capability of providing needed care. If no such USMTF or USTF 
exists, the member will be given the opportunity to choose to deliver in 
a civilian hospital closer to her leave address or travel to the most 
accessible USMTF or USTF with capability for maternity care.
    (5) Upon determination that civilian sources will be used for 
maternity care, the MTF listed on the attachment to the leave papers 
will inform the member that she (or someone acting in her behalf) must 
notify that MTF of the member's admission for delivery or other 
inpatient care so that medical cognizance can be initiated.
    (6) Automatically grant prior or retroactive approval, as the 
situation warrants, to members requiring maternity care while in a 
travel status in the execution of permanent change of station (PCS) 
orders.
    (d) Nonemergency care without prior approval. (1) If it becomes 
known that a member intends to seek medical or dental care (inpatient or 
outpatient) from a non-Federal source and prior approval has not been 
granted for the use of the Nonnaval Medical and Dental Care Program, the 
member must be counseled by, or in the presence of, a Medical Department 
officer. Request that the member sign a statement on an SF 600, 
Chronological Record of Medical Care, or an SF 603 or 603A, Health 
Record, Dental as appropriate, for inclusion in the member's Health 
Record. The statement must specify that counseling has been 
accomplished, and that the member understands the significance of 
receiving unauthorized civilian care. This must be accomplished when 
either personal funds or third party payor (insurance) funds are 
intended to be used to defray the cost of care. Counseling will include:
    (i) Availability of care from a Federal source.

[[Page 360]]

    (ii) The requirement for prior approval if the Government may be 
expected to defray any of the cost of such care.
    (iii) Information regarding possible compromise of disability 
benefits should a therapeutic misadventure occur.
    (iv) Notification that should hospitalization become necessary, or 
other time is lost from the member's place of duty, such lost time may 
be chargeable as ``ordinary leave.''
    (v) Notification that the Government cannot be responsible for out-
of-pocket expenses which may be required by the insurance carrier or 
when the member does not have insurance which covers the cost of 
contemplated care.
    (vi) Direction to report to a uniformed services medical officer 
(preferably Navy) upon completion of treatment for determination of 
member's fitness for continued service.
    (2) If it becomes known that a member has already received non-
Federal medical care without prior authorization, refer the member to a 
uniformed services medical officer (preferably Navy) to determine 
fitness for continued service. At this time, counseling measures 
delineated in paragraph (d)(1)(iii), (iv), and (v) of this section must 
be taken.



Sec. 732.18  Notification of illness or injury.

    (a) Member's responsibility. (1) If able, members must notify or 
cause their parent command, the nearest naval activity, or per OPNAVINST 
6320.6, the nearest U.S. Embassy or consulate when hospitalized in a 
foreign medical facility to be notified as soon as possible of the 
circumstances requiring medical or dental attention in a non-Federal 
facility. The member will also assure (request the facility to make 
notification if unable to do so personally) that the following 
information is passed to the adjudication authority serving the area of 
the source of care (Sec. 732.20). This notification is in addition to 
the requirements of article 4210100 of the Military Personnel Command 
Manual (MILPERSMAN) or Marine Corps Order 6320.3B, as appropriate. The 
adjudication authority will then arrange for transfer of the member and, 
if appropriate, newborn infant(s), to a Federal facility or for such 
other action as is appropriate.
    (i) Name, grade or rate, and social security number of patient.
    (ii) Name of non-Federal medical or dental facility rendering 
treatment.
    (iii) Date(s) of such treatment.
    (iv) Nature and extent of treatment or care already furnished.
    (v) Need or apparent need for further treatment (for maternity 
patients, need or apparent need for further care of infant(s) also).
    (vi) Earliest date on which transfer to a Federal facility can be 
effected.
    (vii) Telephone number of attending physician and patient.
    (2) Should movement be delayed due to actions of the member or the 
member's family, payment may be denied for all care received after 
provision of written notification by the adjudication authority.
    (3) The denial is Sec. 732.18(a)(2) will be for care received after 
the member's condition has stabilized and after the cognizant 
adjudication authority has made a request to the attending physician and 
hospital administration for the member's release from the civilian 
facility. This notification must specify:
    (i) Date and time the Navy will terminate its responsibility for 
payment.
    (ii) That care rendered subsequent to receipt of the written 
notification is at the expense of the member.
    (b) Adjudication authority. As soon as it is ascertained that a 
member is being treated in a nonnaval facility, adjudication authorities 
must make the notifications required in MILPERSMAN, article 4210100.11. 
See part 728 of this chapter on message drafting and information 
addressees.
    (1) Article 4210100.11 of the MILPERSMAN requires submission of a 
personnel casualty report, by priority message, to the primary and 
secondary next of kin (PNOK/SNOK) of Navy members seriously or very 
seriously ill or injured, and on those terminally ill (diagnosed and 
confirmed). While submission of the personnel casualty report to the 
PNOK and SNOK is a responsibility of the member's command, adjudication 
authorities must advise the member's command when such a member is being 
treated or diagnosed

[[Page 361]]

by non-Federal sources. The message will also request forwarding of the 
member's service and medical records to the personnel support detachment 
(PSD) supporting the activity in which the OMA is located. Additionally, 
the notification should contain a request for appropriate orders, either 
temporary additional duty (TEMADD) or temporary duty (TEMPDU).
    (i) Request TEMADD orders if care is expected to terminate within 
the time constraints imposed for these orders.
    (ii) Request TEMDU Under Treatment orders for members hospitalized 
in a NMTF within the adjudication authority's area of responsibility.
    (2) Make prompt message notification to the member's commanding 
officer when apprised of any medical condition, including pregnancy, 
which will now or in the foreseeable future result in loss of a member's 
full duty services in excess of 72 hours. Mark the message ``Commanding 
Officer's Eyes Only.''



Sec. 732.19  Claims.

    (a) Member's responsibility. Members receiving care are responsible 
for preparation and submission of claims to the cognizant adjudication 
authority identified in Sec. 732.20. A complete claim includes:
    (1) NAVMED 6320/10, Statement of Civilian Medical/Dental Care. In 
addition to its use as an authorization document, the original and three 
copies of a NAVMED 6320/10 are required to adjudicate claims in each 
instance of sickness, injury, or maternity care when treatment is 
received from a non-Federal source under the provisions of this part. 
The form should be prepared by a naval medical or dental officer, when 
practicable, by the senior officer present where a naval medical or 
dental officer is not on duty, or by the member receiving care when on 
detached duty where a senior officer is not present.
    (i) For nonemergency care with prior approval, submit the NAVMED 
6320/10 containing the prior approval, after completing blocks 8 through 
18.
    (ii) For emergency care (or nonemergency care without prior 
approval), submit a NAVMED 6320/10 after completing blocks 1 through 18. 
Assure that the diagnosis is listed in block 10. If prior approval was 
not obtained, state in block 11 circumstances necessitating use of non-
Federal facilities.
    (iii) Signature by the member in block 17 implies agreement for 
release of information to the responsible adjudication authority 
receiving the claim for processing. Signature by the certifying officer 
in block 18 will be considered certification that documentation has been 
entered in the member's Health Record as directed in article 16-24 of 
MANMED.
    (2) Itemized bills. The original and three copies of itemized bills 
to show:
    (i) Dates on or between which services were rendered or supplies 
furnished.
    (ii) Nature of and charges for each item.
    (iii) Diagnosis.
    (iv) Acknowledgment of receipt of the services or supplies on the 
face of the bill or by separate certificate. The acknowledgment must 
include the statement. ``Services were received and were satisfactory.''
    (3) Claims for reimbursement. To effect reimbursement, also submit 
the original and three copies of paid receipts and an SF 1164. Claim for 
Reimbursement for Expenditures on Official Business, completed per 
paragraphs 046377-2 a and b of the Naval Comptroller Manual (NAVCOMPT 
MAN).
    (4) Notice of eligibility (NOE) and line of duty (LOD) 
determination. When a reservist claims benefits for care received 
totally after the completion of either an active duty or active duty for 
training period, the claim should also include:
    (i) An NOE issued per SECNAVINST 1770.3.
    (ii) An LOD determination from the member's commanding officer.
    (b) Adjudicating authority's responsibility. Reviewing and 
processing properly completed claims and forwarding approved claims to 
the appropriate disbursing office should be completed within 30 days of 
receipt. Advice may be requested from COMNAVMEDCOM (MEDCOM-333 (A/V 294-
1127)) for medical or MEDCOM-06 (A/V 294-1250)) for dental on unusual or 
questionable instances of care. Advise claimants of

[[Page 362]]

any delay experienced in processing claims.
    (1) Review. The receiving adjudication authority will carefully 
review each claim submitted for payment or reimbursement to verify 
whether:
    (i) Claimant was entitled to benefits (i.e., was on active duty, 
active duty for training, inactive duty training, was not an 
unauthorized absentee, etc.). As required by part 728 of this chapter, a 
Defense Enrollment Eligibility Reporting System (DEERS) eligibility 
check must be performed on claims to all claimants required to be 
enrolled in DEERS.
    (ii) Care rendered was due to a bona fide emergency. (Note: When 
questions arise as to the emergency nature of care, forward the claim 
and all supporting documentation to the appropriate clinical specialist 
at the nearest naval hospital for review.)
    (iii) Prior approval was granted if a bona fide emergency did not 
exist. (Note: If prior approval was not obtained and the condition 
treated is determined to have been nonemergent, the claim may be 
denied.) Consideration should always be given to cases that would have 
received prior approval but, due to lack of knowledge of the program, 
the member did not submit a request.
    (iv) Care rendered was authorized under the provisions of this part.
    (v) Care rendered was appropriate for the specific condition 
treated. (NOTE: When questions arise regarding appropriateness of care, 
forward all documentation to a clinical specialist at the nearest naval 
hospital for review. If care is determined to have been inappropriate, 
the claim may be denied to the extent the member was negligent.)
    (vi) Claimed benefits did not result from a referral by a USMTF. If 
the member was an inpatient or an outpatient in a USMTF immediately 
prior to being referred to a civilian source of care, the civilian care 
is supplemental and may be the responsibility of the referring USMTF. 
See Sec. 732.11(p) for the definition of supplemental care.
    (2) Dispproval. If a determination is made to disapprove a claim, 
provide the member (and provider of care, when applicable) a prompt and 
courteous letter stating the reason for the disapproval and the 
appropriate avenues of appeal as outlined in Sec. 732.24.
    (3) Processing. Subpart C contains the chargeable accounting 
classifications and Standard Document Numbers (SDN) to be cited on the 
NAVCOMPT 2277, Voucher for Disbursement and/or Collection, on an SF 1164 
submitted per paragraph (a)(3) of this section, and on supporting 
documents of approved claims before submission to disbursing offices.
    (i) For payment to providers of care, a NAV COMPT 2277 will be 
prepared and certified approved for payment by the adjudicating 
authority. This form must accompany the NAVMED 6320/10 and supporting 
documentation per paragraph 046393-1 of the NAVCOMPTMAN.
    (ii) Where reimbursement is requested, the SF 1164 submitted per 
Sec. 732.19(a)(3) will be completed, per paragraph 046377 of the 
NAVCOMPTMAN, and certified approved for payment by the adjudicating 
authority. This form must accompany the NAVMED 6320/10 and supporting 
documentation.
    (c) Amount payable. Amounts payable are those considered reasonable 
after taking into consideration all facts. Normally, payment should be 
approved at rates generally prevailing within the geographic area where 
services or supplies were furnished. Although rates specially 
established by the Veterans Administration, CHAMPUS, or those used in 
Medicare are not controlling, they should be considered along with other 
facts.
    (1) Excessive charges. If any charge is excessive, the adjudication 
authority will advise the provider of care of the conclusion reached and 
afford the provider an opportunity to voluntarily reduce the amount of 
the claim. If this does not result in a proper reduction and the claim 
is that of a physician or dentist, refer the difference in opinions to 
the grievance committee of the provider's professional group for an 
opinion of the reasonableness of the charge. If satisfactory settlement 
of any claim cannot thus be made, forward all documentation to 
COMNAVMEDCOM (MEDCOM-333) for decision. Charges determined to be above 
the allowed amount or charges for unauthorized

[[Page 363]]

services are the responsibility of the service member.
    (2) Third party payment. Do not withhold payment while seeking funds 
from health benefit plans or from insurance policies for which premiums 
are paid privately by service members (see Sec. 732.22 for possible 
recovery of payments action).
    (3) No-fault insurance. In States with no-fault automobile insurance 
requirements, adjudication authorities will notify the insurance carrier 
identified in item 16 of the NAVMED 6320/10 that Federal payment of the 
benefits in this part is secondary to any no-fault insurance coverage 
available to the potentially covered member.
    (d) Duplicate payments. Adjudication authorities and disbursing 
activities should take precautions against duplicate payments per 
paragraph 046073 of the NAVCOMPTMAN.



Sec. 732.20  Adjudication authorities.

    (a) General. Controlling activities for medical care in the United 
States are designated as ``offices of medical affairs'' (OMA) and for 
dental care, ``offices of dental affairs'' (ODA). NAVMEDCOMINST 6010.3 
delineates responsibilities and functional tasks of OMAs and ODAs, 
including monthly reporting of receipt of claims and claims payment. 
Commanders of geographic naval medical commands must communicate with 
all activities in their regions to ensure that messages and medical 
cognizance reports are properly furnished per higher authority 
directives.
    (b) Within the United States (less Hawaii). For the 48 contiguous 
United States, the District of Columbia, and Alaska, the following six 
regions are responsible for care rendered or to be rendered within their 
areas of responsibility.
    (1) Northeast Region. The States of Connecticut, Delaware, Illinois, 
Indiana, Iowa, Kentucky, Maine, Massachusetts, Michigan, Minnesota, 
Missouri, New Hampshire, New Jersey, New York, Ohio, Pennsylvania, Rhode 
Island, Vermont, and Wisconsin are served by 1 ODA and 1 OMA:
    (i) Responsibility for dental matters for States in the Northeast 
Region is vested in: Commander, Naval Medical Command, Northeast Region, 
Office of Dental Affairs, Great Lakes, IL 60088, Tele: (A/V) 792-3940 or 
(C) (312) 688-3940.
    (ii) Responsibility for medical matters for States in the Northeast 
Region is vested in: Commander, Naval Medical Command, Northeast Region, 
Office of Medical Affairs, Great Lakes, IL 60088, Tele: (A/V) 792-3950 
or (C) (312) 688-3950.
    (2) National Capital Region. For the States of Maryland and West 
Virginia; the Virginia counties of Arlington, Fairfax, Loudoun, and 
Prince William; the Virginia cities of Alexandria, Falls Church, and 
Fairfax; and the District of Columbia, responsibility for medical and 
dental matters is vested in: Commander, Naval Medical Command, National 
Capital Region, Office of Medical Affairs, Bethesda, MD 20814, Tele: (A/
V) 295-5322 or (C) (301) 295-5322.
    (3) Mid-Atlantic Region. For the States of North Carolina, South 
Carolina, and all areas of Virginia south and west of Prince William and 
Loudoun counties, responsibility for medical and dental matters is 
vested in: Commander, Naval Medical Command, Mid-Atlantic Region, 6500 
Hampton Boulevard, Norfolk, VA 23502, Attn: Office of Medical/Dental 
Affairs, Tele: (A/V) 565-1074/1075 or (C) (804) 445-1074 or 1075.
    (4) Southeast Region. For the States of Alabama, Arkansas, Florida, 
Georgia, Louisiana, Mississippi, Oklahoma, Tennessee, and Texas, medical 
and dental responsibilities are vested in: Commanding Officer, Naval 
Medical Clinic, Code O1A, New Orleans, LA 70146, Tele: (A/V) 485-2406/7/
8 or (C) (504) 361-2406 2407 or 2408.
    (5) Southwest Region. For the States of Arizona and New Mexico; the 
counties of Kern, San Bernadino, San Luis Obispo, Santa Barbara, and all 
other California counties south thereof; the community of Bridgeport, 
California (Marine Corps cold-weather training site); and Nevada, except 
for NAS Fallon and its immediate area; medical and dental 
responsibilities are vested in: Commander, Naval Medical Command, 
Southwest Region, Office of Medical Affairs, San Diego, CA 92134-7000, 
Tele: (A/V) 987-2611 or (C) 233-2611.

[[Page 364]]

    (6) Northwest Region. The States of Alaska, Colorado, Idaho, Kansas, 
Montana, Nebraska, North Dakota, Oregon, South Dakota, Utah, Washington, 
and Wyoming; the counties of Inyo, Kings, Tulare, and all other counties 
of California north thereof; and NAS Fallon, Nevada and its immediate 
area are served by 2 OMAs and 1 ODA:
    (i) Responsibility for dental matters for the area of responsibility 
of the Northwest Region is vested in: Commander, Naval Medical Command, 
Northwest Region, Office of Dental Affairs, Oakland, CA 94267-5025, 
Tele: (A/V) 855-6200 or (C) (415) 633-6200.
    (ii) Responsibility for medical matters for the States of Colorado, 
Kansas, and Utah; the California counties of Inyo, Kings, Tulare, and 
all other counties of California north thereof; and NAS Fallon, Nevada 
and its immediate area is vested in: Commander, Naval Medical Command, 
Northwest Region, Oakland, CA 94627-5025, Attn: Office of Medical 
Affairs, Tele: (A/V) 855-5705 or (C) (415) 633-5705.
    (iii) Responsibility for medical matters for the States of Alaska, 
Idaho, Montana, Nebraska, North Dakota, Oregon, South Dakota, 
Washington, and Wyoming is vested in: Commanding Officer, Naval Medical 
Clinic, Naval Station, Seattle, WA 98115, Attn: Office of Medical 
Affairs, Tele: (A/V) 941-3823 or (C) (206) 526-3823.
    (c) Outside the United States (plus Hawaii). For all areas outside 
the United States plus Hawaii, the following activities are vested with 
responsibility for approval or disapproval of requests and claims for 
maternity, medical, and dental care:
    (1) Executive Director, OCHAMPUSEUR, U.S. Army Medical Command, APO 
New York 09102, for care rendered within the U.S. European Command, 
Africa, the Malagasy Republic, and the Middle East.
    (2) Commanding Officer, U.S. Naval Hospital, FPO San Francisco 
96652-1600 (U.S. Naval Hospital, Subic Bay, Luzon, Republic of the 
Philippines), for care rendered in Afghanistan, Bangladesh, Hong Kong, 
India, Nepal Pakistan, the Philippines, Southeast Asia, Sri Lanka and 
Taiwan.
    (3) Commanding Officer, U.S. Naval Hospital, FPO Seattle 98765-1600 
(U.S. Naval Hospital, Yokosuka, Japan), for care rendered in Japan, 
Korea, and Okinawa.
    (4) Commanding Officer, U.S. Naval Hospital, FPO San Francisco 
96630-1600 (U.S. Naval Hospital, Guam, Mariana Islands), for care 
rendered in New Zealand and Guam.
    (5) Commanding Officer, U.S. Naval Communications Station, FPO San 
Francisco 96680-1800 (U.S. Naval Communications Station, Harold E. Holt, 
Exmouth, Western Australia), for care rendered in Australia.
    (6) Commanding Officer, U.S. Naval Air Station, FPO New York 09560 
(U.S. Naval Air Station, Bermuda), for care rendered in Bermuda.
    (7) Commanding Officer, U.S. Naval Hospital, FPO Miami 34051 (U.S. 
Naval Hospital, Roosevelt Roads, Puerto Rico), for maternity and medical 
care, and Commanding Officer, U.S. Naval Dental Clinic, FPO Miami 34051 
(U.S. Naval Dental Clinic, Roosevelt Roads, PR), for dental care 
rendered in Puerto Rico, the Virgin Islands, and other Caribbean 
Islands.
    (8) Commanding Officer, Naval Medical Clinic, Box 121, Pearl Harbor, 
HI 96860, for maternity and medical care, and Commanding Officer, Naval 
Dental Clinic, Box 111, Pearl Harbor, HI 96860, for dental care rendered 
in the State of Hawaii, Midway Island, and the Central Pacific basin.
    (9) The OMA for either the Southeast Region or the Southwest Region 
for care rendered in Mexico to members stationed within the respective 
areas of responsibility of these OMAs. Forward claims for care rendered 
in Mexico to all other personnel to Commander, Naval Medical Command, 
Washington, DC 20372-5120 (MEDCOM-333).
    (10) Commander, Naval Medical Command, Washington, DC 20372-5120 
(MEDCOM-333) for inpatient and outpatient emergency and nonemergency 
care of active duty Navy and Marine Corps members in Canada and under 
the circumstances outlined in paragraph (d) of this section.
    (11) Outside the 50 United States, commanding officers of 
operational units may either approve claims and direct payment by the 
disbursing officer serving the command or forward

[[Page 365]]

claims to the appropriate naval medical command in paragraphs (b)(1) 
through (c)(9) of this section. This is a local policy decision to 
enhance the maintenance of good public relations.
    (12) The appropriate command in paragraphs (b)(1) through (c)(9) of 
this section for care rendered aboard commercial vessels en route to a 
location within the geographic areas listed.
    (13) The commanding officer authorizing care in geographical areas 
not specifically delineated elsewhere in this section.
    (d) The Commander, Naval Medical Command (MEDCOM-333), Navy 
Department, Washington, DC 20372-5120. Under the following 
circumstances, responsibility is vested in COMNAVMEDCOM for adjudication 
of claims:
    (1) For reservists who receive treatment after completion of their 
active duty or inactive duty training as prescribed in Sec. 732.12(b).
    (2) For care rendered in Mexico to personnel stationed outside the 
areas of responsibility of the Southeast and Southwest Regions.
    (3) For care rendered to members stationed in or passing through 
countries in Central and South America.
    (4) For outpatient care rendered NATO active duty members.
    (5) When Departmental level review is required prior to approval, 
adjudication, or payment. These claims:
    (i) Will be considered on appeal.
    (ii) Must be forwarded by the member through the adjudication 
authority chain of command (In instances of unusual or controversial 
denial of claims, the adjudication authority may forward claims to 
COMNAVMEDCOM on appeal, via the chain of command, with notification to 
the member.).
    (6) For all inpatient and outpatient care of active duty Navy and 
Marine Corps members stationed in the United States who receive care in 
Canada.



Sec. 732.21  Medical board.

    When adjudication authorities uncover conditions which may be 
chronic or otherwise potentially disabling, they should make a 
determination (with help from appropriate clinical specialists) as to 
the need for a medical board. Chapter 18 of MANMED and Medical 
Disposition and Physical Standards Notes, available from COMNAVMEDCOM 
(MEDCOM-25), provide guidance.
    (a) Chronic conditions requiring a medical board include (but are 
not limited to):
    (1) Arthritis,
    (2) Asthma,
    (3) Diabetes,
    (4) Gout,
    (5) Heart disease,
    (6) Hypertension,
    (7) Peptic ulcer disease,
    (8) Psychiatric conditions, and
    (9) Allergic conditions requiring desensitization.
    (b) Other potentially disabling or chronic conditions may be 
referred to a medical board by the adjudication authority with the 
concurrence of an appropriate naval clinical specialist and the 
commander of the regional medical command.



Sec. 732.22  Recovery of medical care payments.

    Adjudication authorities must submit evidence of payment to the 
action JAG designee per chapter 24 of the Manual of the Judge Advocate 
General (JAGMAN), in each instance of payment where a third party may be 
legally liable for causing the injury or disease treated, or when a 
Government claim is possible under workers compensation, no-fault 
insurance, or under medical payments insurance (all automobile accident 
cases).
    (a) To assist in identifying possible third party liability cases, 
item 16 of each NAVMED 6320/10 must be completed whenever benefits are 
received in connection with a vehicle accident. Adjudication authorities 
should return for completion, as applicable, any claim received without 
item 16 completed.
    (b) The front of a NAVJAG Form 5890/12 (Hospital and Medical Care, 
3rd Party Liability Case) must be completed and submitted by 
adjudication authorities with evidence of payment. Block 4 of this form 
requires an appended statement of the patient or an accident report, if 
available. To ensure that Privacy Act procedures are accomplished and 
documented, the person securing such a statement from a

[[Page 366]]

recipient of care must show the recipient the Privacy Act statement 
printed at the bottom of the form prior to securing such a statement. 
The member should be asked to sign his or her name beneath the 
statement.
    (c) For care rendered in States with no-fault insurance laws, comply 
with procedures outlined in Sec. 732.19(c)(3).



Sec. 732.23  Collection for subsistence.

    The Navy Pay and Personnel Procedures Manual provides guidance 
regarding pay account checkage procedures to liquidate subsistence 
charges incurred by members entitled to care under the provisions of 
this part. Such members must also be entitled to basic allowance for 
subsistence (BAS) while hospitalized at Government expense. The 
responsible activity (the adjudication authority or the naval MTF to 
which such a member is transferred) should follow procedures outlined in 
the Navy Pay and Personnel Procedures Manual when an eligible officer or 
enlisted member of the naval service is subsisted at Department of the 
Navy expense while hospitalized in a nonnaval treatment facility. 
Subpart C contains the creditable accounting classification for 
inpatient subsistence collections.



Sec. 732.24  Appeal procedures.

    When a claim for care or a request for prior approval for 
nonemergency care is initially denied by an adjudication authority, the 
member may appeal the denial as outlined below. Any level in the appeal 
process may over-rule the previous decision and order payment of the 
claim in whole or in part or grant the request for prior approval of 
care.
    (a) Level I--Reconsideration by the adjudication authority making 
the initial denial. The member should submit any additional information 
that may mitigate the initial denial.
    (b) Level II--Consideration by the commander of the regional medical 
command having cognizance over the adjudication authority which upheld 
the initial denial on reconsideration.
    (c) Level III--Consideration by COMNAVMEDCOM (MEDCOM-333).



  Subpart C_Accounting Classifications for Nonnaval Medical and Dental 
               Care Expenses and Standard Document Numbers



Sec. 732.25  Accounting classifications for nonnaval medical and dental care expenses.

----------------------------------------------------------------------------------------------------------------
                       OBJ.**
 Approp.    Sub-Head   Class     BCN   SA    AAA       TT         PAA           Cost Code            Purpose
----------------------------------------------------------------------------------------------------------------
  17*1804  188M           000   00018   M   000179  2D       MDQ000        990010000MDQ         Outpatient Care
                                                                                                 Service
                                                                                                 Expenses.\1,2\
  17*1804  188M           000   00018   M   000179  2D       MDT000        990010000MDT         Outpatient Care
                                                                                                 Supply
                                                                                                 Expenses.\1,3\
  17*1804  188M           000   00018   M   000179  2D       MDE000        990010000MDE         Ambulance
                                                                                                 Expenses.\1\
  17*1804  188M           000   00018   M   000179  2D       MDQI00        990020000MDQ         Inpatient Care
                                                                                                 Service
                                                                                                 Expense.\1,2\
  17*1804  188M           000   00018   M   000179  2D       MDTI00        990020000MDT         Inpatient Care
                                                                                                 Supply
                                                                                                 Expenses.\1,3\
  17*1804  188M           006   00018   M   000179  3C       MDZI00        990020000MDZ         Inpatient
                                                                                                 Subsistence
                                                                                                 Collections.\1\
----------------------------------------------------------------------------------------------------------------
Notes:

[[Page 367]]

 
*For the third digit of the appropriation, enter the last digit of the fiscal year current at the time claim is
  approved for payment.
**Refer to NAVCOMPT Manual par. 027003 for appropriate Expenditure Category Codes when disbursement or
  collection involves a foreign or U.S. Contractor abroad.
 
\1\ Not applicable when care is procured from non-DOD sources for a patient receiving either inpatient or
  outpatient care at a naval medical facility. In such instances, the expenses incurred are payable from
  operations and maintenance funds available for support of the naval medical facility.
\2\ Service expenses include: hospital, emergency room clinic, office fees; physician and dentist professional
  fees; laboratory, radiology, operating room, anesthesia, physical therapy, and other services provided.
\3\ Supply expenses include: medications and pharmacy charges; IV solutions; whole blood and blood products;
  bandages; crutches; prosthetic devices; needles and syringes; and other supplies provided.



Sec. 732.26  Standard document numbers.

    Adjudication authorities will assign to each claim approved for 
payment, a unique 15 position alpha/numeric standard document number 
(SDN). Prominently display this number on the NAVMED 6320/10, the 
NAVCOMPT 2277 (Voucher for Disbursement and/or Collection), NAVCOMPT 
1164 (Claim for Reimbursement for Expenditures on Official Business) and 
on all other documentation accompanying claims. Compose SNDs per the 
following example: N0016887MD00001 or N0016887RV00001.

 
                                                                  1      2 thru 6     7 & 8       9 & 10      11 thru 15
                                              Position Entry   ------------------------------------------------------------
                                                                  N       00168         87       MD or RV        00001
--------------------------------------------------------------------------------------------------------------------------------------------------------
 


------------------------------------------------------------------------
            Position                            Data entry
------------------------------------------------------------------------
1...............................  ``N'' identifies Navy.
2 thru 6........................  Unit Identification Code of document
                                   issuing activity.
7 and 8.........................  Last two digits of the fiscal year in
                                   which the claim is approved for
                                   payment.
9 and 10,.......................  For NAVCOMPT 2277s, ``MD'' identifies
                                   the document as Miscellaneous
                                   Financial Document.
 or,
9 and 10........................  For SF 1164s, ``RV'' identifies the
                                   document as a Reimbursement Voucher.
11 thru 15......................  Consecutively assigned five digit
                                   serial number beginning with
                                   ``00001'' each fiscal year. Each
                                   subsequent claim will then be
                                   serially numbered ``00002'',
                                   ``00003'', etc.
------------------------------------------------------------------------



PART 733_ASSISTANCE TO AND SUPPORT OF DEPENDENTS; PATERNITY COMPLAINTS--Table of Contents




Sec.
733.1 Rates of basic allowance for housing (BAH).
733.2 Delegations.
733.3 Information and policy on support of dependents.
733.4 Complaints of nonsupport and insufficient support of dependents.
733.5 Determination of paternity and support of illegitimate children.

    Authority: 5 U.S.C. 301; 10 U.S.C. 5013; 37 U.S.C. 101, 401, 403; 50 
U.S.C. App. 2210; E.O. 11157, 29 FR 7973, 3 CFR 1964 Supp. p. 139, as 
amended.

    Source: 44 FR 42190, July 19, 1979, unless otherwise noted.



Sec. 733.1  Rates of basic allowance for housing (BAH).

    (a) Except as otherwise provided by law, a member of the naval 
service entitled to basic pay is entitled to a BAH at the monthly rates 
according to the pay grade to which he or she is assigned, in accordance 
with 37 U.S.C. 403.
    (b) The term ``dependent'' with respect to a member of the naval 
service, as used in this part, means:
    (1) His or her spouse;
    (2) His or her unmarried child (including any of the following 
categories of children if such child is in fact dependent on the member: 
A stepchild; an adopted child; or an illegitimate child whose alleged 
member-parent has been judicially decreed to be the parent of the child 
or judicially ordered to

[[Page 368]]

contribute to the child's support, or whose parentage has been admitted 
in writing by the member) who either:
    (i) Is under 21 years of age; or
    (ii) Is incapable of self-support because of a mental or physical 
incapacity, and in fact dependent on the member for over one-half of his 
or her support; and
    (3) His or her parent (including a stepparent or parent by adoption, 
and any person, including a former stepparent, who has stood in loco 
parentis to the member at any time for a continuous period of at least 5 
years before he or she became 21 years of age) who is in fact dependent 
on the member for over one-half of his or her support; however, the 
dependency of such a parent is determined on the basis of an affidavit 
submitted by the parent and any other evidence required under 
regulations prescribed by the Secretary of the Navy, and he or she is 
not considered a dependent of the member claiming the dependency unless:
    (i) The member has provided over one-half of his or her support for 
the period prescribed by the Secretary; or
    (ii) Due to changed circumstances arising after the member enters on 
active duty, the parent becomes in fact dependent on the member for over 
one-half of is or her support.

The relationship between a stepparent and his or her stepchild is 
terminated by the stepparent's divorce from the parent by blood.

[44 FR 42190, July 19, 1979, as amended at 65 FR 62617, Oct. 19, 2000]



Sec. 733.2  Delegations.

    The Director, Navy Family Allowance Activity, Anthony J. Celebrezze 
Federal Building, Cleveland, OH 44199, with respect to personnel of the 
Navy, and the Head, Personal Affairs Branch, Manpower Department, 
Headquarters United States Marine Corps, Washington, DC 20380, with 
respect to personnel of the Marine Corps, have been granted the 
authority by the Secretary of the Navy to make determinations including 
determinations of dependency and relationship when required by 
legislation or policy for eligibility for BAH, transportation and 
medical care in behalf of dependents of Navy and Marine personnel and to 
administer matters involving adequacy of support for dependents and 
waivers of support of a spouse, and on the basis of new evidence or for 
other good cause to reconsider or modify any such determination.

[44 FR 42190, July 19, 1979, as amended at 65 FR 62617, Oct. 19, 2000]



Sec. 733.3  Information and policy on support of dependents.

    (a) Policy--(1) General. The naval service will not be a haven or 
refuge for personnel who disregard or evade their obligations to their 
families. All members of the naval service are expected to conduct their 
personal affairs satisfactorily. This includes the requirement that they 
provide adequate and continuous support for their lawful dependents and 
comply with the terms of separation agreements and court orders. Failure 
to do so which tends to bring discredit on the naval service is a proper 
subject of command consideration for initiation of court-martial 
proceedings or other administrative or disciplinary action.
    (2) Adequacy of support. Every member has an inherent natural and 
moral obligation to support his or her spouse and family. What is 
adequate and reasonably sufficient support is a highly complex and 
individual matter dependent on numerous factors, and may be resolved 
permanently only in the civil courts. Salient factors that should be 
considered are the pay of the member, any other private income or 
resources of the member and the dependents, the cost of necessities and 
every day living expenses and financial obligations of the dependents, 
and the expenses and other financial obligations of the member in 
relation to his or her income. The Department of the Navy does not and 
cannot act as a court in these matters. It is desired that the amount of 
support to be provided for dependents either be established by mutual 
understanding between the parties concerned or adjudicated in the civil 
courts. The support scales set forth in paragraphs (b) and (c) of this 
section are not intended as a fixed rule. They are intended as 
guidelines and the actual support may be increased or decreased as the 
facts and circumstances warrant

[[Page 369]]

until the amount of support to be furnished is settled by agreement of 
the parties or adjudicated by the civil courts. Because of the inherent 
arbitrary and temporary nature of the support scales set forth below, it 
is not intended that they be used as bases for any judicial proceedings, 
for to do so would lend excessive credence to administrative tools which 
have been designed for use only within the Navy and the Marine Corps.
    (b) Navy members. (1) The amount of support to be provided in the 
absence of a mutual agreement or court order is as follows:

For spouse only--\1/3\ gross pay
For spouse and one minor child--\1/2\ gross pay
For spouse and two or more children--\3/5\ gross pay
For one minor child--\1/6\ gross pay
For two minor children--\1/4\ gross pay
For three or more children--\1/3\ gross pay

    (2) For purposes of this support guide, gross pay will include basic 
pay and BAH, but does not include hazardous duty pay, sea or foreign 
duty pay, incentive pay, or basic allowance for subsistence.
    (3) Support of a lawful wife. The laws of jurisdictions in the 
United States impose a legal obligation upon a husband to support his 
wife. Exemptions from support of a lawful wife may be in the form of an 
order of a civil court of competent jurisdiction, relinquishment by the 
wife or mutual agreement of the parties, or a waiver of the naval 
support requirement granted by the Director, Navy Family Allowance 
Activity or the Commandant of the Marine Corps, as appropriate.
    (4) Payments of alimony. Dependents for whom basic allowance for 
quarters or other allowances are payable are defined by law. For 
purposes of qualifying for basic allowance for quarters, medical care or 
other benefits, a former spouse is not a dependent even though alimony 
has been decreed. Members are expected to comply with the terms of court 
orders or divorce decrees which adjudge payments of alimony even though 
basic allowance for quarters is not payable.
    (5) Support of children. The duty of a member to support his or her 
minor children is not affected by desertion or other misconduct on the 
part of the spouse. The obligation to support a child or children is not 
affected by dissolution of the marriage through divorce, unless the 
judicial decree or order specifically negates the obligations of the 
member to support a child or children of the marriage. The fact that a 
divorce decree is silent relative to support of minor children or does 
not mention a child or children will not be considered as relieving the 
service member of the inherent obligation to provide support for the 
child or children of the marriage. In many cases, the courts may not be 
cognizant of the existence of a child or children, or may not have 
jurisdiction over the child or children. A commanding officer has 
discretion to withhold action for alleged failure to support a child 
under the following conditions:
    (i) Where the member cannot ascertain the whereabouts and welfare of 
the child concerned.
    (ii) Where it is apparent that the person requesting support for a 
child does not have physical custody of the child.
    (iii) Where the member has been granted custody of the child by 
court order but does not have physical control of the child and the 
member is ready, willing, and able to care for and support the child if 
physical control is obtained.
    (6) Adopted children. The natural parents of an adopted child are 
relieved of the obligation to support the child as such duty is imposed 
on the adoptive parents. A Navy or Marine Corps member who contemplates 
the adoption of a child should be aware of the legal obligation to 
provide continuous support for such child during minority.
    (7) Entitlement to basic allowance for quarters. Entitlement of 
members to basic allowance for quarters on behalf of dependents is 
provided by statute. No member should be denied the right to submit a 
claim or application for basic allowance for quarters, nor should any 
command refuse or fail to forward any such claim or application. In 
cases involving parents, the member should furnish an estimate of the 
dependency situation to the best of his or her knowledge. Commanding 
officers should not contact parents for dependency information to 
include in the member's application. This delays the

[[Page 370]]

application and serves no useful purpose, as such cases are thoroughly 
investigated by the Navy Family Allowance Activity or Headquarters 
Marine Corps, which obtains necessary dependency affidavits directly 
from the parents. Any person, including a service member or dependent 
who obtains an allowance by fraudulent means is subject to criminal 
prosecution.
    (8) Application of the rule based on Robey v. United States 71 Ct. 
Cl. 561. Determinations that no dependency exists may be made in 
disputed cases--if a member does not contribute to the support of spouse 
and child at least to the extent of:
    (i) The full amount of his/her basic allowance for quarters, or
    (ii) An amount specified in a court order or legal separation 
agreement, or
    (iii) An amount agreed to by the parties as acceptable, adequate 
support, whichever is lesser. Pertinent decisions of the Court of Claims 
or Comptroller General will be followed in determinations of dependency.
    (c) Marine Corps members. (See MCO 5800.16A, Marine Corps Manual for 
Legal Administration (LEGADMINMAN))
    (1) In the absence of a court order or a written agreement between 
the parties as to an amount of support to be furnished by the Marine, 
the following shall apply to establish interim support requirements. 
Note that gross pay is defined as basic pay and BAH, but does not 
include hazardous duty pay, incentive pay, or basic allowance for 
subsistence.
    (2) Single family. (i) For a single family living in Government 
housing (civilian spouse): interim support shall be $200.00 per 
supported person, up to a maximum of \1/3\ gross pay, per month.
    (ii) For a single family not living in Government housing (civilian 
spouse): interim support shall be either $200.00 per supported family 
member, or BAH at the ``with dependents'' rate, whichever is greater, up 
to a maximum of \1/3\ gross pay, per month.
    (3) Multiple families (not including a spouse in the armed forces). 
Interim support for each family member shall be either $200.00 per 
supported family member, or the pro rata share of BAH at the ``with 
dependents'' rate, whichever is greater, up to a maximum of \1/3\ gross 
pay, per month.
    (4) Both spouses in the armed forces. (i) No children of the 
marriage: no support obligation, regardless of any disparities in pay 
grade.
    (ii) All the children of the marriage in the custody of one spouse: 
interim support shall be either $200.00 per supported child, or BAH at 
the ``with dependents'' rate, whichever is greater, up to a maximum of 
\1/3\ gross pay, per month.
    (iii) If custody of children of the marriage is divided between the 
two parents: interim support shall be either $200.00 per supported 
family member, or the pro rata share of BAH at the ``with dependents'' 
rate, whichever is greater, up to a maximum of \1/3\ gross pay, per 
month.
    (5) Support amounts required pursuant to this section will be paid 
until a court order or written agreement is obtained.
    (6) Form and timing of financial support payments
    (i) Unless otherwise required by court order or by written financial 
support agreement, a financial support payment will be made in one of 
the following ways:
    (A) Check.
    (B) Money order.
    (C) Electronic transfer.
    (D) Voluntary allotment.
    (E) Cash.
    (F) Involuntary allotment.
    (G) Garnishment.
    (ii) As an exception to paragraph 15002.6a of the LEGADMINMAN, a 
commanding officer may direct compliance with the financial support 
requirements of this section by making in-kind financial support. For 
example, paying non-Government housing expenses on behalf of family 
members, automobile loans, or charge accounts.
    (7) Alimony and child support. (i) Dependents for whom BAH or other 
allowances are payable are defined by law. For purposes of qualifying 
for BAH, medical care, or other benefits, a former spouse is not a 
dependent even though alimony has been decreed. Marines are expected to 
comply with the terms of court orders which adjudge alimony payments 
(even though BAH is not payable) until the responsibility

[[Page 371]]

for compliance is terminated by a court of competent jurisdiction; a 
written agreement between the persons concerned; relinquishment by the 
former spouse in writing; or the waiver of the support requirement is 
granted by the general court-martial (GCM) authority in writing.
    (ii) If the decree is silent as to alimony payments, it is presumed 
that the court did not intend such payments.
    (iii) When a valid court order exists and the Marine concerned is 
financially unable to comply, the Marine will be advised that 
noncompliance with the terms of that order renders the Marine liable to 
further civil court action.
    (iv) The duty of Marines to support their minor children is not 
terminated by desertion or other misconduct on the part of the Marine's 
spouse. Similarly, the obligation to support a child or children is not 
eliminated or reduced by the dissolution of the marriage through 
divorce, unless a judicial decree or order specifically negates the 
obligation of child support. The fact that a divorce decree is silent 
relative to support of minor children, or does not mention a child or 
children, will not be interpreted by command authorities as relieving 
the Marine of the inherent obligation to provide support for the child 
or children of the marriage.
    (v) A commanding officer may consider releasing a Marine under his/
her command from the specific requirements of this regulation in the 
situations described below. A commanding officer may reconsider any 
prior decision made by himself/herself or by a prior commanding officer:
    (A) When the Marine cannot determine the whereabouts and welfare of 
the child concerned;
    (B) When it is apparent that the person requesting support for the 
child does not have physical custody of the child;
    (C) When the Marine has been the victim of a substantiated instance 
of physical abuse (this section applies only to a requirement to support 
a spouse, not dependent children. Commanding officers are strongly 
encouraged to consult the installation family counseling center 
concerning such issues. In addition, commanders should exercise extreme 
caution in denying dependent support in cases where the servicemember is 
also a perpetrator of spousal abuse.); or
    (D) The dependent is in jail.
    (vi) All command directed support waivers shall be in writing and a 
copy shall be provided to the disenfranchised family member by the 
command. The command shall also retain a copy. Alleged verbal support 
waivers shall be given no force or effect.
    (vii) The natural parents of an adopted child are relieved of the 
obligation to support the child as such duty is imposed on the adoptive 
parent. A Marine who contemplates the adoption of a child should be 
aware of the legal obligation to provide continuous support, once 
adopted, for such child during its minority.

[44 FR 42190, July 19, 1979, as amended at 65 FR 62617, Oct. 19, 2000]



Sec. 733.4  Complaints of nonsupport and insufficient support of dependents.

    (a) Upon receipt of a complaint alleging that a member is not 
adequately supporting his or her lawful dependents (spouse or children), 
the member will be interviewed and informed of the policy of the 
Department of the Navy concerning support of dependents. In the absence 
of a determination by a civil court or a mutual agreement of the 
parties, the applicable guide in Sec. 733.3 will apply. The member will 
be informed that his/her Navy or Marine Corps career may be in jeopardy 
if he/she does not take satisfactory action. The member may become 
ineligible to reenlist or extend enlistment (in the case of enlisted 
members), and may be subject to administrative or disciplinary action 
that may result in separation from the Navy or Marine Corps.
    (1) Waiver of support of spouse. If the member feels that he or she 
has legitimate grounds for a waiver of support for the spouse, the 
Director, Navy Family Allowance Activity or in the case of a member of 
the U.S. Marine Corps, the general court-martial convening authority, 
may grant such a waiver for support of a spouse (but not children) on 
the basis of evidence of desertion without cause or infidelity on

[[Page 372]]

the part of the spouse. The evidence may consist of--
    (i) U.S. Navy members. An affidavit of the service member, relative, 
disinterested person, public official, or law enforcement officer, and 
written admissions by the spouse contained in letters written by that 
spouse to the service member or other persons. However, affidavits of 
the service member and relatives should be supported by other 
corroborative evidence. All affidavits must be based upon the personal 
knowledge of the facts set forth; statements of hearsay, opinion, and 
conclusion are not acceptable as evidence.
    (ii) U.S. Marine Corps members. The Marine's commander may consider 
all pertinent facts and circumstances. The general court-martial 
convening authority my consider any reliable evidence including, but not 
necessarily limited to, the following: affidavits of the Marine, 
relatives, or other witnesses; admissions of the spouse, including 
verbal and written statements or letters written by the spouse to the 
Marine or other persons; pertinent photographs or court orders; and 
admissions by the person with whom the spouse allegedly had sexual 
liaisons. Witness statements should ordinarily state facts that were 
personally observed. Statements that merely state a conclusion without 
providing the personal observations on which the conclusion is based are 
generally unpersuasive.
    (iii) The request for waiver of support of a spouse should be 
submitted to the Director, Navy Family Allowance Activity or in the case 
of a member of the U.S. Marine Corps, the general court-martial 
convening authority, with a complete statement of the facts and 
substantiating evidence, and comments or recommendations of the 
commanding officer.
    (2) Action. After a written complaint that a member has failed or 
refused to furnish support for his or her spouse or children has been 
received, and the member has been counseled with regard to his/her 
rights and obligations in the support matter, continued failure or 
refusal, without justification, to furnish support for dependents in 
accordance with the provisions of a valid court order, written 
agreement, or, in the absence of a court order or agreement, the 
appropriate support guide set forth above, will be a basis for 
consideration of disciplinary or administrative action which may result 
in the member's separation from active service.
    (b) [Reserved]

[44 FR 42190, July 19, 1979, as amended at 65 FR 62618, Oct. 19, 2000]



Sec. 733.5  Determination of paternity and support of illegitimate children.

    (a) Illegitimate children. If the service member desires marriage, 
leave for this purpose is recommended whenever consistent with the needs 
or exigencies of the service. When the blood parents of an illegitimate 
child marry, the child is considered to be legitimized by the marriage 
unless a court finds the child to be illegitimate.
    (b) Judicial order or decree of paternity or support. Normally any 
order or decree which specifies the obligation to render support of 
illegitimate children will include within it a determination of 
paternity of such children; however, some jurisdictions provide for 
determinations of the legal obligation to support illegitimate children 
without a determination of paternity. Either type of order or decree 
falls within the scope of this paragraph. If a judicial order or decree 
of paternity or support is rendered by a United States or foreign court 
of competent jurisdiction against a member of the Navy or Marine Corps 
on active duty, the member concerned will be informed of his moral and 
legal obligations as well as his legal rights in the matter. The member 
will be advised that he is expected to render financial assistance to 
the child regardless of any doubts of paternity that the member may 
have. If the court order or decree specifies an amount of support to be 
provided the member will be expected to comply with the terms of such 
decree or order. If no amount is specified, support should be rendered 
in accordance with such reasonable agreement as may be made with the 
mother or legal guardian of the child or, in the absence of such 
agreement, in accordance with the applicable guide set forth above. If 
the member refuses to comply with the

[[Page 373]]

terms of the court order, administrative action will be taken as 
indicated in Sec. 733.4.
    (1) Court of competent jurisdiction. A court of competent 
jurisdiction is generally a court that has jurisdiction over the subject 
matter and the parties involved. As a general rule, the competency of 
the court to render the judicial order or decree may be tested by the 
enforceability of the order or decree. Normally, although not always, 
personal service of the court's process on the member is considered 
essential. With respect to a foreign judicial order or decree, the 
general rule is that where the defendant was a citizen or subject of the 
foreign country in which the order or decree was issued, the court may 
have acquired jurisdiction over the member by any mode of service or 
notice recognized as sufficient by the laws of that country. It should 
be noted, however, that an order or decree against a citizen or 
permanent resident of another country, without personal service or 
personal notice of the action to him or her, is null and void unless the 
member voluntarily submitted to the jurisdiction by appearing and 
contesting the action. In the event there is doubt as to the competency 
of the court to enter the order or decree, the question shall be 
referred to the Judge Advocate General.
    (2) [Reserved]
    (c) Nonjudicial determination. In the absence of an adjudication of 
paternity or of a court-ordered obligation to furnish support, the 
member shall be privately consulted and asked, where appropriate, 
whether he or she admits either paternity of, or the legal obligation to 
support, the child or expected child. If the answer is affirmative, the 
member shall be informed that he or she is expected to furnish support 
as set forth in paragraph (b) of this section. Where paternity or the 
legal obligation to support is admitted by a male member, such member 
should be informed of his moral obligation to assist in the payment of 
prenatal expenses.
    (d) Members not on active duty. Allegations of paternity against 
members of the naval service who are not on active duty will be 
forwarded to the individual concerned in such a manner as to insure that 
the charges are delivered to the addressee only. The correspondence 
should be forwarded via the commandant of the naval district in which 
the member resides.
    (e) Former members. (1) If a certified copy of a judicial order or 
decree of paternity or support duly rendered by a United States or 
foreign court of competent jurisdiction against a former member of the 
Navy or Marine Corps is submitted, his or her last-known address will be 
furnished to the complainant with return of the correspondence and court 
order. The complainant will be informed of the date of discharge and 
advised that the individual concerned is no longer a member of the Navy 
or Marine Corps in any capacity.
    (2) Where there has been no court adjudication, the correspondence 
will be returned to the complainant with an appropriate letter stating 
that the individual is no longer a member of the Navy or the Marine 
Corps in any capacity and giving the date of his or her discharge or 
final separation except that the last-known address of the former member 
shall be furnished to the claimant if the complaint against the former 
member is supported by a document which establishes that the former 
member has made an admission or statement acknowledging paternity or 
responsibility for support of a child before a court of competent 
jurisdiction, administrative or executive agency, or official authorized 
to receive it. In cases where the complaint, along with the 
corroboration of a physician's affidavit, alleges and explains an 
unusual medical situation which makes it essential to obtain information 
from the alleged father in order to protect the physical health of 
either the prospective mother or the unborn child, the last-known 
address of the former member shall likewise be furnished to the 
claimant.

[44 FR 42190, July 19, 1979, as amended at 65 FR 62618, Oct. 19, 2000]

[[Page 374]]



PART 734_GARNISHMENT OF PAY OF NAVAL MILITARY AND CIVILIAN PERSONNEL FOR COLLECTION OF CHILD SUPPORT AND ALIMONY--Table of Contents




Sec.
734.1 Purpose.
734.2 Scope.
734.3 Service of process.
734.4 Responsibilities.
734.5 Administrative procedures.

    Authority: 42 U.S.C. 659 (Social Security Act, sec. 459 added by 
Pub. L. 93-647, part B, sec. 101(a), 88 Stat. 2357, as amended by the 
Tax Reform and Simplification Act of 1977, Pub. L. 95-30, title V, sec. 
502, 91 Stat. 157).

    Source: 44 FR 42193, July 19, 1979, unless otherwise noted.



Sec. 734.1  Purpose.

    This part prescribes responsibilities and procedures applicable in 
the Department of the Navy when processsing and honoring legal process 
brought for the enforcement of legal obligations to provide child 
support or make alimony payments under 42 U.S.C. 659 (Social Security 
Act, section 459 added by Pub. L. 93-647, part B, sec. 101(a), 88 Stat. 
2357, as amended by the Tax Reform and Simplification Act of 1977, Pub. 
L. 95-30, title V, sec. 502, 91 Stat. 157).



Sec. 734.2  Scope.

    The provisions of this part shall apply to legal process affecting 
any Federal pay administered by the Department of the Navy and due and 
payable to all categories of naval military or civilian personnel 
including personnel of Navy or Marine Corps nonappropriated-fund 
activities. This part is not applicable to legal process affecting 
entitlements administered by other agencies, such as civilian employees' 
retirement benefits administered by the Office of Personnel Management 
or compensation administered by the Veterans Administration.

[44 FR 42193, July 19, 1979, as amended at 47 FR 28371, June 30, 1982]



Sec. 734.3  Service of process.

    (a) It is the policy of the Department of the Navy to respond 
promptly to legal process addressed to naval officials. Service of legal 
process affecting the pay of Department of the Navy personnel shall be 
made on the following designated officials in the manner and in the 
circumstances specified below:
    (1) Navy members. Process affecting the military pay of active duty, 
Reserve, Fleet Reserve, or retired Navy members, wherever serving or 
residing, may be served personnally or by registered or certified mail, 
return receipt requested, on the Director, Navy Family Allowance 
Activity, Anthony J. Celebrezze Federal Building, Room 967, Cleveland, 
Ohio 44199.
    (2) Marine Corps members. 42 U.S.C. 659 provides that pay of a 
servicemember, active duty or retired, shall be subject to legal process 
brought for the enforcement against such member of legal obligations to 
provide child support or alimony payments. ``Legal process'' means any 
writ, order, summons, or other similar process in the nature of 
garnishment. Upon receipt of such legal process, it will be forwarded 
directly to: Defense Finance and Accounting Service, Cleveland Center, 
Garnishment Operations Directorate (DFAS-CL/L), P.O. Box 998002, 
Cleveland, Ohio 44199-8002. The letter of transmittal will state the 
date of service and method by which service was made. Detailed 
instructions for disbursing officers and commanding officers are 
contained in DFAS-KC 7220.31-R, chapter 7.
    (3) Civilian Employees. Process affecting the pay of active civilian 
employees of the Department of the Navy:
    (i) If currently employed at Navy or Marine Corps activities 
(including nonappropriated-fund instrumentalities) or installations 
situated within the territorial jurisdiction of the issuing court, such 
process may be served personally, or by registered or certified mail, 
return receipt requested, on the commanding officer or head of such 
activity or installation, or principal assistant specifically designated 
in writing by such official.
    (ii) In other cases involving civilian employees, such process may 
be served personally or by registered or certified mail, return receipt 
requested, in the manner indicated below:
    (A) If pertaining to civil service personnel of the Navy or Marine 
Corps,

[[Page 375]]

such process may be served on the Director of Civilian Personnel Law, 
Office of the General Counsel, Navy Department, Washington, DC 20390.
    (B) If pertaining to non-civil service civilian personnel of Navy 
Exchanges or related nonappropriated-fund instrumentalities administered 
by the Navy Resale System Office, such process may be served on the 
Commanding Officer, Navy Resale System Office, Attention: Industrial 
Relations Officer, 29th Street and Third Avenue, Brooklyn, New York 
11232.
    (C) If pertaining to non-civil service civilian personnel of Navy 
clubs, messes, or recreational facilities (non-appropriated funds), such 
process may be served on the Chief of Naval Personnel, Director, 
Recreational Services Division (Pers/NMPC-72), Washington, DC 20370.
    (D) If pertaining to non-civil service civilian personnel of other 
nonappropriated-fund instrumentalities which fall outside the purview of 
the Chief of Naval Personnel or the Commanding Officer, Navy Resale 
Systems Office, such as locally established morale, welfare, and other 
social and hobby clubs, such process may be served on the commanding 
officer of the activity concerned.
    (E) If pertaining to non-civil service civilian personnel of any 
Marine Corps nonappropriated-fund instrumentalities, such process may be 
served on the commanding officer of the activity concerned.
    (b) The Department of the Navy officials designated above are 
authorized to accept service of process within the purview of 42 U.S.C. 
659 (Social Security Act, sec. 459 added by Pub. L. 93-647, part B, sec. 
101(a), 88 Stat. 2357, as amended by the Tax Reform and Simplification 
Act of 1977, Pub. L. 95-30, title V, sec. 502, 91 Stat. 157). Where 
service of process is offered to an official not authorized to accept it 
under paragraph (a) of this section, the person offering such service 
shall be referred to the appropriate official designated in paragraph 
(a) of this section.

[44 FR 42193, July 19, 1979, as amended at 65 FR 62619, Oct. 19, 2000]



Sec. 734.4  Responsibilities.

    (a) Designated officials. Within their respective areas of 
cognizance as set forth in Sec. 734.3, the designated officials are 
responsible for the following functions with regard to legal process:
    (1) Sending such notifications and directions to the member 
concerned and his or her commanding officer as may be required.
    (2) Obtaining or providing an appropriate review by qualified legal 
counsel.
    (3) Taking or directing actions, temporary and final, as are 
necessary to comply with 42 U.S.C. 659, as amended (see Sec. 734.3(b)), 
the MCO 5800.16A, Marine Corps Manual for Legal Administration 
(LEGADMINMAN), Navy Comptroller Manual, and the court's order in the 
case, and
    (4) Apprising the cognizant United States Attorney of the Department 
of the Navy's disposition, as required, and, in coordination with the 
Judge Advocate General, effecting liaison with the Department of Justice 
or United States Attorneys in instances of noncompliance with process or 
other circumstances requiring such action.
    (b) Command responsibility. (1) The Commanding officer of the member 
or employee concerned shall, upon receipt of notification from the 
appropriate designated official, ensure that the member or employee has 
received written notification of the pendency of the action and that the 
member or employee is afforded counseling concerning his or her 
obligations in the matter, and legal assistance if applicable, in 
dealing with the legal action to affect his or her Federal pay. The 
commanding officer shall comply with the directions of the designated 
official in responding to the legal process.
    (2) For the purposes of this part, the Director, Navy Family 
Allowance Activity, Cleveland, Ohio, will function as the commanding 
officer with regard to retired Navy military personnel and members of 
the Fleet Reserve.
    (c) Legal services. The Judge Advocate General is responsible for 
the following functions pertaining to legal process within the purview 
of this part:
    (1) Providing overall technical direction and guidance, as required, 
for all Department of the Navy military and

[[Page 376]]

civilian attorneys engaged in reviewing such process or advising on its 
disposition.
    (2) Ensuring, as Director, Naval Legal Sevice, the availability of 
attorneys in Naval Legal Service Offices who are qualified to advise and 
assist the designated officials concerning the disposition of legal 
process, and
    (3) Where required, ensuring effective liaison with the Department 
of Justice or United States Attorneys.

[44 FR 42193, July 19, 1979, as amended at 65 FR 62619, Oct. 19, 2000]



Sec. 734.5  Administrative procedures.

    The designated officials specified in Sec. 734.3, shall, in 
consultation with the Judge Advocate General and Commander, Navy 
Accounting and Finance Center or the Commandant of the Marine Corps 
(FD), as appropriate, establish procedures for effectively executing 
their assigned responsibilities. Implementing procedures shall conform 
with 42 U.S.C., 659, as amended, the MCO 5800.16A, Marine Corps Manual 
for Legal Administration (LEGADMINMAN), the Navy Comptroller Manual, and 
the Federal Personnel Manual.

[44 FR 42193, July 19, 1979, as amended at 65 FR 62619, Oct. 19, 2000]



PART 735_REPORTING BIRTHS AND DEATHS IN COOPERATION WITH OTHER AGENCIES--Table of Contents




Sec.
735.1 Purpose.
735.2 Background.
735.3 Action.

    Authority: 70A Stat. 278; 80 Stat. 379, 383; 5 U.S.C. 301, 552; and 
10 U.S.C. 5031.

    Source: 51 FR 15321, Apr. 23, 1986, unless otherwise noted.



Sec. 735.1  Purpose.

    To promulgate latest guidance on reporting births and deaths, 
including births to which part 138 of this title is applicable.



Sec. 735.2  Background.

    For Armed Forces members and their dependents on duty overseas, 
registration of vital statistics with an appropriate foreign government 
may be a distinct advantage should documentary evidence, acceptable in 
all courts, be required at any future time. Department of Defense (DOD) 
policy is that military services will require their members to make 
official record of births, deaths, marriages, etc., with local civil 
authorities in whose jurisdiction such events occur.



Sec. 735.3  Action.

    When a medical officer has knowledge of a birth or death occurring 
under the following conditions, he or she shall refer the matter to the 
commanding officer for assurance of compliance with DOD policy.
    (a) Births. (1) In accordance with local health laws and 
regulations, the commanding officer of a naval hospital in the United 
States (U.S.) shall report to proper civil authorities all births, 
including stillbirths, occurring at the hospital. Medical officers on 
ships and aircraft operating within U.S. political boundaries, or at 
stations other than naval hospitals in the U.S., shall report all births 
occurring within their professional cognizance. It shall be the duty of 
the medical officer to determine the requirements of local civil 
authorities for these reports.
    (2) When births occur on aircraft or ships operating beyond U.S. 
political boundaries, the medical officer responsible for delivery shall 
make a report to the commanding officer, master of the ship, or to the 
officer in command of any aircraft, in every case to be recorded in the 
ship or aircraft log. A report shall also be made to local civil 
authorities in the first port of entry if required by law and regulation 
of such authorities when births occur on a course inbound to the U.S. 
Additionally, the medical officer shall:
    (i) Furnish the parents with appropriate certificates and shall, if 
the report is not accepted by the local registrar of vital statistics or 
other civil authority, or in any case in which local authority has 
indicated in writing that such a report will not be accepted,
    (ii) Advise the parents to seek the advice of the nearest office of 
the U.S. Immigration and Naturalization Service (USINS), at the earliest 
practicable time. USINS offices are located in

[[Page 377]]

ports of entry and in major cities of the United States.
    (iii) For births occurring on courses out-bound and beyond the 
continental limits of the U.S., report to the U.S. consular 
representative at the next appropriate foreign port. When the aircraft 
or ship does not enter a foreign port, procedures described in Sec. 
735.3(a)(2)(ii) shall be followed.
    (3) Attention is invited to the fact that reports of birth may be 
forwarded to the Bureau of Health Statistics, Department of Health, 
Honolulu, Hawaii for any births occurring on courses destined for 
islands in the Pacific Ocean over which the United States has 
jurisdiction as well as for those births which are otherwise accepted by 
civil authorities for Hawaii.
    (4) Part 138 of this title prescribes policy, responsibilities, and 
procedures on birth registration of infants born to U.S. citizens, in 
military medical facilities outside the United States and its 
possessions.
    (b) Deaths. When a death occurs at a naval activity in any State, 
Territory, or insular possession of the United States, the commanding 
officer or designated representative shall report the death promptly to 
proper civil authorities in accordance with Naval Medical Command 
directives. If requested by these civil authorities, the civil death 
certificate may be prepared and signed by the cognizant naval medical 
officer. Local agreements concerning reporting and preparation of death 
certificates should be made between the naval facility and local civil 
authorities.

[[Page 378]]



       SUBCHAPTER D_PROCUREMENT, PROPERTY, PATENTS, AND CONTRACTS



    Cross Reference: For joint procurement regulations of the Armed 
Forces, see chapter I of this title.



PART 736_DISPOSITION OF PROPERTY--Table of Contents




Sec.
736.1 General.
736.2 Dispositions under contracts.
736.3 Sale of personal property.
736.4 Disposition of real property.
736.5 Disposition of real and personal property under special statutory 
          authority.
736.6 Certification prior to disposition.
736.7 Approval by the Attorney General.

    Authority: Secs. 5031, 6011, 70A Stat. 278, as amended; 10 U.S.C. 
5031, 6011. Interpret or apply R.S. 3618, 3678, 3709, 38 Stat. 1084, 44 
Stat. 605, 49 Stat. 885, 53 Stat. 811, 54 Stat. 396, 57 Stat. 380, 59 
Stat. 260, sec. 27, 60 Stat. 856, sec. 5, 60 Stat. 998, sec. 4, 62 Stat. 
286, secs. 7(c), 8(a-b), 62 Stat. 452, 63 Stat. 377, 64 Stat. 1109, 65 
Stat. 645, 68 Stat. 832, sec. 501(c)(3), 68A Stat. 163, secs. 2481, 
2541, 2542, 2571-2574, 2662, 2667, 6155, 6156, 6901, 7227, 7228, 7230, 
7304-7308, 7541-7547, 7601-7604, 70A Stat. 141, sec. 5003, 72 Stat. 
1252, 72 Stat. 1793, sec. 616, 73 Stat. 381, as amended; 31 U.S.C. 487, 
628, 41 U.S.C. 5, 31 U.S.C. 686, 686a, 40 U.S.C. 304a, 50 U.S.C. 98-98h, 
22 U.S.C. 521, 44 U.S. C. 366-380, 42 U.S.C. 1572, 24 U.S.C. 37, 20 
U.S.C. 77d, 15 U.S.C. 328, 49 U.S.C. 1156(c), 1157(a-b), 40 U.S.C. 471 
et seq., 42 U.S.C. 1855-1855g, 22 U.S.C. 1611-1613c, 1750 et seq., 26 
U.S.C. 501(c)(3), 10 U.S.C. 2481, 2541, 2542, 2571-2574, 2662, 2667, 
6155, 6156, 6901, 7227, 7228, 7230, 7304-7308, 7541-7547, 7601-7604, 38 
U.S.C. 5003, 42 U.S.C. 1891-1893, 40 U.S.C. 483a, E.O. 10885, 25 FR 
8471, 40 U.S.C. 471; 40 U.S.C. 486; 10 U.S.C. 2576; 33 U.S.C. 1401; Pub. 
L. No. 96-41 (50 U.S.C. 98); Pub. L. No. 93-288 (42 U.S.C. 5121).

    Source: 25 FR 4674, May 27, 1960, unless otherwise noted.



Sec. 736.1  General.

    Real and personal property under the jurisdiction of the Department 
of the Navy, exclusive of battleships, aircraft carriers, cruisers, 
destroyers, and submarines (referred to as warships in this part) and 
certain public domain lands and mineral interests, may be disposed of 
under the authority contained in the Federal Property and Administrative 
Services Act of 1949 (63 Stat. 377), as amended (40 U.S.C. 471), in this 
part referred to as the Federal Property Act. The Federal Property Act 
places the responsibility for the disposition of excess and surplus 
property located in the United States, Puerto Rico, the Virgin Islands, 
American Samoa, Guam, and the Trust Territory of the Pacific Islands 
with the Administrator of General Services, and for disposition of such 
property located in foreign areas, with the head of each executive 
agency. The Act of August 10, 1956 (70A Stat. 451; 10 U.S.C. 7304, 7305, 
7307) and Executive Order 11765 of January 21, 1974, (39 FR 2577) 
provide authority for the disposal of warships as well as other vessels 
stricken from the Naval Vessel Register. The United States Maritime 
Commission, however, is authorized to dispose of surplus vessels, other 
than warships, or 1,500 gross tons or more which the Commission 
determines to be merchant vessels or capable of conversion to merchant 
use (40 U.S.C. 484(i)). Accordingly, in disposing of its property, the 
Department of the Navy is subject to applicable regulations of the 
Administrator of General Services and the Secretary of Defense, and, in 
regard to potential merchant vessels other than warships, to 
determinations of the United States Maritime Commission. In general, 
property of the Department of the Navy, which becomes excess to its 
needs, may not be disposed of to the general public until it has been 
determined to be surplus after screening such property with the other 
military departments of the Department of Defense and all other agencies 
of the Government, and after it has been offered for donation to 
educational institutions, and law enforcement and marine research 
activities.
    (a) Within the limitations indicated in the introductory paragraph 
of this section, the Department of the Navy is authorized to sell its 
surplus personal property under the authority of the Federal Property 
Act and the Act of August 10, 1956 (70A Stat. 451; 10 U.S.C. 7305), and 
to report its real property,

[[Page 379]]

when excess to the needs of the Department of Defense, to the General 
Services Administration for ultimate disposition by that agency or the 
Department of the Navy. The Department of the Navy is also authorized to 
transfer real and personal property to other departments or agencies of 
the Government, and to sell, transfer and otherwise dispose of certain 
vessels and other personal property under special statutory authority. 
Ships other than warships are sold pursuant to the Federal Property Act 
(40 U.S.C. 484(i)) by the U.S. Maritime Commission if over 1500 gross 
tons and determined by the Maritime Commission to be merchant vessels or 
capable of conversion to merchant use. In certain cases, Navy vessels 
and other property may be transferred or otherwise made available to 
other agencies without reimbursement (sec. 616, 73 Stat. 381; 40 U.S.C. 
483a).
    (b) This part sets forth the general procedures and authority with 
respect to the disposition of property under the control of the 
Department of the Navy except disposition of property to foreign 
governments under the authority of such statutes as the Aid to American 
Republics Act (54 Stat. 396; 22 U.S.C. 521) and the Mutual Defense 
Assistance Control Act of 1951 (65 Stat. 644; 22 U.S.C. 1611-1613c).
    (c) The Department of Defense Material Disposition Manual and 
directives issued by the Department of the Navy cover the disposition of 
all property of the Department including disposition under the Federal 
Property Act. The Defense Material Disposition Manual is available on 
the internet at www.drms.dla.mil. Section XXIV of Navy Procurement 
Directives contains similar information applicable to the disposition of 
contractor inventory. These publications are available for inspection at 
the offices of the Commandants of the several Naval Districts; and at 
various Navy and Marine Corps installations.

[25 FR 4674, May 27, 1960, as amended at 39 FR 18442, May 28, 1974; 41 
FR 26008, June 24, 1976; 65 FR 53590, Sept. 5, 2000]



Sec. 736.2  Dispositions under contracts.

    (a) Contractor inventory (that is, personal property acquired by a 
contractor under terms vesting title in the Government but in excess of 
the amount required for performance of a contract) may be sold to the 
contractor or otherwise disposed of in accordance with the terms and 
conditions set forth in the contract and applicable Navy instructions. 
See also parts 8 and 13 and Sec. Sec. 30.2 and 30.3 of this title.
    (b) Industrial and plant equipment provided by the Government to a 
contractor for the performance of a contract may, subject to applicable 
statutory authority and Navy instructions be disposed of in accordance 
with the applicable contract terms and conditions.
    (c) Transfer to nonprofit education or research institutions of 
title to equipment purchased with funds available for grants or 
contracts for the conduct of basic or applied research is authorized by 
the act of September 6, 1958 (sec. 2, 72 Stat. 1793; 42 U.S.C. 1892) and 
implementing regulations (Sec. Sec. 13.800 to 13.803 of this title).



Sec. 736.3  Sale of personal property.

    (a) The sale of personal property determined to be surplus or 
foreign excess or for exchange purposes is authorized by the Federal 
Property Act and regulations of the Administrator of General Services 
(see Sec. 736.1(a)). Certain vessels stricken from the Naval Vessel 
Register may be sold under the act of August 19, 1956, (70A Stat. 451, 
10 U.S.C. 7305).
    (b) Sales are by sealed bid, auction, spot bid or, under limited 
conditions prescribed by law, negotiated method. A deposit, generally 20 
percent of the amount bid, is normally required of each bidder. Awards 
are usually made to the highest acceptable bidder. Normally property may 
not be removed from Government control until full payment is made. 
Arrangements must be made by the successful bidder to remove the 
property within the time limit prescribed in the invitation to bid or 
sales contract. The Government reserves the right to withdraw any 
property from sale when in the best interest of the Government.
    (1) The Department of Defense has a contact point for any person 
interested in purchasing surplus Department of Defense personal property 
within the

[[Page 380]]

United States. The contact point is the Defense Surplus Bidders Control 
Office, Defense Reutilization and Marketing Office, Federal Center 
Building, Battle Creek, Michigan. This office maintains a single bidders 
list for all military departments. The list is arranged to show each 
person's buying interests, both geographically and with respect to 
categories of property. The categories of property (together with an 
application blank) are listed in a pamphlet ``How to Buy Surplus 
Personal Property From The Department of Defense,'' prepared by the 
Defense Reutilization and Marketing Office, Defense Logistics Agency, 
Battle Creek, Michigan.
    (2) Retail sales at fixed prices based on the current market value 
are conducted by certain Defense property disposal offices.

[39 FR 18442, May 28, 1974, as amended at 65 FR 53590, Sept. 5, 2000]



Sec. 736.4  Disposition of real property.

    (a) Real property, including related personal property, determined 
to be excess to the needs of the Department of Defense is subject to 
disposition under the Federal Property Act. In the States of the United 
States, the District of Columbia, the Commonwealth of Puerto Rico, the 
Virgin Islands, American Samoa, Guam, and the Trust Territory of the 
Pacific Islands, Department of the Navy real property determined to be 
excess to the Department of Defense and not required for the needs and 
the discharge of the responsibilities of all Federal agencies, is 
generally disposed of by the General Services Administration as surplus 
property. Exceptions, however, are property worth less than $1,000; 
certain leases, permits, licenses, easements or similar interests; 
certain fixtures, structures, and improvements; and other special 
classes of property which, when determined to be surplus, are disposed 
of by the Commander, Naval Facilities Engineering Command, Field 
Division Directors, and District or Area Public Works Officers under 
authority delegated in Title II, Regulations of the General Services 
Administration, or under special delegations from the Administrator of 
General Services.
    (b) Outside the States of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American 
Samoa, Guam, and the Trust Territory of the Pacific Islands, Department 
of the Navy real property determined to be excess to the Department of 
Defense is disposed of directly by the Commander, Naval Facilities 
Engineering Command, Field Division Directors, and District or Area 
Public Works Officers.

(5 U.S.C. 301, 40 U.S.C. 471-514)

[35 FR 10008, June 18, 1970, as amended at 41 FR 26008, June 24, 1976]



Sec. 736.5  Disposition of real and personal property under special statutory authority.

    In addition to the authority to sell personal property to the 
general public and to transfer real property to the General Services 
Administration under the provisions of Sec. Sec. 736.3 and 736.4, the 
Department of the Navy has further authority to dispose of personal and 
real property as described in paragraphs (a) through (h) of this 
section.
    (a) Disposition to other Government agencies. The Department of the 
Navy is authorized to transfer real and personal property to other 
governmental departments or agencies under statutes applicable to 
particular agencies, the act of March 4, 1915 (38 Stat. 1084) as amended 
(31 U.S.C. 686) and, as to certain personal property, under directives 
of the General Services Administration.
    (b) Leases. Real and personal property under the control of the 
Department of the Navy not excess to its needs and not for the time 
being required for public use may be leased, when the Secretary of the 
Navy shall deem it to be advantageous to the Government, to such lessee 
or lessees and upon such terms and conditions as in his judgment will 
promote the national defense or will be in the public interest. Such 
leases shall be for a period of not exceeding five years unless the 
Secretary determines that a longer period will promote the national 
defense or will be in the public interest. Such leases are authorized by 
the act of August 10, 1956 (70A Stat. 150; 10 U.S.C. 2667). Leases of 
Government-owned real property where the estimated annual rental is more 
than 50,000 must be deferred for 30 days

[[Page 381]]

after reporting the proposed transaction to the Armed Services 
Committees of Congress in accordance with the act of August 10, 1956 70A 
Stat. 147), as amended (10 U.S.C. 2662).
    (c) Disposition of strategic materials. Strategic materials may be 
disposed of by the Department of the Navy under the authority described 
in Sec. 736.3 only when such property is excess to the needs of the 
Department of Defense and when the Director of the Office of Civil and 
Defense Mobilization (acting through the Defense Materials Service of 
the General Services Administration) determines that the amounts of such 
materials to be disposed of are so small as to make transfer thereof 
under the act of June 7, 1939 (53 Stat. 811) as amended (50 U.S.C. 98-
98h) economically impractical, or such materials are not necessary for 
stockpile requirements determined in accordance with section 2 of said 
act.
    (d) Disposition of vessels. Vessels stricken from the Naval Vessel 
Register may be sold by the Department of the Navy under the authority 
and subject to the limitations of the Federal Property Act (sections 
203(i), 63 Stat. 386, 40 U.S.C. 484(i)) and the act of August 10, 1956, 
(70A Stat. 451; 10 U.S.C. 7304, 7305, 7307) and Executive Order 11765 
(39 FR 2577). However, pursuant to section 203(i) of the Federal 
Property Act (40 U.S.C. 484(i)), the United States Maritime Commission 
disposes of vessels, other than warships, if over 1,500 gross tons and 
determined by the Maritime Commission to be merchant vessels or capable 
of conversion to merchant use. Vessels may be sold for scrapping or for 
use under such authority or, if such sale is not feasible, the Naval Sea 
Systems Command may arrange for the demolition of a vessel and sale of 
the resulting materials by an authorized selling activity as set forth 
in Sec. 736.3.
    (e) Exchange or sale of property for replacement purposes. Under the 
authority of section 201(c) of the Federal Property Act (40 U.S.C. 
481(c)) and consistent with Department of Defense implementing 
regulations, DOD 4140.1-R and the Defense Federal Acquisition Regulation 
Supplement, the Department of the Navy is authorized in the acquisition 
of new equipment to exchange or sell similar items which are not excess 
to its needs, and apply the exchange allowance or proceeds of sale in 
whole or part payment for the items acquired.
    (f) Donations and loans of personal property. (1) Certain personal 
property of the Department of the Navy, including vessels, which become 
surplus, may be donated or loaned under the authority contained in the 
Federal Property Act and the act of August 10, 1956 (70A Stat. 453; 10 
U.S.C. 2572, 7308, 7545) to:
    (i) Schools such as maritime academies or military, naval, Air Force 
or Coast Guard preparatory schools, designated by the Secretary of 
Defense as educational activities of special interest to the armed 
services.
    (ii) Accredited schools, colleges and universities and educational 
institutions which have been exempted from taxation under section 
501(c)(3) of the Internal Revenue Code of 1954 and State Departments of 
Education for use by tax exempt educational institutions. Applications 
for donation shall be approved by the Department of Health and Human 
Services and the Administrator of General Services and may be filed with 
the field representative of the Department of Health and Human Services 
located nearest the applicant.
    (iii) States, Territories, Commonwealths, or possessions of the 
United States and political subdivisions, municipal corporations, 
veterans associations, soldiers' monument associations, State museums, 
and non-profit educational museums, subject in certain cases to the 
approval of the Curator for the Navy and to objection by a concurrent 
resolution of the Congress.
    (2) Applications other than those to be filed with the field 
representative of the Department of Health and Human Services shall be 
filed with the Department of the Navy and referred to the cognizant 
Command or Headquarters for action except that applications for vessels 
and district craft shall be referred to the Chief of Naval Operations, 
applications for boats to the Naval Sea Systems Command, and 
applications for barges, floating drydocks, and other floating 
construction equipment to the

[[Page 382]]

Naval Facilities Engineering Command. Detailed instructions with respect 
to such applications are set forth in the Defense Material Disposition 
Manual.
    (g) Disposition of equipment for research. Under the act of 
September 6, 1958 (72 Stat. 1793; 42 U.S.C. 1891-1893), equipment 
purchased with research grant or contract funds may be transferred for 
the conduct of basic or applied scientific research to (1) non-profit 
institutions of higher education or (2) non-profit organizations whose 
primary purpose is the conduct of scientific research. An annual report 
of such transfers must be made to the appropriate Committees of 
Congress.
    (h) Assistance in major disaster relief. Under the Disaster Relief 
Act of 1974 (Pub. L. No. 93-288) and subject to directions of the 
Federal Emergency Management Agency, certain excess personal property 
may be utilized for or donated to States and local governments for 
relief of suffering and damage resulting from major disasters. Surplus 
property may also be disposed of to States for sale to small business 
concerns affected by specific disasters such as hurricanes.

[25 FR 4674, May 27, 1960, as amended at 25 FR 11066, Nov. 22, 1960, 26 
FR 12158, Dec. 20, 1961; 35 FR 10008, June 18, 1970; 39 FR 18442, May 
28, 1974; 41 FR 26008, June 24, 1976; 47 FR 28371, June 30, 1982; 65 FR 
53590, Sept. 5, 2000; 65 FR 67628, Nov. 13, 2000]



Sec. 736.6  Certification prior to disposition.

    The transfer, sale, or other disposition of a battleship, aircraft 
carrier, cruiser, destroyer, or submarine shall not be made unless and 
until the Chief of Naval Operations, in accordance with the act of 
August 10, 1956 (70A Stat. 452; 10 U.S.C. 7307), has certified that such 
material is not essential to the defense of the United States.



Sec. 736.7  Approval by the Attorney General.

    Prior to the disposition, either competitively or by negotiation, to 
private interests of a plant or plants, or other property, which cost 
the Government $1,000,000 or more if real property, or $3,000,000 or 
more if personal property (other than a patent, process, technique or 
invention), or of patents, processes, techniques or inventions, 
irrespective of cost, the Department of the Navy must notify the 
Attorney General of the proposed disposal and the probable terms and 
conditions thereof. Within a reasonable time, in no event to exceed 
sixty days after receiving such notification, the Attorney General will 
advise the Department of the Navy, whether, insofar as he can determine, 
the proposed disposition would tend to create or maintain a situation 
inconsistent with the antitrust laws. In such cases, the Department of 
the Navy must obtain from the proposed purchaser information regarding 
its financial status, the anticipated use to be made of the property and 
any other information as may be required by the Attorney General; the 
award or final sale must be delayed until the Attorney General advises 
of his determination.



PART 744_POLICIES AND PROCEDURES FOR THE PROTECTION OF PROPRIETARY RIGHTS IN TECHNICAL INFORMATION PROPOSED FOR RELEASE TO FOREIGN GOVERNMENTS--Table of Contents




Sec.
744.1 Purpose.
744.6 Authorization for release without consent of the owner.

    Authority: Sec. 301, 80 Stat. 379, secs. 5031, 6011, 70A Stat. 278, 
375 as amended; 5 U.S.C. 301, 10 U.S.C. 5031, 6011. Interpret or apply 
the Mutual Security Act of 1954 (68 Stat. 832) as amended, 22 U.S.C. 
1750 et seq., and Act of Sept. 4, 1961 (Pub. L. 87-195, 75 Stat. 424), 
22 U.S.C. 2151-2406 (2351, 2356).



Sec. 744.1  Purpose.

    This part implements part 264 of this title and the Technical 
Property Interchange Agreements between the United States and foreign 
governments which agreements are designed to facilitate the interchange 
of patent rights and technical information for defense purposes.

[26 FR 12217, Dec. 21, 1961]



Sec. 744.6  Authorization for release without consent of the owner.

    (a) Military equipment including the information essential for its 
operation,

[[Page 383]]

maintenance and repair and technical information, known or claimed to be 
proprietary, which is being considered for release in accordance with 
Sec. 264.4(d)(3), may be released when the Chief of Naval Operations or 
his designee or a bureau chief or deputy bureau chief determines under 
the authority of the Act that such action clearly warrants the 
assumption of financial liability that may be incurred and there is no 
acceptable substitute equipment or information for which consent to 
release is obtainable or which is not proprietary.
    (b) Where any technical information is released in accordance with 
this section, such release shall be subject to the conditions of release 
set forth in Sec. 264.4(f).
    (c) Military equipment, including the information essential for its 
operation, maintenance, and repair, known or claimed to be privately 
owned and for which consent for release cannot be obtained may be 
furnished to foreign governments in accord with Sec. 264.4(d)(3) 
without further legal authorization, provided such release is made 
pursuant to the grant aid provisions of the Mutual Security Act of 1954, 
as amended, and provided further, there is no acceptable substitute 
equipment or information for which consent for release is obtainable or 
which is not proprietary.

[24 FR 10715, Dec. 25, 1959, as amended at 44 FR 30686, May 29, 1979]



PART 746_LICENSING OF GOVERNMENT INVENTIONS IN THE CUSTODY OF THE DEPARTMENT OF THE NAVY--Table of Contents




Sec.
746.1 Purpose.
746.2 Policy.
746.3 Delegation of authority.
746.4 Definitions.
746.5 Government inventions available for licensing.
746.6 Nonexclusive license.
746.7 Limited exclusive license.
746.8 Additional licenses.
746.9 Royalties.
746.10 Reports.
746.11 Procedures.
746.12 Litigation.
746.13 Transfer of custody of Government inventions.

    Authority: 5 U.S.C. 301; 10 U.S.C. 5031; 40 U.S.C. 486(c); and 41 
CFR 101-4.1.

    Source: 41 FR 55712, Dec. 22, 1976, unless otherwise noted.



Sec. 746.1  Purpose.

    This part implements Department of Defense Directive 5535.3 of 
November 2, 1973 and 41 CFR subpart 101-4.1, and sets forth the policy, 
terms, conditions, and procedures for the licensing of rights in 
domestic patents and patent applications vested in the United States of 
America and in the custody of the Department of the Navy.



Sec. 746.2  Policy.

    (a) A major premise of the Presidential Statement fo Government 
Patent Policy, August 23, 1971 (36 FR 16887, August 26, 1971), is that 
government inventions normally will best serve the public interest when 
they are developed to the point of practical application and made 
available to the public in the shortest possible time. The granting of 
express nonexclusive or exclusive licenses for the practice of these 
inventions may assist in the accomplishment of the national objective to 
achieve a dynamic and efficient economy.
    (b) The granting of nonexclusive licenses generally is preferable, 
since the invention is thereby laid open to all interested parties and 
serves to promote competition in industry, if the invention is in fact 
promoted commercially. However, to obtain commercial utilization of the 
invention, it may be necessary to grant an exclusive license for a 
limited period of time as an incentive for the investment of risk 
capital to achieve practical application of an invention.
    (c) Whenever the grant of an exclusive license is deemed 
appropriate, it shall be negotiated on terms and conditions most 
favorable to the public interest. In selecting an exclusive licensee, 
consideration shall be given to the capabilities of the prospective 
licensee to further the technical and market development of the 
invention, his plan to undertake the development, the projected impact 
on competition, and the benefit to the Government and the public. 
Consideration shall be given

[[Page 384]]

also to assisting small business and minority business enterprises, as 
well as economically depressed, low income, and labor surplus areas, and 
whether each or any applicant is a United States citizen or corporation. 
Where there is more than one applicant for an exclusive license, that 
applicant shall be selected who is determined to be most capable of 
satisfying the criteria and achieving the goals set forth in this part.
    (d) Subject to the following: (1) Any existing or future treaty or 
agreement between the United States and any foreign government or inter-
governmental organization, or
    (2) Licenses under or other rights to inventions made or conceived 
in the course of or under Department of the Navy research and 
development contracts where such licenses or other rights to such 
inventions are provided for in the contract and retained by the party 
contracting with the Department of the Navy, no license shall be granted 
or implied in a government invention, except as provided for in this 
part.
    (e) No grant of a license under this part shall be construed to 
confer upon any licensee any immunity from the antitrust laws or from a 
charge of patent misuse, and the acquisition and use of rights pursuant 
to this part shall not be immunized from the operation of state or 
federal law by reason of the source of the grant.



Sec. 746.3  Delegation of authority.

    The Chief of Naval Research is delegated the authority to administer 
the patent licensing program, with the authority to redelegate such 
authority.



Sec. 746.4  Definitions.

    (a) Government invention means an invention covered by a domestic 
patent or patent application that is vested in the United States and in 
the custody of the Department of the Navy, and is designated by the 
Chief of Naval Research as appropriate for the grant of an express non-
exclusive or exclusive license.
    (b) To the point of practical application means to manufacture in 
the case of a composition or product, to practice in the case of a 
process, or to operate in the case of a machine, under such conditions 
as to establish that the invention is being worked and that its benefits 
are reasonably accessible to the public.



Sec. 746.5  Government inventions available for licensing.

    Government inventions normally will be made available for the 
granting of express nonexclusive or limited exclusive licenses to 
responsible applicants according to the factors and conditions set forth 
in Sec. Sec. 746.6 and 746.7, subject to the applicable procedures of 
Sec. 746.11. The Chief of Naval Research may remove a prior designation 
of availability for licensing of any patent(s) or patent application(s), 
provided that no outstanding licenses to that invention are in effect.



Sec. 746.6  Nonexclusive license.

    (a) Availability of licenses. Each government invention normally 
shall be made available for the granting of nonexclusive revocable 
licenses, subject to the provisions of any other licenses, including 
those under Sec. 746.8.
    (b) Terms of grant. (1) The duration of the license shall be for a 
period as specified in the license agreement, provided that the licensee 
complies with all the terms of the license.
    (2) The license shall require the licensees to bring the invention 
to the point of practical application within a period specified in the 
license, or such extended period as may be agreed upon, and to contine 
to make the benefits of the invention reasonably accessible to the 
public.
    (3) The license may be granted for all or less than all fields of 
use of the invention, and throughout the United States of America, its 
territories and possessions, the Commonwealth of Puerto Rico, and the 
District of Columbia, or in any lesser geographic portion thereof.
    (4) After termination of a period specified in the license 
agreement, the Chief of Naval Research may restrict the license to the 
fields of use and/or geographic areas in which the licensee has brought 
the invention to the point of practical application and continues to 
make the benefits of the invention reasonably accessible to the public.

[[Page 385]]

    (5) The license may extend to subsidiaries and affiliates of the 
licensee but shall be nonassignable without approval of the Chief of 
Naval Research, except to the successor of that part of the licensee's 
business to which the invention pertains.
    (6) The Government shall make no representation or warranty as to 
the validity of any licensed application(s) or patent(s), or of the 
scope of any of the claims contained therein, or that the exercise of 
the license will not result in the infringement of any other patent(s), 
nor shall the Government assume any liability whatsoever resulting from 
the exercise of the license.



Sec. 746.7  Limited exclusive license.

    (a) Availability of licenses. Each government invention may be made 
available for the granting of a limited exclusive license, provided 
that:
    (1) The invention has been published as available for licensing 
pursuant to paragraph (a) of Sec. 746.11 for a period of at least six 
months;
    (2) The Chief of Naval Research has determined that:
    (i) The invention may be brought to the point of practical 
application in certain fields of use and/or in certain geographical 
locations by exclusive licensing;
    (ii) The desired practical application has not been achieved under 
any nonexclusive license granted on the invention; and
    (iii) The desired practical application is not likely to be achieved 
expeditiously in the public interest under a nonexclusive license or as 
a result of further government-funded research or development;
    (3) The notice of the prospective licensee has been published, 
pursuant to paragraph (d) of Sec. 746.11 for at least 60 days; and
    (4) After termination of the period set forth in paragraph (a)(3) of 
Sec. 746.7 the Chief of Naval Research has determined that no applicant 
for a nonexclusive license has brought or will bring, within a 
reasonable period, the invention to the point of practical application, 
as specified in the exclusive license, and that to grant the exclusive 
license would be in the public interest.
    (b) Selection of exclusive licensee. An exclusive licensee will be 
selected on bases consistent with the policy set forth in Sec. 746.2 
and in accordance with the procedures set forth in Sec. 746.11.
    (c) Terms of grant. (1) The license may be granted for all or less 
than all fields of use of the government invention, and throughout the 
United States of America, its territories and possessions, the 
Commonwealth of Puerto Rico, and the District of Columbia, or in any 
lesser geographic portion thereof.
    (2) Subject to the rights reserved to the Government in paragraphs 
(c)(6) and (c)(7) of Sec. 746.7, the licensee shall be granted the 
exclusive right to practice the invention in accordance with the terms 
and conditions specified in the license.
    (3) The duration of the license shall be negotiated but shall be for 
a period less than the terminal portion of the patent, the period 
remaining being sufficient to make the invention reasonably available 
for the grant of a nonexclusive license; and such period of exclusivity 
shall not exceed 5 years unless the Chief of Naval Research determines, 
on the basis of a written submission supported by a factual showing, 
that a longer period is reasonably necessary to permit the licensee to 
enter the market and recoup his reasonable costs in so doing.
    (4) The license shall require the licensee to bring the invention to 
the point of practical application within a period specified in the 
license, or within a longer period as approved by the Chief of Naval 
Research, and to continue to make the benefits of the invention 
reasonably accessible to the public.
    (5) The license shall require the licensee to expend a specified 
minimum amount of money and/or take other specified actions, within a 
specified period of time after the effective date of the license, in an 
effort to bring the invention to the point of practical application.
    (6) The license shall be subject to the irrevocable, royalty-free 
right of the Government of the United States to practice and have 
practiced the invention throughout the world, by or on behalf of the 
Government of the United

[[Page 386]]

States, and by or on behalf of any foreign government or 
intergovernmental organization pursuant to any existing or future treaty 
or agreement with the United states. If the Chief of Naval Research 
finds it to be in the public interest, this license may also be 
expressly subject to this same royalty-free right by or on behalf of 
state and municipal governments.
    (7) The license shall reserve to the Chief of Naval Research the 
right to require the licensee to grant sublicenses to responsible 
applicants on terms that are reasonable in the circumstances:
    (i) The extent that the invention is required for public use by 
government regulations, or
    (ii) As may be necessary to fulfill health or safety needs, or
    (iii) For other public purposes stipulated in the license.
    (8) The license may extend to subsidiaries and affiliates of the 
licensee but shall be nonassignable without approval of the Chief of 
Naval Research, except to successors of that part of the licensee's 
business to which the invention pertains.
    (9) An exclusive licensee may grant sublicenses under his license, 
subject to the approval of the Chief of Naval Research. Each sublicense 
granted by an exclusive licensee shall make reference to the exclusive 
license, including the rights retained by the Government under the 
exclusive license, and a copy of such sublicense shall be furnished to 
the Chief of Naval Research.
    (10) The license may be subject to such other terms as may be in the 
public interest.
    (11) The Government shall make no representation or warranty as to 
validity of any licensed application(s) or patent(s), or of the scope of 
any of the claims contained therein, or that the exercise of the license 
will not result in the infringement of any other patent(s), nor shall 
the Government assume any liability whatsoever resulting from the 
exercise of the license.



Sec. 746.8  Additional licenses.

    Subject to any outstanding licenses, nothing in this part shall 
preclude the Chief of Naval Research from granting additional 
nonexclusive or limited exclusive licenses for government inventions 
when he determines that to do so would provide for an equitable exchange 
of patent rights. The following exemplify circumstances wherein such 
licenses may be granted:
    (a) In consideration of the settlement of an interference;
    (b) In consideration of a release of a claim of infringement; or
    (c) In exchange for, or as part of, the consideration for a license 
under adversely held patents.



Sec. 746.9  Royalties.

    (a) Nonexclusive license. Normally, royalties shall not be changed 
under nonexclusive licenses granted to United States citizens and United 
States corporations on government inventions; however, the Chief of 
Naval Research may require other consideration.
    (b) Limited exclusive license. A limited exclusive license on a 
government invention shall contain a royalty provision and/or other 
consideration flowing to the Government.



Sec. 746.10  Reports.

    A license shall require the licensee to submit periodic reports on 
his efforts to achieve practical application of the invention. The 
reports shall contain information within his knowledge, or which he may 
acquire under normal business practices, pertaining to the commercial 
use being made of the invention, and other information which the Chief 
of Naval Research may determine is pertinent to its licensing activities 
and is specified in the license.



Sec. 746.11  Procedures.

    (a) Publication requirements. The Chief of Naval Research shall 
cause to be published in the Federal Register, the Official Gazette of 
the United States Patent and Trademark Office, and at least one other 
publication that the Chief of Naval Research deems would best serve the 
public interest, a list of the government inventions available for 
licensing under the conditions specified in this part. The list shall be 
revised periodically to include directly, or by reference to a 
previously published list, all inventions currently available for 
licensing. Other publications on inventions available

[[Page 387]]

for licensing are encouraged, and may include abstracts, when 
appropriate, as well as information on the design, construction, use, 
and potential market for the inventions.
    (b) Contents of a nonexclusive license application. An application 
for a nonexclusive license under a government invention should be 
addressed to the Chief of Naval Research (Code 300), Arlington, VA 
22217, and shall include:
    (1) Identification of the invention for which the license is 
desired, including the patent application serial number or patent 
number, title, and date, if known, and any other identification of the 
invention;
    (2) Name and address of the person, company, or organization 
applying for the license, and whether the applicant is a United States 
citizen or a United States corporation;
    (3) Name and address of the representative of applicant to whom 
correspondence should be sent;
    (4) Nature and type of applicant's business;
    (5) Source of information concerning the availability of a license 
on this invention;
    (6) Purpose for which the license is desired and a brief description 
of applicant's plan to achieve that purpose;
    (7) A statement of the fields of use for which applicant intends to 
practice the invention; and
    (8) A statement as to the geographic areas in which the applicant 
would practice the invention.
    (c) Contents of an exclusive license application. An application for 
an exclusive license should be addressed to the Chief of Naval Research 
(Code 300), Arlington, VA 22217, and, in addition to the information 
indicated in paragraph (b) of Sec. 746.11, an application for an 
exclusive license shall include:
    (1) Applicant's status, if any, in any one or more of the following 
categor- ies:
    (i) Small business firm;
    (ii) Minority business enterprise;
    (iii) Location in a surplus labor area;
    (iv) Location in a low-income area; and
    (v) Location in an economically depressed area;
    (2) A statement of applicant's capability to undertake the 
development and marketing required to achieve the practical application 
of the invention;
    (3) A statement describing the time, expenditure, and other acts 
which the applicant considers necessary to achieve practical application 
of the invention and the applicant's offer to invest that sum to perform 
such acts if the license is granted;
    (4) A statement that contains the applicant's best knowledge of the 
extent to which the government invention is being practiced by private 
industry and the Government;
    (5) Identification of other exclusive licenses granted to applicant 
under inventions in the custody of other government agencies; and
    (6) Any other facts which the applicant believes are evidence that 
it is in the public interest for the Chief of Naval Research to grant an 
exclusive license rather than a nonexclusive license, and that such 
exclusive license should be granted to the applicant.
    (d) Published notices. (1) A notice that a prospective exclusive 
licensee has been selected shall be published in the Federal Register, 
and a copy of the notice shall be sent to the Attorney General. The 
notice shall include:
    (i) Identification of the invention;
    (ii) Identification of the selected licensee;
    (iii) Duration and scope of the contemplated license; and
    (iv) A statement to the effect that the license will be granted 
unless:
    (A) An application for a nonexclusive license, submitted by a 
responsible applicant pursuant to paragraph (b) of Sec. 746.11, is 
received by the Chief of Naval Research within 60 days from the 
publication of the notice in the Federal Register, and the Chief of 
Naval Research determines in accordance with his prescribed procedures, 
under which procedures the Chief of Naval Research shall record and make 
available for public inspection all decisions made pursuant thereto and 
the basis therefore, that the applicant has established that he has 
already achieved or is likely to bring the invention to the point of 
practical application withing a reasonable period under a nonexclusive 
license; or

[[Page 388]]

    (B) The Chief of Naval Research determines that third party has 
presented evidence and argument which has established that it would not 
be in the public interest to grant the exclusive license.
    (2) If an exclusive license has been granted pursuant to this part, 
notice thereof shall be published in the Federal Register. Such notice 
shall include:
    (i) Identification of the invention;
    (ii) Identification of the licensee; and
    (iii) Duration and scope of the license.
    (3) If an exclusive license has been modified or revoked pursuant to 
paragraph (e) Sec. 746.11, notice thereof shall be published in the 
Federal Register. Such notice shall include:
    (i) Identification of the invention;
    (ii) Identification of the licensee; and
    (iii) Effective date of the modification or revocation.
    (e) Modification or revocation. (1) Any license granted pursuant to 
this part may be modified or revoked by the Chief of Naval Research if 
the licensee at any time defaults in making any report required by the 
license or commits any breach of covenant or agreement therein 
contained.
    (2) A license may also be revoked by the Chief of Naval Research if 
the licensee willfully makes a false statement of material fact or 
willfully omits a material fact in the license application or any report 
required in the license agreement.
    (3) Before modifying or revoking any license granted pursuant to 
this part for any cause, the Chief of Naval Research shall furnish the 
licensee and any sublicensee of record a written notice of intention to 
modify or revoke the license, and the licensee and any sublicensee shall 
be allowed 30 days after such notice to remedy any breach of any 
covenant or agreement as referred to in paragraph (e)(1) of Sec. 
746.11, or to show cause why the license should not be modified or 
revoked.
    (f) Appeals. An applicant for a license, a licensee, or such other 
third party who has participated under paragraph (d)(1)(iv)(B) of Sec. 
746.11 shall have the right to appeal, in accordance with procedures 
prescribed by the Chief of Naval Research, any decision concerning the 
granting, denial, interpretation, modification, or revocation of a 
license.



Sec. 746.12  Litigation.

    The property interest in a patent is the right to exclude. It is not 
the intent of the Government to transfer the property right in a patent 
when a license is issued pursuant to this part. Accordingly, the right 
to sue for infringement shall be retained with respect to all licenses 
so issued by the Government.



Sec. 746.13  Transfer of custody of Government inventions.

    The Chief of Naval Research may enter into an agreement to transfer 
custody of a Government invention to another government agency for 
purposes of administration, including the granting of licenses pursuant 
to this part.

[[Page 389]]



                           SUBCHAPTER E_CLAIMS





PART 750_GENERAL CLAIMS REGULATIONS--Table of Contents




                 Subpart A_General Provisions for Claims

Sec.
750.1 Scope of subpart A.
750.2 Investigations: In general.
750.3 Investigations: The report.
750.4 Claims: In general.
750.5 Claims: Proper claimants.
750.6 Claims: Presentment.
750.7 Claims: Action by receiving command.
750.8 Claims: Responsibility of the Tort Claims Unit Norfolk.
750.9 Claims: Payments.
750.10 Claims: Settlement and release.
750.11 Claims: Denial.
750.12 Claims: Action when suit filed.
750.13 Claims: Single service responsibility.
750.14-750.20 [Reserved]

                    Subpart B_Federal Tort Claims Act

750.21 Scope of subpart B.
750.22 Exclusiveness of remedy.
750.23 Definitions.
750.24 Statutory/regulatory authority.
750.25 Scope of liability.
750.26 The administrative claim.
750.27 Information and supporting documentation.
750.28 Amendment of the claim.
750.29 Investigation and examination.
750.30 Denial of the claim.
750.31 Reconsideration.
750.32 Suits under the Federal Tort Claims Act (FTCA).
750.33 Damages.
750.34 Settlement and payment.
750.35 Attorney's fees.
750.36 Time limitations.
750.37-750.40 [Reserved]

                      Subpart C_Military Claims Act

750.41 Scope of subpart C.
750.42 Statutory authority.
750.43 Claims payable.
750.44 Claims not payable.
750.45 Filing claim.
750.46 Applicable law.
750.47 Measure of damages for property claims.
750.48 Measure of damages in injury or death cases.
750.49 Delegations of adjudicating authority.
750.50 Advance payments.
750.51 Final disposition.
750.52 Appeal.
750.53 Cross-servicing.
750.54 Payment of costs, settlements, and judgments related to certain 
          medical or legal malpractice claims.
750.55 Attorney's fees.
750.56-750.60 [Reserved]

    Subpart D_Claims Not Cognizable Under Any Other Provision of Law

750.61 Scope of subpart D.
750.62 Statutory authority.
750.63 Definitions.
750.64 Claim procedures.
750.65 Statute of limitations.
750.66 Officials with authority to settle.
750.67 Scope of liability.
750.68 Claims not payable.
750.69 Measure of damages.

    Authority: 5 U.S.C. 301, 5 U.S.C. 552, 10 U.S.C. 5013, and 5148.

    Source: 57 FR 4722, Feb. 7, 1992, unless otherwise noted.



                 Subpart A_General Provisions for Claims



Sec. 750.1  Scope of subpart A.

    (a) General. (1) The Judge Advocate General is responsible for the 
administration and supervision of the resolution of claims arising under 
the Federal Tort Claims Act (subpart B of this part), the Military 
Claims Act (subpart C of this chapter), the Nonscope Claims Act (subpart 
D of this part), the Personnel Claims Act (part 751 of this chapter), 
the Foreign Claims Act, the International Agreements Claims Act 
pertaining to cost sharing of claims pursuant to international 
agreements, the Federal Claims Collection Act (subpart A of part 757 of 
this chapter), the Medical Care Recovery Act and Health Care Services 
Incurred on Behalf of Covered Beneficiaries: Collection from Third-party 
Payers (subpart B of part 757 of this chapter), and postal claims.
    (2) The Deputy Assistant Judge Advocate General (Claims and Tort 
Litigation) (Code 15) is the manager of the Navy claims system 
established to evaluate, adjudicate, and provide litigation support for 
claims arising under the acts listed above and is responsible to the 
Judge Advocate General for the management of that system. The claims 
system consists of the Claims

[[Page 390]]

and Tort Litigation Division of the Office of the Judge Advocate General 
(Code 15), and the attorneys and support personnel assigned to the Tort 
Claims Unit at Naval Station, Norfolk, Virginia. For economy of 
language, Naval Legal Service Offices and Naval Legal Service Office 
Detachments are referred to as Naval Legal Service Command Activities.
    (3) Commanding officers of commands receiving claims are responsible 
for complying with the guidance on investigations in Sec. 750.2 and Sec. 
750.3, the guidance on handling and forwarding claims found in Sec. 
750.5, and the guidance provided in the JAG Instruction 5800.7E (JAGMAN) 
\1\ of 20 June 2007.
---------------------------------------------------------------------------

    \1\ JAG Instruction 5800.7E (JAGMAN) may be retrieved at the 
official Web site of the United States Navy Judge Advocate General's 
Corps at http://www.jag.navy.mil.
---------------------------------------------------------------------------

    (b) This subpart A delineates general investigative and claims-
processing requirements to be followed in the handling of all incidents 
and claims within the provisions of this part. Where the general 
provisions of this subpart A conflict with the specific provisions of 
any subsequent subpart of this part, the specific provisions govern.

[57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53417, Sept. 19, 2007]



Sec. 750.2  Investigations: In general.

    (a) Conducting the investigation. The command where the incident 
giving rise to the claim is alleged to have happened is responsible for 
conducting an investigation in accordance with this part.
    (b) Thorough investigation. Every incident that may result in a 
claim against or in favor of the United States shall be promptly and 
thoroughly investigated under this part. Investigations convened for 
claims purposes are sufficiently complex that they should be performed 
with the assistance and under the supervision of a judge advocate or 
other attorney. Where the command has an attorney assigned, he shall be 
involved in every aspect of the proceedings. When an attorney is not 
assigned to the investigating command, consultation shall be sought from 
the appropriate Naval Legal Service Command activity.
    (c) Recovery barred. Even when recovery must be barred by statute or 
case law, all deaths, serious injuries, and substantial losses to 
property that are likely to give rise to claims must be investigated 
while the evidence is available. Claims against persons in the naval 
service arising from the performance of their official duties shall be 
investigated as though they were claims against the United States. When 
an incident involves an actual or potential claim against the United 
States for property damage only and the total amount likely to be paid 
does not exceed $5,000.00, an abbreviated investigative report may be 
submitted. Where this monetary figure may be exceeded, but the 
circumstances indicate an abbreviated report may be adequate to preserve 
the facts and protect the Government's claims interests, approval to 
submit a limited investigative report may be sought from the Office of 
the Judge Advocate General (Claims and Tort Litigation Division) (Code 
15), the Tort Claims Unit Norfolk, or the nearest Naval Legal Service 
Command activity.
    (d) Developing the facts. Any investigation convened for claims 
purposes must focus on developing the facts of the incident, i.e., the 
who, what, where, when, why, and how of the matter. Opinions on the 
possible liability of the United States under any of the claims statutes 
listed above shall not be expressed. Early and continuous consultation 
with claims attorneys at Naval Legal Service Command activities is 
essential to ensure the timely development of all necessary facts, the 
identification and preservation of relevant evidence, and to void the 
need for supplemental inquiries.
    (e) Attorney work product. (1) The convening order and the 
preliminary statement of an investigative report prepared to inquire 
into the facts of an incident giving or likely to give rise to a claim 
against the United States shall include the following:

    This investigation has been convened and conducted, and this report 
prepared, in contemplation of claims adjudication and litigation and for 
the express purpose of assisting

[[Page 391]]

attorneys representing the interests of the United States.

    (2) When an investigation is prepared by or at the direction of an 
attorney representing the Department of the Navy and is prepared in 
reasonable anticipation of litigation, it is exempt from mandatory 
disclosure under the Freedom of Information Act exemption (b)(5) and is 
normally privileged from discovery in litigation under the attorney work 
product privilege. 5 U.S.C. 552(b)(5). Unless an attorney prepares the 
report or personally directs its preparation, the investigation may not 
be privileged, even if it was prepared in reasonable anticipation of 
litigation.
    (f) Advance copy. An advance copy of an investigation conducted 
because a claim has been, or is likely to be, submitted shall be 
forwarded to the Tort Claims Unit Norfolk.

[57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53418, Sept. 19, 2007]



Sec. 750.3  Investigations: The report.

    (a) Purpose. The purpose of investigations into claims incidents is 
to gather all relevant information about the incident so adjudicating 
officers can either pay or deny the claim. The essential task of the 
investigating officer is to answer the questions of who, what, where, 
when, why and how? The Navy's best interests are served when the 
investigation is thorough and is performed in a timely manner so the 
claimant can be advised promptly of the action on the claim.
    (b) Duties of the investigating officer. It is the investigating 
officer's responsibility:
    (1) To interview all witnesses to the incident and prepare summaries 
of their comments. Obtaining signed statements of Government witnesses 
is not necessary. Summaries of the witnesses' remarks prepared by the 
investigating officer are quite sufficient and generally expedite the 
gathering of information. On the other hand, written signed statements 
should be obtained from the claimant, wherever possible;
    (2) To inspect the property alleged to have been damaged by the 
action of Government personnel;
    (3) To determine the nature, extent, and amount of any damage, and 
to obtain pertinent repair bills or estimates and medical, hospital, and 
associated bills necessary to permit an evaluation of the claimant's 
loss;
    (4) To obtain maintenance records of the Navy motor vehicle, plane, 
or other piece of equipment involved in the claim;
    (5) To reduce to writing and incorporate into an appropriate 
investigative report all pertinent statements, summaries, exhibits, and 
other evidence considered by the investigator in arriving at his 
conclusions; and,
    (6) To furnish claim forms to any person expressing an interest in 
filing a claim and to refer such personnel to the Office of the Judge 
Advocate General, Tort Claims Unit Norfolk, 9620 Maryland Avenue, Suite 
100, Norfolk, Virginia 23511-2989.
    (c) Content of the report. The written report of investigation shall 
contain information answering the questions mentioned in Sec. 750.3(a) 
and, depending on the nature of the incident, will include the 
following:
    (1) Date, time, and exact place the accident or incident occurred, 
specifying the highway, street, or road;
    (2) A concise but complete statement of the incident with reference 
to physical facts observed and any statements by the personnel involved;
    (3) Names, grades, organizations, and addresses of military 
personnel and civilian witnesses;
    (4) Opinions as to whether military or civilian employees involved 
in the incident were acting within the scope of their duties at the 
time;
    (5) Description of the Government property involved in the incident 
and the nature of any damage it sustained; and,
    (6) Descriptions of all private property involved.
    (d) Immediate report of certain events. The Navy or Marine Corps 
activity most directly involved in the incident shall notify the Judge 
Advocate General immediately by message, electronic mail, or telephone 
in any of the following circumstances:
    (1) Claims or possible claims arising out of a major disaster or out 
of an incident giving rise to five or more possible death or serious 
injury claims.

[[Page 392]]

    (2) Upon filing of a claim that could result in litigation that 
would involve a new precedent or point of law.
    (3) Claims or possible claims that involve or are likely to involve 
an agency other than the Department of the Navy.
    (e) Request for assistance. When an incident occurs at a place where 
the naval service does not have an installation or a unit conveniently 
located for conducting an investigation, the commanding officer or 
officer in charge with responsibility for performing the investigation 
may request assistance from the commanding officer or officer in charge 
of any other organization of the Department of Defense. Likewise, if a 
commanding officer or officer in charge of any other organization of the 
Department of Defense requests such assistance from a naval commanding 
officer or officer in charge, the latter should normally comply. If a 
complete investigation is requested it will be performed in compliance 
with the regulations of the requested service. These investigations are 
normally conducted without reimbursement for per diem, mileage, or other 
expenses incurred by the investigating unit or installation.
    (f) Report of Motor Vehicle Accident, Standard Form 91. RCS OPNAV 
5100-6. The operator of any Government motor vehicle involved in an 
accident of any sort shall be responsible for making an immediate report 
on the Operator's Report of Motor Vehicle Accident, Standard Form 91. 
This operator's report shall be made even though the operator of the 
other vehicle, or any other person involved, states that no claim will 
be filed, or the only vehicles involved are Government owned. An 
accident shall be reported by the operator regardless of who was 
injured, what property was damaged, or who was responsible. The 
operator's report shall be referred to the investigating officer, who 
shall be responsible for examining it for completeness and accuracy and 
who shall file it for future reference or for attachment to any 
subsequent investigative report of the accident.
    (g) Priority of the investigation. To ensure prompt investigation of 
every incident while witnesses are available and before damage has been 
repaired, the duties of an investigating officer shall ordinarily have 
priority over any other assignments he may have.
    (h) Contents of the report of investigation. The report should 
include the following items in addition to the requirements in Sec. 
750.3(c):
    (1) If pertinent to the investigation, the investigating officer 
should obtain a statement from claimant's employer showing claimant's 
occupation, wage or salary, and time lost from work as a result of the 
incident. In case of personal injury, the investigating officer should 
ask claimant to submit a written statement from the attending physician 
setting forth the nature and extent of injury and treatment, the 
duration and extent of any disability, the prognosis, and the period of 
hospitalization or incapacity.
    (2) A Privacy Act statement for each person who was asked to furnish 
personal information shall be provided. Social Security numbers of 
military personnel and civilian employees of the U.S. Government should 
be included in the report but should be obtained from available records, 
not from the individual.
    (3) Names, addresses, and ages of all civilians or military 
personnel injured or killed; names of insurance companies; information 
on the nature and extent of injuries, degree of permanent disability, 
prognosis, period of hospitalization, name and address of attending 
physician and hospital, and amount of medical, hospital, and burial 
expenses actually incurred; occupation and wage or salary of civilians 
injured or killed; and names, addresses, ages, relationship, and extent 
of dependency of survivors of any such person fatally injured should be 
included.
    (4) If straying animals are involved, a statement as to whether the 
jurisdiction has an ``open range law'' and, if so, reference to such 
statute.
    (5) A statement as to whether any person involved violated any State 
or Federal statute, local ordinance, or installation regulation and, if 
so, in what respect. The statute, ordinance, or regulation should be set 
out in full.
    (6) A statement on whether a police investigation was made. A copy 
of the police report of investigation should be included if available.

[[Page 393]]

    (7) A statement on whether arrests were made or charges preferred, 
and the result of any trial or hearing in civil or military courts.
    (i) Expert opinions. In appropriate cases the opinion of an expert 
may be required to evaluate the extent of damage to a potential 
claimant's property. In such cases the investigating officer should 
consult Navy-employed experts, experts employed by other departments of 
the U.S. Government, or civilian experts to obtain a competent 
assessment of claimant's damages or otherwise to protect the 
Government's interest. Any cost involved with obtaining the opinion of 
an expert not employed by the Navy shall be borne by the command 
conducting the investigation. Any cost involved in obtaining the opinion 
of a Navy-employed expert shall be borne by the command to which the 
expert is attached. Medical experts shall be employed only after 
consultation with the Chief, Bureau of Medicine and Surgery.
    (j) Action by command initiating the investigation and subsequent 
reviewing authorities. (1) The command initiating the investigation in 
accordance with Sec. 750.3 or Sec. 750.5 shall review the report of 
investigation. If additional investigation is required or omissions or 
other deficiencies are noted, the investigation should be promptly 
returned with an endorsement indicating that a supplemental 
investigative report will be submitted. If the original or supplemental 
report is in order, it shall be forwarded by endorsement, with any 
pertinent comments and recommendations. An advance copy of the 
investigation shall be forwarded to the Tort Claims Unit Norfolk.
    (2) A reviewing authority may direct that additional investigation 
be conducted, if considered necessary. The initial investigation should 
not be returned for such additional investigation, but should be 
forwarded by an endorsement indicating that the supplemental material 
will be submitted. The report shall be endorsed and forwarded to the 
next-level authority with appropriate recommendations including an 
assessment of the responsibility for the incident and a recommendation 
as to the disposition of any claim that may subsequently be filed. If a 
reviewing authority may be an adjudicating authority for a claim 
subsequently filed, one copy of the report shall be retained by such 
authority for at least 2 years after the incident.
    (3) It is essential that each investigative report reflect that a 
good faith effort was made to comply with the Privacy Act of 1974 (5 
U.S.C. 552a) as implemented by 32 CFR 701, subpart F. Any indication of 
noncompliance shall be explained either in the preliminary statement of 
the forwarding endorsements and, when required, corrected.

[57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53418, Sept. 19, 2007]



Sec. 750.4  Claims: In general.

    (a) Claims against the United States. Claims against the United 
States shall receive prompt and professional disposition. Every effort 
will be made to ensure an investigation is thoroughly and accurately 
completed, the claimant's allegations evaluated promptly, and where 
liability is established, a check issued as quickly as possible to 
prevent further harm to a meritorious claimant. Similarly, claims not 
payble will be processed promptly and the claimant advised of the 
reasons for the denial.
    (b) Claims in favor of the United States. Potential claims in favor 
of the United States will be critically evaluated and, where 
appropriate, promptly asserted and aggressively pursued.
    (c) Assistance to claimants. Claimants or potential claimants who 
inquire about their rights or the procedures to be followed in the 
resolution of their claims should be referred to the Tort Claims Unit 
Norfolk. The Tort Claims Unit Norfolk will provide claims forms, advise 
where the forms should be filed, and inform the requester of the type of 
substantiating information required. Claims officers may provide advice 
on the claims process but shall not provide advice or opinions about the 
merits or the wisdom of filing a particular claim. While claims officers 
have a responsibility to provide general information about claims, they 
must consider 18 U.S.C. 205, which makes it a crime for an officer or 
employee of the United States to act as an agent or an

[[Page 394]]

attorney in the prosecution of any claim against the United States.

[57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53418, Sept. 19, 2007]



Sec. 750.5  Claims: Proper claimants.

    (a) Damage to property cases. A claim for damage to, or destruction 
or loss of, property shall be presented by the owner of the property or 
a duly authorized agent or legal representative. ``Owner'' includes a 
bailee, lessee, or mortgagor, but does not include a mortgagee, 
conditional vendor, or other person having title for security purposes 
only.
    (b) Personal injury and death cases. A claim for personal injury 
shall be presented by the person injured or a duly authorized agent or 
legal representative, or, in the case of death, by the properly 
appointed legal representative of the deceased's estate or survivor 
where authorized by State law.
    (c) Subrogation. A subrogor and a subrogee may file claims jointly 
or separately. When separate claims are filed and each claim 
individually is within the Tort Claims Unit Norfolk's adjudicating 
authority limits, they may be processed by the Tort Claims Unit, even if 
the aggregate of such claims exceeds the Tort Claims Unit's monetary 
authority. However, if the aggregate of the claims exceeds the sum for 
which approval of the Department of Justice (DoJ) is required, currently 
$200,000.00 under the Federal Tort Claims Act, then the Tort Claims Unit 
Norfolk must obtain DoJ approval via the Office of the Judge Advocate 
General, Claims and Tort Litigation Division, before the claims may be 
settled.
    (d) Limitation on transfers and assignment. All transfers and 
assignments made of any claim upon the United States, and all powers of 
attorney, orders, or other authorities for receiving payment of any such 
claim, are absolutely null and void unless they are made after the 
allowance of such a claim, the ascertainment of the amount due, and the 
issuing of a warrant for the payment thereof. 31 U.S.C. 203. This 
statutory provision does not apply to the assignment of a claim by 
operation of law, as in the case of a receiver or trustee in bankruptcy 
appointed for an individual, firm, or corporation, or the case of an 
administrator or executor of the estate of a person deceased, or an 
insurer subrogated to the rights of the insured.

[57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53418, Sept. 19, 2007]



Sec. 750.6  Claims: Presentment.

    (a) Written demand and Standard Form 95. A claim shall be submitted 
by presenting a written statement with the amount of the claim expressed 
in a sum certain, and, as far as possible, describing the detailed facts 
and circumstances surrounding the incident from which the claim arose. 
The Claim for Damage or Injury, Standard Form 95, shall be used whenever 
practical for claims under the Federal Tort and Military Claims Acts. 
Claims under the Personnel Claims Act shall be submitted on DD Form 
1842.\2\ The claim and all other papers requiring the signature of the 
claimant shall be signed by the claimant personally or by a duly 
authorized agent. If signed by an agent or legal representative, the 
claim shall indicate the title or capacity of the person signing and be 
accompanied by evidence of appointment. When more than one person has a 
claim arising from the same incident, each person shall file a claim 
separately.
---------------------------------------------------------------------------

    \2\ The Claim for Damage or Injury, Standard Form 95 and the DD Form 
1842 are available at the Web site of the United States Navy Judge 
Advocate General's Corps at http://www.jag.navy.mil.
---------------------------------------------------------------------------

    (b) To whom submitted. Claims under the Federal Tort and Military 
Claims Acts should be submitted to the Tort Claims Unit Norfolk at the 
address provided in Sec. 750.3 above, or the Office of the Judge 
Advocate General, Claims and Tort Litigation Division, 1322 Patterson 
Avenue, SE., Suite 3000, Washington Navy Yard, Washington, DC 20374-
5066. Claims may also be submitted to the commanding officer of the Navy 
or Marine Corps activity involved if known, the commanding officer of 
any Navy or Marine activity, preferably the one nearest to where the 
accident occurred, or the local Naval Legal Service Command activity. 
The claim should be immediately forwarded to the Tort Claims Unit 
Norfolk.

[72 FR 53418, Sept. 19, 2007]

[[Page 395]]



Sec. 750.7  Claims: Action by receiving command.

    (a) Record date of receipt. The first command receiving a claim 
shall stamp or mark the date of receipt on the letter or claim form. The 
envelope in which the claim was received shall be preserved.
    (b) Determine the military activity involved. The receiving command 
shall determine the Navy or Marine Corps activity most directly involved 
with the claim--usually the command where the incident is alleged to 
have occurred--and forward a copy of the claim to that activity. The 
original claim (and the transmittal letter, if a copy is forwarded to a 
more appropriate activity) should immediately be sent to the Tort Claims 
Unit Norfolk.
    (c) Initiate an investigation. A JAGMAN Litigation Report 
Investigation shall be commenced immediately by the command most 
directly involved with the claim. Once the investigation has been 
completed, an advance copy shall be forwarded by the convening authority 
to the Tort Claims Unit Norfolk. Waiting until endorsements have been 
obtained before providing a copy of the investigation to the Tort Claims 
Unit Norfolk is neither required nor desirable. The facts of the 
incident must be made known to cognizant claims personnel as soon as 
possible.

[57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53419, Sept. 19, 2007]



Sec. 750.8  Claims: Responsibility of the Tort Claims Unit Norfolk.

    (a) Reviewing prior actions. The adjudicating authority (Tort Claims 
Unit Norfolk) determines whether an adequate investigation has been 
conducted, whether the initial receipt date is recorded on the face of 
the claim, and whether all holders of the investigation, if completed, 
are advised of the receipt of the claim.
    (b) Determining the sufficiency of the claim. The claim should be 
reviewed and a determination of its sufficiency made. If the claim is 
not sufficient as received, it shall be immediately returned to the 
party who submitted it along with an explanation of the insufficiency. 
This does not constitute denial of the claim. The claim shall not be 
considered ``presented'' until it is received in proper form.
    (c) Adjudicating the claim. (1) The Tort Claims Unit Norfolk shall 
evaluate and either approve or disapprove all claims within its 
authority, except where the payment of multiple Federal Torts Claims Act 
claims arising from the same incident will exceed $200,000.00 in the 
aggregate and thereby require approval of DoJ. In this latter instance, 
the Torts Claims Unit Norfolk shall contact the Office of the Judge 
Advocate General, Claims and Tort Litigation Division (OJAG Code 15).
    (2) The Tort Claims Unit Norfolk shall evaluate and, where liability 
is established, attempt to settle claims for amounts within its 
adjudicating authority. Negotiation at settlement figures above the Tort 
Claims Unit Norfolk's payment limits may be attempted if the claimant is 
informed that the final decision on the claim will be made at a higher 
level.
    (3) If a substantiated claim cannot be approved, settled, or 
compromised within the settlement authority limits of the Tort Claims 
Unit Norfolk, the Tort Claims Unit Norfolk shall contact OJAG Code 15 to 
seek additional settlement authority. To obtain the additional 
settlement authority, the following materials shall be forwarded to OJAG 
Code 15:
    (i) A letter of transmittal containing a recommendation on 
resolution of the claim.
    (ii) A memorandum of law containing a review of applicable law, an 
evaluation of liability, and a recommendation on the settlement value of 
the case. This memorandum should concentrate on the unusual aspects of 
applicable law, chronicle the attempts to resolve the case, provide 
information about the availability of witnesses, and outline any other 
information material to a resolution of the claim, i.e., prior dealings 
with the claimant's attorney, local procedural rules, or peculiarities 
that may make trial difficult. The memorandum should be tailored to the 
complexity of the issues presented and provide any expert opinions that 
have been obtained in the case by the Navy or the claimant.
    (d) Preparing litigation reports. The Tort Claims Unit Norfolk will 
prepare

[[Page 396]]

a litigation report when a lawsuit is filed and the complaint is 
received. The report is sent directly to the DoJ official or the U.S. 
Attorney having cognizance of the matter. The report is a narrative 
summary of the facts upon which the suit is based and has as enclosures 
the claims file and a memorandum of law on the issues presented. A copy 
of the report and all enclosures should be sent to the Judge Advocate 
General (OJAG Code 15).

[72 FR 53419, Sept. 19, 2007]



Sec. 750.9  Claims: Payments.

    Claims approved for payment shall be expeditiously forwarded to the 
disbursing office or the General Accounting Office depending on the 
claims act involved and the amount of the requested payment. Generally, 
payment of a Federal tort claim above $2,500.00 requires submission of 
the payment voucher to the General Accounting Office. All other field 
authorized payment vouchers are submitted directly to the servicing 
disbursing office for payment.



Sec. 750.10  Claims: Settlement and release.

    (a) Fully and partially approved claims. When a claim is approved 
for payment in the amount claimed, settlement agreement may not be 
necessary. When a federal tort, military, or non-scope claim is approved 
for payment in a lesser amount than that claimed, the claimant must 
indicate in writing a willingness to accept the offered amount in full 
settlement and final satisfaction of the claim. In the latter instance, 
no payment will be made until a signed settlement agreement has been 
received.
    (b) Release. (1) Acceptance by the claimant of an award or 
settlement made by the Secretary of the Navy or designees, or the 
Attorney General or designees, is final upon acceptance by the claimant. 
Acceptance is a complete release by claimant of any claim against the 
United States by reason of the same subject manner. Claimant's 
acceptance of an advance payment does not have the same effect.
    (2) The claimant's acceptance of an award or settlement made under 
the provisions governing the administrative settlement of Federal tort 
claims or the civil action provisions of 28 U.S.C. 1346(b) also 
constitutes a complete release of any claim against any employee of the 
Government whose act or omission gave rise to the claim.

[57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53419, Sept. 19, 2007]



Sec. 750.11  Claims: Denial.

    A final denial of any claim within this chapter shall be in writing 
and sent to the claimant, his attorney, or legal representative by 
certified or registered mail with return receipt requested. The denial 
notification shall include a statement of the reason or reasons for the 
denial. The notification shall include a statement that the claimant 
may:
    (a) If the claim is cognizable under the Federal Tort Claims Act, 
file suit in the appropriate United States District Court within 6 
months of the date of the denial notification.
    (b) If the claim is cognizable under the Military Claims Act, appeal 
in writing to the Office of the Judge Advocate General, Claims and Tort 
Litigation Division within 30 days of the receipt of the denial 
notification. The notice of denial shall inform the claimant or his 
representative that is suit is not possible under the act.

[57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53419, Sept. 19, 2007]



Sec. 750.12  Claims: Action when suit filed.

    (a) Action required of any Navy official receiving notice of suit. 
The commencement, under the civil action provisions of the Federal Tort 
Claims Act (28 U.S.C. 1346(b)), of any action against the United States 
and involving the Navy, that comes to the attention of any official in 
connection with his official duties, shall be reported immediately to 
the Tort Claims Unit Norfolk to take any necessary action and provide 
prompt notification to the Judge Advocate General. The commencement of a 
civil action against an employee of the Navy for actions arising from 
the performance of official duties shall be reported in the same manner.

[[Page 397]]

    (b) Steps upon commencement of civil action. Upon receipt by the 
Judge Advocate General or Tort Claims Unit Norfolk of notice from the 
DoJ or other source that a civil action involving the Navy has been 
initiated under the civil action provisions of the Federal Tort Claims 
Act, and there being no investigative report available at the 
headquarters, a request shall be made to the commanding officer of the 
appropriate Naval Legal Service Command activity for an investigative 
report into the incident. If there is not a completed investigation, the 
request shall be forwarded to the appropriate naval activity to convene 
and complete such a report. The commanding officer of the Naval Legal 
Service Command activity shall contact the Tort Claims Unit Norfolk to 
determine whether an administrative claim had been filed and, if 
available information indicates none had, the Tort Claims Unit Norfolk 
shall advise the Office of the Judge Advocate General (Claims and Tort 
Litigation Division) immediately.

[57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53419, Sept. 19, 2007]



Sec. 750.13  Claims: Single service responsibility.

    (a) The Department of Defense has assigned single-service 
responsibility for processing claims in foreign countries under the 
following acts. The service and country assignments are in DODDIR 5515.8 
of 9 June 1990.
    (1) Foreign Claims Act (10 U.S.C. 2734);
    (2) Military Claims Act (10 U.S.C. 2733);
    (3) International Agreements Claims Act (10 U.S.C. 2734a and b), on 
the pro-rata cost sharing of claims pursuant to international agreement;
    (4) NATO Status of Forces Agreement (4 UST 1792, TIAS 2846) and 
other similar agreements;
    (5) Medical Care Recovery Act (42 U.S.C. 2651-2653) claims for 
reimbursement for medical care furnished by the United States;
    (6) Nonscope Claims Act (10 U.S.C. 2737), claims not cognizable 
under any other provision of law;
    (7) Federal Claims Collection Act (31 U.S.C. Sections 3701, 3702, 
and 3711), claims and demands by the United States Government; and
    (8) Public Law 87-212 (10 U.S.C. 2736), advance or emergency 
payments.
    (b) Single service assignments for processing claims mentioned above 
are as follows:
    (1) Department of the Army: Austria, Belgium, El Salvador, the 
Federal Republic of Germany, Grenada, Honduras, Hungary, Korea, Iraq, 
Kuwait, Latvia, Lithuania, the Marshall Islands, the Netherlands, 
Poland, Romania, Slovakia, Slovenia and Switzerland, and as the 
Receiving State Office in the United States under 10 U.S.C. Sections 
2734a--2734b and the NATO Status of Forces Agreement, and other Status 
of Forces Agreements with countries not covered by the NATO agreement. 
Claims arising from Operation Joint Endeavor, including the former 
Yugoslavia, Hungary, Slovakia and the Czech Republic, as well as the 
Rwanda Refugee Crisis Area are also assigned to the Army.
    (2) Department of the Navy: Bahrain, Greece, Iceland, Israel, Italy, 
Spain and the United Arab Emirates.
    (3) Department of the Air Force: Australia, Azores, Canada, Cyprus, 
Denmark, India, Japan, Luxembourg, Morocco, Nepal, Norway, Pakistan, 
Saudi Arabia, Tunisia, Turkey, the United Kingdom, Egypt, Oman, and 
claims involving, or generated by, the United States Central Command 
(CENTCOM) and the United States Special Operations Command (SOCOM), that 
arise in countries not specifically assigned to the Departments of the 
Army and the Navy.
    (c) U.S. forces afloat cases under $2,500.00. Notwithstanding the 
single service assignments above, the Navy may settle claims under 
$2,500.00 caused by personnel not acting within the scope of employment 
and arising in foreign ports visited by U.S. forces afloat and may, 
subject to the concurrence of the authorities of the receiving state 
concerned, process such claims.

[57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53420, Sept. 19, 2007]

[[Page 398]]



Sec. Sec. 750.14-750.20  [Reserved]



                    Subpart B_Federal Tort Claims Act



Sec. 750.21  Scope of subpart B.

    This subpart provides information regarding the administrative 
processing and consideration of claims against the United States under 
the FTCA. The FTCA is a limited waiver of sovereign immunity. Under the 
FTCA, an individual can seek money damages for personal injury, death, 
or property damage caused by the negligent or wrongful act or omission 
of a Federal employee acting within the scope of employment. The FTCA 
also provides for compensation for injuries caused by certain 
intentional, wrongful conduct. The liability of the United States is 
determined in accordance with the law of the State where the act or 
omission occured.



Sec. 750.22  Exclusiveness of remedy.

    (a) The Federal Employees Liability Reform and Tort Compensation Act 
of 1988, Public Law 100-694 (amending 28 U.S.C. 2679(b) and 2679(d)), 
provides that the exclusive remedy for damage or loss of property, or 
personal injury or death arising from the negligent or wrongful acts or 
omissions of all Federal employees, acting within the scope of their 
employment, will be against the United States. This immunity from 
personal liability does not extend to allegations of constitutional 
torts, nor to allegations of violations of statutes specifically 
authorizing suits against individuals.
    (b) Other statutory provisions create immunity from personal 
liability for specific categories of Federal employees whose conduct, 
within the scope of their employment, gives rise to claims against the 
Government. Department of Defense health care providers are specifically 
protected by 10 U.S.C. 1089, the Gonzalez Act. DOD attorneys are 
specifically protected by 10 U.S.C. 1054.



Sec. 750.23  Definitions.

    (a) Negligent conduct. Generally, negligence is the failure to 
exercise that degree of care, skill, or diligence a reasonable person 
would exercise under similar circumstances. Negligent conduct can result 
from either an act or a failure to act. The law of the place where the 
conduct occurred will determine whether a cause of action lies against 
the Government. 28 U.S.C. 1346(b) and 2674.
    (b) Intentional torts. Although any employee who commits an 
intentional tort is normally considered to be acting outside the scope 
of employment, the FTCA does allow claimants to seek compensation for 
injuries arising out of the intentional torts of assault, battery, false 
imprisonment, false arrest, abuse of process, and malicious prosecution, 
if committed by a Federal investigative or law enforcement officer. An 
``investigative or law enforcement officer'' is any officer of the 
United States empowered by law to execute searches, to seize evidence, 
or to make arrests for violations of Federal law. 28 U.S.C. 2680(h).
    (c) Government employees--(1) General. ``Employee of the 
Government,'' defined at 28 U.S.C. 2671, includes officers or employees 
of any Federal agency, members of the U.S. military or naval forces, and 
persons acting on behalf of a Federal agency in an official capacity.
    (2) Government contractors. Government (also referred to as 
independent) contractors, are those individuals or businesses who enter 
into contracts with the United States to provide goods or services. 
Because the definition of ``Federal agency,'' found at 28 U.S.C. 2671, 
specifically excludes ``any contractor with the United States,'' the 
United States is generally not liable for the negligence of Government 
contractors. There are, however, three limited exceptions to the general 
rule, under which a cause of action against the United States has been 
found to exist in some jurisdictions. They are:
    (i) Where the thing or service contracted for is deemed to be an 
``inherently dangerous activity'';
    (ii) where a nondelegable duty in the employer has been created by 
law; or,
    (iii) where the employer retains control over certain aspects of the 
contract and fails to discharge that control in a reasonable manner.

[[Page 399]]

    (3) Employees of nonappropriated-fund activities. Nonappropriated-
fund activities are entities established and operated for the benefit of 
military members and their dependents, and have been judicially 
determined to be ``arms'' of the Federal government. These entities 
operate from self-generated funds, rather than from funds appropriated 
by Congress. Examples include Navy and Marine Corps Exchanges, officer 
or enlisted clubs, and recreational services activities. A claim arising 
out of the act or omission of an employee of a nonappropriated-fund 
activity not located in a foreign country, acting within the scope of 
employment, is an act or omission committed by a Federal employee and 
will be handled in accordance with the FTCA.
    (d) Scope of employment. ``Scope of employment'' is defined by the 
law of respondeat superior (master and servant) of the place where the 
act or omission occurred. Although 28 U.S.C. 2671 states that acting 
within the scope of employment means acting in the line of duty, the 
converse is not always true. For administrative purposes, a Government 
employee may be found ``in the line of duty,'' yet not meet the criteria 
for a finding of ``within the scope of employment'' under the law of the 
place where the act or omission occurred.



Sec. 750.24  Statutory/regulatory authority.

    The statutory provisions of the Federal Tort Claims Act (FTCA) are 
at 28 U.S.C. 1346(b), 2671-2672, and 2674-2680. The Attorney General of 
the United States has issued regulations on administrative claims filed 
under the FTCA at 28 CFR part 14. If the provisions of this section and 
the Attorney General's regulations conflict, the Attorney General's 
regulations prevail.



Sec. 750.25  Scope of liability.

    (a) Territorial limitations. The FTCA does not apply to any claim 
arising in a foreign country. 28 U.S.C. 2680(k) and Beattie v. United 
States, 756 F.2d 91 (D.C. Cir. 1984).
    (b) Exclusions from liability. Statutes and case law have 
established categories of exclusions from FTCA liability.
    (1) Statutory exclusions. Section 2680 of Title 28 lists claims not 
cognizable under the FTCA. They include:
    (i) Claims based on the exercise or performance of, or the failure 
to exercise or perform, a discretionary Government function;
    (ii) Admiralty claims under 46 U.S.C. 741-752 or 781-790. Claims 
under the Death on the High Seas Act (46 U.S.C. 761), however, are 
cognizable under the FTCA. All admiralty claims will be referred to the 
Judge Advocate General for adjudication. Admiralty claims against the 
Navy shall be processed under part 752 of this Chapter;
    (iii) Claims arising from intentional torts, except those referred 
to in Sec. 750.23(b);
    (iv) Claims arising from the combat activities of the military or 
naval forces, or the Coast Guard, during time of war.
    (2) Additional claims not payable. Although not expressly 
statutorily excepted, the following types of claims shall not be paid 
under the FTCA:
    (i) A claim for personal injury or death of a member of the armed 
forces of the United States incurred incident to military service or 
duty. Compare United States v. Johnson, 481 U.S. 681 (1987); Feres v. 
United States, 340 U.S. 135 (1950) with Brooks v. United States, 337 
U.S. 49 (1949);
    (ii) Any claim by military personnel or civilian employees of the 
Navy, paid from appropriated funds, for personal property damage 
occurring incident to service or Federal employment, cognizable under 31 
U.S.C. 3721 and the applicable Personnel Claims Regulations, 32 CFR part 
751;
    (iii) Any claim by employees of nonappropriated-fund activities for 
personal property damage occurring incident to Federal employment. These 
claims will be processed as indicated in 32 CFR part 756;
    (iv) Any claim for personal injury or death covered by the Federal 
Employees' Compensation Act (5 U.S.C. 8116c);
    (v) Any claim for personal injury or death covered by the Longshore 
and Harbor Workers' Compensation Act (33 U.S.C. 905 and 5 U.S.C. 8171);

[[Page 400]]

    (vi) That portion of any claim for personal injury or property 
damage, caused by the negligence or fault of a Government contractor, to 
the extent such contractor may have assumed liability under the terms of 
the contract (see United States v. Seckinger, 397 U.S. 203 (1969) and 
Sec. 750.23(c)(2);
    (vii) Any claim against the Department of the Navy by another 
Federal agency. Property belonging to the Government is not owned by any 
one department of the Government. The Government does not reimburse 
itself for the loss of its own property except where specifically 
provided for by law; and
    (viii) Any claim for damage to a vehicle rented pursuant to travel 
orders.



Sec. 750.26  The administrative claim.

    (a) Proper claimant. See Sec. 750.5 of this part.
    (b) Claim presented by agent or legal representative. A claim filed 
by an agent or legal representative will be filed in the name of the 
claimant; be signed by the agent or legal representative; show the title 
or legal capacity of the person signing; and be accompanied by evidence 
of the individual's authority to file a claim on behalf of the claimant.
    (c) Proper claim. A claim is a notice in writing to the appropriate 
Federal agency of an incident giving rise to Government liability under 
the FTCA. It must include a demand for money damages in a definite sum 
for property damage, personal injury, or death alleged to have occurred 
by reason of the incident. The Attorney General's regulations specify 
that the claim be filed on a Standard Form 95 or other written 
notification of the incident. If a letter or other written notification 
is used, it is essential that it set forth the same basic information 
required by Standard Form 95. Failure to do so may result in a 
determination that the administrative claim is incomplete. A suit may be 
dismissed on the ground of lack of subject matter jurisdiction based on 
claimant's failure to present a proper claim as required by 28 U.S.C. 
2675(a).
    (d) Presentment. A claim is deemed presented when received by the 
Navy in proper form. A claim against another agency, mistakenly 
addressed to or filed with the Navy shall be transferred to the 
appropriate agency, if ascertainable, or returned to the claimant. A 
claimant presenting identical claims with more than one agency should 
identify every agency to which the claim is submitted on every claim 
form presented. Claims officers shall coordinate with all other affected 
agencies and ensure a lead agency is designated. 28 CFR 14.2.



Sec. 750.27  Information and supporting documentation.

    (a) Proper documentation. Depending on the type of claim, claimants 
may be required to submit information, as follows:
    (1) Death. (i) An authenticated death certificate or other competent 
evidence showing cause of death, date of death, and age of the decedent;
    (ii) Decedent's employment or occupation at time of death, including 
monthly or yearly earnings and the duration of last employment;
    (iii) Full names, addresses, birth dates, relationship, and marital 
status of the decedent's survivors, including identification of 
survivors dependent for support upon decedent at the time of death;
    (iv) Degree of support provided by decedent to each survivor at time 
of death;
    (v) Decedent's general physical and mental condition before death;
    (vi) Itemized bills for medical and burial expenses;
    (vii) If damages for pain and suffering are claimed, a physician's 
detailed statement specifying the injuries suffered, duration of pain 
and suffering, any drugs administered for pain, and the decedent's 
physical condition during the interval between injury and death; and,
    (viii) Any other evidence or information which may affect the 
liability of the United States.
    (2) Personal injury. (i) A written report by attending physician or 
dentist on the nature and extent of the injury, nature and extent of 
treatment, any degree of temporary or permanent disability, the 
prognosis, period of hospitalization, any diminished earning capacity. 
In addition, the claimant

[[Page 401]]

may be required to submit to a physical or mental examination by a 
physician employed by any Federal agency. Upon written request, a copy 
of the report of the examining physician shall be provided;
    (ii) Itemized bills for medical, dental, and hospital expenses 
incurred, or itemized receipts of payments of such expenses;
    (iii) A statement of expected expenses for future treatment;
    (iv) If a claim is made for lost wages, a written statement from the 
employer itemizing actual time and wages lost;
    (v) If a claim is made for lost self-employed income, documentary 
evidence showing the amount of earnings actually lost; and
    (vi) Any other evidence or information which may affect the 
liability of the United States for the personal injury or the damages 
claimed.
    (3) Property damage. (i) Proof of ownership;
    (ii) A detailed statement of the amount claimed for each item of 
property;
    (iii) An itemized receipt of payment for necessary repairs or 
itemized written estimates of the cost of repairs;
    (iv) A statement listing date of purchase, purchase price, and 
salvage value where repair is not economical; and
    (v) Any other evidence or information which may affect the liability 
of the United States for the property damage claimed.
    (b) Failure to submit necessary documentation. If claimant fails to 
provide sufficient supporting documentation, claimant should be notified 
of the deficiency. If after notice of the deficiency, including 
reference to 28 CFR 14.4, the information is still not supplied, two 
follow-up requests should be sent by certified mail, return receipt 
requested. If after a reasonable period of time the information is still 
not provided, the appropriate adjudicating authority should deny the 
claim.

[57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53420, Sept. 19, 2007]



Sec. 750.28  Amendment of the claim.

    A proper claim may be amended at any time prior to settlement, 
denial, or the filing of suit. An amendment must be submitted in writing 
and must be signed by the claimant or duly authorized agent or legal 
representative. No finally denied claim for which reconsideration has 
not been requested under Sec. 750.31 may be amended.



Sec. 750.29  Investigation and examination.

    Subpart A of this part requires an investigation for every incident 
that may result in a claim against or in favor of the United States. 
Where a previously unanticipated claim is filed against the Government 
and an investigation has not already been conducted, the appropriate 
claims officer shall immediately request an investigation. See subpart A 
of this part for specific action required by an adjudicating authority.



Sec. 750.30  Denial of the claim.

    Final denial of an administrative claim shall be in writing and 
shall be sent to the claimant, his duly authorized agent or legal 
representative by certified or registered mail, with return receipt 
requested. The notification of final denial shall include the reasons 
for the denial. The notification shall include a statement informing the 
claimant of his right to file suit in the appropriate Federal district 
court not later than 6 months after the date of the mailing of the 
notification. 28 CFR 14.9(a).



Sec. 750.31  Reconsideration.

    (a) Request. Prior to the commencement of suit and prior to the 
expiration of the 6-month period for filing suit, a claimant or his duly 
authorized agent or legal representative may present a request for 
reconsideration to the authority who denied the claim. The request shall 
be in writing and shall state the reasons for the requested 
reconsideration. A request for reconsideration is presented on the date 
it is received by the DON. 28 CFR 14.9(b).
    (b) Proper basis. A request for reconsideration shall set forth 
claimant's reasons for the request, and shall include any supplemental 
supporting evidence or information. Any writing communicating a desire 
for reconsideration that reasonably appears to have been presented 
solely for the purpose of

[[Page 402]]

extending the statutory period for filing suit, shall not be treated as 
a request for reconsideration. Claimant or claimant's authorized 
representative shall be notified promptly that the writing is not 
considered a proper request for reconsideration.
    (c) Effect of presentment of request. The presentment of a proper 
request for reconsideration starts a new 6-month period for the DON to 
act on the request to reconsider. The claimant may not file suit until 
the expiration of the new 6-month period, or until after the date of 
mailing of the final denial of the request. Final denial of a request 
for reconsideration shall be accomplished in the manner prescribed in 
Sec. 750.30. 28 CFR 14.9(b).



Sec. 750.32  Suits under the Federal Tort Claims Act (FTCA).

    (a) Venue. Venue is proper only in the judicial district where the 
plaintiff resides or where the act or omission complained of occurred. 
28 U.S.C. 1402.
    (b) Jury trial. There is no right to trial by jury in suits brought 
under the FTCA. 28 U.S.C. 2402.
    (c) Settlement. The Attorney General of the United States, or 
designee, may arbitrate, compromise, or settle any action filed under 
the FTCA. 28 U.S.C. 2677.
    (d) Litigation support--(1) Who provides. The adjudicating authority 
holding a claim at the time suit is filed shall be responsible for 
providing necessary assistance to the Department of Justice official or 
U.S. Attorney responsible for defending the Government's interests.
    (2) Litigation report. A litigation report, including a legal 
memorandum emphasizing anticipated issues during litigation, shall be 
furnished to the appropriate Department of Justice official or U.S. 
Attorney.
    (3) Pretrial discovery. Complete and timely responses to discovery 
requests are vital to the effective defense of tort litigation. Subject 
to existing personnel and resources available, appropriate assistance 
shall be provided. The Judge Advocate General should be notified 
promptly when special problems are encountered in providing the 
requested assistance.
    (4) Preservation of evidence. Tort litigation is often accomplished 
over an extended period of time. Every effort shall be made to preserve 
files, documents, and other tangible evidence that may bear on 
litigation. Destruction of such evidence, even in accordance with 
routine operating procedures, undermines defense of a case.



Sec. 750.33  Damages.

    (a) Generally. The measure of damages is determined by the law of 
the place where the act or omission occurred. When there is a conflict 
between local and applicable Federal law, the latter governs. 28 U.S.C. 
1346(b).
    (b) Limitations on liability. The United States is not liable for 
interest prior to judgment or for punitive damages. In a death case, if 
the place where the act or omission complained of occurred provides for 
only punitive damages, the United States will be liable in lieu thereof, 
for actual or compensatory damages. 28 U.S.C. 2674.
    (c) Setoff. The United States is not obligated to pay twice for the 
same injury. Claimants under the FTCA may have received Government 
benefits or services as the result of the alleged tort. The cost of 
these services or benefits shall be considered in arriving at any award 
of damages. For example, the cost of medical or hospital services 
furnished at Government expense, including TRICARE payments, shall be 
considered. Additionally, benefits or services received under the 
Veterans Act (38 U.S.C. 101-800) must be considered. Brooks v. United 
States, 337 U.S. 49 (1949).
    (d) Suit. Any damage award in a suit brought under the FTCA is 
limited to the amount claimed administratively unless based on newly 
discovered evidence. 28 U.S.C. 2675(b). Plaintiff must prove the 
increased demand is based on facts not reasonably discoverable at the 
time of the presentment of the claim or on intervening facts relating to 
the amount of the claim.

[57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53420, Sept. 19, 2007]



Sec. 750.34  Settlement and payment.

    (a) Settlement agreement--(1) When required. A settlement agreement, 
signed by the claimant, must be received prior

[[Page 403]]

to payment in every case in which the claim is either:
    (i) Settled for less than the full amount claimed, or
    (ii) The claim was not presented on a Standard Form 95.
    (2) Contents. Every settlement agreement must contain language 
indicating payment is in full and final settlement of the applicable 
claim. Each settlement agreement shall contain language indicating 
acceptance of the settlement amount by the claimant, or his agent or 
legal representative, shall be final and conclusive on the claimant, or 
his agent or legal representative, and any other person on whose behalf 
or for whose benefit the claim has been presented, and shall constitute 
a complete release of any claim against the United States and against 
any employee of the Government whose conduct gave rise to the claim, by 
reason of the same subject matter. 28 CFR 14.10(b). In cases where 
partial payment will benefit both claimant and the Government, such as 
payment for property damage to an automobile, the settlement agreement 
shall be tailored to reflect the terms of the partial settlement. All 
settlement agreements shall contain a recitation of the applicable 
statutory limitation of attorneys fees. 28 U.S.C. 2678.
    (b) DON role in settlement negotiations involving the U.S. Attorney 
or DOJ. Agency concurrence is generally sought by the Department of 
Justice or U.S. Attorney's office prior to settlement of suits involving 
the DON. Requests for concurrence in settlement proposals shall be 
referred to the appropriate DON adjudicating authority with primary 
responsibility for monitoring the claim. Adjudicating authorities shall 
consult with the Judge Advocate General concerning proposed settlements 
beyond their adjudicating authority.
    (c) Payment of the claim--(1) Statutory authority. Pursuant to 28 
U.S.C. 2672 and in accordance with 28 CFR 14.6(a), the Secretary of the 
Navy or designee, acting on behalf of the United States may compromise 
or settle any claim filed against the Navy under the FTCA, provided any 
award, compromise, or settlement by the Navy in excess of $200,000.00 
may be effected only with the prior written approval of the Attorney 
General or designee. Title 28 CFR 14.6 requires consultation with the 
Department of Justice prior to compromise or settlement of a claim in 
any amount when:
    (i) A new precedent or a new point of law is involved;
    (ii) A question of policy is or may be involved;
    (iii) The United States is or may be entitled to indemnity or 
contribution from a third party and the agency is unable to adjust the 
third party claim;
    (iv) The compromise of a particular claim, as a practical matter, 
will or may control the disposition of a related claim in which the 
amount to be paid may exceed $100,000.00; or
    (v) The DON is informed or is otherwise aware that the United States 
or an employee, agent, or cost-plus contractor of the United States is 
involved in litigation based on a claim arising out of the same incident 
or transaction.
    (2) Specific delegation and designation--(i) Payment authority.

       Delegated and Designated Authority Federal Tort Claims Act

Judge Advocate General--$200,000.00
Deputy Judge Advocate General--$200,000.00
Assistant Judge Advocate General (General Law)--$200,000.00
Deputy Assistant Judge Advocate General (Claims and Tort Litigation) and 
Deputy Division Director--$200,000.00
Head, Tort Claims Branch (Claims and Tort Litigation)--$200,000.00


Any payment of over $200,000.00 must be approved by DoJ. The Judge 
Advocate General, the Deputy Judge Advocate General, the Assistant Judge 
Advocate General (General Law), Deputy Assistant Judge Advocate General 
(Claims and Tort Litigation), and the Head, Tort Claims Branch (Claims 
and Tort Litigation) may deny Federal Tort Claims in any amount.
    (ii) Adjudicating authority. The Department of the Navy's tort 
claims adjudication function is consolidated as the Tort Claims Unit 
Norfolk (TCU) located at Naval Station, Norfolk, VA. The address is as 
follows: Department

[[Page 404]]

of the Navy, Office of the Judge Advocate General, Tort Claims Unit 
Norfolk, 9620 Maryland Avenue Suite 100, Norfolk, VA 23511-2989.
    (3) Funding. Claims approved for $2,500.00 or less are paid from DON 
appropriations. Claims approved in excess of $2,500.00 are paid from the 
judgment fund and must be forwarded to the United States General 
Accounting Office (GAO) for payment. 28 CFR 14.10(a). Claims arising out 
of the operation of nonappropriated-fund activities and approved for 
payment shall be forwarded to the appropriate nonappropriated-fund 
activity for payment.

[57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53420, Sept. 19, 2007]



Sec. 750.35  Attorney's fees.

    Attorney's fees are limited to 20 percent of any compromise or 
settlement of an administrative claim, and are limited to 25 percent of 
any judgment rendered in favor of a plaintiff, or of any settlement 
accomplished after suit is filed. These amounts are to be paid out of 
the amount awarded and not in addition to the award. 28 U.S.C. 2678.



Sec. 750.36  Time limitations.

    (a) Administrative claim. Every claim filed against the United 
States under the FTCA must be presented in writing within 2 years after 
the claim accrues. 28 U.S.C. 2401(b). Federal law determines the date of 
accrual. A claim accrues when the claimant discovers or reasonably 
should have discovered the existence of the act giving rise to the 
claim. In computing the statutory time period, the day of the incident 
is excluded and the day the claim was presented included.
    (b) Amendments. Upon timely filing of an amendment to a pending 
claim, the DON shall have 6 months to make a final disposition of the 
claim as amended, and the claimant's option to file suit under 28 U.S.C. 
2675(a) shall not accrue until 6 months after the presentment of an 
amendment. 28 CFR 14.2(c).
    (c) Suits. A civil action is barred unless suit is filed against the 
United States not later than 6 months after the date of mailing of 
notice of final denial of the claim. 28 U.S.C. 2401(b). The failure of 
the DON to make final disposition of a claim within 6 months after it is 
presented shall, at the option of the claimant any time thereafter, be 
deemed a final denial of the claim. 28 U.S.C. 2675(a).



Sec. Sec. 750.37-750.40  [Reserved]



                      Subpart C_Military Claims Act



Sec. 750.41  Scope of subpart C.

    This section prescribes the substantive bases and special procedural 
requirements for the settlement of claims against the United States for 
death, personal injury, or damage, loss, or destruction of property:
    (a) Caused by military personnel or civilian employees of the 
Department of the Navy (DON) (hereinafter DON personnel). For the 
purposes of this section, DON personnel include all military personnel 
of the Navy and Marine Corps, volunteer workers, and others serving as 
employees of the DON with or without compensation, and members of the 
National Oceanic and Atmospheric Administration or of the Public Health 
Service when serving with the DON. DON personnel does not include DON 
contractors or their employees.
    (b) Incident to noncombat activities of the DON. Claims for personal 
injury or death of a member of the Armed Forces or Coast Guard, or 
civilian officer or employee of the U.S. Government whose injury or 
death is incident to service, however, are not payable.
    (c) Territorial limitation. There is no geographical limitation on 
the application of the MCA, but if a claim arising in a foreign country 
is cognizable under the Foreign Claims Act (10 U.S.C. 2734), the claim 
shall be processed under that statute. See 10 U.S.C. 2733(b)(2).
    (d) Suit. The MCA authorizes the administrative settlement and 
payment of certain claims. The United States has not consented to be 
sued.



Sec. 750.42  Statutory authority.

    10 U.S.C. 2733, as amended, commonly referred to as the Military 
Claims Act (MCA).

[[Page 405]]



Sec. 750.43  Claims payable.

    (a) General. Unless otherwise prescribed, a claim for personal 
injury, death, or damage or loss of real or personal property is payable 
under this provision when:
    (1) Caused by an act or omission determined to be negligent, 
wrongful, or otherwise involving fault of DON personnel acting within 
the scope of their employment; or
    (2) Incident to noncombat activities of the DON. A claim may be 
settled under this provision if it arises from authorized activities 
essentially military in nature, having little parallel in civilian 
pursuits, and in which the U.S. Government has historically assumed a 
broad liability, even if not shown to have been caused by any particular 
act or omission by DON personnel while acting within the scope of their 
employment. Examples include practice firing of missiles and weapons, 
sonic booms, training and field exercises, and maneuvers that include 
operation of aircraft and vehicles, use and occupancy of real estate, 
and movement of combat or other vehicles designed especially for 
military use. Activities incident to combat, whether or not in time of 
war, and use of DON personnel during civil disturbances are excluded.
    (b) Specific claims payable. Claims payable by the DON under Sec. 
750.43(a) (1) and (2) shall include, but not be limited to:
    (1) Registered or insured mail. Claims for damage to, loss, or 
destruction, even if by criminal acts, of registered or insured mail 
while in the possession of DON authorities are payable under the MCA. 
This provision is an exception to the general requirement that 
compensable damage, loss, or destruction of personal property be caused 
by DON personnel while acting within the scope of their employment or 
otherwise incident to noncombat activities of the DON. The maximum award 
to a claimant under this section is limited to that to which the 
claimant would be entitled from the Postal Service under the registry or 
insurance fee paid. The award shall not exceed the cost of the item to 
the claimant regardless of the fees paid. Claimant may be reimbursed for 
the postage and registry or insurance fees.
    (2) Property bailed to the DON. Claims for damage to or loss of 
personal property bailed to the DON, under an express or implied 
agreement are payable under the MCA, even though legally enforceable 
against the U.S. Government as contract claims, unless by express 
agreement the bailor has assumed the risk of damage, loss, or 
destruction. Claims filed under this paragraph may, if in the best 
interest of the U.S. Government, be referred to and processed by the 
Office of the General Counsel, DON, as contract claims.
    (3) Real property. Claims for damage to real property incident to 
the use and occupancy by the DON, whether under an express or implied 
lease or otherwise, are payable under the MCA even though legally 
enforceable against the DON as contract claims. Claims filed under this 
paragraph may, if in the best interest of the U.S. Government, be 
referred to and processed by the Office of the General Counsel, DON, as 
contract claims.
    (4) Property of U.S. military personnel. Claims of U.S. military 
personnel for property lost, damaged, or destroyed under conditions in 
Sec. 750.43(a) (1) and (2) occurring on a military installation, not 
payable under the Military Personnel and Civilian Employees' Claims Act, 
are payable under the MCA.
    (5) Health care and Legal Assistance Providers. Claims arising from 
the personal liability of DON health care and legal assistance personnel 
for costs, settlements, or judgments for negligent acts or omissions 
while acting within the scope of assigned duties or employment are 
payable under the MCA. See Sec. 750.54.



Sec. 750.44  Claims not payable.

    (a) Any claim for damage, loss, destruction, injury, or death which 
was proximately caused, in whole or in part, by any negligence or 
wrongful act on the part of the claimant, or his agent or employee, 
unless the law of the place where the act or omission complained of 
occurred would permit recovery from a private individual under like 
circumstances, and then only to the extent permitted by the law.
    (b) Any claim resulting from action by the enemy or resulting 
directly or

[[Page 406]]

indirectly from any act by armed forces engaged in combat.
    (c) Any claim for reimbursement of medical, hospital, or burial 
expenses to the extent already paid by the U.S. Government.
    (d) Any claim cognizable under:
    (1) Military Personnel and Civilian Employees' Claims Act, as 
amended. 31 U.S.C. 3721.
    (2) Foreign Claims Act. 10 U.S.C. 2734.
    (3) 10 U.S.C. 7622, relating to admiralty claims. See part 752 of 
this Chapter.
    (4) Federal Tort Claims Act. 28 U.S.C. 2671, 2672, and 2674-2680.
    (5) International Agreements Claims Act. 10 U.S.C. 2734a and 2734b.
    (6) Federal Employees' Compensation Act. 5 U.S.C. 8101-8150.
    (7) Longshore and Harbor Workers' Compensation Act. 33 U.S.C. 901-
950.
    (e) Any claim for damage to or loss or destruction of real or 
personal property founded in written contract [except as provided in 
Sec. 750.43(b) (2) and (3)].
    (f) Any claim for rent of real or personal property [except as 
provided in Sec. 750.43(b) (2) and (3)].
    (g) Any claim involving infringement of patents.
    (h) Any claim for damage, loss, or destruction of mail prior to 
delivery by the Postal Service to authorized DON personnel or occurring 
due to the fault of, or while in the hands of, bonded personnel.
    (i) Any claim by a national, or corporation controlled by a 
national, of a country in armed conflict with the United States, or an 
ally of such country, unless the claimant is determined to be friendly 
to the United States.
    (j) Any claim for personal injury or death of a member of the Armed 
Forces or civilian employee incident to his service. 10 U.S.C. 
2733(b)(3).
    (k) Any claim for damage to or loss of bailed property when bailor 
specifically assumes such risk.
    (l) Any claim for taking private real property by a continuing 
trespass or by technical trespass such as overflights of aircraft.
    (m) Any claim based solely on compassionate grounds.
    (n) Any claim to which the exceptions in 28 U.S.C. 2680 apply.

[57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53420, Sept. 19, 2007]



Sec. 750.45  Filing claim.

    (a) Who may file. Under the MCA, specifically, the following are 
proper claimants:
    (1) U.S. citizens and inhabitants.
    (2) U.S. military personnel and civilian employees, except not for 
personal injury or death incident to service.
    (3) Persons in foreign countries who are not inhabitants.
    (4) States and their political subdivisions (including agencies).
    (5) Prisoners of war for personal property, but not personal injury.
    (6) Subrogees, to the extent they paid the claim.
    (b) Who may not file. (1) Inhabitants of foreign nations for loss or 
injury occurring in the country they inhabit.
    (2) U.S. Government agencies and departments.
    (c) When to file/statute of limitations. Claims against the DON must 
be presented in writing within 2 years after they accrue. In computing 
the 2 year period, the day the claim accrues is excluded and the day the 
claim is presented is included. If the incident occurs in time of war or 
armed conflict, however, or if war or armed conflict intervenes within 2 
years after its occurrence, an MCA claim, on good cause shown, may be 
presented within 2 years after the war or armed conflict is terminated. 
For the purposes of the MCA, the date of termination of the war or armed 
conflict is the date established by concurrent resolution of Congress or 
by the President. See 10 U.S.C. 2733(b)(1).
    (d) Where to file. The claim shall be submitted by the claimant to 
the commanding officer of the naval activity involved, if it is known. 
Otherwise, it shall be submitted to the commanding officer of any naval 
activity, preferably the one within which, or nearest to which, the 
incident occurred, or to the Office of the Judge Advocate General of the 
Navy, (Claims and Tort Litigation), 1322 Patterson Avenue, SE., Suite 
3000, Washington Navy Yard, DC 20375-5066.

[[Page 407]]

    (e) Claim form. A claim is correct in form if it constitutes written 
notification of an incident, signed by the claimant or a duly authorized 
agent or legal representative, with a claim for money damages in a sum 
certain. A Standard Form 95 is preferred. A claim should be 
substantiated as discussed in section 750.27 of this part. A claim must 
be substantiated as required by this Part in order to be paid. See 10 
U.S.C. 2733(b)(5).
    (f) Amendment of claim. A proper claim may be amended by the 
claimant at any time prior to final denial or payment of the claim. An 
amendment shall be submitted in writing and signed by the claimant or a 
duly authorized agent or legal representative.
    (g) Payment. Claims approved for payment shall be forwarded to such 
disbursing officer as may be designated by the Comptroller of the Navy 
for payment from appropriations designated for that purpose. If the 
Secretary of the Navy considers that a claim in excess of $100,000.00 is 
meritorious and would otherwise be covered by 10 U.S.C. 2733 and Sec. 
750.43, he may make a partial payment of $100,000.00 and refer the 
excess to the General Accounting Office for payment from appropriations 
provided therefore.

[57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53420, Sept. 19, 2007]



Sec. 750.46  Applicable law.

    (a) Claims arising within the United States, Territories, 
Commonwealth, and Possessions. The law of the place where the act or 
omission occurred will be applied in determining liability and the 
effect of contributory or comparative negligence on claimant's right of 
recovery.
    (b) Claims within foreign countries. (1) Where the claim is for 
personal injury, death, or damage to or loss or destruction of real or 
personal property caused by an act or omission determined to be 
negligent, wrongful, or otherwise involving fault of DON personnel 
acting within the scope of their employment, liability of the United 
States will be assessed under general principles of tort law common to 
the majority of American jurisdictions.
    (2) Apply the law of the foreign country governing the legal effect 
of contributory or comparative negligence by the claimant to determine 
the relative merits of the claim. If there is no foreign law on 
contributory or comparative negligence, apply traditional rules of 
contributory negligence. Apply foreign rules and regulations on 
operation of motor vehicles (rules of the road) to the extent those 
rules are not specifically superseded or preempted by U.S. Armed Forces 
traffic regulations.
    (c) Principles applicable to all MCA claims. (1) ``Scope of 
employment'' is determined in accordance with Federal law. Reported FTCA 
cases provide guidance on this determination;
    (2) Claims for emotional distress will be considered only from the 
injured person or members of the injured person's immediate family. 
Claims from the injured person's immediate ``zone of danger'' (i.e., 
immediate vicinity of the incident) and the claimant substantiates the 
claim with proof of the physical manifestation(s) of the emotional 
distress; and
    (3) Claims under the MCA do not include the principles of absolute 
liability and punitive damages.
    (d) Clarification of terms. Federal law determines the meaning and 
construction of the MCA.

[57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53420, Sept. 19, 2007]



Sec. 750.47  Measure of damages for property claims.

    Determine the measure of damages in property claims arising in the 
United States or its territories, commonwealth, or possessions under the 
law of the place where the incident occurred. Determine the measure of 
damages in property claims arising overseas under general principles of 
American tort law, stated as follows:
    (a) If the property has been or can be economically repaired, the 
measure of damages shall be the actual or estimated net cost of the 
repairs necessary to substantially restore the property to the condition 
that existed immediately prior to the incident. Damages shall not exceed 
the value of the property immediately prior to the incident less the 
value thereof immediately after the incident. To determine the actual or 
estimated net cost of repairs, the

[[Page 408]]

value of any salvaged parts or materials and the amount of any net 
appreciation in value effected through the repair shall be deducted from 
the actual or estimated gross cost of repairs. The amount of any net 
depreciation in the value of the property shall be added to such gross 
cost of repairs, if such adjustments are sufficiently substantial in 
amount to warrant consideration. Estimates of the cost of repairs shall 
be based upon the lower or lowest of two or more competitive bids, or 
upon statements or estimates by one or more competent and disinterested 
persons, preferably reputable dealers or officials familiar with the 
type of property damaged, lost, or destroyed.
    (b) If the property cannot be economically repaired, the measure of 
damages shall be the value of the property immediately prior to the 
incident less the value immediately after the incident. Estimates of 
value shall be made, if possible, by one or more competent and 
disinterested persons, preferably reputable dealers or officials 
familiar with the type of property damaged, lost, or destroyed.
    (c) Loss of use of damaged property which is economically repairable 
may, if claimed, be included as an additional element of damage to the 
extent of the reasonable expense actually incurred for appropriate 
substitute property, for such period reasonably necessary for repairs, 
as long as idle property of the claimant was not employed as a 
substitute. When substitute property is not obtainable, other competent 
evidence such as rental value, if not speculative or remote, may be 
considered. When substitute property is reasonably available but not 
obtained and used by the claimant, loss of use is normally not payable.



Sec. 750.48  Measure of damages in injury or death cases.

    (a) Where an injury or death arises within the United States or its 
territories, commonwealth, or possessions, determine the measure of 
damages under the law of the location where the injury arises.
    (b) Where an injury or death arises in a foreign country and is 
otherwise cognizable and meritorious under this provision, damages will 
be determined in accordance with general principles of American tort 
law. The following is provided as guidance.
    (1) Measure of damages for overseas personal injury claims. 
Allowable compensation includes reasonable medical and hospital expenses 
necessarily incurred, compensation for lost earnings and services, 
diminution of earning capacity, anticipated medical expenses, physical 
disfigurement, and pain and suffering.
    (2) Wrongful death claims arising in foreign countries. (i) 
Allowable compensation includes that in paragraph (b)(1) of this 
section, burial expenses, loss of support and services, loss of 
companionship, comfort, society, protection, and consortium, and loss of 
training, guidance, education, and nurturing, as applicable.
    (ii) The claim may be presented by or on behalf of the decedent's 
spouse, parent, child, or dependent relative. Claims may be consolidated 
for joint presentation by a representative of some or all of the 
beneficiaries or may be filed by a proper beneficiary individually.



Sec. 750.49  Delegations of adjudicating authority.

    (a) Settlement authority. (1) The Secretary of the Navy may settle 
or deny claims in any amount. The Secretary may pay the first 
$100,000.00 and report the excess to the Comptroller General for payment 
under 31 U.S.C. 1304. See 10 U.S.C. 2733(d).
    (2) The Judge Advocate General has delegated authority to settle 
claims for $100,000.00 or less.
    (3) The Deputy Judge Advocate General, the Assistant Judge Advocate 
General (General Law), the Deputy Assistant Judge Advocate General 
(Claims and Tort Litigation), and Head, Tort Claims Branch (Claims and 
Tort Litigation), have delegated authority to settle claims for 
$25,000.00 or less, and have denial authority in any amount.
    (4) Individuals with settlement authority under paragraph (a)(3) of 
this section may delegate all or part of their settlement authority. 
Such delegation must be in writing.
    (b) Appellate authority. Adjudicating authorities have the same 
authority as

[[Page 409]]

delegated in paragraph (a) of this section to act upon appeals. No 
appellate authority below the Secretary of the Navy may deny an appeal 
of a claim it had previously denied.

[57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53420, Sept. 19, 2007]



Sec. 750.50  Advance payments.

    (a) Scope. This paragraph applies exclusively to the payment of 
amounts not to exceed $100,000.00 under 10 U.S.C. 2736 in advance of 
submission of a claim.
    (b) Statutory authority. Title 10 U.S.C. 2736 authorizes the 
Secretary of the Navy or designee to pay an amount not in excess of 
$100,000.00 in advance of the submission of a claim to or for any 
person, or the legal representative of any person, who was injured or 
killed, or whose property was damaged or lost, as the result of an 
accident for which allowance of a claim is authorized by law. Payment 
under this law is limited to that which would be payable under the MCA 
(10 U.S.C. 2733). Payment of an amount under this law is not an 
admission by the United States of liability for the accident concerned. 
Any amount so paid shall be deducted from any amount that may be allowed 
under any other provision of law to the person or his legal 
representative for injury, death, damage, or loss attributable to the 
accident concerned.
    (c) Officials with authority to make advance payments. (1) The 
Secretary of the Navy has authority to make advance payments up to 
$100,000.00
    (2) The Judge Advocate General has delegated authority to make 
advance payments up to $100,000.00.
    (3) The Deputy Assistant Judge Advocate General (Claims and Tort 
Litigation) and the Head, Tort Claims Branch (Claims and Tort 
Litigation) have delegated authority to make advance payments up to 
$25,000.00.
    (4) Naval Legal Service Office commanding officers and the Officer 
in Charge, U.S. Sending State Office for Italy have delegated authority 
to make advance payments up to $5,000.00.
    (5) Officers in Charge of Naval Legal Service Office Detachments, 
when specifically designated by cognizant Commanding Officers of Naval 
Legal Service Offices; and the Staff Judge Advocate at the U.S. Naval 
Station, Panama Canal have delegated authority to make advance payments 
up to $3,000.00.
    (6) Overseas commands with a Judge Advocate General's Corps officer 
or a judge advocate of the Marine Corps attached, have delegated 
authority to make advance payments up to $3,000.00.
    (d) Conditions for advance payments. Prior to making an advance 
payment under 10 U.S.C. 2736, the adjudicating authority shall ascertain 
that:
    (1) The injury, death, damage, or loss would be payable under the 
MCA (10 U.S.C. 2733);
    (2) The payee, insofar as can be determined, would be a proper 
claimant, or is the spouse or next of kin of a proper claimant who is 
incapacitated;
    (3) The provable damages are estimated to exceed the amount to be 
paid;
    (4) There exists an immediate need of the person who suffered the 
injury, damage, or loss, or of his family, or of the family of a person 
who was killed, for food, clothing, shelter, medical, or burial 
expenses, or other necessities, and other resources for such expenses 
are not reasonably available;
    (5) The prospective payee has signed a statement that it is 
understood that payment is not an admission by the Navy or the United 
States of liability for the accident concerned, and that the amount paid 
is not a gratuity but shall constitute an advance against and shall be 
deducted from any amount that may be allowed under any other provision 
of law to the person or his legal representative for injury, death, 
damage, or loss attributable to the accident concerned; and
    (6) No payment under 10 U.S.C. 2736 may be made if the accident 
occurred in a foreign country in which the NATO Status of Forces 
Agreement (4 U.S.T. 1792, TIAS 2846) or other similar agreement is in 
effect and the injury, death, damage, or loss
    (i) Was caused by a member or employee of the DON acting within the 
scope of employment or
    (ii) Occurred ``incident to noncombat activities'' of the DON as 
defined in Sec. 750.43.

[57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53421, Sept. 19, 2007]

[[Page 410]]



Sec. 750.51  Final disposition.

    (a) Claimant to be notified. The adjudicating authority shall notify 
the claimant, in writing, of the action taken on the claim.
    (b) Final denial. A final denial, in whole or in part, of any MCA 
claim shall be in writing and sent to the claimant, or his attorney or 
legal representative, by certified or registered mail, return receipt 
requested. The notification of denial shall include a statement of the 
reason or reasons for denial and that the claimant may appeal. The 
notification shall also inform the claimant:
    (1) The title of the appellate authority who will act on the appeal 
and that the appeal will be addressed to the adjudicating authority who 
last acted on the claim.
    (2) No form is prescribed for the appeal, but the grounds for appeal 
should be set forth fully.
    (3) The appeal must be submitted within 30 days of receipt by the 
claimant of notice of action on the claim.



Sec. 750.52  Appeal.

    (a) A claim which is disapproved in whole or in part may be appealed 
by the claimant at any time within 30 days after receipt of notification 
of disapproval. An appeal shall be in writing and state the grounds 
relied upon. An appeal is not an adversary proceeding and a hearing is 
not authorized; however, the claimant may obtain and submit any 
additional evidence or written argument for consideration by the 
appellate authority.
    (b) Upon receipt, the adjudicating authority examines the appeal, 
determines whether the appeal complies with this regulation, and reviews 
the claims investigative file to ensure it is complete. The claim, with 
the complete investigative file and a memorandum of law, will be 
forwarded to the appellate authority for action. If the evidence in the 
file, including information submitted by the claimant with the appeal, 
indicates the appeal should be approved, the adjudicating authority may 
treat the appeal as a request for reconsideration.
    (c) Processing of the appeal may be delayed pending further efforts 
by the adjudicating authority to settle the claim. Where the 
adjudicating authority does not reach a final agreement on an appealed 
claim, it shall send the entire claim file to the next higher settlement 
authority, who is the appellate authority for that claim.
    (d) The appellate authority shall notify the claimant in writing of 
the determination on appeal; that such determination constitutes the 
final administrative action on the claim; and there is no right to sue 
under the MCA.



Sec. 750.53  Cross-servicing.

    (a) See Sec. 750.13 or information about single-service claims 
responsibility under DODDIR 5515.8 of 9 June 1990.
    (b) Claims settlement procedures. Where a single service has been 
assigned a country or area claims responsibility, that service will 
settle claims cognizable under the MCA under the regulations of that 
service. The forwarding command shall afford any assistance necessary to 
the appropriate service in the investigation and adjudication of such 
claims.



Sec. 750.54  Payment of costs, settlements, and judgments related to certain medical or legal malpractice claims.

    (a) General. Requests for reimbursement/indemnification of costs, 
settlements, and judgments cognizable under 10 U.S.C. 1089(f) [for 
personal injury or death caused by any physician, dentist, nurse, 
pharmacist, paramedic, or other supporting personnel (including medical 
and dental technicians, nurse assistants, and therapists)] or 10 U.S.C. 
1054(f) (for damages for injury or loss of property caused by any 
attorney, paralegal, or other member of a legal staff) while acting as 
DON personnel will be paid if:
    (1) The alleged negligent or wrongful actions or omissions arose in 
connection with either providing health care functions or legal services 
and within the scope of employment; and
    (2) Such personnel furnish prompt notification and delivery of all 
process served or received, and other documents, information, and 
assistance as requested; and cooperate in defending the action on the 
merits.
    (b) Requests for Indemnification. All requests for indemnification 
for personal liability of DON personnel for

[[Page 411]]

acts or omissions arising out of assigned duties shall be forwarded to 
the Judge Advocate General for action.



Sec. 750.55  Attorney's fees.

    Attorney's fees not in excess of 20 percent of any settlement may be 
allowed. Attorney's fees so determined are to be paid out of the amount 
awarded and not in addition to the award. These fee limitations shall be 
incorporated in any settlement agreement secured from a claimant.



Sec. Sec. 750.56-750.60  [Reserved]



    Subpart D_Claims Not Cognizable Under Any Other Provision of Law



Sec. 750.61  Scope of subpart D.

    This section provides information on payment of claims against the 
United States, not payable under any other statute, caused by the act or 
omission, negligent, wrongful, or otherwise involving fault, of 
Department of the Navy (DON) military and civilian personnel 
(hereinafter DON personnel) acting outside the scope of their 
employment.



Sec. 750.62  Statutory authority.

    Section 2737 of title 10, United States Code, provides authority for 
the administrative settlement in an amount not to exceed $1,000.00 of 
any claim against the United States not cognizable under any other 
provision of law for damage, loss, or destruction of property or for 
personal injury or death caused by military personnel or a civilian 
official or employee of a military department incident to the use of a 
vehicle of the United States at any place, or any other property of the 
United States on a Government installation. There is no right to sue. 
There are no territorial limitations and the Act has worldwide 
application.



Sec. 750.63  Definitions.

    (a) Civilian official or employee. Any civilian employee of the DON 
paid from appropriated funds at the time of the incident.
    (b) Vehicle. Includes every description of carriage or other 
artificial contrivance used, or capable of being used, as a means of 
transportation on land. See 1 U.S.C. 4.
    (c) Government installation. Any Federal facility having fixed 
boundaries and owned or controlled by the U.S. Government. It includes 
both military bases and nonmilitary installations.



Sec. 750.64  Claim procedures.

    (a) The general provisions of subpart A of this part shall apply in 
determining what is a proper claim, who is a proper claimant, and how a 
claim is to be investigated and processed under 10 U.S.C. 2737 and this 
section.
    (b) A claim is presented when the DON receives from a claimant or 
the claimant's duly authorized agent, written notification of a nonscope 
claim incident accompanied by a demand for money damages in a sum 
certain.
    (c) A claimant may amend a claim at any time prior to final action. 
Amendments will be submitted in writing and signed by the claimant or 
the claimant's duly authorized agent.
    (d) Claims submitted under the provisions of the Federal Tort Claims 
Act (FTCA) or Military Claims Act (MCA) shall be considered 
automatically for an award under this section when payment would 
otherwise be barred because the DON personnel were not in the scope of 
their employment at the time of the incident. If a tender of payment 
under this section is not accepted by the claimant in full satisfaction 
of the claim, no award will be made, and the claim will be denied 
pursuant to the rules applicable to the statute under which it was 
submitted.
    (e) Damages caused by latent defects of ordinary, commercial type, 
Government equipment that were not payable under the MCA, Foreign Claims 
Act, or FTCA are payable under this section.
    (f) Nonscope claims for damages caused by local national DON 
employees overseas are also payable under this section if the injury was 
caused by the use of Government equipment.
    (g) Payment may not be made on a nonscope claim unless the claimant 
accepts the amount offered in full satisfaction of the claim and signs a 
settlement agreement.
    (h) Payment for nonscope claims adjudicated by field commands will 
be affected through their local disbursing

[[Page 412]]

office by use of funds obtained from the Judge Advocate General.
    (i) Claims submitted solely under 10 U.S.C. 2737 shall be promptly 
considered. If a nonscope claim is denied, the claimant shall be 
informed of reasons in writing and advised he may appeal in writing to 
the Secretary of the Navy (Judge Advocate General) provided the appeal 
is received within 30 days of the notice of denial. The provisions of 
Sec. 750.51(b) of subpart C also apply to denials of nonscope claims.



Sec. 750.65  Statute of limitations.

    (a) A claim must be presented in writing within 2 years after it 
accrues. It accrues at the time the claimant discovers, or in the 
exercise of reasonable care should have discovered, the existence of the 
act or omission for which the claim is filed.
    (b) In computing time to determine whether the period of limitation 
has expired, exclude the incident date and include the date the claim 
was presented.



Sec. 750.66  Officials with authority to settle.

    Judge Advocate General; Deputy Judge Advocate General; Assistant 
Judge Advocate General (General Law); Deputy Assistant Judge Advocate 
General (Claims and Tort Litigation); and Head, Tort Claims Branch 
(Claims and Tort Litigation) may settle a nonscope claim.

[72 FR 53421, Sept. 19, 2007]



Sec. 750.67  Scope of liability.

    (a) Subject to the exceptions in Sec. 750.68 of specific claims not 
payable, the United States shall not pay more than $1,000.00 for a claim 
against the United States, not cognizable under any other provision of 
law, except Article 139, UCMJ.
    (b) Article 139, UCMJ, 10 U.S.C. 939, is not preemptive. The 
prohibition in 10 U.S.C. 2737 on paying claims ``not cognizable under 
any other provisions of law'' applies only to law authorizing claims 
against the United States. Article 139 authorizes claims against 
servicemembers. See part 755 of this chapter.



Sec. 750.68  Claims not payable.

    (a) A claim for damage, loss, or destruction of property or the 
personal injury or death caused wholly or partly by a negligent or 
wrongful act of the claimant or his agent or employee.
    (b) A claim, or any part thereof, that is legally recoverable by the 
claimant under an indemnifying law or indemnity contract.
    (c) A subrogated claim.



Sec. 750.69  Measure of damages.

    Generally, the measure-of-damage provisions under the MCA are used 
to determine the extent of recovery for nonscope claims. Compensation is 
computed in accordance with Sec. Sec. 750.47 and 750.48 of subpart C, 
except damages for personal injury or death under this section shall not 
be for more than the cost of reasonable medical, hospital, and burial 
expenses actually incurred and not otherwise furnished or paid for by 
the United States.



PART 751_PERSONNEL CLAIMS REGULATIONS--Table of Contents




               Subpart A_Claims Against the United States

Sec.
751.1 Scope.
751.2 Claims against the United States: In general.
751.3 Authority.
751.4 Construction.
751.5 Definitions.
751.6 Claims payable.
751.7 Claims not payable.
751.8 Adjudicating authorities.
751.9 Presentment of claim.
751.10 Form of claim.
751.11 Investigation of claim.
751.12 Payments.
751.13 Partial payments.
751.14 Reconsideration and appeal.
751.15-751.20 [Reserved]

Subpart B [Reserved]

    Authority: 5 U.S.C. 301, 10 U.S.C. 5013 and 5148; E.O. 12473, 3 CFR, 
1984 Comp., p. 201.

    Source: 57 FR 5055, Feb. 12, 1992, unless otherwise noted.

[[Page 413]]



               Subpart A_Claims Against the United States



Sec. 751.1  Scope.

    This part prescribes procedures and substantive bases for 
administrative settlement of claims against the United States submitted 
by Department of Navy (DoN) personnel and civilian employees of the 
naval establishment.

[72 FR 53422, Sept. 19, 2007]



Sec. 751.2  Claims against the United States: In general.

    (a) Maximum amount payable. The Military and Civilian Employees' 
Personnel Claims Act (Personnel Claims Act, 31 U.S.C. 3701, 3702, and 
3721 (2004)), provides that the maximum amount payable for any loss or 
damage arising from a single incident is limited to $40,000.00. Where 
the loss of or damage to personal property arose from emergency 
evacuations or other extraordinary circumstances, the maximum is 
$100,000.00.
    (b) Additional instructions. The Judge Advocate General of the Navy 
may issue additional instructions or guidance as necessary to give full 
force and effect to this section.
    (c) Preemption. The provisions of this section and the Personnel 
Claims Act are preemptive of other claims regulations. Claims not 
allowable under the Personnel Claims Act may, however, be allowable 
under another claims act.
    (d) Other claims. Claims arising from the operation of a ship's 
store, laundry, dry cleaning facility, tailor shop, or cobbler shop 
should be processed in accordance with NAVSUP P487.

[57 FR 5055, Feb. 12, 1992, as amended at 72 FR 53422, Sept. 19, 2007]



Sec. 751.3  Authority.

    The Personnel Claims Act provides the authority for maximum payment 
up to $40,000, $100,000 in extraordinary circumstances for loss, damage, 
or destruction of personal property of military personnel or civilian 
employees incident to their service. No claim may be paid unless it is 
presented in writing within 2 years of the incident that gave rise to 
the claim.

[72 FR 53422, Sept. 19, 2007]



Sec. 751.4  Construction.

    The provisions of this section and the Personnel Claims Act provide 
limited compensation to service members and civilian employees of the 
DON for loss and damage to personal property incurred incident to 
service. This limited compensation is not a substitute for private 
insurance. Although not every loss may be compensated under the 
Personnel Claims Act, its provisions shall be broadly construed to 
provide reasonable compensation on meritorious claims. Adjudications 
must be based on common sense and the reasoned judgment of the claims 
examiner giving the benefit of realistic doubt to the claimant.



Sec. 751.5  Definitions.

    (a) Proper claimants--(1) Members of the DON. All Navy and Marine 
Corps active duty members and reservists on active duty for training 
under Federal law whether commissioned, enrolled, appointed, or 
enlisted. A retired member may only claim under this Act if loss or 
damage occurred while the claimant was on active duty or in connection 
with the claimant's last movement of personal property incident to 
service.
    (2) Civilian employees of the Navy. Federal employees of the naval 
establishment paid from appropriated funds. This term does not include 
Red Cross employees, USO personnel, and employees of Government 
contractors (including technical representatives).
    (3) Claims by non-appropriated fund employees. Claims by employees 
of Navy and Marine Corps non-appropriated fund activities for loss, 
damage, or destruction of personal property incident to their employment 
will be processed and adjudicated in accordance with this part and 
forwarded to the appropriate local non-appropriated fund activity that 
employs the claimant for payment from non-appropriated funds.
    (4) Separation from service. Separation from the service or 
termination of employment shall not bar former military personnel or 
civilian employees from

[[Page 414]]

filing claims or bar designated personnel from considering, 
ascertaining, adjusting, determining, and authorizing payment of claims 
otherwise falling within the provision of these regulations when such 
claim accrued prior to separation or termination.
    (5) Agent or legal representative. The authorized agent or legal 
representative of a proper claimant may file on behalf of the claimant 
if the agent provides a power of attorney that complies with local law. 
Certain relatives of a deceased proper claimant may file any claim the 
claimant could have filed. The PCA identifies these relatives in order 
of priority. If multiple persons who the statute lists as equals in 
priority file separate claims, the first claim settled extinguishes the 
rights of the other claimants. The estate of a deceased proper party 
claimant is not a proper claimant, nor is an executor or personal 
representative who cannot file as a survivor. The PCA ranks surviving 
relatives in the following order of priority:
    (i) Spouse;
    (ii) Child or children;
    (iii) Father, mother, or both;
    (iv) Brother, sister, or both.
    (b) Improper claimants. Insurers, assignees, subrogees, vendors, 
lienholders, contractors, subcontractors and their employees, and other 
persons not specifically mentioned as proper claimants.
    (c) Unusual occurrence. Serious events and natural disaster not 
expected to take place in the normal course of events and hazards 
outside the normal risks of day-to-day living and working. Two different 
types of incidents may be considered unusual occurrences: those of an 
unusual nature and those of a common nature that occur to an unexpected 
degree of severity. Examples of unusual occurrences include structural 
defects in quarters, faulty plumbing maintenance, termite or rodent 
damage, unusually large size hail, and hazardous health conditions due 
to Government use of toxic chemicals. Examples of occurrences that are 
not unusual include potholes or foreign objects in the road, ice and 
snow sliding off a roof onto a vehicle, and tears, rips, snags, or 
stains on clothing. Claims that electrical or electronic devices were 
damaged by a power surge may be paid when lightning has actually struck 
the claimant's residence or objects outside the residence, such as a 
transformer box, or when power company records or similar evidence shows 
that a particular residence or group of residences was subjected to a 
power surge of unusual intensity. In areas subject to frequent 
thunderstorms or power fluctuations, claimants are expected to use surge 
suppressors, if available, to protect delicate items such as computers 
or videocassette recorders.
    (d) Personal property. Property including but not limited to 
household goods, unaccompanied baggage, privately owned vehicles 
(POV's), mobile homes, and boats.
    (e) Intangible property. Property that has no intrinsic marketable 
value such as bankbooks, checks, promissory notes, non-negotiable stock 
certificates, bonds, baggage checks, insurance policies, money orders, 
and travelers checks.
    (f) Vehicles. Include automobiles, motorcycles, mopeds, jet skis, 
utility trailers, camping trailers, trucks, mounted camper bodies, motor 
homes, boats, boat trailers, bicycles, and aircraft. Mobile homes and 
other property used as dwelling places are not considered vehicles.

[57 FR 5055, Feb. 12, 1992, as amended at 72 FR 53422, Sept. 19, 2007]



Sec. 751.6  Claims payable.

    Claims for loss, damage, or destruction of property may be 
considered as set out below if possession of the property was reasonable 
and useful under the circumstances and the loss did not result from the 
negligence of the claimant. The following are examples of more common 
claims. Not all situations that may result in a claim are covered, but 
the processes described in the examples on how to approach, investigate, 
and adjudicate claims are applicable to all claims filed.
    (a) Transportation and storage losses. (1) Incurred during 
transportation under orders, whether in possession of the Government, 
carrier, storage warehouse, or other Government contractor.

[[Page 415]]

    (2) Incurred during travel under orders, including temporary duty.
    (3) Incurred during travel on a space available basis on a military 
aircraft, vessel, or vehicle.
    (4) Do-it-yourself (DITY) moves. In certain circumstances, loss of 
or damage to property during a DITY move is compensable. Claimants, 
however, are required to substantiate the fact of loss or damage in 
shipment. Claimants who do not prepare inventories have difficulty 
substantiating thefts. In addition, unless evidence shows that something 
outside the claimant's control caused the damage, breakage is presumed 
to be the result of improper packing by the claimant. For example, if a 
claimant's truck is rear-ended by a drunk driver during a DITY move, it 
is out of claimant's control. If the claimant can substantiate that he 
was free from negligence, he can file a claim for damages to his 
household goods.
    (5) Shipment or storage at the claimant's expense. The Government 
will not compensate a claimant for loss or damage that occurs while 
property is being shipped or stored at the claimant's expense, even if 
the Government reimburses the claimant for the shipment or storage fees. 
The reason for this is that there is no contract, called a Government 
Bill of Lading, between the Government and the carrier. In such cases, 
the claimant must claim against the carrier.
    (b) Losses at assigned quarters or other authorized places. Damage 
or loss caused by fire, explosion, theft, vandalism, lightning, flood, 
earthquake, and unusual occurrences is cognizable. Losses due to theft 
may only be paid if the claimant took reasonable measures to safeguard 
the property and theft occurred as a result of a forced entry. Claimants 
are expected to secure windows and doors of their barracks, quarters, 
wall lockers, and other storage areas so that the thief must force an 
entry. If a police report states that there were no signs of forced 
entry and the claimant asserts with absolute certainty that the area was 
in fact secure, the claims examiner must consider whether forced entry 
would have left visible signs. Claimants are also expected to take extra 
measures to protect cash, valuable jewelry, and similar small, easily 
pilferable items. Normally, such items should be kept in a locked 
container within a secured room. It is also advisable that the locked 
container be large enough that it is not convenient for a thief to carry 
off. Bicycles located at quarters or on base must be secured to a fixed 
object. Overseas housing is considered assigned quarters for claimants 
who are not local inhabitants.
    (c) Vehicle losses. (1) Losses incurred while a vehicle is used in 
the performance of a military duty, if such use was authorized or 
directed for the convenience of the Government, provided the travel did 
not include commuting to or from a permanent place of duty, and did not 
arise from mechanical or structural defect of the vehicle. There is no 
requirement that the loss be due to fire, flood, hurricane, or other 
unusual occurrence, or to theft or vandalism. As a general rule, 
however, travel is not considered to be for the convenience of the 
Government unless it was pursuant to written orders authorizing use for 
which the claimant is entitled to reimbursement. The claimant must be 
free from negligence in order to be paid for a collision loss. Travel by 
the claimant to other buildings on the installation is not loss. Travel 
by the claimant to other buildings on the installation is not considered 
to be under orders for the convenience of the Government. Travel off the 
installation without written orders may only be deemed to be for the 
convenience of the Government if the claimant was authorized mileage 
reimbursement for the travel. The issuance of written orders after the 
fact raises the presumption that travel was not authorized for the 
convenience of the Government. The maximum payment authorized by the 
Allowance List-Depreciation Guide (ALDG) still applies to loss of or 
damage to vehicles and contents. This maximum does not apply to DITY 
moves.
    (2) Losses incurred while a vehicle is shipped at Government expense 
are compensable provided the loss or damage did not arise from 
mechanical or structural defect of the vehicle during such shipment. 
Damage caused during shipment at the claimant's expense or while the 
vehicle is being moved to or

[[Page 416]]

from the port by an agent of the claimant is not compensable.
    (3) Losses incurred while a vehicle is located at quarters or other 
authorized place of lodging, including garages, carports, driveways, 
assigned parking spaces, if the loss or damage is caused by fire, flood, 
hurricane, theft, or vandalism, or other unusual occurrence. Vandalism 
is damage intentionally caused. Stray marks caused by children playing, 
falling branches, gravel thrown by other vehicles, or similar 
occurrences are not vandalism. The amount payable on vandalism claims is 
limited to the maximum payment authorized by the ALDG.
    (4) Incurred while a vehicle is located at places other than 
quarters but on a military installation, if the loss or damage is caused 
by fire, flood, hurricane, theft, or vandalism, or other unusual 
occurrence. ``Military installation'' is used broadly to describe any 
fixed land area, wherever situated, controlled, and used by military 
activities or the Department of Defense (DOD). A vehicle properly on the 
installation should be presumed to be used incident to the claimant's 
service. A vehicle that is not properly insured or registered in 
accordance with local regulations is not properly on the installation. A 
vehicle left in a remote area of the installation that is not a 
designated long-term parking area for an undue length of time is 
presumed not to be on the installation incident to service.
    (5) Theft of property stored inside a vehicle. A loss resulting from 
theft of property stored inside a vehicle is compensable if it was 
reasonable for the claimant to have the property in the vehicle and 
neither the claimant nor the claimant's agents were negligent in 
protecting the property. The passenger compartment of a vehicle does not 
provide adequate security, except for very short periods of time for 
articles that are not of high value or easily pilferable. Car covers and 
bras are payable if bolted or secured to the vehicle with a wire locking 
device.
    (6) Rental vehicles. Damage to rental vehicles is considered under 
paragraphs of the Joint Federal Travel Regulations (JFTR), rather than 
as a loss incident to service.
    (d) Mobile homes and contents in shipment. Claims for damage to 
mobile homes and contents in shipment are payable unless the damage was 
caused by structural or mechanical defects or by the claimant's 
negligence in securing the mobile home or packing its contents.
    (e) Borrowed property (including vehicles). Loss or damage to 
borrowed property is compensable if it was borrowed for claimant's or 
dependent's own use. A statement will be provided by the owner of the 
property attesting to the use of the property by the claimant.
    (f) Clothing and articles being worn. Repairs/replacement of 
clothing and articles being worn while on a military installation or in 
the performance of official duty may be paid if loss is caused by fire, 
flood, hurricane, theft, or vandalism, or other unusual occurrence. This 
paragraph shall be broadly construed in favor of compensation, but see 
Sec. 751.5(c) for the definition of unusual occurrence. Articles being 
worn include hearing aids, eyeglasses, and items the claimant is 
carrying, such as a briefcase.
    (g) Personal property held as evidence or confiscated property. If 
property belonging to the victim of a crime is to be held as evidence 
for an extended period of time (in excess of 2 months) and the temporary 
loss of the property will work a grave hardship on the claimant, a claim 
for the loss may be considered for payment. This provision will not be 
used unless every effort has been made to determine whether secondary 
evidence, such as photographs, may be substituted for the item. No 
compensation is allowed to a person suspected of an offense for property 
seized from that same person in the investigation of that offense. This 
also applies to property a foreign government unjustly confiscates or an 
unjust change in a foreign law that forces surrender or abandonment of 
property.
    (h) Theft from possession of claimant. Theft from the person of the 
claimant is reimbursable if the theft occurred by use of force, 
violence, or threat to do bodily harm, or by snatching or pickpocketing, 
and at the time of theft the claimant was either on a military

[[Page 417]]

installation, utilizing a recreation facility operated or sponsored by 
the Department of Defense or any agency thereof, or in the performance 
of official duty. The theft must have been reported to appropriate 
police authorities as soon as practicable, and it must have been 
reasonable for the claimant to have had on his person the quality and 
the quantity of the property allegedly stolen.
    (i) Property used for the benefit of the Government. Compensation is 
authorized where property is damaged or lost while being used in the 
performance of Government business at the direction or request of 
superior authority or by reason of military necessity.
    (j) Money deposited for safekeeping, transmittal, or other 
authorized disposition. Compensation is authorized for personal funds 
delivered to and accepted by military and civilian personnel authorized 
by the commanding officer to receive these funds for safekeeping, 
deposit, transmittal, or other authorized disposition, if the funds were 
neither applied as directed by the owner nor returned to the owner.
    (k) Fees--(1) For obtaining certain documents. The fees for 
replacing birth certificates, marriage certificates, college diplomas, 
passports, or similar documents may be allowed if the original or a 
certified copy is lost or destroyed incident to service. In general, 
compensation will only be allowed for replacing documents with a raised 
seal that are official in nature. No compensation will be allowed for 
documents that are representative of value, such as stock certificates, 
or for personal letters or records.
    (2) Estimate fees. An estimate fee is a fixed cost charged by a 
person in the business of repairing property to provide an estimate of 
what it would cost to repair property. An estimate fee in excess of 
$75.00 should be examined with great care to determine whether it is 
reasonable. A person becomes obligated to pay an estimated fee when the 
estimate is prepared. An estimate fee should not be confused with an 
appraisal fee, which is not compensable (see Sec. 751.7(m)). A 
reasonable estimate fee is compensable if it is not going to be credited 
toward the cost of repair. If it is to be credited toward the cost of 
repair, it is not compensable regardless of whether the claimant chooses 
to have the work done. When an estimate fee is claimed, the file must 
reflect whether the fee is to be credited.

[57 FR 5055, Feb. 12, 1992, as amended at 72 FR 53422, Sept. 19, 2007]



Sec. 751.7  Claims not payable.

    (a) Losses in unassigned quarters in the United States. Claims for 
property damaged or lost at quarters occupied by the claimant within the 
United States that are not assigned or otherwise provided by the 
Government.
    (b) Currency or jewelry shipped or stored in baggage. Claims for 
lost currency, shipped or stored in baggage are not payable. Small, 
valuable, highly pilferable items should normally be hand-carried rather 
than shipped, however, if expensive or valuable jewelry or coin 
collections are shipped, a full description of each item of expensive 
jewelry and of any coin or money collection must be listed and described 
on the inventory for its loss to be payable. Each item must also be 
listed as missing at the time of delivery. If not noted at the time of 
delivery, the claimant must satisfactorily explain why.
    (c) Enemy property or war trophies. This includes only property that 
was originally enemy property or a war trophy that passed into the hands 
of a collector and was then purchased by a claimant.
    (d) Unserviceable or Worn-Out Property.
    (e) Loss or Damage to Property to the Extent of any Available 
Insurance Coverage. Except for claims for loss or damage to household 
goods or privately-owned vehicles (POVS) while shipped or stored at 
Government expense, when the property lost, damaged, or destroyed is 
insured, the claimant must make a demand for payment against the 
insurance company under the terms of the policy.
    (f) Inconvenience or loss of use. Expenses arising from late 
delivery of personal property, including but not limited to the expenses 
for food, lodging, and furniture rental, loss of use, interest, carrying 
charges, attorney's fees, telephone calls, additional costs of 
transporting claimant or family members, time spent in preparation of

[[Page 418]]

claim, or cost of insurance are not compensable. While such claims do 
not lie against the Government, members should be referred to the 
Personal Property Office for assistance in filing their inconvenience 
claims against the commercial carriers.
    (g) Items of speculative value. Theses, manuscripts, unsold 
paintings, or a similar creative or artistic work done by the claimant, 
friend, or a relative is limited to the cost of materials only. The 
value of such items is speculative. Compensation for a utilitarian 
object made by the claimant, such as a quilt or bookcase, is limited to 
the value of an item of similar quality.
    (h) Loss or damage to property due to negligence of the claimant. 
Negligence is a failure to exercise the degree of care expected under 
the circumstances that is the proximate cause of the loss. Losses due, 
in whole or in part, to the negligence of the claimant, the claimant's 
spouse, child, houseguest, employee, or agent are not compensable.
    (i) Business property. Losses of items acquired for resale or use in 
a private business are not compensable. If property is acquired for both 
business and personal use, compensation will not be allowed if business 
use is substantial, or is the primary purpose for which the item was 
purchased, or if the item is designed for professional use and is not 
normally intended for personal use.
    (j) Motor vehicles. Collision damage is not payable unless it meets 
the criteria for payment as property used for the benefit of the 
Government as established in Sec. 751.6(c)(1).
    (k) Violation of law or directives. Property acquired, possessed, or 
transported unlawfully or in violation of competent regulations or 
directives. This includes vehicles, weapons, or property shipped to 
accommodate another person, as well as property used to transport 
contraband.
    (l) Sales tax. Sales taxes associated with repair or replacement 
costs will not be considered unless the claimant provides proof that the 
sales tax was actually paid.
    (m) Appraisal fees. An appraisal, as distinguished from an estimate 
of replacement or repair, is defined as a valuation of an item provided 
by a person who is not in the business of selling or repairing that type 
of property. Normally, claimants are expected to obtain appraisals on 
expensive items at their own expense.
    (n) Quantities of property not reasonable or useful under the 
circumstances are not compensable. Factors to be considered are 
claimant's living conditions, family size, social obligations, and any 
particular need to have more than average quantities, as well as the 
actual circumstances surrounding the acquisition and loss.
    (o) Intangible Property, such as Bankbooks, Checks, Promissory 
Notes, Stock Certificates, Bonds, Bills of Lading, Warehouse Receipts, 
Baggage Checks, Insurance Policies, Money Orders, and Traveler's Checks 
are not Compensable.
    (p) Property Owned by the United States, Except where the Claimant 
is Responsible to an Agency of the Government other than the DON.
    (q) Contractual coverage. Losses, or any portion thereof, that have 
been recovered or are recoverable pursuant to contract are not 
compensable.

[57 FR 5055, Feb. 12, 1992, as amended at 72 FR 53423, Sept. 19, 2007]



Sec. 751.8  Adjudicating authorities.

    (a) Claims by Navy personnel. (l) The following officials are 
authorized to adjudicate and authorize payment of PCA claims up to 
$100,000:
    (i) The Judge Advocate General;
    (ii) The Deputy Judge Advocate General;
    (iii) Any Assistant Judge Advocate General; and
    (iv) The Deputy Assistant Judge Advocate General (Claims and Tort 
Litigation).
    (2) Any individual, when designated by the Deputy Assistant Judge 
Advocate General (Claims and Tort Litigation Division), may adjudicate 
and authorize payment of PCA claims up to any designated amount.
    (b) Claims by Marine Corps personnel. (1) The following officials 
are authorized to adjudicate and authorize payment of PCA claims up to 
$40,000:
    (i) Commandant of the Marine Corps;
    (ii) Deputy Commandant, Manpower and Reserve Affairs Department;
    (iii) Director, Personal and Family Readiness Division;

[[Page 419]]

    (iv) Head, Military Personnel Services Branch;
    (v) Head, Personal Property Claims Section; and
    (vi) Any individual personally designated by the Commandant of the 
Marine Corps may adjudicate and authorize payment of PCA claims up to 
any delegated amount not to exceed $40,000.
    (2) The Assistant Head, Personal Property Claims Section is 
authorized to adjudicate and authorize payment of PCA claims up to 
$25,000.
    (3) Any individual at Marine Corps Field Transportation Management 
Office/Claims Activities, when personally designated by the Director, 
Personal and Family Readiness Division, may be authorized to adjudicate 
and authorize payment of PCA claims up to any delegated amount not to 
exceed $40,000.

[72 FR 53423, Sept. 19, 2007]



Sec. 751.9  Presentment of claim.

    (a) General. A claim shall be submitted in writing and, if 
practicable, be presented to the Personnel Claims Unit or Marine Corps 
claims office serving the area where the claim accrued, such as where 
the House Hold Goods were delivered. If submission in accordance with 
the foregoing is impractical under the circumstance, the claim may be 
submitted in writing to any installation or establishment of the Armed 
Forces which will forward the claim to the appropriate Navy or Marine 
Corps claims office for processing. To constitute a filing, a claim must 
be presented in writing to one of the military departments.
    (b) Statute of limitations. A claim must be presented in writing to 
a military installation within 2 years after it accrues. This 
requirement is statutory and may only be waived if a claim accrues 
during armed conflict, or armed conflict intervenes before the 2 years 
have run, and good cause is shown. In this situation, a claim may be 
presented not later than 2 years after the end of the armed conflict. A 
claim accrues on the day the claimant knows or should know of the loss. 
For losses that occur in shipment of personal property, normally the day 
of delivery or the day the claimant loses entitlement to storage at 
Government expense (whichever occurs first) is the day the claim 
accrues. If a claimant's entitlement to Government storage terminates, 
but the property is later delivered at Government expense, the claim 
accrues on delivery. In computing the 2 years, exclude the first day 
(day of delivery or incident) and include the last day. If the last day 
falls on a non-workday, extend the 2 years to the next workday.
    (c) Substantiation. The claimant is responsible for substantiating 
ownership or possession, the fact of loss or damage, and the value of 
property. Claimants are expected to report losses promptly. The greater 
the delay in reporting a loss, the more substantiation the claimant is 
expected to provide.
    (1) Obviously damaged or missing inventory items that are not 
reported at delivery. Claimants are expected to list missing inventory 
items and obvious damage at time of delivery. Claimants who do not 
should be questioned. Obviously some claimants will simply not notice 
readily apparent damage. If, however, the claimant cannot provide an 
explanation or lacks credibility, payment should be denied based on lack 
of evidence that the item was lost or damaged in shipment.
    (2) Later-discovered shipment loss or damage. A claimant has 70 days 
to unpack, discover, and report loss and damage that is not obvious at 
delivery. In most cases, loss and damage that is discovered later and 
reported in a timely manner should be deemed to have been incurred in 
shipment.
    (3) Damage to POVs in shipment. Persons shipping POVs are expected 
to list damage on DD Form 788 (Private Vehicle Shipping Document for 
Automobile) when they pick up the vehicle. Obvious external damage that 
is not listed is not payable. Damage the claimant could reasonably be 
expected not to notice at the pickup point should be considered if the 
claimant reports the damage to claims or transportation office personnel 
within a short time, normally a few days after arriving at the 
installation.
    (4) Credibility. Factors that indicate a claimant's credibility is 
questionable include amounts claimed that are exaggerated in comparison 
with the cost of similar items, insignificant or almost undetectable 
damage, very recent purchase dates for most items claimed,

[[Page 420]]

and statements that appear incredible. Such claimants should be required 
to provide more evidence than is normally expected.
    (5) Inspections. Whenever a question arises about damage to 
property, the best way to determine a proper award is to examine the 
items closely to determine the nature of the damage. For furniture, 
undersurfaces and the edges of drawers and doors should be examined to 
determine whether the material is solid hardwood, fine quality veneer 
over hardwood, veneer over pressed wood, or other types of material. If 
the inspection is conducted at the claimant's quarters, the general 
quality of property should be determined. Observations by repairmen and 
transportation inspectors are very valuable, but on occasion, claims 
examiners may request an inspection. Such inspections are necessary to 
reduce the number of reconsiderations and fraudulent claims and are 
invaluable in enabling claims personnel to understand the facts in many 
situations.

[57 FR 5055, Feb. 12, 1992, as amended at 72 FR 53423, Sept. 19, 2007]



Sec. 751.10  Form of claim.

    The claim should be submitted on DD Form 1842 (Claim for Personal 
Property) accompanied by DD Form 1844 (List of Property). If DD Forms 
1842 and 1844 \1\ are not available, any writing will be accepted and 
considered if it asserts a demand for a specific sum and substantially 
describes the facts necessary to support a claim cognizable under these 
regulations. The claim must be signed by a proper claimant (see Sec. 
751.5) or by a person with a power of attorney for a proper claimant. A 
copy of the power of attorney must be included with the claim.
---------------------------------------------------------------------------

    \1\ Copies of these forms may be obtained by contacting the legal 
office or personal property office serving the installation where the 
claimant is stationed, or nearest to the point where the loss or damage 
occurred or on the Internet at http://www.jag.navy.mil.

[57 FR 5055, Feb. 12, 1992, as amended at 72 FR 53424, Sept. 19, 2007]



Sec. 751.11  Investigation of claim.

    Upon receipt of a claim, the claim shall be stamped with the date 
and receiving office, forwarded to the cognizant PCU and be referred to 
a claims examiner. The examiner shall consider all information and 
evidence submitted with the claim and shall conduct such further 
investigation as may be necessary and appropriate.

[72 FR 53424, Sept. 19, 2007]



Sec. 751.12  Payments.

    Payment of approved personnel claims will be made by the Navy or 
Marine Corps disbursing officer serving the adjudicating authority. 
Payments will be charged to funds made available to the adjudicating 
authority for this purpose.

[72 FR 53424, Sept. 19, 2007]



Sec. 751.13  Partial payments.

    (a) Partial payments when hardship exists. When claimants suffer a 
significant, compensable loss of items that are needed for daily living, 
and can demonstrate a need for immediate funds to replace some of those 
items (e.g., food, clothes, baby items, etc.) the adjudicating authority 
may authorize a partial payment of an appropriate amount, normally one-
half of the estimated total payment. When a partial payment is made a 
copy of the payment voucher and all other information related to the 
partial payment shall be placed in the claim file. Action shall be taken 
to ensure the amount of the partial payment is deducted from the 
adjudicated value of the claim when final payment is made.
    (b) Marine hardship payments. The Marine claimant's Transportation 
Management Office shall ensure compliance with all requirements of Sec. 
751.14(a), and may request authority for payment by message from the 
Commandant of the Marine Corps (MRP-2).
    (c) Effect of partial payment. Partial payments are to be subtracted 
from the adjudicated value of the claim before payment of the balance 
due. Overpayments are to be properly recouped.

[72 FR 53424, Sept. 19, 2007]



Sec. 751.14  Reconsideration and appeal.

    (a) General. When a claim is denied either in whole or in part, the 
claimant shall be given written notification of the initial adjudication 
and of the

[[Page 421]]

right to submit a written request for reconsideration to the original 
adjudicating authority within 6 months from the date the claimant 
receives notice of the initial adjudication of the claim. If a claimant 
requests reconsideration and if it is determined that the original 
action was erroneous or incorrect, it shall be modified and, when 
appropriate, a supplemental payment shall be approved. If full 
additional payment is not granted, the file shall be forwarded for 
reconsideration to the next higher adjudicating authority. For claims 
originally adjudicated by the Head, Personnel Claims Unit Norfolk, the 
files will be forwarded to the Judge Advocate General (Claims and Tort 
Litigation)(Code 15) for final action. The claimant shall be notified of 
this action either by letter or by copy of the letter forwarding the 
file to higher adjudicating authority. The forwarding letter shall 
include a synopsis of action taken on the file and reasons for the 
action or denial, as well as a recommendation of further action or 
denial.
    (b) Files forwarded to JAG. For files forwarded to JAG in accordance 
with Sec. 751.14(a), the forwarding endorsement shall include the 
specific reasons why the requested relief was not granted and shall 
address the specific points or complaints raised by the claimant's 
request for reconsideration.
    (c) Appeals procedure for claims submitted by Marine Corps 
personnel. Where any of the Marine Corps adjudication authorities listed 
in Sec. 751.8(b) fail to grant the relief requested, or otherwise 
resolve the claim to the satisfaction of the claimant, the request for 
reconsideration shall be forwarded together with the entire original 
file and the adjudicating authority's recommendation, to the Judge 
Advocate General.

[72 FR 53424, Sept. 19, 2007]



Sec. Sec. 751.15-751.20  [Reserved]

Subpart B [Reserved]



PART 752_ADMIRALTY CLAIMS--Table of Contents




Sec.
752.1 Scope.
752.2 Organization.
752.3 Claims against the Navy.
752.4 Affirmative claims.
752.5 Salvage.

    Authority: 5 U.S.C. 301; 10 U.S.C. 5013, 5148 and 7621-7623; 32 CFR 
700.105 and 700.331.



Sec. 752.1  Scope.

    This part applies to admiralty-tort claims. These include claims 
against the United States for damage caused by a vessel in the naval 
service or by other property under the jurisdiction of the Navy, or 
damage caused by a maritime tort committed by an agent or employee of 
the Navy for which the Navy has assumed an obligation to respond for 
damage. Affirmative claims by the United States for damage caused by a 
vessel or floating object to Navy property are covered under this part.

[72 FR 56268, Oct. 3, 2007]



Sec. 752.2  Organization.

    (a) Administrative authority of the Secretary of the Navy. The 
Secretary of the Navy has administrative authority for settlement and 
direct payment where the amount paid does not exceed $15,000,000 and 
where the matter is not in litigation, of claims for damage caused by 
naval vessels or by other property under the jurisdiction of the Navy, 
or damage caused by a maritime tort committed by an agent or employee of 
the Navy, and for towage or salvage services rendered to naval vessels 
(10 U.S.C. 7622). The Secretary also has authority to settle affirmative 
admiralty claims for damage caused by a vessel or floating object to 
property under the jurisdiction of the Navy (10 U.S.C. 7623).
    (b) Admiralty and Maritime Law Division of the Office of the Judge 
Advocate General. The Navy's admiralty-tort claims are processed and 
adjudicated in the Admiralty and Maritime Law Division of the Office of 
the Judge Advocate General. All correspondence with the Admiralty and 
Maritime Law Division should be addressed to the Office of the Judge 
Advocate General (Code 11), 1322 Patterson Avenue SE, Suite 3000, 
Washington Navy Yard, DC 20374-5066.
    (c) Mission and policy. The primary mission of the Admiralty and 
Maritime Law Division is to effect prompt and equitable settlements of 
admiralty

[[Page 422]]

claims, both against and in favor of the United States. The settlement 
procedure has evolved to eliminate the expenses and delays arising out 
of litigation and to obtain results advantageous to the financial 
interests of the United States. Where settlements cannot be made, 
litigation ensues in the Federal Courts. The final test of whether a 
settlement is justified is the probable result of litigation. 
Settlements are therefore considered and determined by the probable 
results of litigation. The policy of the Navy is to effect fair and 
prompt settlements of admiralty claims wherever legal liability exists.
    (d) Admiralty-tort claims. As indicated above, the Admiralty and 
Maritime Law Division primarily handles admiralty-tort claims. These are 
claims for damage caused by vessels in the naval service or by other 
property under the jurisdiction of the Navy, or damage caused by a 
maritime tort committed by an agent or employee of the Navy, and claims 
for damage caused by a privately owned vessel to a vessel or property of 
the Navy (affirmative claims). The Admiralty and Maritime Law Division 
also handles claims for towage and salvage services rendered to a vessel 
in the naval service.
    (e) Admiralty-contract claims. Admiralty-contract claims arising out 
of the operations of the Military Sealift Command (MSC) are handled by 
its Office of Counsel. MSC is responsible for the procurement of vessels 
and space for the commercial ocean transportation of Department of 
Defense cargo, mail, and personnel. It is also responsible for the 
maintenance, repair, and alteration of Government-owned vessels assigned 
to it. The Office of Counsel, MSC, deals with the various claims of a 
contract nature which arise out of these operations. These include 
claims for cargo damage, charter hire, redelivery, general average, and 
claims arising under MSC ship-repair contracts.
    (f) Damage caused by Navy contract stevedores. Office of Counsel, 
Naval Supply Systems Command, has cognizance of admiralty claims for 
damage caused by Navy contract stevedores. Under these stevedore 
contracts, the stevedoring companies are responsible for negligent acts 
of their employees which result in vessel damage. It is important that 
the extent of any such damage be accurately determined and promptly 
reported to the contracting officer having cognizance of the particular 
stevedore contract involved.
    (g) Resolving conflicts. Admiralty-tort claims, such as collision, 
personal-injury, and death claims, are dealt with by the Admiralty and 
Maritime Law Division, irrespective of whether an MSC vessel or other 
naval vessel is involved. Whether any particular claim is to be handled 
by JAG or by MSC, therefore, is determined by the nature of the claim. 
Cases may arise which could be handled by either office. If doubt 
exists, such matters should be reported both to JAG and to MSC. An 
agreement will then be reached between the Admiralty and Maritime Law 
Division and the Office of Counsel, MSC, as to how the incident should 
be handled.

[39 FR 9962, Mar. 15, 1974, as amended at 55 FR 12173, Apr. 2, 1990; 65 
FR 60861, 60862, Oct. 13, 2000; 69 FR 20542, Apr. 16, 2004; 72 FR 56268, 
Oct. 3, 2007]



Sec. 752.3  Claims against the Navy.

    (a) Settlement authority. 10 U.S.C. 7622 provides settlement 
authority for damage caused by a vessel in the naval service or by other 
property under the jurisdiction of the Department of the Navy; 
compensation for towage or salvage service, including contract salvage, 
rendered to a vessel in the naval service or to other property of the 
Navy; or damage caused by a maritime tort committed by any agent or 
employee of the Department of the Navy or by property under the 
jurisdiction of the Department of the Navy. The limit on the Secretary's 
settlement authority is payment of $15,000,000. A claim which is settled 
for an amount over $15,000,000 is certified to Congress for payment. 
Section 7622 provides that the Secretary may delegate his settlement 
authority in matters where the amount to be paid is not over $1,000,000. 
Under the Secretary's delegation, settlements not exceeding $500,000 may 
be effected by the Judge Advocate General. Under the Secretary's 
delegation, settlements not exceeding $250,000 may be effected by the 
Deputy Assistant

[[Page 423]]

Judge Advocate General (Admiralty and Maritime Law).
    (b) Settlement is final. The legislation specifically authorizes the 
Secretary to settle, compromise, and pay claims. The settlement, upon 
acceptance of payment by the claimant, is final and conclusive for all 
purposes.
    (c) Settlement procedures. Where the amount paid is over $500,000, 
after agreement is reached with counsel or claimants, the procedure is 
to prepare a settlement recommendation for the approval of the Secretary 
of the Navy. When settlement has been approved, the voucher required for 
effecting payment is prepared. The settlement check is then exchanged, 
in keeping with the commercial practice, for an executed release. In 
some situations, where the exchange of documents is impracticable, a 
claimant is requested to forward the executed release by mail, on the 
understanding that the release does not become effective until the check 
is received in payment. Claims settled under 10 U.S.C. 7622 are paid out 
of annual Department of Defense appropriations.
    (d) Limitation period. The Secretary's settlement authorization is 
subject to a two-year limitation. This limitation is not extended by the 
filing of claim nor by negotiations or correspondence. A settlement 
agreement must be reached before the end of the two-year period. If 
settlement is not accomplished, then the claimant must file suit under 
the appropriate statute to avoid the limitation bar. The agreement 
reached in negotiations must receive the approval of the Secretary of 
the Navy or his designee, depending on the amount involved, prior to the 
expiration of the two-year period.
    (e) Matters in litigation. When suit is filed, the matter comes 
within the cognizance of the Department of Justice, and the Secretary of 
the Navy is no longer able to entertain a claim or to make 
administrative settlement.

[39 FR 9962, Mar. 15, 1974, as amended at 55 FR 12173, Apr. 2, 1990; 65 
FR 60861, 60862, Oct. 13, 2000; 69 FR 20542, Apr. 16, 2004; 72 FR 56268, 
Oct. 3, 2007]



Sec. 752.4  Affirmative claims.

    (a) Settlement authority. The Navy has the same authority to settle 
affirmative admiralty claims as it does claims against the Navy. The 
statute conferring this authorization is codified in 10 U.S.C. 7623, and 
is the reciprocal of 10 U.S.C. 7622 referred to in Sec. 752.3.
    (b) Scope. 10 U.S.C. 7623 is a tort claims-settlement statute. It is 
not limited to affirmative claims arising out of collision, but embraces 
all instances of damage caused by a vessel or floating object to 
property of the United States under the jurisdiction of the Department 
of the Navy or for which the Department of the Navy has assumed an 
obligation to respond. Perhaps the most frequent instance is where a 
privately owned vessel damages a Navy pier or shore structure. To 
eliminate any issue of whether the damaging instrumentality was a 
vessel, the words ``or floating object'' were included.
    (c) Statute of limitation. The United States is subject to a three-
year statute of limitation when it asserts an affirmative claim for 
money damages grounded in tort. This limitation is subject to the usual 
exclusions, such as inability to prosecute due to war, unavailability of 
the ``res'' or defendant, and certain exemptions from legal process (28 
U.S.C. 2415, 2416).
    (d) Litigation. 10 U.S.C. 7623 does not apply to any claim where 
suit is filed. If the Admiralty and Maritime Law Division is unable to 
effect settlement, the matter is referred to the Department of Justice 
for the filing of a complaint against the offending party. Thereafter, 
as in the case of adverse litigated claims, the Navy has no further 
authority to effect settlement.

[39 FR 9962, Mar. 15, 1974, as amended at 55 FR 12174, Apr. 2, 1990; 65 
FR 60861, Oct. 13, 2000; 69 FR 20542, Apr. 16, 2004; 72 FR 56268, Oct. 
3, 2007]



Sec. 752.5  Salvage.

    (a) Scope. This section relates to salvage claims against or by the 
Navy for compensation for towage and salvage services, including 
contract salvage, rendered to a vessel in the naval service or to other 
property under the jurisdiction of the Department of the Navy, or for 
salvage services rendered by the Department of the Navy. Suits for 
salvage may be maintained under the Public Vessels Act, and salvage

[[Page 424]]

claims are within the Secretary of the Navy's administrative-settlement 
authority under 10 U.S.C. 7622. Salvage claims against the Navy are 
reported to and processed by the Judge Advocate General (Admiralty and 
Maritime Law Division). Both claims and suits for salvage against the 
United States are subject to the two-year limitation of the Public 
Vessels Act and the Navy's settlement authority.
    (b) Affirmative claims. Authorization for the settlement of 
affirmative salvage claims is contained in 10 U.S.C. 7365. Assertion of 
such claims is handled in the first instance by the Assistant Supervisor 
of Salvage (Admiralty), USN, Naval Sea Systems Command (SEA OOCL), 2531 
Jefferson Davis Highway, NC/3 Room 11E54, Arlington, VA 22242-5160. 
Salvage claims are referred to the Admiralty Division only if the 
Assistant Supervisor of Salvage (Admiralty) is unsuccessful in making 
collection. Any money received in settlement of affirmative salvage 
claims is credited to appropriations for maintaining salvage facilities 
by the Navy, pursuant to 10 U.S.C. 7367.

[39 FR 9962, Mar. 15, 1974, as amended at 41 FR 26866, June 30, 1976; 55 
FR 12174, Apr. 2, 1990; 65 FR 60861, 60862, Oct. 13, 2000; 69 FR 20542, 
Apr. 16, 2004]



PART 755_CLAIMS FOR INJURIES TO PROPERTY UNDER ARTICLE 139 OF THE UNIFORM CODE OF MILITARY JUSTICE--Table of Contents




Sec.
755.1 Statutory authority.
755.2 Scope.
755.3 Claims not cognizable.
755.4 Limitation on claims.
755.5 Complaint by the injured party and investigation.
755.6 Action where offenders are members of one command.
755.7 Action where offenders are members of different commands.
755.8 Reconsideration and appeal.
755.9 Effect of court-martial proceedings.

    Authority: 5 U.S.C. 301; 10 U.S.C. 939, 5013, and5148; E.O. 11476, 
as reported in 3 CFR, 1969 Comp., p. 132; 32 CFR 700.206 and 700.1202.

    Source: 56 FR 42232, Aug. 27, 1991, unless otherwise noted.
    Note 1: This part 755 is chapter IV of the Manual of the Judge 
Advocate General of the Navy.
    Note 2: The Uniform Code of Military Justice (10 U.S.C. 801-940) is 
referred to in this part 755 as the ``UCMJ''. The Manual for Courts-
Martial, United States, 1984 (E.O. 12473 of August 1, 1984) is referred 
to in this part 755 as ``MCM 1984''.



Sec. 755.1  Statutory authority.

    Article 139, UCMJ, redress of injuries to property, is the basis for 
this chapter.



Sec. 755.2  Scope.

    This chapter provides for assessments against the pay of members of 
the naval service in satisfaction of claims for property damage caused 
under certain circumstances. Claims for damage, loss, or destruction of 
privately owned property caused by a person or persons in the naval 
service, are payable under Article 139, UCMJ, only if such damage, loss, 
or destruction is caused by riotous conduct, willful conduct, or acts 
showing such reckless or wanton disregard of the property rights of 
others that willful damage or destruction is implied. Acts of the type 
punishable under Article 109, UCMJ, are cognizable under Article 139, 
UCMJ. Charges against pay under these regulations shall be made only 
against the pay of persons shown to have been principal offenders or 
accessories.



Sec. 755.3  Claims not cognizable.

    The following claims are not cognizable under this chapter.
    (a) Claims resulting from simple negligence.
    (b) Claims of subrogees.
    (c) Claims for personal injury or death.
    (d) Claims arising from acts or omissions within the scope of 
employment of the offender.
    (e) Claims for reimbursement for damage, loss, or destruction of 
Government property.



Sec. 755.4  Limitation on claims.

    (a) Time limitations. A claim must be submitted within 90 days of 
the incident giving rise to it.
    (b) Acts of property owner. When the acts or omissions of the 
property owner, his lessee, or agent were a proximate contributing 
factor to the loss or

[[Page 425]]

damage of the property, assessments will not be made against members of 
the naval service in excess of the amount for which they are found to be 
directly responsible, i.e., comparative responsibility for the loss will 
be the standard for determining financial responsibility.
    (c) Only direct damages considered. Assessment will be made only for 
direct physical damages to the property. Indirect, remote, or 
inconsequential damage will not be considered.



Sec. 755.5  Complaint by the injured party and investigation.

    (a) A claim shall contain a statement setting forth the amount of 
the claim, the facts and circumstances surrounding the claim and any 
other information that will assist in the investigation and resolution 
of the matter. When there is more than one complaint resulting from a 
single incident, each claimant must file a claim separately and 
individually. The claim shall be personally signed by the claimant or 
his duly authorized representative or agent.
    (b) Where the claim alleges misconduct by members of the command, a 
commanding officer to whom the claim is submitted shall convene an 
investigation under this Manual to inquire into the matter. Where a 
complaint is received by a commanding officer to whose command the 
alleged offenders do not report, he shall forward the claim and other 
pertinent information about the matter to the member's commanding 
officer who will convene an investigation into the incident. Where the 
command of the alleged offenders cannot be determined, the claim and 
supporting materials shall be forwarded to the Chief of Naval Personnel 
or the Commandant of the Marine Corps, as appropriate, for action.
    (c) The investigation shall inquire into the circumstances 
surrounding the claim, gather all relevant information about the matter 
(answering the who, what, where, when, why, and how questions) and make 
findings and opinions, as appropriate, about the validity of the claim 
under Article 139, UCMJ, and these regulations. The investigation shall 
determine the amount of damage suffered by the property owner.
    (d) The investigation shall make recommendations about the amount to 
be assessed against the pay of the responsible parties. If more than one 
person is found responsible, recommendations shall be made about the 
assessments against all individuals.



Sec. 755.6  Action where offenders are members of one command.

    (a) Action by commanding officer. The commanding officer shall 
ensure the alleged offenders are shown the investigative report and are 
advised they have 20 days within which to submit a statement or 
additional information on the incident. If the member declines to submit 
information, he shall so state in writing within the 20 day period. The 
commanding officer shall review the investigation and determine whether 
the claim is properly within the provisions of Article 139, UCMJ, and 
these regulations, and whether the facts indicate responsibility for the 
damage on members of the command. If the commanding officer finds the 
claim payable under these regulations, he shall fix the amount to be 
assessed against the offenders.
    (b) Review. If the commanding officer has authority to convene a 
general court-martial, no further review of the investigation is 
required as to the redress of injuries to property. If the commanding 
officer does not have general court-martial convening authority, the 
investigation and the commanding officer's action thereon shall be 
forwarded to the officer exercising general court-martial jurisdiction 
(OEGCM) over the command for review and action on the claim. That 
officer's action on the claim shall be communicated to the commanding 
officer who will take action consistent with the determination.
    (c) Charge against pay. Where the amount does not exceed $5,000.00, 
the amount ordered by the commanding officer shall, as provided in the 
Navy Comptroller Manual, be charged against the pay of the offenders and 
the amounts so collected will be paid

[[Page 426]]

to the claimant. Where the amount exceeds $5,000.00, the claim, the 
investigation, and the commanding officer's recommendation shall be 
forwarded for review prior to checkage to Headquarters, U.S. Marine 
Corps (Code JAR) or the Judge Advocate General, as appropriate. The 
amount charged in any single month against the pay of offenders shall 
not exceed one-half of basic pay, as defined in paragraph 126h(2), 
Manual for Courts-Martial. The action of the commanding officer in 
ordering the assessment shall be conclusive on any disbursing officer 
for payment to the claimant of the damages assessed, approved, charged, 
and collected.



Sec. 755.7  Action where offenders are members of different commands.

    (a) Action by common superior. The investigative report shall be 
forwarded to the common superior exercising general court-martial 
jurisdiction over the commands to which the alleged offenders are 
assigned. That officer shall ensure the alleged offenders are shown the 
investigative report and permitted to comment on it, should they desire, 
before action is taken on the claim. That officer shall review the 
investigation and determine whether the claim is properly within the 
provisions of Article 139, UCMJ, and these regulations, and whether the 
facts indicate responsibility for the damage on members of his command. 
If the claim is found payable under these regulations, he shall fix the 
amount to be assessed against the offenders and direct the appropriate 
commanding officers to take action accordingly.
    (b) Forwarding to SECNAV (JAG). Where it is not practical or 
possible to carry out the procedure in Sec. 755.7(a) of this section, 
the investigation or investigations shall be forwarded to the Secretary 
of the Navy (Judge Advocate General) who will take action in the matter. 
Commanding officers, in such a situation, are not to make charges 
against the pay of their members until directed by the Secretary of the 
Navy (Judge Advocate General).



Sec. 755.8  Reconsideration and appeal.

    (a) Reconsideration. The OEGCM may, upon a receipt of a request for 
reconsideration by either the claimant or a member who has been assessed 
pecuniary liability, reopen the investigation or take any other action 
he believes is necessary in the interests of justice. If the OEGCM 
contemplates acting favorably on the request, he will provide all 
individuals interested in the claim with notice and an opportunity to 
respond. The basis for any change will be noted in the OEGCM's decision.
    (b) Appeal. In claims involving $5,000.00 or less, a claimant or 
member who has been assessed pecuniary liability may appeal the decision 
to the OEGCM. An appeal must be submitted within 5 days of the receipt 
of the OEGCM's decision. Appeals will be forwarded, via the OEGCM, to 
the Judge Advocate General for review and final action. In the event of 
an appeal, the imposition of the OEGCM's decision will be held in 
abeyance pending the final action by JAG. If it appears that good cause 
exists that would make it impracticable for an appeal to be submitted 
within 5 days, the OEGCM may, in his discretion, grant an extension of 
time, as appropriate. His decision on extensions is final and 
nonappealable.



Sec. 755.9  Effect of court-martial proceedings.

    Administrative action under these regulations is separate and 
distinct from and is not affected by any disciplinary action against the 
offender. The two proceedings are independent. Acquittal or conviction 
of the alleged offender by court-martial is evidence for the 
administrative action, but is not determinative on the issue of 
responsibility for damages under these regulations.



PART 756_PROCEDURES FOR PROCESSING CLAIMS INVOLVING NON-APPROPRIATED FUND ACTIVITIES AND THEIR EMPLOYEES--Table of Contents




Sec.
756.1 Scope.
756.2 Definitions.
756.3 Notification.
756.4 Responsibility.
756.5 Investigation.
756.6 Negotiation.

[[Page 427]]

756.7 Payment.
756.8 Denial.
756.9 Claims by employees.

    Authority: 5 U.S.C. 301, 10 U.S.C. 5013 and 5148.

    Source: 57 FR 4736, Feb. 7, 1992, unless otherwise noted.



Sec. 756.1  Scope.

    This part explains how to settle claims for and against the United 
States for property damage, personal injury, or death arising out of the 
operation of non-appropriated fund activities (NAFI).\1\
---------------------------------------------------------------------------

    \1\ DoD Directive 5515.6 establishes policy governing the 
administrative processing of claims arising out of the operation of non-
appropriated fund activities.

[72 FR 53425, Sept. 19, 2007]



Sec. 756.2  Definitions.

    (a) Nonappropriated-fund instrumentality (NAFI). An instrumentality 
of the Federal Government established to generate and administer 
nonappropriated-funds for programs and services contributing to the 
mental and physical well-being of Department of Defense personnel and 
their dependents. A NAFI is not incorporated under the laws of any State 
and enjoys the privileges and immunities of the Federal Government.
    (b) Nonappropriated-funds. Funds generated through the use and 
patronage of NAFI's, not including funds appropriated by Congress.
    (c) Employees of NAFIs. Personnel employed by NAFIs whose salaries 
are paid from non-appropriated funds.

[57 FR 4736, Feb. 7, 1992, as amended at 72 FR 53425, Sept. 19, 2007]



Sec. 756.3  Notification.

    (a) Some NAFI's, such as flying clubs, carry private commercial 
insurance to protect them from claims for property damage and personal 
injury attributable to their operations. The Commandant of the Marine 
Corps, the Chief of Naval Personnel, and the Commander, Naval Supply 
Systems Command determine whether NAFI's within their cognizance shall 
carry liability insurance or become self-insurers, in whole or in part.
    (b) The Marine Corps requires mandatory participation in the Morale, 
Welfare and Recreation (MWR) Composite Insurance Program by the 
following operations: MWR operations and retail services, food and 
hospitality, recreation; and special NAFI activities including flying 
clubs, rod and gun clubs, Interservice Rifle Fund, Marine Corps Marathon 
and Dependent Cafeteria Fund. The following organizations may also 
participate in the MWR Composite Insurance Program, if desired: Child 
welfare centers, billeting funds, chapel funds, and civilian welfare 
funds.
    (c) When the operations of NAFI's result in property damage or 
personal injury, the insurance carrier, if any, should be given 
immediate written notification. Notification should not be postponed 
until a claim is filed. When the activity is self-insured, the self-
insurance fund shall be notified of the potential liability by the 
activity.



Sec. 756.4  Responsibility.

    (a) All claims resulting from NAFIs should be submitted to the 
command having cognizance over the NAFI involved. The claim will then be 
forwarded to the Tort Claims Unit (TCU) Norfolk located at the following 
address: Department of the Navy, Office of the Judge Advocate General, 
Tort Claims Unit Norfolk, 9620 Maryland Avenue, Suite 100, Norfolk, VA 
23511-2989.
    (b) The TCU Norfolk has cognizance over all DoN claims. Normally, 
the TCU Norfolk has primary responsibility for the negotiation and 
settlement of NAFI claims. This is because NAFIs are Federal agencies 
within the meaning of the Federal Tort Claims Act (FTCA) if the NAFI is 
charged with an essential function of the DoN and if the degree of 
control and supervision by the Navy is more than casual or perfunctory. 
Compare United States v. Holcombe, 277 F.2d 143 (4th Cir. 1960) and 
Scott v. United States, 226 F. Supp. 846, (D. Ga. 1963). Consequently, 
to the extent sovereign immunity is waived by the FTCA, 28 U.S.C. 
1346(b), 2671-2672, 2674-2680, the United States remains ultimately 
liable for payment of NAFI claims.

[72 FR 53425, Sept. 19, 2007]

[[Page 428]]



Sec. 756.5  Investigation.

    Claims arising out of the operation of NAFIs, in and outside the 
United States, shall be investigated in accordance with the procedures 
for investigating similar claims against appropriated fund activities. 
The Manual of the Judge Advocate General (JAGMAN), Chapter II \2\ 
provides guidance in conducting an investigation of an incident or event 
likely to result in claims or civil litigation against or for DoN or the 
United States.
---------------------------------------------------------------------------

    \2\ JAGMAN Chapter II (JAG Instruction 5800.7E) is available at the 
Web site of the Navy Judge Advocate General's Corps at http://
www.jag.navy.mil.

[72 FR 53425, Sept. 19, 2007]



Sec. 756.6  Negotiation.

    (a) General. Claims from NAFIs should be processed primarily through 
procedures, regulations, and statutes applicable to similar appropriated 
fund activity claims.
    (b) When the NAFI is insured. When a NAFI is insured, the insurer or 
the contracted third-party claims administrator (TPA) will normally 
conduct negotiations with claimants. The TCU Norfolk shall monitor the 
negotiations conducted by the insurer or TPA. Monitoring is normally 
limited to ascertaining that someone has been assigned to negotiate, to 
obtain periodic status reports, and to close files on settled claims. 
Any dissatisfaction with the insurer's or TPA's handling of the 
negotiations should be referred directly to the Judge Advocate General 
(Claims and Tort Litigation) for appropriate action. If requested by the 
insurer or TPA, the TCU Norfolk may conduct negotiations. If TCU Norfolk 
negotiates a final settlement, however, request for payment will be 
forwarded to the insurer or TPA for payment. Concurrence by the insurer 
or TPA in the amount of the settlement is not necessary.
    (c) When the NAFI is not insured. When there is no private 
commercial insurer and the NAFI has made no independent arrangements for 
negotiations, the TCU Norfolk is responsible for conducting 
negotiations. When an appropriate settlement is negotiated by the Navy, 
the recommended award will be forwarded to the NAFI for payment from 
non-appropriated funds.

[72 FR 53425, Sept. 19, 2007]



Sec. 756.7  Payment.

    (a) Claims that can be settled for less than 1,500.00. A claim not 
covered by insurance (or not paid by the insurer), that can be settled 
for $1,500.00 or less, may be adjudicated by the TCU Norfolk or single-
service authority and forwarded to the commanding officer of the 
activity concerned or designee for payment out of funds available to the 
commanding officer. The TCU Norfolk or single-service authority will 
obtain the required release from the claimant.
    (b) Claims that cannot be settled for less than $1,500.00. A claim 
negotiated by the Navy, not covered by insurance, that is for more than 
$1,500.00 will be forwarded to the appropriate non-appropriated fund 
headquarters command for payment from its non-appropriated funds.
    (c) When payment is possible under another statute. In some cases, 
neither the NAFI nor its insurer may be legally responsible. In those 
instances when there is no negligence, and payment is authorized under 
some other statute, such as the Foreign Claims Act, 10 U.S.C. 2734-2736, 
the claim may be considered for payment from appropriated funds or may 
be referred to the TCU Norfolk for appropriate action.
    (d) Other claims. A NAFI's private insurance policy is usually not 
available to cover losses that result from some act or omission of a 
mere participant in a non-appropriated fund activity. In the event the 
NAFI declines to pay the claim, the file shall be forwarded to the TCU 
Norfolk for determination.

[72 FR 53426, Sept. 19, 2007]



Sec. 756.8  Denial.

    Claims resulting from non-appropriated fund activities may be denied 
only by the TCU Norfolk. The denial will begin the six-month limitation 
on filing suit against the United States for claims filed under the 
FTCA. Denial of a claim shall be in writing and in accordance with 
subparts A and B of part 750 of this chapter, as appropriate. The TCU 
Norfolk should not deny claims

[[Page 429]]

that have initially been processed and negotiated by a non-appropriated 
fund activity, its insurer, or TPA, until the activity or its insurer 
has clearly stated in writing that it does not intend to pay the claim 
and has elected to defend the claim in court.

[72 FR 53426, Sept. 19, 2007]



Sec. 756.9  Claims by employees.

    (a) Property. Claims by employees of NAFIs for loss, damage, or 
destruction of personal property incident to their employment shall be 
processed and adjudicated in accordance with subparts A or B of part 751 
of this chapter, as appropriate. The claims will then be forwarded to 
the appropriate NAFI for payment from non-appropriated funds.
    (b) Personal injury or death. (1) Personal injury or death of 
citizens or permanent residents of the United States employed anywhere, 
or foreign nationals employed within the United States. Compensation is 
provided by the Longshore and Harbor Workers' Compensation Act (33 
U.S.C. 901-950) for employees of NAFIs who have suffered injury or death 
arising out of, and in the course of, their employment (5 U.S.C. 8171). 
That Act is the exclusive basis for Government liability for such 
injuries or deaths that are covered (5 U.S.C. 8173). A claim should 
first be made under that Act if there is a substantial possibility the 
injury or death is covered under the Act's provisions.
    (2) Personal injury or death of foreign nationals employed outside 
of the continental United States. Employees who are not citizens or 
permanent residents, and who are employed outside the continental United 
States, may be protected by private insurance of the NAFI or by other 
arrangements. When a non-appropriated fund activity has elected not to 
obtain insurance coverage or to make other arrangements, compensation is 
separately provided by Federal statute, military regulations, and 
agreements with foreign countries. See 5 U.S.C. 8172, DoD 1401.1-M, 
Personnel Policy Manual for Non-appropriated Fund Instrumentalities and 
BUPERINST 5300.10A, NAF Personnel Manual.

[72 FR 53426, Sept. 19, 2007]



PART 757_AFFIRMATIVE CLAIMS REGULATIONS--Table of Contents




                    Subpart A_Property Damage Claims

Sec.
757.1 Scope of subpart A.
757.2 Statutory authority.
757.3 Regulatory authority.
757.4 Claims that may be collected.
757.5 Assertion of claims and collection procedures.
757.6 Waiver, compromise, and referral of claims.
757.7-757.10 [Reserved]

 Subpart B_Medical Care Recovery Act (MCRA) Claims and Claims Asserted 
                       Pursuant to 10 U.S.C. 1095

757.11 Scope of Subpart B.
757.12 Statutory authorities.
757.13 Responsibility for MCRA actions.
757.14 Claims asserted.
757.15 Claims not asserted.
757.16 Claims asserted only with OJAG approval.
757.17 Statute of limitations.
757.18 Asserting the claim.
757.19 Waiver and compromise.
757.20 Receipt and release.

    Authority: 5 U.S.C. 301; 10 U.S.C. 939, 5013, and 5148; E.O. 11476, 
3 CFR, 1969 Comp., p. 132; 32 CFR 700.206 and 700.1202.

    Source: 57 FR 5072, Feb. 12, 1992, unless otherwise noted.



                    Subpart A_Property Damage Claims



Sec. 757.1  Scope of subpart A.

    Subpart A describes how to assert, administer, and collect claims 
for damage to or loss or destruction of Government property through 
negligence or wrongful acts.



Sec. 757.2  Statutory authority.

    (a) General. All affirmative claims for damage to or loss of 
Government property in favor of the United States are processed in 
accordance with the Federal Collections Claims Act (31 U.S.C. 3711), as 
amended by the Debt Collection Act of 1982, PL 97-365, 96 Stat. 1749 (25 
October 1982), PL 101-552, 104 Stat. 2736 (15 November 1990) and the 
Debt Collection Improvement Act of 1996, PL 104-134, 110 Stat. 1321, 
1358 (26 April 1996). Department of Defense Directive designees, the 
authority granted to the

[[Page 430]]

Secretary of Defense under the Federal Claims Collection Act.
    (b) Statute of limitations. Subject to specific provisions in other 
statutes, there is a general 3-year statute of limitations on 
affirmative Government tort claims pursuant to 28 U.S.C. 2415(b).

[72 FR 53427, Sept. 19, 2007]



Sec. 757.3  Regulatory authority.

    The regulations published in 31 CFR Chapter IX control the 
collection and settlement of affirmative claims. This section 
supplements the material contained in those regulations. Where this 
section conflicts with the materials and procedure published in 31 CFR 
Chapter IX, the latter controls.

[57 FR 5072, Feb. 12, 1992, as amended at 72 FR 53427, Sept. 19, 2007]



Sec. 757.4  Claims that may be collected.

    (a) Against responsible third parties for damage to Government 
property, or the property of non-appropriated fund activities. It should 
be noted, however, that as a general rule, the Government does not seek 
payment from service members and Government employees for damages caused 
by their simple negligence while acting within the scope of their 
employment. Exceptions to this general policy will be made when the 
incident involves aggravating circumstances.
    (b) For money paid or reimbursed by the government for damage to a 
rental car in accordance with the Joint Federal Travel regulations 
(volume 1, paragraph U 3415-C and volume 2, paragraph C 2101-2). 
Collection action shall be taken against third parties liable in tort. 
Collection action shall not be taken against Government personnel who 
rented the vehicle.
    (c) Other claims. Any other claim for money or property in favor of 
the United States cognizable under the Federal Claims Collections Act 
not specifically listed above.

[72 FR 53427, Sept. 19, 2007]



Sec. 757.5  Assertion of claims and collection procedures.

    (a) General. The controlling procedures for administrative 
collection of claims are established in 31 CFR part 901.
    (b) Officials authorized to pursue claims. The Judge Advocate 
General; the Deputy Judge Advocate General; any Assistant Judge Advocate 
General; the Deputy Assistant Judge Advocate General (Claims and Tort 
Litigation) are authorized to pursue and collect all affirmative claims 
in favor of the United States, except in countries where another service 
has single service responsibility in accordance with DoD Directive 
5515.8.
    (c) Dollar limitations. All of the officers listed in Sec. 757.5(b) 
are authorized to compromise and terminate collection action on 
affirmative claims of $100,000.00 or less.
    (d) Determining liability. Liability must be determined in 
accordance with the law of the place in which the damage occurred, 
including the applicable traffic laws, elements of tort, and possible 
defenses.
    (e) Assertion of a claim. (1) Assertion of the claim is accomplished 
by mailing to the tortfeasor a ``Notice of Claim.'' The notice is to be 
mailed certified mail, return receipt requested, and should include the 
following information:
    (i) Reference to the statutory right to collect;
    (ii) A demand for payment or restoration;
    (iii) A description of damage and estimate of repair;
    (iv) A description of the incident, including date and place; and
    (v) The name, phone number, and office address of the claims 
personnel to contact.
    (2) See also 31 CFR part 901.
    (f) Full payment. When a responsible party or insurer tenders full 
payment or a compromise settlement on a claim, the payment should be in 
the form of a check or money order made payable to ``United States 
Treasury.'' The check or money order shall then be forwarded to the 
disbursing officer serving the collecting activity for deposit in 
accordance with the provisions of the Navy Comptroller Manual. For 
collections for damages to real property, the collection is credited to 
the account available for the repair or replacement of the real property 
at the

[[Page 431]]

time of recovery. (10 U.S.C. 2782.) For damages to personal property, 
the money is returned to the general treasury.
    (g) Installment payments. See 31 CFR 901.8 for specific procedures. 
In general, if the debtor is financially unable to pay the debt in one 
lump sum, an installment payment plan may be arranged. Installment 
payments will be required on a monthly basis and the size of payment 
must bear a reasonable relation to the size of the debt and the debtor's 
ability to pay. The installment agreements should specify payments of 
such size and frequency to liquidate the Government's claim in not more 
than 3 years. Installment payments of less than $50.00 per month should 
be accepted only if justified on the grounds of financial hardship or 
for some other reasonable cause. In all installment arrangements, a 
confession of judgment note setting out a repayment schedule should be 
executed.
    (h) Damage to nonappropriated-fund instrumentality (NAFI) property. 
Any amount collected for loss or damage to property of a NAFI shall be 
forwarded to the headquarters of the nonappropriated-fund activity for 
deposit with that activity. In those situations where the recovery 
involves damage to both NAFI-owned property and other Government 
property, e.g., destruction of an exchange building resulting in damage 
to both the building and the exchange-owned property inside, recovery 
for the exchange-owned property shall be forwarded to the NAFI. Recovery 
for building damage shall be deposited in accordance with Sec. 757.5(f) 
above.
    (i) Damage to industrial-commercial property. When a loss or cost of 
repair has been borne by an industrial-commercial activity, payment 
shall be deposited in the Navy Industrial Fund of the activity in 
accordance with the provisions of the Navy Comptroller Manual. When a 
claim is based on a loss or damage sustained by such an activity, a 
notation to this effect shall be included in any claim file forwarded to 
the Judge Advocate General.
    (j) Replacement in kind or repair. The responsible party, or 
insurer, may want to repair or replace in kind damaged property. The 
commanding officer or officer in charge of the activity sustaining the 
loss is authorized to accept repair or replacement if, in his 
discretion, it is considered to be in the best interests of the United 
States.
    (k) Release. The Supervisory Attorney, Tort Claims Unit, Norfolk is 
authorized to execute a release of the claim when all repairs have been 
completed to the Government's satisfaction, and when all repair bills 
have been paid. No prior approval from the Judge Advocate General is 
required for this procedure. If repair or replacement is made, a 
notation shall be made in any investigation or claims file.

[57 FR 5072, Feb. 12, 1992, as amended at 72 FR 53427, Sept. 19, 2007]



Sec. 757.6  Waiver, compromise, and referral of claims.

    (a) Officials authorized to compromise claims. The officers 
identified in Sec. 757.5(b) may collect the full amount on all claims, 
and may compromise, execute releases or terminate collection action on 
all claims of $20,000.00 or less. Collection action may be terminated 
for the convenience of the Government if the tortfeasor cannot be 
located, is found to be judgment-proof, has denied liability, or has 
refused to respond to repeated correspondence concerning legal liability 
involving a small claim. A termination for the convenience of the 
Government is made after it is determined that the case does not warrant 
litigation or that it is not cost-effective to pursue recovery efforts.
    (b) Claims over $100,000.00. Claims in excess of $100,000.00 may not 
be compromised for less than the full amount or collection action 
terminated without approval from the Department of Justice (DOJ).
    (c) Notification. The Judge Advocate General shall be notified prior 
to all requests made to the DOJ to compromise, terminate collection, or 
referral for further collection action or litigation.
    (d) Litigation reports. Litigation reports prepared in accordance 
with 31 CFR part 904 shall be forwarded through the Judge Advocate 
General (Claims and Tort Litigation) to the Department of Justice along 
with any case file for further collection action

[[Page 432]]

or litigation as required by the Federal Claims Collections Standards.

[57 FR 5072, Feb. 12, 1992, as amended at 72 FR 53428, Sept. 19, 2007]



Sec. Sec. 757.7-757.10  [Reserved]



 Subpart B_Medical Care Recovery Act (MCRA) Claims and Claims Asserted 
                       Pursuant to 10 U.S.C. 1095



Sec. 757.11  Scope of Subpart B.

    Subpart B describes the assertion and collection of claims for 
medical care under the MCRA and 10 U.S.C. 1095. The MCRA states that 
when the Federal government provides treatment or pays for treatment of 
an individual who is injured or suffers a disease, the Government is 
authorized to recover the reasonable value of that treatment from any 
third party who is legally liable for the injury or disease. Title 10 
U.S.C. 1095 provides for the collection from third-party payers for the 
value of health care services incurred by the Government on behalf of 
covered beneficiaries.

[72 FR 53428, Sept. 19, 2007]



Sec. 757.12  Statutory authorities.

    (a) Medical Care Recovery Act, 42 U.S.C. 2651-2653 (2005).
    (b) Title 10 U.S.C. 1095 (Health Care Services Incurred on Behalf of 
Covered Beneficiaries: Collection from Third-Party Payers).
    (c) Title 10 U.S.C. 1079a (CHAMPUS: Treatment of Refunds and Other 
Amounts Collected).

[72 FR 53428, Sept. 19, 2007]



Sec. 757.13  Responsibility for MCRA actions.

    (a) JAG designees. (1) Primary responsibility for investigating, 
asserting, and collecting Department of the Navy (DON) MCRA claims and 
properly forwarding MCRA claims to other Federal departments or agencies 
rests with the following personnel:
    (i) Deputy Assistant Judge Advocate General (Claims and Tort 
Litigation Division) (Code 15); and the
    (ii) Commanding Officer, Naval Legal Service Command Europe and 
Southwest Asia (NLSC EURSWA), Naples, Italy, in its area of geographic 
responsibility.
    (2) JAG designee may assert and receive full payment on any MCRA 
claim. Code 15 may agree to compromise or waive claims for $100,000 or 
less. NLSC EURSWA may agree to compromise or waive claims for $40,000.00 
or less. NLSC EURSWA claims in excess of $40,000.00 may be compromised 
or waived only with Code 15 approval. See Sec. 757.19 for further 
discussion of waiver and compromise.
    (b) Navy Medical Treatment Facility (MTF). (1) Naval MTFs are 
responsible for ensuring potential MCRA/10 U.S.C. 1095 claims are 
brought to the attention of the appropriate JAG designee.
    (2) The MTF reports all potential MCRA/10 U.S.C. 1095 cases by 
forwarding a copy of the daily injury log entries and admission records 
to the cognizant JAG designee within 7 days of treatment for which a 
third party may be liable. The JAG designee makes the determination of 
liability. Recovery for the costs of MTF care is based on Diagnostic 
Related Group rates or a Relative Value Unit. Rates are established by 
the Office of Management and Budget and/or the DoD, and published 
annually in the Federal Register.
    (c) TRICARE Fiscal Intermediary. The TRICARE fiscal intermediary is 
required to identify and promptly mail claims involving certain 
diagnostic codes to the cognizant JAG designee. Claims are asserted for 
the actual amount that TRICARE paid.
    (d) Department of Justice (DoJ). Only the DoJ may authorize 
compromise or waiver of an MCRA/10 U.S.C. 1095 claim in excess of 
$100,000.00 or settle an MCRA/10 U.S.C. 1095 claim in which the third 
party has filed a suit against the United States as a result of the 
incident which caused the injury and upon which the claim is based.

[72 FR 53428, Sept. 19, 2007]



Sec. 757.14  Claims asserted.

    (a) General. The DoN asserts MCRA and 10 U.S.C. 1095 claims when 
medical care is furnished to Navy and Marine Corps active duty 
personnel, retirees, or their dependents, or any other person when 
appropriate, and third-party

[[Page 433]]

tort or contract liability exists for payment of medical expenses 
resulting from an injury or disease. Claims are asserted when the 
injured party is treated in a MTF or when the DoN is responsible for 
reimbursing a non-Federal care provider.
    (b) Independent cause of action. The MCRA creates an independent 
cause of action for the United States. The Government can 
administratively assert and litigate MCRA claims in its own name and for 
its own benefit. Procedural defenses, such as a failure of the injured 
person to properly file and/or serve a complaint on the third party, 
that may prevent the injured person from recovering, do not prevent the 
United States from pursuing its own action to recover the value of 
medical treatment provided to the injured person. The right arises 
directly from the statute; the statutory reference to subrogation 
pertain only to one mode of enforcement. In creating an independent 
right in the Government, the Act prevents a release given by the injured 
person to a third party from affecting the Government's claim.
    (c) Liable parties. MCRA and 10 U.S.C 1095 claims may be asserted 
against individuals, corporations, associations and non-Federal 
Government agencies subject to the limitation described in Sec. 757.15.
    (d) Reasonable value of medical care. The reasonable value of 
medical care provided to an injured person is determined:
    (1) By using the rate set as described in Sec. 757.13 (b)(2) in 
bills issued by the MTF; or
    (2) By the actual amount paid by the Federal Government to non-
Federal medical care providers.
    (e) Alternate theories of recovery. (1) Often, recovery under the 
MCRA is not possible because no third-party tort liability exists. For 
example, if a member, retiree, or dependent is driving a vehicle and is 
injured in single-car accident, there is no tortfeasor. Title 10 U.S.C. 
1095 provides the Government alternate means for recovery as a third-
party beneficiary of an insurance contract of the injured party.
    (2) Recovery may also be possible under State workers' compensation 
laws. Case law in this area is still emerging, but in most 
jurisdictions, the United States stands in the position of a lien 
claimant for services rendered.

[57 FR 5072, Feb. 12, 1992, as amended at 72 FR 53428, Sept. 19, 2007]



Sec. 757.15  Claims not asserted.

    In some cases, public policy considerations limit the DoN's 
assertion of claims against apparent third-party tortfeasors or a 
contract where the Government would be a third party beneficiary. Claims 
are not asserted against:
    (a) Federal Government agencies. Claims are not asserted against any 
department, agency or instrumentality of the United States. ``Agency or 
instrumentality'' includes self-insured, non-appropriated-fund 
activities but does not include private associations.
    (b) Injured service members, dependents, and employees of the United 
States. Claims are not asserted directly against a servicemember, the 
dependent of a servicemember, or an employee of the United States who is 
injured as a result of his own willful or negligent acts. The United 
States does assert, however, against policies that cover the injury.
    (c) Employers of merchant seamen. Claims are not asserted against 
the employer of a merchant seaman who receives Federal medical care 
under 42 U.S.C. 249.
    (d) Department of Veterans' Affairs care for service-connected 
disability. Claims are not asserted for care provided to a veteran by 
the Department of Veterans' Affairs when the care is for a service-
connected disability. The United States will, however, claim for the 
reasonable value of care provided an individual before he is transferred 
to a Department of Veterans' Affairs hospital. This policy does not 
apply in cases where the MTF referred the patient to the Veterans' 
Affairs hospital and then paid for the care.

[57 FR 5072, Feb. 12, 1992, as amended at 72 FR 53428, Sept. 19, 2007]

[[Page 434]]



Sec. 757.16  Claims asserted only with OJAG approval.

    (a) Certain Government contractors. JAG approval is required before 
asserting a claim against a Federal government contractor when the 
contract provides that the contractor will be indemnified or held 
harmless by the Federal government for tort liability.
    (b) U.S. personnel. JAG approval is required before asserting MCRA 
claims directly against servicemembers, their dependents and federal 
employees and their dependents for injury to another person. No approval 
is necessary to assert claims against their insurance policies, however, 
except for injuries caused by servicemembers and federal employees 
acting ``within the scope of their employment.'' Intra-familial tort 
immunity would not preclude the Government from asserting any claims for 
care furnished to a tortfeasor's family members.

[72 FR 53429, Sept. 19, 2007]



Sec. 757.17  Statute of limitations.

    (a) Federal. Claims asserted under the MCRA or against an automobile 
liability insurer through 10 U.S.C. 1095 are founded in tort and must be 
brought within 3 years after the action ``first accrues'' (28 U.S.C. 
2415b). Normally, a medical care claim ``first accrues'' on the initial 
date of treatment.
    (b) Claims asserted under 10 U.S.C. 1095. Although legal arguments 
can be made that claims asserted under 10 U.S.C. 1095 against a no-fault 
or personal injury protection insurer are founded in contract and can be 
brought within 6 years (28 U.S.C. 2415a), all claims should be asserted 
within 3 years of the date when the claim accrued. However, some states 
require notice of such claims to be filed within a shorter period of 
time.

[72 FR 53429, Sept. 19, 2007]



Sec. 757.18  Asserting the claim.

    (a) Initial action by the JAG designee. When advised of a potential 
claim, the JAG designee will determine the Federal agency or department 
responsible for investigating and asserting the claim.
    (1) When DoN has reimbursed a non-Federal provider for health care, 
or when TRICARE has made payment for a Navy health care beneficiary, the 
JAG designee will assert any resulting claim.
    (2) When care is provided in a Federal treatment facility, the 
status of the injured person will determine the agency that will assert 
a resulting claim. Cost of treatment provided or paid for by an MTF is 
deposited in that MTF's account, regardless of which service is making 
the collection.
    (i) Where DoN members, retirees, or their dependents receive medical 
treatment from another Federal agency or department, the DoN will assert 
any claim on behalf of the United States based on information provided 
by the treating agency or department.
    (ii) Similarly, where a DoN MTF provides care to personnel of 
another Federal agency or department, that other agency or department 
will assert any claim on behalf of the United States.
    (3) If the claim is one which the DoN should assert, the JAG 
designee will forward all available information to the appropriate 
department or agency.
    (4) If the claim is one which the DoN should assert, the JAG 
designee will ensure an appropriate investigation into the circumstances 
underlying the claim is initiated and will provide notice to the injured 
party and all third parties who may be liable to the injured person and 
the United States under the MCRA or 10 U.S.C. 1095.
    (b) Investigating the claim. While there is no prescribed form or 
content for investigating these claims, the claims file will contain 
sufficient information on which to base valuation, assertion, 
settlement, waiver, and/or compromise decisions.
    (c) Notice of claim. (1) The JAG designee will assert claims by 
mailing a notice of claim to identified third-party tortfeasors and 
their insurers or insurers for third-party beneficiary coverage. Many 
insured tortfeasors fail to notify their insurance companies of 
incidents. This failure may be a breach of the cooperation clause in the 
policy and may be grounds for the insurer to refuse to defend the 
insured or be responsible for any liability. The United States, as a 
claimant, may preclude such an invocation by giving the requisite 
notification itself. The purpose

[[Page 435]]

of the insurance clause is satisfied if the insurer receives actual 
notice of the incident, regardless of the informant. This notice should 
be mailed as soon as it appears an identified third party may be liable 
for the injuries. The prompt assertion of the claim will ensure that the 
government is named on the settlement draft. If the United States is not 
so named, and the claim has been asserted, the insurer settles at its 
own risk.
    (2) The JAG designee will also notify the injured person or his 
legal representative of the Government's interest in the value of the 
medical care provided by the United States. This notice will advise 
that:
    (i) The United States may be entitled to recover the reasonable 
value of medical care furnished or paid by the Federal government;
    (ii) The injured person is required to cooperate in the efforts of 
the United States to recover the reasonable value of medical care 
furnished or paid for by the Federal government;
    (d) Administering the claim. (1) After investigating and asserting 
the claim, the JAG designee will maintain contact with all parties, 
their legal representatives, and insurers.
    (2) An effort should be made to coordinate collection of the Federal 
government's interest with the injured person's action to collect on a 
claim for damages.
    (i) Attorneys representing an injured person may be authorized to 
include the Federal government's claim as an item of special damages 
with the injured person's claim or suit.
    (ii) An agreement that the Government's claim will be made a party 
of the injured person's action should be in writing and state the 
counsel fees will not be paid by the Government or computed on the basis 
of the Government's portion of recovery.
    (3) If the injured person is not bringing an action for damages or 
is refusing to include the Federal Government's interest, the JAG 
designee will pursue independent collection. The United States is 
specifically allowed to intervene or join in any action at law brought 
by or through the injured person against the liable third person or 
brings an original suit in its own name or in the name of the injured 
person. The JAG designee will ensure all parties are aware that the 
United States must be a party to all subsequent collection negotiation.
    (4) When the Government's interests are not being represented by the 
injured person or his/her attorney, and independent collection efforts 
have failed, the JAG designee will refer the claims to the DoJ for 
possible suit.
    (e) Access to DoN records and information. (1) Copies of medical 
records in cases that have potential claims will be sent by the MTFs to 
the cognizant JAG designee. It is considered a routine use of the 
records for the JAG designee to release them to an insurance company, if 
requested, in order to substantiate the claim. However, only the MTF as 
``keepers of the records'' has the authority to make official releases 
of medical records to anyone else. Records will be protected in 
accordance with the provisions of the Privacy Act, 5 U.S.C. 552a, and 
confidentiality of quality assurance medical records, 10 U.S.C. 1102. 
Non-routine release requires the authorization from the injured 
individual or legal representative or an order from a court of competent 
jurisdiction. A clerk or attorney signed subpoena is not ``an order from 
a court of competent jurisdiction.'' Subpoenas are processed in 
accordance with 32 CFR part 725.
    (2) Requests for testimony of any Navy employees will be processed 
in accordance with DoD Directive 5405.2, 32 CFR part 725, and SECNAVINST 
5820.8A. If the injured person, or his or her attorney has signed an 
agreement to protect the Government's interest and is requesting the 
testimony of a locally available physician who treated the injured 
person, however, this request falls within an exception to the 
regulations. See 32 CFR 725.5(g)(3). In this situation, the injured 
person or the attorney need only ask the JAG designee for assistance in 
scheduling the testimony of the treating physician and the JAG designee 
will coordinate with the physician's command to determine availability. 
Such testimony is limited to factual issues. The definition of factual 
issues is slightly different under the regulations than it is in civil 
litigation. Opinions that are

[[Page 436]]

formed prior to, or contemporaneously with, the treatment at issue and 
are routinely required in the course of the proper performance of 
professional duties constitute essentially factual matters. For example, 
the physician will have opined at the time of treatment if further 
treatment will be necessary. The physician may testify to that as 
factual, not opinion, testimony. Opinions that are formed after 
treatment and are not required for continuing treatment, especially 
those that respond to hypothetical questions, are not factual and are 
considered to be expert testimony. This expert testimony, regardless of 
who requests it, will be processed in accordance with 32 CFR part 725, 
and must be forwarded to OJAG Code 14, General Litigation Division. 
Requests for expert testimony are rarely granted.

[72 FR 53429, Sept. 19, 2007]



Sec. 757.19  Waiver and compromise.

    (a) General. OJAG Code 15 (Claims and Tort Litigation) may authorize 
waiver or compromise of any claim that does not exceed $100,000.00. NLSO 
EURSWA may agree to compromise or waive claims for $40,000.00 or less. 
NLSO EURSWA claims in excess of $40,000.00 may be compromised or waived 
only with Code 15 approval.
    (b) Waiver and compromise. The JAG designee may waive the Federal 
government's MCRA interest when a responsible third-party tortfeasor 
cannot be located, is judgment proof, or has refused to pay and 
litigation is not feasible. Waiver or compromise is also appropriate 
when, upon written request by the injured person or legal 
representative, it is determined that collection of the full amount of 
the claim would result in undue hardship to the injured person. In 
assessing undue hardship, the following should be considered:
    (1) Permanent disability or disfigurement;
    (2) Lost earning capacity;
    (3) Out-of-pocket expenses;
    (4) Financial status;
    (5) Disability, pension and similar benefits available;
    (6) Amount of settlement or award from third-party tortfeasor or 
contract insurer; and
    (7) Any other factors which objectively indicate fairness requires 
waiver.

[57 FR 5072, Feb. 12, 1992, as amended at 72 FR 53430, Sept. 19, 2007]



Sec. 757.20  Receipt and release.

    The JAG designee will execute and deliver appropriate releases to 
third parties who have made full or agreed upon compromised payments. A 
copy of the release will be kept in the claims file.

[72 FR 53430, Sept. 19, 2007]

[[Page 437]]



              SUBCHAPTER F_ISLANDS UNDER NAVY JURISDICTION





PART 761_NAVAL DEFENSIVE SEA AREAS; NAVAL AIRSPACE RESERVATIONS, AREAS UNDER NAVY ADMINISTRATION, AND THE TRUST TERRITORY OF THE PACIFIC ISLANDS--Table of Contents




                         Subpart A_Introduction

Sec.
761.1 Scope.
761.2 Background and general policy.
761.3 Authority.
761.4 Special provisions.
761.5 Definitions.

                  Subpart B_Criteria and Basic Controls

761.6 Criteria.
761.7 Basic controls.

                      Subpart C_Entry Authorization

761.8 General.
761.9 Entry Control Commanders.
761.10 Persons: Group authorizations.
761.11 Persons: Individual authorizations.
761.12 Ships: Group authorizations.
761.13 Ships: Individual authorizations.
761.14 Aircraft: Group authorizations.
761.15 Aircraft: Individual authorizations.
761.16 Notice of action.
761.17 Revocation.
761.18 Appeals.
761.19 Forms.

                    Subpart D_Additional Instructions

761.20 Additional regulations governing persons and vessels in Naval 
          Defensive Sea Areas.

    Authority: 5 U.S.C. 301, 10 U.S.C. 5031, 6011, 18 U.S.C. 2152. The 
text of part 761 contains additional references, including Executive 
Orders.

    Source: 28 FR 13778, Dec. 18, 1963, unless otherwise noted.



                         Subpart A_Introduction



Sec. 761.1  Scope.

    (a) This part provides regulations governing the entry of persons, 
ships, and aircraft into:
    (1) Naval Defensive Sea Areas and Naval Airspace Reservations 
established by Executive order of the President (see Sec. 761.3(a)).
    (2) Areas placed under the Secretary of the Navy for administrative 
purposes by Executive order of the President (see Sec. 761.3(b)).
    (3) The Trust Territory of the Pacific Islands (see Sec. 761.3(c)).
    (b) The entry authorizations issued under the authority of this part 
do not supersede or eliminate the need for visas or other clearances or 
permits required by other law or regulation.

[28 FR 13778, Dec. 18, 1963, as amended at 35 FR 10008, June 18, 1970]



Sec. 761.2  Background and general policy.

    (a) Certain areas, due to their strategic nature or for purposes of 
defense, have been subjected to restrictions regarding the free entry of 
persons, ships, and aircraft. Free entry into the areas listed and 
defined in this part, and military installations contiguous to or within 
the boundaries of defense areas, is subject to control as provided for 
by Executive order or other regulation. The object of controls over 
entry into naval defensive sea areas, naval airspace reservations, 
administrative areas, and the Trust Territory of the Pacific Islands, is 
to provide for the protection of military installations as well as other 
facilities, including the personnel, property, and equipment assigned to 
or located therein. Persons, ships, and aircraft are excluded unless and 
until they qualify for admission under the applicable Executive order or 
regulation.
    (b) The control of entry into or movement within defense areas by 
persons, ships, or aircraft will be exercised so as to fully protect the 
physical security of, and insure the full effectiveness of, bases, 
stations, facilities and other installations within or contiguous to 
defense areas. However, unnecessary interference with the free movement 
of persons, ships, and aircraft is to be avoided.
    (c) This part will be administered so as to provide for the prompt 
processing of all applications and to insure uniformity of 
interpretation and application, insofar as changing conditions permit.

[[Page 438]]

    (d) In cases of doubt, the determination will be made in favor of 
the course of action which will best serve the interests of the United 
States and national defense as distinguished from the private interests 
of an individual or group.

[28 FR 13778, Dec. 18, 1963, as amended at 35 FR 10008, June 18, 1970]



Sec. 761.3  Authority.

    (a) Naval Defensive Sea Areas and Naval Airspace Reservations. By 
Executive orders, as amended, the President has reserved, set aside, and 
established the following Naval Defensive Sea Areas and Naval Airspace 
Reservations under the control of the Secretary of the Navy. 
Incorporated therein are provisions for the exercise of control by the 
Secretary over the entry of persons, ships, and aircraft into the areas 
so described. (See Sec. 761.4(b) for delineation of areas where entry 
controls are suspended.)
    (1) Atlantic areas. Guantanamo Bay Naval Defensive Sea Area; 
Guantanamo Bay Naval Airspace Reservation: Executive Order 8749 of May 
1, 1941 (6 FR 2252; 3 CFR, 1943 Cum. Supp., p. 931).
    (2) Pacific areas. (i) Honolulu Defensive Sea Area: Executive Order 
8987 of December 20, 1941 (6 FR 6675; 3 CFR, 1943 Cum. Supp., p. 1048).
    (ii) Kaneohe Bay Naval Defensive Sea Area; Kaneohe Bay Naval 
Airspace Reservation: Executive Order 8681 of February 14, 1941 (6 FR 
1014; 3 CFR, 1943 Cum. Supp., p. 893).
    (iii) Pearl Harbor Defensive Sea Area: Executive Order 8143 of May 
26, 1939 (4 FR 2179; 3 CFR, 1943 Cum. Supp., p. 504).
    (iv) Johnston Island Naval Defensive Sea Area; Johnston Island Naval 
Airspace Reservation: Executive Order 8682 of February 14, 1941 (6 FR 
1015; 3 CFR, 1943 Cum. Supp., p. 894) as amended by Executive Order 8729 
of April 2, 1941 (6 FR 1791; 3 CFR, 1943 Cum. Supp., p. 919) and 
Executive Order 9881 of August 4, 1947 (12 FR 5325; 3 CFR, 1943-1948 
Comp., p. 662).
    (v) Kingman Reef Naval Defensive Sea Area; Kingman Reef Naval 
Airspace Reservation: Executive Order 8682 of February 14, 1941 (6 FR 
1015; 3 CFR, 1943 Cum. Supp., p. 894) as amended by Executive Order 8729 
of April 2, 1941 (6 FR 1791; 3 CFR, 1943 Cum. Supp., p. 919) and 
Executive Order 9881 of August 4, 1947 (12 FR 5325; 3 CFR, 1943-1948 
Comp., p. 662).
    (vi) Midway Island Naval Defensive Sea Area; Midway Island Naval 
Airspace Reservation: Executive Order 8682 of February 14, 1941 (6 FR 
1015; 3 CFR, 1943 Cum. Supp., p. 894) as amended by Executive Order 8729 
of April 2, 1941 (6 FR 1791; 3 CFR, 1943 Cum. Supp., p. 919) and 
Executive Order 9881 of August 4, 1947 (12 FR 5325; 3 CFR, 1943-1948 
Comp., p. 662).
    (vii) Wake Island Naval Defensive Sea Area; Wake Island Naval 
Airspace Reservation: Executive Order 8682 of February 14, 1941 (6 FR 
1015; 3 CFR, 1943 Cum. Supp., p. 894) as amended by Executive Order 8729 
of April 2, 1941 (6 FR 1791; 3 CFR, 1943 Cum. Supp., p. 919) and 
Executive Order 9881 of August 4, 1917 (12 FR 5325; 3 CFR, 1943-1948 
Comp., p. 662).
    (viii) Kiska Island Naval Defensive Sea Area; Kiska Island Naval 
Airspace Reservation: Executive Order 8680 of February 14, 1941 (6 FR 
1014; 3 CFR 1943 Cum. Supp., p. 892) as amended by Executive Order 8729 
of April 2, 1941 (6 FR 1791; 3 CFR, 1943 Cum. Supp., p. 919).
    (ix) Kodiak Naval Defensive Sea Area: Executive Order 8717 of March 
22, 1941 (6 FR 1621; 3 CFR, 1943 Cum. Supp., p. 915). Kodiak Naval 
Airspace Reservation: Executive Order 8597 of November 18, 1940 (5 FR 
4559; 3 CFR, 1943 Cum. Supp., p. 837) as amended by Executive Order 9720 
of May 8, 1946 (11 FR 5105; 3 CFR, 1943-1948 Comp., p. 527).
    (x) Unalaska Island Naval Defensive Sea Area, Unalaska Island Naval 
Air-space Reservation: Executive Order 8680 of February 14, 1941 (6 FR 
1014; 3 CFR, 1943 Cum. Supp., p. 892) as amended by Executive Order 8729 
of April 2, 1941 (6 FR 1791; 3 CFR, 1943 Cum. Supp., p. 919). See Sec. 
761.4(d) for delineation of areas where entry controls are suspended.
    (b) Administrative areas. By Executive orders, as amended, the 
President has reserved, set aside, and placed under the control and 
jurisdiction of the Secretary of the Navy for administrative purposes 
the following named areas including their appurtenant reefs and 
territorial waters:

[[Page 439]]

    (1) Johnston Island--Executive Order 6935 of December 29, 1934 as 
amended by Executive Order 11048 of September 4, 1962 (27 FR 8851; 3 
CFR, 1962 Supp., p. 241).
    (2) Kingman Reef--Executive Order 6935 of December 29, 1934 as 
amended by Executive Order 11048 of September 4, 1962 (27 FR 8851; 3 
CFR, 1962 Supp., p. 241).
    (3) Midway Island--Executive Order 11048 of September 4, 1962 (27 FR 
8851; 3 CFR, 1962 Supp., p. 241).
    (4) Sand Island--Executive Order 6935 of December 29, 1934 as 
amended by Executive Order 11048 of September 4, 1962 (27 FR 8851; 3 
CFR, 1962 Supp., p. 241).
    (c) Trust Territory of the Pacific Islands. The Trust Territory of 
the Pacific Islands is a strategic area administered by the United 
States under the provisions of a trusteeship agreement with the United 
Nations. Under Executive Order 11021 of May 7, 1962 (27 FR 4409; 3 CFR, 
1959-1963 Comp., p. 600), the Secretary of the Interior is charged with 
responsibility for administration of the civil government of the Trust 
Territory of the Pacific Islands. Under July 1, 1963 amendment two 
agreements effective July 1, 1951 and July 1, 1962 between the 
Department of the Navy and the Department of the Interior concerning 
responsibility for administration of the Government of the Trust 
Territory, the entry of individuals, ships and aircraft into the Trust 
Territory (other than areas under the control of the Department of the 
Army (Kwajalein Atoll) and of the Defense Nuclear Agency (Eniwetok 
Atoll) see Sec. 761.4) is controlled by the High Commissioner of the 
Trust Territory and the Department of the Navy as follows:
    (1) Entry of U.S. citizens and nationals and citizens of the Trust 
Territory, into areas of the Trust Territory other than those areas 
under control of the Department of the Army and the Defense Nuclear 
Agency as outlined above, shall be controlled by the High Commissioner.
    (2) All other persons: Applications for entry into the Trust 
Territory except for those areas under control of the Department of the 
Army or of the Defense Nuclear Agency, of all persons who are not U.S. 
citizens, U.S. nationals, or who are not citizens of the Trust 
Territory, shall be made to the High Commissioner for processing in 
accordance with the laws and regulations of the Trust Territory: 
Provided, That prior to the issuance of an authorization to enter the 
Trust Territory, the High Commissioner shall provide the Department of 
the Navy in all cases (with the exception of alien individuals who 
possess a valid U.S. visa and seek admission to the Trust Territory for 
a period of 30 days or less for the purpose of tourism) information on 
the applicants for its consideration and comment, granting thereby the 
Department of the Navy the right to object to the issuance of an 
authorization.
    (3) Ships and aircraft: (i) The entry of ships and aircraft, other 
than U.S. public ships and aircraft, documented under either the laws of 
the United States or the laws of the Trust Territory into areas of the 
Trust Territory, excepting those areas where entry is controlled by the 
Department of the Army (Kwajalein Atoll) and the Defense Nuclear Agency 
(Eniwetok Atoll), shall be controlled solely by the High Commissioner.
    (ii) Applications for entry into the Trust Territory, except for 
those areas under military control, of ships and aircraft not documented 
under the laws of the United States or the laws of the Trust Territory, 
shall be made to the High Commissioner for processing in accordance with 
the laws and regulations of the Trust Territory: Provided, That prior to 
the issuance of an authorization to enter the Trust Territory, the High 
Commissioner shall provide the Department of the Navy in all cases with 
information on the applicants for its consideration and comment, 
granting thereby the right of the Department of the Navy to object to 
the issuance of an authorization.
    (d) [Reserved]
    (e) Exercise of authority. The authority of the Secretary of the 
Navy to control entry of ships, planes, and persons into the areas 
listed is exercised through the Chief of Naval Operations and certain of 
his subordinates as prescribed in this part.
    (f) Penalties. Penalties are provided by law: (1) For violations of 
orders or regulations governing persons or ships within the limits of 
defensive sea areas

[[Page 440]]

(62 Stat. 799; 18 U.S.C. 2152); (2) for entering military, naval or 
Coast Guard property for prohibited purposes or after removal or 
exclusion therefrom by proper authority (62 Stat. 765; 18 U.S.C. 1382); 
(3) for violation of regulations imposed for the protection or security 
of military or naval aircraft, airports, air facilities, vessels, 
harbors, ports, piers, waterfront facilities, bases, forts, posts, 
laboratories, stations, vehicles, equipment, explosives, or other 
property or places subject to the jurisdiction, administration, or in 
the custody of the Department of Defense, any department or agency of 
which said department or agency consists, or any officer of employee of 
said department or agency (sec. 21 of the Internal Security Act of 1950 
(50 U.S.C. 797) and Department of Defense Directive 5200.8 of 20 August 
1954 (19 FR 5446)); and (4) for knowingly and willfully making a false 
or misleading statement or representation in any matter within the 
jurisdiction of any department or agency of the United States (18 U.S.C. 
1001).

[28 FR 13778, Dec. 18, 1963, as amended at 35 FR 10008, June 18, 1970; 
36 FR 21889, Nov. 17, 1971; 41 FR 28957, July 14, 1976]



Sec. 761.4  Special provisions.

    (a) Entry into islands in the Kwajalein Atoll under military 
jurisdiction is controlled by the Department of the Army. Inquiries 
concerning entries into islands under military control in the Kwajalein 
Atoll should be directed to: National Range Commander, U.S. Army 
Safeguard System Command, ATTN: SSC-R, P.O. Box 1500, Huntsville, AL 
35807.
    (b) Entry into Eniwetok Atoll is controlled by the Defense Nuclear 
Agency. Inquiries concerning entries into Eniwetok Atoll should be 
directed to: Commander, Field Command, Defense Nuclear Agency, Kirtland 
Air Force Base, NM 87115.
    (c) Entry into Johnston Atoll is controlled by the Defense Nuclear 
Agency. Inquiries concerning entries into Johnston Atoll should be 
directed to: Commander, Johnston Atoll (FCDNA), APO San Francisco, CA 
96305.
    (d) Suspension of restrictions. Restrictions imposed under the 
authority of the above cited Executive Orders on entry into the 
following Naval Defensive Sea Areas and Naval Airspace Reservations and 
Administrative Areas have been suspended subject to reinstatement 
without notice at any time when the purposes of national defense may 
require.
    (1) All Naval Airspace Reservations, except the Guantanamo Bay Naval 
Airspace Reservation
    (2) Honolulu Defensive Sea Area.
    (3) Kiska Island Naval Defensive Sea Area.
    (4) Kodiak Island Naval Defensive Sea Area.
    (5) Unalaska Island Naval Defensive Sea Area.
    (6) Wake Island Naval Defensive Sea Area except for entry of foreign 
flag ships and foreign nationals.
    (7) The portion of Kaneohe Defensive Sea Area lying beyond a 500 
yard buffer zone around the perimeter of the Kaneohe Marine Corps Air 
Station (Mokapu Peninsula) and eastward therefrom to Kapoho Point, Oahu.
    (e) Suspension of restrictions on entry into a naval airspace 
reservation, naval defensive sea area, or naval administrative area, 
does not affect the authority of a commanding officer or other 
appropriate commander to control entry into or passage through any base, 
station, or other installation or area, including port or harbor 
facilities under Navy control.

[41 FR 28957, July 14, 1976]



Sec. 761.5  Definitions.

    (a) Defense area. A naval defensive sea area, naval airspace 
reservation, or naval administrative area established by Executive order 
of the President.
    (b) Department of Defense. The Department of Defense, including the 
Departments of the Army, Navy, and Air Force.
    (c) Entry authorization. A document which authorizes a ship, 
aircraft, or person to enter a defense area.
    (d) Entry Control Commander. A commander empowered to issue entry 
authorizations for one or more defense areas (see Sec. 761.9).
    (e) Excluded person. A person who does not hold a currently valid 
entry authorization for the area concerned and who has been notified by 
an Entry Control Commander that authority for

[[Page 441]]

him to enter any defense area has been denied, suspended or revoked.
    (f) Foreign nationals. Persons who are not citizens or nationals of 
the United States.
    (g) Military installation. A military (Army, Navy, Air Force, Marine 
Corps, and/or Coast Guard) activity ashore, having a commanding officer, 
and located in an area having fixed boundaries, within which all persons 
are subject to military control and to the immediate authority of a 
commanding officer.
    (h) Public vessel or aircraft. A ship or aircraft owned by or 
belonging to a government and not engaged in commercial activity.
    (i) Territorial sea--(1) Trust Territory. In accordance with title 
19, section 101(3), of the Trust Territory Code ``* * * that part of the 
sea comprehended within the envelope of all arcs of circles having a 
radius of three marine miles drawn from all points of the barrier reef, 
fringing reef, or other reef system of the Trust Territory, measured 
from the low water line, or, in the absence of such reef system, the 
distance to be measured from the low water line of any island, islet, 
atoll, reef, or rocks within the jurisdiction of the Trust Territory.''
    (2) Other areas. That part of the sea included within the envelope 
of all arcs of circles having a radius of three marine miles with 
centers on the low water line of the coast. For the purpose of this 
definition, the term ``coast'' includes the coasts of islands, islets, 
rocks, atolls, reefs and other areas of land permanently above the high 
water mark.
    (j) Trust Territory Registry. Registration of a ship or aircraft in 
accordance with the laws of the Trust Territory.
    (k) U.S. Registry. Registration of a ship or aircraft in accordance 
with the laws and regulations of the United States.
    (l) U.S. Armed Forces. Military personnel of the Department of 
Defense, the Departments of the Army, Navy, Air Force, and the United 
States Coast Guard.

[28 FR 13778, Dec. 18, 1963, as amended at 35 FR 10009, June 18, 1970; 
41 FR 28958, July 14, 1976]



                  Subpart B_Criteria and Basic Controls



Sec. 761.6  Criteria.

    (a) General. (1) Entry authorizations may be issued only after an 
Entry Control Commander, or a duly authorized subordinate acting in his 
behalf, has determined that the presence of the person, ship, or 
aircraft will not, under existing or reasonably foreseeable future 
conditions, endanger, place an undue burden upon, or otherwise 
jeopardize the efficiency, capability, or effectiveness of any military 
installation located within or contiguous to a defense area. Factors to 
be considered shall include, but not be limited to, the true purpose of 
the entry, the personal history, character and present or past 
associates of the individuals involved, the possible burdens or threats 
to the defense facilities which the presence of the ship, aircraft or 
the individual or individuals involved impose or might reasonably be 
expected to impose on the related base complex.
    (2) Requests for entry authorizations will be evaluated and adjudged 
as to whether the entry at the time and for the purpose stated will or 
will not be inimical to the purposes of national defense.
    (b) Adverse. Substantial evidence of any of the following shall 
preclude the granting of entry authorization except with the specific 
approval of the Chief of Naval Operations in each case:
    (1) Prior noncompliance with entry control regulations or failure to 
observe terms under which any entry authorization may have been granted; 
\1\
---------------------------------------------------------------------------

    \1\ The criteria so marked are applicable only to those applications 
concerning entry into areas under military cognizance.
---------------------------------------------------------------------------

    (2) Willfully furnishing false, incomplete, or misleading 
information in an application for an entry authorization;\1\
    (3) Advocacy of the overthrow or alteration of the Government of the 
United States by unconstitutional means;
    (4) Commission of, or attempt or preparation to commit, an act of 
espionage, sabotage, sedition, or treason, or conspiring with or aiding 
or abetting another to commit such an act;

[[Page 442]]

    (5) Performing, or attempting to perform, duties, or otherwise 
acting so as to serve the interest of another government to the 
detriment of the United States;
    (6) Deliberate unauthorized disclosure of classified defense 
information;
    (7) Knowing membership with the specific intent of furthering the 
aims of, or adherence to and active participation in, any foreign or 
domestic organization, association, movement, group, or combination of 
persons (hereinafter referred to as organizations) which unlawfully 
advocates or practices the commission of acts of force or violence to 
prevent others from exercising their rights under the Constitution or 
laws of the United States or of any State, or which seeks to overthrow 
the Government of the United States or any State or subdivision thereof 
by unlawful means;
    (8) Serious mental irresponsibility evidenced by having been 
adjudged insane, or mentally irresponsible, or an incompetent, or a 
chronic alcoholic, or treated for serious mental or neurological 
disorders or for chronic alcoholism, without evidence of cure; \1\
---------------------------------------------------------------------------

    \1\ The criteria so marked are applicable only to those applications 
concerning entry into areas under military cognizance.
---------------------------------------------------------------------------

    (9) Conviction of any of the following offenses under circumstances 
indicative of a criminal tendency potentially dangerous to the security 
of a strategic area containing military establishments; arson, unlawful 
trafficking in drugs, murder, kidnaping, blackmail, or sex offenses 
involving minors or perversion.
    (10) Chronic alcoholism or addiction to the use of narcotic drugs 
without adequate evidence of rehabilitation; \1\
    (11) Illegal presence in the United States, its territories or 
possessions, having been finally subject to deportation order, or 
voluntary departure in lieu of deportation order, by the United States 
Immigration and Naturalization Service; \1\
    (12) Being the subject of proceedings for deportation or voluntary 
departure in lieu of deportation for any reasons which have not been 
determined in the applicant's favor; \1\
    (13) Conviction of larceny of property of the United States, willful 
injury to or destruction of property of the United States, fraudulent 
enlistment, impersonation of a commissioned officer of the United States 
or any state or territory thereof, or any offense involving moral 
turpitude, except offenses, which, in the jurisdiction within which the 
conviction was obtained, are punishable by imprisonment for not more 
than one year or a fine of not more than one thousand dollars. \1\
    (c) Aliens. (1) Entry of aliens for employment or residence in an 
area entirely within the borders of a defense area is not authorized 
except when such entry would serve the interests of National Defense, 
and then only for specified periods and under prescribed conditions.
    (2) Entry of aliens for any purpose into areas over which the United 
States exercises sovereignty is further subject to requirements imposed 
by law for the obtaining of a United States visa. Naval authorization 
for entry into areas covered by this part will not be issued to foreign 
nationals for purposes, places, or periods of time in excess of those 
stipulated in the visa.
    (3) Alien spouses and bona fide dependents of U.S. citizen employees 
of the United States may, if otherwise qualified, be granted entry 
authorization so long as the U.S. citizen sponsor or principal remains 
on duty or resident within the defense area.
    (d) Renewals. Entry authorizations having been granted and utilized 
may be extended or renewed upon request at the expiration of the period 
for which the entry was originally authorized or extended, provided the 
justification for remaining in the area or for making a reentry meets 
the criteria set forth in this part. It shall be the responsibility of 
every applicant to depart the defense area for which entry was 
authorized upon expiration of the time prescribed in the authorization, 
unless such authorization has been extended or renewed. Failure to 
comply herewith will be considered as evidence of violation

[[Page 443]]

of this part and may result in denial of future authorizations.

[28 FR 13778, Dec. 18, 1963, as amended at 36 FR 21890, Nov. 17, 1971; 
41 FR 28958, July 14, 1976]



Sec. 761.7  Basic controls.

    (a) General. Except for such persons, ship, or aircraft as are 
issued an authorization to enter by an Entry Control Commander:
    (1) No person, except persons aboard public vessels or aircraft of 
the United States, shall enter any defense area.
    (2) No vessel or other craft, except public vessels of the United 
States shall enter any naval defensive sea area or other defense area.
    (3) No aircraft, except public aircraft of the United States, shall 
be navigated within any naval airspace reservation of the airspace over 
other defense areas.
    (b) Excluded persons--(1) Entry prohibited. Excluded persons, as 
defined in Sec. 761.5(e), are prohibited from entering any defense 
area. In a bona fide emergency which requires an excluded person's 
presence in or transit through a military installation which is also a 
defense area, the commanding officer of the installation may grant 
permission to enter or transit subject to such restrictions as may be 
imposed by regulation or which may, in his discretion, be required.
    (2) Carrying prohibited. Except in a bona fide emergency and after 
being authorized by the appropriate local authority, no vessel or 
aircraft, except public vessels and aircraft of the United States, shall 
enter into or be navigated within any defense area while carrying any 
excluded person, as defined in this part, as passenger, officer or crew 
member.
    (c) Control of violators. No commanding officer of a military 
installation shall permit any ship or aircraft which has entered the 
limits of his command by passing through a defense area without 
authorization to land, except in emergency, or, if permitted to land, to 
disembark passengers or cargo except as authorized by the appropriate 
Entry Control Commander. Commanding officers will take appropriate 
action to apprehend violators who come within their jurisdiction and 
request disposition instructions from the appropriate Entry Control 
Commander.
    (d) Trust Territory. An authorization from the High Commissioner is 
required for all persons desiring to enter the Trust Territory, except 
for those areas under military jurisdiction where entry is controlled by 
the Department of the Army (Kwajalein Atoll) and the Defense Nuclear 
Agency (Eniwetok Atoll).
    (e) Military areas. Entries authorized under this Instruction do not 
affect the authority of a commanding officer or other appropriate 
commander to impose and enforce proper regulations pertaining to 
movement into or within naval stations or other military installations.
    (f) Waiver prohibited. No officer of the U.S. Armed Forces, except 
as authorized in writing by the Chief of Naval Operations, has authority 
to waive the requirements of this part, and any waiver must be in 
writing and signed by an authorized person.

[28 FR 13778, Dec. 18, 1963, as amended at 36 FR 21890, Nov. 17, 1971; 
41 FR 28958, July 14, 1976]



                      Subpart C_Entry Authorization



Sec. 761.8  General.

    (a) As indicated in Sec. 761.7(a), certain persons, ships, and 
aircraft must be specifically authorized under the provisions of this 
part to enter defense areas.
    (b) When entering or transiting a defense area each person, ship, or 
aircraft must have a valid authorization or satisfactory evidence 
thereof.



Sec. 761.9  Entry Control Commanders.

    The following commanders are designated Entry Control Commanders 
with authority to approve or disapprove individual entry authorizations 
for persons, ships, or aircraft as indicated (Commander Seventeenth 
Coast Guard District has been designated an Entry Control Commander by 
the authority of the Commandant, U.S. Coast Guard and Commander, Western 
Area, U.S. Coast Guard);
    (a) Chief of Naval Operations. Authorization for all persons, ships, 
or aircraft to enter all defense areas.

[[Page 444]]

    (b) Commander in Chief, U.S. Atlantic Fleet. Authorization for all 
persons, ships, or aircraft to enter defense areas in the Atlantic.
    (c) Commander in Chief, U.S. Pacific Fleet. Authorization for all 
persons, ships, or aircraft to enter defense areas in the Pacific.
    (d) Commander U.S. Naval Forces Caribbean. Authorization for all 
persons, ships, and aircraft to enter the Guantanamo Bay Naval Defensive 
Sea Area and the Guantanamo Naval Airspace Reservation. (This authority 
delegated to Commander U.S. Naval Base, Guantanamo Bay.)
    (e) Commander U.S. Naval Base, Guantanamo Bay. Authorization for all 
persons, ships, and aircraft to enter the Guantanamo Bay Naval Defensive 
Sea Area and the Guantanamo Naval Airspace Reservation.
    (f) Commander Third Fleet. Authorization for U.S. citizens and U.S. 
registered private vessels to enter Midway Island, Kingman Reef, Kaneohe 
Bay Naval Defensive Sea Area, Pearl Harbor Defensive Sea Area and 
Filipino workers employed by U.S. contractors to enter Wake Island.
    (g) Commander U.S. Naval Forces, Marianas. Authorization in 
conjunction with the High Commissioner, for non-U.S. citizens, ships, or 
aircraft documented under laws other than those of the United States or 
the Trust Territory to enter those portions of the Trust Territory where 
entry is not controlled by the Department of the Army or the Defense 
Nuclear Agency.
    (h) Senior naval commander in defense area. Emergency authorization 
for persons, ships, or aircraft in cases of emergency or distress. In 
all cases the Chief of Naval Operations, and as appropriate, the 
Commander in Chief, U.S. Atlantic Fleet or the Commander in Chief, U.S. 
Pacific Fleet, and other interested commands, shall be informed 
immediately of the nature of the emergency, and action taken.
    (i) U.S. Coast Guard. The U.S. Coast Guard regulates the movement of 
shipping within the Honolulu Harbor under the authority of Executive 
Orders 10173 and 10289; such shipping is considered to be under U.S. 
authorized supervision within the meaning of Executive Order 8987. The 
Commandant, Fourteenth Naval District, as representative of the 
Secretary of the Navy, retains responsibility for security of the 
Honolulu Defensive Sea Area, as required by naval interest, and, as 
such, issues amplifying instructions relating to the Honolulu Defensive 
Sea Area.

[41 FR 28958, July 14, 1976]



Sec. 761.10  Persons: Group authorizations.

    Persons in the following categories, except those persons who have 
been denied individual authorization or have had a prior authorization 
revoked, may enter the defense areas indicated without individual 
authorization:
    (a) Persons aboard U.S. public vessels or aircraft entering a Naval 
Defensive Sea Area or a Naval Airspace Reservation.
    (b) Military members of the U.S. Armed Forces or U.S. civil service 
employees of the Department of Defense when traveling on official 
orders.
    (c) U.S. ambassadors, cabinet members, elected U.S. Government 
officers and U.S. citizen civil service employees of the U.S. Government 
traveling on official orders on U.S. Government business may enter 
defense areas as required by their orders.
    (d) Dependents of military members of the U.S. Armed Forces and U.S. 
citizen dependents of U.S. civil service employees traveling on official 
orders and entering for purposes of joining a principal permanently 
stationed in an area covered by this part.
    (e) U.S. Navy Technicians, U.S. Army Contract Technicians, or U.S. 
Air Force Contract Technicians, who are traveling on official (does not 
include invitational) travel orders on U.S. Government business, may 
enter defense areas as specifically required by such orders.
    (f) [Reserved]
    (g) Individuals on board any foreign public vessel or aircraft which 
has been granted diplomatic or other official U.S. Government 
authorization to enter an area covered by this part.
    (h) Through passengers and bona fide regularly employed crew 
members, unless otherwise excluded, on nonpublic vessels authorized to 
enter areas covered by this part. This does not include an authorization 
to disembark at a

[[Page 445]]

port contiguous to or within the areas covered in this part. Application 
for authorization to disembark may be submitted to an Entry Control 
Commander having jurisdiction over the particular port.
    (i) Through passengers and bona fide regularly employed crew 
members, unless otherwise excluded, on nonpublic aircraft authorized to 
enter areas covered by this part. Such persons are subject to local 
regulations governing entry into or movement within military air 
stations or facilities. Application for authorization to disembark may 
be submitted to an Entry Control Commander having jurisdiction over the 
air facility.
    (j) U.S. citizen news correspondents and photographers when properly 
accredited by the Department of Defense to enter areas covered by this 
part except that special authorization is required to enter the 
restricted areas listed in Sec. 761.4(a).

[28 FR 13778, Dec. 18, 1963, as amended at 36 FR 21890, Nov. 17, 1971]



Sec. 761.11  Persons: Individual authorizations.

    (a) Application; filing. Applications for authorization to enter 
defense areas shall be filed with one of the following:
    (1) Chief of Naval Operations.
    (2) Commander in Chief, U.S. Atlantic Fleet.
    (3) Commander in Chief, U.S. Pacific Fleet.
    (4) Any Naval Sea Frontier Commander.
    (5) Any Naval Fleet or Force Commander.
    (6) Any Naval District Commandant.
    (7) Any Naval Attache. The Commander or Attache with whom the 
application is filed is responsible for taking such action on the 
application as he may be empowered to do or for forwarding the 
application to the nearest Entry Control Commander authorized by this 
part to take action thereon. Applications received in the United States 
and those received indicating that the applicant has resided in the 
United States for the major portion of ten years immediately prior to 
date of request will normally be forwarded to the Chief of Naval 
Operations for action. In all cases where the forwarding activity has 
information regarding the applicant or his employer, appropriate comment 
and/or recommendation for disposition will be included in the forwarding 
letter.
    (b) Form. (1) Applications for entry authorizations will be made on 
the standard form Statement of Personal History, DD 398, which is 
available at most military installations. In addition to the information 
required by the form, an entry application shall include the following 
additional information under Item 20, ``Remarks'':

    21. Purpose of proposed visit: (Detailed statement including names 
of principal persons, firms, or establishments to be visited)
    22. Proposed duration of visit:
    23. Estimated date of arrival:
    24. Address to which authorization should be mailed:


In the event that a DD 398 form is not available, a locally produced 
form containing identical information including the certification and 
signature of applicant and witness may be utilized.
    (2) Incomplete forms will be returned for completion.
    (3) When time is of the essence, emergency applications may be 
forwarded by message to the appropriate Entry Control Commander. Such 
messages shall include the following:
    (i) Name of applicant.
    (ii) Date and place of birth.
    (iii) Citizenship.
    (iv) Residence for last ten (10) years.
    (v) Employers and their addresses for last ten (10) years.
    (vi) Results of Local Agency Check, if pertinent.
    (vii) Place to be entered and date of entry.
    (viii) Purpose of entry and duration of stay.
    (ix) Comments and/or recommendations of forwarding officer as 
appropriate.
    (x) A statement that a completed DD 398 or appropriate substitute 
has been mailed prior to the sending of the message.
    (c) Processing. The Entry Control Commander empowered to issue entry 
authorizations shall upon receipt of an application take the following 
action:
    (1) Initiate or conduct such investigation as may be required to 
establish

[[Page 446]]

facts upon which to make a determination that the entry of the applicant 
at the time and for the purpose indicated is or is not in accordance 
with the criteria set forth in Sec. 761.6.
    (2) Request additional information from the applicant if required, 
or
    (3) Issue an entry authorization as requested or modified as 
circumstances require, or
    (4) Deny the request and advise the applicant of his right to 
appeal, or,
    (5) Forward the application to the next superior in command together 
with a statement of the investigation conducted and the reason for 
forwarding and comments or recommendations as appropriate.
    (d) Authorizations. Entry authorizations will state the purpose for 
which the entry is authorized and such other information and conditions 
as are pertinent to the particular authorization. Authorizations to 
enter and re-enter may be issued to resident U.S. citizens and be valid 
for a specified time not to exceed two years. Authorizations may be 
issued to U.S. citizens residing abroad and to aliens to enter and re-
enter for a specified period of time required to accomplish the purpose 
for which the authorization was issued not to exceed one year.

[28 FR 13778, Dec. 18, 1963, as amended at 41 FR 28958, July 14, 1976]



Sec. 761.12  Ships: Group authorizations.

    Ships or other craft in the following categories, except those ships 
which have been denied individual authorization or have had a prior 
authorization revoked, may enter the defense areas indicated without 
individual authorizations:
    (a) U.S. Public vessels, to enter all defense areas.
    (b) U.S. private vessels which are: (1) Under charter to the 
Department of Defense (including the Military Sealift Command), or (2) 
operating under a contract or charter with the Department of Defense 
providing for the employment of such vessels, or (3) routed by a Naval 
Control of Shipping Office, or (4) employed exclusively in support of 
and in connection with a Department of Defense construction, 
maintenance, or repair contract and whose crews carry individual entry 
clearances, to enter defense areas as authorized by controlling Defense 
Department agency.
    (c) [Reserved]
    (d) Privately owned local craft, registered with and licensed by 
appropriate local U.S. Government authorities, and owned and operated by 
local inhabitants who have been granted an authorization to enter the 
local defense area at the discretion of the local commanders.
    (e) Foreign flag ships traveling on diplomatic or other special 
clearance or for which special arrangements have been made under 
international agreements or treaties.
    (f) Ships operating under a group authorization issued by the Chief 
of Naval Operations.
    (g) Ships in distress, subject to local clearances and control by 
senior officer present.

[28 FR 13778, Dec. 18, 1963, as amended at 36 FR 21890, Nov. 17, 1971]



Sec. 761.13  Ships: Individual authorizations.

    (a) Applications; form; filing. Applications for authorization to 
navigate ships within the limits of defense areas shall be filed with 
the cognizant Entry Control Commander by letter or telegram including 
the following information and any additional information that may be 
relative to the proposed operation:
    (1) Name of ship.
    (2) Place of registry and registry number.
    (3) Name, nationality and address of operator.
    (4) Name, nationality and address of owner.
    (5) Gross tonnage of ship.
    (6) Nationality and numbers of officers and crew (include crewlist 
when practicable).
    (7) Number of passengers (include list when practicable).
    (8) Last port of call prior to entry into area for which clearance 
is requested.
    (9) Purpose of visit.
    (10) Proposed date of entry and estimated duration of stay.
    (b) Processing. Authorization for single entries or for multiple 
entries for a period not to exceed one year may be

[[Page 447]]

granted or denied by an Entry Control Commander. Authorizations for 
multiple entries for a period to exceed one year or for special group 
entries must be forwarded to the Chief of Naval Operations with 
appropriate comments and recommendations.



Sec. 761.14  Aircraft: Group authorizations.

    Aircraft in the following categories, except those aircraft which 
have been denied individual authorization or have had a prior 
authorization revoked, may enter the defense areas indicated without 
individual authorization:
    (a) U.S. public aircraft to enter all defense areas.
    (b) U.S. private aircraft which are under charter to the Department 
of Defense (including the Military Airlift Command), or operating under 
a contract with the Department of Defense providing for the employment 
of such aircraft to overfly U.S. island positions to enter defense areas 
as authorized by controlling Defense Department agency. If landing at 
U.S. military facilities is required, see Sec. 761.15(a).
    (c) Foreign flag aircraft for which special arrangements have been 
made under international agreements or treaties.
    (d) Aircraft operated by companies authorized to utilize naval 
facilities in defense areas for regular commercial activity, to enter 
defense areas associated therewith. For landing clearance at U.S. 
military facilities, see Sec. 761.15(a).
    (e) Any aircraft in distress, subject to local clearance and control 
by senior officer present.

[41 FR 28958, July 14, 1976]



Sec. 761.15  Aircraft: Individual authorizations.

    (a) Special procedures. In addition to the entry authorization to 
enter or navigate within the defense area concerned, certain special 
procedures must be followed by aircraft:
    (1) If landing at U.S. naval aviation facilities, an Aviation 
Facility License must be obtained, in accordance with Secretary of the 
Navy Instruction 3770.1B, Use of Department of the Navy aviation 
facilities by other than United States Department of Defense aircraft.
    (2) If landing at U.S. Air Force aviation facilities, a Civil 
Aircraft Landing Permit must be obtained, in accordance with Department 
of the Airforce Regulation 55-20, Use of United States Air Force 
installations by other than United States Department of Defense 
aircraft.
    (3) Foreign public aircraft must obtain diplomatic clearance or 
clearance under applicable special agreements or treaties.
    (b) Application; Form; Filing. Applications for authorization to 
navigate aircraft within the limits of defense areas shall be made by 
letter or telegram addressed to the appropriate entry control commander 
as indicated in Sec. 761.9 with information copies to the Chief of 
Naval Operations, Commander in Chief, U.S. Atlantic (or Pacific) Fleet, 
as appropriate, and other local commanders who are known to be 
concerned. Applications shall include the following:
    (1) Type and serial number of aircraft (the number of aircraft in 
flight if a mass movement is involved), nationality and name of 
registered owner.
    (2) Name and rank of senior pilot.
    *(3) Number in crew.
---------------------------------------------------------------------------

    *See ``Note'' to this paragraph.
---------------------------------------------------------------------------

    *(4) Number of passengers and whether military or civilian; include 
name (and rank) of distinguished passengers.
    (5) Purpose of flight.
    (6) Plan of flight route, including:
    (i) Point of origin of flight and its destination.
    (ii) Estimated date and times of arrival and departure at all 
airspaces covered by this part 761 including stops within the Trust 
Territory, when pertinent.
    (7) Radio call signs of aircraft and radio frequencies available.
    (8) Whether cameras are to be carried and whether they will be used.
    *(9) Whether arms are to be carried.
    *(10) Whether authorization to land as indicated in Sec. 761.15(a) 
has been obtained.
    Note: Information on those items marked with an asterisk (*) need 
not be reported when the aircraft will only overfly the areas covered by 
this part.
    (c) Processing. Authorization for individual entries or for multiple 
entries for a period not to exceed three months may be granted by an 
Entry Control

[[Page 448]]

Commander. Authorizations for multiple entries over a period to exceed 
three months and applications for group authorizations must be forwarded 
to the Chief of Naval Operations with appropriate comments and 
recommendations.

[41 FR 28958, July 14, 1976]



Sec. 761.16  Notice of action.

    All applicants will be kept advised of action being taken relative 
to the processing of applications. Individuals whose applications cannot 
be processed promptly (usually within ten working days) or whose 
applications must be forwarded to another office for processing will be 
notified of the anticipated delay and advised of the approximate time 
when action may be expected to be taken. Under no circumstances will a 
notice of disapproval include a statement of the reason therefor. Copies 
of all notices will be distributed to commands and Entry Control 
Commanders concerned. Copies of all notices of disapproval will be 
mailed to the Chief of Naval Operations concurrently with the mailing to 
the applicant.



Sec. 761.17  Revocation.

    Entry authorizations will be revoked only by an Entry Control 
Commander upon being advised of the discovery of information which would 
have been ground for denial of the initial request. Such a revocation 
will be confirmed in writing to the holder of an entry authorization. No 
reason for revocation of the entry authorization will be given. When an 
entry authorization is revoked, a one-way permit will be issued as 
appropriate, to permit the ship, aircraft, or person to transit the 
defense area in order to depart from a contiguous area.



Sec. 761.18  Appeals.

    (a) Appeals may be filed with the Entry Control Commander who issued 
the denial or revocation. It shall contain a complete statement of the 
purpose of the proposed entry and a statement of reasons why the entry 
should be authorized, including a showing that the entry will be 
consistent with the purposes of national defense.
    (b) Appeal letters shall be forwarded promptly to the next superior 
Entry Control Commander with an endorsement setting forth the reasons 
for the denial or revocation and a recommendation as to the action to be 
taken by the superior.
    (c) The superior may act on the appeal and notify the applicant of 
the decision, or he may forward the appeal to the next superior and 
notify the applicant of this referral.

[28 FR 13778, Dec. 18, 1963, as amended at 41 FR 28959, July 14, 1976]



Sec. 761.19  Forms.

    The following forms shall be used in connection with the processing 
of applications for authorization to enter defense areas and for 
revocation of authorizations as indicated:
    (a) Application. Statement of Personal History (Form DD 398, Stock 
Number 0102-004-220) may be obtained from NAVPUBFORMCEN, Building 26, 
5801 Tabor Ave., Philadelphia, PA 19120.
    (b) Entry authorization. (1) Defense Area Entry Authorization 
(OPNAVForm 4600-2 (Rev. 5-59) may be obtained from Office of the Chief 
of Naval Operations (OP-09B33), Navy Department, Washington, DC 20350.
    (2) Letter or message authorization.
    (c) Disapproval of request for entry authorization.

    My Dear ------------: Your application of ------ has been reviewed 
and we regret to advise you that the requested authorization for ------
---------- to enter ---------------- is not granted as the entry at this 
time for the purpose stated is not considered to be in the interest of 
national defense.
    The application may be resubmitted again in six months at which time 
it will be reconsidered in the light of then existing circumstances.
    If you desire to appeal this decision, you may do so by submitting a 
letter to this office setting forth in full why you consider that the 
granting of the application would be in the interest of national defense 
and any other information that you believe will be of value of this 
person considering the appeal. Your letter will be forwarded to the 
appropriate authority for review and you will be advised in due course 
of his determination.

Sincerely yours,

    (d) Revocation of entry authorization.

    My Dear ------------: This is to notify you that entry authorization 
to enter

[[Page 449]]

---------------- granted by (issuing activity) on -------- is hereby 
revoked effective this date.

Sincerely yours,

[41 FR 28959, July 14, 1976]



                    Subpart D_Additional Instructions



Sec. 761.20  Additional regulations governing persons and vessels in Naval Defensive Sea Areas.

    (a) By virtue of the authority vested in the President by section 44 
of the United States Criminal Code, as amended and reenacted in 18 
U.S.C. 2152, the President has prescribed the following additional 
regulations in Executive Order 9275 of November 23, 1942 (7 FR 9767; 
1943 Cum. Supp. p. 1227) to govern persons and vessels within the limits 
of defensive sea areas theretofore or thereafter established.
    (1) No person shall have in his possession within the limits of any 
defensive sea area, any camera or other device for taking pictures, or 
any film, plate or other device upon or out of which a photographic 
imprint, negative or positive, can be made, except in the performance of 
official duty or employment in connection with the national defense, or 
when authorized pursuant to the provisions of the Act approved June 25, 
1942 (Pub. L. 627, 77th Congress), as amended (50 U.S.C. App. 781-785), 
and the regulations promulgated thereunder (7 FR 7307; 32 CFR 
765.19(b)).
    (2) It shall be the duty of the master or officer in charge of any 
vessel to take custody of and safeguard all cameras or other devices for 
taking pictures, or film, plate or other device upon or out of which a 
photographic imprint, positive or negative, can be made, the possession 
of which is prohibited by Executive Order 9275, from any person, prior 
to the time any vessel enters any defensive sea area or upon the 
boarding by any person of any vessel while within a defensive sea area, 
and to retain custody thereof until such vessel is outside the defensive 
sea area or the person is about to disembark.
    (3) There shall be prominently displayed on board all vessels, 
except public war vessels of the United States manned by personnel in 
the naval service, a printed notice containing the regulations 
prescribed in Executive Order 9275.
    (4) Any person violating section 1 of Executive Order 9275 (restated 
in paragraph (a)(1) of this section) shall be liable to prosecution as 
provided in section 44 of the Criminal Code as amended and reenacted in 
18 U.S.C. 2152.
    (b) The regulations stated in paragraph (a) of this section are not 
a limitation on prosecution under any other statute that may have been 
violated by acts or omissions prohibited by Executive Order 9275.

                           PART 762 [RESERVED]



PART 763_RULES GOVERNING PUBLIC ACCESS--Table of Contents




        Subpart A_Entry Regulations for Kaho'olawe Island, Hawaii

Sec.
763.1 Purpose.
763.2 Definition.
763.3 Background.
763.4 Entry restrictions.
763.5 Entry procedures.
763.6 Violations.

    Authority: 50 U.S.C. 797; DOD Dir. 5200.8 of August 20, 1954; 5 
U.S.C. 301; 10 U.S.C. 6011, 32 CFR 700.702; 32 CFR 700.714; E.O. No. 
10436, 3 CFR 1949-1953 Comp. p. 930, (1958).

    Source: 47 FR 27553, June 25, 1982, unless otherwise noted.



        Subpart A_Entry Regulations for Kaho'olawe Island, Hawaii



Sec. 763.1  Purpose.

    The purpose of this subpart is to promulgate regulations for entry 
to Kaho'olawe Island, Hawaii, and its adjacent waters.



Sec. 763.2  Definition.

    For the purpose of this subpart, Kaho'olawe Island includes that 
portion reserved for naval purposes by Executive Order No. 10436 of 
February 20, 1953.



Sec. 763.3  Background.

    (a) Kaho'olawe Island is used by the armed forces of the United 
States as a training area including bombing and gunnery training ranges 
under authority granted by Executive Order No.

[[Page 450]]

10436. Training operations frequently involve the use of live ordnance, 
creating an obvious danger to persons on or near the island. Moreover, a 
large amount of unexploded ordnance is present on Kaho'olawe Island and 
in adjacent waters.
    (b) Individuals who enter the island of Kaho'olawe without authority 
expose themselves to extremely hazardous conditions. In addition, the 
presence of unauthorized persons on Kaho'olawe Island or in adjacent 
waters is likely to interfere with the use of the island for military 
training. Accordingly, it is necessary to prohibit entry to Kaho'olawe 
Island except under the controlled circumstances set forth in this 
subpart.



Sec. 763.4  Entry restrictions.

    (a) Entry by any person upon Kaho'olawe Island for any purpose is 
prohibited without advance authorization from Commander Naval Base. This 
prohibition applies to all areas of Kaho'olawe Island reserved for naval 
purposes by Executive Order 10436.
    (b) Entry by any person into the restricted waters adjacent to 
Kaho'olawe Island for any purpose is prohibited without advance 
authorization from Commander Naval Base. This prohibition applies to all 
waters described in 33 CFR 204.223(4).

[47 FR 27553, June 25, 1982, as amended at 52 FR 20074, May 29, 1987]



Sec. 763.5  Entry procedures.

    (a) It is the policy of the Commander Naval Base to authorize, in 
accordance with the spirit of the American Indian Religious Freedom Act 
(1978), reasonable access to Kaho'olawe Island during periods when it is 
not used for military training. However, because there are bombs and 
other explosives on and under the surface and in the waters of the 
island, and because there are significant archaeological resources 
thereon (in 1981, the island was placed on the National Register of 
Historical Places as an Archaeological District), Navy representatives 
accompany each island visitation to safeguard both the vistitor(s) and 
the island's archaeological resources. In this regard, in order to 
ensure the safety of visitors to the island and its archaeological 
resources, persons and organizations wishing access to Kaho'olawe Island 
must comply with the following appropriate procedures: Civilians (except 
authorized U.S. and State representatives) must:
    (1) Request, in writing, access authorization from Commander Naval 
Base (Code 01K), Pearl Harbor, Hawaii 96860, at least 15 days prior to 
the access requested, providing therein confirmed access plans 
(including the exact number of visitors, time, and location of access, 
designation of person in charge, and any other pertinent information); 
and
    (2) Submit to Commander Naval Base (at the aforementioned address) 
properly endorsed Standard Liability Release Form (obtainable from 
Commander Naval Base), for each access participant, at least five (5) 
days prior to the requested access.
    (b) In evaluating each request, the factors just enumerated will be 
weighed against training commitments, safety requirements, specical 
projects, and the amount and cost of military supervision necessitated 
by a granting of the request. Requests for entry will be considered on 
an individual basis. If a request is granted, the permission to enter 
Kaho'olawe Island authorizes one visit only, and shall not be construed 
as authorization for more than one entry unless the authorization itself 
specifically states otherwise. Moreover, entry pursuant to advance 
consent, which is not in accordance with the terms and conditions 
permitted by Commander Naval Base, shall be deemed a violation of this 
subpart.
    (c) For safety reasons, it is not Commander Naval Base policy to 
permit children below the age of 15 access to Kaho'olawe Island.
    (d) The following safety regulations are applicable to visitors to 
Kaho'olawe Island:
    (1) All visitors to the island are required to execute and submit a 
waiver of government liability form to a designated Navy representative 
prior to arrival at the island.
    (2) Visitors to the island will be escorted by Navy designated 
Explosive Ordnance Disposal (EOD) technicians to ensure that they stay 
on cleared

[[Page 451]]

paths, avoid impact areas, and do not touch high explosives. For visitor 
safety, the directions of the military escorts must be followed.
    (3) No person will interfere with any EOD escort in the performance 
of his duties.
    (4) Any actual or suspected ordnance found by a visitor shall be 
reported to the Special Assistant for Kaho'olawe as soon as possible. If 
he is not in the vicinity, a description and location of the ordnance 
should be provided to the nearest EOD technician. Everyone, other than 
EOD personnel, shall remain clear of any ordnance found.
    (5) Only the qualified EOD technicians shall touch, examine, remove, 
attempt to remove, handle either directly or indirectly, or detonate any 
ordnance, whether found on the surface, beneath the surface or in the 
waters surrounding Kaho'olawe.
    (6) Any proposed hike and procession route shall be provided to the 
Special Assistant for Kaho'olawe (or his designated representative) for 
approval and escort coordination at least twenty-four hours in advance 
of the planned event. Deviation from approved routes will not be 
allowed. Proposed campsites for overnight hikes shall be similarly 
provided to, and approved by, the Special Assistant for Kaho'olawe or 
his designated representative.
    (7) No person shall move about the island after sunset unless a 
bonafide emergency situation arises. The senior Naval officer present 
shall be immediately notified in case of such emergency.
    (8) No person shall commit any offense proscribed by either Federal 
law or the State of Hawaii Penal Code, as incorporated under the Federal 
Assimilative Crimes Act, while on the island of Kaho'olawe. Any 
individual who violates any provisions of these penal codes may be 
prosecuted by the Federal Government and/or barred from any future 
access to Kaho'olawe.
    (9) No person shall deface, alter, remove, spoil, or destroy any 
archeological object, feature, or site on the island.
    (10) Children shall remain with their parents at all times while on 
the island.
    (11) Visitors are responsible for removing their own trash from the 
island.
    (12) Individuals failing to abide by these safety guidelines will be 
precluded from future visitations.

[47 FR 27553, June 25, 1982, as amended at 52 FR 20074, May 29, 1987; 52 
FR 45455, Nov. 30, 1987]



Sec. 763.6  Violations.

    (a) Any person who violates this subpart is subject to prosecution 
under 18 U.S.C. 1382, which provides in relevant part:

    Whoever * * * goes upon any * * * naval * * * reservation * * * for 
any purpose prohibited by law or lawful regulation * * * shall be fined 
not more than $500 or imprisoned not more than six months, or both.

    (b) Additionally, persons who violate this Subpart are subject to 
prosecution under the Internal Security Act of 1950 (50 U.S.C. 797), 
violations of which may result in a maximum penalty of imprisonment for 
one year, or a fine of $5,000 or both.

[[Page 452]]



                    SUBCHAPTER G_MISCELLANEOUS RULES





PART 765_RULES APPLICABLE TO THE PUBLIC--Table of Contents




Sec.
765.1-765.5 [Reserved]
765.6 Regulations for Pearl Harbor, Hawaii.
765.9-765.11 [Reserved]
765.12 Navy and Marine Corps absentees; rewards.
765.13 Insignia to be worn on uniform by persons not in the service.
765.14 Unofficial use of the seal, emblem, names, or initials of the 
          Marine Corps.

    Authority: Secs. 5031, 6011, 70A Stat. 278, 375, as amended; sec. 
133, 76 Stat. 517; sec. 301, 80 Stat. 379; 5 U.S.C. 301, 10 U.S.C. 133, 
956, 5031, 6011, 7881; DOD 7000.14-R, Financial Management Regulation, 
Vol. 10.



Sec. Sec. 765.1-765.5  [Reserved]



Sec. 765.6  Regulations for Pearl Harbor, Hawaii.

    The Commander, U.S. Naval Base, Pearl Harbor, Hawaii, is responsible 
for prescribing and enforcing such rules and regulations as may be 
necessary for insuring security and for governing the navigation, 
movements, and anchorage of vessels in the waters of Pearl Harbor and in 
the entrance channel thereto.

(Sec. 1, 37 Stat. 341, 62 Stat. 799; 18 U.S.C. 2152, 33 U.S.C. 475; E.O. 
8143, 4 FR 2179, 3 CFR 1943 Cum. Supp. 504)

[31 FR 16620, Dec. 29, 1966]



Sec. Sec. 765.9-765.11  [Reserved]



Sec. 765.12  Navy and Marine Corps absentees; rewards.

    The following is set forth as it applies to Navy and Marine Corps 
absentees. The term ``absentee,'' as used in this section, refers to a 
service member who commits the offense of absence without leave. Cf. 
article 86 of the Uniform Code of Military Justice (10 U.S.C. 886).
    (a) Payment of rewards--(1) Authority. When authorized by military 
officials of the Armed Forces, any civil officer having authority to 
arrest offenders may apprehend an individual absent without leave from 
the military service of the United States and deliver him into custody 
of the military authorities. The receipt of Absentee Wanted by the Armed 
Forces (DD Form 553) or oral or written notification from military 
officials or Federal law enforcement officials that the person is absent 
and that his return to military control is desired is authority for 
apprehension and will be considered as an offer of a reward. When such a 
reward has been offered, persons or agency representatives (except 
salaried officers or employees of the Federal Government, or service 
members) apprehending or delivering absentees or deserters to military 
control will be entitled to a payment of
    (i) $50 for the apprehension and detention until military 
authorities assume control, or
    (ii) $75 for the apprehension and delivery to military control.

Payment of reward will be made to the person or agency representative 
actually making the arrest and the turnover or delivery to military 
control. If two or more persons or agencies join in performing these 
services, payment may be made jointly or severally but the total payment 
or payments will not exceed $50 or $75 as applicable. Payment of a 
reward is authorized whether the absentee or deserter voluntarily 
surrenders to civil authorities or is apprehended. Payment is not 
authorized for information merely leading to the apprehension of an 
absentee or deserter.
    (2) Payment procedure. The disbursing officer, special disbursing 
agent or agent officer of the military activity to which an absentee or 
deserter is first delivered will be responsible for payment of the 
reward. Payment of rewards will be made on SF 1034 or NAVCOMPT Form 2277 
supported by a copy of DD Form 553 or other form or notification that an 
individual is absent and that his return to military control is desired, 
and a statement signed by the claimant specifying that he apprehended 
(or accepted voluntary surrender) and detained the absentee or deserter 
until military authorities assumed control, or that he apprehended (or 
accepted voluntary surrender) and delivered the absentee or deserter to

[[Page 453]]

military control. If oral notification was made in lieu of written 
notification, the claimant will so certify and provide the date of 
notification and the name, rank or rate, title, and organization of the 
person who made the authorized notice of reward for apprehension of the 
absentee or deserter.
    (b) Reimbursement for actual expenses--(1) Authority. When a reward 
has not been offered or when conditions for payment of a reward 
otherwise cannot be met, reimbursement, not to exceed $75, may be made 
to any person or agency for actual expenses incurred in the apprehension 
and detention or delivery to military control of an absentee or 
deserter. If two or more persons or agencies join in performing these 
services, payment may be made jointly or severally, but the total 
payment or payments may not exceed $25. Reimbursement may not be made 
for the same apprehension and detention or delivery for which a reward 
has been paid. Actual expenses for which reimbursement may be made 
include:
    (i) Transportation costs, including mileage at the rate established 
by the Joint Travel Regulation for travel by privately owned vehicle, 
for a round trip from either the place of apprehension or civil police 
headquarters to place of return to military control;
    (ii) Meals furnished the service member for which the cost was 
assumed by the apprehending person or agency representative;
    (iii) Telephone or telegraph communication costs;
    (iv) Damages to property of the apprehending person or agency if 
caused directly by the service member during the apprehension, 
detention, or delivery;
    (v) Such other reasonable and necessary expenses incurred in the 
actual apprehension, detention, or delivery as may be considered 
justifiable and reimbursable by the commanding officer. Reimbursement 
will not be made for:
    (a) Lodging at nonmilitary confinement facilities;
    (b) Transportation performed by the use of official Federal, State, 
county, or municipal vehicles;
    (c) Personal services of the apprehending, detaining, or delivering 
person or agency.
    (2) Payment procedure. The disbursing officer or special disbursing 
agent of the military activity to which an absentee or deserter is first 
delivered will be responsible for making reimbursement for actual 
expenses. Reimbursement will be effected on SF 1034 or NAVCOMPT Form 
2277 supported by an itemized statement in triplicate signed by the 
claimant and approved by the commanding officer.
    (c) Reimbursement for subsistence furnished--(1) Authority. Civil 
authorities may be reimbursed for the cost of subsistence furnished 
absentees or deserters placed in their custody for safekeeping at the 
request of military authorities. Such reimbursement will be in addition 
to rewards and reimbursement for actual expenses authorized in 
paragraphs (a) and (b) of this section.
    (2) Payment procedure. The disbursing officer or special disbursing 
agent of the military activity requesting the safekeeping confinement 
will be responsible for making reimbursement for subsistence furnished 
by civil authorities. Reimbursement will be effected on SF 1034 or 
NAVCOMPT Form 2277 supported by an itemized statement signed by the 
claimant and approved by the officer who requested the confinement.
    (d) Nothing said in this section shall be construed to restrict or 
exclude authority to apprehend an offender in accordance with law.

(Sec. 807, 70A Stat. 39; 10 U.S.C. 807. Interpret or apply secs. 808, 
7214, 70A Stat. 40, 445; 10 U.S.C. 808, 7214)

[25 FR 1075, Feb. 6, 1960, as amended at 51 FR 22283, June 19, 1986; 65 
FR 53172, Sept. 1, 2000]



Sec. 765.13  Insignia to be worn on uniform by persons not in the service.

    (a) Under title 10 U.S.C., section 773, members of military 
societies composed of persons discharged honorably or under honorable 
conditions from the United States Army, Navy, Air Force or Marine Corps, 
regular or reserve, may, when authorized by regulations prescribed by 
the President, wear the uniform duly prescribed by such societies to be 
worn by the members thereof.

[[Page 454]]

    (b) The law cited in paragraph (a) of this section further provides 
that instructors and members of duly organized cadet corps at certain 
institutions of learning may wear the uniform duly prescribed by the 
authorities of such institutions.
    (c) The law cited in paragraph (a) of this section further provides 
that the uniform worn by members of the military societies or by members 
and instructors of the cadet corps referred to in paragraph (a) of this 
section shall include some distinctive mark or insignia prescribed by 
the Secretary of the military department concerned to distinguish such 
uniforms from the uniforms of the Army, Navy, Air Force, or Marine 
Corps.
    (d) Accordingly, except as otherwise provided in this paragraph, the 
following mark is hereby designated to be worn by all persons wearing 
the Navy or Marine Corps uniform as provided in paragraphs (a), (b), and 
(c) of this section: A diamond, 3\1/2\ inches long in the vertical axis, 
and 2 inches wide in the horizontal axis, of any cloth material, white 
on blue clothing, forestry green on khaki clothing, and blue on white 
clothing. The figure shall be worn on all outer clothing on the right 
sleeve, at the point of the shoulder, the upper tip of the diamond to be 
one-fourth inch below the shoulder seam. For persons who are 
participating in United States Marine Corps Junior ROTC programs, the 
following mark is designated to be worn: A round patch, three inches in 
diameter, which contains a gold Marine Corps emblem centered on a 
scarlet field. The scarlet field is surrounded with a blue border 
containing the words ``United States Marine Corps Junior ROTC'' in white 
lettering. Surrounding the blue field will be a gold border. Unless 
otherwise directed, the patch will be worn in the manner described above 
in connection with the ``diamond'' insignia.
    (e) Within the meaning of paragraph (a) of this section, the 
occasions when members of the military societies may wear the uniform of 
their respective society are official functions which such a member 
attends in his capacity as a war veteran or as a member of such military 
society.
    (f) Marine Corps Uniform Regulations may be examined and individual 
copies of pertinent provisions thereof may be purchased in accordance 
with Sec. 701.1 of this chapter.

(Sec. 773, 70A Stat. 35; 10 U.S.C. 773)

[13 FR 8971, Dec. 28, 1948, as amended at 26 FR 11794, Dec. 12, 1961; 37 
FR 6472, Mar. 30, 1972; 44 FR 37610, June 28, 1979]



Sec. 765.14  Unofficial use of the seal, emblem, names, or initials of the Marine Corps.

    (a) Purpose. To establish procedures to determine whether to grant 
permission to use or imitate the seal, emblem, names, or initials of the 
Marine Corps in connection with commercial and certain noncommercial 
activities pursuant to 10 U.S.C. 7881. The Secretary of the Navy, in 
Secretary of the Navy Instruction 5030.7, has provided the policy and 
delegated to the Commandant of the Marine Corps (CMC), power to 
subdelegate to certain subordinate officers in writing, the authority to 
grant permission required by section 7881(b) of 10 U.S.C. for such use 
or imitation.
    (b) Scope. The provisions of this Order requiring prior approval of 
the Secretary of the Navy, CMC, or the designee apply only to the use or 
imitation of the seal, emblem, names, or initials of the Marine Corps 
that suggest official approval, endorsement, or authorization is in 
connection with a promotion, goods, services, or commercial activity.
    (c) Standards--(1) No unofficial use or imitation of the Marine 
Corps seal. Reproduction and use of the Marine Corps seal, as designated 
in Executive Order No. 10538 of June 22, 1954, is restricted to 
materials emanating from Headquarters Marine Corps. Except for 
manufacture of official letterhead stationery and related items of 
official Marine Corps use, reproduction and use of the Marine Corps seal 
is prohibited.
    (2) Unofficial use or imitation of the Marine Corps emblem, names, 
or initials. Requests from civilian enterprises to use or imitate the 
Marine Corps emblem, names, or initials will ordinarily be approved 
where use or imitation merely provides a Marine Corps accent or flavor 
to otherwise fungible goods. Disapproval, however, usually may be

[[Page 455]]

expected where such use or imitation reasonably would:
    (i) Imply any official or unofficial connection between the Marine 
Corps and the user;
    (ii) Tend to create the impression that the Marine Corps or the 
United States is in any way responsible for any financial or legal 
obligation of the user;
    (iii) Give the impression that the Marine Corps selectively benefits 
the particular manufacturer, commercial entity, or other user, as in 
displaying the Marine Corps emblem, names, or initials on musical 
instruments, weapons, or the like, and in using the emblem, names, or 
initials in connection with advertising, naming, or describing products 
and services such as insurance, real estate, or financial services; or
    (iv) Tend to subject the Marine Corps to discredit or would be 
inimical to the health, safety, welfare, or morale of the members of the 
Marine Corps.
    (3) Acceptable use of imitation of the Marine Corps insignia. No 
request for permission is required when a use or imitation of the Marine 
Corps emblem, names, or initials includes prominent display of the 
disclaimer, ``Neither the United States Marine Corps nor any other 
component of the Department of Defense has approved, endorsed, or 
authorized this product (or promotion, or service, or activity)'' as an 
integral part of the use of imitation. A ``prominent display'' is one 
located on the same page as the first use of the insignia, prominent in 
that use, and printed in letters at least one half the size and density 
of the insignia.
    (d) Action--(1) When permission required. Commercial or 
noncommercial use or imitation of the Marine Corps emblem, names, or 
initials is prohibited unless permission is first obtained in writing 
from the CMC, except when such use does not suggest that the use or 
imitation is approved, endorsed, or authorized by the Marine Corps or 
any other component of the Department of Defense.
    (2) Redelegation of authority. The CMC hereby redelegates, pursuant 
to the authorization in paragraph 4 of the Secretary of the Navy 5030.7, 
authority to grant written permission to use the Marine Corps emblem, 
names, or initials to the Director, Administration Resource Management 
(ARDE). Prior to granting approval for commercial usage of the Marine 
Corps insignia, the CMC (ARDE) shall forward such requests to the Head, 
Marine Corps Exchange Service Branch, Facilities and Services Division, 
Installations and Logistics Department (CMC) (LFE)) and to the Counsel 
for the Commandant (CMC (CL)) for comment and concurrence. All other 
requests shall be routed to the Director, Judge Advocate Division (CMC 
(JAR)) for comment and concurrence.
    (3) Procedures for obtaining written permission. Requests for 
written permission to use or imitate the Marine Corps emblem, names, or 
initials shall be in writing and shall be directed to the CMC (ARDE). 
The request should, at a minimum, contain the following information:
    (i) Name and address of the requester.
    (ii) A description of the type of activity in which the requester is 
engaged or proposes to engage.
    (iii) A statement of whether the requester considers the proposed 
use or imitation to be commercial or noncommercial, and why.
    (iv) A brief description and illustration or sample of the proposed 
use or imitation, as well as a description of the product or service in 
connection with which it will be used. This description will provide 
sufficient detail to enable the Marine Corps to determine whether there 
is a reasonable tendency to suggest such use or imitation is approved, 
endorsed, or authorized by the Marine Corps or any other component of 
the Department of Defense.
    (v) In the case of a noncommercial use of imitation, a copy of the 
charter, constitution, bylaws, and similar organizational documents of 
the requester, together with a detailed description of its function or 
purpose. Insufficiently specific requests will be returned for 
additional information.
    (e) Reserve applicability. This Order is applicable to the Marine 
Corps Reserve.

[51 FR 45467, Dec. 19, 1986, as amended at 65 FR 62619, Oct. 19, 2000]

[[Page 456]]



PART 766_USE OF DEPARTMENT OF THE NAVY AVIATION FACILITIES BY CIVIL AIRCRAFT--Table of Contents




Sec.
766.1 Purpose.
766.2 Definition of terms.
766.3 Authority.
766.4 Policy.
766.5 Conditions governing use of aviation facilities by civil aircraft.
766.6 Approving authority for landings at Navy/Marine Corps aviation 
          facilities.
766.7 How to request use of naval aviation facilities.
766.8 Procedure for review, approval, execution and distribution of 
          aviation facility licenses.
766.9 Insurance requirements.
766.10 Cancellation or suspension of the aviation facility license 
          (OPNAV Form 3770/1).
766.11 Fees for landing, parking and storage.
766.12 Unauthorized landings.
766.13 Sale of aviation fuel, oil, services and supplies.

    Authority: 49 U.S.C. 1507.

    Source: 35 FR 14451, Sept. 15, 1970, unless otherwise noted.
    Note: The provisions of this part 766 are SECNAV Instruction 3770.1B 
of 30 June 1970.



Sec. 766.1  Purpose.

    This part establishes the policy and procedures for the use of Navy 
and Marine Corps aviation facilities by aircraft other than U.S. 
Department of Defense aircraft.



Sec. 766.2  Definition of terms.

    For the purpose of this part certain terms are defined as follows:
    (a) Alternate use. Use of the aviation facility, specified in the 
flight plan, to which an aircraft may divert when a landing at the point 
of first intended landing becomes impractical because of weather. 
(Aircraft may not be dispatched, prior to takeoff from the airport of 
origin, to a facility licensed for alternate use.)
    (b) Civil aircraft. Domestic or foreign aircraft operated by private 
individuals or corporations, or foreign government-owned aircraft 
operated for commercial purposes. This includes:
    (1) Contract aircraft. Civil aircraft operated under charter or 
other contract to any U.S. Government department or agency.
    (2) Leased aircraft. U.S. Government-owned aircraft delivered by the 
Government to a lessee subject to terms prescribed in an agreement which 
does not limit the lessee's use of the aircraft to Government business.
    (c) Civil aviation. All flying activity by civil aircraft including:
    (1) Commercial aviation. Transportation by aircraft of passengers or 
cargo for hire and the ferrying of aircraft as a commercial venture.
    (2) General aviation. All types of civil aviation other than 
commercial aviation as defined above.
    (d) Facility. A separately located and officially defined area of 
real property in which the Navy exercises a real property interest and 
which has been designated as a Navy or Marine Corps aviation facility by 
cognizant authority; or where the Department of the Navy has 
jurisdiction over real property agreements, expressed or implied, with 
foreign governments, or by rights of occupation. (This definition does 
not include aircraft carriers nor any other type of naval vessel with a 
landing area for aircraft.)
    (e) Government aircraft. Aircraft owned or operated by any 
department or agency of either the United States or a foreign government 
(except a foreign government-owned aircraft operated for commercial 
purposes). Also aircraft owned by any department, agency, or political 
subdivision of a State, territory, or possession of the United States 
when such local government has sole responsibility for operating the 
aircraft. Government aircraft includes:
    (1) Military aircraft. Aircraft used in the military services of any 
government.
    (2) Bailed aircraft. U.S. Government-owned aircraft delivered by the 
Government to a Government contractor for a specific purpose directly 
related to a Government contract.
    (3) Loaned aircraft. U.S. Government-owned aircraft delivered 
gratuitously by any Department of Defense agency to another Government 
agency, to a U.S. Navy or Marine Corps Flying Club, or to a U.S. Army or 
Air Force Aero Club.

[[Page 457]]

    (f) Joint-use facility. A Navy or Marine Corps facility where a 
specific agreement between the Department of the Navy and a civilian 
community, or between the U.S. Government and a foreign government, 
provides for civil aircraft use of the runways and taxiways. Civil 
aircraft terminal, parking, and servicing facilities are established and 
controlled by civil authorities in an area separate from those of the 
Navy or Marine Corps.
    (g) Official business. Business, in the interest of the U.S. 
Government, which personnel aboard an aircraft must transact with U.S. 
Government organizations or personnel at or near the naval aviation 
facility concerned. Use of a facility to solicit U.S. Government 
business is not ``official business.''
    (h) Provisional use. Use of a naval aviation facility for the 
purpose of providing adequate service to a community where, because of 
repair, construction or the performance of other work, the regular civil 
airport servicing the community is not available for an extended period. 
(An aircraft may be dispatched prior to takeoff from the airport of 
origin to a naval aviation facility authorized for provisional use.)
    (i) Scheduled use. Use of a facility on a scheduled or regularly 
recurring basis by an air carrier certified by the Civil Aeronautics 
Board to provide passenger and cargo service to a community or area.
    (j) Services in connection with Government contracts. This type of 
operation, cited on the Aviation Facility License, indicates the use of 
a facility for transporting the contractor's supplies and personnel for 
the performance of work at the facility under the terms of a specific 
U.S. Government contract.
    (k) Technical stop. An en route landing for the purpose of obtaining 
fuel, oil, minor repairs, or crew rest. This does not include passenger 
accommodations nor passenger/cargo enplaning or deplaning privileges 
unless specifically authorized by the Chief of Naval Operations.
    (l) User. An individual, corporation, or company named in the 
Aviation Facility License and the Certificate of Insurance.



Sec. 766.3  Authority.

    Section 1107(a) of the Federal Aviation Act of 1958 (49 U.S.C. 1507, 
1508) states that ``Air navigation facilities owned or operated by the 
United States may be made available for public use under such conditions 
and to such extent as the head of the department or other agency having 
jurisdiction thereof deems advisable and may by regulation prescribe.'' 
(See Sec. 766.13 for restrictions imposed by the Federal Aviation Act 
of 1958.)



Sec. 766.4  Policy.

    Navy and Marine Corps aviation facilities are established to support 
the operation of Navy and Marine Corps aircraft. Equipment, personnel 
and material are maintained only at a level necessitated by these 
requirements and shall not be used to support the operation or 
maintenance of civil aircraft or non U.S. Government aircraft, except as 
noted below. (Nothing in this part, however, should be interpreted to 
prohibit any aircraft from landing at any suitable Navy or Marine Corps 
aviation facility in case of a bona fide emergency.) (See Sec. 
766.5(i).)
    (a) General. Subject to the procedures established elsewhere in this 
part, civil aircraft and government aircraft, other than those belonging 
to the U.S. Government may use Navy or Marine Corps facilities, if 
necessary, Provided, That:
    (1) They do not interfere with military requirements, and the 
security of military operations, facilities, or equipment is not 
compromised.
    (2) No adequate civil airport is available. (Exception to this 
provision may be made when the aircraft is operated in connection with 
official business as defined in this part.)
    (3) Pilots comply with regulations promulgated by the cognizant 
military agency and the commanding officer of the facility.
    (4) Civil aircraft users assume the risk in accordance with the 
provisions of the Aviation Facility License.
    (5) Each aircraft is equipped with two-way radio which provides a 
capability for voice communications with the control tower on standard 
Navy/Marine Corps frequencies.

[[Page 458]]

    (6) The user, or requesting government, has obtained permission 
through diplomatic channels from the host country wherein the facility 
of intended landing is located, if applicable.
    (b) Civil Aircraft owned and operated by--(1) Military personnel. 
Private aircraft owned and operated by active duty U.S. military 
personnel or by Navy/Marine Corps Reservists on inactive duty may be 
authorized to land at a facility, provided such aircraft is not engaging 
in air commerce, and such landing is for official business required by 
written orders. Under no conditions shall such aircraft be allowed to 
base or operate from a facility for personal convenience nor base at a 
facility under the guise of official business.
    (2) Civil employees of the U.S. Government. Private aircraft owned 
and operated by civil employees of the U.S. Government may be authorized 
to land at a facility, provided such aircraft is not engaging in air 
commerce, and such landing is for official business required by written 
orders. Such aircraft shall not be allowed to base or operate from a 
facility for personal convenience. (Employees of U.S. Government 
contractors are not considered civil employees of the U.S. Government.)
    (3) Non-U.S. Government personnel. An individual or corporation 
owned and/or operated aircraft may be authorized to land at a facility 
for:
    (i) Sales or service representation to authorized military agents 
(e.g. the exchange, commissary, or contracting officer).
    (ii) Services in connection with U.S. Government contracts. 
Contracting agency and contract number(s) must be cited in the 
application for an Aviation Facility License.
    (c) Department of defense charter or contract. Aircraft operating 
under a Military Traffic Management and Terminal Service (MTMTS), 
Military Airlift Command (MAC), or Navy charter or contract for the 
movement of DOD passengers or cargo may be authorized to use Navy or 
Marine Corps aviation facilities when required for loading, en route or 
terminal stops.
    (d) Test and experimental use. Aircraft being produced for a 
military agency under contract may use Navy/Marine Corps facilities for 
testing and experimental purposes, if the contract so provides, or if it 
is determined to be in the best interests of the U.S. Government to do 
so. Unless otherwise provided in the contract, an Aviation Facility 
License is required, and the user shall furnish a Certificate of 
Insurance as provided in this part.
    (e) Aircraft demonstrations. Manufacturers of aircraft or installed 
equipment may be authorized to use Navy/Marine Corps facilities in 
demonstrating and/or showing aircraft or installed equipment to 
officials of the U.S. Government when:
    (1) It is determined to be in the best interest of the U.S. 
Government.
    (2) The aircraft was produced in accordance with U.S. Government 
specifications either with or without the aid of Federal funds.
    (3) There is an expressed interest on the part of the U.S. 
Government officials responsible for procurement, approval, or 
certification of the aircraft.
    (f) Joint use. When a specific agreement is entered into by the 
Department of the Navy pertaining to joint civil/military use of a Navy 
or Marine Corps facility, the terms of that agreement shall take 
precedence over the provisions of this part.
    (g) Diplomatic agreements. For diplomatic agreements and clearances 
to use U.S. Navy and Marine Corps aviation facilities in foreign 
countries, the provisions of this part are subject to the provisions of 
status of forces agreements, treaties of mutual cooperation or other 
international agreements. This part shall be used as a guide in 
negotiating agreements at the local level with representatives of a 
foreign military service, the U.S. Embassy, and the host government 
concerning the use of naval facilities by other than U.S. military 
aircraft. Approval shall be obtained from the Chief of Naval Operations 
for proposed terms which are in conflict with this part.



Sec. 766.5  Conditions governing use of aviation facilities by civil aircraft.

    (a) Risk. The use of Navy or Marine Corps aviation facilities by 
civil aircraft shall be at the risk of the operator. Except as 
hereinafter provided for U.S. Government contractors, the Department of 
the Navy shall assume no

[[Page 459]]

liability or responsibility by reason of the condition of the landing 
area, taxiways, radio and navigational aids, or other equipment or for 
notification of such condition; or by the acts of its agents in 
connection with the granting of the right to use such naval facility. No 
responsibility is assumed for the security of or damage to aircraft 
while on property owned or controlled by the U.S. Government.
    (b) Military rules. Operators of civil aircraft utilizing a Navy or 
Marine Corps aviation facility shall be required to comply with the air 
and ground rules promulgated by the Department of the Navy and the 
commanding officer of the aviation facility. Such compliance shall 
pertain specifically to clearance authorization for the entry, 
departure, or movement of aircraft within the confines of the terminal 
area normally controlled by the commanding officer of the aviation 
facility.
    (c) Federal aviation regulations. Operators of civil aircraft shall 
be required to comply with all Federal Aviation Administration (FAA) 
rules and regulations including filing of flight plans. When such flight 
plans are required, they shall be filed with the commanding officer or 
his authorized representative prior to the departure of the aircraft. 
When such a flight plan is not required, a list of passengers and crew 
members, the airport of first intended landing, the alternate airport, 
and fuel supply in hours shall be placed on file prior to takeoff, with 
the commanding officer or with the local company representative as 
appropriate.
    (d) Hours of operation. The use of a Navy/Marine Corps aviation 
facility by civil aircraft shall be limited to the hours when the 
facility is normally in operation.
    (e) Weather minimums. Civil aircraft shall comply with weather 
minimums as follows:
    (1) Visual Flight Operations shall be conducted in accordance with 
Federal Aviation Regulations (FAR), Sec. 91.105 of this title. If more 
stringent visual flight rules minimums have been established for the 
point of departure or destination, as noted in the aerodrome remarks 
section of the Department of Defense Flight Information Publication (en 
Route) Instrument Flight Rules--Supplement, then the ceiling and 
visibility must be at or above these minimums in the applicable control 
zone.
    (2) Instrument flight operations shall be conducted in accordance 
with FAR, Sec. 91.116 of this title.
    (f) Inspection. The commanding officer may conduct such inspection 
of a transiting civil aircraft and its crew, passengers and cargo as he 
may consider appropriate or necessary to the carrying out of his duties 
and responsibilities.
    (g) Customs, immigration, agriculture, and public health inspection. 
(1) The civil aircraft commander shall be responsible for compliance 
with all applicable customs, immigration, agriculture, and public health 
laws and regulations. He shall also be responsible for paying fees, 
charges for overtime services, and for all other costs connected with 
the administration of such laws and regulations.
    (2) The commanding officer of the Navy/Marine Corps aviation 
facility will inform the appropriate public officials of the arrival of 
civil aircraft subject to such laws and regulations. He will not issue 
clearances for a civil aircraft to takeoff until such laws and 
regulations have been complied with. Procedures for insuring compliance 
with such laws and regulations shall be as mutually agreed to by the 
commanding officer of the aviation facility and the local public 
officials.
    (h) Weather alternate. If a Navy/Marine Corps aviation facility has 
been approved for use as an alternate airport, radio clearance must be 
obtained from such facility as soon as the decision is made en route for 
such use.
    (i) Emergency landings. Any aircraft may land at a Navy/Marine Corps 
aviation facility when necessary as a result of a bona fide emergency. 
However, whenever the nature of the emergency permits the pilot to 
select the time and place of landing, it is preferred that the pilot 
land his aircraft at a civil field.
    (1) The commanding officer of the aviation facility will require 
that the pilot of the aircraft pay all fees and charges and execute the 
Aviation Facility License. A statement explaining the circumstances of 
the emergency

[[Page 460]]

landing must be noted in Sec. 766.5 of the license application. If a 
narrative report from the pilot is available, it may be attached to the 
application.
    (2) Clearance of runway. The Department of the Navy reserves the 
right to use any method to clear a runway of aircraft or wreckage 
consistent with operational requirements. Care will be exercised to 
preclude unnecessary damage in removing wrecked aircraft; however, the 
Navy assumes no liability as a result of such removal.
    (3) Repairs. (i) Aircraft requiring major repairs may be stored 
temporarily in damaged condition. If repairs cannot be completed within 
a reasonable time, the aircraft must be removed from the facility by the 
owner or operator of the aircraft without delay.
    (ii) No aircraft will be given a major or minor overhaul.
    (iii) Engine or air frame minor components may be furnished, when 
not available through commercial sources, provided such supplies can be 
spared and are not known to be in short supply. The issuance of such 
supplies must be approved by the commanding officer.
    (iv) Minor components in short supply or major components for which 
there is a repeated demand can be furnished only on message authority 
obtained from the Aviation Supply Office, Philadelphia, PA (for 
continental facilities) or local fleet air command or major aviation 
supply depot (for extracontinental facilities). Complete engines, 
airplane wings, or other major items of equipment shall not be furnished 
under this authority.
    (v) If the commanding officer believes it is desirable to furnish 
requested material or services in excess of the restrictions stated 
herein, he shall request instructions from the Chief of Naval 
Operations, giving a brief description of the material or services 
requested together with his recommendations.
    (4) Reimbursement for costs. (i) The civil user making an emergency 
landing will be billed in accordance with paragraphs 032500-032503 of 
the NAVCOMPT Manual and paragraphs 25345-25363 of the NAVSUP Manual for 
payment of all costs incurred by the Government as a direct result of 
the emergency landing. Such costs will include those associated with 
labor, material, rental of equipment, vehicles or tools, etc., for:
    (a) Spreading foam on runway before the aircraft attempts emergency 
landing.
    (b) Fire and crash control and rescue.
    (c) Movement and storage of aircraft or wreckage.
    (d) Damage to runway, lights, navigation aids, etc.
    (ii) There will be no charge for naval meteorological services and 
naval communications facilities for the handling of arrival and 
departure reports, air traffic control messages, position reports and 
safety messages.
    (iii) The determination as to whether landing fees shall be charged 
pursuant to an emergency landing for maintenance or repair shall be the 
prerogative of the commanding officer of the facility.

[35 FR 14451, Sept. 15, 1970, as amended at 51 FR 22804, June 23, 1986]



Sec. 766.6  Approving authority for landings at Navy/Marine Corps aviation facilities.

    (a) Except as indicated in paragraphs (b) and (c) of this section, 
the commanding officer of an active Navy/Marine Corps aviation facility 
may approve or disapprove landings of civil aircraft at his facility 
when such landing is:
    (1) Directly connected with or in support of U.S. Government 
business (except those listed in paragraph (c) of this section).
    (2) In connection with U.S. Government or community interests on an 
infrequent basis when no adequate civil airport is reasonably available.
    (3) By aircraft owned and operated by Navy/Marine Corps Flying Clubs 
or U.S. Army or Air Force Aero Clubs which are operated as 
instrumentalities of the U.S. Government.
    (4) By aircraft owned and operated by U.S. Government personnel when 
such use is in accordance with Sec. 766.4(b) (1) and (2).
    (5) By civil aircraft either owned or personally chartered by:

[[Page 461]]

    (i) The President or Vice President of the United States or a past 
President of the United States.
    (ii) The head of any Federal department or agency.
    (iii) A Member of Congress.
    (6) By a bailed, leased, or loaned aircraft (as defined in Sec. 
766.2) when operated in connection with official business only.
    (7) By aircraft owned and operated by States, counties, or 
municipalities of the United States when used for official business of 
the owner.
    (b) Except as limited by paragraph (c) of this section, the 
Commander in Chief, U.S. Naval Forces, Europe; Chief of Naval Material; 
Commander in Chief, U.S. Atlantic Fleet; Commander in Chief, U.S. 
Pacific Fleet; Chief of Naval Air Training; Commander, Pacific Missile 
Range; Commander, Marine Corps Air Bases, Eastern Area; Commander, 
Marine Corps Air Bases, Western Area; and Commanding General, Fleet 
Marine Force, Pacific may approve civil aircraft use of any active 
aviation facility under their control. (At overseas locations, aircraft 
landing authorizations must be in consonance with the provisions of 
applicable international agreements.)
    (c) The Chief of Naval Operations may approve any of the above 
requests, and is the only agency empowered to approve all other requests 
for use of naval facilities by civil and government aircraft, for 
example:
    (1) Applications for use of more than one facility when the 
facilities are not under the control of one major command.
    (2) Application for use of naval aviation facilities when 
participating in U.S. Government or Department of Defense single-manager 
contract and charter airlift operations; i.e., Military Airlift Command 
(MAC) or Military Traffic Management and Terminal Service (MTMTS).
    (3) Application for a facility to be used as a regular civil 
airfield for a community, by either commercial or general aviation.
    (4) Requests for use of a facility by foreign civil or government 
aircraft when:
    (i) Such use is not covered by an agreement between the U.S. 
Government and the government of the aircraft's registry, or
    (ii) The facility is located in a country other than that in which 
the foreign aircraft is registered.



Sec. 766.7  How to request use of naval aviation facilities.

    (a) Forms required. Each applicant desiring use of a Navy/Marine 
Corps aviation facility will be required to:
    (1) Execute an application for an Aviation Facility License (OPNAV 
Form 3770/1 (Rev. 7-70)).
    (2) Submit a Certificate of Insurance (NAVFAC 7-11011/36) showing 
coverage as provided by Sec. 766.9 of this part.
    (b) Exceptions. Exceptions to the foregoing requirements are:
    (1) Aircraft owned and operated by departments or agencies of the 
U.S. Government for official business.
    (2) Aircraft owned and operated or noncommercial purposes by 
agencies of a foreign government, except in cases where the foreign 
government charges fees for U.S. Government aircraft.
    (3) Aircraft owned and operated by States, possessions, and 
territories of the United States and political subdivisions, thereof, 
when used for official business of the owner.
    (4) Aircraft owned and operated by either Navy/Marine Corps Flying 
Clubs or Aero Clubs of other military services which are operated as 
instrumentalities of the U.S. Government.
    (5) Bailed aircraft, provided the bailment contract specifies that 
the U.S. Government is the insurer for liability.
    (c) Obtaining forms. The applicant may obtain the required forms 
listed in paragraph (a) of this section, from the commanding officer of 
any Navy or Marine Corps aviation facility or from the Chief of Naval 
Operations (OP-53C). Navy units may obtain the forms through regular 
supply channels as a Cog ``I'' item.
    (d) Preparation of forms. (1) The license application will be 
completed in quadruplicate by the applicant in accordance with detailed 
instructions set forth in Aviation Facility License (OPNAV Form 3770/1 
(REV. 7-70)).
    (2) The Certificate of Insurance will be completed by the insurer. 
Only the signed original certificate and one copy are required to be 
submitted.

[[Page 462]]

    (e) Submission of forms. (1) The forms executed by the applicant 
shall be submitted to the commanding officer of the aviation facility 
concerned, except that applications requiring approval by higher 
authority shall be submitted to the appropriate approving authority, as 
indicated in paragraph (b) or (c) of this section at least 30 days prior 
to the first intended landing.
    (2) Once the NAVFAC 7-11011/36, Certificate of Insurance, is on file 
with an executing authority, it is valid until insurance expiration date 
and may be used by that executing authority as a basis for his action on 
any subsequent OPNAV Forms 3770/1 submitted for approval.
    (f) Security deposit. All applications, other than those listed in 
Sec. 766.11(a) contemplating more than one landing per month, will be 
accompanied by a security deposit in the form of a certified check 
payable to the ``Treasurer of the United States'' in payment of the 
estimated costs of landing, hangar and outside parking fees, for 3 
months in advance, calculated as provided in Sec. 766.11 (c) and (d). 
Security deposits will be handled as set forth in paragraph 032102 of 
the NAVCOMPT Manual.
    (g) Nonexclusive use airports. When either the Chief of Naval 
Operations or Commandant of the U.S. Marine Corps does not have 
exclusive operational control over a landing area, the aircraft operator 
will obtain permission to land from the appropriate civil or military 
authority.



Sec. 766.8  Procedure for review, approval, execution and distribution of aviation facility licenses.

    (a) Review of application by the commanding officer. The commanding 
officer will review each application for Aviation Facility License and 
Certificate of Insurance received and determine whether such forms have 
been completed by the applicant in accordance with the instructions for 
their preparation as indicated in the Aviation Facility License (OPNAV 
Form 3770/1 (REV. 7-70)) and the Certificate of Insurance (NAVFAC 7-
11011/36(7-70)). As appropriate, the commanding officer will require 
each applicant to furnish a security deposit as stipulated in Sec. 
766.7(f).
    (b) Processing application. The commanding officer will approve/
disapprove the application or forward it to higher authority for 
approval as required by Sec. 766.6(b) or (c). If the application is 
approved, the approving authority will then forward all copies of the 
license and Certificate of Insurance to the Commander, Naval Facilities 
Engineering Command or his designated representative for review and 
execution of the license.
    (c) Action by the Commander, Naval Facilities Engineering Command or 
his designated representative. (1) Upon receipt, the Commander, Naval 
Facilities Engineering Command, or his designated representative, will 
review the license and Certificate of Insurance. He shall determine 
whether the insurance coverage conforms to the requirements prescribed 
by Sec. 766.9 of this part or to such requirements as may be 
promulgated from time to time by the Chief of Naval Material.
    (2) Upon approval, he will then execute the license in triplicate, 
conform all additional copies, and make distribution as provided in 
paragraph (d) of this section. Applications which are not approved will 
be returned to the applicant with an explanation of deficiencies which 
must be corrected prior to execution.
    (d) Distribution. (1) After execution of a license, distribution 
will be made as follows:

Original--To the licensee.
Executed copy--To the commanding officer.
Executed copy--To the Commander, Naval Facilities Engineering Command or 
his designated representative.
Conformed copy--To the Chief of Naval Operations (OP-53).
Conformed copy--To the cognizant commander under Sec. 766.6(b).
Conformed copy--To the disbursing officer serving the performing 
activity in the case of local deposits, and to the Office of the Navy 
Comptroller (NAFC3) in the case of central deposits held at the 
Washington, DC level.
Conformed copy--To the Military Airlift Command (MAC) for DOD contract 
or charter airlift operations.
Conformed copy--To the Military Traffic Management and Terminal Service 
(MTMTS) for DOD contract or charter airlift operations.


[[Page 463]]


    (2) Licenses issued under this authority are to be disposed of under 
provisions of paragraph 4280 of SECNAVINST 5212.5B, Disposal of Navy and 
Marine Corps Records. In accordance therewith, official executed copies 
of licenses are to be retained for a period of 6 years after completion 
or termination of the agreement. They may be transferred to the nearest 
Federal records center when superseded, revoked, canceled, or expired 
for retention by the center until expiration of the 6-year retention 
period.



Sec. 766.9  Insurance requirements.

    (a) Control of insurance. The Commander, Naval Facilities 
Engineering Command, or his designee, shall be responsible for requiring 
aircraft owners or operators to procure and maintain liability insurance 
conforming to the standards prescribed by the Chief of Naval Material. 
The insurance policy must be obtained at the expense of the civil 
aircraft owner or operator and with a company acceptable to the U.S. 
Navy.
    (b) Insurance coverage. Except for those aircraft exempted by 
paragraph (c) below, each civil aircraft is required to be covered by 
insurance of the types and minimum limits established by the Chief of 
Naval Material. The Certificate of Insurance, must state all coverages 
in U.S. dollars. Current minimums are:
    (1) Privately owned commercially-operated aircraft used for cargo 
carrying only and aircraft being flight-tested or ferried without 
passengers will be insured for:
    (i) Bodily injury liability. At least $100,000 for each person in 
any one accident with at least $1 million for each accident.
    (ii) Property damage liability. At least $1 million for each 
accident.
    (2) Privately owned commercially-operated aircraft used for 
passenger carrying and privately owned noncommercially-operated aircraft 
of 12,500 pounds or more certified maximum gross takeoff weight will be 
insured for:
    (i) Bodily injury liability (excluding passengers). At least 
$100,000 for each person in any one accident with at least $1 million 
for each accident.
    (ii) Property damage liability. At least $1 million for each 
accident.
    (iii) Passenger liability. At least $100,000 for each passenger, 
with a minimum for each accident determined as follows: multiply the 
minimum for each passenger, $100,000 by the next highest whole number 
resulting from taking 75 percent of the total number of passenger seats 
(exclusive of crew seats). For example: The minimum passenger coverage 
for each accident for an aircraft with 94 passenger seats is computed: 
94x0.75=70.5--next highest whole number resulting in 71. Therefore, 
71x$100,000=$7,100,000.
    (3) Privately owned noncommercially-operated aircraft of less than 
12,500 pounds will be insured for:
    (i) Bodily injury liability (excluding passengers). At least 
$100,000 for each person in any one accident with at least $500,000 for 
each accident.
    (ii) Property damage liability. At least $500,000 for each accident.
    (iii) Passenger liability. At least $100,000 for each passenger, 
with a minimum for each accident determined by multiplying the minimum 
for each passenger, $100,000 by the total number of passenger seats 
(exclusive of crew seats).
    (4) Aircraft insured for a single limit of liability must have 
coverage equal to or greater than the combined required minimums for 
bodily injury, property damage, and passenger liability for the type of 
use requested and for the passenger capacity and gross takeoff weight of 
the aircraft being operated. For example: the minimum single limit of 
liability acceptable for an aircraft operating as described in paragraph 
(b)(2) of this section is $1,000,000 + $1,000,000 + $7,100,000 = 
$9,100,000.
    (5) Aircraft insured by a combination of primary and excess policies 
must have combined coverage equal to or greater than the required 
minimums for bodily injury, property damage, and passenger liability, 
for the type of use, and for the passenger capacity and gross takeoff 
weight of the aircraft.
    (6) Each policy must specifically provide that:
    (i) The insurer waives any right to subrogation the insurer may have 
against the United States by reason of

[[Page 464]]

any payment under the policy for damage or injury which might arise out 
of or in connection with the insured's use of any Navy installation or 
facility.
    (ii) The insurance afforded by the policy applies to the liability 
assumed by the insured under OPNAV Form 3770/1, Aviation Facility 
License.
    (iii) If the insurer cancels or reduces the amount of insurance 
afforded under the listed policy, the insurer shall send written notice 
of the cancellation or reduction to Commander, Naval Facilities 
Engineering Command, Department of the Navy, Washington, DC 20390 by 
registered mail at least 30 days in advance of the effective date of the 
cancellation; the policy must state that any cancellation or reduction 
will not be effective until at least 30 days after such notice is sent, 
regardless of the effective date specified therein.
    (iv) If the insured requests cancellation or reduction, the insurer 
shall notify the Commander, Naval Facilities Engineering Command, 
Department of the Navy, Washington, DC 20390 immediately upon receipt of 
such request.
    (c) Exemption. Government aircraft, as defined in Sec. 766.2(e) are 
exempt from the insurance requirements specified above. However, this 
exemption applies to bailed aircraft only if the contract under which 
the aircraft is bailed specifies that insurance is not required.



Sec. 766.10  Cancellation or suspension of the aviation facility license (OPNAV Form 3770/1).

    (a) Cancellation. (1) If the user fails to comply with the terms of 
the Aviation Facility License (OPNAV Form 3770/1) or of any applicable 
regulations, all current Aviation Facility Licenses for that user will 
be canceled. A canceled Aviation Facility License cannot be reinstated; 
a new application must be submitted for approval as explained in Sec. 
766.7.
    (2) If the commanding officer of a naval aviation facility has 
reason to believe that the use of an Aviation Facility License is not in 
accordance with the terms of the license he should immediately notify 
the Chief of Naval Operations, giving the name of the user, the Aviation 
Facility License number, and citing the circumstances of the misuse.
    (b) Suspension. The approving authority, or the commanding officer 
of the facility, may suspend an approved Aviation Facility License when 
such licensed use would be inconsistent with Navy/Marine Corps or 
national defense interests. Whenever possible, the Department of the 
Navy will avoid suspension of licenses which have been issued for 
official business or scheduled air carrier use. In all cases, 
suspensions will be lifted as quickly as possible. A suspension will not 
have the effect of extending the expiration date of an approved Aviation 
Facility License.



Sec. 766.11  Fees for landing, parking and storage.

    (a) The commanding officer of a facility will collect landing, 
parking, and storage fees, as applicable, from all users required to 
have an Aviation Facility License by Sec. 766.7 except for the 
following:
    (1) Government aircraft (see definition Sec. 766.2(g)) except that 
foreign government aircraft will be charged fees if their government 
charges similar fees for U.S. Government aircraft.
    (2) Aircraft being produced under a contract of the U.S. Government.
    (3) Any contract aircraft (see definition Sec. 766.2(b)(1)) or 
other civil aircraft which is authorized to use the facility on official 
business.
    (4) Aircraft employed to train operators in the use of precision 
approach systems (GCA, ILS, et al.) provided full-stop or touch-and-go 
landings are not performed.
    (5) Aircraft owned and operated by either Navy/Marine Corps Flying 
Clubs or Aero Clubs or other military services which are operated as 
instrumentalities of the U.S. Government.
    (6) Aircraft owned and operated by military personnel on active duty 
(Regular and Reserve) or retired, provided the aircraft is not used for 
commercial purposes.
    (7) Landing fees incident to emergency landings for which the 
landing fee has been waived by the commanding officer in accordance with 
Sec. 766.5(i)(5)(i).
    (b) Fee for unauthorized landing. If an aircraft lands at a Navy/
Marine Corps aviation facility without obtaining prior permission 
(except for a bona fide

[[Page 465]]

emergency landing), a landing fee in excess of the normal landing fee 
will be charged to cover the additional expenses incurred due to special 
handling and processing. The fee for an unauthorized landing will be as 
follows:
    (1) For aircraft weighing less than 12,500 pounds: $100.
    (2) For aircraft weighing 12,500 pounds but less than 40,000 pounds: 
$250.
    (3) For aircraft weighing 40,000 pounds but less than 100,000 
pounds: $500.
    (4) For aircraft weighing above 100,000 pounds: $600.
    (c) Normal landing fee. The normal landing fee is based on the 
aircraft maximum authorized gross takeoff weight, to the nearest 1,000 
pounds. The maximum gross takeoff weight may be determined either from 
item 7F of OPNAV Form 3770/1 or from the ``Airplane Flight Manual'' 
carried aboard each aircraft. If the weight cannot be determined, it 
should be estimated.

                           Charge Per Landing

Inside CONUS--0.20/1,000 pounds or any portion thereof with a minimum of 
$5.
Outside CONUS--0.30/1,000 pounds or any portion thereof with a minimum 
of $7.50.

    (d) Parking and storage fees. Fixed and rotary wing aircraft parking 
and storage fees are based upon the gross takeoff weight of the aircraft 
as follows:
    (1) Outside a hangar. Charges begin 6 hours after the aircraft 
lands. The rate is 10 cents per thousand pounds for each 24-hour period 
or fraction thereof, with a minimum charge of $1.50 per aircraft.
    (2) Inside a hangar. Charges begin as soon as the aircraft is placed 
inside the hangar. The rate is 20 cents per 1,000 pounds for each 24-
hour period or fraction thereof, with a minimum charge of $5 per 
aircraft.
    (e) Reimbursement. Collections incident to direct (out of pocket) 
costs will be credited to local operating and maintenance funds. All 
other collections, such as for landing, parking, and storage fees will 
be credited to Navy General Fund Receipt Account 172426. Accumulation of 
costs and preparation of billing documents are prescribed in paragraphs 
032500-032503 of the NAVCOMPT Manual.



Sec. 766.12  Unauthorized landings.

    An aircraft that lands at a Navy/Marine Corps aviation facility 
without obtaining prior permission from an approving authority, except 
in a bona fide emergency, is in violation of this part. Civil aircraft 
landing in violation of this regulation will have to pay the fee 
prescribed in Sec. 766.11(b). In those cases where an unauthorized 
landing is made at a facility within a Naval Defense Area, proclaimed as 
such by Executive order of the President, civil aircraft may be 
impounded and the operator prosecuted as indicated in OPNAVINST 5500.11C 
of November 12, 1963. In any event, before the aircraft is authorized to 
depart, the commanding officer of the facility will:
    (a) Inform the aircraft operator of the provisions of this part and 
the OP NAVINST 5500.11C of November 12, 1963, if applicable.
    (b) Require the aircraft operator (or owner), before takeoff, to pay 
all fees and charges and to comply with the following procedure:
    (1) Execute OPNAV Form 3770/1, explaining in item 6 of that form the 
reason for the landing.
    (2) In lieu of submitting a Certificate of Insurance (NAVFAC 7-
11011/36), the insurer must furnish evidence of sufficient insurance to 
include waiver of any right of subrogation against the United States, 
and that such insurance applies to the liability assumed by the insured 
under OPNAV Form 3770/1.
    (3) When it appears that the violation may have been deliberate, or 
is a repeated violation, departure authorization must be obtained from 
the Chief of Naval Operations.
    (4) Waiver of the requirements in paragraphs (b)(1) and (2) of this 
section may be obtained from the Chief of Naval Operations to expedite 
removal of these aircraft when such waiver is considered appropriate.

[35 FR 14451, Sept. 15, 1970, as amended at 51 FR 22804, June 23, 1986]



Sec. 766.13  Sale of aviation fuel, oil, services and supplies.

    (a) General policy. In accordance with sections 1107 and 1108 of the 
Federal Aviation Act of 1958 (72 Stat. 798 as amended, 49 U.S.C. 1507, 
1508), Navy/

[[Page 466]]

Marine Corps Aviation fuel, oil, services, and supplies are not sold to 
civil aircraft in competition with private enterprise. Sections 1107 and 
1108 of Federal Aviation Act of 1958 (72 Stat. 798 as amended, 49 U.S.C. 
1507, 1508), however, does authorize the sales of fuel, oil, equipment, 
supplies, mechanical service, and other assistance by reason of an 
emergency. Such sales will be made only where there is no commercial 
source and only in the amount necessary for the aircraft to continue on 
its course to the nearest airport operated by private enterprise.
    (b) Contract aircraft. The sale of aviation fuel, oil, supplies, 
etc. to aircraft under U.S. Government contract or charter is permitted 
at, and limited to, points where passengers or cargo are loaded into or 
discharged from the aircraft under terms of the contract or charter. 
Sales are not authorized at naval aviation facilities where commercial 
supplies and service are available.



PART 767_APPLICATION GUIDELINES FOR ARCHEOLOGICAL RESEARCH PERMITS ON SHIP AND AIRCRAFT WRECKS UNDER THE JURISDICATION OF THE DEPARTMENT OF THE NAVY--Table of Contents




                  Subpart A_Regulations and Obligations

Sec.
767.1 Purpose.
767.2 Definitions.
767.3 Policy.

                       Subpart B_Permit Guidelines

767.4 Application for permit.
767.5 Evaluation of permit application.
767.6 Credentials of principal investigator.
767.7 Conditions of permits.
767.8 Requests for amendments or extensions of active permits.
767.9 Content of permit holder's final report.
767.10 Monitoring of performance.
767.11 Violations of permit conditions.
767.12 References for submission of permit application to conduct 
          archeological research.

    Authority: 5 U.S.C. 301; 16 U.S.C. 470.

    Source: 65 FR 31080, May 16, 2000, unless otherwise noted.



                  Subpart A_Regulations and Obligations



Sec. 767.1  Purpose.

    (a) The purpose of this part is to establish the requirement and 
procedural guidelines for permits to conduct research on and/or recover 
Department of the Navy (DON) ship and aircraft wrecks.
    (b) The U.S. Naval Historical Center's (NHC) Office of Underwater 
Archeology is the DON command responsible for managing DON ship and 
aircraft wrecks under the guidelines of the Federal Archeological 
Program. In order for the NHC's management policy to be consistent with 
the Federal Archeology Program, and the goals of the NHPA, DON has 
implemented a permitting process applicable to DON property consistent 
with and applying the Archeological Resources Protection Act of 1979 as 
amended (ARPA), 16 U.S.C. 470aa-mm, permitting criteria. Department of 
the Navy policies regarding its ship and aircraft wrecks are consistent 
with ARPA permitting requirements. Department of the Navy application of 
ARPA permitting criteria promotes consistency among federal agencies and 
meets DON's responsibilities under the NHPA while allowing qualified 
non-federal and private individuals and entities access to DON historic 
ship and aircraft wrecks.
    (c) To assist NHC in managing, protecting, and preserving DON ship 
and aircraft wrecks.



Sec. 767.2  Definitions.

    Aircraft wreck means the physical remains of an aircraft, intact or 
otherwise, its cargo, and other contents. Aircraft wrecks are classified 
as either historic structures or archeological sites.
    Archeological site means the location of an event, a prehistoric or 
historic occupation or activity, or a building or structure, whether 
standing, ruined, or vanished, where the location itself maintains 
historical or archeological value regardless of the value of any 
existing structure. A ship or aircraft wreck, along with its debris 
field, is an archaeological site when it lacks the

[[Page 467]]

structural integrity of an intact aircraft or vessel and when it and its 
location retain archeological or historical value regardless of the 
value of any existing remains.
    Artifact means any object or assemblage of objects, regardless of 
age, whether in situ or not, that may carry archeological or historical 
information that yields or is likely to yield information to the 
scientific study of culture or human history.
    Cultural resource means any prehistoric or historic district, site, 
building, structure, or object, including artifacts, records, and 
material remains related to such a property or resource. Historic 
aircraft wrecks or shipwrecks are classified as either archeological 
sites or historic structures.
    Gravesite means any natural or prepared physical location, whether 
originally below, on, or above the surface of the earth, where 
individual human remains are deposited.
    Historic structure means a structure made up of interdependent and 
interrelated parts in a definite pattern or organization. Constructed by 
humans, it is often an engineering project large in scale. An aircraft 
wreck or shipwreck is a historic structure when it is relatively intact 
and when it and its location retain historical, architectural, or 
associative value.
    Permit holder means any person authorized and given the exclusive 
right by the NHC to conduct any activity under these regulations.
    Permitted activity means any activity that is authorized by the NHC 
under the regulations in this part.
    Research vessel means any vessel employed for scientific purposes 
under the regulations in this part.
    Ship wreck means the physical remains of a vessel, intact or 
otherwise, its cargo, and other contents. Shipwrecks are classified as 
either historic structures or archeological sites.
    Wrecksite means the location of a ship or aircraft that has been 
sunk, crashed, ditched, damaged, or stranded. The wreck may be intact or 
scattered, may be on land or in water, and may be a structure or a site. 
The site includes the physical remains of the wreck and all other 
associated artifacts.



Sec. 767.3  Policy.

    (a) The Naval Historical Center's policy has been to evaluate each 
DON ship and aircraft wreck on an individual basis. In some cases, the 
removal of DON ship and aircraft wrecks may be necessary or appropriate 
to protect the cultural resource and/or to fulfill other NHC goals, such 
as those encompassing research, education, public access, and 
appreciation. Recovery of DON ship and aircraft wrecks may be justified 
in specific cases where the existence of a cultural resource may be 
threatened. Therefore, recovery of some or all of a cultural resource 
may be permitted for identification and/or investigation to answer 
specific questions; or the recovery presents an opportunity for public 
research or education.
    (b) Generally, DON ship and aircraft wrecks will be left in place 
unless artifact removal or site disturbance is justified and necessary 
to protect DON ship and aircraft wrecks, to conduct research, or provide 
public education and information that is otherwise inaccessible. While 
NHC prefers non-destructive, in situ research on DON ship and aircraft 
wrecks, it recognizes that site disturbance and/or artifact recovery is 
sometimes necessary. At such times, site disturbance and/or 
archeological recovery may be permitted, subject to conditions specified 
by NHC.



                       Subpart B_Permit Guidelines



Sec. 767.4  Application for permit.

    (a) To request a permit application form, please write to: 
Department of the Navy, U.S. Naval Historical Center, Office of the 
Underwater Archeologist, 805 Kidder Breese St. SE, Washington Navy Yard, 
DC 20374-5060. Telefax number: 202-433-2729.
    (b) Applicants must submit three copies of their completed 
application at least 120 days in advance of the requested effective date 
to allow sufficient time for evaluation and processing. Requests should 
be sent to the Department of the Navy, U.S. Naval Historical Center, 
Office of the Underwater Archeologist, 805 Kidder Breese St. SE, 
Washington Navy Yard, DC 20374-5060.

[[Page 468]]

    (c) If the applicant believes that compliance with one or more of 
the factors, criteria, or procedures in the guidelines contained in this 
part is not practicable, the applicant should set forth why and explain 
how the purposes of NHC are better served without compliance with the 
specified requirements. Permits are valid for one year from the issue 
date.



Sec. 767.5  Evaluation of permit application.

    (a) Permit applications for archeological research are reviewed for 
completeness, compliance with program policies, and adherence to the 
guidelines of this subpart. Incomplete applications will be returned to 
the applicant for clarification. Complete applications are reviewed by 
NHC personnel and, when necessary, outside experts. In addition to the 
criteria set forth in Sec. 767.6, applications are also judged on the 
basis of: relevance or importance; archeological merits; appropriateness 
and environmental consequences of technical approach; and qualifications 
of the applicants.
    (b) Under certain circumstances, it may be necessary to consult with 
the State Historic Preservation Officer (SHPO) and the Advisory Council 
on Historic Preservation (ACHP) about the need to comply with section 
106 of the NHPA. A section 106 review may require the NHC to consult 
with the appropriate SHPO and the ACHP. The ACHP review can take up to 
60 days beyond the NHC's required 120-day review. Therefore, the entire 
review process may take up to 180 days.
    (c) The NHC shall send applications for research at sites located in 
units of the national park system, national wildlife refuge system, and 
national marine sanctuary system to the appropriate Federal land manager 
for review. The Federal land manager is responsible for ensuring that 
the proposed work is consistent with any management plan or established 
policy, objectives or requirements applicable to the management of the 
public lands concerned. NHC shall send applications for research at 
sites located on state bottomlands to the appropriate state agency for 
review. The burden of obtaining any and all additional permits or 
authorizations, such as from a state or foreign government or agency, 
private individual or organization, or from another federal agency, is 
on the applicant.
    (d) Based on the findings of the NHC evaluation, the NHC Underwater 
Archeologist will recommend an appropriate action to the NHC Director. 
If approved, NHC will issue the permit; if denied, applicants are 
notified of the reason for denial and may appeal within 30 days of 
receipt of the denial. Appeals must be submitted in writing to: Director 
of Naval History, Naval Historical Center, 805 Kidder Breese St. SE, 
Washington Navy Yard, DC 20374-5060.



Sec. 767.6  Credentials of principal investigator.

    A resume or curriculum vitae detailing the professional 
qualifications and professional publications and papers of the principal 
investigator (PI) must be submitted with the permit application. The PI 
must have: a graduate degree in archeology, anthropology, maritime 
history, or a closely related field; at least one year of professional 
experience or equivalent specialized training in archeological research, 
administration or management; at least four months of supervised field 
and analytic experience in general North American historic archaeology 
and maritime history; the demonstrated ability to carry research to 
completion; and at least one year of full-time professional experience 
at a supervisory level in the study of historic marine archeological 
resources. This person shall be able to demonstrate ability in 
comprehensive analysis and interpretation through authorship of reports 
and monographs.



Sec. 767.7  Conditions of permits.

    (a) Upon receipt of a permit, permit holders must counter-sign the 
permit and return copies to the NHC and the applicable SHPO, Federal or 
State land manager, or foreign government official prior to conducting 
permitted activities on the site. Copies of countersigned permits should 
also be provided to the applicable federal land

[[Page 469]]

manager when the sunken vessel or aircraft is located within a unit of 
the national park system, the national wildlife refuge system, or the 
national marine sanctuary system.
    (b) Permits must be carried aboard research vessels and made 
available upon request for inspection to regional preservation personnel 
or law enforcement officials. Permits are non-transferable. Permit 
holders must abide by all provisions set forth in the permit as well as 
applicable state or Federal regulations. Permit holders should abide by 
applicable regulations of a foreign government when the sunken vessel or 
aircraft is located in foreign waters. To the extent reasonably 
possible, the environment must be returned to the condition that existed 
before the activity occurred.
    (c) Upon completion of permitted activities, the permit holder is 
required to submit to NHC a working and diving log listing days spent in 
field research, activities pursued, and working area positions.
    (d) The permit holder must prepare and submit a final report as 
detailed in Sec. 767.9, summarizing the results of the permitted 
activity.
    (e) The permit holder must agree to protect all sensitive 
information regarding the location and character of the wreck site that 
could potentially expose it to non-professional recovery techniques, 
looters, or treasure hunters. Sensitive information includes specific 
location data such as latitude and longitude, and information about a 
wreck's cargo, the existence of armaments, or the knowledge of 
gravesites.
    (f) All recovered DON cultural resources remain the property of the 
United States. These resources and copies of associated archaeological 
records and data will be preserved by a suitable university, museum, or 
other scientific or educational institution and must meet the standards 
set forth in 36 CFR part 79, Curation of Federally Owned and 
Administered Archeological Collections, at the expense of the applicant. 
The repository shall be specified in the permit application.



Sec. 767.8  Requests for amendments or extensions of active permits.

    (a) Requests for amendments to active permits (e.g., a change in 
study design or other form of amendment) must conform to the regulations 
in this part. All necessary information to make an objective evaluation 
of the amendment should be included as well as reference to the original 
application.
    (b) Permit holders desiring to continue research activities must 
reapply for an extension of their current permit before it expires. A 
pending extension or amendment request does not guarantee extension or 
amendment of the original permit. Therefore, you must submit an 
extension request to NHC at least 30 days prior to the original permit's 
expiration date. Reference to the original application may be given in 
lieu of a new application, provided the scope of work does not change 
significantly. Applicants may apply for one-year extensions subject to 
annual review.
    (c) Permit holders may appeal denied requests for amendments or 
extensions to the appeal authority listed in Sec. 767.5.



Sec. 767.9  Content of permit holder's final report.

    The permit holder's final report shall include the following:
    (a) A site history and a contextual history relating the site to the 
general history of the region;
    (b) A master site map;
    (c) Feature map(s) of the location of any recovered artifacts in 
relation to their position within the wrecksite;
    (d) Photographs of significant site features and significant 
artifacts both in situ and after removal;
    (e) If applicable, a description of the conserved artifacts, 
laboratory conservation records, and before and after photographs of the 
artifacts at the conservation laboratory;
    (f) A written report describing the site's historical background, 
environment, archeological field work, results, and analysis;
    (g) A summary of the survey and/or excavation process; and
    (h) An evaluation of the completed permitted activity that includes 
an assessment of the permit holder's success of his/her specified goals.

[[Page 470]]



Sec. 767.10  Monitoring of performance.

    Permitted activities will be monitored to ensure compliance with the 
conditions of the permit. NHC on-site personnel, or other designated 
authorities, may periodically assess work in progress by visiting the 
study location and observing any activity allowed by the permit or by 
reviewing any required reports. The discovery of any potential 
irregularities in performance under the permit will be promptly reported 
and appropriate action will be taken. Permitted activities will be 
evaluated and the findings will be used to evaluate future applications.



Sec. 767.11  Violations of permit conditions.

    The Director of Naval History, the Underwater Archeologist for DON, 
or his/her designee may, amend, suspend, or revoke a permit in whole or 
in part, temporarily or indefinitely, if in his/her view the permit 
holder has acted in violation of the terms of the permit or of other 
applicable regulations, or for other good cause shown. Any such action 
will be communicated in writing to the permit holder and will set forth 
the reason for the action taken. The permit holder may appeal the action 
to the appeal authority listed in Sec. 767.5.



Sec. 767.12  References for submission of permit application to conduct archeological research.

    (a) National Historic Preservation Act of 1966, as amended (NHPA), 
16 U.S.C. 470 et seq. (1999), and Protection of Historic Properties, 36 
CFR part 800. These regulations govern the Section 106 Review Process 
established by the NHPA.
    (b) Secretary of the Interior's Standards and Guidelines for 
Archeology and Historic Preservation published on September 29, 1983 (48 
FR 44716). These guidelines establish standards for the preservation 
planning process with guidelines on implementation.
    (c) Archeological Resources Protection Act of 1979, as amended 
(ARPA), 16 U.S.C. 470aa-mm, and the Uniform Regulations, 43 CFR part 7, 
subpart A. These regulations establish basic government-wide standards 
for the issuance of permits for archeological research, including the 
authorized excavation and/or removal of archeological resources on 
public lands or Indian lands.
    (d) Secretary of the Interior's regulations, Curation of Federally-
Owned and Administered Archeological Collections, 36 CFR part 79. These 
regulations establish standards for the curation and display of 
federally-owned artifact collections.
    (e) Antiquities Act of 1906, Public Law 59-209, 34 Stat. 225 
(codified at 16 U.S.C. 431 et seq. (1999)).
    (f) Executive Order 11593, 36 FR 8291, 3 CFR, 1971-1975 Comp., p. 
559 (Protection and Enhancement of the Cultural Environment).
    (g) Department of Defense Instruction 4140.21M (DoDI 4120.21M, 
August 1998). Subject: Defense Disposal Manual.
    (h) Secretary of the Navy Instruction 4000.35 (SECNAVINST 4000.35, 
17 August 1992). Subject: Department of the Navy Cultural Resources 
Program.
    (i) Naval Historical Center Instruction 5510.4. (NAVHISTCENINST 
5510.4, 14 December 1995). Subject: Disclosure of Information from the 
Naval Shipwreck Database.

                        PARTS 768	769 [RESERVED]



PART 770_RULES LIMITING PUBLIC ACCESS TO PARTICULAR INSTALLATIONS--Table of Contents




 Subpart A_Hunting and Fishing at Marine Corps Base, Quantico, Virginia

Sec.
770.1 Purpose.
770.2 Licenses.
770.3 Fishing regulations.
770.4 Hunting regulations.
770.5 Safety regulations.
770.6 Restrictions.
770.7 Violations and environmental regulations.
770.8 Reports.
770.9 Miscellaneous.

   Subpart B_Base Entry Regulations for Naval Submarine Base, Bangor, 
                         Silverdale, Washington

770.15 Purpose.
770.16 Definition.
770.17 Background.
770.18 Entry restrictions.
770.19 Entry procedures.

[[Page 471]]

770.20 Violations.

Subpart C_Base Entry Regulations for Naval Installations in the State of 
                                 Hawaii

770.25 Purpose.
770.26 Definitions.
770.27 Background.
770.28 Entry restrictions.
770.29 Entry procedures.
770.30 Violations.
770.31 List of major naval installations in the State of Hawaii and 
          cognizant commanders authorized to grant access under these 
          regulations.

  Subpart D_Entry Regulations for Naval Installations and Property in 
                               Puerto Rico

770.35 Purpose.
770.36 Definitions.
770.37 Background.
770.38 Entry restrictions.
770.39 Entry procedures.
770.40 Violations.

 Subpart E_Base Entry Regulations for Naval Submarine Base New London, 
                           Groton, Connecticut

770.41 Purpose.
770.42 Background.
770.43 Responsibility.
770.44 Entry restrictions.
770.45 Entry procedures.
770.46 Violations.

    Subpart F_Base Entry Regulations for Puget Sound Naval Shipyard, 
                          Bremerton, Washington

770.47 Purpose.
770.48 Definition.
770.49 Background.
770.50 Entry restrictions.
770.51 Entry procedures.
770.52 Violations.

 Subpart G_Entry Regulations for Portsmouth Naval Shipyard, Portsmouth, 
                              New Hampshire

770.53 Purpose.
770.54 Background.
770.55 Responsibility.
770.56 Entry restrictions.
770.57 Entry procedures.
770.58 Violations.

    Authority: 5 U.S.C. 301; 10 U.S.C. 6011; 32 CFR 700.702; 32 CFR 
700.714, unless otherwise noted.



 Subpart A_Hunting and Fishing at Marine Corps Base, Quantico, Virginia

    Source: 41 FR 22345, June 3, 1976, unless otherwise noted.



Sec. 770.1  Purpose.

    This subpart provides regulations and related information governing 
hunting and fishing on the Marine Corps Base Reservation, Quantico, VA.



Sec. 770.2  Licenses.

    (a) Every person who hunts or fishes on Marine Corps Base, Quantico, 
VA, must possess appropriate valid licenses in compliance with the Laws 
of the United States and the State of Virginia.
    (b) In addition, hunting and fishing privilege cards, issued by the 
authorities at Marine Corps Base, Quantico, VA, are required for all 
persons between the ages sixteen and sixty-four, inclusive.
    (1) The privilege card may be purchased from the Natural Resources 
and Environmental Affairs Branch, Building 5-9, Marine Corps Base, 
Quantico, VA.
    (2) The privilege cards are effective for the same period as the 
Virginia hunting and fishing licenses.
    (c) All hunters must obtain a Base hunting permit, and a parking 
permit, if applicable, from the Game Check Station, Building 5-9 Station 
(located at the intersection of Russell Road and MCB-1) for each day of 
hunting. The hunting permit must be carried by the hunter and the 
parking permit must be displayed on the left dashboard of parked 
vehicles. The hunting and parking permits must be returned within one 
hour after either sunset or the hour hunting is secured on holidays or 
during special season.
    (d) Eligibility for a Base hunting permit is predicated on:
    (1) Possession of required Federal and State licenses for the game 
to be hunted including Marine Corps Base hunting privilege card;
    (2) Attendance at a safety lecture given daily except Sunday during 
the hunting season given at the Game Check Station. The lectures 
commence

[[Page 472]]

at the times posted in the Annual Hunting Bulletin and are posted on all 
base bulletin boards;
    (3) Understanding of Federal, State and Base hunting regulations;
    (4) And, if civilian, an executed release of U.S. Government 
responsibility in case of accident or injury.

[41 FR 22345, June 3, 1976, as amended at 48 FR 23205, May 24, 1983; 65 
FR 53591, Sept. 5, 2000]



Sec. 770.3  Fishing regulations.

    (a) All persons possessing the proper state license and Base permit 
are permitted to fish in the areas designated by the Annual Fishing 
Regulations on Marine Corps Base, Quantico, VA, on any authorized 
fishing day. A Base Fishing Privilege Card is required for all persons 
aged 16 to 65.
    (b) Fishing is permitted on all waters within the boundaries of 
Marine Corps Base, Quantico, VA, unless otherwise posted, under the 
conditions and restrictions and during the periods provided by Marine 
Corps Base, Quantico, VA. Information regarding specific regulations for 
each fishing area must be obtained from the Natural Resources and 
Environmental Affairs Branch, Building 5-9 prior to use of Base fishing 
facilities.
    (c) In addition to the requirements of the Laws of Virginia, the 
following additional prohibitions and requirements are in effect at 
Marine Corps Base, Quantico, VA.
    (1) No trout lines are permitted in Marine Corps Base waters;
    (2) No Large Mouth Bass will be taken, creeled or possessed in a 
slot limit of 12-15 inches in length. All Large Mouth Bass within this 
slot will be immediately returned to the water;
    (3) No Striped Bass will be taken, creeled or possessed under the 
size of twenty (20) inches in length. All Striped Bass under this size 
will be immediately returned to the water.

[41 FR 22345, June 3, 1976, as amended at 48 FR 23205, May 24, 1983; 65 
FR 53591, Sept. 5, 2000]



Sec. 770.4  Hunting regulations.

    All persons possessing the proper State, Federal and Base licenses 
and permits are permitted to hunt in the areas designated daily by the 
Annual Hunting Bulletin on Marine Corps Base, Quantico, VA, on any 
authorized hunting day. In addition, a minimum of fifteen percent of the 
daily hunting spaces will be reserved to civilians on a first come, 
first served basis until 0600 on each hunting day, at which time, the 
Game Check Station may fill vacancies from any authorized persons 
waiting to hunt.

[65 FR 53591, Sept. 5, 2000]



Sec. 770.5  Safety regulations.

    (a) Hunting is not permitted within 200 yards of the following: 
Ammunition dumps, built-up areas, rifle or pistol ranges, dwelling or 
other occupied structures, and areas designated by the Annual Hunting 
Bulletin as recreation areas.
    (b) From the end of the special archery season until the end of the 
regular firearms winter hunting season, except for duck hunters in 
approved blinds, hunters will wear an outer garment with at least two 
square foot of blaze orange visible both front and back above the waist 
and a blaze orange cap while hunting, or while in the woods for any 
reason, during the hours that hunting is authorized. Any person 
traveling on foot in or adjacent to an area open for hunting will comply 
with this requirement.
    (c) Weapons will be unloaded while being transported in vehicles, 
and will be left in vehicles by personnel checking in or out at the Game 
Check Station. Weapons will not be discharged from vehicles, or within 
200 yards of hard surfaced roads.
    (d) Certain hunting areas contain numerous unexploded munitions 
(duds) which are dangerous and must not be removed or disturbed. Hunters 
should mark such duds with stakes or other means and report their 
location to the Game Warden.
    (e) Hunters must stay in their assigned areas when hunting.

[41 FR 22345, June 3, 1976, as amended at 65 FR 53592, Sept. 5, 2000]



Sec. 770.6  Restrictions.

    (a) There will be no hunting on Christmas Eve, Christmas Day, New 
Years Day, or after 1200 on Thanksgiving Day.

[[Page 473]]

    (b) Hunters under 18 years of age must be accompanied by an adult 
(21 years of age or older) while hunting or in a hunting area. The adult 
is limited to a maximum of two underage hunters, and must stay within 
sight and voice contact and no more than 100 yards away from the 
underage hunters.
    (c) The following practices or actions are expressly forbidden: Use 
of rifles, except muzzleloaders of .40 caliber or larger as specified 
below, revolvers or pistols; use of shotguns larger than 10 gauge or 
crossbows (this prohibition extends to carrying such weapons on the 
person or in a vehicle while hunting), use of buckshot to hunt any game; 
use of a light, attached to a vehicle or otherwise, for the purpose of 
spotting game; use of dogs for hunting or tracking deer; training deer 
dogs on the Reservation; training or running dogs in hunting areas 
between 1 March and 1 September; driving deer; baiting or salting traps 
or blinds; hunting on Sunday; molesting wildlife. Those personnel who 
are authorized to hunt on Base, desiring to train or exercise dogs other 
than deer dogs between 2 September and 28 February, may do so by 
obtaining Walking Pass to enter training areas at the Range Control 
Office. This Walking Pass is not permission to hunt, and carrying 
weapons under these conditions is prohibited.
    (d) Hunting will not commence before one half hour before sunrise, 
and will end not later than sunset. The hours of sunrise and sunset are 
posted daily at the Game Checking Station.
    (e) Weapons will not be loaded outside of hunting hours.
    (f) There will be no use of a muzzleloader or slug shotgun after 
obtaining the daily or yearly game bag limits.
    (g) There will be no possession or use of drugs or alcohol while 
checked out to hunt.

[41 FR 22345, June 3, 1976, as amended at 48 FR 23205, May 24, 1983; 65 
FR 53592, Sept. 5, 2000]



Sec. 770.7  Violations and environmental regulations.

    Violations of hunting regulations, fishing regulations, safety 
regulations, or principles of good sportsmanship are subject to 
administrative restriction of hunting or fishing privileges and possible 
judicial proceedings in State or Federal courts.
    (a) The Marine Corps Base Game Wardens are Federal Game Wardens. 
They have authority to issue summons to appear in Federal court for game 
violations.
    (b) Offenders in violation of a Federal or State hunting or fishing 
laws will be referred to a Federal court.
    (c) Offenders in violation of a Federal, State or Base hunting or 
fishing law or regulation will receive the following administrative 
actions.
    (1) The Base Game Warden shall have the authority to temporarily 
suspend hunting and fishing privileges.
    (2) Suspensions of hunting and fishing privileges will be outlined 
in the Annual Fish and Wildlife Procedures Manual.
    (d) Civilians found in violation of a hunting or fishing regulation 
or law may be permanently restricted from entering the base.
    (e) Serious hunting and fishing offenses include, but are not 
limited to: spotlighting, false statement on a license, hunting under 
the influence, employment of a light in an area that deer frequent, and 
taking game or fish during closed seasons.

[41 FR 22345, June 3, 1976, as amended at 65 FR 53592, Sept. 5, 2000]



Sec. 770.8  Reports.

    Upon killing a deer or turkey, a hunter must attach the appropriate 
tab from his big game license to the carcass before moving the game from 
the place of kill. The game will then be taken to the Game Checking 
Station where the tab will be exchanged for an official game tag. All 
other game, not requiring a tag, killed on the Reservation will be 
immediately reported to the Game Warden when checking out at the end of 
a hunt.

[41 FR 22345, June 3, 1976, as amended at 48 FR 23206, May 24, 1983; 65 
FR 53592, Sept. 5, 2000]



Sec. 770.9  Miscellaneous.

    Refer to the Annual Fishing and Hunting Bulletins that will cover 
any annual miscellaneous changes.

[65 FR 53592, Sept. 5, 2000]

[[Page 474]]



   Subpart B_Base Entry Regulations for Naval Submarine Base, Bangor, 
                         Silverdale, Washington

    Authority: 50 U.S.C. 797; DoDDir. 5200.8 of April 25, 1991; 5 U.S.C. 
301; 10 U.S.C. 6011; 32 CFR 700.702; 32 CFR 700.714.

    Source: 44 FR 32368, June 6, 1979, unless otherwise noted.



Sec. 770.15  Purpose.

    The purpose of this subpart is to promulgate regulations governing 
entry upon Naval Submarine Base (SUBASE), Bangor.



Sec. 770.16  Definition.

    For the purpose of this subpart, SUBASE Bangor shall include that 
area of land in Kitsap and Jefferson Counties, State of Washington which 
has been set aside for use of the Federal Government by an Act of the 
legislature of the State of Washington, approved March 15, 1939 (Session 
laws of 1939, chapter 126).



Sec. 770.17  Background.

    (a) SUBASE Bangor has been designated as the West Coast home port of 
the Trident Submarine. Facilities for the repair or overhaul of naval 
vessels are located at SUBASE Bangor. It is vital to national defense 
that the operation and use of SUBASE Bangor be continued without undue 
and unnecessary interruption. Many areas of SUBASE Bangor are of an 
industrial nature, including construction sites, where inherently 
dangerous conditions exist.
    (b) For prevention of the interruption of the stated use of the base 
by the presence of any unauthorized person within the boundaries of 
SUBASE Bangor, and prevention of injury to any such person as a 
consequence of the dangerous conditions which exist, as well as for 
other reasons, it is essential to restrict entry upon SUBASE Bangor to 
authorized persons only.



Sec. 770.18  Entry restrictions.

    Except for military personnel and civilian employees of the United 
States in the performance of their official duties, entry upon Naval 
Submarine Base, Bangor, or remaining thereon by any person whatsoever 
for any purpose without the advance consent of the Commanding Officer, 
SUBASE Bangor or his authorized representative is prohibited. See, 18 
U.S.C. 1382; the Internal Security Act of 1950, Section 21 (50 U.S.C. 
797); Department of Defense Directive 5200.8 of 25 April 1991; Secretary 
of the Navy Instruction 5511.36A of 21 July 1992.

[44 FR 32368, June 6, 1979, as amended at 65 FR 53592, Sept. 5, 2000]



Sec. 770.19  Entry procedures.

    (a) Any person or group of persons desiring the advance consent of 
the Commanding Officer, SUBASE Bangor or his authorized representative 
shall, in writing, submit a request to the Commanding Officer, Naval 
Submarine Base, Bangor, 1100 Hunley Road, Silverdale, WA 98315.
    (b) Each request for entry will be considered on an individual basis 
weighing the operational, security, and safety requirements of SUBASE 
Bangor with the purpose, size of party, duration of visit, destination, 
and military resources which would be required by the granting of the 
request.

[44 FR 32368, June 6, 1979, as amended at 65 FR 53592, Sept. 5, 2000]



Sec. 770.20  Violations.

    (a) Any person entering or remaining on SUBASE Bangor, without the 
consent of the Commanding Officer, SUBASE Bangor or his authorized 
representative, shall be subject to the penalties prescribed by 18 
U.S.C. 1382, which provides in pertinent part:

    Whoever, within the jurisdiction of the United States, goes upon any 
military, naval * * * reservation, post, fort, arsenal, yard, station, 
or installation, for any purpose prohibited by law or lawful regulation 
* * * shall be fined not more than $5,000 or imprisoned not more than 
six months or both.

    (b) Moreover, any person who willfully violates this subpart is 
subject to a fine not to exceed $5,000 or imprisonment for not more than 
one (1) year or both as provided in 50 U.S.C. 797.

[44 FR 32368, June 6, 1979, as amended at 65 FR 53592, Sept. 5, 2000]

[[Page 475]]



Subpart C_Base Entry Regulations for Naval Installations in the State of 
                                 Hawaii

    Authority: 50 U.S.C. 797; DoD Dir. 5200.8 of Aug. 20, 1954; 5 U.S.C 
301; 10 U.S.C. 6011; 32 CFR 700.702, 770.714.

    Source: 44 FR 76279, Dec. 26, 1979, unless otherwise noted.



Sec. 770.25  Purpose.

    The purpose of this subpart is to promulgate regulations governing 
entry to naval installations in the State of Hawaii.



Sec. 770.26  Definitions.

    For the purpose of this subpart the following definitions apply:
    (a) Naval installations. A naval installation is a shore activity 
and is any area of land, whether or not fenced or covered by water, that 
is administered by the Department of the Navy or by any subordinate 
naval command. The term ``naval installation'' applies to all such areas 
regardless of whether the areas are being used for purely military 
purposes, for housing, for support purposes, or for any other purpose by 
a naval command. Section 770.31 contains a list of the major naval 
installations in Hawaii. This list is not considered to be all inclusive 
and is included only as a representative guide. For the purposes of this 
subpart the area of water within Pearl Harbor is considered to be within 
a naval installation.
    (b) Outleased areas. Certain portions of naval installations in 
Hawaii which are not for the time needed for public use or for which a 
dual use is feasible have been outleased to private interests. Examples 
of such outleased areas are the Moanalua Shopping Center and lands such 
as Waipio Peninsula, which has been outleased for agricultural purposes. 
For the purpose of this Subpart, outleased areas which are not within 
fenced portions of naval installations are not considered to be a part 
of naval installations. Rules for entry onto the outleased areas are 
made by the lessees, except in the case of Waipio Peninsula where the 
lessee (Oahu Sugar Company) is not authorized to allow anyone to enter 
Waipio Peninsula for any purpose not connected with sugar cane 
production.



Sec. 770.27  Background.

    (a) Naval installations in Hawaii constitute a significant element 
of the national defense establishment. It is vital to the national 
defense that the use of such areas be at all times under the positive 
control of the Department of the Navy. Strict control must be exercised 
over access to naval installations in order to preclude damage 
accidental and intentional to Government property, injury to military 
personnel, and interference in the orderly accomplishment of the mission 
of command.
    (b) There are several industrial areas within naval installations in 
Hawaii wherein construction activities and the use of heavy machinery 
pose grave risk of danger to visitors.
    (c) Various types of flammable or incendiary materials and ordnance 
are stored at a number of locations within naval installations in 
Hawaii.
    (d) Classified documents and equipment requiring protection from 
unauthorized disclosure by Executive order 12065 for reasons of national 
security are located at various locations within naval installations in 
Hawaii.
    (e) In order to effect the positive control of the Navy over its 
installations in Hawaii, it is essential that entry onto those 
installations be restricted to authorized persons only.
    (f) These entry regulations are being promulgated under the 
authority of Commander, Naval Base, Pearl Harbor, who has been assigned 
as immediate area coordinator for all naval installations in the State 
of Hawaii by Commander-in-Chief, U.S. Pacific Fleet.



Sec. 770.28  Entry restrictions.

    Each commander is responsible for the security of his/her command. 
Therefore, entry onto a command or into part of a command may be 
controlled by the commander through the imposition of such restrictions 
as may be required by attendant circumstances. Within the State of 
Hawaii, entry into a naval installation is not permitted without the 
permission of the responsible commander.

[[Page 476]]



Sec. 770.29  Entry procedures.

    (a) Operational, security, and safety considerations take priority 
over requests by individuals to visit a naval installation. Consistent 
with such considerations, visits by members of the general public may be 
authorized at the discretion of the commander. The commitment of 
resources which would be required to safeguard the persons and property 
of visitors as well as military property and personnel must of necessity 
preclude or severely restrict such visiting. The purpose and duration of 
the visit and the size of the party and areas to be visited are other 
considerations which may affect the commander's decision whether to 
permit visiting by members of the public.
    (b) Any person or group desiring to enter a particular naval 
installation or portion thereof, shall submit a written request to the 
commander of the installation well enough in advance to allow a 
reasonable time for reply by mail. Mailing addresses for commanders of 
major installations covered by this subpart are listed in Sec. 770.31. 
Full compliance with a naval installation's local visitor registration 
and entry control procedures shall be deemed the equivalent of obtaining 
the advance consent of the commander for entrance upon the installation 
for the purpose of this subpart. Authorization to enter one naval 
installation or a portion of one installation does not necessarily 
include the authorization to enter any other naval installation or all 
portions of an installation.



Sec. 770.30  Violations.

    (a) Any person entering or remaining on a naval installation in the 
State of Hawaii, without consent of the commander or his authorized 
representative, shall be subject to the penalties of a fine of not more 
than $500 or imprisonment for not more than six months, or both. See 18 
U.S.C. 1382.
    (b) Moreover, any person who willfully violates this regulation is 
subject to a fine not to exceed $5,000 or imprisonment for one year, or 
both. See 50 U.S.C. 797.



Sec. 770.31  List of major naval installations in the State of Hawaii and cognizant commanders authorized to grant access under these regulations.

    (a) On Oahu. (1) Naval Base, Pearl Harbor (including the Naval 
Station, Naval Submarine Base, Naval Shipyard, Naval Supply Center, 
Naval Public Works Center, Marine Barracks, Ford Island, Bishop Point 
Dock Area, Commander-in-Chief Pacific Fleet and Commander Naval 
Logistics Command Headquarters Areas, Johnson Circle Navy Exchange/
Commissary Store Area, Navy-Marine Golf Course, miscellaneous other 
commands, and areas within the Naval Base, Pearl Harbor complex, and the 
waters of Pearl Harbor). Contact:

Commander, Naval Base, Pearl Harbor, HI 96860.

    (2) Naval Western Oceanography Center, Pearl Harbor. Contact:

Commanding Officer, Naval Western Oceanography Center, Box 113, Pearl 
Harbor, HI 96860.

    (3) Naval Air Station, Barbers Point. Contact:

Commanding Officer, Naval Air Station, Barbers Point, HI 96862.

    (4) Naval Communication Area Master Station, Eastern Pacific, 
Wahiawa. Contact:

Commanding Officer, Naval Communication Area Master Station, Eastern 
Pacific, Wahiawa, HI 96786.

    (5) Naval Magazine (Lualualei, Waikele, and West Loch). Contact:

Commanding Officer, Naval Magazine, Lualualei, HI 96792.

    (6) Naval Radio Transmitting Facility, Lualualei. Contact:

Commanding Officer, Naval Base, Pearl Harbor, HI 96860.

    (7) Naval and Marine Corps Reserve Training Center, Honolulu. 
Contact:

Commanding Officer, Naval and Marine Corps Reserve Training Center, 
Honolulu, 530 Peltier Avenue, Honolulu, HI 96818.

    (8) Military Sealift Command Office. Contact:

Commander, Naval Base, Pearl Harbor, HI 96860.


[[Page 477]]


    (9) Mauna Kapu (Pacific Missile Range Facility). Contact:

Commanding Officer, Pacific Missile Range Facility, Hawaiian Area, 
Barking Sands, Kekaha, Kauai, HI 96752.

    (10) Kunia Facility; FORACS III Sites; Degaussing Station, Waipio 
Peninsula; Damon Tract (Remanant) Opana Communciations Site. Contact:

Commander, Naval Base, Pearl Harbor, HI 96860.

    (11) Outlying areas of the Naval Supply Center, Pearl Harbor 
(including the Ewa Junction Storage Area, Ewa Drum Storage Area, Manana 
Supply Area, Pearl City Supply Area, and the Red Hill Fuel Storage 
Area). Contact:

Commander, Naval Base, Pearl Harbor, HI 96860.

    (12) Pump Stations (Halawa, Waiawa, Red Hill, and Barbers Point). 
Contact:

Commander, Naval Base, Pearl Harbor, HI 96860.

    (13) Halawa Water Storage Area; Barbers Point, Independent Water 
Supply Reservoir Site; Sewage Treatment Plant; Fort Kam (tri-service); 
Utility Corridors, Lynch Park (Ohana Nui). Contact:

Commander, Naval Base, Pearl Harbor, HI 96860.

    (14) Navy housing areas (including Moanalua Terrace, Radford 
Terrace, Makalapa, Maloelap, Halsey Terrace, Catlin Park, Hale Moku, 
Pearl Harbor, Naval Shipyard, McGrew Point, Halawa, Hokulani, Manana, 
Pearl City Peninsula, Red Hill, Iroquois Point, Puuloa, and Camp 
Stover). Contact:

Commander, Naval Base, Pearl Harbor, HI 96860.

    (b) On Kauai.
    (1) Pacific Missile Range Facility, Barking Sands, Kekaha.

Contact: Commanding Officer, Pacific Missile Range Facility, Hawaiian 
Area, Barking Sands, Kekaha, HI 96752.

    (c) Other areas.
    (1) Kaho'olawe Island. Contact:

Commander Naval Base, Pearl Harbor, HI 96860. Also see 32 CFR Part 763.

    (2) Kaula. Contact:

Commander Naval Base, Pearl Harbor, HI 96860.

[44 FR 76279, Dec. 26, 1979, as amended at 52 FR 20074, May 29, 1987]



  Subpart D_Entry Regulations for Naval Installations and Property in 
                               Puerto Rico

    Source: 46 FR 22756, Apr. 21, 1981, unless otherwise noted.



Sec. 770.35  Purpose.

    The purpose of this subpart is to promulgate standard regulations 
and procedures governing entry upon U.S. Naval installations and 
properties in Puerto Rico.



Sec. 770.36  Definitions.

    For purposes of these regulations, U.S. Naval installations and 
properties in Puerto Rico include, but are not limited to, the U.S. 
Naval Station, Roosevelt Roads (including the Vieques Island Eastern 
Annexes, consisting of Camp Garcia, the Eastern Maneuver Area, and the 
Inner Range); the Naval Ammunition Facility, Vieques Island; and the 
Naval Security Group Activity, Sabana Seca.



Sec. 770.37  Background.

    In accordance with 32 CFR 765.4, Naval installations and properties 
in Puerto Rico are not open to the general public, i.e., they are 
``closed'' military bases. Therefore admission to the general public is 
only by the permission of the respective Commanding Officers in 
accordance with their respective installation instructions.



Sec. 770.38  Entry restrictions.

    Except for duly authorized military personnel and civilian 
employees, including contract employees, of the United States in the 
performance of their official duties, entry upon any U.S. Navy 
installation or property in Puerto Rico at anytime, by any person for 
any purpose whatsoever without the advance consent of the Commanding 
Officer of the installation or property concerned, or an authorized 
representative of that Commanding Officer, is prohibited.

[[Page 478]]



Sec. 770.39  Entry procedures.

    (a) Any person or group of persons desiring to obtain advance 
consent for entry upon any U.S. Naval installation or property in Puerto 
Rico from the Commanding Officer of the Naval installation or property, 
or an authorized representative of that Commanding Officer, shall 
present themselves at an authorized entry gate at the installation or 
property concerned or, in the alternative, submit a request in writing 
to the following respective addresses:
    (1) Commanding Officer, U.S. Naval Station, Roosevelt Roads, Box 
3001, Ceiba, PR 00635.
    (2) Officer in Charge, Naval Ammunition Facility, Box 3027, Ceiba, 
PR 00635.
    (3) Commanding Officer, U.S. Naval Security Group Activity, Sabana 
Seca, PR 00749.
    (b) The above Commanding Officers are authorized to provide advance 
consent only for installations and properties under their command. 
Requests for entry authorization to any other facility or property shall 
be addressed to the following:

Commander, U.S. Naval Forces, Caribbean, Box 3037, Ceiba, PR 00635.
    (c) Each request for entry will be considered on an individual basis 
and consent will be determined by applicable installation entry 
instructions. Factors that will be considered include the purpose of 
visit, the size of party, duration of visit, destination, security 
safeguards, safety aspects, and the military resources necessary if the 
request is granted.



Sec. 770.40  Violations.

    Any person entering or remaining on U.S. Naval installations and 
properties in Puerto Rico, without the advance consent of those 
officials hereinabove enumerated, or their authorized representatives, 
shall be considered to be in violation of these regulations and 
therefore subject to the penalties prescribed by 18 U.S.C. 1382, which 
provides in pertinent part: ``Whoever, within the jurisdiction of the 
United States, goes upon any military, naval * * * reservation, post, 
fort, arsenal, yard, station, or installation, for any purpose 
prohibited by law or lawful regulation * * * shall be fined not more 
than $500.00 or imprisoned not more than six months, or both,'' or any 
other applicable laws or regulations.



 Subpart E_Base Entry Regulations for Naval Submarine Base New London, 
                           Groton, Connecticut

    Authority: 50 U.S.C. 797; DoD Directive 5200.8 of July 29, 1980; 
SECNAVINST 5511.36 of December 20, 1980; OPNAVINST 5510.45 of April 19, 
1971; 5 U.S.C. 301; 10 U.S.C. 6011; 32 CFR 700.702; 32 CFR 700.714.

    Source: 48 FR 5555, Feb. 7, 1983, unless otherwise noted.



Sec. 770.41  Purpose.

    The purpose of this subpart is to promulgate regulations and 
procedures governing entry upon Naval Submarine Base New London, and to 
prevent the interruption of the stated functions and operations of Naval 
Submarine Base New London, by the presence of any unauthorized person 
within the boundaries of Naval Submarine Base New London.



Sec. 770.42  Background.

    Naval Submarine Base New London maintains and operates facilities to 
support training and experimental operations of the submarine force 
including providing support to submarines, submarine rescue vessels, and 
assigned service and small craft; within capabilities, to provide 
support to other activities of the Navy and other governmental 
activities in the area; and to perform such other functions as may be 
directed by competent authority.



Sec. 770.43  Responsibility.

    The responsibility for proper identification and control of 
personnel and vehicle movement on the Naval Submarine Base New London is 
vested with the Security Officer.



Sec. 770.44  Entry restrictions.

    Except for military personnel, their authorized dependents, or 
guests, and employees of the United States in the performance of their 
official duties, entry upon Naval Submarine Base New London, or 
remaining thereon by any

[[Page 479]]

person for any purpose without the advance consent of the Commanding 
Officer, Naval Submarine Base New London, or his authorized 
representative is prohibited. See 18 U.S.C. 1382j, the Internal Security 
Act of 1950 (50 U.S.C. 797); Chief of Naval Operations Instruction 
5510.45B of April 19, 1971; and Secretary of the Navy Instruction 
5511.36 of December 20, 1980.



Sec. 770.45  Entry procedures.

    (a) Any individual person or group of persons desiring the advance 
consent of the Commanding Officer, Naval Submarine Base New London, or 
his authorized representative shall, in writing, submit a request to the 
Commanding Officer, Naval Submarine Base New London, at the following 
address: Commanding Officer (Attn: Security Officer), Box 38, Naval 
Submarine Base New London, Groton, CT 06349.
    (b) Each request for entry will be considered on an individual basis 
weighing the operational, security, and safety requirements of Naval 
Submarine Base New London with the purpose, size of party, duration of 
visit, destination, and military resources which would be required by 
the granting of the request.



Sec. 770.46  Violations.

    (a) Any person entering or remaining on Naval Submarine Base New 
London, without the consent of the Commanding Officer, Naval Submarine 
Base New London or his authorized representative, shall be subject to 
the penalties prescribed in 18 U.S.C. 1382, which provides in pertinent 
part:

    Whoever, within the jurisdiction of the United States, goes upon any 
military, naval . . . reservation, post, fort, arsenal, yard, station, 
or installation, for any purpose prohibited by law or lawful regulation 
. . . shall be fined not more than $500 or imprisoned not more than six 
months or both.

    (b) Moreover, any person who willfully violates this subpart is 
subject to a fine not to exceed $5000 or imprisonment for not more than 
one (1) year or both as provided in 50 U.S.C. 797.



    Subpart F_Base Entry Regulations for Puget Sound Naval Shipyard, 
                          Bremerton, Washington

    Authority: 5 U.S.C. 301; 10 U.S.C. 6011; 50 U.S.C. 797; DoD 
Directive 5200.8 of April 25, 1991; SECNAVINST 5511.36A of July 21, 
1992; OPNAVINST 5530.14C of December 10, 1998; 32 CFR 700.702; 32 CFR 
700.714.

    Source: 65 FR 53592, Sept. 5, 2000, unless otherwise noted.



Sec. 770.47  Purpose.

    To promulgate regulations and procedures governing entry upon Puget 
Sound Naval Shipyard, and to prevent the interruption of the functions 
and operations of Puget Sound Naval Shipyard by the presence of any 
unauthorized person within the boundaries of the Puget Sound Naval 
Shipyard.



Sec. 770.48  Definition.

    For the purpose of this subpart, Puget Sound Shipyard shall include 
that area of land, whether or not fenced or covered by water, in Kitsap 
County in the State of Washington under the operational control of the 
Commander, Puget Sound Naval Shipyard or any tenant command. This 
includes all such areas regardless of whether the areas are being used 
for purely military purposes, for housing, for support purposes, or for 
any other purpose by a naval command or other Federal agency.



Sec. 770.49  Background.

    (a) Puget Sound Naval Shipyard is a major naval ship repair 
facility, with operational requirements to complete repairs and overhaul 
of conventionally powered and nuclear powered naval vessels. It is vital 
to national defense that the operation and use of the shipyard be 
continued without interruption. Additionally, most of Puget Sound Naval 
Shipyard is dedicated to heavy industrial activity where potentially 
hazardous conditions exist.
    (b) For prevention of the interruption of the stated use of Puget 
Sound Naval Shipyard and prevention of injury to any unsupervised or 
unauthorized person as a consequence of the hazardous conditions that 
exist, as well as for other reasons, it is essential to restrict

[[Page 480]]

entry upon Puget Sound Naval Shipyard to authorized persons only.



Sec. 770.50  Entry restrictions.

    Except for military personnel and civilian employees of the United 
States in the performance of their official duties, entry upon Puget 
Sound Naval Shipyard, or remaining thereon by any person for any purpose 
without advance consent of the Commander, Puget Sound Naval Shipyard or 
his/her authorized representative, is prohibited.



Sec. 770.51  Entry procedures.

    (a) Any person or group of persons desiring the advance consent of 
the Commander, Puget Sound Naval Shipyard, or his authorized 
representative, shall, in writing, submit a request to the Commander, 
Puget Sound Naval Shipyard, at the following address: Commander, Puget 
Sound Naval Shipyard, 1400 Farragut Avenue, Bremerton, WA 98314-5001.



Sec. 770.52  Violations.

    (a) Any person entering or remaining on Puget Sound Naval Shipyard, 
without the consent of the Commander, Puget Sound Naval Shipyard, or an 
authorized representative, shall be subject to the penalties prescribed 
by 18 U.S.C. 1382, which provides in pertinent part:

    Whoever, within the jurisdiction of the United States, goes upon any 
military, naval * * * reservation, post, fort, arsenal, yard, station or 
installation, for any purpose prohibited by law or lawful regulation * * 
* shall be fined not more than $500.00 or imprisoned not more than six 
months or both.

    (b) Moreover, any person who willfully violates this subpart is 
subject to a fine not to exceed $5000.00 or imprisonment for not more 
than one year or both as provided in 50 U.S.C. 797.



 Subpart G_Entry Regulations for Portsmouth Naval Shipyard, Portsmouth, 
                              New Hampshire

    Authority: 5 U.S.C. 301; 10 U.S.C. 6011; 50 U.S.C. 797; DoD 
Directive 5200.8 of April 25, 1991; SECNAVINST 5511.36A of July 21, 
1992; NAVCOMSYSCOMINST 5510.2B of April 18, 1990; 32 CFR 700.702; 32 CFR 
700.714.

    Source: 49 FR 34003, Aug. 28, 1984, unless otherwise noted.



Sec. 770.53  Purpose.

    To promulgate regulations and procedures governing entry upon 
Portsmouth Naval Shipyard, and to prevent the interruption of the 
functions and operations of Portsmouth Naval Shipyard by the presence of 
any unauthorized person within the boundaries of Portsmouth Naval 
Shipyard.



Sec. 770.54  Background.

    (a) Portsmouth Naval Shipyard maintains and operates facilities ``to 
provide logistic support for assigned ships and service craft; to 
perform authorized work in connection with construction, conversion, 
overhaul, repair, alteration, drydocking, and outfitting of ships and 
craft, as assigned; to perform manufacturing, research, development, and 
test work, as assigned; and to provide services and material to other 
activities and units, as directed by competent authority.''
    (b) Portsmouth Naval Shipyard is a major naval ship repair facility, 
with operational requirements to complete repairs and overhaul of 
conventionally powered and nuclear-powered naval vessels. It is vital to 
national defense that the operation and use of the shipyard be continued 
without undue or unnecessary interruptions. Additionally, most of 
Portsmouth Naval Shipyard is dedicated to heavy industrial activity 
where potentially hazardous conditions exist.
    (c) For prevention of interruption of the stated use of the base by 
the presence of any unauthorized person within the boundaries of 
Portsmouth Naval Shipyard, and prevention of injury to any such 
unsupervised person as a consequence of the dangerous conditions which 
exist, as well as for other reasons, it is essential to restrict entry 
upon Portsmouth Naval Shipyard to authorized persons only.



Sec. 770.55  Responsibility.

    The responsibility for proper identification and control of 
personnel and vehicle movement on the Portsmouth

[[Page 481]]

Naval Shipyard is vested with the Shipyard Security Manager (Code 1700).

[49 FR 34003, Aug. 28, 1984, as amended at 65 FR 53593, Sept. 5, 2000]



Sec. 770.56  Entry restrictions.

    Except for military personnel, their authorized dependents, or 
guests, and civilian employees of the United States in the performance 
of their official duties, entry upon Portsmouth Naval Shipyard, or 
remaining thereon by any person for any purpose without the advance 
consent of the Commander, Portsmouth Naval Shipyard, or his authorized 
representative, is prohibited. In many instances, Commander, Naval Sea 
Systems Command, approval is required.



Sec. 770.57  Entry procedures.

    (a) Any person or group desiring the advance consent of the 
Commander, Portsmouth Naval Shipyard, or his authorized representative, 
shall, in writing, submit a request to the Commander, Portsmouth Naval 
Shipyard, at the following address: Commander, Portsmouth Naval 
Shipyard, Portsmouth, NH 03801, Attention: Security Manager (Code 1700). 
For groups, foreign citizens, and news media, the request must be 
forwarded to the Commander, Naval Sea Systems Command, for approval.
    (b) Each request for entry will be considered on an individual 
basis, weighing the operational, security, and safety requirements of 
Portsmouth Naval Shipyard, with the purpose, size of party, duration of 
visit, destination, and military resources which would be required by 
the granting of the request.

[49 FR 34003, Aug. 28, 1984, as amended at 65 FR 53593, Sept. 5, 2000]



Sec. 770.58  Violations.

    (a) Any person entering or remaining on Portsmouth Naval Shipyard 
without the consent of the Commander, Portsmouth Naval Shipyard, or his 
authorized representative, shall be subject to the penalties prescribed 
in 18 U.S.C. 1382, which provides in pertinent part:

    Whoever, within the jurisdiction of the United States, goes upon any 
military, naval . . . reservation, post, fort, arsenal, yard, station, 
or installation, for any purpose prohibited by law or lawful regulation 
. . . Shall be fined not more than $500 or imprisoned not more than six 
months, or both.

    (b) Moreover, any person who willfully violates this instruction is 
subject to a fine not to exceed $5000 or imprisonment for not more than 
one (1) year, or both, as provided by 50 U.S.C. 797.

                        PARTS 771	774 [RESERVED]



PART 775_PROCEDURES FOR IMPLEMENTING THE NATIONAL ENVIRONMENTAL POLICY ACT--Table of Contents




Sec.
775.1 Purpose and scope.
775.2 Definitions.
775.3 Policy.
775.4 Responsibilities.
775.5 Classified actions.
775.6 Planning considerations.
775.7 Time limits for environmental documents.
775.8 Scoping.
775.9 Documentation and analysis.
775.10 Relations with state, local and regional agencies.
775.11 Public participation.
775.12 Delegation of authority.

    Authority: 5 U.S.C. 301; 42 U.S.C. 4321-4361; 40 CFR parts 1500-
1508.

    Source: 55 FR 33899, Aug. 20, 1990, unless otherwise noted.



Sec. 775.1  Purpose and scope.

    (a) To implement the provisions of the National Environmental Policy 
Act (NEPA), 42 U.S.C. 4321 et seq., the Council on Environmental Quality 
Regulations for Implementing the Procedural Provisions of NEPA, 40 CFR 
1500-1508, and the Department of Defense Instruction on Environmental 
Planning and Analysis, DODINST 4715.9, and to assign responsibilities 
within the Department of the Navy (DON) for preparation, review, and 
approval of environmental documents prepared under NEPA.
    (b) The policies and responsibilities set out in this part apply to 
the DON, including the Office of the Secretary of the Navy, and Navy and 
Marine Corps commands, operating forces, shore establishments, and 
reserve components. This part is limited to the actions of

[[Page 482]]

these elements with environmental effects in the United States, its 
territories, and possessions.

[69 FR 8109, Feb. 23, 2004]



Sec. 775.2  Definitions.

    (a) Action proponent. The commander, commanding officer, or civilian 
director of a unit, activity, or organization who initiates a proposal 
for action, as defined in 40 CFR 1508.23, and who has command and 
control authority over the action once it is authorized. For some 
actions, the action proponent will also serve as the decision-making 
authority for that action. In specific circumstances, the action 
proponent and decision maker may be identified in Navy Regulations, 
other SECNAV Instructions, operational instructions and orders, 
acquisition instructions, and other sources which set out authority and 
responsibility within the DON.
    (b) Environmental Impact Statement (EIS). An environmental document 
prepared according to the requirements of Council on Environmental 
Quality (CEQ) regulations (40 CFR parts 1500-1508) for a major action 
that will have a significant effect on the quality of the human 
environment.
    (c) Environmental Assessment (EA). A concise document prepared 
according to the requirements of 40 CFR parts 1500-1508 that briefly 
provides sufficient evidence and analysis for determining whether to 
prepare an EIS. An EA aids compliance with NEPA when no EIS is necessary 
and facilitates preparation of an EIS when one is necessary.
    (d) Categorical Exclusion (CATEX). A published category of actions 
that do not individually or cumulatively have a significant impact on 
the human environment under normal circumstances, and, therefore, do not 
require either an environmental assessment or an environmental impact 
statement.
    (e) Record of Decision (ROD). An environmental document signed by an 
appropriate official of the DON. A ROD sets out a concise summary of the 
final decision and selected measures for mitigation (if any) of adverse 
environmental impacts of the alternative chosen from those considered in 
an EIS.
    (f) Finding of No Significant Impact (FONSI). A document that sets 
out the reasons why an action not otherwise categorically excluded will 
not have a significant impact on the human environment, and for which an 
EIS will not therefore be prepared. A FONSI will include the EA or a 
summary of it and shall note any other environmental documents related 
to it. A FONSI may be one result of review of an EA.

[69 FR 8109, Feb. 23, 2004]



Sec. 775.3  Policy.

    (a) It is the DON policy regarding NEPA, consistent with its mission 
and regulations and the environmental laws and regulations of the United 
States, to:
    (1) Initiate the NEPA processes at the earliest possible time to be 
an effective decision making tool in the course of identifying a 
proposed action.
    (2) Develop and carefully consider a reasonable range of 
alternatives for achieving the purpose(s) of proposed actions.
    (3) Assign responsibility for preparation of action specific 
environmental analysis under NEPA to the action proponent. The action 
proponent should understand the plans, analyses, and environmental 
documents related to that action.
    (b) NEPA is intended to ensure that environmental issues are fully 
considered and incorporated into the Federal decision making process. 
Consequently, actions for which the DON has no decision-making authority 
and no discretion in implementing the action, such as those carried out 
under a non discretionary mandate from Congress (e.g., congressional 
direction to transfer Federal property to a particular entity for a 
particular purpose that leaves DON no discretion in how the transfer 
will be implemented) or as an operation of law (e.g., reversionary 
interests in land recorded at the time the property was obtained and 
that provide no discretion in whether to trigger the reversion or how 
the reversion will be implemented), require no analysis or documentation 
under NEPA or its implementing regulations.

[69 FR 8109, Feb. 23, 2004]

[[Page 483]]



Sec. 775.4  Responsibilities.

    (a) The Assistant Secretary of the Navy (Installations and 
Environment) (ASN (I&E)) shall:
    (1) Act as principal liaison with the Office of the Secretary of 
Defense, the Council on Environmental Quality, the Environmental 
Protection Agency, other Federal agencies, Congress, state governments, 
and the public with respect to significant NEPA matters.
    (2) Direct the preparation of appropriate environmental analysis and 
documentation and, with respect to those matters governed by SECNAV 
Instruction 5000.2 series, advise the Assistant Secretary of the Navy 
(Research Development and Acquisition) (ASN (RD&A)) concerning 
environmental issues and the appropriate level of environmental analysis 
and NEPA documentation needed in any particular circumstance.
    (3) Except for proposed acquisition-related actions addressed in 
paragraph (b)(2) of this section, review, sign, and approve for 
publication, as appropriate, documents prepared under NEPA.
    (4) Establish and publish a list of categorical exclusions for the 
DON.
    (b) The Assistant Secretary of the Navy (Research, Development and 
Acquisition (ASN (RD&A)) shall, in accordance with SECNAV Instruction 
5000.2 series:
    (1) Ensure that DON acquisition programs, research programs, and 
procurements comply with NEPA.
    (2) Review, sign, and approve for publication, as appropriate, 
environmental documents prepared under NEPA for proposed acquisition or 
research and development related actions.
    (c) The General Counsel of the Navy and the Judge Advocate General 
of the Navy shall:
    (1) Ensure that legal advice for compliance with environmental 
planning requirements is available to all decision-makers.
    (2) Advise the Secretary of the Navy, the Chief of Naval Operations, 
and the Commandant of the Marine Corps as to the legal requirements that 
must be met, and the conduct and disposition of all legal matters 
arising in the context of environmental planning.
    (d) The Chief of Naval Operations (CNO) and the Commandant of the 
Marine Corps (CMC) shall:
    (1) Implement effective environmental planning throughout their 
respective services.
    (2) Prepare and issue instructions or orders to implement 
environmental planning policies of the DON. Forward proposed CNO/CMC 
environmental planning instructions or orders to ASN (I&E) and, when 
appropriate, ASN (RD&A) for review and comment prior to issuance.
    (3) Make decisions on environmental assessments as to whether a 
Finding of No Significant Impact is appropriate or preparation of an 
environmental impact statement is required.
    (4) Ensure that subordinate commands establish procedures for 
implementing mitigation measures described in NEPA documents.
    (5) Provide coordination as required for the preparation of NEPA 
documents for actions initiated by non-DON/DOD entities, state or local 
agencies and/or private individuals for which service involvement may be 
reasonably foreseen.
    (6) Bring environmental planning matters that involve controversial 
issues or which may affect environmental planning policies or their 
implementation to the attention of ASN (I&E) and, where appropriate, ASN 
(RD&A) for coordination and determination.
    (7) Notify ASN (I&E), and when appropriate, ASN (RD&A) of any 
proposed EIS, and of any EA that may involve potentially sensitive 
public interest issues. EIS notification shall occur prior to commencing 
NEPA document preparation or receiving any public or regulatory agency 
involvement. EA notification shall be made as soon as it becomes 
apparent that potentially sensitive public issues are involved.

[69 FR 8109, Feb. 23, 2004]



Sec. 775.5  Classified actions.

    (a) The fact that a proposed action is of a classified nature does 
not relieve the proponent of the action from complying with NEPA and the 
CEQ regulations. Therefore, environmental documents shall be prepared, 
safeguarded

[[Page 484]]

and disseminated in accordance with the requirements applicable to 
classified information. When feasible, these documents shall be 
organized in such a manner that classified portions are included as 
appendices so that unclassified portions can be made available to the 
public. Review of classified NEPA documentation will be coordinated with 
the Environmental Protection Agency (EPA) to fulfill requirements of 
section 309 of the Clean Air Act (42 U.S.C. 7609 et seq.).
    (b) It should be noted that a classified EA/EIS serves the same 
``informed decisionmaking'' purpose as does a published unclassified EA/
EIS. Even though the classified EA/EIS does not undergo general public 
review and comment, it must still be part of the information package to 
be considered by the decisionmaker for the proposed action. The content 
of a classified EA/EIS (or the classified portion of a public EA/EIS) 
will therefore meet the same content requirements applicable to a 
published unclassified EA/EIS.



Sec. 775.6  Planning considerations.

    (a) An EIS must be prepared for proposed major Federal actions that 
will have significant impacts on the human environment. The agency 
decision in the case of an EIS is reflected in a ROD.
    (b) Where a proposed major Federal action has the potential for 
significantly affecting the human environment, but it is not clear 
whether the impacts of that particular action will in fact be 
significant, or where the nature of an action precludes use of a 
categorical exclusion, an EA may be used to assist the agency in 
determining whether to prepare an EIS. If the agency determination in 
the case of an EA is that there is no significant impact on the 
environment, the findings will be reflected in a FONSI. If the EA 
determines that the proposed action is likely to significantly affect 
the environment (even after mitigation), then an EIS will be prepared. 
An EA also may be used where it otherwise will aid compliance with NEPA.
    (c) CEQ regulations (40 CFR 1508.18(a)) define major federal actions 
subject to evaluation under NEPA to include, among other things, ``new 
and continuing activities''. The term new activities is intended to 
encompass future actions, i.e., those which are not ongoing at the time 
of the proposal. The term continuing activities which may necessitate 
the preparation of a NEPA document will be applied by the Department of 
Navy to include activities which are presently being carried out in 
fulfillment of the Navy mission and function, including existing 
training functions, where:
    (1) The currently occurring environmental effects of which have not 
been previously evaluated in a NEPA document, and there is a discovery 
that substantial environmental degradation is occurring, or is likely to 
occur, as a result of ongoing operations (e.g., a discovery that 
significant beach erosion is occurring as a result of continuing 
amphibious exercises, new designation of wetland habitat, or discovery 
of an endangered species residing in the area of the activity), or
    (2) There is a discovery that the environmental effects of an 
ongoing activity are significantly and qualitatively different or more 
severe than predicted in a NEPA document prepared in connection with the 
commencement of the activity.

A substantial change in a continuing activity (such as a substantial 
change in operational tempo, area of use, or in methodology/equipment) 
which has the potential for significant environmental impacts should be 
considered a proposal for a new action and be documented accordingly. 
Preparation of a NEPA document is not a necessary prerequisite, nor a 
substitute, for compliance with other environmental laws.
    (d) Where emergency circumstances require immediate action, for the 
protection of lives and for public health and safety, which could result 
in significant harm to the environment, the activity Commanding Officer 
or his designee shall report the emergency action to CNO (OP-44E)/CMC 
(LFL) who will facilitate the appropriate consultation with CEQ as soon 
as practicable.
    (e) A categorical exclusion (CATEX), as defined and listed in this 
regulation, may be used to exclude a proposed action from further 
analysis. Even though a proposed action generally is

[[Page 485]]

covered by a listed categorical exclusion, a categorical exclusion will 
not be used if the proposed action:
    (1) Would adversely affect public health or safety;
    (2) Involves effects on the human environment that are highly 
uncertain, involve unique or unknown risks, or which are scientifically 
controversial;
    (3) Establishes precedents or makes decisions in principle for 
future actions that have the potential for significant impacts;
    (4) Threatens a violation of Federal, state, or local environmental 
laws applicable to the Department of the Navy; or
    (5) Involves an action that, as determined in coordination with the 
appropriate resource agency, may:
    (i) Have an adverse effect on Federally listed endangered/threatened 
species or marine mammals;
    (ii) Have an adverse effect on coral reefs or on Federally 
designated wilderness areas, wildlife refuges, marine sanctuaries, or 
parklands;
    (iii) Adversely affect the size, function or biological value of 
wetlands and is not covered by a nation-wide or regional permit;
    (iv) Have an adverse effect on archaeological resources or resources 
(including but not limited to ships, aircraft, vessels and equipment) 
listed or determined eligible for listing on the National Register of 
Historic Places; or
    (v) Result in an uncontrolled or unpermitted release of hazardous 
substances or require a conformity determination under standards of the 
Clean Air Act General Conformity Rule.
    (f) Categorical exclusions. Subject to the criteria in paragraph (e) 
above, the following categories of actions are excluded from further 
analysis under NEPA. The CNO and CMC shall determine whether a decision 
to forego preparation of an EA or EIS on the basis of one or more 
categorical exclusions must be documented in an administrative record 
and the format for such record.
    (1) Routine fiscal and administrative activities, including 
administration of contracts;
    (2) Routine law and order activities performed by military 
personnel, military police, or other security personnel, including 
physical plant protection and security;
    (3) Routine use and operation of existing facilities, laboratories, 
and equipment;
    (4) Administrative studies, surveys, and data collection;
    (5) Issuance or modification of administrative procedures, 
regulations, directives, manuals, or policy;
    (6) Military ceremonies;
    (7) Routine procurement of goods and services conducted in 
accordance with applicable procurement regulations, executive orders, 
and policies;
    (8) Routine repair and maintenance of buildings, facilities, 
vessels, aircraft, and equipment associated with existing operations and 
activities (e.g., localized pest management activities, minor erosion 
control measures, painting, refitting);
    (9) Training of an administrative or classroom nature;
    (10) Routine personnel actions;
    (11) Routine movement of mobile assets (such as ships and aircraft) 
for homeport reassignments, for repair/overhaul, or to train/perform as 
operational groups where no new support facilities are required;
    (12) Routine procurement, management, storage, handling, 
installation, and disposal of commercial items, where the items are used 
and handled in accordance with applicable regulations (e.g., 
consumables, electronic components, computer equipment, pumps);
    (13) Routine recreational/welfare activities;
    (14) Alteration of and additions to existing buildings, facilities, 
structures, vessels, aircraft, and equipment to conform or provide 
conforming use specifically required by new or existing applicable 
legislation or regulations (e.g., hush houses for aircraft engines, 
scrubbers for air emissions, improvements to storm water and sanitary 
and industrial wastewater collection and treatment systems, and 
installation of fire fighting equipment);
    (15) The modification of existing systems or equipment when the 
environmental effects will remain substantially the same and the use is 
consistent with applicable regulations;

[[Page 486]]

    (16) Routine movement, handling and distribution of materials, 
including hazardous materials/wastes that are moved, handled, or 
distributed in accordance with applicable regulations;
    (17) New activities conducted at established laboratories and plants 
(including contractor-operated laboratories and plants) where all 
airborne emissions, waterborne effluent, external ionizing and non-
ionizing radiation levels, outdoor noise, and solid and bulk waste 
disposal practices are in compliance with existing applicable Federal, 
state, and local laws and regulations;
    (18) Studies, data, and information gathering that involve no 
permanent physical change to the environment (e.g., topographic surveys, 
wetlands mapping, surveys for evaluating environmental damage, and 
engineering efforts to support environmental analyses);
    (19) Temporary placement and use of simulated target fields (e.g., 
inert mines, simulated mines, or passive hydrophones) in fresh, 
estuarine, and marine waters for the purpose of non-explosive military 
training exercises or research, development, test and evaluation;
    (20) Installation and operation of passive scientific measurement 
devices (e.g., antennae, tide gauges, weighted hydrophones, salinity 
measurement devices, and water quality measurement devices) where use 
will not result in changes in operations tempo and is consistent with 
applicable regulations;
    (21) Short-term increases in air operations up to 50 percent of the 
typical operation rate, or increases of 50 operations per day, whichever 
is greater. Frequent use of this CATEX at an installation requires 
further analysis to determine there are no cumulative impacts;
    (22) Decommissioning, disposal, or transfer of Navy vessels, 
aircraft, vehicles, and equipment when conducted in accordance with 
applicable regulations, including those regulations applying to removal 
of hazardous materials;
    (23) Non-routine repair and renovation, and donation or other 
transfer of structures, vessels, aircraft, vehicles, landscapes or other 
contributing elements of facilities listed or eligible for listing on 
the National Register of Historic Places which will result in no adverse 
effect;
    (24) Hosting or participating in public events (e.g., air shows, 
open houses, Earth Day events, and athletic events) where no permanent 
changes to existing infrastructure (e.g., road systems, parking and 
sanitation systems) are required to accommodate all aspects of the 
event;
    (25) Military training conducted on or over nonmilitary land or 
water areas, where such training is consistent with the type and tempo 
of existing non-military airspace, land, and water use (e.g., night 
compass training, forced marches along trails, roads and highways, use 
of permanently established ranges, use of public waterways, or use of 
civilian airfields);
    (26) Transfer of real property from DON to another military 
department or to another Federal agency;
    (27) Receipt of property from another Federal agency when there is 
no anticipated or proposed substantial change in land use;
    (28) Minor land acquisitions or disposals where anticipated or 
proposed land use is similar to existing land use and zoning, both in 
type and intensity;
    (29) Disposal of excess easement interests to the underlying fee 
owner;
    (30) Renewals and minor amendments of existing real estate grants 
for use of Government-owned real property where no significant change in 
land use is anticipated;
    (31) Land withdrawal continuances or extensions that merely 
establish time periods and where there is no significant change in land 
use;
    (32) Renewals and/or initial real estate in grants and out grants 
involving existing facilities and land wherein use does not change 
significantly (e.g., leasing of federally-owned or privately-owned 
housing or office space, and agricultural out leases);
    (33) Grants of license, easement, or similar arrangements for the 
use of existing rights-of-way or incidental easements complementing the 
use of existing rights-of-way for use by vehicles (not to include 
significant increases in vehicle loading); electrical, telephone,

[[Page 487]]

and other transmission and communication lines; water, wastewater, storm 
water, and irrigation pipelines, pumping stations, and facilities; and 
for similar utility and transportation uses;
    (34) New construction that is similar to existing land use and, when 
completed, the use or operation of which complies with existing 
regulatory requirements (e.g., a building within a cantonment area with 
associated discharges/runoff within existing handling capacities);
    (35) Demolition, disposal, or improvements involving buildings or 
structures when done in accordance with applicable regulations including 
those regulations applying to removal of asbestos, PCBs, and other 
hazardous materials;
    (36) Acquisition, installation, and operation of utility (e.g., 
water, sewer, electrical) and communication systems (e.g., data 
processing cable and similar electronic equipment) which use existing 
rights of way, easements, distribution systems, and/or facilities;
    (37) Decisions to close facilities, decommission equipment, and/or 
temporarily discontinue use of facilities or equipment, where the 
facility or equipment is not used to prevent/control environmental 
impacts);
    (38) Maintenance dredging and debris disposal where no new depths 
are required, applicable permits are secured, and disposal will be at an 
approved disposal site;
    (39) Relocation of personnel into existing Federally-owned or 
commercially leased space that does not involve a substantial change 
affecting the supporting infrastructure (e.g., no increase in vehicular 
traffic beyond the capacity of the supporting road network to 
accommodate such an increase);
    (40) Pre-lease upland exploration activities for oil, gas or 
geothermal reserves, (e.g., geophysical surveys);
    (41) Installation of devices to protect human or animal life (e.g., 
raptor electrocution prevention devices, fencing to restrict wildlife 
movement onto airfields, and fencing and grating to prevent accidental 
entry to hazardous areas);
    (42) Reintroduction of endemic or native species (other than 
endangered or threatened species) into their historic habitat when no 
substantial site preparation is involved;
    (43) Temporary closure of public access to DON property in order to 
protect human or animal life;
    (44) Routine testing and evaluation of military equipment on a 
military reservation or an established range, restricted area, or 
operating area; similar in type, intensity and setting, including 
physical location and time of year, to other actions for which it has 
been determined, through NEPA analysis where the DON was a lead or 
cooperating agency, that there are no significant impacts; and conducted 
in accordance with all applicable standard operating procedures 
protective of the environment;
    (45) Routine military training associated with transits, 
maneuvering, safety and engineering drills, replenishments, flight 
operations, and weapons systems conducted at the unit or minor exercise 
level; similar in type, intensity and setting, including physical 
location and time of year, to other actions for which it has been 
determined, through NEPA analysis where the DON was a lead or 
cooperating agency, that there are no significant impacts; and conducted 
in accordance with all applicable standard operating procedures 
protective of the environment.

[55 FR 33899, Aug. 20, 1990, as amended at 55 FR 39960, Oct. 1, 1990; 69 
FR 8110, Feb. 23, 2004]



Sec. 775.7  Time limits for environmental documents.

    (a) The timing of the preparation, circulation, submission and 
public availability of environmental documents is important in achieving 
the purposes of NEPA. Therefore, the NEPA process shall begin as early 
as possible in the decisionmaking process.
    (b) The EPA publishes a weekly notice in the Federal Register of 
environmental impact statements filed during the preceding week. The 
minimum time periods set forth below shall be calculated from the date 
of publication of notices in the Federal Register. No decision on the 
proposed action may take place until the later of the following dates:

[[Page 488]]

    (1) Ninety days after publication of the notice of availability for 
a draft environmental impact statement (DEIS). Draft statements shall be 
available to the public for 15 days prior to any public hearing on the 
DEIS (40 CFR 1506.6(c)(2)).
    (2) Thirty days after publication of the notice of availability for 
a final environmental impact statement (FEIS). If the FEIS is available 
to the public within ninety days from the availability of the DEIS, the 
minimum thirty day period and the minimum nintey day period may run 
concurrently. However, not less than 45 days from publication of notice 
of filing shall be allowed for public comment on draft statements prior 
to filing of the FEIS (40 CFR 1506.10(c)).



Sec. 775.8  Scoping.

    As soon as practicable after the decision to prepare an EIS is made, 
an early and open process called ``scoping'' shall be used to determine 
the scope of issues to be addressed and to identify the significant 
issues to be analyzed in depth related to the proposed action (40 CFR 
1501.7). This process also serves to deemphasize insignificant issues, 
narrowing the scope of the EIS process accordingly (40 CFR 1500.4(g)). 
Scoping results in the identification by the proponent of the range of 
actions, alternatives, and impacts to be considered in the EIS (40 CFR 
1508.25). For any action, this scope may depend on the relationship of 
the proposed action to other existing environmental documentation.



Sec. 775.9  Documentation and analysis.

    (a) Environmental documentation and analyses required by this rule 
should be integrated as much as practicable with any environmental 
studies, surveys and impact analyses required by other environmental 
review laws and executive orders (40 CFR 1502.25). When a cost-benefit 
analysis has been prepared in conjunction with an action which also 
requires a NEPA analysis, the cost-benefit analysis shall be integrated 
into the environmental documentation.
    (b) CEQ regulations encourage the use of tiering whenever 
appropriate to eliminate repetitive discussions of the same issues and 
to focus on the actual issues ripe for discussion at each level of 
environmental review (40 CFR 1502.20). Tiering is accomplished through 
the preparation of a broad programmatic environmental impact statement 
discussing the impacts of a wide ranging or long term stepped program 
followed by narrower statements or environmental assessments 
concentrating solely on issues specific to the analysis subsequently 
prepared (40 CFR 1508.28).
    (1) Appropriate use of tiering: Tiering is appropriate when it helps 
the lead agency to focus on issues which are ripe for decision and 
exclude from consideration issues already decided or not yet ripe. (40 
CFR 1508.28(b).) The sequence of statements or analyses is:
    (i) From a broad program, plan, or policy environmental impact 
statement (not necessarily site specific) to a subordinate/smaller scope 
program, plan, or policy statement or analysis (usually site specific) 
(40 CFR 1508.28 (a)).
    (ii) From an environmental impact statement on a specific action at 
an early stage (such as need and site selection) to a supplement (which 
is preferred) or a subsequent statement or analysis at a later stage 
(such as environmental mitigation) (40 CFR 1508.28(b)).
    (iii) In addition to the discussion required by these regulations 
for inclusion in environmental impact statements, the programmatic 
environmental impact statement shall also discuss:
    (A) A description of the subsequent stages or sites that may 
ultimately be proposed in as much detail as presently possible;
    (B) All of the implementing factors of the program that can be 
ascertained at the time of impact statement preparation;
    (C) All of the environmental impacts that will result from 
establishment of the overall program itself that will be similar for 
subsequent stages or sites as further implementation plans are proposed; 
and
    (D) All of the appropriate mitigation measures that will be 
similarly proposed for subsequent stages or sites.

[[Page 489]]

    (iv) The analytical document used for stage or site specific 
analysis subsequent to the programmatic environmental impact statement 
shall also be an environmental impact statement when the subsequent tier 
itself may have a significant impact on the quality of the human 
environment or when an impact statement is otherwise required. 
Otherwise, it is appropriate to document the tiered analysis with an 
environmental assessment to fully assess the need for further 
documentation or whether a FONSI would be appropriate.
    (2) [Reserved]



Sec. 775.10  Relations with state, local and regional agencies.

    Close and harmonious planning relations with local and regional 
agencies and planning commissions of adjacent cities, counties, and 
states, for cooperation and resolution of mutual land use and 
environment-related problems should be established. Additional 
coordination may be obtained from state and area-wide planning and 
development ``clearinghouses''. These are agencies which have been 
established pursuant to Executive Order 12372 of July 14, 1982 (3 CFR, 
1982 Comp., p. 197). The clearinghouses serve a review and coordination 
function for Federal activities and the proponent may gain insights on 
other agencies' approaches to environmental assessments, surveys, and 
studies in relation to any current proposal. The clearinghouses would 
also be able to assist in identifying possible participants in scoping 
procedures for projects requiring an EIS.



Sec. 775.11  Public participation.

    The importance of public participation (40 CFR 1501.4(b)) in 
preparing environmental assessments is clearly recognized and it is 
recommended that commands proposing an action develop a plan to ensure 
appropriate communication with affected and interested parties. The 
command Public Affairs Office can provide assistance with developing and 
implementing this plan. In determining the extent to which public 
participation is practicable, the following are among the factors to be 
weighed by the command:
    (a) The magnitude of the environmental considerations associated 
with the proposed action;
    (b) The extent of anticipated public interest; and
    (c) Any relevant questions of national security and classification.



Sec. 775.12  Delegation of authority.

    (a) The ASN (I&E) may delegate his/her responsibilities under this 
instruction for review, approval and/or signature of EISs and RODs to 
appropriate Executive Schedule/Senior Executive Service civilians or 
flag/general officers. ASN (I&E), CNO, and CMC may delegate all other 
responsibilities assigned in this instruction as deemed appropriate.
    (b) The ASN (RD&A) delegation of authority for approval and 
signature of documents under NEPA is contained in SECNAV Instruction 
5000.2 series, which sets out policies and procedures for acquisition 
programs.
    (c) Previously authorized delegations of authority are continued 
until revised or withdrawn.

[69 FR 8112, Feb. 23, 2004]



PART 776_PROFESSIONAL CONDUCT OF ATTORNEYS PRACTICING UNDER THE COGNIZANCE AND SUPERVISION OF THE JUDGE ADVOCATE GENERAL--Table of Contents




                            Subpart A_General

Sec.
776.1 Purpose.
776.2 Applicability.
776.3 Policy.
776.4 Attorney-client relationships.
776.5 Judicial conduct.
776.6 Conflict.
776.7 Reporting requirements.
776.8 Professional Responsibility Committee.
776.9 Rules Counsel.
776.10 Informal ethics advice.
776.11 Outside part-time practice of law.
776.12 Maintenance of files.
776.13-776.17 [Reserved]

                 Subpart B_Rules of Professional Conduct

776.18 Preamble.
776.19 Principles.
776.20 Competence.

[[Page 490]]

776.21 Establishment and scope of representation.
776.22 Diligence.
776.23 Communication.
776.24 Fees.
776.25 Confidentiality of information.
776.26 Conflict of interest: General rule.
776.27 Conflict of interests: Prohibited transactions.
776.28 Conflict of interest: Former client.
776.29 Imputed disqualification: General rule.
776.30 Successive Government and private employment.
776.31 Former judge or arbitrator.
776.32 Department of Navy as client.
776.33 Client under a disability.
776.34 Safekeeping property.
776.35 Declining or terminating representation.
776.36 Prohibited sexual relations.
776.37 Advisor.
776.38 Mediation.
776.39 Evaluation for use by third persons.
776.40 Meritorious claims and contentions.
776.41 Expediting litigation.
776.42 Candor and obligations toward the tribunal.
776.43 Fairness to opposing party and counsel.
776.44 Impartiality and decorum of the tribunal.
776.45 Extra-tribunal statements.
776.46 Attorney as witness.
776.47 Special responsibilities of a trial counsel.
776.48 Advocate in nonadjudicative proceedings.
776.49 Truthfulness in statements to others.
776.50 Communication with person represented by counsel.
776.51 Dealing with an unrepresented person.
776.52 Respect for rights of third persons.
776.53 Responsibilities of the Judge Advocate General and supervisory 
          attorneys.
776.54 Responsibilities of a subordinate attorney.
776.55 Responsibilities regarding non-attorney assistants.
776.56 Professional independence of a covered USG attorney.
776.57 Unauthorized practice of law.
776.58-776.65 [Reserved]
776.66 Bar admission and disciplinary matters.
776.67 Judicial and legal officers.
776.68 Reporting professional misconduct.
776.69 Misconduct.
776.70 Jurisdiction.
776.71 Requirement to remain in good standing with licensing 
          authorities.
776.72-776.75 [Reserved]

                Subpart C_Complaint Processing Procedures

776.76 Policy.
776.77 Related investigations and actions.
776.78 Informal complaints.
776.79 The complaint.
776.80 Initial screening and Rules Counsel.
776.81 Charges.
776.82 Interim suspension.
776.83 Preliminary inquiry.
776.84 Ethics investigation.
776.85 Effect of separate proceeding.
776.86 Action by JAG.
776.87 Finality.
776.88 Report to licensing authorities.

Subpart D [Reserved]

    Authority: 10 U.S.C. 806, 806a, 826, 827; Manual for Courts-Martial, 
United States, 1998; U.S. Navy Regulations, 1990; Secretary of the Navy 
Instruction 5430.27 (series), Responsibility of the Judge Advocate 
General for Supervision of Certain Legal Services.

    Source: 65 FR 15060, Mar. 21, 2000, unless otherwise noted.



                            Subpart A_General



Sec. 776.1  Purpose.

    In furtherance of the authority citations (which, if not found in 
local libraries, are available from the Office of the Judge Advocate 
General, 1322 Patterson Avenue, SE., Suite 3000, Washington Navy Yard DC 
20374-5066), which require the Judge Advocate General of the Navy (JAG) 
to supervise the performance of legal services under JAG cognizance 
throughout the Department of the Navy (DON), this part is promulgated:
    (a) To establish Rules of Professional Conduct (subpart B of this 
part) for attorneys subject to this part;
    (b) To establish procedures (subpart C of this part) for receiving, 
processing, and taking action on complaints of professional misconduct 
made against attorneys practicing under the supervision of JAG, whether 
arising from professional legal activities in DON proceedings and 
matters, or arising from other, non-U.S. Government related professional 
legal activities or personal misconduct which suggests the attorney is 
ethically, professionally, or morally unqualified to perform legal 
services within the DON; and

[[Page 491]]

    (c) To ensure quality legal services at all proceedings under the 
cognizance and supervision of the JAG.



Sec. 776.2  Applicability.

    (a) This part defines the professional ethical obligations of, and 
applies to, all ``covered attorneys.''
    (b) ``Covered attorneys'' include:
    (1) The following U.S. Government (USG) attorneys, referred to, 
collectively, as ``covered USG attorneys'' throughout this part:
    (i) All active-duty Navy judge advocates (designator 2500 or 2505) 
or Marine Corps judge advocates (MOS 4402 or 9914).
    (ii) All active-duty judge advocates of other U.S. armed forces who 
practice law or provide legal services under the cognizance and 
supervision of the JAG.
    (iii) All civil service and contracted civilian attorneys who 
practice law or perform legal services under the cognizance and 
supervision of the JAG.
    (iv) All Reserve or Retired judge advocates of the Navy or Marine 
Corps (and any other U.S. armed force), who, while performing official 
DON duties, practice law or provide legal services under the cognizance 
and supervision of the JAG.
    (v) All other attorneys appointed by JAG (or the Director, Judge 
Advocate (JA) Division, Headquarters Marine Corps (HQMC), in Marine 
Corps matters) to serve in billets or to provide legal services normally 
provided by Navy or Marine Corps judge advocates. This policy applies to 
officer and enlisted reservists, to active-duty personnel, and to any 
other personnel who are licensed to practice law by any Federal or state 
authorities, but who are not members of the Judge Advocate General's 
Corps or who do not hold the 4402 or 9914 designation in the Marine 
Corps.
    (2) The following non-U.S. Government attorneys, referred to, 
collectively, as ``covered non-USG attorneys'' throughout this part: All 
civilian attorneys representing individuals in any matter for which JAG 
is charged with supervising the provision of legal services. These 
matters include, but are not limited to, courts-martial, administrative 
separation boards or hearings, and disability evaluation proceedings.
    (3) The term ``covered attorney'' does not include those civil 
service or civilian attorneys who practice law or perform legal services 
under the cognizance and supervision of the General Counsel of the Navy.
    (c) Professional or personal misconduct unrelated to a covered 
attorney's DON activities, while normally outside the ambit of these 
rules, may be reviewed under procedures established in subpart C of this 
part and may provide the basis for decisions by the JAG regarding the 
covered attorney's continued qualification to provide legal services in 
DON matters.
    (d) Although the Rules in subpart B of this part do not apply to 
non-attorneys, they do define the type of ethical conduct that the 
public and the military community have a right to expect from DON legal 
personnel. Covered USG attorneys who supervise non-attorney DON 
employees are responsible for their ethical conduct to the extent 
provided for in Sec. 776.55 of this part. Accordingly, subpart B of 
this part shall serve as a model of ethical conduct for the following 
personnel when involved with the delivery of legal services under the 
supervision of the JAG:
    (1) Navy legalmen and Marine Corps legal administrative officers, 
legal service specialists, and legal services reporters (stenotype);
    (2) Limited duty officers (LAW);
    (3) Legal interns; and
    (4) Civilian support personnel including paralegals, legal 
secretaries, legal technicians, secretaries, court reporters, and others 
holding similar positions.



Sec. 776.3  Policy.

    (a) Covered attorneys shall maintain the highest standards of 
professional ethical conduct. Loyalty and fidelity to the United States, 
to the law, to clients both institutional and individual, and to the 
rules and principles of professional ethical conduct set forth in 
subpart B of this part must come before private gain or personal 
interest.
    (b) Whether conduct or failure to act constitutes a violation of the 
professional duties imposed by this part is a matter within the sole 
discretion of

[[Page 492]]

JAG or officials authorized to act for JAG. Rules contained in subpart B 
of this part are not substitutes for, and do not take the place of, 
other rules and standards governing DON personnel such as the Department 
of Defense Joint Ethics Regulation, the Code of Conduct, the Uniform 
Code of Military Justice (UCMJ), and the general precepts of ethical 
conduct to which all DON service members and employees are expected to 
adhere. Similarly, action taken per this part is not supplanted or 
barred by, and does not, even if the underlying misconduct is the same, 
supplant or bar the following action from being taken by authorized 
officials:
    (1) Punitive or disciplinary action under the UCMJ; or
    (2) Administrative action under the Manual for Courts-Martial, U.S. 
Navy Regulations, or under other applicable authority.
    (c) Inquiries into allegations of professional misconduct will 
normally be held in abeyance until any related criminal investigation or 
proceeding is complete. However, a pending criminal investigation or 
proceeding does not bar the initiation or completion of a professional 
misconduct investigation (subpart C of this part) stemming from the same 
or related incidents or prevent the JAG from imposing professional 
disciplinary sanctions as provided for in this part.



Sec. 776.4  Attorney-client relationships.

    (a) The executive agency to which assigned (DON in most cases) is 
the client served by each covered USG attorney unless detailed to 
represent another client by competent authority. Specific guidelines are 
contained in Sec. 776.32 of this part.
    (b) Covered USG attorneys will not establish attorney-client 
relationships with any individual unless detailed, assigned, or 
otherwise authorized to do so by competent authority. Wrongfully 
establishing an attorney-client relationship may subject the attorney to 
discipline administered per this part. See Sec. 776.21 of this part.
    (c) Employment of a non-USG attorney by an individual client does 
not alter the professional responsibilities of a covered USG attorney 
detailed or otherwise assigned by competent authority to represent that 
client.



Sec. 776.5  Judicial conduct.

    To the extent that it does not conflict with statutes, regulations, 
or this part, the American Bar Association's Code of Judicial Conduct 
applies to all military and appellate judges and to all other covered 
USG attorneys performing judicial functions under JAG supervision within 
the DON.



Sec. 776.6  Conflict.

    To the extent that a conflict exists between this part and the rules 
of other jurisdictions that regulate the professional conduct of 
attorneys, this part will govern the conduct of covered attorneys 
engaged in legal functions under JAG cognizance and supervision. 
Specific and significant instances of conflict between the rules 
contained in subpart B of this part and the rules of other jurisdictions 
shall be reported promptly to the Rules Counsel (see Sec. 776.9 of this 
part), via the supervisory attorney. See Sec. 776.53 of this part.



Sec. 776.7  Reporting requirements.

    Covered USG attorneys shall report promptly to the Rules Counsel any 
disciplinary or administrative action, including initiation of 
investigation, by any licensing authority or Federal, State, or local 
bar, possessing the power to revoke, suspend, or in any way limit the 
authority to practice law in that jurisdiction, upon himself, herself, 
or another covered attorney. Failure to report such discipline or 
administrative action may subject the covered USG attorney to discipline 
administered per this part. See Sec. 776.71 of this part.



Sec. 776.8  Professional Responsibility Committee.

    (a) Composition. This standing committee will consist of the 
Assistant Judge Advocate General (AJAG) for Military Justice; the Vice 
Commander, Naval Legal Service Command (NLSC); the Chief Judge, Navy-
Marine Corps Trial Judiciary; and in cases involving Marine Corps judge 
advocates, the Deputy Director, JA Division, HQMC; and such other 
personnel as JAG from time-to-time may appoint. A majority

[[Page 493]]

of the members constitutes a quorum. The Chairman of the Committee shall 
be the AJAG for Military Justice. The Chairman may excuse members 
disqualified for cause, illness, or exigencies of military service, and 
may request JAG to appoint additional or alternate members on a 
temporary or permanent basis.
    (b) Purpose. (1) When requested by JAG or by the Rules Counsel, the 
Committee will provide formal advisory opinions to JAG regarding 
application of rules contained in subpart B of this part to individual 
or hypothetical cases.
    (2) On its own motion, the Committee may also issue formal advisory 
opinions on ethical issues of importance to the DON legal community.
    (3) Upon written request, the Committee will also provide formal 
advisory opinions to covered attorneys about the propriety of proposed 
courses of action. If such requests are predicated upon full disclosure 
of all relevant facts, and if the Committee advises that the proposed 
course of conduct is not violative of subpart B of this part, then no 
adverse action under this part may be taken against a covered attorney 
who acts consistent with the Committee's advice.
    (4) The Chairman will forward copies of all opinions issued by the 
Committee to the Rules Counsel.
    (c) Limitation. The Committee will not normally provide ethics 
advice or opinions concerning professional responsibility matters (e.g., 
ineffective assistance of counsel, prosecutorial misconduct, etc.) that 
are then the subject of litigation.



Sec. 776.9  Rules Counsel.

    Appointed by JAG to act as special assistants for the administration 
of this part, the Rules Counsel derive authority from JAG and, as 
detailed in this part, have ``by direction'' authority. The Rules 
Counsel shall cause opinions issued by the Professional Responsibility 
Committee of general interest to the DON legal community to be published 
in summarized, non-personal form in suitable publications. Unless 
another officer is appointed by JAG to act in individual cases, the 
following officers shall act as Rules Counsel:
    (a) Director, JA Division, HQMC, for cases involving Marine Corps 
judge advocates, or civil service and contracted civilian attorneys who 
perform legal services under his cognizance; and
    (b) AJAG for Civil Law, in all other cases.



Sec. 776.10  Informal ethics advice.

    (a) Advisors. Covered attorneys may seek informal ethics advice 
either from the officers named below or from supervisory attorneys in 
the field. Within the Office of the JAG and HQMC, the following 
officials are designated to respond, either orally or in writing, to 
informal inquiries concerning this part in the areas of practice 
indicated:
    (1) Head, Military Affairs/Personnel Law Branch, Administrative Law 
Division: administrative boards and related matters;
    (2) Deputy Director, Criminal Law Division: military justice 
matters;
    (3) Director, Legal Assistance Division: legal assistance matters;
    (4) Deputy Director, JA Division, HQMC: cases involving Marine Corps 
judge advocates, or civil service and contracted civilian attorneys who 
perform legal services under the cognizance and supervision of Director, 
JA Division, HQMC; and
    (5) Head, Standards of Conduct/Government Ethics Branch, 
Administrative Law Division: all other matters.
    (b) Limitation. Informal ethics advice will not normally be provided 
by JAG/HQMC advisors concerning professional responsibility matters 
(e.g., ineffective assistance of counsel, prosecutorial misconduct) that 
are then the subject of litigation.
    (c) Written advice. A request for informal advice does not relieve 
the requester of the obligation to comply with subpart B of this part. 
Although covered attorneys are encouraged to seek advice when in doubt 
as to their responsibilities, they remain personally accountable for 
their professional conduct. If, however, an attorney receives written 
advice on an ethical matter after full disclosure of all relevant facts 
and reasonably relies on such advice, no adverse action under

[[Page 494]]

this part will be taken against the attorney. Written advice may be 
sought from either a supervisory attorney or the appropriate advisor in 
paragraph (a) of this section. JAG is not bound by unwritten advice or 
by advice provided by personnel who are not supervisory attorneys or 
advisors. See Sec. 776.54 of this part.



Sec. 776.11  Outside part-time practice of law.

    A covered USG attorney's primary professional responsibility is to 
the client, as defined by Sec. 776.4 of this part, and he or she is 
expected to ensure that representation of such client is free from 
conflicts of interest and otherwise conforms to the requirements of 
these rules and other regulations concerning the provision of legal 
services within the Department of the Navy. The outside practice of law, 
therefore, must be carefully monitored. Covered USG attorneys who wish 
to engage in the part-time, outside practice of law must first obtain 
permission from JAG. Failure to obtain permission before engaging in the 
outside practice of law may subject the covered USG attorney to 
administrative or disciplinary action, including professional sanctions 
administered per subpart C of this part. Covered USG attorneys may 
obtain further details in JAGINST 5803.1 (series). This requirement does 
not apply to non-USG attorneys, or to Reserve or Retired judge advocates 
unless serving on active-duty for more than 30 consecutive days.



Sec. 776.12  Maintenance of files.

    Ethics complaint records shall be maintained by the Administrative 
Law Division, Office of the Judge Advocate General, and, in the case of 
Marine records, by the Judge Advocate Research and Civil Law Branch, JA 
Division, HQMC.
    (a) Requests for access to such records should be referred to Deputy 
Assistant Judge Advocate General (Administrative Law), Office of the 
Judge Advocate General (Code 13), 1322 Patterson Avenue, SE., Suite 
3000, Washington Navy Yard DC 20374-5066, or to Head, Judge Advocate 
Research and Civil Law Branch, JA Division, Headquarters Marine Corps, 
Washington Navy Yard DC 20380-0001, as appropriate.
    (b) Local command files regarding professional responsibility 
complaints will not be maintained. Commanding officers and other 
supervisory attorneys may, however, maintain personal files but must not 
share their contents with others.



Sec. Sec. 776.13-776.17  [Reserved]



                 Subpart B_Rules of Professional Conduct



Sec. 776.18  Preamble.

    (a) A covered USG attorney is a representative of clients, an 
officer of the legal system, an officer of the Federal Government, and a 
public citizen who has a special responsibility for the quality of 
justice and legal services provided to the DON and to individual 
clients. The Rules of Professional Conduct contained in this subpart 
govern the ethical conduct of covered attorneys practicing under the 
Uniform Code of Military Justice, the Manual for Courts-Martial, 10 
U.S.C. 1044 (Legal Assistance), other laws of the United States, and 
regulations of the DON.
    (b) This subpart not only addresses the professional conduct of 
judge advocates, but also applies to all other covered attorneys who 
practice under the cognizance and supervision of the JAG. See Sec. 
776.2 of this part.
    (c) All covered attorneys are subject to professional disciplinary 
action imposed by the JAG for violation of the Rules contained in this 
subpart. Action by the JAG does not prevent other Federal, State, or 
local bar associations or other licensing authorities from taking 
professional disciplinary or other administrative action for the same or 
similar acts.



Sec. 776.19  Principles.

    The Rules of this subpart are based on the following principles. 
Interpretation of this subpart should flow from common meaning. To the 
extent that any ambiguity or conflict exists, this subpart should be 
interpreted consistent with these general principles.
    (a) Covered attorneys shall:

[[Page 495]]

    (1) Obey the law and military regulations, and counsel clients to do 
so.
    (2) Follow all applicable ethics rules.
    (3) Protect the legal rights and interests of clients, 
organizational and individual.
    (4) Be honest and truthful in all dealings.
    (5) Not derive personal gain, except as authorized, for the 
performance of legal services.
    (6) Maintain the integrity of the legal profession.
    (b) Ethical rules should be consistent with law. If law and ethics 
conflict, the law prevails unless an ethical rule is constitutionally 
based.
    (c) The military criminal justice system is a truth-finding process 
consistent with constitutional law.



Sec. 776.20  Competence.

    (a) Competence. A covered attorney shall provide competent, 
diligent, and prompt representation to a client. Competent 
representation requires the legal knowledge, skill, access to evidence, 
thoroughness, and expeditious preparation reasonably necessary for 
representation. Initial determinations as to competence of a covered USG 
attorney for a particular assignment shall be made by a supervising 
attorney before case or issue assignments; however, assigned attorneys 
may consult with supervisors concerning competence in a particular case.
    (b) [Reserved]

[67 FR 70165, Nov. 21, 2002]



Sec. 776.21  Establishment and scope of representation.

    (a) Establishment and scope of representation: (1) Formation of 
attorney-client relationships by covered USG attorneys with, and 
representation of, clients is permissible only when the attorney is 
authorized to do so by competent authority. Military Rule of Evidence 
502, the Manual of the Judge Advocate General (JAG Instruction 5800.7 
(series)), and the Naval Legal Service Office and Trial Service Office 
Manual, define when an attorney-client relationship is formed between a 
covered USG attorney and a client servicemember, dependent, or employee.
    (2) Generally, the subject matter scope of a covered attorney's 
representation will be consistent with the terms of the assignment to 
perform specific representational or advisory duties. A covered attorney 
shall inform clients at the earliest opportunity of any limitations on 
representation and professional responsibilities of the attorney towards 
the client.
    (3) A covered attorney shall follow the client's well-informed and 
lawful decisions concerning case objectives, choice of counsel, forum, 
pleas, whether to testify, and settlements.
    (4) A covered attorney's representation of a client does not 
constitute an endorsement of the client's political, economic, social, 
or moral views or activities.
    (5) A covered attorney shall not counsel or assist a client to 
engage in conduct that the attorney knows is criminal or fraudulent, but 
a covered attorney may discuss the legal and moral consequences of any 
proposed course of conduct with a client, and may counsel or assist a 
client in making a good faith effort to determine the validity, scope, 
meaning, or application of the law.
    (b) [Reserved]



Sec. 776.22  Diligence.

    (a) Diligence. A covered attorney shall act with reasonable 
diligence and promptness in representing a client, and shall consult 
with a client as soon as practicable and as often as necessary upon 
being assigned to the case or issue.
    (b) [Reserved]



Sec. 776.23  Communication.

    (a) Communication:
    (1) A covered attorney shall keep a client reasonably informed about 
the status of a matter and promptly comply with reasonable requests for 
information.
    (2) A covered attorney shall explain a matter to the extent 
reasonably necessary to permit the client to make informed decisions 
regarding the representation.
    (b) [Reserved]



Sec. 776.24  Fees.

    (a) Fees:

[[Page 496]]

    (1) A covered USG attorney shall not accept any salary, fee, 
compensation, or other payments or benefits, directly or indirectly, 
other than Government compensation, for services provided in the course 
of the covered USG attorney's official duties or employment.
    (2) A covered USG attorney shall not accept any salary or other 
payments as compensation for legal services rendered, by that covered 
USG attorney in a private capacity, to a client who is eligible for 
assistance under the DON Legal Assistance Program, unless so authorized 
by the JAG. This rule does not apply to Reserve or Retired judge 
advocates not then serving on extended active-duty.
    (3) A Reserve or Retired judge advocate, whether or not serving on 
extended active-duty, who has initially represented or interviewed a 
client or prospective client concerning a matter as part of the 
attorney's official Navy or Marine Corps duties, shall not accept any 
salary or other payments as compensation for services rendered to that 
client in a private capacity concerning the same general matter for 
which the client was seen in an official capacity, unless so authorized 
by the JAG.
    (4) Covered non-USG attorneys may charge fees. Fees shall be 
reasonable. Factors considered in determining the reasonableness of a 
fee include the following:
    (i) The time and labor required, the novelty and difficulty of the 
questions involved, and the skill requisite to perform the legal service 
properly;
    (ii) The likelihood, if apparent to the client, that the acceptance 
of the particular employment will preclude other employment by the 
attorney;
    (iii) The fee customarily charged in the locality for similar legal 
services;
    (iv) The amount involved and the results obtained;
    (v) The time limitations imposed by the client or by the 
circumstances;
    (vi) The nature and length of the professional relationship with the 
client;
    (vii) The experience, reputation, and ability of the attorney or 
attorneys performing the services; and
    (viii) Whether the fee is fixed or contingent.
    (5) When the covered non-USG attorney has not regularly represented 
the client, the basis or rate of the fee shall be communicated to the 
client, preferably in writing, before or within a reasonable time after 
commencing the representation.
    (6) A fee may be contingent on the outcome of the matter for which 
the service is rendered, except in a matter in which a contingent fee is 
prohibited by paragraph (a)(7) of this section or other law. A 
contingent fee agreement shall be in writing and shall state the method 
by which the fee is to be determined, including the percentage or 
percentages that shall accrue to the covered non-USG attorney in the 
event of settlement, trial or appeal, litigation and other expenses to 
be deducted from the recovery, and whether such expenses are to be 
deducted before or after the contingent fee is calculated. Upon 
conclusion of a contingent fee matter, the covered non-USG attorney 
shall provide the client with a written statement stating the outcome of 
the matter and, if there is a recovery, showing the remittance to the 
client and the method of its determination.
    (7) A covered non-USG attorney shall not enter into an arrangement 
for, charge, or collect a contingent fee for representing an accused in 
a criminal case.
    (8) A division of fees between covered non-USG attorneys who are not 
in the same firm may be made only if:
    (i) The division is in proportion to the services performed by each 
attorney or, by written agreement with the client, each attorney assumes 
joint responsibility for the representation;
    (ii) The client is advised of and does not object to the 
participation of all the attorneys involved; and
    (iii) The total fee is reasonable.
    (b) Paragraphs (a)(4) through (a)(8) of this section apply only to 
private civilian attorneys practicing in proceedings conducted under the 
cognizance and supervision of the JAG. The primary purposes of 
paragraphs (a)(4) through (a)(8) of this section are not to permit the 
JAG to regulate fee arrangements between civilian attorneys and their 
clients but to provide guidance to covered USG attorneys practicing with 
non-

[[Page 497]]

USG attorneys and to supervisory attorneys who may be asked to inquire 
into alleged fee irregularities. Absent paragraphs (a)(4) through (a)(8) 
of this section, such supervisory attorneys have no readily available 
standard against which to compare allegedly questionable conduct of a 
civilian attorney.



Sec. 776.25  Confidentiality of information.

    (a) Confidentiality of Information:
    (1) A covered attorney shall not reveal information relating to 
representation of a client unless the client consents after 
consultation, except for disclosures that are impliedly authorized in 
order to carry out the representation, and except as stated in 
paragraphs (a)(2) and (a)(3) of this section.
    (2) A covered attorney shall reveal such information to the extent 
the covered attorney reasonably believes necessary to prevent the client 
from committing a criminal act that the covered attorney believes is 
likely to result in imminent death or substantial bodily harm, or 
significant impairment of national security or the readiness or 
capability of a military unit, vessel, aircraft, or weapon system.
    (3) A covered attorney may reveal such information to the extent the 
covered attorney reasonably believes necessary to establish a claim or 
defense on behalf of the covered attorney in a controversy between the 
covered attorney and the client, to establish a defense to a criminal 
charge or civil claim against the attorney based upon conduct in which 
the client was involved, or to respond to allegations in any proceeding 
concerning the attorney's representation of the client.
    (b) Conduct likely to result in the significant impairment of 
national security or the readiness or capability of a military unit, 
vessel, aircraft, or weapon system include, but are not limited to: 
Divulging the classified location of a special operations unit such that 
the lives of members of the unit are placed in immediate danger; 
sabotaging a vessel or aircraft to the extent that the vessel or 
aircraft could not conduct an assigned mission, or that the vessel or 
aircraft and crew could be lost; and compromising the security of a 
weapons site such that the weapons are likely to be stolen or detonated. 
Paragraph (a)(2) of this section is not intended to and does not mandate 
the disclosure of conduct which may have a slight impact on the 
readiness or capability of a unit, vessel, aircraft, or weapon system. 
Examples of such conduct are: absence without authority from a peacetime 
training exercise; intentional damage to an individually assigned 
weapon; and intentional minor damage to military property.



Sec. 776.26  Conflict of interest: General rule.

    (a) Conflict of interest: General rule:
    (1) A covered attorney shall not represent a client if the 
representation of that client will be directly adverse to another 
client, unless:
    (i) The covered attorney reasonably believes the representation will 
not adversely affect the relationship with the other client; and
    (ii) Each client consents after consultation.
    (2) A covered attorney shall not represent a client if the 
representation of that client may be materially limited by the covered 
attorney's responsibilities to another client or to a third person, or 
by the covered attorney's own interests, unless:
    (i) The covered attorney reasonably believes the representation will 
not be adversely affected; and
    (ii) The client consents after consultation.
    (3) When representation of multiple clients in a single matter is 
undertaken, the consultation shall include explanation of the 
implications of the common representation and the advantages and risks 
involved.
    (b) Reserve judge advocates. These conflict of interest rules only 
apply when Reservists are actually drilling or on active-duty for 
training, or, as is the case with Retirees, on extended active-duty or 
when performing other duties subject to JAG supervision. Therefore, 
unless otherwise prohibited by criminal conflict of interest statutes, 
Reserve or Retired attorneys providing legal services in their civilian 
capacity may represent clients, or work in firms whose attorneys 
represent clients, with interests adverse to the United States. Reserve 
judge advocates who, in their

[[Page 498]]

civilian capacities, represent persons whose interests are adverse to 
the DON will provide written notification to their supervisory attorney 
and commanding officer, detailing their involvement in the matter. 
Reserve judge advocates shall refrain from undertaking any official 
action or representation of the DON with respect to any particular 
matter in which they are providing representation or services to other 
clients.



Sec. 776.27  Conflict of interests: Prohibited transactions.

    (a) Conflict of interests: Prohibited transactions. (1) Covered USG 
attorneys shall strictly adhere to current Department of Defense Ethics 
Regulations and shall not:
    (i) Knowingly enter into any business transactions on behalf of, or 
adverse to, a client's interest which directly or indirectly relate to 
or result from the attorney-client relationship; or
    (ii) Provide any financial assistance to a client or otherwise serve 
in a financial or proprietorial fiduciary or bailment relationship, 
unless otherwise specifically authorized by competent authority.
    (2) No covered attorney shall:
    (i) Use information relating to representation of a client to the 
disadvantage of the client unless the client consents after 
consultation, except as permitted or required by Sec. 776.25 or Sec. 
776.42 of this part;
    (ii) Prepare an instrument giving the covered attorney or a person 
related to the covered attorney as parent, child, sibling, or spouse any 
gift from a client, including a testamentary gift, except where the 
client is related to the donee;
    (iii) In the case of covered non-USG attorneys, accept compensation 
for representing a client from one other than the client unless the 
client consents after consultation, there is no interference with the 
covered attorney's independence of professional judgment or with the 
attorney-client relationship, and information relating to representation 
of a client is protected as required by Sec. 776.25 of this part;
    (iv) Negotiate any settlement on behalf of multiple clients in a 
single matter unless each client provides fully informed consent;
    (v) Prior to the conclusion of representation of the client, make or 
negotiate an agreement giving a covered attorney literary or media 
rights for a portrayal or account based in substantial part on 
information relating to representation of a client;
    (vi) Represent a client in a matter directly adverse to a person 
whom the covered attorney knows is represented by another attorney who 
is related as parent, child, sibling, or spouse to the covered attorney, 
except upon consent by the client after consultation regarding the 
relationship; or
    (vii) Acquire a proprietary interest in the cause of action or 
subject matter of litigation the covered attorney is conducting for a 
client.
    (b) [Reserved]



Sec. 776.28  Conflict of interest: Former client.

    (a) Conflict of interest: Former client. A covered attorney who has 
represented a client in a matter shall not thereafter:
    (1) Represent another person in the same or a substantially related 
matter in which the person's interests are materially adverse to the 
interests of the former client, unless the former client consents after 
consultation;
    (2) Use information relating to the representation to the 
disadvantage of the former client or to the covered attorney's own 
advantage, except as Sec. 776.25 or Sec. 776.42 of this part would 
permit or require with respect to a client or when the information has 
become generally known; or
    (3) Reveal information relating to the representation except as 
Sec. 776.25 or Sec. 776.42 of this part would permit or require with 
respect to a client.
    (b) [Reserved]



Sec. 776.29  Imputed disqualification: General rule.

    (a) Imputed disqualification: General rule. Covered USG attorneys 
working in the same military law office are not automatically 
disqualified from representing a client because any of them practicing 
alone would be prohibited from doing so by Sec. 776.26, Sec. 776.27, 
Sec. 776.28, or Sec. 776.38 of this part. Covered non-USG attorneys 
must consult their

[[Page 499]]

federal, state, and local bar rules governing the representation of 
multiple or adverse clients within the same office before such 
representation is initiated, as such representation may expose them to 
disciplinary action under the rules established by their licensing 
authority.
    (b)(1) The circumstances of military (or Government) service may 
require representation of opposing sides by covered USG attorneys 
working in the same law office. Such representation is permissible so 
long as conflicts of interests are avoided and independent judgment, 
zealous representation, and protection of confidences are not 
compromised. Thus, the principle of imputed disqualification is not 
automatically controlling for covered USG attorneys. The knowledge, 
actions, and conflicts of interests of one covered USG attorney are not 
imputed to another simply because they operate from the same office. For 
example, the fact that a number of defense attorneys operate from one 
office and normally share clerical assistance would not prohibit them 
from representing co-accused at trial by court-martial. Imputed 
disqualification rules for non-USG attorneys are established by their 
individual licensing authorities and may well proscribe all attorneys 
from one law office from representing a co-accused, or a party with an 
adverse interest to an existing client, if any attorney in the same 
office were so prohibited.
    (2) Whether a covered USG attorney is disqualified requires a 
functional analysis of the facts in a specific situation. The analysis 
should include consideration of whether the following will be 
compromised: Preserving attorney-client confidentiality; maintaining 
independence of judgment; and avoiding positions adverse to a client. 
See, e.g., U.S. v. Stubbs, 23 M.J. 188 (CMA 1987).
    (3) Preserving confidentiality is a question of access to 
information. Access to information, in turn, is essentially a question 
of fact in a particular circumstance, aided by inferences, deductions, 
or working presumptions that reasonably may be made about the way in 
which covered USG attorneys work together. A covered USG attorney may 
have general access to files of all clients of a military law office 
(e.g., legal assistance attorney) and may regularly participate in 
discussions of their affairs; it may be inferred that such a covered USG 
attorney in fact is privy to all information about all the office's 
clients. In contrast, another covered USG attorney (e.g., military 
defense counsel) may have access to the files of only a limited number 
of clients and participate in discussion of the affairs of no other 
clients; in the absence of information to the contrary, it should be 
inferred that such a covered USG attorney in fact is privy to 
information about the clients actually served but not to information of 
other clients. Additionally, a covered USG attorney changing duty 
stations or changing assignments within a military office has a 
continuing duty to preserve confidentiality of information about a 
client formerly represented. See Sec. 776.25 and Sec. 776.28.7 of this 
part.
    (4) Maintaining independent judgment allows a covered USG attorney 
to consider, recommend, and carry out any appropriate course of action 
for a client without regard to the covered USG attorney's personal 
interests or the interests of another. When such independence is lacking 
or unlikely, representation cannot be zealous.
    (5) Another aspect of loyalty to a client is the general obligation 
of any attorney to decline subsequent representations involving 
positions adverse to a former client in substantially related matters. 
This obligation normally requires abstention from adverse representation 
by the individual covered attorney involved, but, in the military legal 
office, abstention is not required by other covered USG attorneys 
through imputed disqualification.



Sec. 776.30  Successive Government and private employment.

    (a) Successive Government and private employment:
    (1) Except as the law or regulations may otherwise expressly permit, 
a former covered USG attorney shall not represent a private client in 
connection with a matter in which the covered USG attorney participated 
personally and substantially as a public officer or

[[Page 500]]

employee, unless the appropriate Government agency consents after 
consultation. If a former covered USG attorney in a firm, partnership, 
or association knows that another attorney within the firm, partnership, 
or association is undertaking or continuing representation in such a 
matter:
    (i) The disqualified former covered USG attorney must ensure that he 
or she is screened from any participation in the matter and is 
apportioned no part of the fee or any other benefit therefrom; and,
    (ii) Must provide written notice promptly to the appropriate 
Government agency to enable it to ascertain compliance with the 
provisions of applicable law and regulations.
    (2) Except as the law or regulations may otherwise expressly permit, 
a former covered USG attorney, who has information known to be 
confidential Government information about a person which was acquired 
while a covered USG attorney, may not represent a private client whose 
interests are adverse to that person in a matter in which the 
information could be used to the material disadvantage of that person. 
The former covered USG attorney may continue association with a firm, 
partnership, or association representing any such client only if the 
disqualified covered USG attorney is screened from any participation in 
the matter and is apportioned no part of the fee or any other benefit 
therefrom.
    (3) Except as the law or regulations may otherwise expressly permit, 
a covered USG attorney shall not:
    (i) Participate in a matter in which the covered USG attorney 
participated personally and substantially while in private practice or 
nongovernmental employment, unless under applicable law no one is, or by 
lawful delegation may be, authorized to act in the covered USG 
attorney's stead in the matter; or,
    (ii) Negotiate for private employment with any person who is 
involved as a party or as attorney for a party in a matter in which the 
covered USG attorney is participating personally and substantially.
    (4) As used in this section, the term ``matter'' includes:
    (i) Any judicial or other proceeding, application, request for a 
ruling or other determination, contract, claim, controversy, 
investigation, charge, accusation, arrest, or other particular matter 
involving a specific party or parties, and
    (ii) Any other matter covered by the conflict of interest rules of 
the Department of Defense, DON, or other appropriate Government agency.
    (5) As used in this section, the term ``confidential Governmental 
information'' means information which has been obtained under 
Governmental authority and which, at the time this Rule is applied, the 
Government is prohibited by law or regulations from disclosing to the 
public or has a legal privilege not to disclose, and which is not 
otherwise available to the public.
    (b) [Reserved]



Sec. 776.31  Former judge or arbitrator.

    (a) Former judge or arbitrator:
    (1) Except as stated in paragraph (a)(3) of this section, a covered 
USG attorney shall not represent anyone in connection with a matter in 
which the covered USG attorney participated personally and substantially 
as a judge or other adjudicative officer, arbitrator, or law clerk to 
such a person, unless all parties to the proceeding consent after 
disclosure.
    (2) A covered USG attorney shall not negotiate for employment with 
any person who is involved as a party or as attorney for a party in a 
matter in which the covered USG attorney is participating personally and 
substantially as a judge or other adjudicative officer. A covered USG 
attorney serving as law clerk to a judge, other adjudicative officer, or 
arbitrator may negotiate for employment with a party or attorney 
involved in a matter in which the clerk is participating personally and 
substantially, but only after the covered USG attorney has notified the 
judge, other adjudicative officer, or arbitrator, and been disqualified 
from further involvement in the matter.
    (3) An arbitrator selected as a partisan of a party in a multi-
member arbitration panel is not prohibited from subsequently 
representing that party.
    (b) [Reserved]

[[Page 501]]



Sec. 776.32  Department of the Navy as client.

    (a) Department of Navy as client:
    (1) Except when representing an individual client pursuant to 
paragraph (a)(6) of this section, a covered USG attorney represents the 
DON (or the Executive agency to which assigned) acting through its 
authorized officials. These officials include the heads of 
organizational elements within the Naval service, such as the commanders 
of fleets, divisions, ships and other heads of activities. When a 
covered USG attorney is assigned to such an organizational element and 
designated to provide legal services to the head of the organization, an 
attorney-client relationship exists between the covered attorney and the 
DON as represented by the head of the organization as to matters within 
the scope of the official business of the organization. The head of the 
organization may not invoke the attorney-client privilege or the rule of 
confidentiality for the head of the organization's own benefit but may 
invoke either for the benefit of the DON. In invoking either the 
attorney-client privilege or attorney-client confidentiality on behalf 
of the DON, the head of the organization is subject to being overruled 
by higher authority.
    (2) If a covered USG attorney knows that an officer, employee, or 
other member associated with the organizational client is engaged in 
action, intends to act or refuses to act in a matter related to the 
representation that is either adverse to the legal interests or 
obligations of the DON or a violation of law which reasonably might be 
imputed to the Department, the covered USG attorney shall proceed as is 
reasonably necessary in the best interest of the Naval service. In 
determining how to proceed, the covered USG attorney shall give due 
consideration to the seriousness of the violation and its consequences, 
the scope and nature of the covered USG attorney's representation, the 
responsibility in the Naval service and the apparent motivation of the 
person involved, the policies of the Naval service concerning such 
matters, and any other relevant considerations. Any measures taken shall 
be designed to minimize prejudice to the interests of the Naval service 
and the risk of revealing information relating to the representation to 
persons outside the service. Such measures shall include among others:
    (i) Asking for reconsideration of the matter by the acting official;
    (ii) Advising that a separate legal opinion on the matter be sought 
for presentation to appropriate authority in the Naval service;
    (iii) Referring the matter to, or seeking guidance from, higher 
authority in the chain of command including, if warranted by the 
seriousness of the matter, referral to the supervisory attorney assigned 
to the staff of the acting official's next superior in the chain of 
command; or
    (iv) Advising the acting official that his or her personal legal 
interests are at risk and that he or she should consult counsel as there 
may exist a conflict of interests for the covered USG attorney, and the 
covered USG attorney's responsibility is to the organization.
    (3) If, despite the covered USG attorney's efforts per paragraph 
(a)(2) of this section, the highest authority that can act concerning 
the matter insists upon action or refuses to act, in clear violation of 
law, the covered USG attorney shall terminate representation with 
respect to the matter in question. In no event shall the attorney 
participate or assist in the illegal activity. In this case, a covered 
USG attorney shall report such termination of representation to the 
attorney's supervisory attorney or attorney representing the next 
superior in the chain of command.
    (4) In dealing with the officers, employees, or members of the Naval 
service a covered USG attorney shall explain the identity of the client 
when it is apparent that the Naval service's interests are adverse to 
those of the officer, employee, or member.
    (5) A covered USG attorney representing the Naval service may also 
represent any of its officers, employees, or members, subject to the 
provisions of Sec. 776.26 of this part and other applicable authority. 
If the DON's consent to dual representation is required by Sec. 776.26 
of this part, the consent shall be given by an appropriate official of 
the DON other than the individual who is to be represented.

[[Page 502]]

    (6) A covered USG attorney who has been duly assigned to represent 
an individual who is subject to disciplinary action or administrative 
proceedings, or to provide legal assistance to an individual, has, for 
those purposes, an attorney-client relationship with that individual.
    (b) [Reserved]



Sec. 776.33  Client under a disability.

    (a) Client under a disability:
    (1) When a client's ability to make adequately considered decisions 
in connection with the representation is impaired, whether because of 
minority, mental disability, or for some other reason, the covered 
attorney shall, as far as reasonably possible, maintain a normal 
attorney-client relationship with the client.
    (2) A covered attorney may seek the appointment of a guardian or 
take other protective action with respect to a client only when the 
covered attorney reasonably believes that the client cannot adequately 
act in the client's own interest.
    (b) [Reserved]



Sec. 776.34  Safekeeping property.

    (a) Safekeeping property. Covered USG attorneys shall not normally 
hold or safeguard property of a client or third persons in connection 
with representational duties. See Sec. 776.27 of this part.
    (b) [Reserved]



Sec. 776.35  Declining or terminating representation.

    (a) Declining or terminating representation:
    (1) Except as stated in paragraph (a)(3) of this section, a covered 
attorney shall not represent a client or, when representation has 
commenced, shall seek to withdraw from the representation of a client 
if:
    (i) The representation will result in violation of the Rules 
contained in this subpart or other law or regulation;
    (ii) The covered attorney's physical or mental condition materially 
impairs his or her ability to represent the client; or
    (iii) The covered attorney is dismissed by the client.
    (2) Except as stated in paragraph (a)(3) of this section, a covered 
attorney may seek to withdraw from representing a client if withdrawal 
can be accomplished without material adverse effect on the interests of 
the client, or if:
    (i) The client persists in a course of action involving the covered 
attorney's services that the covered attorney reasonably believes is 
criminal or fraudulent;
    (ii) The client has used the covered attorney's services to 
perpetrate a crime or fraud;
    (iii) The client insists upon pursuing an objective that the covered 
attorney considers repugnant or imprudent;
    (iv) In the case of covered non-USG attorneys, the representation 
will result in an unreasonable financial burden on the attorney or has 
been rendered unreasonably difficult by the client; or
    (v) Other good cause for withdrawal exists.
    (3) When ordered to do so by a tribunal or other competent 
authority, a covered attorney shall continue representation 
notwithstanding good cause for terminating the representation.
    (4) Upon termination of representation, a covered attorney shall 
take steps to the extent reasonably practicable to protect a client's 
interests, such as giving reasonable notice to the client, allowing time 
for assignment or employment of other counsel, and surrendering papers 
and property to which the client is entitled and, where a non-USG 
attorney provided representation, refunding any advance payment of fee 
that has not been earned. The covered attorney may retain papers 
relating to the client to the extent permitted by law.
    (b) [Reserved]



Sec. 776.36  Prohibited sexual relations.

    (a) Prohibited sexual relations:
    (1) A covered attorney shall not have sexual relations with a 
current client. A covered attorney shall not require, demand, or solicit 
sexual relations with a client incident to any professional 
representation.
    (2) A covered attorney shall not engage in sexual relations with 
another attorney currently representing a party whose interests are 
adverse to

[[Page 503]]

those of a client currently represented by the covered attorney.
    (3) A covered attorney shall not engage in sexual relations with a 
judge who is presiding or who is likely to preside over any proceeding 
in which the covered attorney will appear in a representative capacity.
    (4) A covered attorney shall not engage in sexual relations with 
other persons involved in the particular case, judicial or 
administrative proceeding, or other matter for which representation has 
been established, including but not limited to witnesses, victims, co-
accuseds, and court-martial or board members.
    (5) For purposes of this Rule, ``sexual relations'' means:
    (i) Sexual intercourse; or
    (ii) Any touching of the sexual or other intimate parts of a person 
or causing such person to touch the sexual or other intimate parts of 
the covered attorney for the purpose of arousing or gratifying the 
sexual desire of either party.
    (b) [Reserved]



Sec. 776.37  Advisor.

    (a) Advisor. In representing a client, a covered attorney shall 
exercise independent professional judgment and render candid advice. In 
rendering advice, a covered attorney should refer not only to law but to 
other considerations such as moral, economic, social, and political 
factors that may be relevant to the client's situation.
    (b) [Reserved]



Sec. 776.38  Mediation.

    (a) Mediation:
    (1) A covered attorney may act as a mediator between individuals if:
    (i) The covered attorney consults with each individual concerning 
the implications of the mediation, including the advantages and risks 
involved, and the effect on the attorney-client confidentiality, and 
obtains each individual's consent to the mediation;
    (ii) The covered attorney reasonably believes that the matter can be 
resolved on terms compatible with each individual's best interests, that 
each individual will be able to make adequately informed decisions in 
the matter, and that there is little risk of material prejudice to the 
interests of any of the individuals if the contemplated resolution is 
unsuccessful; and,
    (iii) The covered attorney reasonably believes that the mediation 
can be undertaken impartially and without improper effect on other 
responsibilities the covered attorney has to any of the individuals.
    (2) While acting as a mediator, the covered attorney shall consult 
with each individual concerning the decisions to be made and the 
considerations relevant in making them, so that each individual can make 
adequately informed decisions.
    (3) A covered attorney shall withdraw as a mediator if any of the 
individuals so requests, or if any of the conditions stated in paragraph 
(a)(1) of this section is no longer satisfied. Upon withdrawal, the 
covered attorney shall not represent any of the individuals in the 
matter that was the subject of the mediation unless each individual 
consents.
    (b) [Reserved]



Sec. 776.39  Evaluation for use by third persons.

    (a) Evaluation for use by third persons:
    (1) A covered attorney may undertake an evaluation of a matter 
affecting a client for the use of someone other than the client if:
    (i) The covered attorney reasonably believes that making the 
evaluation is compatible with other aspects of the covered attorney's 
relationship with the client, and,
    (ii) The client consents after consultation.
    (2) Except as disclosure is required in connection with a report of 
an evaluation, information relating to the evaluation is otherwise 
protected by Sec. 776.25 of this part.
    (b) [Reserved]



Sec. 776.40  Meritorious claims and contentions.

    (a) Meritorious claims and contentions. A covered attorney shall not 
bring or defend a proceeding, or assert or controvert an issue therein, 
unless there is a basis for doing so that is not frivolous, which 
includes a good faith argument for an extension, modification, or

[[Page 504]]

reversal of existing law. A covered attorney representing an accused in 
a criminal proceeding or the respondent in an administrative proceeding 
that could result in incarceration, discharge from the Naval service, or 
other adverse personnel action, may nevertheless defend the client at 
the proceeding as to require that every element of the case is 
established.
    (b) [Reserved]



Sec. 776.41  Expediting litigation.

    (a) Expediting litigation. A covered attorney shall make reasonable 
efforts to expedite litigation or other proceedings consistent with the 
interests of the client and the attorney's responsibilities to 
tribunals.
    (b) [Reserved]



Sec. 776.42  Candor and obligations toward the tribunal.

    (a) Candor and obligations toward the tribunal:
    (1) A covered attorney shall not knowingly:
    (i) Make a false statement of material fact or law to a tribunal;
    (ii) Fail to disclose a material fact to a tribunal when disclosure 
is necessary to avoid assisting a criminal or fraudulent act by the 
client;
    (iii) Fail to disclose to the tribunal legal authority in the 
controlling jurisdiction known to the covered attorney to be directly 
adverse to the position of the client and not disclosed by opposing 
counsel;
    (iv) Offer evidence that the covered attorney knows to be false. If 
a covered attorney has offered material evidence and comes to know of 
its falsity, the covered attorney shall take reasonable remedial 
measures; or
    (v) Disobey an order imposed by a tribunal unless done openly before 
the tribunal in a good faith assertion that no valid order should exist.
    (2) The duties stated in paragraph (a) of this section continue to 
the conclusion of the proceedings, and apply even if compliance requires 
disclosure of information otherwise protected by Sec. 776.25 of this 
part.
    (3) A covered attorney may refuse to offer evidence that the covered 
attorney reasonably believes is false.
    (4) In an ex parte proceeding, a covered attorney shall inform the 
tribunal of all material facts known to the covered attorney which are 
necessary to enable the tribunal to make an informed decision, whether 
or not the facts are adverse.
    (b) [Reserved]



Sec. 776.43  Fairness to opposing party and counsel.

    (a) Fairness to opposing party and counsel. A covered attorney shall 
not:
    (1) Unlawfully obstruct another party's access to evidence or 
unlawfully alter, destroy, or conceal a document or other material 
having potential evidentiary value. A covered attorney shall not counsel 
or assist another person to do any such act;
    (2) Falsify evidence, counsel or assist a witness to testify 
falsely, or offer an inducement to a witness that is prohibited by law;
    (3) In pretrial procedure, make a frivolous discovery request or 
fail to make reasonably diligent effort to comply with a legally proper 
discovery request by an opposing party;
    (4) In trial, allude to any matter that the covered attorney does 
not reasonably believe is relevant or that will not be supported by 
admissible evidence, assert personal knowledge of facts in issue except 
when testifying as a witness, or state a personal opinion as to the 
justness of a cause, the credibility of a witness, the culpability of a 
civil litigant, or the guilt or innocence of an accused; or
    (5) Request a person other than a client to refrain from voluntarily 
giving relevant information to another party unless:
    (i) The person is a relative, an employee, or other agent of a 
client; and
    (ii) The covered attorney reasonably believes that the person's 
interests will not be adversely affected by refraining from giving such 
information.
    (b) [Reserved]



Sec. 776.44  Impartiality and decorum of the tribunal.

    (a) Impartiality and decorum of the tribunal. A covered attorney 
shall not:
    (1) Seek to influence a judge, court member, member of a tribunal, 
prospective court member or member of a

[[Page 505]]

tribunal, or other official by means prohibited by law or regulation;
    (2) Communicate ex parte with such a person except as permitted by 
law or regulation; or
    (3) Engage in conduct intended to disrupt a tribunal.
    (b) [Reserved]



Sec. 776.45  Extra-tribunal statements.

    (a) Extra-tribunal statements:
    (1) A covered attorney shall not make an extrajudicial statement 
about any person or case pending investigation or adverse administrative 
or disciplinary proceedings that a reasonable person would expect to be 
disseminated by means of public communication if the covered attorney 
knows or reasonably should know that it will have a substantial 
likelihood of materially prejudicing an adjudicative proceeding or an 
official review process thereof.
    (2) A statement referred to in paragraph (a)(1) of this section 
ordinarily is likely to have such an effect when it refers to a civil 
matter triable to a jury, a criminal matter, or any other proceeding 
that could result in incarceration, discharge from the Naval service, or 
other adverse personnel action, and the statement relates to:
    (i) The character, credibility, reputation, or criminal record of a 
party, suspect in a criminal investigation, victim, or witness, or the 
identity of a victim or witness, or the expected testimony of a party, 
suspect, victim, or witness;
    (ii) The possibility of a plea of guilty to the offense or the 
existence or contents of any confession, admission, or statement given 
by an accused or suspect or that person's refusal or failure to make a 
statement;
    (iii) The performance or results of any forensic examination or test 
or the refusal or failure of a person to submit to an examination or 
test, or the identity or nature of physical evidence expected to be 
presented;
    (iv) Any opinion as to the guilt or innocence of an accused or 
suspect in a criminal case or other proceeding that could result in 
incarceration, discharge from the Naval service, or other adverse 
personnel action;
    (v) Information the covered attorney knows or reasonably should know 
is likely to be inadmissible as evidence before a tribunal and would, if 
disclosed, create a substantial risk of materially prejudicing an 
impartial proceeding;
    (vi) The fact that an accused has been charged with a crime, unless 
there is included therein a statement explaining that the charge is 
merely an accusation and that the accused is presumed innocent until and 
unless proven guilty; or
    (vii) The credibility, reputation, motives, or character of civilian 
or military officials of the Department of Defense.
    (3) Notwithstanding paragraphs (a)(1) and (a)(2)(i) through 
(a)(2)(vii) of this section, a covered attorney involved in the 
investigation or litigation of a matter may state without elaboration:
    (i) The general nature of the claim, offense, or defense;
    (ii) The information contained in a public record;
    (iii) That an investigation of the matter is in progress, including 
the general scope of the investigation, the offense or claim or defense 
involved and, except when prohibited by law or regulation, the identity 
of the persons involved;
    (iv) The scheduling or result of any step in litigation;
    (v) A request for assistance in obtaining evidence and information 
necessary thereto;
    (vi) A warning of danger concerning the behavior of the person 
involved, when there is reason to believe that there exists the 
likelihood of substantial harm to an individual or to the public 
interest; and
    (vii) In a criminal case, in addition to paragraphs (a)(3)(i) 
through (a)(3)(vi) of this section:
    (A) The identity, duty station, occupation, and family status of the 
accused;
    (B) If the accused has not been apprehended, information necessary 
to aid in apprehension of that person;
    (C) The fact, time, and place of apprehension; and (D) The identity 
of investigating and apprehending officers or agencies and the length of 
the investigation.
    (4) Notwithstanding paragraphs (a)(1) and (a)(2)(i) through 
(a)(2)(vii) of this

[[Page 506]]

section, a covered attorney may make a statement that a reasonable 
covered attorney would believe is required to protect a client from the 
substantial undue prejudicial effect of recent publicity not initiated 
by the covered attorney or the attorney's client. A statement made 
pursuant to this paragraph shall be limited to such information as is 
necessary to mitigate the recent adverse publicity.
    (5) The protection and release of information in matters pertaining 
to the DON is governed by such statutes as the Freedom of Information 
Act and the Privacy Act, in addition to those governing protection of 
national defense information. In addition, other laws and regulations 
may further restrict the information that can be released or the source 
from which it is to be released (e.g., the Manual of the Judge Advocate 
General).
    (b) [Reserved]



Sec. 776.46  Attorney as witness.

    (a) Attorney as witness:
    (1) A covered attorney shall not act as advocate at a trial in which 
the covered attorney is likely to be a necessary witness except when:
    (i) The testimony relates to an uncontested issue;
    (ii) The testimony relates to the nature and quality of legal 
services rendered in the case; or
    (iii) Disqualification of the covered attorney would work 
substantial hardship on the client.
    (2) A covered attorney may act as advocate in a trial in which 
another attorney in the covered attorney's office is likely to be called 
as a witness, unless precluded from doing so by Sec. 776.26 or Sec. 
776.28 of this part.
    (b) [Reserved]



Sec. 776.47  Special responsibilities of a trial counsel.

    (a) Special responsibilities of a trial counsel. A trial counsel 
shall:
    (1) Recommend to the convening authority that any charge or 
specification not warranted by the evidence be withdrawn;
    (2) Make reasonable efforts to assure that the accused has been 
advised of the right to, and the procedure for obtaining, counsel and 
has been given reasonable opportunity to obtain counsel;
    (3) Not seek to obtain from an unrepresented accused a waiver of 
important pretrial rights;
    (4) Make timely disclosure to the defense of all evidence or 
information known to the trial counsel that tends to negate the guilt of 
the accused or mitigates the offense, and, in connection with 
sentencing, disclose to the defense all unprivileged mitigating 
information known to the trial counsel, except when the trial counsel is 
relieved of this responsibility by a protective order or regulation;
    (5) Exercise reasonable care to prevent investigators, law 
enforcement personnel, employees, or other persons assisting or 
associated with the trial counsel from making an extrajudicial statement 
that the trial counsel would be prohibited from making under Sec. 
776.45 of this part; and
    (6) Except for statements that are necessary to inform the public of 
the nature and extent of the trial counsel's actions and that serve a 
legitimate law enforcement purpose, refrain from making extrajudicial 
comments that have a substantial likelihood of heightening public 
condemnation of the accused.
    (b) Role of the trial counsel. (1) The trial counsel represents the 
United States in the prosecution of special and general courts-martial. 
See Article 38(a), UCMJ, and R.C.M. 103(16), 405(d)(3)(A), and 
502(d)(5), MCM, 1998. Accordingly, a trial counsel has the 
responsibility of administering justice and is not simply an advocate. 
This responsibility carries with it specific obligations to see that the 
accused is accorded procedural justice and that guilt is decided upon 
the basis of sufficient evidence. Paragraph (a)(1) of this section 
recognizes that the trial counsel does not have all the authority vested 
in modern civilian prosecutors. The authority to convene courts-martial, 
and to refer and withdraw specific charges, is vested in convening 
authorities. Trial counsel may have the duty, in certain circumstances, 
to bring to the court's attention any charge that lacks sufficient 
evidence to support a conviction. See United States v. Howe, 37 M.J. 
1062 (NMCMR 1993).

[[Page 507]]

Such action should be undertaken only after consultation with a 
supervisory attorney and the convening authority. See also Sec. 776.42 
of this part, governing ex parte proceedings. Applicable law may require 
other measures by the trial counsel. Knowing disregard of those 
obligations or a systematic abuse of prosecutorial discretion could 
constitute a violation of Sec. 776.69 of this part.
    (2) The ``ABA Standards for Criminal Justice: The Prosecution 
Function,'' (3rd ed. 1993), has been used by appellate courts in 
analyzing issues concerning trial counsel conduct. To the extent 
consistent with this part, the ABA standards may be used to guide trial 
counsel in the prosecution of criminal cases. See United States v. Howe, 
37 M.J. 1062 (NMCR 1993); United States v. Dancy, 38 M.J. 1 (CMA 1993); 
United States v. Hamilton, 41 M.J. 22 (CMA 1994); United States v. Meek, 
44 M.J. 1 (CMA 1996).



Sec. 776.48  Advocate in nonadjudicative proceedings.

    (a) Advocate in nonadjudicative proceedings. A covered attorney 
representing a client before a legislative or administrative tribunal in 
a nonadjudicative proceeding shall disclose that the appearance is in a 
representative capacity and shall conform to the provisions of Sec. 
776.42, Sec. 776.43, and Sec. 776.44 of this part.
    (b) [Reserved]



Sec. 776.49  Truthfulness in statements to others.

    (a) Truthfulness in statements to others. In the course of 
representing a client a covered attorney shall not knowingly;
    (1) Make a false statement of material fact or law to a third 
person; or
    (2) Fail to disclose a material fact to a third person when 
disclosure is necessary to avoid assisting a criminal or fraudulent act 
by a client, unless disclosure is prohibited by Sec. 776.25 of this 
part.
    (b) [Reserved]



Sec. 776.50  Communication with person represented by counsel.

    (a) Communication with person represented by counsel. In 
representing a client, a covered attorney shall not communicate about 
the subject of the representation with a party the covered attorney 
knows to be represented by another attorney in the matter, unless the 
covered attorney has the consent of the other attorney or is authorized 
by law to do so.
    (b) [Reserved]



Sec. 776.51  Dealing with an unrepresented person.

    (a) Dealing with an unrepresented person. When dealing on behalf of 
a client with a person who is not represented by counsel, a covered 
attorney shall not state or imply that the covered attorney is 
disinterested. When the covered attorney knows or reasonably should know 
that the unrepresented person misunderstands the covered attorney's role 
in the matter, the covered attorney shall make reasonable efforts to 
correct the misunderstanding.
    (b) [Reserved]



Sec. 776.52  Respect for rights of third persons.

    (a) Respect for rights of third persons. In representing a client, a 
covered attorney shall not use means that have no substantial purpose 
other than to embarrass, delay, or burden a third person, or use methods 
of obtaining evidence that violate the legal rights of such a person.
    (b) [Reserved]



Sec. 776.53  Responsibilities of the Judge Advocate General and supervisory attorneys.

    (a) Responsibilities of the Judge Advocate General and supervisory 
attorneys. (1) The JAG and supervisory attorneys shall make reasonable 
efforts to ensure that all covered attorneys conform to this part.
    (2) A covered attorney having direct supervisory authority over 
another covered attorney shall make reasonable efforts to ensure that 
the other attorney conforms to this part.
    (3) A supervisory attorney shall be responsible for another 
subordinate covered attorney's violation of this part if:
    (i) The supervisory attorney orders or, with knowledge of the 
specific conduct, ratifies the conduct involved; or

[[Page 508]]

    (ii) The supervisory attorney has direct supervisory authority over 
the other attorney and knows of the conduct at a time when its 
consequences can be avoided or mitigated but fails to take reasonable 
remedial action.
    (4) A supervisory attorney is responsible for ensuring that the 
subordinate covered attorney is properly trained, is competent to 
perform the duties and has all appropriate credentials, including 
security clearances, to perform the duties to which the subordinate 
covered attorney is assigned.
    (b) [Reserved]

[65 FR 15060, Mar. 21, 2000, as amended at 66 FR 70165, Nov. 21, 2002]



Sec. 776.54  Responsibilities of a subordinate attorney.

    (a) Responsibilities of a subordinate attorney:
    (1) A covered attorney is bound by this part notwithstanding that 
the covered attorney acted at the direction of another person.
    (2) In recognition of the judge advocate's unique dual role as a 
commissioned officer and attorney, subordinate judge advocates shall 
obey lawful directives and regulations of supervisory attorneys when not 
inconsistent with this part or the duty of a judge advocate to exercise 
independent professional judgment as to the best interest of an 
individual client.
    (3) A subordinate covered attorney does not violate this part if 
that covered attorney acts in accordance with a supervisory attorney's 
written and reasonable resolution of an arguable question of 
professional duty. See Sec. 776.10.
    (b) [Reserved]



Sec. 776.55  Responsibilities regarding non-attorney assistants.

    (a) Responsibilities regarding non-attorney assistants. With respect 
to a non-attorney acting under the authority, supervision, or direction 
of a covered attorney:
    (1) The senior supervisory attorney in an office shall make 
reasonable efforts to ensure that the person's conduct is compatible 
with the professional obligations of a covered attorney;
    (2) A covered attorney having direct supervisory authority over the 
non-attorney shall make reasonable efforts to ensure that the person's 
conduct is compatible with the professional obligations of a covered 
attorney; and
    (3) A covered attorney shall be responsible for conduct of such a 
person that would be a violation of this part if engaged in by a covered 
attorney if:
    (i) The covered attorney orders or, with the knowledge of the 
specific conduct, explicitly or impliedly ratifies the conduct involved; 
or
    (ii) The covered attorney has direct supervisory authority over the 
person, and knows of the conduct at a time when its consequences can be 
avoided or mitigated but fails to take reasonable remedial action.
    (b) [Reserved]



Sec. 776.56  Professional independence of a covered USG attorney.

    (a) Professional independence of a covered USG attorney. (1) 
Notwithstanding a judge advocate's status as a commissioned officer 
subject, generally, to the authority of superiors, a judge advocate 
detailed or assigned to represent an individual member or employee of 
the DON is expected to exercise unfettered loyalty and professional 
independence during the representation consistent with these Rules and 
remains ultimately responsible for acting in the best interest of the 
individual client.
    (2) Notwithstanding a civilian USG attorney's status as a Federal 
employee subject, generally, to the authority of superiors, a civilian 
USG attorney detailed or assigned to represent an individual member or 
employee of the DON is expected to exercise unfettered loyalty and 
professional independence during the representation consistent with 
these Rules and remains ultimately responsible for acting in the best 
interest of the individual client.
    (3) The exercise of professional judgment in accordance with 
paragraphs (a)(1) and (a)(2) of this section shall not, standing alone, 
be a basis for an adverse evaluation or other prejudicial action.
    (b)(1) This section recognizes that a judge advocate is a military 
officer required by law to obey the lawful orders of superior officers. 
It also recognizes

[[Page 509]]

the similar status of a civilian USG attorney. Nevertheless, the 
practice of law requires the exercise of judgment solely for the benefit 
of the client and free of compromising influences and loyalties. Thus, 
when a covered USG attorney is assigned to represent an individual 
client, neither the attorney's personal interests, the interests of 
other clients, nor the interests of third persons should affect loyalty 
to the individual client.
    (2) Not all direction given to a subordinate covered attorney is an 
attempt to influence improperly the covered attorney's professional 
judgment. Each situation must be evaluated by the facts and 
circumstances, giving due consideration to the subordinate's training, 
experience, and skill. A covered attorney subjected to outside pressures 
should make full disclosure of them to the client. If the covered 
attorney or the client believes the effectiveness of the representation 
has been or will be impaired thereby, the covered attorney should take 
proper steps to withdraw from representation of the client.
    (3) Additionally, a judge advocate has a responsibility to report 
any instances of unlawful command influence. See R.C.M. 104, MCM, 1998.



Sec. 776.57  Unauthorized practice of law.

    (a) Unauthorized practice of law. A covered USG attorney shall not:
    (1) Except as authorized by an appropriate military department, 
practice law in a jurisdiction where doing so is prohibited by the 
regulations of the legal profession in that jurisdiction; or
    (2) Assist a person who is not a member of the bar in the 
performance of activity that constitutes the unauthorized practice of 
law.
    (b) Limiting the practice of law to members of the bar protects the 
public against rendition of legal services by unqualified persons. A 
covered USG attorney's performance of legal duties pursuant to a 
military department's authorization, however, is considered a Federal 
function and not subject to regulation by the states. Thus, a covered 
USG attorney may perform legal assistance duties even though the covered 
attorney is not licensed to practice in the jurisdiction within which 
the covered attorney's duty station is located. Paragraph (a)(2) of this 
section does not prohibit a covered USG attorney from using the services 
of non-attorneys and delegating functions to them, so long as the 
covered attorney supervises the delegated work and retains 
responsibility for it. See Sec. 776.55 of this part. Likewise, it does 
not prohibit covered USG attorneys from providing professional advice 
and instruction to non-attorneys whose employment requires knowledge of 
law; for example, claims adjusters, social workers, accountants and 
persons employed in Government agencies. In addition, a covered USG 
attorney may counsel individuals who wish to proceed pro se or non-
attorneys authorized by law or regulation to appear and represent 
themselves or others before military proceedings.



Sec. Sec. 776.58-776.65  [Reserved]



Sec. 776.66  Bar admission and disciplinary matters.

    (a) Bar admission and disciplinary matters. A covered attorney, in 
connection with any application for bar admission, appointment as a 
judge advocate, employment as a civilian USG attorney, certification by 
the JAG or his designee, or in connection with any disciplinary matter, 
shall not:
    (1) Knowingly make a false statement of fact; or
    (2) Fail to disclose a fact necessary to correct a misapprehension 
known by the person to have arisen in the matter, or knowingly fail to 
respond to a lawful demand for information from an admissions or 
disciplinary authority, except that this section does not require 
disclosure of information otherwise protected by Sec. 776.25 of this 
part.
    (b) The duty imposed by this section extends to covered attorneys 
and other attorneys seeking admission to a bar, application for 
appointment as a covered USG attorney (military or civilian) or 
certification by the JAG or his designee. Hence, if a person makes a 
false statement in connection with an application for admission or 
certification (e.g., misstatement by a civilian attorney before a 
military judge regarding qualifications under Rule for Courts-Martial 
502), it may be the basis

[[Page 510]]

for subsequent disciplinary action if the person is admitted or 
certified, and in any event may be relevant in a subsequent admission 
application. The duty imposed by this section applies to a covered 
attorney's own admission or discipline as well as that of others. Thus, 
it is a separate professional offense for a covered attorney to make a 
knowing misrepresentation or omission in connection with a disciplinary 
investigation of the covered attorney's own conduct. This section also 
requires affirmative clarification of any misunderstanding on the part 
of the admissions, certification, or disciplinary authority of which the 
person involved becomes aware.



Sec. 776.67  Judicial and legal officers.

    (a) Judicial and legal officers. A covered attorney shall not make a 
statement that the covered attorney knows to be false or with reckless 
disregard as to its truth or falsity concerning the qualifications or 
integrity of a judge, investigating officer, hearing officer, 
adjudicatory officer, or public legal officer, or of a candidate for 
election or appointment to judicial or legal office.
    (b) [Reserved]



Sec. 776.68  Reporting professional misconduct.

    (a) Reporting professional misconduct:
    (1) A covered attorney having knowledge that another covered 
attorney has committed a violation of this part that raises a 
substantial question as to that covered attorney's honesty, 
trustworthiness, or fitness as a covered attorney in other respects, 
shall report such violation in accordance with the procedures set forth 
in subpart C of this part.
    (2) A covered attorney having knowledge that a judge has committed a 
violation of applicable rules of judicial conduct that raises a 
substantial question as to the judge's fitness for office shall report 
such violation in accordance with the procedures set forth in subpart C 
of this part.
    (3) This Rule does not require disclosure of information otherwise 
protected by Sec. 776.25 of this part.
    (b) [Reserved]



Sec. 776.69  Misconduct.

    (a) Misconduct. It is professional misconduct for a covered attorney 
to:
    (1) Violate or attempt to violate this subpart, knowingly assist or 
induce another to do so, or do so through the acts of another;
    (2) Commit a criminal act that reflects adversely on the covered 
attorney's honesty, trustworthiness, or fitness as an attorney in other 
respects;
    (3) Engage in conduct involving dishonesty, fraud, deceit, or 
misrepresentation;
    (4) Engage in conduct that is prejudicial to the administration of 
justice;
    (5) State or imply an ability to influence improperly a government 
agency or official; or
    (6) Knowingly assist a judge or judicial officer in conduct that is 
a violation of applicable rules of judicial conduct or other law.
    (b)(1) Judge advocates hold a commission as an officer in the Navy 
or Marine Corps and assume legal responsibilities going beyond those of 
other citizens. A judge advocate's abuse of such commission can suggest 
an inability to fulfill the professional role of judge advocate and 
attorney. This concept has similar application to civilian USG 
attorneys.
    (2) Covered non-USG attorneys, Reservists, and Retirees (acting in 
their civilian capacity), like their active-duty counterparts, are 
expected to demonstrate model behavior and exemplary integrity at all 
times. JAG may consider any and all derogatory or beneficial information 
about a covered attorney, for purposes of determining the attorney's 
qualification, professional competence, or fitness to practice law in 
DON matters, or to administer discipline under this part. Such 
consideration shall be made, except in emergency situations 
necessitating immediate action, according to the procedures established 
in subpart C of this part.



Sec. 776.70  Jurisdiction.

    (a) Jurisdiction. All covered attorneys, as defined in Sec. 776.2 
of this part, shall be governed by this part.
    (b)(1) Many covered USG attorneys practice outside the territorial 
limits

[[Page 511]]

of the jurisdiction in which they are licensed. While covered attorneys 
remain subject to the governing authority of the jurisdiction in which 
they are licensed to practice, they are also subject to these Rules.
    (2) When covered USG attorneys are engaged in the conduct of Navy or 
Marine Corps legal functions, whether serving the Navy or Marine Corps 
as a client or serving an individual client as authorized by the Navy or 
Marine Corps, the rules contained in this subpart supersede any 
conflicting rules applicable in jurisdictions in which the covered 
attorney may be licensed. However, covered attorneys practicing in State 
or Federal civilian court proceedings will abide by the rules adopted by 
that State or Federal civilian court during the proceedings. As for 
covered non-USG attorneys practicing under the supervision of the JAG, 
violation of the rules contained in this subpart may result in 
suspension from practice in DON proceedings.
    (3) Covered non-USG attorneys, Reservists, or Retirees (acting in 
their civilian capacity) who seek to provide legal services in any DON 
matter under JAG cognizance and supervision, may be precluded from such 
practice of law if, in the opinion of the JAG (as exercised through this 
instruction) the attorney's conduct in any venue renders that attorney 
unable or unqualified to practice in DON programs or proceedings.



Sec. 776.71  Requirement to remain in good standing with licensing authorities.

    (a) Requirement to remain in good standing with state licensing 
authority:
    (1) Each officer of the Navy appointed as a member of the Judge 
Advocate General's Corps, each officer of the Marine Corps designated a 
judge advocate, and each civil service and contracted civilian attorney 
who practices law under the cognizance and supervision of the JAG shall 
maintain a status considered ``in good standing'' at all times with the 
licensing authority admitting the individual to the practice of law 
before the highest court of at least one State, Territory, Commonwealth, 
or the District of Columbia.
    (2) The JAG, the Director, JA Division, HQMC, or any other 
supervisory attorney may require any covered USG attorney over whom they 
exercise authority to establish that the attorney continues to be in 
good standing with his or her licensing authority. Representatives of 
the JAG or of the Director, JA Division, HQMC, may also inquire directly 
of any such covered USG attorney's licensing authority to establish 
whether he or she continues to be in good standing and has no 
disciplinary action pending.
    (3) Each covered USG attorney shall immediately report to the JAG if 
any jurisdiction in which the covered USG attorney is or has been a 
member in good standing commences disciplinary investigation or action 
against him or her or if the covered USG attorney is disciplined, 
suspended, or disbarred from the practice of law in any jurisdiction.
    (4) Each covered non-USG attorney representing an accused in any 
court-martial or administrative separation proceeding shall be a member 
in good standing with, and authorized to practice law by, the bar of a 
Federal court or of the bar of the highest court of a State, or a lawyer 
otherwise authorized by a recognized licensing authority to practice law 
and found by the military judge to be qualified to represent the 
accused.
    (b)(1) The licensing authority granting the certification or 
privilege to practice law within the jurisdiction generally defines the 
phrase ``in good standing.'' At a minimum it means that the individual 
is subject to the jurisdiction's disciplinary review process; has not 
been suspended or disbarred from the practice of law within the 
jurisdiction; is up-to-date in the payment of all required fees; has met 
applicable continuing legal education requirements which the 
jurisdiction has imposed (or the cognizant authority has waived those 
requirements in the case of the individual); and has met such other 
requirements as the cognizant authority has set to remain eligible to 
practice law. So long as these conditions are met, a covered USG 
attorney may be considered ``inactive'' as to the practice of law within 
a particular jurisdiction and still be considered ``in

[[Page 512]]

good standing'' for purposes of this section.
    (2) Rule for Courts-Martial 502(d)(3)(A) requires that any civilian 
defense counsel representing an accused in a court-martial be a member 
of the bar of a Federal court or of the bar of the highest court of a 
State. This civilian defense counsel qualification only has meaning if 
the attorney is a member ``in good standing,'' see U.S. v. Waggoner, 22 
M.J. 692 (AFCMR 1986), and is then authorized to practice law within 
that jurisdiction. It is appropriate for the military judge, in each and 
every case, to ensure that a civilian defense counsel is qualified to 
represent the accused.
    (3) Failure of a judge advocate to comply with the requirements of 
this Rule may result in professional disciplinary action as provided for 
in this instruction, loss of certification under Articles 26 and/or 
27(b), UCMJ, adverse entries in military service records, and 
administrative separation under Secretary of the Navy Instruction 1920.6 
(series) based on the officer's failure to maintain professional 
qualifications. In the case of civil service and contracted civilian 
attorneys practicing under the JAG's cognizance and supervision, failure 
to maintain good standing or otherwise to comply with the requirements 
of this Rule may result in adverse administrative action under 
applicable personnel regulations, including termination of employment.
    (4) A covered USG attorney need only remain in good standing in one 
jurisdiction. If admitted to the practice of law in more than one 
jurisdiction, however, and any jurisdiction commences disciplinary 
action against or disciplines, suspends or disbars the covered USG 
attorney from the practice of law, the covered USG attorney must so 
advise the JAG.
    (5) Certification by the United States Court of Appeals for the 
Armed Forces that a covered attorney is in good standing with that court 
will not satisfy the requirement of this section, since such status is 
normally dependent on Article 27 UCMJ certification alone.



Sec. Sec. 776.72-776.75  [Reserved]



                Subpart C_Complaint Processing Procedures



Sec. 776.76  Policy.

    (a) It is JAG's policy to investigate and resolve, expeditiously and 
fairly, all allegations of professional impropriety lodged against 
covered attorneys practicing under JAG cognizance and supervision.
    (b) Rules Counsel approval will be obtained before conducting any 
preliminary inquiry or formal investigation into an alleged violation of 
subpart B of this part or the Code of Judicial Conduct. The Rules 
Counsel will notify the JAG prior to the commencement of any preliminary 
inquiry or investigation. The preliminary inquiry and any subsequent 
investigation will be conducted according to the procedures set forth in 
this subpart.



Sec. 776.77  Related investigations and actions.

    Acts or omissions by covered attorneys may constitute professional 
misconduct, criminal misconduct, poor performance of duty, or a 
combination of all three. Care must be taken to characterize 
appropriately the nature of a covered attorney's conduct to determine 
who may and properly should take official action.
    (a) Questions of legal ethics and professional misconduct by covered 
attorneys are within the exclusive province of JAG. Ethical or 
professional misconduct will not be attributed to any covered attorney 
in any official record without a final JAG determination, made in 
accordance with this part, that such misconduct has occurred.
    (b) Criminal misconduct is properly addressed by the covered USG 
attorney's commander through the disciplinary process provided under the 
UCMJ and implementing regulations, or through referral to appropriate 
civil authority.
    (c) Poor performance of duty is properly addressed by the covered 
USG attorney's reporting senior through a variety of administrative 
actions, including documentation in fitness reports or employee 
appraisals.

[[Page 513]]

    (d) Prior JAG approval is not required to investigate allegations of 
criminal conduct or poor performance of duty involving covered 
attorneys. When, however, investigations into criminal conduct or poor 
performance reveal conduct that constitutes a violation of this part, or 
of the Code of Judicial Conduct in the case of judges, such conduct 
shall be reported to the Rules Counsel immediately.
    (e) Inquiries into allegations of professional misconduct will 
normally be held in abeyance until any related criminal investigation or 
proceeding is complete. However, a pending criminal investigation or 
proceeding does not bar the initiation or completion of a professional 
misconduct investigation stemming from the same or related incidents or 
prevent the JAG from imposing professional disciplinary sanctions as 
provided for in this subpart.



Sec. 776.78  Informal complaints.

    Informal, anonymous, or ``hot line'' type complaints alleging 
professional misconduct must be referred to appropriate authority (such 
as the JAG Inspector General or the concerned supervisory attorney) for 
inquiry. Such complaints are not, by themselves, cognizable under this 
subpart but may, if reasonably confirmed, be the basis of a formal 
complaint described in Sec. 776.79 of this part.



Sec. 776.79  The complaint.

    (a) The complaint shall:
    (1) Be in writing and be signed by the complainant;
    (2) State that the complainant has personal knowledge, or has 
otherwise received reliable information indicating, that:
    (i) The covered attorney concerned is, or has been, engaged in 
misconduct that demonstrates a lack of integrity, that constitutes a 
violation of subpart B of this part or a failure to meet the ethical 
standards of the profession; or
    (ii) The covered attorney concerned is ethically, professionally, or 
morally unqualified to perform his or her duties; and
    (3) Contain a complete, factual statement of the acts or omissions 
constituting the substance of the complaint, as well as a description of 
any attempted resolution with the covered attorney concerned. Supporting 
statements, if any, should be attached to the complaint.
    (b) A complaint may be initiated by any person, including the 
Administrative Law Division of the Office of JAG (JAG (13)), or the 
Judge Advocate Research and Civil Law Branch, JA Division, HQMC (JAR).



Sec. 776.80  Initial screening and Rules Counsel.

    (a) Complaints shall be forwarded to JAG(13) or, in cases involving 
Marine Corps judge advocates or civil service and contracted civilian 
attorneys who perform legal services under the cognizance and 
supervision of Director, JA Division, HQMC, to JAR.
    (b) JAG(13) and JAR shall log all complaints received and will 
ensure that a copy is provided to the covered attorney who is the 
subject of the complaint.
    (c) The covered attorney concerned may elect to provide an initial 
statement regarding the complaint for the Rules Counsel's consideration. 
The covered attorney will promptly inform JAG(13) or JAR if he or she 
intends to submit any such statement. At this screening stage, 
forwarding of the complaint to the Rules Counsel will not be unduly 
delayed to await the covered attorney's submission.
    (d) The Rules Counsel shall initially review the complaint, and any 
statement submitted by the covered attorney complained of, to determine 
whether it complies with the requirements set forth in Sec. 776.79 of 
this part.
    (1) Complaints that do not comply with the requirements may be 
returned to the complainant for correction or completion, and 
resubmission to JAG(13) or JAR. If the complaint is not corrected or 
completed, and resubmitted within 30 days of the date of its return, the 
Rules Counsel may close the file without further action. JAG (13) and 
JAR will maintain copies of all correspondence relating to the return 
and resubmission of a complaint, and shall notify the covered attorney 
concerned if and when the Rules Counsel takes action to close the file.
    (2) Complaints that comply with the requirements shall be further 
reviewed

[[Page 514]]

by the Rules Counsel to determine whether the complaint:
    (i) Establishes probable cause to believe that a violation of this 
part or of the Judicial Code has occurred; or
    (ii) Alleges ineffective assistance of counsel, or other violations 
of subpart B of this part, as a matter of defense in a court-martial, 
administrative separation, or nonjudicial punishment proceeding. If so, 
the Rules Counsel shall forward a copy of the complaint to the proper 
appellate authority for appropriate action and comment.
    (e) The Rules Counsel shall close the file without further action if 
the complaint does not establish probable cause to believe that a 
violation has occurred. The Rules Counsel shall notify the complainant 
and the covered attorney concerned that the file has been closed. 
JAG(13) and JAR will maintain copies of all correspondence related to 
the closing of the file.
    (f) The Rules Counsel may close the file if there is a determination 
that the complaint establishes probable cause but the violation is of a 
minor or technical nature appropriately addressed through corrective 
counseling. The Rules Counsel shall report any such decision to the JAG. 
The Rules Counsel shall ensure the covered attorney concerned receives 
appropriate counseling and shall notify the complainant and the covered 
attorney concerned that the file has been closed. JAG(13) and JAR will 
maintain copies of all correspondence related to the closing of the 
file. The covered attorney concerned is responsible, under these 
circumstances, to determine if his or her Federal, state, or local 
licensing authority requires reporting of such action.



Sec. 776.81  Charges.

    (a) If the Rules Counsel determines that there is probable cause to 
believe that a violation of this part or of the Code of Judicial Conduct 
has occurred, the Rules Counsel shall draft charges alleging violations 
of this part or of the Code of Judicial Conduct and forward the charges, 
together with the original complaint and any allied papers, as follows:
    (1) In cases involving Marine Corps attorneys not serving as defense 
counsel or attached to Navy units, to the officer exercising general 
court-martial jurisdiction (OEGCMJ) over the charged covered attorney, 
and request, on behalf of JAG, that the OEGCMJ appoint a covered 
attorney (normally the concerned attorney's supervisor) to conduct a 
preliminary inquiry into the matter;
    (2) In all other cases, to the supervisory attorney in the charged 
attorney's chain of command (or such other officer as JAG may 
designate), and direct, on behalf of JAG, the supervisory attorney to 
conduct a preliminary inquiry into the matter.
    (b) The Rules Counsel shall provide a copy of the charges, 
complaint, and any allied papers to the covered attorney against whom 
the complaint is made and notify him or her that a preliminary inquiry 
will be conducted. Service of complaints, charges, and other materials 
shall be made by personal service, or by registered or certified mail 
sent to the covered attorney's last known address reflected in official 
Navy or Marine Corps records or in the records of the state bar(s) which 
licensed the attorney to practice law.
    (c) The Rules Counsel shall also provide a copy of the charges to 
the commanding officer, or equivalent, of the covered USG attorney 
concerned if the complaint involves a covered USG attorney on active 
duty or in civilian Federal service.
    (d) The Rules Counsel shall also forward a copy of the charges as 
follows:
    (1) In cases involving Navy or Marine Corps judge advocates serving 
in Naval Legal Service Command (NLSC) units, to Vice Commander, NLSC;
    (2) In cases involving Navy attorneys serving in Marine Corps units, 
or involving Marine Corps attorneys serving in Navy units, to the 
Commandant of the Marine Corps (Attn: JA);
    (3) In cases involving members of the Navy-Marine Corps Trial 
Judiciary, to the Trial Judiciary Chief Judge; and
    (4) To the appropriate military service attorney discipline section 
if the complaint involves covered attorneys certified by the Judge 
Advocates General/Chief Counsel of the other uniformed services.

[[Page 515]]



Sec. 776.82  Interim suspension.

    (a) Where the Rules Counsel determines there is probable cause to 
believe that a covered attorney has committed misconduct or other 
violations of this part, and poses a substantial threat of irreparable 
harm to his or her clients or the orderly administration of military 
justice, the Rules Counsel shall so advise the JAG. Examples of when a 
covered attorney may pose a ``substantial threat of irreparable harm'' 
include:
    (1) When charged with the commission of a crime which involves moral 
turpitude or reflects adversely upon the covered attorney's fitness to 
practice law, and where substantial evidence exists to support the 
charge;
    (2) When engaged in the unauthorized practice of law (e.g., failure 
to maintain good standing in accordance with Sec. 776.71 of this part); 
or
    (3) Where unable to represent client interests competently.
    (b) Upon receipt of information from the Rules Counsel, JAG may 
order the covered attorney to show cause why he or she should not face 
interim suspension, pending completion of a professional responsibility 
investigation. The covered attorney shall have 10 calendar days in which 
to respond.
    (c) If an order to show cause has been issued under paragraph (b) of 
this section, and the period for response has passed without a response, 
or after consideration of any response and finding sufficient evidence 
demonstrating probable cause to believe that the covered attorney is 
guilty of misconduct and poses a substantial threat of irreparable harm 
to his or her client or the orderly administration of military justice, 
JAG may direct an interim suspension of the covered attorney's 
certification under Articles 26(b) or 27(b), UCMJ, or R.C.M. 502(d)(3), 
or the authority to provide legal assistance, pending the results of the 
investigation and final action under this instruction.
    (d) Within 10 days of JAG's decision to impose an interim 
suspension, the covered attorney may request an opportunity to be heard 
before an impartial officer designated by JAG. Where so requested, that 
opportunity will be scheduled within 10 calendar days of the request. 
The designated officer shall receive any information that the covered 
attorney chooses to submit on the limited issue of whether to continue 
the interim suspension. The designated officer shall submit a 
recommendation to JAG within 5 calendar days of conclusion.
    (e) A covered attorney may, based upon a claim of changed 
circumstances or newly discovered evidence, petition for dissolution or 
amendment of JAG's imposition of interim suspension.
    (f) Any professional responsibility investigation involving a 
covered attorney who has been suspended pursuant to this section shall 
proceed and be concluded without appreciable delay. However, JAG may 
determine it necessary to await completion of a related criminal 
investigation or proceeding, or completion of a professional 
responsibility action initiated by other licensing authorities. In such 
cases, JAG shall cause the Rules Counsel to so notify the covered 
attorney under interim suspension. Where necessary, continuation of the 
interim suspension shall be reviewed by JAG every 6 months.



Sec. 776.83  Preliminary inquiry.

    (a) The purpose of the preliminary inquiry is to determine whether, 
in the opinion of the officer appointed to conduct the preliminary 
inquiry (PIO), the questioned conduct occurred and, if so, whether it 
constitutes a violation of this part or the Code of Judicial Conduct. 
The PIO is to recommend appropriate action in cases of substantiated 
violations.
    (b) Upon receipt of the complaint and charges, the PIO shall 
promptly investigate the charges, generally following the format and 
procedures set forth in the Manual of the Judge Advocate General for the 
conduct of command investigations. Reports of relevant investigations by 
other authorities including, but not limited to, State bar associations 
may be used. The PIO should also:
    (1) Identify and obtain sworn affidavits or statements from all 
relevant and material witnesses to the extent practicable;
    (2) Identify, gather, and preserve all other relevant and material 
evidence; and

[[Page 516]]

    (3) Provide the covered attorney concerned an opportunity to review 
all evidence, affidavits, and statements collected and a reasonable 
period of time (normally not exceeding 7 days) to submit a written 
statement or any other written material that the covered attorney wishes 
considered.
    (c) The PIO may appoint and use such assistants as may be necessary 
to conduct the preliminary inquiry.
    (d) The PIO shall personally review the results of the preliminary 
inquiry to determine whether, by a preponderance of the evidence, a 
violation of this part or of the Judicial Code has occurred.
    (1) If the PIO determines that no violation has occurred or that the 
violation is minor or technical in nature and warrants only corrective 
counseling, then he or she may recommend that the file be closed.
    (2) If the PIO determines by a preponderance of the evidence that a 
violation did occur, and that corrective action greater than counseling 
may be warranted, he or she shall then recommend what further action is 
deemed appropriate.
    (e) The PIO shall forward (via the OEGCMJ in appropriate Marine 
cases) the results of the preliminary inquiry to the Rules Counsel, 
providing copies to the covered attorney concerned and all parties to 
whom the charges were previously sent.
    (f) The Rules Counsel shall review all preliminary inquiries. If the 
report is determined by the Rules Counsel to be incomplete, the Rules 
Counsel shall return it to the PIO, or to another inquiry officer, for 
further or supplemental inquiry. If the report is complete, then:
    (1) If the Rules Counsel determines, either consistent with the PIO 
recommendation or through the Rules Counsel's own review of the report, 
that a violation of this part or Code of Judicial Conduct has not 
occurred and that further action is not warranted, the Rules Counsel 
shall close the file and notify the complainant, the covered attorney 
concerned, and all officials previously provided copies of the 
complaint. JAG(13) and/or JAR, as appropriate, will maintain copies of 
all correspondence related to the closing of the file.
    (2) If the Rules Counsel determines, either consistent with a PIO 
recommendation or through the Rules Counsel's own review of the report, 
that a violation of this part has occurred but that the violation is of 
a minor or technical nature, then the Rules Counsel may determine that 
corrective counseling is appropriate and close the file. The Rules 
Counsel shall report any such decision to the JAG. The Rules Counsel 
shall ensure that the covered attorney concerned receives appropriate 
counseling and shall notify the complainant, the covered attorney 
concerned, and all officials previously provided copies of the complaint 
that the file has been closed. JAG(13) and/or JAR, as appropriate, will 
maintain copies of all correspondence related to the closing of the 
file. The covered attorney concerned is responsible, under these 
circumstances, to determine if his or her Federal, state, or local 
licensing authority requires reporting such action.
    (3) If the Rules Counsel determines, either consistent with a PIO 
recommendation or through the Rules Counsel's own review of the report, 
that further professional discipline or corrective action may be 
warranted, the Rules Counsel shall:
    (i) In cases involving Marine Corps attorneys not serving as defense 
counsel or attached to Navy units, request, on behalf of JAG, that the 
subject attorney's OEGCMJ appoint a disinterested covered attorney 
(normally senior to the covered attorney complained of and not 
previously involved in the case) to conduct an ethics investigation into 
the matter;
    (ii) In all other cases, appoint, on behalf of JAG, a disinterested 
covered attorney (normally senior to the covered attorney complained of 
and not previously involved in the case) to conduct an ethics 
investigation; and
    (iii) Notify those supervisory attorneys listed in Sec. 776.81(c) 
and Sec. 776.81(d) of this part.

[[Page 517]]



Sec. 776.84  Ethics investigation.

    (a) Whenever an ethics investigation is initiated, the covered 
attorney concerned will be so notified, in writing, by the Rules 
Counsel.
    (b) The covered attorney concerned will be provided written notice 
of the following rights in connection with the ethics investigation:
    (1) To request a hearing before the investigating officer (IO);
    (2) To inspect all evidence gathered;
    (3) To present written or oral statements or materials for 
consideration;
    (4) To call witnesses at his or her own expense (local military 
witnesses should be made available at no cost);
    (5) To be assisted by counsel (see paragraph (c) of this section);
    (6) To challenge the IO for cause (such challenges must be made in 
writing and sent to the Rules Counsel via the challenged officer); and
    (7) To waive any or all of these rights.
    (c) The covered attorney may be represented by counsel at the 
hearing. Such counsel may be:
    (1) A civilian attorney retained at no expense to the Government; 
or,
    (2) In the case of a covered USG attorney, another USG attorney:
    (i) Detailed by the cognizant Naval Legal Service Office (NLSO), Law 
Center, or Legal Service Support Section (LSSS); or
    (ii) Requested by the covered attorney concerned, if such counsel is 
attached to the cognizant NLSO, Law Center, LSSS, or to a Navy or Marine 
Corps activity located within 100 miles of the hearing site at the time 
of the scheduled hearing, and if such counsel is reasonably available, 
as determined by the requested counsel's reporting senior in his or her 
sole discretion. There is no right to detailed counsel if requested 
counsel is made available.
    (d) If a hearing is requested, the IO will conduct the hearing after 
reasonable notice to the covered attorney concerned. The hearing will 
not be unreasonably delayed. The hearing is not adversarial in nature 
and there is no right to subpoena witnesses. Rules of evidence do not 
apply. The covered attorney concerned or his or her counsel may question 
witnesses that appear. The proceedings shall be recorded but no 
transcript of the hearing need be made. Evidence gathered during, or 
subsequent to, the preliminary inquiry and such additional evidence as 
may be offered by the covered attorney shall be considered.
    (e) The IO may appoint and use such assistants as may be necessary 
to conduct the ethics investigation.
    (f) The IO shall prepare a report which summarizes the evidence, to 
include information presented at any hearing.
    (1) If the IO believes that no violation has occurred or that the 
violation is minor or technical in nature and warrants only corrective 
counseling, then he or she may recommend that the file be closed.
    (2) If the IO believes that a violation did occur, and that 
corrective action greater than counseling is warranted, he or she shall 
then recommend what further action is deemed appropriate.
    (g) The IO shall forward the ethics investigation, including the 
IO's recommendations, to the Rules Counsel, as follows:
    (1) In cases involving Navy or Marine Corps attorneys serving with 
NLSC units, via Vice Commander, NLSC;
    (2) In cases involving Navy attorneys serving with Marine Corps 
units, via the Commandant of the Marine Corps (Attn: JA);
    (3) In cases involving Navy or Marine Corps attorneys serving in 
subordinate Navy fleet or staff billets, via the fleet or staff judge 
advocate attached to the appropriate second-echelon commander;
    (4) In cases involving members of the Navy-Marine Corps Trial 
Judiciary, via the Trial Judiciary Chief Judge;
    (5) In cases involving Marine Corps attorneys serving in defense 
billets, via the Chief Defense Counsel of the Marine Corps;
    (6) In cases involving Marine Corps attorneys not serving in defense 
counsel billets or in Navy units, via the OEGCMJ over the concerned 
attorney; and
    (7) In cases involving covered attorneys certified by the Judge 
Advocates General/Chief Counsel of the other U.S. Armed Forces, via the 
appropriate military service attorney discipline section of that U.S. 
Armed Force.

[[Page 518]]

    (h) The Rules Counsel shall review all ethics investigations. If the 
report is determined by the Rules Counsel to be incomplete, the Rules 
Counsel shall return it to the IO, or to another inquiry officer, for 
further or supplemental inquiry. If the report is complete, then:
    (1) If the Rules Counsel determines, either consistent with the IO 
recommendation or through the Rules Counsel's own review of the 
investigation, that a violation of this part or Code of Judicial Conduct 
has not occurred and that further action is not warranted, the Rules 
Counsel shall close the file and notify the complainant, the covered 
attorney concerned, and all officials previously provided copies of the 
complaint. JAG(13) and/or JAR, as appropriate, will maintain copies of 
all correspondence related to the closing of the file.
    (2) If the Rules Counsel determines, either consistent with the IO 
recommendation or through the Rules Counsel's own review of the 
investigation, that a violation of this part or Code of Judicial Conduct 
has occurred but that the violation is of a minor or technical nature, 
then the Rules Counsel may determine that corrective counseling is 
appropriate and close the file. The Rules Counsel shall report any such 
decision to the JAG. The Rules Counsel shall ensure that the covered 
attorney concerned receives appropriate counseling and shall notify the 
complainant, the covered attorney concerned, and all officials 
previously provided copies of the complaint that the file has been 
closed. JAG(13) and/or JAR, as appropriate, will maintain copies of all 
correspondence related to the closing of the file. The covered attorney 
concerned is responsible, under these circumstances, to determine if his 
or her Federal, state, or local licensing authority requires reporting 
such action.
    (3) If the Rules Counsel believes, either consistent with the IO 
recommendation or through the Rules Counsel's own review of the 
investigation, that professional disciplinary action greater than 
corrective counseling is warranted, the Rules Counsel shall forward the 
investigation, with recommendations as to appropriate disposition, to 
JAG.



Sec. 776.85  Effect of separate proceeding.

    (a) For purposes of this section, the term ``separate proceeding'' 
includes, but is not limited to, court-martial, non-judicial punishment, 
administrative board, or similar civilian or military proceeding.
    (b) In cases in which a covered attorney is determined, at a 
separate proceeding determined by the Rules Counsel to afford procedural 
protection equal to that provided by a preliminary inquiry under this 
instruction, to have committed misconduct which forms the basis for 
ethics charges under this instruction, the Rules Counsel may dispense 
with the preliminary inquiry and proceed directly with an ethics 
investigation.
    (c) In those cases in which a covered attorney is determined to have 
committed misconduct at a separate proceeding which the Rules Counsel 
determines has afforded procedural protection equal to that provided by 
an ethics investigation under this instruction, the previous 
determination regarding the underlying misconduct is res judicata with 
respect to that issue during an ethics investigation. A subsequent 
ethics investigation based on such misconduct shall afford the covered 
attorney a hearing into whether the underlying misconduct constitutes a 
violation of this part, whether the violation affects his or her fitness 
to practice law, and what sanctions, if any, are appropriate.
    (d) The Rules Counsel may dispense with the preliminary inquiry and 
ethics investigation, and if warranted, recommend to JAG that the 
covered attorney concerned be disciplined, consistent with this subpart, 
after providing the covered attorney concerned written notice and an 
opportunity to be heard in writing, in those cases in which a covered 
attorney has been:
    (1) Decertified or suspended from the practice of law or otherwise 
subjected to professional responsibility discipline by the Judge 
Advocate General of another Military Department;
    (2) Disbarred or suspended from the practice of law or otherwise 
subjected to professional responsibility discipline by the Court of 
Appeals for the Armed Forces or by any Federal, State, or local bar; or

[[Page 519]]

    (3) Convicted of a felony (or any offense punishable by one year or 
more of imprisonment) in a civilian or military court which, in the 
opinion of the Rules Counsel, renders the attorney unqualified or 
incapable of properly or ethically representing the DON or a client when 
the Rules Counsel has determined that the attorney was afforded 
procedural protection equal to that provided by an ethics investigation 
under this instruction.



Sec. 776.86  Action by JAG.

    (a) JAG is not bound by the recommendation rendered by the Rules 
Counsel, IO, PIO, or any other interested party, but will base any 
action on the record as a whole. Nothing in this instruction limits JAG 
authority to suspend from the practice of law in DON matters any covered 
attorney alleged or found to have committed professional misconduct or 
violated this part, either in DON or civilian proceedings.
    (b) JAG may, but is not required to, refer any case to the 
Professional Responsibility Committee for an advisory opinion on 
interpretation of subpart B of this part or its application to the facts 
of a particular case.
    (c) Upon receipt of the ethics investigation, and any requested 
advisory opinion, JAG will take such action as JAG considers appropriate 
in JAG's sole discretion. JAG may, for example:
    (1) Direct further inquiry into specified areas.
    (2) Where determining the allegations to be unfounded, or that no 
further action is warranted, direct the Rules Counsel to make 
appropriate file entries and to notify the complainant, covered attorney 
concerned, and all interested parties of such determination.
    (3) Where determining the allegations to be supported by clear and 
convincing evidence, take appropriate corrective action including, but 
not limited to:
    (i) Limiting the covered attorney to practice under direct 
supervision of a supervisory attorney;
    (ii) Limiting the covered attorney to practice in certain areas or 
forbidding him or her from practice in certain areas;
    (iii) Suspending or revoking, for a specified or indefinite period, 
the covered attorney's authority to provide legal assistance;
    (iv) Where finding that the misconduct so adversely affects the 
covered attorney's continuing ability to practice law in the naval 
service or that the misconduct so prejudices the reputation of the DON 
legal community, the administration of military justice, the practice of 
law under the cognizance of JAG, or the armed services as a whole, that 
certification under Article 27(b), UCMJ (10 U.S.C. 827(b)), or R.C.M. 
502(b)(3), MCM, 1998, should be suspended or is no longer appropriate, 
directing such certification to be suspended for a prescribed or 
indefinite period or to be removed permanently;
    (v) In the case of a judge, where finding that the misconduct so 
prejudices the reputation of military trial and appellate judges that 
certification under Article 26(b), UCMJ (10 U.S.C. 826(b)), should be 
suspended or is no longer appropriate, directing such certification to 
be suspended for a prescribed or indefinite period or to be removed 
permanently; and
    (vi) Directing the Rules Counsel to contact appropriate authorities 
such as the Chief of Naval Personnel or the Commandant of the Marine 
Corps so that pertinent entries in appropriate DON records may be made; 
notifying the complainant, covered attorney concerned, and any officials 
previously provided copies of the complaint; and notifying appropriate 
tribunals and authorities of any action taken to suspend, decertify, or 
limit the practice of a covered attorney as counsel before courts-
martial or the U.S. Navy-Marine Corps Court of Appeals, administrative 
boards, as a legal assistance attorney, or in any other legal proceeding 
or matter conducted under JAG cognizance and supervision.



Sec. 776.87  Finality.

    Any action taken by JAG is final, subject to any remedies afforded 
by Navy Regulations or any other regulation to the covered attorney 
concerned.

[[Page 520]]



Sec. 776.88  Report to licensing authorities.

    Upon determination by JAG that a violation of the Rules or the Code 
of Judicial Conduct has occurred, JAG may cause the Rules Counsel to 
report that fact to the Federal, State, or local bar or other licensing 
authority of the covered attorney concerned. If so reported, notice to 
the covered attorney shall be provided by the Rules Counsel. The JAG's 
decision in no way diminishes a covered attorney's responsibility to 
report adverse professional disciplinary action as required by the 
attorney's Federal, State, and local bar or other licensing authority.

Subpart D [Reserved]

                        PARTS 777	799 [RESERVED]


[[Page 521]]



                              FINDING AIDS




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

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.

  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected

[[Page 523]]



                    Table of CFR Titles and Chapters




                      (Revised as of July 1, 2008)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
        IV  Miscellaneous Agencies (Parts 400--500)

                    Title 2--Grants and Agreements

            Subtitle A--Office of Management and Budget Guidance 
                for Grants and Agreements
         I  Office of Management and Budget Governmentwide 
                Guidance for Grants and Agreements (Parts 100--
                199)
        II  Office of Management and Budget Circulars and Guidance 
                (200--299)
            Subtitle B--Federal Agency Regulations for Grants and 
                Agreements
       III  Department of Health and Human Services (Parts 300-- 
                399)
        VI  Department of State (Parts 600--699)
      VIII  Department of Veterans Affairs (Parts 800--899)
        IX  Department of Energy (Parts 900--999)
        XI  Department of Defense (Parts 1100--1199)
       XII  Department of Transportation (Parts 1200--1299)
       XIV  Department of the Interior (Parts 1400--1499)
        XV  Environmental Protection Agency (Parts 1500--1599)
     XVIII  National Aeronautics and Space Administration (Parts 
                1880--1899)
      XXII  Corporation for National and Community Service (Parts 
                2200--2299)
     XXIII  Social Security Administration (Parts 2300--2399)
      XXIV  Housing and Urban Development (Parts 2400--2499)
       XXV  National Science Foundation (Parts 2500--2599)
      XXVI  National Archives and Records Administration (Parts 
                2600--2699)
     XXVII  Small Business Administration (Parts 2700--2799)
    XXVIII  Department of Justice (Parts 2800--2899)
     XXXII  National Endowment for the Arts (Parts 3200--3299)
    XXXIII  National Endowment for the Humanities (Parts 3300--
                3399)
      XXXV  Export-Import Bank of the United States (Parts 3500--
                3599)
    XXXVII  Peace Corps (Parts 3700--3799)

[[Page 524]]

                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  Government Accountability Office (Parts 1--99)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Parts 2100--2199)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)
        XV  Office of Administration, Executive Office of the 
                President (Parts 2500--2599)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Parts 3200--
                3299)
     XXIII  Department of Energy (Parts 3300--3399)
      XXIV  Federal Energy Regulatory Commission (Parts 3400--
                3499)
       XXV  Department of the Interior (Parts 3500--3599)
      XXVI  Department of Defense (Parts 3600-- 3699)
    XXVIII  Department of Justice (Parts 3800--3899)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  Overseas Private Investment Corporation (Parts 4300--
                4399)
      XXXV  Office of Personnel Management (Parts 4500--4599)
        XL  Interstate Commerce Commission (Parts 5000--5099)
       XLI  Commodity Futures Trading Commission (Parts 5100--
                5199)
      XLII  Department of Labor (Parts 5200--5299)
     XLIII  National Science Foundation (Parts 5300--5399)
       XLV  Department of Health and Human Services (Parts 5500--
                5599)
      XLVI  Postal Rate Commission (Parts 5600--5699)
     XLVII  Federal Trade Commission (Parts 5700--5799)
    XLVIII  Nuclear Regulatory Commission (Parts 5800--5899)
         L  Department of Transportation (Parts 6000--6099)
       LII  Export-Import Bank of the United States (Parts 6200--
                6299)
      LIII  Department of Education (Parts 6300--6399)

[[Page 525]]

       LIV  Environmental Protection Agency (Parts 6400--6499)
        LV  National Endowment for the Arts (Parts 6500--6599)
       LVI  National Endowment for the Humanities (Parts 6600--
                6699)
      LVII  General Services Administration (Parts 6700--6799)
     LVIII  Board of Governors of the Federal Reserve System 
                (Parts 6800--6899)
       LIX  National Aeronautics and Space Administration (Parts 
                6900--6999)
        LX  United States Postal Service (Parts 7000--7099)
       LXI  National Labor Relations Board (Parts 7100--7199)
      LXII  Equal Employment Opportunity Commission (Parts 7200--
                7299)
     LXIII  Inter-American Foundation (Parts 7300--7399)
      LXIV  Merit Systems Protection Board (Parts 7400--7499)
       LXV  Department of Housing and Urban Development (Parts 
                7500--7599)
      LXVI  National Archives and Records Administration (Parts 
                7600--7699)
     LXVII  Institute of Museum and Library Services (Parts 7700--
                7799)
    LXVIII  Commission on Civil Rights (Parts 7800--7899)
      LXIX  Tennessee Valley Authority (Parts 7900--7999)
      LXXI  Consumer Product Safety Commission (Parts 8100--8199)
    LXXIII  Department of Agriculture (Parts 8300--8399)
     LXXIV  Federal Mine Safety and Health Review Commission 
                (Parts 8400--8499)
     LXXVI  Federal Retirement Thrift Investment Board (Parts 
                8600--8699)
    LXXVII  Office of Management and Budget (Parts 8700--8799)
     XCVII  Department of Homeland Security Human Resources 
                Management System (Department of Homeland 
                Security--Office of Personnel Management) (Parts 
                9700--9799)
      XCIX  Department of Defense Human Resources Management and 
                Labor Relations Systems (Department of Defense--
                Office of Personnel Management) (Parts 9900--9999)

                      Title 6--Domestic Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 0--99)
         X  Privacy and Civil Liberties Oversight Board (Parts 
                1000--1099)

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Nutrition Service, Department of Agriculture 
                (Parts 210--299)

[[Page 526]]

       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Grain Inspection, Packers and Stockyards 
                Administration (Federal Grain Inspection Service), 
                Department of Agriculture (Parts 800--899)
        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  Rural Telephone Bank, Department of Agriculture (Parts 
                1600--1699)
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
        XX  Local Television Loan Guarantee Board (Parts 2200--
                2299)
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy Policy and New Uses, Department of 
                Agriculture (Parts 2900--2999)
       XXX  Office of the Chief Financial Officer, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  Cooperative State Research, Education, and Extension 
                Service, Department of Agriculture (Parts 3400--
                3499)

[[Page 527]]

      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)

                    Title 8--Aliens and Nationality

         I  Department of Homeland Security (Immigration and 
                Naturalization) (Parts 1--499)
         V  Executive Office for Immigration Review, Department of 
                Justice (Parts 1000--1399)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)
        II  Grain Inspection, Packers and Stockyards 
                Administration (Packers and Stockyards Programs), 
                Department of Agriculture (Parts 200--299)
       III  Food Safety and Inspection Service, Department of 
                Agriculture (Parts 300--599)

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
      XIII  Nuclear Waste Technical Review Board (Parts 1303--
                1399)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Parts 1800--1899)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)

[[Page 528]]

       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  Office of Thrift Supervision, Department of the 
                Treasury (Parts 500--599)
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  Federal Housing Finance Board (Parts 900--999)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Department of the Treasury (Parts 1500--1599)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700--1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)
        IV  Emergency Steel Guarantee Loan Board, Department of 
                Commerce (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board, 
                Department of Commerce (Parts 500--599)

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)
        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--499)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)

[[Page 529]]

       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Industry and Security, Department of 
                Commerce (Parts 700--799)
      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  Technology Administration, Department of Commerce 
                (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399)

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  Bureau of Customs and Border Protection, Department of 
                Homeland Security; Department of the Treasury 
                (Parts 0--199)
        II  United States International Trade Commission (Parts 
                200--299)

[[Page 530]]

       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Bureau of Immigration and Customs Enforcement, 
                Department of Homeland Security (Parts 400--599)

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)
        IV  Employees Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Employment Standards Administration, Department of 
                Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 1000--1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  Broadcasting Board of Governors (Parts 500--599)
       VII  Overseas Private Investment Corporation (Parts 700--
                799)
        IX  Foreign Service Grievance Board (Parts 900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
      XIII  Millenium Challenge Corporation (Parts 1300--1399)

[[Page 531]]

       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)
        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-Federal 
                HousingCommissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
        IV  Office of Housing and Office of Multifamily Housing 
                Assistance Restructuring, Department of Housing 
                and Urban Development (Parts 400--499)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)
        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)
      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--1699)

[[Page 532]]

         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799)
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--799)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900)
        VI  Office of the Assistant Secretary-Indian Affairs, 
                Department of the Interior (Parts 1000--1199)
       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Parts 1200--1299)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--899)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Alcohol and Tobacco Tax and Trade Bureau, Department 
                of the Treasury (Parts 1--399)
        II  Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
                Department of Justice (Parts 400--699)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--299)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)

[[Page 533]]

      VIII  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 800--899)
        IX  National Crime Prevention and Privacy Compact Council 
                (Parts 900--999)
        XI  Department of Justice and Department of State (Parts 
                1100--1199)

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Employee Benefits Security Administration, Department 
                of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Minerals Management Service, Department of the 
                Interior (Parts 200--299)
       III  Board of Surface Mining and Reclamation Appeals, 
                Department of the Interior (Parts 300--399)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)

[[Page 534]]

            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of International Investment, Department of the 
                Treasury (Parts 800--899)
        IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)
         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)
       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Defense Logistics Agency (Parts 1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
      XVII  Office of the Director of National Intelligence (Parts 
                1700--1799)
     XVIII  National Counterintelligence Center (Parts 1800--1899)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)
    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Corps of Engineers, Department of the Army (Parts 
                200--399)
        IV  Saint Lawrence Seaway Development Corporation, 
                Department of Transportation (Parts 400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)

[[Page 535]]

            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Vocational and Adult Education, Department 
                of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599)
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
       VII  Office of Educational Research and Improvmeent, 
                Department of Education [Reserved]
        XI  National Institute for Literacy (Parts 1100--1199)
            Subtitle C--Regulations Relating to Education
       XII  National Council on Disability (Parts 1200--1299)

                          Title 35 [Reserved]

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
        VI  [Reserved]
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
         X  Presidio Trust (Parts 1000--1099)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
        XV  Oklahoma City National Memorial Trust (Parts 1500--
                1599)
       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

             Title 37--Patents, Trademarks, and Copyrights

         I  United States Patent and Trademark Office, Department 
                of Commerce (Parts 1--199)
        II  Copyright Office, Library of Congress (Parts 200--299)
       III  Copyright Royalty Board, Library of Congress (Parts 
                301--399)

[[Page 536]]

        IV  Assistant Secretary for Technology Policy, Department 
                of Commerce (Parts 400--499)
         V  Under Secretary for Technology, Department of Commerce 
                (Parts 500--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--99)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Regulatory Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--1099)
        IV  Environmental Protection Agency and Department of 
                Justice (Parts 1400--1499)
         V  Council on Environmental Quality (Parts 1500--1599)
        VI  Chemical Safety and Hazard Investigation Board (Parts 
                1600--1699)
       VII  Environmental Protection Agency and Department of 
                Defense; Uniform National Discharge Standards for 
                Vessels of the Armed Forces (Parts 1700--1799)

          Title 41--Public Contracts and Property Management

            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
        61  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 61-1--61-999)
            Chapters 62--100 [Reserved]
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       102  Federal Management Regulation (Parts 102-1--102-299)
            Chapters 103--104 [Reserved]
       105  General Services Administration (Parts 105-1--105-999)
       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)

[[Page 537]]

            Chapters 129--200 [Reserved]
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System [Reserved]
            Subtitle F--Federal Travel Regulation System
       300  General (Parts 300-1--300-99)
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Part 303-1--303-99)
       304  Payment of Travel Expenses from a Non-Federal Source 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
        IV  Centers for Medicare & Medicaid Services, Department 
                of Health and Human Services (Parts 400--499)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1999)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 200--499)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10010)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency, Department of 
                Homeland Security (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare

[[Page 538]]

        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899) 
                [Reserved]
         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       XII  Corporation for National and Community Service (Parts 
                1200--1299)
      XIII  Office of Human Development Services, Department of 
                Health and Human Services (Parts 1300--1399)
       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission on Fine Arts (Parts 2100--2199)
     XXIII  Arctic Research Commission (Part 2301)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Homeland Security (Parts 400--499)
        IV  Federal Maritime Commission (Parts 500--599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)
        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)

[[Page 539]]

       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Defense Acquisition Regulations System, Department of 
                Defense (Parts 200--299)
         3  Department of Health and Human Services (Parts 300--
                399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  Agency for International Development (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)
        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management, Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  Broadcasting Board of Governors (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)
        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        30  Department of Homeland Security, Homeland Security 
                Acquisition Regulation (HSAR) (Parts 3000--3099)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199)
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement [Reserved]
        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)

[[Page 540]]

        57  African Development Foundation (Parts 5700--5799)
        61  General Services Administration Board of Contract 
                Appeals (Parts 6100--6199)
        63  Department of Transportation Board of Contract Appeals 
                (Parts 6300--6399)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Pipeline and Hazardous Materials Safety 
                Administration, Department of Transportation 
                (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300--399)
        IV  Coast Guard, Department of Homeland Security (Parts 
                400--499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board, Department of 
                Transportation (Parts 1000--1399)
        XI  Research and Innovative Technology Administration, 
                Department of Transportation [Reserved]
       XII  Transportation Security Administration, Department of 
                Homeland Security (Parts 1500--1699)

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--399)
        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)
         V  Marine Mammal Commission (Parts 500--599)

[[Page 541]]

        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

                      CFR Index and Finding Aids

            Subject/Agency Index
            List of Agency Prepared Indexes
            Parallel Tables of Statutory Authorities and Rules
            List of CFR Titles, Chapters, Subchapters, and Parts
            Alphabetical List of Agencies Appearing in the CFR

[[Page 543]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of July 1, 2008)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Committee of the Federal Register  1, I
Advanced Research Projects Agency                 32, I
Advisory Council on Historic Preservation         36, VIII
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development              22, II
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department                            5, LXXIII
  Agricultural Marketing Service                  7, I, IX, X, XI
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Chief Financial Officer, Office of              7, XXX
  Commodity Credit Corporation                    7, XIV
  Cooperative State Research, Education, and      7, XXXIV
       Extension Service
  Economic Research Service                       7, XXXVII
  Energy, Office of                               2, IX; 7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Food and Nutrition Service                      7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Grain Inspection, Packers and Stockyards        7, VIII; 9, II
       Administration
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Procurement and Property Management, Office of  7, XXXII
  Rural Business-Cooperative Service              7, XVIII, XLII
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force Department                              32, VII
  Federal Acquisition Regulation Supplement       48, 53
Air Transportation Stabilization Board            14, VI
Alcohol and Tobacco Tax and Trade Bureau          27, I
Alcohol, Tobacco, Firearms, and Explosives,       27, II
     Bureau of
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
American Indians, Office of the Special Trustee   25, VII
Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX

[[Page 544]]

Architectural and Transportation Barriers         36, XI
     Compliance Board
Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI
Army Department                                   32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Benefits Review Board                             20, VII
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase From People Who Are
Broadcasting Board of Governors                   22, V
  Federal Acquisition Regulation                  48, 19
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X
Civil Rights, Commission on                       5, LXVIII; 45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce Department                               44, IV
  Census Bureau                                   15, I
  Economic Affairs, Under Secretary               37, V
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 13
  Fishery Conservation and Management             50, VI
  Foreign-Trade Zones Board                       15, IV
  Industry and Security, Bureau of                15, VII
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II
  National Marine Fisheries Service               50, II, IV, VI
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Telecommunications and Information     15, XXIII; 47, III
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office, United States      37, I
  Productivity, Technology and Innovation,        37, IV
       Assistant Secretary for
  Secretary of Commerce, Office of                15, Subtitle A
  Technology, Under Secretary for                 37, V
  Technology Administration                       15, XI
  Technology Policy, Assistant Secretary for      37, IV
Commercial Space Transportation                   14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretary for
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Product Safety Commission                5, LXXI; 16, II
Cooperative State Research, Education, and        7, XXXIV
     Extension Service
Copyright Office                                  37, II
Copyright Royalty Board                           37, III
Corporation for National and Community Service    2, XXII; 45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Court Services and Offender Supervision Agency    28, VIII
     for the District of Columbia
Customs and Border Protection Bureau              19, I
Defense Contract Audit Agency                     32, I
Defense Department                                5, XXVI; 32, Subtitle A; 
                                                  40, VII

[[Page 545]]

  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51
  Defense Acquisition Regulations System          48, 2
  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  National Imagery and Mapping Agency             32, I
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 2, XI; 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
District of Columbia, Court Services and          28, VIII
     Offender Supervision Agency for the
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Affairs, Under Secretary                 37, V
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
  Vocational and Adult Education, Office of       34, IV
Educational Research and Improvement, Office of   34, VII
Elementary and Secondary Education, Office of     34, II
Emergency Oil and Gas Guaranteed Loan Board       13, V
Emergency Steel Guarantee Loan Board              13, IV
Employee Benefits Security Administration         29, XXV
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             5, XXIII; 10, II, III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Environmental Protection Agency                   2, XV; 5, LIV; 40, I, IV, 
                                                  VII
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Administration, Office of                       5, XV
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                5, III, LXXVII; 14, VI; 
                                                  48, 99
  National Drug Control Policy, Office of         21, III
  National Security Council                       32, XXI; 47, 2
  Presidential Documents                          3

[[Page 546]]

  Science and Technology Policy, Office of        32, XXIV; 47, II
  Trade Representative, Office of the United      15, XX
       States
Export-Import Bank of the United States           2, XXXV; 5, LII; 12, IV
Family Assistance, Office of                      45, II
Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               31, IX
Federal Communications Commission                 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       11, I
Federal Emergency Management Agency               44, I
Federal Employees Group Life Insurance Federal    48, 21
     Acquisition Regulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Board                     12, IX
Federal Labor Relations Authority, and General    5, XIV; 22, XIV
     Counsel of the Federal Labor Relations 
     Authority
Federal Law Enforcement Training Center           31, VII
Federal Management Regulation                     41, 102
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration       49, III
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Fine Arts, Commission on                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Fishery Conservation and Management               50, VI
Food and Drug Administration                      21, I
Food and Nutrition Service                        7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV
Forest Service                                    36, II
General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  Federal Management Regulation                   41, 102

[[Page 547]]

  Federal Property Management Regulations         41, 101
  Federal Travel Regulation System                41, Subtitle F
  General                                         41, 300
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302
  Temporary Duty (TDY) Travel Allowances          41, 301
Geological Survey                                 30, IV
Government Accountability Office                  4, I
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          2, III; 5, XLV; 45, 
                                                  Subtitle A,
  Centers for Medicare & Medicaid Services        42, IV
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Human Development Services, Office of           45, XIII
  Indian Health Service                           25, V
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Homeland Security, Department of                  6, I
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection Bureau            19, I
  Federal Emergency Management Agency             44, I
  Immigration and Customs Enforcement Bureau      19, IV
  Immigration and Naturalization                  8, I
  Transportation Security Administration          49, XII
Housing and Urban Development, Department of      2, XXIV; 5, LXV; 24, 
                                                  Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Housing, Office of, and Multifamily Housing     24, IV
       Assistance Restructuring, Office of
  Inspector General, Office of                    24, XII
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Human Development Services, Office of             45, XIII
Immigration and Customs Enforcement Bureau        19, IV
Immigration and Naturalization                    8, I
Immigration Review, Executive Office for          8, V
Independent Counsel, Office of                    28, VII
Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
     Secretary
Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V
Industry and Security, Bureau of                  15, VII
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
   Archives and Records Administration
[[Page 548]]

Inspector General
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior Department
  American Indians, Office of the Special         25, VII
       Trustee
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  Minerals Management Service                     30, II
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Reclamation, Bureau of                          43, I
  Secretary of the Interior, Office of            2, XIV; 43, Subtitle A
  Surface Mining and Reclamation Appeals, Board   30, III
       of
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, United States Agency   22, II
     for
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
International Fishing and Related Activities      50, III
International Investment, Office of               31, VIII
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice Department                                2, XXVII; 5, XXVIII; 28, 
                                                  I, XI; 40, IV
  Alcohol, Tobacco, Firearms, and Explosives,     27, II
       Bureau of
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             31, IX
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration Review, Executive Office for        8, V
  Offices of Independent Counsel                  28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor Department                                  5, XLII
  Benefits Review Board                           20, VII
  Employee Benefits Security Administration       29, XXV
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Employment Standards Administration             20, VI
  Federal Acquisition Regulation                  48, 29
  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Standards, Office of           29, II, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Public Contracts                                41, 50

[[Page 549]]

  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training Service,      41, 61; 20, IX
       Office of the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Library of Congress                               36, VII
  Copyright Office                                37, II
  Copyright Royalty Board                         37, III
Local Television Loan Guarantee Board             7, XX
Management and Budget, Office of                  5, III, LXXVII; 14, VI; 
                                                  48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II, LXIV
Micronesian Status Negotiations, Office for       32, XXVII
Millenium Challenge Corporation                   22, XIII
Mine Safety and Health Administration             30, I
Minerals Management Service                       30, II
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Morris K. Udall Scholarship and Excellence in     36, XVI
     National Environmental Policy Foundation
National Aeronautics and Space Administration     2, XVIII; 5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National and Community Service, Corporation for   45, XII, XXV
National Archives and Records Administration      2, XXVI; 5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Capital Planning Commission              1, IV
National Commission for Employment Policy         1, IV
National Commission on Libraries and Information  45, XVII
     Science
National Council on Disability                    34, XII
National Counterintelligence Center               32, XVIII
National Credit Union Administration              12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
National Drug Control Policy, Office of           21, III
National Endowment for the Arts                   2, XXXII
National Endowment for the Humanities             2, XXXIII
National Foundation on the Arts and the           45, XI
     Humanities
National Highway Traffic Safety Administration    23, II, III; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Standards and Technology    15, II
National Intelligence, Office of Director of      32, XVII
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV, VI
National Mediation Board                          29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       2, XXV; 5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI
National Security Council and Office of Science   47, II
     and Technology Policy
National Telecommunications and Information       15, XXIII; 47, III
     Administration
National Transportation Safety Board              49, VIII
Natural Resources Conservation Service            7, VI

[[Page 550]]

Navajo and Hopi Indian Relocation, Office of      25, IV
Navy Department                                   32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Northeast Interstate Low-Level Radioactive Waste  10, XVIII
     Commission
Nuclear Regulatory Commission                     5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Offices of Independent Counsel                    28, VI
Oklahoma City National Memorial Trust             36, XV
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
Patent and Trademark Office, United States        37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
     Certain Employees
Peace Corps                                       22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 45, VIII
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
Pipeline and Hazardous Materials Safety           49, I
     Administration
Postal Regulatory Commission                      5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI
President's Commission on White House             1, IV
     Fellowships
Presidential Documents                            3
Presidio Trust                                    36, X
Prisons, Bureau of                                28, V
Privacy and Civil Liberties Oversight Board       6, X
Procurement and Property Management, Office of    7, XXXII
Productivity, Technology and Innovation,          37, IV
     Assistant Secretary
Public Contracts, Department of Labor             41, 50
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Refugee Resettlement, Office of                   45, IV
Relocation Allowances                             41, 302
Research and Innovative Technology                49, XI
     Administration
Rural Business-Cooperative Service                7, XVIII, XLII
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII
Saint Lawrence Seaway Development Corporation     33, IV
Science and Technology Policy, Office of          32, XXIV
Science and Technology Policy, Office of, and     47, II
     National Security Council
Secret Service                                    31, IV
Securities and Exchange Commission                17, II
Selective Service System                          32, XVI
Small Business Administration                     2, XXVII; 13, I
Smithsonian Institution                           36, V
Social Security Administration                    2, XXIII; 20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
     Office of
State Department                                  2, VI; 22, I; 28, XI
  Federal Acquisition Regulation                  48, 6
Surface Mining and Reclamation Appeals, Board of  30, III

[[Page 551]]

Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Technology Administration                         15, XI
Technology Policy, Assistant Secretary for        37, IV
Technology, Under Secretary for                   37, V
Tennessee Valley Authority                        5, LXIX; 18, XIII
Thrift Supervision Office, Department of the      12, V
     Treasury
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     2, XII; 5, L
  Commercial Space Transportation                 14, III
  Contract Appeals, Board of                      48, 63
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II
  Federal Motor Carrier Safety Administration     49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 49, V
  Pipeline and Hazardous Materials Safety         49, I
       Administration
  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Surface Transportation Board                    49, X
  Transportation Statistics Bureau                49, XI
Transportation, Office of                         7, XXXIII
Transportation Security Administration            49, XII
Transportation Statistics Bureau                  49, XI
Travel Allowances, Temporary Duty (TDY)           41, 301
Treasury Department                               5, XXI; 12, XV; 17, IV; 
                                                  31, IX
  Alcohol and Tobacco Tax and Trade Bureau        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs and Border Protection Bureau            19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Claims Collection Standards             31, IX
  Federal Law Enforcement Training Center         31, VII
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  International Investment, Office of             31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
  Thrift Supervision, Office of                   12, V
Truman, Harry S. Scholarship Foundation           45, XVIII
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       2, VIII; 38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training Service,        41, 61; 20, IX
     Office of the Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Vocational and Adult Education, Office of         34, IV
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I
World Agricultural Outlook Board                  7, XXXVIII

[[Page 553]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations that were 
made by documents published in the Federal Register since January 1, 
2001, are enumerated in the following list. Entries indicate the nature 
of the changes effected. Page numbers refer to Federal Register pages. 
The user should consult the entries for chapters and parts as well as 
sections for revisions.
For the period before January 1, 2001, see the ``List of CFR Sections 
Affected, 1949-1963, 1964-1972, 1973-1985, and 1986-2000'', published in 
11 separate volumes.

                                  2001

32 CFR
                                                                   66 FR
                                                                    Page
Chapter VI
701.118 (v) and (w) added..........................................54928
706.2 Table Three amended..........................................53523
    Table Four amended.............................................53524
    Table Five amended.............................................53533
    Tables Four and Five amended......53525, 53526, 53527, 53530, 53531, 
                                                                   53532
    Tables Two and Five amended....................................53528
    Table Two amended..............................................53529
    Regulation at 66 FR 53528 eff. date corrected..................56383

                                  2002

32 CFR
                                                                   67 FR
                                                                    Page
Chapter VI
701.118 (p) removed................................................30554
706.2 Tables Four and Five amended.............18486-18489, 18491, 18492
    Table Five amended.............................................18490
    Table Four amended......................................30804, 30805
776.20 Revised.....................................................70165
776.53 (a)(4) revised..............................................70165

                                  2003

32 CFR
                                                                   68 FR
                                                                    Page
Chapter VI
700.405 (c)(9) amended; (c)(10) added; (d)(3) revised...............2697
700.505 (b)(5) redesignated as (b)(6); new (b)(5) added.............2697
700.701 (a) revised.................................................2697
700.1053 (a) revised................................................2697
701.118 (n) revised................................................43461
706.2 Table Four amended................................5827-5832, 68513
    Table Five amended............................5828, 5830-5832, 68517
    Tables Four and Five amended............................68512, 68515
    Tables Two and Five amended....................................68514
    Table Two amended..............................................68516

                                  2004

32 CFR
                                                                   69 FR
                                                                    Page
Chapter VI
706.2 Table One amended............................................61311
    Table Three amended............................................61312
    Tables Four and Five amended..............61313, 61315, 61316, 61598
    Table Two amended..............................................61314
719.115 (b)(2) revised.............................................20540
725.6 (c)(1) revised...............................................20541
727.5 Revised......................................................20541
752.2 (a) amended..................................................20542
752.3 (a) amended..................................................20542
752.4 (a) and (c) amended..........................................20542
752.5 (b) amended..................................................20542
775.1 Revised.......................................................8109
775.2 Revised.......................................................8109
775.3 Revised.......................................................8109
775.4 Revised.......................................................8109
775.6 (a), (b), (e) and (f) revised.................................8110
775.12 Revised......................................................8112

[[Page 554]]

                                  2005

32 CFR
                                                                   70 FR
                                                                    Page
Chapter VI
700--799 (Ch. VI) Policy statement..................................1671
701.118 (h) added..................................................25492
706.2 Table One amended.....................................46759, 46762
    Table Two amended..............................................46763
    Table Three amended.....................................46759, 46767
        Table Four amended..................46760, 46761, 46763--46767, 
                                                                   52302
    Table Five amended..........46760, 46762, 46764, 46766, 46767, 52303
725.6 (d)(1)(iii) revised..........................................12966

                                  2006

32 CFR
                                                                   71 FR
                                                                    Page
Chapter VI
701.100--701.125 (Subpart F) Revised...............................27536
701.126--701.129 (Subpart G) Revised...............................27536
706.2 Table One amended.....................................17347, 61686
    Table Two amended........................................9927, 17348
    Table Three amended..............................17347, 52742, 61686
        Table Four amended.....9928, 15565--15568, 36193, 42270, 42272, 
                                                                   52742
        Table Five amended....15565--15568, 36194, 42271, 42272, 52742, 
                                                                   58278

                                  2007

32 CFR
                                                                   72 FR
                                                                    Page
Chapter VI
701.129 (a) removed................................................64538
706.2 Table One amended.....................................63486, 72946
    Table Three amended.....................................10604, 63486
    Table Four amended........................10604, 18119, 18120, 62413
    Table Five amended........................10604, 18120, 62413, 72946
750 Authority citation revised.....................................53417
750.1 (a)(1) and (3) revised; (a)(2) amended; footnote 1 added; 
        interim....................................................53417
750.2 (c) and (f) revised; interim.................................53418
750.3 (b)(6), (d) introductory text, (j)(1) and (3) revised; 
        interim....................................................53418
750.4 (c) revised; interim.........................................53418
750.5 (c) revised; interim.........................................53418
750.6 Revised; interim.............................................53418
750.7 (a) amended; (b) and (c) revised; interim....................53419
750.8 Revised; interim.............................................53419
750.10 (a) amended; interim........................................53419
750.11 (b) revised; interim........................................53419
750.12 (a) amended; (b) revised; interim...........................53419
750.13 (a)(7), (b)(1), (2) and (3) revised; (a) footnote 1 
        removed; interim...........................................53420
750.27 (a)(2)(i) amended; interim..................................53420
750.33 (c) amended; interim........................................53420
750.34 (c)(1) introductory text amended; (c)(2)(i) and (ii) 
        revised; interim...........................................53420
750.44 (n) added; interim..........................................53420
750.45 (d) revised; interim........................................53420
750.46 (c) redesignated as (d); new (d) revised; new (c) added; 
        interim....................................................53420
750.49 (a)(1) amended; (a)(4), (5), (6) and (b) removed; new 
        (a)(4) added; (c) redesignated as (b); (a)(3) and new (b) 
        revised; interim...........................................53420
750.50 (c)(3) revised; interim.....................................53421
750.66 Revised; interim............................................53421
751 Authority citation revised.....................................53421
751.1 Revised; interim.............................................53422
751.2 (a) revised; interim.........................................53422
751.3 Revised; interim.............................................53422
751.5 (a)(3) and (f) revised; (a)(4) and (c) amended; (a)(5) 
        added; interim.............................................53422
751.6 Introductory text, (a)(5), (c)(1), (3) and (d) revised; (b), 
        (c)(2), (5) and (k)(2) amended; interim....................53422
751.7 (b) and (e) revised; (f) amended; interim....................53423
751.8 Revised; interim.............................................53423
751.9 (a), (c)(3), (4) and (5) revised; interim....................53423
751.10 Footnote 1 revised; interim.................................53424
751.11 Revised; interim............................................53424
751.12 Removed; new 751.12 redesignated from 751.13 and revised; 
        interim....................................................53424
751.13 Redesignated as 751.12; new 751.13 redesignated from 751.14 
        and revised; interim.......................................53424
751.14 Redesignated as 751.13; new 751.14 redesignated from 751.15 
        and revised; interim.......................................53424

[[Page 555]]

751.15 Redesignated as 751.14; interim.............................53424
751.21--751.35 (Subpart B) Removed; interim........................53424
752 Authority citation revised.....................................56268
752.1 Revised......................................................56268
752.2 (a) amended..................................................56268
752.3 (a) revised; (c) amended.....................................56268
752.4 (b) amended..................................................56268
756 Authority citation revised.....................................53425
    Heading revised; interim.......................................53425
756.1 Revised; interim.............................................53425
756.2 (c) revised; interim.........................................53425
756.4 Revised; interim.............................................53425
756.5 Revised; interim.............................................53425
756.6 Revised; interim.............................................53425
756.7 Revised; interim.............................................53426
756.8 Revised; interim.............................................53426
756.9 Revised; interim.............................................53426
757.2 Revised; interim.............................................53427
757.3 Amended; interim.............................................53427
757.4 Revised; interim.............................................53427
757.5 (a), (b), (c), (e)(1)(iii), (iv), (2), (f) and (k) revised; 
        (g) amended; interim.......................................53427
757.6 (d) revised; interim.........................................53428
757.11--757.20 (Subpart B) Heading revised; interim................53428
757.11 Revised; interim............................................53428
757.12 Revised; interim............................................53428
757.13 Revised; interim............................................53428
757.14 (a), (c), (d)(1), (e) introductory text and (1) revised; 
        interim....................................................53428
757.15 Introductory text, (b) and (d) revised; interim.............53428
757.16 Revised; interim............................................53429
757.17 Revised; interim............................................53429
757.18 Revised; interim............................................53429
757.19 (a), (b) introductory text and (6) revised; (c) removed; 
        interim....................................................53430
757.20 Revised; interim............................................53430

                                  2008

    (Regulations published from January 1, 2008 through July 1, 2008)

32 CFR
                                                                   73 FR
                                                                    Page
Chapter VI
700.1165 Removed...................................................12274
700.1166 Removed...................................................12274
706.2 Table One amended............................................34863
    Table Three amended............................................29435
    Table Four amended...24174, 29434, 29436, 30480, 34863, 35586, 35587
    Table Five amended...24174, 29434, 29436, 30480, 34863, 35586, 35588