32
National Defense
1
2012-07-01
2012-07-01
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PERSONNEL, MILITARY AND CIVILIAN
D

SUBCHAPTER D
National Defense
Department of Defense
OFFICE OF THE SECRETARY OF DEFENSE

SUBCHAPTER D—PERSONNEL, MILITARY AND CIVILIAN

Cross Reference:
For a revision of Standards for a Merit System of Personnel Administration, see 5 CFR part 900.
Pt. 44

PART 44—SCREENING THE READY RESERVE
Sec.
44.1
Purpose.
44.2
Applicability.
44.3
Definitions.
44.4
Policy.
44.5
Responsibilities.
Appendix A to Part 44—Guidance

Authority:
10 U.S.C. 10145.

Source:
64 FR 72027, Dec. 23, 1999, unless otherwise noted.
§ 44.1
Purpose.
Updates DoD policy and responsibilities for the screening of Ready Reservists under 10 U.S.C. 1003, 1005, and 1209.
§ 44.2
Applicability.
This part applies to the Office of the Secretary of Defense, the Military Departments (including the Coast Guard, when it is not operating as a Military Service in the Navy by agreement with the Department of Transportation), the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities and all other organizational entities within the Department of Defense (hereafter referred to collectively as the “DoD Components”). The term “Military Services” as used in this part, refers to the Army, the Navy, the Air Force and the Marine Corps.
§ 44.3
Definitions.
For purposes of this part, the following definitions apply:
Extreme community hardship. A situation that, because of a Reservist's mobilization, may have a substantially adverse effect on the health, safety, or welfare of the community. Any request for a determination of such hardship shall be made by the Reservist and must be supported by documentation, as required by the Secretary concerned.
Extreme personal hardship. An adverse impact on a Reservist's dependents resulting from his or her mobilization. Any request for a determination of such hardship shall be made by the Reservist and must be supported by documentation, as required by the Secretary concerned.
Individual Ready Reserve. Within the Ready Reserve of each of the Reserve Components there is an Individual Ready Reserve. The Individual Ready Reserve consists of members of the Ready Reserve who are not in the Selected Reserve or the Inactive National Guard.
Key employee. Any Federal employee occupying a key position.
Key position. A Federal position that shall not be vacated during a national emergency or mobilization without SERIOUSLY impairing the capability of the parent Federal Agency or office to function effectively. The four categories of Federal key positions are set out in this paragraph. The first three categories are, by definition, key positions. However, the third category, Article III Judges, provides for exceptions on a case-by-case basis. The fourth category requires a case-by-case determination and designation as described in the following:
(1) The Vice President of the United States or any official specified in the order of presidential succession as in 3 U.S.C. 19.
(2) The members of the Congress and the heads of the Federal Agencies appointed by the President with the consent of the Senate. For this part, the term “the heads of the Federal Agencies” does not-include any person appointed by the President with the consent of the Senate to a Federal Agency as a member of a multimember board or commission. Such positions may be designated as key positions only in accordance with paragraph (4) of this definition.
(3) Article III Judges. However, each Article III Judge, who is a member of the Ready Reserve and desires to remain in the Ready Reserve, must have his or her position reviewed by the Chief Judge of the affected Judge's Circuit. If the Chief Judge determines that mobilization of the Article III Judge concerned will not seriously impair the capability of the Judge's court to function effectively, the Chief Judge will provide a certification to that effect to the Secretary of the Military Department concerned. Concurrently, the affected Judge will provide a statement to the Secretary concerned requesting continued service in the Ready Reserve and acknowledging that he or she may be involuntarily called to active duty (AD) under the laws of the United States and the Directives and Regulations of the Department of Defense and pledging not to seek to be excused from such orders based upon his or her judicial duties.
(4) Other Federal positions determined by the Federal Agency heads, or their designees, to be key positions in accordance with the guidelines in the appendix to this part.
Mobilization. Involuntary call-up of Reserve component members in accordance with 10 U.S.C. 12301, 12302, or 12304. That includes full mobilization, partial mobilization and, selective mobilization (Presidential Reserve Call-Up Authority).
Ready reserve. Reserve unit members or individual Reserve and National Guard members, or both, liable for AD, as provided in 10 U.S.C. 12301, 12302, and, for some members, 10 U.S.C. 12304. It consists of the Selected Reserve, the Individual Ready Reserve, and the Inactive National Guard.
Selected reserve. A category of the Ready Reserve in each of the Reserve components. The Selected Reserve consists of units, and, as designated by the Secretary concerned, of individual Reserve members, trained as prescribed in 10 U.S.C. 10147(a)(1) or 32 U.S.C. 502(a), as appropriate.
Standby reserve. The Standby Reserve consists of those units or members, or both, of the Reserve components, other than those in the Ready Reserve or the Retired Reserve, who are liable for active duty only as provided for in 10 U.S.C. 12301 and 12306. The Standby Reserve consists of personnel who are maintaining their military affiliation without being in the Ready Reserve, but have been designated “key civilian employees,” or have a temporary hardship or disability. Those individuals are not required to perform training and are not part of the Ready Reserve. The Standby Reserve is a pool of trained individuals who may be mobilized as needed to fill manpower needs in specific skills. The Standby Reserve consists of the active status list and the inactive status list categories.
§ 44.4
Policy.
It is DoD policy that:
(a) Members of the Ready Reserve shall be screened (see the appendix to this part for specific screening guidance) at least annually to meet the provisions of 10 U.S.C. 10149 and to provide a Ready Reserve force composed of members who:
(1) Meet Military Service wartime standards of mental, moral, professional, and physical fitness.
(2) Possess the military qualifications required in the various ranks, ratings, and specialties.
(3) Are available immediately for active duty (AD) during a mobilization or as otherwise required by law.
(b) On mobilization under 10 U.S.C. 12301(a) or 10 U.S.C. 12302, all personnel actions relating to the screening program shall be held in abeyance, and all members remaining in the Ready Reserve shall be considered immediately available for AD service. After such a mobilization is ordered, no deferment, delay, or exemption from mobilization shall be granted to Ready Reservists because of their civilian employment. On involuntary activation of Reserve members under 10 U.S.C. 12304 (Presidential Reserve Call-Up Authority), the Secretary of Defense, or designee, shall make a determination regarding the continuation or cessation of personnel actions related to the screening program.
(c) All Ready Reservists shall be retained in the Ready Reserve for the entire period of their statutory obligation or voluntary contract. Exceptions to that policy are made in paragraphs (g), (h), and (i) of this section, or may be made by the Secretaries concerned, in accordance with 10 U.S.C. 10145 and 10146.
(d) A member of the Army National Guard of the United States or the Air National Guard of the United States may be transferred to the Standby Reserve only with the consent of the governor or other applicable authority of the State, commonwealth, or territory concerned (including the District of Columbia) in accordance with 10 U.S.C. 10146.
(e) Any eligible member of the Standby Reserve may be transferred back to the Ready Reserve when the reason for the member's transfer to the Standby Reserve no longer exists in accordance with 10 U.S.C. 10150 and DoD Instruction 1200.15. ^1
^1 Copies may be obtained at http://web7.whs.osd.mil/corres.htm.
(f) Ready Reservists whose immediate recall to AD during an emergency would create an extreme personal or community hardship shall be transferred to the Standby Reserve or the Retired Reserve, or shall be discharged, as applicable, except as specified in paragraph (b) of this section.
(g) Ready Reservists who are designated key employees or who occupy key positions, as defined in this section, shall be transferred to the Standby Reserve or the Retired Reserve, or shall be discharged, as appropriate, except as specified in paragraph (b) of this section.
(h) Ready Reservists who are also DoD civilian employees may not hold a mobilization assignment to the same positions that they fill as civilian employees. Those Ready Reservists shall be reassigned or transferred, as applicable. Reserve component military technicians (dual status), as members of Reserve units, are excluded from this provision.
(i) Ready Reservists who are preparing for the ministry in an accredited theology or divinity school cannot be involuntarily called to AD or required to participate in inactive duty training (IDT) in accordance with 10 U.S.C. 12317. Accordingly, such Ready Reservists (other than those participating in a military Chaplain Candidate or Theology Student Program) shall be transferred to the Standby Reserve (active status list) for the duration of their ministerial studies and duties at accredited theology or divinity schools. Ready Reservists participating in a military Chaplain Candidate or Theology Student Program may continue their Ready Reserve affiliation and engage in AD and IDT.
(j) Ready Reservists may not be transferred from the Ready Reserve solely because they are students, interns, residents, or fellows in the healthcare professions. On mobilization, they either shall be deferred or shall be mobilized in a student, intern, resident, or fellow status until qualified in the applicable medical specialty, as prescribed by the Secretaries of the Military Departments.
(k) The Secretaries concerned, or their designees, shall make determinations for mobilization availability on a case-by-case basis, consistent with this part, and not by class or group determinations.
§ 44.5
Responsibilities.
(a) The Deputy Secretary of Defense shall adjudicate, before mobilization, conflicts between the mobilization manpower needs of the civilian sector and the military that the Ready Reserve Screening process has identified, but has not resolved.
(b) The Assistant Secretary of Defense for Reserve Affairs, under the Under Secretary of Defense for Personnel and Readiness, shall:
(1) Provide oversight and policy support to the overall Ready Reserve screening program, and manage and control the Federal sector screening program in accordance with 10 U.S.C. 10149, Executive Order 11190, and pp. 63-66 of House Appropriations Committee Report 95-451, which is available from the Government Printing Office, Washington, DC 20401.
(2) Annually, provide Federal Agencies with a listing of all Federal employees who are also Ready Reservists to assist them in conducting employer screening activities.
(3) Prepare an annual report on the status of Ready Reservists employed by the Federal Government.
(4) Employ the guidance in appendix A of this part in coordinating the screening program with employers of Ready Reservists.
(5) Coordinate conflicts between the mobilization manpower needs of the civilian sector and the military identified but not resolved through the Ready Reserve Screening process.
(c) The Secretaries of the Military Departments shall:
(1) Screen, at least annually, all Ready Reservists under their jurisdiction to ensure their immediate availability for active duty (AD) and to ensure compliance with 10 U.S.C. 10149.
(2) Ensure coordination with the Assistant Secretary of Defense for Reserve Affairs to resolve conflicts (identified, but not resolved through the Ready Reserve screening process) between the mobilization manpower needs of the civilian sector and the military.
(3) Review recommendations for removal of both Federal and other civilian employees from the Ready Reserve submitted by employers and take applicable action.
(4) After making a removal determination in response to a petition for such action, promptly transmit the results of that determination to the Ready Reservist concerned and his/her employer.
(5) Transfer Ready Reservists identified as occupying key positions to the Standby Reserve or the Retired Reserve, or discharge them, as applicable.
(6) Ensure that Ready Reservists not on AD are examined as to physical fitness in accordance with DoD Directive 1332.18. ^2
^2 See footnote 1 to § 44.4(e).
(7) Process members of the Ready Reserve who do not participate satisfactorily in accordance with DoD Instruction 1200.15 and DoD Directive 1215.13. ^3
^3 See footnote 1 to § 44.4(e).
(8) Ensure that all Ready Reservists have a favorably completed background check for military service suitability on file (e.g., Entrance National Agency Check (ENTNAC), NAC).
(9) Ensure that personnel records systems incorporate information on any factors that limit the mobilization availability of a Ready Reservist.
(10) Develop and maintain current information pertaining to the mobilization availability of Ready Reservists.
Pt. 44, App. A

Appendix A to Part 44—Guidance

Deputy Secretary of Defense
The Deputy Secretary of Defense shall adjudicate, before mobilization, conflicts between the mobilization manpower needs of the civilian sector and the military that the Ready Reserve screening process has identified, but has not resolved.

Employers of Ready Reservists

(a) Federal Employers
(1) To ensure that Federal employees essential to the continuity of the Federal Government are not retained as members of the Ready Reserve, the following guidance is provided:
(i) Conduct annual screening program as provided for by the Assistant Secretary of Defense for Reserve Affairs.
(ii) Responses from Federal Agencies shall be reported under Interagency Report Control Number 0912-DoD-AN, “Ready Reservists in the Federal Government,” in accordance with DoD 8910.1-M. ^4
^4 See footnote 1 to § 44.4(e).
(iii) Federal Agency heads, or their designees, concerned shall designate those positions that are of essential nature to, and within, the organization as “key positions,” and shall require that they shall NOT be filled by Ready Reservists to preclude such positions from being vacated during a mobilization. Upon request from Federal Agencies, Secretaries of the Military Departments shall verify the essential nature of the positions being designated as “key,” and shall transfer Ready Reservists occupying key positions to the Standby Reserve or the Retired Reserve or shall discharge them, as applicable, under 10 U.S.C. 10149, except as specified in § 44.4 (b).
(iv) In determining whether or not a position should be designated as a “key position,” the following questions should be considered by the Federal Agency concerned:
(A) Can the position be filled in a reasonable time after mobilization?
(B) Does the position require technical or managerial skills that are possessed uniquely by the incumbent employee?
(C) Is the position associated directly with defense mobilization?
(D) Does the position include a mobilization or relocation assignment in an Agency having emergency functions, as designated by Executive Order 12656?
(E) Is the position directly associated with industrial or manpower mobilization, as designated in Executive Orders 12656 and 12919?
(F) Are there other factors related to the national defense, health, or safety that will make the incumbent of the position unavailable for mobilization?
(2) [Reserved]
(b) Non-Federal Employers of Ready Reservists. Non-Federal employers of Ready Reservists, particularly in the fields of public health and safety and defense support industries, are encouraged to adopt personnel management procedures designed to preclude conflicts between the emergency manpower needs of civilian activities and the military during a mobilization. Employers also are encouraged to use the Federal key position guidelines contained in this appendix for making their own key position designations and, when applicable, for recommending key employees for removal from the Ready Reserve.
(c) All employers who determine that a Ready Reservist is a key employee, in accordance with the guidelines in this appendix, should promptly report that determination, using the letter format at the end of this appendix, to the applicable Reserve personnel center, requesting the employee be removed from the Ready Reserve.

Individual Ready Reservists
(a) Each Ready Reservist who is not a member of the Selected Reserve is obligated to notify the Secretary concerned of any change of address, marital status, number of dependents, or civilian employment and any other change that would prevent a member from meeting mobilization standards prescribed by the Military Service concerned (10 U.S.C. 10205).
(b) All Ready Reservists shall inform their employers of their Reserve military obligation.

List of Reserve Personnel Centers to Which Reserve Screening Determination and Removal Requests Shall be Forwarded

Army Reserve
Army Reserve Personnel Command
1 Reserve Way
ATTN: ARPC-PSP-T
St. Louis, MO 63132

Naval Reserve
Commander
Navy Personnel Command (Pers 91)
5720 Integrity Drive
Millington, TN 38055-9100

Marine Corps Reserve
Commanding General
Marine Corps Reserve Support Command
ATTN: IRR Division
15303 Andrews Road
Kansas City, MO 64147-1207

Air Force Reserve
Commander
Air Reserve Personnel Center/DPAF
6760 E. Irvington Pl. #2600
Denver, CO 80280-2600

Army and Air National Guard
Submit requests to the adjutant general of the applicable State, commonwealth, or territory (including the District of Columbia).

Coast Guard Reserve
Commander (CGPC-RPM)
U.S. Coast Guard Personnel Command
2100 Second St. S.W.
Washington, DC 20593

Letter Format To Reserve Personnel Centers Requesting That Employee Be Removed From the Ready Reserve
From: (Employer-Agency or Company)
To: (Appropriate Reserve Personnel Center)
Subject: Request for Employee To Be Removed From the Ready Reserve
This is to certify that the employee identified below is vital to the nation's defense efforts in (his or her) civilian job and cannot be mobilized with the Military Services in an emergency for the following reasons: [STATE REASONS]
Therefore, I request that (he/she) be removed from the Ready Reserve and that you advise me accordingly when this action has been completed.
The employee is:
1. Name of employee (last, first, M.I.):
2. Military grade and Reserve component:
3. Social security number:
4. Current home address (street, city, State, and ZIP code):
5. Military unit to which assigned (location and unit number):
6. Title of employee's civilian position:
7. Grade or salary level of civilian position:
8. Date (YYMMDD) hired or assigned to position:
Signature and Title of Agency or Company Official.
Pt. 45

PART 45—CERTIFICATE OF RELEASE OR DISCHARGE FROM ACTIVE DUTY (DD FORM 214/5 SERIES)
Sec.
45.1
Purpose.
45.2
Applicability and scope.
45.3
Policy and procedures.
45.4
Responsibilities.
Appendix A to Part 45—DD Form 214
Appendix B to Part 45—DD Form 214WS
Appendix C to Part 45—DD Form 215
Appendix D to Part 45—State Directors of Veterans Affairs

Authority:
10 U.S.C. 1168 and 972.

Source:
54 FR 7409, Feb. 21, 1989, unless otherwise noted.
§ 45.1
Purpose.
(a) This document revises 32 CFR part 45.
(b) Prescribes procedures concerning the preparation and distribution of revised DD Form 214 to comport with the requirements of 10 U.S.C. 1168, 972, and 32 CFR part 41 and the control and publication of separation program designators (SPDs).
§ 45.2
Applicability and scope.
(a) The provisions of this part apply to the Office of the Secretary of Defense, the Military Services, the Joint Staff, and the Defense Agencies (hereafter referred to as “DoD Components”). The term “Military Services,” as used here, refers to the Army, Navy, the Air Force, the Marine Corps and, by agreement with the Department of Transportation, to the Coast Guard.
(b) Its provisions include procedures on the preparation and distribution of DD Forms 214, 214WS, 215 (Appendices A, B, and C) which record and report the transfer or separation of military personnel from a period of active duty. (NOTE: Computer-generated formats are acceptable substitutes provided Assistant Secretary of Defense (Force Management and Personnel) approval is obtained.) DD Forms 214 and 215 (or their substitutes) will provide:
(1) The Military Services with a source of information relating to military personnel for administrative purposes, and for making determinations of eligibility for enlistment or reenlistment.
(2) The Service member with a brief, clear-cut record of the member's active service with the Armed Forces at the time of transfer, release, or discharge, or when the member changes status or component while on active duty.
(3) Appropriate governmental agencies with an authoritative source of information which they require in the administration of Federal and State laws applying to personnel who have been discharged, otherwise released, or transferred to a Reserve component while on active duty.
(c) Its provisions include procedures on the control and distribution of all lists of SPDs.
§ 45.3
Policy and procedures.
(a) Administrative issuance or reissuance of DD Forms 214 and 215.
(1) The DD Form 214 will normally be issued by the command from which the member was separated. In those instances where a DD Form 214 was not issued, the Services concerned may establish procedures for administrative issuance.
(2) The DD Form 214, once issued, will not be reissued except:
(i) When directed by appropriate appellate authority, Executive Order, or by the Secretary concerned.
(ii) When it is determined by the Service concerned that the original DD Form 214 cannot be properly corrected by issuance of a DD Form 215 or if the correction would require issuance of more than two DD Forms 215.
(iii) When two DD Forms 215 have been issued and an additional correction is required.
(3) Whenever a DD Form 214 is administratively issued or reissued, an appropriate entry stating that fact and the date of such action will be made in Block 18, Remarks, of the DD Form 214 unless the appellate authority, Executive Order, or Secretarial directive specifies otherwise.
(b) The Military Services will ensure that every member (except as limited in paragraph (b)(2) of this section and excluding those listed in paragraph (c) of this section being separated from the Military Services is given a completed DD Form 214 describing relevant data regarding the member's service, and the circumstances of termination. DD Form 214 may also be issued under other circumstances prescribed by the Military Service concerned. A continuation sheet, if required, will be bond paper, and will reference: The DD Form 214 being continued; information from blocks 1 through 4; the appropriate block(s) being continued; the member's signature, date; and the authorizing official's signature. DD Forms 214 are not intended to have any legal effect on termination of the member's service.
(1) Release or discharge from active service. (i) The original of DD Form 214 showing separation from a period of active service with a Military Service, including release from a status that is legally determined to be void, will be physically delivered to the separate prior to departure from the separation activity on the effective date of separation; or on the date authorized travel time commences.
(A) Copy No. 4, containing the statutory or regulatory authority, reentry code, SPD code, and narrative reason for separation also will be physically delivered to the separatee prior to departure, if he/she so requested by initiating Block 30, Member Requests Copy 4.
(B) Remaining copies of DD Form 214 will be distributed on the day following the effective date of separation.
(ii) When separation is effected under emergency conditions which preclude physical delivery, or when the recipient departs in advance of normal departure time (e.g., on leave in conjunction with retirement; or at home awaiting separation for disability), the original DD Form 214 will be mailed to the recipient on the effective date of separation.
(iii) If the separation activity is unable to complete all items on the DD Form 214, the form will be prepared as completely as possible and delivered to the separatee. The separatee will be advised that a DD Form 215 will be issued by the Military Service concerned when the missing information becomes available; and that it will not be necessary for the separatee to request a DD Form 215 for such information.
(iv) If an optical character recognition format is utilized by a Military Service, the first carbon copy of the document will be physically delivered or mailed to the separatee as prescribed in paragraphs (b) (i) through (iii) of this section.
(2) Release from active duty for training, full-time training duty, or active duty for special work. Personnel being separated from a period of active duty for training, full-time training duty, or active duty for special work will be furnished a DD Form 214 when they have served 90 days or more, or when required by the Secretary concerned for shorter periods. Personnel shall be furnished a DD Form 214 upon separation for cause or for physical disability regardless of the length of time served on active duty.
(3) Continuing on active duty. Members who change their status or component, as outlined below, while they are serving on active duty will be provided a completed DD form 214 upon:
(i) Discharge for immediate enlistment or reenlistment (optional—at the discretion of the Military Services). However, Military Services not providing the DD Form 214 will furnish the member a DD Form 256, “Honorable Discharge Certificate,” and will issue instructions requiring those military offices which maintain a member's records to provide necessary Service data to the member for application to appropriate civilian individuals, groups, and governmental agencies. Such data will include Service component, entry data and grades.
(ii) Termination of enlisted status to accept an appointment to warrant or commissioned officer grade.
(iii) Termination of a temporary appointment to accept a permanent warrant or commission in the Regular or Reserve components of the Armed Forces.
(iv) Termination of an officer appointment in one of the Military Services to accept appointment in another Service.
(c) DD Form 214 need not be prepared for: (1) Personnel found disqualified upon reporting for active duty and who do not enter actively upon duties in accordance with orders.
(2) Personnel whose active duty, active duty for training, full-time training duty or active duty for special work is terminated by death.
(3) Personnel being removed from the Temporary Disability Retired List.
(4) Enlisted personnel receiving temporary appointments to warrant or commissioned officer grades.
(5) Personnel whose temporary warrant or commissioned officer status is terminated and who remain on active duty to complete an enlistment.
(6) Personnel who terminate their Reserve component status to integrate into a Regular component.
(7) Personnel separated or discharged who have been furnished a prior edition of this form, unless that form is in need of reissuance for some other reason.
(d) Preparation. The Military Departments will issue instructions governing the preparation of DD Form 214, consistent with the following:
(1) DD Form 214 is an important record of service which must be prepared accurately and completely. Any unavoidable corrections and changes made in the unshaded areas of the form during preparation shall be neat, legible and initialed on all copies by the authenticating official. The recipient will be informed that making any unauthorized change or alteration of the form will render it void.
(2) Since DD Form 214 is often used by civilian personnel, abbreviations should be avoided.
(3) Copies of DD Form 214 transmitted to various governmental agencies shall be legible, especially those provided to the Veterans Administration (Department of Veterans Affairs, effective March 15, 1989, in accordance with section 18(a), Public Law 100-527 and the Department of Labor).
(4) The authority for a member's transfer or discharge will be cited by reference to the appropriate Military Service regulation, instruction, or manual, followed by the appropriate separation program designator on copies 2, 4, 7, and 8 only. A narrative description to identify the reason for transfer or separation will not be used on copy 1.
(5) To assist the former Service member in employment placement and job counseling, formal inservice training courses successfully completed during the period covered by the form will be listed in Block 14, Military Education; e.g., medical, dental, electronics, supply, administration, personnel or heavy equipment operations. Training courses for combat skills will not be listed. See 1978 Guide to the Evaluation of Educational Experiences in the Armed Services for commonly accepted course titles and abbreviations.
(6) For the purpose of reemployment rights (DoD Directive 1205.12) ^1 all extensions of service, except those under 10 U.S.C. 972, are considered to be at the request and for the convenience of the Government. In these cases, Block 18 of DD Form 214 will be annotated to indicate “Extension of service was at the request and for the convenience of the Government.”
^1 Copies may be obtained if needed, from the U.S. Naval Publications and forms Center, Attn: Code 1062, 5801 Tabor Avenue, Philadelphia, PA.
(7) When one or more of the data items on the DD Form 214 are not available and the document is issued to the separatee, the applicable block(s) will be annotated “See Remarks.” In such cases, Block 18 will contain the entry “DD Form 215 will be issued to provide missing information.” When appropriate, Block 18 will also reflect the amount of disability pay, and the inclusive dates of any nonpay/excess leave days.
(8) The authorizing official (E-7, GS-7 or above) will sign the original in ink ensuring that the signature is legible on all carbon copies. If not, a second signature may be necessary on a subsequent carbon copy. The authorized official shall be an E-7, GS-7, or higher grade, except that the Service concerned may authorize chiefs of installation separation activities (E-5, GS-5, or above) to serve in this capacity if designated in writing by the responsible commander and/or director (0-4, or above).
(9) The following are the only authorized entries in Block 24, Character of Service, as appropriate: “Honorable,” “Under Honorable Conditions (General),” “Under Other Than Honorable Conditions,” “Bad Conduct,” “Dishonorable,” or “Uncharacterized.” When a discharge has been upgraded, the DD Form 214 will be annotated on copies 2 through 8 in Block 18 to indicate the character of service has been upgraded; the date the application for upgrade was made; and the effective date of the corrective action.
(10) The date entered in Block 12.a. shall be the date of enlistment for the earliest period of continuous active service for which a DD Form 214 was not previously issued. For members who have previously reenlisted without being issued a DD Form 214, and who are being separated with any discharge characterization except “Honorable,” the following statement shall appear as the first entry in Block 18., “Remarks,” on the DD Form 214: “CONTINUOUS HONORABLE ACTIVE SERVICE FROM (applicable date) UNTIL (applicable date).” The “from” date shall be the date of initial entry into active duty, or the first day of service for which a DD Form 214 was not previously issued, as applicable; the “until” date shall be the date before commencement of the current enlistment.
(11) For Service members retiring from active duty enter in Block 18., “Subject to active duty recall by Service Secretary.”
(12) For Service members being transferred to the Individual Ready Reserve, enter in Block 18., “Subject to active duty recall and/or annual screening.”
(e) Distribution. The Military Services will prescribe procedures governing the distribution of copies of the DD Forms 214 and 215, consistent with their internal requirements, and the following:
(1) DD Form 214—(i) Copy No. 1 (original). To the member.
(ii) Copy No. 2. To be used as the Military Services' record copy.
(iii) Copy No. 3. To the Veterans Administration (Department of Veterans Affairs, effective March 15, 1989, in accordance with section 18(a), Data Processing Center (214), 1614 E. Woodword Street, Austin, Texas 78772. A reproduced copy will also be provided to the hospital with the medical records if the individual is transferred to a VA hospital. If the individual completes VA Form 21-5267, “Veterans Application for Compensation or Pension,” include a copy of the DD Form 214 with medical records forwarded to the VA regional office having jurisdiction over the member's permanent address. When an individual is in Service and enlisting or reenlisting in an active duty status or otherwise continuing on active duty in another status, copy No. 3 will not be forwarded to the VA.
(iv) Copy No. 4. To the member, if the member so requested by having initialed Block 30. If the member does not request this copy, it may be retained in the master military personnel record, to be available in case the member requests a copy later.
(v) Copy No. 5. To Louisiana UCX/UCFE, Claims Control Center, Louisiana Department of Labor, P.O. Box 94246, Capitol Station, Baton Rouge, Louisiana 70804-9246.
(vi) Copy No. 6. To the appropriate State Director of Veterans Affairs (see enclosure 4), if the member so requested by having checked “Yes” in Block 20, “Member Requests Copy Be Sent to Director of Veterans Affairs.” The member must specify the State. If the member does not request the copy be mailed, it may be utilized as prescribed by the Military Service concerned.
(vii) Copies No. 7 and 8. To be distributed in accordance with regulations issued by the Military Service concerned.
(viii) Additional Copy Requirements. Discharged Alien Deserters. Provide one reproduced copy of Copy No. 1 to the U.S. Department of State, Visa Office—SCA/VO, State Annex No. 2, Washington, DC 20520, to assist the Visa Office in precluding the unwarranted issuance of visas to discharged and alien deserters in accordance with DoD Directive 1325.2 ^2 . Place of birth will be entered in Block 18.
^2 See footnote 1 to § 545.3(d)(6).
(2) DD Form 214-ws. Utilized to facilitate the preparation of DD Form 214. The document will be used and disposed of in accordance with regulations issued by the Military Service concerned.
(3) DD Form 215. Utilized to correct errors in DD Form 214 discovered after the original has been delivered and/or distribution of copies of the form has been made, and to furnish to separatee information not available when the DD Form 214 was prepared. The distribution of DD Form 215 will be identical to the distribution of DD Form 214.
(4) Requests for Copies of DD Form 214 Subsequent to Separation. Agencies maintaining a separatee's DD Form 214 will provide a copy only upon written request by the member. Agencies will provide the member with 1 copy with the Special Additional Information section, and 1 copy with that information deleted. In the case of DD Form 214 issued prior to July 1, 1979, agencies will provide the member with 1 copy containing all items of information completed, and 1 copy with the following items deleted from the form: Specific authority and narrative reason for separation, reenlistment eligibility code, and separation program designator/number.
(i) In those cases where the member has supplied an authorization to provide a copy of the DD Form 214 to another individual or group, the copy furnished will not contain the Special Additional Information section or, in the case of DD forms issued prior to July 1, 1979, those items listed in paragraph (e)(4) of this section.
(ii) A copy will be provided to authorized personnel for official purposes only.
(f) Procurement. Arrangements for procurement of DD Forms 214, 214-ws, and 215 will be made by the Military Services.
(g) Modification of Forms. The modification of the content or format of DD Forms 214, 214-ws, and 215 may not be accomplished without prior authorization of the Assistant Secretary of Defense (Force Management and Personnel) (ASD(FM&P)). Requests to add or delete information will be coordinated with the other Military Services in writing, prior to submission to the ASD(FM&P). If a Military Service uses computer capability to generate forms, the items of information may be arranged, the size of the information blocks may be increased or decreased, and copies 7 and/or 8 may be deleted at the discretion of the Service.
§ 45.4
Responsibilities.
(a) The DD Forms 214 and 215 are a source of significant and authoritative information used by civilian and governmental agencies to validate veteran eligibility for benefits. As such, they are valuable forms and, therefore, vulnerable to fraudulent use. Since they are sensitive, the forms must be safeguarded at all times. They will be transmitted, stored, and destroyed in a manner which will prevent unauthorized use. The Military Services will issue instructions consistent with the following:
(1) All DD Forms 214 will be surprinted with a reproducible screen tint using appropriate security ink on Blocks 1, 3, 4.a, 4.b, 12, and 18 through 30. In addition Blocks 1, 3, 5, and 7 of the DD Form 215 will be similarly surprinted to make alterations readily discernible. No corrections will be permitted in the screened areas.
(2) All forms will be secured after duty hours.
(3) All obsolete forms will be destroyed.
(4) All forms to be discarded, including those which are blank or partially completed, and reproduced copies of DD Form 214, will be destroyed. No forms will be discarded intact.
(5) Blank forms given to personnel for educational or instructional purposes, and forms maintained for such use, are to be clearly voided in an unalterable manner.
(6) The commander or commanding officer of each unit or activity authorized to issue DD Form 214 will appoint, in writing, a commissioned officer, warrant officer, enlisted member (grade E-7 or above), or DoD civilian (GS-7 or above) who will requisition, control, and issue blank DD Forms 214 and 215. The Service concerned may authorize an E-5 or GS-5 to serve in this capacity.
(7) The Military Services will monitor the use of DD Form 214 and review periodically its issuance to insure compliance with procedures for safeguarding.
(b) The DD Form 214-ws will contain the word “WORKSHEET” on the body of the form (see Appendix B). This DD Form 214-ws will be treated in the same manner as the DD Form 214.
(c) The Military Services will issue appropriate instructions to separation activities stressing the importance of the DD Forms 214 and 215 in obtaining veterans benefits, reemployment rights, and unemployment insurance.
(d) Standard separation program designator (SPD) codes for officer and enlisted personnel developed under the provisions of DoD Instruction 5000.12 ^3 are published in DoD 5000.12-M.
^3 See footnote 1 to § 45.3(d)(6).
(1) Requests to add, change, or delete an SPD code shall be forwarded by the DoD Component concerned with appropriate justification to the Assigned Responsible Agency accountable for evaluating, recommending approval of, and maintaining such codes: Department of the Navy, Office of The Chief of Naval Operations, (Attention: OP-161), room 1514, Arlington Annex, Washington, DC 20350-2000.
(2) Requests to add, change, or delete an SPD code will be submitted in accordance with section V., DoD Instruction 5000.12 with prior written approval by the ASD (FM&P), or his/her designee.
(e) All lists of SPD codes, including supplemental lists, published by the DoD Components will be stamped “For Official Use Only” and will not be furnished to any agency or individual outside the Department of Defense.
(1) Appropriate provisions of the Freedom of Information Act will be used to deny the release of the lists to the public. An individual being separated or discharged is entitled access only to his/her SPD code. It is not intended that these codes stigmatize an individual in any manner. They are intended for internal use by the Department of Defense in collecting data to analyze statistical reporting trends that may, in turn, influence changes in separation policy.
(2) Agencies or individuals who come into the possession of these lists are cautioned on their use because a particular list may be outdated and not reveal correctly the full circumstances relating to an individual's separation or discharge.
Pt. 45, App. A

Appendix A to Part 45—DD Form 214
[54 FR 9985, Mar. 9, 1989]
Pt. 45, App. B

Appendix B to Part 45—DD Form 214ws
Pt. 45, App. C

Appendix C to Part 45—DD Form 215
Pt. 45, App. D

Appendix D to Part 45—State Directors of Veterans Affairs

Alabama
Director, Department of Veterans Affairs, P.O. Box 1509, Montgomery, AL 36192-3701.

Alaska
Director, Division of Veterans Affairs, Department of Military & Veterans Affairs, 3601 C Street, suite 620, Anchorage, AK 99503.

American Samoa
Veterans Affairs Officer, Office of Veterans Affairs, American Samoa Government, P.O. Box 2586, Pago Pago, AS 96799.

Arizona
Director of Veterans Affairs, Arizona Veterans Service Commission, 3225 N. Central Avenue, suite 910, Phoenix, AZ 85012.

Arkansas
Director, 1200 West 3rd, room 105, Box 1280, Little Rock, AR 72201.

California
Director, Department of Veterans Affairs, 1227 O Street, room 200A, Sacramento, CA 95814.

Colorado
Director, Division of Veterans Affairs, Department of Social Services, 1575 Sherman Street, room 122, Denver, CO 80203.

Delaware
Chairman, Commission of Veterans Affairs, P.O. Box 1401, Dover, DE 19901.

District of Columbia
Chief, Office of Veterans Affairs, 941 North Capitol Street NE., room 1211 F, Washington, DC 20421.

Florida
Director, Division of Veterans Affairs, P.O. Box 1437, St. Petersburg, FL 33731.

Georgia
Commissioner, Department of Veterans Service, Floyd Veterans Memorial Bldg, suite E-970, Atlanta, GA 30334.

Guam
Office of Veterans Affairs, P.O. Box 3279, Agana, Guam 96910.

Hawaii
Director, Department of Social Services & Housing, Veterans Affairs Section, 3949 Diamond Head Road, Honolulu, HI 96809-0339.

Idaho
Administrator, Division of Veterans Service, P.O. Box 6675, Boise, ID 83707.

Connecticut
Commandant, Veterans Home and Hospital, 287 West Street, Rocky Hill, CT 06067.

Indiana
Director, Department of Veterans Affairs, 707 State Office Building, 100 N. Senate Avenue, Indianapolis, IN 46204.

Iowa
Administrator, Veterans Affairs Division, 7700 NW. Beaver Drive, Camp Dodge, Johnston, IA 50131-1902.

Kansas
Executive Director, Kansas Veterans Commission, Jayhawk Tower, suite 701, 700 SW. Jackson Street, Topeka, KS 66603-3150.

Kentucky
Director, Kentucky Center for Veterans Affairs, 600 Federal Place room 1365, Louisville, KY 40202.

Louisiana
Executive Director, Department of Veterans Affairs, P.O. Box 94095, Capitol Station, Baton Rouge, LA 70804-4095.

Maine
Director, Bureau of Veterans Services, State Office Building Station 117, Augusta, ME 04333.

Maryland
Executive Director, Maryland Veterans Commission, Federal Bldg.—room 110, 31 Hopkins Plaza, Baltimore, MD 21201.

Illinois
Director, Department of Veterans Affairs, 208 West Cook Street, Springfield, IL 62705.

Michigan
Director, Michigan Veterans Trust Fund, P.O. Box 30026, Ottawa Bldg, No. Tower, 3rd Floor, Lansing, MI 48909.

Minnesota
Commissioner, Department of Veterans Affairs, Veterans Service Building, 2nd Floor, St. Paul, MN 55155.

Mississippi
President, State Veterans Affairs Board, 120 North State Street, War Memorial Building, room B-100, Jackson, MS 39201.

Missouri
Director, Division of Veterans Affairs, P.O. Drawer 147, Jefferson City, MO 65101.

Montana
Administrator, Veterans Affairs Division, P.O. Box 5715, Helena, MT 59604.

Nebraska
Director, Department of Veterans Affairs, P.O. Box 95083, State Office Building, Lincoln, NE 68509.

Nevada
Commissioner, Commission for Veterans Affairs, 1201 Terminal Way, room 108, Reno, NV 89520.

Massachusetts
Commissioner, Department of Veterans Services, 100 Cambridge Street—room 1002, Boston, MA 02202.

New Jersey
Director, Division of Veterans Programs & Special Services, 143 E. State Street, room 505, Trenton, NJ 08608.

New Mexico
Director, Veterans Service Commission, P.O. Box 2324, Santa Fe, NM 87503.

New York
Director, Division of Veterans Affairs, State Office Building #6A-19, Veterans Highway, Hauppauge, NY 11788.

North Carolina
Asst Secretary for Veterans Affairs, Division of Veterans Affairs, 227 E. Edenton Street, Raleigh, NC 27601.

North Dakota
Commissioner, Department of Veterans Affairs, 15 North Broadway, suite 613, Fargo, ND 58102.

Ohio
Director, Division of Soldiers Claims & Veterans Affairs, State House Annex, room 11, Columbus, OH 43215.

Oklahoma
Director, Department of Veterans Affairs, P.O. Box 53067, Oklahoma City, OK 73152.

New Hampshire
Director, State Veterans Council, 359 Lincoln Street, Manchester, NH 03103.

Oregon
Director, Department of Veterans Affairs, Oregon Veterans Building, 700 Summer Street NE., suite 150, Salem, OR 97310-1270.

Pennsylvania
Director, Department of Military Affairs, Bureau for Veterans Affairs, Fort Indiantown Gap, Bldg 5-0-47, Annville, PA 17003-5002.

Puerto Rico
Director, Bureau of Veterans Affairs & Human Resources, Department of Labor, 505 Munoz Rivera Avenue, Hato Rey, PR 00918.

Rhode Island
Chief, Veterans Affairs Office, Metacom Avenue, Bristol, RI 02809.

South Carolina
Director, Department of Veterans Affairs, Brown State Office Building, 1205 Pendleton Street, Columbia, SC 29201.

South Dakota
Director, Division of Veterans Affairs, 500 East Capitol Avenue, State Capitol Building, Pierre, SD 57501-5083.

Tennessee
Commissioner, Department of Veterans Affairs, 215 8th Avenue, North, Nashville, TN 37203.

Texas
Executive Director, Veterans Affairs Commission of Texas, Box 12277, Capitol Station, Austin, TX 78711.

Utah
No DVA.

Vermont
Director, Veterans Affairs Office, State Office Building, Montpelier, VT 05602.

Virginia
Director, Division of War Veterans Claims, 210 Franklin Road, SW., room 1002, P.O. Box 809, Roanoke, VA 24004.

Virgin Islands
Director, Division of Veterans Affairs, P.O. Box 890, Christiansted, St. Croix, VI 00820.

Washington
Director, Department of Veterans Affairs, P.O. Box 9778, Mail Stop PM-41, Olympia, WA 95804.

West Virginia
Director, Department of Veterans Affairs, 605 Atlas Building, Charleston, WV 25301-9778.

Wisconsin
Secretary, Department of Veterans Affairs, P.O. Box 7843, 77 North Dickinson Street, Madison, WI 53707.
Pt. 47

PART 47—ACTIVE DUTY SERVICE FOR CIVILIAN OR CONTRACTUAL GROUPS
Sec.
47.1
Purpose.
47.2
Applicability and scope.
47.3
Definitions.
47.4
Policy.
47.5
Responsibilities.
47.6
Procedures.
Appendix A to Part 47—Instructions for Submitting Group Applications Under Public Law 95-202
Appendix B to Part 47—The DoD Civilian/Military Service Review Board and the Advisory Panel

Authority:
38 U.S.C. 106 note.

Source:
54 FR 39993, Sept. 29, 1989, unless otherwise noted.
§ 47.1
Purpose.
This document:
(a) Revises 32 CFR part 47 and implements Public Law 95-202.
(b) Directs the Secretary of the Air Force to determine if an established group of civilian employees or contract workers provided service to the U.S. Armed Forces in a manner considered active military service for Department of Veterans Affairs (VA) benefits.
(c) Establishes the DoD Civilian/Military Service Review Board and the Advisory Panel.
(d) Establishes policy, assigns responsibilities, prescribes application procedures for groups and individuals, and clarifies the factors used to determine active duty (AD) service.
§ 47.2
Applicability and scope.
This part:
(a) Applies to the Office of the Secretary of Defense (OSD), the Military Departments, and by agreement with the Department of Transportation (DoT), the U.S. Coast Guard.
(b) Applies to any group application considered under Public Law 95-202 after September 11, 1989 and to any individual who applies for discharge documents as a member of a group recognized by the Secretary of the Air Force.
§ 47.3
Definitions.
Armed conflict. A prolonged period of sustained combat involving members of the U.S. Armed Forces against a foreign belligerent. The term connotes more than a military engagement of limited duration or for limited objectives, and involves a significant use of military and civilian forces.
(a) Examples of armed conflict are World Wars I and II, and the Korean and Vietnam Conflicts.
(b) Examples of military actions that are not armed conflicts are as follows:
(1) The incursion into Lebanon in 1958, and the peacekeeping force there in 1983 and 1984.
(2) The incursions into the Dominican Republic in 1965 and into Libya in 1986.
(3) The intervention into Grenada in 1983.
Civilian or contractual group. An organization similarly situated to the Women's Air Forces Service Pilots (a group of Federal civilian employees attached to the U.S. Army Air Force in World War II). Those organization members rendered service to the U.S. Armed Forces during a period of armed conflict in a capacity that was then considered civilian employment with the Armed Forces, or the result of a contract with the U.S. Government, to provide direct support to the Armed Forces.
Recognized group. A group whose service the Secretary of the Air Force administratively has determined to have been “active duty for the purposes of all laws administered by the Department of Veterans Affairs”; i.e., VA benefits under 38 U.S.C. 101.
Similarly situated. A civilian or contractual group is similarly situated to the Women's Air Forces Service Pilots when it existed as an identifiable group at the time the service was being rendered to the U.S. Armed Forces during a period of armed conflict. Persons who individually provided support through civilian employment or contract, but who were not members of an identifiable group at the time the services were rendered, are not “similarly situated” to the Women's Air Forces Service Pilots of World War II.
§ 47.4
Policy.
(a) Eligibility for consideration. To be eligible to apply for consideration under Public Law 95-202 and this part, a group must:
(1) Have been similarly situated to the Women's Air Forces Service Pilots of World War II.
(2) Have rendered service to the United States in what was considered civilian employment with the U.S. Armed Forces either through formal Civil Service hiring or less formal hiring if the engagement was created under the exigencies of war, or as the result of a contract with the U.S. Government to provide direct support to the U.S. Armed Forces.
(3) Have rendered that service during a period of armed conflict.
(4) Consist of living persons to whom VA benefits can accrue.
(5) Not have already received benefits from the Federal Government for the service in question.
(b) A determination of AD service that is considered to be equivalent to active military service is made on the extent to which the group was under the control of the U.S. Armed Forces in support of a military operation or mission during an armed conflict. The extent of control exerted over the group must be similar to that exerted over military personnel and shall be determined by, but not necessarily limited to, the following:
(1) Incidents favoring equivalency—(i) Uniqueness of service. Civilian service (civilian employment or contractual service) is a vital element of the war-fighting capability of the Armed Forces. Civilian service during a period of armed conflict is not necessarily equivalent to active military service, even when performed in a combat zone. Service must be beyond that generally performed by civilian employees and must be occasioned by unique circumstances. For civilian service to be recognized under this part, the following factors must be present:
(A) The group was created or organized by U.S. Government authorities to fill a wartime need or, if a group was not created specifically for a wartime need, but existed before that time, then its wartime mission was of a nature to substantially alter the organization's prewar character.
(B) If the application is based on service in a combat zone, the mission of the group in a combat zone must have been substantially different from the mission of similar groups not in a combat zone.
(ii) Organizational authority over the group. The concept of military control is reinforced if the military command authority determines such things as the structure of the civilian organization, the location of the group, the mission and activities of the group, and the staffing requirements to include the length of employment and pay grades of the members of the group.
(iii) Integration into the military organization. Integrated civilian groups are subject to the regulations, standards, and control of the military command authority.
(A) Examples include the following:
(1) Exchanging military courtesies.
(2) Wearing military clothing, insignia, and devices.
(3) Assimilating the group into the military organizational structure.
(4) Emoluments associated with military personnel; i.e., the use of commissaries and exchanges, and membership in military clubs.
(B) A group fully integrated into the military would give the impression that the members of the group were military, except that they were paid and accounted for as civilians.
(C) Integration into the military may lead to an expectation by members of the group that the service of the group imminently would be recognized as active military service. Such integration acts in favor of recognition.
(iv) Subjection to military discipline. During past armed conflicts, U.S. military commanders sometimes restricted the rights or liberties of civilian members as if they were military members.
(A) Examples include the following:
(1) Placing members under a curfew.
(2) Requiring members to work extended hours or unusual shifts.
(3) Changing duty assignments and responsibilities.
(4) Restricting proximity travel to and from the military installation.
(5) Imposing dress and grooming standards.
(B) Consequences for noncompliance might include a loss of some privilege, dismissal from the group, or trial under military law. Such military discipline acts in favor of recognition.
(v) Subjection to military justice. Military members are subject to the military criminal justice system. During times of war, “persons serving with or accompanying an Armed Force in the field” are subject to the military criminal justice code. Those who were serving with the U.S. Armed Forces may have been treated as if they were military and subjected to court-martial jurisdiction to maintain discipline. Such treatment is a factor in favor of recognition.
(vi) Prohibition against members of the group joining the armed forces. Some organizations may have been formed to serve in a military capacity to overcome the operation of existing laws or treaty or because of a governmentally established policy to retain individuals in the group as part of a civilian force. These factors act in favor of recognition.
(vii) Receipt of military training and/or achievement of military capability. If a group employed skills or resources that were enhanced as the result of military training or equipment designed or issued for that purpose, this acts toward recognition.
(2) Incidents not favoring equivalency—(i) Submission to the U.S. Armed Forces for protection. A group that seeks protection and assistance from the U.S. Armed Forces and submits to military control for its own well-being is not deemed to have provided service to the Armed Forces equivalent to AD military service, even though the group may have been as follows:
(A) Armed by the U.S. military for defensive purposes.
(B) Routed by the U.S. military to avoid the enemy.
(C) Instructed by the U.S. military for the defense of the group when attacked by, or in danger of attack by, the enemy.
(D) Otherwise submitted themselves to the U.S. military for sustenance and protection.
(ii) Permitted to resign. The ability of members to resign at will and without penalty acts against military control. Penalty may be direct and severe, such as confinement, or indirect and moderate, such as difficult and costly transportation from an overseas location.
(iii) Prior recognition of group service. Recognition of a group's service by agencies of State or local government does not provide support in favor of recognition under this part.
(3) Status of group in international law. In addition to other factors, consideration will be given to whether members of the group were regarded and treated as civilians, or assimilated to the Armed Forces as reflected in treaties, customary international law, judicial decisions, and U.S. diplomatic practice.
(c) Reconsideration. Applications by groups previously denied a favorable determination by the Secretary of the Air Force shall be reconsidered under this part if the group submits evidence that is new, relevant, and substantive. Any request that the DoD Civilian/Military Service Review Board established hereunder (see § 47.5(b)) determines does not provide new, relevant, and substantive evidence shall be returned to the applicant with the reasons for nonacceptance.
(d) Counsel Representation. Neither the Department of Defense nor Department of Transportation shall provide representation by counsel or defray the cost of such representation with respect to any matter covered by this part.
§ 47.5
Responsibilities.
(a) The Assistant Secretary of Defense (Force Management and Personnel) (ASD(FM&P)) shall:
(1) Appoint a primary and an alternate member in the grade of O-6 or GM-15 or higher to the DoD Civilian/Military Service Review Board.
(2) Exercise oversight over the Military Departments and the U.S. Coast Guard for compliance with this Directive and in the issuance of discharge documents and casualty reports to members of recognized groups.
(b) The Secretary of the Air Force, as the designated Executive Agent of the Secretary of Defense for the administration of Public Law 95-202 shall:
(1) Establish the DoD Civilian/Military Service Review Board and the Advisory Panel.
(2) Appoint as board president a member or employee of the Air Force in grade O-6 or GM-15 or higher.
(3) Request the Secretary of Transportation to appoint an additional voting member from the U.S. Coast Guard when the board is considering the application of a group claiming active Coast Guard service.
(4) Provide a recorder and an assistant to maintain the records of the board and administer the functions of this part.
(5) Provide nonvoting legal advisors and historians.
(6) Publish notices of group applications and other Public Law 95-202 announcements in the Federal Register.
(7) Consider the rationale and recommendations of the DoD Civilian/Military Service Review Board.
(8) Determine whether the service rendered by a civilian or contractual group shall be considered AD service to the U.S. Armed Forces for all laws administered by the VA. The decision of the Secretary of the Air Force is final. There is no appeal.
(9) Notify the following persons in writing when a group determination is made (if the Secretary of the Air Force disagrees with the rationale or recommendations of the board, the Secretary of the Air Force shall provide the decision and reasons for it in writing to these persons):
(i) The applicant(s) for the group.
(ii) The Secretary of the Department of Veterans Affairs.
(iii) The Secretary of the Army.
(iv) The Secretary of the Navy.
(v) The ASD (FM&P).
(vi) The Secretary of Transportation (when a group claims active Coast Guard service).
(c) The Secretary of the Army, Secretary of the Navy, Secretary of the Air Force, and Commandant of the Coast Guard shall:
(1) Appoint to the board a primary and an alternate member in the grades of O-6 or GM-15 or higher from their respective Military Services.
(2) Process applications for discharge documents from individuals claiming membership in a recognized group in accordance with applicable laws, Directives, the Secretary of the Air Force rationale and instrument effecting a group determination, and any other instructions of the board.
(3) Determine whether the applicant was a member of a recognized group after considering the individual's evidence of membership and verifying the service against available Government records.
(4) Issue a DD Form 214, “Certificate of Release or Discharge from Active Duty,” and a DD Form 256, “Honorable Discharge Certificate,” or a DD Form 257, “General Discharge Certificate,” as appropriate, consistent with DoD Instruction 1336.1 ^1 and DoD Directive 1332.14 ^2 and the implementing documents of the appropriate statutes of the Military Department concerned or the DoT and the instructions of the DoD Civilian/Military Service Review Board.
^1 Copies may be obtained, if needed, from the U.S. Naval Publications and Forms Center, Attn: 1053, 5801 Tabor Avenue, Philadelphia, PA 19120.
^2 See footnote 1 to § 47.5(c)(4).
(5) Issue a DD Form 1300, “Report of Casualty,” in accordance with DoD Instruction 1300.9 ^3 if a verified member was killed during the period of AD service.
^3 See footnote 1 to § 47.5(c)(4).
(6) Ensure that each DD Form 214, “Certificate of Release or Discharge from Active Duty,” and each DD Form 1300, “Report of Casualty,” have the following statement entered in the “Remarks” section:
This document, issued under Public Law 95-202 (38 U.S.C. 106 Note), administratively establishes active duty service for the purposes of Department of Veterans Affairs benefits.
(7) Determine the equivalent military pay grade, when required by the Department of Veterans Affairs. For VA benefits, a pay grade is needed only in cases when an individual was killed or received service-connected injuries or disease during the recognized period of AD service. A DD Form 1300 shall be issued with the equivalent pay grade annotated for a member who died during the recognized period of service. A DD Form 214 shall not include pay grade, unless the Department of Veterans Affairs requests that a grade determination be given. Determinations of equivalent grade shall be based on the following criteria in order of importance:
(i) Officially recognized organizational grade or equivalent rank.
(ii) The corresponding rank for civilian pay grade.
(iii) If neither of the criteria in paragraphs (c)(7) (i) and (ii) of this section, and applies, only one of three grades may be issued; i.e., O-1, E-4, or E-1. Selection depends on the nature of the job performed, the level of supervision exercised, and the military privileges to which the individual was entitled.
(8) Adjudicate applicant challenges to the period of AD service, characterization of service, or other administrative aspects of the discharge documents issued.
§ 47.6
Procedures.
(a) Submitting group applications. Applications on behalf of a civilian or contractual group shall be submitted to the Secretary of the Air Force using the instructions in appendix A to this part.
(b) Processing group applications. (1) When received, the recorder shall review the application for sufficiency and either return it for more information or accept it for consideration and announce acceptance in the Federal Register.
(2) The recorder shall send the application to the appropriate advisory panel for historical review and analysis.
(3) When received, the recorder shall send the advisory panel's report to the applicant for comment. The applicant's comments shall be referred to the advisory panel if significant disagreement requires resolution. Additional comments from the historians also shall be referred to the applicant for comment.
(4) The DoD Civilian/Military Service Board shall consider the group application, as established, in paragraph (a) and paragraphs (b) (1) through (3) of this section.
(5) After the Secretary of the Air Force makes a decision, the recorder shall notify the applicant of the decision and announce it in the “Federal Register.”
(c) Submitting individual applications. When a group is recognized, individual members may apply to the appropriate Military Department or to the Coast Guard for discharge documents. Submit applications on DD Form 2168, “Application for Discharge of Member or Survivor of Member of Group Certified to Have Performed Active Duty with the Armed Forces of the United States.” An application on behalf of a deceased or incompetent member submitted by the next of kin must be accompanied by proof of death or incompetence.
Pt. 47, App. A

Appendix A to Part 47—Instructions for Submitting Group Applications Under Public Law 95-202
A. In Submitting a Group Application: 1. Define the group to include the time period that your group provided service to the U.S. Armed Forces.
2. Show the relationship that the group had with the U.S. Armed Forces, the manner in which members of the group were employed, and the services the members of the group provided to the Armed Forces.
3. Address each of the factors in § 47.4.
4. Substantiate and document the application. (The burden of proof rests with the applicant.)
B. Send Completed Group Applications To: Secretary of the Air Force (SAF/MRC), DoD Civilian/Military Service Review Board, Washington, DC 20330-1000.
Pt. 47, App. B

Appendix B to Part 47—The DoD Civilian/Military Service Review Board and the Advisory Panel

A. Organization and Management
1. The board shall consist of a president selected from the Department of the Air Force and one representative each from the OSD, the Department of the Army, the Department of the Navy, the Department of the Air Force, and the U.S. Coast Guard (when the group claims active Coast Guard service). Each member shall have one vote except that the president shall vote only to break a tie. The board's decision is determined by majority vote. The president and two voting members shall constitute a quorum.
2. The advisory panel shall act as a nonvoting adjunct to the board. It shall consist of historians selected by the Secretaries of the Military Departments and, if required, by the Secretary of Transportation. The respective Military Departments and the DOT shall ensure that the advisory panel is provided with administrative and legal support.

B. Functions
1. The board shall meet in executive session at the call of the president, and shall limit its reviews to the following:
a. Written submissions by an applicant on behalf of a civilian or contractual group. Presentations to the board are not allowed.
b. Written report(s) prepared by the advisory panel.
c. Any other relevant written information available.
d. Factors established in this part for determining AD service.
2. The board shall return to the applicant any application that does not meet the eligibility criteria established in § 47.4(a). The board only needs to state the reasons why the group is ineligible for consideration under this part.
3. If the board determines that an application is eligible for consideration under § 47.4(a), the board shall provide, to the Secretary of the Air Force, a recommendation on the AD service determination for the group and the rationale for that recommendation that shall include, but not be limited to, a discussion of the factors listed in § 47.4.
a. No factors shall be established that require automatic recognition. Neither the board nor the Secretary of the Air Force shall be bound by any method in reaching a decision.
b. Prior group determinations made under Public Law 95-202 do not bind the board or the Secretary of the Air Force. The board and the Secretary of the Air Force fully and impartially shall consider each group on its own merit in relation to the factors listed in section D. of this Directive.
Pt. 48

PART 48—RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN

Subpart A—General Information
Sec.
48.101
Purpose.
48.102
Definitions.

Subpart B—Election of Options
48.201
Options.
48.202
Limitation on number of annuities.
48.203
Election of options.
48.204
Change or revocation of election.
48.205
Election form.
48.206
Information regarding elections.

Subpart C—Designation of Beneficiaries
48.301
Designation.
48.302
Substantiating evidence regarding dependency and age of dependents.
48.303
Condition affecting entitlement of widow or widower.

Subpart D—Reduction of Retired Pay
48.401
Computation of reduction.
48.402
Effective date of reduction.
48.403
Payment of nonwithheld reduction of retired pay.
48.404
Ages to be used.
48.405
Action upon removal from temporary disability retired list.
48.406
Withdrawal and reduction of percentage or amount of participation.

Subpart E—Annuity
48.501
General information.
48.502
Effective date of annuity.
48.503
Claims for annuity payments.
48.504
Payment to children.
48.505
Establishing eligibility of annuitants.
48.506
Recovery of erroneous annuity payments.
48.507
Restriction on participation.
48.508
Certain 100 percent disability retirements.

Subpart F—Miscellaneous
48.601
Annual report.
48.602
Organization.
48.603
Correction of administrative deficiencies.
48.604
Transition and protective clauses.

Authority:
Sec. 1444, 70A Stat. 111; 10 U.S.C. 1444.

Source:
34 FR 12092, July 18, 1969, unless otherwise noted.

Subpart A—General Information
§ 48.101
Purpose.
The purpose of the Retired Serviceman's Family Protection Plan is to permit each member of the uniformed services to elect to receive a reduced amount of any retired pay which may be awarded him as a result of service in his uniformed service in order to provide an annuity payable after his death (while entitled to retired pay) to his widow, child, or children, subject to certain limitations specified in the law and elaborated in the regulations in this part.
§ 48.102
Definitions.
(a) The terms Plan or RSFPP as hereinafter used means the Retired Serviceman's Family Protection Plan (formerly called the Uniformed Services Contingency Option Act).
(b) The term uniformed services means the Army, Navy, Air Force, Marine Corps, Coast Guard, Commissioned Corps of Environmental Science Services Administration, and Commissioned Corps of Public Health Service.
(c) The term member means a commissioned officer, commissioned warrant officer, warrant officer, nurse, flight officer, or a person in an enlisted grade (including an aviation cadet) of any of the uniformed services, and a person in any of these categories who is entitled to or is in receipt of retired pay, except persons excluded in title 10, U.S. Code, section 1431(a), as amended.
(d) The term widow includes widower and refers to the lawful spouse of the member on the date of retirement with pay.
(e) The term child means, in all cases, a member's child, who is living on the date of retirement of the member with pay and who meets the following requirements:
(1) A legitimate child under 18 years of age and unmarried.
(2) A stepchild, under 18 years of age and unmarried, who is in fact dependent on the member for support (see paragraphs (f) and (g) of this section).
(3) A legally adopted child, under 18 years of age and unmarried.
(4) A child, as defined above, who is 18 or more years of age and unmarried, and who is incapable of self-support because of being mentally defective or physically incapacitated if that condition existed prior to reaching age 18.
(5) A child as defined above, who is at least 18, but under 23 years of age and unmarried, who is pursuing a full-time course of study or training in a high school, trade school, technical or vocational institute, junior college, college, university, or comparable recognized educational institution. (Applicable only in the case of members who retired on or after Nov. 1, 1968).
(6) A child loses his eligibility for an annuity under this part if he is adopted by a third person before the parent-member's death. His eligibility is not affected if he is adopted by a third person after the parent-member's death (36 Comp. Gen. 325).
(f) The term stepchild means a child of a member's spouse by a former marriage. The stepchild relationship terminates upon the divorce of the parent spouse, but not upon the death of the parent spouse.
(g) The term in fact dependent means that the stepchild must be dependent on the member for over half of his or her support.
(h) The term retirement means retirement with eligibility to receive retired pay.
(i) The term retired pay includes retired, retirement, equivalent and retainer pay awarded as a result of service in the uniformed services.
(j) The term reduced retired pay means the retired pay remaining after the cost of participation in RSFPP has been subtracted.
(k) The term department concerned means (1) the Department of the Army with respect to the Army, (2) the Department of the Navy with respect to the Navy and Marine Corps, (3) the Department of the Air Force with respect to the Air Force, (4) the Department of Transportation with respect to the Coast Guard, (5) the Department of Commerce with respect to the Environmental Science Services Administration, and (6) the Department of Health, Education, and Welfare with respect to the Public Health Service.
(l) The term dependent means the prospective annuitants described in paragraphs (d) and (e) of this section.
(m) The term Board of Actuaries means the Government Actuary in the Department of the Treasury, the Chief Actuary of the Social Security Administration, and a member of the Society of Actuaries appointed by the President to advise the Secretary of Defense on the administration of the Plan.
(n) The term Joint Board means representatives of the uniformed services appointed under the provisions of § 48.602.
(o) The term years of service means years of service creditable in the computation of basic pay.
(p) The term election means the choice of options made by the member under the RSFPP. This term includes a modification of a previous election or an election submitted after a revocation of a previous option(s) elected.
(q) The term elections in effect means valid elections existing on the day of retirement.
(r) A recognized educational institution is defined as a high school, trade school, technical or vocational institute, junior college, college, university, or comparable recognized educational institution which meets one or more of the following criteria:
(1) It is operated or directly supported by the United States, or a State, or local governmental agency.
(2) It is accredited by a nationally recognized or State recognized accrediting agency.
(3) It is approved as an educational institution by a State or local governmental agency.
(4) Its credits are accepted for transfer (or for admission) by three or more accredited schools on the same basis as credits from an accredited school.

Subpart B—Election of Options
§ 48.201
Options.
As provided in § 48.203, a member may elect one or more of the following annuities. The amount must be specified at time of election, and may not be for more than 50 per centum nor less than 121/2 per centum of his retired pay, in no case may be less than a $25 monthly annuity be elected. If the election is made in terms of dollars, the amount may be more than 50 per centum of the retired pay that he would receive if he were to retire at the time of election; however, if such elected amount exceeds 50 per centum of his retired pay when he does retire, it shall be reduced to an amount equal to such 50 per centum. Also, if the dollar amount elected is less than 121/2 per centum of his retired pay when he does retire, it shall be increased to an amount equal to such 121/2 per centum.
(a) Option 1 is an annuity payable to or on behalf of his widow, the annuity to terminate upon her death or remarriage.
(b) Option 2 is an annuity payable to or on behalf of his surviving child or children as defined in § 48.102, the annuity to terminate when there ceases to be at least one such surviving child eligible to receive the annuity. Each payment under such annuity shall be paid in equal shares to or on behalf of the surviving children remaining eligible at the time the payment is due. A member who had this option in effect on the date of retirement, and who retired on or after November 1, 1968, may apply to the Secretary concerned to have a child (other than a child described in § 48.102(e)(4)) who is at least 18 but less than 23 years of age considered not to be an eligible beneficiary under this paragraph (b) or § 48.202. Normally such applications will be approved.
(c) Option 3 is an annuity to or on behalf of his widow and surviving child or children. Such annuity shall be paid to the widow until death or remarriage, and thereafter each payment under such annuity shall be paid in equal shares to or on behalf of the surviving children remaining eligible at the time the payment is due. A member may provide for allocating, during the period of the surviving spouse's eligibility, a part of the annuity under this subpart B for payment to those of his surviving children who are not children of that spouse. The sum allotted will not exceed the equitable share for which such children would be eligible after the death of the widow.
(d) When no eligible beneficiary remains to benefit from the option elected, the member's retired pay will be restored (except as provided in § 48.604, for certain members retired before Aug. 13, 1968). All elections on file on Aug. 13, 1968, for members not entitled to receive retired pay will be considered to include the restoration feature with attendant cost factors being applied at time of retirement. For the purpose of this paragraph, a child (other than a child described in § 48.102(e)(4)) who is at least 18 but less than 23 years of age, and is not pursuing a course of study as defined in § 48.102(e)(5), shall be considered an eligible beneficiary unless an approved application by the member pursuant to § 48.201(b) that such a child is not to be considered an eligible beneficiary is in effect (for members who retire on or after Nov. 1, 1968).
§ 48.202
Limitation on number of annuities.
When a member desires to provide both the annuity provided by Option 1 and Option 2, he may elect amounts that, in total, meet the limitations specified in § 48.201. The cost of each annuity, and the amount of each annuity shall be determined separately. A member may not elect the combination of Options 1 and 3 or Options 2 and 3 in any case. The combined amount of the annuities may not be more than 50 per centum nor less than 121/2 per centum of his retired pay. In no case may less than a $25 per month combined annuity be provided.
§ 48.203
Election of options.
(a) A member who has completed less than 19 years of service as defined in § 48.102(o) may elect to receive a reduced amount of retired pay in order to provide one or more of the annuities as specified in §§ 48.201 and 48.202, payable after his death while entitled to retired pay to or on behalf of his surviving widow, child, or children. To be effective, the election by such a member must be dated, signed, witnessed, and delivered to appropriate service officials, or postmarked not later than midnight on the day in which he completes 19 years of service. Such an election will become effective immediately upon subsequent retirement. The latest election, change, or revocation made in accordance with this subsection will, if otherwise valid, be the effective election, unless superseded by a change as provided in paragraph (b) of this section.
(b) Except as provided in paragraph (c) of this section, a member who fails or declines to make an election before completion of 19 years of service may make an election after that time. However, unless the election is made at least 2 years prior to the date the member becomes entitled to receive retired pay, it will not be effective. The same applies to subsequent changes or revocations made prior to retirement.
(c) If an election, revocation, or change was made prior to August 13, 1968, the 19-year and 2-year provisions are automatically in effect on August 13, 1968, for members who were not entitled to retired pay on such date, unless the member applies under § 48.604(d) to remain under the provisions of the law prior to August 13, 1968. In this case the “18 years of service” and “3 years prior to receipt of retired pay” rules will apply.
(d) A member retired for physical disability on or after November 1, 1968 who is awarded retired pay prior to completion of 19 years of service may make an election which is subject to the restrictions set forth in § 48.507. The election by such member shall be made before the first day for which he is entitled to retired pay. Elections made under this paragraph prior to November 1, 1968, must be made by the member retiring for physical disability prior to completing 18 years.
(e) If, because of military operations, a member is assigned to an isolated station, or is missing, interned in a neutral country, captured by a hostile force, or beleaguered or besieged, and for that reason is unable to make an election before completing 19 years of service, he may make the election within 1 year after he ceases to be assigned to that station or returns to the jurisdiction of his service as the case may be, and such election shall become effective immediately upon subsequent retirement.
(f) A member to whom retired pay is granted retroactively, and who is otherwise eligible to make an election, may make the election within 90 days after receiving notice that such pay has been granted him.
(g) Whenever a member is determined to be mentally incompetent by medical officers of the uniformed services or of the Veterans Administration, or is adjudged mentally incompetent by a court of competent jurisdiction and because of such mental incompetency is incapable of making any election within the time limitations prescribed by the Plan, the Secretary of the Department concerned may make the appropriate election on behalf of such member upon request of the spouse, or if there be no spouse, by or on behalf of the child or children of such member. If such member is subsequently determined to be mentally competent by the Veterans Administration or a court of competent jurisdiction, he may, within 180 days after such determination or judgment, change or revoke the election made on his behalf. In such a case, the change or revocation will be effective on the date of the member's request for such change or revocation. Deductions previously made shall not be refunded.
(h) All elections on file on August 13, 1968, for members not entitled to receive retired pay shall be subject to the provisions of this section unless the member makes the application specified in § 48.604(d).
(i) A person who was a former member of the armed forces on November 1, 1953, and who is granted retired pay after that date, may, at the time he is granted that pay, make an election as provided in § 48.201.
§ 48.204
Change or revocation of election.
(a) A change of election is a change in the amount of the annuity or annuities under any option, or a change in any option or options selected. A revocation is a cancellation of a previous election and constitutes a withdrawal from coverage under the Plan.
(b) A member may change or revoke his election as often as he desires prior to the completion of 19 years of service. Such a change or revocation must be dated, signed, witnessed, and delivered to appropriate service officials, or postmarked not later than midnight on the day in which the member completes 19 years of service. The latest election, change, or revocation which is submitted in accordance with this subsection will be effective at retirement.
(c) A member who desires to make an election or change or revoke his election after he has completed 19 years of service may do so prior to his retirement. However, such an election, change or revocation will be effective only if at least 2 years elapse between the date of the election, change, or revocation and the date of eligibility to receive retired pay.
(d) A revocation will not prohibit the filing of a new election at a later date which will become valid under applicable validation provisions.
(e) A member may, on or after November 1, 1968, at any time prior to his retirement, change or revoke his election (provided the change does not increase the amount of the annuity elected) to reflect a change in the marital or dependency status of the member of his family caused by death, divorce, annulment, remarriage, or acquisition of a child, if such change or revocation is made within 2 years of such change in status.
(f) Notification of a change in family status is not a change of election.
(g) All changes and revocations on file on August 13, 1968, for members not entitled to retired pay shall be subject to the provisions of this section unless the member makes the application specified in § 48.604(d).
§ 48.205
Election form.
The form for making election after October 31, 1968, is prescribed as Election of Options, Retired Serviceman's Family Protection Plan, DD Form 1688. ^1 It will be submitted as directed herein. All copies will be signed, and any otherwise complete, signed copy, when properly submitted, may be used to substantiate the fact of election, modification, revocation, or change in family status.
^1 Filed as part of the original document. Copies may be obtained from Military Personnel Office.
§ 48.206
Information regarding elections.
(a) All members of the Reserve component who will have accumulated sufficient service to be eligible for retired pay at age 60, will be counseled on the Plan before reaching their 57th birth dates in order to insure that valid elections can be made prior to their 58th birth dates. An election, modification, or revocation submitted subsequent to attaining age 58 will be valid only if it is made and submitted at least 2 years prior to the first date for which retired pay is granted.
(b) It is the responsibility of the department concerned to provide election forms and to promulgate information concerning the benefits of the Plan to all members so as to allow a timely election.
(c) Members retiring for physical disability prior to the completion of 19 years of service will, prior to retirement, be counseled and furnished information concerning the operation of the Plan.

Subpart C—Designation of Beneficiaries
§ 48.301
Designation.
(a) All legal beneficiaries described in § 48.102 must be named at the date of retirement pursuant to the option elected. Although a member without dependents may make an election, it will not be effective unless he has eligible dependents at the time of his retirement.
(b) When a change in family status occurs prior to retirement which would effect a change as provided in § 48.204(e), new DD Form 1688, ^1 Election of Options, Retired Servicemen's Family Protection Plan, should be filed to evidence such change.
^1 See footnote 1 to § 48.205.
§ 48.302
Substantiating evidence regarding dependency and age of dependents.
At the time of submitting the election, or prior to retirement, the member must indicate his wife's and youngest child birth date as applicable to the option elected. At or before the time of his retirement, he must submit proof of final dissolution of prior marriages, if any, both for himself and his spouse. The age of the dependents must be substantiated by a birth certificate or other competent evidence. The birth date of a member must be verified by his service record. All required substantiating evidence must be at the disbursing office which would normally pay the member retired pay or retainer pay immediately following retirement so as to permit the establishment of accurate pay accounts and to prevent the creation of indebtedness or overpayments.
§ 48.303
Condition affecting entitlement of widow or widower.
A member may have a different lawful spouse at the time of retirement from the lawful spouse he had at the time of election. The lawful spouse at the time of retirement is the spouse eligible for an annuity at the time of member's death. Divorce of the member will remove the former spouse as a prospective annuitant.

Subpart D—Reduction of Retired Pay
§ 48.401
Computation of reduction.
(a) The reduction to be made in the retired pay of a member who has made an election shall be computed by the uniformed service concerned in each individual case, based upon tables of factors prepared by the Board of Actuaries. The computation shall be based upon the applicable table in effect on the date of retirement.
(b) An adjustment may be made in the reduction of retired pay upon the finding of an administrative error or a mistake of fact (see § 48.603).
(c) If a member elects to be covered by option 3, and on the date he is awarded retired pay has no children eligible to receive the annuity, or has only a child or children aged 18-22 (other than a child described in § 48.102(e)(4) and elects, at retirement, that such child or children shall not be considered to be eligible beneficiaries, he shall have his costs computed as though he had elected option 1. If he elects option 3, and on the date he is awarded retired pay has no wife eligible for the annuity, he shall have his costs computed as though he had elected option 2.
(d) If a member elects option 3, and after he becomes entitled to retired pay, there is no eligible spouse because of death or divorce, upon the retired member's application, no deductions from his retired pay shall be made after the last day of the month in which there ceases to be an eligible spouse. Children otherwise eligible will continue to be eligible for the annuity in event of the member's death. No amounts by which the member's retired pay is reduced before that date may be refunded to or credited on behalf of that person.
(e) The amount of reduction in retired pay and the annuity payable established for each individual at the time of his retirement shall remain unaltered except as provided in § 48.203(g), paragraphs (b) and (d) of this section, and § 48.406, regardless of future pay increases or decreases.
§ 48.402
Effective date of reduction.
The effective date of reduction in retired pay will be the effective date of retirement with pay. The reduction in retired pay will be terminated on the date the member ceases to be entitled to retired pay or on the first day of the month following that in which there is no eligible beneficiary (for exception to this rule see § 48.604).
§ 48.403
Payment of nonwithheld reduction of retired pay.
(a) A member of a uniformed service who is entitled to retired pay and has made an election shall, during any period in which he is not receiving retired pay (including periods of active duty), deposit the amount which would have been withheld from his retired pay had he been receiving that pay.
(b) Such deposit will be payable to Treasurer of the United States and shall be forwarded monthly to the disbursing office which would normally pay the member his retired pay.
(c) The disbursing office will in all cases inform the member of the amount to be deposited and when such deposits are to be made.
(d) In the event deposits are not made within 30 days of the due date, the disbursing office will inform the member concerned that he is delinquent from such due date and thereafter his designated beneficiaries will not be eligible for the annuity provided under the Plan until the arrears have been paid. The notification of delinquency will advise the member that 15 additional days have been granted to him in which to remit his deposit, and that if the arrears are not deposited within that period, the member will be charged interest to include the first day of delinquency. In no case will the expiration date of the 15 days exceed a date later than 45 days from the date the deposit was due. The interest will be computed monthly and the rate will be that used in computing the cost tables in effect on the date of the member's retirement. If such member later becomes in receipt of retired pay, any arrears with compound interest will be withheld.
§ 48.404
Ages to be used.
Ages to be used for calculating reductions of retired pay will be the ages of the member and his eligible dependents on their nearest birth dates as of the date of the member's retirement.
§ 48.405
Action upon removal from temporary disability retired list.
(a) Any member on the temporary disability retired list established pursuant to title 10, United States Code, chapter 61, who has elected to receive reduced retired pay in order to provide one or more of the annuities specified in the Plan, and who is subsequently removed from the list due to any reason other than permanent retirement, shall have refunded to him a sum which represents the difference between the amount by which his retired pay has been reduced and the cost of an amount of term insurance which is equal to the protection provided his dependents during the period he was on the temporary disability retired list.
(b) If the member concerned is returned to active duty, his election as previously made will continue or he may change or revoke the election as provided in § 48.204.
(c) Time creditable for the purpose of the two year interval required to make a change, revocation or new election valid includes service before, during, and after temporary disability retirement. (See §§ 48.203 and 48.204 and Comptroller Decision B-144158, Dec. 23, 1960.) Active duty after removal from a temporary disability retired list is a necessity in such a case.
§ 48.406
Withdrawal and reduction of percentage or amount of participation.
A retired member who is participating in the Plan may revoke his election and withdraw from participation, or he may reduce the amount of the survivor annuity; however, an approved withdrawal or reduction will not be effective earlier than the first day of the seventh month beginning after the date his application is received by the Finance Center controlling his pay record. (For special rules covering participating members retired before Aug. 13, 1968, without option 4, see § 48.604.) No application for reduction will be approved which requests a change in options. A request to reduce an annuity or to withdraw from the Plan is irrevocable, and a retired member who withdraws may never again participate in the Plan. Approval of a request for a reduction will not be made when such reduction results in an annuity of less than 121/2 per centum of the member's retired pay or less than a $25 monthly annuity. The new cost, after such reduction in survivor annuity, will be computed from the applicable cost table at the time of retirement. No amounts by which a member's retired pay is reduced may be refunded to, or credited on behalf of, the member by virtue of an application made by him under this section.

Subpart E—Annuity
§ 48.501
General information.
Except as provided in § 48.506(a), no annuity payable under the Plan shall be assignable, or subject to execution, levy, attachment, garnishment, or other legal process. Annuities payable under this Plan shall be in addition to any pensions or other payments to which the beneficiaries may now or hereafter be entitled under other provisions of law (except as provided in § 48.507), and may not be considered as income under any law administered by the Veterans Administration, except for the purpose of title 38 U.S. Code, section 415(g) and chapter 15.
§ 48.502
Effective date of annuity.
All annuities payable under this Plan except those payable to beneficiaries described in § 48.102(e)(5) shall accrue from the first day of the month in which the retired member dies and shall be due and payable not later than the 15th day of each month following that month and in equal monthly installments thereafter, except that no annuity shall accrue or be paid for the month in which entitlement to that annuity terminates.
§ 48.503
Claims for annuity payments.
Upon official notification of the death of a retired member who has elected under the Plan, the department concerned shall forward to the eligible surviving beneficiaries the necessary information and forms (DD Form 768. Application for Annuity Under Retired Serviceman's Family Protection Plan) for making application for annuity payments. Such information shall include the place to which the application should be forwarded and to which questions regarding annuity payments should be addressed.
§ 48.504
Payment to children.
(a) Annuities for a child or children will be paid to the child's guardian, or if there is no guardian, to the person(s) who has care, custody, and control of the child or children.
(b) Annuities payable to or on behalf of an eligible child as defined in § 48.102(e)(5) accrue as of the first day of the month in which—
(1) The member (upon whose retired pay the annuity is based) dies if the eligible child's 18th birthday occurs in the same or a preceding month, or
(2) The 18th birthday of an eligible child occurs if the member (upon whose retired pay the annuity is based) died in a preceding month, or
(3) A child first becomes (or again becomes) eligible, if that eligible child's 18th birthday and the death of the member (upon whose retired pay the annuity is based) both occurred in a preceding month or months. An eligible child under this paragraph might become ineligible at age 18 and again become eligible by furnishing proof of pursuit of a full time course of study or training as enumerated in § 48.102(e)(5).
§ 48.505
Establishing eligibility of annuitants.
(a) Eligibility for the annuity will be established by such evidence as may be required by the department concerned.
(b) If a child as defined in § 48.102(e)(4) is a designated annuitant, the department concerned shall require proof that the incapacity for self-support existed prior to the child's reaching age 18. Proof that continued incapacitation exists will be required every 2 years after the child passes the age of 18 years, except in a case where medical prognosis indicates recovery is impossible.
(c) If a child as defined in § 48.102(e)(5) is a designated annuitant, as specified in § 48.504(b), the department concerned shall require proof from the institution at least semiannually that the child is pursuing a full-time course of training as prescribed. For the purpose of proving eligibility, a child is considered to be pursuing a full-time course of study or training during an interval between school periods that does not exceed 150 days if he has demonstrated to the satisfaction of the department concerned that he has a bona fide intention of commencing, resuming, or continuing to pursue a full-time course of study or training in a recognized educational institution immediately after that interval.
§ 48.506
Recovery of erroneous annuity payments.
(a) The Secretary of the Department concerned is empowered to use any means provided by law to recover amounts of annuities erroneously paid to any individual under the Plan. He may authorize such recovery by adjustment in subsequent payments to which the individual is entitled.
(b) There need be no recovery when in the judgment of the Secretary of the Department concerned and the Comptroller General of the United States, the individual to whom the erroneous payment was made is without fault and recovery would be contrary to the purpose of the Plan or would be against equity and good conscience.
§ 48.507
Restriction on participation.
(a) If a person who has made an election under the Plan retires with a physical disability before the completion of 19 years of service and then dies in retirement, his widow and eligible children can receive monthly survivor annuities only if they are not eligible for Dependency and Indemnity Compensation payments from the Veterans Administration. If either the widow or children are eligible for dependency and indemnity compensation payments, then payment of annuities under the Plan may not be made to any member of the family. If the retired member's death was not service connected and his widow or children are not eligible for payments from the Veterans Administration, they may receive the provided annuity payments under the Plan.
(b) If the beneficiaries on whose behalf the election was made are restricted as in paragraph (a) of this section, from receiving annuities, the amounts withheld from the elector's retired pay as a result of the election will be refunded to the beneficiaries, less the amount of any annuity paid, and without interest.
(c) Upon notification of the death of the member in such a case, the department concerned will take the following actions:
(1) Notify the Central Office of the Veterans Administration of the death of the member and request that the department concerned be advised if an award is made under chapter 11 or 13, title 38 U.S. Code.
(2) Request the Central Office of the Veterans Administration to forward to the eligible widow and/or children an application form for survivor benefits under chapter 11 or 13, title 38 U.S. Code, with instructions for completion and submission.
§ 48.508
Certain 100 percent disability retirement.
An election filed on or after August 13, 1968 is not effective if the member dies within 30 days following retirement from a disability of 100 per centum (under the standard schedule of rating disabilities in use by the Veterans Administration) for which he was retired under chapter 61, title 10 U.S. Code, unless—
(a) Such disability was the result of injury or disease received in line of duty as a direct result of armed conflict, or
(b) His widow or children are not entitled to dependency and indemnity compensation under chapter 13, title 38 U.S. Code.

Subpart F—Miscellaneous
§ 48.601
Annual report.
Information and data for the preparation of the annual report of the Board of Actuaries will be compiled by the Office of the Secretary of Defense after promulgation of appropriate instructions to each of the uniformed services. These instructions will be in consonance with Executive Order 10499 directing the Secretary of Defense to administer the provisions of the law.
§ 48.602
Organization.
(a) The Joint Board for the Retired Serviceman's Family Protection Plan shall consist of a principal and alternate member for each of the uniformed services appointed by the Department Secretary concerned. Alternate members will be authorized to act in the absence of the principal. The Board shall meet on call of the Chairman. A quorum shall consist of representatives of at least four of the participating services.
(b) The Board shall establish procedures for the orderly conduct of business to be approved by the Assistant Secretary of Defense (Manpower and Reserve Affairs).
(c) The duties of the Board will include but not be limited to the following:
(1) Making recommendations to the Secretary of Defense for:
(i) Changes to the Executive order delegating to him functions conferred on the President by law,
(ii) Changes to these regulations,
(iii) Changes to the law, and
(iv) Measures to insure uniform operating policies.
(2) Promulgating tables of annuity costs as prescribed by the Board of Actuaries.
(3) Promulgating cost of term insurance as required in § 48.405.
(d) The Chairmanship of the Joint Board will be designated by the Assistant Secretary of Defense (Manpower and Reserve Affairs).
§ 48.603
Correction of administrative deficiencies.
(a) The Secretary of the Department concerned may correct any election or any change or revocation of an election when he considers it necessary to correct an administrative error. Information on such corrections shall be compiled by each department for inclusion in the report prescribed by § 48.601.
(b) Except when procured by fraud, a correction under the section is final and conclusive on all officers of the United States.
(c) Information on all corrections to elections under this Plan which are made under title 10, section 1552, United States Code, shall be compiled and this information forwarded to the Board of Actuaries for an actuarial analysis.
§ 48.604
Transition and protective clauses.
(a) A retired member who is participating in the Plan without inclusion of former option 4, which provided for restoration of retired pay when no eligible beneficiary remained in his election, may before September 1, 1969, elect to have that option included in his election. The election to include such option 4 becomes effective on the first day of the month following the month in which that election was made. The retired member must on or before the effective date agree to pay to the Treasury both the total additional amount to cover the option had it been effective when he retired, and the interest which would have accrued on the additional amount up to the effective date of the new option 4. No such additional amount (except interest) shall accrue for months after the first month for which the individual had no eligible beneficiary. However, if undue hardship or financial burden would result, payments may be made in from 2 to 12 monthly installments when the monthly amount involved is $25 or less, or in from 2 to 36 installments when the monthly amounts involved exceed $25. No amounts by which a member's retired pay was reduced may be refunded to, or credited on behalf of, the retired member by virtue of an application made by him under this section. A retired member who does not make the additional election provided under this section within the time limits will not be allowed to reduce an annuity or withdraw from participation in the Plan as provided by § 48.406.
(b) Members who have elected and are not yet retired will automatically participate under the provisions of § 48.201.
(c) Elections in effect on August 13, 1968, will remain under the cost tables applicable on the date of the member's retirement.
(d) Any member who has filed an election, modification, or revocation prior to August 13, 1968, may before September 1, 1969, submit a written application to the Secretary concerned requesting that such election, modification, or revocation remain under the time-of-election provisions of the law applicable on the date it was filed.
Pt. 50

PART 50—PERSONAL COMMERCIAL SOLICITATION ON DOD INSTALLATIONS

General Provisions
Sec.
50.1
Purpose.
50.2
Applicability.
50.3
Definitions.
50.4
Policy.
50.5
Responsibilities.
50.6
Procedures.
50.7
Information requirements.
Appendix A to Part 50—Life Insurance Products and Securities
Appendix B to Part 50—Overseas Life Insurance Registration Program

Authority:
5 U.S.C. 301.

Source:
71 FR 38764, July 10, 2006, unless otherwise noted.

General Provisions
§ 50.1
Purpose.
This part:
(a) Implements section 577 of Public Law No. 109-163 (2006) and establishes policy and procedures for personal commercial solicitation on DoD installations.
(b) Continues the established annual DoD registration requirement for the sale of insurance and securities on DoD installations overseas.
(c) Identifies prohibited practices that may cause withdrawal of commercial solicitation privileges on DoD installations and establishes notification requirements when privileges are withdrawn.
(d) Establishes procedures for persons solicited on DoD installations to evaluate solicitors.
(e) Prescribes procedures for providing financial education programs to military personnel.
§ 50.2
Applicability.
This part:
(a) Applies to the Office of the Secretary of Defense, the Military Departments, the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Office of the Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other organizational entities in the Department of Defense (hereafter referred to collectively as the “DoD Components”).
(b) Does not apply to services furnished by residential service companies, such as deliveries of milk, laundry, newspapers, and related services to personal residences on the installation requested by the resident and authorized by the installation commander.
(c) Applies to all other personal commercial solicitation on DoD installations. It includes meetings on DoD installations of private, non-profit, tax-exempt organizations that involve commercial solicitation. Attendance at these meetings shall be voluntary and the time and place of such meetings are subject to the discretion of the installation commander or his or her designee.
§ 50.3
Definitions.
Agent. An individual who receives remuneration as a salesperson or whose remuneration is dependent on volume of sales of a product or products. (Also referred to as “commercial agent” or “producer”). In this part, the term “agent” includes “general agent” unless the content clearly conveys a contrary intent.
“Authorized” Bank and/or Credit Union. Bank and/or credit union selected by the installation commander through open competitive solicitation to provide exclusive on-base delivery of financial services to the installation under a written operating agreement.
Banking institution. An entity chartered by a State or the Federal Government to provide financial services.
Commercial sponsorship. The act of providing assistance, funding, goods, equipment (including fixed assets), or services to an MWR program or event by an individual, agency, association, company or corporation, or other entity (sponsor) for a specified (limited) period of time in return for public recognition or advertising promotions. Enclosure 9 of DoD Instruction 1015.10 ^1 provides general policy governing commercial sponsorship.
^1 Copies may be obtained at http://www.dtic.mil/whs/directives/.
Credit union. A cooperative nonprofit association, incorporated under the Credit Union Act (12 U.S.C. 1751), or similar state statute, for the purpose of encouraging thrift among its members and creating a source of credit at a fair and reasonable rate of interest.
DoD installation. For the purposes of this part, any Federally owned, leased, or operated base, reservation, post, camp, building, or other facility to which DoD personnel are assigned for duty, including barracks, transient housing, and family quarters.
DoD personnel. For the purposes of this part, all active duty officers (commissioned and warrant) and enlisted members of the Military Departments and all civilian employees, including nonappropriated fund employees and special Government employees, of the Department of Defense.
Financial services. Those services commonly associated with financial institutions in the United States, such as electronic banking (e.g., ATMs), in-store banking, checking, share and savings accounts, fund transfers, sale of official checks, money orders and travelers checks, loan services, safe deposit boxes, trust services, sale and redemption of U.S. Savings Bonds, and acceptance of utility payments and any other consumer-related banking services.
General agent. A person who has a legal contract to represent a company. See the definition of “Agent” in this section.
Insurance carrier. An insurance company issuing insurance through an association reinsuring or coinsuring such insurance.
Insurance product. A policy, annuity, or certificate of insurance issued by an insurer or evidence of insurance coverage issued by a self-insured association, including those with savings and investment features.
Insurer. An entity licensed by the appropriate department to engage in the business of insurance.
Military services. See Joint Publication 1-02, “DoD Dictionary of Military and Associated Terms.” ^2
^2 See http://www.dtic.mil/doctrine/jel/doddict/indexs.html.
Normal home enterprises. Sales or services that are customarily conducted in a domestic setting and do not compete with an installation's officially sanctioned commerce.
Personal commercial solicitation. Personal contact, to include meetings, meals, or telecommunications contact, for the purpose of seeking private business or trade.
Securities. Mutual funds, stocks, bonds, or any product registered with the Securities and Exchange Commission except for any insurance or annuity product issued by a corporation subject to supervision by State insurance authorities.
Suspension. Temporary termination of privileges pending completion of a commander's inquiry or investigation.
Withdrawal. Termination of privileges for a set period of time following completion of a commander's inquiry or investigation.
§ 50.4
Policy.
(a) It is DoD policy to safeguard and promote the welfare of DoD personnel as consumers by setting forth a uniform approach to the conduct of all personal commercial solicitation and sales to them by dealers and their agents. For those individuals and their companies that fail to follow this policy, the opportunity to solicit on military installations may be limited or denied as appropriate.
(b) Command authority includes authority to approve or prohibit all commercial solicitation covered by this part. Nothing in this part limits an installation commander's inherent authority to deny access to vendors or to establish time and place restrictions on commercial activities at the installation.
§ 50.5
Responsibilities.
(a) The Principal Deputy Under Secretary of Defense for Personnel and Readiness (PDUSD(P&R)), under the Under Secretary of Defense for Personnel and Readiness, shall:
(1) Identify and publish policies and procedures governing personal commercial solicitation on DoD installations consistent with the policy set forth in this part.
(2) Maintain and make available to installation commanders and appropriate Federal personnel the current master file of all individual agents, dealers, and companies who have their privileges withdrawn at any DoD installation.
(3) Develop and maintain a list of all State Insurance Commissioners' points of contact for DoD matters and forward this list to the Military Services.
(b) The Heads of the DoD Components shall:
(1) Ensure implementation of this part and compliance with its provisions.
(2) Require installations under their authority to report each instance of withdrawal of commercial solicitation privileges.
(3) Submit lists of all individuals and companies who have had their commercial solicitation privileges withdrawn at installations under their authority to the PDUSD(P&R) in accordance with this part.
§ 50.6
Procedures.
(a) General. (1) No person has authority to enter a DoD installation to transact personal commercial solicitation as a matter of right. Personal commercial solicitation may be permitted only if the following requirements are met:
(i) The solicitor is duly licensed under applicable Federal, State, or municipal laws and has complied with installation regulations.
(ii) A specific appointment has been made for each meeting with the individual concerned. Each meeting is conducted only in family quarters or in other areas designated by the installation commander.
(iii) The solicitor agrees to provide each person solicited the personal commercial solicitation evaluation included in DD Form 2885 ^3 during the initial appointment. The person being solicited is not required to complete the evaluation. However, completed evaluations should be sent by the person who was solicited to the office designated by the installation commander on the back of the evaluation form.
^3 Copies may be obtained from http://www.dtic.mil/whs/directives/infomgt/forms/forminfo/forminfopage2239.html.
(iv) The solicitor agrees to provide DoD personnel with a written reminder, prior to their making a financial commitment, that free legal advice is available from the Office of the Staff Judge Advocate.
(2) Solicitors on overseas installations shall be required to observe, in addition to the above, the applicable laws of the host country. Upon request, the solicitor must present documentary evidence to the installation commander that the company they represent, and its agents, meet the applicable licensing requirements of the host country.
(b) Life insurance products and securities. (1) Life insurance products and securities offered and sold to DoD personnel shall meet the prerequisites described in § 50.3.
(2) Installation commanders may permit insurers and their agents to solicit on DoD installations if the requirements of paragraph (a) of this section are met and if they are licensed under the insurance laws of the State where the installation is located. Commanders will ensure the agent's license status and complaint history are checked with the appropriate State or Federal regulators before granting permission to solicit on the installation.
(3) In addition, before approving insurance and financial product agents' requests for permission to solicit, commanders shall review the list of agents and companies currently barred, banned, or limited from soliciting on any or all DoD installations. This list may be viewed via the Personal Commercial Solicitation Report “quick link” at http://www.commanderspage.com. In overseas areas, the DoD Components shall limit insurance solicitation to those insurers registered under the provisions of appendix B to this part.
(4) The conduct of all insurance business on DoD installations shall be by specific appointment. When establishing the appointment, insurance agents shall identify themselves to the prospective purchaser as an agent for a specific insurer.
(5) Installation commanders shall designate areas where interviews by appointment may be conducted. The opportunity to conduct scheduled interviews shall be extended to all solicitors on an equitable basis. Where space and other considerations limit the number of agents using the interviewing area, the installation commander may develop and publish local policy consistent with this concept.
(6) Installation commanders shall make disinterested third-party insurance counseling available to DoD personnel desiring counseling. Financial counselors shall encourage DoD personnel to seek legal assistance or other advice from a disinterested third-party before entering into a contract for insurance or securities.
(7) In addition to the solicitation prohibitions contained in paragraph (d) of this section, DoD Components shall prohibit the following:
(i) The use of DoD personnel representing any insurer, dealing directly or indirectly on behalf of any insurer or any recognized representative of any insurer on the installation, or as an agent or in any official or business capacity with or without compensation.
(ii) The use of an agent as a participant in any Military Service-sponsored education or orientation program.
(iii) The designation of any agent or the use by any agent of titles (for example, “Battalion Insurance Counselor,” “Unit Insurance Advisor,” “Servicemen's Group Life Insurance Conversion Consultant,”) that in any manner, states, or implies any type of endorsement from the U.S. Government, the Armed Forces, or any State or Federal agency or government entity.
(iv) The use of desk space for interviews for other than a specific prearranged appointment. During such appointment, the agent shall not be permitted to display desk signs or other materials announcing his or her name or company affiliation.
(v) The use of an installation “daily bulletin,” marquee, newsletter, Web page, or other official notice to announce the presence of an agent and/or his or her availability.
(c) Supervision of on-base commercial activities. (1) All pertinent installation regulations shall be posted in a place easily accessible to those conducting and receiving personal commercial solicitation on the installation.
(2) The installation commander shall make available a copy of installation regulations to anyone conducting on-base commercial solicitation activities warning that failure to follow the regulations may result in the loss of solicitation privileges.
(3) The installation commander, or designated representative, shall inquire into any alleged violations of this part or of any questionable solicitation practices. The DD Form 2885 is provided as a means to supervise solicitation activities on the installation.
(d) Prohibited practices. The following commercial solicitation practices shall be prohibited on all DoD installations:
(1) Solicitation of recruits, trainees, and transient personnel in a group setting or “mass” audience and solicitation of any DoD personnel in a “captive” audience where attendance is not voluntary.
(2) Making appointments with or soliciting military or DoD civilian personnel during their normally scheduled duty hours.
(3) Soliciting in barracks, day rooms, unit areas, transient personnel housing, or other areas where the installation commander has prohibited solicitation.
(4) Use of official military identification cards or DoD vehicle decals by active duty, retired or reserve members of the Military Services to gain access to DoD installations for the purpose of soliciting. When entering the installation for the purpose of solicitation, solicitors with military identification cards and/or DoD vehicle decals must present documentation issued by the installation authorizing solicitation.
(5) Procuring, attempting to procure, supplying, or attempting to supply non-public listings of DoD personnel for purposes of commercial solicitation, except for releases made in accordance with DoD Directive 5400.7. ^4
^4 See footnote 1 to § 50.3.
(6) Offering unfair, improper, or deceptive inducements to purchase or trade.
(7) Using promotional incentives to facilitate transactions or to eliminate competition.
(8) Using manipulative, deceptive, or fraudulent devices, schemes, or artifices, including misleading advertising and sales literature. All financial products, which contain insurance features, must clearly explain the insurance features of those products.
(9) Using oral or written representations to suggest or give the appearance that the Department of Defense sponsors or endorses any particular company, its agents, or the goods, services, and commodities it sells.
(10) DoD personnel making personal commercial solicitations or sales to DoD personnel who are junior in rank or grade, or to the family members of such personnel, except as authorized in Section 2-205 and 5-409 of the Joint Ethics Regulation, DoD 5500.7-R. ^5
^5 See footnote 1 to § 50.3.
(11) Entering into any unauthorized or restricted area.
(12) Using any portion of installation facilities, including quarters, as a showroom or store for the sale of goods or services, except as specifically authorized by DoD Directive 1330.17 ^6 and DoD Instructions 1015.10, 1000.15 ^7 and 1330.21. ^8 This does not apply to normal home enterprises that comply with applicable State and local laws and installation rules.
^6 See footnote 1 to § 50.3.
^7 See footnote 1 to § 50.3.
^8 See footnote 1 to § 50.3.
(13) Soliciting door to door or without an appointment.
(14) Unauthorized advertising of addresses or telephone numbers used in personal commercial solicitation activities conducted on the installation, or the use of official positions, titles, or organization names, for the purpose of personal commercial solicitation, except as authorized in DoD 5500.7-R. Military grade and Military Service as part of an individual's name (e.g., Captain Smith, U.S. Marine Corps) may be used in the same manner as conventional titles, such as “Mr.”, “Mrs.”, or “Honorable”.
(15) Contacting DoD personnel by calling a government telephone, faxing to a government fax machine, or by sending e-mail to a government computer, unless a pre-existing relationship (i.e., the DoD member is a current client or requested to be contacted) exists between the parties and the DoD member has not asked for contact to be terminated.
(e) Denial, suspension, and withdrawal of installation solicitation privileges. (1) The installation commander shall deny, suspend, or withdraw permission for a company and its agents to conduct commercial activities on the base if such action is in the best interests of the command. The grounds for taking these actions may include, but are not limited to, the following:
(i) Failure to meet the licensing and other regulatory requirements prescribed in this part or violations of the State law where the installation is located. Commanders will request that appropriate state officials determine whether a company or agent violated State law.
(ii) Commission of any of the practices prohibited in paragraphs (b)(6) and (d) of this section.
(iii) Substantiated complaints and/or adverse reports regarding the quality of goods, services, and/or commodities, and the manner in which they are offered for sale.
(iv) Knowing and willful violations of Public Law 90-321.
(v) Personal misconduct by a company's agent or representative while on the installation.
(vi) The possession of, and any attempt to obtain supplies of direct deposit forms, or any other form or device used by Military Departments to direct a Service member's pay to a third party, or possession or use of facsimiles thereof. This includes using or assisting in using a Service member's “MyPay” account or other similar Internet medium for the purpose of establishing a direct deposit for the purchase of insurance or other investment product.
(vii) Failure to incorporate and abide by the Standards of Fairness policies contained in DoD Instruction 1344.9. ^9
^9 See footnote 1 to § 50.3.
(2) The installation commander may determine that circumstances dictate the immediate suspension of solicitation privileges while an investigation is conducted. Upon suspending solicitation privileges, the commander shall promptly inform the agent and the company the agent represents, in writing.
(3) In suspending or withdrawing solicitation privileges, the installation commander shall determine whether to limit such action to the agent alone or extend it to the company the agent represents. This decision shall be based on the circumstances of the particular case, including, but not limited to, the nature of the violations, frequency of violations, the extent to which other agents of the company have engaged in such practices and any other matters tending to show the culpability of an individual and the company.
(4) If the investigation determines an agent or company does not possess a valid license or the agent, company, or product has failed to meet other State or Federal regulatory requirements, the installation commander shall immediately notify the appropriate regulatory authorities.
(5) In a withdrawal action, the commander shall allow the individual or company an opportunity to show cause as to why the action should not be taken. To “show cause” means an opportunity must be given for the aggrieved party to present facts on an informal basis for the consideration of the installation commander or the commander's designee. The installation commander shall make a final decision regarding withdrawal based upon the entire record in each case. Installation commanders shall report concerns or complaints involving the quality or suitability of financial products or concerns or complaints involving marketing methods used to sell these products to the appropriate State and Federal regulatory authorities. Also, installation commanders shall report any suspension or withdrawal of insurance or securities products solicitation privileges to the appropriate State or Federal regulatory authorities.
(6) The installation commander shall inform the Military Department concerned of any denial, suspension, withdrawal, or reinstatement of an agent or company's solicitation privileges and the Military Department shall inform the Office of the PDUSD(P&R), which will maintain a list of insurance and financial product companies and agents currently barred, banned, or otherwise limited from soliciting on any or all DoD installations. This list may be viewed at http://www.commanderspage.com. If warranted, the installation commander may recommend to the Military Department concerned that the action taken be extended to other DoD installations. The Military Department may extend the action to other military installations in the Military Department. The PDUSD(P&R), following consultation with the Military Department concerned, may order the action extended to other Military Departments.
(7) All suspensions or withdrawals of privileges may be permanent or for a set period of time. If for a set period, when that period expires, the individual or company may reapply for permission to solicit through the installation commander or Military Department originally imposing the restriction. The installation commander or Military Department reinstating permission to solicit shall notify the Office of the PDUSD(P&R) and appropriate State and Federal regulatory agencies when such suspensions or withdrawals are lifted.
(8) The Secretaries of the Military Departments may direct the Armed Forces Disciplinary Control Boards in all geographical areas in which the grounds for withdrawal action have occurred to consider all applicable information and take action that the Boards deem appropriate.
(9) Nothing in this part limits the authority of the installation commander or other appropriate authority from requesting or instituting other administrative and/or criminal action against any person, including those who violate the conditions and restrictions upon which installation entry is authorized.
(f) Advertising and commercial sponsorship. (1) The Department of Defense expects voluntary observance of the highest business ethics by commercial enterprises soliciting DoD personnel through advertisements in unofficial military publications when describing goods, services, commodities, and the terms of the sale (including guarantees, warranties, and the like).
(2) The advertising of credit terms shall conform to the provisions of 15 U.S.C. 1601 as implemented by Federal Reserve Board Regulation Z according to 12 CFR part 226.
(3) Solicitors may provide commercial sponsorship to DoD Morale, Welfare and Recreation programs or events according to DoD Instruction 1015.10. However, sponsorship may not be used as a means to obtain personal contact information for any participant at these events without written permission from the individual participant. In addition, commercial sponsors may not use sponsorship to advertise products and/or services not specifically agreed to in the sponsorship agreement.
(4) The installation commander may permit organizations to display sales literature in designated locations subject to command policies. In accordance with DoD 7000.14-R, ^{10} Volume 7(a), distribution of competitive literature or forms by off-base banks and/or credit unions is prohibited on installations where an authorized on-base bank and/or credit union exists.
^{10} See footnote 1 to § 50.3.
(g) Educational programs. (1) The Military Departments shall develop and disseminate information and provide educational programs for members of the Military Services on their personal financial affairs, including such subjects as insurance, Government benefits, savings, budgeting, and other financial education and assistance requirements outlined in DoD Instruction 1342.27. ^{11} The Military Departments shall ensure that all instructors are qualified as appropriate for the subject matter presented. The services of representatives of authorized on-base banks and credit unions may be used for this purpose. Under no circumstances shall commercial agents, including representatives of loan, finance, insurance, or investment companies, be used for this purpose. Presentations shall only be conducted at the express request of the installation commander.
^{11} See footnote 1 to § 50.3.
(2) The Military Departments shall also make qualified personnel and facilities available for individual counseling on loans and consumer credit transactions in order to encourage thrift and financial responsibility and promote a better understanding of the wise use of credit, as prescribed in DoD 7000.14-R.
(3) The Military Departments shall encourage military members to seek advice from a legal assistance officer, the installation financial counselor, their own lawyer, or a financial counselor, before making a substantial loan or credit commitment.
(4) Each Military Department shall provide advice and guidance to DoD personnel who have a complaint under DoD 1344.9 or who allege a criminal violation of its provisions, including referral to the appropriate regulatory agency for processing of the complaint.
(5) Banks and credit unions operating on DoD installations are required to provide financial counseling services as an integral part of their financial services offerings. Representatives of and materials provided by authorized banks and/or credit unions located on military installations may be used to provide the educational programs and information required by this part subject to the following conditions:
(i) If the bank or credit union operating on a DoD installation sells insurance or securities or has any affiliation with a company that sells or markets insurance or other financial products, the installation commander shall consider that company's history of complying with this part before authorizing the on-base financial institution to provide financial education.
(ii) All prospective educators must agree to use appropriate disclaimers in their presentations and on their other educational materials. The disclaimers must clearly indicate that they do not endorse or favor any commercial supplier, product, or service, or promote the services of a specific financial institution.
(6) Use of other non-government organizations to provide financial education programs is limited as follows:
(i) Under no circumstances shall commercial agents, including employees or representatives of commercial loan, finance, insurance, or investment companies, be used.
(ii) The limitation in paragraph (g)(6)(i) of this section does not apply to educational programs and information regarding the Survivor Benefits Program and other government benefits provided by tax-exempt organizations under section (c)(23) of 26 U.S.C. 501 or by any organization providing such a benefit under a contract with the Government.
(iii) Educators from non-government, non-commercial organizations expert in personal financial affairs and their materials may, with appropriate disclaimers, provide the educational programs and information required by this part if approved by a Presidentially-appointed, Senate-confirmed civilian official of the Military Department concerned. Presentations by approved organizations shall be conducted only at the express request of the installation commander. The following criteria shall be used when considering whether to permit a non-government, non-commercial organization to present an educational program or provide materials on personal financial affairs:
(A) The organization must qualify as a tax-exempt organization under 5 U.S.C. 501(c)(3) or 5 U.S.C. 501(c)(23).
(B) If the organization has any affiliation with a company that sells or markets insurance or other financial products, the approval authority shall consider that company's history of complying with this part.
(C) All prospective educators must use appropriate disclaimers, in their presentations and on their other educational materials, which clearly indicate that they and the Department of Defense do not endorse or favor any commercial supplier, product, or service or promote the services of a specific financial institution.
§ 50.7
Information requirements.
The reporting requirements concerning the suspension or withdrawal of solicitation privileges have been assigned Report Control Symbol (RCS) DD-P&R(Q)2182 in accordance with DoD 8910.1-M. ^{12}
^{12} See footnote 1 to § 50.3.
Pt. 50, App. A

Appendix A to Part 50—Life Insurance Products and Securities

A. Life Insurance Product Content Prerequisites
Companies must provide DoD personnel a written description for each product or service they intend to market to DoD personnel on DoD installations. These descriptions must be written in a manner that DoD personnel can easily understand, and fully disclose the fundamental nature of the policy. Companies must be able to demonstrate that each form to be used has been filed with and approved, where applicable, by the insurance department of the State where the installation is located. Insurance products marketed to DoD personnel on overseas installations must conform to the standards prescribed by the laws of the State where the company is incorporated.
1. Insurance products, other than certificates or other evidence of insurance issued by a self-insured association, offered and sold worldwide to personnel on DoD installations, must:
a. Comply with the insurance laws of the State or country in which the installation is located and the requirements of this part.
b. Contain no restrictions by reason of Military Service or military occupational specialty of the insured, unless such restrictions are clearly indicated on the face of the contract.
c. Plainly indicate any extra premium charges imposed by reason of Military Service or military occupational specialty.
d. Contain no variation in the amount of death benefit or premium based upon the length of time the contract has been in force, unless all such variations are clearly described in the contract.
e. In plain and readily understandable language, and in type font at least as large as the font used for the majority of the policy, inform Service members of:
1. The availability and cost of government subsidized Servicemen's Group Life Insurance.
2. The address and phone number where consumer complaints are received by the State insurance commissioner for the State in which the insurance product is being sold.
3. That the U.S. Government has in no way sanctioned, recommended, or encouraged the sale of the product being offered. With respect to the sale or solicitation of insurance on Federal land or facilitates located outside the United States, insurance products must contain the address and phone number where consumer complaints are received by the State insurance commissioner for the State which has issued the agent a resident license or the company is domiciled, as applicable.
2. To comply with paragraphs A.1.b., A.1.c. and A.1.d., an appropriate reference stamped on the first page of the contract shall draw the attention of the policyholder to any restrictions by reason of Military Service or military occupational specialty. The reference shall describe any extra premium charges and any variations in the amount of death benefit or premium based upon the length of time the contract has been in force.
3. Variable life insurance products may be offered provided they meet the criteria of the appropriate insurance regulatory agency and the Securities and Exchange Commission.
4. Insurance products shall not be marketed or sold disguised as investments. If there is a savings component to an insurance product, the agent shall provide the customer written documentation, which clearly explains how much of the premium goes to the savings component per year broken down over the life of the policy. This document must also show the total amount per year allocated to insurance premiums. The customer must be provided a copy of this document that is signed by the insurance agent.

B. Sale of Securities
1. All securities must be registered with the Securities and Exchange Commission.
2. All sales of securities must comply with the appropriate Securities and Exchange Commission regulations.
3. All securities representatives must apply to the commander of the installation on which they desire to solicit the sale of securities for permission to solicit.
4. Where the accredited insurer's policy permits, an overseas accredited life insurance agent—if duly qualified to engage in security activities either as a registered representative of the National Association of Securities Dealers or as an associate of a broker or dealer registered with the Securities and Exchange Commission—may offer life insurance and securities for sale simultaneously. In cases of commingled sales, the allotment of pay for the purchase of securities cannot be made to the insurer.

C. Use of the Allotment of Pay System
1. Allotments of military pay for life insurance products shall be made in accordance with DoD 7000.14-R.
2. For personnel in pay grades E-4 and below, in order to obtain financial counseling, at least seven calendar days shall elapse between the signing of a life insurance application and the certification of a military pay allotment for any supplemental commercial life insurance. Installation Finance Officers are responsible for ensuring this seven-day cooling-off period is monitored and enforced. The purchaser's commanding officer may grant a waiver of the seven-day cooling-off period requirement for good cause, such as the purchaser's imminent deployment or permanent change of station.

D. Associations—General
The recent growth and general acceptability of quasi-military associations offering various insurance plans to military personnel are acknowledged. Some associations are not organized within the supervision of insurance laws of either a State or the Federal Government. While some are organized for profit, others function as nonprofit associations under Internal Revenue Service regulations. Regardless of the manner in which insurance is offered to members, the management of the association is responsible for complying fully with the policies contained in this part.
Pt. 50, App. B

Appendix B to Part 50—Overseas Life Insurance Registration Program

A. Registration Criteria

1. Initial Registration
a. Insurers must demonstrate continuous successful operation in the life insurance business for a period of not less than 5 years on December 31 of the year preceding the date of filing the application.
b. Insurers must be listed in Best's Life-Health Insurance Reports and be assigned a rating of B+ (Very Good) or better for the business year preceding the Government's fiscal year for which registration is sought.

2. Re-Registration
a. Insurers must demonstrate continuous successful operation in the life insurance business, as described in paragraph A.1.a. of this appendix.
b. Insurers must retain a Best's rating of B+ or better, as described in paragraph A.1.b. of this appendix.
c. Insurers must demonstrate a record of compliance with the policies found in this part.

3. Waiver Provisions
Waivers of the initial registration or re-registration provisions shall be considered for those insurers demonstrating substantial compliance with the aforementioned criteria.

B. Application Instructions
1. Applications Filed Annually. Insurers must apply by June 30 of each year for solicitation privileges on overseas U.S. military installations for the next fiscal year beginning October 1. Applications e-mailed, faxed, or postmarked after June 30 shall not be considered.
2. Application prerequisites. A letter of application, signed by the President, Vice President, or designated official of the insurance company shall be forwarded to the Principal Deputy Under Secretary of Defense (Personnel and Readiness), Attention: Morale, Welfare and Recreation (MWR) Policy Directorate, 4000 Defense, Pentagon, Washington, DC 20301-4000. The registration criteria in paragraph A1.a. or A1.b. of this appendix must be met to satisfy application prerequisites. The letter shall contain the information set forth below, submitted in the order listed. Where criteria are not applicable, the letter shall so state.
a. The overseas Combatant Commands (e.g., U.S. European Command, U.S. Pacific Command, U.S. Central Command, U.S. Southern Command) where the company presently solicits, or plans to solicit, on U.S. military installations.
b. A statement that the company has complied with, or shall comply with, the applicable laws of the country or countries wherein it proposes to solicit. “Laws of the country” means all national, provincial, city, or county laws or ordinances of any country, as applicable.
c. A statement that the products to be offered for sale conform to the standards prescribed in appendix A to this part and contain only the standard provisions such as those prescribed by the laws of the State where the company's headquarters are located.
d. A statement that the company shall assume full responsibility for the acts of its agents with respect to solicitation. If warranted, the number of agents may be limited by the overseas command concerned.
e. A statement that the company shall only use agents who have been licensed by the appropriate State and registered by the overseas command concerned to sell to DoD personnel on DoD installations.
f. Any explanatory or supplemental comments that shall assist in evaluating the application.
g. If the Department of Defense requires facts or statistics beyond those normally involved in registration, the company shall make separate arrangements to provide them.
h. A statement that the company's general agent and other registered agents are appointed in accordance with the prerequisites established in section C of this appendix.
3. If a company is a life insurance company subsidiary, it must be registered separately on its own merits.

C. Agent Requirements
The overseas Combatant Commanders shall apply the following principles in registering agents:
1. An agent must possess a current State license. This requirement may be waived for a registered agent continuously residing and successfully selling life insurance in foreign areas, who, through no fault of his or her own, due to State law (or regulation) governing domicile requirements, or requiring that the agent's company be licensed to do business in that State, forfeits eligibility for a State license. The request for a waiver shall contain the name of the State or jurisdiction that would not renew the agent's license.
2. General agents and agents may represent only one registered commercial insurance company. This principle may be waived by the overseas Combatant Commander if multiple representations are in the best interest of DoD personnel.
3. An agent must have at least 1 year of successful life insurance underwriting experience in the United States or its territories, generally within the 5 years preceding the date of application, in order to be approved for overseas solicitation.
4. The overseas Combatant Commanders may exercise further agent control procedures as necessary.
5. An agent, once registered in an overseas area, may not change affiliation from the staff of one general agent to another and retain registration, unless the previous employer certifies in writing that the release is without justifiable prejudice. Overseas Combatant Commanders will have final authority to determine justifiable prejudice. Indebtedness of an agent to a previous employer is an example of justifiable prejudice.

D. Announcement of Registration
1. Registration by the Department of Defense upon annual applications of insurers shall be announced as soon as practicable by notice to each applicant and by a list released annually in September to the appropriate overseas Combatant Commanders. Approval does not constitute DoD endorsement of the insurer or its products. Any advertising by insurers or verbal representation by its agents, which suggests such endorsement, is prohibited.
2. In the event registration is denied, specific reasons for the denial shall be provided to the applicant.
a. The insurer shall have 30 days from the receipt of notification of denial of registration (sent certified mail, return receipt requested) in which to request reconsideration of the original decision. This request must be in writing and accompanied by substantiating data or information in rebuttal of the specific reasons upon which the denial was based.
b. Action by the Office of the PDUSD(P&R) on a request for reconsideration is final.
c. An applicant that is presently registered as an insurer shall have 90 calendar days from final action denying registration in which to close operations.
3. Upon receiving an annual letter approving registration, each company shall send to the applicable overseas Combatant Commander a verified list of agents currently registered for overseas solicitation. Where applicable, the company shall also include the names and prior military affiliation of new agents for whom original registration and permission to solicit on base is requested. Insurers initially registered shall be furnished instructions by the Department of Defense for agent registration procedures in overseas areas.
4. Material changes affecting the corporate status and financial condition of the company that occur during the fiscal year of registration must be reported to the MWR Policy Directorate at the address in paragraph B.2. of this appendix as they occur.
a. The Office of the PDUSD(P&R) reserves the right to terminate registration if such material changes appear to substantially affect the financial and operational standards described in section A of this appendix on which registration was based.
b. Failure to report such material changes may result in termination of registration regardless of how it affects the standards.
5. If an analysis of information furnished by the company indicates that unfavorable trends are developing that could adversely affect its future operations, the Office of the PDUSD(P&R) may, at its option, bring such matters to the attention of the company and request a statement as to what action, if any, is considered to deal with such unfavorable trends.
Pt. 53

PART 53—WEARING OF THE UNIFORM
Sec.
53.1
Purpose.
53.2
Policy.

Authority:
5 U.S.C. 301, 10 U.S.C. 772.
§ 53.1
Purpose.
This part prescribes limitations on wearing of the uniform by members of the Armed Forces, and establishes policy with respect to wearing of the uniform by former members of the Armed Forces.
[35 FR 1236, Jan. 30, 1970]
§ 53.2
Policy.
(a) Members of the Armed Forces (including retired members and members of reserve components). The wearing of the uniform is prohibited under any of the following circumstances:
(1) At any meeting or demonstration which is a function of, or sponsored by an organization, association, movement, group, or combination of persons which the Attorney General of the United States has designated, pursuant to E.O. 10450 as amended, as totalitarian, fascist, communist, or subversive, or as having adopted a policy of advocating or approving the commission of acts of force or violence to deny others their rights under The Constitution of the United States, or as seeking to alter the form of Government of the United States by unconstitutional means.
(2) During or in connection with the furtherance of political activities, private employment or commercial interests, when an inference of official sponsorship for the activity or interest could be drawn.
(3) Except when authorized by competent Service authority, when participating in activities such as public speeches, interviews, picket lines, marches, rallies or any public demonstrations (including those pertaining to civil rights), which may imply Service Sanction of the cause for which the demonstration or activity is conducted.
(4) When wearing of the uniform would tend to bring discredit upon the Armed Forces.
(5) When specifically prohibited by regulations of the department concerned.
(b) Former members of the Armed Forces. (1) Unless qualified under another provision of this part or under the provisions of 10 U.S.C. 772, former members who served honorably during a declared or undeclared war and whose most recent service was terminated under honorable conditions may wear the uniform in the highest grade held during such war service only upon the following occasions and in the course of travel incidents thereto:
(i) Military funerals, memorial services, weddings, and inaugurals.
(ii) Parades on national or State holidays; or other parades or ceremonies of a patriotic character in which any active or reserve U.S. military unit is taking part.
(2) Wearing of the uniform or any part thereof at any other time or for any other purpose is prohibited.
(c) Medal of Honor holders. Persons who have been awarded the Medal of Honor may wear the uniform at their pleasure except under the circumstances set forth in paragraph (a) of this section.
[35 FR 1236, Jan. 30, 1970]
Pt. 54

PART 54—ALLOTMENTS FOR CHILD AND SPOUSAL SUPPORT
Sec.
54.1
Purpose.
54.2
Applicability and scope.
54.3
Definitions.
54.4
Policy.
54.5
Responsibilities.
54.6
Procedures.

Authority:
15 U.S.C. 1673, 37 U.S.C. 101, 42 U.S.C. 665.

Source:
51 FR 23755, July 1, 1986, unless otherwise noted.
§ 54.1
Purpose.
Under section 65 of title 42, United States Code, this part provides policy on statutorily required child or child and spousal support allotments, assigns responsibilities, and prescribes procedures. The policy and procedures for this part are also located in the DoD Financial Management Regulation (“DoDFMR”), Volume 7B, Chapter 43, section 4304, “Allotments for Child Support and Spousal Support” (DoD 7000.14-R).
[51 FR 23755, July 1, 1986, as amended at 71 FR 40656, July 18, 2006]
§ 54.2
Applicability and scope.
(a) This part applies to the Office of the Secretary of Defense (OSD) and the Military Departments. The term “Military Services,” as used herein, refers to the Army, Navy, Air Force, and Marine Corps.
(b) Its provisions cover members of the Military Services on extended active duty. This does not include a member under a call or order to active duty for a period of less than 30 days.
§ 54.3
Definitions.
(a) Authorized person. Any agent or attorney of any State having in effect a plan approved under part D of title IV of the Social Security Act (42 U.S.C. 651-664), who has the duty or authority to seek recovery of any amounts owed as child or child and spousal support (including, when authorized under the State plan, any official of a political subdivision); and the court that has authority to issue an order against a member for the support and maintenance of a child or any agent of such court.
(b) Child support. Periodic payments for the support and maintenance of a child or children, subject to and in accordance with State or local law. This includes, but is not limited to, payments to provide for health care, education, recreation, and clothing or to meet other specific needs of such a child or children.
(c) Designated official. The representative of the Military Service concerned who is authorized to receive and to process notices under this part. See § 54.6(f) for a listing of designed officials.
(d) Notice. A court order, letter, or similar documentation issued by an authorized person providing notification that a member has failed to make periodic support payments under a support order.
(e) Spousal support. Periodic payments for the support and maintenance of a spouse or former spouse, in accordance with State and local law. It includes, but is not limited to, separate maintenance, alimony while litigation continues, and maintenance. Spousal support does not include any payment for tranfer of property or its value by an individual to his or her spouse or former spouse in compliance with any community property settlement, equitable distribution of property, or other division of property between spouses or former spouses.
(f) Support order. Any order providing for child or child and spousal support issued by a Court of competent jurisdiction within any State, territory, or possession of the United States, including Indian tribal courts, or in accordance with administrative procedures established under State law that affords substantial due process and is subject to judicial review.
§ 54.4
Policy.
The Department of Defense is obligated by 42 U.S.C. 665 to require child, or child and spousal, support allotments from the pay and allowances of a member who has failed to make periodic payments under a support order in a total amount equal to the support payable for 2 months or longer. The member's allotment shall be established by the Secretary of the Military Department concerned, or the Secretary's designee, provided all requirements of this part have been met.
§ 54.5
Responsibilities.
(a) The Assistant Secretary of Defense (Comptroller) (ASD(C)) shall provide guidance, monitor compliance with this part, and have the authority to change or modify the procedures in § 54.6.
(b) The Secretaries of the Military Departments shall comply with this part.
§ 54.6
Procedures.
(a) Notice to designated official. (1) An authorized person shall send to the designated official of the member's Military Service a signed notice that includes:
(i) A statement that delinquent support payments equal or exceed the amount of support payable for 2 months under a support order, and a request that an allotment be initiated pursuant to 42 U.S.C. 665.
(ii) A certified copy of the support order.
(iii) The amount of the monthly support payment. Such amount may include arrearages, if a support order specifies the payment of such arrearages. The notice shall indicate how much of the amount payable shall be applied toward liquidation of the arrearages.
(iv) A statement that delinquent support payments are more than 12 weeks in arrears, if appropriate.
(v) Sufficient information identifying the member to enable processing by the designated official. The following information is requested:
(A) Full name;
(B) Social Security Number;
(C) Military Service (Army, Navy, Air Force, or Marine Corps).
(vi) The full name and address of the allottee. The allottee shall be an authorized person, the authorized person's designee, or the recipient named in the support order.
(vii) Any limitations on the duration of the support allotment.
(viii) A certificate that the official sending the notice is an authorized person.
(2) The notice shall be sent by mail or delivered in person to the appropriate designated official of the Military Service. The designated official shall note the date and time of receipt on the notice.
(3) The notice is effective when it is received in the office of the designated official.
(4) When the notice does not sufficiently identify the member, it shall be returned directly to the authorized person with an explanation of the deficiency. However, before the notice is returned, if there is sufficient time, an attempt shall be made to inform the authorized person who sent the notice that it will not be honored unless adequate information is supplied.
(5) Upon receipt of effective notice of delinquent support payments, together with all required supplementary documents and information, the designated official shall identify the member from whom moneys are due and payable. Under § 54.6(d), the allotment shall be established in the amount necessary to comply with the support order and to liquidate arrearages if provided by a support order when the maximum amount to be allotted under this provision, together with any other moneys withheld for support from the member, does not exceed:
(i) Fifty percent of the member's disposable earnings for any month in which the member asserts by affidavit or other acceptable evidence that he or she is supporting a spouse, dependent child, or both, other than a party in the support order. When the member submits evidence, copies shall be sent to the authorized person, together with notification that the member's support claim shall be honored. If the support claim is contested by the authorized person, that authorized person may refer this matter to the appropriate court or other authority for resolution.
(ii) Sixty percent of the member's disposable earnings for any month in which the member fails to assert by affidavit or other acceptable evidence that he or she is supporting a spouse, dependent child, or both.
(iii) Regardless of the limitations above, an additional 5 percent of the member's disposable earnings shall be withheld when the notice states that the total amount of the member's support payments is 12 or more weeks in arrears.
(b) Disposable Earnings. (1) In determining disposable earnings for a member assigned within the contiguous United States, include the following payments. For definitions of these items, see DoD 5000.12-M.
(i) Basic pay (including Military Service academy cadet and midshipman pay).
(ii) Basic allowance for quarters for members with dependents, and for members without dependents in grade E-7 or higher.
(iii) Basic allowance for subsistence for commissioned and warrant officers.
(iv) Special pay for physicians, dentists, optometrists, and veterinarians.
(v) Submarine pay.
(vi) Flying pay (all crew members).
(vii) Diving pay.
(viii) Proficiency pay or special duty assignment pay.
(ix) Career sea pay.
(2) To determine disposable earnings for a member assigned outside of the contiguous United States, the following shall supplement the payments listed in paragraph (b)(1) of this section:
(i) Foreign duty pay.
(ii) Special pay for duty subject to hostile fire (applies only to members permanently assigned in a designated area).
(iii) Family separation allowances (only under certain type-II conditions).
(iv) Special pay for overseas extensions
(c) Calculations of disposable earnings shall exclude:
(1) Amounts owed by the member to the United States.
(2) Amounts mandatorily withheld for the U.S. Soldiers' and Airmen's Home.
(3) Fines and forfeitures ordered by a court-martial or by a commanding officer.
(4) Federal and State employment and income taxes withheld to the extent that the amount deducted is consistent with the member's tax liability.
(5) Deductions for the Servicemen's Group Life Insurance coverage.
(6) Advances of pay received by the member before receipt of notice (see paragraph (c)(1) of this section) that may be due and payable by the member at some future date. Requests for advances received after notice for a statutorily required support allotment shall be reduced by the amount of the statutorily required support allotment.
(7) Other amounts required by law to be deducted.
(d) Notice to member and member's Commanding Officer.
(1) As soon as possible, but not later than 15 calendar days after the date of receipt of notice, the designated official shall send to the member, at his or her duty station, written notice:
(i) That notice has been received from an authorized person, including a copy of the documents submitted.
(ii) Of the maximum limitations provided in 15 U.S.C. 1673, with a request that the member submit supporting affidavits or other documentation necessary for determining the applicable percentage limitation.
(iii) That the member may submit supporting affidavits or other documentation as evidence that the information contained in the notice is in error.
(iv) That by submitting supporting affidavits or other necessary documentation, the member consents to the disclosure of such information to the party requesting the support allotment.
(v) Of the amount or percentage that will be deducted if the member fails to submit the documentation necessary to enable the designated official to respond to the notice within the prescribed time limits.
(vi) That a consultation with a judge advocate or legal officer will be provided by the Military Service, if possible, and that the member should immediately contact the nearest legal services office.
(vii) Of the date that the allotment is scheduled to begin.
(2) The designated official shall notify the member's commanding officer, or designee, of the need for consultation between the member and a judge advocate or legal officer. The designated official shall provide the member's commanding officer, or designee, with a copy of the notice and other legal documentation served on the designated official.
(3) The Military Services shall provide the member with the following:
(i) When possible, an in-person consultation with a judge advocate or legal officer of the Military Service concerned, to discuss the legal and other factors, involved in the member's support obligation and failure to make payment.
(ii) Copies any other documents submitted with the notice.
(4) The member's commanding officer, or designee, shall confirm in writing to the designated official within 30 days of notice that the member received a consultation concerning the member's support obligation and the consequences of failure to make payments, or when appropriate, of the inability to arrange such consultation and the status of continuing efforts to fulfill the consultation requirement.
(5) If, within 30 days of the date of the notice, the member has furnished the designated official affidavits or other documentation showing the information in the notice to be in error, the designated official shall consider the member's response. The designated official may return to the authorized person, without action, the notice for a statutorily required support allotment together with the member's affidavit and other documentation, if the member submits substantial proof of error, such as:
(i) The support payments are not delinquent.
(ii) The underlying support order in the notice has been amended, superseded, or set aside.
(e) Payments. (1) Except as provided in paragraph (e)(3) the Secretary of the Military Department concerned, or designee, shall make the support allotment by the first end-of-month payday after the designated official is notified that the member has had a consultation with a judge advocate or legal officer, or that a consultation was not possible, but not later than the first end-of-month payday after 30 days have elapsed from the date of the notice to the member. The Military Services will not be required to vary their normal military allotment payment cycle to comply with the notice.
(2) If several notices are sent with respect to the same member, payments shall be satisfied on a first-come, first-served basis within the amount limitations in paragraph (a)(5) of this section.
(3) When the member identified in the notice is found not to be entitled to money due from or payable by the Military Service, the designated official shall return the notice to the authorized person and shall advise him or her that no money is due from or payable by the Military Service to the named individual. When it appears that amounts are exhausted temporarily or otherwise unavailable, the authorized person shall be told why, and for how long, any money is unavailable, if known. If the member separates from active duty, the authorized person shall be informed that the allotment is discontinued.
(4) Payment of statutorily required allotments shall be enforced over other voluntary deductions and allotments when the gross amount of pay and allowances is not sufficient to permit all authorized deductions and collections.
(5) The authorized person or allottee shall notify the designated official promptly if the operative court order upon which the allotment is based is vacated, modified, or set aside. The designated official shall also be notified of any events affecting the allottee's eligibility to receive the allotment, such as the former spouse's remarriage, if a part of the payment is for spousal support, and notice of a change in eligibility for child support payments under circumstances of death, emancipation, adoption, or attainment of majority of a child whose support is provided through the allotment.
(6) An allotment established under this Directive shall be adjusted or discontinued upon notice from the authorized person.
(7) Neither the Department of Defense, nor any officer or employee thereof, shall be liable for any payment made from moneys due from, or payable by, the Department of Defense to any individual pursuant to notice regular on its face, if such payment is made in accordance with this part. If a designated official receives notices based on a support order which, on its face, appears to conform to the laws of the jurisdiction from which it was issued, the designated official shall not be required to ascertain whether the authority that issued the order had obtained personal jurisdiction over the member.
(f) List of designated officials.
Army—Commander, U.S. Army Finance and Accounting Center, ATTN: FINCL-G, Indianapolis, IN 46249-0160, (317) 542-2155.
Navy—Director, Navy Family Allowance Activity, Anthony J. Celebrezze Federal Building, Cleveland, OH 44199, (216) 522-5301.
Air Force—Commander, Air Force Accounting and Finance Center, ATTN: JA, Denver, CO 80279, (303) 370-7524.
Marine Corps—Commanding Officer, Marine Corps Finance Center (Code AA), Kansas City, MO 64197, (816) 926-7103.
Pt. 56

PART 56—NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS AND ACTIVITIES ASSISTED OR CONDUCTED BY THE DEPARTMENT OF DEFENSE
Sec.
56.1
Purpose.
56.2
Applicability and scope.
56.3
Definitions.
56.4
Policy.
56.5
Responsibilities.
56.6
Information requirements.
56.7
Programs and activities subject to this part.
56.8
Guidelines for determining discriminatory practices.
56.9
Ensuring compliance with this part in Federal financial assistance programs and activities.
56.10
Ensuring compliance with this part in programs and activities conducted by the Department of Defense.

Authority:
Pub. L. 93-112, sec. 504 29 U.S.C. 794, as amended by Pub. L. 95-602, 92 Stat. 2982; Pub. L. 93-112, sec. 7, 29 U.S.C. 706, as amended by Pub. L. 93-516, 88 Stat. 1619; Executive Order 12250; Executive Order 12291; Executive Order 12067.

Source:
47 FR 15124, Apr. 8, 1982, unless otherwise noted.
§ 56.1
Purpose.
This part implements section 504 of Public Law 93-112, “Rehabilitation Act of 1973,” September 26, 1973 (29 U.S.C. 794) (1976); section 111 of Pub. L. 93-516, “Rehabilitation Act Amendments of 1974,” December 7, 1974 (29 U.S.C. 706, 780, 790) (1976); section 119 of Pub. L. 95-602, “Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978,” November 6, 1978 (29 U.S.C. 794) (supp. III 1979); and Department of Justice Regulation, “Implementation of Executive Order 12250, Nondiscrimination on the Basis of Handicap in Federally Assisted Programs,” August 11, 1981 (28 CFR part 41) to prohibit discrimination based on handicap in programs and activities receiving Federal financial assistance disbursed by the Department of Defense and in programs and activities conducted by the Department of Defense.
§ 56.2
Applicability and scope.
(a) This part applies to the Office of the Secretary of Defense, the Military Departments, the Organization of the Joint Chiefs of Staff, the National Guard Bureau, and the Defense Agencies (hereafter referred to as “DoD Components”) insofar as they:
(1) Extend Federal financial assistance to programs and activities that affect handicapped persons in the United States and that are covered by this part (see § 56.7(b)).
(2) Conduct programs and activities that affect handicapped persons in the United States and that are covered by this part (see § 56.7(c)).
(b) This part also applies to each recipient of Federal financial assistance disbursed by the Department of Defense and to each program and activity that receives or benefits from such assistance, insofar as such recipient, program, or activity affects a handicapped person in the United States.
§ 56.3
Definitions.
(a) Facility. All or any portion of buildings, structures, equipment, roads, walks, parking lots, or other real or personal property or any interest in such property.
(b) Federal financial assistance. Any grant, loan, contract (other than a procurement contract or a contract of insurance or guaranty), or any other arrangement by which the Federal Government provides or otherwise makes available assistance in the form of:
(1) Funds.
(2) Services performed by Federal personnel, including technical assistance, counseling, training, and provision of statistical or expert information.
(3) Real and personal property or any interest in or use of such property, including:
(i) Transfers or leases of such property for less than fair market value or for reduced consideration.
(ii) Proceeds from a subsequent transfer or lease of such property if the Federal share of its fair market value is not returned to the Federal government.
(c) Handicapped person. Any person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. For purposes of this Directive as it relates to employment programs of recipients, such term does not include any individual who is an alcoholic or drug abuser and whose current use of alcohol or drugs prevents such individual from performing the duties of the job in question, or whose employment, by reason of such current alcohol or drug abuse, would constitute a direct threat to property or to the safety of others. As used in this paragraph:
(1) Physical or mental impairment. Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: Neurological; musculoskeletal and special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine; or any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The term includes such diseases and conditions as orthopedic, visual, speech, and hearing impairments; cerebral palsy, epilepsy, and muscular dystrophy; multiple sclerosis; cancer; heart disease; diabetes; drug abuse; and alcoholism.
(2) Major life activities. Functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
(3) Has a record of such an impairment. Has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.
(4) Is regarded as having an impairment. Has: (i) A physical or mental impairment that does not substantially limit major life activities but is treated by a recipient or DoD Component as constituting such a limitation;
(ii) A physical or a mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or
(iii) None of the impairments defined above, but is treated by a recipient or DoD Component as having such an impairment.
(d) Historic properties. Those properties listed or eligible for listing in the National Register of Historic Places.
(e) Include; such as. Not all the possible items are covered, whether like or unlike the ones named.
(f) Qualified handicapped person. A handicapped person who:
(1) With respect to employment, can perform the essential functions of the job in question with reasonable accommodation.
(2) With respect to services, meets the essential eligibility requirements for receiving the services in question.
(g) Recipient. Any State or political subdivision or instrumentality thereof, any public or private agency, institution, organization, or other entity, or any person that receives Federal financial assistance directly or through another recipient, including any successor, assignee, or transferee of a recipient, but not the ultimate beneficiary of the assistance. The term includes persons and entities applying to be recipients.
(h) Substantial impairment. A significant loss of the integrity of finished materials, design quality, or special character resulting from a permanent alteration.
§ 56.4
Policy.
It is DoD policy that no qualified handicapped person shall be subjected to discrimination on the basis of handicap under any program or activity that receives or benefits from Federal financial assistance disbursed by a DoD Component or under any Federal program or activity that is conducted by a DoD Component. Guidelines for determining actions that discriminate against handicapped persons are prescribed in § 56.8.
§ 56.5
Responsibilities.
(a) The Assistant Secretary of Defense (Manpower, Reserve Affairs, and Logistics) (ASD(MRA&L)), or designee, shall monitor compliance with this part. In discharging this responsibility, the ASD(MRA&L), or designee, shall:
(1) Coordinate efforts of DoD Components to enforce this part.
(2) Assist in the development of standards and procedures promulgated pursuant to § 56.9.
(3) Perform the responsibilities assigned to the ASD(MRA&L) in § 56.8, 9, and 10.
(4) Otherwise assist DoD Components in implementing this part.
(b) The Heads of DoD Components shall comply with this part. In discharging this responsibility, they shall:
(1) Designate a policy-level official to ensure compliance with this part receive and investigate complaints filed under this part and otherwise manage DoD Component responsibilities under this part.
(2) Notify the ASD(MRA&L), or designee, of the name, position, location, and telephone number of persons selected by them to be policy-level officials within 15 calendar days of such a selection.
(3) Issue guidelines pursuant to § 56.9.
(4) Cooperate fully with the ASD(MRA&L), or designee, in that official's performance of the responsibilities assigned herein, including furnishing to the ASD(MRA&L), or designee, in a timely fashion any requested reports and information.
(5) Assign sufficient personnel to implement and to ensure effective enforcement of this part.
§ 56.6
Information requirements.
(a) Each DoD Component shall maintain a log of all complaints that are filed with it or its recipients under this part. The log shall contain the complainant's name (last name, first, and middle initial) and address (street address, city, State, and zip code), the recipient's name (if this refers to a person, last name, first, and middle initial) and address (street address, city, State, and zip code), the nature of the complaint, and the current status of the complaint investigation or resolution. Each DoD Component shall submit a narrative summary report on complaints by memorandum to the ASD(MRA&L), or designee, before July 15 and January 15 of each year. This reporting requirement has been assigned Report Control Symbol DD-M(SA)1596.
(b) Each DoD Component shall submit a narrative report by memorandum to the ASD(MRA&L), or designee, whenever, pursuant to enclosure 4 of this directive, the DoD Component notifies an applicant or recipient that noncompliance with this part is indicated. The report shall include the recipient's name (if this refers to a person, last name, first, and middle initial) and address (street address, city, State, and zip code), the date (YYMMDD) and nature of the finding, and the name of the applicable federally assisted program or activity. This reporting requirement has been assigned Report Control Symbol DD-M(AR)1597.
(c) The recordkeeping requirements contained in § 56.9(c)(2), have been approved by the Office of Management and Budget (OMB) under 44 U.S.C. chapter 35 and have been assigned OMB No. 0704-0102.
§ 56.7
Programs and activities subject to this part.
(a) This part applies to all DoD Components and recipients of Federal financial assistance disbursed by a DoD Component insofar as the programs and activities of the DoD Components and recipients affect handicapped persons in the United States. Existing programs and activities that are assisted or conducted by a DoD Component and that are subject to this part but do not appear in paragraph (b) or (c) of this section, are covered even though not listed. DoD Components must report new programs and activities that are subject to this part to the ASD (MRA&L), or designee, within 15 calendar days of their creation or funding.
(b) Federal financial assistance programs subject to this part include: (1) title 32, United States Code, sections 101-716 (1976 and supp. III 1979): the Army and Air National Guard.
(2) Title 40, U.S. Code, sections 483, 484, and 512 (1976); title 49, U.S. Code, sections 1101 and 1107 (1976); and title 10, U.S. Code, sections 2541, 2544, 2571, 2576, 2662, 7308, 7541, 7542, 7545, 7546, and 7547 (1976 and supp. IV 1980): Various programs involving the loan or other disposition of surplus, obsolete, or unclaimed property.
(3) Title 10 U.S. Code, sections 4307-4311 (1976), and the annual Department of Defense Appropriations Act: National Program for the Promotion of Rifle Practice.
(4) Secretary of the Navy Instruction 5720.19E, “Navy Science Cruiser Program,” February 24, 1977.
(5) Title 10 U.S. Code, section 9441 (1976 and supp. IV 1980): Civil Air Patrol.
(6) Title 41 U.S. Code, sections 501-509 (supp. III 1979): Federal grants and cooperative agreements.
(7) Title 33 U.S. Code, section 426 (1976 and supp. III 1979): Army Corps of Engineers participation in cooperative investigations and studies concerning the erosion of shores of coastal and lake waters.
(8) Title 33 U.S. Code, sections 426e-426h (1976): Army Corps of Engineers assistance in the construction of works for the restoration and protection of shores.
(9) Title 16 U.S. Code, section 460d (1976): Construction and operation of public park and recreational facilities in water resource development projects under the administrative jurisdiction of the Department of the Army.
(10) Title 33 U.S. Code, section 701c-3 (1976): Payment to States of lease receipts from lands acquired by the United States for flood control, navigation, and allied purposes.
(11) Title 33 U.S. Code, sections 558c and 702d-1 (1976); title 10, U.S. Code, sections 2668 and 2669 (1976); title 43, U.S. Code, section 961 (1976); and title 40, U.S. Code, section 319 (1976): Grants of easements without consideration, or at a nominal or reduced consideration, on land under the control of the Department of the Army at water resource development projects.
(12) Title 33 U.S. Code, sections 540 and 577 (1976): Army Corps of Engineers assistance in the construction of small boat harbor projects.
(13) Title 33 U.S. Code, section 701s (1976): Emergency bank protection works constructed by the Army Corps of Engineers for protection of highways, bridge approaches, and public works.
(14) Title 33 U.S. Code, section 633 (1976): Army Corps of Engineers contracts for the protection, alteration, reconstruction, relocation, or replacement of structures and facilities.
(15) Title 50 U.S. Code, section 453 (1976): Defense Logistics Agency loans of industrial equipment to educational institutions (Tools for Schools).
(16) Title 33 U.S. Code, section 610 (1976): Provision of specialized services or technical information by the Army Corps of Engineers to State and local governments for the control of aquatic plant growths in rivers, harbors, and allied waters.
(17) Title 42 U.S. Code, section 1962d-16 (1976): Provision of specialized services by the Army Corps of Engineers to any State for the preparation of comprehensive plans for drainage basins located within the boundaries of said State.
(18) Title 33 U.S. Code, section 603a (1976): Provision of specialized services by the Army Corps of Engineers to improve channels for navigation.
(19) Title 33 U.S. Code, section 701g (1976): Provision of specialized services by the Army Corps of Engineers to reduce flood damage.
(20) Title 24 U.S. Code, sections 44c and 47 (1976): United States Soldiers' and Airmen's Home.
(21) Title 10 U.S. Code, chapter 55, as implemented by DoD 6010.8-R, “Civilian Health and Medical Program of the Uniformed Services (CHAMPUS),” January 10, 1977.
(c) All programs and activities conducted by the Department of Defense that affect handicapped persons in the United States are subject to this part. They include:
(1) Promulgation of rules and regulations for public comment in a manner that grants handicapped persons a reasonable opportunity for such comment (such as by making cassette recordings of proposed rules).
(2) Public meetings, conferences, or seminars sponsored or conducted by a DoD Component but held in nongovernmental buildings.
(3) Public meetings, conferences, or seminars sponsored or conducted by a DoD Component or by a non-DoD organization but held in a DoD building.
(4) Open houses, memorial services, tours, or other ceremonies held on or in DoD property.
(5) Military museums.
(6) Historic vessels.
(7) Historic buildings and properties maintained by a DoD Component and properties designated as historic under a statute of the appropriate State or local governmental body.
(8) Schools operated by the Department of Defense within the United States pursuant to section 6 of Public Law 81-874, title 20, U.S. Code, section 241 (1976).
§ 56.8
Guidelines for determining discriminatory practices.
(a) General prohibitions against discrimination. (1) No qualified handicapped person shall, on the basis of handicap, be excluded from participation in, be denied the benefit of, or otherwise be subjected to discrimination under any program or activity that is conducted by the Department of Defense or that receives or benefits from Federal financial assistance disbursed by the Department of Defense.
(2) A recipient or DoD Component may not, directly or through contractual, licensing, or other arrangements, on the basis of handicap:
(i) Provide different or separate aid, benefits, or services to handicapped persons than is provided to others unless such action is necessary to provide qualified handicapped persons with aid, benefits, or services that are equal to those provided to others;
(ii) Deny a qualified handicapped person the opportunity to participate in or benefit from the aid, benefit, or service;
(iii) Afford a qualified handicapped person an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;
(iv) Provide a qualified handicapped person with an aid, benefit, or service that is not as effective as that afforded to others; or
(v) Otherwise limit a qualified handicapped person in the enjoyment of any right, privilege, advantage, or opportunity granted to others receiving the aid, benefit, or service.
(3) A recipient or DoD Component may not deny a qualified handicapped person the opportunity to participate in programs or activities that are not separate or different from regular programs or activities, even if such separate or different programs and activities are permissible under paragraph (a)(2)(i) of this section.
(4) A recipient or DoD Component may not provide assistance to an agency, organization, or person that discriminates on the basis of handicap in providing any aid, benefit, or service to beneficiaries of the recipient's program or activity.
(5) A recipient of DoD Component may not deny, on the basis of handicap, a qualified handicapped person the opportunity to participate as a member of planning or advisory boards.
(6) A recipient or DoD Component may not use, directly or through contractual or other arrangements, criteria or methods of administration that:
(i) Subject qualified handicapped persons to discrimination on the basis of handicap;
(ii) Defeat or substantially impair accomplishment of the objectives of the recipient's or DoD Component's program or activity with respect to handicapped persons; or
(iii) Perpetuate discrimination by another recipient if both recipients are subject to common administrative control or are agencies of the same State.
(7) In determining the site or location of a facility, a recipient or DoD Component may not make selections that:
(i) Exclude handicapped persons from, deny them the benefits of, or otherwise subject them to discrimination under any program or activity that receives or benefits from Federal financial assistance; or
(ii) Defeat or substantially impair, with respect to handicapped persons, the accomplishment of the objectives of the program or activity.
(8) Recipients and DoD Components shall administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons.
(9) Recipients and DoD Components shall take appropriate steps to make communications with their applicants, employees, and beneficiaries available to persons with impaired vision and hearing.
(10) This section may not be interpreted to prohibit the exclusion of:
(i) Persons who are not handicapped from benefits, programs, and activities limited by Federal statute or Executive order to handicapped persons; or
(ii) One class of handicapped persons from a program or activity limited by Federal statute or Executive order to a different class of handicapped persons.
(11) Recipients and DoD Components shall take appropriate steps to ensure that no handicapped individual is denied the benefits of, excluded from participation in, or otherwise subjected to discrimination under any program or activity receiving or benefiting from Federal financial assistance disbursed by the Department of Defense or under any program or activity conducted by the Department of Defense because of the absence of auxiliary aids, such as certified sign-language interpreters, telecommunication devises (TDDs), or other telephonic devices for individuals with impaired sensory, manual, or speaking skills.
(b) Prohibitions against employment discrimination by recipients. (1) No qualified handicapped person shall, on the basis of handicap, be subjected to discrimination in employment under any program or activity that receives or benefits from Federal financial assistance disbursed by the Department of Defense.
(2) The prohibition against discrimination in employment applies to the following:
(i) Recruitment, advertising, and processing of applications for employment.
(ii) Hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff, termination, right of return from layoff, and rehiring.
(iii) Rates of pay or any other form of compensation and changes in compensation.
(iv) Job assignments, job classifications, organizational structures, position descriptions, lines of progression, and seniority lists.
(v) Leaves of absence, sick leave, or any other leave.
(vi) Fringe benefits available by virtue of employment, whether or not administered by the recipient.
(vii) Selection and financial support for training, including apprenticeship, professional meetings, conferences and other related activities, and selection for leaves of absence for training.
(viii) Programs and activities sponsored by the employer, including social and recreational programs.
(ix) Any other term, condition, or privilege of employment.
(3) A recipient may not participate in a contractual or other relationship that subjects qualified handicapped applicants or employees to discrimination prohibited by this section, including relationships with employment and referral agencies, labor unions, organizations providing or administering fringe benefits to employees of the recipient, and organizations providing training and apprenticeship programs.
(4) A recipient shall make reasonable accommodation to the known physical or mental limitations of an otherwise qualified handicapped applicant or employee unless the recipient can demonstrate that the accommodation would impose an undue hardship on the operation of its program. Reasonable accommodation includes providing ramps, accessible restrooms, drinking fountains, interpreters for deaf employees, readers for blind employees, amplified telephones, TDDs such as Teletypewriters or Telephone Writers (TTYs), and tactile signs on elevators.
(5) A recipient may not use employment tests or criteria that discriminate against handicapped persons, and shall ensure that employment tests are adapted for use by persons who have handicaps that impair sensory, manual, or speaking skills.
(6) A recipient may not conduct a preemployment medical examination or make a preemployment inquiry about whether an applicant is a handicapped person or about the nature or severity of a handicap. A recipient may make, however, a preemployment inquiry into an applicant's ability to perform job-related functions.
(7) When a recipient is taking remedial action to correct the effects of past discrimination or is taking voluntary action to overcome the effects of conditions that have resulted in limited participation by handicapped persons in its federally assisted program or activity, the recipient may invite applicants for employment to indicate whether and to what extent they are handicapped if:
(i) The recipient makes clear to the applicants that the information is intended for use solely in connection with its remedial action obligations or its voluntary affirmative action efforts.
(ii) The recipient makes clear to the applicants that the information is being requested on a voluntary basis, that it will be kept confidential as provided in paragraph (b)(9) in this section, that refusal to provide it will not subject the applicants to any adverse treatment, and that it will be used only in accordance with this part.
(8) Nothing in this section shall prohibit a recipient from conditioning an offer of employment on the results of a medical examination conducted prior to the employee's entrance on duty if:
(i) All entering employees are subjected to such an examination, regardless of handicap.
(ii) The results of such an examination are used only in accordance with this part which prohibits discrimination against a qualified handicapped person on the basis of handicap.
(9) Information obtained under this section concerning the medical condition or history of applicants shall be collected and maintained on separate forms that shall be accorded confidentiality as medical records, except that:
(i) Supervisors and managers may be informed about restrictions on the work or duties of handicapped persons and about necessary accommodations.
(ii) First aid and safety personnel may be informed, when appropriate, if a handicapping condition might require emergency treatment.
(iii) Government officials investigating compliance with section 504, Pub. L. 93-112, and this part shall be provided relevant information upon request.
(c) Program accessibility—(1) General requirements. No qualified handicapped person shall, because a recipient's or DoD Component's facilities are inaccessible to or not usable by handicapped persons, be denied the benefits of, be excluded from participation in, or otherwise be subjected to discrimination under any program or activity that receives or benefits from Federal financial assistance disbursed by the Department of Defense or under any program or activity conducted by the Department of Defense.
(2) Existing facilities. (i) A recipient or DoD Component shall operate each program or activity so that the program or activity, when viewed in its entirety, is readily accessible to and usable by handicapped persons. This does not necessarily require a recipient or DoD Component to make each of its existing facilities or every part of an existing facility accessible to and usable by handicapped persons. For guidance in determining the accessibility of facilities, see chapter 18 of DoD 4270.1-M, “Department of Defense Construction Criteria Manual,” June 1, 1978, and Department of the Army, Office of the Chief of Engineers, Manual EM 1110-1-103, “Design for the Physically Handicapped,” October 15, 1976. Inquiries on specific accessibility design problems may be addressed to the ASD (MRA&L), or designee.
(ii) When structural changes are necessary to make programs or activities in existing facilities accessible to the exent required by paragraph (c)(1) of this section.
(A) Such changes shall be made as soon as practicable, but not later than 3 years after the effective date of this part however, if the program or activity is a particular mode of transportation (such as a subway station) that can be made accessible only through extraordinarily expensive structural changes to, or replacement of, existing facilities and if other accessible modes of transportation are available, the DoD Component concerned may extend this period of time. This extension shall be for a reasonable and definite period, which shall be determined after consultation with the ASD(MRA&L), or designee.
(B) The recipient or DoD Component shall develop, with the assistance of interested persons or organizations and within a period to be established in each DoD Component's guidelines, a transition plan setting forth the steps necessary to complete such changes.
(C) The recipient or DoD Component shall make a copy of the transition plan available for public inspection. At a minimum, the plan shall:
(1) Identify physical obstacles in the recipient's or DoD Component's facilities that limit the accessibility of its program or activity to handicapped persons.
(2) Describe in detail the methods that will be used to make the facilities accessible.
(3) Specify the schedule for taking the steps necessary to achieve full program accessibility and, if the time period of the transition plan is longer than 1 year, identify steps that will be taken during each year of the transition period.
(4) Indicate the person (last name, first, and middle initial) responsible for implementation of the transition plan.
(iii) A recipient or DoD Component may comply with paragraphs (c)(2)(i) and (c)(2)(ii) of this section, through such means as the acquisition or redesign of equipment, such as telecommunication or other telephonic devices; relocation of classes or other services to accessible buildings; assignment of aides to beneficiaries, such as readers or certified sign-language interpreters; home visits; delivery of health, welfare, or other services at accessible alternate sites; alteration of existing facilities and construction of new facilities in conformance with paragraph (c)(3) in this section; or any other method that results in making the program or activity of the recipient or DoD Component accessible to handicapped persons.
(iv) A recipient or DoD Component is not required to make structural changes in existing facilities when other methods are effective in achieving compliance with this section.
(v) In choosing among available methods for meeting the requirements of this section, a recipient or DoD Component shall give priority to those methods that offer programs and activities to handicapped persons in the most integrated setting appropriate with nonhandicapped persons.
(3) New Construction. New facilities shall be designed and constructed to be readily accessible to and usable by handicapped persons. Alterations to existing facilities shall be designed and constructed, to the maximum extent feasible, to be readily accessible to and usable by handicapped persons. For guidance in determining the accessibility of facilities, see chapter 18 of DoD 4270.1-M and Department of the Army, Office of the Chief of Engineers, Manual EM 1110-1-103. Inquiries about specific accessibility design problems may be addressed to the ASD(MRA&L), or designee.
(4) Historic properties. (i) In the case of historic properties, program accessibility shall mean that, when viewed in their entirety, programs are readily accessible to and usable by handicapped persons. Because the primary benefit of historic properties is the experience of the property itself, DoD Components and recipients shall give priority to those methods of achieving program accessibility that make the historic property, or portions thereof, physically accessible to handicapped persons.
(ii) Methods of achieving program accessibility include:
(A) Making physical alterations that give handicapped persons access to otherwise inaccessible areas or features of historic properties.
(B) Using audiovisual materials and devices to depict otherwise inaccessible areas or features of historic properties.
(C) Assigning individuals to guide handicapped persons into or through otherwise inaccessible portions of historic properties.
(D) Adopting other innovative methods.
(iii) When program accessibility cannot be achieved without causing a substantial impairment of significant historic features, the DoD Component or recipient may seek a modification or waiver of access standards from the ASD (MRA&L), or designee.
(A) A decision to grant a modification or waiver shall be based on consideration of the following:
(1) Scale of the property, reflecting its ability to absorb alterations.
(2) Use of the property, whether primarily for public or private purposes.
(3) Importance of the historic features of the property to the conduct of the program.
(4) Costs of alterations in comparison to the increase in accessibility.
(B) The ASD(MRA&L), or designee, shall review periodically any waiver granted under this paragraph and may withdraw it if technological advances or other changes warrant.
(iv) The decision by the ASD(MRA&L), or designee, to grant a modification or waiver of access standards is subject to section 106 of the National Historic Preservation Act, as amended, and shall be made in accordance with the Advisory Council on Historic Preservation regulation on “Protection of Historic and Cultural Properties” (36 CFR part 800). When the property is federally owned or when Federal funds may be used for alterations, the ASD(MRA&L), or designee, shall obtain the comments of the Advisory Council on Historic Preservation when required by section 106 of the National Historic Preservation Act and the Advisory Council on Historic Preservation regulation on “Protection of Historic and Cultural Properties” (36 CFR part 800) prior to effectuation of structural alterations.
(v) DoD Component guidelines prepared in accordance with § 56.10 shall include a listing of all historic properties, including historic ships, subject to this part and a plan for compliance with paragraph (c)(4) of this section.
(5) Military museums. (i) In the case of military museums, program accessibility shall mean that exhibits, displays, tours, lectures, circulating or traveling exhibits, and other programs of military museums are accessible to and usable by handicapped persons. Methods of meeting this requirement include the following:
(A) Museum programs may be made accessible to deaf and hearing-impaired persons by means such as training museum staff, such as docents, in sign language; providing qualified sign-language interpreters to accompany deaf or hearing-impaired visitors; ensuring that clear, concise language is used on all museum signs and display labels; providing amplification devices; or providing printed scripts for films, videotapes, lectures, or tours. DoD Components are encouraged to use “Museums and Handicapped Students: Guidelines for Educators,” published by the National Air and Space Museum, Smithsonian Institution, Washington, DC 20560.
(B) Museum programs may be made accessible to blind and visually-impaired persons by means such as providing museum catalogues in a large-print edition printed over braille; providing cassette tapes, records, or discs for museum tours or exhibits; providing readers to accompany blind or visually impaired visitors; using large-print and braille display cards at exhibits; providing raised-line maps of the museum building; using raised-line drawings, reproductions, or models of large exhibits to facilitate tactile experiences when touching exhibits is prohibited; placing large-print and braille signs to identify galleries, elevators, restrooms, and other service areas; and permitting guide dogs in all museum facilities.
(C) Museum programs may be made accessible to other physically impaired persons by means such as lowering display cases; spacing exhibits to facilitate movement; using ramps in galleries; increasing lighting in exhibit areas to facilitate viewing from a distance; providing places to sit in exhibit areas; making restrooms accessible; using large-print exhibit display cards to facilitate reading from a distance; and sensitizing museum staff to consider the needs of handicapped visitors when organizing exhibits.
(ii) DoD Component guidelines developed in accordance with paragraph (c)(5) of this section shall identify military museums subject to paragraph (c) of this section and shall contain a plan for making museum programs accessible to handicapped persons. Technical assistance in the preparation and content of these plans may be obtained from the National Access Center, 1419 27th Street, NW., Washington, DC 20007 ((202) 333-1712 or TTY (202) 333-1339). In addition, community organizations that serve handicapped persons and handicapped persons themselves shall be consulted in the preparation of these plans.
(d) Reasonable accommodation. (1) A recipient or DoD Component shall make reasonable accommodation to the known physical or mental limitations of an otherwise qualified handicapped applicant or employee unless the recipient or DoD Component demonstrates to the ASD(MRA&L), or designee, that the accommodation would impose an undue hardship on the operation of its program.
(2) Reasonable accommodation includes the following:
(i) Making facilities used by employees readily accessible to and usable by handicapped persons.
(ii) Job restructuring; part-time or modified work schedules; acquisition or modification of equipment or devices, such as telecommunication or other telephonic instruments; the provision of readers or certified sign-language interpreters; and similar actions.
(3) In determining whether an accommodation would impose an undue hardship on the operation of a recipient's or DoD Component's program, the ASD(MRA&L), or designee, shall consider the following factors, at a minimum:
(i) The overall size of the recipient's or DoD Component's program or activity, such as the number of employees, number and type of facilities, and size of budget.
(ii) The size of the recipient's or DoD Component's operations, including the composition and structure of the recipient's or DoD Component's workforce.
(iii) The nature and cost of the accommodation needed.
(4) A recipient or DoD Component may not deny any employment opportunity to a qualified handicapped employee or applicant for employment if the basis for the denial is the need to make reasonable accommodation to the physical or mental limitations of the employee or applicant.
§ 56.9
Ensuring compliance with this part in Federal financial assistance programs and activities.
(a) Supplementary guidelines issued by DoD Components. (1) Whenever necessary, DoD Components shall publish supplementary guidelines for each type of program or activity to which they disburse Federal financial assistance within 120 days of the effective date of this part or of the effective date of any subsequent statute authorizing Federal financial assistance to a new type of program or activity. DoD Components shall obtain approval of these supplementary guidelines from the ASD(MRA&L), or designee, before issuing them. Prior to their issuance, the ASD(MRA&L), or designee, shall submit supplementary guidelines prepared pursuant to paragraph (a)(1) of this section to the Coordination and Review Section, Civil Rights Division, Department of Justice, for review and approval. To the extent that supplementary guidelines issued by DoD Components deal with the employment of civilians in programs and activities subject to this part the ASD(MRA&L), or designee, shall also obtain the approval of the Equal Employment Opportunity Commission (EEOC) in accordance with Executive Order 12067.
(2) The ASD(MRA&L), or designee, and DoD Components shall ensure that their supplementary guidelines conform to the requirements of this part and that they provide:
(i) A description of the types of programs and activities covered.
(ii) Examples of prohibited practices likely to arise with respect to those types of programs and activities.
(iii) A list of the data collection and reporting requirements of the recipients.
(iv) Procedures for processing and investigating complaints.
(v) Procedures for hearings to determine compliance by recipients with this part.
(vi) Requirements or suggestions for affirmative action on behalf of qualified handicapped persons.
(vii) Requirements for the dissemination of program and complaint information to the public.
(viii) A description of the form of the assurances that must be executed pursuant to paragraph (b) of this section, and sample assurances.
(ix) Requirements concerning the frequency and nature of postapproval reviews conducted pursuant to paragraph (h) of this section.
(x) A period of time, provided for by § 56.8(c)(2)(ii)(B), for the development of a transition plan that sets out the steps necessary to complete structural changes that might be required by § 56.8(c).
(xi) The maximum period of time that may be allowed for extensions that might be granted pursuant to § 56.8(c)(2)(ii).
(xii) An appendix that contains a list of identified programs and activities of the type covered by the supplementary guidelines, including the names of the programs and activities and the authorizing statute, regulation, or directive for each program and activity.
(xiii) Requirements for the recipient to designate a responsible official to coordinate the implementation of supplementary guidelines.
(xiv) Requirements for any other actions or procedures necessary to implement this part.
(3) When the head of a DoD Component determines that it would not be appropriate to include on or more of the provisions described in paragraph (a)(2) of this section, in the supplementary guidelines of that DoD Component or that it is not necessary to issue such guidelines at all, the reasons for such determination shall be stated in writing and submitted to the ASD(MRA&L), or designee, for review and approval. Once that determination is approved, the DoD Component shall make it available to the public upon request.
(4) The heads of DoD Components, or designees, shall be responsible for keeping the supplementary guidelines current and accurate. When a DoD Component determines that a program or activity should be added to or deleted from the guidelines, the DoD Component shall notify the ASD(MRA&L), or designee, in writing.
(b) Required assurances. (1) DoD Components shall require all recipients to file written assurances that their programs or activities will be conducted in accordance with this part and supplementary guidelines promulgated by DoD Components. If a recipient fails to provide an assurance that conforms to the requirements of this section, the DoD Component shall attempt to effect compliance pursuant to paragraphs (f) through (h) of this section, provided that if assistance is due and payable to the recipient based on an application approved prior to the effective date of this part the DoD Component shall continue the assistance while any proceedings required by paragraphs (n) through (v) of this section, are pending.
(2) DoD Components shall advise each recipient of the required elements of the assurance and, with respect to each program or activity, of the extent to which those receiving assistance from recipients shall be required to execute similar assurances.
(3) DoD Component shall ensure that each assurance:
(i) Obligates the recipient to advise the DoD Component of any complaints received that allege discrimination against handicapped persons.
(ii) Obligates the recipient to collect and provide the items of information that the DoD Component lists in its supplementary guidelines pursuant to paragraph (a)(2)(iii) of this section.
(iii) Is made applicable to any Federal financial assistance that might be disbursed by a DoD Component without the submission of a new application.
(iv) Obligates the recipient, when the financial assistance is in the form of proprerty, for the period during which the property is used under a financial assistance agreement or is possessed by the recipient.
(v) Includes a provision recognizing that the U.S. Government has the right to seek judicial enforcement of section 504 and this part.
(c) Self-evaluation and consultation with interested persons and organizations. (1) DoD Components shall require recipients to conduct, within 6 months of the effective date of this part or of first receiving Federal financial assistance disbursed by the Department of Defense, a self-evaluation with the assistance of interested persons, including handicapped persons or organizations that represent them. When appropriate, DoD Components also shall require recipients to consult at least annually with such persons. The “Department of Health, Education, and Welfare Section 504 Technical Assistance Reserve Directory,” April 1980, shall be consulted to identify likely sources for consultation. In conducting its self-evaluation, each recipient shall:
(i) Evaluate the effects of its policies and practices with respect to its compliance with this part and the applicable DoD Component's supplementary guidelines.
(ii) Modify any policies that do not meet such requirements.
(iii) Take appropriate remedial steps to eliminate the discriminatory effects of any such policies or practices.
(2) For at least 3 years following the completion of a self-evaluation required under paragraph (c)(1) of this section, a recipient shall maintain on file, make available for public inspection, and provide to the ASD(MRA&L), or designee, upon request:
(i) A list of the interested persons (last names, first names, and middle initials) consulted.
(ii) A description of areas examined and problems identified, if any, with respect to those areas.
(iii) A description of any modification made and remedial steps taken.
(d) Dissemination of information. (1) Within 90 days of the effective date of this part or of first receiving assistance from the Department of Defense and on a continuing basis thereafter, each recipient shall notify beneficiaries and employees of their rights under this part and shall take appropriate steps to notify participants, beneficiaries, applicants for employment and employees, including those with impaired vision or hearing, and unions or professional organizations involved in collective bargaining or professional agreements with the recipient that the recipient does not discriminate on the basis of handicap in violation of this part. The notification shall state, when appropriate, that the recipient does not discriminate in admitting or providing access to or treating or employing persons in its programs and activities. Such notification may be accomplished by posting notices, publishing announcements in newspapers and magazines, placing notices in its publications, or distributing memoranda or other written communications.
(2) If a recipient publishes or uses and makes available to participants, beneficiaries, applicants for employment, or employees recruitment materials or publications containing general information about the recipient's programs and activities, it shall include in those materials or publications a statement of the policy described in paragraph (d)(1) of this section. This may be accomplished by including appropriate inserts in existing materials and publications or by revising and reprinting the materials and publications.
(3) Understandable materials developed in accordance with this section shall be provided to ensure that all beneficiaries and employees of the recipient understand the information. In addition, recipients shall disseminate appropriate and comprehensive information about formal and informal complaint and appeal procedures, including directions on how and where to file complaints and to appeal DoD Component decisions.
(e) Intimidation and interference. Recipients and DoD Components shall take reasonable steps to ensure that no person intimidates, threatens, coerces, or discriminates against any individual for the purpose of retaliating against, interfering with, or discouraging the filing of a complaint, furnishing of information, or assisting or participating in an investigation, compliance review, hearing, or other activity related to the administration of this part.
(f) Staff responsibilities. All DoD Component determinations of recipient compliance with this part shall be subject to reviews by the ASD(MRA&L), or designee. When responsibility for approving applications for Federal financial assistance disbursed by a DoD Component is assigned to regional or area offices of the DoD Component, personnel in such offices shall be designated to perform the functions described in paragraphs (h) and (o) through (w) of this section.
(g) Access to records and facilities. Each recipient shall permit access to its premises by DoD officials during normal business hours when such access is necessary for conducting onsite compliance reviews or complaint investigations, and shall allow such officials to photograph facilities and to inspect and copy any books, records, accounts, and other material relevant to determining the recipient's compliance with this part. Information so obtained shall be used only in connection with the administration of this part. If the recipient does not have the information requested, it shall submit to the DoD Component a written report that contains a certification that the information is not available and describes the good-faith efforts made to obtain the information.
(h) Compliance review. DoD Components shall determine the compliance of each recipient with this part as follows: (1) General. Whenever possible, DoD Components shall perform compliance reviews in conjunction with their review and audit efforts implementing title VI of the Civil Rights Act of 1964.
(2) Desk audit application review. Before approving an application for Federal financial assistance, the DoD Component concerned shall make a written determination as to whether the recipient is in compliance with this part, based on a review of the assurance of compliance executed by a recipient pursuant to paragraph (b) of this section, and other data submitted by the recipient. When a determination cannot be made from the assurance and other data submitted by the recipient, the DoD Component concerned shall require the recipient to submit additional information and shall take other steps as necessary to determine the recipient's compliance with this part. If this additional information demonstrates that the recipient is in compliance with this part, the DoD Component shall notify the recipient promptly that it is in compliance.
(3) Preapproval onsite review. (i) When a desk audit application review conducted pursuant to paragraph (h)(2) of this section indicates that the recipient might not be in compliance with this part, the DoD Component concerned may conduct a preapproval onsite review at the recipient's facilities before approving the disbursement of Federal financial assistance to the recipient. The DoD Component shall conduct such a review:
(A) When appropriate, if a desk audit application review reveals that the recipient's compliance posture is questionable because of a history of discrimination complaints, current discrimination complaints, a noncompliance determination by another government agency or DoD Component, or other indications of possible noncompliance; or
(B) If Federal financial assistance is requested for construction, except under extraordinary circumstances, to determine whether the location and design of the project would provide service on a nondiscriminatory basis, in conformity with § 56.8(c).
(ii) Preapproval onsite reviews shall be conducted under DoD Component supplementary guidelines and in accordance with the provisions of paragraph (h)(4) of this section, concerning postapproval reviews.
(4) Postapproval reviews. DoD Components shall: (i) Establish and maintain effective programs of postapproval reviews.
(ii) Conduct such reviews of each recipient, the frequency and the nature of which shall be prescribed in the DoD Component supplemetary guidelines implementing this part.
(iii) Require recipients periodically to submit compliance reports to them.
(iv) Record the results of the reviews, including findings of fact and recommendations.
(5) A DoD Component shall complete a review within 180 calendar days of initiating it unless an extension of time is granted by the ASD(MRA&L), or designee, for good cause shown, and shall either:
(i) Find the recipient to be in compliance and notify the recipient of that finding; or
(ii) Notify the recipient and the ASD(MRA&L), or designee, of a finding of probable noncompliance, pursuant to paragraph (o) of this section.
(i) Filing of complaints against recipients. (1) DoD Components shall establish and publish in their supplementary guidelines procedures for the prompt processing and disposition of complaints against recipients, consistent with this section.
(2) A DoD Component shall consider all complaints that: (i) Are filed with it within 180 days of the alleged discrimination or within a longer period of time if an extension is granted for good cause by the DoD Component with the approval of the ASD(MRA&L), or designee.
(ii) Include the name, address, and telephone number, if any, of the complainant; the name and address of the recipient committing the alleged discrimination; a description of the acts or omissions considered to be discriminatory; and other pertinent information.
(iii) Are signed by the complainant or the complainant's authorized representative (legal counsel or a person with power of attorney granted by the complainant).
(3) DoD Components shall transmit a copy of each complaint filed with them to the ASD(MRA&L), or designee, within 10 calendar days after its receipt.
(4) If the information in a complaint is incomplete, the DoD Component shall request the complainant to provide the additional information required. If the DoD Component does not receive this requested information within 30 calendar days of the date of the request, the case may be closed and the complainant so notified in writing.
(5) If a complaint concerning a program or activity is filed with a DoD Component that does not have jurisdiction over it, the DoD Component shall refer the complaint to the ASD(MRA&L), or designee, and advise the complainant in writing of such referral. The ASD(MRA&L), or designee, then shall refer the complaint to the appropriate DoD Component and so notify the complainant in writing.
(j) Investigation by DoD components. (1) DoD Components shall investigate complaints that involve recipients and that meet the standards described in paragraph (i) of this section, unless good cause for not investigating is stated in a written notification of the disposition of the complaint provided to the complainant.
(2) If an investigation of a complaint is conducted, the DoD Component concerned shall maintain a case record that contains:
(i) The name (last name, first, and middle initial), address (street address, city, State, and zip code), and telephone number of each person interviewed.
(ii) Copies, transcripts, or summaries of pertinent documents.
(iii) A reference to at least one program or activity conducted by the recipient and receiving Federal financial assistance disbursed by a DoD Component, and a description of the amount and nature of the assistance.
(iv) A narrative report of the results of the investigation that contains references to relevant exhibits and other evidence that relates to the alleged violations.
(k) Investigations by recipients. (1) A DoD Component may require or permit recipients to investigate complaints alleging violation of this part. In such cases, the DoD Component shall:
(i) Ensure that the recipient investigates the complaints in accordance with the standards, procedures, and requirements prescribed in paragraph (j) of this section.
(ii) Require the recipient to submit a written report of each complaint and investigation to the DoD Component.
(iii) Retain a review responsibility over the investigation and disposition of each complaint.
(iv) Ensure that each complaint investigation is completed within 180 calendar days of the receipt of the complaint by the proper DoD Component, unless an extension of time is granted for good cause by the ASD(MRA&L), or designee.
(v) Require the recipient to maintain a log of all complaints filed against it, as described in § 56.6(a)(1).
(2) DoD Components that require or permit complaint investigations to be conducted by recipients shall review recipient complaint investigations pursuant to paragraphs (k) and (l) of this section.
(l) Results of investigations. (1) Within 180 days of the receipt of a complaint, the DoD Component, recipient, or the ASD(MRA&L), or designee, shall give written notification:
(i) Of the disposition of the complaint to the complainant and, as the case may be, to the recipient or DoD Component.
(ii) To the complainant that within 30 calendar days of receipt of the written notification, the complainant may request that the ASD(MRA&L), or designee, review the findings in the notification pursuant to paragraph (m) of this section.
(2) If the complaint investigation results in a determination by the DoD Component that a recipient is not complying with this part the DoD Component shall proceed as prescribed in paragraph (n) through (v) of this section. If the DoD Component determines that the recipient is in compliance, the DoD Component shall submit the complete case file to the ASD(MRA&L), or designee, within 15 calendar days after the notification of the disposition of the investigation to the complainant.
(m) Reviewing completed investigations. (1) The ASD(MRA&L), or designee, may review all completed investigations.
(2) The ASD(MRA&L), or designee, shall review the results of any investigation of a complaint if the complainant requests such a review pursuant to paragraph (l)(1)(ii) of this section.
(3) After reviewing the results of an investigation, the ASD(MRA&L), or designee, may:
(i) Find that no further investigation is necessary and approve the results of the investigation;
(ii) Request further investigation by the DoD Component; or
(iii) Require the DoD Component to take appropriate corrective action.
(n) Effecting compliance. (1) When a compliance review or complaint investigation indicates that a recipient has violated this part, the applicable DoD Component's supplementary guidelines, or the assurances executed pursuant to paragraph (b) of this section, the responsible DoD Component or the ASD(MRA&L), or designee, shall attempt to effect compliance in accordance with paragraphs (o) and (p) of this section. The inability of a DoD Component to comply with any time frame prescribed by this part does not relieve a recipient of the responsibility for compliance with this part.
(2) The DoD Component may require, when necessary to overcome the effects of discrimination in violation of this part, a recipient to take remedial action:
(i) With respect to handicapped persons who are no longer participants in the recipient's program or activity but who were participants in the program or activity when such discrimination occurred.
(ii) With respect to handicapped persons who would have been participants in the recipient's program or activity had the discrimination not occurred.
(iii) With respect to handicapped persons presently in the recipient's program or activity, but not receiving full benefits or equal and integrated treatment within the program or activity.
(o) Written notice. After evaluating the investigative report, the DoD Component shall issue to the recipient and, pursuant to paragraph (n)(2) of this section to the ASD(MRA&L), or designee, a written notice that:
(1) Describes the apparent violation and the corrective actions necessary to achieve compliance.
(2) Extends an offer to meet informally with the recipient.
(3) Informs the recipient that failure to respond to the notice within 15 calendar days of its receipt shall result in the initiation of enforcement procedures described in paragraphs (r) through (v), of this section.
(p) Attempting to achieve voluntary compliance by recipients. (1) If a DoD Component issues a notice pursuant to paragraph (o) of this section, the DoD Component shall attempt to meet with the recipient and shall attempt to persuade it to take the steps necessary to achieve compliance with this part.
(2) If a recipient agrees to take remedial steps to achieve compliance, the DoD Component shall require that the agreement be in writing and:
(i) Be signed by the head of the DoD Component concerned, or designee, and by the principal official of the recipient.
(ii) Specify the action necessary to achieve compliance.
(iii) Be made available to the public upon request.
(iv) Be subject to the approval of the ASD(MRA&L), or designee.
(3) If satisfactory adjustment or a written agreement has not been achieved within 60 calendar days of the recipient's receipt of the notice issued pursuant to paragraph (o) of this section, the DoD Component shall notify the ASD(MRA&L), or designee, and state the reasons therefor.
(4) The DoD Component shall initiate the enforcement actions prescribed in paragraphs (r) through (v) of this section if:
(i) The recipient does not respond to a notice pursuant to paragraph (o) of this section, within 15 calendar days of its receipt and satisfactory adjustments are not made within 45 calendar days of the date of the recipient's response; or
(ii) The DoD Component or the ASD (MRA&L) determines at any time within 90 days after the recipient receives a notice pursuant to paragraph (o) of this section, that, despite reasonable efforts, it is not likely that the recipient will comply promptly and voluntarily.
(5) If, pursuant to paragraph (p)(4) of this section, the DoD Component initiates enforcement action, it also shall continue its attempts to persuade the recipient to comply voluntarily.
(q) Imposing sanctions—(1) Sanctions available. If a DoD Component has taken action pursuant to paragraphs (o) and (p) of this section, the DoD Component may, by order, subject to paragraph (q)(2) and (q)(3) of this section:
(i) Terminate, suspend, or refuse to grant or continue assistance to such recipient.
(ii) Refer the case to the Department of Justice for the initation of enforcement proceedings at a Federal, State, or local level.
(iii) Pursue any remedies under State or local law.
(iv) Impose other sanctions upon consultation with the ASD (MRASL), or designee.
(2) Terminating, suspending, or refusing to grant or continue assistance. A DoD Component may not terminate or refuse to grant or continue Federal financial assistance unless:
(i) Such action has been approved by the Secretary of Defense.
(ii) The DoD Component has given the recipient an opportunity for a hearing pursuant to the procedures set out in paragraph (r) of this section, and a finding of noncompliance has resulted.
(iii) Thirty calendar days have elapsed since the Secretary of Defense has filed a written report describing the violation and action to be taken with the committees of the House of Representatives and Senate that have jurisdiction over the program or activity in which the violation of this part exists.
(iv) Such action is limited to affect only the particular activity or program, or portion thereof, of the recipient where the violation exists.
(3) Other sanctions. A DoD Component may not impose the sanctions set out in paragraphs (q)(1) (iii) and (iv) of this section, unless:
(i) The DoD Component has given the recipient an opportunity for a hearing pursuant to paragraph (r) of this section, and a finding of noncompliance has resulted.
(ii) The action has been approved by the Secretary of Defense.
(iii) Ten calendar days have elapsed since the mailing of a notice informing the recipient of its continuing failure to comply with this part the action necessary to achieve compliance, and the sanction to be imposed.
(iv) During those 10 calendar days the DoD Component has made additional efforts to persuade the recipient to comply.
(r) Hearings for recipients—(1) General. When, pursuant to paragraph (q)(2)(ii) of this section, an opportunity for a hearing is given to a recipient, the DoD Component involved shall follow the procedures prescribed in paragraphs (r)(2) through (r)(6) of this section.
(2) Notice. The DoD Component concerned shall notify the recipient of the opportunity for a hearing by registered or certified mail, return receipt requested, when the recipient denies a tentative finding of noncompliance with this part.
(i) The DoD Component shall ensure that the notice:
(A) Describes the proposed sanctions to be imposed.
(B) Cites the section of this part under which the proposed action is to be taken.
(C) States the name and office of the DoD Component official who is responsible for conducting the hearing (hereafter referred to as the “responsible DoD official”).
(D) Outlines the issues to be decided at the hearing.
(E) Advises the recipient either of a date, not less than 20 calendar days after the date that the notice is received, by which the recipient may request that the matter be scheduled for a hearing, or of a reasonable time and place of a hearing that is subject to change for good cause shown.
(ii) When a time and place for a hearing are set, the DoD Component shall give the recipient and the complainant, if any, reasonable notice of such time and place.
(3) Waiver of a hearing. A recipient may waive a hearing and submit to the responsible DoD official, in writing, information or arguments on or before the date stated pursuant to paragraph (r)(2)(i)(E) of this section.
(i) A recipient waives its right to a hearing if it fails to request a hearing on or before a date stated pursuant to paragraph (r)(2)(i)(E) of this section, or fails to appear at a hearing that has been scheduled pursuant to that paragraph.
(ii) If a recipient waives its right to a hearing under this section, the responsible DoD official shall decide the issues and render a final decision that is based on the information available and that conforms to the requirements of paragraph (s)(4) of this section.
(4) Hearing examiner. Hearings shall be conducted by the responsible DoD official or by a hearing examiner designated by the official, provided that the hearing examiner shall be a field grade officer or civilian employee above the grade of GS-12 (or the equivalent) who is admitted to practice law before a Federal court or the highest court of a State, territory, commonwealth, or the District of Columbia.
(5) Right to counsel. In all proceedings under this section, the recipient and the DoD Component may be represented by counsel. The representation of the recipient will not be at U.S. Government expense.
(6) Procedures. Hearings authorized under this section shall be subject to the following: (i) Hearings shall be open to the public.
(ii) Formal rules of evidence will not apply. The DoD Component concerned and the recipient shall be entitled to introduce all relevant evidence on the issues stated in the notice of hearing issued pursuant to paragraph (r)(2) of this section, and those designated by the responsible DoD official or the hearing examiner at the outset of or during the hearing. The responsible DoD official or hearing examiner, however, may exclude irrelevant, immaterial, or repetitious evidence.
(iii) All witnesses may be examined or cross-examined, as the case may be, by each party.
(iv) All parties shall have the opportunity to examine all evidence offered or admitted for the record.
(v) A transcript of the proceedings shall be maintained in either electronic or typewritten form and made available to all parties.
(s) Decisions—(1) Initial or proposed decisions by a hearing examiner. If a hearing is conducted by a hearing examiner who is designated by the responsible DoD official pursuant to paragraph (r)(4) of this section, the hearing examiner shall either:
(i) Make an initial decision, if so authorized, that conforms to the requirements of paragraph (s)(4) of this section; or
(ii) Certify the entire record and submit to the responsible DoD official recommended findings and a proposed decision.
(2) Review of initial decisions. Initial decisions made by a hearing examiner pursuant to paragraph (s)(1)(i) of this section, shall be reviewed as follows:
(i) A recipient may file exceptions to an initial decision within 30 calendar days of receiving notice of such initial decision. Reasons shall be stated for each exception.
(ii) If the recipient does not file exceptions pursuant to paragraph (s)(2)(i) of this section, the responsible DoD official may notify the recipient within 45 calendar days of the initial decision that the responsible DoD official will review the decisions.
(iii) If exceptions are filed pursuant to paragraph (s)(2)(i) of this section, or a notice of review is issued pursuant to paragraph (s)(2)(ii) of this section, the responsible DoD official shall review the initial decision and, after giving the recipient reasonable opportunity to file a brief or other written statement of its contentions, issue a final decision that addresses each finding and conclusion in the initial decision and each exception, if any.
(iv) If the exceptions described in paragraph (s)(2)(i) of this section are not filed and the responsible DoD official does not issue the notice of review described in paragraph (s)(2)(ii) of this section, the initial decision of the hearing examiner shall constitute the final decision of the responsible DoD official.
(3) Decisions by the responsible DoD official who conducts a hearing or receives a certified record. If a hearing examiner who is designated by the responsible DoD official certifies the entire record and submits recommended findings and a proposed decision to the responsible DoD official pursuant to paragraph (s)(1)(ii) of this section, or if the responsible DoD official conducts the hearing, after giving the recipient a reasonable opportunity to file a brief or other written statement of its contentions, the responsible DoD official shall render a final decision that conforms to paragraph (s)(4) of this section.
(4) Contents of decisions. Each decision of a hearing examiner or responsible DoD official shall state all findings and conclusions and identify each violation of this part. The final decision may contain an order pursuant to paragraph (q) of this section, providing for the suspension or termination of or refusal to grant or continue all or some of the Federal financial assistance under the program or activity involved and contain terms, conditions, and other provisions that are consistent with and intended to achieve compliance with this Directive.
(5) Notice of decisions and certifications. The responsible DoD official shall provide a copy of any certified record of a hearing and any initial or final decision to the recipient and the complainant, if any.
(6) Review by the Secretary of Defense. The responsible DoD official shall transmit promptly any final decision that orders a suspension, termination, or denial of Federal financial assistance through the ASD(MRA&L) to the Secretary of Defense. The Secretary may;
(i) Approve the decision;
(ii) Vacate the decision; or
(iii) Remit or mitigate any sanction imposed.
(t) Restoring eligibility for financial assistance. (1) A recipient that is affected adversely by a final decision issued under paragraph (s) of this section, may at any time request the responsible DoD official to restore fully its eligibility to receive Federal financial assistance.
(2) If the responsible DoD official determines that the information supplied by the recipient demonstrates that it has satisfied the terms and conditions of the order entered pursuant to paragraph (s) of this section, and that is complying with and has provided reasonable assurance that it will continue to comply with this part the responsible DoD official shall restore such eligibility immediately.
(3) If the responsible DoD official denies a request for restoration of eligibility, the recipient may submit a written request for a hearing that states why it believes the responsible DoD official erred in denying the request. Following such a written request, the recipient shall be given an expeditious hearing under rules of procedure issued by the responsible DoD official to determine whether the requirements described in paragraph (t)(2) of this section, have been met. While any such proceedings are pending, the sanctions imposed by the order issued under paragraph (s) of this section, shall remain in effect.
(u) Interagency cooperation and delegation. (1) When several recipients are receiving assistance for the same or similar purposes from a DoD Component and another Federal agency, the DoD Component shall notify the ASD (MRA&L), or designee. Such notification shall be in writing and shall contain:
(i) A description of the programs and activities involved.
(ii) A statement of the amount of money expended on the programs and activities in the previous and current fiscal year by the DoD Component and the agency.
(iii) A list of the known primary recipients.
(2) The ASD(MRA&L), or designee, shall attempt to negotiate with the Federal agency a written delegation agreement that designates the agency or the DoD Component as the primary agency for purposes of ensuring compliance with section 504 of Public Law 93-112, as amended, and this part depending upon which of them administers a larger financial assistance program with the common recipients and other relevant factors. If necessary, the agreement shall establish procedures to ensure the enforcement of section 504 of Public Law 93-112, as amended, and this part. The ASD(MRA&L), or designee, shall provide written notification to recipients of an agreement reached under this subsection.
(3) When several recipients are receiving assistance for the same or similar purposes from two or more DoD Components, the DoD Components may negotiate a proposed written delegation agreement that:
(i) Assigns responsibility for ensuring that the recipient complies with this part to one of the DoD Components.
(ii) Provides for the notification to recipients and the responsible program officials of the DoD Components involved of the assignment of enforcement responsibility.
(4) No delegation agreement reached in accordance with paragraph (u)(3) to this section shall be effective until it is approved by the ASD(MRA&L), or designee.
(5) When possible, existing delegation agreements relating to title VI of the Civil Rights Act of 1964 shall be amended to provide for the enforcement of this part.
(6) Any DoD Component conducting a compliance review or investigating a complaint of an alleged violation by a recipient shall notify any other affected agency or DoD Component through the ASD(MRA&L), or designee, upon discovery that the agency or DoD Component has jurisdiction over the program or activity in question and shall subsequently inform it of the finding made. Such reviews or investigations may be conducted on a joint basis.
(7) When a compliance review or complaint investigation under this part reveals a possible violation of Executive Order 11246, titles VI or VII of the Civil Rights Act of 1964, or any other Federal law, the DoD Component shall notify the appropriate agency, through the ASD(MRA&L), or designee.
(v) Coordination with sections 502 and 503. (1) DoD Components shall use DoD 4270.1-M and Department of the Army, Office of the Chief of Engineers, Manual EM 1110-1-103, in developing requirements for the accessibility of facilities. If DoD Components encounter issues with respect to section 502 of the Rehabilitation Act of 1973, as amended, that are not covered by these publications, the ASD(MRA&L), or designee, may be consulted. If necessary, the ASD(MRA&L), or designee, shall consult with the Architectural and Transportation Barriers Compliance Board in resolving such problems.
(2) DoD Components may advise recipients to consult directly with the Architectural and Transportation Barriers Compliance Board in developing accessibility criteria.
(3) DoD Components shall coordinate enforcement actions relating to the accessibility of facilities with the Architectural and Transportation Barriers Compliance Board and shall notify the ASD(MRA&L), or designee, of such coordination.
(4) If a recipient is also a Federal contractor subject to section 503 of the Rehabilitation Act of 1973, as amended, and the regulations thereunder (41 CFR part 60-741) and if a DoD Component has reason to believe that the recipient is in violation thereof, the DoD Component shall coordinate enforcement actions with the Department of Labor, Office of Federal Contract Compliance Programs. The DoD Component shall notify the ASD(MRA&L), or designee, of such coordination.
§ 56.10
Ensuring compliance with this part in programs and activities conducted by the Department of Defense.
(a) Supplementary guidelines. (1) Whenever necessary, the ASD(MRA&L), or designee, shall publish supplementary guidelines for programs and activities that are conducted by DoD Components and that are subject to this Directive. Prior to their issuance, the ASD(MRA&L), or designee, shall submit supplementary guidelines prepared pursuant to this subsection to the Coordination and Review Section, Civil Rights Division, Department of Justice, for review.
(2) The heads of DoD Components, or designees, shall be responsible for keeping the supplementary guidelines described in this section current and accurate. When a DoD Component head determines that a program or activity should be added to or deleted from the guidelines, that official shall notify the ASD(MRA&L), or designee, in writing.
(b) Staff responsibilities. The ASD(MRA&L), or designee, shall determine DoD Component compliance with this part as it pertains to programs and activities that are conducted by DoD Components and are subject to this part.
(c) Filing of complaints. (1) Complaints of discrimination in a program or activity conducted by a DoD Component may be filed directly with the ASD(MRA&L), or designee.
(2) DoD Components shall develop procedures, such as posters or other devices, to notify participants in the programs and activities listed in § 56.7(c) of their right to be free of discrimination because of handicap in those programs and activities and of their right to file complaints of discrimination with the ASD(MRA&L), or designee.
(d) Investigations of complaints. (1) The ASD(MRA&L), or designee, shall investigate complaints of discrimination in programs and activities that are conducted by DoD Components and are subject to this part.
(2) A case record of each investigation shall be compiled in accordance with § 56.9(j)(2).
(e) Results of investigations. If the complaint investigation results in a determination by the ASD(MRA&L), or designee, that a DoD Component's program or activity is not complying with § 56.9, the ASD(MRA&L), or designee, shall proceed as prescribed in § 56.9 (n) through (v). Hearings prescribed under § 56.9(r) however, need not be conducted. If the ASD(MRA&L), or designee, determines that the DoD Component is in compliance, the ASD(MRA&L), or designee, shall notify the complainant within 15 calendar days of such determination.
(f) Written notice. If an investigative report concludes that there has been a violation of this part in a program or activity conducted by a DoD Component and the ASD(MRA&L), or designee, accepts that conclusion, that official shall issue to the head of the DoD Component a written notice describing the apparent violation, the corrective actions necessary to achieve compliance, and a suspense date for completion of the corrective actions.
(g) Effecting compliance. When necessary to overcome the effects of discrimination in violation of this part the ASD(MRA&L), or designee, may require a DoD Component to take remedial action similar to that in § 56.9(n)(2).
(h) Employment. DoD Components that conduct Federal programs or activities covered by this part that involve employment of civilian persons to conduct such a program or activity must comply with section 501 of the Rehabilitation Act of 1973, as amended, and the implementing rules and regulations of the EEOC.
Pt. 57

PART 57—PROVISION OF EARLY INTERVENTION AND SPECIAL EDUCATION SERVICES TO ELIGIBLE DOD DEPENDENTS
Sec.
57.1
Purpose.
57.2
Applicability and scope.
57.3
Definitions.
57.4
Policy.
57.5
Responsibilities.
57.6
Procedures.
Appendix A to Part 57—Procedures for the Provision of Early Intervention Services for Infants and Toddlers With Disabilities and Their Families
Appendix B to Part 57—Procedures for the Provision of Educational Programs and Services for Children With Disabilities, Ages 3 Through 21 Years, Inclusive
Appendix C to Part 57—Procedures for the Provision of Related Services by the Military Medical Departments to DoDDS Students on IEPs
Appendix D to Part 57—The DoD-AP
Appendix E to Part 57—DoD-CC on Early Intervention, Special Education, and Related Services
Appendix F to Part 57—Parent and Student Rights
Appendix G to Part 57—Mediation and Hearing Procedures
Appendix H to Part 57—Monitoring

Authority:
20 U.S.C. 921 and 1400.

Source:
69 FR 32662, June 10, 2004, unless otherwise noted.
§ 57.1
Purpose.
This part:
(a) Implements policy, assigns responsibilities, and prescribes procedures under 20 U.S.C. chapter 33 and 20 U.S.C. 921-932, 10 U.S.C. 2164, DoD Directive 1342.6 ^1 , DoD Directive 1342.21, DoD Instruction 1342.26, DoD Directive 1342.13, and DoD Directive 5105.4 for the following:
^1 All unclassified DoD Directives, DoD Instructions, and DoD Publications mentioned in this part may be obtained via Internet at http://www.dticmil/whs/directives.
(1) Provision of early intervention services (EIS) to infants and toddlers with disabilities (birth through 2 years, inclusive) and their families, and special education and related services (hereafter referred to as “special services”) to children with disabilities (ages 3 through 21 years, inclusive) entitled to receive special services from the Department of Defense in accordance with 10 U.S.C. 2164, DoD Directive 1342.6, DoD Directive 1342.21, DoD Instruction 1342.26, DoD Directive 1342.13, and DoD Directive 5105.4.
(2) Implementation of a comprehensive, multidisciplinary program of EIS for infants and toddlers (birth through 2 years, inclusive) with disabilities, and their families.
(3) Provision of a free, appropriate public education (FAPE) including special education and related services for children with disabilities enrolled in the DoD school systems, as specified in their Individualized Educational Programs (IEP).
(4) Monitoring of DoD programs providing EIS, special education, and related services for compliance with this part.
(5) Establishment of a DoD Advisory Panel (DoD-AP) on Early Intervention, Special Education, and Related Services and a DoD Coordinating Committee (DoD-CC) on Early Intervention, Special Education, and Related Services in accordance with DoD Directive 5105.4.
(b) Authorizes implementing instructions, a DoD Manual entitled “Standard Operating Procedures for the Provision of Early Intervention, Special Education and Related Services,” consistent with DoD 5025.1-M and DoD forms consistent with DoD 8910.1-M, DoD Instruction 7750.7, and Hospital Accreditation Standards.
§ 57.2
Applicability and scope.
This part:
(a) Applies to the Office of the Secretary of Defense, the Military Departments, the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Office of the Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other organizational entities in the Department of Defense (hereafter referred to collectively as “the DoD Components”).
(b) Applies to infants, toddlers, and children receiving or entitled to receive special services from the Department of Defense, and their parents.
(c) Applies to DoD Domestic Dependents Elementary and Secondary Schools (DDESS) operated by the Department of Defense within the continental United States, Alaska, Hawaii, and territories, commonwealths and possessions of the United States (hereafter referred to as “domestic”).
(d) Applies to DoD Dependents Schools (DoDDS) operated by the Department of Defense outside the continental United States and its territories, commonwealths and possessions (hereafter referred to as “overseas”).
(e) Does not create any rights or remedies and may not be relied upon by any person, organization, or other entity to allege a denial of such rights or remedies.
§ 57.3
Definitions.
(a) Age of Majority. The age when a person acquires the rights and responsibilities of being an adult. For purposes of this part, a child attains majority at age 18.
(b) Alternate Assessment. A process that measures the performance of students with disabilities unable to participate, even with accommodations provided, in system-wide assessment.
(c) Alternative Educational Setting (AES). A temporary setting other than the school (e.g., home, installation library) normally attended by the student. The interim AES shall:
(1) Be selected so as to enable the child to continue to progress in the general curriculum, although in another setting, and to continue to receive those services and modifications, including those described in the child's current IEP, that shall enable the child to meet the goals set out in that IEP; and
(2) Include services and modifications to address the behavior that resulted in the child being considered or placed in an AES.
(d) Assessment. The ongoing procedures used by appropriately qualified personnel throughout the period of a child's eligibility determination to identify the child's unique needs; the family's strengths and needs related to development of the child; and the nature and extent of early intervention services that are needed by the child and the child's family to meet their unique needs.
(e) Assistive Technology Device. Any item, piece of equipment, or product system, whether acquired commercially or off the shelf, modified, or customized, that is used to increase, maintain, or improve functional capabilities of children with disabilities.
(f) Assistive Technology Service. Any service that directly assists an individual with a disability in the selection, acquisition, or use of an assistive technology device. The term includes the following:
(1) The evaluation of the needs of an individual with a disability, including a functional evaluation in the individual's customary environment.
(2) Purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices by individuals with disabilities.
(3) Selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing assistive technology devices.
(4) Coordinating and using other therapies, interventions, or services with assistive technology devices, such as those associated with existing educational and rehabilitative plans and programs.
(5) Training or technical assistance for an individual with disabilities or the family of an individual with disabilities.
(6) Training or technical assistance for professionals (including individuals providing educational rehabilitative services), employers, or other individuals who provide services to, employ, or are otherwise substantially involved in the major life functions of an individual with a disability.
(g) Attention Deficit Disorder (ADD). As used in this part, encompasses attention-deficit hyperactivity disorder (ADHD) and ADD without hyperactivity. The essential features of the disorder are developmentally inappropriate degrees of inattention, impulsiveness, and in some instances, hyperactivity.
(1) Either diagnosis must be made by appropriate medical personnel.
(2) ADD and ADHD are not specific disabling conditions under this part, although a child with either may be eligible for EIS and/or special education and related services as “other health impaired” by reason of the disability if the child's alertness or vitality is sufficiently compromised. The majority of children with ADD/ADHD generally do not meet the eligibility criteria as outlined in this part.
(h) Audiology. A service that includes the following:
(1) Identification of children with hearing loss.
(2) Determination of the range, nature, and degree of hearing loss, and communication functions including referral for medical or other professional attention for the habilitation of hearing.
(3) Provision of habilitative activities, such as language habilitation, auditory training, speech-reading (lip-reading), hearing evaluation, and speech conservation.
(4) Creation and administration of programs for the prevention of hearing loss.
(5) Counseling and guidance of children concerning the prevention of hearing loss.
(6) Determination of a child's need for group and individual amplification, selecting and fitting an aid, and evaluating the effectiveness of amplification.
(i) Autism. A developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3 years that adversely affects educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a child's educational performance is adversely affected primarily because the child has an emotional disturbance as defined in paragraph (z) of this section.
(j) Case Study Committee (CSC). A school-level team comprised of, among others, an administrator or designee who is qualified to supervise or provide special education, one or more of the child's regular education teachers, one or more special education teachers, parents, and related service providers (if appropriate) who do the following:
(1) Oversee screening and referral of children who may require special education.
(2) Oversee the multidisciplinary evaluation of such children.
(3) Determine the eligibility of children for special education and related services.
(4) Formulate individualized instruction as reflected in an IEP, in accordance with this part.
(5) Monitor the development, review, and revision of IEPs.
(k) Child-Find. An outreach program used by the DoD school systems, the Military Departments, and the other DoD Components to seek and identify children from birth to age 21, inclusive, who may require EIS or special education and related services. Child-find includes all children who are eligible to attend a DoD school. Child-find activities include the dissemination of information to military members and DoD employees, the identification and screening of children, and the use of referral procedures.
(l) Children with Disabilities (Ages 3 through 21, Inclusive). Children, before graduation from high school or completion of the General Education Degree, who have one or more impairments, as determined by a CSC and who need and qualify for special education and related services.
(m) Consent. The permission obtained from the parent or legal guardian. This includes the following:
(1) The parent is fully informed of all information about the activity for which consent is sought in the native language or in another mode of communication, if necessary.
(2) The parent understands and agrees in writing to the implementation of the activity for which permission is sought. That consent describes the activity, lists the child's records (if any) to be released outside the Department of Defense, and specifies to whom the records shall be sent.
(i) The parent understands that the granting of consent is voluntary on the part of the parent and may be revoked at anytime.
(ii) If a parent revokes consent, that revocation is not retroactive (i.e., it does not negate an action that has occurred after the consent was given and before the cognizant authorities received the notice of revocation of the consent).
(n) Continuum of Alternative Placements. Instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions; includes provision for supplementary services (such as resource room or itinerant instruction) to be provided in conjunction with regular class placement.
(o) Counseling Service. A service provided by a qualified social worker, psychologist, guidance counselor, or other qualified personnel.
(p) Deaf-Blindness. Concomitant hearing and visual impairments, the combination of which causes such severe communication, developmental, and educational problems that it cannot be accommodated in special education programs solely for children with deafness or blindness.
(q) Deafness. A hearing loss or deficit so severe that it impairs a child's ability to process linguistic information through hearing, with or without amplification, and affects the child's educational performance adversely.
(r) Developmental Delay. A significant discrepancy in the actual functioning of an infant, toddler, or child, birth through age 5, when compared with the functioning of a non-disabled infant, toddler, or child of the same chronological age in any of the following areas: physical, cognitive, communication, social or emotional, and adaptive development as measured using standardized evaluation instruments and confirmed by clinical observation and judgment. A child classified with a developmental delay before the age of 5 may maintain that eligibility classification through the age 8.
(1) A Significant Discrepancy. The child is experiencing a developmental delay as measured by diagnostic instruments and procedures of 2 standard deviations below the mean in at least one area, or by a 25 percent delay in at least one area on assessment instruments that yield scores in months, or a developmental delay of 1.5 standard deviations below the mean in two or more areas, or by a 20 percent delay on assessment instruments that yield scores in months in two or more of the following areas of development: cognitive, physical, communication, social or emotional, or adaptive.
(2) High Probability for Developmental Delay. An infant or toddler, birth through age 2, with a diagnosed physical or mental condition, such as chromosomal disorders and genetic syndromes, that places the infant or toddler at substantial risk of evidencing a developmental delay without the benefit of EIS.
(s) DoD Dependents Schools (DoDDS). The overseas schools (kindergarten through grade 12) established by 20 U.S.C. 921. The DoDDS are operated under DoD Directive 1342.6.
(t) DoD Domestic Dependent Elementary and Secondary Schools (DDESS). The schools (pre-kindergarten through grade 12) established by 20 U.S.C. 921-932. The DoD DDESS are operated under DoD Directive 1342.21.
(u) DoD School Systems. The DDESS and DoDDS school systems.
(v) Early Identification and Assessment. The implementation of a formal plan for identifying a disability as early as possible in a child's life.
(w) Early Intervention Services. Developmental services that meet the following criteria:
(1) Are provided under the supervision of a Military Medical Department.
(2) Are provided using Military Health Services System resources at no cost to the parents.
(3) Evaluation, Individualized Family Service Plan (IFSP) development and revision, and Service coordination services are provided at no cost to the infant's or toddler's parents. Parents may be charged incidental fees (identified in Service guidance) that are normally charged to infants, toddlers, and children without disabilities or to their parents.
(4) Are designed to meet the developmental needs of an infant or toddler with a disability in any one or more of the following areas:
(i) Physical.
(ii) Cognitive.
(iii) Communication.
(iv) Social or emotional.
(v) Adaptive development.
(5) Meet the standards developed or adopted by the Department of Defense.
(6) Are provided by qualified personnel including early childhood special educators, speech and language pathologists and audiologists, occupational therapists, physical therapists, psychologists, social workers, nurses, nutritionists, family therapists, orientation and mobility specialists, pediatricians and other physicians, and certified and supervised paraprofessional assistants, such as certified occupational therapy assistants.
(7) Maximally, are provided in natural environments including the home and community settings where infants and toddlers without disabilities participate.
(8) Are provided in conformity with an IFSP.
(9) Developmental services include, but are not limited to, the following services: Family training, counseling, and home visits; special instruction; speech pathology and audiology; occupational therapy; physical therapy; psychological services; Service coordination services; medical services only for diagnostic or evaluation purposes; early identification, screening and assessment services; vision services; and social work services. Also included are assistive technology devices and assistive technology services; health services necessary to enable the infant or toddler to benefit from the above EIS; and transportation and related costs necessary to enable an infant or toddler and the family to receive EIS.
(x) Educational and Developmental Intervention Services (EDIS). Programs operated by the Military Medical Departments to provide EIS and related services in accordance with this part.
(y) Eligible. Children who meet the age, command sponsorship, and dependency requirements established by 10 U.S.C. 2164, DoD Directive 1342.6, DoD Directive 1342.13, and DoD Directive 5105.4.
(1) In DoDDS, children without disabilities who meet these requirements, and are ages 5 to 21 years, inclusive, are entitled to receive educational instruction.
(2) In DDESS, children without disabilities who meet these requirements, and are ages 4 to 21 years, inclusive, are entitled to receive educational instruction.
(3) In both DoDDS and DDESS, children with disabilities, ages 3 through 21 years, inclusive, are authorized to receive educational instruction. Additionally, an eligible infant or toddler with disabilities is a child from birth through age 2 years who meets either the DoDDS or DDESS eligibility requirements except for the age requirement.
(z) Emotional Disturbance. A condition confirmed by clinical evaluation and diagnosis and that, over a long period of time and to a marked degree, adversely affects educational performance, and exhibits one or more of the following characteristics:
(1) Inability to learn that cannot be explained by intellectual, sensory, or health factors.
(2) Inability to build or maintain satisfactory interpersonal relationships with peers and teachers.
(3) Inappropriate types of behavior or feelings under normal circumstances.
(4) A tendency to develop physical symptoms or fears associated with personal or school problems.
(5) A general pervasive mood of unhappiness or depression. Includes children who are schizophrenic, but does not include children who are socially maladjusted unless it is determined they are seriously emotionally disturbed.
(aa) Evaluation. The synthesis of assessment information by a multidisciplinary team used to determine whether a particular child has a disability, the type and extent of the disability, and the child's eligibility to receive early intervention or special education and/or related services.
(bb) Family Training, Counseling, and Home Visits. Services provided, as appropriate, by social workers, psychologists, and other qualified personnel to assist the family of a child eligible under this part in understanding the special needs of the child and enhancing the child's development.
(cc) Free Appropriate Public Education (FAPE). Special education and related services that:
(1) Are provided at no cost to parents of a child with a disability, and are under the general supervision and direction of the DoDDS or DDESS, including children with disabilities who have been suspended or expelled from school.
(2) Are provided in the least restrictive environment at a preschool, elementary, or secondary school.
(3) Are provided in conformity with an IEP.
(4) Meet the requirements of this part.
(dd) Functional Behavioral Assessment. A process for identifying the events that predict and maintain patterns of problem behavior.
(ee) Functional Vocational Evaluation. A student-centered appraisal process for vocational development and career decision-making. It allows students, educators, and others to gather information about such development and decision-making. Functional vocational evaluation includes activities for transitional, vocational, and career planning; instructional goals; objectives; and implementation.
(ff) General Curriculum. The curriculum adopted by the DoD school systems for all children from preschool through secondary school. To the extent applicable to an individual child with a disability, the general curriculum can be used in any educational environment along a continuum of alternative placements, described in paragraph (l) of this section.
(gg) Health Services. Services necessary to enable an infant or toddler to benefit from the other EIS being received under this part. That term includes the following:
(1) Services such as clean intermittent catheterization, tracheotomy care, tube feeding, changing of dressings or colostomy collection bags, and other health services.
(2) Consultation by physicians with other service providers about the special healthcare needs of infants and toddlers with disabilities that need to be addressed in the course of providing other EIS.
(3) That term does not include the following:
(i) Services that are surgical or solely medical.
(ii) Devices necessary to control or treat a medical condition.
(iii) Medical services routinely recommended for all infants or toddlers.
(hh) Hearing Impairment. An impairment in hearing, whether permanent or fluctuating, that adversely affects a child's educational performance, but is not included under the definition of deafness.
(ii) Illegal Drug. Means a controlled substance as identified in the Controlled Substances Act (21 U.S.C. 812(c)) but does not include a substance that is legally possessed or used under the supervision of a licensed healthcare professional or that is legally possessed or used under any other authority under that Act or under any other provision of Federal law.
(jj) Independent Evaluation. An evaluation conducted by a qualified examiner who is not employed by either the DoD school or EDIS that conducted the initial evaluation.
(kk) Individualized Education Program (IEP). A written document defining specially designed instruction for a student with a disability, ages 3 through 21 years, inclusive. That document is developed and implemented in accordance with appendix B of this part.
(ll) Individualized Family Service Plan (IFSP). A written document for an infant or toddler, age birth through 2 years, with a disability and the family of such infant or toddler that is developed, reviewed, and revised in accordance with appendix A of this part.
(mm) Infants and Toddlers with Disabilities. Children, ages birth through 2 years, who need EIS because they:
(1) Are experiencing a developmental delay, defined at paragraph (r) of this section.
(2) Have a high probability for developmental delay as defined at paragraph (r)(2) of this section.
(nn) Inter-Component. Cooperation among DoD organizations and programs, ensuring coordination and integration of services to infants, toddlers, children with disabilities, and their families.
(oo) Medical Services. Those evaluative, diagnostic, therapeutic, and supervisory services provided by a licensed and/or credentialed physician to assist CSCs and to implement IEPs. Medical services include diagnosis, evaluation, and medical supervision of related services that, by statute, regulation, or professional tradition, are the responsibility of a licensed and credentialed physician.
(pp) Meetings to Determine Eligibility or Placement of a Child. All parties to such a meeting shall appear personally at the meeting site on issuance of written notice and establishment of a date convenient to the concerned parties. When a necessary participant is unable to attend, electronic communication suitable to the occasion may be used to involve the unavailable party. Parents generally shall be responsible for the cost of travel to personally attend meetings about the eligibility or placement of their child.
(qq) Mental Retardation. Significantly sub-average general intellectual functioning, existing concurrently with deficits in adaptive behavior. This disability is manifested during the developmental period and adversely affects a child's educational performance.
(rr) Multidisciplinary. The involvement of two or more disciplines or professions in the integration and coordination of services, including evaluation and assessment activities, and development of an IFSP or an IEP.
(ss) Native Language. When used with reference to an individual of limited English proficiency, the home language normally used by such individuals, or in the case of a child, the language normally used by the parents of the child.
(tt) Natural Environments. Settings that are natural or normal (e.g., home or day care setting) for the infant, toddler, or child's same-age peers who have no disability.
(uu) Non-DoD Placement. An assignment by the DoD school system of a child with a disability to a non-DoD school or facility. The term does not include a home schooling arrangement, except pursuant to an IEP.
(vv) Non-DoD School or Facility. A public or private school or other institution not operated by the Department of Defense. That term includes DDESS special contractual arrangements.
(ww) Nutrition Services. Those services to infants and toddlers that include, but are not limited to, the following:
(1) Conducting individual assessments in nutritional history and dietary intake; anthropometric, biochemical, and clinical variables; feeding skills and feeding problems; and food habits and food preferences.
(2) Developing and monitoring plans to address the nutritional needs of infants and toddlers eligible for EIS.
(3) Making referrals to community resources to carry out nutrition goals.
(xx) Occupational Therapy. Services provided by a qualified occupational therapist or a certified occupational therapist assistant (under the supervision of a qualified occupational therapist). That term includes services to address the functional needs of children (birth through age 21, inclusive) related to adaptive development; adaptive behavior and play; and sensory, motor, and postural development. Those services are designed to improve the child's functional ability to perform tasks in home, school, and community settings, and include the following:
(1) Identification, assessment, and intervention.
(2) Adaptation of the environment and selection, design, and fabrication of assistive and orthotic devices to help development and promote the acquisition of functional skills.
(3) Prevention or minimization of the impact of initial or future impairment, delay in development, or loss of functional ability.
(yy) Orthopedic Impairment. A severe orthopedic impairment that adversely affects a child's educational performance. That term includes congenital impairments such as club foot or absence of some member; impairments caused by disease, such as poliomyelitis and bone tuberculosis; and impairments from other causes such as cerebral palsy, amputations, and fractures or burns causing contractures.
(zz) Orientation and Mobility. Services provided to blind or visually impaired students by qualified personnel to enable those students to attain systematic orientation to and safe movement within their environments in school, home and community; and includes teaching students the following, as appropriate:
(1) To understand spatial and environmental concepts and use of information received by the senses (such as sound, temperature and vibrations) orientation and mobility to establish, maintain, or regain orientation and line of travel (e.g., using sound at a traffic light to cross the street);
(2) To use the long cane to supplement visual travel skills or as a tool for safely negotiating the environment for students with no available travel vision;
(3) To understand and use remaining vision and distance low vision aids; and other concepts, techniques, and tools.
(aaa) Other Health Impairment. Limited strength, vitality, or alertness due to chronic or acute health problems that adversely affect a child's educational performance. Such impairments may include ADD, heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, seizure disorder, lead poisoning, leukemia, or diabetes.
(bbb) Parent. The biological father or mother of a child; a person who, by order of a court of competent jurisdiction, has been declared the father or mother of a child by adoption; the legal guardian of a child; or a person in whose household a child resides, if such person stands in loco parentis to that child and contributes at least one-half of the child's support.
(ccc) Parent Counseling and Training. A service that assists parents in understanding the special needs of their child's development and that provides them with information on child development and special education.
(ddd) Personally Identifiable Information. Information that would make it possible to identify the infant, toddler, or child with reasonable certainty. Information includes:
(1) The name of the child, the child's parent, or other family member; the address of the child;
(2) A personal identifier, such as the child's social security number or student number; or
(3) A list of personal characteristics or other information that would make it possible to identify the child with reasonable certainty.
(eee) Physical Therapy. Services provided by a qualified physical therapist or a certified physical therapist (under the supervision of a qualified physical therapist). That term includes services to children (birth through age 21, inclusive) to address the promotion of sensorimotor function through enhancement of musculoskeletal status, neurobehavioral organization, perceptual and motor development, cardiopulmonary status, and effective environmental adaptation. Those services include the following:
(1) Screening, evaluation, and assessment to identify movement dysfunction.
(2) Obtaining, interpreting, and integrating information to appropriate program planning to prevent, alleviate, or compensate for movement dysfunction and related functional problems.
(3) Providing individual and group services or treatment to prevent, alleviate, or compensate for movement dysfunction and related functional problems.
(fff) Primary Referral Source. Parents and the DoD Components, including child development centers, pediatric clinics, and newborn nurseries, that suspect an infant or toddler has a disability and bring the child to the attention of the EDIS.
(ggg) Psychological Services. Services that include the following:
(1) Administering psychological and educational tests and other assessment procedures.
(2) Interpreting test and assessment results.
(3) Obtaining, integrating, and interpreting information about a child's behavior and conditions relating to learning.
(4) Consulting with other staff members, including service providers, to plan programs to meet the special needs of children, as indicated by psychological tests, interviews, and behavioral evaluations.
(5) Planning and managing a program of psychological services, including psychological counseling for children and parents, family counseling, consultation on child development, parent training, and education programs.
(hhh) Public Awareness Program. Activities or print materials focusing on early identification of infants and toddlers with disabilities. Materials may include information prepared and disseminated by a military medical department to all primary referral sources and information for parents on the availability of EIS. Procedures to determine the availability of information on EIS to parents are also included in that program.
(iii) Qualified. A person who meets the DoD-approved or recognized certification, licensing, or registration requirements or other comparable requirements in the area in which the person provides special education or related services or EIS to an infant, toddler, or child with a disability.
(jjj) Recreation. A related service that includes the following:
(1) Assessment of leisure function.
(2) Therapeutic recreational activities.
(3) Recreational programs in schools and community agencies.
(4) Leisure education.
(kkk) Rehabilitation Counseling. Services provided by qualified personnel in individual or group sessions that focus specifically on career development, employment preparation, achieving independence, and integration in the workplace and community of the student with a disability. The term also includes vocational rehabilitation services provided to a student with disabilities by vocational rehabilitation programs funded under the Rehabilitation Act of 1973, as amended.
(lll) Related Services. Transportation and such developmental, corrective, and other supportive services, as required, to assist a child, age 3 through 21 years, inclusive, with a disability to benefit from special education under the child's IEP. The term includes speech-language pathology and audiology, psychological services, physical and occupational therapy, recreation including therapeutic recreation, early identification and assessment of disabilities in children, counseling services including rehabilitation counseling, orientation and mobility services, and medical services for diagnostic or evaluative purposes. That term also includes school health services, social work services in schools, and parent counseling and training. The sources for those services are school, community, and medical treatment facilities.
(mmm) Related Services Assigned to the Military Medical Departments Overseas. Services provided by EDIS to DoDDS students, under the development or implementation of an IEP, necessary for the student to benefit from special education. Those services may include medical services for diagnostic or evaluative purpose, social work, community health nursing, dietary, occupational therapy, physical therapy, audiology, ophthalmology, and psychological testing and therapy.
(nnn) School Health Services. Services provided by a qualified school nurse or other qualified person.
(ooo) Separate Facility. A school or a portion of a school, regardless of whether it is operated by the Department of Defense, attended exclusively by children with disabilities.
(ppp) Service Coordination. Activities of a service coordinator to assist and enable an infant or toddler and the family to receive the rights, procedural safeguards, and services that are authorized to be provided under appendix B of this part. Those activities include the following:
(1) Coordinating the performance of evaluations and assessments.
(2) Assisting families to identify their resources, concerns, and priorities.
(3) Facilitating and participating in the development, review, and evaluation of IFSPs.
(4) Assisting in identifying available service providers.
(5) Coordinating and monitoring the delivery of available services.
(6) Informing the family of support or advocacy services.
(7) Coordinating with medical and health providers.
(8) Facilitating the development of a transition plan to preschool services.
(qqq) Service Provider. Any individual who provides services listed in an IEP or an IFSP.
(rrr) Social Work Services in Schools. A service that includes the following:
(1) Preparing a social or developmental history on a child with a disability.
(2) Counseling a child and the family on a group or individual basis.
(3) Working with those problems in a child's home, school, or community that adversely affect adjustment in school.
(4) Using school and community resources to enable a child to benefit from the educational program.
(sss) Special Education. Specially designed instruction, including physical education, which is provided at no cost to the parent or guardians to meet the unique needs of a child with a disability, including instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings.
(1) That term includes speech-language pathology or any other related service if the service consists of specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability.
(2) That term also includes vocational education if it consists of specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability.
(3) At No Cost. For a child eligible to attend a DoD school without paying tuition, specially designed instruction and related services are provided without charge. Incidental fees normally charged to non-disabled students or their parents as a part of the regular educational program may be imposed.
(4) Physical Education. The development of the following:
(i) Physical and motor fitness.
(ii) Fundamental motor skills and patterns.
(iii) Skills in aquatics, dance, and individual and group games and sports, including intramural and lifetime sports.
(iv) A program that includes special physical education, adapted physical education, movement education, and motor development.
(ttt) Specially Designed Instruction. That term means adapting content, methodology or delivery of instruction to:
(1) Address the unique needs of an eligible child under this part; and
(2) Ensure access of the child to the general curriculum, so that she or he can meet the educational standards within the DoD school systems.
(uuu) Specific Learning Impairment. A disorder in one or more of the basic psychological processes involved in understanding or in using spoken or written language that may manifest itself as an imperfect ability to listen, think, speak, read, write, spell, remember, or do mathematical calculations. That term includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. The term, commonly called, “specific learning disability,” does not include learning problems that are primarily the result of visual, hearing, or motor disabilities; mental retardation; emotional disturbance; or environmental, cultural, or economic differences.
(vvv) Speech and Language Impairments. A communication disorder, such as stuttering, impaired articulation, voice impairment, or a disorder in the receptive or expressive areas of language that adversely affects a child's educational performance.
(www) Speech-Language Pathology Services. Services provided by a qualified speech/language therapist or a certified speech/language assistant (under the supervision of a qualified speech/language therapist), that include the following:
(1) Identification of children with speech or language impairments.
(2) Diagnosis and appraisal of specific speech or language impairments.
(3) Referral for medical or other professional attention for the habilitation or prevention of speech and language impairments.
(4) Provision of speech and language services for the habilitation or prevention of communicative impairments.
(5) Counseling and guidance of children, parents, and teachers for speech and language impairments.
(xxx) Supplementary Aids and Services. Include aids, services, and other supports that are provided in regular education classes or other educational-related settings to enable children with disabilities to be educated with non-disabled children to the maximum extent appropriate.
(yyy) Transition Services. (1) A coordinated set of activities for a student that may be required to promote movement from early intervention, preschool, and other educational programs into different educational settings or programs.
(2) For students 14 years of age and older, transition services are designed in an outcome-oriented process that promotes movement from school to post-school activities; including, related services, post-secondary education, vocational training, integrated employment; and also including supported employment, continuing and adult education, adult services, independent living, or community participation. The coordinated set of activities are based on the individual student's needs, considering the student's preferences and interests, and include instruction, community experiences, the development of employment and other post-school adult living objectives, and acquisition of daily living skills and functional vocational evaluation.
(zzz) Transportation. A service that includes the following:
(1) Transportation and related costs for EIS includes the cost of travel (e.g., mileage or travel by taxi, common carrier, or other means) and other costs (e.g., tolls and parking expenses) that are necessary to enable an eligible child and the family to receive EIS.
(2) Services rendered under the IEP of a child with a disability:
(i) Travel to and from school and between schools, including travel necessary to permit participation in educational and recreational activities and related services.
(ii) Travel in and around school buildings.
(3) Specialized equipment, including special or adapted buses, lifts, and ramps, if required to provide transportation for a child with a disability.
(aaaa) Traumatic Brain Injury. An acquired injury to the brain caused by an external physical force resulting in total or partial functional disability or psychosocial impairment that adversely affects educational performance. That term includes open or closed head injuries resulting in mild, moderate, or severe impairments in one or more areas including cognition, language, memory, attention, reasoning, abstract thinking, judgment, problem solving, sensory, perceptual and motor abilities, psychosocial behavior, physical function, information processing, and speech. That term does not include brain injuries that are congenital or degenerative, or brain injuries that are induced by birth trauma.
(bbbb) Vision Services. Services necessary to habilitate or rehabilitate the effects of sensory impairment resulting from a loss of vision.
(cccc) Visual Impairment. An impairment of vision that, even with correction, adversely affects a child's educational performance. That term includes both partial sight and blindness.
(dddd) Vocational Education. Organized educational programs for the preparation of individuals for paid or unpaid employment or for additional preparation for a career requiring other than a baccalaureate or advanced degree.
(eeee) Weapon. Items carried, presented, or used in the presence of other persons in a manner likely to make reasonable persons fear for their safety. They include, but are not limited to, guns, look-alike (replica) guns, knives, razors, box or carpet cutters, slingshots, nunchucks, any flailing instrument such as a fighting chain or heavy studded or chain belt, objects designed to project a missile, explosives, mace, pepper spray, or any other similar propellant, or any other object concealed, displayed, or brandished in a manner that reasonably provokes fear.
§ 57.4
Policy.
It is DoD policy that:
(a) Eligible infants and toddlers with disabilities and their families shall be provided EIS consistent with appendix A of this part.
(b) Eligible children with disabilities, ages 3 through 21 years, inclusive, shall be provided a FAPE in the least restrictive environment, consistent with appendix B of this part.
(c) The Military Medical Departments and DoDDS shall cooperate in the delivery of related services to eligible children with disabilities, ages 3 through 21 years, inclusive, that require such services to benefit from special education. Related services assigned to the Military Medical Departments are defined in § 57.3 and are provided in accordance with appendix C of this part. DDESS is responsible for the delivery of all related services to eligible children with disabilities, ages 3 through 21 years, inclusive, served by DDESS.
(d) The Military Medical Departments shall provide EIS in both domestic and overseas areas, and related services assigned to them in overseas areas, at the same priority as medical care is provided to active duty military members.
§ 57.5
Responsibilities.
(a) The Under Secretary of Defense (Personnel and Readiness) (USD (P&R)) shall:
(1) Establish a DoD-AP consistent with appendix D of this part.
(2) Establish and chair, or designate a “Chair,” of the DoD-CC consistent with appendix E of this part.
(3) Ensure that inter-Component agreements or other mechanisms for inter-Component coordination are in effect between the DoD Components providing services to infants, toddlers and children.
(4) Ensure the implementation of procedural safeguards consistent with appendix F of this part.
(5) In consultation with the General Counsel of the Department of Defense (GC, DoD) and the Secretaries of the Military Departments:
(i) Ensure that eligible infants and toddlers with disabilities and their families are provided comprehensive, coordinated and multidisciplinary EIS under 20 U.S.C. 921-932 and 10 U.S.C. 2164 as provided in appendix A of this part.
(ii) Ensure that eligible children with disabilities (ages 3 through 21 years, inclusive) are provided a FAPE under U.S.C. 921-932 and 10 U.S.C. 2164 as provided in appendix A of this part.
(iii) Ensure that eligible DoDDS students are provided related services, as provided in appendix C of this part.
(iv) Ensure that all eligible DDESS students are provided related services by DDESS.
(v) Ensure the development of a DoD-wide comprehensive child-find system to identify eligible infants, toddlers, and children ages birth through 21 years, inclusive, under DoD Directive 1342.6 who may require early intervention or special education services.
(vi) Ensure that personnel are identified to provide the mediation services specified in appendix 7 of this part.
(vii) Ensure that transition services are available to promote movement from early intervention, preschool, and other educational programs into different educational settings and post-secondary environments.
(viii) Ensure compliance with this Part in the provision of special services, in accordance with appendix H of this part and other appropriate guidance.
(ix) Ensure that personnel are identified and trained to provide the monitoring specified in appendix H of this part
(x) Ensure that the Military Departments deliver the following:
(A) In overseas and domestic areas, a comprehensive, coordinated, and multidisciplinary program of EIS for eligible infants and toddlers (birth through 2 years, inclusive) with disabilities.
(B) In overseas areas, the related services as defined in § 57.3 for eligible children with disabilities, ages 3 through 21 years, inclusive.
(xi) Ensure the development and implementation of a comprehensive system of personnel development in the area of special services for the Department of Defense Education Activity (DoDEA) and the Military Departments. That system shall include professionals, paraprofessionals, and primary referral source personnel in the areas of special services, and may also include:
(A) Implementation of innovative strategies and activities for the recruitment and retention of personnel providing special services, ensuring that personnel requirements are established consistent with recognized certification, licensing, registration, or other comparable requirements for personnel providing special services, and allow the use of paraprofessionals and assistants who are appropriately trained and supervised to assist in the provision of special services.
(B) Training personnel to coordinate transition services for infants and toddlers from an early intervention program to preschool or other appropriate services
(C) Ensuring that training is provided in and across disciplines.
(xii) Develop procedures to compile data on the numbers of eligible infants and toddlers with disabilities and their families in need of EIS, and children in need of special education and related services, in accordance with DoD Directives 5400.7 and 5400.11. Those data elements shall include, at a minimum, the following:
(A) The number of infants and toddlers and their families served.
(B) The number of children served.
(C) The types of services provided.
(D) Other information required to evaluate and monitor the provision of services.
(xiii) Resolve disputes among the DoD Components involving appendix A of this part.
(xiv) Ensure the assigned responsibilities for the delivery of special services are reviewed at least every 5 years to determine the most appropriate distribution of responsibilities.
(b) The Assistant Secretary of Defense (Health Affairs) (ASD(HA)), under the Principal Deputy Under Secretary of Defense for Personnel and Readiness (PDUSD(P&R)), shall:
(1) Ensure the provision of advice and consultation about the provision of EIS and related services to the USD(P&R) and the GC, DoD.
(2) Ensure the development of healthcare provider workload standards and performance levels to determine staffing requirements of designated centers. These standards shall take into account the provider training needs, the requirements of this part, and the additional time required to provide EIS (in domestic and overseas areas) and related services (in overseas areas) as defined in § 57.3 for assessment and treatment and for coordination with other DoD Components, such as the DoD school systems.
(3) Assign the Military Medical Departments geographical areas of responsibility for providing related services and EIS under paragraph (c)(1) of this section. Periodically review the alignment of geographic areas to ensure that base closures and other resourcing issues are considered in the cost effective delivery of services.
(4) Establish a system for compiling data required by this part.
(c) The Secretaries of the Military Departments shall:
(1) In consultation with DoDEA, establish Educational and Developmental Intervention Services (EDIS) within the following areas:
(i) Designated overseas areas of geographical responsibility, capable of providing necessary related services and EIS to support the needs of eligible beneficiaries.
(ii) Domestic areas, capable of providing necessary EIS to support the needs of eligible beneficiaries.
(2) Staff EDIS with appropriate professional staff, as necessary based on services required, which should include occupational therapist(s) with pediatric experience; physical therapist(s) with pediatric experience; audiologist(s) with pediatric experience; child psychiatrist(s); clinical psychologist(s) with pediatric experience; social worker(s) with pediatric experience; speech language pathologists; community health nurse(s) or the equivalent; pediatrician(s) with experience and/or training in developmental pediatrics; certified assistants (for example, certified occupational therapy assistants or physical therapy assistants); and early childhood special educators.
(3) Provide a comprehensive, coordinated, inter-Component, community-based system of EIS for eligible infants and toddlers with disabilities (birth through 2 inclusive) and their families using the procedures established by this part and guidelines from the ASD(HA) on staffing and personnel standards.
(4) Provide related services, as defined in § 57.3 to DoDDS students who are on IEPs using the procedures established by this part and guidelines from the ASD(HA) on staffing and personnel standards.
(5) To DoDDS students, provide transportation to and from the site where related services are provided by the Military Medical Department, if not provided at the school.
(6) Provide transportation to and from the site where EIS is provided, if it is not provided in the home or some other natural environment.
(d) The Surgeons General of the Military Departments shall:
(1) Ensure the development of policies and procedures for providing, documenting, and evaluating EIS and related services assigned to the Military Medical Departments, as defined in § 57.3 (mmm).
(2) Ensure that EDIS participates in the existing military treatment facility (MTF) quality assurance program, which monitors and evaluates the medical services for children receiving such services as described by this part. Standards used by the Joint Commission on Accreditation of Health Organizations or equivalent standards shall be used, where applicable, to ensure accessibility, acceptability, and adequacy of the medical portion of the program provided by EDIS.
(3) Ensure that each program providing EIS is monitored for compliance with this part at least once every 3 years in accordance with appendix H of this part.
(4) Ensure that resources are allocated in accordance with the healthcare provider workload standards and performance levels developed under the direction of the ASD(HA).
(5) Ensure the cooperation and coordination between their respective offices, the offices of other Surgeons General, and DoDEA with respect to the implementation of this Part.
(6) Ensure that training is available for each healthcare professional providing EIS or related services. This training shall include information about the roles and responsibilities of the providers and the development of an Individualized Family Service Plan (IFSP) or an IEP.
(7) Ensure the provision of in-service training on EIS and related services to educational, legal, and other suitable personnel, if requested and feasible.
(8) Provide professional supervision of the EDIS provision of EIS and related services in the overseas areas, as designated in (b)(3) of this section and of EIS in domestic areas of responsibility.
(9) Submit to the DoD-CC a report not later than July 31 of each year certifying that all EDIS are in compliance with this part and other DoD guidance in accordance with appendix H of this part.
(e) The Director, Department of Defense Education Activity under the Deputy Under Secretary of Defense (Military Community and Family Policy), and the PDUSD(P&R), shall ensure that the Directors of the DoD school systems shall:
(1) Ensure that eligible children with disabilities, ages 3 through 21 years, inclusive, are provided a FAPE.
(2) Ensure that the educational needs of children with and without disabilities are met comparably, consistent with appendix B of this part.
(3) Ensure that educational facilities and services operated by the DoD school systems for children with and without disabilities are comparable.
(4) Maintain records on special education and related services provided to eligible children with disabilities, ages 3 through 21 years, inclusive, consistent with 21 U.S.C. 812(c).
(5) Provide any or all special education and related services required by a child with a disability, ages 3 through 21 years, inclusive, other than those furnished by the Secretaries of the Military Departments through inter-Agency, intra-Agency, and inter-Service arrangements, or through contracts with private parties when funds are authorized and appropriated.
(6) Provide transportation, which is a related service under this Part, to students with disabilities when transportation is prescribed in the student's IEP. The DoD school systems shall furnish transportation between the student's home (or another location specified in the IEP) and the DoD school.
(7) Provide transportation to and from the site where DDESS provides related services, if not provided at the school.
(8) Participate in the development and implementation of a comprehensive system of personnel development.
(9) Ensure that all programs providing special education and related services, including those provided by the Military Medical Departments, are monitored for compliance with this part in accordance with appendix H of this part.
(10) Provide physical space for the provision of occupational therapy, physical therapy, and psychological services in those DoDDS facilities where EDIS shall provide related services.
(11) Provide physical space for the provision of occupational therapy, physical therapy, psychological services, and therapists' offices in construction of DoDDS facilities at those locations where EDIS shall provide related services. The DoDDS shall determine the specifics of space design in consultation with the responsible Military Department's medical authorities concerned and the Defense Medical Facilities Office, Office of the ASD(HA).
(12) The DoDDS shall provide repair and maintenance support, custodial support, and utilities to the areas described in paragraphs (e)(10) and (e)(11) of this section.
(13) The DoDDS shall maintain operational control of therapy and office space.
(14) Ensure that all newly constructed or renovated DoD school facilities are fully accessible to persons with mobility impairments including those in wheelchairs.
(15) Report not later than July 31 of each year to the DoD-CC on the following:
(i) Number of children with disabilities participating in regular and alternate system-wide assessment.
(ii) Performance of children with disabilities on the regular system-wide assessment and on the alternate system-wide assessment.
(iii) By district, rate of suspension and expulsion of students with disabilities compared to regular education students.
(f) The Director, Defense Office of Hearings and Appeals (DOHA), under the General Counsel of the Department of Defense, shall ensure impartial due process hearings are provided consistent with appendix G of this part.
§ 57.6
Procedures.
(a) The procedures for EIS for infants and toddlers with disabilities and their families are prescribed in appendix A of this part.
(b) The procedures for educational programs and services for children with disabilities, ages 3 through 21 years, inclusive, on IEPs are prescribed in appendix B of this part.
(c) The procedures for the provision of related services for DoDDS students with disabilities, ages 3 through 21, inclusive, are prescribed in appendix C of this part
(d) Procedural safeguards and parent and student rights are prescribed in appendix F of this part.
(e) The procedures for conducting mediation and due process hearings are prescribed in appendix G of this part.
(f) The procedures for conducting compliance monitoring are prescribed in appendix H of this part.
Pt. 57, App. A

Appendix A to Part 57—Procedures for the Provision of Early Intervention Services for Infants and Toddlers With Disabilities and Their Families

A. Identification and Screening
(1) Each Military Department shall develop and implement in its assigned geographic area a comprehensive child-find public awareness program that focuses on the early identification of children who are eligible to receive EIS under this part. The public awareness program must inform the public about:
(i) The EDIS early intervention program;
(ii) The child-find system, including:
(A) The purpose and scope of the system;
(B) How to make referrals to service providers that includes timelines and provides for participation by primary referral sources; and
(C) How to gain access to a comprehensive, multidisciplinary evaluation and other EIS; and
(D) A central directory that includes a description of the EIS and other relevant resources available in each military community overseas.
(2) EDIS must prepare and disseminate materials for parents on the availability of EIS to all primary referral sources, especially hospitals, physicians, and child development centers.
(3) Upon receipt of a referral, EDIS shall appoint a service coordinator.
(4) Procedures for Identification and Screening. All children referred to the EDIS for EIS shall be screened to determine the appropriateness of the referral and to guide the assessment process.
(i) Screening does not constitute a full evaluation. At a minimum, screening shall include a review of the medical and developmental history of the referred child through a parent interview and/or a review of medical records.
(ii) If screening was conducted prior to the referral, or if there is a substantial or obvious biological risk, screening may not be necessary.

B. Assessment and Evaluation
(1) The assessment and evaluation of each child must:
(i) Be conducted by a multidisciplinary team.
(ii) Be based on informed clinical opinion; and
(iii) Include the following:
(A) A review of pertinent records related to the child's current health status and medical history.
(B) An evaluation of the child's level of functioning in each of the following developmental areas:
(i) Cognitive development.
(ii) Physical development, including vision and hearing.
(iii) Communication development.
(iv) Social or emotional development.
(v) Adaptive development.
(iv) An assessment of the unique needs of the child in terms of each of the developmental areas in paragraph B.(1)(iii)(B) of this appendix, including the identification of services appropriate to meet those needs.
(2) Family Assessment. (i) Family assessments must be family-directed and designed to determine the resources, priorities, and concerns of the family and the identification of the supports and services necessary to enhance the family's capacity to meet the developmental needs of the child.
(ii) Any assessment that is conducted must be voluntary on the part of the family.
(iii) If an assessment of the family is carried out, the assessment must:
(A) Be conducted by personnel trained to utilize appropriate methods and procedures.
(B) Be based on information provided by the family through a personal interview; and
(C) Incorporate the family's description of its resources, priorities, and concerns related to enhancing the child's development.
(3) Standards for Assessment Selection and Procedures. EDIS shall ensure, at a minimum, that:
(i) Tests and other evaluation materials and procedures are administered in the native language of the parents or other mode of communication, unless it is clearly not feasible to do so.
(ii) Any assessment and evaluation procedures and materials that are used are selected and administered so as not to be racially or culturally discriminatory.
(iii) No single procedure is used as the sole criterion for determining a child's eligibility under this part; and
(iv) Evaluations and assessments are conducted by qualified personnel.
(4) With the parent's consent, EIS may begin before the completion of the assessment and evaluation when it has been determined by a multidisciplinary team that the child and/or the child's family needs the service immediately. Although all assessments have not been completed, an IFSP must be developed before the start of services. The remaining assessments must then be completed in a timely manner.

C. Eligibility
(1) Eligibility shall be determined at an EIS team meeting that includes parents.
(i) The EIS team shall document the basis for eligibility on an eligibility report.
(ii) A copy of the eligibility report shall be provided to the parent at the eligibility meeting.
(2) Children with disabilities from birth through age 2 are eligible for EIS if they meet one of the following criteria:
(i) The child is experiencing a developmental delay as defined in § 57.3(r).
(ii) The child has a diagnosed physical or mental condition that has a high probability of resulting in developmental delay, as defined in § 57.3(s).

D. Timelines
(1) The initial evaluation and assessment of each child (including the family assessment) must be completed within a timely manner.
(2) The Military Department responsible for providing EIS shall develop procedures to ensure that in the event of exceptional circumstances that make it impossible to complete the evaluation and assessment within a timely manner (e.g., if a child is ill), EDIS shall:
(i) Document those circumstances; and
(ii) Develop and implement an interim IFSP, to the extent appropriate and consistent with this part.

E. IFSP
(1) Each Military Department shall ensure that the EDIS develop and implement an IFSP for each child, birth through 2 years of age, who meets the eligibility criteria for EIS in section B of this appendix.
(2) The IFSP Meeting. The EDIS shall establish and convene a meeting to develop the IFSP of a child with a disability. That meeting shall be scheduled as soon as possible following a determination by the EDIS that the child is eligible for EIS, but not later than 45 days from the date of the referral for services.
(3) Meetings to develop and review the IFSP must include the following participants:
(i) The parent or parents of the child.
(ii) Other family members, as requested by the parent, if feasible.
(iii) An advocate or person outside of the family, if the parent requests that person's participation.
(iv) The services coordinator who has worked with the family since the initial referral of the child or who has been designated as responsible for the implementation of the IFSP.
(v) The person(s) directly involved in conducting the evaluations and assessments.
(vi) As appropriate, persons who shall provide services to the child or family.
(4) If a person listed in paragraph E.(3) of this appendix is unable to attend a meeting, arrangements must be made for the person's involvement through other means, including the following:
(i) Participating in a telephone conference call.
(ii) Having a knowledgeable, authorized representative attend the meeting.
(iii) Making pertinent records available at the meeting.
(5) The IFSP shall be written in a reasonable time after assessment and shall contain the following:
(i) A statement of the child's current developmental levels including physical, cognitive, communication, social or emotional, and adaptive behaviors based on professionally acceptable objective criteria.
(ii) With the concurrence of the family, a statement of the family's resources, priorities, and concerns about enhancing the child's development.
(iii) A statement of the major outcomes expected to be achieved for the child and the family. Additionally, the statement shall contain the criteria, procedures, and timelines used to determine the degree to which progress toward achieving the outcomes is being made and whether modification or revision of the outcomes and services are necessary.
(iv) A statement of the specific EIS necessary to meet the unique needs of the child and the family including the frequency, intensity, and method of delivering services.
(v) The projected number of sessions necessary to achieve the outcomes listed in the IFSP.
(vi) A statement of the natural environments in which EIS shall be provided, and a justification of the extent, if any, to which the services shall not be provided in a natural environment.
(vii) The projected dates for initiation of services and the anticipated duration of those services.
(viii) The name of the service coordinator who shall be responsible for the implementation of the IFSP and coordination with other agencies and persons. In meeting these requirements, EDIS may:
(A) Assign the same service coordinator who was appointed at the time that the child was initially referred for evaluation to be responsible for implementing a child's and family's IFSP; or
(B) Appoint a new service coordinator.
(C) Appoint a service coordinator requested by the parents.
(ix) The steps to be taken supporting the transition of the toddler with a disability to preschool or other services. These steps must include:
(A) Discussions with, and training of, parents regarding future placements and other matters related to the child's transition;
(B) Procedures to prepare the child for changes in service delivery, including steps to help the child adjust to, and function in, a new setting; and
(C) The transmission of information about the child to the DoD school system, to ensure continuity of services, including evaluation and assessment information, and copies of IFSPs that have been developed and implemented in accordance with this Part.
(6) The contents of the IFSP shall be explained to the parents and an informed, written consent from the parents shall be obtained before providing EIS described in that plan.
(7) If a parent does not provide consent for participation in all EIS, the services shall still be provided for those interventions to which a parent does give consent.
(8) The IFSP shall be evaluated at least once a year and the family shall be provided an opportunity to review the plan at 6-month intervals (or more frequently, based on the child and family needs). The purpose of the periodic review is to determine the following:
(i) The degree to which progress toward achieving the outcomes is being made; and
(ii) Whether modification or revision of the outcomes or services is necessary.
(9) The review may be carried out by a meeting or by another means that is acceptable to the parents and other participants.

F. Maintenance of Records
(1) The EDIS officials shall maintain all EIS records, in accordance with DoD Directive 5400.11.
(2) The IFSP and the documentation of services delivered in accordance with the IFSP are educational records and shall be maintained accordingly.
Pt. 57, App. B

Appendix B to Part 57—Procedures for the Provision of Educational Programs and Services for Children With Disabilities, Ages 3 Through 21 Years, Inclusive

A. Identification
(1) It is the responsibility of the DoD school system officials to engage in child-find activities to locate, identify, and with informed parental consent, evaluate all children who are eligible to enroll in the DDESS under DoD Directive 1342.26 or in the DoDDS under DoD Directive 1342.13 who may require special education and related services.
(2) Referral of a Child for Special Education or Related Services. The DoD school system officials, related service providers, parents, or others who suspect that a child has a possible disabling condition shall refer that child to the CSC.
(3) Procedures for Identification and Screening. The DoD school system officials shall conduct the following activities to determine if a child needs special education and related services:
(i) Screen educational records.
(ii) Screen students using system-wide or other basic skill tests in the areas of reading, math, and language arts.
(iii) Screen school health data such as reports of hearing, vision, speech, or language tests and reports from healthcare personnel about the health status of a child.
(iv) Analyze school records to obtain pertinent information about the basis for suspensions, exclusions, withdrawals, and disciplinary actions.
(v) Coordinate the transition of children from early intervention to preschool.
(4) In cooperation with the Military Departments, conduct on-going child-find activities and publish, periodically, any information, guidelines, and direction on child-find activities for eligible children with disabilities, ages 3 through 21 years, inclusive.

B. Assessment and Evaluation
(1) Every child eligible to attend a DoD school who is referred to a CSC shall receive a full and comprehensive diagnostic evaluation of educational needs. An evaluation shall be conducted before an IEP is developed or placement is made in a special education program.
(2) Procedures for Assessment and Evaluation. A CSC shall ensure that the following elements are included in a comprehensive assessment and evaluation of a child:
(i) Assessment of visual and auditory acuity.
(ii) A plan to assess the type and extent of the disability. A child shall be assessed in all areas related to the suspected disability. When necessary, the assessment plan shall include the following:
(A) Assessment of the level of functioning academically, intellectually, emotionally, socially, and in the family.
(B) Observation in an educational environment.
(C) Assessment of physical status including perceptual and motor abilities.
(D) Assessment of the need for transition services for students 14 years and older, the acquisition of daily living skills, and functional vocational assessment.
(iii) The involvement of parents.
(3) The CSC shall use all locally available community, medical, and school resources to accomplish the assessment. At least one specialist with knowledge in the area of the suspected disability shall be a member of the multidisciplinary assessment team.
(4) Each assessor shall prepare an individual assessment report that includes:
(i) Demographic information about the student and the assessor.
(ii) The problem areas constituting the bases for a referral.
(iii) A behavioral observation of the child during testing.
(iv) The instruments and techniques used for the assessment.
(v) A description of the child's strengths and limitations.
(vi) The results of the assessment; and
(vii) The instructional implications of the findings for educational functioning.
(5) Standards for Assessment Selection and Procedures. All DoD elements, including the CSC and related services providers, shall ensure that assessment materials and evaluation procedures are in compliance with the following criteria:
(i) Selected and administered so as not to be racially or culturally discriminatory.
(ii) Administered in the native language or mode of communication of the child, unless it clearly is not possible to do so.
(iii) Materials and procedures used to assess a child with limited English proficiency are selected and administered to ensure that they measure the extent to which the child has a disability and needs special education, rather than measuring the child's English language skills.
(iv) Validated for the specific purpose for which they are used or intended to be used.
(v) Administered by trained personnel in compliance with the instructions of the testing instrument.
(vi) Administered such that no single procedure is the sole criterion for determining eligibility or an appropriate educational program for a child with a disability.
(vii) Selected to assess specific areas of educational needs and strengths and not merely to provide a single general intelligence quotient.
(viii) Administered to a child with impaired sensory, motor, or communication skills so that the results reflect accurately a child's aptitude or achievement level or whatever other factors the test purports to measure, rather than reflecting the child's impaired sensory, manual, or speaking skills (unless those skills are the factors that the test purports to measure).
(6) Review of Existing Evaluation Data. As part of an initial evaluation (if appropriate) and as part of any reevaluation, the CSC shall review existing evaluation data on the child, including:
(i) Evaluations and information provided by the parents of the child;
(ii) Current classroom-based assessments and observations;
(iii) Observations by teachers and related services providers; and
(iv) On the basis of that review, and input from the child's parents, identify what additional data, if any, are needed to determine:
(A) Whether the child has a particular category of disability, or in the case of a reevaluation of a child, whether the child continues to have such a disability.
(B) The present levels of performance and educational needs of the child.
(C) Whether the child needs special education and related services, or in the case of a reevaluation of a child, whether the child continues to need special education and related services; and
(D) Whether any additions or modifications to the special education and related services are needed to enable the child to meet the measurable annual goals set out in the IEP of the child and to participate, as appropriate, in the general curriculum.
(v) The CSC may conduct its review without a meeting.
(vi) The CSC shall administer tests and other evaluation materials as may be needed to produce the data identified under paragraph B.(2) of this appendix.

C. Eligibility
(1) The CSC shall:
(i) Ensure that the full comprehensive evaluation of a child is accomplished by a multidisciplinary team. The team shall be comprised of teachers or other specialists with knowledge in the area of the suspected disability.
(ii) Convene a meeting to determine the eligibility of a child for special education and related services.
(iii) Meet as soon as possible after a child has been assessed to determine the eligibility of the child for services.
(iv) Afford the child's parents the opportunity to participate in the CSC eligibility meeting.
(v) Issue a written eligibility report that contains the following:
(A) Identification of the child's disabling condition.
(B) A synthesis of the formal and informal findings of the multidisciplinary assessment team.
(C) A summary of information from the parents, the child, or other persons having significant contact with the child.
(D) A determination of eligibility statement.
(E) A list of the educational areas affected by the child's disability, a description of the child's educational needs, and a statement of the child's present level of performance.
(2) Reevaluation for Eligibility. School officials shall reevaluate the eligibility of a child with a disability every 3 years, or more frequently, if conditions warrant.
(i) The scope and type of the reevaluation shall be determined individually based on a child's performance, behavior, and needs during the reevaluation and the review of existing data in accordance with paragraph B.(6) of this appendix.
(ii) The CSC is not required to conduct assessments unless requested to do so by the child's parents.
(iii) If the CSC determines that no additional data are needed to determine whether the child continues to be a child with a disability, the CSC shall notify the parents of:
(A) The determination that no additional assessment data are needed and the reasons for their determination; and
(B) The right of the parents to request an assessment to determine whether the child continues to be a child with a disability.

D. IEP
(1) The DoD school system officials shall ensure that the CSC develop and implement an IEP for each child with a disability who:
(i) Is enrolled in the DoD school system;
(ii) In DoDDS, is home-schooled, eligible to enroll in DoDDS on a space-required, tuition-free basis and whose sponsors have completed a registration form and complied with other registry procedures and requirements of the school;
(iii) In DDESS, is home-schooled and eligible to enroll on a tuition-free basis and whose sponsors have completed a registration form and complied with other registry procedures and requirements of the school; or
(iv) Is placed in another institution by the DoD school system.
(2) The CSC shall convene a meeting to develop, review, or revise the IEP of a child with a disability. That meeting shall:
(i) Be scheduled as soon as possible following a determination by the CSC that the child is eligible for special education and related services.
(ii) Include minimally as participants the following:
(A) An administrator or school representative other than the child's teacher who is qualified to provide or supervise the provision of special education and is knowledgeable about the general curriculum and available resources.
(B) The child's teacher (if the child is, or may be, participating in the regular education environment);
(C) A special education teacher or provider.
(D) One or both of the child's parents.
(E) The child, if appropriate.
(F) For a child with a disability who has been evaluated for the first time, a representative of the evaluation team who is knowledgeable about the evaluation procedures used and is familiar with the results of the evaluation.
(G) Other individuals invited at the discretion of the parent or school who have knowledge or special expertise regarding the child, including related services personnel, as appropriate.
(3) Development of the IEP. The CSC shall prepare the IEP with the following:
(i) A statement of the child's present levels of educational performance including a description of:
(A) How the child's disability affects involvement and progress in the general curriculum or for preschoolers, how the disability affects participation in appropriate activities.
(B) A description of the child's participation in the regular classroom (if the child participates in the regular education environment), extracurricular and other non-academic activities; and
(C) If necessary, an explanation of the extent to which the child shall not participate with children who are not disabled in these activities.
(ii) A statement of measurable annual goals including benchmarks or short-term instructional objectives related to meeting:
(A) The child's needs that result from the disability to enable the child to be involved in and progress in the general curriculum;
(B) Each of the child's other needs resulting from his or her disability.
(iii) A statement of the special education and related services and supplementary aids and services to be provided to the child, or on behalf of the child and a statement of the program modifications or supports for school personnel that shall be provided for the child to:
(A) Advance appropriately toward attaining the annual goals.
(B) Be involved in and progress in the general curriculum in accordance with this part and to participate in extracurricular and other non-academic activities; and
(C) Be educated and participate with other children with or without disabilities.
(iv) A statement of any individual modifications in the administration of system-wide or district-wide assessment of student achievement that are needed for the child to participate in the assessment.
(v) If the CSC determines that the child shall not participate in a particular system-wide or district-wide assessment of student achievement (or part of an assessment), a statement of:
(A) Why that assessment is not appropriate for the child; and
(B) How the child shall be assessed using alternate assessments to measure student progress.
(vi) A statement explaining how the child's progress towards annual goals shall be measured.
(vii) A statement explaining how parents shall be informed, at least as often as parents are informed of progress of children who are not disabled, of:
(A) Their child's progress toward annual goals; and
(B) The extent to which that progress is sufficient to enable the child to achieve the goals by the end of the year.
(viii) A statement of special education, related services, and modifications necessary for the child to advance appropriately toward the annual goals.
(ix) A statement of the amount of time that each service shall be provided to the child, to include the projected date for beginning of services and location and duration of those services (including adjusted school day or an extended school year) and modifications.
(x) A statement of the physical education program provided in one of the following settings:
(A) In the regular education program.
(B) In the regular education program with adaptations, modifications, or the use of assistive technology.
(C) Through specially designed instruction based on the goals and objectives included in the IEP.
(xi) Beginning at age 14, and updated annually:
(A) A statement of transition service needs under applicable components of the child's IEP that focuses on his or her course of study and augments the standard transition requirements.
(B) A statement of needed transition services, including inter-Agency responsibilities.
(xii) Beginning at least one year before the child reaches the age of majority, a statement that the child has been informed of those rights that transfer to him or her under this Part.
(xiii) A statement of special transportation requirement, if any.
(xiv) A statement of the vocational education program for secondary students. If a specially designed instructional program is required, the necessary goals and objectives in the IEP shall be included.
(4) Consideration of Special Factors. The CSC shall consider:
(i) Assistive technology needs for all children.
(ii) Language needs for the limited English proficient child.
(iii) Providing Braille instruction, unless the CSC determines that the use of Braille is not appropriate, for a child who is blind or visually impaired.
(iv) Interventions, strategies, and supports including behavior management plans to address behavior for a child whose behavior impedes learning.
(v) Language and communication needs, opportunities for communication in the child's language and communication mode, including direct instruction in that mode, for the child who is deaf or hard of hearing.
(5) The CSC shall ensure that at least one parent understands the special education procedures including the due process procedures described in appendix G of this part and the importance of the parent's participation in those processes. School officials shall use devices or hire interpreters or other intermediaries who might be necessary to foster effective communications between the school and the parent about the child.
(6) The CSC shall ensure that all provisions developed for any child entitled to an education by the DoD school system are fully implemented in DoD schools or in non-DoD schools or facilities including those requiring special facilities, other adaptations, or assistive devices.
(7) The CSC shall afford the child's parents the opportunity to participate in every CSC meeting to determine their child's initial or continuing eligibility for special education and related services, or to prepare or change the child's IEP or to determine or change the child's placement.
(8) In developing each child's IEP, the CSC shall consider the strengths of the child and the concerns of the parents for enhancing the education of their child.

E. Implementation of the IEP
The CSC shall:
(1) Obtain parental agreement and signature before implementation of the IEP.
(2) Provide a copy of the child's IEP to the parents.
(3) Ensure that the IEP is in effect before a child receives special education and related services.
(4) Ensure that the IEP is implemented as soon as possible following the meetings described under paragraph D.(2) of this appendix.
(5) Provide special education and related services, in accordance with the IEP. The Department of Defense, the DoD school systems, and DoD personnel are not accountable if a child does not achieve the growth projected in the annual goals of the IEP, as long as services have been provided in accordance with the IEP.
(6) Ensure that the child's IEP is accessible to each regular education teacher, special education teacher, related service provider, and other service provider who is responsible for its implementation, and that each teacher and provider is informed of:
(i) His or her specific responsibilities related to implementing the child's IEP; and
(ii) The specific accommodations, modifications, and supports that must be provided for the child in accordance with the IEP.
(7) Review the IEP for each child at least annually in a CSC meeting to determine whether the annual goals for the child are being achieved.
(8) Revise the IEP, as appropriate, to address:
(i) Any lack of progress toward the annual goals and in the general curriculum, where appropriate.
(ii) The results of any reevaluation.
(iii) Information about the child provided by the parents.
(iv) The child's anticipated needs.

F. Transferring Students
(1) When a student transfers to a DoD school with a current IEP from a non-DoD school, the CSC shall convene promptly an IEP meeting to address eligibility and special education services as described in sections C and D of this appendix. The CSC may:
(i) Accept the child's current IEP by notifying and obtaining consent of the parents to use the current IEP and all elements contained in it.
(ii) Initiate a CSC meeting to revise the current IEP, if necessary.
(iii) Initiate an evaluation of the child, if necessary.
(2) When a student with a current IEP transfers from one DoD school to another, the CSC shall accept the child's eligibility and current IEP by notifying and obtaining consent of the parents to use the current IEP and all elements contained in it.

G. Least Restrictive Environment
(1) To the maximum extent, a child with a disability should be placed with children who are not disabled. Special classes, separate schooling, or other removal of a child with a disability from the regular education environment shall occur only when the type or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.
(2) A child shall not be placed by the DoD school system in any special education program unless the CSC has developed an IEP. If a child with a disability is applying for initial admission to a school, the child shall enter on the same basis as a child without a disability. A child with an IEP, and with the consent of a parent and school officials, may receive an initial placement in a special education program under procedures listed in section F of this appendix.
(3) A placement decision requires the following:
(i) Parent participation in the decision and parent consent to the placement before actual placement of the child, except as otherwise provided in paragraph H.(2) of this appendix.
(ii) Delivery of educational instruction and related services in the least restrictive environment.
(iii) The CSC to base placements on the IEP and to review the IEP at least annually.
(iv) The child to participate, to the maximum extent appropriate to the needs and abilities of the child, in school activities including meals, assemblies, recess periods, and field trips with children who are not disabled.
(v) Consideration of factors affecting the child's well-being, including the effects of separation from parents.
(vi) A child to attend a DoD school that is located as close as possible to the residence of the parent who is sponsoring the child's attendance. Unless otherwise required by the IEP, the school should be the same school that the child would have attended had he or she not been disabled.

H. Discipline
(1) All regular disciplinary rules and procedures applicable to children attending a DoD school shall apply to children with disabilities who violate school rules and regulations or disrupt regular classroom activities, subject to the following provisions. School personnel may remove a child with a disability from the child's current placement (to the extent removal would be applied to children who are not disabled):
(i) On an emergency basis for the duration of the emergency when it reasonably appears that the child's behavior may endanger the health, welfare, or safety of self or any other child, teacher, or school personnel.
(ii) For not more than 10-cumulative school days in a school year for any violation of school rules.
(2) Change of Placement. If a child is removed from his or her current placement for more than 10-cumulative school days in a school year, it is considered a change of placement.
(i) Not later than the date on which the decision to make a change in placement is made, the school must notify parents of the decision and of all procedural safeguards, as described in section B of appendix F of this part.
(ii) Not later than 10 days following the change of placement, the CSC must:
(A) Convene a meeting of the IEP team and other qualified personnel to conduct a manifestation determination as described in paragraph H.(5) of this appendix and
(B) Convene an IEP meeting to review the IEP to develop appropriate behavioral interventions to address the child's behavior and implement those interventions. This review may be conducted at the same meeting that is convened under paragraph H.(2)(ii)(A) of this appendix.
(i) If the child has a behavioral intervention plan, the CSC must review the plan and its implementation, and modify the plan and its implementation as necessary, to address the behavior.
(ii) If the child does not have a behavioral intervention plan, the CSC must develop an assessment plan to include a functional behavioral assessment.
(iii) As soon as practicable after developing the assessment plan and completing the assessments required by the plan, the CSC must convene an IEP meeting to develop a behavioral intervention plan to address that behavior, and shall implement the plan.
(3) After a child with a disability has been removed from his or her current placement for more than 10-cumulative school days in a school year, during any subsequent days of removal the DoD school system must provide services to the extent necessary to enable the child to appropriately progress in the general curriculum and appropriately advance toward achieving the goals set out in the child's IEP.
(4) Alternative Education Setting (AES). School personnel may order a change in placement of a child with a disability in accordance with the requirements of paragraph H.(2) of this appendix to an appropriate interim AES for the same amount of time that a non-disabled child would be subject to discipline, but for not more than 45 days, if:
(i) The child carries a weapon to school or to a school function under the jurisdiction of the DoD school system; or
(ii) The child knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance while at school or at a school function under the jurisdiction of a DoD school system.
(5) Manifestation Determination. The CSC shall determine whether the child's behavior is the result of the child's disability by considering all relevant information including evaluation results, observation of the child, information provided by the parents of the child, and the child's IEP and placement.
(i) Unless all of the following are evident, the CSC must consider the child's behavior to be a manifestation of the disability:
(A) IEP and placement were appropriate and the special education services, supplementary aides and services, and behavior intervention strategies were provided consistent with the child's IEP and placement;
(B) The child's disability did not impair his or her ability to understand the impact and consequences of the behavior subject to the disciplinary action; and
(C) The child's disability did not impair his or her ability to control the behavior subject to disciplinary action.
(ii) If the CSC determines that the child's behavior was a manifestation of the disability, the child is not subject to removal from current educational placement as a disciplinary action, except as provided for in paragraph H.(1)(i) of this appendix.
(A) The child's parents shall be notified of the right to have an IEP meeting before any changes in the child's placement.
(B) The CSC shall address the behavior that was the subject of the disciplinary action, by:
(i) Reviewing the child's educational placement to ensure that it is appropriate in consideration of the child's behavior.
(ii) Revising the IEP to include goals, services, and modifications that address the behavior subject to disciplinary action, as necessary.
(iii) If the CSC determines that the child's behavior was not the result in whole or part of the disability, relevant disciplinary procedures may be applied to the child in the same manner in which it would be applied to a child without a disability, except as provided in FAPE.

I. Parent Appeal
(1) If the parent disagrees with the manifestation determination or with any decision regarding placement, the parent may request a hearing.
(2) The school system shall arrange for an expedited hearing in accordance with appendix G of this part.
(3) Placement During Appeal. When a parent requests a hearing challenging placement in an interim AES, the child shall remain in the interim AES pending the decision of the hearing officer or until the expiration of the time period provided for in paragraph H.(3) of this appendix whichever comes first, unless the parent and the school system agree otherwise.
(i) After expiration of the interim AES, during the pendency of any proceedings to challenge the proposed change in placement, the child shall return and remain in the child's placement prior to the interim AES.
(ii) If the school personnel maintain that it is dangerous for the child to return to his or her placement prior to the interim AES, the DoD school system may request an expedited hearing.

J. Order by a Hearing Officer
A hearing officer may order a change in the placement of a child with a disability to an interim AES for not more than 45 days, if the hearing officer:
(1) Determines that the DoD school system has demonstrated by substantial evidence that maintaining the current placement of such child is substantially likely to result in injury to the child or to others.
(2) Considers the appropriateness of the child's current placement.
(3) Considers whether the school system has made reasonable efforts to minimize the risk of harm in the child's current placement, including the use of supplementary aids and services; and
(4) Determines that the interim AES meets the requirements of section A of this appendix.

K. Children Not Yet Determined Eligible for Special Education
Children who have not yet been determined eligible for special education and who have violated the disciplinary rules and procedures may assert the protections of the IDEA if the DoD school system had knowledge that the child had a disability before the behavior occurred.
(1) The DoD school system is considered to have had knowledge if:
(i) The parents expressed concern in writing to the school system personnel that the child needed special education or related services.
(ii) The child's behavior or performance indicated a need for services.
(iii) The child's parents requested an evaluation; or
(iv) The child's teacher or other DoD school system personnel expressed concern about the behavior or performance to the CSC, the school principal, assistant principal, or district special education coordinator.
(2) If the DoD school system does not have knowledge of a disability prior to disciplinary action, the child shall be subject to the regular disciplinary rules and procedures.
(3) If an evaluation were requested during the time the child is subjected to disciplinary action, the evaluation shall be expedited. The child shall remain in his or her current placement until determined eligible for special education or related services.
(4) The DoD school system is not constrained from reporting crime to the appropriate law enforcement authorities and shall ensure that special education and disciplinary records are transmitted to the appropriate law enforcement and judicial authorities.

L. Children With Disabilities Who Are Placed in a NON-DoD School or Facility
(1) Children with disabilities who are eligible to receive a DoD school system education, but are placed in a non-DoD school or facility by a DoD school system, shall have all the rights of children with disabilities who are enrolled in a DoD school.
(2) A child with a disability may be placed in a non-DoD school or facility only if required by the IEP.
(3) Placement by DoDDS in a host-nation non-DoD school or facility shall be made under the host-nation requirements.
(4) Placement by DoDDS in a host-nation non-DoD school or facility is subject to all treaties, executive agreements, and status of forces agreements between the United States and the host nations, and all DoD and DoD school system regulations.
(5) If a DoD school system places a child with a disability in a non-DoD school or facility as a means of providing special education and related services, the program of that institution, including non-medical care and room and board, as prescribed in the child's IEP, must be provided at no cost to the child or the child's parents. The DoD school system or the responsible DoD Component shall pay the costs in accordance with this part.
(6) DoD school officials shall initiate and conduct a meeting to develop an IEP for the child before placement. A representative of the non-DoD school or facility should attend the meeting. If the representative cannot attend, the DoD school system officials shall communicate in other ways to ensure participation including individual or conference telephone calls. The IEP must meet the following standards:
(i) Be signed by an authorized DoD school system official before it becomes valid.
(ii) Include a determination that the DoD school system does not currently have or cannot reasonably create an educational program appropriate to meet the needs of the child with a disability.
(iii) Include a determination that the non-DoD school or facility and its educational program and related services conform to the requirements of this part.
(7) Cost of Tuition for Non-DoD School or Facility. The Department of Defense is not authorized to reimburse the costs of special education if a parent unilaterally places the student in a non-DoD school without approval of the cognizant CSC and the Superintendent, in coordination with the Director of the DoD school system. A valid IEP must document the necessity of the placement in a non-DoD school or facility.
(i) Reimbursement may be required if a hearing officer determines that the DoD school system had not made FAPE available in a timely manner prior to enrollment in the non-DoD school and that the private placement is appropriate.
(ii) Reimbursement may be reduced or denied if the parents did not inform the CSC that the placement determined by the CSC was rejected, including a statement of their concerns, and that they intended to place a child in a non-DoD school; or if 10 business days (Monday through Friday, except for Federal holidays) prior to the parents' removal of the child from the school, the parents failed to provide written notice to the DoD school system of their rejection of the placement decision concerning the child, the reasons for their rejection, and their intent to remove the child; or if the CSC informed parents of its intent to evaluate the child, but parents did not make the child available.
(iii) Reimbursement may not be reduced or denied for failure to provide the required notice if the parents cannot read and write in English; compliance would result in physical or emotional harm to the child; the DoD school prevented the parent from providing notice; or the parents had not received notice of a requirement to provide required notice.

M. Confidentiality of the Records
The DoD school system and EDIS officials shall maintain all student records in accordance with DoD Directive 5400.11.

N. Dispute Resolution
A parent, teacher, or other person covered by this part may file a written complaint about any aspect of this part that is not a proper subject for adjudication by a due process hearing officer, in accordance with DSR 2500.11.
Pt. 57, App. C

Appendix C to Part 57—Procedures for the Provision of Related Services by the Military Medical Departments to DoDDS Students on IEPs

A. Evaluation Procedures
(1) Upon request by a DoDDS CSC, the responsible EDIS shall ensure that a qualified medical authority conducts or verifies a medical evaluation for use by the CSC in determining the medically related disability that results in a child's need for special education and related services, and oversees an EDIS evaluation used in determining a child's need for related services.
(i) This medical or related services evaluation, including necessary consultation with other medical personnel, shall be supervised by a physician or other qualified healthcare provider.
(ii) This medical evaluation shall include a review of general health history, current health assessment, systems evaluation to include growth and developmental assessment, and, if pertinent, detailed evaluation of gross motor and fine motor adaptive skills, psychological status, and visual and audiological capabilities, including details of present level of performance in each of these areas affecting the student's performance in school.
(iii) The EDIS-related services evaluation shall be specific to the areas addressed in the referral by the CSC.
(2) EDIS shall provide a summary evaluation report to the CSC that responds to the questions posed in the original referral. The written report shall include:
(i) Demographic information about the child.
(ii) Behavioral observation of the child during testing.
(iii) Instruments and techniques used.
(iv) Evaluation results.
(v) Descriptions of the child's strengths and limitations.
(vi) Instructional implications of the findings; and
(vii) The impact of the child's medical condition(s), if applicable, on his or her educational performance.
(3) If EDIS determines that in order to respond to the CSC referral the scope of its assessment and evaluation must be expanded beyond the areas specified in the initial parental permission, EDIS must:
(i) Obtain parental permission for the additional activities.
(ii) Complete their initial evaluation by the original due date; and
(iii) Notify the CSC of the additional evaluation activities.
(4) When additional evaluation information is submitted by EDIS, the CSC shall review all data and determine the need for program changes and/or the reconsideration of eligibility.
(5) An EDIS provider shall serve on the CSC when eligibility, placement, or requirements for related services that EDIS provides are to be determined.
(6) Related services provided by EDIS, pursuant to an IEP, are educational and not medical services.

B. IEP
(1) EDIS shall be provided the opportunity to participate in the IEP meeting.
(2) EDIS shall provide related services assigned to EDIS that are listed on the IEP.

C. Liaison With DoDDS
Each EDIS shall designate an EDIS Liaison Officer to:
(1) Provide liaison between the EDIS and DoDDS schools.
(2) Offer, on a consultative basis, training for DoDDS personnel on medical aspects of specific disabilities.
(3) Offer consultation and advice as needed regarding the health services provided at school (for example, tracheostomy care, tube feeding, occupational therapy).
(4) Participate with DoDDS and legal personnel in developing and delivering in-service training programs that include familiarization with various conditions that impair a child's educational endeavors, the relationship of medical findings to educational functioning, related services, and this part.
Pt. 57, App. D

Appendix D to Part 57—The DoD-AP

A. Membership
(1) The DoD Advisory Panel on Early Intervention and Special Education shall meet as needed in publicly announced, accessible meetings open to the general public and shall comply with DoD Directive 5105.4. The DoD-AP members, appointed by the Secretary of Defense, or designee, shall include at least one representative from each of the following groups:
(i) Persons with disabilities.
(ii) Representatives of the Surgeons General of the Military Departments.
(iii) Representatives of the family support programs of the Military Departments.
(iv) Special education teachers from the DoD school system.
(v) Regular education teachers from the DoD school system.
(vi) Parents of children, ages 3 through 21 years, inclusive, who are receiving special education from the DoD school system.
(vii) Parents of children, ages birth through 2 years, inclusive, who are receiving EIS from EDIS.
(viii) Institutions of higher education that prepare early intervention, special education, and related services personnel.
(ix) Special education program managers from the DoD school systems.
(x) Representatives of the Military Departments and overseas commands, including providers of early intervention and related services.
(xi) Representatives of vocational community, or business organizations concerned with transition services.
(xii) Other appropriate persons.
(2) A majority of panel members shall be individuals with disabilities or parents of children, ages birth through 2 years, inclusive, who are receiving EIS from EDIS and children, ages 3 through 21 years, inclusive who are receiving special education from the DoD school system.
(3) The DoD-AP members shall serve under appointments that shall be for a term not to exceed 3 years.

B. Responsibilities
(1) Advise the USD(P&R) of unmet needs within the Department of Defense in the provision of special services to infants, toddlers, and children with disabilities.
(2) Advise and assist the Military Departments in the performance of their responsibilities, particularly the identification of appropriate resources and agencies for providing EIS and promoting inter-Component agreements.
(3) Advise and assist the DoD schools systems on the provision of special education and related services, and on transition of toddlers with disabilities to preschool services.

C. Activities
The DoD-AP shall perform the following activities:
(1) Review information about improvements in service provided to children with disabilities, ages birth through 21, inclusive, in the Department of Defense.
(2) Receive and consider comments from parents, students, professional groups, and individuals with disabilities.
(3) Review policy memoranda on effective inter-Department and inter-Component collaboration.
(4) Review the findings of fact and decisions of each impartial due process hearing conducted under appendix G of this part.
(5) Review reports of technical assistance and monitoring activities.
(6) Make recommendations based on program and operational information for changes in policy and procedures and in the budget, organization, and general management of the programs providing special services.
(i) Identify strategies to address areas of conflict, overlap, duplication, or omission of services.
(ii) When necessary, establish committees for short-term purposes comprised of representatives from parent, student, professional groups, and individuals with disabilities.
(iii) Assist in developing and reporting such information and evaluations as may assist the Department of Defense.
(iv) Comment publicly on rules or standards about EIS for infants and toddlers, ages birth through 2 years, and special education of children with disabilities, ages 3 through 21 years, inclusive.
(v) Perform such other tasks as may be requested by the USD(P&R).

D. Reporting Requirements
(1) Submit an annual report of the DoD-AP's activities and suggestions to the DoD Coordinating Committee, by July 31 of each year.
(2) That report is exempt from formal review and licensing under section 5 of DoD Instruction 7750.7
Pt. 57, App. E

Appendix E to Part 57—DoD-CC on Early Intervention, Special Education, and Related Services

A. Committee Membership
The DoD-CC shall meet at least yearly to facilitate collaboration in early intervention, special education, and related services in the Department of Defense. The DoD-CC shall consist of the following members, appointed by the Secretary of Defense or designee:
(1) A representative of the USD(P&R) or designee, who shall serve as the Chair.
(2) Representatives of the Secretaries of the Military Departments.
(3) A representative of the TRICARE Management Activity.
(4) Representatives from the DoD school systems.
(5) A representative from the GC, DoD.

B. Responsibilities
(1) Advise and assist the USD(P&R) in the performance of his or her responsibilities.
(2) At the direction of the USD(P&R), advise and assist the Military Departments, and the DoD school systems in the coordination of services among providers of early intervention, special education, and related services.
(3) Ensure compliance in the provision of EIS for infants and toddlers and special education and related services for children ages 3 through 21 years, inclusive.
(4) Review the recommendations of the DoD-AP to identify common concerns, ensure coordination of effort, and forward issues requiring resolution to the USD(P&R).
(5) Assist in the coordination of assignments of sponsors who have children with disabilities who are or who may be eligible for special education and related services in the DoDDS or EIS through the Military Departments.
(6) Perform other duties as assigned by the USD(P&R), including monitoring the delivery of services under this part.
Pt. 57, App. F

Appendix F to Part 57—Parent and Student Rights

A. Parental Consent
(1) The consent of a parent of a child with a disability or suspected of having a disability shall be obtained before any of the following:
(i) Initiation of formal evaluation procedures or re-evaluation.
(ii) Provision of EIS or initial educational placement.
(iii) Change in EIS or educational placement.
(2) If a parent of an infant or toddler (birth through 2 years of age) does not provide consent for participation in all EIS, the services shall still be provided for those interventions to which a parent does give consent.
(3) If the parent of a child 3 through 21 years, inclusive, refuses consent to initial evaluation, reevaluation, or initial placement in a special education program, the DoD school system or the parent may do the following:
(i) Request a conference between the school and parents.
(ii) Request mediation.
(iii) Initiate an impartial due process hearing under appendix G of this part to show cause as to why an evaluation or placement in a special education program should or should not occur without such consent. If the hearing officer sustains the DoD school system's position in the impartial due process hearing, the DoD school system may evaluate or provide special education and related services to the child without the consent of a parent, subject to the further exercise of due process rights.
(4) The Department of Defense shall protect the child's rights, by assigning an individual to act as a surrogate for the parents, when after reasonable effort the Department of Defense cannot locate the parents.

B. Procedural Safeguards
Parents of children with disabilities are afforded the following procedural safeguards, consistent with appendix G of this part to ensure that their children receive appropriate special services:
(1) The timely administrative resolution of parental complaints, including hearing procedures with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of EIS for an infant or toddler, age birth through 2 years, or a free appropriate public education for the child, age 3 through 21 years, inclusive.
(2) The right to confidentiality of personally identifiable information under DoD Directive 5400.11.
(3) The right to provision of written notice and to have furnished consent prior to the release of relevant information outside the Department of Defense.
(4) The right to determine whether they, their child, or other family members shall accept or decline any portion of EIS, without jeopardizing the provision of other EIS.
(5) The opportunity to examine records on assessment, screening, eligibility determinations, and the development and implementation of the IFSP and IEP.
(6) Written Notice. The right to prior written notice when the EDIS or school proposes, or refuses, to initiate or change the identification, evaluation, placement or provision of special services to the child with a disability.
(i) The notice must be in sufficient detail to inform the parents about:
(A) The action that is being proposed or refused;
(B) The reasons for taking the action;
(C) All procedural safeguards that are available under this part as described in paragraph B.(7) of this appendix; and
(D) Conflict resolution procedures, including a description of mediation and due process hearings procedures and applicable timelines, as defined in appendix G of this part.
(ii) The notice must be provided in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so.
(7) Procedural Safeguards Notice. Parents must be given a Procedural Safeguards Notice, at a minimum, upon initial referral for evaluation, upon each notification of an IFSP or IEP meeting, upon reevaluation of the child, and upon receipt of a request for due process.
(i) The procedural safeguards notice must include a full explanation of all of the procedural safeguards available with regard to the matters in paragraph B.(7) of this appendix including the right to:
(A) Independent educational evaluation for school-aged children.
(B) Prior written notice.
(C) Parental consent.
(D) Access to educational or early intervention records.
(E) Opportunity to present complaints.
(F) The child's placement during pendency of due process proceedings.
(G) Procedures for children (3 through 21 years, inclusive) who are subject to placement in an interim alternative educational setting.
(H) Requirements for unilateral placement by parents of children in private schools at public expense.
(I) Mediation.
(J) Due process hearings, including requirements for disclosure of evaluation results and recommendations.
(K) Civil actions.
(L) The DoD complaint system, including a description of how to file a complaint and the timelines under those procedures.
(ii) The procedural safeguards notice must be:
(A) Written in language understandable to the general public.
(B) Provided in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so. If the native language or other mode of communication of the parent is not a written language, the school system shall take steps to ensure that:
(i) The notice is translated orally or by other means to the parent in his or her native language or other mode of communication.
(ii) The parent understands the content of the notice; and
(iii) There is written evidence that the requirements in paragraph B.(7)(ii)(A) and paragraph B.(7)(ii)(B) of this appendix have been met.
(8) Independent Educational Evaluation. A parent of a child (3 through 21 years, inclusive) may be entitled to an independent educational evaluation of the child at the expense of the DoD school system if the parent disagrees with the DoD school system's evaluation of the child.
(i) If a parent requests an independent educational evaluation at the school system's expense, the DoD school system must, without unnecessary delay, either:
(A) Initiate an impartial due process hearing to show that its evaluation is appropriate; or
(B) Ensure an independent evaluation is provided at the DoD school system's expense. Unless the DoD school system demonstrates in an impartial due process hearing that an independent evaluation obtained by the parent did not meet DoD school system criteria. In such cases, the parents must bear the cost of the evaluation.
(ii) If the DoD school system initiates a hearing and the decision is that the DoD school system's evaluation is appropriate, the parents still have the right to an independent evaluation, but not at the school system's expense.
(iii) An independent educational evaluation provided at the DoD school system's expense must do the following:
(A) Conform to the requirements of this part.
(B) Be conducted, when possible, in the area where the child resides.
(C) Meet DoD standards governing persons qualified to conduct an educational evaluation, including an evaluation for related services.
(9) The DoD school system, the CSC, and a hearing officer appointed under this part shall consider any evaluation report presented by a parent.
(10) Access to Records. The parents of a child with a disability shall be afforded an opportunity to inspect and review educational records about the identification, evaluation, and educational placement of the child, and the provision of a free public education for the child.
(11) Due Process Rights. (i) The parent of a child with a disability, the Military Department, or the DoD school system has the opportunity to file a written petition for an impartial due process hearing under appendix G of this part. The petition may concern issues affecting a particular child's identification, evaluation, or placement, or the provision of EIS or a free and appropriate public education.
(ii) While an impartial due process hearing or judicial proceeding is pending, unless the EDIS or the DoD school system and the parent of the child agree otherwise, the child shall remain in his or her present educational setting, subject to the disciplinary procedures prescribed in section H of appendix B of this part.
(12) Transfer of Parental Rights at Age of Majority. (i) In the DoD school systems, a child reaches the age of majority at age 18.
(ii) When a child with a disability reaches the age of majority (except for a child with a disability who has been determined to be incompetent under State law) the rights accorded to parents under this Part transfer to the child.
(iii) When a child reaches the age of majority, the DoD school system shall notify the individual and the parents of the transfer of rights.
(iv) When a child with a disability who has reached the age of majority, who has not been determined to be incompetent, but who does not have the ability to provide informed consent with respect to his or her educational program, the Department of Defense shall establish procedures for appointing the parent of the child to represent the educational interests of the child throughout the period of eligibility for special education services.
Pt. 57, App. G

Appendix G to Part 57—Mediation and Hearing Procedures

A. Purpose
This appendix establishes requirements for the resolution of conflicts through mediation and impartial due process hearings. Parents of infants, toddlers, and children who are covered by this Part and, as the case may be, the cognizant Military Medical Department or the DoD school system are afforded impartial mediation and/or impartial due process hearings and administrative appeals about the provision of EIS, or the identification, evaluation, educational placement of, and the FAPE provided to, such children by the Department of Defense, in accordance with sections 927 and 1400 of 20 U.S.C. and section 2164 of 10 U.S.C.

B. Mediation
(1) Mediation may be initiated by either a parent or the Military Medical Department concerned or the DoD school system to resolve informally a disagreement on any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a FAPE to such child.
(i) The DoD school system shall participate in mediation involving special education and related services.
(ii) The cognizant Military Medical Department shall participate in mediation involving EIS.
(2) The party initiating mediation must notify the other party to the mediation of its request to mediate. The initiating party's request must be written, include a written description of the dispute and bear the signature of the requesting party. Formal acknowledgement of the request for mediation shall occur in a timely manner. The parties may jointly request mediation.
(3) Upon agreement of the parties to mediate a dispute, the Military Medical Department or DoD school shall forward a request for a mediator to higher headquarters, or request a mediator through the Director, Defense Office of Hearings and Appeals (DOHA).
(i) The cognizant DoDDS Area Special Education Coordinator or the DDESS District Superintendent shall promptly appoint a mediator. The Director, DOHA, through the DoHA Office of Alternate Dispute Resolution (ADR), shall maintain a roster of mediators trained in ADR methods, knowledgeable in laws and regulations related to special education, and available to mediate disputes upon request. When requested, the Director, DOHA, through the Office of ADR, shall appoint a mediator within 15 business days of receiving the request for a due process hearing, unless a party provides written notice to the Director, DOHA that the party refuses to participate in mediation.
(ii) The mediator assigned to a dispute shall not be employed by the Military Medical Department or the DoD school system involved, unless the parties agree otherwise.
(4) Unless both parties agree otherwise, mediation shall commence in a timely manner after both parties agree to mediation.
(5) The parents of the infant, toddler or child and 2 representatives of the EDIS or DoD school may participate in mediation. With the consent of both parties, other persons may participate in mediation. Either party may recess a mediation session to consult advisors, whether or not present, or to consult privately with the mediator.
(6) If the parties resolve the dispute or a portion of the dispute, or agree to use another procedure to resolve the dispute, the mediator shall ensure that the resolution or agreement is reduced to writing and that it is signed and dated by the parties and that a copy is given to each party. The resolution or agreement is legally binding upon the parties.
(7) Discussions that occur during the mediation process shall be confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding. Unless the parties and the mediator agree, no person may record a mediation session, nor should any written notes be taken from the room by either party. The mediator may require the parties to sign a confidentiality pledge before the commencement of mediation.
(8) Parents must be provided an opportunity to meet with appropriate EDIS or DoD school system staff in at least one mediation session, if they request a due process hearing in accordance with sections A through H of this appendix. The parents and the Military Medical Department or DoD school system must participate in mediation, unless a party objects to mediation.
(9) Mediation shall not delay hearings or appeals related to the dispute. All mediation sessions shall be held in a location that is convenient to the parties. The Military Medical Department in mediations concerning EIS or the DoD school system in mediations concerning special education and related services shall bear the cost of the mediation process.
(10) Any hearing officer or adjudicative body may draw no negative inference from the fact that a mediator or a party withdrew from mediation or that mediation did not result in settlement of a dispute.

C. Hearing Administration
(1) The Defense Office of Hearings and Appeals (DOHA) shall have administrative responsibility for the proceedings authorized by sections D through H of this appendix.
(2) This appendix shall be administered to ensure that the findings, judgments, and determinations made are prompt, fair, and impartial.
(3) Impartial hearing officers, who shall be DOHA Administrative Judges, shall be appointed by the Director, DOHA, and shall be attorneys in good standing of the bar of any State, the District of Columbia, or a commonwealth, territory or possession of the United States, who are also independent of the DoD school system or the Military Medical Department concerned in proceedings conducted under this appendix. A parent shall have the right to be represented in such proceedings by counsel or by persons with special knowledge or training with respect to the challenges of individuals with disabilities. The DOHA Department Counsel normally shall appear and represent the DoD school system in proceedings conducted under this appendix, when such proceedings involve a child age 3 to 21, inclusive. When an infant or toddler is involved, the Military Medical Department responsible under this part for delivering EIS shall either provide its own counsel or request counsel from the DOHA.

D. Hearing Practice and Procedure
(1) Hearing. (i) Should mediation be refused or otherwise fail to resolve the issues on the provision of EIS to an infant or toddler or the identification or evaluation of such an individual, the parent may request and shall receive a hearing before a hearing officer to resolve the matter. The parents of an infant or toddler and the Military Medical Department concerned shall be the only parties to a hearing conducted under this appendix.
(ii) Should mediation be refused or otherwise fail to resolve the issues on the provision of a FAPE to a child with a disability, age 3 to 21, inclusive, or the identification, evaluation, or educational placement of such an individual, the parent or the school principal, for the DoD school system, may request and shall receive a hearing before a hearing officer to resolve the matter. The parents of a child age 3 to 21, inclusive, and the DoD school system shall be the only parties to a hearing conducted under this appendix.
(2) The parents and the Military Medical Department or DoD school system must have an opportunity to obtain an impartial due process hearing, if the parents object to:
(i) A proposed formal educational assessment or proposed denial of a formal educational assessment of their child.
(ii) The proposed placement of their child in, or transfer of their child to a special education program.
(iii) The proposed denial of placement of their child in a special education program or the transfer of their child from a special education program.
(iv) The proposed provision or addition of special education services for their child; or
(v) The proposed denial or removal of special education services for their child.
(3) The parent or the attorney representing the child shall include in the petition, the name of the child, the address of the residence of the child, the name of the school the child is attending, a description of the nature of the problem of the child relating to the proposed or refused initiation or change, including the facts relating to the problem, and a proposed resolution of the problem to the extent known and available to the parents at the time.
(4) The DoD school system may file a written petition for a hearing to override a parent's refusal to grant consent for an initial evaluation, a reevaluation or an initial educational placement of the child. The DoD school system may also file a written petition for a hearing to override a parent's refusal to accept an IEP.
(5) The party seeking the hearing shall submit the petition to the Director, DOHA, at P.O. Box 3656, Arlington, Virginia 22203. The petitioner shall deliver a copy of the petition to the opposing party (i.e., the parent or the school principal, for the DoD school system, or the military MTF commander, for the Military Medical Department), either in person or by first-class mail, postage prepaid. Delivery is complete on mailing. When the DoD school system or the Military Medical Department petitions for a hearing, it shall inform the other parties of the deadline for filing an answer under paragraph D.(6) of this appendix and shall provide the other parties with a copy of this part.
(6) An opposing party shall submit an answer to the petition to the Director, DOHA, with a copy to the petitioner, at the latest by the 15th business day after receipt of the petition. The answer shall be as full and complete as possible, addressing the issues, facts, and proposed relief. The submission of the answer is complete upon mailing.
(7) By 10 business days after receipt of the petition, the Director, DOHA, shall assign a hearing officer, who then shall have jurisdiction over the resulting proceedings. The Director, DOHA, shall forward all pleadings to the hearing officer.
(8) The party requesting the hearing shall plead with specificity as to what issues are in dispute and all issues not specifically pleaded with specificity is deemed waived. Parties must limit evidence to the issues specifically pleaded. A party may amend a pleading if the amendment is filed with the hearing officer and is received by the other parties at least 10 business days before the hearing.
(9) The Director, DOHA, shall arrange for the time and place of the hearing, and shall provide administrative support. The hearing shall be held in the DoD school district attended by the child or at the military base location of the EDIS clinic, unless the parties agree otherwise or upon a showing of good cause.
(10) The purpose of a hearing is to establish the relevant facts necessary for the hearing officer to reach a fair and impartial determination of the case. Oral and documentary evidence that is relevant and material may be received. The technical rules of evidence shall be relaxed to permit the development of a full evidentiary record with the Federal Rules of Evidence, title 28, United States Code serving as guide.
(11) The hearing officer shall be the presiding officer, with judicial powers to manage the proceeding and conduct the hearing. Those powers shall include the authority to order an independent evaluation of the child at the expense of the DoD school system or the Military Medical Department concerned and to call and question witnesses.
(12) Those normally authorized to attend a hearing shall be the parents of the individual with disabilities, the counsel or personal representative of the parents, the counsel and professional employees of the DoDDS or the Military Medical Department concerned, the hearing officer, and a person qualified to transcribe or record the proceedings. The hearing officer may permit other persons to attend the hearing, consistent with the privacy interests of the parents and the individual with disabilities. The parents have the right to an open hearing on waiving in writing their privacy rights and those of the individual with disabilities who is the subject of the hearing.
(13) A verbatim transcription of the hearing shall be made in written or electronic form and shall become a permanent part of the record. A copy of the written transcript or electronic record of the hearing shall be made available to a parent on request and without cost. The hearing officer may allow corrections to the written transcript or electronic recording for conforming it to actual testimony after adequate notice of such changes is given to all parties.
(14) The hearing officer's decision of the case shall be based on the record, which shall include the petition, the answer, the written transcript or the electronic recording of the hearing, exhibits admitted into evidence, pleadings or correspondence properly filed and served on all parties, and such other matters as the hearing officer may include in the record, if such matter is made available to all parties before the record is closed under paragraph D.(16) of this appendix.
(15) The hearing officer shall make a full and complete record of a case presented for adjudication.
(16) The hearing officer shall decide when the record in a case is closed.
(17) The hearing officer shall issue findings of fact and conclusions of law in a case not later than 50 business days after being assigned to the case, unless a request for discovery is made by either party, as provided for in paragraph D.(5) of this appendix in which case the time required for such discovery does not count toward the 50 business days. The hearing officer may grant a specific extension of time for good cause either on his or her own motion or at the request of either party. Good cause includes the time required for mediation under section B of this appendix. If the hearing officer grants an extension of time, he or she shall identify the length of the extension and the reason for the extension in the record of the proceeding.

E. Discovery
(1) Full discovery shall be available to parties to the proceeding, with the Federal Rules of Civil Procedure, Rules 26-37, codified at 28 U.S.C. serving as a guide.
(2) If voluntary discovery cannot be accomplished, a party seeking discovery may file a motion with the hearing officer to accomplish discovery. The hearing officer shall grant an order to accomplish discovery upon a showing that the requested evidence is relevant and necessary. Relevant evidence is necessary when it is not cumulative and when it would contribute to a party's presentation of the case in some positive way on a matter in issue. A matter is not in issue when it is admitted or stipulated as a fact. An order granting discovery shall be enforceable as is an order compelling testimony or the production of evidence.
(3) Records compiled or created in the regular course of business, which have been provided to a party prior to hearing in accordance with paragraph E.(2) of this appendix may be received and considered by the officer without authenticating witnesses.

F. Witnesses; Production of Evidence
(1) All witnesses testifying at the hearing shall be advised that it is a criminal offense knowingly and willfully to make a false statement or representation to a Department or Agency of the U.S. Government as to any matter in the jurisdiction of that Department or Agency. All witnesses shall be subject to cross-examination by the parties.
(2) A party calling a witness shall bear the witness' travel and incidental expenses associated with testifying at the hearing. The DoD school system or the Military Medical Department concerned shall pay such expenses when a witness is called by the hearing officer.
(3) The hearing officer may issue an order compelling the attendance of witnesses or the production of evidence on the hearing officer's own motion or, if good cause can be shown, on motion of either party.
(4) When the hearing officer determines that a person has failed to obey an order to testify or to produce evidence, and such failure is in knowing and willful disregard of the order, the hearing officer shall so certify.
(5) The party or the hearing officer seeking to compel testimony or the production of evidence may, based on the certification provided for in paragraph F.(4) of this appendix file an appropriate action in a court of competent jurisdiction to compel compliance with the hearing officer's order.
(6) At least 5 business days prior to a hearing, the parties shall exchange lists of all documents and materials that each party intends to use at the hearing, including all evaluations and reports. Each party also shall disclose the names of all witnesses it intends to call at hearing along with a proffer of the anticipated testimony of each witness.
(7) At least 10 business days in advance of hearing, each party must provide the name, title, curriculum vitae, and summary of proposed testimony of any expert witness it intends to call at hearing.
(8) Failure to disclose documents, materials, or witnesses pursuant to paragraphs F.(6) and F.(7) of this appendix may result in the hearing officer barring their introduction at the hearing.

G. Hearing Officer's Findings of Fact and Decision
(1) The hearing officer shall make written findings of fact and shall issue a decision setting forth the questions presented, the resolution of those questions, and the rationale for the resolution. The hearing officer shall file the findings of fact and decision with the Director, DOHA, with a copy to the parties.
(2) The Director, DOHA, shall forward to the Director, of the DoD school system, or to the Military Medical Department concerned, copies with all personally identifiable information deleted, of the hearing officer's findings of fact and decision or, in cases that are administratively appealed, of the final decision of the DOHA Appeal Board.
(3) The findings of fact and decision of the hearing officer shall become final unless a notice of appeal is filed under section I of this appendix. The DoD school system or the Military Medical Department concerned shall implement the decision as soon as practicable after it becomes final.

H. Determination Without Hearing
(1) At the request of a parent of an infant, toddler, or child age 3 to 21, inclusive, when early intervention or special educational (including related) services are at issue, the requirement for a hearing may be waived, and the case may be submitted to the hearing officer on written documents filed by the parties. The hearing officer shall make findings of fact and conclusions of law in the period fixed by paragraph D.(17) of this appendix.
(2) The DoD school system or the Military Medical Department concerned may oppose a request to waive a hearing. In that event, the hearing officer shall rule on that request.
(3) Documents submitted to the hearing officer in a case determined without a hearing shall comply with paragraph F.(6) of this appendix. A party submitting such documents shall provide copies to all other parties.

I. Appeal
(1) A party may appeal the hearing officer's findings of fact and decision by filing a written notice of appeal with the Director, DOHA, at P.O. Box 3656, Arlington, Virginia 22203, within 15 business days of receipt of the findings of fact and conclusions of law. The notice of appeal must contain the appellant's certification that a copy of the notice of appeal has been provided to all other parties. Filing is complete on mailing.
(2) Within 30 business days of receipt of the notice of appeal, the appellant shall submit a written statement of issues and arguments to the Director, DOHA, with a copy to the other parties. The other parties shall submit a reply or replies to the Director, DOHA, within 20 business days of receiving the statement, and shall deliver a copy of each reply to the appellant. Submission is complete on mailing.
(3) The Director, DOHA, shall refer the matter on appeal to the DOHA Appeal Board. It shall determine the matter, including the making of interlocutory rulings, within 45 business days of receiving timely submitted replies under paragraph I.(2) of this appendix.
(4) The determination of the DOHA Appeal Board shall be a final administrative decision and shall be in written form. It shall address the issues presented and set forth a rationale for the decision reached. A determination denying the appeal of a parent in whole or in part shall state that the parent has the right under sections 921-932 and chapter 33 of title 20, United States Code to bring a civil action on the matters in dispute in a district court of the United States of competent jurisdiction without regard to the amount in controversy.
(5) No provision of this part or other DoD guidance may be construed as conferring a further right of administrative review. A party must exhaust all administrative remedies afforded by this appendix before seeking judicial review of a determination made under this appendix.

J. Publication and Indexing of Final Decisions
The Director, DOHA, shall ensure that final decisions in cases arising under this appendix are published and indexed to protect the privacy rights of the parents who are parties in those cases and the children of such parents, in accordance with DoD Directive 5400.11.
Pt. 57, App. H

Appendix H to Part 57—Monitoring

A. Monitoring
(1) The DoDEA and the Military Medical Departments shall establish procedures for monitoring special services requiring:
(i) Periodic on-site monitoring at each administrative level.
(ii) The DoD school systems to report annually that the provision of special education and related services is in compliance with this part.
(iii) The Military Medical Departments to report annually that the provision of EIS is in compliance with this part.
(2) The Director, DoDEA, and the Surgeons General of the Military Medical Departments shall submit reports to the DoD-CC not later than July 31 each year that summarize the status of compliance. The reports shall:
(i) Identify procedures conducted at Headquarters and at each subordinate level, including on-site visits, to evaluate compliance with this part.
(ii) Summarize the findings.
(iii) Describe corrective actions required of the programs that were not in compliance and the technical assistance that shall be provided to ensure they reach compliance.

B. USD(P&R) Oversight
(1) On behalf of the USD(P&R), the DoD-CC or designees, shall make periodic unannounced visits to selected programs to ensure the monitoring process is in place and to validate the compliance data and reporting. The DoD-CC may use other means in addition to the procedures in this section to ensure compliance with the requirements established in this part.
(2) For DoD-CC monitoring visits, the Secretaries of the Military Departments, or designees, shall:
(i) Provide necessary travel funding and support for their respective team members.
(ii) Provide necessary technical assistance and logistical support to monitoring teams during monitoring visits to facilities for which they are responsible.
(iii) Cooperate with monitoring teams, including making all pertinent records available to the teams.
(iv) Address monitoring teams' recommendations concerning early intervention and related services for which the Secretary concerned has responsibility, including those to be furnished through an inter-Service agreement, are promptly implemented.
(3) For DoD-CC monitoring visits, the Director, DoDEA shall:
(i) Provide necessary travel funding and support for team members from the Office of the Under Secretary (P&R); the Office of GC, DoD; and DoD school systems.
(ii) Provide necessary technical assistance and logistical support to monitoring teams during monitoring visits to facilities for which he/she is responsible.
(iii) Cooperate with monitoring teams, including making all pertinent records available to the teams.
(iv) Address the monitoring teams' recommendations concerning special education and related services for which the DoD school system concerned has responsibility.
(4) The ASD(HA), or designee, shall provide technical assistance to the DoD monitoring teams when requested.
(5) The GC, DoD, or designee, shall:
(i) Provide legal counsel regarding monitoring activities conducted pursuant to this part to the USD(P&R), the ASD(HA), and, where appropriate, to DoDEA, monitored Agencies, and monitoring teams.
(ii) Provide advice about the legal requirements of this part and Federal law to the DoD school systems, military medical commanders, and military installation commanders, and to other DoD personnel as appropriate, in connection with monitoring activities conducted pursuant to this part.
Pt. 64

PART 64—MANAGEMENT AND MOBILIZATION OF REGULAR AND RESERVE RETIRED MILITARY MEMBERS
Sec.
64.1
Purpose.
64.2
Applicability and scope.
64.3
Definitions.
64.4
Policy.
64.5
Responsibilities.

Authority:
10 U.S.C. 688, 973, and 12301(a).

Source:
71 FR 19828, Apr. 18, 2006, unless otherwise noted.
§ 64.1
Purpose.
This part implements 10 U.S.C. 688, 973, 12301(a), and 12307 by prescribing uniform policy and guidance governing the peacetime management of retired Regular and Reserve military personnel preparing for their use during a mobilization.
§ 64.2
Applicability and scope.
This part:
(a) Applies to the Office of the Secretary of Defense, the Military Departments (including the Coast Guard when it is not operating as part of the Navy by agreement with the Department of Homeland Security), the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Office of the Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other organizational entities in the Department of Defense (hereafter referred to as the “DoD Components”). The term “Military Services,” as used herein, refers to the Army, the Navy, the Air Force, the Marine Corps, and the Coast Guard. The term “Secretary concerned,” refers to the respective Secretaries of the Military Departments and the Secretary of Homeland Security for the Coast Guard when it is not operating as part of the Navy. (b) This part also applies to non-DoD organizations that have DoD-related missions, such as the Department of Homeland Security and the Selective Service System, and non-DoD organizations that have North Atlantic Treaty Organization-related missions, under agreements with those non-DoD organizations.
§ 64.3
Definitions.
(a) Key employee. Any Reservist or any military retiree (Regular or Reserve) identified by his or her employer, private or public, as filling a key position.
(b) Key position. A civilian position, public or private (designated by an employer and approved by the Secretary concerned), that cannot be vacated during war, a national emergency, or mobilization without seriously impairing the capability of the parent agency or office to function effectively, while meeting the criteria for designating key positions as outlined in Department of Defense Directive 1200.7. ^1
^1 Copies may be obtained from http://www.dtic.mil/whs/directives.
(c) Military retiree categories—(1) Category I. Non-disability military retirees under age 60 who have been retired fewer than 5 years.
(2) Category II. Non-disability military retirees under age 60 who have been retired 5 years or more.
(3) Category III. Military retirees, including those retired for disability, other than categories I or II retirees (includes warrant officers and healthcare professionals who retire from active duty after age 60).
(d) Military retirees or retired military members. (1) Regular and Reserve officers and enlisted members who retire from the Military Services under 10 U.S.C. Chapters 61, 63, 65, 1223, 367, 571, or 573, and 14 U.S.C. Chapters 11 and 21.
(2) Reserve officers and enlisted members eligible for retirement under one of the provisions of law in § 64.3(d) who have not reached age 60 and who have not elected discharge or are not members of the Ready Reserve or Standby Reserve (including members of the Inactive Standby Reserve).
(3) Members of the Fleet Reserve and Fleet Marine Corps Reserve under 10 U.S.C. 6330.
§ 64.4
Policy.
(a) It is DoD policy that military retirees be ordered to active duty as needed to perform such duties as the Secretary concerned considers necessary in the interests of national defense as described in 10 U.S.C. 12301 and 688.
(b) The DoD Components and the Commandant of the U.S. Coast Guard shall plan to use as many retirees as necessary to meet national security needs.
(c) The military retirees ordered to active duty may be used according to guidance prescribed by the Secretary concerned as follows:
(1) To fill shortages or to augment deployed or deploying units and activities or units in the Continental United States, Alaska, and Hawaii supporting deployed units.
(2) To release other military members for deployment overseas.
(3) Subject to the limitations of 10 U.S.C. 973, Federal civilian workforce shortages in the Department of Defense, the U.S. Coast Guard, or other Government entities.
(4) To meet national security needs in organizations outside the Department of Defense with Defense-related missions, if the detail outside the Department of Defense is approved according to DoD Directive 1000.17. ^2
^2 See § 64.3(b).
(5) To perform other duties that the Secretary concerned considers necessary in the interests of national defense.
(d) Military retirees shall be ordered to active duty with full pay and allowances. They may not be used to fill mobilization billets in a non-pay status.
(e) Military retirees serving on active duty may be reassigned to meet the needs of the Military Service.
§ 64.5
Responsibilities.
(a) The Assistant Secretary of Defense for Reserve Affairs and the Deputy Under Secretary of Defense (Military Personnel Policy) (DUSD(MMP)), under the Under Secretary of Defense for Personnel and Readiness, shall provide policy guidance for the management and mobilization of DoD military retirees.
(b) The Secretaries of the Military Departments and the Commandant of the U.S. Coast Guard shall ensure plans for the management and mobilization of military retirees are consistent with this rule.
(c) The Directors of the Defense Agencies, the Secretary of Homeland Security, the Director of the Selective Service System, and Heads of Federal Agencies, shall, by agreement, assist in identifying military and Federal civilian wartime positions that are suitable to be filled by military retirees. They shall also process those requirements according to Departmental policy, including any appropriate coordination under Department of Defense Directive 1000.17, ^3 before the positions are filled by the Military Services. The Secretary of the Military Department shall retain the right to disapprove the request if no military retiree is available.
^3 See § 64.3(b).
(d) The Secretaries of the Military Departments, or designees, shall:
(1) Prepare plans and establish procedures for mobilization of military retirees according to this rule.
(2) Determine the extent of military retiree mobilization requirements based on existing inventories and inventory projections for mobilization of qualified Reservists in an active status in the Ready Reserve, including Individual Ready Reserve and the Inactive National Guard (when placed in an active status), or the Standby Reserve.
(3) Develop procedures for identifying retiree Categories I and II and conduct screening of retirees according to Department of Defense Directive 1200.7. ^4
^4 See § 64.3(b).
(4) Maintain necessary records on military retirees and their military qualifications. Maintain records for military retiree Categories I and II, including retirees who are key employees, and their availability for mobilization, civilian employment, and physical condition. Data shall be
(5) Advise military retirees of their duty to provide the Military Services with accurate mailing addresses and any changes in civilian employment, military qualifications, availability for service, and physical condition.
(6) Pre-assign retired members, when determined appropriate and as necessary.
(7) Determine refresher training requirements.
Pt. 65

PART 65—POST-9/11 GI BILL
Sec.
65.1
Purpose.
65.2
Applicability.
65.3
Definitions.
65.4
Policy.
65.5
Responsibilities.
65.6
Procedures.
65.7
Eligibility.
65.8
Reporting requirements.
Appendix to 32 CFR Part 65—Additional Reporting Requirements

Authority:
38 U.S.C., chapter 33

Source:
74 FR 30213, June 25, 2009, unless otherwise noted.
§ 65.1
Purpose.
This part:
(a) Establishes policy, assigns responsibilities, and prescribes procedures under chapter 33 of title 38, United States Code (U.S.C.) for carrying out the Post-9/11 GI Bill.
(b) Establishes policy for the use of supplemental educational assistance (hereafter referred to as “kickers”) for members with critical skills or specialties, or for members serving additional service under section 3316 of title 38, U.S.C.
(c) Establishes policy for authorizing the transferability of education benefits (TEB) in accordance with section 3319 of title 38, U.S.C.
(d) Assigns responsibility to the Department of Defense Board of Actuaries to review valuations of the Department of Defense Education Benefits Fund in accordance with sections 183 and 2006 of title 10, U.S.C.
§ 65.2
Applicability.
(a) This part applies to the Office of the Secretary of Defense, the Military Departments (including the Coast Guard at all times, including when it is a Service in the Department of Homeland Security (DHS) by agreement with the Department).
(b) The term “Military Services,” as used herein, refers to the Army, the Navy, the Air Force, the Marine Corps, and the Coast Guard.
§ 65.3
Definitions.
Active Duty. Defined in section 101(21)(A) of title 38, U.S.C. for Members of the regular components of the Armed Forces. Defined in section 688, 12301(a), 12301(d), 12301(g), 12302, or 12304 of title 10, U.S.C. for Members of the Reserve Components of the Armed Forces.
EATP. The Educational Assistance for Persons Enlisting for Active Duty program, chapter 106A (formerly 107) of title 10, U.S.C.
Entry Level and Skill Training. (1) In the case of members of the Army, Basic Combat Training and Advanced Individual Training, which includes members attending One Station Unit Training (OSUT).
(2) In the case of members of the Navy, Recruit Training (or Boot Camp) and Skill Training (or so-called `A' School).
(3) In the case of members of the Air Force, Basic Military Training and Technical Training.
(4) In the case of members of the Marine Corps, Recruit Training and Marine Corps Training (or School of Infantry Training).
(5) In the case of members of the Coast Guard, Basic Training.
Family Member. For the purpose of this part, a spouse or child enrolled in the Defense Enrollment Eligibility Reporting System (DEERS).
Kickers. Supplemental educational assistance paid to an eligible Service member besides the basic educational assistance, because of the individual's qualifying service, as in section 3316 of title 38, U.S.C.
Institution of Higher Learning (IHL). A training institution as defined in section 3452(f) of title 38, U.S.C., and approved for purposes of chapter 30 of title 38, U.S.C., (including approval by the State approving agency concerned).
Member of the Armed Forces. For the purposes of this part, those individuals on active duty or in the Selected Reserve. Does not include other members of the Ready Reserve (such as the Individual Ready Reserve, standby Reserve, or retired members of the Armed Forces.)
MGIB. The All-Volunteer Force Education Assistance Program, Chapter 30 of title 38, U.S.C.
MGIB-SR. The Educational Assistance for Members of the Selected Reserve program, Chapter 1606 of title 10, U.S.C.
Post-9/11 GI Bill. The Post-9/11 Educational Assistance Program, Chapter 33 of title 38, U.S.C.
REAP. The Reserve Educational Assistance Program, Chapter 1607 of title 10, U.S.C.
Secretary of the Military Department concerned. For a member of the Army, the Navy, the Air Force, the Marine Corps, and the Coast Guard when it is operating as a Service of the Department of the Navy, the term means the Secretary of the Military Department with jurisdiction over that Service member. For a member of the Coast Guard, when the Coast Guard is operating as a Service of the DHS, the term means, “the Secretary of Homeland Security has jurisdiction over that Service member.”
§ 65.4
Policy.
It is DoD policy:
(a) That “kickers” may be authorized to assist in the recruitment and retention of individuals into skills or specialties in which there are critical shortages or for which it is difficult to recruit, or in the case of units, retain personnel.
(b) That transferability of unused educational benefits be used by the Military Services to promote recruitment and retention.
(c) That the Secretary of Defense may limit the months of the entitlement that may be transferred to no less than 18 months, as specified in section 3319 of title 38, U.S.C., if needed to manage force structure and force shaping.
§ 65.5
Responsibilities.
(a) The Deputy Under Secretary of Defense for Military Personnel Policy (DUSD(MPP)), under the authority, direction, and control of the Under Secretary of Defense for Personnel and Readiness, shall:
(1) Develop procedures to implement policy for the Post-9/11 GI Bill authorized by chapter 33 of title 38, U.S.C.
(2) Coordinate administrative procedures with the Department of Veterans Affairs (DVA), as applicable.
(3) Review and approve each Military Department plan to use supplemental assistance under the provisions of section 3316 of title 38, U.S.C.
(4) Establish the standard data elements needed to administer the Post-9/11 GI Bill Program.(see Appendix A to this part).
(b) The Under Secretary of Defense (Comptroller)/Chief Financial Officer (USD(C/CFO)) shall:
(1) Provide guidance on budgeting, accounting, and funding for the educational benefits program in support of policies established in § 65.6(b) of this part, and for investing the available DoD Education Benefits Fund balance.
(2) In coordination with the DUSD (MPP), review and approve the Military Department budget estimates for the supplemental payments under the provisions of section 3316 of title 38, U.S.C.
(c) The Secretaries of the Military Departments shall:
(1) Provide regulations, policy implementation guidance, and instructions governing the administration of the GI Bill program established under chapter 33 of title 38, U.S.C. consistent with this DTM and other guidance issued by the DUSD(MPP) and USD(C)/CFO consistent with the needs of the Military Services. Regulations must include Service implementation of kickers and the transfer of unused educational benefits as established in section 3319 of title 38, U.S.C., as outlined in § 65.6 of this part.
(2) Ensure that all eligible active duty members and members of the Reserve Components are aware that they are eligible for educational assistance under the Post-9/11 GI Bill program upon serving the required active duty time as established in Chapter 33 of title 38, U.S.C.
(3) Advise all officers without earlier established eligibility, following commissioning through Service Academies, with the exception the U.S. Coast Guard Academy, or Reserve Officer Training Corps (ROTC) Scholarship Programs, that their eligibility for benefits does not begin until they have completed their statutory obligated active duty service. Any active duty service after that obligated period of service may qualify and entitle the Service member to accrue active duty service for the Post-9/11 GI Bill eligibility.
(4) Ensure that Service members participating in the student loan repayment program under chapter 109 of title 10, U.S.C., receive counseling on qualification for the Post-9/11 GI Bill program and understand that their service commitment due to such participation does not count as qualifying active duty service. Any service after that obligated period of service may qualify and entitle the Service member to accrue active duty service for Post-9/11 GI Bill eligibility.
(5) Determine the need for Supplemental Educational Assistance (Kickers) for recruitment and retention of individuals with special skills under section 3316 of title 38, U.S.C., and submit plans to the DUSD(MPP) for approval. That submission shall include justification for providing benefits to those skills, identification of skills for which benefits shall be offered, other special incentives offered in those skills, estimated number of participants, costs, and eligibility requirements.
(6) Budget for and transfer funds to support the Supplemental Educational Assistance (Kickers), in accordance with § 65.6 of this part and guidance issued by the USD(C)/CFO.
(7) Provide active duty participants and members of the Reserve Components with qualifying active duty service individual pre-separation or release from active duty counseling on the benefits under the Post-9/11 GI Bill and document accordingly.
(8) Maintain records for individuals who participate in supplemental educational assistance programs under section 3316 of title 38, U.S.C. Ensure that records on that participation are provided to the Defense Manpower Data Center (DMDC) and the DVA.
(9) Use DoD standard data elements and codes established by DoD Instruction 1336.5 (available at http://www.dtic.mil/whs/directives/corres/pdf/133605p.pdf) and DoD Instruction 7730.54 (available at http://www.dtic.mil/whs/directives/corres/pdf/773054p.pdf) and listed in table 1 of appendix A to this part, when specified. A Military Service failing to comply either with the coding instructions or with codes registered in the DoD Data Element Program shall be responsible for the conversion costs in accomplishing data interchange.
§ 65.6
Procedures.
(a) General—(1) Eligibility. The Department of Veterans Affairs is responsible for determining eligibility for education benefits under the GI Bill. Generally, to be eligible for the GI Bill, individuals must serve on active duty on or after September 11, 2001, for at least 30 continuous days with a discharge due to a service-connected disability; or an aggregate period ranging from 90 days to 36 months or more. See § 65.7 of this part for specific requirements.
(2) Educational assistance benefits. (i) Benefits under the GI Bill are based on a percentage, as determined by a Service Member's aggregate length of active duty service.
(A) Amount of tuition and fees charged, not to exceed the most expensive in-State undergraduate tuition and fees at a public institution of higher learning (tuition and fees paid directly to the school);
(B) Monthly stipend equal to the basic allowance for housing (BAH) amount payable to a military E-5 with dependents, in the same ZIP code as the school that the student is attending (paid to the individual);
(C) Yearly books and supplies stipend of up to $1000 per year (paid to the individual on a quarter, semester, or term basis, as appropriate); and
(D) A one-time payment of $500 may be payable to certain individuals relocating from highly rural areas (paid to the individual).
(ii) “Kickers”, for those who are eligible, will be paid to the individual in conjunction with, and only when receiving, the monthly stipend.
(iii) The monthly stipend and the books and supplies stipend are not payable to individuals on active duty.
(iv) The monthly stipend allowance is not payable for those pursuing education and/or training at half time or less or to some individuals taking distance learning. Individuals enrolled at half time or less are eligible for an appropriately reduced stipend for books and supplies. The DVA will determine under what, if any, circumstances an individual will be eligible for the monthly stipend while undertaking distance learning.
(v) Post-9/11 GI Bill benefits are subject to change based on legislative changes. The benefits are different for educational programs pursued on a full-time basis or at an applicable reduced rate determined by the Secretary of Veterans Affairs for less than full-time enrollment.
(vi) Post-9/11 GI Bill benefits may be used for an approved program of education offered by an Institution of Higher Learning (IHL) This includes graduate and undergraduate training, and some vocational/technical training programs. DVA is the final authority on program eligibility.
(vii) Individuals may receive tutorial assistance (up to $100 per month, not to exceed a total of $1,200) and reimbursement of one licensing and certification test (not to exceed a total of $2,000).
(viii) Additionally, individuals who were eligible for MGIB, MGIB-SR, or REAP, and elect to use benefits under the GI Bill will be eligible to receive benefits for programs approved under those provisions but not offered by IHLs, such as on-the-job training, apprenticeship training, correspondence courses, flight training, preparatory courses, and national exams at the benefit rate for MGIB, MGIB-SR, or REAP, as appropriate.
(3) Benefits for individuals pursuing education on active duty. Educational assistance is payable under the Post-9/11 GI Bill Program for pursuit of an approved program of education while on active duty.
(i) The amount of educational assistance payable shall be the lesser of the amount of assistance authorized in the manner specified under section 3014(b)(1) of title 38, U.S.C., or the established institutional charges for tuition and fees required in similar circumstances of non-veterans enrolled in the same program.
(ii) Concurrent Use of Post-9/11 GI Bill and Tuition Assistance (commonly called “Top Up”). In accordance with section 3313(e) of title 38, U.S.C., a Service member entitled to basic educational assistance who is pursuing education or training described in subsection (a) or (c) of section 2007 of title 10, U.S.C., may use, at their discretion, Post-9/11 GI Bill benefits to meet all or a portion of the charges of the educational institution for the education or training that are not paid by the Secretary of the Military Department concerned under such subsection. DVA shall administer fully that portion of the Post-9/11 GI Bill Program.
(4) Time limitation. As a general rule, eligible individual entitlements expire at the end of a 15-year period beginning on the Service member's last date of discharge or release from active duty of at least 90 consecutive days (30 days if released or discharged for service-connected disability). The Secretary of the Military Department concerned shall determine the last date of discharge or release, if such date cannot be determined clearly from the Service member's records.
(5) Issues for Members with Entitlement to Existing Education Programs—(i) Members Eligible for Existing Programs. An individual may elect to receive educational assistance under chapter 33 of title 38, U.S.C., if such individual, as of August 1, 2009,
(A) Is entitled to basic educational assistance under MGIB, and has used, but retains unused, entitlement under chapter 30 of title 38, U.S.C.;
(B) Is entitled to educational assistance under EATP, MGIB-SR, or REAP, and has used, but retains unused, entitlement under the applicable program;
(C) Is entitled to basic educational assistance under MGIB, but has not used any entitlement under chapter 30 of title 38, U.S.C.;
(D) Is entitled to educational assistance under EATP, MGIB-SR, or REAP, but has not used any entitlement under such program;
(E) Is a member of the Armed Forces who is eligible for receipt of basic educational assistance under MGIB, and is making contributions toward such assistance under sections 3011(b) or 3012(c) of title 38, U.S.C.; or
(F) Is a member of the Armed Forces who is not entitled to basic educational assistance under MGIB, by reason of an election under sections 3011(c)(1) or 3012(d)(1) of title 38, U.S.C.; and
(G) As of the date of the individual's election under paragraph (a)(5)(i)), meets the requirements for entitlement to educational assistance under chapter 33 of title 38, U.S.C.
(ii) Election Process. The method and process of making such election will be determined by DVA.
(iii) Irrevocability of Election. An election made under paragraph (a)(5(i)) of this section is irrevocable.
(iv) An individual entitled to educational assistance under the Post-9/11 GI Bill who is also eligible for educational assistance under the MGIB (chapters 30, 31, 32, or 35 of title 38, U.S.C.), EATP (chapter 106A of title 10, U.S.C.), MGIB-SR (chapter 1606 of title 10, U.S.C.), REAP (chapter 1607 of title 10, U.S.C.), or the provisions of the Hostage Relief Act of 1980 (section 5561 note of title 5, U.S.C.) may not receive assistance under two or more such programs concurrently, but shall elect (in such form and manner as the Secretary of Veterans Affairs may prescribe) under which chapter or provisions to receive educational assistance.
(v) Cessation of pay reduction under Montgomery GI Bill. Effective as of the first month beginning on or after the date of an election under paragraph (a)(5(i)) of this section, an individual having their pay reduced under the provisions of sections 3011(b) or 3012(c) of title 38, U.S.C., as applicable, shall have that pay reduction ceased, and the requirements of such section shall be deemed no longer applicable to the individual.
(vi) Refund of pay reduction under Montgomery GI Bill. An individual who is described in paragraph (a)(5(i)) of this section, whose pay was reduced under the provisions of sections 3011(b) or 3012(c) of title 38, U.S.C., will receive a refund of that pay reduction subject to the following:
(A) A full refund for an individual who used no months of benefit under the MGIB.
(B) A refund reduced by a proportion calculated by the number of months of MGIB benefits remaining at the time of election divided by 36.
(C) The refund will be added to the monthly stipend allowance paid in the last month of eligibility under the Post-9/11 GI Bill. Individuals who do not exhaust entitlement under the Post-9/11 GI Bill will not receive a refund of the pay reduction.
(vii) Treatment of certain contributions under MGIB and REAP (commonly called “Buy-Up”). (A) There is no provision to allow for increasing the amount allowed for Post-9/11 GI Bill benefits based on any contributions made by an individual under the provisions of section 3015(g) of title 38, U.S.C.
(B) There is no provision to allow for increasing the amount allowed for Post-9/11 GI Bill benefits based on any contributions made by an individual under the provisions of section 16162(f) of title 10, U.S.C.
(viii) Limitation on entitlement for certain individuals. In the case of an individual eligible for MGIB who has used but retains unused entitlement, making an election to receive benefits under the Post-9/11 GI Bill, the number of months of entitlement of the individual to educational assistance under the Post-9/11 GI Bill shall be the number of months equal to the number of months of unused entitlement of the individual under MGIB as of the date of the election.
(ix) Additional educational and training availability. In addition to the educational benefits as described in paragraph (a)(2)(vi) of this section, individuals who were eligible for benefits under MGIB, MGIB-SR, or REAP, and elect to use benefits under the GI Bill, will be eligible to receive benefits for on-the-job training, apprenticeship training, correspondence courses, flight training, preparatory courses, and national exams at the benefit rate for MGIB, MGIB-S, or REAP, as approriate.
(x) Treatment of existing supplemental educational benefits (Kickers). Individuals eligible for kickers under either MGIB or MGIB-SR will remain eligible for such increased educational assistance. The payments shall be based upon the applicable monthly rate for the kickers. Payments shall be lump sum and made on a quarter, semester, or term basis as determined by the Secretary of Veterans Affairs.
(b) Supplemental educational assistance (“kickers”)—(1) Enlistment kickers. (i) The Secretaries of the Military Departments may offer an increase to the monthly amount of educational assistance otherwise payable to the individual under paragraph (1)(B) of section 3313(c) of title 38, U.S.C., or under paragraphs (2) through (7) of such section 3313(c) of title 38, U.S.C. (as applicable), for members who initially enlist in a regular component in a skill or specialty in which there is a critical shortage of personnel or for which it is difficult to recruit. These increases in the monthly amount are known as enlistment kickers.
(ii) The use of enlistment kickers should be based on the criticality of the skill and/or the length of enlistment commitment and may be offered in amounts from $150 per month to $950 per month in increments of $100. Reporting codes for enlistment kickers are listed in Appendix A to this part.
(2) Affiliation kickers. (i) The Secretaries of the Military Departments may offer an increase to the monthly amount of educational assistance otherwise payable to the individual under paragraph (1)(B) of section 3313(c) of title 38, U.S.C., or under paragraphs (2) through (7) of such section 3313(c) of title 38, U.S.C. (as applicable), to a member who is separating honorably from a regular component and who agrees to serve in the Selected Reserve in a skill, specialty, or unit in which there is a critical shortage of personnel or for which it is difficult to recruit and/or retain.
(ii) The use of affiliation kickers should be based on the criticality of the skill and/or unit and the length of Selected Reserve commitment, and may be offered in amounts from $150 per month to $950 per month in increments of $100. If an individual is already eligible for an enlistment kicker, the amount of the Affiliation Kicker is limited to the amount that would take the total to $950. For those individuals who are offered an Affiliation Kicker on top of an Enlistment Kicker, the increases will be in $100 increments. Reporting codes for Affiliation Kickers are the same as the codes for Enlistment Kickers listed in Appendix A to this part.
(3) Reenlistment kickers. (i) The Secretaries of the Military Departments may offer an increase to the monthly amount of educational assistance otherwise payable to the individual under paragraph (1)(B) of section 3313(c) of title 38, U.S.C., or under paragraphs (2) through (7) of such section 3313.(c) of title 38, U.S.C. (as applicable), to a member who, after completing the initial term of service, elects to remain on active duty for a period of at least 2 years.
(ii) The use of reenlistment kickers should be based on the criticality of the skill and may be offered in amounts from $100 per month to $300 per month in increments of $100, based on length of additional service. Reporting codes for reenlistment kickers are listed in appendix A to this part.
(4) Limitations. Since kickers are paid in conjunction with the monthly stipend paid under section (1)(B)(i) of section 3313(c) of title 38, U.S.C., members eligible for kickers should be aware of the limitations on payment.
(i) No payment will be provided for education pursued on half-time basis or less.
(ii) No payment will be provided for education/training pursued solely through distance learning.
(iii) No payment will be provided for use while serving on active duty.
(c) Transferability of unused education benefits to family members. Subject to the provisions of this section, the Secretaries of the Military Departments, to promote recruitment and retention of members of the Armed Forces, may permit an individual described in paragraph (c)(1) of this section, who is entitled to educational assistance under this Post-9/11 GI Bill to elect to transfer to one or more of the family members specified, all or a portion of such individual's entitlement to such assistance.
(1) Eligible individuals. Any member of the Armed Forces on or after August 1, 2009 who, at the time of the approval of the individual's request to transfer entitlement to educational assistance under this section, is eligible for the Post-9/11 GI Bill, and
(i) Has at least 6 years of service in the Armed Forces (active duty and/or Selected Reserve) on the date of election and agrees to serve 4 additional years in the Armed Forces from the date of election, or
(ii) Has at least 10 years of service in the Armed Forces (active duty and/or Selected Reserve) on the date of election and either standard policy (Service or DoD) or statute preclude the Service member from committing to 4 additional years and agrees to serve for the maximum amount of time allowed by such policy or statute, or
(iii) Is or becomes retirement eligible during the period from August 1, 2009, through August 1, 2013, and agrees to serve the additional period, if any, specified in paragraphs (c)(1)(iii)(A) through (c)(1)(iii)(E) of this section. A Service Member is considered to be retirement eligible if he or she has completed 20 years of active Federal service or 20 qualifying years as computed under section 12732 of title 10, U.S.C.
(A) For those individuals eligible for retirement on August 1, 2009, no additional service is required.
(B) For those individuals who have an approved retirement date after August 1, 2009, and before July 1, 2010, no additional service is required.
(C) For those individuals eligible for retirement after August 1, 2009, and before August 1, 2010, 1 year of additional service is required.
(D) For those individuals eligible for retirement on or after August 1, 2010 and before August 1, 2011, 2 years of additional service is required.
(E) For those individuals eligible for retirement on or after August 1, 2011, and before August 1, 2012, 3 years of additional service is required.
(2) Eligible family members. (i) An individual approved to transfer an entitlement to educational assistance under this section may transfer the individual's entitlement to:
(A) The individual's spouse.
(B) One or more of the individual's children.
(C) A combination of the individuals referred to in paragraphs (c)(2)(i)(A) and (c)(2)(i)(B) of this section.
(ii) A family member must be enrolled in the Defense Eligibility Enrollment Reporting System (DEERS) and be eligible for benefits, at the time of transfer to receive transferred educational benefits.
(iii) A child's subsequent marriage will not affect his or her eligibility to receive the educational benefit; however, after an individual has designated a child as a transferee under this section, the individual retains the right to revoke or modify the transfer at any time.
(iv) A subsequent divorce will not affect the transferee's eligibility to receive educational benefits; however, after an individual has designated a spouse as a transferee under this section, the eligible individual retains the right to revoke or modify the transfer at any time.
(3) Months of transfer. Months transferred must be in whole months. The Secretary of Defense may limit the months of entitlement that may be transferred to no less than 18 months. The number of months of benefits transferred by an individual under this section may not exceed the lesser of:
(i) The months of unused benefits available under the Post-9/11 GI Bill,
(ii) 36 months, or
(iii) the number of months specified by the Secretary of Defense.
(4) Transferee usage. Dependent use of transferred educational benefits is subject to the following:
(i) A spouse:
(A) May start to use the benefit only after the individual making the transfer has completed at least 6 years of service in the Armed Forces.
(B) May use the benefit while the member remains in the Armed Forces or after separation from active duty after completing the additional service required to transfer the educational assistance under the Post-9/11 GI Bill referred to in paragraph (c)(1) of this section.
(C) Is subject to the same 15-year limitation as the member as stipulated in paragraph (a)(4) of this section.
(ii) A child:
(A) May start to use the benefit only after the individual making the transfer has completed at least 10 years of service in the Armed Forces.
(B) May use the benefit while the member remains in the Armed Forces or after separation from active duty after completing the additional service required to transfer the educational assistance under the Post-9/11 GI Bill referred to in paragraph (c)(1) of this section.
(C) May not use the benefit until they have met the requirements of a secondary school diploma (or equivalency certificate), or reached 18 years of age.
(D) Is not subject to the time limitation in paragraph (a)(4) of this section, but may not use the benefit after reaching 26 years of age.
(5) Nature of transferred entitlement. The entitlement transferred will be available as follows:
(i) An eligible spouse:
(A) Is entitled to educational assistance under chapter 33 of title 38, U.S.C. in the same manner as the individual from whom the entitlement was transferred.
(B) Is not eligible for the monthly stipend or books and supplies stipend while the sponsor is serving on active duty.
(ii) An eligible child:
(A) Is entitled to educational assistance under chapter 33 of title 38, U.S.C, in the same manner as the individual from whom the entitlement was transferred as if the individual were not on active duty.
(B) Is entitled to the monthly stipend and books and supplies stipend even if the eligible individual is on active duty.
(6) Designation of transferee. An individual transferring an entitlement to educational assistance under this section shall, through notification to the Secretary of the Military Department concerned as specified in paragraph (c)(9) of this section:
(i) Designate the dependent or dependents to whom such entitlement is being transferred;
(ii) Designate the number of months of such entitlement to be transferred to each dependent; and
(iii) Specify the period for which the transfer shall be effective for each dependent.
(7) Time for transfer, revocation, and modification—(i) Time for transfer. An individual approved to transfer entitlement to educational assistance under this section may transfer such entitlement to the individual's dependent only while serving as a member of the Armed Forces.
(ii) Modification or revocation. (A) An individual transferring entitlement under this section may modify or revoke at any time the transfer of any unused portion of the entitlement so transferred.
(1) An individual may add new dependents, modify the number of months of the transferred entitlement for existing dependents, or revoke transfer of the entitlement while serving in the Armed Forces.
(2) An individual may not add dependents after retirement or separation from the Armed Forces, but may modify the number of months of the transferred entitlement for existing dependents or revoke transferred benefits after retirement or separation for those family members who had received transferred benefits prior to separation or retirement.
(B) The modification or revocation of the transfer of entitlement under this section shall be made by submitting notice of the action to both the Secretary of the Military Department concerned and the Secretary of Veterans Affairs. Additions, modifications or revocations made while in the Armed Forces will be made through the Transferability of Educational Benefits (TEB) Web site as described in paragraph (c)(9) of this section. Modifications or revocations after separation from the Armed Forces will be accomplished with the Department of Veterans Affairs.
(8) Additional administrative matters—(i) Use. The use of any entitlement to educational assistance transferred under this section shall be charged against the entitlement of the individual making the transfer at the rate of 1 month for each month of transferred entitlement that is used.
(ii) Death of transferor. The death of an individual transferring an entitlement under this section shall not affect the use of the entitlement by the dependent to whom the entitlement is transferred.
(iii) Scope of use by transferees. The purposes for which a dependent to whom entitlement is transferred under this section may use such entitlement shall include the pursuit and completion of the requirements of a secondary school diploma (or equivalency certificate).
(iv) Joint and several liability. In the event of an overpayment of educational assistance with respect to a dependent to whom entitlement is transferred under this section, the dependent and the individual making the transfer shall be jointly and severally liable to the United States for the amount of the overpayment for purposes of section 3685 of title 38, U.S.C.
(v) Failure to complete service agreement. (A) Except as provided in paragraph (c)(8)(v)(B) of this section, if an individual transferring entitlement under this section fails to complete the service agreed to by the individual under paragraph (c)(1) of this section in accordance with the terms of the agreement of the individual under that section, the amount of any transferred entitlement under this section that is used by a dependent of the individual as of the date of such failure shall be treated as an overpayment of educational assistance (see paragraph (c)(8)(iv) of this section) and will be subject to collection by DVA.
(B) Paragraph (c)(8)(v)(A) of this section shall not apply in the case of an individual who fails to complete service agreed to by the individual due to:
(1) The death of the individual,
(2) Discharge or release from active duty for a medical condition which pre-existed the service of the individual and was not service connected,
(3) Discharge or release from active duty for hardship as determined by the Secretary of the Military Department concerned,
(4) Discharge or release from active duty for a physical or mental condition not a disability and that did not result from the individual's own willful misconduct, but did interfere with the performance of duty.
(9) Procedures. All requests and transactions for individuals who remain in the Armed Forces will be completed through the Transferability of Educational Benefits (TEB) Web application at https://www.dmdc.osd.mil/TEB/. The TEB Users Manual will provide instruction for enrollment; verification; and additions, changes, and revocations. Modifications or revocations after separation from the Armed Forces will be accomplished with the Department of Veterans Affairs.
(10) Regulations. The Secretaries of the Military Departments concerned shall prescribe regulations for the purposes of administering the transferability of unused education entitlements to family members in accordance with this part. Such regulations shall specify:
(i) The manner of verifying and documenting the additional service commitment, if any, under paragraph (c)(1) of this section, to be authorized to transfer education benefits.
(ii) The manner of determining eligibility to be authorized to transfer entitlements as allowed in paragraph (c)(1)(i), (c)(1)(ii) or (c)(1)(iii) of this section.
§ 65.7
Eligibility.
The DVA is responsible for determining eligibility for education benefits under the GI Bill. Generally, to be eligible for the GI Bill, individuals must serve on active duty after September 10, 2001, for at least 30 continuous days with a discharge due to a service-connected disability; or an aggregate period ranging from 90 days to 36 months or more. Benefits under the GI Bill are based on a percentage, as determined by a Service Member's length of active duty service, as shown in the following table:
Table to § 65.7—Maximum Benefits Payable
Member serves | Percentage of maximum benefit payable
At least 36 months | 100
At least 30 continuous days on active duty and discharged due to service-connected disability | 100
At least 30 months, but less than 36 months | 90
At least 24 months, but less than 30 months | 80
At least 18 months, but less than 24 months* | 70
At least 12 months, but less than 18 months* | 60
At least 6 months, but less than 12 months* | 50
At least 90 days, but less than 6 months* | 40
If aggregate service is less than 24 months, initial entry training does not count as qualifying active duty.
§ 65.8
Reporting requirements.
The reporting requirements in this part have been assigned Report Control Symbols DD-P&R(AR)1221, DD-P&R(Q)2077, DD-RA(M)1147, DD-RA(D)1148, DD-RA(D)2170, DD-RA(M)2171, DD-RA(D)2302, and DD-RA(M)2303 in accordance with the requirements of DoD 8910.1-M (Available at http://www.dtic.mil/whs/directives/corres/pdf/891001m.pdf).
Pt. 65, App. A

Appendix A to 32 CFR Part 65—Additional Reporting Requirements
Table 1—Data Elements From DoD Instruction 1336.5 and DoD Instruction 7730.54 Relevant to This Part
Field | Data element name | Description | References
947-954 | d. Initial Entry Training End Calendar Date | The date a member completed initial entry training, including skill training. Format: YYYYMMDD. If not applicable or unknown, report all zeros
293 | b. Commissioned Officer Accession Program Source Code | The code that represents the accession program by which a member first obtained commissioned officer, other than commissioned warrant officer, status (also known as Source of Initial Commission.) Applicable only to commissioned officers, other than commissioned warrant officers. If not applicable or unknown, report Z G ROTC scholarship program under section 2107(b) of title 10, U.S.C R ROTC scholarship program under section 2107a of title 10, U.S.C | See DoD Instruction 1336.5 for additional data elements.
955-971 | Active Duty Loan Repayment Incentive Program |
955-962 | a. Active Duty Loan Repayment Incentive Program Eligibility Effective Date | The beginning date of a Service member's commitment based on eligibility for an educational incentive under the Active Duty Loan Repayment Incentive Program Format: YYYYMMDD. If not applicable or unknown, report all zeroes
963 | b. Active Duty Loan Repayment Incentive Program Educational Type Code | The type of active duty educational incentive for a Service member, who is appointed, enlists, reenlists, affiliates, or extends in an Active Duty Loan Repayment Incentive Program. If not applicable or unknown, report Z A = Educational loan repayment assistance. | Chapter 109 of title 10, U.S.C.
964-971 | c. Active Duty Loan Repayment Incentive Program Eligibility Completion Date | The completion date of a Service member's commitment based on eligibility for an educational incentive under the Active Duty Loan Repayment Incentive Program. Format: YYYYMMDD. If not applicable or unknown, report all zeroes
| 972-975 | GI Bill Incentive Program.
972-973 | a. GI Bill Incentive Kicker Rate Code | The code that represents the monetary level of a GI Bill kicker incentive for which a member is entitled upon enlistment or affiliation. If not applicable or unknown, report ZZ | See Table 4 for a list of values.
974-975 | b. GI Bill Reenlistment Incentive Kicker Rate Code | The code that represents the monetary level of a GI Bill reenlistment kicker incentive for which a member is entitled. If not applicable or unknown, report ZZ | See Table 5 for a list of values.
Table 2—Enlistment and Affiliation Kicker Codes*
Code | Rate | Other Information
D2 | $150 | Effective 1 August 2009. Requires a 2-year active duty service agreement.
D3 | 150 | Effective 1 August 2009. Requires a 3-year active duty service agreement.
D4 | 150 | Effective 1 August 2009. Requires a 4-year active duty service agreement.
D5 | 150 | Effective 1 August 2009. Requires a 5-year active duty service agreement.
D6 | 150 | Effective 1 August 2009. Requires a 6-year active duty service agreement.
D9 | 150 | Effective 1 August 2009. Requires a 4-year service agreement: 2 years on active duty plus 2 years in the Selected Reserve.
E2 | 250 | Effective 1 August 2009. Requires a 2-year active duty service agreement.
E3 | 250 | Effective 1 August 2009. Requires a 3-year active duty service agreement.
E4 | 250 | Effective 1 August 2009. Requires a 4-year active duty service agreement.
E5 | 250 | Effective 1 August 2009. Requires a 5-year active duty service agreement.
E6 | 250 | Effective 1 August 2009. Requires a 6-year active duty service agreement.
E9 | 250 | Effective 1 August 2009. Requires a 4-year service agreement: 2 years on active duty plus 2 years in the Selected Reserve.
F2 | 350 | Effective 1 August 2009. Requires a 2-year active duty service agreement.
F3 | 350 | Effective 1 August 2009. Requires a 3-year active duty service agreement.
F4 | 350 | Effective 1 August 2009. Requires a 4-year active duty service agreement.
F5 | 350 | Effective 1 August 2009. Requires a 5-year active duty service agreement.
F6 | 350 | Effective 1 August 2009. Requires a 6-year active duty service agreement.
F9 | 350 | Effective 1 August 2009. Requires a 4-year service agreement: 2 years on active duty plus 2 years in the Selected Reserve.
G2 | 450 | Effective 1 August 2009. Requires a 2-year active duty service agreement.
G3 | 450 | Effective 1 August 2009. Requires a 3-year active duty service agreement.
G4 | 450 | Effective 1 August 2009. Requires a 4-year active duty service agreement.
G5 | 450 | Effective 1 August 2009. Requires a 5-year active duty service agreement.
G6 | 450 | Effective 1 August 2009. Requires a 6-year active duty service agreement.
G9 | 450 | Effective 1 August 2009. Requires a 4-year service agreement: 2 years on active duty plus 2 years in the Selected Reserve.
H2 | 550 | Effective 1 August 2009. Requires a 2-year active duty service agreement.
H3 | 550 | Effective 1 August 2009. Requires a 3-year active duty service agreement.
H4 | 550 | Effective 1 August 2009. Requires a 4-year active duty service agreement.
H5 | 550 | Effective 1 August 2009. Requires a 5-year active duty service agreement.
H6 | 550 | Effective 1 August 2009. Requires a 6-year active duty service agreement.
H9 | 550 | Effective 1 August 2009. Requires a 4-year service agreement: 2 years on active duty plus 2 years in the Selected Reserve.
J2 | 650 | Effective 1 August 2009. Requires a 2-year active duty service agreement.
J3 | 650 | Effective 1 August 2009. Requires a 3-year active duty service agreement.
J4 | 650 | Effective 1 August 2009. Requires a 4-year active duty service agreement.
J5 | 650 | Effective 1 August 2009. Requires a 5-year active duty service agreement.
J6 | 650 | Effective 1 August 2009. Requires a 6-year active duty service agreement.
J9 | 650 | Effective 1 August 2009. Requires a 4-year service agreement: 2 years on active duty plus 2 years in the Selected Reserve.
K2 | 750 | Effective 1 August 2009. Requires a 2-year active duty service agreement.
K3 | 750 | Effective 1 August 2009. Requires a 3-year active duty service agreement.
K4 | 750 | Effective 1 August 2009. Requires a 4-year active duty service agreement.
K5 | 750 | Effective 1 August 2009. Requires a 5-year active duty service agreement.
K6 | 750 | Effective 1 August 2009. Requires a 6-year active duty service agreement.
K9 | 750 | Effective 1 August 2009. Requires a 4-year service agreement: 2 years on active duty plus 2 years in the Selected Reserve.
L2 | 850 | Effective 1 August 2009. Requires a 2-year active duty service agreement.
L3 | 850 | Effective 1 August 2009. Requires a 3-year active duty service agreement.
L4 | 850 | Effective 1 August 2009. Requires a 4-year active duty service agreement.
L5 | 850 | Effective 1 August 2009. Requires a 5-year active duty service agreement.
L6 | 850 | Effective 1 August 2009. Requires a 6-year active duty service agreement.
L9 | 850 | Effective 1 August 2009. Requires a 4-year service agreement: 2 years on active duty plus 2 years in the Selected Reserve.
M2 | 950 | Effective 1 August 2009. Requires a 2-year active duty service agreement.
| M3 | 950 | Effective 1 August 2009. Requires a 3-year active duty service agreement.
M4 | 950 | Effective 1 August 2009. Requires a 4-year active duty service agreement.
M5 | 950 | Effective 1 August 2009. Requires a 5-year active duty service agreement.
M6 | 950 | Effective 1 August 2009. Requires a 6-year active duty service agreement.
M9 | 950 | Effective 1 August 2009. Requires a 4-year service agreement: 2 years on active duty plus 2 years in the Selected Reserve.
* This will be the same coding structure for DoD Instruction 7730.54, “Reserve Components Common Personnel Data System (RCCPDS).”
Table 3—Reenlistment Kicker Codes*
Code | Rate | Other Information
N2 | $100 | Effective 1 August 2009. Requires a 2-year active duty service agreement.
N3 | 200 | Effective 1 August 2009. Requires a 3-year active duty service agreement.
N4 | 300 | Effective 1 August 2009. Requires a 4-year active duty service agreement.
* This will be the same coding structure for DoD Instruction 7730.54, “Reserve Components Common Personnel Data System (RCCPDS).”
Pt. 67

PART 67—EDUCATIONAL REQUIREMENTS FOR APPOINTMENT OF RESERVE COMPONENT OFFICERS TO A GRADE ABOVE FIRST LIEUTENANT OR LIEUTENANT (JUNIOR GRADE)
Sec.
67.1
Purpose.
67.2
Applicability.
67.3
Definitions.
67.4
Policy.
67.5
Responsibilities.
67.6
Procedures.

Authority:
10 U.S.C. 12205.

Source:
62 FR 55517, Oct. 27, 1997, unless otherwise noted.
§ 67.1
Purpose.
This part provides guidance for implementing policy, assigns responsibilities, and prescribes under 10 U.S.C. 12205 for identifying criteria for determining educational institutions that award baccalaureate degrees which satisfy the educational requirement for appointment of officers to a grade above First Lieutenant in the Army Reserve, Air Force Reserve, and Marine Corps Reserve, or Lieutenant (Junior Grade) in the Naval Reserve, or for officers to be federally recognized in a grade level above First Lieutenant as a member of the Army National Guard or Air National Guard.
§ 67.2
Applicability.
This part applies to the Office of the Secretary of Defense, and the Military Departments; the Chairman of the Joint Chiefs or Staff; and the Defense Agencies referred to collectively in this part as the “DoD Components”). The term “Military Departments,” as used in this part, refers to the Departments of the Army, the Navy, and the Air Force. The term “Secretary concerned” refers to the Secretaries of the Military Departments. The term “Military Services” refers to the Army, the Navy, the Air Force, the Marine Corps. The term “Reserve components” refers to the Army Reserve, Army National Guard of the United States, Air Force Reserve, Air National Guard of the United States, Naval Reserve, Marine Corps Reserve.
§ 67.3
Definitions.
Accredited educational institution. An educational institution accredited by an agency recognized by the Secretary of Education.
Qualifying educational institution. An educational institution that is accredited, or an unaccredited educational institution that the Secretary of Defense designates pursuant to § 67.6(a) and § 67.6(b).
Unaccredited educational institution. An educational institution not accredited by an agency recognized by the Secretary of Education.
§ 67.4
Policy
(a) It is DoD policy under 10 U.S.C. 12205 to require Reserve component officers to have at least a baccalaureate degree from a qualifying educational institution before appointment to a grade above First Lieutenant in the Army Reserve, Air Force Reserve or Marine Corps Reserve, or Lieutenant (Junior Grade) in the Naval Reserve, or for officers to be federally recognized in a grade above First Lieutenant as a member of the Army National Guard or Air National Guard.
(b) Exempt from this policy is any officer who was:
(1) Appointed to or recognized in a higher grade for service in a health profession for which a baccalaureate degree is not a condition of original appointment or assignment.
(2) Appointed in the Naval Reserve or Marine Corps Reserve as a limited duty officer.
(3) Appointed in the Naval Reserve for service under the Naval Aviation Cadet (NAVCAD) program or the Seaman to Admiral program.
(4) Appointed to or recognized in a higher grade if appointed to, or federally recognized in, the grade of captain or, in the case of the Navy, lieutenant before October 1, 1995.
(5) Recognized in the grade of captain or major in the Alaska Army National Guard, who resides permanently at a location in Alaska that is more than 50 miles from each of the cities of Anchorage, Fairbanks, and Juneau, Alaska, by paved road, and who is serving in a Scout unit or a Scout support unit.
(c) The Department of Defense will designate an unaccredited educational institution as a qualifying educational institution for the purpose of meeting this educational requirement if that institution meets the criteria established in this part.
§ 67.5
Responsibilities.
(a) The Assistant Secretary of Defense for Reserve Affairs, under the Under Secretary of Defense for Personnel and Readiness, shall:
(1) Establish procedures by which an unaccredited educational institution can apply for DoD designation as a qualifying educational institution.
(2) Publish in the Federal Register DoD requirements and procedures for an unaccredited educational institution to apply for designation as a qualifying education institution.
(3) Annually, provide to the Secretaries of the Military Departments a list of those unaccredited educational institutions that have been approved by the Department of Defense as a qualifying educational institution. This list shall include the year or years for which unaccredited educational institutions are designed as qualifying educational institutions.
(b) The Secretaries of the Military Departments shall establish procedures to ensure that after September 30, 1995, those Reserve component officers selected for appointment to a grade above First Lieutenant in the Army Reserve, Air Force Reserve, or Marine Corps Reserve, or Lieutenant (Junior Grade) in the Naval Reserve, or for officers to be federally recognized in a grade above First Lieutenant as a member of the Army National Guard or Air National Guard, who are required to hold a baccalaureate degree, were awarded a baccalaureate degree from a qualifying educational institution before appointment to the next higher grade. For a degree from an unaccredited educational institution that has been recognized as qualifying educational institution by the Department of Defense to satisfy the educational requirements of 10 U.S.C. 12205, the degree must not have been awarded more than 8 years before the date the officer is to be appointed, or federally recognized, in the grade of Captain in the Army Reserve, Army National Guard, Air Force Reserve, Air National Guard, or Marine Corps Reserve, or in the grade of Lieutenant in the Naval Reserve.
§ 67.6
Procedures.
(a) An unaccredited educational institution may obtain designation as a qualifying educational institution for a specific Reserve component officer who graduated from that educational institution by providing certification from registrars at three accredited educational institutions that maintain ROTC programs that their educational institutions would accept at least 90 percent of the credit hours earned by that officer at the unaccredited educational institution, as of the year of graduation.
(b) For an unaccredited educational institution to be designated as a qualifying educational institution for a specific year, that educational institution must provide the Office of the Assistant Secretary of Defense for Reserve Affairs certification from the registrars at three different accredited educational institutions that maintain ROTC programs listing the major field(s) of study in which that educational institution would accept at least 90 percent of the credit hours earned by a student who was awarded a baccalaureate degree in that major field of study at the unaccredited educational institution.
(c) For an unaccredited educational institution to be considered for designation as a qualifying educational institution, the unaccredited educational institution must submit the required documentation no later than January 1 of the year for which the unaccredited educational institution seeks to be designated a qualifying educational institution.
(d) The required documentation must be sent to the following address: Office of the Assistant Secretary of Defense for Reserve Affairs, Attn: DASD (M&P), 1500 Defense Pentagon, Washington, DC 20301-1500.
(e) Applications containing the required documentation may also be submitted at any time from unaccredited educational institutions requesting designation as a qualifying educational institution for prior school years.
Pt. 69

PART 69—SCHOOL BOARDS FOR DEPARTMENT OF DEFENSE DOMESTIC DEPENDENT ELEMENTARY AND SECONDARY SCHOOLS
Sec.
69.1
Purpose.
69.2
Applicability and scope.
69.3
Definitions.
69.4
Policy.
69.5
Responsibilities.
69.6
Procedures.

Authority:
10 U.S.C. 2164.

Source:
61 FR 60563, Nov. 29, 1996, unless otherwise noted.
§ 69.1
Purpose.
This part prescribes policies and procedures for the establishment and operation of elected School Boards for schools operated by the Department of Defense (DoD) under 10 U.S.C. 2164, 32 CFR part 345, and Public Law 92-463.
§ 69.2
Applicability and scope.
This part applies to:
(a) The Office of the Secretary of Defense (OSD), the Military Departments, the Coast Guard when operating as a service of the Department of the Navy or by agreement between DoD and the Department of Transportation, the Chairman of the Joint Chiefs of Staff, the Unified and Specified Combatant Commands, the Inspector General of the Department of Defense, the Uniformed Services University of the Health Sciences, the Defense Agencies, and the DoD Field Activities.
(b) The schools (prekindergarten through grade 12) operated by the DoD under 10 U.S.C. 2164 and 32 CFR part 345 within the continental United States, Alaska, Hawaii, Puerto Rico, Wake Island, Guam, American Samoa, the Northern Mariana Islands, and the Virgin Islands, known as DoD DDESS Arrangements.
(c) This part does not apply to elected school boards established under state or local law for DoD DDESS special arrangements.
§ 69.3
Definitions.
(a) Arrangements. Actions taken by the Secretary of Defense to provide a free public education to dependent children under 10 U.S.C. 2164 through DoD DDESS arrangements or DoD DDESS special arrangements:
(1) DDESS arrangement. A school operated by the Department of Defense under 10 U.S.C. 2164 and 32 CFR 345 to provide a free public education for eligible children.
(2) DDESS special arrangement. An agreement, under 10 U.S.C. 2164, between the Secretary of Defense, or designee, and a local public education agency whereby a school or a school system operated by the local public education agency provides educational services to eligible dependent children of U.S. military personnel and federally employed civilian personnel. Arrangements result in partial or total Federal funding to the local public education agency for the educational services provided.
(b) Parent. The biological father or mother of a child when parental rights have not been legally terminated; a person who, by order of a court of competent jurisdiction, has been declared the father or mother of a child by adoption; the legal guardian of a child; or a person in whose household a child resides, provided that such person stands in loco parentis to that child and contributes at least one-half of the child's support.
§ 69.4
Policy.
(a) Each DoD DDESS arrangement shall have an elected school board, established and operated in accordance with this part and other pertinent guidance.
(b) Because members of DoD DDESS elected school boards are not officers or employees of the United States appointed under the Appointments Clause of the United States Constitution (Art. II, Sec. 2, Cl. 2), they may not exercise discretionary governmental authority, such as the taking of personnel actions or the establishment of governmental policies. This part clarifies the role of school boards in the development and oversight of fiscal, personnel, and educational policies, procedures, and programs for DoD DDESS arrangements, subject to these constitutional limitations.
(c) The DoD DDESS chain of command for matters relating to school arrangements operated under 10 U.S.C. 2164 and 32 CFR part 345 shall be from the Director, DoD DDESS, to the Superintendent of each school arrangement. The Superintendent will inform the school board of all matters affecting the operation of the local school arrangement. Direct liaison among the school board, the Director, and the Superintendent is authorized for all matters pertaining to the local school arrangement.
§ 69.5
Responsibilities.
The Assistant Secretary of Defense for Force Management Policy (ASD (FMP)), under the Under Secretary of Defense for Personnel and Readiness, shall:
(a) Make the final decision on all formal appeals to directives and other guidance submitted by the school board or Superintendent.
(b) Ensure the Director, DoD DDESS shall:
(1) Ensure the establishment of elected school boards in DoD DDESS arrangements.
(2) Monitor compliance by the Superintendent and school boards with applicable statutory and regulatory requirements, and this part. In the event of suspected noncompliance, the Director, DoD DDESS, shall take appropriate action, which will include notification of the Superintendent and the school board president of the affected DoD DDESS arrangement.
(3) Determine when the actions of a school board conflict with an applicable statute, regulation, or other guidance or when there is a conflict in the views of the school board and the Superintendent. When such conflicts occur, the Director, DoD DDESS, shall assist the Superintendent and the school board in resolving them or direct that such actions be discontinued. Such disapprovals must be in writing to the school board and the Superintendent concerned and shall state the specific supporting reason or reasons.
(c) Ensure the school board for DoD DDESS arrangements shall:
(1) Participate in the development and oversight of fiscal, personnel, and educational policies, procedures, and programs for the DoD DDESS arrangement concerned, consistent with this part.
(2) Approve agendas and prepare minutes for school board meetings. A copy of the approved minutes of school board meetings shall be forwarded to the Director, DoD DDESS, within 10 working days after the date the minutes are approved.
(3) Provide to the Director, DoD DDESS, names of applicants for a vacancy in the Superintendent's position after a recruitment has been accomplished. The school board shall submit to the Director, DoD DDESS, a list of all applicants based on its review of the applications and interviews (either in person or telephonically) of the applicants. The list of applicants will be accompanied by the recommended choice of the school board. The Director will select the Superintendent and will submit written notice with justification to the school board if the recommendation of the school board is not followed.
(4) Prepare an annual written on-site review of the Superintendent's performance for consideration by the Director, DoD DDESS. The written review shall be based on critical elements recommended by the school board and Superintendent and approved by the Director, DoD DDESS. The school board's review will be an official attachment to the Superintendent's appraisal.
(5) Participate in the development of the school system's budget for submission to the Director, DoD DDESS, for his or her approval as endorsed by the school board; and participate in the oversight of the approved budget, in conjunction with the Superintendent, as appropriate for operation of the school arrangement.
(6) Invite the Superintendent or designee to attend all school board meetings.
(7) Provide counsel to the Superintendent on the operation of the school and the implementation of the approved budget.
(8) Channel communications with school employees to the DoD DDESS Superintendent. Refer all applications, complaints, and other communications, oral or written, to the DoD DDESS Arrangement Superintendents.
(9) Participate in the development of school policies, rules, and regulations, in conjunction with the Superintendent, and recommend which policies shall be reflected in the School Policy Manual. At a minimum, the Policy Manual, which shall be issued by the Superintendent, shall include following:
(i) A statement of the school philosophy.
(ii) The role and responsibilities of school administrative and educational personnel.
(iii) Provisions for promulgation of an annual school calendar.
(iv) Provisions on instructional services, including policies for development and adoption of curriculum and textbooks.
(v) Regulations affecting students, including attendance, grading, promotion, retention, and graduation criteria, and the student code of rights, responsibilities, and conduct.
(vi) School policy on community relations and noninstructional services, including maintenance and custodial services, food services, and student transportation.
(vii) School policy and legal limits on financial operations, including accounting, disbursing, contracting, and procurement; personnel operations, including conditions of employment, and labor management regulations; and the processing of, and response to, complaints.
(viii) Procedures providing for new school board member orientation.
(ix) Any other matters determined by the school board and the superintendent to be necessary.
(10) Under 10 U.S.C. 2164(b)(4)(B), prepare and submit formal appeals to directives and other guidance that in the view of the school board adversely impact the operation of the school system either through the operation and management of DoD DDESS or a specific DoD DDESS arrangement. Written formal appeals with justification and supporting documentation shall be submitted by the school board or Superintendent to ASD(FMP). The ASD(FMP) shall make the final decision on all formal appeals. The Director, Dod DDESS, will provide the appealing body written review of the findings relating to the merits of the appeal. Formal appeals will be handled expeditiously by all parties to minimize any adverse impact on the operation of the DoD DDESS system.
(d) Ensure school board operating procedures are as follows:
(1) The school board shall operate from a written agenda at all meetings. Matters not placed on the agenda before the start of the meeting, but approved by a majority of the school board present, may be considered at the ongoing meeting and added to the agenda at that time.
(2) A majority of the total number of school board members authorized shall constitute a quorum.
(3) School board meetings shall be conducted a minimum of 9 times a year. The school board President or designee will provide school board members timely notice of all meetings. All regularly scheduled school board meetings will be open to the public. Executive session meetings may be closed under 10 U.S.C. 2164(d)(6).
(4) The school board shall not be bound in any way by any action or statement of an individual member or group of members of the board except when such action or statement is approved by a majority of the school board members during a school board meeting.
(5) School board members are eligible for reimbursement for official travel in accordance with the DoD Joint Travel Regulations and guidance issued by the Director, DoD DDESS.
(6) School board members may be removed by the ASD (FMP) for dereliction of duty, malfeasance, or other grounds for cause shown. The school board concerned may recommend such removal with a two-thirds majority vote. Before a member may be removed, the member shall be afforded due process, to include written notification of the basis for the action, review of the evidence or documentation considered by the school board, and an opportunity to respond to the allegations.
§ 69.6
Procedures.
(a) Composition of school board. (1) The school board shall recommend to the Director, DoD DDESS, the number of elected school board voting members, which shall be not fewer than 3 and no more than 9, depending upon local needs. The members of the school board shall select by majority vote of the total number of school board members authorized at the beginning of each official school board term, one member to act as President and another to act as Vice President. The President and Vice President shall each serve for 1 year. The President shall preside over school board meetings and provide leadership for related activities and functions. The Vice President shall serve in the absence of the President. If the position of President is vacated for any reason, the Vice President shall be the President until the next regularly scheduled school board election. The resulting vacancy in the position of the Vice President shall be filled by the majority vote of all members of the incumbent board.
(2) The DoD DDESS Arrangement Superintendent, or designee, shall serve as a non-voting observer to all school board meetings. The Installation Commander, or designee, shall convey command concerns to the school board and the Superintendent and keep the school board and the Superintendent informed of changes and other matters within the host installation that affect school expenditures or operations.
(3) School board members may not receive compensation for their service on the school board.
(4) Members of the school board may not have any financial interest in any company or organization doing business with the school system. Waivers to this restriction may be granted on a case-by-case basis by the Director, DoD DDESS, in coordination with the Office of General Counsel of the Department of Defense.
(b) Electorate of the school board. The electorate for each school board seat shall be composed of parents of the students attending the school. Each member of the electorate shall have one vote.
(c) Election of school board members. (1) To be elected as a member of the school board, an individual must be a resident of the military installation in which the DoD DDESS arrangement is located, or in the case of candidates for the Antilles Consolidated School System School Board, be the parent of an eligible child currently enrolled in the school system. Personnel employed by a DoD DDESS arrangement may not serve as school board members.
(2) The board shall determine the term of office for elected members, not to exceed 3 years, and the limit on the number of terms, if any. If the board fails to set these terms by the first day of the first full month of the school year, the terms will be set at 3 years, with a maximum of 2 consecutive terms.
(3) When there is a sufficient number of school board vacancies that result in not having a quorum, which is defined as a majority of seats authorized, a special election shall be called by the DoD DDESS Arrangement Superintendent or designee. A special election is an election that is held between the regularly scheduled annual school board election. The nomination and election procedures for a special election shall be the same as those of regularly scheduled school board elections. Individuals elected by special election shall serve until the next regularly scheduled school board election. Vacancies may occur due to the resignation, death, removal for cause, transfer, or disenrollment of a school board member's child(ren) from the DoD DDESS arrangement.
(4) The board shall determine a schedule for regular elections. Parents shall have adequate notice of the time and place of the election. The election shall be by secret ballot. All votes must be cast in person at the time and place of the election. The candidate(s) receiving the greatest number of votes shall be elected as school board member(s).
(5) Each candidate for school board membership must be nominated in writing by at least one member of the electorate to be represented by the candidate. Votes may be cast at the time of election for write-in candidates who have not filed a nomination petition if the write-in candidates otherwise are qualified to serve in the positions sought.
(6) The election process shall provide staggered terms for board members; e.g., on the last day of the last month of each year, the term for some board members will expire.
(7) The DoD DDESS Superintendent, in consultation with the school board, shall be responsible for developing the plans for nominating school board members and conducting the school board election and the special election process. The DoD DDESS Superintendent shall announce election results within 7 working days of the election.
Pt. 70

PART 70—DISCHARGE REVIEW BOARD (DRB) PROCEDURES AND STANDARDS
Sec.
70.1
Reissuance and purpose.
70.2
Applicability.
70.3
Definitions.
70.4
Responsibilities.
70.5
Procedures.
70.6
Information requirements.
70.7
Effective date and implementation.
70.8
Discharge review procedures.
70.9
Discharge review standards.
70.10
Complaints concerning decisional documents and index entries.
70.11
DoD semiannual report.

Authority:
10 U.S.C. 1553 and 38 U.S.C. 101 and 3103, as amended.

Source:
47 FR 37785, Aug. 26, 1982, unless otherwise noted.
§ 70.1
Reissuance and purpose.
This part is reissued and:
(a) Establishes uniform policies, procedures, and standards for the review of discharges or dismissals under 10 U.S.C. 1553.
(b) Provides guidelines for discharge review by application or on motion of a DRB, and the conduct of discharge reviews and standards to be applied in such reviews which are designed to ensure historically consistent uniformity in execution of this function, as required under Pub. L. 95-126.
(c) Assigns responsibility for administering the program.
(d) Makes provisions for public inspection, copying, and distribution of DRB documents through the Armed Forces Discharge Review/Correction Board Reading Room.
(e) Establishes procedures for the preparation of decisional documents and index entries.
(f) Provides guidance for processing complaints concerning decisional documents and index entries.
§ 70.2
Applicability.
The provisions of this part 70 apply to the Office of the Secretary of Defense (OSD) and the Military Departments. The terms, “Military Services,” and “Armed Forces,” as used herein, refer to the Army, Navy, Air Force and Marine Corps.
§ 70.3
Definitions.
(a) Applicant. A former member of the Armed Forces who has been discharged or dismissed administratively in accordance with Military Department regulations or by sentence of a court-martial (other than a general court-martial) and under statutory regulatory provisions whose application is accepted by the DRB concerned or whose case is heard on the DRB's own motion. If the former member is deceased or incompetent, the term “applicant” includes the surviving spouse, next-of-kin, or legal representative who is acting on behalf of the former member. When the term “applicant” is used in §§ 70.8 through 70.10, it includes the applicant's counsel or representative, except that the counsel or representative may not submit an application for review, waive the applicant's right to be present at a hearing, or terminate a review without providing the DRB an appropriate power of attorney or other written consent of the applicant.
(b) Complainant. A former member of the Armed Forces (or the former member's counsel) who submits a complaint under § 70.10 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 § 70.10 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.
(c) Counsel or Representative. An individual or agency designated by the applicant who agrees to represent the applicant in a case before the DRB. It includes, but is not limited to: a lawyer who is a member of the bar of a Federal court or of the highest court of a State; an accredited representative designated by an organization recognized by the Administrator of Veterans Affairs; a representative from a State agency concerned with veterans affairs; and representatives from private organizations or local government agencies.
(d) Discharge. A general term used in this Directive that includes dismissal and separation or release from active or inactive military status, and actions that accomplish a complete severance of all military status. This term also includes the assignment of a reason for such discharge and characterization of service (32 CFR part 41).
(e) Discharge Review. The process by which the reason for separation, the procedures followed in accomplishing separation, and the characterization of service are evaluated. This includes determinations made under the provisions of 38 U.S.C. 3103(e)(2).
(f) Discharge Review Board (DRB). An administrative board constituted by the Secretary of the Military Department concerned and vested with discretionary authority to review discharges and dismissals under the provisions of 10 U.S.C. 1553. It may be configured as one main element or two or more elements as designated by the Secretary concerned.
(g) DRB Panel. An element of a DRB, consisting of five members, authorized by the Secretary concerned to review discharges and dismissals.
(h) DRB Traveling or Regional Panel. A DRB panel that conducts discharge reviews in a location outside the National Capital Region (NCR).
(i) Hearing. A review involving an appearance before the DRB by the applicant or on the applicant's behalf by a counsel or representative.
(j) Hearing Examination. The process by which a designated officer of a DRB prepares a presentation for consideration by a DRB in accordance with regulations prescribed by the Secretary concerned.
(k) 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.
(l) President, DRB. A person designated by the Secretary concerned and responsible for the supervision of the discharge review function and other duties as assigned.
§ 70.4
Responsibilities.
(a) The Secretaries of the Military Departments have the authority for final decision and the responsibility for the operation for their respective discharge review programs under 10 U.S.C. 1553.
(b) The Assistant Secretary of Defense (Manpower, Reserve Affairs, and Logistics) (ASD(MRA&L)) shall:
(1) Resolve all issues concerning DRBs that cannot be resolved among the Military Departments.
(2) Ensure uniformity among the Military Departments in the rights afforded applicants in discharge reviews.
(3) Modify or supplement the enclosures to this part.
(4) Maintain the index of decisions and provide for timely modification of index categories to reflect changes in discharge review policies, procedures, and standards issued by the OSD and the Military Departments.
(c) The Secretary of the Army, as the designated administrative focal point for DRB matters, shall:
(1) Effect necessary coordination with other governmental agencies regarding continuing applicability of this part and resolve administrative procedures relating thereto.
(2) Review suggested modifications to this part, including implementing documents; monitor the implementing documents of the Military Departments; resolve differences, when practicable; recommend specific changes; provide supporting rationale to the ASD(MRA&L) for decision; and include appropriate documentation through the Office of the ASD(MRA&L) and the OSD Federal Register liaison officer to effect publication in the Federal Register.
(3) Maintain the DD Form 293, “Application for Review of Discharge or Separation from the Armed Forces of the United States,” and republish as necessary with appropriate coordination of the other Military Departments and the Office of Management and Budget.
(4) Respond to all inquiries from private individuals, organizations, or public officials with regard to DRB matters. When the specific Military Service can be identified, refer such correspondence to the appropriate DRB for response or designate an appropriate activity to perform this task.
(5) Provide overall guidance and supervision to the Armed Forces Discharge Review/Correction Board Reading Room with staff augmentation, as required, by the Departments of the Navy and Air Force.
(6) Ensure that notice of the location, hours of operation, and similar types of information regarding the Reading Room is published in the Federal Register.
§ 70.5
Procedures.
(a) Discharge review procedures are prescribed in § 70.8.
(b) Discharge Review Standards are prescribed in § 70.9 and constitute the basic guidelines for the determination whether to grant or deny relief in a discharge review.
(c) Complaint Procedures about decisional documents are prescribed in § 70.10.
§ 70.6
Information requirements.
(a) Reporting requirements. (1) The reporting requirement prescribed in § 70.8(n) is assigned Report Control Symbol DD-M(SA)1489.
(2) All reports must be consistent with DoD Directive 5000.11, “Data Elements and Data Codes Standardization Program,” December 7, 1964.
(b) Use of standard data elements. The data requirements prescribed by this part shall be consistent with DoD 5000.12-M, “DoD Manual for Standard Data Elements,” December 1981. Any reference to a date should appear as (YYMMDD), while any name entry should appear as (Last name, first name, middle initial).
§ 70.7
Effective date and implementation.
This part is effective immediately for the purpose of preparing implementing documents. DoD Directive 1332.28, March 29, 1978, is officially canceled, effective November 27, 1982. This part applies to all discharge review proceedings conducted on or after November 27, 1982. § 70.10 applies to all complaint proceedings conducted on or after September 28, 1982. Final action on complaints shall not be taken until September 28, 1982, unless earlier corrective action is requested expressly by the applicant (or the applicant's counsel) whose case is the subject of the decisional document. If earlier corrective action is requested, it shall be taken in accordance with § 70.10.
§ 70.8
Discharge review procedures.
(a) Application for review—(1) General. Applications shall be submitted to the appropriate DRB on DD Form 293, “Application for Review of Discharge or Separation from the Armed Forces of the United States,” with such other statements, affidavits, or documentation as desired. It is to the applicant's advantage to submit such documents with the application or within 60 days thereafter in order to permit a thorough screening of the case. The DD Form 293 is available at most DoD installations and regional offices of the Veterans Administration, or by writing to: DA Military Review Boards Agency, Attention: SFBA (Reading Room), Room 1E520, The Pentagon, Washington, DC 20310.
(2) Timing. A motion or request for review must be made within 15 years after the date of discharge or dismissal.
(3) Applicant's responsibilities. An applicant may request a change in the character of or reason for discharge (or both).
(i) 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). Only a person separated on or after 1 October 1982 while in an entry level status may request a change from Other than Honorable Discharge to Entry Level Separation. A request for review from an applicant who does not have an Honorable Discharge shall be treated as a request for a change to an Honorable Discharge unless the applicant requests a specific change to another character of discharge.
(ii) 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 DRB shall 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 DRB shall change the reason for discharge if such a change is warranted.
(iii) The applicant must ensure that issues submitted to the DRB 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 an applicant's issue and the request in block 7, the DRB shall respond to the issue in the context of the action requested in block 7. In the case of a hearing, the DRB shall attempt to resolve the ambiguity under paragraph (a)(5) of this section.
(4) Request for consideration of specific issues. An applicant may request the DRB 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 part (particularly paragraphs (c), (d), and (e) of this section and §§ 70.9 and 70.10 before submitting issues for consideration by the DRB.
(i) Submission of issues on DD Form 293. Issues must be provided to the DRB on DD Form 293 before the DRB closes the review process for deliberation.
(A) Issues must be clear and specific. An issue must be stated clearly and specifically in order to enable the DRB to understand the nature of the issue and its relationship to the applicant's discharge.
(B) 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 DRB.
(C) Use of DD Form 293. DD Form 293 provides applicants with a standard format for submitting issues to the DRB, and its use:
(1) Provides a means for an applicant to set forth clearly and specifically those matters that, in the opinion of the applicant, provide a basis for changing the discharge;
(2) Assists the DRB in focusing on those matters considered to be important by an applicant;
(3) Assists the DRB in distinguishing between a matter submitted by an applicant in the expectation that it will be treated as a decisional issue under paragraph (e) of this section, and those matters submitted simply as background or supporting materials;
(4) Provides the applicant with greater rights in the event that the applicant later submits a complaint under § 70.10(d)(1)(iii) concerning the decisional document;
(5) Reduces the potential for disagreement as to the content of an applicant's issue.
(D) 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 DRB 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 DRB'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 has failed expressly to incorporate an issue which the applicant clearly identifies as an issue to be addressed by the DRB, the DRB shall respond to such an issue under paragraphs (d) and (e) of this section.
(E) Effective date of the new Form DD 293. With respect to applications received before November 27, 1982, the DRB shall consider issues clearly and specifically stated in accordance with the rules in effect at the time of submission. With respect to applications received on or after November 27, 1982, if the applicant submits an obsolete DD Form 293, the DRB 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 part.
(ii) 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 the character of or reason for discharge (or both). Unless the issue is directed at the reason for discharge expressly or by necessary implication, the DRB will presume that it applies solely to the character of discharge.
(iii) Relationship of issues to the standards for discharge review. The DRB reviews discharges on the basis of issues of propriety and equity. The standards used by the DRB are set forth in § 70.9. The applicant is encouraged to review those standards before submitting any issue upon which the applicant believes a change in discharge should be based.
(A) Issues concerning the equity of the discharge. An issue of equity is a matter that involves a determination whether a discharge should by changed under the equity standards of § 70.9. This includes any issue, submitted by the applicant in accordance with paragraph (a)(4)(i) of this section, that is addressed to the discretionary authority of the DRB.
(B) 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 § 70.9. This includes an applicant's issue, submitted in accordance with paragraph (a)(4)(i) of this section, 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 DRB adequately of the basis for the applicant's position.
(C) The applicant's identification of an issue. The applicant is encouraged, but not required, to identify an issue as pertaining to the propriety or the equity to the discharge. This will assist the DRB in assessing the relationship of the issue to propriety or equity under paragraph (e)(1)(iii) of this section.
(iv) Citation of matter from decisions. The primary function of the DRB involves the exercise of dicretion on a case-by-case basis. See § 70.9(b)(3). Applicants are not required to cite prior decisions as the basis for a change in discharge. If the applicant wishes to bring the DRB'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 apply with respect to applications received on or after November 27, 1982.
(A) The issue must be set forth or expressly incorporated in the “Applicant's Issue” portion of DD Form 293.
(B) If an applicant's issue cites a prior decision (of the DRB, 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.
(C) 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 DRB with copies of such decisions or of the relevant portion of the treatise, manual, or similar source in which the principles were discussed. At the applicant's request, such materials will be returned.
(D) If the applicant fails to comply with the requirements in paragraphs (a)(4)(iv) (A), (B), and (C), the decisional document shall note the defect, and shall respond to the issue without regard to the citation.
(5) Identification by the DRB 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 paragraph (c)(4), is made.
(i) Issues on DD Form 293. The DRB shall consider all items submitted as issues by an applicant on DD Form 293 (or incorporated therein) in accordance with paragraph (a)(4)(i). With respect to applications submitted before November 27, 1982, the DRB shall consider all issues clearly and specifically stated in accordance with the rules in effect at the time of the submission.
(ii) Amendment of issues. The DRB 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:
(A) Limits the DRB's authority to question an applicant as to the meaning of such matter;
(B) Precludes the DRB from developing decisional issues based upon such questions;
(C) Prevents the applicant from amending or withdrawing such matter any time before the DRB closes the review process for deliberation; or
(D) Prevents the DRB 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.
(iii) Additional issues identified during a hearing. The following additional procedure shall be used during a hearing in order to promote the DRB's understanding of an applicant's presentation. If, before closing the case for deliberation, the DRB believes that an applicant has presented an issue not listed on DD Form 293, the DRB 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 DRB from developing its own decisional issues.
(6) Notification of possible bar to benefits. Written notification shall be made to each applicant whose record indicates a reason for discharge that bars receipt of benefits under 38 U.S.C. 3103(a). This notification will advise the applicant that separate action by the Board for Correction of Military or Naval Records or the Veterans Administration may confer eligibility for VA benefits. Regarding the bar to benefits based upon the 180 days consecutive unauthorized absence, the following applies:
(i) Such absence must have been included as part of the basis for the applicant's discharge under other than honorable conditions.
(ii) Such absence is computed without regard to the applicant's normal or adjusted expiration of term of service.
(b) Conduct of reviews—(1) Members. As designated by the Secretary concerned, the DRB and its panels, if any, shall consist of five members. One member of the DRB shall be designated as the president and may serve as a presiding officer. Other officers may be designated to serve as presiding officers for DRB panels under regulations prescribed by the Secretary concerned.
(2) Locations. Reviews by a DRB will be conducted in the NCR and such other locations as designated by the Secretary concerned.
(3) Types of review. An applicant, upon request, is entitled to:
(i) Record review. A review of the application, available service records, and additional documents (if any) submitted by the applicant.
(ii) Hearing. A review involving an appearance before the DRB by the applicant or counsel or representative (or both).
(4) Applicant's expenses. Unless otherwise specified by law or regulation, expenses incurred by the applicant, witnesses, counsel or representative will not be paid by the Department of Defense.
(5) Withdrawal of application. An applicant shall be permitted to withdraw an application without prejudice at any time before the scheduled review.
(6) Failure to appear at a hearing or respond to a scheduling notice. (i) 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:
(A) 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
(B) 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.
(ii) In such cases, the applicant shall be deemed to have waived the right to a hearing, and the DRB 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.
(7) Continuance and postponements. (i) A continuance of a discharge review hearing may be authorized by the president of the DRB 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.
(ii) 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.
(8) Reconsideration. A discharge review shall not be subject to reconsideration except:
(i) When the only previous consideration of the case was on the motion of the DRB;
(ii) When the original discharge review did not involve a hearing and a hearing is now desired, and the provisions of paragraph (b)(6) of this section do not apply;
(iii) When changes in discharge policy are announced after an earlier review of an applicant's discharge, and the new policy is made expressly retroactive;
(iv) When the DRB 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 a respondent in such proceedings;
(v) When an individual is to be represented by a counsel or representative, and was not so represented in any previous consideration of the case by the DRB;
(vi) 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
(vii) 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.
(9) Availability of records and documents. (i) 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 62132. Once the application for discharge review (DD Form 293) is submitted, an applicant's military records are forwarded to the DRBs where they cannot be reproduced. Submission of a request for an applicant's military records, including a request under the Freedom of Information Act (32 CFR part 286) or Privacy Act (32 CFR part 286a) 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 DRB. 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 also may examine their military personnel records at the site of their scheduled review before the hearing. DRBs shall notify applicants of the dates the records are available for examination in their standard scheduling information.
(ii) If the DRB 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 DRB shall advise the applicant of the mailing address of the government department, office, or activity to which the request should be submitted.
(iii) If the official records relevant to the discharge review are not available at the agency having custody of the records, the applicant shall be so notified and requested to provide such information and documents as may be desired in support of the request for discharge review. A period of not less than 30 days shall be allowed for such documents to be submitted. At the expiration of this period, the review may be conducted with information available to the DRB.
(iv) A DRB 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.
(A) In any case heard on request of an applicant, the DRB 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 DRB shall also notify the applicant or counsel or representative:
(1) Of the right to examine such documents or to be provided with copies of the documents upon request;
(2) Of the date by which such requests must be received; and
(3) Of the opportunity to respond within a reasonable period of time to be set by the DRB.
(B) When necessary to acquaint the applicant with the substance of a classified document, the classifying authority, on the request of the DRB, 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 sources shall not be considered by the DRB in its review of the case.
(v) 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, Washington, DC 20310.
(10) Recorder/Secretary or Assistant. Such a person shall be designated to assist in the functioning of each DRB in accordance with the procedures prescribed by the Secretary of the Military Department concerned.
(11) Hearings. Hearings (including hearing examinations) that are conducted shall recognize the rights of the individual to privacy. Accordingly, presence at hearings of individuals other than those required shall be limited to persons authorized by the Secretary concerned or expressly requested by the applicant, subject to reasonable limitations based upon available space. If, in the opinion of the presiding officer, the presence of other individuals could be prejudicial to the interests of the applicant or the government, hearings may be held in closed session.
(12) Evidence and testimony. (i) The DRB may consider any evidence obtained in accordance with this part.
(ii) Formal rules of evidence shall not be applied in DRB proceedings. The presiding officer shall rule on matters of procedure and shall ensure that reasonable bounds of relevancy and materiality are maintained in the taking of evidence and presentation of witnesses.
(iii) Applicants undergoing hearings shall be permitted to make sworn or unsworn statements, if they so desire, or to introduce witnesses, documents, or other information on their behalf, at no expense to the Department of Defense.
(iv) Applicants may also make oral or written arguments personally or through counsel or representatives.
(v) Applicants who present sworn or unsworn statements and witnesses may be questioned by the DRB. All testimony shall be taken under oath or affirmation unless the applicant specifically requests to make an unsworn statement.
(vi) 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.
(c) Decision process. (1) The DRB or the DRB panel, as appropriate, shall meet in plenary session to review discharges and exercise its discretion on a case-by-case basis in applying the standards set forth in § 70.9.
(2) The presiding officer is responsible for the conduct of the discharge review. The presiding officer shall convene, recess, and adjourn the DRB panel as appropriate and shall maintain an atmosphere of dignity and decorum at all times.
(3) Each DRB member shall act under oath or affirmation requiring careful, objective consideration of the application. DRB members are responsible for eliciting all facts necessary for a full and fair hearing. 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 DRB, and any other evidence obtained in accordance with this part.
(4) The DRB shall identify and address issues after a review of the following material obtained and presented in accordance with this part and the implementing instructions of the DRB: 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.
(5) If an applicant who has requested a hearing does not respond to a notification letter or does not appear for a scheduled hearing, the DRB may complete the review on the basis of material previously submitted.
(6) Application of standards. (i) When a DRB determines that an applicant's discharge was improper (§ 70.9(b)), the DRB will determine which reason for discharge should have been assigned based upon the facts and circumstances before the discharge authority, including the Service regulations governing reasons for discharge at the time the applicant was discharged. Unless it is also determined that the discharge was inequitable (§ 70.9(c)), the provisions as to characterization in the regulation under which the applicant should have been discharged will be considered in determining whether further relief is warranted.
(ii) When the DRB determines that an applicant's discharge was inequitable (see § 70.9(c)), any change will be based on the evaluation of the applicant's overall record of service and relevant regulations of the Military Service of which the applicant was a member.
(7) Voting shall be conducted in closed session, a majority of the five members' votes constituting the DRB decision. Voting procedures shall be prescribed by the Secretary of the Military Department concerned.
(8) Details of closed session deliberations of a DRB are privileged information and shall not be divulged.
(9) There is no requirement for a statement of minority views in the event of a split vote. The minority, however, may submit a brief statement of its views under procedures established by the Secretary concerned.
(10) DRBs may request advisory opinions from staff officers of their Military Departments. These opinions are advisory in nature and are not binding on the DRB in its decision-making process.
(11) The preliminary determinations required by 38 U.S.C. 3103(e) shall be made upon majority vote of the DRB concerned on an expedited basis. Such determination shall be based upon the standards set forth in § 70.9 of this part.
(12) The DRB shall: (i) Address items submitted as issues by the applicant under paragraph (d) of this section;
(ii) Address decisional issues under paragraph (e) of this section; and
(iii) Prepare a decisional document in accordance with paragraph (h) of this section.
(d) Response to items submitted as issues by the applicant—(1) General guidance. (i) If an issue submitted by an applicant contains two or more clearly separate issues, the DRB should respond to each issue under the guidance of this paragraph as if it had been set forth separately by the applicant.
(ii) 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.
(iii) Nothing in this paragraph precludes the DRB 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.
(2) Decisional issues. An item submitted as an issue by an applicant in accordance with this part shall be addressed as a decisional issue under paragraph (e), in the following circumstances:
(i) When the DRB decides that a change in discharge should be granted, and the DRB bases its decision in whole or in part on the applicant's issue; or
(ii) When the DRB does not provide the applicant with the full change in discharge requested, and the decision is based in whole or in part on the DRB's disagreement on the merits with an issue submitted by the applicant.
(3) Response to items not addressed as decisional issues. (i) 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.
(ii) 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 DRB shall address the items submitted by the applicant under paragraph (e) of this section (decisional issues) unless one of the following responses is applicable:
(A) Duplicate issues. The DRB 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.
(B) Citations without principles and facts. The DRB 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 paragraph (a)(4)(iv)(A).
(C) Unclear issues. The DRB may state that it cannot respond to an item submitted by the applicant as an issue because the meaning of the item is unclear. An issue is unclear if it cannot be understood by a reasonable person familiar with the discharge review process after a review of the materials considered under paragraph (c)(4) of this section.
(D) Nonspecific issues. The DRB 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 under paragraph (c)(4) of this section, 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 DRB disagrees with the applicant as to the relevance of matters set forth in the submission, the DRB normally will set forth the nature of the disagreement under the guidance in paragraph (e) of this section, with respect to decisional issues, or it will reject the applicant's position on the basis of paragraphs (d)(3)(ii)(A) or (d)(3)(ii)(B) of this section. If the applicant's submission is so general that none of those provisions is applicable, then the DRB may state that it cannot respond because the item is not specific.
(e) Decisional issues—(1) 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 DRB should not address matters other than issues relied upon in the decision or raised by the applicant.
(i) 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 DRB denies the full change requested.
(ii) Relationship of issue to 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.
(iii) Relationship of an issue to propriety or equity. (A) If an applicant identifies an issue as pertaining to both propriety and equity, the DRB will consider it under both standards.
(B) 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 DRB shall consider the issue solely as a matter of propriety. Except as provided in paragraph (e)(1)(iii)(D) of this section, the DRB is not required to consider such an issue under the equity standards.
(C) If the applicant's issue contends that the DRB 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 paragraph (e)(2) or (e)(3) of this section.
(D) If the applicant's issue sets forth principles of equity contained in a prior DRB decision, describes the relationship to the applicant's case, and contends that the DRB is required as a matter of law to follow the prior case, the decisional document shall note that the DRB is not bound by its discretionary decisions in prior cases under the standards in § 70.9. However, the principles cited by the applicant, and the description of the relationship of the principles to the applicant's case, shall be considered under the equity standards and addressed under paragraph (e)(5) or (e)(6) of this section.
(E) If the applicant's issue cannot be identified as a matter of propriety or equity, the DRB shall address it as an issue of equity.
(2) Change of discharge: issues of propriety. If a change in the discharge is warranted under the propriety standards in § 70.9 the decisional document shall state that conclusion and list the errors of expressly retroactive changes in policy 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 addressed under the guidance in paragraph (e)(3) or (e)(6) of this section.
(3) Denial of the full change requested: issues of propriety. (i) If the decision rejects the applicant's position on an issue of propriety, or 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.
(ii) The decisional document shall list reasons for its conclusion on each issue of propriety under the following guidance:
(A) If a reason is based in whole or in part upon a regulation, statute, constitutional provision, judicial determination, or other source of law, the DRB 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.
(B) 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 DRB shall make a finding of fact for each such event or circumstance.
(1) 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.
(2) 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 DRB), 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 set forth the basis for relying on the presumption of regularity and 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 DRB did not find the applicant's testimony to be sufficiently credible to overcome the presumption.
(C) If the DRB disagrees with the position of the applicant on an issue of propriety, the following guidance applies in addition to the guidance in paragraphs (e)(3)(ii) (A) and (B) of this section:
(1) The DRB 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 paragraph (e)(4)(iv) of this section).
(2) The DRB 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 paragraph (a)(4)(iv) of this section) are not relevant to the applicant's case.
(3) The DRB may reject an applicant's position by stating that the applicant's issue of propriety is not a matter upon which the DRB 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.
(4) The DRB may reject the applicant's position on the grounds that other specified factors in the case preclude granting relief, regardless of whether the DRB agreed with the applicant's position.
(5) If the applicant takes 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 DRB 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 DRB should provide the applicant with a brief description of the procedures for requesting correction of the record. If the DRB on its own motion cites this issue as a decisional issue on the basis of equity, it shall address the issue under paragraph (d)(5) or (d)(6) of this section.
(6) When an applicant's issue contains a general allegation that a certain course of action violated his or her constitutional rights, the DRB 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.
(4) 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 DRB has not otherwise relied upon an issue of propriety to change the discharge, the decisional document shall contain a statement to that effect. The DRB is not required to provide any further discussion as to the propriety of the discharge.
(5) Change of discharge: issues of equity. If the DRB concludes that a change in the discharge is warranted under the equity standards in § 70.9 the decisional document shall list each issue of equity upon which this conclusion is based. The DRB 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 under the guidance in paragraph (e)(6) of this section.
(6) Denial of the full change in discharge requested: issues of equity. (i) If the DRB 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.
(ii) The DRB shall list reasons for its conclusion on each issue of equity under the following guidance:
(A) If a reason is based in whole or in part upon a regulation, statute, constitutional provision, judicial determination, or other source of law, the DRB 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.
(B) 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 DRB shall make a finding of fact for each such event or circumstance.
(1) 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.
(2) 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 DRB), 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 set forth the basis for relying on the presumption of regularity and 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 DRB did not find the applicant's testimony to be sufficiently credible to overcome the presumption.
(C) If the DRB disagrees with the position of the applicant on an issue of equity, the following guidance applies in addition to the guidance in paragraphs (e)(6)(ii) (A) and (B) of this section:
(1) The DRB 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 paragraph (a)(4)(iv) of this section).
(2) The DRB 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.
(3) The DRB may reject an applicant's position by explaining why the applicant's issue is not a matter upon which the DRB 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.
(4) The DRB may reject the applicant's position on the grounds that other specified factors in the case preclude granting relief, regardless of whether the DRB agreed with the applicant's position.
(5) 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 DRB may respond that it will presume the validity of the record in the absence of such corrective action. However, the DRB 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.
(D) When the DRB concludes that aggravating factors outweigh mitigating factors, the DRB 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 DRB 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.
(E) If the applicant has not submitted any issues and the DRB 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.
(f) The recommendation of the DRB President—(1) General. The president of the DRB may forward cases for consideration by the Secretarial Reviewing Authority (SRA) under rules established by the Secretary concerned. 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 paragraph (f)(2) of this section.
(2) Format for recommendation. If a recommendation is provided, it shall contain the president's views 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:
(i) Adoption of the DRB'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 section.
(ii) 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.
(iii) 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:
(A) The issues on which the president's recommendation is based. Each such decisional issue shall be addressed by the president under paragraph (e) of this section,
(B) The president's response to items submitted as issues by the applicant under paragraph (d) of this section.
(C) Reasons for rejecting the conclusions of the majority with respect to decisional issues which, if resolved in the applicant's favor, would have resulted in greater relief for the applicant than that afforded by the president's recommendation. Suh issues shall be addressed under the principles in paragraph (e) of this section.
(g) Secretarial reviewing authority (SRA)—(1) Review by the SRA. The Secretarial Reviewing Authority (SRA) is the Secretary concerned or the official to whom Secretary's discharge review authority has been delegated.
(i) The SRA may review the following types of cases before issuance of the final notification of a decision:
(A) Any specific case in which the SRA has an interest.
(B) Any specific case that the president of the DRB believes is of significant interest to the SRA.
(ii) Cases reviewed by the SRA shall be considered under the standards set forth in § 70.9.
(2) Processing the decisional document. (i) The decisional document shall be transmitted by the DRB president under paragraph (e) of this section.
(ii) The following guidance applies to cases that have been forwarded to the SRA except for cases reviewed on the DRB's own motion without the participation of the applicant or the applicant's counsel:
(A) The applicant and counsel or representative, if any, shall be provided with a copy of the proposed decisional document, including the DRB president's recommendation to the SRA, if any. Classified information shall be summarized.
(B) The applicant shall be provided with a reasonable period of time, but not less than 25 days, to submit to the SRA a rebuttal. An issue in rebuttal consists of a clear and specific statement by the applicant in support of or in opposition to the statements of the DRB or DRB president on decisional issues and other clear and specific issues that were submitted by the applicant in accordance with paragraph (a)(4)(i) of this section. The rebuttal shall be based solely on matters in the record before when the DRB closed the case for deliberation or in the president's recommendation.
(3) Review of the decisional document. If corrections in the decisional document are required, the decisional document shall be returned to the DRB 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 discussion by the DRB (or DRB president) of the issues raised by the majority or the applicant.
(4) 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.
(i) 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 DRB or the DRB president, the decisional document shall contain a reference to the matter adopted.
(ii) 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 in accordance with paragraph (a)(4)(i) of this section, and issues raised by the DRB and the DRB president in accordance with the following guidance:
(A) Adoption of the DRB president's recommendation. The addendum may state that the SRA has adopted the DRB president's recommendation.
(B) Adoption of the DRB's proposed decisional document. The addendum may state that the SRA has adopted the proposed decisional document prepared by the DRB.
(C) Adoption of specific statements from the majority or the DRB president. If the SRA adopts the views of the DRB or the DRB president only in part, the addendum shall cite the specific statements adopted. If the SRA modifies a statement submitted by the DRB or the DRB president, the addendum shall set forth the modification.
(D) Response to issues not included in matter adopted from the DRB or the DRB president. The addendum shall set forth the following if not adopted in whole or in part from the DRB or the DRB president:
(1) A list of the issues on which the SRA's decision is based. Each such decisional issue shall be addressed by the SRA under paragraph (e) of this section. This includes reasons for rejecting the conclusion of the DRB or the DRB president with respect to decisional issues which, if resolved in the applicant's favor, would have resulted in 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 paragraph (e) of this section.
(2) The SRA's response to items submitted as issues by the applicant under paragraph (d) of this section.
(iii) Response to the rebuttal. (A) 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 under paragraph (e) of this section, and no further response to the rebuttal is required.
(B) 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:
(1) If the SRA rejects an issue in rebuttal, the SRA may respond in accordance with the principles in paragraph (e) of this section.
(2) 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.
(3) If the matter submitted by the applicant does not meet the requirements for rebuttal material in paragraph (b)(2)(ii)(B) of this section.
(iv) Index entries. Appropriate index entries shall be prepared for the SRA's actions for matters that are not adopted from the DRB's proposed decisional document.
(h) The decisional document. A decisional document shall be prepared for each review. At a minimum, this document shall contain:
(1) 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:
(i) Information concerning the discharge at issue in the review, including:
(A) Date (YYMMDD) of discharge.
(B) Character of discharge.
(C) Reason for discharge.
(D) The specific regulatory authority under which the discharge was issued.
(ii) Date (YYMMDD) of enlistment.
(iii) Period of enlistment.
(iv) Age at enlistment.
(v) Length of service.
(vi) Periods of unauthorized absence.
(vii) Conduct and efficiency ratings (numerical or narrative).
(viii) Highest rank received.
(ix) Awards and decorations.
(x) Educational level.
(xi) Aptitude test scores.
(xii) Incidents of punishment pursuant to Article 15, Uniform Code of Military Justice (including nature and date (YYMMDD) of offense or punishment).
(xiii) Convictions by court-martial.
(xiv) Prior military service and type of discharge received.
(2) A list of the type of documents submitted by or on behalf of the applicant (including a written brief, letters of recommendation, affidavits concerning the circumstances of the discharge, or other documentary evidence), if any.
(3) A statement whether the applicant testified, and a list of the type of witnesses, if any, who testified on behalf of the applicant.
(4) A notation whether the application pertained to the character of discharge, the reason for discharge, or both.
(5) The DRB's conclusions on the following:
(i) Whether the character of or reason for discharge should be changed.
(ii) The specific changes to be made, if any.
(6) 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 under paragraph (a)(4)(i)(D) of this section. 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 consent of the applicant need not be listed.
(7) The response to the items submitted as issues by the applicant under the guidance in paragraph (d) of this section.
(8) A list of decisional issues and a discussion of such issues under the guidance in paragraph (e) of this section.
(9) Minority views, if any, when authorized under rules of the Military Department concerned.
(10) The recommendation of the DRB president when required by paragraph (f) of this section.
(11) The addendum of the SRA when required by paragraph (g) of this section.
(12) 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 thereof that are not fully set forth in the discussion of decisional issues or otherwise in response to items submitted as issues by the application 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.
(13) A record of the voting, including:
(i) The number of votes for the DRB's decision and the number of votes in the minority, if any.
(ii) The DRB member's names (last name, first name, M.I.) 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.
(14) Index entries for each decisional issue under appropriate categories listed in the index of decisions.
(15) An authentication of the document by an appropriate official.
(i) 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. The applicant (and counsel, if any) shall be notified of the availability of the complaint process under § 70.10. Final notification of decisions shall be issued to the applicant with a copy to the counsel or representative, if any, and to the Military Service concerned.
(1) 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.
(2) Notification to the Military Services 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.
(3) Actions on review by superior authority, when occurring, shall be provided to the applicant and counsel or representative in the same manner as the notification of the review decision.
(j) Record of DRB proceedings. (1) When the proceedings in any review have been concluded, a record thereof will be prepared. Records may include written records, electromagnetic records, videotape recordings, or a combination thereof.
(2) At a minimum, the record will include the following:
(i) The application for review;
(ii) A record of the testimony in verbatim, summarized, or recorded form at the option of the DRB concerned;
(iii) Documentary evidence or copies thereof, considered by the DRB other than the Military Service record;
(iv) Briefs and arguments submitted by or on behalf of the applicant;
(v) Advisory opinions considered by the DRB, if any;
(vi) The findings, conclusions, and reasons developed by the DRB;
(vii) Notification of the DRB's decision to the cognizant custodian of the applicant's records, or reference to the notification document;
(viii) Minority reports, if any;
(ix) A copy of the decisional document.
(k) Final disposition of the Record of Proceedings. The original record of proceedings and all appendices thereto shall in all cases be incorporated in the Military Service record of the applicant and the Military Service record shall be returned to the custody of the appropriate records holding facility. If a portion of the original record of the proceedings cannot be stored with the Military Service record, the Military Service record shall contain a notation as to the place where the record is stored. Other copies shall be filed and disposed of in accordance with appropriate Military Service regulations.
(l) Availability of Discharge Review Board documents for inspection and copying. (1) A copy of the decisional document prepared in accordance with paragraph (d) of this section shall be made available for public inspection and copying promptly after a notice of final decision is sent to the applicant.
(2) 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.
(i) 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.
(ii) Each DRB 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 under § 70.10.
(3) Any other privileged or classified material contained in or appended to any documents required by this part to be furnished the applicant and counsel or representative or made available for public inspection and copying may be deleted therefrom only if a written statement of 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.
(4) DRB 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 DRBs, 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 DRB or the Secretary concerned granted or denied relief.
(i) The reading file index shall include, in addition to any other items determined by the DRB, the case number, the date, character of, reason and authority for the discharge. It shall also include the decisions of the DRB and reviewing authority, if any, and the issues addressed in the statement of findings, conclusions, and reasons.
(ii) 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 DRB or a hearing examiner is present and in operation. An applicant who has requested a traveling panel review or a hearing examination shall be advised in the notice of such review of the permanent index locations.
(iii) The Armed Forces Discharge Review/Correction Board Reading Room shall publish indexes quarterly for all DRBs. All DRBs shall be responsible for timely submission to the Reading Room of individual case information required for update of the indexes. In addition, all DRBs 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 DRB has accepted an application, information concerning the availability of the index shall be provided in the DRB's response to the application.
(iv) 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.
(v) Correspondence relating to matters under the cognizance of the Reading Room (including requests for purchase of indexes) shall be addressed to: DA Military Review Boards Agency, Attention: SFBA (Reading Room), Room 1E520, The Pentagon, Washington, DC 20310.
(m) Privacy Act information. Information protected under the Privacy Act is involved in the discharge review functions. The provisions of part 286a of this title shall be observed throughout the processing of a request for review of discharge or dismissal.
(n) Information requirement. Each Military Department shall provide the Deputy Assistant Secretary of Defense (Military Personnel and Force Management) DASD (MP&FM), Office of the ASD (MRA&L), with a semiannual report of discharge review actions in accordance with § 70.11.
[47 FR 37785, Aug. 26, 1982, as amended at 48 FR 9855, Mar. 9, 1983; 48 FR 35644, Aug. 5, 1983]
§ 70.9
Discharge review standards.
(a) Objective of review. The objective of a discharge review is to examine the propriety and equity of the applicant's discharge and to effect changes, if necessary. The standards of review and the underlying factors that aid in determining whether the standards are met shall be historically consistent with criteria for determining honorable service. No factors shall be established that require automatic change or denial of a change in discharge. Neither a DRB nor the Secretary of the Military Department concerned shall be bound by any methodology of weighting of the factors in reaching a determination. In each case, the DRB or the Secretary of the Military Department concerned shall give full, fair, and impartial considerations to all applicable factors before reaching a decision. An applicant may not rceive a less favorable discharge than that issued at the time of separation. This does not preclude correction of clerical errors.
(b) Propriety. (1) A discharge shall be deemed proper unless, in the course of discharge review, it is determined that:
(i) 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
(ii) 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.
(2) 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 DRB will recognize an error only to the extent that the error has been corrected by the organization with primary responsibility for correcting the record.
(3) The primary function of the DRB 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 DRB 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 DRB in its review of subsequent cases because no two cases present the same issues of equity.
(4) The following applies to applicants who received less than fully Honorable administrative discharges because of their civilian misconduct while in an inactive reserve component and who were discharged or had their discharge reviewed on or after April 20, 1971: the DRB 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;
(i) An Other than Honorable (formerly undesirable) Discharge for an inactive reservist can only be based upon civilian misconduct found to have affected directly the performance of military duties;
(ii) A General Discharge for an inactive 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.
(c) Equity. A discharge shall be deemed to be equitable unless:
(1) 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:
(i) Current policies or procedures represent a substantial enhancement of the rights afforded a respondent in such proceedings; and
(ii) 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.
(2) At the time of issuance, the discharge was inconsistent with standards of discipline in the Military Service of which the applicant was a member.
(3) 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 DRB viewed in conjunction with the factors listed in this section 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:
(i) Quality of service, as evidenced by factors such as:
(A) Service history, including date of enlistment, period of enlistment, highest rank achieved, conduct or efficiency ratings (numerical or narrative);
(B) Awards and decorations;
(C) Letters of commendation or reprimand;
(D) Combat service;
(E) Wounds received in action;
(F) Records of promotions and demotions;
(G) Level of responsibility at which the applicant served;
(H) Other acts of merit that may not have resulted in a formal recognition through an award or commendation;
(I) Length of service during the service period which is the subject of the discharge review;
(J) Prior military service and type of discharge received or outstanding postservice 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;
(K) Convictions by court-martial;
(L) Records of nonjudicial punishment;
(M) Convictions by civil authorities while a member of the Service, reflected in the discharge proceedings or otherwise noted in military service records;
(N) Records of periods of unauthorized absence;
(O) Records relating to a discharge instead of court-martial.
(ii) Capability to serve, as evidenced by factors such as:
(A) Total capabilities. This includes an evaluation of matters, such as age, educational level, and aptitude scores. Consideration may also be given 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.
(B) 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.
(C) Arbitrary or capricious action. This includes actions by individuals in authority that constitute a clear abuse of such authority and that, although not amounting to prejudicial error, may have contributed to the decision to discharge or to the characterization of service.
(D) Discrimination. This includes unauthorized acts as documented by records or other evidence.
§ 70.10
Complaints concerning decisional documents and index entries.
(a) General. (1) The procedures in this section—are established for the sole purpose of ensuring that decisional documents and index entries issued by the DRBs of the Military Departments comply with the decisional document and index entry principles of this part.
(2) This section may be modified or supplemented by the DASD(MP&FM).
(3) The following persons may submit complaints:
(i) A former member of the Armed Forces (or the former member's counsel) with respect to the decisional document issued in the former member's own case; and
(ii) A former member of the Armed Forces (or the former member's counsel) who states 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.
(4) The Department of Defense is committed to processing of complaints within the priorities and processing goals set forth in paragraph (d)(1)(iii) of this section. This commitment, however, is conditioned upon reasonable use of the complaint process under the following considerations. The DRBs were established for the benefit of former members of the Armed Forces. The complaint process can aid such persons most effectively if it is used by former members of the Armed Forces when necessary to obtain correction of their own decisional documents or to prepare for discharge reviews. If a substantial number of complaints submitted by others interferes with the ability of the DRBs to process applications for discharge review in a timely fashion, the Department of Defense will adjust the processing goals to ensure that the system operates to the primary advantage of applicants.
(5) The DASD(MP&FM) is the final authority with respect to action on such correspondence.
(b) The Joint Service Review Activity (JSRA). A three member JSRA consisting of one judge advocate from each Military Department shall advise the DASD(MP&FM). The operations of the JSRA shall be coordinated by a full-time administrative director, who shall serve as recorder during meetings of the JSRA. The members and the administrative director shall serve at the direction of the DASD(MP&FM).
(c) Classification and control of correspondence—(1) Address of the JSRA. Correspondence with the OSD concerning decisional documents or index entries issued by the DRBs shall be addressed as follows: Joint Service Review Activity, OASD(MRA&L) (MP&FM), Washington, DC 20301.
(2) Docketing. All such correspondence shall be controlled by the administrative director through the use of a uniform docketing procedure.
(3) Classification. Correspondence shall be reviewed by the administrative director and categorized either as a complaint or an inquiry in accordance with the following:
(i) Complaints. A complaint is any correspondence in which it is alleged that a decisional document issued by a DRB or SRA contains a specifically identified violation of the Stipulation of Dismissal, Settlement Agreement, or related Orders in the Urban Law case or the decisional document or index entry principles of this Directive. A complainant who alleges error with respect to a decisional document issued to another person is encouraged to set forth specifically the grounds for determining that a reasonable person familiar with the discharge review process cannot understand the basis for the decision. See paragraph (d)(1)(i)(B) of this section.
(ii) Inquiries. An inquiry is any correspondence other than a complaint.
(d) Review of complaints—(1) Guidance. The following guidance applies to review of complaints:
(i) Standards. Complaints shall be considered under the following standards:
(A) The applicant's case. A complaint by an applicant with respect to the decisional document issued in the applicant's own discharge review shall be considered under the Stipulation of Dismissal in the Urban Law case and other decisional document requirements applicable at the time the document was issued, including those contained in the Settlement Agreement and related Orders, subject to any limitations set forth therein with respect to dates of applicability. If the authority empowered to take corrective action has a reasonable doubt whether a decisional document meets applicable requirements of the Urban Law case or other applicable rules, the complaint shall be resolved in the applicant's favor.
(B) Other cases. With respect to all other complaints, the standard shall be whether a reasonable person familiar with the discharge review process can understand the basis for the decision, including the disposition of issues raised by the applicant. This standard is designed to ensure that the complaint process is not burdened with the need to correct minor errors in the preparation of decisional documents.
(ii) Use of DD Form 293. With respect to any decisional document issued on or after November 27, 1982, a complaint alleging failure of the DRB to address adequately matter not submitted on DD Form 293 or expressly incorporated therein will be resolved in the complainant's favor only if the failure to address the issue was arbitrary, capricious, or an abuse of discretion.
(iii) Scope of review. When a complaint concerns a specific issue in the applicant's own discharge review, the complaint review process shall involve a review of all the evidence that was before the DRB or SRA, including the testimony and written submissions of the applicant, to determine whether the issue was submitted, and if so, whether it was addressed adequately with respect to the Stipulation of Dismissal, Settlement Agreement, or related Orders in the Urban Law case and other applicable provisions of this Directive. With respect to all other complaints about specific issues, the complaint review process may be based solely on the decisional document, except when the complainant demonstrates that facts present in the review in question raise a reasonable likelihood of a violation of applicable provisions of the Stipulation of Dismissal and a reasonable person, familiar with the discharge review process, could resolve the complaint only after a review of the evidence that was before the DRB.
(iv) Allegations pertaining to an applicant's submission. The following additional requirements apply to complaints about modification of an applicant's issue or the failure to list or address an applicant's issue:
(A) When the complaint is submitted by the applicant, and the record of the hearing is ambiguous on the question whether there was a meeting of minds between the applicant and the DRB as to modification or omission of the issue, the ambiguity will be resolved in favor of the applicant.
(B) When the complaint is submitted by a person other than the applicant, it must set forth facts (other than the mere omission or modification of an issue) demonstrating a reasonable likelihood that the issue was omitted or modified without the applicant's consent.
(C) When the complaint is rejected on the basis of the presumption of regularity, the response to the complaint must be set forth the reasons why the evidence submitted by the complainant was not sufficient to overcome the presumption.
(D) With respect to decisional documents issued on or after the effective date of the amendments to § 70.8, any change in wording of an applicant's issue which is effected in violation of the principles set forth in § 70.8(a)(5)(iii) constitutes an error requiring corrective action. With respect to a decisional document issued before that date, corrective action will be taken only when there has been a complaint by the applicant or counsel with respect to the applicant's own decisional document and it is determined that the wording was changed or the issue was omitted without the applicant's consent.
(E) If there are references in the decisional document to matters not raised by the applicant and not otherwise relied upon in the decision, there is no requirement under the Urban Law case that such matters be accompanied by a statement of findings, conclusions, or reasons. For example, when the DRB discusses an aspect of the service record not raised as an issue by the applicant, and the issue is not a basis for the DRB's decision, the DRB is not required to discuss the reasons for declining to list that aspect of the service record as an issue.
(v) Guidance as to other types of complaints. The following guidance governs other specified types of complaints:
(A) The Stipulation of Dismissal requires only that those facts that are essential to the decision be listed in the decisional document. The requirement for listing specified facts from the military record was not established until March 29, 1978, in 32 CFR part 70 Decisional documents issued prior to that date are sufficient if they meet the requirements of the Stipulation.
(B) When an applicant submits a brief that contains material in support of a proposed conclusion on an issue, the DRB is not required to address each aspect of the supporting material in the brief. However, the decisional document should permit the applicant to understand the DRB's position on the issue and provide reviewing authorities with an explanation that is sufficient to permit review of the DRB's decision. When an applicant submits specific issues and later makes a statement before the DRB that contains matter in support of that issue, it is not necessary to list such supporting matter as a separate issue.
(C) For all decisional documents issued before November 27, 1982, failure to respond to an issue raised by an applicant constitutes error unless it reasonably may be inferred from the record that the DRB response relied on one of the exceptions listed in § 70.8(d)(3)(ii); (e)(3)(ii)(C) (3) through (4) and (e)(6)(ii)(C) (3) through (4). If the decisional document supports a basis for not addressing an issue raised by the applicant (for example, if it is apparent that resolving the issue in the applicant's favor would not warrant an upgrade), there is no requirement in the Stipulation of Dismissal that the decisional document explain why the DRB did not address the issue. With respect to decisional documents issued on or after November 27, 1982, a response shall be prepared in accordance with the decisional document principles set forth in § 70.8.
(D) When a case is reviewed upon request of an applicant, and the DRB upgrades the discharge to “General,” the DRB must provide reasons why it did not upgrade to “Honorable” unless the applicant expressly requests lesser relief. This requirement applies to all requests for corrective action submitted by an applicant with respect to his or her decisional document. In all other cases, this requirement applies to decisional documents issued on or after November 9, 1978. When the DRB upgrades to General, its explanation for not upgrading to Honorable may consist of reference to adverse matter from the applicant's military record. When a discharge is upgraded to General in a review on the DRB's own motion, there is no requirement to explain why the discharge was not upgraded to Honorable.
(E) There is no requirement under the Stipulation of Dismissal to provide reasons for uncontested findings. The foregoing applies to decisional documents issued before November 27, 1982. With respect to decisional documents issued on or after that date, the following guidance applies with respect to an uncontested issue of fact that forms the basis for a grant or denial of a change in discharge: the decisional document shall list the specific source of information relied upon in reaching the conclusion, except when the information is listed in the portion of the decisional document that summarizes the service record.
(F) The requirements of § 70.8(e)(3) (ii)(B)(2) and (e)(6) (ii)(B)(2) with respect to explaining use of the presumption of regularity apply only to decisional documents issued on or after November 27, 1982. When a complaint concerning a decisional document issued before that date addresses the adequacy of the DRB's use of the presumption of regularity, or words having a similar import, corrective action will be required only if a reasonable person familiar with the discharge review process can not understand the basis for relying on the presumption.
(G) When the DRB balances mitigrating factors against aggravating factors as the reason for a conclusion, the Stipulation of Dismissal does not require the statement of reasons to set forth the specific factors that were balanced if such factors are otherwise apparent on the fact of the decisional document. The foregoing applies to decisional documents prepared before November 27, 1982. With respect to decisional documents prepared after that date, the statements addressing decisional issues in such a case will list or refer to the factors supporting the conclusion in accordance with § 70.8(e)(6)(ii).
(vi) Documents that were the subject of a prior complaint. The following applies to a complaint concerning a decisional document that has been the subject of prior complaints:
(A) If the complaint concerns a decisional document that was the subject of a prior complaint in which action was completed, the complainant will be informed of the substance and disposition of the prior complaint, and will be further informed that no additional action will be taken unless the complainant within 30 days demonstrates that the prior disposition did not produce a decisional document that comports with the requirements of paragraph (d)(1)(i)(A) of this section.
(B) If the complaint concerns a decisional document that is the subject of a pending complaint, the complainant will be informed that he or she will be provided with the results of the pending complaint.
(C) These limitations do not apply to the initial complaint submitted on or after the effective date of the amendments to this section by an applicant with respect to his or her own decisional document.
(2) Duties of the administrative director. The administrative director shall take the following actions:
(i) Acknowledge receipt of the complaint;
(ii) Assign a docket number and note the date of receipt; and
(iii) Forward the complaint to the Military Department concerned, except that the case may be forwarded directly to the DASD (MP&FM) when the administrative director makes an initial determination that corrective action is not required.
(3) Administrative processing. The following guidance applies to administrative processing of complaints:
(i) Complaints normally shall be processed on a first-in/first-out basis, subject to the availability of records, pending discharge review actions, and the following priorities:
(A) The first priority category consists of cases in which (1) there is a pending discharge review and the complainant is the applicant; and (2) the complainant sets forth the relevance of the complaint to the complainant's pending discharge review application.
(B) The second priority category consists of requests for correction of the decisional document in the complainant's own discharge review case.
(C) The third priority category consists of complaints submitted by former members of the Armed Forces (or their counsel) who state that the complaint is submitted to assist the former member's submission of an application for review.
(D) The fourth priority category consists of other complaints in which the complainant demonstrates that correction of the decisional document will substantially enhance the ability of applicants to present a significant issue to the DRBs.
(E) The fifth priority category consists of all other cases.
(ii) Complainants who request consideration in a priority category shall set forth in the complaint the facts that give rise to the claim of placement in the requested category. If the complaint is relevent to a pending discharge review in which the complainant is applicant or counsel, the scheduled date of the review should be specified.
(iii) The administrative director is responsible for monitoring compliance with the following processing goals:
(A) The administrative director normally shall forward correspondence to the Military Department concerned within 3 days after the date of receipt specified in the docket number. Correspondence forwarded directly to the DASD(MP&FM) under paragraph (d)(2)(iii) of this section, normally shall be transmitted within 7 days after the date of receipt.
(B) The Military Department normally shall request the necessary records within 5 working days after the date of receipt from the administrative director. The Military Department normally shall complete action under paragraph (d)(4) of this section within 45 days after receipt of all necessary records. If action by the Military Department is required under paragraph (d)(9) of this section, normally it shall be completed within 45 days after action is taken by the DASD(MP&FM).
(C) The JSRA normally shall complete action under paragraph (d)(7) of this section at the first monthly meeting held during any period commencing 10 days after the administrative director receives the action of the Military Department under paragraph (d)(5) of this section.
(D) The DASD(MP&FM) normally shall complete action under paragraph (d)(8) of this section within 30 days after action is taken by the JSRA under paragraph (d)(7) of this section or by the administrative director under paragraph (d)(2)(iii) of this section.
(E) If action is not completed within the overall processing goals specified in this paragraph, the complainant shall be notified of the reason for the delay by the administrative director and shall be provided with an approximate date for completion of the action.
(iv) If the complaints are submitted in any 30 day period with respect to more than 50 decisional documents, the administrative director shall adjust the processing goals in light of the number of complaints and discharge review applications pending before the DRBs.
(v) At the end of each month, the administrative director shall send each Military Department a list of complaints, if any, in which action has not been completed within 60 days of the docket date. The Military Department shall inform the administrative director of the status of each case.
(4) Review of complaints by the Military Departments. The Military Department shall review the complaint under the following guidance:
(i) Rejection of complaint. If the Military Department determines that all the allegations contained in the complaint are not specific or have no merit, it shall address the allegations using the format at attachment 1 (Review of Complaint).
(ii) Partial agreement. If the Military Department determines that some of the allegations contained in the complaint are not specific or have no merit and that some of the allegations contained in the complaint have merit, it shall address the allegations using the format at attachment 1 and its DRB shall take appropriate corrective action in accordance with paragraph (d)(4)(v) of this section.
(iii) Full agreement. If the Military Department determines that all of the allegations contained in the complaint have merit, its DRB shall take appropriate corrective action in accordance with paragraph (d)(4)(v) of this section.
(iv) Other defects. If, during the course of its review, the Military Department notes any other defects in the decisional document or index entries (under the applicable requirements of the Urban Law case or under this part) the DRB shall take appropriate corrective action under paragraph (d)(4)(v) of this section. This does not establish a requirement for the Military Department to review a complaint for any purpose other than to determine whether the allegations contained in the complaint are specific and have merit; rather, it simply provides a format for the Military Department to address other defects noted during the course of processing the complaint.
(v) Appropriate corrective action. The following procedures govern appropriate corrective action:
(A) If a complaint concerns the decisional document in the complainant's own discharge review case, appropriate corrective action consists of amending the decisional document or providing the complainant with an opportunity for a new discharge review. An amended decisional document will be provided if the applicant requests that form of corrective action.
(B) If a complaint concerns a decisional document involving an initial record review under the Special Discharge Review Program or the Pub. L. 95-126 rereview program, appropriate corrective action consists of (1) amending the decisional document; or (2) notifying the applicant and counsel, if any, of the opportunity to obtain a priority review using the letter providing at attachment 6. When the DRB takes corrective action under this provision by amending a decisional document, it shall notify the applicant and counsel, if any, of the opportunity to request a de novo review under the Special Discharge Review Program or under Pub. L. 95-126 rereview program, as appropriate.
(C) When corrective action is taken with respect to a decisional document in cases prepared under Pub. L. 95-126 the DRB must address issues previously raised by the DRB or the applicant during review of the same case during the SDRP only insofar as required by the following guidance:
(1) When the DRB bases its decision upon issues previously considered during the SDRP, the new decisional document under Pub. L. 95-126 must address those issues;
(2) If, during consideration of the case under Pub. L. 95-126 the applicant presents issues previously considered during the SDRP, the new decisional document must address those issues; and
(3) If a decisional document concerning an initial record review under Pub. L. 95-126 is otherwise defective and corrective action is taken after a request by the applicant for a priority review in response to the letter at attachment 6, the new decisional document shall address all issues previously raised by the applicant during the SDRP.
(D) Except for cases falling under paragraph (d)(4)(v)(B) of this section, if a complaint concerns a decisional document in which the applicant received an Honorable Discharge and the full relief requested, if any, with respect to the reason for discharge, appropriate corrective action consists of amending the decisional document.
(E) In all other cases, appropriate corrective action consists of amending the decisional document or providing the applicant with the opportunity for a new review, except that an amended decisional document will be provided when the complainant expressly requests that form of corrective action.
(vi) Amended decisional documents. One that reflects a determination by a DRB panel (or the SRA) as to what the DRB panel (or SRA) that prepared the defective decisional document would have entered on the decisional document to support its decision in this case.
(A) The action of the amending authority does not necessarily reflect substantive agreement with the decision of the original DRB panel (or SRA) on the merits of the case.
(B) A corrected decisional document created by amending a decisional document in response to a complaint will be based upon the complete record before the DRB (or the SRA) at the time of the original defective statement was issued, including, if available, a transcript, tape recording, videotape or other record of a hearing, if any. The new decisional document will be indexed under categories relevant to the new statements.
(C) When an amended decisional document is required under paragraphs (d)(4)(v)(A) and (d)(4)(v)(D) of this section and the necessary records cannot be located, a notation to that effect will be made on the decisional document, and the applicant and counsel, if any, will be afforded an opportunity for a new review, and the complainant will be informed of the action.
(D) When an amended decisional document is requested under paragraph (d)(4)(v)(C) and the necessary records cannot be located, a notation to that effect will be made on the decisional document, and the complainant will be informed that the situation precludes further action.
(vii) Time limit for requesting a new review. An applicant who is afforded an opportunity to request a new review may do so within 45 days.
(viii) Interim notification. When the Military Department determines that some or all of the allegations contained in the complaint are not specific or have no merit but its DRB takes corrective action under paragraph (d)(4)(ii) or (d)(4)(iv) of this section, the DRB's notification to the applicant and counsel, if any, and to the complainant, if other than the applicant or counsel, should include the following or similar wording: “This is in partial response to (your)/(a) complaint to the Office of the Assistant Secretary of Defense (Manpower, Reserve Affairs, and Logistics) dated ____ concerning ____ Discharge Review Board decisional document ____. A final response to (your)/(the) complaint, which has been returned to the Office of the Assistant Secretary of Defense (Manpower, Reserve Affairs, and Logistics) for further review, will be provided to you in the near future.”
(ix) Final notification. When the Discharge Review Board takes corrective action under paragraphs (d)(4)(iii) and (d)(9) of this section ____ its notification to the applicant and counsel, if any, and to the complainant, if other than the applicant or counsel, should include the following or similar wording: “This is in response to (your)/(a) complaint to the Office of the Assistant Secretary of Defense (Manpower, Reserve Affairs, and Logistics) dated ____ concerning ____ Discharge Review Board decisional document ____.
(5) Transmittal to the administrative director. The Military Department shall return the complaint to the administrative Director with a copy of the decisional document and, when applicable, any of the following documents:
(i) The “Review of Complaint.”
(ii) A copy of the amendment to the decisional document and the accompanying transmittal letter or letters to the applicant and counsel, if any, and to the complainant, if other than the applicant or counsel.
(iii) A copy of the notification to the applicant and counsel, if any, of the opportunity to request a new review, and a copy of the notification to the complainant, if other than the applicant or counsel, that the applicant has been authorized a new review.
(6) Review by the administrative director. The administrative director shall review the complaint and accompanying documents to ensure the following:
(i) If the Military Department determined that any of the allegations contained in the complaint are not specific or have no merit, the JSRA shall review the complaint and accompanying documents. The JSRA shall address the allegations using the format at attachment 2 (Review of and Recommended Action on Complaint) and shall note any other defects in the decisional document or index entries not previously noted by the Military Department. This does not establish a requirement for the JSRA to review such complaints for any purpose other than to address the allegations contained in the complaint; rather, it simply provides a format for the JSRA to address other defects noted in the course of processing the complaint.
(ii) If the Military Department determined that all of the allegations contained in the complaint have merit and its DRB amended the decisional document, the amended decisional document shall be subject to review by the JSRA on a sample basis each quarter using the format at attachment 3 (Review of any Recommendation on Amended Decisional Document).
(iii) If the Military Department determined that all of the allegations contained in the complaint have merit and its DRB notified the applicant and counsel, if any, of the opportunity to request a new review, review of such corrective action is not required.
(7) Review by the JSRA. The JSRA shall meet for the purpose of conducting the reviews required in paragraphs (d)(6)(i), (d)(6)(ii), and (d)(9)(iii)(A) of this section. The Administrative director shall call meetings once a month, if necessary, or more frequently depending upon the number of matters before the JSRA. Matters before the JSRA shall be presented to the members by the recorder. Each member shall have one vote in determining matters before the JSRA, a majority vote of the members determining all matters. Determinations of the JSRA shall be reported to the DASD(MP&FM) as JSRA recommendations using the prescribed format. If a JSRA recommendation is not unanimous, the minority member may prepare a separate recommendation for consideration by the DASD(MP&FM) using the same format. Alternatively, the minority member may indicate “dissent” next to his signature on the JSRA recommendation.
(8) Review by the DASD(MP&FM). The DASD(MP&FM) shall review all recommendations of the JSRA and the administrative director as follows:
(i) The DASD(MP&FM) shall review complaints using the format at Attachment 4 (Review of and Action on Complaint). The DASD(MP&FM) is the final authority in determining whether the allegations contained in a complaint are specific and have merit. If the DASD(MP&FM) determines that no further action by the Military Department is warranted, the complainant and the Military Department shall be so informed. If the DASD(MP&FM) determines that further action by the Military Department is required, the Military Department shall be directed to ensure that appropriate corrective action is taken by its DRB and the complainant shall be provided an appropriate interim response.
(ii) The DASD(MP&FM) shall review amended decisional documents using the format at attachment 5 (Review of and Action on Amended Decisional Document). The DASD(MP&FM) is the final authority in determining whether an amended decisional document complies with applicable requirements of the Urban Law case and, when applicable, this Directive. If the DASD(MP&FM) determines that no further corrective action by the Military Department is warranted, the Military Department shall be so informed. If the DASD(MP&FM) determines that further corrective action by the Military Department is required, the Military Department shall be directed to ensure that appropriate corrective action is taken by its DRB.
(iii) It is noted that any violation of applicable requirements of the Urban Law case is also a violation of this part. However, certain requirements under this part are not requirements under the Urban Law case. If the allegations contained in a complaint are determined to have merit or if an amended decisional document is determined to be defective on the basis of one of these additional requirements under this part the DASD(MP&FM) determination shall reflect this fact.
(9) Further action by the Military Department. (i) With respect to a determination by the DASD (MP&FM) that further action by the Military Department is required, its DRB shall take appropriate corrective action in accordance with paragraph (d)(4) of this section.
(ii) The Military Department shall provide the administrative director with the following documents when relevant to corrective action taken in accordance with paragraph (d)(4) of this section:
(A) A copy of the amendment to the decisional document and the accompanying transmittal letter or letters to the applicant and counsel, if any, and to the complainant, if other than the applicant or counsel.
(B) A copy of the notification to the applicant and counsel, if any, of the opportunity to request a new review, and a copy of the notification to the complainant, if other than the applicant or counsel, that the applicant has been authorized a new review.
(iii) The administrative director shall review the documents relevant to corrective action taken in accordance with paragraph (d)(4) of this section, and ensure the following:
(A) If the DRB amended the decisional document, the amended decisional document shall be subject to review by the JSRA on a sample basis each quarter using the format at attachment 3 (Review of and Recommended Action on Amended Decisional Document).
(B) If the DRB notified the applicant and counsel, if any, of the opportunity to request a new review, review of such corrective action is not required.
(10) Documents required by the JSRA or DASD (MP&FM). Upon request, the Military Department shall provide the administrative director with other documents required by the JSRA or the DASD (MP&FM) in the conduct of their reviews.
(e) Responses to inquiries. The following procedures shall be used in processing inquiries:
(1) The administrative director shall assign a docket number to the inquiry.
(2) The administrative director shall forward the inquiry to the Military Department concerned.
(3) The Military Department shall prepare a response to the inquiry and provide the administrative director with a copy of the response.
(4) The Military Department's response shall include the following or similar wording: “This is in response to your inquiry to the Office of the Assistant Secretary of Defense (Manpower, Reserve Affairs, and Logistics) dated ____ concerning ____.
(f) Indexing. The DRB concerned shall reindex all amended decisional documents and shall provide copies of the amendments to the decisional documents to the Armed Forces Discharge Review/Correction Board Reading Room.
(g) Disposition of documents. The administrative director is responsible for the disposition of all Military Department, DRB, JSRA, and DASD (MP&FM) documents relevant to processing complaints and inquiries.
(h) Referral by the General Counsel, Department of Defense. The Stipulation of Dismissal permits Urban Law plaintiffs to submit complaints to the General Counsel, DoD, for comment. The General Counsel, DoD, may refer such complaints to the Military Department concerned or to the JSRA for initial comment.
(i) Decisional document and index entry principles. The DASD (MP&FM) shall identify significant principles concerning the preparation of decisional documents and index entries as derived from decisions under this section and other opinions of the Office of General Counsel, DoD. This review shall be completed not later than October 1 and April 1 of each year, or more frequently if deemed appropriate by the DASD (MP&FM). The significant principles identified in the review shall be coordinated as proposed as amendments to the sections of this part.
(j) Implementation of amendments. The following governs the processing of any correspondence that is docketed prior to the effective date of amendments to this section except as otherwise provided in such amendments:
(1) Any further action on the correspondence shall be taken in accordance with the amendments; and
(2) No revision of any action taken prior to the effective date of such amendments is required.

Attachment 1—Review of Complaint

Military Department:

Decisional Document Number:

Name of Complainant:

Docket Number:

Date of this Review:
1. Specific allegation(s) noted:
2. With respect in support of the conclusion, enter the following information:
a. Conclusion whether corrective action is required.
b. Reasons in support of the conclusion, including findings of fact upon which the conclusion is based.
3. Other defects noted in the decisional document or index entries:
(Authentication)

Attachment 2—Joint Service Review Activity

Office of the Assistant Secretary of Defense (Manpower, Reserve Affairs, and Logistics)

Review by the Joint Service Review Activity

Military Department:

Decisional Document Number:

Name of Complainant:

Name of Applicant:

Docket Number:

Date of this Review:
1. The Military Department's “Review of Complaint” is attached as enclosure 1.
2. Specific Allegations: See part 1 of Military Department's “Review of Complaint” (enclosure 1).
3. Specific allegation(s) not noted by the Military Department:
4. With respect to each allegation, enter the following information:
a. Conclusion as to whether corrective action is required.
b. Reasons in support of the conclusion, including findings of fact upon which conclusion is based.

Note.
If JSRA agrees with the Military Departments, the JSRA may respond by entering a statement of adoption.
5. Other defects in the decisional document or index entries not noted by the Military Departments:
6. Recommendation:
[] The complainant and the Military Department should be informed that no further action on the complaint is warranted.
[] The Military Department should be directed to take corrective action consistent with the above comments.
Army Member, JSRA
Air Force Member, JSRA
Navy Member, JSRA
Recorder, JSRA

Attachment 3—Joint Service Review Activity

Office of the Assistant Secretary of Defense (Manpower, Reserve Affairs, and Logistics)

Review of Amended Decisional Document (Quarterly Review)

Military Department:

Decisional Document Number:

Name of Complainant:

Name of Applicant:

Docket Number:

Date of this Review:

Recommendation:
[] The amended decisional document complies with the requirements of the Stipulation of Dismissal and, when applicable, DoD Directive 1332.28. The Military Department should be informed that no further corrective action is warranted.
[] The amended decisional document does not comply with the Stipulation of Dismissal or DoD Directive 1332.28 as noted herein. The Military Department should be directed to ensure that corrective action consistent with the defects noted is taken by its Discharge Review Board.
Army Member, JSRA
Air Force Member, JSRA
Navy Member, JSRA
Recorder, JSRA
Yes | No | NA | Item | Source
☐ | ☐ | ☐ | 1. Date of discharge | 1. DoD Directive 1332.28, enclosure 3, subsection H.1.; Stipulation (Jan. 31, 1977) para. 5.A.(1)(d)(i) (reference (1)).
☐ | ☐ | ☐ | a. Date of discharge
☐ | ☐ | ☐ | b. Character of discharge
☐ | ☐ | ☐ | c. Reason for discharge
☐ | ☐ | ☐ | d. Specific regulatory authority under which discharge was issued
☐ | ☐ | ☐ | 2. Service data. (This requirement applies only in conjunction with Military Department Implementation of General Counsel, DoD, letter dated July 20, 1977, or to discharge reviews conducted on or after March 29, 1978.) | 2. DoD Directive 1332.28, enclosure 3, subsection H.1.; Annex B, (June __, 1982) para. 2-2 (reference (1)).
☐ | ☐ | ☐ | a. Date of enlistment
☐ | ☐ | ☐ | b. Period of enlistment
☐ | ☐ | ☐ | c. Age at enlistment
☐ | ☐ | ☐ | d. Length of service
☐ | ☐ | ☐ | e. Periods of unauthorized absence*
☐ | ☐ | ☐ | f. Conduct and efficiency ratings (numerical and narrative)*
☐ | ☐ | ☐ | g. Highest rank achieved
☐ | ☐ | ☐ | h. Awards and decorations*
☐ | ☐ | ☐ | i. Educational level
☐ | ☐ | ☐ | j. Aptitude test scores
☐ | ☐ | ☐ | k. Art. 15s (including nature and date of offense or punishment)*
☐ | ☐ | ☐ | l. Convictions by court-martial*
☐ | ☐ | ☐ | m. Prior military service and type of discharge(s) received*
☐ | ☐ | ☐ | 3. Reference to materials presented by applicant. (This requirement applies only to discharge reviews conducted on or after March 29, 1978.) | 3. DoD Directive 1332.28, enclosure 3, subsection H.2.; H.3.
☐ | ☐ | ☐ | a. Written brief*
☐ | ☐ | ☐ | b. Documentary evidence*
☐ | ☐ | ☐ | c. Testimony*
☐ | ☐ | ☐ | 4. Items submitted as issues. (See issues worksheet) | 4. DoD Directive 1332.28, enclosure 3, subsection H.6.
☐ | ☐ | ☐ | 5. Conclusions. The decisional document must indicate clearly the DRB's conclusion concerning: | 5. Dod Directive 1332.28, enclosure 3, subsection H.5.; Stipulation (Jan. 31, 1977), paragraph 5.A.(1)(d)(iv) (reference (1)).
☐ | ☐ | ☐ | a. Determination of whether a discharge upgraded under SDRP would have been upgraded under DoD Directive 1332.28. (This applies only to mandatory reviews under P.L. 95-126 or Special Discharge Review Program (SDRP)
| ☐ | ☐ | ☐ | b. Character of discharge, when applicable ^1
☐ | ☐ | ☐ | c. Reason for discharge, when applicable ^2
☐ | ☐ | ☐ | 6. Reasons for conclusions. The decisional document must list and discuss the items submitted as issues by the applicant; and list and discuss the decisional issues providing the basis for the DRB's conclusion concerning: | 6. DoD Directive 1332.28, enclosure 3, subsection H.7., H.8.; Stipulation (Jan. 31, 1977) para. 5.A.(1)(d)(v) (reference (1)).
☐ | ☐ | ☐ | a. Whether a discharge upgraded under the SDRP would have been upgraded under DoD Directive 1332.28. (This applies only to mandatory rereviews under P.L. 95-126 or SDRP reviews.)
☐ | ☐ | ☐ | b. Character of discharge, where applicable ^1
☐ | ☐ | ☐ | c. Reason for discharge, where applicable ^2
☐ | ☐ | ☐ | 7. Advisory opinions* | 7. DoD Directive 1332.28, enclosure 3, subsection H.12., Stipulation (Jan. 31, 1977) para. 5.A.(1)(f) (reference (1)).
☐ | ☐ | ☐ | 8. Recommendation of DRB President | 8. DoD Directive 1332.28, enclosure 3, subsection H.12., Stipulation (Jan. 31, 1977) para. 5.A.(1)(g) (reference (1)).
☐ | ☐ | ☐ | 9. A record of voting | 9. DoD Directive 1332.28, enclosure 3, subsection H.13., Stipulation (Jan. 31, 1977) para. 5.A.(3) (reference (1)).
☐ | ☐ | ☐ | 10. Indexing of decisional document | 10. DoD Directive 1332.28, enclosure 3, subsection H.14., Stipulation (Jan. 31, 1977) para. 5.A.(5)(a) (reference (1)).
☐ | ☐ | ☐ | 11. Authentication of decisional document. (This requirement applies only to discharge reviews conducted on or after March 29, 1978.) | 11. DoD Directive 1332.28, enclosure 3, subsection H.15.
☐ | ☐ | ☐ | 12. Other | 12. As appropriate.
Explanation of items marked “No.”
Key:
Yes: The decisional document meets the requirements of the Stipulation of Dismissal and, when applicable, DoD Directive 1332.28.
No: The decisional document does not meet the requirements of the Stipulation of Dismissal or DoD Directive 1332.28.
NA: Not applicable.
*Items marked by an asterisk do not necessarily pertain to each review. If the decisional document contains no reference to such an item, NA shall be indicated. When there is a specific complaint with respect to an item, the underlying discharge review record shall be examined to address the complaint.
^1 In this instance “when applicable” means all reviews except:
a. Mandatory rereviews under P.L. 95-126 or SDRP reviews.
b. Reviews in which the applicant requested only a change in the reason for discharge and the DRB did not raise the character of discharge as a decisional issue.
^2 In this instance “when applicable” means all reviews in which:
a. The applicant requested a change in the reason for discharge.
b. The DRB raised the reason for discharge as a decisional issue.
c. A change in the reason for discharge is a necessary component of a change in the character of discharge.
Attachment 4—Issues Worksheets ^1
| Listed | Addressed | Corrective action required
A. Decisional issues providing a basis for the conclusion regarding a change in the character of or reason for discharge. (DoD Directive 1332.28, enclosure 3, subsection D.2):
1. | ☐ | ☐ | ☐
2. | ☐ | ☐ | ☐
3. | ☐ | ☐ | ☐
B. Items submitted as issues by the applicant that are not identified as decisional issues. (DoD Directive 1332.28, enclosure 3, subsection D.3):
1. | ☐ | ☐ | ☐
2. | ☐ | ☐ | ☐
3. | ☐ | ☐ | ☐
C. Remarks:
^1 This review may be made based upon the decisional document without reference to the underlying discharge review record except as follows: if there is an allegation that a specific contention made by the applicant to the DRB was not addressed by the DRB. In such a case, the complaint review process shall involve a review of all the evidence that was before the DRB, including the testimony and written submissions of the applicant, to determine whether the contention was made, and if so, whether it was addressed adequately with respect to the Stipulation of Dismissal and, when applicable, DoD Directive 1332.28.
This review may be based upon the decisional document without reference to the regulation governing the discharge in question except as follows: if there is a specific complaint that the DRB failed to address a specific factor required by applicable regulations to be considered for determination of the character of and reason for the discharge in question [where such factors are a basis for denial of any of the relief requested by the applicant]. (The material in brackets pertains only to discharge reviews conducted on or before March 28, 1978.)

Attachment 5—Office of the Assistant Secretary of Defense (Manpower, Reserve Affairs, and Logistics)

Review of Complaint (DASD(MP&FM))

Military Department:

Decisional Document Number:

Name of Complainant:

Name of Applicant:

Docket Number:

Date of this Review:
1. Each allegation is addressed as follows:
a. Allegation.
b. Conclusion whether corrective action is required.
c. Reasons in support of the conclusion, including findngs of fact upon which the conclusion is based.

Note:
If the DASD(MP&FM) agrees with the JSRA, he may respond by entering a statement of adoption.
2. Other defects noted in the decisional document or index entries:
3. Determinations:
[] No further action on the complaint is warranted.
[] Corrective action consistent with the above comments is required.
Deputy Assistant Secretary of Defense
(Military Personnel & Force Management)

Attachment 6—Office of the Assistant Secretary of Defense (Manpower, Reserve Affairs, and Logistics)

Review of Amended Decisional Document (DASD (MP&FM))

Military Department:

Decisional Document Number:

Name of Complainant:

Name of Applicant:

Docket Number:

Date of this Review:

Recommendation:
[] The amended decisional document complies with the requirements of the Stipulation of Dismissal and, when applicable, DoD Directive 1332.28. No further corrective action is warranted.
[] The amended decisional document does not comply with the Stipulation of Dismissal or DoD Directive 1332.28 as noted herein. Further corrective action is required consistent with the defects noted in the attachment.
Deputy Assistant Secretary of Defense
(Military Personnel & Force Management)
Remarks:

Attachment 7
Dear ___:
It has been determined that the decisional document issued in your case by the (Army) (Navy) (Air Force) Discharge Review Board during the (Special Discharge Review Program) (rereview program under Pub. L. No. 95-126) should be reissued to improve the clarity of the statement of findings, conclusions, and reasons for the decision in your case.
In order to obtain a new decisional document you may elect one of the following options to receive a new review under the (Special Discharge Review Program) (rereview program mandated by Pub. L. No. 95-126):
1. You may request a new review, including a personal appearance hearing if you so desire, by responding on or before the suspense date noted at the top of this letter. Taking this action will provide you with a priority review before all other classes of cases.
2. You may request correction of the original decisional document issued to you by responding on or before the suspense date noted at the top of this letter. After you receive a corrected decisional document, you will be entitled to request a new review, including a personal appearance hearing if you so desire. If you request correction of the original decisional document, you will not receive priority processing in terms of correcting your decisional document or providing you with a new review; instead, your case will be handled in accordance with standard processing procedures, which may mean a delay of several months or more.
If you do not respond by the suspense date noted at the top of this letter, no action will be taken. If you subsequently submit a complaint about this decisional document, it will be processed in accordance with standard procedures.
To ensure prompt and accurate processing of your request, please fill out the form below, cut it off at the dotted line, and return it to the Discharge Review Board of the Military Department in which you served at the address listed at the top of this letter.
Check only one:
[] I request a new review of my case on a priority basis. I am requesting this priority review rather than requesting correction of the decisional document previously issued to me. I have enclosed DD Form 293 as an application for my new review.
[] I request correction of the decisional document previously issued to me. I understand that this does not entitle me to priority action in correcting my decisional document. I also understand that I will be able to obtain a further review of my case upon my request after receiving the corrected decisional document, but that such a review will not be held on a priority basis.
Dates
Signatures
Printed Name and Address
[47 FR 37785, Aug. 26, 1982, as amended at 48 FR 9856, Mar. 9, 1983]
§ 70.11
DoD semiannual report.
(a) Semiannual reports will be submitted by the 20th of April and October for the preceding 6-month reporting period (October 1 through March 31 and April 1 through September 30).
(b) The reporting period will be inclusive from the first through the last days of each reporting period.
(c) The report will contain four parts:
(1) Part 1. Regular Cases.
(2) Part 2. Reconsideration of President Ford's Memorandum of January 19, 1977, and Special Discharge Review Program Cases.
(3) Part 3. Cases Heard under Pub. L. 95-126 by waiver of 10 U.S.C. 1553, with regard to the statute of limitations.
(4) Part 4. Total Cases Heard.
Semiannual DRB Report—RCS DD-M(SA) 1489; Summary of Statistics for Discharge Review Board (FY)
[Sample format]
Name of board | Nonpersonal appearance | Applied | Number approved | Percent approved | Personal appearance | Applied | Number approved | Percent approved | Applied | Total | Number approved | Percent approved
Note:
Identify numbers separately for traveling panels, regional panels, or hearing examiners, as appropriate.
Use of additional footnotes to clarify or amplify the statistics being reported is encouraged.
Pt. 74

PART 74—APPOINTMENT OF DOCTORS OF OSTEOPATHY AS MEDICAL OFFICERS
Sec.
74.1
Purpose.
74.2
Policy.

Authority:
10 U.S.C. 3294, 5574, 8294.

Source:
25 FR 14370, Dec. 31, 1960, unless otherwise noted.
§ 74.1
Purpose.
The purpose of this part is to implement the provisions of Pub. L. 763, 84th Congress (70 Stat. 608), relating to the appointment of doctors of osteopathy as medical officers.
§ 74.2
Policy.
In the interest of obtaining maximum uniformity, the following criteria are established for the appointment of doctors of osteopathy as medical officers:
(a) To be eligible for appointment as Medical Corps officers in the Army and Navy or designated as medical officers in the Air Force, a doctor of osteopathy must:
(1) Be a citizen of the United States;
(2) Be a graduate of a college of osteopathy whose graduates are eligible for licensure to practice medicine or surgery in a majority of the States, and be licensed to practice medicine, surgery, or osteopathy in one of the States or Territories of the United States or in the District of Columbia;
(3) Possess such qualifications as the Secretary concerned may prescribe for his service, after considering the recommendations for such appointment by the Surgeon General of the Army or the Air Force or the Chief of the Bureau of Medicine and Surgery of the Navy;
(4) Have completed a minimum of three years college work prior to entrance into a college of osteopathy;
(5) Have completed a four-year course with a degree of Doctor of Osteopathy from a school of osteopathy approved by the American Osteopathic Association; and
(6) Have had subsequent to graduation from an approved school of osteopathy 12 months or more of intern or residency training approved by the American Osteopathic Association.
(b) [Reserved]
Pt. 77

PART 77—PROGRAM TO ENCOURAGE PUBLIC AND COMMUNITY SERVICE
Sec.
77.1
Purpose.
77.2
Applicability and scope.
77.3
Definitions.
77.4
Policy.
77.5
Responsibilities.
77.6
Procedures.
Appendix A to Part 77—DD Form 2580, Operation Transition Department of Defense Outplacement and Referral System/Public and Community Service Individual Application
Appendix B to Part 77—DD Form 2581, Operation Transition Employer Registration
Appendix C to Part 77—DD Form 2581-1, Public and Community Service Organization Validation

Authority:
10 U.S.C. 1143 (c).

Source:
59 FR 40809, Aug. 10, 1994, unless otherwise noted.
§ 77.1
Purpose.
This part implements Pub. L. 102-484, Section 4462 and Pub. L. 103-160, Section 561 by establishing policy, assigning responsibilities, and prescribing procedures to:
(a) Encourage and assist separating Service members, Service members retiring with 20 or more years of service, DoD civilian personnel leaving the Government, and spouses to enter public and community service employment.
(b) Encourage and assist Service members requesting retirement with fewer than 20 years of service to register for public and community service employment.
§ 77.2
Applicability and scope.
This part applies to:
(a) The Office of the Secretary of Defense, the Military Departments, the Chairman of the Joint Chiefs of Staff, the Unified Combatant Commands, and the Defense Agencies (hereafter referred to collectively as “the DoD Components”). The term “Military Services,” as used herein, refers to the Army, the Navy, the Air Force, and the Marine Corps.
(b) All active duty Service members and former members under Pub. L. 102-484, Section 4462 and Pub. L. 103-160, Section 561, and DoD civilian personnel leaving the Government, and their spouses.
§ 77.3
Definitions.
(a) Community service employment. Work in nonprofit organizations that provide or coordinate services listed in paragraphs (d) (1) through (12) of this section. “Nonprofit” is defined as having been recognized by the Internal Revenue Service as having a tax-exempt status under 26 U.S.C. 501 (c)(3) or (c)(4). These organizations shall not be administered by businesses organized for profit, labor unions, partisan political organizations, or organizations engaged in religious activities, unless such activities are unrelated to religious instructions, worship services, or any form of proselytization.
(b) Creditable early retirement public or community service employment for service members. Employment in a DoD-registered public and community service organization that provides the services listed in paragraphs (d) (1) through (12) of this section, or that coordinates the provision of the services listed in paragraphs (d) (1) through (12) of this section. Federal employment shall count toward recomputed military retirement pay and Survivor Benefit Plan base amount for early retirees: however, working in a DoD-registered Federal public service organization may trigger the dual-compensation restrictions of 5 U.S.C. 5532. Employment must have occurred between that date of early retirement and the date in which the Service member would have attained 20 years of credible service for computing retired pay, or he or she must have retired on or after October 23, 1992 and before October 1, 1999.
(c) Early retirement. Retirement from active duty with at least 15 but fewer than 20 years of service, as provided by Pub. L. 102-484, Section 4403.
(d) Public and community service organization. Government or private organizations that provide or coordinate the provision of the following services.
(1) Elementary, secondary, or post secondary school teaching or administration.
(2) Support of teachers or school administrators.
(3) Law enforcement.
(4) Public health care.
(5) Social services.
(6) Public safety.
(7) Emergency relief.
(8) Public housing.
(9) Conservation.
(10) Environment.
(11) Job training.
(12) Other public and community service not listed previously, but consistent with or related to services described in paragraphs(d)(1) through (11) of this section.
(e) Public service employment. Work in a Federal, state or local government organization which provides or coordinates services listed in paragraphs (d)(1) through (12) of this section.
(f) Separation. Normal separation from activity duty or civil service, military retirement with 20 or more year's service, release from active military service, and reduction in force.
(g) Transition assistance program counselor. A person charged with the responsibility of conducting transition programs. Examples include personnel assigned to family centers, military or civilian personnel offices, unit transition counselors, and as command career counselors.
§ 77.4
Policy.
It is DoD policy that:
(a) All separating Service members and former members shall be encouraged to enter public or community service employment.
(b) Service members determined to be eligible by the Secretary of their Military Department for, and who do request retirement with fewer than 20 years of service, are required by Pub. L. 102-484, Section 4403 to register for public and community service employment.
(1) This registration normally shall take place not earlier than 90 days before retirement or terminal/transition leave.
(2) In order to have their military retired pay and Survivor Benefit Plan base amount (if applicable) recomputed in accordance with DoD Instruction 1340.19 ^1 early retirees must be employed with a DoD-registered public or community service organization that provides the services listed in sections 77.3(d)(1) through (d)(12), or that coordinates the provision of services listed in section 77.3(d)(1) through (d)(12).
^1 Copies may be obtained, at cost, from the National Technical Information Service, 5285 Port Royal Road, Springfield, VA 22161.
(c) DoD civilian personnel leaving the Government, their spouses, and spouses of Service members who are seeking employment shall be encouraged to register for public and community service employment.
§ 77.5
Responsibilities.
(a) The Under Secretary of Defense for Personnel and Readiness shall:
(1) Monitor compliance with this rule.
(2) Establish policy and provide guidance related to public and community service employment.
(3) Provide program information to the public on the Department of Defense's public and community service employment program.
(4) Ensure that the Director, Defense Manpower Data Center (DMDC):
(i) Maintains the Public and Community Service Organizational Registry.
(ii) Maintains the Public and Community Service Personnel Registry.
(5) Decide the status of requests for reconsideration from employers resubmitting their request to be included on the Public and Community Service Organizational Registry, but whose first request was disapproved.
(b) The Secretaries of the Military Departments shall:
(1) Ensure compliance with this rule.
(2) Encourage public and community service employment for separating Service members, their spouses, DoD civilian personnel leaving the Government, and their spouses.
(3) Coordinate with the Under Secretary of Defense for Personnel and Readiness before promulgating public and community service employment policies and regulations.
§ 77.6
Procedures.
(a) Military personnel offices shall advise Service members desiring to apply for early retirement that they shall register, normally, within 90 days of their retirement date, for public and community service (PACS) employment, and refer them to a Transition Assistance Program Counselor for registration.
(b) Personnel offices shall advise separating Service members, DoD civilian personnel leaving the Government, and their spouses to contact a Transition Assistance Program Counselor about PACS employment and registration.
(c) Transition Assistance Program Counselors shall counsel separating Service members (during preseparation counseling established by DoD Instruction 1332.36 ^2 ), DoD civilian personnel leaving the Government, and their spouses on PACS employment. Counselors shall update into the Defense Outplacement Referral System (DORS) database Service members requesting early retirement and other DoD personnel or spouses who request registration. Transition Assistance Program Counselors shall use DD Form 2580 (Appendix A to this part) to register personnel for PACS employment. In addition, Counselors shall ensure that Service members who are requesting early retirement are advised that:
^2 See footnote 1 to section 77.4(b)(2).
(1) Registering for PACS employment is a requirement for consummation of their early retirement under Pub. L. 102-484, Section 4403 or Pub. L. 103-160, Section 561.
(2) Early retirees must provide a copy of their confirmation DORS mini-resume to their servicing military personnel office for filing in their Service record before their final retirement processing.
(3) Subsequent PACS employment is encouraged but not required.
(4) Working in a DoD-approved Federal public service organization may subject him or her to dual compensation restrictions of 5 U.S.C. 5532.
(5) DoD-approved PACS employment qualifies the Service member who is retired under Pub. L. 102-484, Section 4403 or Pub. L. 103-160, Section 561 for increased retired pay effective on the first day of the first month beginning after the date on which the member or former member attains 62 years of age. The former Service member must have worked in DoD-approved PACS employment between the date of early retirement and the date in which he or she would have attained 20 years of creditable service for computing retired pay, and have retired on or after October 23, 1992 and before October 1, 1999.
(6) It is the early retiree's responsibility to ensure that the DMDC is advised when the early retiree's PACS employment starts, and of any subsequent changes.
(d) Military personnel offices shall ensure a copy of the confirmation DORS mini-resume is filed in the permanent document section of the Service record of Service members who retire early.
(e) DMDC shall maintain the PACS Personnel Registry, which includes information on the particular job skills, qualifications, and experience of registered personnel.
(f) DMDC shall maintain the PACS Organizational Registry, which includes information regarding each organization, including its location, size, types of public or community service positions in the organization, points of contact, procedures for applying for such positions, and a description of each position that is likely to be available.
(g) PACS Organizations shall use DD Form 2581 (Appendix B to this part) and DD Form 2581-1 (Appendix C to this part) to request registration on the PACS Organizational Registry. Instructions on how to complete the forms and where to send them are on the forms.
(h) DMDC shall register those organizations meeting the definition of a PACS organization and include them on the PACS Organizational Registry. For organizations that do not appear to meet the criteria, DMDC shall refer the request to the Transition Support and Services Directorate, Office of the Assistant Secretary of Defense for Personnel and Readiness. The Transition Support and Services Directorate may consult individually on an ad hoc basis with appropriate agencies to determine whether or not the organization meets the validation criteria. For organizations which are denied approval as a creditable early retirement organization and which request reconsideration, the Transition Support and Services Directorate will forward that request to the next higher level for a final determination. DMDC shall advise organizations of their status.
Pt. 77, App. A

Appendix A to Part 77—DD Form 2580, Operation Transition Department of Defense

Outplacement and Referral System/Public and Community Service Individual Application
Pt. 77, App. B

Appendix B to Part 77—DD Form 2581, Operation Transition Employer Registration
Pt. 77, App. C

Appendix C to Part 77—DD Form 2581-1, Public and Community Service Organization Validation
Pt. 78

PART 78—VOLUNTARY STATE TAX WITHHOLDING FROM RETIRED PAY
Sec.
78.1
Purpose.
78.2
Applicability and scope.
78.3
Definitions.
78.4
Policy.
78.5
Procedures.
78.6
Responsibilities.
78.7
Standard agreement.

Authority:
10 U.S.C. 1045.

Source:
50 FR 47220, Nov. 15, 1985, unless otherwise noted.
§ 78.1
Purpose.
Under 10 U.S.C. 1045, this part provides implementing guidance for voluntary State tax withholding from the retired pay of uniformed Service members. The policy and procedures for this part are also located in the DoD Financial Management Regulation (“DoDFMR”), Volume 7B, Chapter 26, “State and Local Taxes” (DoD 7000.14-R).
[50 FR 47220, Nov. 15, 1985, as amended at 71 FR 40657, July 18, 2006]
§ 78.2
Applicability and scope.
(a) This part applies to the Office of the Secretary of Defense, the Military Departments, the Coast Guard (under agreement with the Department of Transportation), the Public Health Service (PHS) (under agreement with the Department of Health and Human Services and the National Oceanic and Atmospheric Administration (NOAA) (under agreement with the Department of Commerce). The term “Uniformed Services,” as used herein, refers to the Army, Navy, Air Force, Marine Corps, Coast Guard, commissioned corps of the PHS, and the Commissioned corps of the NOAA.
(b) It covers members retired from the regular and reserve components of the Uniformed Services who are receiving retired pay.
§ 78.3
Definitions.
(a) Income tax. Any form of tax under a State statute where the collection of that tax either imposes on employers generally the duty of withholding sums from the compensation of employees and making returns of such sums to the State, or grants employers generally the authority to withhold sums from the compensation of employees if any employee voluntarily elects to have such sum withheld. And, the duty to withhold generally is imposed, or the authority to withhold generally is granted, with respect to the compensation of employees who are residents of such State.
(b) Member. A person originally appointed or enlisted in, or conscripted into, a Uniformed Service who has retired from the regular or reserve component of the Uniformed Service concerned.
(c) Retired pay. Pay and benefits received by a member based on conditions of the retirement law, pay grade, years of service, date of retirement, transfer to the Fleet Reserve or Fleet Marine Corps Reserve, or disability. It also is known as retainer pay.
(d) State. Any State, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States.
§ 78.4
Policy.
(a) It is the policy of the Uniformed Services to accept written requests from members for voluntary income tax withholding from retired pay when the Department of Defense has an agreement for such withholding with the State named in the request.
(b) The Department of Defense shall enter into an agreement for the voluntary withholding of State income taxes from retired pay with any State within 120 days of a request for agreement from the proper State official. The agreement shall provide that the Uniformed Services shall withhold State income tax from the monthly retired pay of any member who voluntarily requests such withholding in writing.
§ 78.5
Procedures.
(a) The Uniformed Services shall comply with the payment requirements of the state, city, or county tax laws. Therefore, the payment requirements (biweekly, monthly, or quarterly) of the state, city, or county tax laws currently in effect will be observed by the Uniformed Services. However, payment will not be made more frequently than required by the state, city, or county, or more frequently than the payroll is paid by the Uniformed Services. Payment procedures shall conform, to the extent practicable, to the usual fiscal practices of the Uniformed Services.
(b) A member may request that the State designated for withholding be changed and that the subsequent withholdings be remitted as amended. A member may revoke his or her request for withholding at any time. Any request for a change in the State designated or any revocation is effective on the first day of the month after the month in which the request or revocation is processed by the Uniformed Service concerned, but in no event later than on the first day of the second month beginning after the day on which the request or revocation is received by the Uniformed Service concerned.
(c) A member may have in effect at any time only one request for withholding under this part. A member may not have more than two such requests in effect during any one calendar year.
(d) The agreements with States may not impose more burdensome requirements on the United States than on employers generally or subject the United States, or any member, to a penalty or liability because of such agreements.
(e) The Uniformed Services shall perform the services under this part without accepting payment from States for such services.
(f) The Uniformed Services may honor a retiree's request for refund until a payment has been made to the State. After that, the retiree may seek a refund of any State tax overpayment by filing the appropriate State tax form with the State that received the voluntary withholding payments. The Uniformed Services may honor a retiree's request for refund until a payment has been made to the State. State refunds will be in accordance with State income tax policy and procedures.
(g) A member may request voluntary tax withholding by writing the retired pay office of his or her Uniformed Service. The request shall include: The member's full name, social security number, the fixed amount to be withheld monthly from retired pay, the State designated to receive the withholding, and the member's current residence address. The request shall be signed by the member, or in the case of incompetence, his or her guardian or trustee. The amount of the request for State tax withholding must be an even dollar amount, not less than $10 or less than the State's minimum withholding amount, if higher. The Uniformed Services' retired pay office addresses are given as follows:
(1) Defense Finance and Accounting Service, Attn: DFAS/PRR/CL, 1240 East Ninth Street, Cleveland, OH 44199-2055.
(2) Coast Guard: Commanding Officer (RPB), U.S. Coast Guard Human Resources Service and Information Center, 444 S. E. Quincy Street, Topeka, KS 66683-3591.
(3) U.S. Public Health Service Compensation Branch, 5600 Fishers Lane, Room 4-50, Rockville, MD 20857.
(4) National Oceanic and Atmospheric Administration, Commanding Officer (RPB), U.S. Coast Guard Human Resources Service and Information Center, 444 S. E. Quincy Street, Topeka, KS 66683-3591.
(h) If a member's retired pay is not sufficient to satisfy a member's request for a voluntary State tax, then the withholding will cease. A member may initiate a new request when such member's retired pay is restored in an amount sufficient to satisfy the withholding request.
(i) A State requesting an agreement for the voluntary withholding of State tax from the retired pay of members of the Uniformed Services shall indicate, in writing, its agreement to be bound by the provisions of this part. If the State proposes an agreement that varies from the Standard Agreement, the State shall indicate which provisions of the Standard Agreement are not acceptable and propose substitute provisions. The letter shall be addressed to the Director, Defense Finance and Accounting Service, 1931 Jefferson Davis Highway, Arlington, VA 22240. To be effective, the letter must be signed by a State official authorized to bind the State under an agreement for tax withholding. Copies of applicable State laws that authorize employers to withhold State income tax and authorize the official to bind the State under an agreement for tax withholding shall be enclosed with the letter. The letter also shall indicate the title and address of the official whom the Uniformed Services may contact to obtain information necessary for implementing withholding.
(j) Within 120 days of the receipt of a letter from a State, the Director, Defense Finance and Accounting Service, or designee, will notify the State, in writing, that DoD has either entered into the Standard Agreement or that an agreement cannot be entered into with the State and the reasons for that determination.
[50 FR 47220, Nov. 15, 1985, as amended at 50 FR 49930, Dec. 6, 1985; 68 FR 36914, June 20, 2003]
§ 78.6
Responsibilities.
(a) The Assistant Secretary of Defense (Comptroller) shall provide guidance, monitor compliance with this part, and have the authority to change or modify the procedures set forth.
(b) The Secretaries of the Military Departments and Heads of the other Uniformed Services shall comply with this part.
§ 78.7
Standard agreement.
Standard Agreement For Voluntary State Tax Withholding From The Retired Pay Of Uniformed Service Members

Article I—Purpose
This agreement, hereafter referred to as the “Standard Agreement,” establishes administrative procedures and assigns responsibilities for voluntary State tax withholding from the retired pay of Uniformed Service members consistent with section 654 of the Department of Defense Authorization Act for Fiscal Year 1985 (Pub. L. 98-525), codified as 10 U.S.C. 1045.

Article II—Parties
The parties to this agreement are the Department of Defense on behalf of the Uniformed Services and the State that has entered into this agreement pursuant to 10 U.S.C. 1045.

Article III—Procedures
The parties to the Standard Agreement are bound by the provisions in title 32, Code of Federal Regulations, part 78. The Secretary of Defense may amend, modify, supplement, or change the procedures for voluntary State tax withholding from retired pay of Uniformed Service members after giving notice in the Federal Register. In the event of any such changes, the State will be given 45 days to terminate this agreement.

Article IV—Reporting
Copies of Internal Revenue Service Form 1099R, “Distribution From Pensions, Annuities, Retirement, or Profit Sharing Plan, IRAs, Insurance Contracts, etc.” may be used for reporting withheld taxes to the State. The media for reporting (paper copy, magnetic tape, electronic file transfer, etc.) will comply with the state reporting standards that apply to employers in general.

Article V—Other Provisions
A. This agreement shall be subject to any amendment of 10 U.S.C. 1045 and any regulations issued pursuant to such statutory change.
B. In addition to the provisions of Article III, the agreement may be terminated by a party to the Standard Agreement by providing the other party with written notice to that effect at least 90 days before the proposed termination.
C. Nothing in this agreement shall be deemed to:
1. Require the collection of delinquent tax liabilities of retired members of the Uniformed Services;
2. Consent to the application of any provision of State law that has the effect of imposing more burdensome requirements upon the United States than the State imposes on other employers, or subjecting the United States or any member to any penalty or liability;
3. Consent to procedures for withholding, filing of returns, and payment of the withheld taxes to States that do not conform to the usual fiscal practices of the Uniformed Services;
4. Allow the Uniformed Services to accept payment from a State for any services performed with regard to State income tax withholding from the retired pay of Uniformed Service members.
[50 FR 47220, Nov. 15, 1985, as amended at 68 FR 36915, June 20, 2003]
Pt. 80

PART 80—PROVISION OF EARLY INTERVENTION SERVICES TO ELIGIBLE INFANTS AND TODDLERS WITH DISABILITIES AND THEIR FAMILIES, AND SPECIAL EDUCATION CHILDREN WITH DISABILITIES WITHIN THE SECTION 6 SCHOOL ARRANGEMENTS
Sec.
80.1
Purpose.
80.2
Applicability and scope.
80.3
Definitions.
80.4
Policy.
80.5
Responsibilities.
80.6
Procedures.
Appendix A to Part 80—Procedures for the Provision of Early Intervention Services for Infants and Toddlers With Disabilities, Ages 0-2 (Inclusive), and Their Families
Appendix B to Part 80—Procedures for Special Educational Programs (Including Related Services) and for Preschool Children and Children With Disabilities (3-21 Years Inclusive)
Appendix C to Part 80—Hearing Procedures

Authority:
20 U.S.C. 1400 et seq.; 20 U.S.C. 241; 20 U.S.C. 241 note.

Source:
59 FR 37680, July 25, 1994, unless otherwise noted.
§ 80.1
Purpose.
This part:
(a) Establishes policies and procedures for the provision of early intervention services to infants and toddlers with disabilities (birth to age 2 inclusive) and their families, and special education and related services to children with disabilities (ages 3-21 inclusive) entitled to receive special educational instruction or early intervention services from the Department of Defense under Pub. L. 81-874, sec. 6, as amended; Pub. L. 97-35, sec. 505(c); the Individuals with Disabilities Education Act, Pub. L. 94-142, as amended; Pub. L. 102-119, sec. 23; and consistent with 32 CFR parts 285 and 310, and the Federal Rules of Civil Procedures (28 U.S.C.).
(b) Establishes policy, assigns responsibilities, and prescribes procedures for:
(1) Implementation of a comprehensive, multidisciplinary program of early intervention services for infants and toddlers ages birth through 2 years (inclusive) with disabilities and their families.
(2) Provision of a free, appropriate education including special education and related services for preschool children with disabilities and children with disabilities enrolled in the Department of Defense Section 6 School Arrangements.
(c) Establishes a Domestic Advisory Panel (DAP) on Early Intervention and Education for Infants, Toddlers, Preschool Children and Children with Disabilities, and a DoD Coordinating Committee on Domestic Early Intervention, Special Education and Related Services.
(d) Authorizes the publication of DoD Regulations and Manuals, consistent with DoD 5025.1-M, ^1 and DoD forms consistent with DoD 5000.12-M ^2 and DoD Directive 8910.1 ^3 to implement this part.
^1 Copies may be obtained, at cost, from the National Technical Information Service, 5285 Port Royal Road, Springfield, VA 22161.
^2 See footnote 1 to § 80.1(c).
^3 See footnote 1 to § 80.1(c).
§ 80.2
Applicability and scope.
This part:
(a) Applies to the Office of the Secretary of Defense, the Military Departments, the Chairman of the Joint Chiefs of Staff and the Joint Staff, the Unified and Specified Commands, the Inspector General of the Department of Defense, the Defense Agencies, and the DoD Field Agencies (hereafter referred to collectively as “the DoD Components”).
(b) Encompasses infants, toddlers, preschool children, and children receiving or entitled to receive early intervention services or special educational instruction from the DoD on installations with Section 6 School Arrangements, and the parents of those individuals with disabilities.
(c) Applies only to schools operated by the Department of Defense within the Continental United States, Alaska, Hawaii, Puerto Rico, Wake Island, Guam, American Samoa, the Northern Mariana Islands, and the Virgin Islands.
§ 80.3
Definitions.
(a) Assistive technology device. Any item, piece of equipment, or product system, whether acquired commercially or off the shelf, modified, or customized, that is used to increase, maintain, or improve functional capabilities of individuals with disabilities.
(b) Assistive technology service. Any service that directly assists an individual with a disability in the selection, acquisition, or use of an assistive technology device. This term includes:
(1) Evaluating the needs of an individual with a disability, including a functional evaluation of the individual in the individual's customary environment.
(2) Purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices by individuals with disabilities.
(3) Selecting designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing of assistive technology devices.
(4) Coordinating and using other therapies, interventions, or services with assistive technology devices, such as those associated with existing educational and rehabilitative plans and programs.
(5) Training or technical assistance for an individual with disabilities, or, where appropriate, the family of an individual with disabilities.
(6) Training or technical assistance for professionals (including individuals providing educational rehabilitative services), employers, or other individuals who provide services to, employ, or are otherwise substantially involved in the major life functions of an individual with a disability.
(c) Attention deficit disorder (ADD). As used to define students, encompasses attention-deficit hyperactivity disorder and attention deficit disorder without hyperactivity. The essential features of this disorder are developmentally inappropriate degrees of inattention, impulsiveness, and hyperactivity.
(1) A diagnosis of ADD may be made only after the child is evaluated by appropriate medical personnel, and evaluation procedures set forth in this part (appendix B to this part) are followed.
(2) A diagnosis of ADD, in and of itself, does not mean that a child requires special education; it is possible that a child diagnosed with ADD, as the only finding, can have his or her educational needs met within the regular education setting.
(3) For a child with ADD to be eligible for special education, the Case Study Committee, with assistance from the medical personnel conducting the evaluation, must then make a determination that the ADD is a chronic or acute health problem that results in limited alertness, which adversely affects educational performance. Children with ADD who are eligible for special education and medically related services will qualify for services under “Other Health Impaired” as described in Criterion A, paragraph (h)(1) of this section.
(d) Autism. A developmental disability significantly affecting verbal and non-verbal communication and social interaction generally evident before age 3 that adversely affects educational performance. Characteristics of autism include irregularities and impairments in communication, engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not include children with characteristics of the disability of serious emotional disturbance.
(e) Case Study Committee (CSC). A school-based committee that determines a child's eligibility for special education, develops and reviews a child's individualized education program (IEP), and determines appropriate placement in the least restrictive environment. A CSC is uniquely composed for each child. Participants on a CSC must include:
(1) The designated representative of the Section 6 School Arrangement, who is qualified to supervise the provision of special education. Such representative may not be the child's special education teacher.
(2) One, or more, of the child's regular education teachers, if appropriate.
(3) A special education teacher.
(4) One, or both, of the child's parents.
(5) The child, if appropriate.
(6) A member of the evaluation team or another person knowledgeable about the evaluation procedures used with the child.
(7) Other individuals, at the discretion of the parent or the Section 6 School Arrangement, who may have pertinent information.
(f) Child-find. The ongoing process used by the Military Services and a Section 6 School Arrangement to seek and identify children (from birth to 21 years of age) who show indications that they might be in need of early intervention services or special education and related services. Child-find activities include the dissemination of information to the public and identification, screening, and referral procedures.
(g) Children with disabilities ages 5-21 (inclusive). Those children ages 5-21 years (inclusive), evaluated in accordance with this part, who are in need of special education as determined by a CSC and who have not been graduated from a high school or who have not completed the requirements for a General Education Diploma. The terms “child” and “student” may also be used to refer to this population. The student must be determined eligible under one of the following four categories:
(1) Criterion A. The educational performance of the student is adversely affected, as determined by the CSC, by a physical impairment; visual impairment including blindness; hearing impairment including deafness; orthopedic impairment; or other health impairment, including ADD, when the condition is a chronic or acute health problem that results in limited alertness; autism; and traumatic brain injury requiring environmental and/or academic modifications.
(2) Criterion B. A student who manifests a psychoemotional condition that is the primary cause of educational difficulties; a student who exhibits maladaptive behavior to a marked degree and over a long period of time that interferes with skill attainment, classroom functioning or performance, social-emotional condition, and who as a result requires special education. The term does not usually include a student whose difficulties are primarily the result of:
(i) Intellectual deficit;
(ii) Sensory or physical impairment;
(iii) Attention deficit hyperactivity disorder;
(iv) Antisocial behavior;
(v) Parent-child or family problems;
(vi) Disruptive behavior disorders;
(vii) Adjustment disorders;
(viii) Interpersonal or life circumstance problems; or
(ix) Other problems that are not the result of a severe emotional disorder.
(3) Criterion C. The educational performance of the student is adversely affected, as determined by the CSC, by a speech and/or language impairment.
(4) Criterion D. The measured academic achievement of the student in math, reading, or language is determined by the CSC to be adversely affected by underlying disabilities (including mental retardation and specific learning disability) including either an intellectual deficit or an information processing deficit.
(5) Criterion E. A child, 0-5 inclusive, whose functioning level as determined by the CSC, is developmentally delayed and would qualify for special education and related services as determined by this regulation.
(h) Consent. This term means that:
(1) The parent of an infant, toddler, child, or preschool child with a disability has been fully informed, in his or her native language, or in another mode of communication, of all information relevant to the activity for which permission is sought.
(2) The parent understands and agrees in writing to the implementation of the activity for which his or her permission is sought. The writing must describe that activity, list the child's records that will be released and to whom, and acknowledge that the parent understands consent is voluntary and may be prospectively revoked at any time.
(3) The parent of an infant, toddler, preschool child or child must consent to the release of records. The request for permission must describe that activity, list each individual's records that will be released and to whom, and acknowledge that the parent understands that consent is voluntary and may be prospectively revoked at any time.
(4) The written consent of a parent of an infant or toddler with a disability is necessary for implementation of early intervention services described in the individualized family service plan (IFSP). If such parent does not provide consent with respect to a particular early intervention service, then the early intervention services for which consent is obtained shall be provided.
(i) Deaf. A hearing loss or deficit so severe that the child is impaired in processing linguistic information through hearing, with or without amplification, to the extent that his or her educational performance is adversely affected.
(j) Deaf-blind. Concomitant hearing and visual impairments, the combination of which causes such severe communication and other developmental and educational problems that they cannot be accommodated in special education programs solely for children with deafness or children with blindness.
(k) Developmental delay. A significant discrepancy in the actual functioning of an infant or toddler when compared with the functioning of a nondisabled infant or toddler of the same chronological age in any of the following areas of development: Physical development, cognitive development, communication development, social or emotional development, and adaptive development as measured using standardized evaluation instruments and confirmed by clinical observation and judgment. A significant discrepancy exists when the one area of development is delayed by 25 percent or 2 standard deviations or more below the mean or when two areas of development are each delayed by 20 percent or 11/2 standard deviations or more below the mean. (Chronological age should be corrected for prematurity until 24 months of age.)
(l) Early intervention service coordination services. Case management services that include integration and oversight of the scheduling and accomplishment of evaluation and delivery of early intervention services to an infant or toddler with a disability and his or her family.
(m) Early intervention services. Developmental services that:
(1) Are provided under the supervision of a military medical department.
(2) Are provided using Military Health Service System and community resources.
(i) Evaluation IFSP development and revision, and service coordination services are provided at no cost to the infant's or toddler's parents.
(ii) Incidental fees (e.g., child care fees) that are normally charged to infants, toddlers, and children without disabilities or their parents may be charged.
(3) Are designed to meet the developmental needs of an infant or toddler with a disability in any one or more of the following areas: Physical development, cognitive development, communication development, social or emotional development, or adaptive development.
(4) Meet the standards developed by the Assistant Secretary of Defense for Health Affairs (ASD(HA)).
(5) Include the following services: Family training, counseling, and home visits; special instruction; speech pathology and audiology; occupational therapy; physical therapy; psychological services; early intervention program coordination services; medical services only for diagnostic or evaluation purposes; early identification, screening, and assessment services; vision services; and social work services. Also included are assistive technology devices and assistive technology services; health services necessary to enable the infant or toddler to benefit from the above early intervention services; and transportation and related costs that are necessary to enable an infant or toddler and the infant's or toddler's family to receive early intervention services.
(6) Are provided by qualified personnel, including: Special educators; speech and language pathologists and audiologists; occupational therapists; physical therapists; psychologists; social workers; nurses' nutritionists; family therapists; orientation and mobility specialists; and pediatricians and other physicians.
(7) To the maximum extent appropriate, are provided in natural environments, including the home and community settings in which infants and toddlers without disabilities participate.
(8) Are provided in conformity with an IFSP.
(n) Evaluation. Procedures used to determine whether an individual (birth through 21 inclusive) has a disability under this part and the nature and extent of the early intervention services and special education and related services that the individual needs. These procedures must be used selectively with an individual and may not include basic tests administered to, or used with, all infants, toddlers, preschool children or children in a school, grade, class, program, or other grouping.
(o) Family training, counseling, and home visits. Services provided, as appropriate, by social workers, psychologists, and other qualified personnel to assist the family of an infant or toddler eligible for early intervention services in understanding the special needs of the child and enhancing the infant or toddler's development.
(p) Free appropriate public education. Special education and related services for children ages 3-21 years (inclusive) that:
(1) Are provided at no cost (except as provided in paragraph (xx)(1) of this section, to parents or child with a disability and are under the general supervision and direction of a Section 6 School Arrangement.
(2) Are provided at an appropriate preschool, elementary, or secondary school.
(3) Are provided in conformity with an Individualized Education Program.
(4) Meet the requirements of this part.
(q) Frequency and intensity. The number of days or sessions that a service will be provided, the length of time that the service is provided during each session, whether the service is provided during each session, and whether the service is provided on an individual or group basis.
(r) Health services. Services necessary to enable an infant or toddler, to benefit from the other early intervention services under this part during the time that the infant or toddler is receiving the other early intervention services. The term includes:
(1) Such services as clean intermittent catheterization, tracheostomy care, tube feeding, the changing of dressings or osteotomy collection bags, and other health services.
(2) Consultation by physicians with other service providers on the special health care needs of infants and toddlers with disabilities that will need to be addressed in the course of providing other early intervention services.
(3) The term does not include the following:
(i) Services that are surgical in nature or purely medical in nature.
(ii) Devices necessary to control or treat a medical condition.
(iii) Medical or health services that are routinely recommended for all infants or toddlers.
(s) Hearing impairment. A hearing loss, whether permanent or fluctuating, that adversely affects an infant's, toddler's, preschool child's, or child's educational performance.
(t) High probability for developmental delay. An infant or toddler with a medical condition that places him or her at substantial risk of evidencing a developmental delay before the age of 5 years without the benefit of early intervention services.
(u) Include; such as. Not all the possible items are covered, whether like or unlike the ones named.
(v) Independent evaluation. An evaluation conducted by a qualified examiner who is not employed by the DoD Section 6 Schools.
(w) Individualized education program (IEP). A written statement for a preschool child or child with a disability (ages 3-21 years inclusive) developed and implemented in accordance with this part (appendix B to this part).
(x) Individualized family service plan (IFSP). A written statement for an infant or toddler with a disability and his or her family that is based on a multidisciplinary assessment of the unique needs of the infant or toddler and concerns and the priorities of the family, and an identification of the services appropriate to meet such needs, concerns, and priorities.
(y) Individuals with disabilities. Infants and toddlers with disabilities, preschool children with disabilities, and children with disabilities, collectively, ages birth to 21 years (inclusive) who are either entitled to enroll in a Section 6 School Arrangement or would, but for their age, be so entitled.
(z) Infants and toddlers with disabilities. Individuals from birth to age 2 years (inclusive), who need early intervention services because they:
(1) Are experiencing a developmental delay, as measured by appropriate diagnostic instruments and procedures, of 25 percent (or 2 standard deviations below the mean), in one or more areas, or 20 percent (or 11/2 standard deviations below the mean), in two or more of the following areas of development: Cognitive, physical, communication, social or emotional, or adaptive development.
(2) Are at-risk for a developmental delay; i.e., have a diagnosed physical or mental condition that has a high probability of resulting in developmental delay; e.g., chromosomal disorders and genetic syndromes.
(aa) Intercomponent. Cooperation among the DoD Components and programs so that coordination and integration of services to individuals with disabilities and their families occur.
(bb) Medically related services. (1) Medical services (as defined in paragraph (cc) of this section) and those services provided under professional medical supervision that are required by a CSC either to determine a student's eligibility for special education or, if the student is eligible, the special education and related services required by the student under this part in accordance with 32 CFR part 345.
(2) Provision of either direct or indirect services listed on an IEP as necessary for the student to benefit from the educational curriculum. These services may include: Medical; social work; community health nursing; dietary; psychiatric diagnosis; evaluation, and follow up; occupational therapy; physical therapy; audiology; ophthalmology; and psychological testing and therapy.
(cc) Medical services. Those evaluative, diagnostic, and supervisory services provided by a licensed and credentialed physician to assist CSCs and to implement IEPs. Medical services include diagnosis, evaluation, and medical supervision of related services that by statute, regulation, or professional tradition are the responsibility of a licensed and credentialed physician.
(dd) Mental retardation. Significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period, that adversely affects a preschool child's or child's educational performance.
(ee) Multidisciplinary. The involvement of two or more disciplines or professions in the provision of integrated and coordinated services, including evaluation and assessment activities, and development of an IFSP or IEP.
(ff) Native language. When used with reference to an individual of limited English proficiency, the language normally used by such individuals, or in the case of an infant, toddler, preschool child or child, the language normally used by the parent of the infant, toddler, preschool child or child.
(gg) Natural environments. Settings that are natural or normal for the infant or toddler's same age peers who have no disability.
(hh) Non-section 6 school arrangement or facility. A public or private school or other institution not operated in accordance with 32 CFR part 345. This term includes Section 6 special contractual arrangements.
(ii) Nutrition services. These services include:
(1) Conducting individual assessments in nutritional history and dietary intake; anthropometric, biochemical and clinical variables; feeding skills and feeding problems; and food habits and food preferences.
(2) Developing and monitoring appropriate plans to address the nutritional needs of infants and toddlers eligible for early intervention services.
(3) Making referrals to appropriate community resources to carry out nutrition goals.
(jj) Orthopedic impairment. A severe physical impairment that adversely affects a child's educational performance. The term includes congenital impairments (such as club foot and absence of some member), impairments caused by disease (such as poliomyelitis and bone tuberculosis), and impairments from other causes such as cerebral palsy, amputations, and fractures or burns causing contracture.
(kk) Other health impairment. Having an autistic condition that is manifested by severe communication and other developmental and educational problems; or having limited strength, vitality, or alertness due to chronic or acute health problems that adversely affect a child's educational performance as determined by the CSC, such as: ADD, heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, and diabetes.
(ll) Parent. The biological father or mother of a child; a person who, by order of a court of competent jurisdiction, has been declared the father or mother of a child by adoption; the legal guardian of a child; or a person in whose household a child resides, provided that such person stands in loco parentis to that child and contributes at least one-half of the child's support.
(mm) Personally identifiable information. Information that includes the name of the infant, toddler, preschool child, child, parent or other family member; the home address of the infant, toddler, preschool child, child, parent or other family member; another personal identifier, such as the infant's, toddler's, preschool child's, child's, parent's or other family member's social security number; or a list of personal characteristics or other information that would make it possible to identify the infant, toddler, preschool child, child, parent, or other family member with reasonable certainty.
(nn) Preschool children with disabilities. These are students, ages 3-5 years (inclusive), who need special education services because they:
(1) Are experiencing developmental delays, as measured by appropriate diagnostic instruments and procedures in one or more of the following areas: Cognitive development, physical development, communication development, social or emotional development, and adaptive development; and
(2) Who, by reason thereof, need special education and related services.
(oo) Primary referral source. The DoD Components, including child care centers, pediatric clinics, and parents that suspect an infant, toddler, preschool child or child has a disability and bring that infant, toddler, preschool child or child to the attention of the Early Intervention Program or school CSC.
(pp) Public awareness program. Activities focusing on early identification of infants and toddlers with disabilities, including the preparation and dissemination by the military medical department to all primary referral sources of information materials for parents on the availability of early intervention services. Also includes procedures for determining the extent to which primary referral sources within the Department of Defense, especially within DoD medical treatment facilities, and physicians disseminate information on the availability of early intervention services to parents of infants or toddlers with disabilities.
(qq) Qualified. With respect to instructional personnel, a person who holds at a minimum a current and applicable teaching certificate from any of the 50 States, Puerto Rico, or the District of Columbia, or has met other pertinent requirements in the areas in which he or she is providing special education or related services not of a medical nature to children with disabilities. Providers of early intervention services and medically related services must meet standards established by the ASD(HA).
(rr) Related services. This includes transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology; psychological services; physical and occupational therapy; recreation, including therapeutic recreation and social work services; and medical and counseling services), including rehabilitation counseling (except that such medical services shall be for diagnostic and evaluative purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in preschool children or children. The following list of related services is not exhaustive and may include other developmental, corrective, or supportive services (such as clean intermittent catheterization), if they are required to assist a child with a disability to benefit from special education, as determined by a CSC.
(1) Audiology. This term includes:
(i) Audiological, diagnostic, and prescriptive services provided by audiologists who have a Certificate of Clinical Competence—Audiology (CCC-A) and pediatric experience. Audiology shall not include speech therapy.
(ii) Identification of children with hearing loss.
(iii) Determination of the range, nature, and degree of hearing loss, including referral for medical or other professional attention designed to ameliorate or correct that loss.
(iv) Provision of ameliorative and corrective activities, including language and auditory training, speech-reading (lip-reading), hearing evaluation, speech conservation, the recommendation of amplification devices, and other aural rehabilitation services.
(v) Counseling and guidance of children, parents, and service providers regarding hearing loss.
(vi) Determination of the child's need for group and individual amplification, selecting and fitting an appropriate aid, and evaluating the effectiveness of amplification.
(2) Counseling services. Services provided by qualified social workers, psychologists, guidance counselors, or other qualified personnel to help a preschool child or child with a disability to benefit from special education.
(3) Early identification. The implementation of a formal plan for identifying a disability as early as possible in the individual's life.
(4) Medical services. Those evaluative, diagnostic, and supervisory services provided by a licensed and credentialed physician to assist CSCs in determining whether a child has a medically related disability condition that results in the child's need for special education and related services and to implement IEPs. Medical services include diagnosis, evaluation, and medical supervision of related services that, by statute, regulation, or professional tradition, are the responsibility of a licensed and credentialed physician.
(5) Occupational therapy. Therapy that provides developmental evaluations and treatment programs using selected tasks to restore, reinforce, or enhance functional performance. It addresses the quality and level of functions in areas such as behavior, motor coordination, spatial orientation; visual motor and sensory integration; and general activities of daily living. This therapy, which is conducted or supervised by a qualified occupational therapist, provides training and guidance in using special equipment to improve the patient's functioning in skills of daily living, work, and study.
(6) Parent counseling and training. Assisting parents in understanding the special needs of their preschool child or child and providing parents with information about child development and special education.
(7) Physical therapy. Therapy that provides evaluations and treatment programs using exercise, modalities, and adaptive equipment to restore, reinforce, or enhance motor performance. It focuses on the quality of movement, reflex development, range of motion, muscle strength, gait, and gross motor development, seeking to decrease abnormal movement and posture while facilitating normal movement and equilibrium reactions. The therapy, which is conducted by a qualified physical therapist, provides for measurement and training in the use of adaptive equipment and prosthetic and orthotic appliances. Therapy may be conducted by a qualified physical therapist assistant under the clinical supervision of a qualified physical therapist.
(8) Psychological services. Services listed in paragraphs (rr) (8) (i) through (rr) (8) (iv) of this section that are provided by a qualified psychologist:
(i) Administering psychological and educational tests and other assessment procedures.
(ii) Interpreting test and assessment results.
(iii) Obtaining, integrating, and interpreting information about a preschool child's or child's behavior and conditions relating to his or her learning.
(iv) Consulting with other staff members in planning school programs to meet the special needs of preschool children and children, as indicated by psychological tests, interviews, and behavioral evaluations.
(v) Planning and managing a program of psychological services, including psychological counseling for preschool children, children, and parents. For the purpose of these activities, a qualified psychologist is a psychologist licensed in a State of the United States who has a degree in clinical or school psychology and additional pediatric training and/or experience.
(9) Recreation. This term includes:
(i) Assessment of leisure activities.
(ii) Therapeutic recreational activities.
(iii) Recreational programs in schools and community agencies.
(iv) Leisure education.
(10) School health services. Services provided, pursuant to an IEP, by a qualified school health nurse, or other qualified person, that are required for a preschool child or child with a disability to benefit from special education.
(11) Social work counseling services in schools. This term includes:
(i) Preparing a social and developmental history on a preschool child or child identified as having a disability.
(ii) Counseling the preschool child or child with a disability and his or her family on a group or individual basis, pursuant to an IEP.
(iii) Working with problems in a preschool child's or child's living situation (home, school, and community) that adversely affect his or her adjustment in school.
(iv) Using school and community resources to enable the preschool child or child to receive maximum benefit from his or her educational program.
(12) Speech pathology. This term includes the:
(i) Identification of preschool children and children with speech or language disorders.
(ii) Diagnosis and appraisal of specific speech or language disorders.
(iii) Referral for medical or other professional attention to correct or ameliorate speech or language disorders.
(iv) Provision of speech and language services for the correction, amelioration, and prevention of communicative disorders.
(v) Counseling and guidance of preschool children, children, parents, and teachers regarding speech and language disorders.
(13) Transportation. This term includes transporting the individual with a disability and, when necessary, an attendant or family member or reimbursing the cost of travel ((e.g., mileage, or travel by taxi, common carrier or other means) and related costs (e.g., tolls and parking expenses)) when such travel is necessary to enable a preschool child or child to receive special education (including related services) or an infant or toddler and the infant's or toddler's family to receive early intervention services. Transportation services include:
(i) Travel to and from school and between schools, including travel necessary to permit participation in educational and recreational activities and related services.
(ii) Travel from school to a medically related service site and return.
(iii) Travel in and around school buildings.
(iv) Travel to and from early intervention services.
(v) Specialized equipment (including special or adapted buses, lifts, and ramps) if required to provide special transportation for an individual with a disability.
(vi) If necessary, attendants assigned to vehicles transporting an individual with a disability when that individual requires assistance to be safely transported.
(ss) Section 6 School Arrangement. The schools (pre-kindergarten through grade 12) operated by the Department of Defense within the CONUS, Alaska, Hawaii, Puerto Rico, Wake Island, Guam, American Samoa, the Northern Mariana Islands, and the Virgin Islands. Section 6 School Arrangements are operated under DoD Directive 1342.21. ^4
^4 See footnote 1 to § 80.1(c).
(tt) Separate facility. A school or a portion of a school, regardless of whether it is used by the Section 6 School Arrangement, that is only attended by children with disabilities.
(uu) Serious emotional disturbance. The term includes:
(1) A condition that has been confirmed by clinical evaluation and diagnosis and that, over a long period of time and to a marked degree, adversely affects educational performance and that exhibits one or more of the following characteristics:
(i) An inability to learn that cannot be explained by intellectual, sensory, or health factors.
(ii) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers.
(iii) Inappropriate types of behavior under normal circumstances.
(iv) A tendency to develop physical symptoms or fears associated with personal or school problems.
(v) A general, pervasive mood of unhappiness or depression.
(2) Schizophrenia, but does not include children who are socially maladjusted, unless it is determined that they are otherwise seriously emotionally disturbed.
(vv) Service provider. Any individual who provides services listed in an IEP or an IFSP.
(ww) Social work services. This term includes:
(1) Preparing a social or developmental history on an infant, toddler, preschool child or child with a disability.
(2) Counseling with the infant, toddler, preschool child or child and family in a group or individual capacity.
(3) Working with individuals with disabilities (0-21 inclusive) in the home school, and/or community environment to ameliorate those conditions that adversely affect development or educational performance.
(4) Using school and community resources to enable the child to receive maximum benefit from his or her educational program or for the infant, toddler, and family to receive maximum benefit from early intervention services.
(xx) Special education. Specially designed instruction, at no cost to the parent, to meet the unique needs of a preschool child or child with a disability, including instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings, and instruction in physical education. The term includes speech pathology or any other related service, if the service consists of specially designed instruction, at no cost to the parents, to meet the unique needs of a preschool child or child with a disability, and is considered “special education” rather than a “related service.” The term also includes vocational education if it consists of specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability.
(1) At no cost. With regard to a preschool child or child eligible to attend Section 6 School Arrangements, specially designed instruction and related services are provided without charge, but incidental fees that are normally charged to nondisabled students, or their parents, as a part of the regular educational program may be imposed.
(2) Physical education. The development of:
(i) Physical and motor fitness.
(ii) Fundamental motor skills and patterns.
(iii) Skills in aquatics, dance, and individual and group games and sports (including intramural and lifetime sports).
(iv) A program that includes special physical education, adapted physical education, movement education, and motor development.
(3) Vocational education. This term means organized educational programs that are directly related to the preparation of individuals for paid or unpaid employment, or for additional preparation for a career requiring other than a baccalaureate or advanced degree.
(yy) Special instruction. This term includes:
(1) Designing learning environments and activities that promote the infant's, toddler's, preschool child's or child's acquisition of skills in a variety of developmental areas, including cognitive processes and social interaction.
(2) Planning curriculum, including the planned interaction of personnel, materials, and time and space, that leads to achieving the outcomes in the infant's, toddler's, preschool child's or child's IEP or IFSP.
(3) Providing families with information, skills, and support related to enhancing the skill development of the infant, toddler, or preschool child or child.
(4) Working with the infant, toddler, preschool child, or child to enhance the infant's, toddler's, preschool child's or child's development and cognitive processes.
(zz) Specific learning disability. A disorder in one or more of the basic psychological processes involved in understanding or in using spoken or written language that may manifest itself as an imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations. The term includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. The term does not include preschool children or children who have learning problems that are primarily the result of visual, hearing, or motor disabilities, mental retardation, emotional disturbance, or environmental, cultural, or economic differences.
(aaa) Speech and language impairments. A communication disorder, such as stuttering, impaired articulation, voice impairment, or a disorder in the receptive or expressive areas of language that adversely affects a preschool child's or child's educational performance.
(bbb) Superintendent. The chief official of a Section 6 School Arrangement responsible for the implementation of this part on his or her installation.
(ccc) Transition services. A coordinated set of activities for a toddler that may be required to promote movement from early intervention, preschool, and other educational programs into different programs or educational settings. For a student 14 years of age and older, transition services are designed within an outcome-oriented process, which promotes movement from school to post-school activities, including post-secondary education, vocational training, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation. The coordinated set of activities shall be based upon the individual student's needs, taking into account the student's preferences and interests, and shall include instruction, community experiences, the development of employment and other post-school adult living objectives, and when appropriate, acquisition of daily living skills and functional vocational evaluation.
(ddd) Traumatic brain injury. An injury to the brain caused by an external physical force or by an internal occurrence, such as stroke or aneurysm, resulting in total or partial functional disability or psychosocial maladjustment that adversely affects educational performance. The term includes open or closed head injuries resulting in mild, moderate, or severe impairments in one or more areas, including cognition; language, memory; attention; reasoning; abstract thinking; judgment; problem solving; sensory; perceptual and motor abilities; psychosocial behavior; physical function; and information processing and speech. The term does not include brain injuries that are congenital or degenerative or brain injuries that are induced by birth trauma.
(eee) Vision services. Services necessary to ameliorate the effects of sensory impairment resulting from a loss of vision.
(fff) Visual impairment. A sensory impairment including blindness that, even with correction, adversely affects a preschool child's or child's educational performance. The term includes both partially seeing and blind preschool children and children.
§ 80.4
Policy.
It is DoD policy that:
(a) All individuals with disabilities ages 3 to 21 years receiving or entitled to receive educational instruction from the Section 6 School Arrangements shall be provided a free, appropriate education under this part in accordance with the IDEA as amended, 20 U.S.C. Chapter 33; Pub. L. 102-119, Section 23; and DoD Directive 1342.21.
(b) All individuals with disabilities ages birth through 2 years (inclusive) and their families are entitled to receive early intervention services under this part, provided that such infants and toddlers would be eligible to enroll in a Section 6 School Arrangement but for their age.
§ 80.5
Responsibilities.
(a) The Under Secretary of Defense for Personnel and Readiness (USD(P&R)) shall:
(1) Ensure that all infants and toddlers with disabilities (birth through 2 years inclusive) who but for their age would be eligible to attend the Section 6 Arrangement Schools, and their families are provided early intervention services in accordance with IDEA as amended, (20 U.S.C., Chapter 33, Subchapter VIII.) and in conformity with the procedures in appendix A to this part.
(2) Ensure that preschool children and children with disabilities ages 3-21 years (inclusive) receiving educational instruction from Section 6 School Arrangements are provided a free appropriate public education and that the educational needs of such preschool children and children with disabilities are met using the procedures established by this part.
(3) Ensure that educational facilities and services provided by Section 6 School Arrangements for preschool children and children with disabilities are comparable to educational facilities and services for non-disabled students.
(4) Maintain records on special education and related services provided to children with disabilities, consistent with 32 CFR part 310.
(5) Ensure the provision of all necessary diagnostic services and special education and related services listed on an IEP (including those supplied by or under the supervision of physicians) to preschool children and children with disabilities who are enrolled in Section 6 School Arrangements. In fulfilling this responsibility, (USD(P&R)), or designee, may use intercomponent arrangements, or act through contracts with private parties, when funds are authorized and appropriated.
(6) Develop and implement a comprehensive system of personnel development, in accordance with 20 U.S.C. 1413-(a)(3), for all professional staff employed by a Section 6 School Arrangement. This system shall include:
(i) Inservice training of general and special educational instructional and support personnel,
(ii) Implementing innovative strategies and activities for the recruitment and retention of medically related service providers,
(iii) Detailed procedures to assure that all personnel necessary to carry out the purposes of this part are appropriately and adequately prepared and trained, and
(iv) Effective procedures for acquiring and disseminating to teachers and administrators of programs for children with disabilities significant information derived from educational research, demonstration, and similar projects, and
(v) Adopting, where appropriate, promising practices, materials, and technology.
(7) Provide technical assistance to professionals in Section 6 School Arrangements involved in, or responsible for, the education of preschool children or children with disabilities.
(8) Ensure that child-find activities are coordinated with other relevant components and are conducted to locate and identify every individual with disabilities.
(9) Issue guidance implementing this part.
(10) Undertake evaluation activities to ensure compliance with this part through monitoring, technical assistance, and program evaluation.
(11) Chair the DoD Coordinating Committee on Domestic Early Intervention, Special Education, and Related Services, which shall be composed of representatives of the Secretaries of the Military Departments, the Assistant Secretary of Defense for Health Affairs (ASD(HA)), the General Counsel of the Department of Defense (GC, DoD), and the Director, Section 6 Schools.
(12) Through the DoD Coordinating Committee on Demestic Early Intervention, Special Education, and Related Services, monitor the provision of special education and related services and early intervention services furnished under this part, and ensure that related services, special education, and early intervention services are properly coordinated.
(13) Ensure that appropriate personnel are trained to provide mediation services in cases that otherwise might result in due process proceedings under this part.
(14) Ensure that transition services from early intervention services to regular or special education and from special education to the world of work are provided.
(15) Ensure that all DoD programs that provide services to infants and toddlers and their families (e.g., child care, medical care, recreation) are involved in a comprehensive intercomponent system for early intervention services.
(16) Ensure, whenever practicable, that planned construction not yet past the 35 percent design phase and new design begun after the date of this part of renovation of school or child care facilities includes consideration of the space required for the provision of medically related services and early intervention services.
(17) Shall establish the Domestic Advisory Panel that shall:
(i) Consist of members appointed by the USD (P&R) or Principal Deputy USD (P&R). Membership shall include at least one representative from each of the following groups:
(A) Individuals with disabilities.
(B) Parents, including minority parents of individuals with disabilities from various age groups.
(C) Section 6 School Arrangements special education teachers.
(D) Section 6 School Arrangements regular education teachers.
(E) Section 6 School Arrangements Superintendent office personnel.
(F) The Office of Director, Section 6 Schools.
(G) The Surgeons General of the Military Departments.
(H) The Family Support Programs of the Military Departments.
(I) Section 6 School Arrangements School Boards.
(J) Early Intervention service providers on installations with Section 6 School Arrangements.
(K) Other appropriate personnel.
(ii) Meet as often as necessary.
(iii) Perform the following duties:
(A) Review information and provide advice to ASD (P&R) regarding improvements in services provided to individuals with disabilities in Section 6 Schools and early intervention programs.
(B) Receive and consider the views of various parent, student, and professional groups, and individuals with disabilities.
(C) When necessary, establish committees for short-term purposes composed of representatives from parent, student, family and other professional groups, and individuals with disabilities.
(D) Review the findings of fact and decision of each impartial due process hearing conducted pursuant to this part.
(E) Assist in developing and reporting such information and evaluations as may aid Section 6 Schools and the Military Departments in the performance of duties under the part.
(F) Make recommendations, based on program and operational information, for changes in the budget, organization, and general management of the special education program, and in policy and procedure.
(G) Comment publicly on rules or standards regarding the education of individuals with disabilities.
(H) Assist in developing recommendations regarding the transition of toddlers with disabilities to preschool services.
(b) The Assistant Secretary of Defense for Health Affairs in consultation with the USD(P&R), the GC, DoD, and the Secretaries of the Military Departments, shall:
(1) Establish staffing and personnel standards for personnel who provide early intervention services and medically related services.
(2) Develop and implement a comprehensive system of personnel development in accordance with 20 U.S.C. 1413(a)(3), including the training of professionals, paraprofessionals and primary referral sources, regarding the basic components of early intervention services and medically related services. Such a system may include:
(i) Implementing innovative strategies and activities for the recruitment and retention of early intervention service providers.
(ii) Ensuring that early intervention service providers and medically related service providers are fully and appropriately qualified to provide early intervention services and medically related services, respectively.
(iii) Training personnel to work in the military environment.
(iv) Training personnel to coordinate transition services for infants and toddlers with disabilities from an early intervention program to a preschool program.
(3) Develop and implement a system for compiling data on the numbers of infants and toddlers with disabilities and their families in need of appropriate early intervention services, the numbers of such infants and toddlers and their families served, the types of services, and other information required to evaluate the implementation of early intervention programs.
(4) Resolve disputes among the DoD Components arising under appendix A of this part.
(c) Secretaries of the Military Departments shall:
(1) Provide quality assurance for medically related services in accordance with personnel standards and staffing standards under DoD Directive 6025.13 ^5 developed by the Assistant Secretary of Defense for Health Affairs (ASD(HA)).
^5 See footnote 1 to § 80.1(c).
(2) Plan, develop, and implement a comprehensive, coordinated, intercomponent, community-based system of early intervention services for infants and toddlers with disabilities (birth through 2 inclusive) and their families who are living on an installation with a Section 6 School Arrangement, or who but for their age, would be entitled to enroll in a Section 6 School Arrangement, using the procedures established by this part and guidelines from the ASD(HA) on staffing and personnel standards.
(3) Undertake activities to ensure compliance with this part through technical assistance, program evaluation, and monitoring.
(d) The Director, Defense Office of Hearings and Appeals (DOHA) shall ensure the provision of impartial due process hearings under appendix C of this part.
§ 80.6
Procedures.
(a) Procedures for the provision of early intervention services for infants and toddlers with disabilities and their families are in appendix A to this part. Provision of early intervention services includes establishing a system of coordinated, comprehensive, multidisciplinary, intercomponent services providing appropriate early intervention services to all eligible infants and toddlers with disabilities and their families.
(b) Procedures for special educational programs (including related services) for preschool children and children with disabilities (3-21 years inclusive) are in appendix B to this part.
(c) Procedures for adjudicative requirements required by Pub. L. 101-476, as amended, and Pub. L. 102-119 are in appendix C to this part. These procedures establish adjudicative requirements whereby the parents of an infant, toddler, preschool child or child with a disability and the military department concerned or Section 6 School System are afforded an impartial due process hearing on early intervention services or on the identification, evaluation, and educational placement of, and the free appropriate public education provided to, such infant, toddler, preschool child or child, as the case may be.
Pt. 80, App. A

Appendix A to Part 80—Procedures for the Provision of Early Intervention Services for Infants and Toddlers With Disabilities, Ages 0-2 years (Inclusive), and Their Families

A. Requirements For A System of Early Intervention Services
1. A system of coordinated, comprehensive, multidisciplinary, and intercomponent programs providing appropriate early intervention services to all infants and toddlers with disabilities and their families shall include the following minimum components:
a. A timely, comprehensive, multidisciplinary evaluation of the functioning of each infant and toddler with a disability and the priorities and concerns of the infant's or toddler's family to assist in the development of the infant or toddler with a disability.
b. A mechanism to develop, for each infant and toddler with a disability, an IFSP and early intervention services coordination, in accordance with such service plan.
c. A comprehensive child-find system, coordinated with the appropriate Section 6 School Arrangement, including a system for making referrals to service providers that includes timelines and provides for participation by primary referral sources, such as the CDC and the pediatric clinic.
d. A public awareness program including information on early identification of infants and toddlers with disabilities and the availability of resources in the community to address and remediate these disabilities.
e. A central directory that includes a description of the early intervention services and other relevant resources available in the community.

B. Each Military Medical Department Shall Develop and Implement a System To Provide for:
1. The administration and supervision of early intervention programs and services, including the identification and coordination of all available resources.
2. The development of procedures to ensure that services are provided to infants and toddlers with disabilities and their families in a timely manner.
3. The execution of agreements with other DoD components necessary for the implementation of this appendix. Such agreements must be coordinated with the ASD(HA) and the GC, DoD, in consultation with the USD(P&R).
4. The collection and reporting of data required by ASD(HA).
5. A multidisciplinary assessment of the unique strengths and needs of the infant or toddler and the identification of services appropriate to meet such needs.
6. A family-directed assessment of the resources, priorities, and concerns of the family and the identification of the supports and services necessary to enhance the family's capacity to meet the developmental needs of its infant or toddler with a disability.

C. Each Military Medical Department Shall Develop and Implement a Program To Ensure That an IFSP Is Developed for Each Infant or Toddler With a Disability and the Infant's or Toddler's Family According to the Following Procedures:
1. The IFSP shall be evaluated once a year and the family shall be provided a review of the plan at 6-month intervals (or more often where appropriate), based on the needs of the infant or toddler and family.
2. Each initial meeting and each annual meeting to evaluate the IFSP must include the following participants:
a. The parent or parents of the infant or toddler.
b. Other family members, as requested by a parent, if feasible to do so.
c. An advocate, if his or her participation is requested by a parent.
d. The Early Intervention Program Services Coordinator who has been working with the family since the initial referral of the infant or toddler or who has been designated as responsible for the implementation of the IFSP.
e. A person or persons directly involved in conducting the evaluation and assessments.
f. Persons who will be providing services to the infant, toddler, or family, as appropriate.
g. If a person or persons listed in paragraph C.2 of this section is unable to attend a meeting, arrangements must be made for involvement through other means, including:
(1) Participating in a telephone call.
(2) Having a knowledgeable authorized representative attend the meeting.
(3) Making pertinent records available at the meeting.
3. The IFSP shall be developed within a reasonable time after the assessment. With the parent's consent, early intervention services may start before the completion of such an assessment under an IFSP.
4. The IFSP shall be in writing and contain:
a. A statement of the infant's or toddler's present levels of physical development, cognitive development, communication development, social or emotional development, and adaptive development, based on acceptable objective criteria.
b. A statement of the family's resources, priorities, and concerns for enhancing the development of the family's infant or toddler with a disability.
c. A statement of the major outcomes expected to be achieved for the infant or toddler and the family, and the criteria, procedures, and timelines used to determine the degree to which progress toward achieving the outcomes is being made and whether modifications or revisions of the outcomes or services are necessary.
d. A statement of the specific early intervention services necessary to meet the unique needs of the infant or toddler and the family, including the frequency, intensity, and the method of delivering services.
e. A statement of the natural environments in which early intervention services shall be provided.
f. The projected dates for initiation of services and the anticipated duration of such services.
g. The name of the Early Intervention Program Service Coordinator.
h. The steps to be taken supporting the transition of the toddler with a disability to preschool services or other services to the extent such services are considered appropriate.
5. The contents of the IFSP shall be fully explained to the parents by the Early Intervention Program Service Coordinator, and informed written consent from such parents shall be obtained before the provision of early intervention services described in such plan. If the parents do not provide such consent with respect to a particular early intervention service, then the early intervention services to which such consent is obtained shall be provided.

D. Procedural Safeguards for the Early Intervention Program
1. The procedural safeguards include:
a. The timely administrative resolution of complaints by the parent(s), including hearing procedures (appendix C to this part).
b. The right to protection of personally identifiable information under 32 CFR part 310.
c. The right of the parent(s) to determine whether they, their infant or toddler, or other family members will accept or decline any early intervention service without jeopardizing the delivery of other early intervention services to which such consent is obtained.
d. The opportunity for the parent(s) to examine records on assessment, screening, eligibility determinations, and the development and implementation of the IFSP.
e. Written prior notice to the parent(s) of the infant or toddler with a disability whenever the Military Department concerned proposes to initiate or change or refuses to initiate or change the identification, evaluation, placement, or the provision of appropriate early intervention services to the infant and toddler with a disability.
f. Procedures designed to ensure that the notice required in paragraph D.1.e. of this appendix fully informs the parents in the parents' native language, unless it clearly is not feasible to do so.
g. During the pending of any proceeding under appendix C to this part, unless the Military Department concerned and the parent(s) otherwise agree, the infant or toddler shall continue to receive the early intervention services currently being provided, or, if applying for initial services, shall receive the services not in dispute.
Pt. 80, App. B

Appendix B to Part 80—Procedures for Special Educational Programs (Including Related Services) for Preschool Children and Children With Disabilities (3-21 years Inclusive)

A. Identification and Screening
1. Each Section 6 School Arrangement shall locate, identify, and, with the consent of a parent of each preschool child or child, evaluate all preschool children or children who are receiving or are entitled to receive an education from Section 6 School Arrangements and who may need special education and/or related services.
2. Each Section 6 School Arrangement shall:
a. Provide screening, through the review of incoming records and the use of basic skills tests in reading, language arts, and mathematics, to determine whether a preschool child or child may be in need of special education and related services.
b. Analyze school health data for those preschool children and children who demonstrate possible disabling conditions. Such data shall include:
(1) Results of formal hearing, vision, speech, and language tests.
(2) Reports from medical practitioners.
(3) Reports from other appropriate professional health personnel as may be necessary, under this part, to aid in identifying possible disabling conditions.
c. Analyze other pertinent information, including suspensions, exclusions, other disciplinary actions, and withdrawals, compiled and maintained by Section 6 School Arrangements that may aid in identifying possible disabling conditions.
3. Each Section 6 School Arrangement, in cooperation with cognizant authorities at the installation on which the Section 6 School Arrangement is located, shall conduct ongoing child-find activities that are designed to identify all infants, toddlers, preschool children, and children with possible disabling conditions who reside on the installation or who otherwise either are entitled, or will be entitled, to receive services under this part.
a. If an element of the Section 6 School Arrangement, a qualified professional authorized to provide related services, a parent, or other individual believes that an infant, toddler, preschool child or child has a possible disabling condition, that individual shall be referred to the appropriate CSC or early intervention coordinator.
b. A Section 6 School Arrangement CSC shall work in cooperation with the Military Departments in identifying infants, toddlers, preschool children and children with disabilities (birth to 21 years inclusive).

B. Evaluation Procedures
1. Each CSC will provide a full and comprehensive diagnostic evaluation of special educational, and related service needs to any preschool child or child who is receiving, or entitled to receive, educational instruction from a Section 6 School Arrangement, operated by the Department of Defense under Directive 1342.21, and who is referred to a CSC for a possible disability. The evaluation will be conducted before any action is taken on the development of the IEP or placement in a special education program.
2. Assessment materials, evaluation procedures, and tests shall be:
a. Racially and culturally nondiscriminatory.
b. Administered in the native language or mode of communication of the preschool child or child unless it clearly is not feasible to do so.
c. Validated for the specific purpose for which they are used or intended to be used.
d. Administered by qualified personnel, such as a special educator, school psychologist, speech therapist, or a reading specialist, in conformity with the instructions provided by the producers of the testing device.
e. Administered in a manner so that no single procedure is the sole criterion for determining eligibility and an appropriate educational program for a disabled preschool child or child.
f. selected to assess specific areas of educational strengths and needs, not merely to provide a single general intelligence quotient.
3. The evaluation shall be conducted by a multidisciplinary team and shall include a teacher or other specialist with knowledge in the areas of the suspected disability.
4. The preschool child or child shall be evaluated in all areas related to the suspected disability. When necessary, the evaluation shall include:
a. The current level of academic functioning, to include general intelligence.
b. Visual and auditory acuity.
c. Social and emotional status, to include social functioning within the educational environment and within the family.
d. Current physical status, including perceptual and motor abilities.
e. Vocational transitional assessment (for children ages 14-21 years (inclusive)).
5. The appropriate CSC shall met as soon as possible after the preschool child's or child's formal evaluation to determine whether he or she is in need of special education and related services. The preschool child's or child's parents shall be invited to the meeting and afforded the opportunity to participate in such a meeting.
6. The school CSC shall issue a written report that contains:
a. A review of the formal and informal diagnostic evaluation findings of the multidisciplinary team.
b. A summary of information from the parents, the preschool child or child, or other persons having significant previous contact with the preschool child or child.
c. A description of the preschool child's or child's current academic progress, including a statement of his or her learning style.
d. A description of the nature and severity of the preschool child's or child's disability(ies).
7. A preschool child or child with a disability shall receive an individual comprehensive diagnostic evaluation every 3 years, or more frequently if conditions warrant, or if the preschool child's or child's parent, teacher, or related service provider requests an evaluation. The scope and nature of the reevaluation shall be determined individually, based upon the preschool child's or child's performance, behavior, and needs when the reevaluation is conducted, and be used to update or revise the IEP.

C. Individualized Education Program (IEP)
1. Section 6 School Arrangements shall ensure that an IEP is developed and implemented for each preschool child or child with a disability enrolled in a Section 6 School Arrangement or placed on another institution by a Section 6 School Arrangement CSC under this part.
2. Each IEP shall include:
a. A statement of the preschool child's or child's present levels of educational performance.
b. A statement of annual goals, including short-term instructional objectives.
c. A statement of the specific special educational services and related services to be provided to the preschool child or child (including the frequency, number of times per week/month and intensity, amount of times each day) and the extent to which the preschool child or child may be able to participate in regular educational programs.
d. The projected anticipated date for the initiation and the anticipated length of such activities and services.
e. Appropriate objective criteria and evaluation procedures and schedules for determining, on an annual basis, whether educational goals and objectives are being achieved.
f. A statement of the needed transition services for the child beginning no later than age 16 and annually thereafter (and when determined appropriate for the child, beginning at age 14 or younger) including, when appropriate, a statement of DoD Component responsibilities before the child leaves the school setting.
3. Each preschool child or child with a disability shall be provided the opportunity to participate, with adaptations when appropriate, in the regular physical education program available to students without disabilities unless:
a. The preschool child or child with a disability is enrolled full-time in a separate facility; or
b. The preschool child or child with a disability needs specially designed physical education, as prescribed in his or her IEP.
4. If specially designed physical education services are prescribed in the IEP of a preschool child or child with a disability, the Section 6 School Arrangement shall provide such education directly, or shall make arrangements for the services to be provided through a non-Section 6 School Arrangement or another facility.
5. Section 6 School Arrangements shall ensure that a preschool child or child with a disability, enrolled by a CSC in a separate facility, receives appropriate, physical education in compliance with this part.
6. The IEP for each preschool child or child with a disability shall be developed and reviewed at least annually in meetings that include the following participants:
a. The designated representative of the Section 6 School Arrangement, who is qualified to supervise the provision of special education. Such representative may not be the preschool child's or child's special education teacher.
b. One, or more, of the preschool child's or child's regular education teachers, if appropriate.
c. The preschool child's or child's special education teacher or teachers.
d. One, or both, of the preschool child's or child's parents.
e. The child, if appropriate.
f. For a preschool child or child with a disability who has been evaluated, a member of the evaluation team or another person knowledgeable about the evaluation procedures used with that student and familiar with the results of the evaluation.
g. Other individuals, at the reasonable discretion of the parent(s) or the school.
7. Section 6 School Arrangements shall:
2a. Ensure that an IEP meeting is held, normally within 10 working days, following a determination by the appropriate CSC that the preschool child or child is eligible to receive special education and/or related services.
b. Address the needs of a preschool child or child with a current IEP who transfers from a school operated by the DoD in accordance with 32 CFR part ^1 or from a Section 6 School Arrangement to a Section 6 School Arrangement, by:
^1 Copies of DoD Directive 1342.6 may be obtained, at cost, from the National Technical Information Service, 5285 Port Royal Road, Springfield, VA 22161.
(1)Implementing the current IEP; or
(2) Revising the current IEP with the consent of a parent; or
(3) Initiating, with the consent of a parent, an evaluation of the preschool child or child, while continuing to provide appropriate services through a current IEP; or
(4) Initiating, with the consent of the parent, an evaluation of the preschool child or child without the provision of the services in the current IEP; or
(5) Initiating mediation, and if necessary, due process procedures.
c. Afford the preschool child's or child's parent(s) the opportunity to participate in every IEP or CSC meeting about their preschool child or child by:
(1) Providing the parent(s) adequate written notice of the purpose, time, and place of the meeting.
(2) Attempting to schedule the meeting at a mutually agreeable time and place.
8. If neither parent can attend the meeting, other methods to promote participation by a parent, such as telephone conservations and letters, shall be used.
9. A meeting may be conducted without a parent in attendance if the Section 6 School Arrangement is unable to secure the attendance of the parent. In this case, the Section 6 School Arrangement must have written records of its attempts to arrange a mutually acceptable time and place.
10. If the parent(s) attends the IEP meeting, the Section 6 School Arrangement shall take necessary action to ensure that at least one of the parents understands the proceedings at the meeting, including providing an interpreter for a parent who is deaf or whose native language is other than English.
11. The section 6 School Arrangement shall give a parent a copy of the preschool child's IEP.
12. Section 6 School Arrangements shall provide special education and related services, in accordance with an IEP, provided that the Department of Defense, its constituent elements, and its personnel, are not accountable if a preschool child or child does not achieve the growth projected in the IEP.
13. Section 6 School Arrangements shall ensure that an IEP is developed and implemented for each preschool child or child with a disability whom the CSC places in a non-Section 6 School or other facility.

D. Placement Procedures and Least Restrictive Environment
1. The placement of a preschool child or child in any special education program by the Section 6 School Arrangement shall be made only under an IEP and after a determination has been made that such student has a disability and needs special education and/or related services.
2. The Section 6 School Arrangement CSC shall identify the special education and related services to be provided under the IEP.
3. A placement decision may not be implemented without the consent of a parent of the preschool child or child, except as otherwise provided in accordance with this part.
4. The placement decision must be designed to educate a preschool child or child with a disability in the least restrictive environment so that such student is educated to the maximum extent appropriate with students who do not have disabilities. Special classes, separate schooling, or other removal of preschool children or children with disabilities from the regular educational environment shall occur only when the nature or severity of the disability is such that the preschool child or child with disabilities cannot be educated satisfactorily in the regular classes with the use of supplementary aids and services, including related services.
5. Each educational placement for a preschool child or child with a disability shall be:
a. Determined at least annually by the appropriate CSC.
b. Based on the preschool child or child's IEP.
c. Located as close as possible to the residence of the parent who is sponsoring the preschool child or child for attendance in a Section 6 School Arrangement.
d. Designed to assign the preschool child or child to the school such student would attend if he or she were not a student with a disability, unless the IEP requires some other arrangement.
e. Predicated on the consideration of all factors affecting the preschool child's or child's well-being, including the effects of separation from parent(s).
f. To the maximum extent appropriate, designed so that the preschool child or child participates in school activities, including meals and recess periods, with students who do not have a disability.

E. Children With Disabilities Placed in Non-Section 6 School Arrangements
1. Before a Section 6 School Arrangement CSC, with the concurrence of the Section 6 School Arrangement Superintendent concerned, places a preschool child or child with a disability in a non-Section 6 School or facility, the Section 6 School CSC shall conduct a meeting in accordance with this part to initiate the development of an IEP for such student.
2. Preschool children and children with disabilities eligible to receive instruction in Section 6 School Arrangements who are referred to another school or facility by the Section 6 School CSC have all the rights of students with disabilities who are attending the Section 6 School Arrangement.
a. If a Section 6 School Arrangement CSC places a preschool child or child with a disability in a non-Section 6 School Arrangement or facility as a means of providing special education and related services, the program of that facility, including nonmedical care, room, and board, as set forth in the student's IEP, must be at no cost to the student or the student's parents.
b. A Section 6 School Arrangement CSC may place a preschool child or child with a disability in a non-Section 6 School Arrangement or facility only if required by an IEP. An IEP for a student placed in a non-Section 6 School is not valid until signed by the Section 6 School Arrangement Superintendent, or designee, who must have participated in the IEP meeting. The IEP shall include determinations that:
(1) The Section 6 School Arrangement does not currently have, and cannot reasonably create, an educational program appropriate to meet the needs of the student with a disability.
(2) The non-Section 6 School Arrangement or facility and its educational program conform to this part.
3. A Section 6 School Arrangement is not responsible for the cost of a non-Section 6 School Arrangement placement when placement is made unilaterally, without the approval of the cognizant CSC and the Superintendent, unless it is directed by a hearing officer under appendix C of this part or a court of competent jurisdiction.

F. Procedural Safeguards
1. Parents shall be given written notice before the Section 6 School Arrangement CSC proposes to initiate or change, or refuses to initiate or change, either the identification, evaluation, or educational placement of a preschool child or child receiving, or entitled to receive, special education and related services from a Section 6 School Arrangement, or the provision of a free appropriate public education by the Section 6 School Arrangement to the child. The notice shall fully inform a parent of the procedural rights conferred by this part and shall be given in the parent's native language, unless it clearly is not feasible to do so.
2. The consent of a parent of a preschool child or child with a disability or suspected of having a disability shall be obtained before any:
a. Initiation of formal evaluation procedures;
b. Initial special educational placement; or
c. Change in educational placement.
3. If a parent refuses consent to any formal evaluation or initial placement in a special education program, the Section 6 School Arrangement Superintendent may initiate an impartial due process hearing, as provided in appendix C of this part to show why an evaluation or placement in a special education program should occur without such consent. If the hearing officer sustains the Section 6 School Arrangement CSC position in the impartial due process hearing, the appropriate CSC may evaluate or provide special education and related services to the preschool child or child without the consent of a parent, subject to the parent's due process rights.
4. A parent is entitled to an independent evaluation of his or her preschool child or child at the Section 6 School Arrangement's expense, if the parent disagrees with the findings of an evaluation of the student conducted by the school and the parent successfully challenges the evaluation in an impartial due process hearing.
a. If an independent evaluation is provided at the expense of a Section 6 School Arrangement, it must meet the following criteria:
(1) Conform to the requirements of this part.
(2) Be conducted, when possible, within the area where the preschool child or child resides.
(3) Meet applicable DoD standards governing persons qualified to conduct an evaluation.
b. If the final decision rendered in an impartial due process hearing sustains the evaluation of the Section 6 School Arrangement CSC, the parent has the right to an independent evaluation, but not at the expense of the Department of Defense or any DoD Component.
5. The parents of a preschool child or child with a disability shall be afforded an opportunity to inspect and review all relevant educational records concerning the identification, evaluation, and educational placement of such student, and the provision of a free appropriate public education to him or her.
6. Upon complaint presented in a written petition, the parent of a preschool child or child with a disability or the Section 6 School System shall have the opportunity for an impartial due process hearing provided by the Department of Defense as prescribed by appendix C of this part.
7. During the pendency of any impartial due process hearing or judicial proceeding on the identification, evaluation, or educational placement of a preschool child or child with a disability receiving an education from a Section 6 School Arrangement or the provision of a free appropriate public education to such a student, unless the Section 6 School Arrangement and a parent of the student agree otherwise, the student shall remain in his or her present educational placement, subject to the disciplinary procedures prescribed in this part.
8. If a preschool child or child with a disability, without a current IEP, who is entitled to receive educational instruction from a Section 6 School Arrangement is applying for initial admission to a Section 6 School Arrangement, that student shall enter that Arrangement on the same basis as a student without a disability.
9. The parent of a preschool child or child with a disability or a Section 6 School Arrangement employee may file a written communication with the Section 6 School Arrangement Superintendent about possible general violations of this part or Pub. L. 101-476, as amended. Such communications will not be treated as complaints under appendix C of this part.

G. Disciplinary Procedures
1. All regular disciplinary rules and procedures applicable to students receiving educational instruction in the Section 6 School Arrangements shall apply to preschool children and children with disabilities who violate school rules and regulations or disrupt regular classroom activities, subject to the provisions of this section.
2. The appropriate CSC shall determine whether the conduct of a preschool child or child with a disability is the result of that disability before the long-term suspension (10 consecutive or cumulative days during the school year) or the expulsion of that student.
3. If the CSC determines that the conduct of such a preschool child or child with a disability results in whole or part from his or her disability, that student may not be subject to any regular disciplinary rules and procedures; and
a. The student's parent shall be notified in accordance with this part of the right to have an IEP meeting before any change in the student's special education placement. (A termination of the student's education for more than 10 days, either cumulative or consecutive, constitutes a change of placement.)
b. The Section 6 School Arrangement CSC or another authorized school official shall ensure that an IEP meeting is held to determine the appropriate educational placement for the student in consideration of his or her conduct before the tenth cumulative day of the student's suspension or an expulsion.
4. A preschool child or child with a disability shall neither be suspended for more than 10 days nor expelled, and his or her educational placement shall not otherwise be changed for disciplinary reasons, unless in accordance with this section, except that:
a. This section shall be applicable only to preschool children and children determined to have a disability under this part.
b. Nothing contained herein shall prevent the emergency suspension of any preschool child or child with a disability who endangers or reasonable appears to endanger the health, welfare, or safety of himself or herself, or any other student, teacher, or school personnel, provided that:
(1) The appropriate Section 6 School Arrangement CSC shall immediately meet to determine whether the preschool child's or child's conduct results from his or her disability and what change in special education placement is appropriate for that student.
(2) The child's parent(s) shall be notified immediately of the student's suspension and of the time, purpose, and location of the CSC meeting and their right to attend the meeting.
(3) A component is included in the IEP that addresses the behavioral needs of the student.
(4) The suspension of the student is only effective for the duration of the emergency.
Pt. 80, App. C

Appendix C to Part 80—Hearing Procedures

A. Purpose
This appendix establishes adjudicative requirements whereby the parents of infants, toddlers, preschool children, and children who are covered by this part and, as the case may be, the cognizant Military Department or Section 6 School System are afforded impartial due process hearings and administrative appeals on the early intervention services or identification, evaluation, and educational placement of, and the free appropriate public education provided to, such children by the Department of Defense, in accordance with Pub. L. 101-476, as amended, 20 U.S.C. sec. 1401 et seq.; Pub. L. 81-874, sec. 6, as amended, 20 U.S.C. sec. 241; Pub. L. 97-35, sec. 505(c), 20 U.S.C. sec. 241 note; and Pub. L. 102-119, sec. 23, 20 U.S.C. sec. 241(a).

B. Administration
1. The Directorate for the Defense Office of Hearings and Appeals (DOHA) shall have administrative responsibility for the proceedings authorized by this appendix.
2. This appendix shall be administered to ensure that the findings, judgments, and determinations made are prompt, fair, and impartial.
3. Impartial hearing officers, who shall be DOHA Administrative Judges, shall be appointed by the Director, DOHA, and shall be attorneys who are independent of the Section 6 School System or the Military Department concerned in proceedings conducted under this appendix. A parent shall have the right to be represented in such proceedings, at no cost to the government, by counsel and by persons with special knowledge or training with respect to the problems of individuals with disabilities. DOHA Department Counsel normally shall appear and represent the Section 6 School System in proceedings conducted under this appendix, when such proceedings involve a preschool child or child. When an infant or toddler is involved, the Military Department responsible under this part for delivering early intervention services shall either provide its own counsel or request counsel from DOHA.

C. Mediation
1. Mediation can be initiated by either a parent or, as appropriate, the Military Department concerned or the Section 6 School System to resolve informally a disagreement on the early intervention services for an infant or toddler or the identification, evaluation, educational placement of, or the free appropriate public education provided to, a preschool child or child. The cognizant Military Department, rather than the Section 6 School System, shall participate in mediation involving early intervention services. Mediation shall consist of, but not be limited to, an informal discussion of the differences between the parties in an effort to resolve those differences. The parents and the appropriate school or Military Department officials may attend mediation sessions.
2. Mediation must be conducted, attempted, or refused in writing by a parent of the infant, toddler, preschool child or child whose early intervention or special education services (including related services) are at issue before a request for, or initiation of, a hearing authorized by this appendix. Any request by the Section 6 School System or Military Department for a hearing under this appendix shall state how this requirement has been satisfied. No stigma may be attached to the refusal of a parent to mediate or to an unsuccessful attempt to mediate.

D. Practice and Procedure

1. Hearing
a. Should mediation be refused or otherwise fail to resolve the issues on the provision of early intervention services or a free, appropriate public education to a disabled infant, toddler, preschool child or child or the identification, evaluation, or educational placement of such an individual, the parent or either the school principal, on behalf of the Section 6 School System, or the military medical treatment facility commander, on behalf of the Military Department having jurisdiction over the infant or toddler, may request and shall receive a hearing before a hearing officer to resolve the matter. The parents of an infant, toddler, preschool child or child and the Section 6 School System or Military Department concerned shall be the only parties to a hearing conducted under this appendix.
b. The party seeking the hearing shall submit a written request, in the form of a petition, setting forth the facts, issues, and proposed relief, to the Director, DOHA. The petitioner shall deliver a copy of the petition to the opposing party (that is, the parent or the school principal, on behalf of the Section 6 School System, or the military medical treatment facility commander, on behalf of the Military Department), either in person or by first-class mail, postage prepaid. Delivery is complete upon mailing. When the Section 6 School System or Military Department petitions for a hearing, it shall inform the other parties of the deadline for filing an answer under paragraph D.1.c. of this appendix, and shall provide the other parties with a copy of this part.
c. An opposing party shall submit an answer to the petition to the Director, DOHA, with a copy to the petitioner, within 15 calendar days of receipt of the petition. The answer shall be as full and complete as possible, addressing the issues, facts, and proposed relief. The submission of the answer is complete upon mailing.
d. Within 10 calendar days after receiving the petition, the Director, DOHA, shall assign a hearing officer, who then shall have jurisdiction over the resulting proceedings. The Director, DOHA, shall forward all pleadings to the hearing officer.
e. The questions for adjudication shall be based on the petition and the answer, provided that a party may amend a pleading if the amendment is filed with the hearing officer and is received by the other parties at least 5 calendar days before the hearing.
f. The Director, DOHA, shall arrange for the time and place of the hearing, and shall provide administrative support. Such arrangements shall be reasonably convenient to the parties.
g. The purpose of a hearing is to establish the relevant facts necessary for the hearing officer to reach a fair and impartial determination of the case. Oral and documentary evidence that is relevant and material may be received. The technical rules of evidence shall be relaxed to permit the development of a full evidentiary record, with the Federal Rules of Evidence (28 U.S.C.) serving as a guide.
h. The hearing officer shall be the presiding officer, with judicial powers to manage the proceeding and conduct the hearing. Those powers shall include the authority to order an independent evaluation of the child at the expense of the Section 6 School System or Military Department concerned and to call and question witnesses.
i. Those normally authorized to attend a hearing shall be the parents of the individual with disabilities, the counsel and personal representative of the parents, the counsel and professional employees of the Section 6 School System or Military Department concerned, the hearing officer, and a person qualified to transcribe or record the proceedings. The hearing officer may permit other persons to attend the hearing, consistent with the privacy interests of the parents and the individual with disabilities, provided the parents have the right to an open hearing upon waiving in writing their privacy rights and those of the individual with disabilities.
j. A verbatim transcription of the hearing shall be made in written or electronic form and shall become a permanent part of the record. A copy of the written transcript or electronic record of the hearing shall be made available to a parent upon request and without cost. The hearing officer may allow corrections to the written transcript or electronic recording for the purpose of conforming it to actual testimony after adequate notice of such changes is given to all parties.
k. The hearing officer's decision of the case shall be based on the record, which shall include the petition, the answer, the written transcript or the electronic recording of the hearing, exhibits admitted into evidence, pleadings or correspondence properly filed and served on all parties, and such other matters as the hearing officer may include in the record, provided that such matter is made available to all parties before the record is closed under paragraph D.1.m. of this appendix.
l. The hearing officer shall make a full and complete record of a case presented for adjudication.
m. The hearing officer shall decide when the record in a case is closed.
n. The hearing officer shall issue findings of fact and render a decision in a case not later than 50 calendar days after being assigned to the case, unless a discovery request under section D.2. of this appendix is pending.

2. Discovery
a. Full and complete discovery shall be available to parties to the proceeding, with the Federal Rules of Civil Procedure (28 U.S.C.) serving as a guide.
b. If voluntary discovery cannot be accomplished, a party seeking discovery may file a motion to accomplish discovery, provided such motion is founded on the relevance and materiality of the proposed discovery to the issues. An order granting discovery shall be enforceable as is an order compelling testimony or the production of evidence.
c. A copy of the written or electronic transcription of a deposition taken by the Section 6 School System or Military Department concerned shall be made available free of charge to a parent.

3. Witnesses; Production of Evidence
a. All witnesses testifying at the hearing shall be advised that it is a criminal offense knowingly and willfully to make a false statement or representation to a Department or Agency of the United States Government as to any matter within the jurisdiction of the Department or Agency. All witnesses shall be subject to cross-examination by the parties.
b. A party calling a witness shall bear the witness' travel and incidental expenses associated with testifying at the hearing. The Section 6 School System or Military Department concerned shall pay such expenses when a witness is called by the hearing officer.
c. The hearing officer may issue an order compelling the attendance of witnesses or the production of evidence upon the hearing officer's own motion or, if good cause be shown, upon motion of a party.
d. When the hearing officer determines that a person has failed to obey an order to testify or to produce evidence, and such failure is in knowing and willful disregard of the order, the hearing officer shall so certify.
e. The party or the hearing officer seeking to compel testimony or the production of evidence may, upon the certification provided for in paragraph D.3.d. of the section, file an appropriate action in a court of competent jurisdiction to compel compliance with the hearing officer's order.

4. Hearing Officer's Findings of Fact and Decision
a. The hearing officer shall make written findings of fact and shall issue a decision setting forth the questions presented, the resolution of those questions, and the rationale for the resolution. The hearing officer shall file the findings of fact and decision with the Director, DOHA, with a copy to the parties.
b. The Director, DOHA, shall forward to the Director, Section 6 Schools or the Military Department concerned and the Domestic Advisory Panel copies, with all personally identifiable information deleted, of the hearing officer's findings of fact and decision or, in cases that are administratively appealed, of the final decision of the DOHA Appeal Board.
c. The hearing officer shall have the authority to impose financial responsibility for early intervention services, educational placements, evaluations, and related services under his or her findings of fact and decision.
d. The findings of fact and decision of the hearing officer shall become final unless a notice of appeal is filed under section F.1. of this appendix. The Section 6 School System or Military Department concerned shall implement a decision as soon as practicable after it becomes final.

E. Determination Without Hearing
1. At the request of a parent of the infant, toddler, preschool child or child when early intervention or special educational (including related) services are at issue, the requirement for a hearing may be waived, and the case may be submitted to the hearing officer on written documents filed by the parties. The hearing officer shall make findings of fact and issue a decision within the period fixed by paragraph D.1.n. of this appendix.
2. The Section 6 School System or Military Department concerned may oppose a request to waive the hearing. In that event, the hearing officer shall rule on the request.
3. Documents submitted to the hearing officer in a case determined without a hearing shall comply with paragraph D.1.g. of this appendix. A party submitting such documents shall provide copies to all other parties.

F. Appeal
1. A party may appeal the hearing officer's findings of fact and decision by filing a written notice of appeal with the Director, DOHA, within 5 calendar days of receipt of the findings of fact and decision. The notice of appeal must contain the appellant's certification that a copy of the notice of appeal has been provided to all other parties. Filing is complete upon mailing.
2. Within 10 calendar days of the filing the notice of appeal, the appellant shall submit a written statement of issues and arguments to the Director, DOHA, with a copy to the other parties. The other parties shall submit a reply or replies to the Director, DOHA, within 15 calendar days of receiving the statement, and shall deliver a copy of each reply to the appellant. Submission is complete upon mailing.
3. The Director, DOHA, shall refer the matter on appeal to the DOHA Appeal Board. It shall determine the matter, including the making of interlocutory rulings, within 60 calendar days of receiving timely submitted replies under section F.2. of this appendix. The DOHA Appeal Board may require oral argument at a time and place reasonable convenient to the parties.
4. The determination of the DOHA Appeal Board shall be a final administrative decision and shall be in written form. It shall address the issues presented and set forth a rationale for the decision reached. A determination denying the appeal of a parent in whole or in part shall state that the parent has the right under Pub. L. 101-476, as amended, to bring a civil action on the matters in dispute in a district court of the United States without regard to the amount in controversy.
5. No provision of this part or other DoD guidance may be construed as conferring a further right of administrative review. A party must exhaust all administrative remedies afforded by this appendix before seeking judicial review of a determination made under this appendix.

G. Publication and Indexing of Final Decisions
The Director, DOHA, shall ensure that final decisions in cases arising under this Appendix are published and indexed to protect the privacy rights of the parents who are parties in those cases and the children of such parents, in accordance with 32 CFR part 310.
Pt. 81

PART 81—PATERNITY CLAIMS AND ADOPTION PROCEEDINGS INVOLVING MEMBERS AND FORMER MEMBERS OF THE ARMED FORCES
Sec.
81.1
Reissuance and purpose.
81.2
Applicability.
81.3
Policy.

Authority:
Sec. 301, 80 Stat. 379; (5 U.S.C. 301).

Source:
43 FR 15149, Apr. 11, 1978, unless otherwise noted.
§ 81.1
Reissuance and purpose.
This part reissued DoD Directive 1344.3, “Paternity Claims and Adoption Proceedings Involving Members and Former Members of the Armed Forces,” to standardize procedures for the handling of:
(a) Paternity claims against members and former members of the Armed Forces, and
(b) Requests from civilian courts concerning the availability of members and former members of the Armed Forces to appear at an adoption hearing where it is alleged that such member is the father of an illegitimate child.
§ 81.2
Applicability.
The provisions of this part apply to the Military Departments.
§ 81.3
Policy.
(a) Members on active duty. (1) Allegations of paternity against members of the Armed Forces who are on active duty will be transmitted to the individual concerned by the appropriate military authorities.
(2) If there exists a judicial order or decree of paternity or child support duly rendered by a United States or foreign court of competent jurisdiction against such a member, the commanding officer in the appropriate Military Departments will advise the member of his moral and legal obligations as well as his legal rights in the matter. See 42 U.S.C. 659. The member will be encouraged to render the necessary financial support to the child and take any other action considered proper under the circumstances.
(3) Communications from a judge of a civilian court, including a court summons or a judical order, concerning the availability of personnel to appear at an adoption hearing, where it is alleged that an active duty member is the father of an illegitimate child, shall receive a reply that:
(i) Due to military requirements, the member cannot be granted leave to attend any court hearing until (date), or
(ii) A request by the member for leave to attend an adoption court hearing on (date), if made, would be approved, or
(iii) The member has stated in a sworn written statement (forward a copy with response) that he is not the natural parent of the child, or
(iv) Due to the member's unavaila-bility caused by a specific reason, a completely responsive answer cannnot be made.
(4) The member should be informed of the inquiry and the response and urged to obtain legal assistance for guidance (including an explanation of sections of the Soldiers' and Sailors' Civil Relief Act, 50 U.S.C. appendix, section 501 et seq., if appropriate).
(b) Members not on active duty. (1) Allegations of paternity against members of the Armed Forces who are not on active duty shall be forwarded to the individual concerned in such manner as to ensure that the allegations are delivered to the addressee only. Military channels will be used when practicable.
(2) Communications from a judge of a civilian court, including a court summons or judicial order, concerning the availability of personnel to appear at an adoption hearing, where it is alleged that the member not on active duty is the father of an illegitimate child shall receive a reply that such person is not on active duty. A copy of the communication and the reply will be forwarded to the named individual.
(3) When requested by a court, the last known address of inactive members may be furnished under the same conditions as set forth for former members under paragraph (c)(2) (i) and (ii) of this section.
(c) Former members. (1) In all cases of allegations of paternity against former members of the Armed Forces or communication from a judge of a civilian court, including a judicial summons or court order, concerning the adoption of an illegitimate child of former members of the Armed Forces who have been separated from the Military Services, i.e., those members now holding no military status whatsoever, the claimant or requester will be (i) informed of the date of discharge, and (ii) advised that the individual concerned is no longer a member of the Armed Forces in any capacity, and that the Military Departments assume no responsibility for the whereabouts of individuals no longer under their jurisdiction. The correspondence and all accompanying documentation shall be returned to the claimant or requester.
(2) In addition, the last known address of the former member will be furnished to the requester:
(i) If the request is supported by a certified copy of either:
(A) A judicial order or decree of paternity or support duly rendered against a former member by a United States or foreign court of competent jurisdiction; or
(B) A document which establishes that the former member has made an official 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; or
(C) A court summons, judicial order, or similar document of a court within the United States in a case concerning the adoption of an illegitimate child; wherein the former serviceman is alleged to be the father.
(ii) If the claimant, 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 to protect the physical health of either the prospective mother or the unborn child.
Pt. 85

PART 85—HEALTH PROMOTION
Sec.
85.1
Purpose.
85.2
Applicability and scope.
85.3
Definitions.
85.4
Policy.
85.5
Responsibilities.
85.6
Procedures.

Authority:
5 U.S.C. 301.

Source:
53 FR 33123, Aug. 30, 1988, unless otherwise noted.
§ 85.1
Purpose.
(a) This part establishes a health promotion policy within the Department of Defense to improve and maintain military readiness and the quality of life of DoD personnel and other beneficiaries.
(b) This part replaces 32 CFR part 203 and establishes policy on smoking in DoD occupied buildings and facilities.
§ 85.2
Applicability and scope.
(a) This part applies to the Office of the Secretary of Defense (OSD), the Military Departments, and the Defense Agencies.
(b) It is directed to all military personnel and retirees, their families, and, where specified, to civilian employees.
§ 85.3
Definitions.
Health Promotion. Any combination of health education and related organizational, social, economic or health care interventions designed to facilitate behavioral and environmental alterations that will improve or protect health. It includes those activities intended to support and influence individuals in managing their own health through lifestyle decisions and selfcare. Operationally, health promotion includes smoking prevention and cessation, physical fitness, nutrition, stress management, alcohol and drug abuse prevention, and early identification of hypertension.
Lifestyle. The aggregated habits and behaviors of individuals.
Military Personnel. Includes all U.S. military personnel on active duty, U.S. National Guard or Reserve personnel on active duty, and Military Service Academy cadets and midshipmen.
Self-Care. Includes acceptance of responsibility for maintaining personal health, and decisions concerning medical care that are appropriate for the individual to make.
Target Populations. Military personnel, retirees, their families, and civilian employees.
§ 85.4
Policy.
It is DoD policy to:
(a) Encourage military personnel, retirees, their families and civilian employees to live healthy lives through an integrated, coordinated and comprehensive health promotion program.
(b) Foster an environment that enhances the development of healthful lifestyles and high unit performance.
(c) Recognize the right of individuals working or visiting in DoD occupied buildings to an environment reasonably free of contaminants.
(d) Disallow DoD Components' participation with manufacturers or distributors of alcohol or tobacco products in promotional programs, activities, or contests aimed primarily at DoD personnel. This does not prevent accepting support from these manufacturers or distributors for worthwhile programs benefiting military personnel when no advertised cooperation between the Departmment of Defense and the manufacturer or distributor directly or indirectly identifying an alcohol or tobacco product with the program is required. Neither does it prevent the participation of military personnel in programs, activities, or contests approved by the manufacturers or distributors of such products when that participation is incidental to general public participation.
§ 85.5
Responsibilities.
(a) The Assistant Secretary of Defense (Health Affairs) (ASD(HA)) shall coordinate and monitor the DoD health promotion program in accordance with this part, executing this responsibility in cooperation with the Assistant Secretary of Defense (Force Management and Personnel) and the Assistant Secretary of Defense (Reserve Affairs). The Office of the Assistant Secretary of Defense (Health Affairs) (ASD(HA)) shall:
(1) Establish and chair the Health Promotion Coordinating Committee comprised of representatives of the Office of the Assistant Secretary of Defense (Force Management and Personnel) (OASD(FM&P)), Office of the Assistant Secretary of Defense (Acquisition and Logistics) (OASD(A&L)), the Office of the Assistant Secretary of Defense (Reserve Affairs) (OASD(RA)), each Military Service, and such other advisors as the OASD(HA) considers appropriate.
(2) Facilitate exchanges of technical information and problem solving within and among Military Services and Defense Agencies.
(3) Provide technical assistant, guidance and consultation.
(4) Coordinate health data collection efforts to ensure standardization and facilitate joint studies across DoD components.
(5) Review dietary standards for DoD dining facilities as specified in DoD Directive 3235.2 ^1
^1 Copies may be obtained, if needed, from the U.S. Naval Publications and Forms Center, Attn: Code 1062, 5801 Tabor Avenue, Philadelphia, PA 19120.
(b) The Assistant Secretary of Defense (Force Management and Personnel) (ASD(FM&P)) shall, in collaboration with the ASD(HA), coordinate and monitor relevant aspects of the health promotion program. These include:
(1) Use of tobacco products in DoD occupied facilities.
(2) Operation of health promotion and screening programs at the worksite and in Professional Military Education, DoD Dependents Schools, and section 6 schools.
(3) Dietary regulation of DoD snack concessions, and vending machines.
(4) Reduction of stress in work setting.
(5) Designate two representatives to the Health Promotion Coordinating Committee.
(c) The Assistant Secretary of Defense (Reserve Affairs) (OASD(RA)) shall:
(1) Coordinate and monitor relevant aspects of the health promotion program as it pertains to National Guard and Reserve Personnel.
(2) Designate a representative to the Health Promotion Coordinating Committee.
(d) The Secretaries of the Military Departments shall:
(1) Develop a comprehensive health promotion program plan for their respective Service(s).
(2) Establish and operate an integrated, coordinated and comprehensive health promotion program as prescribed by this Directive.
(3) Designate from their respective Service(s) a health promotion coordinator who shall also serve as representative to the Health Promotion Coordinating Committee.
(4) Evaluate the effectiveness of their respective health promotion program(s).
(e) The Directors of Defense Agencies shall develop and implement health promotion plans and programs for their civilian employees in accordance with this part.
(f) The Assistant Secretary of Defense (Comptroller) (ASD(C)) shall develop and implement a health program promotion for OSD civilian employees.
§ 85.6
Procedures.
(a) Each Military Service shall establish a health promotion program coordinator to serve as the focal point for all health promotion program issues and to integrate the activities of the medical and personnel departments.
(b) A Health Promotion Coordinating Committee shall be established to enhance communication among the Military Services, recommend joint policy and program actions, review program implementation, and recommend methodologies and procedures for program evaluation. The Committee shall be chaired by the Assistant Secretary of Defense (Health Affairs) (ASD(HA)) or designee. Additional members shall include two representatives from the Office of the Assistant Secretary of Defense (Force Management and Personnel); one representative from the Office of the Assistant Secretary of Defense (Reserve Affairs); one representative from the office of the Assistant Secretary of Defense (Acquisition & Logistics); and the health promotion coordinator from each Military Service.
(c) Each Component shall prepare a plan for the implementation of a comprehensive health promotion program that includes specific objectives (planned accomplishments) with measurable action steps. The plan shall address all of the program elements identified in the definition of health promotion for each group in the target populations. The plan shall consider workload, systems support, and training needs of individuals charged with responsibility at all organizational levels.
(d) Health promotion plans and programs shall address smoking prevention and cessation, physical fitness, nutrition, stress management, alcohol and drug abuse, and early identification of hypertension.
(1) Smoking prevention and cessation programs shall aim to create a social environment that supports abstinence and discourage use of tobacco products, create a healthy working environment, and provide smokers with encouragement and professional assistance in quitting. In addition to these aims, smoking prevention and cessation programs shall include the following elements.
(i) Smoking shall be permitted in buildings only to the extent that it does not endanger the life or property, or risk impairing nonsmokers' health.
(ii) The smoking of tobacco products within DoD occupied space shall be controlled in accordance with the following guidelines:
(A) Smoking shall be prohibited in auditoriums, conference rooms and classrooms. No Smoking signs shall be prominently displayed, and ashtrays shall not be permitted. Receptacles may be placed at entrances so that visitors may dispose of lighted smoking material when entering a nonsmoking area.
(B) Nonsmoking areas shall be designated and posted in all eating facilities in DoD occupied buildings. Smoking areas shall be permitted only if adequate space is available for nonsmoking patrons and ventilation is adequate to provide them a healthy environment.
(C) Elevators shall be designated as nonsmoking areas.
(D) Smoking shall be prohibited in official buses and vans.
(E) Within the confines of medical treatment facilities, smoking shall be restricted to private offices and specially designated areas. Smoking by patients shall be limited to specially designated areas, and health care providers shall not smoke in the presence of patients while performing their duties. Smoking is permitted in visitor waiting areas only where space and ventilation capacities permit division into smoking and nonsmoking sections.
(F) Smoking shall not be permitted in common work areas shared by smokers and nonsmokers unless adequate space is available for nonsmokers and ventilation is adequate to provide them a healthy environment. Where feasible, smoking preference should be considered when planning individual work stations so that smoking and nonsmoking areas may be established.
(G) When individual living quarters are not available and two or more individuals are assigned to one room, smoking and nonsmoking preferences shall be considered in the assignment of rooms.
(H) Smoking by students attending DoD Dependents Schools or section 6 schools shall not be permitted on school grounds except as provided by policy regulations promulgated by the Director, DoDDS. Faculty and staff shall smoke only in specifically designated areas and shall not smoke in the presence of students.
(iii) Installations shall assess the current resources, referral mechanisms, and need for additional smoking cessation programs. Occupational health clinics shall consider the feasibility of smoking cessation programs for civilian employees or, at a minimum, be able to refer employees to such programs. While smoking cessation should be encouraged, care shall be taken to avoid coercion or pressure on employees to enter smoking cessation programs against their will. Smoking prevention programs shall be made available in DoD Dependents Schools and section 6 schools.
(iv) Information on the health consequences of smoking shall be incorporated with the information on alcohol and drug abuse provided to military personnel at initial entry and at permanent change of station as specified in 32 CFR part 62a. At initial entry, nonsmokers shall be encouraged to refrain from smoking. Smokers shall be encouraged to quit and be offered assistance in quitting.
(v) As part of routine physical and dental examinations and at other appropriate times, health care providers should be encouraged to inquire about the patient's tobacco use, including use of smokeless tobacco products; to advise him or her of the risks associated with use, the health benefits of abstinence, and of where to obtain help to quit.
(vi) Appropriate DoD health care providers should advise all pregnant smokers of the risks to the fetus.
(vii) The Military Services shall conduct public education programs appropriate to various target audiences on the negative health consequences of smoking.
(2) Physical fitness programs shall aim to encourage and assist all target populations to establish and maintain the physical stamina and cardiorespiratory endurance necessary for better health and a more productive lifestyle. In addition to the provisions of DoD Directive 1308.1 ^2 and Secretary of Defense Memorandum physical fitness programs shall include the following elements.
^2 See footnote 1 to § 85.5(a)(5).
(i) Health professionals shall consider exercise programs conducive to improved health, and encourage appropriate use by patients. For military personnel, recommendations shall accord with military readiness requirements.
(ii) Commanders and managers should assess the availability of fitness programs at or near work sites and should consider integrating fitness regimens into normal work routines for military personnel as operational commitments allow.
(iii) The chain of command should encourage and support community activities that develop and promote fitness among all target populations. Activities should be designed to encourage the active participation of many people rather than competition among a highly motivated few.
(3) Nutrition programs shall aim to encourage and assist all target populations to establish and maintain dietary habits contributing to good health, disease prevention, and weight control. Weight control involves both nutrition and exercise, and is addressed in part in DoD Directive 1308.1. Nutrition programs include efforts not only to help individuals develop appropriate dietary habits, but also to modify the environment so that it encourages and supports appropriate habits. Additionally, nutrition programs shall include the following elements.
(i) Nutritional advice and assistance shall be provided by appropriate DoD health care professionals to military personnel, retirees, and family members.
(ii) In military and civilian dining facilities, where feasible, calorie information and meals with reduced amounts of fat, salt, and calories shall be made readily available.
(iii) Snack concessions and vending machines, when feasible, shall offer nutritious alternatives, such as fresh fruit, fruit juices, and whole grain products.
(iv) Public information campaigns shall be conducted by the Military Services to alert all target populations about the relationship between diet and risk of chronic diseases.
(4) Stress management programs shall aim to reduce environmental stressors and help target populations cope with stress. Additionally, stress management programs shall include the following elements.
(i) Commanders should develop leadership practices, work policies and procedures, and physical settings that promote productivity and health for military personnel and civilian employees.
(ii) Health and fitness professionals are encouraged to advise target groups on scientifically supported stress management techniques.
(iii) The topic of stress management should be considered for integration into the curricula at appropriate Professional Military Education programs and in the DoD Dependents Schools and section 6 schools to familiarize students with scientifically supported concepts of stress management for day-to-day problems, life transitions, and life crises.
(5) Alcohol and drug abuse prevention programs shall aim to prevent the misuse of alcohol and other drugs, eliminate the illegal use of such substances, and provide counseling or rehabilitation to abusers who desire assistance in accordance with the provisions of 32 CFR parts 62a and 62 and DoD Instruction 1010.6 ^3 Additionally, alcohol and drug abuse prevention programs shall include the following elements.
^3 See footnote 1 to § 85.5(a)(5).
(i) Appropriate DoD health care professionals shall advise all pregnant patients and patients contemplating pregnancy about the risks associated with the use of alcohol and other drugs during pregnancy.
(ii) The Military Services shall conduct public education programs appropriate to various target audiences. Programs should include such topics as alcohol and drug use and pregnancy, driving while intoxicated, and adolescent alcohol and drug abuse.
(6) Hypertension prevention programs shall aim to identify hypertension early, provide information regarding control and lifestyle factors, and provide treatment referral where indicated. Early identification of hypertension programs shall include the following elements.
(i) Hypertension screening shall be provided as part of all medical examinations and the annual dental examination for active duty service members. Screening shall also be provided to other beneficiaries, excluding those in the Children's Preventive Dentistry Program, at the time of their original request for care. Patients with abnormal screening results shall receive appropriate medical referrals.
(ii) Each DoD medical facility should periodically offer mass hypertension screening to encourage beneficiaries to monitor their blood pressure regularly.
(iii) Occupational health clinics shall make hypertension screening readily available to civilian employees, and shall encourage employees to use this service.
(iv) Public information campaigns emphasizing the dangers of hypertension and the importance of periodic hypertension screening and dietary regulation shall be conducted.
Pt. 86

PART 86—CRIMINAL HISTORY BACKGROUND CHECKS ON INDIVIDUALS IN CHILD CARE SERVICES
Sec.
86.1
Purpose.
86.2
Applicability.
86.3
Definitions.
86.4
Policy.
86.5
Responsibilities.
86.6
Procedures.
Appendix A to Part 86—Criminal History Background Check Procedures
Appendix B to Part 86—Criteria For Criminal History Background Check Disqualifications
Appendix C to Part 86—State Information

Authority:
42 U.S.C. 13041.

Source:
58 FR 52010, Oct. 6, 1993, unless otherwise noted.
§ 86.1
Purpose.
This part: (a) Implements Public Law 101-647, section 231 and Public Law 102-190, section 1094.
(b) Requires procedures for existing and newly hired individuals and includes a review of personnel and security records to include a Federal Bureau of Investigation (FBI) fingerprint check and State Criminal History Repositories (SCHR) checks of residences listed on employment or certification applications.
(c) Establishes policy, assigns responsibilities, and prescribes procedures for criminal history background checks for all existing and newly hired individuals involved in the provision of child care services as Federal employees, contractors, or in Federal facilities to children under the age of 18. The checks are required of all individuals in the Department of Defense involved in providing child care services defined in Public Law 101-647, and for policy reasons, those categories of individuals not expressly governed by the statute.
(d) Allows the Department to provisionally hire such individuals before the completion of a background check. However, at all times while children are in the care of that individual, the child care provider must be within sight and under the supervision of a staff person whose background check has been successfully completed. Healthcare personnel shall comply with guidance provided in the Memorandum from the Assistant Secretary of Defense for Health Affairs (ASD(HA)) ^1 , April 20, 1992.
^1 Copies may be obtained from OASD(HA) Room 3E346, The Pentagon, Washington, DC 220301-1200.
(e) Includes all individuals providing child care services to children in accordance with 32 CFR part 310, Federal Personnel Manual (FPM), ^2 32 CFR part 154, DoD Directive 6400.1, ^3 DoD Instruction 6060.2, ^4 DoD Instruction 6400.2, ^5 DoD Directive 1400.13, ^6 32 CFR part 68, DoD Directive 6025.11, ^7 DoD Directive 1015.1, ^8 , and 32 CFR part 212.
^2 Copies may be obtained from a Federal Depositary Library, or a Federal Agency Personnel Office.
^3 Copies may be obtained from the National Technical Information Service, 5285 Port Royal, Springfield, VA 22161.
^4 See footnote 3 to § 86.1(e).
^5 See footnote 3 to § 86.1(e).
^6 See footnote 3 to § 86.1(e).
^7 See footnote 3 to § 86.1(e).
^8 See footnote 3 to § 86.1(e).
§ 86.2
Applicability.
This part applies to the Office of the Secretary of Defense, the Military Departments, the Chairman of the Joint Chiefs of Staff and the Joint Staff, the Unified and Specified Commands, the Inspector General of the Department of Defense, the Defense Agencies, and the DoD Field Activities (hereafter referred to collectively as “the DoD Components”).
§ 86.3
Definitions.
Terms used in this part are defined as follows.
(a) Appropriated Fund (APF) Employees. Personnel hired by DoD Components with appropriated funds as defined in the FPM, Chapter 731. This includes temporary employees, 18 years old or older, who work with children.
(b) Care provider. As defined in Public Law 101-647, section 231 and Public Law 102-190, section 1094. Providers included are current and prospective individuals hired with APF and nonappropriated funds (NAF) for education, treatment or healthcare, child care or youth activities, individuals employed under contract who work with children and those who are certified for care. Care providers are individuals working within programs that include alphabetically: Child Development Programs, DoD Dependents Schools, DoD-Operated or -Sponsored Activities, DoD Section 6 School Arrangements, Foster Care, Private Organizations on DoD Installations, and Youth Programs. Background checks are required for all civilian and military providers (except military health care providers) involved in child care services who have regular contact with children.
(c) Child. An unmarried person, whether natural child, adopted child, foster child, stepchild, or ward, who is a family member of a military member or DoD civilian or their spouse, and who is under the age of 18 years; or is incapable of self support because of a mental or physical incapacity and for whom treatment is authorized in a medical facility of the Military Services, ad defined in DoD Directive 6400.1.
(d) Child abuse and/or neglect. The physical injury, sexual maltreatment, emotional maltreatment, deprivation of necessities, or other maltreatment of a child. The term encompasses both acts and omissions on the part of a responsible person, as defined in DoD Directive 6400.1.
(e) Child care services. DoD personnel and contractors who are involved in any of the following: “Child protective services (including the investigation of child abuse and neglect reports), social services, health and mental health care, child (day) care, education (whether or not directly involved in teaching), foster care, residential care, recreational or rehabilitative programs, and detention, correctional, or treatment services,” as defined in Public Law 101-647, section 231.
(f) Child Development Center (CDC). An installation facility or part of a facility used for child care operated under the oversight of Component's Child Development Programs (CDPs) and as defined in DoD Instruction 6060.2.
(g) Child Development Programs (CDPs). Programs for dependents of DoD personnel provided in CDCs, family child care (FCC) homes, and alternative child care options. The care provided is on a full-day, part-day, or hourly basis. Care is designed to protect the health and safety of children and promote their physical, social, emotional, and intellectual development, as defined in DoD Instruction 6060.2.
(h) Child sexual abuse. Employment, use, persuasion, inducement, enticement, or coercion of any child to engage in, or having a child assist any other person to engage in, any sexually explicit conduct (or any simulation of such conduct) or the rape, molestation, prostitution, or any other such form of sexual exploitation of children, or incest with children. All sexual activity between an offender and a child, when the offender is in a position of power over the child, is considered sexual maltreatment, as defined in DoD Instruction 6400.2.
(i) Criminal history background check. An investigation based on fingerprints and other identifying information obtained by a law enforcement officer conducted through the Federal Bureau of Investigation-Identification Division (FBI-ID) and SCHR of all States that an employee or prospective employee list as current and former residences on an employment application initiated through the personnel programs of the applicable Federal Agencies, as defined in Public Law 101-647 or through the personnel program of a given government contractor.
(j) Defense Clearance and Investigations Index (DCII). The central DoD record of investigative files and adjudicative actions such as clearances and access determinations, revocations, and denials concerning military, civilian, and contract personnel.
(k) DoD Dependents Schools (DoDDS). Schools operated by the Department of Defense for minor dependents of military members or DoD civilians assigned to duty in foreign countries, as defined in DoD Directive 1400.13.
(l) DoD-operated or -sponsored activity. A contracted entity authorized by appropriate DoD officials to perform child care, education, treatment, or supervisory functions on DoD-controlled property. Examples include but are not limited to CDPs, FCC Programs, Medical Treatment Facilities, DoDDS, DoD Section 6 Schools, and Youth Programs.
(m) DoD Section 6 Schools. The educational arrangements made for the provision of education to eligible dependent children by the Department of Defense under Public Law 81-874, section 6, as defined in 32 CFR part 68, in the Continental United States, Alaska, Hawaii, Puerto Rico, Wake Island, Guam, American Samoa, the Northern Mariana Islands, and the Virgin Islands.
(n) Family Child Care (FCC). Quarters-based child care provided in Government-owned or -leased quarters, in which care is provided on a regular basis for compensation, usually for more than 10 hours a week per child, to one or more (up to six) children, including the provider's own children under 8 years of age, as defined in DoD Instruction 6060.2
(o) Foreign National Employees Overseas. Non-U.S. citizens hired by the Department of Defense for employment on an overseas installation.
(p) Foster care. A voluntary or court-mandated program that provides 24-hour care and supportive services in a family home or group facility for children who cannot be properly cared for by their own family.
(q) Government-contracted care providers. An individual or a group of individuals hired under a Government contract to provide instruction, child care services, healthcare, or youth services. FCC providers are not considered contracted Government employees for this part.
(r) Healthcare personnel. Personnel involved in the delivery of healthcare to children under the age of 18 on a frequent and regular basis. See ASD(HA) memorandum dated April 20, 1992.
(1) Medical and dental care staff. Physicians, dentists, nurse practitioners, clinical social workers, clinical psychologists, physicians' assistants, physical therapists, and speech pathologists.
(2) Clinical support staff. Clinical providers not granted defined clinical privileges to include residents, registered nurses, licensed practical nurses, nursing assistants, play therapists, and technicians, and defined in DoD Directive 6025.11.
(s) Installation Records Check (IRC). An investigation conducted through the records of all installations of an individual's identified residences for the preceding 2 years before the date of the application. This record check shall include, at a minimum, police (base and/or military police, security office, or criminal investigators or local law enforcement) local files check, Drug and Alcohol Program, Family Housing, Medical Treatment Facility for Family Advocacy Program to include Service Central Registry records and mental health records, and any other record checks as appropriate, to the extent permitted by law.
(t) National Agency Check (NAC). As defined in 32 CFR part 154.
(u) National Agency Check and Inquiries (NACI). As defined in the FPM, Chapters 731 and 736.
(v) Nonappropriated Fund Instrumentalities (NAFI) Employees. Personnel hired by the DoD Components, compensated from NAFI funds as defined in DoD Directive 1015.1. This includes temporary employees, 18 years old or older, who work with children.
(w) Private Organizations on DoD Installations. A nongovernmental entity authorized by the Department of Defense to perform child care services, education, or supervisory functions with children on DoD-controlled property, as defined in 32 CFR part 212. Examples include religious groups and associations, such as scouts.
(x) Respite care. Provides short-term child care and supportive services in a family home or group facility for children to relieve stress, prevent child abuse, and promote family unity for a parent, foster parent, guardian, or family member.
(y) Regular contact. Responsible for a child or with access to children on a frequent basis as defined by the Component.
(z) Specified volunteer position. A position, designated by the DoD Component Head or designee, such as installation commander, requiring an installation record check because of the nature of the volunteer work in child care services.
(aa) State Criminal History Repository (SCHR). The State's central record of investigative files. State information, including addresses, phone numbers, costs and remarks, is listed in appendix C to this part.
(bb) Supervision. Refers to having temporary responsibility for children in child care services, and temporary or permanent authority to exercise direction and control by an individual over an individual whose required background checks have been initiated but not completed.
(cc) Temporary employees. This category includes nonstatus appointments to a competitive service position for a specified period, not to exceed a year. This includes summer hires, student interns, and NAFI flexible category employees.
(dd) Volunteer activities. Activities where individuals offer assistance on an unpaid basis in child and youth programs or other activities on DoD installations. Examples include sports programs, religious programs, scouting programs, and preschools sponsored by private parent cooperatives or other associations conducted on the installation.
(ee) Volunteers. Individuals who offer program assistance on an unpaid basis.
(ff) Youth programs. DoD-sponsored activities, events, services, opportunities, information, and individual assistance responsive to the recreational, developmental, social, psychological, and cultural needs of eligible children and youth. Includes before and after school programs as well as holiday and summer camps.
§ 86.4
Policy.
It is Department of Defense policy to:
(a) Establish a standardized and comprehensive process for screening applicants for positions involving child care services on DoD installations and in DoD activities.
(b) Provide fair, impartial, and equitable treatment before an individual may be deemed suitable to serve as an employee, a certified care provider, a specified volunteer position, or as an individual employed under contract in activities covered by this part, 32 CFR part 310, Federal Personnel Manual (FPM), 32 CFR part 154, DoD Directive 6400.1, DoD Instruction 6060.2, DoD Instruction 6400.2, DoD Directive 1400.13, 32 CFR part 68, DoD Directive 6025.11, DoD Directive 1015.1, and 32 CFR part 212 by conducting a thorough review of all appropriate records as described in this part.
(c) Protect children by denying or removing from employment, contract, or volunteer status any applicant or current employee who is determined unsuitable to provide child care services because derogatory information is contained in a suitability investigation.
(d) Ensure than an individual is advised of proposed disciplinary action, decertification, or refusal to hire by the hiring authority or designee if disqualifying derogatory information is contained in a suitability investigation. The individual is given the opportunity to challenge the accuracy and completeness of reported information.
(e) Foster cooperation among the DoD Components, other Federal Agencies, State and county agencies, and other civilian authorities in conducting criminal history background checks.
§ 86.5
Responsibilities.
(a) The Assistant Secretary of Defense for Personnel and Readiness shall: (1) Develop policy for conducting criminal history background checks on individuals seeking positions involving child care services.
(2) Monitor compliance with this part.
(3) Coordinate oversight of criminal history background checks as specified under this part.
(b) The Heads of the DoD Components shall: (1) Develop procedures to ensure compliance with the requirements of this part, in accordance with appendix A to this part.
(2) Provide oversight of process and procedures to conduct criminal history background checks to include assignment of proponency.
(3) Provide technical support and resources as required.
(4) Coordinate participation of specific organizations within the DoD Component involved in the conduct of the checks.
(5) Ensure that applicants and employees are made aware of their rights under 32 CFR part 310 including the right to challenge accuracy of records.
(6) Maintain the records of all individuals hired, certified, or employed under contract for positions that involve child care services for 2 years following termination of their service.
(7) Establish a mechanism to evaluate all adverse information resulting from criminal history background checks, using the criteria in appendix B to this part. Final suitability decisions are made by the DoD Component Head or designee.
§ 86.6
Procedures.
The records of all existing employees and applicants for positions in child care services are reviewed by the Component designee according to the procedures prescribed in appendix A to this part.
Pt. 86, App. A

Appendix A to Part 86—Criminal History Background Check Procedures
This appendix establishes the procedures for conducting criminal history background checks on existing and newly hired individuals required by Public Law 101-647, section 231 and Public Law 102-190, section 1094. Background checks are required for all civilian providers involved in child care services who have regular contact with children. The categories of providers include current and prospective individuals hired with APF and NAFI funds for education, treatment or healthcare, child care or youth activities, and individuals employed under contract involved in the provision of child care services. In addition to the mandates of Public Law 102-190, section 1094, the Department of Defense requires that military members (except healthcare personnel), foster or respite care providers, FCC providers and family members, and specified volunteers shall have checks specified in this part.

A. Conducting Checks
Component designees shall notify existing and newly hired individuals and contractors of the requirement for a review of personnel and security records to include an FBI fingerprint check and SCHR checks of residences listed on employment and security applications.
1. Fingerprint Check. Law enforcement personnel shall forward completed forms through channels to the Office of Personnel Management (OPM) or Defense Investigative Service (DIS) for processing of FBI fingerprint forms.
2. State Criminal History Repository (SCHR) Check. DoD Installation-level personnel offices, in collaboration with law enforcement and security personnel, shall process State criminal history background checks for employment and shall ordinarily communicate in writing with each State identified in appendix B to part 86, providing full identifying information on each applicant and request confirmation that the individual has not been convicted in that State of a sex crime, an offense involving a child victim, a drug felony, or a violent crime. The DoD Component Heads may establish alternate procedures for conducting SCHR checks; e.g., a computerized, written, or telephonic check. The DoD Components are not required to wait longer than 60 days from the date of the request for a response from the SCHR personnel before taking action on a particular application. Authorities will depend on FBI fingerprint check validation if States do not respond.
3. Installation Record Checks (IRC). Consists of a local record check on an individual for a minimum of 2 years before the date of the application. This record check shall include, at a minimum, police (base and/or military police, security office, criminal investigators, or local law enforcement) local files checks, Drug and Alcohol Program, Family Housing, Medical Treatment Facility for Family Advocacy Program Service Central Registry records and mental health records, and any other record checks as appropriate to the extent permitted by law. A Service DCII may be conducted. The IRC shall be conducted by DoD Component personnel at the installation level. An IRC will be completed on individuals with a DoD affiliation such as living or working on an installation or is active duty member or family member. Individuals without DoD affiliation have no installation system of records to check and an IRC is not completed. Upon favorable completion of the IRC, an individual may be selected and provide child care services under line of sight supervision until the required background checks are completed.

B. Applicants

1. Appropriated Fund (APF) Applicants
a. Except as otherwise provided in this subsection, the DoD Components shall process APF applicants using currently established procedures for completing background checks described in 32 CFR part 310. APF applicants must complete a SF-171, “Application for Federal Employment,” and attach an SF-87, “Fingerprint Chart,” completed by a law enforcement officer; and an SF-85P, “Questionnaire for Public Trust Positions” (Annotate Block “B” with code 03), for conduct of a NACI. The package shall be forwarded to the OPM.
b. The DoD Components shall assign responsibility for conducting the criminal history background checks through the SCHR to personnel offices working with law enforcement or investigative agencies. They shall conduct checks in all States that an employee or prospective employee lists as current and former residences in an employment or security application. It is deemed unnecessary to conduct checks before 18 years of age because juvenile records are unavailable. If no response is received from the State(s) within 60 days, determinations based upon the FBI report may be made. Responses received after this determination has been made must be provided to the determining authority.
c. Under Public Law 102-190, section 1094, the DoD Components may employ an individual pending completion of successful background checks described in Public Law 101-647, section 231. If an individual is so employed, at all times while children are in the care of that individual, he or she must be within sight and under the supervision of an individual whose background checks have been completed, with no derogatory reports.
d. Once it is clear that no derogatory information exists, line of sight supervision is terminated by the designee. If a derogatory report exists, Component personnel procedures shall prescribe appropriate action consistent with the criteria contained in this part.

2. Nonappropriated Fund Instrumentalities (NAFI) Applicants
a. Except as otherwise provided in this subsection, the DoD Components shall process NAFI applicants following established procedures for completing background checks. NAFI applicants must complete a DD Form 398-2 “Department of Defense National Agency Questionnaire,” with reason for request identified as OTHER and annotated as CHILD CARE, and FD Form 258, “FBI Applicant Fingerprint Card.” Fingerprints shall be taken by the local law enforcement organization personnel and together with the DD Form 398-2 shall be forwarded to: Defense Investigative Service, Personnel Investigations Center, P.O. Box 1083, Baltimore, MD 21203-1083.
b. The DoD Components shall follow the procedures in the FPM, Chapter 731 and 736 and in paragraph B.1.b.,c., and d. of this appendix to obtain fingerprints for the FBI, conduct criminal history background checks through the SCHR, and maintain employment of individuals pending the successful completion of the background checks.

3. Foreign National Employees Overseas
Foreigh national employees overseas, while not expressly included within the law, are subject to the following record checks or those equivalent in scope to checks conducted on U.S. citizens:
a. Host-government law enforcement and security agency checks at the city, State (province), and national level, whenever permissible by the laws of the host government.
b. Defense Central Investigative Index (DCII).
c. FBI checks (when information exists regarding residence by the individual in the United States for 1 year or more since age 18).
d. When permissible by the laws of the host government, host-government checks are requested directly by the employing Service or agency. As an alternative, the DoD Components may request that overseas Military Service investigative elements obtain appropriate host-government checks. Where host-nations' arrangements preclude comparable criminal history checks, foreign nationals will not be eligible for employment in child care services.

4. Temporary Employees
This category includes summer hires, student interns, and NAFI flexible category employees. Background checks for these individuals are processed according to funding source; i.e., for APF employees (to OPM) or NAFI employees (to DIS). Installation designated points of contact shall notify applicants of report disposition.

5. Healthcare Personnel
This category includes civilian personnel involved in the delivery of healthcare. Within the context of such medical care, line of sight supervision must be viewed through the prism of existing medical quality assurance, clinical privileging, and licensure directives, which require pre-employment screens, enhanced surveillance of new employees, and ongoing monitoring of the performance of all healthcare providers. These programs are inherent to both quality medical care and patient safety and are adequate and equivalent mechanisms for the sight and supervision requirements in paragraph B.1.c. and d. of this appendix. It should be noted that these quality assurance programs are not sufficient in and of themselves under Public Law 101-647, section 231. Therefore, the required FBI fingerprint check and the SCHR check must be completed as expeditiously as possible.

C. Current Employees
All currently employed individuals covered by this part shall have the FBI fingerprint and criminal history background check as described in Public Law 101-647, section 231. If the results of such checks, to include the SCHR, cannot be confirmed through an examination of available local records, action shall be initiated in accordance with paragraph B.1. of this appendix for APF employees and paragraph B.2. of this appendix for NAFI employees, and with paragraph D. of this appendix for individuals employed under contract. The SCHR checks are conducted in all cases in accordance with paragraph A.2. of this appendix. For the purposes of this part, no IRC is required for individuals employed before June 1991.

D. Government Contract Employees
1. Sponsoring activities are responsible for ensuring that the requirements in this part are included in the statement of work for all child care programs to be contracted. The contracting officer is responsible for performing any action necessary to verify that services provided by the contractor conform to contract quality requirements. Component designees for requiring activities shall ensure that the statement of work, at a minimum:
a. States that the contractor must ensure its employees have proper criminal history background checks as outlined in this part.
b. States that actual checks are performed by the Government.
c. Includes procedures that the contractor must follow to obtain checks for its employees; for example, identify the office where employees report for processing, identify proper forms to be completed, etc. Also, identify the DoD Component for billing purposes, and identify the appropriate security point of contact or installation commander as the authorized recipient of background check results.
d. States that employees may be permitted to work before completion of background checks, provided the employee is within sight of an individual who has successfully completed a background check.
e. States that employees have the right to obtain a copy of the background check report, whom they should contact for the copy and whom to contact for procedures to challenge the accuracy and completeness of the information in the report.
f. Requires that contractor employees who have previously received a background check must provide proof of the check or obtain a new one.
2. Requirements for child care services must be submitted to the contracting officer sufficiently in advance of the required performance start date to provide time for obtaining background checks. Sponsoring activities' designees shall coordinate with the contracting officer as soon as possible after a requirement for child care services becomes known.
3. Procedures for obtaining responses for background checks are the same as those for NAFI employees and response to derogatory information will occur through the appropriate designee and contractor. An IRC will be performed if the individual is a military member or family member, or has worked or lived on a military installation within 5 years.

E. Other Providers
Criminal history background checks with the FBI and the States are not required. Duplication of previous background checks are not required for personnel where official records demonstrate that an adequate check has already been conducted. This category includes the following:
1. Military Members. These are active duty individuals (other than healthcare personnel) who seek to provide child care services as part of a normal duty assignment or are involved during off-duty hours. For these members an IRC and a current security clearance meet the requirements of this part. In the absence of a current security clearance, a name check of the DCII must be conducted. When military members are employed in an APF or a NAFI position they will abide by background check requirements listed in paragraphs B.1. and B.2. of this appendix.
2. Foster and Respite Care Providers and Family Members. These are individuals who seek to provide foster care or respite child care within Government-owned or -leased quarters. The care provider, all other adults, and each child, age 12 and older, residing within the applicant's household must receive an IRC. In addition, the Component designee must also obtain a name check of the DCII on all adults.
FCC Providers and Family Members. These are individuals who seek licensing to provide child care within government-owned or -leased quarters. The care provider, all other adults, and each child, age 12 and older, residing within the applicant's household receive an IRC. In addition, the Component designee must obtain a name check of the DCII on all adults.
4. Specified Volunteers. Installation commanders shall designate those positions that are determined to be “specified.” Individuals working in specified volunteer positions will have an IRC check because of the nature of their work in child care services. The opportunity for contact may be extensive, frequent, or over a period of time. They include, but are not limited to, positions involving extensive interaction alone, extended travel, and/or overnight activities with children. An IRC is required for volunteers who are active-duty, a family member, or a DoD civilian overseas. A volunteer is allowed to work upon completion of a favorable IRC. Background checks are not required for volunteers whose services will be of shorter duration than is required to perform the background checks and who are under line of sight supervision by an individual who has successfully completed a background check. The Components are required to provide additional implementing guidance.

F. Employment Application Requirement
Public Law 101-647, section 231 requires that each application for employment shall include a question asking whether the individual has ever been arrested for or charged with a crime involving a child, and, if so, requires a description of the disposition of the arrest or charge. The forms identified in paragraphs B.1.a. and B.2.a. of this appendix are signed by the applicant under penalty of perjury, with the applicable Federal punishment for perjury stated on the respective forms.
1. An applicant's signature indicates an understanding of the employer's obligation to require a record check as a condition of employment. Information on background checks shall be maintained in accordance with applicable Component implementing regulations.
2. Payment for the conduct of any criminal history background check is the responsibility of the requesting Service or agency.
3. The results of the background check are forwarded to the Component designee at the sending installation for appropriate action. A derogatory report would include, but not be limited to, the following applicable crimes: Any charge or conviction for a sex crime, an offense involving a child victim, a substance abuse felony, or a violent crime.
4. The hiring authority or designee is responsible for notifying the individual of a derogatory report. The individual may obtain a copy of the criminal history report and has the right to challenge the accuracy and completeness of any information contained in the report through the Privacy Program described in 32 CFR part 310. The individual may provide information concerning positive mitigating factors for any adverse information presented.
5. Employees whose criminal history background checks result in nonselection for employment or service shall be informed by the Component designee of the right to an administrative appeal under 32 CFR part 310. The individual may appeal with a specific request such as amendments to the records or request to file statement disagreeing with information in the record. If the employee's request for record information is refused, the individual is informed of his or her right to an administrative appeal. As appropriate, Component designees shall inform individuals of other avenues available to resolve matters of concern such as an administrative or negotiated grievance procedures. If the employee remains dissatisfied, he or she may seek a review. The Department of Defense recognizes the privacy interests and rights of all applicants and employees, and its own responsibility in ensuring a safe and secure environment for children within DoD activities or private organizations on DoD installations.

G. Record Re-Verification
This procedure consists of an IRC and a DCII name check and is required by the Component designee at a minimum every 5 years for all employees providing child care services and covers the time period since the completion of the last background check. NAFI employees who change duty stations will complete a new investigation when considered for employment. A new investigation is required by the Department of Defense if a break in service results in a time-lapse of more than 2 years. FCC, foster care and respite care providers, and their family members will complete an IRC annually.

H. Supervision
Refers to temporary responsibility for children in child care services, and relates to oversight for temporary or permanent authority to exercise direction and control by an individual over an individual whose required background checks have been initiated but not completed. Use of video equipment is acceptable provided it is monitored by an individual who has successfully completed a background check. Supervision procedures pending completion of background checks for healthcare personnel suggest that the Surgeons General shall require close clinical supervision and full compliance with existing DoD Directives, Instructions, and other guidance (issued by the Department of Defense and the Military Department concerned) on quality assurance, risk management, licensure, employee orientation, and credentials certification. These policies rely on process and judgment, and meet the intent of the “direct sight supervision” provision, affording local commanders a flexible and reasonable alternative.
I. Programs. Requirements cover all DoD-operated activities and private organizations on DoD installations and include, but are not limited to:
1. Child Development Programs.
a. Child development centers, part-day preschools, and enrichment programs.
b. Family child care.
c. Contracted Services, whether personal or non-personal services.
2. Youth Programs.
3. Dependents Schools operated by the Department of Defense.
4. Medical treatment facilities.
5. Other contracted services.
6. Private organizations on DoD installations.
7. Volunteer activities.

J. Background Check Matrix
This identifies the requirements of this part for background checks by category of personnel. These checks are initiated through the personnel offices in collaboration with law enforcement and security personnel. (Reminder: An IRC may only be completed on an individual who is a military member or family member, or who lives or works on a military installation.)
1. Appropriated Fund (APF) Employees. FBI, SCHR, and IRC. (SF-171, SF-87, and SF-85P).
2. Non-appropriated Fund Instrumentalities (NAFI) Employees. FBI, SCHR, and IRC. (DD Form 398-2 and FD Form 258).
3. Foreign National Employees Overseas. IRC and local government check.
4. Temporary Employees. FBI, SCHR, and IRC.
5. Current Employees. FBI and SCHR.
6. Government Contract Employees. FBI, SCHR, and IRC.
7. Other Providers.
a. Military Members. Military members will have an IRC and, if no current security clearance exists, a name check of the DCII. Checks are not required for military healthcare personnel.
b. Foster and Respite Care Providers and Family Members (age 12 and older). IRC and Service DCII (for adults).
c. Family Child Care Providers and Family Members (age 12 and older). IRC and Service DCII (for adults).
d. Specified Volunteers. IRC.
Pt. 86, App. B

Appendix B to Part 86—Criteria For Criminal History Background Check Disqualification
The ultimate decision to determine how to use information obtained from the criminal history background checks in selection for positions involving the care, treatment, supervision, or education of children must incorporate a common sense decision based upon all known facts. Adverse information is evaluated by the DoD Component Head or designee who is qualified at the appropriate level of command in interpreting criminal history background checks. All information of record both favorable and unfavorable will be assessed in terms of its relevance, recentness, and seriousness. Likewise, positive mitigating factors should be considered. Final suitability decisions shall be made by that commander or designee. Criteria that will result in disqualification of an applicant require careful screening of the data and include, but are not limited to, the following:

A. Mandatory Disqualifying Criteria
Any conviction for a sexual offense, a drug felony, a violent crime, or a criminal offense involving a child or children.

B. Discretionary Criteria
1. Acts that may tend to indicate poor judgment, unreliability, or untrustworthiness in working with children.
2. Any behavior; illness; or mental, physical, or emotional condition that in the opinion of a competent medical authority may cause a defect in judgment or reliability.
3. Offenses involving assault, battery, or other abuse of a victim, regardless of age of the victim.
4. Evidence or documentation of substance abuse dependency.
5. Illegal or improper use, possession, or addiction to any controlled or psychoactive substances, narcotic, cannibas, or other dangerous drug.
6. Sexual acts, conduct, or behavior that, because of the circumstances in which they occur, may indicate untrustworthiness, unreliability, lack of judgment, or irresponsibility in working with children.
7. A wide range of offenses such as arson, homicide, robbery, fraud, or any offense involving possession or use of a firearm.
8. Evidence that the individual is a fugitive from justice.
9. Evidence that the individual is an illegal alien who is not entitled to accept gainful employment for a position.
10. A finding of negligence in a mishap causing death or serious injury to a child or dependent person entrusted to their care.

C. Suitability Considerations
In making a determination of suitability, the evaluator shall consider the following additional factors to the extent that these examples are considered pertinent to the individual case:
1. The kind of position for which the individual is applying or employed.
2. The nature and seriousness of the conduct.
3. The recentness of the conduct.
4. The age of the individual at the time of the conduct.
5. The circumstances surrounding the conduct.
6. Contributing social or environmental conditions.
7. The absence or presence of rehabilitation or efforts toward rehabilitation.
8. The nexus of the arrests in regard to the job to be performed.

D. Questions
1. All applications, for each of the categories of individuals identified in § 86.3, will include the following questions: “Have you ever been arrested for or charged with a crime involving a child? Have you ever been asked to resign because of or been decertified for a sexual offense? And, if so, “provide a description of the case disposition.” For FCC, foster care, and respite care providers, this question is asked of the applicant regarding all adults, and all children 12 years and older, who reside in the household.
2. All applications shall state that the form is being signed under penalty of perjury. In addition, a false statement rendered by an employee may result in adverse action up to and including removal from Federal service.
3. Evaluation of criminal history background checks is made and monitored by qualified personnel at the appropriate level designated by the Component. Final suitability decisions are made by the designee.
Pt. 86, App. C

Appendix C to Part 86—State Information
All SCHR checks should be accompanied by the following: 1. State form, if required. If no State form is required, the request should be on letterhead, beginning with the statement that the check is in accordance with Public Law 101-647. The request must include full identifying information, such as: Name, date of birth, social security number, complete addresses, etc.
2. Fingerprint set if required. Some State laws require a fingerprint set either on a State form or forms used by the agency.
3. Release statement signed by the applicant or employee. If required by the State, the release must be notarized.
4. Payment for the SCHR check.
5. Self-addressed, stamped envelope.
The following is an updated listing of State addresses, fees, and other information:
Address | Fee | Remarks
State of Alabama, Alabama Dept. of Public Safety, Attn: ABI Division, 5002 Washington Ave., Montgomery, AL 36130 | $25 | Name check, COMM: 205-242-4372.
State of Alaska, Alaska Dept, of Public Safety, Information Systems Section, 5700 Tudor Road, Anchorage, AK 99507 | 20 | Fingerprints required, reason for request required (comply with Pub. L.), name and address authorized request and receive SCHRC, COMM: 907-269-5511.
State of Arizona, Arizona Criminal Justice, Dept. of Public Safety, Information Systems Division, PO Box 6638, Phoenix, AZ 80550 | No check | Limited release, call/write, write for information. COMM: 602-223-2229.
State of Arkansas, Arkansas State Police, PO Box 5901, Little Rock, AR 72215 | No fee | Name check, written consent required, COMM: 501-221-8233.
State of California, Dept. of Justice, Bureau of Criminal Justice, Identification and Information Bureau, PO Box 903417, Sacramento, CA 94203-4170 | 27 | Fingerprints required, COMM: 916-739-2786.
State of Colorado, Crime Information Center, Colorado Bureau of Investigation, 690 Kipling Street, #3000, Lakewood, CO 80215 | 4.50 | Write/call for form, name check, COMM: 303-239-4222/4229.
State of Connecticut, Dept. of State Police, Bureau of Investigation, Building 4, 294 Colony Street, Meriden, CT 06450 | No fee | Name check, written consent required, copy of Pub. L. required, COMM: 203-238-6155.
State of Delaware, Delaware State Police-SBI, State Bureau of Investigation, PO Box 430, Dover, DE 19903 | 25 | Fingerprints required, COMM: 302-739-5871.
Washington, DC, Identification and Records Division, Metropolitan Police Dept., Room 2076, 300 Indiana Avenue, NW., Washington, DC 20001 | No fee | Name check, wittten request required, COMM: 202-727-4245.
State of Florida, Florida Dept. of Law Enforcement, PO Box 1489, Tallahassee, FL 32302 | 10 | Name check, check to: Dept. of Law Enforcement, COMM: 904-488-6236.
State of Georgia, Georgia Criminal Information Center, PO Box 370748, Decatur, GA 30037-0748 | 15 | Write or call for form, notary and fingerprints required, COMM: 404-244-2644.
State of Hawaii, Criminal Justice Data Center, 465 South King Street, Room 101, Honolulu, HI 96813 | No fee | Name check, COMM: 808-587-3100.
State of Idaho, Idaho Dept. of Law Enforcement, Criminal Identification Bureau, 6064 Corporal Lane, Boise, ID 83704 | 5 | Name check, written consent required, payment to: Dept. of Law Enforcement, COMM: 208-327-7130.
State of Illinois, Bureau of Identification, 260 North Chicago Street, Joliet, IL 60431-1060 | 14 | Write or call for form, name check, COMM: 815-740-5184.
State of Indiana, Indiana State Police, 100 North Senate Avenue, Room 312, Indianapolis, IN 46204 | 7 | Write or call for form, name check, COMM: 317-232-8266.
State of Iowa, Commissioner Paul H. Wieck II, Iowa Dept. of Public Safety, Wallace State Office Building, Des Moines, IA 50319 | 6 | Release within State, COMM: 515-281-5138.
State of Kansas, Kansas Bureau of Investigation, 1620 Southwest Tyler, Topeka, KS 66612 | 10 | Write or call for form, name check, $5 per name, over two names, COMM: 913-232-6000.
State of Kentucky, Kentucky State Police Records, State Office Building, 1250 Louisville Road, Frankfort, KY 40601 | 4 | Write or call for form, name check, COMM: 502-227-8700x214.
State of Louisiana, Louisiana State Police, Department of Public Safety, PO Box 66614, Baton Rouge, LA 70896 | 13 | Write or call for form, fingerprints required, COMM: 502-925-6095.
State of Maine, State Bureau of Investigation, Department of Public Safety, Maine State Police, 36 Hospital Street, Augusta, ME 04333 | No fee | Name check, reason for check required; i.e., comply with Pub. L., COMM: 207-624-7009.
State of Maryland, Criminal Justice Information Service, Central Repository, Building G4, 1201 Reistertown Road, Pikesville, MD 21208 | 18 | Write or call for form, name check, COMM: 410-764-4501.
State of Massachusetts, Executive Office of Public Safety, Criminal History Systems Board, 1010 Commonwealth Avenue, Boston, MA 02215 | No fee | Write or call for form, name check, COMM: 617-727-0090x12.
State of Michigan, Michigan State Police, FOI Unit, 7150 Harris Drive, Lansing, MI 48913 | No check | No release, COMM: 517-322-5531.
| State of Minnesota, Criminal Justice Information Systems, Bureau of Criminal Apprehension, Minnesota Dept. of Public Safety, 1246 University Avenue, St. Paul, MN 55104 | 8 | Name check, written consent required, COMM: 612-642-0670.
State of Mississippi, Department of Public Safety, ATTN: Identification Bureau, PO Box 958, Jackson, MS 39225 | No fee | Write or call for form, name check, COMM: 607-987-1212.
State of Missouri, Criminal Records Division, State Highway Patrol, Department of Public Safety, PO Box 568, Jefferson City, MO 65102 | 5 | Write or call for form, name check COMM: 314-751-3313.
State of Montana, Identification Bureau, Department of Justice, 303 North Roberts, Helena, MT 59620-1418 | 5 | Name check, COMM: 406-444-3625.
State of Nebraska, Nebraska State Patrol, PO Box 94907, State House Station, ATTN: CID, Lincoln, NE 68509-4907 | 10 | Name check, COMM: 402-471-4545.
State of Nevada, Nevada Highway Patrol, 555 Wright Way, Carson City, NV 89711 | 15 | Write or call for form, fingerprints required, COMM: 702-687-5300.
State of New Hampshire, New Hampshire State Policy HQ, Criminal Records, 10 Hazen Drive, Concord, NH 03305 | 10 | Write or call for form, name check, COMM: 603-271-2538.
State of New Jersey, Division of State Police, Records and ID Section, PO Box 7068, West Trenton, NJ 08625-0068 | 12 | Copy of Pub. L. required, name check, COMM: 609-882-2000.
State of New Mexico, Department of Public Safety, Records Bureau, PO Box 1628, Sante Fe, NM 87504-1628 | 5 | Write or call for form, name check, notary required, COMM: 505-827-9181.
State of New York, Division of Criminal Justice Services, Executive Park Tower, Stuyvesant Plaza, Albany, NY 12203 | No check | No release at current time, state requires an agreement with agency to process, COMM: 518-485-7685.
State of North Carolina, Division of Criminal Information, Bureau of Investigation, 407 North Blount Street, Raleigh, NC 27601-1009 | 14 | Fingerprint form required, copy of Pub. L. required, call/write for form, COMM: 919-662-4500.
State of North Dakota, Bureau of Criminal Information, PO Box 1054, Bismark, ND 58502 | 20 | Name check, written consent required, COMM: 702-221-6180.
State of Ohio, Bureau of Criminal Information, PO Box 365, London, OH 43140 | 15 | Write or call for form, written consent required, fingerprints required, COMM: 614-852-2556.
State of Oklahoma, Oklahoma Law Enforcement, Criminal History Information, ATTN: Criminal History, PO 11497, Oklahoma City, OK 73136 | 10 | Write or call for form, name check, COMM: 405-848-6724.
State of Oregon, Criminal ID, State Police, 155 Cottage Street, NE, Salem, OR 97310 | 10 | Name check, COMM: 503-378-3070.
State of Pennsylvania, Records and ID Division, Pennsylvania State Police, Dept. HQ, 1800 Elmerton Avenue, Harrisburg, PA 17110 | 10 | Write or call for form, name check, 10 COMM: 717-783-5592.
State of Rhode Island, Rhode Island State Police, PO Box 185, North Scituate, RI 02857 | No fee | Name check, written consent required, COMM: 401-647-3311.
State of South Carolina, State Law Enforcement Division, ATTN: Criminal Records, PO Box 21398, Columbia, SC 29221-1398 | 10 | Name check, COMM: 803-737-4205, DSN: 734-1110.
State of South Dakota, Division Criminal Investigation, Attorney General's Office, East Highway 34, Pierre, SD 57501-5070 | 15 | Write or call for form, fingerprints required, COMM: 605-773-3334.
State of Tennessee, Tennessee Criminal Information Center, Tennessee Bureau of Investigation, PO Box 100940, Nashville, TN 37210 | 23 | Write or call for form, fingerprints required, COMM: 615-741-3241.
State of Texas, Texas Crime Records Division, Texas Dept. of Public Safety, PO Box 15999, Austin, TX 78761-5999 | 15 | Fingerprints required, written consent required, COMM: 512-465-2079.
State of Utah, Bureau of Criminal Identification, Utah Dept. of Public Safety, 4501 South 2700 West, Salt Lake City, UT 84119 | No fee | Write or call for form, name check, copy of law required, COMM: 801-965-4571.
State of Vermont, Vermont Criminal Information Center, Dept. of Public Safety, PO Box 189, Waterbury, VT 05676 | No fee | Name check, written consent required, COMM: 802-244-8786.
Commonwealth of Virginia, Virginia Records Management Div., Dept. of State Police, PO Box 850761, Richmond, VA 23261-5076 | 10 | Write or call for form, name check, COMM: 804-674-2024.
State of Washington, Washington, State Patrol, Identification Section, PO Box 42633, Olympia, WA 98504-2633 | 10 | Write or call for form, name check, COMM: 206-753-0230/7272.
West Virginia State Police, Dept. of Public Safety, 725 Jefferson Road, South Charleston, WV 25309 | 5 | Write or call for form, name check, COMM: 304-746-2180.
State of Wisconsin, Crime Information Bureau, Dept. of Justice, ATTN: Records Data Unit, PO Box 2718, Madison, WI 53701-2718 | 2 | Write or call for form, name check, COMM: 608-266-7314.
State of Wyoming, Division of Criminal Investigation, 316 West 22nd Street, Cheyenne, WY 82002 | 15 | Write or call for form, fingerprints required, written consent required, COMM: 307-777-7181.
Pt. 88

PART 88—TRANSITION ASSISTANCE FOR MILITARY PERSONNEL
Sec.
88.1
Purpose.
88.2
Applicability and scope.
88.3
Definitions.
88.4
Policy.
88.5
Responsibilities.
88.6
Information requirements.

Authority:
10 U.S.C. chapter 58.

Source:
59 FR 14559, Mar. 29, 1994, unless otherwise noted.
§ 88.1
Purpose.
(a) This part supersedes the Assistant Secretary of Defense For Force Management and Personnel memorandum, ^1 “Policy Changes For Transition Assistance Initiatives,” June 7, 1991, establishes policy, and assigns responsibilities for transition assistance programs for active duty military personnel and their families.
^1 Copies may be obtained, at cost, from the Directorate of Transition Support and Services, Office of the Assistant Secretary of Defense for Personnel and Readiness, 4000 Defense Pentagon, Washington, DC 20301-4000.
(b) Implements transition assistance programs for DoD military personnel and their families as outlined in section 502, Public Law 101-510; section 661 and section 662, Public Law 102-190, and sections 4401-4501, Public Law 102-484.
§ 88.2
Applicability and scope.
This part applies to: (a) The Office of the Secretary of Defense, the Military Departments, the Chairman of the Joint Chiefs of Staff, the Unified Combatant Commands, and the Defense Agencies (hereafter referred to collectively as “the DoD Components”). The term “Military Services,” as used herein, refers to the Army, the Navy, the Air Force, and the Marine Corps.
(b) All active duty Service members and their families.
§ 88.3
Definitions.
(a) Involuntary separation. A member of the Military Service shall be considered to be involuntarily separated if he or she was on active duty or full-time National Guard duty on September 30, 1990 and:
(1) In the case of a Regular officer (other than a retired officer), he or she was involuntarily discharged under other than adverse conditions, as characterized by the Secretary of the separating Service member's Military Department. Discharge under adverse conditions is determined by referring to the reason for separation as well as the officer's service, as outlined in Department of Defense Directive 1332.30. ^2
^2 Copies may be obtained, at cost, from the National Technical Information Service, 5285 Port Royal Road, Springfield, VA 22161.
(2) In the case of a Reserve officer who is on the active duty list or, if not on the active duty list, is on full-time active duty (or in the case of a member of the National Guard, full time National Guard duty) for the purpose of organizing, administering, recruiting, instructing, or training the Reserve components, he or she is involuntarily discharged or released from active duty or full-time National Guard duty (other than a release from active duty or full-time National Guard duty incident to a transfer to retired status) under other than adverse conditions as characterized by the Secretary of the separating Service member's Military Department. Discharge under adverse conditions is determined by referring to the reason for separation as well as the officer's service, as outlined in Department of Defense Directive 1332.30.
(3) In the case of a Regular enlisted member serving on active duty, he or she is denied reenlistment or involuntarily discharged under other than adverse conditions, as characterized by the Secretary of the separating Service member's Military Department. Discharge under adverse conditions is determined by referring to the reason for separation as well as the enlisted member's service, as outlined in Department of Defense Directive 1332.14. ^3
^3 See footnote 2 to section 88.3(a)(1).
(4) In the case of a Reserve enlisted member who is on full-time active duty (or in the case of a member of the National Guard, full-time National Guard duty) for the purpose of organizing, administering, recruiting, instructing, or training the Reserve components, he or she is denied reenlistment or is involuntarily discharged or released from active duty (or full-time National Guard duty) under other than adverse conditions as determined by referring to the reason for separation as well as the enlisted member's service, as outlined in Department of Defense Directive 1332.14.
(b) Separation entitlements. Benefits provided to Service members being involuntarily separated on or before September 30, 1995 as defined in paragraphs (a)(1) through (a)(4) of this section, and their families. Benefits provided to Service members being separated under the Special Separation Benefit or Voluntary Separation Incentive on or before September 30, 1995, as defined in paragraph (c) of this section and their families. These benefits include: Training opportunities under the Job Training Partnership Act as described in section 4465 of Public Law 102-484; priority affiliation with the National Guard and Reserve, as described in section 502(a)(1) of Public Law 101-510, as amended; enrolled in the All-Volunteer Force Educational Assistance Program (“Montgomery G.I. Bill”), as described in section 4404 of Public Law 102-484; extended medical and dental care, as described in section 502(a)(1) of Public Law 101-510, as amended, and sections 4407 and 4408 of Public Law 102-484; continued use of military family housing as described in section 502 (a)(1) of Public Law 101-510, as amended (subject to Status of Forces Agreements overseas); extended and commissary privileges as detailed in section 502(a)(1) of Public Law 101-510, as amended (subject to Status of Forces Agreements overseas); travel and transportation allowances, as detailed in section 503 of Public Law No. 101-510, as amended; continuation of enrollment in Department of Defense Dependents Schools as detailed in section 504 of Public Law 101-510, as amended (subject to Status of Forces Agreements overseas.)
(c) Special separation benefit and voluntary separation incentive. Voluntary separation programs established in section 661 and section 662 of Public Law 102-190, as amended. Service members separated under these programs are eligible for both transition services and separation entitlements outlined in paragraphs (b) and (d) of this section.
(d) Transition services. Preseparation counseling, individual transition planning, employment assistance, excess leave and permissive temporary duty, and relocation assistance for personnel overseas as described in section 502 (a)(1) of Public Law 101-510, as amended.
§ 88.4
Policy.
It is DoD policy that: (a) Transition assistance programs prepare separating Service members and their families with the skills, tools, and self-confidence necessary to ensure successful reentry into the Nation's civilian work force.
(b) Transition assistance programs be designed to complete the military personnel “life cycle.” This cycle begins with the Service member's recruitment from the civilian sector, continues with training and sustainment throughout a Service members's active service in the Armed Forces, and ends when the Service member returns to the civilian sector.
(c) Transition assistance programs include: (1) Transition service as defined in )88.3 (d) to be provided to Service members and their families for up to 90 days after separation, space and work load permitting.
(2) Separation entitlements as defined in § 88.3 (b) for Service members who are involuntarily separating as defined in § 99.3 (a) or separating under the Voluntary Separation Incentive or Special Separation Benefit Programs as defined in § 88.3 (c).
(d) Service members from one Service shall not restricted from participating in another Service's transition assistance program unless workload or other unusual circumstances dictate. Every effort will be made to accommodate all eligible personnel, especially if referral to another transition site will require the Service member to travel a long distance and incur significant expense.
(e) [Reserved]
(f) When being discharged, released from active duty, or retiring (hereafter referred to as “separating Service members”), Service members and their families bear primary responsibility for their successful transition into the civilian sector.
(g) Spouses shall be encouraged to participate in transition planning and counseling to the maximum extent possible.
(h) Enhanced transition programs shall be established for Service members and their families who are overseas to help alleviate the special difficulties overseas personnel encounter when job and house hunting.
(i) Installations in the United States shall give priority transition assistance to personnel who recently returned from overseas.
§ 88.5
Responsibilities.
(a) The Assistant Secretary of Defense for Personnel and Readiness shall; (1) Issue guidance on transition assistance programs for Service members and their families, as necessary.
(2) Coordinate, as necessary, within the Department of Defense to ensure the availability of high quality, equitable, and cost-effective transition programs among the Military Services.
(3) Coordinate with and seek the assistance of the Departments of Labor and Veterans Affairs, and other Federal Agencies to facilitate delivery of high quality transition assistance programs to separating Service members.
(4) Evaluate the level of resources needed to deliver quality transition programs and facilitate efforts to obtain these resources.
(5) Monitor and evaluate the overall effectiveness of transition assistance programs.
(6) Coordinate with theater commanders, though the Chairman of the Joint Chiefs of Staff, on transition assistance programs (job fairs and training conferences, for example) impacting overseas Unified Combatant Commands.
(7) Establish the Department of Defense Service Member Transition Assistance Coordinating Committee, consisting of representatives from the Military Services and Assistant Secretary of Defense for Personnel and Readiness. The purpose of this committee is to provide DoD-level direction and coordination for transition assistance programs.
(8) Collect data to determine systematically the degree to which transition assistance programs satisfy the needs of transitioning Service members and their families.
(9) Review, modify, and reissue policy guidance, as required.
(b) The Assistant Secretary of Defense for Reserve Affairs shall establish and publish guidance on transition assistance programs for Reserve personnel and their families.
(c) The Assistant Secretary of Defense for Health Affairs shall establish guidance on transitional medical and dental care, including health insurance and preexisting conditions coverage, for Service members and their families.
(d) The Secretaries of the Military Departments shall ensure compliance with the criteria in Public Law 101-510, 102-190, and 102-484, as amended, and the following provisions:
(1) Preparation counseling shall be available no later than 90 days before separation to all separating Service members.
(2) High quality transition counseling and employment assistance programs are established on military facilities with more than 500 Service members permanently assigned or serving at that installation.
(3) The participation of separating Service members in transition assistance programs shall be coordinated with mission requirements.
(4) Transition assistance programs are allocated the resources necessary to delivery quality transition assistance programs.
(5) The Military Services are represented on the Department of Defense Service Member Transition Assistance Coordinating Committee. Each of the Military Services may invite an installations-level transition manager to participate.
(6) Quarterly reports on the status of transition programs are submitted to the Assistant Secretary of Defense for Personnel and Readiness beginning the second quarter after this publication is published, and continuing each quarter until cancellation of this part.
(7) The Inspector General of each Military Service shall review and report compliance with § 88.5(d)(1) through (d)(6) to the Service Secretary, on an annual basis, due no later than January 31 of the next calendar year.
§ 88.6
Information requirements.
The quarterly report requirement in § 88.5(d)(6) has been assigned Report Control Symbol DD-P&R(Q) 1927.
Pt. 93

PART 93—ACCEPTANCE OF SERVICE OF PROCESS; RELEASE OF OFFICIAL INFORMATION IN LITIGATION; AND TESTIMONY BY NSA PERSONNEL AS WITNESSES
Sec.
93.1
References.
93.2
Purpose and applicability.
93.3
Definitions.
93.4
Policy.
93.5
Procedures.
93.6
Fees.
93.7
Responsibilities.

Authority:
E.O. 12333, 3 CFR, 1981 Comp., p. 200; 50 U.S.C. apps. 401, 402.

Source:
56 FR 51328, Oct. 11, 1991, unless otherwise noted.
§ 93.1
References.
(a) DoD Directive 5405.2, ^1 “Release of Official Information in Litigation and Testimony by DoD Personnel as Witnesses,” July 23, 1985, reprinted in 32 CFR part 97.
^1 Copies may be obtained, at cost, from the National Technical Information Service, 5285 Port Royal Road, Springfield, VA 22161.
(b) E.O. 12333, United States Intelligence Activities, 3 CFR, 1981 Comp., p. 200, reprinted in 50 U.S.C. app. 401.
(c) The National Security Agency Act of 1959, Public Law No. 86-36, as amended, 50 U.S.C. app. 402.
(d) Rule 4, Federal Rules of Civil Procedure.
(e) DoD Instruction 7230.7, ^2 “User Charges”, January 29, 1985.
^2 See footnote 1 to § 93.1(a).
(f) 28 CFR 50.15.
§ 93.2
Purpose and applicability.
(a) This part implements § 93.1(a) in the National Security Agency/Central Security Service including all field sites (hereinafter referred to collectively as NSA). The procedures herein are also promulgated pursuant to the NSA's independent authority, under § 1.12(b)(10) of E.O. 12333 referenced under § 93.1(b), to protect the security of its activities, information and employees. This part establishes policy, assigns responsibilities, and prescribes mandatory procedures for service of process at NSA and for the release of official information in litigation by NSA personnel, through testimony or otherwise.
(b) This part is intended only to provide guidance for the internal operation of the NSA and does not create any right or benefit, substantive or procedural, enforceable at law against the United States, the Department of Defense, or NSA. This part does not override the statutory privilege against the disclosure of the organization or any function of the NSA, of any information with respect to the activities thereof, or of the names, titles, salaries, or numbers of the persons employed by the NSA. See section 6(a) of the DoD Directive referenced under § 93.1(a).
§ 93.3
Definitions.
(a) Service of process. Refers to the delivery of a summons and complaint, or other document the purpose of which is to give notice of a proceeding or to establish the jurisdiction of a court or administrative proceeding, in the manner prescribed by § 93.1(d), to an officer or agency of the United States named in court or administrative proceedings.
(b) Demand. Refers to the delivery of a subpoena, order, or other directive of a court of competent jurisdiction, or other specific authority, for the production, disclosure, or release of official information, or for the appearance and testimony of NSA personnel as witnesses.
(c) NSA personnel. (or NSA person) Includes present and former civilian employees of NSA (including non-appropriated fund activity employees), and present and former military personnel assigned to NSA. NSA personnel also includes non-U.S. nationals who perform services overseas for NSA under the provisions of status of forces or other agreements, and specific individuals hired through contractual agreements by or on behalf of NSA.
(d) Litigation. Refers to 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, or other tribunals, foreign and domestic. It 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 litigation.
(e) Official information. Is information of any kind, in any storage medium, whether or not classified or protected from disclosure by § 93.l(c) that:
(1) Is in the custody and control of NSA; or
(2) Relates to information in the custody and control of NSA; or
(3) Was acquired by NSA personnel as part of their official duties or because of their official status within NSA.
(f) General Counsel. Refers to the NSA General Counsel (GC), or in the GC's absence, the NSA Deputy GC, or in both of their absences, the NSA Assistant GC (Administration/Litigation).
(g) NSA attorney. Refers to an attorney in the NSA Office of General Counsel (OGC).
§ 93.4
Policy.
Official information that is not classified, privileged, or otherwise protected from public disclosure, should generally be made reasonably available for use in Federal and State courts and by other governmental bodies.
§ 93.5
Procedures.
(a) Release of official information in litigation. NSA personnel shall not produce, disclose, release, comment upon, or testify concerning any official information during litigation without the prior written approval of the GC. In exigent circumstances, the GC may issue oral approval, but a record of such approval will be made and retained in the OGC. NSA personnel shall not provide, with or without compensation, opinion or expert testimony concerning official NSA information, subjects, or activities, except on behalf of the United States or a party represented by the Department of Justice (DoJ). 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 NSA or the United States, the GC may, in writing, grant special authorization for NSA personnel to appear and testify at no expense to the United States. Official information may be released in litigation only in compliance with the following procedures.
(1) If official information is sought, through testimony or otherwise, by a litigation demand, the individual seeking such release or testimony must set forth, in writing and with as much specificity as possible, the nature and relevance of the official information sought. Subject to paragraph (a)(5) of this section, NSA personnel may only produce, disclose, release, comment upon or testify concerning those matters that were specified in writing and approved by the GC.
(2) Whenever a litigation demand is made upon NSA personnel for official information or for testimony concerning such information, the person upon whom the demand was made shall immediately notify the OGC. After consultation and coordination with the DoJ, if required, the GC shall determine whether the individual is required to comply with the demand and shall notify the requester or the court or other authority of that determination.
(3) If a litigation demand requires a response before instructions from the GC are received, the GC shall furnish the requester or the court or other authority with a copy of § 93.1(a) and this part 93. The GC shall also inform the requester or the court or other authority that the demand is being reviewed, and seek a stay of the demand pending a final determination.
(4) If a court or other authority declines to stay the demand in response to action taken pursuant to paragraph 3 of this section, or if such court or other authority orders that the demand must be complied with notwithstanding the final decision of the GC, the NSA personnel upon whom the demand was made shall notify the GC of such ruling or order. If the GC determines that no further legal review of or challenge to the ruling or order will be sought, the affected NSA personnel shall comply with the demand or order. If directed by the GC, however, the affected NSA personnel must decline to provide the information. ^3 The NSA personnel shall state the following to the Court:
^3 See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951) wherein the Supreme Court held that a government employee could not be held in contempt for following an agency regulation requiring agency approval before producing government information in response to a court order.
“I must respectfully advise the Court that under instructions given to me by the General Counsel of the National Security Agency, in accordance with Department of Defense Directive 5405.2 and NSA Regulation 10-62, I must respectfully decline to [produce/disclose] that information.”
(5) In the event NSA personnel receive a litigation demand for official information originated by another U.S. Government component, the GC shall forward the appropriate portions of the request to the other component. The GC shall notify the requester, court, or other authority of the transfer, unless such notice would itself disclose classified information.
(b) Acceptance of service of process. The following are mandatory procedures for accepting service of process for NSA personnel sued or summoned in their official capacities, and for attempting service of process on NSA premises.
(1) Service on NSA or on NSA personnel in their official capacities. § 93.1(d) requires service of process on the NSA or NSA personnel sued or summoned in their official capacity to be made by serving the United States Attorney for the district in which the action is brought, and by sending copies of the summons and complaint by registered or certified mail to the Attorney General of the United States and to the NSA or such NSA personnel. Only the GC or an NSA attorney is authorized to accept the copies of the summons and complaint sent to the NSA or NSA personnel pursuant to § 93.1(d). Acceptance of the copies of the summons and complaint by the GC or an NSA attorney does not constitute an admission or waiver with respect to the validity of the service of process or of the jurisdiction of the court or other body. Such copies shall be sent by registered or certified mail to: General Counsel, National Security Agency, 9800 Savage Road, Fort George G. Meade, MD 20755-6000. The envelope shall be conspicuously marked “Copy of Summons and Complaint Enclosed.” Except as provided in paragraph (b)(3) of this section, no other person may accept the copies of the summons and complaint for NSA or NSA personnel sued or summoned in their official capacities, including the sued or summoned NSA personnel, without the prior express authorization of the GC.
(i) Parties who wish to deliver, instead of sending by registered or certified mail, the copies of the service of process to NSA or to NSA personnel sued or summoned in their official capacities, will comply with the procedures for service of process on NSA premises in paragraph (b) of this section.
(ii) Litigants may attempt to serve process upon NSA personnel in their official capacities at their residences or other places. Because NSA personnel are not authorized to accept such service of process, such service is not effective under § 93.1(d). NSA personnel should refuse to accept service. However, NSA personnel may find it difficult to determine whether they are being sued or summoned in their private or official capacity. Therefore, NSA personnel shall notify the OGC as soon as possible if they receive any summons or complaint that appears to relate to actions in connection with their official duties so that the GC can determine the scope of service.
(2) Service upon NSA personnel in their individual capacities on NSA premises. Service of process is not a function of NSA. An NSA attorney will not accept service of process for NSA personnel sued or summoned in their individual capacities, nor will NSA personnel be required to accept service of process on NSA premises. Acceptance of such service of process in a person's individual capacity is the individual's responsibility. NSA does, however, encourage cooperation with the courts and with judicial officials.
(i) When the NSA person works at NSA Headquarters at Fort George G. Meade, Maryland, the process server should first telephone the OGC on (301) 688-6054, and attempt to schedule a time for the NSA person to accept process. If the NSA person's affiliation with NSA is not classified, the NSA attorney will communicate with the NSA person and serve as the contact point for the person and the process server. If the person consents to accept service of process, the NSA attorney will arrange a convenient time for the process server to come to NSA, and will notify the Security Duty Officer of the arrangement.
(ii) A process server who arrives at NSA during duty hours without first having contacted the OGC, will be referred to the Visitor Control Center (VCC) at Operations Building 2A. The VCC will contact the OGC. If an NSA attorney is not available, the process server will be referred to the Security Duty Officer, who will act in accordance with Office of Security (M5) procedures approved by the GC. Service of process will not be accepted during non-duty hours unless prior arrangements have been made by the OGC. For purposes of this part, duty hours at NSA Headquarters are 0800 to 1700, Monday through Friday, excluding legal holidays. A process server who arrives at NSA during non-duty hours without having made arrangements through the OGC to do so will be told to call the OGC during duty hours to arrange to serve process.
(iii) Upon being notified that a process server is at the VCC, an NSA attorney will review the service of process and determine whether the NSA person is being sued or summoned in his official or individual capacity. (If the person is being sued or summoned in his or her official capacity, the NSA attorney will accept service of process by noting on the return of service form that “service is accepted in official capacity only.”) If the person is being sued or summoned in his or her individual capacity, the NSA attorney will contact that person to see if that person will consent to accept service.
(3) Procedures at field activities. Chiefs of NSA field activities may accept copies of service of process for themselves or NSA personnel assigned to their field component who are sued or summoned in their official capacities. Field Chiefs or their designees will accept by noting on the return of service form that “service is accepted in official capacity only.” The matter will then immediately be referred to the GC. Additionally, Field Chiefs will establish procedures at the field site, including a provision for liaison with local judge advocates, to ensure that service of process on persons in their individual capacities is accomplished in accordance with local law, relevant treaties, and Status of Forces Agreements. Such procedures must be approved by the GC. Field Chiefs will designate a point of contact to conduct liaison with the OGC.
(4) No individual will confirm or deny that the person sued or summoned is affiliated with NSA until a NSA attorney or the Field Chief has ascertained that the individual's relationship with NSA is not classified. If the NSA person's association with NSA is classified, service of process will not be accepted. In such a case, the GC must be immediately informed. The GC will then contact the DoJ for guidance.
(5) Suits in Foreign Courts. If any NSA person is sued or summoned in a foreign court, that person, or the cognizant Field Chief, will immediately telefax a copy of the service of process to the OGC. Such person will not complete any return of service forms unless advised otherwise by an NSA attorney. OGC will coordinate with the DoJ to determine whether service is effective and whether the NSA person is entitled to be represented at Government expense pursuant to § 93.1(f).
§ 93.6
Fees.
Consistent with the guidelines in § 93.1(e), NSA may charge reasonable fees to parties seeking, by request or demand, official information not otherwise available under the Freedom of Information Act, 5 U.S.C. 552. Such fees are calculated to reimburse the Government for the expense of providing such information, and may include:
(a) The costs of time expended by NSA employees to process and respond to the request or demand;
(b) Attorney time for reviewing the request or demand and any information located in response thereto, and for related legal work in connection with the request or demand; and
(c) Expenses generated by materials and equipment used to search for, produce, and copy the responsive information.
§ 93.7
Responsibilities.
(a) The General Counsel. The GC is responsible for overseeing NSA compliance with § 93.1(a) and this part 93, and for consulting with DoJ when appropriate. In response to a litigation demand requesting official information or the testimony of NSA personnel as witnesses, the GC will coordinate NSA action to determine whether official information may be released and whether NSA personnel may be interviewed, contacted, or used as witnesses. The GC will determine what, if any, conditions will be imposed upon such release, interview, contact, or testimony. In most cases, an NSA attorney will be present when NSA personnel are interviewed or testify concerning official information. The GC may delegate these authorities.
(b) The Deputy Director for Plans and Policy (DDPP). The DDPP will assit the GC, upon request, in identifying and coordinating with NSA components that have cognizance over official information requested in a litigation demand. Additionally, the DDPP will advise the GC on the classified status of official information, and, when necessary, assist in declassifying, redacting, substituting, or summarizing official information for use in litigation. The DDPP may require the assistance of other Key Component Chiefs.
(c) Chiefs of Key Components and Field Activities. Chiefs of Key Components and Field Activities shall ensure that their personnel are informed of the contents of this part 93, particularly of the requirements to consult with the OGC prior to responding to any litigation demand, and to inform the OGC whenever they receive service of process that is not clearly in their individual capacities. Field Chiefs will notify the OGC of the persons they designate under § 93.5(b)(3).
(d) The Deputy Director for Administration (DDA). Within 60 days of the date of this part, the DDA shall submit to the GC for approval procedures for the attempted delivery of service of process during duty hours when an attorney of the OGC is not available.
Pt. 94

PART 94—NATURALIZATION OF ALIENS SERVING IN THE ARMED FORCES OF THE UNITED STATES AND OF ALIEN SPOUSES AND/OR ALIEN ADOPTED CHILDREN OF MILITARY AND CIVILIAN PERSONNEL ORDERED OVERSEAS
Sec.
94.1
Purpose.
94.2
Applicability.
94.3
Definitions.
94.4
Policy and procedures.
94.5
Forms required.

Authority:
Sec. 301, 80 Stat. 379; 5 U.S.C. 301.

Source:
35 FR 17540, Nov. 14, 1970, unless otherwise noted.
§ 94.1
Purpose.
This part prescribes uniform procedures acceptable to the Immigration and Naturalization Service of the Department of Justice, to (a) facilitate the naturalization of aliens who have served honorably in the Armed Forces of the United States and to (b) militarily certify alien dependents seeking naturalization under the provisions of Immigration and Nationality Act of 1952, as amended, sections 319(b) and 323(c) (8 U.S.C. 1430(b) and 1434(c)); and furnishes policy guidance to the Secretaries of the Military Departments governing discharge or release from active duty in the Armed Forces of the United States of permanent-residence aliens who desire to be naturalized as U.S. citizens under the provisions of Act of June 27, 1952, section 328 (66 Stat. 249); 8 U.S.C. 1439.
§ 94.2
Applicability.
The provisions of this part apply to the Military Departments.
§ 94.3
Definitions.
(a) Permanent-residence alien is an alien admitted into the United States under an immigration visa for permanent residence; or an alien, who, after admission without an immigrant visa, has had his status adjusted to that of an alien lawfully admitted for permanent residence.
(b) Armed Forces of the United States denotes collectively all components of the Army, Navy, Air Force, Marine Corps, and Coast Guard.
§ 94.4
Policy and procedures.
(a) Naturalization of an alien who has served honorably in the Armed Forces of the United States at any time. (1) Under the provisions of Act of June 27, 1952, section 328 (66 Stat. 249); 8 U.S.C. 1439, an alien who has served in the Armed Forces of the United States for a period(s) totaling three (3) years may be naturalized if he:
(i) Has been lawfully admitted to the United States for permanent residence;
(ii) Was separated from the military service under honorable conditions;
(iii) Files a petition while still in the military service, or within six (6) months after the termination of such service; and
(iv) Can comply in all other respects with the Immigration and Nationality Act of 1952, except that (a) no period of residence or specified period of physical presence in the United States or the State in which the petition for naturalization is filed is required, and (b) residence within the jurisdiction of the court is not required.
(2) The prescribed 3-year period may be satisfied by a combination of active duty and inactive duty in a reserve status.
(3) An alien member desiring to fulfill naturalization requirements through military service shall not be separated prior to completion of three (3) full years of active duty unless:
(i) His performance or conduct does not justify retention, in which case he shall be separated in accordance with the provisions of part 41 of this subchapter and chapter 47, title 10, United States Code (Uniform Code of Military Justice), as appropriate; or
(ii) He is to be transferred to inactive duty in a reserve component in order to:
(a) Complete a reserve obligation under the provisions of part 50 of this subchapter, or
(b) Attend a recognized institution of learning under the early release program, as provided in DoD Instruction 1332.15, “Early Release of Military Enlisted Personnel for College or Vocational/Technical School Enrollment,” January 26, 1970. ^1
^1 Filed as part of original. Copies available from the U.S. Naval Publications and Forms Center, 5801 Tabor Avenue, Philadelphia, PA. 19120, Attention: Code 300.
(4) Caution shall be exercised to ensure that an alien's affiliation with the Armed Forces of the United States, whether on active duty or on inactive duty in a reserve status, is not terminated even for a few days short of the 3-year statutory period, since failure to comply with the exact 3-year requirement of Act of June 27, 1952, section 328 (66 Stat. 249); 8 U.S.C. 1439 will automatically preclude a favorable determination by the Immigration and Naturalization Service on any petition for naturalization based on an alien's military service.
(5) During a period of hostilities, as designated by the President of the United States, the expeditious naturalization provisions outlined in paragraph (b) of this section, will take precedence over the foregoing.
(b) Naturalization of an alien who has served in the Armed Forces of the United States during a period of hostilities as designated by the President of the United States. (1) Under the provisions of Immigration and Nationality Act of 1952, as amended, section 329 (8 U.S.C. 1440), an alien who serves honorably on active duty in the Armed Forces of the United States during the period beginning February 28, 1961, and ending on a date designated by the President, by Executive order, as the date of termination of the Vietnam hostilities, or during any future period which President, by Executive order, shall designate as a period in which the Armed Forces of the United States are or were engaged in military operations involving armed conflict with a hostile foreign force, and who is otherwise eligible, may be naturalized whether or not he has been lawfully admitted to the United States for permanent residence, if the member was inducted, enlisted, or reenlisted in the United States (inclusive of Puerto Rico, Guam, Virgin Islands, Canal Zone, American Samoa, or Swains Island).
(i) The induction, enlistment, or reenlistment in the United States or its stated possessions must actually be in these land areas, in ports, harbors, bays, enclosed sea areas along their routes, or within a marginal belt of the sea extending from the coastline outward three (3) geographical miles.
(ii) Enlistment or reenlistment aboard a ship on the high seas or in foreign waters does not meet the requirements of Immigration and Nationality Act of 1952, as amended, section 329 (8 U.S.C. 1440). In such instances, the provisions of paragraph (a) of this section may apply.
(2) Each Military Department will establish procedures containing the provisions outlined in paragraphs (b)(2) (i) and (ii) of this section. In addition, each qualifying alien shall be advised of the liberalized naturalization provisions of the Immigration and Nationality Act of 1952, as amended, section 329 (8 U.S.C. 1440), i.e., that the usual naturalization requirements concerning age, residence, physical presence, court jurisdiction and waiting periods are not applicable, and will be given appropriate assistance in processing his naturalization application in consonance with procedures contained in “Naturalization Requirements and General Information,” published by the U.S. Department of Justice (Form N-17).
(i) Military basic training and orientation programs will include advice and assistance to interested aliens in completing and submitting the application and other forms required to initiate naturalization proceedings.
(ii) In addition, applicants should be advised that:
(a) Under the laws of certain foreign countries, military service in the Armed Forces of the United States may result in the loss of their native country citizenship but this same service may make them eligible for U.S. citizenship.
(b) Their eligibility for naturalization, based upon the honorable service in an active duty status prescribed in the Immigration and Nationality Act of 1952, as amended, section 329 (8 U.S.C. 1440) will be retained, even though they apply for naturalization after their return to the United States following the termination or completion of their overseas assignment, or after their honorable discharge from the Armed Forces of the United States.
(c) If they are stationed at a base in the continental United States, Alaska, Hawaii, Puerto Rico, Guam, or the Virgin Islands, they should apply for citizenship only if they expect to be stationed at the base for at least 60 days following application. Unless the Immigration and Naturalization Service has at least 60 days in which to complete the case, there is no assurance that it can be completed before the applicant is transferred, since the processing procedures outlined below take time and are not entirely within the control of the Immigration and Naturalization Service.
(1) Every naturalization application must be processed when received by the Immigration and Naturalization Service. Special arrangements have been made to expedite the processing of petitions of alien members of the Armed Forces.
(2) After processing, the alien applicant and two citizen witnesses must personally appear for examination by an officer of the Immigration and Naturalization Service in connection with the filing of a petition for naturalization in court.
(3) Finally, the applicant must appear in person before the naturalization court on a date set by the court so that he may be admitted to citizenship.
(d) If the alien member is scheduled for overseas assignment where naturalization courts are not available, he should apply for naturalization on the earliest possible date but no later than 60 days before departure for overseas assignment. No assurance that processing will be completed before the applicant's departure for overseas will be given by the Immigration and Naturalization Service unless it has 60 days to complete the matter.
(1) An alien serviceman who is serving overseas and has submitted or submits the required naturalization application and forms to the Immigration and Naturalization Service may not be granted ordinary leave, or Rest and Recuperation (R&R) leave (where authorized in overseas areas) for naturalization purposes, unless a written notification from the Immigration and Naturalization Service has been received by the serviceman informing him that the processing of his application has been completed, and requesting him to appear with two U.S. citizen witnesses before a representative of the Immigration and Naturalization Service at a designated location for the purpose of completing the naturalization.
(2) If possible, an applicant granted leave for such purposes should advise the Immigration and Naturalization Service when he expects to arrive in the leave area and, in any event, should contact the Immigration and Naturalization Service office immediately upon arrival in the area. Every effort will be made to complete the naturalization within the leave period.
(c) Naturalization of alien spouses and/or alien adopted children of military and civilian personnel ordered overseas. Alien spouses and/or alien adopted children of military and civilian personnel of the Department of Defense who are authorized to accompany or join their sponsors overseas and who wish to obtain U.S. citizenship prior to departure will be given maximum assistance by commanders of military installations.
(1) DD Form 1278, “Certificate of Overseas Assignment to Support Application to File Petition for Naturalization,” ^2 will be issued to alien dependents by military commanders at the times indicated below in order that the alien may file such certificate with the nearest Immigration and Naturalization Service Office to initiate naturalization proceedings. Only DD Form 1278 will be accepted by the Immigration and Naturalization Service. Military commanders will not issue memoranda or letters of any kind in lieu thereof.
^2 Filed as part of original. Copies may be obtained from Departments of the Army, Navy, and Air Force.
(i) When dependents are authorized automatic concurrent travel, DD Form 1278 will be issued not earlier than 90 days prior to the dependents' schedule date of travel.
(ii) When advance application for concurrent travel is required, DD Form 1278 will be issued after approval is received and not earlier than 90 days prior to the dependents' scheduled date of departure.
(iii) When concurrent travel is not authorized, DD Form 1278 will be issued after authorization for dependents' movement is received and not earlier than 90 days prior to the dependents' scheduled date of travel.
(2) Upon receipt of DD Form 1278, the alien will file this form, together with the application for petition for naturalization, Immigration and Naturalization Form N-400 (adult) or N-402 (child) as appropriate, if not previously filed, with the nearest office of the Immigration and Naturalization Service. The application must be accompanied by:
(i) Three identical photographs.
(ii) Form FD-358, Applicant Fingerprint Card, and
(iii) Form G-325, Biographic Information.
(3) Further processing of the application for citizenship is as prescribed by the Immigration and Naturalization Service.
(4) Upon completion of the naturalization process, immediate application for passport should be made, in order that it can be issued prior to scheduled departure of the dependent for overseas.
§ 94.5
Forms required.
The following forms required for naturalization purposes may be obtained from any office of the Immigration and Naturalization Service:
(a) N-400 Application to File a Petition for Naturalization (Adult) (Submit original form only).
(b) N-402 Application to File a Petition for Naturalization (Child) (Submit original form only).
(c) G-325 Biographic Information (Submit original and duplicate of multileaf form).
(d) G-325B Biographic Information (Submit original form only).
(e) FD-258 Applicant Fingerprint Card (Submit one completed card).
(f) N-426 Certificate of Military or Naval Service (Submit in triplicate). (Should be handled on a priority basis so as to avoid prejudicing the early completion of the naturalization process, particularly for an alien who may receive an overseas assignment.)
(g) “Naturalization Requirements and General Information,” published by the U.S. Department of Justice (Form N-17) describes the naturalization requirements and lists Immigration and Naturalization offices which process applications.
Pt. 96

PART 96—ACQUISITION AND USE OF CRIMINAL HISTORY RECORD INFORMATION BY THE MILITARY SERVICES
Sec.
96.1
Purpose.
96.2
Applicability.
96.3
Definitions.
96.4
Policy.
96.5
Responsibilities.
96.6
Procedures.

Authority:
10 U.S.C. 503, 504, 505, and 520a.

Source:
49 FR 23042, June 4, 1984, unless otherwise noted.
§ 96.1
Purpose.
Under title 10 U.S. Code, sections 503, 504, 505 and 520a, this part establishes policy guidance concerning the acquisition of criminal history record information for use in determining an enlistment applicant's suitability for entry and for participation in special programs that require a determination of trustworthiness (part 156 of this title), assigns responsibilities, and prescribes procedures.
§ 96.2
Applicability.
This part applies to the Office of the Secretary of Defense, the Military Departments, and the Defense Investigative Service (DIS). The term “Military Services,” as used herein, refers to the Army, Navy, Air Force, and Marine Corps.
§ 96.3
Definitions.
(a) Criminal history record information (with respect to any juvenile or adult arrest, citation, or conviction). The offense involved; age of the person involved; dates of arrest, citation, or conviction, if any; place of the alleged offense; place of arrest and assigned court; and disposition of the case.
(b) Criminal justice system. State, county, and local government law enforcement agencies; courts and clerks of courts; and other government agencies authorized to collect, maintain, and disseminate criminal history record information.
(c) Special programs. Military Services' programs that, because of their sensitivity or access to classified information, require the DIS to perform the investigations specified in chapter III of DoD 5200.2-R.
§ 96.4
Policy.
Section 503 of title 10 U.S. Code requires the Secretaries of the Military Departments to conduct intensive recruiting campaigns to obtain enlistments. It is the policy of the Department of Defense that the Military Services review the background of applicants for enlistment and for participation in special programs to identify:
(a) Those whose backgrounds pose serious questions as to fitness for service (10 U.S.C. 504 and 505) or suitability for participation in special programs (part 156 of this title).
(b) Those who may not be enlisted in the Military Services unless a waiver is granted (section 504 of title 10, United States Code).
(c) Those who may try to enlist fraudulently.
§ 96.5
Responsibilities.
(a) The Assistant Secretary of Defense (Manpower, Installations, and Logistics) shall submit the implementing Military Service regulations to the Senate and House Committees on Armed Services, in accordance with section 520a of title 10 U.S. Code.
(b) The Secretaries of the Military Departments shall develop and prepare uniform implementing regulations concerning acquisition, review, and safeguarding of criminal history record information by recruiting elements to conform with section 520a of title 10 U.S. Code, policies stated herein and shall include in the regulations procedures on obtaining and reviewing criminal history record information for recruitment purposes and for assignment of personnel to special programs.
(c) The Director, Defense Investigative Service, shall ensure that the acquisition of all available criminal history record information, or criminal history record information provided to the DIS by other government agencies, is safeguarded in accordance with existing laws or DoD regulatory documents to ensure protection of the privacy of the enlistment applicant on whom the record exists.
§ 96.6
Procedures.
(a) Under section 520a of title 10 U.S. Code, recruiters are authorized to request and receive criminal history record information from the criminal justice system.
(b) The Military Services shall obtain criminal history record information on enlistment applicants from the criminal justice system and from the DIS and shall review this information to determine whether applicants are acceptable for enlistment and for assignment to special programs. Recruiters shall request such information in each instance by addressing their requests to the criminal justice system not later than 90 days after each application for enlistment is made.
(c) The Military Services shall ensure the confidentiality of criminal history record information obtained for recruiting purposes. Personnel who have access to this information may not disclose it except for the purposes for which obtained (10 U.S.C. 520a).
(d) The DIS shall provide additional background information to the Military Services as needed to determine the suitability of applicants for enlistment and for participation in special programs. This additional background information shall be provided by Entrance National Agency Checks (ENTNACs) and other investigations as directed by DoD 5200.2-R.
Pt. 97

PART 97—RELEASE OF OFFICIAL INFORMATION IN LITIGATION AND TESTIMONY BY DoD PERSONNEL AS WITNESSES
Sec.
97.1
Purpose.
97.2
Applicability and scope.
97.3
Definitions.
97.4
Policy.
97.5
Responsibilities.
97.6
Procedures.

Authority:
5 U.S.C. 301; 10 U.S.C. 133.

Source:
50 FR 32056, Aug. 8, 1985, unless otherwise noted.
§ 97.1
Purpose.
This directive establishes policy, assigns responsibilities, and prescribes procedures for the release of official DoD information in litigation and for testimony by DoD personnel as witnesses during litigation.
§ 97.2
Applicability and scope.
(a) This directive applies to the Office of the Secretary of Defense (OSD), the Military Departments, the Organization of the Joint Chiefs of Staff (OJCS), the Unified and Specified Commands, and the Defense Agencies (hereafter referred to as “DoD Components”), and to all personnel of such DoD Components.
(b) This directive does not apply to the release of official information or testimony by DoD personnel in the following situations:
(1) Before courts-martial convened by the authority of the Military Departments or in administrative proceedings conducted by or on behalf of a DoD Component;
(2) Pursuant to administrative proceedings conducted by or on behalf of the Equal Employment Opportunity Commission (EEOC) or the Merit Systems Protection Board (MSPB), or pursuant to 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 in litigation conducted on behalf of the United States;
(4) As part of the assistance required pursuant to DoD Directive 5220.6, “Industrial Personnel Security Clearance Program,” December 20 1976; or,
(5) Pursuant to disclosure of information to Federal, State, and local prosecuting and law enforcement authorities, in conjunction with an investigation conducted by a DoD criminal investigative organization.
(c) This Directive does not supersede or modify existing laws or DoD program governing the testimony of DoD personnel or the release of official DoD information during grand jury proceedings, the release of official information not involved in litigation, or the release of official information pursuant to the Freedom of Information Act, 5 U.S.C. 552, or the Privacy Act, 5 U.S.C. 552a, nor does this Directive preclude treating any written request for agency records that is not in the nature of legal process as a request under the Freedom of Information or Privacy Acts.
(d) This Directive 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 in appropriate cases.
(e) This Directive does not preclude official comment on matters in litigation in appropriate cases.
(f) This Directive is intended only to provide guidance for the internal operation of the Department of Defense 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 or the Department of Defense.
§ 97.3
Definitions.
(a) Demand. Subpoena, order, or other demand of a court of competent jurisdiction, or other specific authority, for the production, disclosure, or release of official DoD information or for the appearance and testimony of DoD personnel as witnesses.
(b) DoD personnel. Present and former U.S. military personnel; Service Academy cadets and midshipmen; and present and former civilian employees of any Component of the Department of Defense, including nonappropriated fund activity employees; non-U.S. nationals who perform services overseas, under the provisions of status of forces agreements, for the U.S. Armed Forces; and other specific individuals hired through contractual agreements by or on behalf of the Department of Defense.
(c) 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 litigation.
(d) Official information. All information of any kind, however stored, that is in the custody and control of the Department of Defense, relates to information in the custody and control of the Department, or was acquired by DoD personnel as part of their official duties or because of their official status within the Department while such personnel were employed by or on behalf of the Department or on active duty with the U.S. Armed Forces.
§ 97.4
Policy.
It is DoD policy that official information should generally be made reasonably available for use in Federal and State courts and by other governmental bodies unless the information is classified, privileged, or otherwise protected from public disclosure.
§ 97.5
Responsibilities.
(a) The General Counsel, Department of Defense, shall provide general policy and procedural guidance by the issuance of supplemental instructions or specific orders concerning the release of official DoD information in litigation and the testimony of DoD personnel as witnesses during litigation.
(b) The Heads of DoD Components shall issue appropriate regulations to implement this Directive and to identify official information that is involved in litigation.
§ 97.6
Procedures.
(a) Authority to act. (1) In response to a litigation request or demand for official DoD information or the testimony of DoD personnel as witnesses, the General Counsels of DoD, Navy, and the Defense Agencies; the Judge Advocates General of the Military Departments; and the Chief Legal Advisors to the JCS and the Unified and Specified Commands, with regard to their respective Components, are authorized—after consulting and coordinating with the appropriate Department of Justice litigation attorneys, as required—to determine whether official information may be released in litigation; whether DoD personnel assigned to or affiliated with the Component may be interviewed, contacted, or used as witnesses concerning official DoD information or as expert witnesses; and what, if any, conditions will be imposed upon such release, interview, contact, or testimony. Delegation of this authority, to include the authority to invoke appropriate claims of privilege before any tribunal, is permitted.
(2) In the event that a DoD Component receives a litigation request or demand for official information originated by another Component, the receiving Component shall forward the appropriate portions of the request or demand to the originating Component for action in accordance with this Directive. The receiving Component shall also notify the requestor, court, or other authority of its transfer of the request or demand.
(3) Notwithstanding the provisions of paragraph (a) (1) and (2) of this section, the General Counsel, DoD, in litigation involving terrorism, espionage, nuclear weapons, intelligence means or sources, or otherwise as deemed necessary, may notify Components that General Counsel, DoD, will assume primary responsibility for coordinating all litigation requests and demands for official DoD information or testimony of DoD personnel, or both; consulting with the Department of Justice, as required; and taking final action on such requests and demands.
(b) Factors to consider. In deciding whether to authorize the release of official DoD information or the testimony of DoD personnel concerning official information (hereafter referred to as “the disclosure”) pursuant to paragraph (a), DoD officials should consider the following types of factors:
(1) Whether the request or demand is unduly burdensome or otherwise inappropriate under the applicable court rules;
(2) Whether the disclosure, including release in camera, is appropriate under the rules of procedure governing the case or matter in which the request or demand arose;
(3) Whether the disclosure would violate a statute, executive order, regulation, or directive;
(4) Whether the disclosure, including release in camera, is appropriate or necessary under the relevant substantive law concerning privilege;
(5) Whether the disclosure, except when in camera and necessary to assert a claim of privilege, would reveal information properly classified pursuant to DoD 5200.1-R, “Information Security Program Regulation,” August 1982; unclassified technical data withheld from public release pursuant to DoD Directive 5230.25, “Withholding of Unclassified Technical Data from Public Disclosure,” November 6, 1984; or other matters exempt from unrestricted disclosure; and,
(6) Whether disclosure would interfere with ongoing enforcement proceedings, compromise constitutional rights, reveal the identity of an intelligence source or confidential informant, disclose trade secrets or similarly confidential commercial or financial information, or otherwise be inappropriate under the circumstances.
(c) Decisions on litigation requests and demands. (1) Subject to paragraph (c)(5) of this section, DoD personnel shall not, in response to a litigation request or demand, produce, disclose, release, comment upon, or testify concerning any official DoD information without the prior written approval of the appropriate DoD official designated in § 97.6(a). Oral approval may be granted, but a record of such approval will be made and retained in accordance with the applicable implementing regulations.
(2) If official DoD information is sought, through testimony or otherwise, by a litigation request or demand, the individual seeking such release or testimony must set forth, in writing and with as much specificity as possible, the nature and relevance of the official information sought. Subject to paragraph (c)(5), DoD personnel may only produce, disclose, release, comment upon, or testify concerning those matters that were specified in writing and properly approved by the appropriate DoD official designated in paragraph (a) of this section. See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
(3) Whenever a litigation request or demand is made upon DoD personnel for official DoD information or for testimony concerning such information, the personnel upon whom the request or demand was made shall immediately notify the appropriate DoD official designated in § 97.6(a) for the Component to which the individual contacted is or, for former personnel, was last assigned. In appropriate cases, the responsible DoD official shall thereupon notify the Department of Justice of the request or demand. After due consultation and coordination with the Department of Justice, as required, the DoD official shall determine whether the individual is required to comply with the request or demand and shall notify the requestor or the court or other authority of the determination reached.
(4) If, after DoD personnel have received a litigation request or demand and have in turn notified the appropriate DoD official in accordance with paragraph (c)(3) of this section , a response to the request or demand is required before instructions from the responsible official are received, the responsible official designated in paragraph (a) shall furnish the requestor or the court or other authority with a copy of this directive and applicable implementing regulations, inform the requestor or the court or other authority that the request or demand is being reviewed, and seek a stay of the request or demand pending a final determination by the Component concerned.
(5) 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 pursuant to § 97.6(c)(4), or if such court or other authority orders that the request or demand must be complied with notwithstanding the final decision of the appropriate DoD official, the DoD personnel upon whom the request or demand was made shall notify the responsible DoD official of such ruling or order. If the DoD official determines that no further legal review of or challenge to the court's order or ruling will be sought, the affected DoD personnel shall comply with the request, demand, or order. If directed by the appropriate DoD official, however, the affected DoD personnel shall respectfully decline to comply with the demand. See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
(d) Fees. Consistent with the guidelines in DoD Instruction 7230.7, “User Charges,” January 29, 1985, the appropriate officials designated in § 97.6(a) are authorized to charge reasonable fees, as established by regulation and to the extent not prohibited by law, to parties seeking, by request or demand, official DoD information not otherwise available under DoD 5400.7-R, “DoD Freedom of Information Act Program,” March 24, 1980. Such fees, in amounts calculated to reimburse the government for the expense of providing such information, may include the costs of time expended by DoD employees to process and respond to the request or demand; attorney time for reviewing the requst or demand and any information located in response thereto and for related legal work in connection with the request or demand; and expenses generated by materials and equipment used to search for, produce, and copy the responsive information. See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978).
(e) Expert or opinion testimony. DoD personnel shall not provide, with or without compensation, opinion or expert testimony concerning official DoD 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 requestor of exceptional need or unique circumstances and that the anticipated testimony will not be adverse to the interests of the Department of Defense or the United States, the appropriate DoD official designated in paragraph (a) of this section may, in writing, grant special authorization for DoD personnel to appear and testify at no expense to the United States. If, despite the final determination of the responsible DoD official, a court of competent jurisdiction or other appropriate authority, orders the appearance and expert or opinion testimony of DoD personnel, the personnel shall notify the responsible DoD official of such order. If the DoD official determines that no further legal review of or challenge to the court's order will be sought, the affected DoD personnel shall comply with the order. If directed by the appropriate DoD official, however, the affected DoD personnel shall respectfully decline to comply with the demand. See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
Pt. 99

PART 99—PROCEDURES FOR STATES AND LOCALITIES TO REQUEST INDEMNIFICATION
Sec.
99.1
Scope and purpose.
99.3
General definitions.
99.5
Eligibility for indemnification.
99.7
Procedures for requesting an indemnification agreement.
99.9
Terms of indemnification.
Appendix to Part 99—Addresses of Relevant U.S. Government Agencies

Authority:
Access to Criminal History Records for National Security Purposes, of The Intelligence Authorization Act for Fiscal Year 1986, Pub. L. No. 99-169, secs. 801-803, 99 Stat. 1002, 1008-1011 (1985) (codified in part at 5 U.S.C. 9101).

Source:
51 FR 42555, Nov. 25, 1986, unless otherwise noted.
§ 99.1
Scope and purpose.
(a) The Department of Defense (DoD), Office of Personnel Management (OPM), or Central Intelligence Agency (CIA) has the right to criminal history information of States and local criminal justice agencies in order to determine whether a person may:
(1) Be eligible for access to classified information;
(2) Be assigned to sensitive national security duties; or
(3) Continue to be assigned to national security duties.
(b) This part sets out the conditions under which the DoD, OPM, or CIA may sign an agreement to indemnify and hold harmless a State or locality against claims for damages, costs, and other monetary loss caused by disclosure or use of criminal history record information by one of these agencies.
(c) The procedures set forth in this part do not apply to situations where a Federal agency seeks access to the criminal history records of another Federal agency.
(d) By law these provisions implementing 5 U.S.C. 9101 (b)(3) shall expire December 4, 1988, unless the duration of said section is extended or limited by Congress.
§ 99.3
General definitions.
For the purposes of §§ 99.1 through 99.9 of this part:
Criminal history record information: information collected by criminal justice agencies on individuals consisting of identifiable descriptions and notations of arrests, indictments, information, or other formal criminal charges and any disposition arising therefrom, sentencing, correction supervision, and release. The term does not include identification information such as fingerprint records to the extent that such information does not indicate involvement of the individual in the criminal justice system. The term does not include those records of a State or locality sealed pursuant to law from access by State and local criminal justice agencies of that State or locality.
Criminal justice agency: Federal, State, and local agencies including (a) courts, or (b) a government agency or any subunit thereof which performs the administration of criminal justice pursuant to a statute or executive order, and which allocates a substantial part of its annual budget to the administration of criminal justice.
Department of Defense: the Defense Investigative Service, National Security Agency, Naval Investigative Service, Air Force Office of Special Investigations, and Army Intelligence and Security Command.
Federal agency: the Department of Defense, the Office of Personnel Management, or the Central Intelligence Agency, or any other Federal agency subsequently authorized by Congress to obtain access to criminal history records information.
Locality: any local government authority or agency or component thereof within a State having jurisdiction over matters at a county, municipal or other local government level.
State: any of the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Northern Mariana Islands, Guam, the Virgin Islands, American Samoa, the Trust Territory of Pacific Islands, and any other territory or possession of the United States.
§ 99.5
Eligibility for indemnification.
As provided for under 5 U.S.C. 9101(b)(3), a State or locality may request an indemnification agreement.
(a) To be eligible for an indemnification agreement a State or locality must have had a law in effect on December 4, 1985 that prohibited or had the effect of prohibiting the disclosure of criminal history record information to the DoD, OPM, or CIA.
(b) A State or locality is also eligible for an indemnification agreement if it meets the conditions of paragraph (a) of this section, but nevertheless provided criminal history record information to the DoD, OPM, or CIA on or before December 4, 1985.
§ 99.7
Procedures for requesting an indemnification agreement.
When requesting an indemnification agreement, the State or locality must notify each Federal agency as appropriate, at the address listed in the appendix to this part, of its eligibility of an indemnification agreement. It must also:
(a) Certify that on December 4, 1985, the State or locality had in effect a law which prohibited or had the effect of prohibiting the disclosure of criminal history record information to the DoD, OPM, or CIA; and
(b) Append to the request for an indemnification agreement a copy of such law.
§ 99.9
Terms of indemnification.
The terms of the Uniform Federal Agency Indemnification Agreement (UFAIA), must conform to the following provisions:
(a) Eligibility: The State or locality must certify that its law prohibits or has the effect of prohibiting the disclosure of criminal history record information to the DoD, OPM, or CIA for the purposes described in section 910.101(a) and that such law was in effect on December 4, 1985.
(b) Liability: (1) The Federal agency agrees to indemnify and hold harmless the State or locality from any claim for damages, costs and other monetary loss arising from the disclosure or negligent use by the DoD, OPM, or CIA of criminal history record information obtained from that State or locality pursuant to 5 U.S.C. 9101(b). The indemnification will include the officers, employees, and agents of the State or locality.
(2) The indemnification agreement will not extend to any act or omission prior to the transmittal of the criminal history record information to the Federal agency.
(3) The indemnification agreement will not extend to any negligent acts on the part of the State or locality in compiling, transcribing or failing to delete or purge any of the information transmitted.
(c) Consent and access requirements:
(1) The Federal agency when requesting criminal history record information from the State or locality for the release of such information will attest that it has obtained the written consent of the individual under investigation after advising him or her of the purposes for which that information is intended to be used.
(2) The Federal agency will attest that it has advised that individual of the right to access that information.
(d) Purpose requirements: The Federal agency will use the criminal history record information only for the purposes stated in § 910.101(a).
(e) Notice, litigation and settlement procedures: (1) The State or locality must give notice of any claim against it on or before the 10th day after the day on which claim against it is received, or it has notice of such a claim.
(2) The notice must be given to the Attorney General and to the U.S. Attorney of the district embracing the place wherein the claim is made.
(3) The Attorney General shall make all determinations regarding the settlement or defense of such claims.
Pt. 99, App.

Appendix to Part 99—Addresses of Relevant U.S. Government Agencies
Department of Defense, Office of the General Counsel, Room 3E988, Washington, DC 20301-1600
Office of Personnel Management, Office of Federal Investigations, P.O. Box 886, Washington, DC 20044
Central Intelligence Agency, Attention: Office of General Counsel, Washington, DC 20505
Pt. 100

PART 100—UNSATISFACTORY PERFORMANCE OF READY RESERVE OBLIGATION
Sec.
100.1
Reissuance and purpose.
100.2
Applicability.
100.3
Policy.
100.4
Responsibility.
100.5
Procedures.
100.6
Definitions.
Enclosure to Part 100—Suggested Format, Affidavit of Service by Mail

Authority:
10 U.S.C. 510, 511, 593, 597, or 651, and 32 U.S.C. 302.

Source:
44 FR 51568, Sept. 4, 1979, unless otherwise noted.
§ 100.1
Reissuance and purpose.
This part is reissued to update DoD policy on actions to be taken in regard to members of the Ready Reserve whose performance of duty or participation in Reserve training is unsatisfactory; and provides greater flexibility to the Military Departments when dealing with unsatisfactory performance.
§ 100.2
Applicability.
The provisions of this part apply to the Office of the Secretary of Defense and the Military Departments.
§ 100.3
Policy.
Persons who are enlisted or appointed in, or transferred to a Reserve component of the Armed Forces of the United States, under the provisions of 10 U.S.C. 510, 511, 593, 597, or 651 and 32 U.S.C. 302 are expected to participate and perform satisfactorily as members of the Ready Reserve to fulfill their obligation or service agreement. This policy is also in accordance with the standards prescribed by 32 CFR parts 102 and 101 and the Military Departments concerned.
§ 100.4
Responsibility.
The Secretaries of the Military Departments shall ensure that:
(a) Ready Reserve applicants understand their obligations for satisfactory participation in the Ready Reserve before their enlistment or appointment.
(b) Members of the Ready Reserve continue to understand their obligations for satisfactory participation in the Ready Reserve after their enlistment or appointment in accordance with 32 CFR part 44.
§ 100.5
Procedures.
(a) Unsatisfactory participation in the Ready Reserve. (1) Members of the Selected Reserve who have not fulfilled their statutory military service obligation under 10 U.S.C. 651 and whose participation has not been satisfactory may be:
(i) Ordered to active duty, if they have not served on active duty or active duty for training for a total period of 24 months, for such period of time as may be deemed necessary by the Secretary of the Military Department concerned under the provisions of 10 U.S.C. 673a (such individuals may be required to serve on active duty until their total service on active duty or active duty for training equals 24 months); or
(ii) Ordered to active duty for training, regardless of the length of prior active duty or active duty for training, for a period of not more than 45 days under provisions of 10 U.S.C. 270; or
(iii) Transferred to the Individual Ready Reserve (IRR) for the balance of their statutory military service obligation with a tentative characterization of service, normally under other than honorable conditions, when the Military Department concerned has determined that the individuals still possesses the potential for useful service under conditions of full mobilization; or
(iv) Discharged for unsatisfactory participation under the provisions of 32 CFR part 41, when the Military Department concerned has determined that the individual has no potential for useful service under conditions of full mobilization.
(2) Members of the Selected Reserve who have fulfilled their statutory military service obligation under 10 U.S.C. 651 or who did not incur such obligation, ^2 and whose participation has not been satisfactory may be:
^2 This includes women whose current enlistment or appointment was effected before February 1, 1978.
(i) Transferred to the IRR for the balance of their current enlistment contract or service agreement with a tentative characterization of service, normally under other than honorable conditions, when the Military Department concerned has determined that the individual still has a potential for useful service under conditions of full mobilization; or
(ii) Discharged for unsatisfactory performance under 32 CFR part 41 when the Military Department concerned has determined that the individual has no further potential for useful service under conditions of full mobilization.
(3) When a member of the Selected Reserve is identified as an unsatisfactory participant and considered a possible candidate for involuntary transfer to the IRR or for discharge, a board of officers shall be convened, as required by 10 U.S.C. 1163 to consider the circumstances and recommend appropriate action.
(4) When an individual is transferred to the IRR as a result of an approved board recommendation, no further board action shall be required before discharge if the individual fails to take affirmative action in an effort to upgrade the tentative characterization of service.
(5) Members of the IRR who have not fulfilled their statutory military service obligation under 10 U.S.C. 651 were enlisted or appointed under any program that provided that the obligation could be fulfilled by service in the IRR only, and whose participation in such a program has not been satisfactory may be:
(i) Retained in the IRR for the duration of their statutory military service obligation with a tentative characterization of service, normally under other than honorable conditions, when the Military Department concerned has determined that the individual still possesses the potential for useful service under conditions of full mobilization; or
(ii) Discharged for unsatisfactory performance under 32 CFR part 41, when the Military Department concerned has determined that the individual has no potential for useful service under conditions of full mobilization.
(6) When a member of the IRR, whose enlistment or appointment provided that the service concerned could be performed entirely in the IRR (as opposed to the Selected Reserve), is identified as an unsatisfactory participant, a board of officers shall be convened as required by 10 U.S.C. 1163 to consider the circumstances and recommend appropriate action. When an individual is retained as a result of an approved board action, no further board action shall be required before discharge if the individual fails to take affirmative action in an effort to upgrade the tentative characterization of service.
(7) Individuals assigned to the Selected Reserve who are ordered to active duty under 10 U.S.C. 673a or to active duty for training under the provisions of 10 U.S.C. 270 may be returned to their previous unit of assignment or transferred to the IRR upon the completion of the active duty or active duty for training. When necessary, the individual's term of enlistment or service agreement may be extended to permit completion of the designated period of active duty or active duty for training in accordance with 10 U.S.C. 270(b) and 673(b).
(8) Individuals who are transferred or assigned to the IRR who have a tentative characterization of service of less than honorable because of unsatisfactory participation in the Ready Reserve shall be discharged at the end of their statutory military service obligation or their period of enlistment or service agreement, whichever is later with such characterization unless the individuals have taken affirmative action to upgrade the tentative characterization of service. Affirmative actions may include, but are not limited to, rejoining a unit of the Selected Reserve and participating satisfactorily for a period of 12 months, or volunteering for and completing a tour of active duty for training of not less than 45 days. When necessary, the individual's term of enlistment or service agreement may be extended to complete the affirmative action and qualify for a more favorable characterization of service.
(9) When members of the Selected Reserve are ordered to active duty, active duty for training, or transferred to the IRR because of unsatisfactory participation, copies of their orders should be furnished to the individuals through personal contact by a member of the command and a written acknowledgment of receipt obtained. When such efforts are unsuccessful, the orders shall be mailed to the individual.
(i) Orders mailed to such members shall be sent by Certified Mail (Return Receipt Requested), and a Receipt for Certified Mail (PS Form 3800) obtained. In addition, the individual who mails the orders shall prepare a Sworn Affidavit of Service by Mail (format at enclosure) that shall be inserted, together with the PS Form 3800, in the member's personnel file.
(ii) Notification shall be made through the mailing of orders to the member's most recent mailing address.
(iii) Provided the orders were properly mailed to the most recent address furnished by the member, absence of proof of delivery does not change the fact that the member was properly ordered to report for active duty, active duty for training, or transferred to the IRR, as appropriate.
(iv) Individuals ordered to active duty who fail to report shall have their names entered into the National Crime Information Center of the Federal Bureau of Investigation within 30 days following their reporting date and appropriate screening by the Deserter Information Point concerned.
(10) Orders affecting members of the IRR that involve active duty for training required by the terms of their enlistment or service agreement may be handled by mail in the manner prescribed in paragraph (a)(9)(i) of this section.
(11) Each member of the IRR must keep the organization of assignment informed of:
(i) His/her accurate and current mailing address;
(ii) Any change of address, marital status, number of dependents, and civilian employment; and
(iii) Any change in physical condition that would prevent the member from meeting the physical or mental standards prescribed by 10 U.S.C. 652 and part 44 of this title.
(12) Individuals involuntarily ordered to active duty or active duty for training under provisions of this part may be delayed as prescribed by the Secretary of the Military Department concerned.
(13) Individuals whose involuntary order to active duty would result in extreme community or personal hardship may, upon their request, be transferred to the Standby Reserve, the Retired Reserve, or discharged, as appropriate, in accordance with 10 U.S.C. 673a(c) and part 44 of this title.
(b) Exceptions. As exceptions to the criteria in paragraph (a) of this section, members of the Ready Reserve who do not or are unable to participate for any of the following reasons shall be processed as indicated:
(1) Members of the Selected Reserve who are unable to participate in a unit of the Selected Reserve by reason of an action taken by the Military Department concerned, such as unit inactivation or relocation, to the effect that they now reside beyond a reasonable commuting distance (as defined in § 100.6(e)) of a Reserve unit, shall be assigned to the IRR until they are able to join or be assigned to another unit, or complete their statutory military service obligation.
(2) Members of the Selected Reserve who change their residence:
(i) May lose their unit position. However, they will be transferred to another paid-drill unit with the same Reserve component if possible or be given 90 days after departing from their original unit to locate and join another unit. At the new unit, they will fill an existing vacancy or be assigned as a temporary overstrength within the congressionally authorized standard-years (defined in § 100.6(f)) or funds under paragraph (b)(2)(iii) (A) and (B) of this section.
(ii) May locate position vacancies that require different specialties than the ones they now possess. Therefore, the Secretary of the Military Department concerned may provide for the retaining of these individuals (with their consent) by ordering them to active duty for training to acquire the necessary specialties.
(iii) Must be accepted in a Reserve unit by their parent Military Department regardless of vacancies, subject to the following conditions:
(A) The losing unit certifies that the reservist's performance of service has been satisfactory.
(B) The reservist's specialty is usable in the unit, the member can be retrained by on-the-job training, or the member is willing to be retrained as outlined in paragraph (b)(2)(ii) of this section.
(iv) Are authorized to transfer to another Reserve component under the provisions of DoD Directive 1205.51, “Transfer of Persons Between Reserve Components of the Armed Forces,” June 25, 1959, when the conditions outlined in paragraph (b)(2)(iii) apply.
(3) If members of the Selected Reserve who change their residents fail to join another unit within a period of 90 days, and at least 1 unit of their component is within a reasonable commuting distance, as such distance is defined in § 100.6(e) they shall be processed in accordance with § 100.5(a) unless they are considered eligible to be handled as “exceptions” under policies outlined in paragraph (b) (5) through (8) of this section.
(4) If members of the Selected Reserve who change their residences locate in an area where they reside beyond a reasonable commuting distance, as such distance is defined in § 100.6(e) of a paid-drill unit of the same Reserve component, they shall be assigned to the IRR of their service until they are able to transfer to a paid-drill unit of another Reserve component; or complete their statutory military service obligation.
(5) Members of the Ready Reserve who are preparing for, or are engaged in, critical civilian occupations will be screened in accordance with 32 CFR part 44.
(6) Individuals who are preparing for the ministry in a recognized theological or divinity school may participate voluntarily in the Ready Reserve. However, under 10 U.S.C. 685, such individuals may not be required to do so. Members who do not wish to participate shall be transferred to the Standby Reserve. If such training is terminated before graduation, the member may be transferred back to the Ready Reserve. A member eligible for assignment to the Standby Reserve under the provisions of 10 U.S.C. 268(b), 270, 510, 511, 593, 597, 651, 652, 672, 673, 673a, 673b, 685, and 1163 who voluntarily remains assigned to the Selected Reserve and participates in the training required, waives any right to request delay to exemption from any later mobilization on the basis of preparation for the ministry.
(7) Individuals who are enrolled in a course of graduate study in one of the health professions shall be screened in accordance with DoD Directive 1200.141, “Reservists Who Are Engaged in Graduate Study or Training in Certain Health Progressions,” July 30, 1969.
(8) Individuals who incur a bona fide, temporary nonmilitary obligation requiring overseas residency outside the United States, or religious missionary obligation shall be processed in accordance with 32 CFR art 103.
(9) Nothing in this part shall be construed as limiting the right of the individual to voluntarily request transfer to the Standby Reserve or to the Retired Reserve, or discharge from the Reserve components when such action is authorized by regulations of the Military Department concerned.
(10) Nothing in this part shall be construed as precluding action against a member of the Ready Reserve, either by court-martial or review by a board of officers convened by an authority designated by the Secretary of the Military Department concerned, when such action might otherwise be warranted under 10 U.S.C. 268(b), 270, 510, 511, 593, 597, 651, 652, 672, 673, 673a, 673b, 685, and 1163 and the regulations of the Military Department concerned.
§ 100.6
Definitions.
(a) Ready Reserve. Consists of the Selected Reserve and the Individual Ready Reserve. Members of both are subject to active duty as outlined in 10 U.S.C. 672 and 673.
(b) Selected Reserve. Members of the Ready Reserve in training/pay categories A, B, C, F, M and P. These reservists are either members of units who participate regularly in drills and annual active duty for training, in annual field training in the case of the National Guard, or are on initial active duty for training; or they are individuals who participate in regular drills and annual active duty on the same basis as members of Reserve component units. Excluded from the Selected Reserve are Reserve component members who are:
(1) Participating in annual active duty for training and not paid for attendance at regular drills (pay categories D and E), or awaiting, in a nonpay status, their initial active duty for training (pay category L).
(2) Enrolled in officer training program (pay category J) members of the Individual Ready Reserve pool (pay category H), and reservists on extended active duty. (See 10 U.S.C. 268(b) 32 CFR part 102.)
(3) Members of the Inactive Army National Guard.
(c) Individual Ready Reserve (IRR). Members of the Ready Reserve not assigned to the Selected Reserve and not on active duty.
(d) Unsatisfactory participation. A member of the Ready Reserve who fails to fulfill his/her obligation or agreement as a member of a unit of the Ready Reserve described in 10 U.S.C. 268(b), 270, 510, 511, 593, 597, 651, 652, 672, 673, 673a, 673b, 685, and 1163. Or a member who fails to meet the standards as prescribed by the Military Departments concerned for attendance at training drills, attendance at active duty for training, training advancement, or performance of duty.
(e) Reasonable commuting distance. The maximum distance a member of a Reserve component may travel involuntarily between residence and drill training site, in accordance with § 100.5(b)(1). This distance may be within:
(1) A 100-mile radius of the drill site that does not exceed a distance that can be traveled by automobile under average conditions of traffic, weather, and roads within 3 hours. This applies only to those units that normally conduct four drills on 2 consecutive days during the training year, if Government meals and quarters are provided at the base where the unit drills. (The provisions of this paragraph shall apply only to those individuals enlisting, reenlisting, or extending their enlistments after November 1, 1972.)
(2) A 50-mile radius of the drill site that does not exceed a distance that can be traveled by automobile under average conditions of traffic, weather, and roads within a period of 11/2 hours.
(f) Standard-year. Personnel authorizations that describe the amount of work expected of one individual during a calendar or fiscal year.
(g) Tentative characterization of service. An interim description of the quality of performance during a period which is less than the time required to earn an administrative discharge. The quality of performance shall be described as honorable, under honorable conditions, or under other than honorable conditions. If the quality is described as under honorable conditions a General Discharge certificate shall be provided upon discharge. If the quality is described as under other than honorable conditions a Discharge Under Other Than Honorable Conditions certificate shall be provided upon discharge.
[44 FR 51568, Sept. 4, 1979, as amended at 45 FR 48618, July 21, 1980]
Pt. 100, Encl.

Enclosure—Suggested Format, Affidavit of Service by Mail
State of _____
County of _____
_____ (Name of individuals who mailed orders), being duly sworn, deposes and says:
I am the _____ (Job Title, e.g., Personnel Officer) of _____ (Unit) on the ___ day of ________ 19__, I mailed the original orders, a true copy of which is attached hereto, by Certified Mail (Return Receipt Requested) to _____ (Name and address of member of orders) that being the last known address given to _____ (Unit) as the one at which official mail would be received by or forwarded to the Reserve component member by depositing same in an official depository of the U.S. Postal Service at _____ (Location of Postal Facility) in a securely wrapped and sealed U.S. Government official postal envelope with a Return Receipt Card (PS Form 3811) attached and the envelope addressed to the member at the address provided. A Receipt for Certified Mail (PS Form 3800) attesting to such action is attached.
_____ (Signature and Rank of Affiant)
Sworn and subscribed before me this ___ day of ____________ 19__.
_____ (Signature and Rank of Officer Administering Oath)
Pt. 101

PART 101—PARTICIPATION IN RESERVE TRAINING PROGRAMS
Sec.
101.1
Reissuance and purpose.
101.2
Applicability.
101.3
Definitions.
101.4
Responsibilities.
101.5
Requirements.
101.6
Criteria for satisfactory performance.
101.7
Compliance measures.
101.8
Reserve training in sovereign foreign nations.

Authority:
10 U.S.C. 270 (a), (b), (c), 511 (b), (d), and 673a, and 32 U.S.C. 502(a).

Source:
44 FR 53160, Sept. 13, 1979, unless otherwise noted.
§ 101.1
Reissuance and purpose.
This part establishes: (a) The criteria and training requirements for satisfactory participation by members of the Reserve components of the U.S. Armed Forces who are subject to the provisions of 10 U.S.C. and 32 U.S.C., and (b) uniform DoD policy for training members of such Reserve components who may be temporarily residing in sovereign foreign nations.
§ 101.2
Applicability.
The provisions of this part apply to the Office of the Secretary of Defense and the Military Departments.
§ 101.3
Definitions.
For the purposes of administering 10 U.S.C. 270(a), the terms enlisted and appointed refer to initial entry into an armed force through enlistment or appointment.
§ 101.4
Responsibilities.
The Secretaries of the Military Departments will issue regulations prescribing criteria and training requirements for satisfactory participation in Reserve training programs by members of Reserve components of the U.S. Armed Forces and exceptions thereto, consistent with § 101.5.
§ 101.5
Requirements.
(a) Reserve participation—(1) Training requirements under 10 U.S.C. 270(a). (i) Each individual inducted, enlisted, or appointed in the U.S. Armed Forces after August 9, 1955, who becomes a member of the Ready Reserve (by means other than through membership in the Army National Guard of the United States (see § 101.5(a)(2)) during the required statutory period in the Ready Reserve, participate or serve as follows, except as provided in 32 CFR part 102.
(A) In at least 48 scheduled drills or training periods and not less than 14 days (exclusive of travel time) of active duty training during each year; or
(B) On active duty for training for no more than 30 days each year, unless otherwise specifically prescribed by the Secretary of Defense.
(ii) The provisions of § 101.5(a)(1) do not apply to graduates of the Federal and State Maritime Academies who are commissioned in the Naval Reserve.
(2) Training requirements under 32 U.S.C. 502(a) apply to the Secretaries of the Army and Air Force only. Members of the Army and Air National Guard shall:
(i) Assemble for drill and instruction at least 48 times a year, and
(ii) Participate in training encampments, maneuvers, or other exercises at least 15 days a year, unless excused by the Secretaries of the Army or Air Force.
(3) Active duty. Enlisted members who have served 2 years on active duty or who, under the policy and regulations of the Military Services concerned, were credited with having served 2 years of active duty will not be required to perform duty as described in paragraph (a)(1)(i) (A) and (B) of this section unless such members:
(i) Enlisted under the provisions of 10 U.S.C. 511(b) or (d) thereby incurring a statutory obligation to participate in the Ready Reserve in an active training status for a specified period of time after the 2 years of active duty described above.
(ii) Performed part or all of their 2 years of active duty as a result of being ordered to active duty under 10 U.S.C. 673a for not participating satisfactorily in a unit of the Ready Reserve. However, the Secretary concerned, or designee, may waive this requirement in those cases where involuntary retention would not be in the best interest of the Service.
(iii) Filled a vacancy in the Selected Reserve that otherwise cannot be filled, following a diligent recruiting effort by the Secretary concerned.
(iv) Executed a separate written agreement incurring an obligation to participate in the Selected Reserve.
(4) Active duty served in a combat zone. (i) Except as specified in paragraph (a)(4)(ii), enlisted members who (A) have served on active duty in a combat zone for hostile fire pay (or other areas as prescribed by the Secretary of Defense) for a total of 30 days or more, or (B) are wounded while on active duty in hostile areas, will not be required to perform duty involuntarily (as described paragraph (a) (1)(i)(A) and (2) of this section. However, these members may be required to participate or serve on active duty for no more than 30 days each year, unless otherwise specifically prescribed by the Secretary of Defense.
(ii) Members, who enlisted under the provisions of 10 U.S.C. 511(b) or (d) and serve on active duty described in paragraph (a)(4)(i) are obligated to participate in the Ready Reserve in an active duty training status during the statutory period of service in the Ready Reserve.
(5) Exclusion. Notwithstanding the exclusion of the member enlisted under the provisions of 10 U.S.C. 511(b) or (d), from the policies set forth in paragraph (a) (3) and (4) of this section, the Secretaries of the Military Departments may, with the approval of the Secretary of Defense, establish criteria which may excuse certain enlistees from performing the duty described in § 101.5(a), depending upon the particular needs of the Military Department concerned.
§ 101.6
Criteria for satisfactory performance.
Within the general policy outlined in § 101.5(a), the minimum amount of annual training prescribed by the Secretaries of the Military Departments concerned will be no less than the training required to maintain the proficiency of the unit and the skill of the individual. In establishing annual training requirements under this policy, the Secretaries:
(a) May grant exceptions under circumstances outlined below for individuals who are subject to the training requirements set forth in § 101.5(a)(1) and (2):
(1) To the degree that it is consistent with military requirements, the personal circumstances of an individual may be considered in assigning him/her to a training category prescribed in 32 CFR part 102, except as otherwise provided by 32 CFR part 100.
(2) Members who have performed a minimum initial tour of extended active duty, as prescribed by the Military Departments concerned may be placed in Category I (no training) as defined in 32 CFR part 102, when the Secretary of the Military Department concerned determines that no training for mobilization requirement exists because of
(i) Changes in military skills required;
(ii) The degree of military skill held; or
(iii) Compatibility of the member's civilian occupation with his/her military skill.
(b) May grant exceptions regarding absences after considering the member's manner of performance of prescribed training duty under the provisions of § 101.5(a)(1) and provided that the absences not so excepted do not exceed 10% of scheduled drills or training periods.
(c) Shall require members to: (1) Meet the standards of satisfactory performance of training duty set forth in § 101.6(b); or (2) participate satisfactorily in an officer training program. The placement of such members in the Standby Reserve as a result of the screening process prescribed in 32 CFR part 44, will continue to constitute satisfactory performance of service.
§ 101.7
Compliance measures.
Under the provisions of 32 CFR part 100, members of the Ready Reserve who fail to meet the criteria for satisfactory performance, as set forth in § 101.6, may be:
(a) Ordered to active duty; or
(b) Ordered to active duty for training; or
(c) Transferred to, or retained in the Individual Ready Reserve with a tentative characterization of service, normally under other than honorable conditions; or
(d) Discharged for unsatisfactory participation under the provisions of 32 CFR part 41, when the Military Department concerned has determined that the individual has no potential for useful service under conditions of full mobilization.
§ 101.8
Reserve training in sovereign foreign nations.
(a) The Secretaries of the Military Departments may authorize the conduct of scheduled drills or training periods, correspondence courses, and such other active or inactive duty training as they consider appropriate for members of the Reserve components who may be temporarily residing in sovereign foreign nations which permit the United States to maintain troops of the Active Forces (other than Military Advisory Assistance Group or attached personnel) within their boundaries.
(b) Prior to authorizing such training, the Secretaries of the Military Departments will instruct the attaches representing their respective Departments to inform the U.S. Ambassador and the appropriate officials of the foreign government of the intent to conduct such training. If the foreign government objects, the Secretaries of the Military Departments will furnish all the facts and their recommendations to the Secretary of Defense.
(c) This policy does not prohibit the conduct of inactive duty training, such as correspondence courses, in those sovereign foreign countries in which the United States does not maintain Active Forces and where an agreement exists between the United States and the sovereign foreign nation concerned for the conduct of such training.
(d) This policy does not prohibit for a limited duration the augmentation of Defense Attache Offices by attache reservists (mobilization augmentees or mobilization designees) during periods of local emergencies or for short-term (less than 30 days) training periods, provided the provisions of paragraph (b) of this section are respected. Attache reservists who are available, possess the expertise required, and reside temporarily in foreign countries, shall be utilized to the maximum extent to augment Defense Attache Offices before the continental United States-based attache reservists are utilized.
Pt. 103

PART 103—SEXUAL ASSAULT PREVENTION AND RESPONSE (SAPR) PROGRAM
Sec.
103.1
Purpose.
103.2
Applicability.
103.3
Definitions.
103.4
Policy.
103.5
Responsibilities.

Authority:
10 U.S.C. 113; and Public Laws 109-364, 109-163, 108-375, 106-65, 110-417, and 111-84.

Source:
77 FR 4241, Jan. 27, 2012, unless otherwise noted.
§ 103.1
Purpose.
(a) This part reissues DoDD 6495.01, pursuant to section 113 of Title 10, U.S.C., to implement DoD policy and assign responsibilities for the SAPR Program on prevention, response, and oversight to sexual assault according to the guidance in:
(1) This part;
(2) DoDD 6495.01, “Sexual Assault Prevention and Response (SAPR) Program,” October 6, 2005 (hereby cancelled);
(3) Sections 101(d)(3) and 113, chapter 47,^1 and chapter 80 of title 10, U.S.C.;
^1 Also known as “The Uniform Code of Military Justice.”
(4) DoDI 6495.02, “Sexual Assault Prevention and Response Program Procedures,” November 13, 2008;
(5) DoDD 6400.1, “Family Advocacy Program (FAP),” August 23, 2004;
(6) DoDI 6400.06, “Domestic Abuse Involving DoD Military and Certain Affiliated Personnel,” August 21, 2007, or the most recent edition;
(7) U.S. Department of Defense, “Manual for Courts-Martial,” 2008;
(8) DoDD 7050.06, “Military Whistleblower Protection,” July 2007;
(9) U.S. Department of Justice, Office on Violence Against Women, “A National Protocol for Sexual Assault Medical Forensic Examinations, Adults/Adolescents,” September 2004, or the most recent edition;
(10) DoDD 5400.11, “DoD Privacy Program,” May 8, 2007;
(11) DoD 6025.18-R, “DoD Health Information Privacy Regulation,” January 24, 2003;
(12) DoD 8910.1-M, “DoD Procedures for Management of Information Requirements,” June 30, 1998;
(13) DoDD 5124.02, “Under Secretary of Defense for Personnel and Readiness (USD(P&R)),” June 23, 2008;
(14) U.S. Department of Defense paper, “The Department of Defense Sexual Assault Prevention Strategy,” September 30, 2008;
(15) Section 577 of Public Law 108-375, “Ronald Reagan National Defense Authorization Act for Fiscal Year 2005,” October 28, 2004;
(16) Sections 561, 562, and 563 of Public Law 110-417, “The Duncan Hunter National Defense Authorization Act for Fiscal Year 2009,” October 14, 2008;
(17) Section 567(c) of Public Law 111-84, “The National Defense Authorization Act for Fiscal Year 2010,” October 28, 2009;
(18) Joint Publication 1-02, “Department of Defense Dictionary of Military and Associated Terms,” current edition; and
(19) DoD Instruction 3020.41, “Contractor Personnel Authorized to Accompany the U.S. Armed Forces.” October 3, 2005.
(b) [Reserved]
§ 103.2
Applicability.
This part applies to:
(a) OSD, the Military Departments, the Office of the Chairman of the Joint Chiefs of Staff and the Joint Staff, the Combatant Commands, the IG, DoD, the Defense Agencies, the DoD Field Activities, and all other organizational entities within the DoD (hereafter referred to collectively as the “DoD Components”).
(b) National Guard, and Reserve Component members who are sexually assaulted when performing active service, as defined in section 101(d)(3) of Title 10, U.S.C., and inactive duty training. Refer to DoDI 6495.02 for additional SAPR and medical services provided to such personnel and eligibility criteria for Restricted Reporting.
(c) Military dependents 18 years of age and older, who are eligible for treatment in the military healthcare system, at installations in the continental United States (CONUS) and outside of the continental United States (OCONUS), and who were victims of sexual assault perpetrated by someone other than a spouse or intimate partner. (The FAP, pursuant to DoDD 6400.1, covers adult military dependent sexual assault victims who are assaulted by a spouse or intimate partner and military dependent sexual assault victims who are 17 years of age and younger.) The FAP Program provides the full range of services provided to victims of domestic violence to victims who are sexually assaulted, in violation of Articles 120 (Rape and Sexual Assault) and 125 (Sodomy), UCMJ, by someone with whom they have an intimate partner relationship.
(d) The following non-military personnel, who are only eligible for limited medical services in the form of emergency care (see § 103.3 of this part), unless otherwise eligible to receive treatment in a military medical treatment facility. They will also be offered the limited SAPR services of a SARC and a SAPR VA while undergoing emergency care OCONUS. Refer to DoDI 6495.02 for any additional SAPR and medical services provided. These limited medical and SAPR services shall be provided to:
(1) DoD civilian employees and their family dependents 18 years of age and older when they are stationed or performing duties OCONUS and eligible for treatment in the military healthcare system at military installations or facilities OCONUS. Refer to DoDI 6495.02 for reporting options available to DoD civilians and their family dependents 18 years of age and older; and
(2) U.S. citizen DoD contractor personnel when they are authorized to accompany the Armed Forces in a contingency operation OCONUS and their U.S. citizen employees per DoDI 3020.41. Refer to DoDI 6495.02 for reporting options available to DoD contractors.
(e) Service members who are on active duty but were victims of sexual assault prior to enlistment or commissioning. They are eligible to receive SAPR services and either reporting option. The focus of this part and DoDI 6495.02 is on the victim of sexual assault. The DoD shall provide support to an active duty Service member regardless of when or where the sexual assault took place.
(f) Supersedes all policy and regulatory guidance within the DoD not expressly mandated by law that is inconsistent with its provisions, or that would preclude execution.
§ 103.3
Definitions.
Unless otherwise noted, these terms and their definitions are for the purpose of this part.
Confidential communication. Oral, written, or electronic communications of personally identifiable information concerning a sexual assault victim and the sexual assault incident provided by the victim to the SARC, SAPR VA, or healthcare personnel in a Restricted Report. This confidential communication includes the victim's sexual assault forensic examination (SAFE) Kit and its information. See http://www.archives.gov/cui.
Consent. Words or overt acts indicating a freely given agreement to the sexual conduct at issue by a competent person. An expression of lack of consent through words or conduct means there is no consent. Lack of verbal or physical resistance or submission resulting from the accused's use of force, threat of force, or placing another person in fear does not constitute consent. A current or previous dating relationship or the manner of dress of the person involved with the accused in the sexual conduct at issue shall not constitute consent. There is no consent where the person is sleeping or incapacitated, such as due to age, alcohol or drugs, or mental incapacity.
Crisis intervention. Emergency non-clinical care aimed at assisting victims in alleviating potential negative consequences by providing safety assessments and connecting victims to needed resources. Either the SARC or SAPR VA will intervene as quickly as possible to assess the victim's safety and determine the needs of victims and connect them to appropriate referrals, as needed.
Culturally-competent care. Care that provides culturally and linguistically appropriate services.
DSAID. A DoD database that captures uniform data provided by the Military Services and maintains all sexual assault data collected by the Military Services. This database shall be a centralized, case-level database for the uniform collection of data regarding incidence of sexual assaults involving persons covered by this part and DoDI 6495.02. DSAID will include information when available, or when not limited by Restricted Reporting, or otherwise prohibited by law, about the nature of the assault, the victim, the offender, and the disposition of reports associated with the assault. DSAID shall be available to the Sexual Assault and Response Office and the DoD to develop and implement congressional reporting requirements. Unless authorized by law, or needed for internal DoD review or analysis, disclosure of data stored in DSAID will only be granted when disclosure is ordered by a military, Federal, or State judge or other officials or entities as required by a law or applicable U.S. international agreement. This term and its definition are proposed for inclusion in the next edition of Joint Publication 1-02.
Emergency. A situation that requires immediate intervention to prevent the loss of life, limb, sight, or body tissue to prevent undue suffering. Regardless of appearance, a sexual assault victim needs immediate medical intervention to prevent loss of life or undue suffering resulting from physical injuries internal or external, sexually transmitted infections, pregnancy, or psychological distress. Sexual assault victims shall be given priority as emergency cases regardless of evidence of physical injury.
Emergency care. Emergency medical care includes physical and emergency psychological medical services and a SAFE consistent with the U.S. Department of Justice, Office on Violence Against Women Protocol.
Gender-responsive care. Care the acknowledges and is sensitive to gender differences and gender-specific issues.
Healthcare personnel. Persons assisting or otherwise supporting healthcare providers in providing healthcare services (e.g., administrative personnel assigned to a military medical treatment facility, or mental healthcare personnel). Healthcare personnel also includes all healthcare providers.
Military Services. The term, as used in the SAPR Program, includes Army, Air Force, Navy, Marines, Reserve Components, and their respective Military Academies.
Non-identifiable personal information. Non-identifiable personal information includes those facts and circumstances surrounding the sexual assault incident or that information about the individual that enables the identity of the individual to remain anonymous. In contrast, personal identifiable information is information belonging to the victim and alleged assailant of a sexual assault that would disclose or have a tendency to disclose the person's identity.
Official investigative process. The formal process a commander or law enforcement organization uses to gather evidence and examine the circumstances surrounding a report of sexual assault.
Personal identifiable information. Includes the person's name, other particularly identifying descriptions (e.g., physical characteristics or identity by position, rank, or organization), or other information about the person or the facts and circumstances involved that could reasonably be understood to identify the person (e.g., a female in a particular squadron or barracks when there is only one female assigned).
Qualifying conviction. A State or Federal conviction, or a finding of guilty in a juvenile adjudication, for a felony crime of sexual assault and any general or special court-martial conviction for a Uniform Code of Military Justice (UCMJ) offense, which otherwise meets the elements of a crime of sexual assault, even though not classified as a felony or misdemeanor within the UCMJ. In addition, any offense that requires registration as a sex offender is a qualifying conviction.
Recovery-oriented care. Focus on the victim and on doing what is necessary and appropriate to support victim recovery, and also, if a Service member, to support that Service member to be fully mission capable and engaged.
Restricted reporting. Reporting option that allows sexual assault victims to confidentially disclose the assault to specified individuals (i.e., SARC, SAPR VA, or healthcare personnel), in accordance with “Victim Centered Care” of U.S. Department of Justice, Office on Violence Against Women, “A National Protocol for Sexual Assault Medical Forensic Examinations, Adults/Adolescents” and receive medical treatment, including emergency care, counseling, and assignment of a SARC and SAPR VA, without triggering an official investigation. The victim's report provided to healthcare personnel (including the information acquired from a SAFE Kit), SARCs, or SAPR VAs will not be reported to law enforcement or to the command to initiate the official investigative process unless the victim consents or an established exception applies in accordance with DoDI 6495.02. The Restricted Reporting Program applies to Service Members and their military dependents 18 years of age and older. For additional persons who may be entitled to Restricted Reporting, see eligibility criteria in DoDI 6495.02. Only a SARC, SAPR VA, or healthcare personnel may receive a Restricted Report, previously referred to as Confidential Reporting. This term and its definition are proposed for inclusion in the next edition of Joint Publication 1-02.
SAFE Kit. The medical and forensic examination of a sexual assault victim under circumstances and controlled procedures to ensure the physical examination process and the collection, handling, analysis, testing, and safekeeping of any bodily specimens and evidence meet the requirements necessary for use as evidence in criminal proceedings. The victim's SAFE Kit is treated as a confidential communication when conducted as part of a Restricted Report. This term and its definition are proposed for inclusion in the next edition of Joint Publication 1-02.
SAPRO. Serves as DoD's single point of authority, accountability, and oversight for the SAPR program, except for legal processes and criminal investigative matters that are the responsibility of the Judge Advocates General of the Military Departments and the IG respectively. This term and its definition are proposed for inclusion in the next edition of Joint Publication 1-02.
SAPR Program. A DoD program for the Military Departments and the DoD Components that establishes SAPR policies to be implemented worldwide. The program objective is an environment and military community intolerant of sexual assault. This term and its definition are proposed for inclusion in the next edition of Joint Publication 1-02.
SAPR VA. A person who, as a victim advocate, shall provide non-clinical crisis intervention, referral, and ongoing non-clinical support to adult sexual assault victims. Support will include providing information on available options and resources to victims. The SAPR VA, on behalf of the sexual assault victim, provides liaison assistance with other organizations and agencies on victim care matters and reports directly to the SARC when performing victim advocacy duties. Personnel who are interested in serving as a SAPR VA are encouraged to volunteer for this duty assignment. This term and its definition are proposed for inclusion in the next edition of Joint Publication 1-02.
SARC. The single point of contact at an installation or within a geographic area who oversees sexual assault awareness, prevention, and response training; coordinates medical treatment, including emergency care, for victims of sexual assault; and tracks the services provided to a victim of sexual assault from the initial report through final disposition and resolution. This term and its definition are proposed for inclusion in the next edition of Joint Publication 1-02.
Senior commander. An officer, usually in the grade of O-6 or higher, who is the commander of a military installation or comparable unit and has been designated by the Military Service concerned to oversee the SAPR Program.
Service member. An active duty member of a Military Service. In addition, National Guard and Reserve Component members who are sexually assaulted when performing active service, as defined in section 101(d)(3) of Title 10, U.S.C., and inactive duty training.
Sexual assault. Intentional sexual contact characterized by use of force, threats, intimidation, or abuse of authority or when the victim does not or cannot consent. Sexual assault includes rape, forcible sodomy (oral or anal sex), and other unwanted sexual contact that is aggravated, abusive, or wrongful (including unwanted and inappropriate sexual contact), or attempts to commit these acts.
Unrestricted reporting. A process that an individual covered by this policy uses to disclose, without requesting confidentiality or Restricted Reporting, that he or she is the victim of a sexual assault. Under these circumstances, the victim's report provided to healthcare personnel, the SARC, a SAPR VA, command authorities, or other persons is reported to law enforcement and may be used to initiate the official investigative process. Additional policy and guidance are provided in DoDI 6495.02. This term and its definition are proposed for inclusion in the next edition of Joint Publication 1-02.
Victim. A person who asserts direct physical, emotional, or pecuniary harm as a result of the commission of a sexual assault. The term encompasses all persons 18 and over eligible to receive treatment in military medical treatment facilities; however, the Restricted Reporting Program applies to Service Members and their military dependents 18 years of age and older. For additional persons who may be entitled to Restricted Reporting, see eligibility criteria in DoDI 6495.02.
§ 103.4
Policy.
It is DoD policy that:
(a) This part and DoDI 6495.02 implement the DoD SAPR policy.
(b) The DoD goal is a culture free of sexual assault by providing an environment of prevention, education and training, response capability (defined in DoDI 6495.02), victim support, reporting procedures, and accountability that enhances the safety and well being of all persons covered by this part and DoDI 6495.02.
(c) The SAPR Program shall:
(1) Focus on the victim and on doing what is necessary and appropriate to support victim recovery, and also, if a Service member, to support that Service member to be fully mission capable and engaged. The SAPR Program shall provide care that is gender-responsive, culturally-competent, and recovery-oriented. (See § 103.3 of this part)
(2) Not provide policy for legal processes within the responsibility of the Judge Advocates General of the Military Departments provided in Chapter 47 of Title 10, U.S.C. (also known as and hereafter referred to as “UCMJ”) and the Manual for Court's-Martial or for criminal investigative matters assigned to the Judge Advocates General of the Military Departments and IG, DoD.
(d) Standardized SAPR requirements, terminology, guidelines, protocols, and guidelines for instructional materials shall focus on awareness, prevention, and response at all levels as appropriate.
(e) The terms “Sexual Assault Response Coordinator (SARC)” and “SAPR Victim Advocate (VA),” as defined in this part and the DoDI 6495.02, shall be used as standard terms throughout the DoD to facilitate communications and transparency regarding SAPR capacity. For further information regarding SARC and SAPR VA roles and responsibilities, see DoDI 6495.02.
(1) SARC. The SARC shall serve as the single point of contact for coordinating appropriate and responsive care for sexual assault victims. SARCs shall coordinate sexual assault victim care and sexual assault response when a sexual assault is reported. The SARC shall supervise SAPR VAs, but may be called on to perform victim advocacy duties.
(2) SAPR VA. The SAPR VA shall provide non-clinical crisis intervention and on-going support, in addition to referrals for adult sexual assault victims. Support will include providing information on available options and resources to victims.
(f) Command sexual assault awareness and prevention programs, as well as law enforcement and criminal justice procedures that enable persons to be held accountable for their actions, as appropriate, shall be established and supported by all commanders.
(g) An immediate, trained sexual assault response capability (defined in DoDI 6495.02) shall be available for each report of sexual assault in all locations, including in deployed locations. The response time may be affected by operational necessities, but will reflect that sexual assault victims shall be treated as emergency cases.
(h) Victims of sexual assault shall be protected from coercion, retaliation, and reprisal in accordance with DoDD 7050.06.
(i) Victims of sexual assault shall be protected, treated with dignity and respect, and shall receive timely access to comprehensive medical treatment, including emergency care treatment and services, as described in this part and DoDI 6495.02.
(j) Emergency care shall consist of emergency medical care and the offer of a SAFE consistent with the “A National Protocol for Sexual Assault Medical Forensic Examinations, Adults/Adolescents” and refer to DD Form 2911, “DoD Sexual Assault Medical Forensic Examination Report” and accompanying instructions. The victim shall be advised that even if a SAFE is declined, the victim is encouraged (but not mandated) to receive medical care, psychological care, and victim advocacy.
(1) Sexual assault patients shall be given priority, so that they shall be treated as emergency cases. A sexual assault victim needs immediate medical intervention to prevent loss of life or suffering resulting from physical injuries (internal or external), sexually transmitted infections, pregnancy, and psychological distress. Individuals disclosing a recent sexual assault shall, with their consent, be quickly transported to the exam site, promptly evaluated, treated for serious injuries, and then, with the patient's consent, undergo a SAFE, pursuant to “Victim Centered Care” of “A National Protocol for Sexual Assault Medical Forensic Examinations, Adults/Adolescents” and refer to DD Form 2911 and accompanying instructions.
(2) Sexual assault patients shall be treated as emergency cases, regardless of whether physical injuries are evident. Patients' needs shall be assessed for immediate medical or mental health intervention pursuant to “Victim Centered Care,” and “Triage and Intake” of “A National Protocol for Sexual Assault Medical Forensic Examinations, Adults/Adolescents.” Sexual assault victims shall be treated uniformly, consistent with “Victim Centered Care” of “A National Protocol for Sexual Assault Medical Forensic Examinations, Adults/Adolescents” and DD Form 2911 and accompanying instructions, regardless of their behavior because when severely traumatized, sexual assault patients may appear to be calm, indifferent, submissive, jocular, angry, emotionally distraught, or even uncooperative or hostile towards those who are trying to help.
(k) Service members and their dependents who are 18 years of age or older covered by this part (see § 103.2(d)) and DoDI 6495.02 who are sexually assaulted have two reporting options: Unrestricted or Restricted Reporting. Complete, Unrestricted Reporting of sexual assault is favored by the DoD. See DoDI 6495.02 for additional information on the DoD sexual assault reporting options and exceptions as they apply to Restricted Reporting. Consult DoDD 5400.11 and DoD 6025.18-R for protections of personally identifiable information solicited, collected, maintained, accessed, used, disclosed, and disposed during the treatment and reporting processes. The two reporting options are as follows:
(1) Unrestricted Reporting allows an eligible person who is sexually assaulted to access medical treatment and counseling and request an official investigation of the allegation using existing reporting channels (e.g., chain of command, law enforcement, healthcare personnel, the SARC). When a sexual assault is reported through Unrestricted Reporting, a SARC shall be notified as soon as possible, respond, assign a SAPR VA, and offer the victim medical care and a SAFE.
(2) Restricted Reporting allows sexual assault victims (see eligibility criteria in § 103.2(c) of this part) to confidentially disclose the assault to specified individuals (i.e., SARC, SAPR VA, or healthcare personnel), in accordance with DoDD 5400.11, and receive medical treatment, including emergency care, counseling, and assignment of a SARC and SAPR VA, without triggering an official investigation. The victim's report to healthcare personnel (including the information acquired from a SAFE Kit), SARCs, or SAPR VAs will not be reported to law enforcement or to the victim's command, to initiate the official investigative process, unless the victim consents or an established exception applies in accordance with DoDI 6495.02. When a sexual assault is reported through Restricted Reporting, a SARC shall be notified as soon as possible, respond, assign a SAPR VA, and offer the victim medical care and a SAFE.
(i) Eligibility for Restricted Reporting. The Restricted Reporting Program applies to Service Members and their military dependents 18 years of age and older. For additional persons who may be entitled to Restricted Reporting, see eligibility criteria in DoDI 6495.02.
(ii) DoD Dual Objectives. The DoD is committed to ensuring victims of sexual assault are protected; treated with dignity and respect; and provided support, advocacy, and care. The DoD supports effective command awareness and preventive programs. The DoD also strongly supports applicable law enforcement and criminal justice procedures that enable persons to be held accountable for sexual assault offenses and criminal dispositions, as appropriate. To achieve these dual objectives, DoD preference is for complete Unrestricted Reporting of sexual assaults to allow for the provision of victims' services and to pursue accountability. However, Unrestricted Reporting may represent a barrier for victims to access services, when the victim desires no command or law enforcement involvement. Consequently, the Department recognizes a fundamental need to provide a confidential disclosure vehicle via the Restricted Reporting option.
(iii) Designated Personnel Authorized to Accept a Restricted Report. Only the SARC, SAPR VA, or healthcare personnel are designated as authorized to accept a Restricted Report.
(iv) SAFE Confidentiality Under Restricted Reporting. A SAFE and its information shall be afforded the same confidentiality as is afforded victim statements under the Restricted Reporting option. See DoDI 6495.02 for additional information.
(v) Disclosure of Confidential Communications. In cases where a victim elects Restricted Reporting, the SARC, assigned SAPR VA, and healthcare personnel may not disclose confidential communications or SAFE Kit information to law enforcement or command authorities, either within or outside the DoD, except as provided in DoDI 6495.02. In certain situations when information about a sexual assault comes to the commander's or law enforcement official's attention from a source independent of the Restricted Reporting avenues and an independent investigation is initiated, a SARC, SAPR VA, or healthcare personnel may not disclose confidential communications if obtained under Restricted Reporting (see exceptions to Restricted Reporting in DoDI 6495.02). Improper disclosure of confidential communications under Restricted Reporting, improper release of medical information, and other violations of this part are prohibited and may result in discipline pursuant to the UCMJ, or other adverse personnel or administrative actions.
(l) Enlistment or commissioning of personnel in the Military Services shall be prohibited and no waivers allowed when the person has a qualifying conviction (see § 103.3) for a crime of sexual assault.
(m) The focus of this part and DoDI 6495.02 is on the victim of sexual assault. The DoD shall provide support to an active duty Service member regardless of when or where the sexual assault took place.
§ 103.5
Responsibilities.
(a) In accordance with the authority in DoDD 5124.02, the USD(P&R) shall:
(1) Develop overall policy and provide oversight for the DoD SAPR Program, except legal processes in the UCMJ and criminal investigative matters assigned to the Judge Advocates General of the Military Departments and IG, DoD respectively.
(2) Develop strategic program guidance, joint planning objectives, standard terminology, and identify legislative changes needed to ensure the future availability of resources in support of DoD SAPR policies.
(3) Develop metrics to measure compliance and effectiveness of SAPR training, awareness, prevention, and response policies and programs. Analyze data and make recommendations regarding the SAPR policies and programs to the Secretaries of the Military Departments.
(4) Monitor compliance with this part and DoDI 6495.02, and coordinate with the Secretaries of the Military Departments regarding Service SAPR policies.
(5) Collaborate with Federal and State agencies that address SAPR issues and serve as liaison to them as appropriate. Strengthen collaboration on sexual assault policy matters with U.S. Department of Veterans Affairs on the issues of providing high quality and accessible health care and benefits to victims of sexual assault.
(6) Oversee the DoD SAPRO. Serving as the DoD single point of authority, accountability, and oversight for the SAPR program, SAPRO provides recommendations to the USD(P&R) on the issue of DoD sexual assault policy matters on prevention, response, and oversight. SAPRO is responsible for:
(i) Implementing and monitoring compliance with DoD sexual assault policy on prevention and response, except for legal processes in the UCMJ and Manual for Courts-Martial and criminal investigative matters assigned to the Judge Advocates General of the Military Departments and IG respectively.
(ii) Providing technical assistance to the Heads of the DoD Components in addressing matters concerning SAPR.
(iii) Acquiring quarterly and annual SAPR data from the Military Services, assembling annual congressional reports involving persons covered by this part and DoDI 6495.0, and consult with and relying on the Judge Advocates General of the Military Departments in questions concerning disposition results of sexual assault cases in their respective departments.
(iv) Establishing reporting categories and monitoring specific goals included in the annual SAPR assessments of each Military Service, in their respective departments.
(v) Overseeing the creation, implementation, maintenance, and function of DSAID, an integrated database that will meet congressional reporting requirements, support Service SAPR Program management, and inform DoD SAPRO oversight activities.
(b) The Assistant Secretary of Defense for Health Affairs (ASD(HA)), under the authority, direction, and control of the USD(P&R), shall advise the USD(P&R) on DoD sexual assault healthcare policies, clinical practice guidelines, related procedures, and standards governing DoD healthcare programs for victims of sexual assault. The ASD(HA) shall direct that all sexual assault patients be given priority, so that they shall be treated as emergency cases.
(c) The Director of the Defense Human Resources Activity (DoDHRA), under the authority, direction, and control of USD(P&R), shall provide operational support to the USD(P&R) as outlined in paragraph (a)(6) of this section.
(d) The General Counsel of the DoD (GC, DoD), shall provide advice and assistance on all legal matters, including the review and coordination of all proposed issuances and exceptions to policy and the review of all legislative proposals affecting mission and responsibilities of the DoD SAPRO.
(e) The IG, DoD, shall:
(1) Develop and oversee the promulgation of criminal investigative and law enforcement policy regarding sexual assault and establish guidelines for the collection and preservation of evidence with non-identifiable personal information on the victim, for the Restricted Reporting process, in coordination with the ASD(HA).
(2) Oversee criminal investigations of sexual assault conducted by the DoD Components.
(3) Collaborate with the DoD SAPRO on sexual assault matters.
(f) The Secretaries of the Military Departments shall:
(1) Establish departmental policies and procedures to implement the SAPR Program consistent with the provisions of this part and DoDI 6495.02, to include the Military Academies within their cognizance; monitor departmental compliance with this part and DoDI 6495.02.
(2) Coordinate all Military Service SAPR policy changes with the USD(P&R).
(3) In coordination with USD(P&R), implement recommendations regarding Military Service compliance and effectiveness of SAPR training, awareness, prevention, and response policies and programs.
(4) Align Service SAPR Strategic Plans with the DoD SAPR Strategic Plan.
(5) Align Service prevention strategy with the Spectrum of Prevention, consistent with the DoD Sexual Assault Prevention Strategy, which consists of six pillars:
(i) Influencing Policy
(ii) Changing Organizational Practices
(iii) Fostering Coalitions and Networks
(iv) Educating Providers
(v) Promoting Community Education
(vi) Strengthening Individual Knowledge and Skills
(6) Require commanders to ensure that medical treatment (including emergency care) and SAPR services are provided to victims of sexual assaults in a timely manner unless declined by the victim.
(7) Utilize the terms “Sexual Assault Response Coordinator (SARC)” and “SAPR Victim Advocate (VA),” as defined in this part and DoDI 6495.02, as standard terms to facilitate communications and transparency regarding sexual assault response capacity.
(8) Establish the position of the SARC to serve as the single point of contact for ensuring that sexual assault victims receive appropriate and responsive care. The SARC should be a Service member, DoD civilian employee, or National Guard technician.
(9) Provide program-appropriate resources to enable the Combatant Commanders to achieve compliance with the policies set forth in this part and DoDI 6495.02.
(10) Establish and codify Service SAPR Program support to Combatant Commands and Defense Agencies, either as a host activity or in a deployed environment.
(11) Provide SAPR Program and obligation data to the USD(P&R), as required.
(12) Submit quarterly reports to the USD(P&R) that include information regarding all sexual assaults reported during the quarter, until DSAID becomes fully operational for each individual Service. Require confirmation that a multi-disciplinary case management group tracks each open Unrestricted Report and that a multi-disciplinary case management group meetings are held monthly for reviewing all Unrestricted Reports of sexual assaults.
(13) Provide annual reports of sexual assaults involving persons covered by this part and DoDI 6495.02 to the DoD SAPRO for consolidation into the annual report to Congress in accordance with sections 577 of Public Law 108-375.
(14) Provide data connectivity, or other means, to authorized users to ensure all sexual assaults reported in theater and other joint environments are incorporated into the DSAID, or authorized interfacing systems for the documentation of reports of sexual assault, as required by section 563 of Public Law 110-417.
(15) Ensure that Service data systems used to report case-level sexual assault information into the DSAID are compliant with DoD data reporting requirements, pursuant to section 563 of Public Law 110-417.
(16) Require extensive, continuing in-depth SAPR training for DoD personnel and specialized SAPR training for commanders, senior enlisted leaders, SARCs, SAPR VAs, investigators, law enforcement officials, chaplains, healthcare personnel, and legal personnel in accordance with DoDI 6495.02.
(17) Oversee sexual assault training within the DoD law enforcement community.
(18) Direct that Service military criminal investigative organizations require their investigative units to communicate with their servicing SARC and participate with the multi-disciplinary Case Management Group convened by the SARC, in accordance with this part and DoDI 6495.02.
(19) Provide commanders with procedures that:
(i) Establish guidance for when a Military Protective Order (MPO) has been issued, that the Service member who is protected by the order is informed, in a timely manner, of the member's option to request transfer from the command to which that member is assigned in accordance with section 567(c) of Public Law 111-84.
(ii) Ensure that the appropriate civilian authorities shall be notified of the issuance of a military protective order (MPO) and of the individuals involved in the order, when an MPO has been issued against a Service member or when any individual addressed in the MPO does not reside on a military installation at any time when an MPO is in effect. An MPO issued by a military commander shall remain in effect until such time as the commander terminates the order or issues a replacement order. (See section 561 of Pub. L. 110-417.) The issuing commander also shall notify the appropriate civilian authorities of any change made in a protective order covered by Chapter 80 of Title 10, U.S.C., and the termination of the protective order.
(iii) Ensure that the person seeking the MPO shall be advised that the MPO is not enforceable by civilian authorities off base and that victims desiring protection off base are advised to seek a civilian protective order (see section 561 of 110-417 and section 567(c) of Pub. L. 111-84).
(g) The Chairman of the Joint Chiefs of Staff shall:
(1) Assess SAPR as part of the overall force planning function of any force deployment decision, and periodically reassess the SAPR posture of deployed forces.
(2) Monitor implementation of this part, DoDI 6495.02, and implementing instructions, including during military operations.
(3) Utilize the terms “Sexual Assault Response Coordinator (SARC)” and “SAPR Victim Advocate (VA),” as defined in this part and DoDI 6495.02, as standard terms to facilitate communications and transparency regarding sexual assault response capacity.
(4) Review relevant documents, including the Combatant Commanders' joint plans, operational plans, concept plans, and deployment orders, to ensure they identify and include SAPR Program requirements.
(h) The Commanders of the Combatant Commands, in coordination with the other Heads of the DoD Components and through the Chairman of the Joint Chiefs of Staff, shall:
(1) Establish policies and procedures to implement the SAPR Program and oversee compliance with this part and DoDI 6495.02 within their areas of responsibility and during military operations.
(2) Formally document agreements with installation host Service commanders, component theater commanders, or other heads of another agency or organization, for investigative, legal, medical, counseling, or other response support provided to incidents of sexual assault.
(3) Direct that relevant documents are drafted, including joint operational plans and deployment orders, that establish theater-level requirements for the prevention of and response to incidents of sexual assault that occur, to include during the time of military operations.
(4) Require that sexual assault response capability information be provided to all persons within their area of responsibility covered by this part and DoDI 6495.02, to include reporting options and SAPR services available at deployed locations and how to access these options.
(5) Ensure medical treatment (including emergency care) and SAPR services are provided to victims of sexual assaults in a timely manner unless declined by the victim.
(6) Direct subordinate commanders coordinate relationships and agreements for host or installation support at forward-deployed locations to ensure a sexual assault response capability is available to members of their command and persons covered by this part and DoDI 6495.02 as consistent with operational requirements.
(7) Direct that sexual assault incidents are given priority so that they shall be treated as emergency cases.
(8) Direct subordinate commanders provide all personnel with procedures to report sexual assaults.
(9) Require subordinate commanders at all levels to monitor the command climate with respect to SAPR, and take appropriate steps to address problems.
(10) Require that SAPR training for DoD personnel and specialized training for commanders, senior enlisted leaders, SARCs, SAPR VAs, investigators, law enforcement officials, chaplains, healthcare personnel, and legal personnel be conducted prior to deployment in accordance with DoDI 6495.02.
(11) Direct subordinate commanders to develop procedures that:
(i) Establish guidance for when an MPO has been issued, that the Service member who is protected by the order is informed, in a timely manner, of the member's option to request transfer from the command to which that member is assigned in accordance with section 567(c) of Public Law 111-84.
(ii) In OCONUS areas, if appropriate, direct that the appropriate civilian authorities be notified of the issuance of an MPO and of the individuals involved in an order when an MPO has been issued against a Service member or when any individual involved in the MPO does not reside on a military installation when an MPO is in effect. An MPO issued by a military commander shall remain in effect until such time as the commander terminates the order or issues a replacement order. (See section 561 of Pub. L. 110-417.) The issuing commander also shall notify the appropriate civilian authorities of any change made in a protective order covered by Chapter 80 of Title 10, U.S.C. and the termination of the protective order.
(iii) Ensure that the person seeking the MPO is advised that the MPO is not enforceable by civilian authorities off base and victims desiring protection off base should be advised to seek a civilian protective order in that jurisdiction pursuant to section 562 of Public Law 110-417.
(i) The Director, DoDHRA, shall provide operational support to the USD(P&R) as outlined in paragraph (a)(6) of this section.
Pt. 104

PART 104—CIVILIAN EMPLOYMENT AND REEMPLOYMENT RIGHTS OF APPLICANTS FOR, AND SERVICE MEMBERS AND FORMER SERVICE MEMBERS OF THE UNIFORMED SERVICES
Sec.
104.1
Purpose.
104.2
Applicability.
104.3
Definitions.
104.4
Policy.
104.5
Responsibilities.
104.6
Procedures.
Appendix A to Part 104—Civilian Employment and Reemployment Rights, Benefits and Obligations for Applicants for, and Service Members and Former Service Members of the Uniformed Services
Appendix B to Part 104—Sample Employer Notification of Uniformed Service

Authority:
10 U.S.C. 1161.

Source:
62 FR 3466, Jan. 23, 1998, unless otherwise noted.
§ 104.1
Purpose.
This part:
(a) Updates implementation policy, assigns responsibilities, and prescribes procedures for informing Service members who are covered by the provisions of 38 U.S.C chapter 43 and individuals who apply for uniformed service, of their civilian employment and reemployment rights, benefits and obligations.
(b) Implements 38 U.S.C. chapter 43, which updated, codified, and strengthened the civilian employment and reemployment rights and benefits of Service members and individuals who apply for uniformed service, and specifies the obligations of Service members and applicants for uniformed service.
§ 104.2
Applicability.
This part applies to the Office of the Secretary of Defense; the Military Departments, including the Coast Guard when it is not operating as a Military Service in the Department of the Navy by agreement with the Department of Transportation; the Chairman of the Joint Chiefs of Staff; and the Defense Agencies (referred to collectively in this part as “the DoD Components”). The term “Military Departments,” as used in this part, refers to the Departments of the Army, Navy, and Air Force. The term “Secretary concerned” refers to the Secretaries of the Military Departments and the Secretary of Transportation with respect to the Coast Guard when it is not operating as a Service in the Department of the Navy. The term “Military Services” refers to the Army, the Navy, the Air Force, the Marine Corps, and the Coast Guard.
§ 104.3
Definitions.
Critical mission. An operational mission that requires the skills or resources available in a Reserve component or components.
Critical requirement. A requirement in which the incumbent possesses unique knowledge, extensive experience, and specialty skill training to successfully fulfill the duties or responsibilities in support of the mission, operation or exercise. Also, a requirement in which the incumbent must gain the necessary experience to qualify for key senior leadership positions within his or her Reserve component.
Escalator position. This is established by the principle that the returning Service member is entitled to the position of civilian employment that he or she would have attained had he or she remained continuously employed by that civilian employer. This may be a position of greater or lesser responsibilities, to include a layoff status, when compared to the employees of the same seniority and status employed by the company.
Impossible or unreasonable. For the purpose of determining when providing advance notice of uniformed service to an employer is impossible or unreasonable, the unavailability of an employer or employer representative to whom notification can be given, an order by competent military authority to report for uniformed service within forty-eight hours of notification, or other circumstances that the Office of the Assistant Secretary of Defense for Reserve Affairs may determine are impossible or unreasonable are sufficient justification for not providing advance notice of pending uniformed service to an employer.
Military necessity. For the purpose of determining when providing advance notice of uniformed service is not required, a mission, operation, exercise or requirement that is classified, or a pending or ongoing mission, operation, exercise or requirement that may be compromised or otherwise adversely affected by public knowledge is sufficient justification for not providing advance notice to an employer.
Non-career service. The period of active uniformed service required to complete the initial uniformed service obligation; a period of active duty or full-time National Guard duty that is for a specified purpose and duration with no expressed or implied commitment for continued active duty; or participation in a Reserve component as a member of the Ready Reserve performing annual training, active duty for training or inactive duty training. Continuous or repeated active uniformed service or full-time National Guard duty that results in eligibility for a regular retirement from the Armed Forces is not considered non-career service.
Officer. For determining those Service officials authorized to provide advance notice to a civilian employer of pending uniformed service by a Service member or an individual who has applied for uniformed service, an officer shall include all commissioned officers, warrant officers, and non-commissioned officers authorized by the Secretary concerned to act in this capacity.
Uniformed service. Performance of duty on a voluntary or involuntary basis in the Army, the Navy, the Air Force, the Marine Corps or the Coast Guard, including their Reserve components, when the Service member is engaged in active duty, active duty for special work, active duty for training, initial active duty for training, inactive duty training, annual training or full-time National Guard duty, and, for purposes of this part, a period for which a person is absent from a position of employment for the purpose of an examination to determine the fitness of the person to perform such duty.
§ 104.4
Policy.
It is DoD policy to support non-career service by taking appropriate actions to inform and assist uniformed Service members and former Service members who are covered by the provisions of 38 U.S.C. chapter 43, and individuals who apply for uniformed service of their rights, benefits, and obligations under 38 U.S.C. Chapter 43. Such actions include:
(a) Advising non-career Service members and individuals who apply for uniformed service of their employment and reemployment rights and benefits provided in 38 U.S.C. chapter 43, as implemented by this part, and the obligations they must meet to exercise those rights.
(b) Providing assistance to Service members, former Service members and individuals who apply for uniformed service in exercising employment and reemployment rights and benefits.
(c) Providing assistance to civilian employers of non-career Service members in addressing issues involving uniformed service as it relates to civilian employment or reemployment.
(d) Considering requests from civilian employers of members of the National Guard and Reserve to adjust a Service member's scheduled absence from civilian employment because of uniformed service or make other accommodations to such requests, when it is reasonable to do so.
(e) Documenting periods of uniformed service that are exempt from a Service member's cumulative 5-year absence from civilian employment to perform uniformed service as provided in 38 U.S.C. chapter 43 and implemented by this part.
(f) Providing, at the Service member's request, necessary documentation concerning a period or periods of service, or providing a written statement that such documentation is not available, that will assist the Service member in establishing civilian reemployment rights, benefits and obligations.
§ 104.5
Responsibilities.
(a) The Assistant Secretary of Defense for Reserve Affairs, under the Under Secretary of Defense for Personnel and Readiness, shall:
(1) In conjunction with the Departments of Labor (DoL) and Veterans Affairs, the Office of Personnel Management (OPM), and other appropriate Departments and activities of the executive branch, determine actions necessary to establish procedures and provide information concerning civilian employment and reemployment rights, benefits and obligations.
(2) Establish procedures and provide guidance to the Secretaries concerned about civilian employment and reemployment rights, benefits and obligations of Service members who are covered by the provisions of 38 U.S.C. chapter 43 and individuals who apply for uniformed service as provided in 38 U.S.C. chapter 43. This responsibility shall be carried out in coordination with DoL, OPM, and the Federal Retirement Thrift Investment Board.
(3) Monitor compliance with 38 U.S.C. chapter 43 and this part.
(4) Publish in the Federal Register, DoD policies and procedures established to implement 38 U.S.C. chapter 43.
(b) The Secretaries of the Military Departments and the Commandant of the Coast Guard shall establish procedures to:
(1) Ensure compliance with this part.
(2) Inform Service members who are covered by the provisions of 38 U.S.C. chapter 43 and individuals who apply for uniformed service of the provisions of 38 U.S.C. chapter 43 as implemented by this part.
(3) Provide available documentation, upon request from a Service member or former Service member, that can be used to establish reemployment rights of the individual.
(4) Specify, as required, and document those periods of active duty that are exempt from the 5-year cumulative service limitation that a Service member may be absent from a position of civilian employment while retaining reemployment rights.
(5) Provide assistance to Service members and former Service members who are covered by the provisions of 38 U.S.C. chapter 43, and individuals who apply for uniformed service in exercising employment and reemployment rights.
(6) Provide assistance, as appropriate, to civilian employers of Service members who are covered by the provisions of 38 U.S.C. chapter 43 and individuals who apply for uniformed service.
(7) Cooperate with the DoL in discharging its responsibilities to assist persons with employment and reemployment rights and benefits.
(8) Cooperate with OPM in carrying out its placement responsibilities under 38 U.S.C. chapter 43.
§ 104.6
Procedures.
The Secretaries of the Military Departments and the Commandant of the Coast Guard shall:
(a) Inform individuals who apply for uniformed service and members of a Reserve component who perform or participate on a voluntary or involuntary basis in active duty, active duty for special work, initial active duty for training, active duty for training, inactive duty training, annual training and full-time National Guard duty, of their employment and reemployment rights, benefits, and obligations as provided under 38 U.S.C. chapter 43 and described in Appendix A of this part. Other appropriate materials may be used to supplement the information contained in Appendix A of this part.
(1) Persons who apply for uniformed service shall be advised that DoD strongly encourages applicants to provide advance notice in writing to their civilian employers of pending uniformed service or any absence for the purpose of an examination to determine the person's fitness to perform uniformed service. Providing written advance notice is preferable to verbal advance notice since it is easier to establish that this basic prerequisite to retaining reemployment rights was fulfilled. Regardless of the means of providing advance notice, whether verbal or written, it should be provided as early as practicable.
(2) Annually and whenever called to duty for a contingency operation, advise Service members who are participating in a Reserve component of:
(i) The requirement to provide advance written or verbal notice to their civilian employers for each period of military training, active and inactive duty, or full-time National Guard duty.
(A) Reserve component members shall be advised that DoD strongly encourages that they provide advance notice to their civilian employers in writing for each period of pending uniformed service. Providing written advance notice is preferable to verbal advance notice since it easily establishes that this prerequisite to retaining reemployment rights was fulfilled.
(B) Regardless of the means of providing advance notice, whether written or verbal, it should be provided as early as practicable. DoD strongly recommends that advance notice to civilian employers be provided at least 30 days prior to departure for uniformed service when it is feasible to do so.
(C) The advance notice requirement can be met by providing the employer with a copy of the unit annual training schedule or preparing a standardized letter. The sample employer notification letter in Appendix B of this part may be used for this purpose.
(ii) The 5-year cumulative limit on absences from their civilian employment due to uniformed service and exemptions to that limit.
(iii) The requirements for reporting or submitting application to return to their position of civilian employment.
(iv) Their general reemployment rights and benefits.
(v) The option for continuing employer provided health care, if the employer provides such a benefit.
(vi) The opportunity to use accrued leave in order to perform uniformed service.
(vii) Who they may contact to obtain assistance with employment and reemployment questions and problems.
(b) Inform Service members who are covered by the provisions of 38 U.S.C. Chapter 43, upon completion of an extended period of active duty and before separation from active duty of their employment and reemployment rights, benefits, and obligations as provided under 38 U.S.C. Chapter 43. This shall, as a minimum, include notification and reporting requirements for returning to employment with their civilian employer. While Appendix A of this part provides the necessary information to satisfy this requirement, other appropriate materials may be used to supplement this information.
(c) Issue orders that span the entire period of service when ordering a member of the National Guard or Reserve to active duty for a mission or requirement. Order modifications shall be initiated, as required, to ensure continuous active duty should the period required to complete the mission or requirement change.
(d) Document the length of a Service member's initial period of military service obligation performed on active duty.
(e) Determine and certify in writing those additional training requirements not already exempt for the 5-year cumulative service limit which are necessary for the professional development, or skill training or retraining for members of the National Guard or Reserve. Once the Secretary concerned certifies those training requirements, performance of uniformed service to complete a certified training requirement is exempt from the 5-year cumulative service limit.
(f) Determine those periods of active duty when a Service member is ordered to, or retained on, active duty (other than for training) under any provision of law because of a war or national emergency declared by the President or Congress. If the purpose of the order to, or retention on, active duty is for the direct or indirect support of the war or national emergency, then the orders of the Service member should be so annotated, since that period of service is exempt from the 5-year cumulative service limit established in 38 U.S.C. Chapter 43.
(g) Determine those periods of active duty performed by a member of the National Guard or Reserve that are designated by the Secretary concerned as a critical mission or critical requirement, and for that reason are exempt form the 5-year cumulative service limit. The authority for determining what constitutes a critical mission or requirement shall not be delegated below the Assistant Secretary level or the Commandant of the Coast Guard. The designation of a critical requirement to gain the necessary experience to qualify for key senior leadership positions shall be used judiciously, and the necessary experience and projected key leadership positions fully documented. This authority shall not be used to grant exemptions to avoid the cumulative 5-year service limit established by 38 U.S.C. Chapter 43 or to extend individuals in repeated statutory tours. The Assistant Secretary of Defense for Reserve Affairs shall be notified in writing of all occasions in which a Service member is granted more than one exemption for a critical requirement when the additional exemption(s) extend the Service member beyond the 5-year cumulative service limit established in 38 U.S.C. Chapter 43.
(h) When appropriate, ensure that orders to active duty or orders retaining members on active duty specify the statutory or Secretarial authority for those orders when such authority meets one or more of the exemptions from the 5-year cumulative service limit provided in 38 U.S.C. Chapter 43. If circumstances arise that prevent placing this authority on the orders, the authority shall be included in a separation document and retained in the Service member's personnel file.
(i) Ensure that appropriate documents verifying any period of service exempt from the 5-year cumulative service limit are place in the Service member's personnel record or other appropriate record.
(j) Document those circumstances that prevent a Service member from providing advance notification of uniformed service to a civilian employer because of military necessity or when advance notification is otherwise impossible or unreasonable, as defined in § 104.3.
(k) Designate those officers, as defined in § 104.3, who are authorized by the Secretary concerned to provide advance notification of service to a civilian employer on behalf of a Service member or applicant for uniformed service.
(l) Provide documentation, upon request from a Service member or former Service member, that may be used to satisfy the Service member's entitlement to statutory reemployment rights and benefits. Appropriate documentation may include, as necessary:
(1) The inclusive dates of the initial period of military service obligation performed on active duty.
(2) Any period of service during which a Service member was required to serve because he or she was unable to obtain a release from active duty though no fault of the Service member.
(3) The cumulative length of all periods of active duty performed.
(4) The authority under which a Service member was ordered to active duty when such service was exempt from the 5-year cumulative service limit.
(5) The date the Service member was last released from active duty, active duty for special work, initial active duty for training, active duty for training, inactive duty training, annual training or full-time National Guard duty. This documentation establishes the timeliness of reporting to, or submitting application to return to, a position of civilian employment.
(6) Whether service requirements prevent providing a civilian employer with advance notification of pending service.
(7) That the Service member's entitlement to reemployment benefits has not been terminated because of the character of service as provided in 38 U.S.C. 4304.
(8) When appropriate, a statement that sufficient documentation does not exist.
(m) Establish a central point of contact at a headquarters or regional command who can render assistance to active duty Service members and applicants for uniformed service about employment and reemployment rights, benefits and obligations.
(n) Establish points of contact in each Reserve component headquarters or Reserve regional command, and each National Guard State headquarters who can render assistance to:
(1) Members of the National Guard or Reserve about employment and reemployment rights, benefits and obligations.
(2) Employers of National Guard and Reserve members about duty or training requirements arising from a member's uniformed service or service obligation.
(o) A designated Reserve component representative shall consider, and accommodate when it does not conflict with military requirements, a request from a civilian employer of a National Guard and Reserve member to adjust a Service member's absence from civilian employment due to uniformed service when such service has an adverse impact on the employer. The representative may make arrangements other than adjusting the period of absence to accommodate such a request when it serves the best interest of the military and is reasonable to do so.
Pt. 104, App. A

Appendix A to Part 104—Civilian Employment and Reemployment Rights, Benefits and Obligations for Applicants for, and Service Members and Former Service Members of the Uniformed Services

A. Scope of Coverage
1. The Uniformed Services Employment and Reemployment Rights Act (USERRA) which is codified in 38 U.S.C. Chapter 43 provides protection to anyone absent from a position of civilian employment because of uniformed service if:
a. Advance written or verbal notice was given to the civilian employer.
(1) Advance notice is not required if precluded by military necessity, or is otherwise unreasonable or impossible.
(2) DoD strongly encourages Service members and or applicants for service to provide advance notice to their civilian employer in writing for each period of pending uniformed service. Providing written advance notice is preferable to verbal advance notice since it easily establishes that this prerequisite to retaining reemployment rights was fulfilled. Regardless of the means of providing advance notice, whether written or verbal, it should be provided as early as practicable. Also, DoD strongly recommends that Reserve component members provide advance notice to their civilian employers at least 30 days in advance when it is feasible to do so. The advance notice requirement can be met by providing the employer with a copy of the unit annual training schedule or preparing a standardized letter. The sample employer notification letter in Appendix B of this part may be used for this purpose;
b. The cumulative length of absences does not exceed 5 years;
c. The individual reports to, or submits an application for reemployment, within the specified period based on duration of services as described in section D of this Appendix; and,
d. The person's character of service was not disqualifying as described in paragraphs A.2.d. and e. of this appendix.
2. A civilian employer is not required to reemploy a person if:
a. The civilian employment was for a brief, non-recurrent period and there was no reasonable expectation that the employment would continue indefinitely or for a significant period.
b. The employer's circumstances have so changed as to make reemployment impossible or unreasonable.
c. The reemployment imposes an undue hardship on the employer in the case of an individual who:
(1) Has incurred a service connected disability; or,
(2) Is not qualified for the escalator position or the position last held, and cannot become qualified for any other position of lesser status and pay after a reasonable effort by the employer to qualify the person for such positions.
d. The Service member or former Service member was separated from a uniformed service with a dishonorable or bad conduct discharge, or separated from a uniformed service under other than honorable conditions.
e. An officer dismissed from any Armed Force or dropped from the rolls of any Armed Force as prescribed under 10 U.S.C. 1161.
f. The cumulative length of service exceeds five years and no portion of the cumulative five years of uniformed service falls within the exceptions described in section C. of this Appendix.
g. An employer asserting that he or she is not required to reemploy an individual because the employment was for a brief, non-recurrent period, or reemployment is impossible or unreasonable, or reemployment imposes an undue hardship on the employer, that employer has the burden of proving his or her assertion.
3. Entitlement to protection under 38 U.S.C. Chapter 43 does not depend on the timing, frequency, and duration of training or uniformed service.

B. Prohibition Against Discrimination and Acts of Reprisal
1. A person who is a member of, applies to be a member of, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any employment benefit by an employer on the basis of that membership, an application for membership, performance of service, or an obligation for service in the uniformed services.
2. A person, including a non-Service member, shall not be subject to employment discrimination or any adverse employment action because he or she has taken an action to enforce a protection afforded a Service member, has testified or made a statement in or in connection with any proceeding concerning employment and reemployment rights of a service member, has assisted or participated in an investigation, or has otherwise exercised any right provided by 38 U.S.C. Chapter 43.
3. An employer shall be considered to have engaged in an act of discrimination if an individual's membership, application for membership, service, application for service, or obligation for service in the uniformed services is a motivating factor in the employer's action, unless the employer can prove that the action would have been taken in the absence of such membership, application for membership, performance of service, application for service or obligation.

C. Exceptions to the Maximum Period of Service for Coverage
In order to retain reemployment rights and benefits provided by 38 U.S.C. Chapter 43, the cumulative length of absences from the same employer cannot exceed 5 years. Not counted toward this limit is:
1. Service beyond 5 years if required to complete an initial service obligation;
2. Service during which an individual was unable to obtain release orders before the expiration of the 5-year cumulative service limit through no fault of his or her own;
3. Inactive duty training; annual training; ordered to active duty for unsatisfactory participation; active duty by National Guardsmen for encampments, maneuvers, field operations or coastal defense; or to fulfill additional training requirements, as determined by the Secretary concerned, for professional skill development, or to complete skill training or retraining;
4. Involuntary order or call to active duty, or retention on active duty;
5. Ordered to or retained on active duty during a war or national emergency declared by the President or Congress;
6. Ordered to active duty in support of an operational mission for which personnel have been involuntarily called to active duty;
7. Performing service in support of a critical mission or requirement, as determined by the Secretary concerned;
8. Performing service in the National Guard when ordered to active duty by the President to suppress an insurrection or rebellion, repel an invasion, or execute laws of the United States; and,
9. Voluntary recall to active duty of retired regular Coast Guard officers or retired enlisted Coast Guard members.

D. Applications for Reemployment
1. For service of 30 days or less, or for an absence for an examination to determine the individual's fitness to perform uniformed service, the Service member or applicant must report to work not later than the beginning of the first full regularly scheduled work period on the first full calendar day following the completion of service or the examination, after allowing for an eight hour rest period following safe transportation to his or her residence.
2. For service of 31 days or more but less that 181 days, the Service member must submit an application for reemployment not later than 14 days after completion of service, or by the next full calendar day when submitting an application within the 14 day limit was impossible or unreasonable through no fault of the Service member.
3. For service of 181 days or more, the Service member must submit an application for reemployment not later than 90 days after the completion of service.
4. If hospitalized or convalescing from an illness or injury incurred or aggravated during service, the Service member must, at the end of the period necessary for recovery, follow the same procedures, based on length of service, as described in sections D.1. through D.3. of this appendix. The period of hospitalization or convalescence may not normally exceed 2 years.
5. Anyone who fails to report or apply for reemployment within the specified period shall not automatically forfeit entitlement to reemployment rights and benefits, but is subject to the rules of conduct, established policies, general practices of the employer pertaining to explanations and discipline because of an absence from scheduled work.

E. Documentation Upon Return
1. If service is for 31 days or more, a Service member must provide documentation, upon request from the employer, that establishes:
a. He or she made application to return to work within the prescribed time period;
b. He or she has not exceeded the 5-year cumulative service limit; and
c. His or her reemployment rights were not terminated because of character of service as described in paragraphs A.2.d. and e. of this appendix.
2. Failure to provide documentation cannot serve as a basis for denying reemployment to the Service member, former Service member, or applicant if documentation does not exist or is not readily available at the time of the employer's request. However, if after reemployment, documentation becomes available that establishes that the Service member or former Service member does not meet one or more of the requirements contained in section E.1. of this appendix, the employer may immediately terminate the employment.

F. Position to Which Entitled Upon Reemployment
1. Reemployment position for service of 90 days or less:
a. The position the person would have attained if continuously employed (the “escalator” position) and if qualified to perform the duties; or,
b. The position in which the person was employed in when he or she departed for uniformed service, but only if the person is not qualified to perform the duties of the escalator position, despite the employer's reasonable efforts to qualify the person for the escalator position.
2. Reemployment position for service of 91 days or more:
a. The escalator position, or a position of like seniority, status and pay, the duties of which the person is qualified to perform; or,
b. The position in which the person was employed in when he or she departed for uniformed service or a position of like seniority, status and pay, the duties of which the person is qualified to perform, but only if the person is not qualified to perform the duties of the escalator position after the employer has made a reasonable effort to qualify the person for the escalator position.
3. If a person cannot become qualified, after reasonable efforts by the employer to qualify the person, for either the escalator position or the position formerly occupied by the employee as provided in sections F.1. and F.2. of this appendix, for any reason (other than disability), the person must be employed in any other position of lesser status and pay that the person is qualified to perform, with full seniority.

G. Position to Which Entitled if Disabled
If a person who is disabled because of service cannot (after reasonable efforts by the employer to accommodate the disability) be employed in the escalator position, he or she must be reemployed:
1. In any other position that is equivalent to the escalator position in terms of seniority, status, and pay that the person is qualified or can become qualified to perform with reasonable efforts by the employer; or,
2. In a position, consistent with the person's disability, that is the nearest approximation to the position in terms of seniority, status, and pay to the escalator or equivalent position.

H. Reemployment by the Federal Government
1. A person who was employed by a Federal Executive Agency when he or she departed for uniformed service must be reemployed using the same order of priorities as prescribed in sections F. and G. of this appendix as appropriate. If the Director of OPM determines that the Federal Executive Agency that employed the person no longer exists and the functions have not been transferred to another Federal Executive Agency, or it is impossible or unreasonable for the agency to reemploy the person, the Director of OPM shall identify a position of like seniority, status, and pay at another Federal Executive Agency that satisfies the reemployment criteria established for private sector employers, sections F. and G. of this appendix, and for which the person is qualified and ensure that the person is offered such position.
2. If a person was employed by the Judicial Branch or the Legislative Branch of the Federal Government when he or she departed for uniformed service, and the employer determines that it is impossible or unreasonable to reemploy the person, the Director of OPM shall, upon application by the person, ensure that an offer of employment in a Federal Executive Agency is made.
3. If the Adjutant General of a State determines that it is impossible or unreasonable to reemploy a person who was employed as a National Guard technician, the Director of OPM shall, upon application by the person, ensure that an offer of employment in a Federal Executive Agency is made.

I. Reemployment by Certain Federal Agencies
1. The heads of the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Imagery and Mapping Agency, the National Security Agency, and, as determined by the President, any Executive Agency or unit thereof, the principal function of which is to conduct foreign intelligence or counterintelligence activities, shall prescribe procedures for reemployment rights for their agency that are similar to those prescribed for private and other Federal agencies.
2. If an appropriate officer of an agency referred to in subsection I.1. of this appendix determines that reemployment of a person who was an employee of that agency when he or she departed for uniformed service is impossible or unreasonable, the agency shall notify the person and the Director of OPM. The Director of OPM shall, upon application by that person, ensure that the person is offered employment in a position in a Federal Executive Agency.

J. General Rights and Benefits
1. A person who is reemployed under 38 U.S.C. Chapter 43 is entitled to the seniority, and other rights and benefits determined by seniority that the person had upon commencing uniformed service, and any additional seniority, and rights and benefits he or she would have attained if continuously employed.
2. A person who is absent by reason of uniformed service shall be deemed to be on furlough or leave of absence from his or her civilian employer and is entitled to such other rights and benefits not determined by seniority as generally provided by the employer to employees on furlough or leave of absence having similar seniority, status and pay who are also on furlough or leave of absence, as provided under a contract, policy, agreement, practice or plan in effect during the Service member's absence because of uniformed service.
3. The individual may be required to pay the employee cost, if any, of any funded benefit continued to the same extent other employees on furlough or leave of absence are required to pay.

K. Loss of Rights and Benefits
If, after being advised by his or her employer of the specific rights and benefits to be lost, a Service member, former Service member or applicant of uniformed service knowingly provided written notice of intent not to seek reemployment after completion of uniformed service, he or she is no longer entitled to any non-seniority based rights and benefits. This includes all non-seniority based rights and benefits provided under any contract, plan, agreement, or policy in effect at the time of entry into uniformed service or established while performing such service, and are generally provided by the employer to employees having similar seniority, status and pay who are on furlough or leave of absence.

L. Retention Rights
A person who is reemployed following uniformed service cannot be discharged from employment, except for cause:
1. Within 1 year after the date of reemployment if that person's service was 181 days or more; or,
2. Within 180 days after the date of reemployment if such service was 31 days or more but less than 181 days.

M. Accrued Leave
During any period of uniformed service, a person may, upon request, use any vacation, annual leave, or similar leave with pay accrued before the commencement of that period of service.

N. Health Plans
An employer who provides employee health plan coverage, including group health plans, must allow the Service member to elect to continue personal coverage, and coverage for his or her dependents under the following circumstances:
1. The maximum period of coverage of a person and the person's dependents under such an election shall be the lesser of:
a. The 18 month period beginning on the date on which the person's absence begins; or
b. The day after the date on which the person was required to apply for or return to a position or employment as specified in section D. of this appendix, and fails to do so.
2. A person who elects to continue health plan coverage may be required to pay up to 102 percent of the full premium under the plan, except a person on active duty for 30 days or less cannot be required to pay more than the employee's share, if any, for the coverage.
3. An exclusion or waiting period may not be imposed in connection with the reinstatement of coverage upon reemployment if one would not have been imposed had coverage not been terminated because of service. However, an exclusion or waiting period may be imposed for coverage of any illness or injury determined by the Secretary of Veterans Affairs to have been incurred in, or aggravated during, the performance of uniformed service.

O. Employee Pension Benefit Plans
1. This section applies to individuals whose pension benefits are not provided by the Federal Employees' Retirement System (FERS) or the Civil Service Retirement System (CSRS), or a right provided under any Federal or State law governing pension benefits for governmental employees.
2. A person reemployed after uniformed service shall be treated as if no break in service occurred with the employer(s) maintaining the employee's pension benefit plan. Each period of uniformed service, upon reemployment, shall be deemed to constitute service with the employer(s) for the purpose of determining the nonforfeitability of accrued benefits and accrual of benefits.
3. An employer reemploying a Service member or former Service member under 38 U.S.C. Chapter 43 is liable to the plan for funding any obligation attributable to the employer of the employee's pension benefit plan that would have been paid to the plan on behalf of that employee but for his or her absence during a period of uniformed service.
4. Upon reemployment, a person has three times the period of military service, but not to exceed five years after reemployment, within which to contribute the amount he or she would have contributed to the pension benefit plan if he or she had not been absent for uniformed service. He or she is entitled to accrued benefits of the pension plan that are contingent on the making of, or are derived from, employee contributions or elective deferrals only to the extent the person makes payment to the plan.

P. Federal Employees' Retirement System (FERS)
1. Federal employees enrolled in FERS who are reemployed with the Government are allowed to make up contributions to the Thrift Savings Fund over a period specified by the employee. However, the makeup period may not be shorter than two times nor longer than four times the period of absence for uniformed service.
2. Employees covered by the FERS are entitled to have contributions made to the Thrift Savings Fund on their behalf by the employing agency for their period of absence in an amount equal to one percent of the employee's basic pay. If an employee covered by FERS makes contributions, the employing agency must make matching contributions on the employee's behalf.
3. The employee shall be credited with a period of civilian service equal to the period of uniformed service, and the employee may elect, for certain purposes, to have his or her separation treated as if it had never occurred.
4. This benefit applies to any employee whose release from uniformed service, discharge from hospitalization, or other similar event make him or her eligible to seek reemployment under 38 U.S.C. Chapter 43 on or after August 2, 1990.
5. Additional information about Thrift Saving Plan (TSP) benefits is available in TSP Bulletins 95-13 and 95-20. A fact sheet is included in TSP Bulletin 95-20 which describes benefits and procedures for eligible employees. Eligible employees should contact their personnel office for information and assistance.

Q. Civil Service Retirement System (CSRS)
1. Employees covered by CSRS may make up contributions to the TSP, as in section P.1. of this appendix. However, no employer contributions are made to the TSP account of CSRS employees.
2. This benefit applies to any employee whose release from uniformed service, discharge from hospitalization, or other similar event makes him or her eligible to seek reemployment under 38 U.S.C. Chapter 43 on or after August 2, 1990.
3. Additional information about TSP benefits is available in TSP Bulletins 95-13 and 95-20. A fact sheet is included in TSP Bulletin 95-20 which describes benefits and procedures for eligible employees. Eligible employees should contact their personnel office for information and assistance.

R. Information and Assistance
Information and informal assistance concerning civilian employment and reemployment is available through the National Committee for Employer Support of the Guard and Reserve (NCESGR). NCESGR representatives can be contacted by calling 1-800-336-4590.

S. Assistance in Asserting Claims
1. A person may file a complaint with the Secretary of Labor if an employer, including any Federal Executive Agency or OPM, has failed or refused, or is about to fail or refuse, to comply with employment or reemployment rights and benefits. The complaint must be in writing, and include the name and address of the employer, and a summary of the allegation(s).
2. The Secretary of Labor shall investigate each complaint and, if it is determined that the allegation(s) occurred, make reasonable efforts to ensure compliance. If these efforts are unsuccessful, the Secretary of Labor shall notify the complainant of the results and advise the complainant of his or her entitlement to pursue enforcement.
3. The Secretary of Labor shall, upon request, provide technical assistance to a claimant and, when appropriate, to the claimant's employer.

T. Enforcement
1. State or Private Employers.
a. A person may request that the Secretary of Labor refer a complaint to the Department of Justice. If the Department of Justice is reasonably satisfied that the person is entitled to the rights or benefits sought, the Department of Justice may appear on behalf of, and act as attorney for, the complainant, and commence an action for appropriate relief, or the individual may commence an action on his or her own behalf in the appropriate Federal district court.
b. The district court hearing the complaint can require the employer to:
(1) Comply with the law;
(2) Compensate the person for any loss of wages or benefits suffered; and
(3) If the court determines that the employer willfully failed to comply with the law, pay the person an amount equal to the amount of lost wages or benefits as liquidated damages.
c. A person may file a private suit against an employer without the Secretary of Labor's assistance if he or she:
(1) Has chosen not to seek the Secretary's assistance;
(2) Has chosen not to request that the Secretary refer the complaint to the Department of Justice; or
(3) Has refused the Department of Justice's representation of his or her complaint.
d. No fees or court costs shall be charged or taxed against any person filing a claim. The court may award the person who prevails reasonable attorney fees, expert witness fees, and other litigation expenses.
2. Federal Government as the Employer.
a. The same general enforcement procedures established for private employers are applied to Federal Executive Agencies as an employer; however, if unable to resolve the complaint, the Secretary of Labor shall refer the complaint to the Office of Special Counsel, which shall represent the individual in a hearing before the Merit Systems Protection Board if reasonably satisfied that the individual is entitled to the rights and benefits sought. The claimant also has the option of directly filing a complaint with the Merit Systems Protection Board on his or her own behalf.
b. A person who is adversely affected or aggrieved by a final order or decision of the Merit Systems Protection Board may petition the United States Court of Appeals for the Federal Circuit to review the final order or decision.
3. Federal Intelligence Agency as the Employer. An individual employed by a Federal Intelligence Agency listed in subparagraph I.1. of this appendix, may submit a claim to the inspector general of the agency.
Pt. 104, App. B

Appendix B to Part 104—Sample Employer Notification of Uniformed Service
This is to inform you that (insert applicant or Service member's name) must report for military training or duty on (insert date). My last period of work will be on (insert date), which will allow me sufficient time to report for military duty. I will be absent from my position of civilian employment for approximately (enter expected duration of duty as specified on your orders, and include the applicable period you have to return or submit notification of your return to work) while performing military training or duty unless extended by competent military authority or delayed by circumstances beyond my control. I otherwise expect to return to work on (insert date).
Signature and date
Employer acknowledgment and date
Pt. 107

PART 107—PERSONAL SERVICES AUTHORITY FOR DIRECT HEALTH CARE PROVIDERS
Sec.
107.1
Purpose.
107.2
Applicability and scope.
107.3
Definitions.
107.4
Policy.
107.5
Procedures.
107.6
Responsibilities.
Enclosure 1 to Part 107—Table of Authorized Compensation Rates

Authority:
10 U.S.C. 1091; Federal Acquisition Regulation (FAR), part 37.

Source:
50 FR 11693, Mar. 25, 1985, unless otherwise noted.
§ 107.1
Purpose.
This part establishes policy under 10 U.S.C. 1091, “Contracts For Direct Health Care Providers,” and assigns responsibility for implementing the authority for personal services contracts for direct health care providers.
§ 107.2
Applicability and scope.
(a) This part applies to the Office of the Secretary of Defense (OSD) and the Military Departments.
(b) It applies only to personal services contracts awarded under 10 U.S.C. 1091 for direct health care providers.
§ 107.3
Definitions.
(a) Personal Services Contract. A contract that, by its express terms or as administered, makes the contractor personnel appear, in effect, to be government employees.
(b) Direct Health Care Providers. Health services personnel who participate in clinical patient care and services. This does not include personnel whose duties are primarily administrative or clerical, nor personnel who provide maintenance or security services.
§ 107.4
Policy.
(a) It is the policy of the Department of Defense that when in-house sources are insufficient to support the medical mission of the Military Departments, personal services contracts under 10 U.S.C. 1091 may be executed.
(b) It is the purpose of personal services contracts to facilitate mission accomplishment, maximize beneficiary access to military MTFs, maintain readiness capability, reduce use of the Civilian Health and Medical Program of the Uniformed Services (CHAMPUS), and enhance quality of care by promoting the continuity of the patient/provider relationship.
(c) Personal services contractors shall be subject to the same quality assurance, credentialing processes, and other standards as those required of military health care providers. In addition, providers, other than para-professionals, must be licensed in accordance with State or host country requirements to perform the contract services.
(d) In establishing lines of authority and accountability, DoD supervisors may direct the activities of personal services contractors on the same basis as DoD employees. However, the rights, benefits, and compensation of personal services contractors shall be determined solely in accordance with the personal service contract.
(e) Requests for personal services contracts contemplating reimbursement at the maximum rate of basic pay and allowances under 10 U.S.C. 1091 shall be approved at the major command level. The 0-6 grade shall be used sparingly and subsequently will be subject to review.
§ 107.5
Procedures.
(a) Each contract under 10 U.S.C. 1091 with an individual or with an entity, such as a professional corporation or partnership, for the personal services of an individual must contain language specifically acknowledging the individual as a personal services contractor whose performance is subject to supervision and direction by designated officials of the Department of Defense.
(b) The appearance of an employer-employee relationship created by the DoD supervision of a personal services contractor will normally support a limited recognition of the contractor as equal in status to a DoD employee in disposing of personal injury claims arising out of the contractor's performance. Personal injury claims alleging negligence by the contractor within the scope of his or her contract performance, therefore, will be processed as claims alleging negligence by DoD military or civil service personnel.
(c) Compensation for personal services contractors under 10 U.S.C. 1091 shall be within the limits established in the Table of Authorized Compensation Rates (see enclosure 1). Prorated compensation based upon hourly, daily, or weekly rates may be awarded when a contractor's services are not required on a full-time basis. In all cases, however, a contractor may be compensated only for periods of time actually devoted to the delivery of services required by the contract.
(d) Contracts for personal services entered into shall be awarded and administered pursuant to the provisions of the Federal Acquisition Regulation (FAR), part 37 and DoD and departmental supplementary contracting provisions.
§ 107.6
Responsibilities.
(a) The Military Departments shall be responsible for the management of the direct health care provider contracting program, ensuring that effective means of obtaining adequate quality care is achieved in compliance with the FAR, part 37. The portion of the Military Department regulations ensuring that compensation provided for a particular type of service is based on objective criteria and is not susceptible to individual favoritism shall be stressed.
(b) The Office of the Assistant Secretary of Defense (Health Affairs) (OASD(HA)) shall be responsible for monitoring the personal services contracting program.
Pt. 107, Encl. 1

Enclosure 1 to Part 107—Table of Authorized Compensation Rates
Occupation/specialty group | Compensation rate not to exceed | Pay grade | Years of service
I. Physicians and dentists | 0-6 | Over 26.
II. Other individuals, including nurse practitioners, nurse anesthetists, and nurse midwives, but excluding paraprofessionals | 0-5 | Over 20 but less than 22.
III. All registered nurses, except those who are included in Group II | 0-4 | Over 16 but less than 18.
IV. Paraprofessionals | 0-3 | Over 6 but less than 8.
Pt. 108

PART 108—HEALTH CARE ELIGIBILITY UNDER THE SECRETARIAL DESIGNEE PROGRAM AND RELATED SPECIAL AUTHORITIES
Sec.
108.1
Purpose.
108.2
Applicability.
108.3
Definition.
108.4
Policy.
108.5
Eligible senior officials of the U.S. Government.
108.6
Responsibilities.

Authority:
10 U.S.C. 1074(c); 10 U.S.C. 2559.

Source:
75 FR 72682, Nov. 26, 2010, unless otherwise noted.
§ 108.1
Purpose.
This part:
(a) Establishes policy and assigns responsibilities under 10 U.S.C. 1074(c) for health care eligibility under the Secretarial Designee Program.
(b) Implements the requirement of 10 U.S.C. 2559 that the United States receive reimbursement for inpatient health care provided in the United States to foreign military or diplomatic personnel or their dependents, except in certain cases covered by Reciprocal Health Care Agreements (RHCAs) between the Department of Defense and a foreign country.
§ 108.2
Applicability.
This part:
(a) Applies to the Office of the Secretary of Defense, the Military Departments, the Office of the Chairman of the Joint Chiefs of Staff and the Joint Staff, the Combatant Commands, the Office of the Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other organizational entities in the Department of Defense (hereafter referred to collectively as the “DoD Components”).
(b) Does not apply to health care services provided to coalition forces in operational settings, or to allied forces in overseas training exercises and similar activities. Also, does not apply to health care services provided to foreign nationals overseas under DoD Instruction 3000.05,^1 DoD Instruction 2205.2,^2 or DoD Instruction 2310.08E.^3
^1 Copies available on the Internet at http://www.dtic.mil/whs/directives/corres/pdf/300005p.pdf.
^2 Copies available on the Internet at http://www.dtic.mil/whs/directives/corres/pdf/220502p.pdf.
^3 Copies available on the Internet at http://www.dtic.mil/whs/directives/corres/pdf/231008p.pdf.
§ 108.3
Definition.
Secretarial Designee Program. The program established under section 1074(c) to create by regulation an eligibility for health care services in military medical treatment facilities (MTFs) as well as dental treatment facilities for individuals who have no such eligibility under 10 U.S.C. chapter 55.
§ 108.4
Policy.
It is DoD policy that:
(a) General Policy. The use of regulatory authority to establish DoD health care eligibility for individuals without a specific statutory entitlement or eligibility shall be used very sparingly, and only when it serves a compelling DoD mission interest. When used, it shall be on a reimbursable basis, unless non-reimbursable care is authorized by this part or reimbursement is waived by the Under Secretary of Defense (Personnel & Readiness) (USD(P&R)) or the Secretaries of the Military Departments when they are the approving authority.
(b) Foreign Military Personnel and Their Dependents. (1) MTF Care in the United States. Foreign military personnel in the United States under the sponsorship or invitation of the Department of Defense, and their dependents approved by the Department of Defense to accompany them, are eligible for space-available care as provided in DoD Instruction 1000.13.^4 Consistent with 10 U.S.C. 2559, in cases in which reimbursement is required by DoD Instruction 1000.13, a RHCA may provide a waiver of reimbursement for inpatient and/or outpatient care in the United States in a military medical treatment facility for military personnel from a foreign country and their dependents, if comparable care is made available to at least a comparable number of U.S. military personnel and their dependents in that foreign country. A disparity of 25 percent or less in the number of foreign personnel and dependents above U.S. personnel and dependents shall be considered within the range of comparable numbers.
^4 Copies available on the Internet at http://www.dtic.mil/whs/directives/corres/pdf/100013p.pdf.
(2) Non-MTF Care in the United States. Foreign military personnel in the United States under the sponsorship or invitation of the Department of Defense, and their dependents approved by the Department of Defense to accompany them, are not eligible for DoD payment for outpatient or inpatient care received from non-DoD providers, except for such personnel covered by the North Atlantic Treaty Organization Status of Forces Agreement (SOFA) or the Partnership for Peace SOFA and authorized care under the TRICARE Standard program according to § 199.3 of title 32, Code of Federal Regulations, outpatient care may be provided as specified therein.
(c) Foreign Diplomatic or Other Senior Foreign Officials. Foreign diplomatic or other senior foreign officials and the dependents of such officials may be provided inpatient or outpatient services in MTFs only in compelling circumstances, including both medical circumstances and mission interests, and through case-by-case approval.
(1) In the United States, the approval authority is the USD(P&R). The authority to waive reimbursement for care provided in the United States, to the extent allowed by law, is the USD(P&R) or the Secretaries of the Military Departments when they are the approving authority.
(2) Requests from the State Department or other agency of the U.S. Government will be considered on a reimbursable basis.
(3) Under 10 U.S.C. 2559, reimbursement to the United States for care provided in the United States on an inpatient basis to foreign diplomatic personnel or their dependents is required.
(d) Other Foreign Nationals. Other foreign nationals (other than those described in paragraphs (b) and (c) of this section) may be designated as eligible for space-available care in MTFs only in extraordinary circumstances.
(1) The authority to waive reimbursement for care provided in the United States, to the extent allowed by law, is the USD(P&R) or the Secretaries of the Military Departments when they are the approving authority. Waiver requests will only be considered based on a direct and compelling relationship to a priority DoD mission objective.
(2) Requests from the State Department or other agency of the U.S. Government will be considered on a reimbursable basis. Such requests must be supported by the U.S. Ambassador to the country involved and the Geographical Combatant Commander for that area of responsibility and must be premised on critically important interests of the United States.
(e) Invited Persons Accompanying the Overseas Force. The Secretaries of the Military Departments and the USD(P&R) may designate as eligible for space-available care from the Military Health System outside the United States those persons invited by the Department of Defense to accompany or visit the military force in overseas locations or invited to participate in DoD-sponsored morale, welfare, and recreation activities. This authority is limited to health care needs arising in the course of the invited activities. Separate approval is needed to continue health care initiated under this paragraph in MTFs in the United States.
(1) In the case of employees or affiliates of news organizations, all care provided under the authority of introductory paragraph (e) of this section is reimbursable. For other individuals designated as eligible under this paragraph (e), the designation may provide, to the extent allowed by law, for outpatient care on a non-reimbursable basis, and establish a case-by-case authority for waiver of reimbursement for inpatient care.
(2) This paragraph (e) does not apply to employees of the Executive Branch of the United States or personnel affiliated with contractors of the United States.
(f) U.S. Nationals Overseas. Health care for U.S. nationals overseas is not authorized, except as otherwise provided in this part.
(g) U.S. Government Civilian Employees and Contractor Personnel. (1) Civilian employees of the Department of Defense and other government agencies, and employees of DoD contractors, and the dependents of such personnel are eligible for MTF care to the extent provided in DoD Instruction 1000.13.
(2) Occupational health care services provided to DoD employees under 5 U.S.C. 7901, authorities cited in DoD Instruction 6055.1,^5
or under other authorities except 10 U.S.C. 1074(c) are not affected by this Instruction. The Secretaries of the Military Departments and the USD(P&R) may designate DoD civilian employees, applicants for employment, and personnel performing services for the Department of Defense under Federal contracts as eligible for occupational health care services required by the Department of Defense as a condition of employment or involvement in any particular assignment, duty, or undertaking.
^5 Copies available on the Internet at http://www.dtic.mil/whs/directives/corres/pdf/605501p.pdf.
(3) Any health care services provided by the Military Health System to employees of DoD non-appropriated fund instrumentalities shall be on a reimbursable basis.
(4) In the case of DoD civilian employees forward deployed in support of U.S. military personnel engaged in hostilities, eligibility for MTF care (in addition to all eligibility for programs administered by the Department of Labor Office of Workers' Compensation Programs (OWCP)) is as follows:
(i) Consistent with Policy Guidance for Provision of Medical Care to DoD Civilian Employees Injured or Wounded While Forward Deployed in Support of Hostilities,^6 DoD civilian employees who become ill, contract diseases, or are injured or wounded while so deployed are eligible for medical evacuation or health care treatment and services in MTFs at the same level and scope provided to military personnel, all on a non-reimbursable basis, until returned to the United States.
^6 Copies available at OASD (Health Affairs/TMA FHP&RP), 1200 Defense Pentagon, Room 3E1073, Washington, DC 20301-1200.
(ii) DoD civilian employees who, subsequent to such deployment, and have been determined to have OWCP-compensable conditions are eligible for MTF care for such conditions, all on a non-reimbursable basis.
(iii) USD(P&R) may, under compelling circumstances, approve additional eligibility for care in MTFs for other U.S. Government civilian employees who become ill or injured while so deployed, or other DoD civilian employees overseas.
(5) Contractor Personnel Authorized to Accompany U.S. Armed Forces. In the case of contractor personnel authorized to accompany U.S. Armed Forces in deployed settings under DoD Instruction 3020.41,^7 MTF care may be provided as stated in DoD Instruction 3020.41.
^7 Copies available on the Internet at http://www.dtic.mil/whs/directives/corres/pdf/302041p.pdf.
(h) Emergency Health Care. The Secretaries of the Military Departments and the USD(P&R) may designate emergency patients as eligible for emergency health care from MTFs in the United States pursuant to arrangements with local health authorities or in other appropriate circumstances. Such care shall be on a reimbursable basis, unless waived by the USD(P&R) or the Secretaries of the Military Departments when they are the approving authority.
(i) Research Subject Volunteers. Research subjects are eligible for health care services from MTFs to the extent DoD Components are required by DoD Directive 3216.02 ^8 to establish procedures to protect subjects from medical expenses that are a direct result of participation in the research. Such care is on a non-reimbursable basis and limited to research injuries (unless the volunteer is otherwise an eligible health care beneficiary). Care is authorized during the pendency of the volunteer's involvement in the research, and may be extended further upon the approval of the USD(P&R).
^8 Copies available on the Internet at http://www.dtic.mil/whs/directives/corres/pdf/321602p.pdf.
(j) Continuity of Care Extensions of Eligibility. The Secretaries of the Military Departments and the USD(P&R) may establish temporary eligibility on a space-available basis for former members and former dependents of members of the seven Uniformed Services for a limited period of time, not to exceed 6 months, or in the case of pregnancy the completion of the pregnancy, after statutory eligibility expires when appropriate to allow completion or appropriate transition of a course of treatment begun prior to such expiration. In the case of a pregnancy covered by this paragraph, the designation of eligibility may include initial health care for the newborn infant. Care under this paragraph is authorized on a non-reimbursable basis for the former member or former dependent of member. Care under this paragraph for the newborn of those former members or former dependents is authorized but on a full reimbursable basis unless the Secretary of the Military Department elect to use Secretarial Designee status for the newborn.
(k) Members of the Armed Forces. The Secretaries of the Military Departments and the USD(P&R) may establish eligibility not specifically provided by statute for critical mission-related health care services for designated members of the Armed Forces, such as Reserve Component members not in a present duty status. This authority includes payment for health care services in private facilities to the extent authorized by 10 U.S.C. 1074(c). Care under this paragraph is non-reimbursable.
(l) Certain Senior Officials of the U.S. Government. The officials and others listed in § 108.5 of this part are designated as eligible for space-available inpatient and outpatient health care services from the Military Health System on a reimbursable basis.
(m) Nonmedical Attendants. The Secretaries of the Military Departments and the USD(P&R) may designate as eligible for space available MTF care persons designated as nonmedical attendants as defined by 37 U.S.C. 411k(b). Costs of medical care rendered are reimbursable unless reimbursement is waived by the Secretary of the Military Department concerned or USD(P&R). This authority is limited to health care needs arising while designated as a nonmedical attendant.
(n) Patient Movement. Provisions of this Instruction concerning inpatient care shall also apply to requests for patient movement through the medical evacuation system under DoD Instruction 6000.11.^9 Aeromedical evacuation transportation assets are reserved for those individuals designated as Secretarial Designees who need transportation to attain necessary health care.
^9 Copies available on the Internet at http://www.dtic.mil/whs/directives/corres/pdf/600011p.pdf.
(o) Other Individuals Entitled to DoD Identification (ID) Card. Other individuals entitled to a DoD ID card under DoD Instruction 1000.13 are eligible for space-available MTF health care to the extent provided in DoD Instruction 1000.13.
(p) Reciprocity Among Military Departments. Subject to the capabilities of the professional staff, the availability of space and facilities, and any other limitation imposed by the approving authority, all Services will provide medical treatment to individuals who have been granted Secretarial designee status by any of the Secretaries of the Military Departments. Each agreement must identify the specific MTF or geographical region in which medical care is requested, requiring close coordination among service program managers.
§ 108.5
Eligible senior officials of the U.S. government.
(a) The following individuals are Secretarial Designees for space-available care in MTFs on a reimbursable basis, unless specified otherwise by a Service Secretary:
(1) The President and Vice President, and their spouses and minor children.
(2) Members of Congress.
(3) Members of the Cabinet.
(4) Officials of the Department of Defense appointed by the President and confirmed by the Senate.
(5) Article III Federal Judges. (Article III courts are: The Supreme Court of the United States, U.S. Courts of Appeal, U.S. District Courts, U.S. Court of International Trade, United States Foreign Intelligence Surveillance Court, United States Foreign Intelligence Surveillance Court of Review.)
(6) Judges of the U.S. Court of Appeals for the Armed Forces.
(7) Assistants to the President.
(8) Director of the White House Military Office.
(9) Former Presidents of the United States and their spouses, widows, and minor children.
(b) [Reserved]
§ 108.6
Responsibilities.
(a) The USD(P&R) shall:
(1) Evaluate requests for and where appropriate, grant exceptions to policy established by this part and DoD Directive 5124.02,^{10} including waiver of reimbursement, to the extent allowed by law.
^{10} Copies available on the Internet at http://www.dtic.mil/whs/directives/corres/pdf/512402p.pdf.
(2) Following approval of the USD(P) and in coordination with USD(P) and the GC, DoD, and in accordance with DoD Directive 5530.3,^{11} begin negotiations, negotiate, and have the authority to sign RHCAs.
^{11} Copies available on the Internet at http://www.dtic.mil/whs/directives/corres/pdf/553003p.pdf.
(b) The USD(P) shall evaluate requests and determine DoD mission interest for Secretarial Designee Status and RHCAs to identify those agreements that would be in the best interest of the Department of Defense and approve negotiations of RHCAs by the USD(P&R).
(c) The USD(C) shall in coordination with USD(P&R), establish appropriate reimbursement rates, including appropriate interagency rates and rates applicable to students in International Military Education and Training programs.
(d) The Under Secretary of Defense for Acquisition, Technology, and Logistics shall evaluate requests for Exception to the Transportation Policy. The authority to grant such a exception is by USD(P&R) or the Secretary of the Military Department concerned.
(e) The Secretaries of the Military Departments shall:
(1) Issue, revise or modify as appropriate, regulations to comply with this part.
(2) Appoint a Military Department representative who will administer the Secretarial Designee Program within the Military Department and coordinate with other DoD Components in its effective operation.
(3) Where and when appropriate, the Military Department concerned shall coordinate with U.S. Transportation Command/Global Patient Movement Requirements Center.
(4) Identify Secretarial Designees treated at MTFs.
(5) Provide an annual consolidated list reflecting the number of Secretarial Designees within their departments, reasons for such designation, location where designee is receiving treatment, the costs and sources of funding, nature and duration of treatment and expiration date of designee status to USD(P&R) and USD(C). The annual report is due 30 days after the start of the fiscal year reflecting the prior fiscal year's information.
(i) In cases where the USD(P&R) designates an individual as a Secretarial Designee, the Military Department concerned shall include this individual on any lists provided to USD(P&R) and USD(C) for reporting purposes.
(ii) Annually consolidate Secretarial Designee patient costs and forward those data to USD(P&R) and OSD(C), along with a report of collection for reimbursable costs.
(f) The Commanders of the Geographic Combatant Commands (GCCs) shall:
(1) Refer requests to waive reimbursement through the Chairman of the Joint Chiefs of Staff to the USD(P&R).
(2) Refer requests for Secretarial Designee status for medical care in the United States through the Chairman of the Joint Chiefs of Staff to USD(P&R).
(3) Through the Chairman of the Joint Chiefs of Staff, provide written annual reports to the USD(P&R) and USD(C) reflecting the number of individuals designated as Secretarial Designees within their geographic area of responsibility, the reasons for such designation, the expected duration of such designation, the costs and sources of funding authorizing the support of such designee status for each designee.
(4) Identify Secretarial Designees treated at MTFs within their geographic area of responsibility.
(5) Provide for an accounting and collection system for reimbursement of medical costs within their geographic area of responsibility.
(g) The Commander, United States Transportation Command shall:
(1) Coordinate patient movement with all concerned Military Departments.
(2) Upon request of the Military Department concerned or Commanders of the GCCs, determine availability of DoD transportation assets, or when cost effective, coordinate with civilian ambulance authorities, to effect transportation of Secretarial Designee as appropriate.
(3) Ensure the Global Patient Movement Requirements Center, as the regulating agency, will consistently serve as the single point of contact for patient movement for Secretarial Designee patients using DoD assets upon request.
(4) Annually consolidate Secretarial Designee patient listing who utilized the DoD patient movement system and forward to USD(P&R) and USD(C).
Pt. 110

PART 110—STANDARDIZED RATES OF SUBSISTENCE ALLOWANCE AND COMMUTATION INSTEAD OF UNIFORMS FOR MEMBERS OF THE SENIOR RESERVE OFFICERS' TRAINING CORPS
Sec.
110.1
Reissuance and purpose.
110.2
Applicability.
110.3
Policy.
110.4
Responsibilities.
110.5
Procedures.
110.6
Information requirement.
Appendix A to Part 110—Climatic Zones Used To Determine Rates of Commutation Allowance
Appendix B to Part 110—Formula for ROTC Commutation Rates
Appendix C to Part 110—Application of Basic Course Formula (Male and Female Members) (Sample)
Appendix D to Part 110—Application of Advanced Course Formula (Male and Female Members) (Sample)
Appendix E to Part 110—Application of 4-Week Summer Field Training Formula (Sample)

Authority:
10 U.S.C. 2101-2111, 37 U.S.C. 209, 50 App. U.S.C. 456(a).

Source:
51 FR 26886, July 28, 1986, unless otherwise noted.
§ 110.1
Reissuance and purpose.
This part reissues 32 CFR part 110 implementing Pub. L. 88-647, 92-171, and 98-94 and updates policy, assigns responsibilities, and prescribes procedures for determining commutation rates for Reserve Officers' Training Corps (ROTC) detachments offered commutation funds instead of uniforms.
§ 110.2
Applicability.
This part applies to the Office of the Secretary of Defense (OSD), the Military Departments, and the Defense Logistics Agency (DLA) (hereafter referred to collectively as “DoD Components”). The term “Military Services,” as used herein, refers to the Army, Navy, Air Force, and Marine Corps.
§ 110.3
Policy.
It is DoD policy to provide subsistence allowance in accordance with Pub. L. 92-171 and to eligible participants of senior ROTC programs and commutation funds instead of uniforms (section 2110, Pub. L. 88-647) for members of senior ROTC programs at eligible schools.
§ 110.4
Responsibilities.
(a) The Assistant Secretary of Defense (Force Management and Personnel) (ADS(FM&P)), or designee, shall:
(1) Administer the overall DoD ROTC program.
(2) Maintain liaison with the Military Departments regarding the functioning of the ROTC program.
(3) Announce the standard rates of commutation instead of uniforms to the Military Departments not later than August 1 each year.
(b) The Director, Defense Logistics Agency (DLA), shall provide the Military Departments during December of each year the current unit price list of uniform items to be used the following fiscal year.
(c) The Secretaries of the Military Departments shall:
(1) Prescribe the standard uniform items for each climatic zone, sex, and course (basic and advanced) in quantities authorized to be provided.
(2) Develop the communication rates, based on the standard Military Service uniforms, and establish procedures for rate review on an annual basis.
(3) Submit to the ASD(FM&P) an estimate of the rates of commutation, based on the latest DLA clothing rate, for climatic zones by sex and course not later than July 1 of each year.
(4) Classify educational institutions as Military Colleges (MC), Civilian Colleges (CC), or Military Junior Colleges (MJC), hereafter also called schools.
(5) Conduct inspections to ensure that the schools meet the requirements for the respective classifications and that those receiving commutation funds provide quality uniforms in sufficient quantities.
(6) Program and budget for subsistence allowance and commutation, instead of uniforms, for members of the senior ROTC program.
§ 110.5
Procedures.
(a) Classification of institutions hosting Senior ROTC Units. Educational institutions hosting senior ROTC units maintained by the Military Departments shall be classified as essentially military or civilian colleges or universities.
(1) The classification MC shall be assigned to units established in:
(i) Essentially military colleges or universities that, for purposes of qualifying as an MC under 50 U.S.C. App. 456(a)(1):
(A) Confer baccalaureate or graduate degrees.
(B) Require a course in military training throughout the undergraduate course for all qualified undergraduate students.
(C) Organize their military students as a corps of cadets under constantly maintained military discipline.
(D) Require all members of the corps, including those nonmembers enrolled in the ROTC, to be habitually in uniform when on campus.
(E) Have as their objective the development of the military students' character by means of military training and the regulation of their conduct in accordance with the principles of military discipline.
(F) In general, meet military standards similar to those maintained at the Military Service academies.
(ii) The designation “all qualified undergraduate students,” under paragraph (a)(i)(B) of this section means all physically fit students except:
(A) Female students who waive their right to participate as provided by Pub. L. 95-485, section 809.
(B) Foreign nationals.
(C) Students who are not liable for induction by virtue of having honorably completed active training and service.
(D) Students who are pursuing special undergraduate courses beyond 4 years after completing the required military training.
(E) Certain categories of students who are excused specifically by administrative decision and approved by the ROTC unit commander.
(2) The classification CC shall be assigned when units are established at civilian colleges and universities that are not operated on an essentially military basis, but that confer baccalaureate or graduate degrees.
(3) The classification MJC shall be assigned when ROTC units are established at essentially military schools that provide junior college or junior college and high school instruction, but DO NOT confer baccalaureate degrees. Those units shall meet all other requirements of an MC. (See Pub. L. 88-647).
(b) Qualifying for the special rate of commutation. (1) To qualify for payment at the special rate of commutation instead of uniforms, an institution classified MC or CC shall meet in addition to paragraphs (a) (1), or (2), respectively the requirements below. An institution classified an MJC shall meet, in addition to paragraph (a)(1) (except paragraphs (a)(1)(i) (A) and (B)), the requirements below:
(i) Organize and maintain within their undergradute student bodies a self-contained corps of cadets.
(ii) Require all members of the corps of cadets to be in appropriate uniform at all times while on the campus.
(iii) House all members of the corps of cadets in barracks separate from nonmembers.
(iv) Require all members of the corps of cadets to be under constantly maintained military discipline on a 24-hours-per-day, 7-days-per-week basis.
(v) Require all physically qualified members of the above corps of cadets to be enrolled in the basic course of ROTC, except:
(A) Female students who waive their right to participate as provided by Pub. L. 95-485.
(B) Foreign nationals.
(C) Students who are not liable for induction by virtue of having completed honorably active training and service.
(D) Certain categories of students are excused specifically by administrative decisions.
(E) Other students whose enrollment is prevented by provisions or appropriate regulations of a Military Department.
(2) MCs, CCs, or MJCs may be paid the special rate of commutation only for those members of the corps of cadets meeting the requirements set forth in paragraph (b)(1), who are enrolled in ROTC. The requirements of paragraphs (b)(1) (iii) and (iv), may be waived for married students, graduate students, and day students who are not housed with the corps of cadets. Day students are those ROTC cadets who are authorized by university officials to reside off campus within a reasonable commuting distance to the university.
(3) Institutions designated as MCs may enroll into the ROTC, of the appropriate Military Service, those students who, for various reasons, are not required to be members of the corps of cadets. These institutions shall receive, for such student only, the standard commutation rate. The special rate shall be authorized for eligible females who elect to participate as enrolled senior ROTC cadets, provided that the requirements of paragraphs (b)(1) (ii), (iii), and (iv) are met or unless these requirements are waived under the provisions of paragraph (a)(1)(ii)(E).
(c) Subsistence allowance and commutation rates—(1) Subsistence allowances. Payment that is made by the Military Departments instead of rations to each contract cadet enrolled in the advanced course and for each scholarship cadet enrolled in the basic or advanced course.
Payments are as prescribed in the DoD Military Pay and Allowances Entitlements Manual, part 8, chapter 4. The following rates are established for payment of subsistence allowance:
(i) Except when on summer fiel training or practice cruises, when subsistence in kind is furnished, or when otherwise on active duty, the subsistence allowance for each enrolled member of the advanced training program in the senior ROTC shall be $100 per month for not more than a total of 20 months.
(ii) Except when on summer field training or practice cruises, when subsistence in kind is furnished, the subsistence allowance for each cadet or midshipman appointed under the financial assistance program for specially selected members, under the provisions of Pub. L. 88-647, shall be $100 per month for not more than a total of 20 months during the basic course training program and $100 per month for not more than a total of 20 months during the advanced course training program unless the individual has been authorized extended entitlements under the provisions of Pub. L. 98-94. The $100 per month subsistence may be authorized for not more than a total of 30 months during the advanced course training program when an extended financial assistance entitlement is approved by the Military Service Secretary of the Military Department concerned.
(2) Commutation instead of uniforms. Commutation is payment made by the Military Departments to an institution instead of the issue of uniforms to ROTC cadets in accordance with Pub. L. 88-647. Certain MCs, CCs, and MJCs that maintain senior ROTC units may elect to receive commutation instead of Government clothing. In such instances, the commutation rate shall include not only the uniform, but the procurement, receipt, storage, maintenance, and issue of the uniform as outlined in paragraph (c)(2)(xi), and shown in Appendix B.
(i) The Military Departments shall develop the commutation rates and establish procedures for their review on an annual basis. The review shall be scheduled during May so that the current unit price list disseminated by the DLA during the previous December of each year can be used to develop the commutation rates and made available to institutions for use at the beginning of the fall term. The commutation payment shall be made to the institutions based on the number of students enrolled and in attendance for at least 60 consecutive days.
(ii) Commutation rates for uniforms shall be based on the latest approved items of clothing for each climatic zone and computed using the formulas listed in Appendix B. Appendices C, D, and E are examples of the application of the various formulas to determine the amounts that can be paid to qualifying institutions.
(iii) Standard commutation rates for the basic course (first 2 years) of the senior ROTC shall be payable in the indicated amount on an annual basis not to exceed 2 years to CCs that offer Military Science (MS) I and II or equivalent. The rates shall be paid after cadets have been enrolled 60 days.
(iv) Standard rates for the advanced course cover the 2-year period that each member is enrolled in advanced course training in the senior ROTC (Appendix D). These rates shall be paid after cadets have been enrolled for 60 days in the advanced course. Commutation funds for camp uniforms, if paid, shall be in addition to payments for the advanced course.
(v) Special rates of commutation shall be paid for students enrolled at MCs, CCs, or MJCs fulfilling the requirements of paragraph (b).
(vi) Special rates of commutation shall be identical for all the Military Services for those qualifying institutions defined in paragraph (b). These rates shall be three times the highest standard rate submitted by sex and course from the Military Departments for climatic zones 1 or 2. Each Military Department shall submit special rate estimates for zones 1 and 2 to the Assistant Secretary of Defense (ASD(FM&P), or designee, not later than July 1. The special rates shall be announced by the ASD(FM&P), or designee, not later than August 1 of each year.
(vii) Special rates of commutation for students enrolled in the basic course (MS I and II or equivalent) of MCs, CCs, and MJCs shall be paid on an annual basis not to exceed 2 years. Special rates for students enrolled in the advanced course (MS III and IV or equivalent) of MCs, CCs, or MJCs shall be paid for the 2-year period that each member is enrolled in the advanced course.
(viii) Commutation for the basic course and the advanced course shall be paid based on Appendices C and D, respectively.
(ix) One-half of the special commutation rate shall be paid to the institution for those students enrolled in the second year of the advanced course for whom the institution previously has not received commutation.
(x) The standard rates shown in Appendix E for summer field training are not subject to the special commutation rate adjustment.
(xi) Commutation of uniform funds may be expended to support ONLY the following activities:
(A) Procurement, receipt, storage, and issue expenses not to exceed 10 percent of the cost for standard uniform items in quantities as prescribed by the Secretary of the Military Department concerned, or distinctive uniforms and insignia as prescribed by those institutions that meet the requirements of paragraph (b). Marking up or raising the price of that paid by an institution when items are purchased from military inventories is not authorized.
(B) Alteration and maintenance of the uniform, which is defined as laundry, dry cleaning, renovation, alterations and sizing, not to exceed $10 per uniform.
(C) Salary payments to the property custodian for custody of uniforms purchased with commutation funds. Such custodial fees shall not exceed the specified percent of the commutation funds received against the actual enrollments in each course listed below for the immediate past academic year:
(1) 15 percent of basic course.
(2) 5 percent of advance course.
(3) 5 percent of field training (when applicable).
(D) Purchase of hazard insurance to protect uniform inventory against loss.
(xii) Unexpended commutation of uniform funds is the balance remaining after all commitments or obligations relating to the immediate past academic year and the amount of retained uniform commutation funds (see paragraph (c)(2)(xii)(A)) have been deducted. The unexpended balance shall be computed as of July 1 each year. Commitments or obligations relating to new year procurement, maintenance, or other allowable activities may not be charged against the unexpended balance. As an exception, the unexpended balance may be used for paying bills for procurements of past academic years that are submitted AFTER the cutoff date of the report required by paragraph (c)(2)(xii)(C).
(A) The amount of unexpended uniform commutation funds an institution may retain from 1 academic year to the next for continued financing of the uniform program is the greater of $3500 or 20 percent of the uniform entitlement for the immediate past academic year.
(B) Accumulated funds that exceed this limitation shall be returned to the Military Services.
(C) As of July 1 of each year, a uniform commutation report DD Form 2340, “Annual Report on Uniform Commutation Fund” shall be completed by the institution receiving commutation funds and submitted to the appropriate authority for each Military Service by July 31.
(1) The uniform commutation report shall include a detailed list of expenditures, total funds available for the immediate past academic year, including the unexpended balance from the last report, an explanation of any monetary adjustments and errors, the balance of funds on hand, and the amount being refunded to the appropriate Military Service as the unexpended balance, if any. The report shall be coordinated with ROTC unit commanders and signed by the appropriate institutional official who maintains records of the receipt of funds.
(2) All records on the receipt and expenditure of commutation funds shall be subject to periodic audit and inspection. Institution officials shall be responsive to recommendations made.
(d) Inspection. Inspections shall be conducted when an ROTC unit is initially established at an institution that does not already host another Military Service ROTC unit. Inspections shall ensure that only those institutions that meet the requirements of paragraphs (a)(1) or (3), are awarded the MC or MJC classification and only those awarded MC, CC, and MJC classifications that meet the additional requirements of paragraph (b) shall be authorized the special rate of commutation instead of uniforms. Inspections of established units at MCs, CCs, and MJCs shall be conducted on an exception basis.
(1) The Secretaries of Military Departments shall prescribe specific inspection procedures applicable to ROTC units of their respective Military Services.
(2) When discrepancies are noted at institutions, their classifications shall be subject to review for resolution or withdrawal by the Secretaries of the Military Department concerned. In the instance of withdrawal of classification, the appropriate Military Service's review of, and final notification to, the institution shall be within 30 days of the date the discrepancy was noted.
§ 110.6
Information requirement.
The reporting requirement for paragraph (c)(2)(xii)(C) is assigned OMB No. 0704-0200.
Pt. 110, App. A

Appendix A to Part 110—Climatic Zones Used To Determine Rates of Commutation Allowance

Zone I
1. Alabama
2. Arizona, only 100 mile-wide belt along south border
3. Arkansas, southern two-thirds
4. California, except area north of 37°
5. Florida
6. Georgia
7. Guam
8. Hawaii
9. Kentucky, southeastern one-third
10. Louisiana
11. Mississippi
12. New Mexico, only 100 mile-wide belt along south border
13. North Carolina
14. Oklahoma, only southeastern portion
15. Puerto Rico
16. South Carolina
17. Tennessee, except northwest corner
18. Texas, except area border of 34° north

Zone II
1. Alaska
2. Arizona, except 100 mile-wide belt along south border
3. Arkansas, northern one-third
4. California, area south of 37° north
5. Colorado
6. Connecticut
7. Delaware
8. District of Columbia
9. Idaho
10. Illinois
11. Indiana
12. Iowa
13. Kansas
14. Kentucky, NW two-thirds
15. Maine
16. Maryland
17. Massachusetts
18. Michigan
19. Minnesota
20. Missouri
21. Montana
22. Nebraska
23. Nevada
24. New Hampshire
25. New Jersey
26. New Mexico, except a 100 mile-wide belt along south border
27. New York
28. North Dakota
29. Ohio
30. Oklahoma, except the southeast portion
31. Oregon
32. Pennsylvania
33. Rhode Island
34. South Dakota
35. Tennessee, only the northwest corner
36. Texas, only area north of 34° north
37. Utah
38. Vermont
39. Virginia
40. Washington
41. West Virginia
42. Wisconsin
43. Wyoming
The climate zones listed above are to be used as a guide to determine clothing requirements for a specific detachment. Wind chill equivalent temperatures can vary widely for areas within close proximity to each other due to variations in wind velocity and elevation. Detachment commanders may request a zone change by submitting evidence to the Major Command of the appropriate Military Service that the wind chill equivalent temperature for the coldest month has been within the limits of the requested zone classification for the past 3 consecutive years.

Attachment to Appendix A to Part 110—Climatic Zones Used To Determine Rates of Commutation Allowance (Formula)
The Standard and special commutation rates are based on the latest approved items of clothing for each climatic zone. The zones are:
Zone | Temperature range
1 | 32 degrees Fahrenheit and above.
2 | Below 32 degrees Fahrenheit.
To determine the appropriate zone for each ROTC detachment, use the table below. Enter the appropriate dry bulb temperature at the top and read down. Find the wind velocity on the left and read across. The intersection of the two lines provides the equivalent temperature. For example, a combination of 20 degrees Fahrenheit and a 10 mile-per-hour wind has a wind chill equivalent temperature of 3 degrees Fahrenheit. The wind chill equivalent temperature is based on the average monthly temperature and wind of the coldest month for each of the past 3 consecutive years.
Pt. 110, App. B

Appendix B to Part 110—Formula For ROTC Commutation Rates

Basic Course (General Military Course)
Total Pkg. Cost of Auth. Items+10% Procurement Cost=Adjusted Pkg. Cost—Amortized by: 2-Yr. Life Shoes & Socks; 2-Yr. Life Insignia; 5-Yr. Life Bal. of Pkg.
+15% Custodial Fees+$10.00 Uniform Alteration and Maint.=Net Rate Per Yr. (Rounded to nearest $)

Advanced Course (Professional Officers Course)
Total Pkg. Cost of Auth. Items−1/2 Amt. of Insignia Cost (2-yr. Amortization)+5% Custodial Fees+$10.00 Uniform Alteration & Maint.=Net Rate 2-yr. period (Rounded to nearest $)

Summer Camp (Field Training)
Total Pkg. Cost of Auth. Items−Amortized by 2-yr. Life (Entire pkg., except shoes and socks)+5% Custodial Fees+$10.00 Uniform Alteration & Maint.=Net Rate 2-yr. period (Rounded to nearest $)
Pt. 110, App. C

Appendix C to Part 110—Application of Basic Course Formula (Male and Female Members) (Sample)
| Zone I | Zone II
Total package cost (authorized items) | $159.29 | $180.62
Plus 10% procurement cost | 15.93 | 18.06
Adjusted package cost | 175.22 | 198.68
Amortization:
2-years socks (50% of $1.28) | .64 | .64
2-years shoes (50% of 14.00) | 7.00 | 7.00
2-years insignia (50% of 15.00), if applicable | 7.50 | 7.50
5-years balance package (20% of $144.94, Zone I) (20% of $168.40, Zone II) | 28.99 | 33.68
Amortized package cost | 44.13 | 48.82
Add:
15% custodial fees (15% of amortized package cost) | 6.62 | 7.32
Uniform Alteration and Maintenance | 10.00 | 10.00
Total | 16.62 | 17.32
Net rate | 60.75 | 66.14
Rounded for official standard rate (per year) | 61.00 | 66.00
Special commutation rate (per year) (three times standard rate) | 183.00 | 198.00
Pt. 110, App. D

Appendix D to Part 110—Application of Advanced Course Formula (Male and Female Members) (Sample)
| Zone I | Zone II
Total package cost (authorized items) | $159.29 | $180.62
Less insignia amortization (50% of $15.00), if applicable | 7.50 | 7.50
Adjusted package cost | 151.79 | 173.12
Add:
5% custodial fees (5% of adjusted package cost) | 7.59 | 8.66
Uniform alteration and maintenance | 10.00 | 10.00
| 17.59 | 18.66
Net Rate | 169.38 | 191.78
Rounded official standard rate (2 years) | 169.00 | 192.00
Special commutation rate (2 years) (three times standard rate) | 507.00 | 576.00
Pt. 110, App. E

Appendix E to Part 110—Application of 4-Week Summer Field Training Formula (Sample)
| Zone I | Zone II
Total package cost (authorized items) | $36.56 | $48.70
Amortization Schedule:
Total package less $12.75 (boots and socks) (not reissued) | 23.81 | 35.95
50% amortization (2-year life) | 11.91 | 17.98
Boots and socks added | 12.75 | 12.75
Amortized package cost | 24.66 | 30.73
Add:
5% custodial fees | 1.23 | 1.54
Uniform alteration and maintenance | 10.00 | 10.00
Net rate | 35.89 | 42.27
Rounded for official rate | 36.00 | 42.00
Pt. 112

PART 112—INDEBTEDNESS OF MILITARY PERSONNEL
Sec.
112.1
Purpose.
112.2
Applicability and scope.
112.3
Definitions.
112.4
Policy.
112.5
Processing of debt complaints.
112.6
Processing of involuntary allotments.
112.7
Responsibilities.

Authority:
5 U.S.C. 5520a(k) and 10 U.S.C. 113(d).

Source:
73 FR 59502, Oct. 9, 2008, unless otherwise noted.
§ 112.1
Purpose.
This part:
(a) Updates DoD policies and assigns responsibilities governing delinquent indebtedness of members of the Military Services and prescribes policy for processing involuntary allotments from the pay of military members to satisfy judgment indebtedness in accordance with 5 U.S.C. 5520a(k).
(b) Establishes responsibility for procedures implementing 5 U.S.C. 5520a(k), 15 U.S.C. 1601 note, 1601-1614, 1631-1646, 1661-1665a, 1666-1666j, and 1667-1667e (“Truth in Lending Act”), and 15 U.S.C. 1601 note, and 1692-1692o (“Fair Debt Collection Practices Act”).
§ 112.2
Applicability and scope.
(a) This part applies to the Office of the Secretary of Defense, the Military Departments (including the Coast Guard when it is not operating as a Service in the Navy, under agreement with the Department of Homeland Security), the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Office of the Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other organizational entities in the Department of Defense (hereafter referred to collectively as the “DoD Components”).
(b) This part does not apply to:
(1) Indebtedness of a member of the Military Services to the Federal Government.
(2) Processing of indebtedness claims to enforce judgments against military members for alimony or child support.
(3) Claims by State or municipal governments under the processing guidelines for complaints, including tax collection actions.
§ 112.3
Definitions.
(a) Absence. A member's lack of an “appearance,” at any stage of the judicial process, as evidenced by failing to physically attend court proceedings; failing to be represented at court proceedings by counsel of the member's choosing; or failing to timely respond to pleadings, orders, or motions.
(b) Court. A court of competent jurisdiction within any State, territory, or possession of the United States.
(c) Debt Collector. An agency or agent engaged in the collection of debts described under 15 U.S.C. 1601 note and 1692-1692o (“Fair Debt Collection Practices Act”).
(d) Exigencies of Military Duty. A military assignment or mission-essential duty that, because of its urgency, importance, duration, location, or isolation, necessitates the absence of a member of the Military Services from appearance at a judicial proceeding or prevents the member from being able to respond to a notice of application for an involuntary allotment. Exigency of military duty is normally presumed during periods of war, national emergency, or when the member is deployed.
(e) Judgment. A final judgment must be a valid, enforceable order or decree, by a court from which no appeal may be taken, or from which no appeal has been taken within the time allowed, or from which an appeal has been taken and finally decided. The judgment must award a sum certain amount and specify that the amount is to be paid by an individual who, at the time of application for the involuntary allotment, is a member of the Military Services.
(f) Just Financial Obligation. A legal debt acknowledged by the military member in which there is no reasonable dispute as to the facts or the law; or one reduced to judgment that conforms to Sections 501-591 of title 50 Appendix, United States Code (The Servicemembers Civil Relief Act, as amended), if applicable.
(g) Member of the Military Services. For the purposes of this part, any member of the Regular Army, Air Force, Navy, Marine Corps, or Coast Guard, and any member of a Reserve component of the Army, Air Force, Navy, Marine Corps, or Coast Guard (including the Army National Guard of the United States and the Air National Guard of the United States) on active duty pursuant to a call or order for a period in excess of 180 days at the time an application for involuntary allotment is received by the Director, DFAS, or Commanding Officer, Coast Guard Pay and Personnel Center. The following shall not be considered members:
(1) Retired personnel, including those placed on the temporary or permanent disabled retired list; and
(2) Personnel in a prisoner of war or missing in action status, as determined by the Secretary of the Military Department concerned.
§ 112.4
Policy.
(a) Members of the Military Services are expected to pay their just financial obligations in a proper and timely manner. A Service member's failure to pay a just financial obligation may result in disciplinary action under the Uniform Code of Military Justice (10 U.S.C. 801-940) or a claim pursuant to Article 139 of the Uniform Code of Military Justice. Except as stated in this section, and in paragraphs (a)(1) and (a)(2) of this section, the DoD Components have no legal authority to require members to pay a private debt or to divert any part of their pay for satisfaction of a private debt.
(1) Legal process instituted in civil courts to enforce judgments against military personnel for the payment of alimony or child support shall be acted on pursuant to 42 U.S.C. 651-665, and Chapter 50, of Department of Defense Regulation 7000.14-R Volume 7A. ^1
^1 Copies may be obtained from the DoD Directives Web page at: http://www.dtic.mil/whs/directives.
(2) Involuntary allotments under 5 U.S.C. 5520a(k) shall be established in accordance with this part.
(b) Whenever possible, indebtedness disputes should be resolved through amicable means. Claimants may contact military members by having correspondence forwarded through the military locator services for an appropriate fee.
§ 112.5
Processing of debt complaints.
(a) Debt complaints meeting the requirements of this part and procedures established by the Under Secretary of Defense for Personnel and Readiness, as required by § 112.7(a)(1) shall receive prompt processing assistance from commanders.
(b) Assistance in indebtedness matters shall not be extended to those creditors:
(1) Who have not made a bona fide effort to collect the debt directly from the military member;
(2) Whose claims are patently false and misleading; or
(3) Whose claims are obviously exorbitant.
(c) Some States have enacted laws prohibiting creditors from contacting a debtor's employer about indebtedness or communicating facts on indebtedness to an employer unless certain conditions are met. The conditions that must be met to remove this prohibition are generally such things as reduction of a debt to judgment or obtaining written permission of the debtor.
(1) At DoD installations in States having such laws, the processing of debt complaints shall not be extended to those creditors who are in violation of the State law. Commanders may advise creditors that this rule has been established because it is the general policy of the Military Services to comply with State law when that law does not infringe upon significant military interests.
(2) The rule in paragraph (c)(1) of this section shall govern even though a creditor is not licensed to do business in the State where the debtor is located. A similar practice shall be started in any State enacting a similar law regarding debt collection.
(3) Pursuant to 15 U.S.C. 1601 note and 1692-1692o (“Fair Debt Collection Practices Act”), contact by a debt collector with third parties, such as commanding officers, for aiding debt collection is prohibited without a court order or the debtor's prior consent given directly to the debt collector. Creditors are generally exempt from this requirement, but only when they collect on their own behalf.
§ 112.6
Processing of involuntary allotments.
Pursuant to 5 U.S.C. 5520a(k): (a) In those cases in which the indebtedness of a military member has been reduced to a judgment, an application for an involuntary allotment from the member's pay may be made under procedures prescribed by the Under Secretary of Defense (Comptroller). Such procedures shall provide the exclusive remedy available.
(b) An involuntary allotment from a member's pay shall not be permitted in any indebtedness case in which:
(1) Exigencies of military duty caused the absence of the member from the judicial proceeding at which the judgment was rendered; or
(2) There has not been compliance with the procedural requirements of the Servicemembers Civil Relief Act 50, U.S.C. Appendix, sections 501-591.
§ 112.7
Responsibilities.
(a) The Under Secretary of Defense for Personnel and Readiness shall:
(1) In consultation with the Under Secretary of Defense (Comptroller), establish procedures for the processing of debt complaints.
(2) Have policy oversight on the assistance to be provided by military authorities to creditors of military personnel who have legitimate debt complaints.
(b) The Under Secretary of Defense (Comptroller) shall:
(1) In consultation with the Under Secretary of Defense for Personnel and Readiness establish procedures for processing debt complaints, and administer and process involuntary allotments from the pay of members of the Military Services. This includes the authority to promulgate forms necessary for the efficient administration and processing of involuntary allotments.
(2) Ensure that the Director, Defense Finance and Accounting Service:
(i) Implements procedures established by the Under Secretary of Defense for Personnel and Readiness and the Under Secretary of Defense (Comptroller).
(ii) Considers whether Servicemembers Civil Relief Act 50 U.S.C. Appendix, sections 501-591 has been complied with pursuant to 5 U.S.C. 5520a(k) prior to establishing an involuntary allotment against the pay of a member of the Military Services.
(iii) Publishes, prints, stocks, redistributes, and revises DoD forms necessary to process involuntary allotments.
(c) The Heads of the DoD Components shall urge military personnel to meet their just financial obligations, since failure to do so damages their credit reputation and affects the public image of all DoD personnel. See DoD Directive 5500.7. ^2
^2 See footnote 1 to § 112.4(a)(1).
(d) The Secretaries of the Military Departments shall:
(1) Establish, as necessary, procedures to administer and process involuntary allotments from the pay of members of the Military Services. This includes designating those commanders, or other officials who may act in the absence of the commander, who shall be responsible for determining whether a member's absence from a judicial proceeding was caused by exigencies of military duty, and establishing appeal procedures regarding such determinations.
(2) Require commanders to counsel members to pay their just debts, including complying, as appropriate, with court orders and judgments for the payments of alimony or child support.
(3) Emphasize prompt command action to assist with the processing of involuntary allotment applications.
(e) The Chief, Office of Personnel and Training, for the Coast Guard shall:
(1) Establish, as necessary, procedures supplemental to those promulgated by the Under Secretary of Defense for Personnel and Readiness or the Under Secretary of Defense (Comptroller) to administer and process involuntary allotment from the pay of members of the Military Services; this includes the authority to promulgate forms necessary for the efficient administration and processing of involuntary allotments.
(2) Ensure that the Commanding Officer, Coast Guard Pay and Personnel Center:
(i) Implements procedures established by the Under Secretary of Defense for Personnel and Readiness, the Under Secretary of Defense (Comptroller), and Chief, Office of Personnel and Training.
(ii) Considers whether the Servicemembers Civil Relief Act, as amended (50 U.S.C. Appendix, sections 501-591) has been complied with pursuant to 5 U.S.C. 5520a(k) prior to establishing an involuntary allotment against the pay of a member of the Military Services.
(iii) Acts as the Coast Guard manager for forms necessary to process involuntary allotments.
Pt. 113

PART 113—INDEBTEDNESS PROCEDURES OF MILITARY PERSONNEL
Sec.
113.1
Purpose.
113.2
Applicability.
113.3
Definitions.
113.4
Policy.
113.5
Responsibilities.
113.6
Procedures.
Appendix A to Part 113—Certificate of Compliance
Appendix B to Part 113—Standards of Fairness
Appendix C to Part 113—Sample DD Form 2653, “Involuntary Allotment Application”
Appendix D to Part 113—Sample DD Form 2654, “Involuntary Allotment Notice and Processing”

Authority:
5 U.S.C. 5520a(k) and 10 U.S.C. 113(d).

Source:
60 FR 1722, Jan. 5, 1995, unless otherwise noted.
§ 113.1
Purpose.
This part implements policy, assigns responsibilities, and prescribes procedures under 32 CFR part 112 governing delinquent indebtedness of members of the Military Services.
§ 113.2
Applicability.
This part applies to the Office of the Secretary of Defense, the Military Departments (including the Coast Guard when it is not operating as a Military Service in the Navy by agreement with the Department of Transportation), the Chairman of the Joint Chiefs of Staff, the Unified Combatant Commands, the Inspector General of the Department of Defense, the Defense Agencies, and the DoD Field Activities (hereafter referred to collectively as “the DoD Components”). The term “Military Services,” as used herein, refers to the Army, the Navy, the Air Force, the Marine Corps, and the Coast Guard.
§ 113.3
Definitions.
(a) Appearance. The presence and participation of a member of the Military Services, or an attorney of the member's choosing, throughout the judicial proceeding from which the judgment was issued that is the basis for a request for enforcement through involuntary allotment.
(b) Applicant. The original judgment holder, a successor in interest, or attorney or agent thereof who requests an involuntary allotment from a member of the Military Services pursuant to DoD Directive 1344.9. ^1
^1 Copies may be obtained, at cost, from the National Technical Information Service, 5285 Port Royal Road, Springfield, VA 22161.
(c) Pay subject to involuntary allotment. For purposes of complying with 32 CFR part 112 and 5 U.S.C. 5520a(k), pay subject to involuntary allotment shall be determined by:
(1) Including:
(i) Basic pay but excluding reduction for education for education benefits under section 38 U.S.C. 1411 (“New G.I. Bill”).
(ii) Special pay (including enlistment and reenlistment bonuses).
(iii) Incentive pay.
(iv) Accrued leave payments (basic pay portion only).
(v) Readjustment pay.
(vi) Severance pay (including disability severance pay).
(vii) Lump-sum Reserve bonus.
(viii) Inactive duty training pay.
(2) Excluding:
(i) Retired pay (including) disability retired pay).
(ii) Retainer pay.
(iii) Separation pay, Voluntary Separation Incentive (VSI), and Special Separation Benefit (SSB).
(iv) Allowances paid under titles 10 and 37 of the United States Code (e.g., Chapter 53 of title 10 and Chapter 7 of title 37, respectively) and other reimbursements for expenses incurred in connection with duty in the Military Service or allowances in lieu thereof.
(v) Payments not specifically enumerated in § 113.3(c)(1).
(3) After including the items in § 113.3(c)(1), subtracting the following pay items to compute the final earnings value of the pay subject to involuntary allotment:
(i) Federal and State employment and income tax withholding (amount limited only to that which is necessary to fulfill member's tax liability).
(ii) FICA tax.
(iii) Amounts mandatorily withheld for the United States Soldiers' and Airmen's Home.
(iv) Deductions for the Servicemen's Group Life Insurance coverage.
(v) Retired Serviceman's Family Protection Plan.
(vi) Indebtedness to the United States.
(vii) Fines and forfeitures ordered by a court-martial or a commanding officer.
(viii) Amounts otherwise required by law to be deducted from a member's pay (except payments under 42 U.S.C. 659, 661, 662, and 665).
(d) Preponderence of the evidence. A greater weight of evidence that is more credible and convincing to the mind. That which best accords with reason and probability. (See Black's Law Dictionary ^2)
^2 Black's Law Dictionary, Fourth Edition, West Publishing Company, Saint Paul, Minnesota (1952).
(e) Proper and Timely Manner. A manner that under the circumstances does not reflect discredit on the Military Service.
§ 113.4
Policy.
(a) It is DoD policy under 32 CFR part 112 that procedures be established for the processing of debt complaints against members of the Military Services and involuntary allotments from the pay of members of the Military Services.
(b) An involuntary allotment shall not exceed the lesser of 25 percent of a member's pay subject to involuntary allotment or the maximum percentage of pay subject to garnishment proceedings under the applicable State law.
(c) The amount of an involuntary allotment under 32 CFR part 112 and this part when combined with deductions as a result of garnishments or statutory allotments for spousal support and child support under 42 U.S.C. 659, 661, 662, or 665, may not exceed the lesser of 25 percent of a member's pay subject to involuntary allotment or the maximum percentage of pay subject to garnishment proceedings under applicable State law. In any case in which the maximum percentage would be exceeded, garnishments and involuntary allotments for spousal and child support shall take precedence over involuntary allotments authorized under 32 CFR part 112 and this part. Involuntary allotments established under 32 CFR part 112 and this part shall be reduced or stopped as necessary to avoid exceeding the maximum percentage allowed.
(d) The Truth in Lending Act (15 U.S.C. 1601 note, 1601-1614, 1631-1646, 1661-1666j, and 1667-1667e) prescribes the general disclosure requirements that must be met by those offering or extending consumer credit and Federal Reserve Board Regulation Z (12 CFR 226) prescribes the specific disclosure requirements for both open-end and installment credit transactions. In place of Federal Government requirements, State regulations apply to credit transactions when the Federal Reserve Board has determined that the State regulations impose substantially similar requirements and provide adequate enforcement measures. Commanding officers, with the assistance of judge advocates, should check regulations of the Federal Reserve Board to determine whether Federal or State laws and regulations govern.
§ 113.5
Responsibilities.
(a) The Under Secretary of Defense for Personnel and Readiness shall monitor compliance with this part.
(b) The Under Secretary of Defense (Comptroller) shall ensure Defense Finance and Accounting Service (DFAS) implementation of this part.
(c) The Heads of the DoD Components shall ensure compliance with this part.
§ 113.6
Procedures.
(a) The following procedures apply to the processing of debt complaints against members of the Military Services.
(1) It is incumbent on those submitting indebtedness complaints to show that they have met the disclosure requirements of the Truth in Lending Act (15 U.S.C. 1601 note, 1601-1614, 1631-1646, 1661-1666j, and 1667-1667e) and Federal Reserve Board Regulation Z (12 CFR 226), and that they complied with the Standards of Fairness (appendix B to this part).
(2) Creditors subject to Federal Reserve Board Regulation Z (12 CFR 226), and assignees claiming thereunder, shall submit with their debt complaint an executed copy of the Certificate of Compliance (appendix A to this part), and a true copy of the general and specific disclosures provided the member of the Military Service as required by the Truth in Lending Act (15 U.S.C. 1601 note, 1601-1614, 1631-1646, 1661-1666j, and 1667-1667e). Debt complaints that request assistance but do not meet these requirements will be returned without action to the claimant.
(3) A creditor not subject to Federal Reserve Board Regulation Z (12 CFR 226), such as a public utility company, shall submit with the request a certificate that no interest, finance charge, or other fee is in excess of that permitted by the law of the State in which the obligation was incurred.
(4) A foreign-owned company having debt complaints shall submit with its request a true copy of the terms of the debt (English translation) and shall certify that it has subscribed to the Standards of Fairness (appendix B to this part).
(5) Debt complaints that meet the requirements of this part shall be processed by Department of Defense Components. “Processed” means that Heads of the Department of Defense Components, or designees, shall:
(i) Review all available facts surrounding the transaction forming the basis of the complaint, including the member's legal rights and obligations, and any defenses or counterclaims the member may have.
(ii) Advise the member concerned that:
(A) Just financial obligations are expected to be paid in a proper and timely manner, and what the member should do to comply with that policy;
(B) Financial and legal counseling services are available under DoD Directive 1344.7 ^3 in resolving indebtedness; and
^3 See footnote 1 to § 113.3(b).
(C) That a failure to pay a just debt may result in the creditor obtaining a judgment from a court that could form the basis for collection of pay from the member pursuant to an involuntary allotment.
(iii) If a member acknowledges a debt as a result of creditor contact with a DoD Component, advise the member that assistance and counseling may be available from the on-base military banking office, the credit union serving the military field of membership, or other available military community service organizations.
(iv) Direct the appropriate commander to advise the claimant that:
(A) Those aspects of DoD policy prescribed in 32 CFR part 112.4, are pertinent to the particular claim in question; and
(B) The member concerned has been advised of his or her obligations on the claim.
(v) The commander's response to the claimant shall not undertake to arbitrate any disputed debt, or admit or deny the validity of the claim. Under no circumstances shall the response indicate whether any action has been taken, or will be taken, against the member as a result of the complaint.
(b) The following procedures apply to the processing of involuntary allotments from the pay of members of the Military Services.
(1) Involuntary allotment application. (i) Regardless of the Service Affiliation of the member involved, with the exception of members of the Coast Guard an application to establish an involuntary allotment from the pay of a member of the Military Services shall be made by sending a completed DD Form 2653, “Involuntary Allotment Application” (appendix C to this part) to the appropriate address listed below. Applications sent to any other address shall be returned without action to the applicant.
(For Army, Navy, Air Force, or Marine Corps)
Defense Finance and Accounting Service, Cleveland Center, Code L, P.O. Box 998002, Cleveland, OH 44199-8002
(For Coast Guard only)
Coast Guard Pay and Personnel Center (LGL), 444 S.E. Quincy Street, Topeka, KS 66683-3591
(ii) Each application must include a copy of the final judgment certified by the clerk of court and such other documents as may be required by § 113.6(b)(1)(iv).
(iii) A garnishment summons or order is insufficient to satisfy the final judgment requirement of § 113.6(b)(1)(ii) and is not required to apply for an involuntary allotment under this part.
(iv) Involuntary allotment applications must contain the following information, certifications, and acknowledgment:
(A) The full name, social security number, and branch of Service of the military member against whose pay an involuntary allotment is sought. Although not required, inclusion of the member's current duty station and duty address on the application form will facilitate processing of the application.
(B) The applicant's full name and address. If the applicant is not a natural person, the application must be signed by an individual with the authority to act on behalf of such entity. If the allotment is to be in favor of a person other than the original judgment holder, proof of the right to succeed to the interest of the original judgment holder is required and must be attached to the application.
(C) The dollar amount of the judgment. Additionally, if the judgment awarded interest, the total dollar amount of the interest on the judgment accrued to the date of application.
(D) A certification that the judgment has not been amended, superseded, set aside, or satisfied; or, if the judgment has been satisfied in part, the extent to which the judgment remains unsatisfied.
(E) A certification that the judgment was issued while the member was not on active duty (in appropriate cases). If the judgment was issued while the member was on active duty, a certification that the member was present or represented by an attorney of the member's choosing in the proceedings, or if the member was not present or represented by an attorney of the member's choosing, that the judgment complies with the Soldiers' and Sailors' Civil Relief Act of 1940, as amended (50 U.S.C. appendix sections 501-591).
(F) A certification that the member's pay could be garnished under applicable State law and section 5520a(k) of the United States Code, if the member were a civilian employee.
(G) A certification that, to the knowledge of the applicant, the debt has not been discharged in bankruptcy, nor has the member filed for protection from creditors under the bankruptcy laws of the United States.
(H) A certification that if the judgment is satisfied prior to the collection of the total amount through the involuntary allotment process, the applicant will provide prompt notice that the involuntary allotment must be discontinued.
(I) A certification that if the member overpays the amount owed on the judgment, the applicant shall refund the amount of overpayment to the member within 30 days of discovery or notice of the overpayment, whichever, is earlier, and that if the applicant fails to repay the member, the applicant understands he or she may be denied the right to collect by involuntary allotment on other debt reduced to judgments.
(J) Acknowledgment that as a condition of application, the applicant agrees that neither the United States, nor any disbursing official or Federal employee whose duties include processing involuntary allotment applications and payments, shall be liable for any payment or failure to make payment from moneys due or payable by the United States to any person pursuant to any application made in accordance herewith.
(v) The original and three copies of the application and supporting documents must be submitted by the applicant to DFAS.
(vi) A complete “application package” (the DD Form 2653, supporting documentation, and three copies of the application and supporting documents), is required for processing of any request to establish an involuntary allotment pursuant to this part and 32 CFR part 112.
(vii) Applications that do not conform to the requirements of this part shall not be processed. If an application is ineligible for processing, the application package shall be returned to the applicant with an explanation of the deficiency. In cases involving repeated false certifications by an applicant, the designated DFAS official may refuse to accept or process additional applications by that applicant for such period of time as the official deems appropriate to deter against such violations in the future.
(2) Processing of involuntary allotment applications. (i) Promptly upon receipt of DD Form 2653 (Appendix C to this part), the designated DFAS official shall review the “application package” to ensure compliance with the requirements of this part. If the application package is complete, the DFAS official shall:
(A) Complete Section I of DD Form 2654, “Involuntary Allotment Notice and Processing” (Appendix D to this part), by inserting the name, social security number, rank, and branch of service of the military member against whom an application for involuntary allotment is being processed. Additionally, the DFAS official shall provide the due date for receipt of a response at DFAS. The due date shall be 90 days from the date DFAS mails the DD Form 2654 to the commander and member concerned as provided for in § 113.6(b)(2)(i)(B).
(B) Mail one copy of the application package to the member and two copies of the application package, along with DD Form 2654, to the commander of the military member or other official as designated by the Military Service concerned during times of war, national emergency, deployment, or other similar circumstances, who may act for the commander, provided the Military Service concerned has provided DFAS with the name or position of the official and the appropriate address (hereinafter, the meaning of the term “commander” includes such other official).
(C) Within 60 days of mailing the copies of the application package and DD Form 2654, DFAS shall provide notice to the member and the member's commander that automatic processing of the involuntary allotment application shall occur if a response (including notice of an approved extension as authorized in § 113.6(b)(2)(iii)(B) and (F), is not received by the due date specified in Section I of DD Form 2654. In the absence of a response, DFAS may automatically process the involuntary allotment application on the fifteenth calendar day after the date a response was due. When DFAS has received notice of an extension, automatice processing shall not begin until the fifteenth calendar day after the approved extension date.
(D) Retain the original of the application package and DD Form 2654.
(ii) Upon receipt of an application, the commander shall determine if the member identified in Section I of DD Form 2654 is assigned or attached to the commander's unit and available to respond to the involuntary allotment application. If the member is not assigned or attached, or not available to respond (e.g., retired, in a prisoner of war status, or in a missing in action status), the commander will promptly complete Section II of DD Form 2654 and attach appropriate documentation supporting the determination. The commander will then mail the application package and DD Form 2654 to DFAS. Section II shall also be used by the commander to notify DFAS of extensions beyond the due date for a response contained in Section I of DD Form 2654. When such extensions are authorized, the commander will complete Section II, make a copy of Sections I and II, and promptly mail the copy to DFAS.
(iii) Within 5 days of receipt of an application package and DD Form 2654 from the designated DFAS official, the commander shall notify the member of the receipt of the application, provide the member a copy of the entire application package, and counsel the member using and completing Section III of DD Form 2654 about the following:
(A) That an application for the establishment of an involuntary allotment for the lesser of 25 percent of the member's pay subject to involuntary allotment or the maximum percentage of pay subject to garnishment proceedings under the applicable State law has been received.
(B) That the member has 15 calendar days from the date of receipt of the commander's notice to complete Section IV of DD Form 2654. That for good cause shown, the commander may grant an extension of reasonable time (normally not exceeding 30 calendar days) to submit a response. That during times of deployment, war, national emergency, assignment outside the United States, hospitalization, or other similar situations that prevent the member from obtaining necessary evidence or from responding in a timely manner, extensions exceeding 30 calendar days may be granted. That if the member fails to respond within the time allowed, the commander will note the member's failure to respond in Section V of DD Form 2654 and send the form to DFAS for appropriate action.
(C) That the member's response will either consent to the involuntary allotment or contest it.
(D) That the member may contest the application for any one of the following reasons:
(1) There has not been compliance with the procedural requirements of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended (50 U.S.C. appendix sections 501-591) during the judicial proceeding upon which the involuntary allotment application is sought.
(2) “Exigencies of military duty” (as defined in 32 CFR part 112.3(d)) caused the “absence” of the member from appearance in a judicial proceeding forming the basis for the judgment upon which the application is sought.
(3) Information in the application is patently false or erroneous in material part.
(4) The judgment has been fully satisfied, superseded, or set aside.
(5) The judgment has been materially amended, or partially satisfied. When asserting this defense, the member shall include evidence of the amount of the judgment that has been satisfied.
(6) There is a legal impediment to the establishment of the involuntary allotment (for example, the judgment debt has been discharged in bankruptcy, the judgment debtor has filed for protection from the creditors under the bankruptcy laws of the United States, the applicant is not the judgment holder nor a proper successor in interest to that holder, or the applicant has been enjoined by a Federal or state court from enforcing the judgment debt).
(7) Or other appropriate reasons that must be clearly specified and explained by the member.
(E) That, if the member contests the involuntary allotment, the member shall provide evidence (documentary or otherwise) in support thereof. Furthermore, that any evidence submitted by the member may be disclosed to the applicant for the involuntary allotment.
(F) That the member may consult with a legal assistance attorney, if reasonably available, or a civilian attorney at no expense to the government. That if a legal assistance attorney is available, the member should immediately arrange for an appointment. That the member may request a reasonable delay from the commander to obtain legal assistance (in cases where an approved delay will cause DFAS to receive the member's response after the due date identified in Section I of DD Form 2654, the commander must immediately notify the designated DFAS official of the delay, the date for an expected response, and the reason for the delay by completing Section II of DD Form 2654 and forwarding a copy of Sections I and II to DFAS). Additionally, that requests for extensions of time based on the need for legal assistance shall be denied to members who fail to exercise due diligence in seeking such assistance.
(G) That if the member contests the involuntary allotment on the grounds that exigencies of military duty caused the absence of the member from the judicial proceeding at which the judgment was rendered, then the member's commander shall review and make the final determination on this contention, and notify the designated DFAS official of the commander's decision by completing Section V of DD Form 2654 and forwarding the form to DFAS.
(1) In determining whether exigencies of military duty caused the absence of the member, the commander at the level designated by the Service concerned shall consider the definition of “exigencies of military duty” (as defined in 32 CFR part 112.3(d)).
(2) Additionally, consideration shall be given to whether the commander at the time determined the military duties in question to be of such paramount importance that they prevented making the member available to attend the judicial proceedings, or rendered the member unable to timely respond to process, motions, pleadings, or orders of the court.
(H) That if the member contests the involuntary allotment on any basis other than exigencies of military duty, the application package and DD Form 2654 shall be returned to the commander who shall forward it to the designated DFAS official for appropriate action.
(I) That if the member fails to respond to the commander within the time allowed under § 113.6(b)(2)(iii)(B), the commander shall notify the designated DFAS official of the member's failure to respond by completing Section V of DD Form 2654, and forwarding the form to DFAS.
(iv) After counseling the member in accordance with § 113.6(b)(2)(iii)(A)-(I), the commander shall:
(A) Date and sign Section III of DD Form 2654.
(B) Obtain the member's acknowledgment of counseling by having the member sign the appropriate space on Section III of DD Form 2654.
(C) Determine if the member consents to the involuntary allotment or needs the time authorized under this part to review the application package and take appropriate action. If the member consents to the involuntary allotment, the commander shall direct the member to appropriately complete Section IV of DD Form 2654. The commander must then complete the appropriate item in Section V and promptly forward the completed DD Form 2654 to the designated DFAS official.
(D) Complete the appropriate items in Section V of DD Form 2654 when the member fails to respond within the time authorized for a response, or asserts that exigencies of military duty caused the absence of the member from an appearance in the judicial proceeding upon which the Involuntary Allotment Application is sought.
(1) In determining whether exigencies of military duty caused the absence of the member, the commander, at the level designated by the Service concerned, shall consider the definition of “exigencies of military duty” (as defined in 32 CFR part 112.3(d)), the evidence provided by the member, any other reasonably available evidence (e.g., a copy of the member's personnel record), and whether the commander at the time determined the military duties in question to be of such paramount importance that they prevented making the member available to attend the judicial proceedings, or rendered the member unable to timely respond to process, motions, pleadings, or orders of the court.
(2) The evidentiary standard for a commander to determine whether existences of military duty caused the absence of the member from an appearance in the judicial proceeding upon which the Involuntary Allotment Application is sought is a “preponderance of the evidence” (as defined in § 113.3(d) of this part).
(3) If the commander has made a determination on exigencies of military duty, the commander must insert in Section V of DD Form 2654, the title and address of the appeal authority.
(E) Promptly following the date the member's response is due to the commander as determined by § 113.6(b)(2)(iii)(B), ensure that the DD Form 2654 is appropriately completed and mail the form, along with any response received from the member, to DFAS.
(F) Provide the member a copy of the completed DD Form 2654 within 5 days of mailing to the designated DFAS official.
(v) Upon receipt of DD Form 2654 and any additional evidence submitted by the member, the designated DFAS official shall conduct a review of the entire application package, DD Form 2654, and any evidence submitted by the member, to determine whether the application for an involuntary allotment should be approved and established.
(A) In those cases where the member's commander has completed Section V of DD Form 2654, and determined that exigencies of military duty caused the absence of the member from an appearance in a judicial proceeding upon which the involuntary allotment application is sought, the designated DFAS official shall deny the involuntary allotment application and provide the applicant written notice of the denial and the reason therefor. The designated DFAS official shall also advise the applicant that:
(1) The responsibility for determining whether exigencies of military duty existed belonged to the member's commander and the Military Department concerned.
(2) The commander's decision may be appealed within 60 days of the date DFAS mailed the notice of the decision to the applicant.
(3) An Appeal must be submitted to the appeal authority at the address provided by DFAS (as found in Section V of the DD Form 2654) in their written notice of denial, and that an appeal submitted to an appeal authority and address different from the one provided by DFAS may be returned without action.
(4) An appeal must be submitted in writing and contain sufficient evidence to overcome the presumption that the commander's exigency determination was correct.
(5) The appellate authority shall decide an appeal within 30 days of its receipt and promptly notify the applicant in writing of the decision. The 30 day decision period may be extended during times of deployment, war, national emergency, or other similar situations.
(6) If an appeal is successful, the applicant must submit a written request, along with a copy of the appellate authority's decision, to DFAS within 15 days of receipt of the appellate authority's decision.
(B) Upon receiving written notice that an applicant has successfully appealed a commander's determination on exigencies of military duty that resulted in denial of an involuntary allotment application, DFAS shall review the application in accordance with § 113.6(b)(2)(v)(C), and determine whether the involuntary allotment should be approved and initiated.
(C) In all cases, other than as described in § 113.6(b)(2)(v)(A), the designated DFAS official shall deny an involuntary allotment application, and give written notice to the applicant of the reason(s) for denial, if the designated DFAS official determines that:
(1) There has not been compliance with the procedural requirements of the Soldier's and Sailor's Civil Relief Act of 1940, as amended (50 U.S.C. appendix sections 501-591) during the judicial proceeding upon which the involuntary allotment application is sought.
(2) Information in the application is patently false or erroneous in material part.
(3) The judgment has been fully satisfied, superseded, or set aside.
(4) The judgment has been materially amended, or partially satisfied. In such a case, the request for involuntary allotment may be approved only to satisfy that portion of the judgment that remains in effect and unsatisfied; the remainder of the request shall be denied.
(5) There is a legal impediment to the establishment of the involuntary allotment (for example, the judgment debt has been discharged in bankruptcy, the judgment debtor has filed for protection from the creditors under the bankruptcy laws of the United States, the applicant is not the judgment creditor nor a proper successor in interest to that creditor, or the applicant has been enjoined by a Federal or State court from enforcing the judgment debt).
(6) The member's pay is already subject to one or more involuntary allotments or garnishments that equal the lesser of 25 percent of the member's pay subject to involuntary allotment or the maximum percentage of pay subject to garnishment proceedings under the applicable State law.
(7) The applicant has abused the processing privilege (e.g., an applicant, having been notified of the requirements of this part, repeatedly refuses or fails to comply therewith).
(8) Or other appropriate reasons that must be clearly explained to the applicant.
(D) In all cases other than as described in § 113.6(b)(2)(v) (A) and (C), the designated DFAS official shall approve the involuntary allotment application and establish an involuntary allotment against the pay subject to involuntary allotment of the member.
(vi) The designated DFAS official shall, at any time after establishing an involuntary allotment, cancel or suspend such allotment and notify the applicant of that cancellation if the member concerned, or someone acting on his or her behalf, submits legally sufficient proof, by affidavit or otherwise, that the allotment should not continue because of the existence of the factors enumerated in § 113.6(b)(2)(v)(A) and (C)(1)-(8).
(3) Payments. (i) Payment of an approved involuntary allotment under 32 CFR part 112 and this part shall commence within 30 days after the designated DFAS official has approved the involuntary allotment.
(ii) Payments under this part shall not be required more frequently than once each month, and the designated official shall not be required to vary normal pay and disbursement cycles.
(iii) If the designated DFAS official receives several applications on the same member of a Military Service, payments shall be satisfied on a first-come, first-served basis.
(iv) Payments shall continue until the judgment is satisfied or until canceled or suspended.
(A) DFAS shall collect the total judgment, including interest when awarded by the judgment. Within 30 days following collection of the amount of the judgment, including interest as annotated by the applicant in Section I of DD Form 2654, the applicant may submit a final statement of interest that accrued during the pay-off period. This final statement of interest request must be accompanied by a statement of account showing how the applicant computed the interest amount. DFAS will collect this post-application interest provided it is an amount owed pursuant to the judgment. DFAS shall not accept any further interest requests.
(B) Interest or other costs associated with the debt forming the basis for the judgment, but not included as an amount awarded by the judgment, shall not be paid to applicants for involuntary allotments.
(v) If the member is found not to be entitled to money due from or payable by the Military Services, the designated official shall return the application and advise the applicant that no money is due from or payable by the Military Service to the member. When it appears that pay subject to an involuntary allotment is exhausted temporarily or otherwise unavailable, the applicant shall be told why and for how long that money is unavailable, if known. Involuntary allotments shall be canceled on or before the date a member retires, is discharged, or is released from active duty. The designated DFAS official shall notify the applicant of the reason for cancellation.
(vi) Upon receiving notice from an applicant that a judgment upon which an involuntary allotment is based has been satisfied, vacated, modified, or set aside, the designated DFAS official shall promptly adjust or discontinue the involuntary allotment.
(vii) The Under Secretary of Defense (Comptroller) may, in DoD 7000.14-R ^4 Volume 7, Part A, designate the priority to be given to involuntary allotments pursuant to 32 CFR part 112 and this part, among the deductions and collections taken from a member's pay, except that they may not give precedence over deductions required to arrive at a member's disposable pay for garnishments or involuntary allotments authorized by statute for alimony and child support payments. In the absence of a contrary designation by the Comptroller, all other lawful deductions (except voluntary allotments by the member) and collections shall take precedence over these involuntary allotments.
^4 See footnote 1 to § 113.3(b).
Pt. 113, App. A

Appendix A to Part 113—Certificate of Compliance
I certify that the (Name of Creditor) upon extending credit
to
on
(Date)
complied with the full disclosure requirements of the Truth-in-Lending Act and Regulation Z, and the Fair Debt Collection Practices Act (or the laws and regulations of State of __________), and that the attached statement is a true copy of the general and specific disclosures provided the obligor as required by law.
I further certify that the Standards of Fairness set forth in DoD Directive 1344.9 ^1 have been applied to the consumer credit transaction to which this form refers. (If the unpaid balance has been adjusted as a consequence, the specific adjustments in the finance charge and the annual percentage rate should be set forth below.)
^1 Copies may be obtained, at cost, from the National Technical Information Service, 5285 Port Royal Road, Springfield, VA 22161.
(Adjustments)
(Date of Certification)
(Signature of Creditor or Authorized Representative)
(Street)
(City, State and Zip Code)
Pt. 113, App. B

Appendix B to Part 113—Standards of Fairness
1. No finance charge contracted for, made, or received under any contract shall be in excess of the charge that could be made for such contract under the law of the place in which the contract is signed in the United States by the military member.
a. In the event a contract is signed with a U.S. company in a foreign country, the lowest interest rate of the State or States in which the company is chartered or does business shall apply.
b. However, interest rates and service charges applicable to overseas military banking facilities shall be as established by the Department of Defense.
2. No contract or loan agreement shall provide for an attorney's fee in the event of default unless suit is filed, in which event the fee provided in the contract shall not exceed 20 percent of the obligation found due. No attorney fees shall be authorized if the attorney is a salaried employee of the holder.
3. In loan transactions, defenses that the debtor may have against the original lender or its agent shall be good against any subsequent holder of the obligation. In credit transactions, defenses against the seller or its agent shall be good against any subsequent holder of the obligation, provided that the holder had actual knowledge of the defense or under conditions where reasonable inquiry would have apprised the holder of this fact.
4. The military member shall have the right to remove any security for the obligation beyond State or national boundaries if the military member or family moves beyond such boundaries under military orders and notifies the creditor, in advance of the removal, of the new address where the security will be located. Removal of the security shall not accelerate payment of the obligation.
5. No late charge shall be made in excess of 5 percent of the late payment, or $5.00, whichever is the lesser amount, or as provided by law or applicable regulatory agency determination. Only one late charge may be made for any tardy installment. Late charges shall not be levied where an allotment has been timely filed, but payment of the allotment has been delayed. Late charges by overseas banking facilities are a matter of contract with the Department of Defense.
6. The obligation may be paid in full at any time or through accelerated payments of any amount. There shall be no penalty for prepayment. In the event of prepayment, that portion of the finance charges that has inured to the benefit of the seller or creditor shall be prorated on the basis of the charges that would have been ratably payable had finance charges been calculated and payable as equal periodic payments over the terms of the contract, and only the prorated amount to the date of prepayment shall be due. As an alternative, the “Rule of 78” may be applied.
7. If a charge is made for loan insurance protection, it must be evidenced by delivery of a policy or certificate of insurance to the military member within 30 days.
8. If the loan or contract agreement provides for payments in installation, each payment, other than the down payment, shall be in equal or substantially equal amounts, and installments shall be successive and of equal or substantially equal duration.
9. If the security for the debt is repossessed and sold in order to satisfy or reduce the debt, the repossession and resale shall be governed by the laws of the State in which the security is requested.
10. A contract for personal goods and services may be terminated at any time before delivery of the goods or services without charge to the purchaser. However, if goods made to the special order of the purchaser result in preproduction costs, or require preparation for delivery, such additional costs shall be listed in the order form or contract.
a. No termination charge shall be made in excess of this amount. Contracts for delivery at future intervals may be terminated as to the undelivered portion.
b. The purchaser shall be chargeable only for that proportion of the total cost that the goods or services delivered bear to the total goods called for by the contract. (This is in addition to the right to rescind certain credit transactions involving a security interest in real estate provided by the Truth in Lending Act (15 U.S.C. 1601 note, 1601-1614, 1631-1646, 1661-1665a, 1666-1666j, and 1667-1667e) and Federal Reserve Board Regulation Z (12 CFR 226)).
Pt. 113, App. C

Appendix C to Part 113—Sample DD Form 2653, “Involuntary Allotment Application”
Pt. 113, App. D

Appendix D to Part 113—Sample DD Form 2654, “Involuntary Allotment Notice and Processing”
Pt. 142

PART 142—COPYRIGHTED SOUND AND VIDEO RECORDINGS
Sec.
142.1
Purpose.
142.2
Applicability.
142.3
Policy.
142.4
Procedures.
142.5
Responsibilities.

Authority:
10 U.S.C. 133.

Source:
49 FR 49452, Dec. 20, 1984, unless otherwise noted.
§ 142.1
Purpose.
This part provides policy, prescribes procedures, and assigned responsibilities regarding the use of copyrighted sound and video recordings within the Department of Defense.
§ 142.2
Applicability.
(a) The provisions of this part apply to the Office of the Secretary of Defense, the Military Departments, the Organization of the Joint Chiefs of Staff, the Unified and Specified commands, and the Defense Agencies (hereafter referred to collectively as “DoD Components”).
(b) This part does not regulate the procurement or use of copyrighted works for authorized official purposes.
§ 142.3
Policy.
(a) It is DoD policy: (1) To recognize the rights to copyright owners by establishing specific guidelines for the use of copyrighted works by individuals within the DoD community, consistent with the Department's unique mission and worldwide commitments, and (2) Not to condone, facilitate, or permit unlicensed public performance or unlawful reproduction for private or personal use of copyrighted sound or video recordings, using government appropriated or nonappropriated-fund-owned or leased equipment or facilities.
(b) Although the policy expressed in this Directive takes into account the copyright law of the United States, the application of that law to specific situations is a matter for interpretation by the U.S. Copyright Office and the Department of Justice.
§ 142.4
Procedures.
(a) Permission or licenses from copyright owners shall be obtained for public performance of copyrighted sound and video recordings.
(b) Component procedures established pursuant to § 142.5, below provide guidance for determining whether a performance is “public.” These general principles will be observed:
(1) A performance in a residential facility or a physical extension thereof is not considered a public performance.
(2) A performance in an isolated area or deployed unit is not considered a public performance.
(3) Any performance at which admission is charged normally would be considered a public performance.
(c) Government audio and video duplicating equipment and appropriated funded playback equipment may not be used for reproduction of copyrighted sound or video recordings.
§ 142.5
Responsibilities.
Heads of DoD Components shall establish procedures to comply with this Directive and shall provide necessary local guidance and legal interpretation.
Pt. 143

PART 143—DOD POLICY ON ORGANIZATIONS THAT SEEK TO REPRESENT OR ORGANIZE MEMBERS OF THE ARMED FORCES IN NEGOTIATION OR COLLECTIVE BARGAINING
Sec.
143.1
Purpose.
143.2
Applicability.
143.3
Definitions.
143.4
Policy.
143.5
Prohibited activity.
143.6
Activity not covered by this part.
143.7
Responsibilities.
143.8
Guidelines.

Authority:
10 U.S.C. 801-940 and 10 U.S.C. 976.

Source:
71 FR 76914, Dec. 22, 2006, unless otherwise noted.
§ 143.1
Purpose.
This part provides DoD policies and procedures for organizations whose objective is to organize or represent members of the Armed Forces of the United States for purposes of negotiating or bargaining about terms or conditions of military service. The policies and procedures set forth herein are designed to promote the readiness of the Armed Forces to defend the United States. This part does not modify or diminish the existing authority of commanders to control access to, or maintain good order and discipline on, military installations; nor does it modify or diminish the obligations of commanders and supervisors under 5 U.S.C. 7101-7135 with respect to organizations representing DoD civilian employees.
§ 143.2
Applicability.
(a) The provisions of this part apply to:
(1) The Office of the Secretary of Defense, the Military Departments, the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Office of the Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other organizational entities in the Department of Defense (hereafter referred collectively as the “DoD Components”).
(2) Individuals and groups entering, using, or seeking to enter or use military installations.
(b) This part does not limit the application of the Uniform Code of Military Justice in 10 U.S.C. 901-940 or 10 U.S.C. 976 including the prohibitions and criminal penalties set forth therein with respect to matters that are the subject of this part or that are beyond its scope.
§ 143.3
Definitions.
(a) Member of the Armed Forces. A member of the Armed Forces who is serving on active duty, or a member of a Reserve component while performing inactive duty training.
(b) Military labor organization. Any organization that engages in or attempts to engage in:
(1) Negotiating or bargaining with any civilian officer or employee, or with any member of the Armed Forces, on behalf of members of the Armed Forces, concerning the terms or conditions of military service of such members in the Armed Forces;
(2) Representing individual members of the Armed Forces before any civilian officer or employee, or any member of the Armed Forces, in connection with any grievance or complaint of any such member arising out of the terms or conditions of military service of such member in the Armed Forces; or
(3) Striking, picketing, marching, demonstrating, or any other similar form of concerted action which is directed against the Government of the United States and that is intended to induce any civilian officer or employee, or any member of the Armed Forces, to:
(i) Negotiate or bargain with any person concerning the terms or conditions of military service of any member of the Armed Forces,
(ii) Recognize any organization as a representative of individual members of the Armed Forces in connection with complaints and grievances of such members arising out of the terms or conditions of military service of such members in the Armed Forces, or
(iii) Make any change with respect to the terms or conditions of military service of individual members of the Armed Forces.
(c) Civilian officer or employee. An employee, as defined in 5 U.S.C. 2105.
(d) Military installations. Includes installations, reservations, facilities, vessels, aircraft, and other property controlled by the Department of Defense.
(e) Negotiation or bargaining. A process whereby a commander or supervisor acting on behalf of the United States engages in discussions with a member or members of the Armed Forces (purporting to represent other such members), or with an individual, group, organization, or association purporting to represent such members, for the purpose of resolving bilaterally terms or conditions of military service.
(f) Terms or conditions of military service. Terms or conditions of military compensation or duty including but not limited to wages, rates of pay, duty hours, assignments, grievances, or disputes.
§ 143.4
Policy.
It is the policy of the United States under Public Law 95-610 that:
(a) Members of the Armed Forces of the United States must be prepared to fight and, if necessary, to die to protect the welfare, security, and liberty of the United States and of their fellow citizens.
(b) Discipline and prompt obedience to lawful orders of superior officers are essential and time-honored elements of the American military tradition and have been reinforced from the earliest articles of war by laws and regulations prohibiting conduct detrimental to the military chain of command and lawful military authority.
(c) The processes of conventional collective bargaining and labor-management negotiation cannot and should not be applied to the relationships between members of the Armed Forces and their military and civilian superiors.
(d) Strikes, slowdowns, picketing, and other traditional forms of job action have no place in the Armed Forces.
(e) Unionization of the Armed Forces would be incompatible with the military chain of command, would undermine the role, authority, and position of the commander, and would impair the morale and readiness of the Armed Forces.
(f) The circumstances that could constitute a threat to the ability of the Armed Forces to perform their mission are not comparable to the circumstances that could constitute a threat to the ability of Federal civilian agencies to perform their functions and should be viewed in light of the need for effective performance of duty by each member of the Armed Forces.
§ 143.5
Prohibited activity.
(a) Membership and enrollment. (1) A member of the Armed Forces, knowing of the activities or objectives of a particular military labor organization, may not:
(i) Join or maintain membership in such organization; or
(ii) Attempt to enroll any other member of the Armed Forces as a member of such organization.
(2) No person on a military installation, and no member of the Armed Forces, may enroll in a military labor organization any member of the Armed Forces or solicit or accept dues or fees for such an organization from any member of the Armed Forces.
(b) Negotiation or bargaining. (1) No person on a military installation, and no member of the Armed Forces, may negotiate or bargain, or attempt through any coercive act to negotiate or bargain, with any civilian officer or employee, or any member of the Armed Forces, on behalf of members of the Armed Forces, concerning the terms or conditions of service of such members.
(2) No member of the Armed Forces, and no civilian officer or employee, may negotiate or bargain on behalf of the United States concerning the terms or conditions of military service of members of the Armed Forces with any person who represents or purports to represent members of the Armed Forces.
(c) Strikes and other concerted activity. (1) No person on a military installation, and no member of the Armed Forces, may organize or attempt to organize, or participate in, any strike, picketing, march, demonstration, or other similar form of concerted action involving members of the Armed Forces that is directed against the Government of the United States and that is intended to induce any civilian officer or employee, or any member of the Armed Forces, to:
(i) Negotiate or bargain with any person concerning the terms or conditions of service of any member of the Armed Forces,
(ii) Recognize any military labor organization as a representative of individual members of the Armed Forces in connection with any complaint or grievance of any such member arising out of the terms or conditions of service of such member in the Armed Forces, or
(iii) Make any change with respect to the terms or conditions of service in the Armed Forces of individual members of the Armed Forces.
(2) No person may use any military installation for any meeting, march, picketing, demonstration, or other similar activity for the purpose of engaging in any activity prohibited by this part.
(3) No member of the Armed Forces, and no civilian officer or employee, may permit or authorize the use of any military installation for any meeting, march, picketing, demonstration, or other similar activity that is for the purpose of engaging in any activity prohibited by this part.
(d) Representation. A military labor organization may not represent, or attempt to represent, any member of the Armed Forces before any civilian officer or employee, or any member of the Armed Forces, in connection with any grievance or complaint of any such member arising out of the terms or conditions of service of such member in the Armed Forces.
§ 143.6
Activity not covered by this part.
(a) This part does not limit the right of any member of the Armed Forces to:
(1) Join or maintain membership in any lawful organization or association not constituting a “military labor organization” as defined in § 146.3 of this part;
(2) Present complaints or grievances concerning the terms or conditions of the service of such member in the Armed Forces in accordance with established military procedures;
(3) Seek or receive information or counseling from any source;
(4) Be represented by counsel in any legal or quasi-legal proceeding, in accordance with applicable laws and regulations;
(5) Petition the Congress for redress of grievances; or
(6) Take such other administrative action to seek such administrative or judicial relief, as is authorized by applicable laws and regulations.
(b) This part does not prevent commanders or supervisors from giving consideration to the views of any member of the Armed Forces presented individually or as a result of participation on command-sponsored or authorized advisory councils, committees, or organizations.
(c) This part does not prevent any civilian employed at a military installation from joining or being a member of an organization that engages in representational activities with respect to terms or conditions of civilian employment.
§ 143.7
Responsibilities.
(a) The Heads of DoD Components shall:
(1) Ensure compliance with this part and with the guidelines contained in § 143.8 of this part.
(2) Establish procedures to ensure that any action initiated under this part is reported immediately to the Head of the DoD Component concerned.
(3) Report any action initiated under this part immediately to the Secretary of Defense.
(b) The Deputy Under Secretary of Defense (Program Integration) shall serve as the administrative point of contact in the Office of the Secretary of Defense for all matters relating to this part.
§ 143.8
Guidelines.
The guidelines for making certain factual determinations are as follows:
(a) In determining whether an organization is a military labor organization, whether a person is a member of a military labor organization, or whether such person or organization is in violation of any provision of this part, the history and operation of the organization (including its constitution and bylaws, if any) or person in question may be evaluated, along with evidence on the conduct constituting a prohibited act.
(b) In determining whether the commission of a prohibited act by a person can be imputed to the organization, examples of factors that may be considered include: The frequency of such act; the position in the organization of persons committing the act; whether the commission of such act was known by the leadership of the organization; whether the commission of the act was condemned or disavowed by the leadership of the organization.
(c) Any information about persons and organizations not affiliated with the Department of Defense needed to make the determinations required by this part shall be gathered in strict compliance with the provisions of DoD Directive 5200.27 ^1 and shall not be acquired by counterintelligence or security investigative personnel. The organization itself shall be considered a primary source of information.
^1 Copies are available at http://www.dtic.mil/whs/directives.
Pt. 144

PART 144—SERVICE BY MEMBERS OF THE ARMED FORCES ON STATE AND LOCAL JURIES
Sec.
144.1
Purpose.
144.2
Applicability.
144.3
Definitions.
144.4
Policy.
144.5
Responsibilities.
144.6
Procedures.

Authority:
10 U.S.C. 982.

Source:
71 FR 76917, Dec. 22, 2006, unless otherwise noted.
§ 144.1
Purpose.
This part implements 10 U.S.C. 982 to establish uniform DoD policies for jury service by members of the Armed Forces on active duty.
§ 144.2
Applicability.
The provisions of this part apply to active-duty members of the Armed Forces.
§ 144.3
Definitions.
(a) Armed Forces. The Army, the Navy, the Air Force, the Marine Corps.
(b) State. Includes the 50 United States, U.S. Territories, District of Columbia, and the Commonwealth of Puerto Rico.
(c) Active Duty. Full-time duty in the active Military Service of the United States; Includes full-time training duty, annual training duty, active duty for training, 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.
(d) Operating Forces. Those forces whose primary missions are to participate in combat and the integral supporting elements thereof.
§ 144.4
Policy.
It is DoD policy to permit members of the Armed Forces to maximally fulfill their civic responsibilities consistent with their military duties. For Service members stationed in the United States, serving on a State or local jury is one such civic obligation. Service members are exempt from jury duty, when it unreasonably would interfere with performance of their military duties or adversely affect the readiness of a unit, command, or activity.
§ 144.5
Responsibilities.
The Secretaries of the Military Departments, or designees, in accordance with regulations prescribed by the Secretary concerned, shall determine whether Service members shall be exempt from jury duty. This authority may be delegated no lower than to commanders authorized to convene special courts-martial.
§ 144.6
Procedures.
The Secretaries of the Military Departments shall publish procedures that provide the following:
(a) When a Service member on active duty is summoned to perform State or local jury duty, the Secretary concerned, or the official to whom such authority has been delegated, shall decide if such jury duty would:
(1) Interfere unreasonably with the performance of the Service members military duties.
(2) Affect adversely the readiness of the unit, command, or activity to which the member is assigned.
(b) If such jury service would interfere with the Service member's military duties or adversely affect readiness, the Service member shall be exempted from jury duty. The decision of the Secretary concerned, or the official to whom such authority has been delegated, shall be conclusive.
(c) All general and flag officers, commanding officers, and all personnel assigned to the operating forces, in a training status, or stationed outside the United States are exempt from serving on a State or local jury. Such jury service necessarily would interfere unreasonably with the performance of military duties by these members and adversely affect the readiness of the unit, command, or activity to which they are assigned.
(d) Service members who serve on State or local juries shall not be charged leave or lose any pay or entitlements during the period of service. All fees accrued to members for jury service are payable to the U.S. Treasury. Members are entitled to any reimbursement from the State or local jury authority for expenses incurred in the performance of jury duty, such as for transportation costs or parking fees.
(e) Written notice of each exemption determination shall be provided to the responsible State or local official who summoned an exempt member for jury duty.
Pt. 145

PART 145—COOPERATION WITH THE OFFICE OF SPECIAL COUNSEL OF THE MERIT SYSTEMS PROTECTION BOARD
Sec.
145.1
Purpose.
145.2
Applicability and scope.
145.3
Definitions.
145.4
Policy.
145.5
Responsibilities.
145.6
Procedures.
Appendix to Part 145—Legal Representation

Authority:
5 U.S.C. 301; 10 U.S.C. 133.

Source:
51 FR 17178, May 9, 1986, unless otherwise noted.
§ 145.1
Purpose.
This part establishes policy, assigns responsibilities, and prescribes procedures for cooperation with the Office of Special Counsel (OSC) of the Merit Systems Protection Board (MSPB) in fulfilling the responsibilities of the Special Counsel under Pub. L. 95-454 and 5 CFR 1201 and 1250 to conduct investigations of alleged prohibited personnel practices and to ensure the investigation of other allegations of improper or illegal conduct referred to the Department of Defense by the OSC. This part provides internal guidance to DoD officials, and does not establish an independent basis for any person or organization to assert a right, benefit, or privilege.
§ 145.2
Applicability and scope.
(a) This part applies to the Office of the Secretary of Defense (OSD), the Military Departments, the Office of the Joint Chiefs of Staff (OJCS), the Inspector General, Department of Defense (IG, DoD) and the Defense Agencies (hereafter referred to collectively “as DoD Components”).
(b) The provisions of this part that relate to prohibited personnel practices do not apply to the Defense Intelligence Agency (DIA) or the National Security Agency (NSA), as prescribed by 5 U.S.C. 2302(a)(2)(C)(ii.).
(c) This part does not restrict the IG, DoD, in coordinating investigative efforts on individual cases with the OSC where concurrent jurisdiction exists.
§ 145.3
Definitions.
Improper or illegal conduct. (a) A violation of any law, rule, or regulation in connection with Government misconduct; or
(b) Mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.
Office of the Secretary of Defense (OSD). (a) The immediate offices of the Secretary, the Deputy Secretary, the Assistant Secretaries, Assistants to the Secretary, and other officials serving the Secretary of Defense directly.
(b) The field activities of the Secretary of Defense.
(c) The Organization of the Joint Chiefs of Staff.
(d) The Unified and Specified Commands.
Personnel action. (a) An appointment.
(b) A promotion.
(c) An adverse action under 5 U.S.C. 7501 et seq. or other disciplinary or corrective action.
(d) A detail, transfer, or reassignment.
(e) A reinstatement.
(f) A restoration.
(g) A reemployment.
(h) A performance evaluation under 5 U.S.C. 4301 et seq.
(i) A decision concerning pay, benefits, or awards, or concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other personnel action.
(j) Any other significant change in duties or responsibilities that is inconsistent with the employee's salary or grade level.
Prohibited personnel practice. Action taken by an employee who has authority to take, direct others to take, recommend, or approve any personnel action:
(a) That discriminates for or against any employee or applicant for employment on the basis of race, color, religion, sex, national origin, age, handicapping condition, marital status, or political affiliation, as prohibited by certain specified laws (see 5 U.S.C. 2302(b)(1).
(b) To solicit or consider any recommendation or statement, oral or written, with respect to any individual who requests, or is under consideration for, any personnel action, unless the recommendation or statement is based on the personal knowledge or records of the person furnishing it, and consists of an evaluation of the work performance, ability, aptitude, or general qualifications of the individual, or an evaluation of the character, loyalty, or suitability of such individual.
(c) To coerce the political activity of any person (including the providing of any political contribution or service), or take any action against any employee or applicant for employment as a reprisal for the refusal of any person to engage in such political activity.
(d) To deceive or willfully obstruct any person with respect to such person's right to compete for employment.
(e) To influence any person to withdraw from competition for any position for the purpose of improving or injuring the prospects of any other person for employment.
(f) To grant any preference or advantage not authorized by law, rule, or regulation to any employee or applicant for employment (including defining the scope or manner of competition or the requirements for any position) for the purpose of improving or injuring the prospects of any particular person for employment.
(g) To appoint, employ, promote, advance, or advocate for appointment, employment, promotion, or advancement, in or to a civilian position any individual who is a relative (as defined in 5 U.S.C. 3110) of the employee if the position is in the agency in which the employee is serving as a public official (as defined in 5 U.S.C. 3110) or over which the employee exercises jurisdiction or control as an official.
(h) To take or fail to take a personnel action with respect to any employee or applicant for employment as a reprisal for being a whistleblower. (See whistleblower)
(i) To take or fail to take a personnel action against an employee or applicant for employment as a reprisal for the exercise of any appeal right granted by law, rule, or regulation.
(j) To discriminate for or against any employee or applicant for employment on the basis of conduct that does not adversely affect the performance of the employee or applicant or the performance of others.
(k) To take or fail to take any other personnel action if the taking of, or failure to take, such action violates any law, rule, or regulation implementing, or directly concerning, the merit system principles contained in 5 U.S.C. 2301.
Whistleblower. A present or former Federal employee or applicant for Federal employment who discloses information he or she reasonably believes evidences:
(a) A violation of any law, rule, or regulation.
(b) Mismanagement, a gross waste of funds, or an abuse of authority.
(c) A substantial or specific danger to public health or safety.
(d) Such disclosure qualifies if it is not specifically prohibited by statute and if such information is not specifically required by Executive Order to be kept secret in the interest of national defense or the conduct of foreign affairs.
(e) Where the information disclosed affects only the personal situation of the complaintant, it is generally to be regarded as an allegation of a prohibited personnel practice or violation of other civil service law, rule, or regulation, and the complainant will not be considered a whistleblower.
§ 145.4
Policy.
It is DoD policy that:
(a) Civilian personnel actions taken by DoD management officials, civilian and military, shall conform to laws and regulations implementing established merit system principles and must be free of any prohibited personnel practices, as described in 5 U.S.C. 2302 and § 145.3 of this part.
(b) It is the responsibility of each DoD management official to take vigorous corrective action and, when appropriate, to initiate disciplinary measures when prohibited personnel practices occur.
(c) DoD Components shall cooperate with the Office of Special Counsel by:
(1) Promoting merit system principles in civilian employment programs within the Department of Defense.
(2) Investigating and reporting on allegations of improper or illegal conduct forwarded to the Component by the OSC pursuant to 5 U.S.C. 1206(b) (2) or (3).
(3) Facilitating orderly investigation by the OSC of alleged prohibited personnel practices and other matters assigned for investigation to the OSC by law, such as the Freedom of Information Act and the Hatch Act.
(d) DoD Components shall cooperate with the OSC by providing appropriate assistance and information to its representatives during their investigations and by furnishing to the OSC investigators copies of releasable documents requested under the authority of the Civil Service Reform Act of 1978, 5 CFR 1250, the Privacy Act, and Civil Service Rule V.
(e) Close coordination between DoD and OSC personnel during an OSC investigation is encouraged to eliminate duplication of effort, and to avoid unnecessary delay in initiating, when appropriate, corrective or disciplinary action. This coordination shall be conducted in full recognition of the independent statutory basis for the OSC, as provided in Pub. L. 95-454 and of the responsibilities of the Department of Defense.
(f) OSC investigative requests involving classified information shall be accorded special attention and prompt consideration under existing administrative procedures.
(g) When OSC and a DoD Component or an employee assigned DoD counsel are engaged in litigation, release of information shall be accomplished pursuant to MSPB rules of discovery (5 CFR 1201, subpart B.).
§ 145.5
Responsibilities.
(a) The Secretaries of the Military Departments and the Director, Defense Logistics Agency (DLA), shall prescribe implementing documents to ensure that:
(1) The policies, standards, and procedures set forth in this part are administered in a manner that encourages consistency in responding to investigations of alleged prohibited personnel practices.
(2) Alleged illegal or improper conduct referred to a Military Department or the DLA by the OSC or by OSD is carefully investigated.
(3) There is full cooperation with the IG, DoD, and the General Counsel, Department of Defense (GC, DoD), including assignment of military and civilian attorneys to represent employees suspected or accused by the OSC of committing a prohibited personnel practice or an otherwise illegal or improper act.
(b) The General Counsel, Department of Defense (GC, DoD) shall provide overall legal guidance, whether by the issuance of regulations or otherwise, on all issues concerning cooperation with the OSC. This authority extends to:
(1) Ensuring that DoD legal counsel is assigned upon request to represent a DoD employee suspected or accused by the OSC of committing a prohibited personnel practice or an illegal or improper act when the act complained of was within the scope of the employee's official responsibilities and such representation is in the interest of the Department of Defense; or, in unusual situations, that outside legal counsel is engaged where the use of DoD counsel would be inappropriate, and the same conditions are satisfied.
(2) Providing DoD legal counsel to seek intervention for the purpose of representing the interests of OSD or a Defense agency (other than the DLA) in an MSPB hearing resulting from charges of misconduct against an employee of OSD or a Defense agency, under the authority of the Civil Service Reform Act of 1978.
(3) Seeking the assistance of the Department of Justice in responding to requests by employees for legal representation in obtaining judicial review of an order by the MSPB, under 5 U.S.C. 1207.
(4) Modifying § 145.3 and Appendix to this part and issuing supplementary instructions concerning all aspects of DoD cooperation with the OSC, including instructions on OSC investigations of allegedly arbitrary and capricious withholding of information under the Freedom of Information Act or violations of the Hatch Act.
(5) Reviewing for adequacy and legal sufficiency with the IG, DoD, each report of an investigation that must be personally reviewed by the Secretary or Deputy Secretary of Defense on action taken or to be taken in response to an OSC finding of reasonable cause to believe there has been a violation of law, rule, or regulation, not including a prohibited personnel practice or allegation referred to the Attorney General of the United States for appropriate action.
(c) The Inspector General, Department of Defense (IG, DoD) shall:
(1) Investigate, or cause to be investigated, as appropriate, any complaint referred to the Department of Defense by OSC.
(2) Coordinate, where feasible, investigative efforts by DoD Components and the OSC, with particular emphasis on those conducted or initiated by action of the OSC.
(3) Submit the results of any investigation conducted under this part to the appropriate General Counsel.
(d) The Deputy Assistant Secretary of Defense (Administration) (DASD(A)) shall serve as the Senior Management Official, as described in § 145.6(b) concerning allegations by the OSC of prohibited personnel practices or other illegal or improper acts in the OSD.
(e) The General Counsels of the Military Departments and the General Counsel of the Defense Logistics Agency shall have the same authority for their respective Components as given to the General Counsel, DoD, under paragraphs (b) (1) and (2) of this section.
§ 145.6
Procedures.
(a) Allegations of improper or illegal conduct received from the OSC under 5 U.S.C. 1206(b)(2), (3), or (c)(3). (1) Allegations of improper or illegal conduct referred by the OSC to the Secretary of Defense or to a Defense agency (other than the DLA) shall be forwarded to the IG, DoD.
(2) Allegations of improper or illegal conduct referred to a Military Department or to the DLA by the OSC shall be forwarded to the General Counsel of that Component.
(3) Upon receipt of a referral under paragraph (a) (1) or (2) of this section IG, DoD, or the GC of the Component concerned, as appropriate, shall ensure compliance with the Civil Service Reform Act of 1978 by obtaining a suitable investigation of an allegation, including compliance with time limits for reporting results of the investigation and personal review of the report by the head of the Component when required.
(4) Copies of each allegation referred under paragraph (a)(2) shall be forwarded by the General Counsel concerned to the IG, DoD.
(b) OSC Investigations of Prohibited Personnel Practices. (1) The head of each DoD Component shall designate a Senior Management Official to:
(i) Serve as a point of contact in providing assistance to the OSC in conducting investigations of alleged prohibited activities before any designation of an attorney of record for the Component or individual respondent for matters in litigation.
(ii) Monitor those investigations.
(iii) Ensure that appropriate Component personnel are fully apprised of the nature and basis for an OSC investigation, as well as the rights and duties of Component personnel in regard to such investigations.
(iv) Ensure that any corrective or disciplinary action considered appropriate because of facts disclosed by such an investigation is accomplished under paragraph (b)(2), in a timely manner.
(2) The designated Senior Management Official shall have authority to:
(i) Refer to responsible officials recommendations by the OSC for corrective action.
(ii) Seek OSC approval of proposed disciplinary action against an employee for an alleged prohibited personnel practice or illegal or improper act under investigation by the OSC when it is determined that such discipline is warranted.
(iii) Ensure that disciplinary action against an employee adjudged at fault following completion of an OSC investigation has been considered to avoid the need for a proceeding before the MSPB.
(iv) Ensure that information concerning members of the Armed Forces who are found by the Component to have committed a prohibited personnel practice or other violation of this Directive in the exercise of authority over civilian personnel is referred to appropriate military authority.
(3) The Senior Management Official shall:
(i) Establish a system under which an employee is identified to serve as the Liaison Officer for any OSC investigator who may initiate an investigation at a facility, base, or installation for which the employee is assigned liaison duties. It shall be the responsibility of the Liaison Officer to:
(A) Assist the OSC investigator.
(B) Ensure that all OSC requests for documents are in writing.
(C) Process such requests, as well as all requests for interviews.
(ii) Determine, to the extent practicable, whether an investigation is being, or has been, conducted that replicates in whole or in part the proposed or incomplete investigation by the OSC, and convey that information to the OSC whenever this might avoid redundant investigative effort.
(iii) Inform the General Counsel of the Component concerned of any OSC investigation and consult with the General Counsel on any legal issue related to an OSC investigation.
(iv) Ensure that Component personnel involved are given timely legal and policy advice, through arrangements effected by the Liaison Officer, on the nature and basis for an OSC investigation, the authority of the OSC, and the rights and duties of Component personnel, including those set forth in Appendix.
(v) Inform the IG, DoD, of any OSC investigation of an alleged prohibited personnel practice that is identified as having resulted from a whistleblower complaint or involves an allegation of otherwise illegal or improper conduct.
Pt. 145, App.

Appendix to Part 145—Legal Representation
1. An employee or member of the Armed Forces asked to provide information (testimonial or documentary) to the OSC in the course of an investigation by that office may obtain legal advice from DoD attorneys, both civilian and military, on that employee's or members's rights and obligations. This includes assistance at any interviews with OSC investigators. However, the attorney-client relationship shall not be established unless the employee is suspected or accused by the OSC of committing a prohibited personnel practice or other illegal or improper act and has been assigned DoD counsel.
2. An employee who believes that he or she is suspected or has been accused by the OSC of committing a prohibited personnel practice or other illegal or improper act may obtain legal representation from the Department of Defense under the conditions prescribed in § 145(b)(1) of this part, except as provided in section 7, below. The attorney assigned shall be a military member or employee from another Component whenever an attorney from the same Component is likely to face a conflict between his or her ethical obligation to the employee client and to the Component employer, and in any case where the suspected or accused employee has requested representation from another Component. Outside legal counsel may be retained by the Component on behalf of the employee only under unusual circumstances and only with the personal approval of the General Counsel of the Department of Defense.
3. The General Counsel responsible for authorizing representation shall determine whether a conflict is liable to occur if an attorney from the same Component is assigned to represent the employee and, in that case or in a case in which the suspected or accused employee has requested representation from another Component, shall seek the assistance of another General Counsel in obtaining representation from outside the Component. The General Counsels of the Military Departments and the DLA shall ensure the availability of appropriately trained counsel for assignment to such cases.
4. To obtain legal representation the employee:
a. Must request legal representation, in writing, together with all process and pleadings served, and explain the circumstances that justify DoD legal assistance.
b. Indicate whether he or she has retained legal counsel from outside the Department of Defense.
c. Obtain a written certification from his or her supervisor that the employee was acting within the scope of his of her official duties, and that no adverse or disciplinary personnel action against the employee for the conduct being investigated by the OSC has been initiated by the Component.
5. Employee requests for legal representation must be approved by the General Counsel, DoD, for employees of OSD or a Defense Agency (other than the DLA), or by the General Counsel of a Military Department or the General Counsel of the DLA for employees of those Components.
6. The conditions of legal representation must be explained to the accused employee in writing and accepted in writing by that employee.
7. DoD resources may not be used to provide legal representation for an employee with respect to a DoD disciplinary action against the employee for committing or participating in a prohibited personnel practice or for engaging in illegal or improper conduct, regardless of whether that participation or conduct is also the basis for disciplinary action proposed by the OSC.
8. After approval of an employee's request, under section 4, above, a DoD attorney shall be assigned (or, in unusual circumstances, outside counsel retained) as the employee's representative in matters pending before the OSC or MSPB. This approval may be limited to representing the employee only with respect to some of the pending matters if other specific matters of concern to the OSC or MSPB do not satisfy the requirements of his Directive.
9. An attorney-client relationship shall be established and continued between the suspected or accused employee and assigned DoD counsel.
10. In representing a DoD employee under this part, a DoD attorney designated counsel for the employee shall act as a vigorous advocate of the employee's individual legal interests before the OSC or MSPB; the attorney's professional responsibility to the Department of Defense and his or her employing Component will be satisfied by fulfilling this responsibility to the employee. Legal representation may be terminated only with the approval of the General Counsel who authorized representation, and normally only on the basis of information not available at the time the attorney was assigned.
11. The attorney-client relationship may be terminated if the assigned DoD counsel for the employee determines, with the approval of the General Counsel who authorizes representation, that:
a. The employee was acting outside the scope of his or her official duties when engaging in the conduct that is the basis for the OSC investigation or charge.
b. Termination of the professional representation is not in violation of the rules of professional conduct applicable to the assigned counsel.
12. The DoD attorney designated counsel may request relief from the duties of representation or counseling without being required to furnish explanatory information that might compromise the assurance to the client of confidentiality.
13. This part authorizes cognizant DoD officials to approve a represented employee's request for travel, per diem, witness appearances, or other departmental support necessary to ensure effective legal representation of the employee by the designated counsel.
14. An employee's participation in OSC investigations, MSPB hearings, and other related proceedings shall be considered official departmental business for time and attendance requirements and similar purposes.
15. The following advice to employees questioned during the course of an OSC investigation may be appropriate in response to the most frequent inquiries:
a. An employee may decline to provide a “yes” or “no” answer in favor of a more qualified answer when this is necessary to ensure accuracy in responding to an OSC interviewer's questions.
b. Requests for clarification of both questions and answers are appropriate to avoid misinterpretation.
c. Means to ensure verification of an interview by OSC investigators are appropriate, whether the employee is or is not accompanied by a legal representative. Tape recorders may only be used for this purpose when:
(1) The recorder is used in full view.
(2) All attendees are informed.
(3) The OSC interrogator agrees to the tape recording of the proceeding.
d. Any errors that appear in a written summary of an interview prepared by the interviewer should be corrected before the employee signs the statement. The employee is not required to sign any written summary that is not completely accurate. An employee may make a copy of the summary for his or her own use as a condition of signing.
Pt. 147

PART 147—ADJUDICATIVE GUIDELINES FOR DETERMINING ELIGIBILITY FOR ACCESS TO CLASSIFIED INFORMATION

Subpart A—Adjudicative Guidelines
Sec.
147.1
Introduction.
147.2
Adjudicative process.
147.3
Guideline A—Allegiance to the United States.
147.4
Guideline B—Foreign influence.
147.5
Guideline C—Foreign preference.
147.6
Guideline D—Sexual behavior.
147.7
Guideline E—Personal conduct.
147.8
Guideline F—Financial considerations.
147.9
Guideline G—Alcohol consumption.
147.10
Guideline H—Drug involvement.
147.11
Guideline I—Emotional, mental, and personality disorders.
147.12
Guideline J—Criminal conduct.
147.13
Guideline K—Security violations.
147.14
Guideline L—Outside activities.
147.15
Guideline M—Misuse of information technology systems.

Subpart B—Investigative Standards
147.18
Introduction.
147.19
The three standards.
147.20
Exception to periods of coverage.
147.21
Expanding investigations.
147.22
Transferability.
147.23
Breaks in service.
147.24
The national agency check.
Attachment A to Subpart B—Standard A—National Agency Check With Local Agency Checks and Credit Check (NACLC)
Attachment B to Subpart B—Standard B—Single Scope Background Investigation (SSBI)
Attachment C to Subpart B—Standard C—Single Scope Background Investigation Periodic Reinvestigation (SSBI-PR)
Attachment D to Subpart B—Decision Tables

Subpart C—Guidelines for Temporary Access
147.28
Introduction.
147.29
Temporary eligibility for access.
147.30
Temporary eligibility for access at the CONFIDENTIAL AND SECRET levels and temporary eligibility for “L” access authorization.
147.31
Temporary eligibility for access at the TOP SECRET levels and temporary eligibility for “Q” access authorization. For someone who is the subject of a favorable investigation not meeting the investigative standards for access at those levels.
147.32
Temporary eligibility for access at the TOP SECRET and SCI levels and temporary eligibility for “Q” access authorization: For someone who is not the subject of a current, favorable personnel or personnel-security investigation of any kind.
147.33
Additional requirements by agencies.

Authority:
E.O. 12968 (60 FR 40245, 3 CFR 1995 Comp., p 391).

Source:
63 FR 4573, Jan. 30, 1998, unless otherwise noted.

Subpart A—Adjudication
§ 147.1
Introduction.
The following adjudicative guidelines are established for all United States Government civilian and military personnel, consultants, contractors, employees of contractors, licensees, certificate holders or grantees and their employees and other individuals who require access to classified information. They apply to persons being considered for initial or continued eligibility for access to classified information, to include sensitive compartmented information and special access programs and are to be used by government departments and agencies in all final clearance determinations.
§ 147.2
Adjudicative process.
(a) The adjudicative process is an examination of a sufficient period of a person's life to make an affirmative determination that the person is eligible for a security clearance. Eligibility for access to classified information is predicated upon the individual meeting these personnel security guidelines. The adjudicative process is the careful weighing of a number of variables known as the whole person concept. Available, reliable information about the person, past and present, favorable and unfavorable, should be considered in reaching a determination. In evaluating the relevance of an individual's conduct, the adjudicator should consider the following actors:
(1) The nature, extent, and seriousness of the conduct;
(2) The circumstances surrounding the conduct, to include knowledgeable participation;
(3) The frequency and recency of the conduct;
(4) The individual's age and maturity at the time of the conduct;
(5) The voluntariness of participation;
(6) The presence or absence of rehabilitation and other pertinent behavioral changes;
(7) The motivation for the conduct;
(8) The potential for pressure, coercion, exploitation, or duress;
(9) The likelihood of continuation of recurrence.
(b) Each case must be judged on its own merits, and final determination remains the responsibility of the specific department or agency. Any doubt as to whether access to classified information is clearly consistent with national security will be resolved in favor of the national security.
(c) The ultimate determination of whether the granting or continuing of eligibility for a security clearance is clearly consistent with the interests of national security must be an overall common sense determination based upon careful consideration of the following, each of which is to be evaluated in the context of the whole person, as explained further below:
(1) Guideline A: Allegiance to the United States.
(2) Guideline B: Foreign influence.
(3) Guideline C: Foreign preference.
(4) Guideline D: Sexual behavior.
(5) Guideline E: Personal conduct.
(6) Guideline F: Financial considerations.
(7) Guideline G: Alcohol consumption.
(8) Guideline H: Drug involvement.
(9) Guideline I: Emotional, mental, and personality disorders.
(10) Guideline J: Criminal conduct.
(11) Guideline K: Security violations.
(12) Guideline L: Outside activities.
(13) Guideline M: Misuse of Information Technology Systems.
(d) Although adverse information concerning a single criterion may not be sufficient for an unfavorable determination, the individual may be disqualified if available information reflects a recent or recurring pattern of questionable judgment, irresponsibility, or emotionally unstable behavior. Notwithstanding, the whole person concept, pursuit of further investigations may be terminated by an appropriate adjudicative agency in the face of reliable, significant, disqualifying, adverse information.
(e) When information of security concern becomes known about an individual who is currently eligible for access to classified information, the adjudicator should consider whether the person:
(1) Voluntarily reported the information;
(2) Was truthful and complete in responding to questions;
(3) Sought assistance and followed professional guidance, where appropriate;
(4) Resolved or appears likely to favorably resolve the security concern;
(5) Has demonstrated positive changes in behavior and employment;
(6) Should have his or her access temporarily suspended pending final adjudication of the information.
(f) If after evaluating information of security concern, the adjudicator decides that the information is not serious enough to warrant a recommendation of disapproval or revocation of the security clearance, it may be appropriate to recommend approval with a warning that future incidents of a similar nature may result in revocation of access.
§ 147.3
Guideline A—Allegiance to the United States.
(a) The concern. An individual must be of unquestioned allegiance to the United States. The willingness to safeguard classified information is in doubt if there is any reason to suspect an individual's allegiance to the Untied States.
(b) Conditions that could raise a security concern and may be disqualifying include: (1) Involvement in any act of sabotage, espionage, treason, terrorism, sedition, or other act whose aim is to overthrow the Government of the United States or alter the form of government by unconstitutional means;
(2) Association or sympathy with persons who are attempting to commit, or who are committing, any of the above acts;
(3) Association or sympathy with persons or organizations that advocate the overthrow of the United States Government, or any state or subdivision, by force or violence or by other unconstitutional means;
(4) Involvement in activities which unlawfully advocate or practice 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.
(c) Conditions that could mitigate security concerns include: (1) The individual was unaware of the unlawful aims of the individual or organization and severed ties upon learning of these;
(2) The individual's involvement was only with the lawful or humanitarian aspects of such an organization;
(3) Involvement in the above activities occurred for only a short period of time and was attributable to curiosity or academic interest;
(4) The person has had no recent involvement or association with such activities.
§ 147.4
Guideline B—Foreign influence.
(a) The concern. A security risk may exist when an individual's immediate family, including cohabitants and other persons to whom he or she may be bound by affection, influence, or obligation are not citizens of the Untied States or may be subject to duress. These situations could create the potential for foreign influence that could result in the compromise of classified information. Contacts with citizens of other countries or financial interests in other countries are also relevant to security determinations if they make an individual potentially vulnerable to coercion, exploitation, or pressure.
(b) Conditions that could raise a security concern and may be disqualifying include: (1) An immediate family member, or a person to whom the individual has close ties of affection or obligation, is a citizen of, or resident or present in, a foreign country;
(2) Sharing living quarters with a person or persons, regardless of their citizenship status, if the potential for adverse foreign influence or duress exists;
(3) Relatives, cohabitants, or associates who are connected with any foreign government;
(4) Failing to report, where required, associations with foreign nationals;
(5) Unauthorized association with a suspected or known collaborator or employee of a foreign intelligence service;
(6) Conduct which may make the individual vulnerable to coercion, exploitation, or pressure by a foreign government;
(7) Indications that representatives or nationals from a foreign country are acting to increase the vulnerability of the individual to possible future exploitation, coercion or pressure;
(8) A substantial financial interest in a country, or in any foreign owned or operated business that could make the individual vulnerable to foreign influence.
(c) Conditions that could mitigate security concerns include: (1) A determination that the immediate family member(s) (spouse, father, mother, sons, daughters, brothers, sisters), cohabitant, or associate(s) in question are not agents of a foreign power or in a position to be exploited by a foreign power in a way that could force the individual to choose between loyalty to the person(s) involved and the United States;
(2) Contacts with foreign citizens are the result of official United States Government business;
(3) Contact and correspondence with foreign citizens are casual and infrequent;
(4) The individual has promptly complied with existing agency requirements regarding the reporting of contacts, requests, or threats from persons or organizations from a foreign country;
(5) Foreign financial interests are minimal and not sufficient to affect the individual's security responsibilities.
§ 147.5
Guideline C—Foreign preference.
(a) The concern. When an individual acts in such a way as to indicate a preference for a foreign country over the United States, then he or she may be prone to provide information or make decisions that are harmful to the interests of the United States.
(b) Conditions that could raise a security concern and may be disqualifying include:
(1) The exercise of dual citizenship;
(2) Possession and/or use of a foreign passport;
(3) Military service or a willingness to bear arms for a foreign country;
(4) Accepting educational, medical, or other benefits, such as retirement and social welfare, from a foreign country;
(5) Residence in a foreign country to meet citizenship requirements;
(6) Using foreign citizenship to protect financial or business interests in another country;
(7) Seeking or holding political office in the foreign country;
(8) Voting in foreign elections;
(9) Performing or attempting to perform duties, or otherwise acting, so as to serve the interests of another government in preference to the interests of the United States.
(c) Conditions that could mitigate security concerns include: (1) Dual citizenship is based solely on parents' citizenship or birth in a foreign country;
(2) Indicators of possible foreign preference (e.g., foreign military service) occurred before obtaining United States citizenship;
(3) Activity is sanctioned by the United States;
(4) Individual has expressed a willingness to renounce dual citizenship.
§ 147.6
Guidance D—Sexual behavior.
(a) The concern. Sexual behavior is a security concern if it involves a criminal offense, indicates a personality or emotional disorder, may subject the individual to coercion, exploitation, or duress, or reflects lack of judgment or discretion. ^1 Sexual orientation or preference may not be used as a basis for or a disqualifying factor in determining a person's eligibility for a security clearance.
^1 The adjudicator should also consider guidelines pertaining to criminal conduct (Guideline J) and emotional, mental and personality disorders (Guideline I) in determining how to resolve the security concerns raised by sexual behavior.
(b) Conditions that could raise a security concern and may be disqualifying include: (1) Sexual behavior of a criminal nature, whether or not the individual has been prosecuted;
(2) Compulsive or addictive sexual behavior when the person is unable to stop a pattern or self-destructive or high-risk behavior or that which is symptomatic of a personally disorder;
(3) Sexual behavior that causes an individual to be vulnerable to coercion, exploitation, or duress;
(4) Sexual behavior of a public nature and/or that which reflects lack of discretion or judgment.
(c) Conditions that could mitigate security concerns include: (1) The behavior occurred during or prior to adolescence and there is no evidence of subsequent conduct of a similar nature;
(2) The behavior was not recent and there is no evidence of subsequent conduct of a similar nature;
(3) There is no other evidence of questionable judgment, irresponsibility, or emotional instability;
(4) The behavior no longer serves as a basis for coercion, exploitation, or duress.
§ 147.7
Guideline E—Personal conduct.
(a) The concern. Conduct involving questionable judgment, untrustworthiness, unreliability, lack of candor, dishonesty, or unwillingness to comply with rules and regulations could indicate that the person may not properly safeguard classified information. The following will normally result in an unfavorable clearance action or administrative termination of further processing for clearance eligibility:
(1) Refusal to undergo or cooperate with required security processing, including medical and psychological testing;
(2) Refusal to complete required security forms, releases, or provide full, frank and truthful answers to lawful questions of investigators, security officials or other representatives in connection with a personnel security or trustworthiness determination.
(b) Conditions that could raise a security concern and may be disqualifying also include: (1) Reliable, unfavorable information provided by associates, employers, coworkers, neighbors, and other acquaintances;
(2) The deliberate omission, concealment, or falsification of relevant and material facts from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities;
(3) Deliberately providing false or misleading information concerning relevant and material matters to an investigator, security official, competent medical authority, or other representative in connection with a personnel security or trustworthiness determination;
(4) Personal conduct or concealment of information that may increase an individual's vulnerability to coercion, exploitation, or duties, such as engaging in activities which, if known, may affect the person's personal, professional, or community standing or render the person susceptible to blackmail;
(5) A pattern of dishonesty or rule violations, including violation of any written or recorded agreement made between the individual and the agency;
(6) Association with persons involved in criminal activity.
(c) Conditions that could mitigate security concerns include: (1) The information was unsubstantiated or not pertinent to a determination of judgment, trustworthiness, or reliability;
(2) The falsification was an isolated incident, was not recent, and the individual has subsequently provided correct information voluntarily;
(3) The individual made prompt, good faith efforts to correct the falsification before being confronted with the facts;
(4) Omission of material facts was caused or significantly contributed to by improper or inadequate advice of authorized personnel, and the previously omitted information was promptly and fully provided;
(5) The individual has taken positive steps to significantly reduce or eliminate vulnerability to coercion, exploitation, or duress;
(6) A refusal to cooperate was based on advice from legal counsel or other officials that the individual was not required to comply with security processing requirements and, upon being made aware of the requirement, fully and truthfully provided the requested information;
(7) Association with persons involved in criminal activities has ceased.
§ 147.8
Guideline F—Financial considerations.
(a) The concern. An individual who is financially overextended is at risk of having to engage in illegal acts to generate funds. Unexplained affluence is often linked to proceeds from financially profitable criminal acts.
(b) Conditions that could raise a security concern and may be disqualifying include: (1) A history of not meeting financial obligations;
(2) Deceptive or illegal financial practices such as embezzlement, employee theft, check fraud, income tax evasion, expense account fraud, filing deceptive loan statements, and other intentional financial breaches of trust;
(3) Inability or unwillingness to satisfy debts;
(4) Unexplained affluence;
(5) Financial problems that are linked to gambling, drug abuse, alcoholism, or other issues of security concern.
(c) Conditions that could mitigate security concerns include: (1) The behavior was not recent;
(2) It was an isolated incident;
(3) The conditions that resulted in the behavior were largely beyond the person's control (e.g., loss of employment, a business downtrun, unexpected medical emergency, or a death, divorce or separation);
(4) The person has received or is receiving counseling for the problem and there are clear indications that the problem is being resolved or is under control;
(5) The affluence resulted from a legal source;
(6) The individual initiated a good-faith effort to repay overdue creditors or otherwise resolve debts.
§ 147.9
Guideline G—Alcohol consumption.
(a) The concern. Excessive alcohol consumption often leads to the exercise of questionable judgment, unreliability, failure to control impulses, and increases the risk of unauthorized disclosure of classified information due to carelessness.
(b) Conditions that could raise a security concern and may be disqualifying include: (1) Alcohol-related incidents away from work, such as driving while under the influence, fighting, child or spouse abuse, or other criminal incidents related to alcohol use;
(2) Alcohol-related incidents at work, such as reporting for work or duty in an intoxicated or impaired condition, or drinking on the job;
(3) Diagnosis by a credentialed medical professional (e.g., physician, clinical psychologist, or psychiatrist) of alcohol abuse or alcohol dependence;
(4) Evaluation of alcohol abuse or alcohol dependence by a licensed clinical social worker who is a staff member of a recognized alcohol treatment program;
(5) Habitual or binge consumption of alcohol to the point of impaired judgment;
(6) Consumption of alcohol, subsequent to a diagnosis of alcoholism by a credentialed medical professional and following completion of an alcohol rehabilitation program.
(c) Conditions that could mitigate security concerns include: (1) The alcohol related incidents do not indicate a pattern;
(2) The problem occurred a number of years ago and there is no indication of a recent problem;
(3) Positive changes in behavior supportive of sobriety;
(4) Following diagnosis of alcohol abuse or alcohol dependence, the individual has successfully completed impatient or outpatient rehabilitation along with aftercare requirements, participates frequently in meetings of Alcoholics Anonymous or a similar organization, has abstained from alcohol for a period of at least 12 months, and received a favorable prognosis by a credentialed medical professional or a licensed clinical social worker who is a staff member of a recognized alcohol treatment program.
§ 147.10
Guideline H—Drug involvement.
(a) The concern. (1) Improper or illegal involvement with drugs raises questions regarding an individual's willingness or ability to protect classified information. Drug abuse or dependence may impair social or occupational functioning, increasing the risk of an unauthorized disclosure of classified information.
(2) Drugs are defined as mood and behavior altering substances, and include:
(i) Drugs, materials, and other chemical compounds identified and listed in the Controlled Substances Act of 1970, as amended (e.g., marijuana or cannabis, depressants, narcotics, stimulants, and hallucinogens),
(ii) Inhalants and other similar substances.
(3) Drug abuse is the illegal use of a drug or use of a legal drug in a manner that deviates from approved medical direction.
(b) Conditions that could raise a security concern and may be disqualifying include: (1) Any drug abuse (see above definition);
(2) Illegal drug possession, including cultivation, processing, manufacture, purchase, sale, or distribution;
(3) Diagnosis by a credentialed medical professional (e.g., physician, clinical psychologist, or psychiatrist) of drug abuse or drug dependence;
(4) Evaluation of drug abuse or drug dependence by a licensed clinical social worker who is a staff member of a recognized drug treatment program;
(5) Failure to successfully complete a drug treatment program prescribed by a credentialed medical professional. Recent drug involvement, especially following the granting of a security clearance, or an expressed intent not to discontinue use, will almost invariably result in an unfavorable determination.
(c) Conditions that could mitigate security concerns include: (1) The drug involvement was not recent;
(2) The drug involvement was an isolated or aberration event;
(3) A demonstrated intent not to abuse any drugs in the future;
(4) Satisfactory completion of a prescribed drug treatment program, including rehabilitation and aftercare requirements, without recurrence of abuse, and a favorable prognosis by a credentialed medical professional.
§ 147.11
Guideline I—Emotional, mental, and personality disorders.
(a) The concern: Emotional, mental, and personality disorders can cause a significant deficit in an individual's psychological, social and occupation functioning. These disorders are of security concern because they may indicate a defect in judgment, reliability, or stability. A credentialed mental health professional (e.g., clinical psychologist or psychiatrist), employed by, acceptable to or approved by the government, should be utilized in evaluating potentially disqualifying and mitigating information fully and properly, and particularly for consultation with the individual's mental health care provider.
(b) Conditions that could raise a security concern and may be disqualifying include: (1) An opinion by a credentialed mental health professional that the individual has a condition or treatment that may indicate a defect in judgment, reliability, or stability;
(2) Information that suggests that an individual has failed to follow appropriate medical advice relating to treatment of a condition, e.g., failure to take prescribed medication;
(3) A pattern of high-risk, irresponsible, aggressive, anti-social or emotionally unstable behavior;
(4) Information that suggests that the individual's current behavior indicates a defect in his or her judgment or reliability.
(c) Conditions that could mitigate security concerns include: (1) There is no indication of a current problem;
(2) Recent opinion by a credentialed mental health professional that an individual's previous emotional, mental, or personality disorder is cured, under control or in remission and has a low probability of recurrence or exacerbation;
(3) The past emotional instability was a temporary condition (e.g., one caused by a death, illness, or marital breakup), the situation has been resolved, and the individual is no longer emotionally unstable.
§ 147.12
Guideline J—Criminal conduct.
(a) The concern. A history or pattern of criminal activity creates doubt about a person's judgment, reliability and trustworthiness.
(b) Conditions that could raise a security concern and may be disqualifying include: (1) Allegations or admissions of criminal conduct, regardless of whether the person was formally charged;
(2) A single serious crime or multiple lesser offenses.
(c) Conditions that could mitigate security concerns include: (1) The criminal behavior was not recent;
(2) The crime was an isolated incident;
(3) The person was pressured or coerced into committing the act and those pressures are no longer present in that person's life;
(4) The person did not voluntarily commit the act and/or the factors leading to the violation are not likely to recur;
(5) Acquittal;
(6) There is clear evidence of successful rehabilitation.
§ 147.13
Guideline K—Security violations.
(a) The concern. Noncompliance with security regulations raises doubt about an individual's trustworthiness, willingness, and ability to safeguard classified information.
(b) Conditions that could raise a security concern and may be disqualifying include. (1) Unauthorized disclosure of classified information;
(2) Violations that are deliberate or multiple or due to negligence.
(c) Conditions that could mitigate security concerns include actions that: (1) Were inadvertent;
(2) Were isolated or infrequent;
(3) Were due to improper or inadequate training;
(4) Demonstrate a positive attitude towards the discharge of security responsibilities.
§ 147.14
Guideline L—Outside activities.
(a) The concern. Involvement in certain types of outside employment or activities is of security concern if it poses a conflict with an individual's security responsibilities and could create an increased risk of unauthorized disclosure of classified information.
(b) Conditions that could raise a security concern and may be disqualifying include any service, whether compensated, volunteer, or employment with: (1) A foreign country;
(2) Any foreign national;
(3) A representative of any foreign interest;
(4) Any foreign, domestic, or international organization or person engaged in analysis, discussion, or publication of material on intelligence, defense, foreign affairs, or protected technology.
(c) Conditions that could mitigate security concerns include: (1) Evaluation of the outside employment or activity indicates that it does not pose a conflict with an individual's security responsibilities;
(2) The individual terminates the employment or discontinues the activity upon being notified that it is in conflict with his or her security responsibilities.
§ 147.15
Guideline M—Misuse of Information technology systems.
(a) The concern. Noncompliance with rules, procedures, guidelines, or regulations pertaining to information technology systems may raise security concerns about an individual's trustworthiness, willingness, and ability to properly protect classified systems, networks, and information. Information Technology Systems include all related equipment used for the communication, transmission, processing, manipulation, and storage of classified or sensitive information.
(b) Conditions that could raise a security concern and may be disqualifying include: (1) Illegal or unauthorized entry into any information technology system;
(2) Illegal or unauthorized modification, destruction, manipulation or denial of access to information residing on an information technology system;
(3) Removal (or use) of hardware, software, or media from any information technology system without authorization, when specifically prohibited by rules, procedures, guidelines or regulations;
(4) Introduction of hardware, software, or media into any information technology system without authorization, when specifically prohibited by rules, procedures, guidelines or regulations.
(c) Conditions that could mitigate security concerns include: (1) The misuse was not recent or significant;
(2) The conduct was unintentional or inadvertent;
(3) The introduction or removal of media was authorized;
(4) The misuse was an isolated event;
(5) The misuse was followed by a prompt, good faith effort to correct the situation.

Subpart B—Investigative Standards
§ 147.18
Introduction.
The following investigative standards are established for all United States Government civilian and military personnel, consultants, contractors, employees of contractors, licensees, certificate holders or grantees and their employees and other individuals who require access to classified information, to include Sensitive Compartmented Information and Special Access Programs, and are to be used by government departments and agencies as the investigative basis for final clearance determinations. However, nothing in these standards prohibits an agency from using any lawful investigative procedures in addition to these requirements in order to resolve any issue identified in the course of a background investigation or reinvestigation.
§ 147.19
The three standards.
There are three standards (Attachment D to this subpart part summarizes when to use each one):
(a) The investigation and reinvestigation standards for “L” access authorizations and for access to confidential and secret (including all secret-level Special Access Programs not specifically approved for enhanced investigative requirements by an official authorized to establish Special Access Programs by section in 4.4 of Executive Order 12958) (60 FR 19825, 3 CFR 1995 Comp., p. 33);
(b) The investigation standard for“Q” access authorizations and for access to top secret (including top secret Special Access Programs) and Sensitive Compartmented Information;
(c) The reinvestigation standard for continued access to the levels listed in paragraph (b) of this section.
§ 147.20
Exception to periods of coverage.
Some elements of standards specify a period of coverage (e.g. seven years). Where appropriate, such coverage may be shortened to the period from the subject's eighteenth birthday to the present or to two years, whichever is longer.
§ 147.21
Expanding investigations.
Investigations and reinvestigations may be expanded under the provisions of Executive Order 12968 (60 FR 40245, 3 CFR 1995 Comp., p. 391) and other applicable statutes and Executive Orders.
§ 147.22
Transferability.
Investigations that satisfy the requirements of a given standard and are current meet the investigative requirements for all levels specified for the standard. They shall be mutually and reciprocally accepted by all agencies.
§ 147.23
Breaks in service.
If a person who requires access has been retired or separated from U.S. government employment for less than two years and is the subject of an investigation that is otherwise current, the agency regranting the access will, as a minimum, review an updated Standard Form 86 and applicable records. A reinvestigation is not required unless the review indicates the person may no longer satisfy the standards of Executive Order 12968 (60 FR 40245, 3 CFR 1995 Comp., p. 391); (Attachment D to this subpart, Table 2).
§ 147.24
The national agency check.
The National Agency Check is a part of all investigations and reinvestigations. It consists of a review of;
(a) Investigative and criminal history files of the FBI, including a technical fingerprint search;
(b) OPM's Security/Suitability Investigations Index;
(c) DoD's Defense Clearance and Investigations Index;
(d) Such other national agencies (e.g., CIA, INS) as appropriate to the individual's background.
Pt. 147, Subpt. B, Att. A

Attachment A to Subpart B of Part 147—Standard A—National Agency Check With Local Agency Checks and Credit Check (NACLC)
(a) Applicability. Standard A applies to investigations and reinvestigations for;
(1) Access to CONFIDENTIAL and SECRET (including all SECRET-level Special Access Programs not specifically approved for enhanced investigative requirements by an official authorized to establish Special Access Programs by sect. 4.4 of Executive Order 12958) (60 FR 19825, 3 CFR 1995 Comp., p. 333);
(2) “L” access authorizations.
(b) For Reinvestigation: When to Reinvestigate. The reinvestigation may be initiated at any time following completion of, but not later than ten years (fifteen years for CONFIDENTIAL) from the date of, the previous investigation or reinvestigation. (Attachment D to this subpart, Table 2, reflects the specific requirements for when to request a reinvestigation, including when there has been a break in service.)
(c) Investigative Requirements. Investigative requirements are as follows:
(1) Completion of Forms: Completion of Standard Form 86, including applicable releases and supporting documentation.
(2) National Agency Check: Completion of a National Agency Check.
(3) Financial Review: Verification of the subject's financial status, including credit bureau checks covering all locations where the subject has resided, been employed, or attended school for six months or more for the past seven years.
(4) Date and Place of Birth: Corroboration of date and place of birth through a check of appropriate documentation, if not completed in any previous investigation; a check of Bureau of Vital Statistics records when any discrepancy is found to exist.
(5) Local Agency Checks: As a minimum, all investigations will include checks of law enforcement agencies having jurisdiction where the subject has lived, worked, and/or attended school within the last five years, and, if applicable, of the appropriate agency for any identified arrests.
(d) Expanding the Investigation: The investigation may be expanded if necessary to determine if access is clearly consistent with the national security.
Pt. 147, Subpt. B, Att. B

Attachment B to Subpart B of Part 147—Standard B—Single Scope Background Investigation (SSBI)
(a) Applicability. Standard B applies to initial investigations for;
(1) Access to TOP SECRET (including TOP SECRET Special Access Programs) and Sensitive Compartment Information;
(2) “Q” access authorizations.
(b) Investigative Requirements. Investigative requirements are as follows:
(1) Completion of Forms: Completion of Standard Form 86, including applicable releases and supporting documentation.
(2) National Agency Check: Completion of a National Agency Check.
(3) National Agency Check for the Spouse or Cohabitant (if applicable): Completion of a National Agency Check, without fingerprint cards, for the spouse or cohabitant.
(4) Date and Place of Birth: Corroboration of date and place of birth through a check of appropriate documentation; a check of Bureau of Vital Statistics records when any discrepancy is found to exist.
(5) Citizenship: For individuals born outside the United States, verification of US citizenship directly from the appropriate registration authority; verification of US citizenship or legal status of foreign-born immediate family members (spouse, cohabitant, father, mother, sons, daughters, brothers, sisters).
(6) Education: Corroboration of most recent or most significant claimed attendance, degree, or diploma. Interviews of appropriate educational sources if education is a primary activity of the subject during the most recent three years.
(7) Employment: Verification of all employments for the past seven years; personal interviews of sources (supervisors, coworkers, or both) for each employment of six months or more; corroboration through records or sources of all periods of unemployment exceeding sixty days; verification of all prior federal and military service, including discharge type. For military members, all service within one branch of the armed forces will be considered as one employment, regardless of assignments.
(8) References: Four references, of whom at least two are developed; to the extent practicable, all should have social knowledge of the subject and collectively span at least the last seven years.
(9) Former Spouse: An interview of any former spouse divorced within the last ten years.
(10) Neighborhoods: Confirmation of all residences for the last three years through appropriate interviews with neighbors and through records reviews.
(11) Financial Review: Verification of the subject's financial status, including credit bureau checks covering all locations where subject has resided, been employed, and/or attended school for six months or more for the last seven years.
(12) Local Agency Checks: A check of appropriate criminal history records covering all locations where, for the last ten years, the subject has resided, been employed, and/or attended school for six months or more, including current residence regardless of duration.

Note:
If no residence, employment, or education exceeds six months, local agency checks should be performed as deemed appropriate.
(13) Public Records: Verification of divorces, bankruptcies, and other court actions, whether civil or criminal, involving the subject.
(14) Subject Interview: A subject interview, conducted by trained security, investigative, or counterintelligence personnel. During the investigation, additional subject interviews may be conducted to collect relevant information, to resolve significant inconsistencies, or both. Sworn statements and unsworn declarations may be taken whenever appropriate.
(15) Polygraph (only in agencies with approved personnel security polygraph programs): In departments or agencies with policies sanctioning the use of the polygraph for personnel security purposes, the investigation may include a polygraph examination, conducted by a qualified polygraph examiner.
(c) Expanding the Investigation. The investigation may be expanded as necessary. As appropriate, interviews with anyone able to provide information or to resolve issues, including but not limited to cohabitants, relatives, psychiatrists, psychologists, other medical professionals, and law enforcement professionals may be conducted.
Pt. 147, Subpt. B, Att. C

Attachment C to Subpart B of Part 147—Standard C—Single Scope Background Investigation Periodic Reinvestigation (SSBI-PR)
(a) Applicability. Standard C applies to reinvestigation for;
(1) Access to TOP SECRET (including TOP SECRET Special Access Programs) and Sensitive Compartmented Information;
(2) “Q” access authorizations.
(b) When to Reinvestigate. The reinvestigation may be initiated at any time following completion of, but not later than five years from the date of, the previous investigation (see Attachment D to this subpart, Table 2).
(c) Reinvestigative Requirements. Reinvestigative requirements are as follows:
(1) Completion of Forms: Completion of Standard Form 86, including applicable releases and supporting documentation.
(2) National Agency Check: Completion of a National Agency Check (fingerprint cards are required only if there has not been a previous valid technical check of the FBI).
(3) National Agency Check for the Spouse or Cohabitant (if applicable): Completion of a National Agency Check, without fingerprint cards, for the spouse or cohabitant. The National Agency Check for the spouse or cohabitant is not required if already completed in conjunction with a previous investigation or reinvestigation.
(4) Employment: Verification of all employments since the last investigation. Attempts to interview a sufficient number of sources (supervisors, coworkers, or both) at all employments of six months or more. For military members, all services within one branch of the armed forces will be considered as one employment, regardless of assignments.
(5) References: Interviews with two character references who are knowledgeable of the subject; at least one will be a developed reference. To the extent practical, both should have social knowledge of the subject and collectively span the entire period of the reinvestigation. As appropriate, additional interviews may be conducted, including with cohabitants and relatives.
(6) Neighborhoods: Interviews of two neighbors in the vicinity of the subject's most recent residence of six months or more. Confirmation of current residence regardless of length.
(7) Financial Review—Financial Status: Verification of the subject's financial status, including credit bureau checks covering all locations where subject has resided, been employed, and/or attended school for six months or more for the period covered by the reinvestigation;
(ii) Check of Treasury's Financial Data Base: Agencies may request the Department of the Treasury, under terms and conditions prescribed by the Secretary of the Treasury, to search automated data bases consisting of reports of currency transactions by financial institutions, international transportation of currency or monetary instruments, foreign bank and financial accounts, and transactions under $10,000 that are reported as possible money laundering violations.
(8) Local Agency Checks: A check of appropriate criminal history records covering all locations where, during the period covered by the reinvestigation, the subject has resided, been employed, and/or attended school for six months or more, including current residence regardless of duration. (Note: If no residence, employment, or education exceeds six months, local agency checks should be performed as deemed appropriate.)
(9) Former Spouse: An interview with any former spouse unless the divorce took place before the date of the last investigation or reinvestigation.
(10) Public Records: Verification of divorces, bankruptcies, and other court actions, whether civil or criminal, involving the subject since the date of the last investigation.
(11) Subject Interview: A subject interview, conducted by trained security, investigative, or counterintelligence personnel. During the reinvestigation, additional subject interviews may be conducted to collect relevant information, to resolve significant inconsistencies, or both. Sworn statements and unsworn declarations may be taken whenever appropriate.
(d) Expanding the Reinvestigation: The reinvestigation may be expanded as necessary. As appropriate, interviews with anyone able to provide information or to resolve issues, including but not limited to cohabitants, relatives, psychiatrists, psychologists, other medical professionals, and law enforcement professionals may be conducted.
Pt. 147, Subpt. B, Att. D

Attachment D to Subpart B of Part 147—Decision Tables
Table 1—Which Investigation to Request
If the requirement is for | And the person has this access | Based on this investigation | Then the investigation required is | Using standard
Confidental Secret; “L” | None | None | NACLC | A
| | Out of date NACLC or SSBI
| Conf, Sec; “L”
Top Secret, SCI; “Q” | None | None | SSBI | B
| None; Conf, Sec; “L” | Current or out of date NACLC
| | Out of date SSBI
| TS, SCI; “Q” | | SSBI-PR | C
Table 2—Reinvestigation Requirements
If the requirement is for | And the age of the investigation is | Type required if there has been a break in service of | 0-23 months | 24 month's or more
Confidential | 0 to 14 years. 11 mos | None (note 1) | NACLC
| 15 yrs. or more | NACLC
Secret; “L” | 0 to 9 yrs 11 mos | None (note 1)
| 10 yrs. or more | NACLC
Top Secret, SCI; “Q” | 0 to 4 yrs. 11 mos | None (note 1) | SSBI
| 5 yrs or more | SSBI-PR
Note: As a minimum, review an updated Standard Form 84 and applicable records. A reinvestigation (NACLC or SSBI-PR) is not required unless the review indicates the person may no longer satisfy the standards of Executive Order 12968.

Subpart C—Guidelines for Temporary Access
§ 147.28
Introduction.
The following minimum investigative standards, implementing section 3.3 of Executive Order 12968, Access to Classified Information, are established for all United States Government and military personnel, consultants, contractors, subcontractors, employees of contractors, licensees, certificate holders or grantees and their employees and other individuals who require access to classified information before the appropriate investigation can be completed and a final determination made.
§ 147.29
Temporary eligibility for access.
Based on a justified need meeting the requirements of section 3.3 of Executive Order 12968, temporary eligibility for access may be granted before investigations are complete and favorably adjudicated, where official functions must be performed prior to completion of the investigation and adjudication process. The temporary eligibility will be valid until completion of the investigation and adjudication; however, the agency granting it may revoke it at any time based on unfavorable information identified in the course of the investigation.
§ 147.30
Temporary eligibility for access at the confidential and secret levels and temporary eligibility for “L” access authorization.
As a minimum, such temporary eligibility requires completion of the Standard Form 86, including any applicable supporting documentation, favorable review of the form by the appropriate adjudicating authority, and submission of a request for an expedited National Agency Check with Local Agency Checks and Credit (NACLC).
§ 147.31
Temporary eligibility for access at the top secret levels and temporary eligibility for “Q” access authorization: For someone who is the subject of a favorable investigation not meeting the investigative standards for access at those levels.
As a minimum, such temporary eligibility requires completion of the Standard Form 86, including any applicable supporting documentation, favorable review of the form by the appropriate adjudicating authority, and expedited submission of a request for a Single Scope Background Investigation (SSBI).
§ 147.32
Temporary eligibility for access at the top secret and SCI levels and temporary eligibility for “Q” access authorization: For someone who is not the subject of a current, favorable personnel or personnel-security investigation of any kind.
As a minimum, such temporary eligibility requires completion of the Standard Form 86, including any applicable supporting documentation, favorable review of the form by the appropriate adjudicating authority, immediate submission of a request for an expedited Single Scope Background Investigation (SSBI), and completion and favorable review by the appropriate adjudicating authority of relevant criminal history and investigative records of the Federal Bureau of Investigation and of information in the Security/Suitability Investigations Index (SII) and the Defense Clearance and Investigations Index (DCII).
§ 147.33
Additional requirements by agencies.
Temporary eligibility for access must satisfy these minimum investigative standards, but agency heads may establish additional requirements based on the sensitivity of the particular, identified categories of classified information necessary to perform the lawful and authorized functions that are the basis for granting temporary eligibility for access. However, no additional requirements shall exceed the common standards for background investigations developed under section 3.2(b) of Executive Order 12968. Temporary eligibility for access is valid only at the agency granting it and at other agencies who expressly agree to accept it and acknowledge understanding of its investigative basis. It is further subject to limitations specified in sections 2.4(d) and 3.3 of Executive Order 12968, Access to Classified Information.
Pt. 148

PART 148—NATIONAL POLICY AND IMPLEMENTATION OF RECIPROCITY OF FACILITIES

Subpart A—National Policy on Reciprocity of Use and Inspections of Facilities
Sec.
148.1
Interagency reciprocal acceptance.
148.2
Classified programs.
148.3
Security review.
148.4
Policy documentation.
148.5
Identification of the security policy board.
148.6
Agency review.

Subpart B—Guidelines for the Implementation and Oversight of the Policy on Reciprocity of Use and Inspections of Facilities
148.10
General.
148.11
Policy.
148.12
Definitions.
148.13
Responsibilities.
148.14
Procedures.

Authority:
E.O. 12968 (60 FR 40245, 3 CFR 1995 Comp., p. 391.)

Source:
63 FR 4580, Jan. 30, 1998, unless otherwise noted.

Subpart A—National Policy on Reciprocity of Use and Inspections of Facilities
§ 148.1
Interagency reciprocal acceptance .
Interagency reciprocal acceptance of security policies and procedures for approving, accrediting, and maintaining the secure posture of shared facilities will reduce aggregate costs, promote interoperability of agency security systems, preserve vitality of the U.S. industrial base, and advance national security objectives.
§ 148.2
Classified programs.
Once a facility is authorized, approved, certified, or accredited, all U.S. Government organizations desiring to conduct classified programs at the facility at the same security level shall accept the authorization, approval, certification, or accreditation without change, enhancements, or upgrades. Executive Order, Safeguarding Directives, National Industrial Security Program Operating Manual (NISPOM), the NISPOM Supplement, the Director of Central Intelligence Directives, interagency agreements, successor documents, or other mutually agreed upon methods shall be the basis for such acceptance.
§ 148.3
Security review.
After initial security authorization, approval, certification, or accreditation, subsequent security reviews shall normally be conducted no more frequently than annually.
Additionally, such reviews shall be aperiodic or random, and be based upon risk management principles. Security reviews may be conducted “for cause”, to follow up on previous findings, or to accomplish close-out actions. Visits may be made to a facility to conduct security support actions, administrative inquiries, program reviews, and approvals as deemed appropriate by the cognizant security authority or agency.
§ 148.4
Policy documentation.
Agency heads shall ensure that any policy documents their agency issues setting out facilities security policies and procedures incorporate the policy set out herein, and that such policies are reasonable, effective, efficient, and enable and promote interagency reciprocity.
§ 148.5
Identification of the security policy board.
Agencies which authorize, approve, certify, or accredit facilities shall provide to the Security Policy Board Staff a points of contact list to include names and telephone numbers of personnel to be contacted for verification of authorized, approved, certified, or accredited facility status. The Security Policy Board Staff will publish a comprehensive directory of points of contact.
§ 148.6
Agency review.
Agencies will continue to review and assess the potential value added to the process of co-use of facilities by development of electronic data retrieval across government. As this review continues, agencies creating or modifying facilities databases will do so in a manner which facilitates community data sharing, interest of national defense or foreign policy.

Subpart B—Guidelines for the Implementation and Oversight of the Policy on Reciprocity of use and Inspections of Facilities
§ 148.10
General.
(a) Redundant, overlapping, and duplicative policies and practices that govern the co-use of facilities for classified purposes have resulted in excessive protection and unnecessary expenditure of funds. Lack of reciprocity has also impeded achievement of national security objectives and adversely affected economic and technological interest.
(b) Interagency reciprocal acceptance of security policies and procedures for approving, accrediting, and maintaining the secure posture of shared facilities will reduce the aggregate costs, promote interoperability of agency security systems, preserve the vitality of the U.S. industrial base, and advance national security objectives.
(c) Agency heads, or their designee, are encouraged to periodically issue written affirmations in support of the policies and procedures prescribed herein and in the Security Policy Board (SPB) policy, entitled “Reciprocity of Use and Inspections of Facilities.”
(d) The policies and procedures prescribed herein shall be applicable to all agencies. This document does not supersede the authority of the Secretary of Defense under Executive Order 12829 (58 FR 3479, 3 CFR 1993 Comp., p. 570); the Secretary of Energy or the Chairman of the Nuclear Regulatory Commission under the Atomic Energy Act of 1954, as amended; the Secretary of State under the Omnibus Diplomatic Security and Anti-Terrorism Act of 1986; the Secretaries of the military departments and military department installation Commanders under the Internal Security Act of 1950; the Director of Central Intelligence under the National Security Act of 1947, as amended, or Executive Order 12333; the Director of the Information Security Oversight Office under Executive Order 12829 or Executive Order 12958 (60 FR 19825, 3 CFR 1995 Comp., p. 333); or substantially similar authority instruments assigned to any other agency head.
§ 148.11
Policy.
(a) Agency heads, or their designee, shall ensure that security policies and procedures for which they are responsible are reasonable, effective, and efficient, and that those policies and procedures enable and promote interagency reciprocity.
(b) To the extent reasonable and practical, and consistent with US law, Presidential decree, and bilateral and international obligations of the United States, the security requirements, restrictions, and safeguards applicable to industry shall be equivalent to those applicable within the Executive Branch of government.
(c) Once a facility is authorized approved, certified, or accredited, all government organizations desiring to conduct classified programs at the facility at the same security level shall accept the authorization, approval, certification, or accreditation without change, enhancements, or upgrades.
§ 148.12
Definitions.
Agency. Any “executive agency,” as defined in 5 U.S.C. 105; any “Military department” as defined in 5 U.S.C. 102; and any other entity within the Executive Branch that comes into possession of classified information.
Classified Information. All information that requires protection under Executive Order 12958, or any of its antecedent orders, and the Atomic Energy Act of 1954, as amended.
Cognizant Security Agency (CSA). Those agencies that have been authorized by Executive Order 12829 to establish an industrial security program for the purpose of safeguarding classified information disclosed or released to industry.
Cognizant Security Office (CSO). The office or offices delegated by the head of a CSA to administer industrial security in a contractor's facility on behalf of the CSA.
Facility. An activity of a government agency or cleared contractor authorized by appropriate authority to conduct classified operations or to perform classified work.
Industry. Contractors, licensees, grantees, and certificate holders obligated by contract or other written agreement to protect classified information under the National Industrial Security Program.
National Security. The national defense and foreign relations of the United States.
Senior Agency Official. Those officials, pursuant to Executive Order 12958, designated by the agency head who are assigned the responsibility to direct and administer the agency's information security program.
§ 148.13
Responsibilities.
(a) Each Senior Agency Official shall ensure that adequate reciprocity provisions are incorporated within his or her regulatory issuances that prescribe agency safeguards for protecting classified information.
(b) Each Senior Agency Official shall develop, implement, and oversee a program that ensures agency personnel adhere to the policies and procedures prescribed herein and the reciprocity provisions of the National Industrial Security Program Operating Manual (NISPOM).
(c) Each Senior Agency Official must ensure that implementation encourages reporting of instances of non-compliance, without fear of reprisal, and each reported instance is aggressively acted upon.
(d) The Director, Information Security Oversight Office (ISOO), consistent with his assigned responsibilities under Executive Order 12829, serves as the central point of contact within Government to consider and take action on complaints and suggestions from industry concerning alleged violations of the reciprocity provisions of the NISPOM.
(e) The Director, Security Policy Board Staff (D/SPBS) or his/her designee, shall serve as the central point of contact within Government to receive from Federal Government employees alleged violations of the reciprocity provisions prescribed herein and the policy “Reciprocity of Use and Inspections of Facilities” of the SPB.
§ 148.14
Procedures.
(a) Agencies that authorize, approve, certify, or accredit facilities shall provide to the SPB Staff a points of contact list to include names and telephone numbers of personnel to be contacted for verification of the status of facilities. The SPB Staff will publish a comprehensive directory of agency points of contact.
(b) After initial security authorization, approval, certification, or accreditation, subsequent reviews shall normally be conducted no more frequently than annually. Additionally, such reviews shall be aperiodic or random, and be based upon risk-management principles. Security Reviews may be conducted “for cause”, to follow up on previous findings, or to accomplish close-out actions.
(c) The procedures employed to maximize interagency reciprocity shall be based primarily upon existing organizational reporting channels. These channels should be used to address alleged departures from established reciprocity requirements and should resolve all, including the most egregious instances of non-compliance.
(d) Two complementary mechanisms are hereby established to augment existing organizational channels: (1) An accessible and responsive venue for reporting and resolving complaints/reported instances of non-compliance. Government and industry reporting channels shall be as follows:
(1) Governnment. (A) Agency employees are encouraged to bring suspected departures from applicable reciprocity requirements to the attention of the appropriate security authority in accordance with established agency procedures.
(B) Should the matter remain unresolved, the complainant (employee, Security Officer, Special Security Officer, or similar official) is encouraged to report the matter formally to the Senior Agency Official for resolution.
(C) Should the Senior Agency Official response be determined inadequate by the complainant, the matter should be reported formally to the Director, Security Policy Board Staff (D/SPBS). The D/SPBS, may revisit the matter with the Senior Agency Official or refer the matter to the Security Policy Forum as deemed appropriate.
(D) Should the matter remain unresolved, the Security Policy Forum may consider referral to the SPB, the agency head, or the National Security Council as deemed appropriate.
(ii) Industry. (A) Contractor employees are encouraged to bring suspected departures from the reciprocity provisions of the NISPOM to the attention to their Facility Security Officer (FSO) or Contractor Special Security Officer (CSSO), as appropriate, for resolution.
(B) Should the matter remain unresolved, the complainant (employee, FSO, or CSSO) is encouraged to report the matter formally to the Cognizant Security Office (CSO) for resolution.
(C) Should the CSO responses be determined inadequate by the complainant, the matter should be reported formally to the Senior Agency Official within the Cognizant Security Agency (CSA) for resolution.
(D) Should the Senior Agency Official response be determined inadequately by the complainant, the matter should be reported formally to the Director, information Security Oversight Office (ISOO) for resolution.
(E) The Director, ISOO, may revisit the matter with the Senior Agency Official or refer the matter to the agency head or the National Security Council as deemed appropriate.
(2) An annual survey administered to a representative sampling of agency and private sector facilities to assess overall effectiveness of agency adherence to applicable reciprocity requirements.
(i) In coordination with the D/SPBS, the Director, ISOO, as Chairman of the NISP Policy Advisory Committee (NISPPAC), shall develop and administer an annual survey to a representative number of cleared contractor activities/employees to assess the effectiveness of interagency reciprocity implementation. Administration of the survey shall be coordinated fully with each affected Senior Agency Official.
(ii) In coordination with the NISPPAC, the D/SPBS shall develop and administer an annual survey to a representative number of agency activities/personnel to assess the effectiveness of interagency reciprocity implementation. Administration of the survey shall be coordinated fully with each affected Senior Agency Official.
(iii) The goal of annual surveys should not be punitive but educational. All agencies and departments have participated in the crafting of these facilities policies, therefore, non-compliance is a matter of internal education and direction.
(e) Agencies will continue to review and assess the potential value added to the process of co-use of facilities by development of electronic data retrieval across government.
Pt. 149

PART 149—POLICY ON TECHNICAL SURVEILLANCE COUNTERMEASURES
Sec.
149.1
Policy.
149.2
Responsibilities.
149.3
Definitions.

Authority:
E.O. 12968 (60 FR 40245, 3 CFR 1995 Comp., p. 391.)

Source:
63 FR 4583, Jan. 30, 1998, unless otherwise noted.
§ 149.1
Policy.
(a) Heads of federal departments and agencies which process, discuss, and/or store classified national security information, restricted data, and sensitive but unclassified information, shall, in response to specific threat data and based on risk management principles, determine the need for Technical Surveillance Countermeasures (TSCM).
To obtain maximum effectiveness by the most economical means in the various TSCM programs, departments and agencies shall exchange technical information freely; coordinate programs; practice reciprocity; and participate in consolidated programs, when appropriate.
§ 149.2
Responsibilities.
(a) Heads of U.S. Government departments and agencies which plan, implement, and manage TSCM programs shall:
(1) Provide TSCM support consisting of procedures and countermeasures determined to be appropriate for the facility, consistent with risk management principles.
(2) Report to the Security Policy Board, attention: Chair, Facilities Protection Committee (FPC), for appropriate dissemination, all-source intelligence that concerns technical surveillance threats, devices, techniques, and unreported hazards, regardless of the source or target, domestic or foreign.
(3) Train a professional cadre of personnel in TSCM techniques.
(4) Ensure that the FPC and Training and Professional Development Committee are kept apprised of their TSCM program activities as well as training and research and development requirements.
(5) Assist other departments and agencies, in accordance with federal law, with TSCM services of common concern.
(6) Coordinate, through the FPC, proposed foreign disclosure of TSCM equipment and techniques.
(b) The FPC shall advise and assist the Security Policy Board in the development and review of TSCM policy, including guidelines, procedures, and instructions. The FPC shall:
(1) Coordinate TSCM professional training, research, development, test, and evaluation programs.
(2) Promote and foster joint procurement of TSCM equipment.
(3) Evaluate the impact on the national security of foreign disclosure of TSCM equipment or techniques and recommend policy changes as needed.
(4) Develop guidance for use in obtaining intelligence information on the plans, capabilities and actions of organizations hostile to the U.S. Government concerning technical penetrations and countermeasures against them.
(5) Biennially, review, update and disseminate the national strategy for TSCM.
§ 149.3
Definitions.
Classified National Security Information (CNSI). Information that has been determined pursuant to Executive Order 12958 (60 FR 19825, 3 CFR 1995 Comp., p. 333) or any predecessor order to require protection against unauthorized disclosure and is marked to indicate its classified status when in documentary form.
Restricted Data (RD). All data concerning design, manufacture or utilization of atomic weapons; the production of special nuclear material; or the use of special nuclear material in the production of energy, but shall not include data declassified or removed from the RD category pursuant to section 102 of the Atomic Energy Act of 1954, as amended.
Sensitive but Unclassified. Any information, the loss, misuse, or unauthorized access to or modification of which could adversely affect the national interest or the conduct of federal programs, or the privacy to which individuals are entitled under 5 U.S.C. 552a, but which has not been specifically authorized under criteria established by an Executive Order or an Act of Congress to be kept secret in the interest of national defense or foreign policy.
Technical Surveillance Countermeasures (TSCM). Techniques and measures to detect and nullify a wide variety of technologies that are used to obtain unauthorized access to classified national security information, restricted data, and/or sensitive but unclassified information.