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National Defense
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2016-07-01
2016-07-01
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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.
57.3
Definitions.
57.4
Policy.
57.5
Responsibilities.
57.6
Procedures.

Authority:
10 U.S.C. 2164, 20 U.S.C. 921-932 and chapter 33.

Source:
80 FR 36660, June 25, 2015, unless otherwise noted.
§ 57.1
Purpose.
This part:
(a) Establishes policy and assigns responsibilities to implement, other than the funding and reporting provisions, chapter 33 of 20 U.S.C. (also known and hereinafter referred to in this part as “Individuals with Disabilities Education Act (IDEA)”) pursuant to 20 U.S.C. 927(c) and 10 U.S.C. 2164(f) for:
(1) Provision of early intervention services (EIS) to infants and toddlers with disabilities and their families, as well as special education and related services to children with disabilities entitled under this part to receive education services from the DoD in accordance with 20 U.S.C. 921-932, 10 U.S.C. 2164, and DoD Directive 1342.20, “Department of Defense Education Activity (DoDEA)” (available at http://www.dtic.mil/whs/directives/corres/pdf/134220p.pdf), and the IDEA.
(2) Implementation of a comprehensive, multidisciplinary program of EIS for infants and toddlers with disabilities and their DoD civilian-employed and military families.
(3) Provision of a free appropriate public education (FAPE), including special education and related services for children with disabilities who are eligible to enroll in DoDEA schools, as specified in their respective individualized education programs (IEP).
(4) Monitoring of DoD programs providing EIS, or special education and related services for compliance with this part.
(b) Establishes a DoD Coordinating Committee to recommend policies and provide compliance oversight for early intervention and special education.
(c) Authorizes the issuance of other guidance as necessary.
§ 57.2
Applicability.
This part applies to:
(a) Office of the Secretary of Defense (OSD), 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 DoD (hereinafter referred to collectively as the “DoD Components”).
(b) Eligible infants, toddlers, and children receiving or entitled to receive early intervention services (EIS) or special education and related services from the DoD, whose parents have not elected voluntary enrollment in a non-Department of Defense Education Activity (DoDEA) school.
(c) All schools operated under the oversight of the DoDEA, including:
(1) Domestic Dependent Elementary and Secondary Schools (DDESS) operated by the DoD pursuant to 10 U.S.C. 2164.
(2) Department of Defense Dependents Schools (DoDDS) operated by the DoD pursuant to 20 U.S.C. 921-932 (hereinafter referred to as “overseas” schools).
(d) Does not create any substantive rights or remedies not otherwise authorized by the IDEA or other relevant law; and may not be relied upon by any person, organization, or other entity to allege a denial of substantive rights or remedies not otherwise authorized by the IDEA or other relevant law.
§ 57.3
Definitions.
Unless otherwise noted, these terms and their definitions are for the purpose of this part.
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, unless the child has been determined by a court of competent jurisdiction to be incompetent, or, if the child has not been determined to be incompetent, he or she is incapable of providing informed consent with respect to his or her educational program.
Alternate assessment. An objective and consistent process that validly measures the performance of students with disabilities unable to participate, even with appropriate accommodations provided as necessary and as determined by their respective CSC, in a system-wide assessment.
Alternative educational setting (AES). A temporary setting in or out of the school, other than the setting normally attended by the student (e.g., alternative classroom, home setting, installation library) as determined by school authorities or the CSC, in accordance with § 57.6(b)(12) as the appropriate learning environment for a student because of a violation of school rules and regulations or disruption of regular classroom activities.
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. This term does not include a medical device that is surgically implanted or the replacement of that device.
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: Evaluating the needs of an individual with a disability, including a functional evaluation in the individual's customary environment; purchasing, leasing, or otherwise providing for the acquisition of assistive technology devices by individuals with disabilities; selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing assistive technology devices; coordinating and using other therapies, interventions, or services with assistive technology devices, such as those associated with existing educational and rehabilitative plans and programs; training or technical assistance for an individual with disabilities or the family of an individual with disabilities; and 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.
Case study committee (CSC). A school-level multidisciplinary team, including the child's parents, responsible for making educational decisions concerning a child with a disability.
Child-find. An outreach program used by DoDEA, the Military Departments, and the other DoD Components to locate, identify, and evaluate children from birth to age 21, inclusive, who may require EIS or special education and related services. All children who are eligible to attend a DoD school under 20 U.S.C. 921-932 or 10 U.S.C. 2164 fall within the scope of the DoD child-find responsibilities. Child-find activities include the dissemination of information to Service members, DoD employees, and parents of students eligible to enroll in DoDEA schools; the identification and screening of children; and the use of referral procedures.
Children with disabilities. Children, ages 3 through 21, inclusive, who are entitled to enroll, or are enrolled, in a DoD school in accordance with 20 U.S.C. 921-932 and 10 U.S.C. 2164, have not graduated from high school or completed the General Education Degree, have one or more disabilities in accordance with section 1401(3) of the IDEA, and need and qualify for special education and related services.
Complainant. Person making an administrative complaint.
Comprehensive system of personnel development (CSPD). A system of personnel development that is developed in coordination with the Military Departments and the Director, DoDEA. CSPD is the training of professionals, paraprofessionals, and primary referral source personnel with respect to the basic components of early intervention, special education, and related services. CSPD may also include implementing innovative strategies and activities for the recruitment and retention of personnel providing special education and related services, ensuring that personnel requirements are established and maintaining qualifications to ensure that personnel necessary to carry out the purposes of this part are appropriately and adequately prepared to provide special education and related services. Training of personnel may include working within the military and with military families, the emotional and social development of children, and transition services from early intervention to preschool and transitions within educational settings and to post-secondary environments.
Consent. The permission obtained from the parent ensuring they are fully informed of all information about the activity for which consent is sought, in his or her native language or in another mode of communication if necessary, and that the parent understands and agrees in writing to the implementation of the activity for which permission is sought.
Continuum of placement options. Instruction in general education 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.
Controlled substance. As defined in Sections 801-971 of title 21, United States Code (also known as the “Controlled Substances Act, as amended”).
Day. A calendar day, unless otherwise indicated as a business day or a school day.
(1) Business day. Monday through Friday except for Federal and State holidays.
(2) School day. Any day, including a partial day, that children are in attendance at school for instructional purposes. School day has the same meaning for all children in school, including children with and without disabilities.
Department of Defense Education Activity (DoDEA). The Department of Defense Education Activity is a DoD Field Activity under the direction, operation, and control of the Under Secretary of Defense for Personnel & Readiness (USD(P&R)) and the Assistant Secretary of Defense for Readiness & Force Management (ASD(R&FM)). The mission of DoDEA is to provide an exemplary education by effectively and efficiently planning, directing, and overseeing the management, operation, and administration of the DoD Domestic Dependent Elementary and Secondary Schools (DDESS) and the DoD Dependents Schools (DoDDS), which provide instruction from kindergarten through grade 12 to eligible dependents.
Department of Defense Dependents Schools (DoDDS). The overseas schools (kindergarten through grade 12) established in accordance with 20 U.S.C. 921-932.
Department of Defense Education Activity School. A DDESS or DoDDS school operated under the oversight of DoDEA.
Developmental Delay in children ages 3 through 7. A child three through seven (or any subset of that age range, including ages 3 through 5) who is experiencing developmental delays, as defined for infants and toddlers at § 57.6(a)(4)(ii)(A) as measured by appropriate diagnostic instruments and procedures, in one or more of the following areas: Physical development, cognitive development, communication development, social or emotional development, or adaptive development, and who, by reason thereof, needs special education and related services. A child determined to have a developmental delay before the age of 7 may maintain that eligibility through age 9.
Domestic Dependent Elementary and Secondary Schools (DDESS). The schools (pre-kindergarten through grade 12) established in accordance with 10 U.S.C. 2164.
Early intervention service provider. An individual that provides early intervention services in accordance with this part.
Educational and Developmental Intervention Services (EDIS). Programs operated by the Military Departments to provide EIS to eligible infants and toddlers with disabilities, and related services to eligible children with disabilities in accordance with this part.
EIS. Developmental services for infants and toddlers with disabilities, as defined in this part, that are provided under the supervision of a Military Department, including evaluation, individualized family service plan (IFSP) development and revision, and service coordination, provided at no cost to the child's parents (except for incidental fees also charged to children without disabilities).
Extended school year (ESY) services. Special education and related services that are provided to a child with a disability beyond the normal DoDEA school year, in accordance with the child's IEP, are at no cost to the parents, and meet the standards of the DoDEA school system.
Evaluation. The method used by a multidisciplinary team to conduct and review the assessments of the child and other relevant input to determine whether a child has a disability and a child's initial and continuing need to receive EIS or special education and related services.
Extracurricular and non-academic activities. Services and activities including counseling services; athletics; transportation; health services; recreational activities; special interest groups or clubs sponsored by the DoDEA school system; and referrals to agencies that provide assistance to individuals with disabilities and employment of students, including employment by a public agency and assistance in making outside employment available.
FAPE. Special education and related services that are provided under the general supervision and direction of DoDEA at no cost to parents of a child with a disability, in conformity with an IEP, in accordance with the requirements of the IDEA and DoD guidance.
Functional behavioral assessment. A process for identifying the events that predict and maintain patterns of problem behavior.
General education curriculum. The curriculum adopted by the DoDEA school systems for all children from preschool through secondary school. To the extent applicable to an individual child with a disability, the general education curriculum can be used in any educational environment along a continuum of alternative placements.
IEP. A written document that is developed, reviewed, and revised at a meeting of the CSC, identifying the required components of the individualized education program for a child with a disability.
Individualized Family Service Plan (IFSP). A written document identifying the specially designed services for an infant or toddler with a disability and the family of such infant or toddler.
Independent educational evaluation (IEE). An evaluation conducted by a qualified examiner who is not an EDIS examiner or an examiner funded by the DoDEA school who conducted the evaluation with which the parent is in disagreement.
Infants and toddlers with disabilities. Children from birth up to 3 years of age, inclusive, who need EIS because:
(1) They are experiencing developmental delays as measured by appropriate diagnostic instruments and procedures, in one or more of the following areas: Cognitive development, physical development including vision and hearing, communication development, social or emotional development, adaptive development; or
(2) They have a diagnosed physical or mental condition that has a high probability of resulting in developmental delay.
Inter-component. Cooperation among DoD organizations and programs, ensuring coordination and integration of services to infants, toddlers, children with disabilities, and their families.
Manifestation determination. The process in which the CSC reviews all relevant information and the relationship between the child's disability and the child's behavior to determine whether the behavior is a manifestation of the child's disability.
Mediation. A confidential, voluntary, informal dispute resolution process that is provided at no charge to the parents, whether or not a due process petition has been filed, in which the disagreeing parties engage in a discussion of issues related to the provision of the child's EIS or special education and related services in accordance with the requirements of IDEA and this part, in the presence of, or through, a qualified and impartial mediator who is trained in effective mediation techniques.
Medical services. Those evaluative, diagnostic, and therapeutic, services provided by a licensed and credentialed medical provider to assist providers of EIS, regular and special education teachers, and providers of related services to develop and implement IFSPs and IEPs.
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.
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.
Natural environment. A setting, including home and community, in which children without disabilities participate.
Non-DoD school or facility. A public or private school or other educational program not operated by DoD.
Parent. The natural, adoptive, or foster parent of a child, a guardian, an individual acting in the place of a natural or adoptive parent with whom the child lives, or an individual who is legally responsible for the child's welfare if that person contributes at least one-half of the child's support.
Personally identifiable information. Information that would make it possible to identify the infant, toddler, or child with reasonable certainty. Information includes: The name of the child, the child's parent or other family member; the address of the child; a personal identifier, such as the child's social security number or student number; or a list of personal characteristics or other information that would make it possible to identify the child with reasonable certainty.
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.
Psychological services. Psychological services include: Administering psychological and educational tests and other assessment procedures; interpreting assessment results; obtaining, integrating and interpreting information about child behavior and conditions relating to learning; consulting with other staff members in planning school programs to meet the special educational needs of children as indicated by psychological tests, interviews, direct observations, and behavioral evaluations; planning and managing a program of psychological services, including psychological counseling for children and parents; and assisting in developing positive behavioral intervention strategies.
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.
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 evaluation or assessment, EIS, special education or related services to an infant, toddler, or child with a disability.
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 in accordance with the Rehabilitation Act of 1973, 29 U.S.C. chapter 16.
Related services. Transportation and such developmental, corrective, and other supportive services, as required, to assist a child with a disability to benefit from special education under the child's IEP. The term includes services or consults in the areas of speech-language pathology; audiology services; interpreting services; psychological services; physical and occupational therapy; recreation including therapeutic recreation; social work services; and school nurse services designed to enable a child with a disability to receive a FAPE as described in the child's IEP; 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. The term does not include a medical device that is surgically implanted or the replacement of such.
Related services assigned to the Military Departments. Medical and psychological services, audiology, and optometry for diagnostic or evaluative purposes, including consults, to determine whether a particular child has a disability, the type and extent of the disability, and the child's eligibility to receive special services. In the overseas and domestic areas, transportation is provided as a related service by the Military Department when transportation is prescribed in an IFSP for an infant or toddler, birth to 3 years of age, with disabilities.
Resolution meeting. The meeting between parents and relevant school personnel, which must be convened within a specified number of days after receiving notice of a due process complaint and prior to the initiation of a due process hearing, in accordance with the IDEA and this part. The purpose of the meeting is for the parent to discuss the due process complaint and the facts giving rise to the complaint so that the school has the opportunity to resolve the complaint.
Resolution period. That period of time following a resolution meeting, the length of which is defined in this part, during which the school is afforded an opportunity to resolve the parent's concerns before the dispute can proceed to a due process hearing.
Separate facility. A school or a portion of a school, regardless of whether it is operated by DoD, attended exclusively by children with disabilities.
Serious bodily injury. A bodily injury, which involves a substantial risk of death; extreme physical pain; protracted and obvious disfigurement; or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.
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.
Special education. Specially designed instruction, which is provided at no cost to the parents, 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; and instruction in physical education.
Supplementary aids and services. Aids, services, and other supports that are provided in regular education classes or other educational-related settings, and in extracurricular and non-academic settings to enable children with disabilities to be educated with non-disabled children to the maximum extent appropriate.
Transition services. A coordinated set of activities for a child with a disability that is designed to be within a results-oriented process, that is focused on improving the academic and functional achievement of the child with a disability to facilitate the child's movement from school to post-school activities, including post-secondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation, and is based on the individual child's needs, taking into account the child's strengths, preferences, and interests and includes instruction, related services, 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.
Transportation. A service that includes transportation and related costs, including the cost of mileage or travel by taxi, common carrier, tolls, and parking expenses, that are necessary to: enable an eligible child with a disability and the family to receive EIS, when prescribed in a child's IFSP; enable an eligible child with a disability to receive special education and related services, when prescribed as a related service by the child's IEP; and enable a child to obtain an evaluation to determine eligibility for special education and related services, if necessary. It also includes specialized equipment, including special or adapted buses, lifts, and ramps needed to transport children with disabilities.
Weapon. Defined in Department of Defense Education Activity Regulation 2051.1, “Disciplinary Rules and Procedures” (available at http://www.dodea.edu/foia/iod/pdf/2051_1a.pdf).
§ 57.4
Policy.
It is DoD policy that:
(a) Infants and toddlers with disabilities and their families who (but for the children's age) would be entitled to enroll in a DoDEA school in accordance with 20 U.S.C. 921-932 or 10 U.S.C. 2164 shall be provided EIS.
(b) The DoD shall engage in child-find activities for all children age birth to 21, inclusive, who are entitled by 20 U.S.C. 921-932 or 10 U.S.C. 2164 to enroll or are enrolled in a DoDEA school.
(c) Children with disabilities who meet the enrollment eligibility criteria of 20 U.S.C. 921-932 or 10 U.S.C. 2164 shall be provided a FAPE in the least restrictive environment, including if appropriate to the needs of the individual child, placement in a residential program for children with disabilities in accordance with the child's IEP and at no cost to the parents.
(d) The Military Departments and DoDEA shall cooperate in the delivery of related services prescribed by section 1401(26) of the IDEA and this part as may be required to assist eligible children with disabilities to benefit from special education.
(e) Children with disabilities who are eligible to enroll in a DoDEA school in accordance with 20 U.S.C. 921-932 or 10 U.S.C. 2164 shall not be entitled to provision of a FAPE by DoDEA, or to the procedural safeguards prescribed by this part in accordance with the IDEA, if:
(1) The sponsor is assigned to an overseas area where a DoDEA school is available within the commuting area of the sponsor's overseas assignment, but the sponsor does not elect to enroll the child in a DoDEA school for reasons other than DoDEA's alleged failure to provide a FAPE; or
(2) The sponsor is assigned in the United States or in a U.S. territory, commonwealth, or possession and the sponsor's child meets the eligibility requirements for enrollment in a DoDEA school, but the sponsor does not elect to enroll the child in a DoDEA school for reasons other than DoDEA's alleged failure to provide a FAPE.
§ 57.5
Responsibilities.
(a) The ASD(R&FM) under the authority, direction, and control of the USD(P&R) shall:
(1) Establish, in accordance with DoD Instruction 5105.18, “DoD Intergovernmental and Intragovernmental Committee Management Program” (available at http://www.dtic.mil/whs/directives/corres/pdf/510518p.pdf), a DoD Coordinating Committee to recommend policies regarding the provision of early intervention and special education services.
(2) Ensure the development, implementation and administration of a system of services for infants and toddlers with disabilities and their families and children with disabilities; and provide compliance oversight for early intervention and special education in accordance with DoD Directive 5124.02, “Under Secretary of Defense for Personnel and Readiness (USD(P&R))” (available at http://www.dtic.mil/whs/directives/corres/pdf/512402p.pdf); 20 U.S.C. 921-932; the applicable statutory provision of the IDEA; 10 U.S.C. 2164; DoD Directive 1342.20 and implementing guidance authorized by this part.
(3) Oversee DoD Component collaboration on the provision of services and transition support to infants, toddlers, and school-aged children.
(4) Develop a DoD-wide comprehensive child-find system to identify eligible infants, toddlers, and children ages birth through 21 years, inclusive, who may require early intervention or special education services, in accordance with the IDEA.
(5) Develop and provide guidance as necessary for the delivery of services for children with disabilities and for the protection of procedural rights consistent with the IDEA and implementing guidance authorized by this part.
(6) Coordinate with the Secretaries of the Military Departments to ensure that their responsibilities, as detailed in paragraph (f) of this section, are completed.
(7) Direct the development and implementation of a comprehensive system of personnel development (CSPD) for personnel serving infants and toddlers with disabilities and children with disabilities, and their families.
(8) Develop requirements and procedures for compiling and reporting data on the number of eligible infants and toddlers with disabilities and their families in need of EIS and children in need of special education and related services.
(9) Require DoDEA schools provide educational information for assignment coordination and enrollment in the Services' Exceptional Family Member Program or Special Needs Program consistent with DoD Instruction 1315.19, “Authorizing Special Needs Family Members Travel Overseas at Government Expense” (available at http://www.dtic.mil/whs/directives/corres/pdf/131519p.pdf).
(10) Identify representatives to serve on the Department of Defense Coordinating Committee on Early Intervention, Special Education, and Related Services (DoD-CC).
(11) Ensure delivery of appropriate early intervention and educational services to eligible infants, toddlers, and children, and their families as appropriate pursuant to the IDEA and this part through onsite monitoring of special needs programs and submission of an annual compliance report.
(b) The Assistant Secretary of Defense for Health Affairs (ASD(HA)), under the authority, direction, and control of the USD(P&R), shall:
(1) Advise the USD(P&R) and consult with the General Counsel of the Department of Defense (GC, DoD) regarding the provision of EIS and related services.
(2) Oversee development of provider workload standards and performance levels to determine staffing requirements for EIS and related services. The standards shall take into account the provider training needs, the requirements of this part, and the additional time required to provide EIS and related services in schools and the natural environments, and for the coordination with other DoD Components and other service providers, indirect services including analysis of data, development of the IFSP, transition planning, and designing interventions and accommodations.
(3) Establish and maintain an automated data system to support the operation and oversight of the Military Departments' delivery of EIS and related services.
(4) Assign geographical areas of responsibility for providing EIS and related services under the purview of healthcare providers to the Military Departments. Periodically review the alignment of geographic areas to ensure that resource issues (e.g., base closures) are considered in the cost-effective delivery of services.
(5) Establish a system for measuring EIS program outcomes for children and their families.
(6) Resolve disputes among the DoD Components providing EIS.
(c) The Director, Defense Health Agency (DHA), under the authority, direction, and control of the ASD(HA), shall identify representatives to serve on the DoD-CC.
(d) The Director, DoD Education Activity (DoDEA), under the authority, direction, and control of the USD(P&R), and through the ASD(R&FM), in accordance with DoD Directive 5124.02, shall ensure that:
(1) Children who meet the enrollment eligibility criteria of 20 U.S.C. 921-932 or 10 U.S.C. 2164 are identified and referred for evaluation if they are suspected of having disabilities, and are afforded appropriate procedural safeguards in accordance with the IDEA and implementing guidance authorized by this part.
(2) Children who meet the enrollment eligibility criteria of 20 U.S.C. 921-932 or 10 U.S.C. 2164 shall be evaluated in accordance with the IDEA and implementing guidance authorized by this part, as needed. If found eligible for special education and related services, they shall be provided a FAPE in accordance with an IEP, with services delivered in the least restrictive environment and procedural safeguards in accordance with the requirements of the IDEA and implementing guidance authorized by this part.
(3) Records are maintained on the special education and related services provided to children in accordance with this part, pursuant to 32 CFR part 310.
(4) Related services as prescribed in an IEP for a child with disabilities enrolled in a DoDEA school in the United States, its territories, commonwealths, or possessions are provided by DoDEA.
(5) Transportation is provided by DoDEA in overseas and domestic areas as a related service to children with disabilities when transportation is prescribed in a child's IEP. The related service of transportation includes necessary accommodations to access and leave the bus and to ride safely on the bus and transportation between the child's home, the DoDEA school, or another location, as specified in the child's IEP.
(6) Appropriate personnel participate in the development and implementation of a CSPD.
(7) Appropriate written guidance is issued to implement the requirements pertaining to special education and related services under 20 U.S.C. 921-932, 10 U.S.C. 2164, and the IDEA.
(8) Activities to identify and train personnel to monitor the provision of services to eligible children with disabilities are funded.
(9) DoDEA schools that operate pursuant to 20 U.S.C. 921-932 and 10 U.S.C. 2164 conduct child-find activities for all eligible children;
(10) A free appropriate public education (FAPE) and procedural safeguards in accordance with IDEA and this part available to children with disabilities who are entitled to enroll in DoDEA schools under the enrollment eligibility criteria of 20 U.S.C. 921-932 or 10 U.S.C. 2164. However, a FAPE, or the procedural safeguards prescribed by the IDEA and this part, shall NOT be available to such children, if:
(i) The sponsor is assigned to an overseas area where a DoDEA school is available within the commuting area of the sponsor's assignment, but the sponsor does not elect to enroll his or her child in a DoDEA school for reasons other than DoDEA's alleged failure to provide a FAPE; or
(ii) The sponsor is assigned in the United States or in a U.S. territory, commonwealth, or possession and the sponsor's child meets the eligibility requirements for enrollment in a DoDEA school, but the sponsor does not elect to enroll the child in a DoDEA school for reasons other than DoDEA's alleged failure to provide a FAPE.
(11) The educational needs of children with and without disabilities are met comparably, in accordance with § 57.6(b) of this part.
(12) Educational facilities and services (including the start of the school day and the length of the school year) operated by DoDEA for children with and without disabilities are comparable.
(13) All programs providing special education and related services are monitored for compliance with this part and with the substantive rights, protections, and procedural safeguards of the IDEA and this part at least once every 3 years.
(14) A report is submitted to the USD(P&R) not later than September 30 of each year certifying whether all schools are in compliance with the IDEA and this part, and are affording children with disabilities the substantive rights, protections, and procedural safeguards of the IDEA.
(15) Transition assistance is provided in accordance with IDEA and this part to promote movement from early intervention or preschool into the school setting.
(16) Transition services are provided in accordance with IDEA and this part to facilitate the child's movement into different educational settings and post-secondary environments.
(e) The GC, DoD shall identify representatives to serve on the DoD-CC.
(f) The Secretaries of the Military Departments shall:
(1) Establish educational and developmental intervention services (EDIS) to ensure infants and toddlers with disabilities are identified and provided EIS where appropriate, and are afforded appropriate procedural safeguards in accordance with the requirements of the IDEA and implementing guidance authorized by this part.
(2) Staff EDIS with appropriate professional staff, based on the services required to serve children with disabilities.
(3) Provide related services required to be provided by a Military Department in accordance with the mandates of this part for children with disabilities. In the overseas areas served by DoDEA schools, the related services required to be provided by a Military Department under an IEP necessary for the student to benefit from special education include medical services for diagnostic or evaluative purposes; social work; community health nursing; dietary, audiological, optometric, and psychological testing and therapy; occupational therapy; and physical therapy. Transportation is provided as a related service by the Military Department when it is prescribed in a child's IFSP for an infant or toddler birth up to 3 years of age, inclusive, with disabilities. Related services shall be administered in accordance with guidance issued pursuant to this part, including guidance from the ASD(HA) on staffing and personnel standards.
(4) Issue implementing guidance and forms necessary for the operation of EDIS in accordance with this part.
(5) Provide EIS to infants and toddlers with disabilities and their families, and related services to children with disabilities as required by this part at the same priority that medical care is provided to active duty military members.
(6) Provide counsel from the Military Department concerned or request counsel from the Defense Office of Hearings and Appeals (DOHA) to represent the Military Department in impartial due process hearings and administrative appeals conducted in accordance with this part for infants and toddlers birth up to 3 years of age, inclusive, with disabilities who are eligible for EIS.
(7) Execute Departmental responsibilities under the Exceptional Family Member program (EFMP) prescribed by DoD Instruction 1315.19.
(8) Train command personnel to fully understand their legal obligations to ensure compliance with and provide the services required by this part.
(9) Fund activities to identify and train personnel to monitor the provision of services to eligible children with disabilities.
(10) Require the development of policies and procedures for providing, documenting, and evaluating EDIS, including EIS and related services provided to children receiving special education in a DoDEA school.
(11) Maintain EDIS to provide necessary EIS to eligible infants and toddlers with disabilities and related services to eligible children with disabilities in accordance with this part and the substantive rights, protections, and procedural safeguards of the IDEA, § 57.6(a) and § 57.6(c) of this part.
(12) Implement a comprehensive, coordinated, inter-component, community-based system of EIS for eligible infants and toddlers with disabilities and their families using the procedures established in § 57.6(a) of this part and guidelines from the ASD(HA) on staffing and personnel standards.
(13) Provide transportation for EIS pursuant to the IDEA and this part.
(14) Provide transportation for children with disabilities pursuant to the IDEA and this part. The Military Departments are to provide transportation for a child to receive medical or psychological evaluations at a medical facility in the event that the local servicing military treatment facility (MTF) is unable to provide such services and must transport the child to another facility.
(15) Require that EDIS programs maintain the components of an EIS as required by the IDEA and this part, to include:
(i) A comprehensive child-find system, including a system for making referrals for services that includes timelines and provides for participation by primary referral sources, and that establishes rigorous standards for appropriately identifying infants and toddlers with disabilities for services.
(ii) A public awareness program focusing on early identification of infants and toddlers with disabilities to include:
(A) Preparation of information materials for parents regarding the availability of EIS, especially to inform parents with premature infants or infants with other physical risk factors associated with learning or developmental complications.
(B) Dissemination of those materials to all primary referral sources, especially hospitals and physicians, for distribution to parents.
(C) A definition of developmental delay, consistent with § 57.6(g) of this part, to be used in the identification of infants and toddlers with disabilities who are in need of services.
(D) Availability of appropriate EIS.
(iii) A timely, comprehensive, multidisciplinary evaluation of the functioning of each infant or toddler and identification of the needs of the child's family to assist appropriately in the development of the infant or toddler.
(iv) Procedures for development of an Individualized Family Service Plan (IFSP) and coordination of EIS for families of eligible infants and toddlers with disabilities.
(v) A system of EIS designed to support infants and toddlers and their families in the acquisition of skills needed to become functionally independent and to reduce the need for additional support services as toddlers enter school.
(vi) A central directory of information on EIS resources and experts available to military families.
(16) Implement a comprehensive system of personnel development consistent with the requirements of the IDEA.
(17) Require that EDIS participate in the existing MTF quality assurance program, which monitors and evaluates the medical services for children receiving such services as described by this part. Generally accepted standards of practice for the relevant medical services shall be followed, to the extent consistent with the requirements of the IDEA including provision of EIS in a natural environment, to ensure accessibility, acceptability, and adequacy of the medical portion of the program provided by EDIS.
(18) Require transition services to promote movement from early intervention, preschool, and other educational programs into different educational settings and post-secondary environments.
(19) Direct that each program providing EIS is monitored for compliance with this part, and the substantive rights, protections, and procedural safeguards of the IDEA, at least once every 3 years.
(20) Submit a report to the USD(P&R) not later than September 30 of each year stating whether all EDIS programs are in compliance with this part and are affording infants and toddlers the substantive rights, protections, and procedural safeguards of the IDEA, as stated in § 57.6(f) of this part.
(21) Compile and report EDIS workload and compliance data using the system established by the ASD(HA) as stated in § 57.6(f).
(g) The Director, DOHA, under the authority, direction, and control of the GC, DoD/Director, Defense Legal Services Agency, shall:
(1) Ensure impartial due process hearings are provided in accordance with the IDEA and implementing guidance authorized by this part with respect to complaints related to special education and related services arising under the IDEA.
(2) Ensure DOHA Department Counsel represents DoDEA in all due process proceedings arising under the IDEA for children age 3 through 21 who are eligible for special education and related services.
(3) Ensure DOHA Department Counsel, upon request by a Military Department, represents the Military Department in due process proceedings arising under the IDEA for infants and toddlers birth up to 3 years of age with disabilities who are eligible for EIS.
(4) Ensure the DOHA Center for Alternative Dispute Resolution (CADR) maintains a roster of mediators qualified in special education disputes and, when requested, provides a mediator for complaints related to special education and related services arising under the IDEA.
§ 57.6
Procedures.
(a) Procedures for the Provision of EIS for Infants and Toddlers with Disabilities—(1) General.
(i) There is an urgent and substantial need to:
(A) Enhance the development of infants and toddlers with disabilities to minimize their potential for developmental delay and to recognize the significant brain development that occurs during a child's first 3 years of life.
(B) Reduce educational costs by minimizing the need for special education and related services after infants and toddlers with disabilities reach school age.
(C) Maximize the potential for individuals with disabilities to live independently.
(D) Enhance the capacity of families to meet the special needs of their infants and toddlers with disabilities.
(ii) All procedures and services within EIS must be in accordance with the IDEA and the provisions of this part.
(2) Identification and screening. (i) Each Military Department shall develop and implement in its assigned geographic area a comprehensive child-find and public awareness program, pursuant to the IDEA and this part, that focuses on the early identification of infants and toddlers who are eligible to receive EIS pursuant to this part.
(ii) The military treatment facility (MTF) and Family Advocacy Program must be informed that EDIS will accept direct referrals for infants and toddlers from birth up to 3 years of age who are:
(A) Involved in a substantiated case of child abuse or neglect; or
(B) Identified as affected by illegal substance abuse or withdrawal symptoms resulting from prenatal drug exposure.
(iii) All other DoD Components will refer infants and toddlers with suspected disabilities to EDIS in collaboration with the parents.
(iv) Upon receipt of a referral, EDIS shall appoint a service coordinator.
(v) All infants and toddlers referred to the EDIS for EIS shall be screened to determine the appropriateness of the referral and to guide the assessment process.
(A) Screening does not constitute a full evaluation. At a minimum, screening shall include a review of the medical and developmental history of the referred infant or toddler through a parent interview and a review of medical records.
(B) If screening is conducted prior to the referral, or if there is a substantial or obvious biological risk, a screening following the referral may not be necessary.
(C) If EDIS determines that an evaluation is not necessary based on screening results, EDIS will provide written notice to the parents in accordance with paragraph (a)(9) of this section.
(3) Assessment and evaluation—(i) Assessments and evaluations. The assessment and evaluation of each infant and toddler must:
(A) Be conducted by a multidisciplinary team.
(B) Include:
(1) A review of records related to the infant's or toddler's current health status and medical history.
(2) An assessment of the infant's or toddler's needs for EIS based on personal observation of the child by qualified personnel.
(3) An evaluation of the infant's or toddler's level of functioning in each of the following developmental areas, including a multidisciplinary assessment of the unique strengths and needs of the child and the identification of services appropriate to meet those needs.
(i) Cognitive development.
(ii) Physical development, including functional vision and hearing.
(iii) Communication development.
(iv) Social or emotional development.
(v) Adaptive development.
(4) Informed clinical opinion of qualified personnel if the infant or toddler does not qualify based on standardized testing and there is probable need for services.
(ii) Family assessments. (A) Family assessments must include consultation with the family members.
(B) If EDIS conducts an assessment of the family, the assessment must:
(1) Be voluntary on the part of the family.
(2) Be conducted by personnel trained to utilize appropriate methods and procedures.
(3) Be based on information provided by the family through a personal interview.
(4) Incorporate the family's description of its resources, priorities, and concerns related to enhancing the infant's or toddler's development and the identification of the supports and services necessary to enhance the family's capacity to meet the developmental needs of the infant or toddler.
(iii) Standards for Assessment Selection and Procedures. EDIS shall ensure, at a minimum, that:
(A) Evaluators administer tests and other evaluations in the native language of the infant or toddler, or the family's native language, or other mode of communication, unless it is clearly not feasible to do so.
(B) Assessment, evaluation procedures, and materials are selected and administered so as not to be racially or culturally discriminatory.
(C) No single procedure is used as the sole criterion for determining an infant's or toddler's eligibility under this part.
(D) Qualified personnel conduct evaluations and assessments.
(iv) Delivery of Intervention Services. With parental consent, the delivery of intervention services may begin before the completion of the assessment and evaluation when it has been determined by a multidisciplinary team that the infant or toddler or the infant's or toddler's family needs the service immediately. Although EDIS has not completed all assessments, EDIS must develop an IFSP before the start of services and complete the remaining assessments in a timely manner.
(4) Eligibility. (i) The EDIS team shall meet with the parents and determine eligibility. The EIS team shall document the basis for eligibility in an eligibility report and provide a copy to the parents.
(ii) Infants and toddlers from birth up to 3 years of age with disabilities are eligible for EIS if they meet one of the following criteria:
(A) The infant or toddler is experiencing a developmental delay in one or more of the following areas: Physical development; cognitive development; communication development; social or emotional development; or adaptive development, as verified by a developmental delay of two standard deviations below the mean as measured by diagnostic instruments and procedures in at least one area; a 25 percent delay in at least one developmental area on assessment instruments that yield scores in months; a developmental delay of 1.5 standard deviations below the mean as measured by diagnostic instruments and procedures in two or more areas; or a 20 percent delay in two or more developmental areas on assessment instruments that yield scores in months.
(B) The infant or toddler has a diagnosed physical or mental condition that has a high probability of resulting in developmental delay. Includes conditions such as, chromosomal abnormalities; genetic or congenital disorders; severe sensory impairments; inborn errors of metabolism; disorders reflecting disturbance of the development of the nervous system; congenital infections; and disorders secondary to exposure to toxic substances, including fetal alcohol syndrome.
(5) Timelines. (i) EIS shall complete the initial evaluation and assessment of each infant and toddler (including the family assessment) in a timely manner ensuring that the timeline in paragraph (a)(6)(ii) of this section is met.
(ii) The Military Department responsible for providing EIS shall develop procedures requiring that, if circumstances make it impossible to complete the evaluation and assessment within a timely manner (e.g., if an infant or toddler is ill), EDIS shall:
(A) Document those circumstances.
(B) Develop and implement an appropriate interim IFSP in accordance with this part.
(6) IFSP. (i) The EDIS shall develop and implement an IFSP for each infant and toddler with a disability, from birth up to 3 years of age, who meets the eligibility criteria for EIS.
(ii) EDIS shall convene a meeting to develop the IFSP of an infant or toddler with a disability. The meeting shall be scheduled as soon as possible following its determination that the infant or toddler is eligible for EIS, but not later than 45 days from the date of the referral for services.
(iii) The IFSP team meeting to develop and review the IFSP must include:
(A) The parent or parents of the infant or toddler.
(B) Other family members, as requested by the parent, if feasible.
(C) An advocate or person outside of the family if the parent requests that person's participation.
(D) The service coordinator who has worked with the family since the initial referral of the infant or toddler or who is responsible for the implementation of the IFSP.
(E) The persons directly involved in conducting the evaluations and assessments.
(F) As appropriate, persons who shall provide services to the infant or toddler or the family.
(iv) If a participant listed in paragraph (a)(6)(iii) of this section is unable to attend a meeting, arrangements must be made for the person's involvement through other means, which may include:
(A) A telephone conference call or other electronic means of communication.
(B) Providing knowledgeable, authorized representation.
(C) Providing pertinent records for use at the meeting.
(v) The IFSP shall contain:
(A) A statement of the infant's or toddler's current developmental levels including physical, cognitive, communication, social or emotional, and adaptive behaviors based on the information from the evaluation and assessments.
(B) A statement of the family's resources, priorities, and concerns about enhancing the infant's or toddler's development.
(C) A statement of the measurable results or measurable outcomes expected to be achieved for the infant or toddler and the family. The statement shall contain pre-literacy and language skills, as developmentally appropriate for the infant or toddler, and 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 results and services are necessary.
(D) A statement of the specific EIS based on peer-reviewed research, to the extent practicable, necessary to meet the unique needs of the infant or toddler and the family, including the frequency, intensity, and method of delivering services.
(E) A statement of the natural environments in which EIS will be provided including a justification of the extent, if any, to which the services shall not be provided in a natural environment because the intervention cannot be achieved satisfactorily for the infant or toddler. The IFSP must include a justification for not providing a particular early intervention service in the natural environment.
(F) The projected dates for initiation of services and the anticipated length, duration, and frequency of those services.
(G) The name of the service coordinator who shall be responsible for the implementation of the IFSP and for coordination with other agencies and persons. In meeting these requirements, EDIS may:
(1) Assign the same service coordinator appointed at the infant or toddler's initial referral for evaluation to implement the IFSP;
(2) Appoint a new service coordinator; or
(3) Appoint a service coordinator requested by the parents.
(H) A description of the appropriate transition services supporting the movement of the toddler with a disability to preschool or other services.
(vi) EDIS shall explain the contents of the IFSP to the parents and shall obtain an informed, written consent from the parents before providing EIS described in the IFSP.
(vii) The IFSP shall be implemented within ten business days of completing the document, unless the IFSP team, including the parents, documents the need for a delay.
(viii) If a parent does not provide consent for participation in all EIS, EDIS shall still provide those interventions to which a parent does give consent.
(ix) EDIS shall evaluate the IFSP 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 needs of the child and family). The purpose of the periodic review is to determine:
(A) The degree to which progress toward achieving the outcomes is being made.
(B) Whether modification or revision of the outcomes or services is necessary.
(x) The review may be carried out by a meeting or by another means that is acceptable to the parents and other participants.
(7) Transition from early intervention services. (i) EDIS shall provide a written transition plan for toddlers receiving EIS to facilitate their transition to preschool or other setting, if appropriate. A transition plan must be recorded on the IFSP between the toddler's second and third birthday and not later than 90 days before the toddler's third birthday and shall include the following steps to be taken:
(A) A plan for discussions with, and training of, parents, as appropriate, regarding future transition from early intervention services, and for obtaining parental consent to facilitate the release of toddler records in order to meet child-find requirements of DoDEA, and to ensure smooth transition of services;
(B) The specific steps to be taken to help the toddler adjust to, and function in, the preschool or other setting and changes in service delivery;
(C) The procedures for providing notice of transition to the DoDEA CSC, for setting a pre-transition meeting with the CSC (with notice to parents), and for confirmation that child-find information, early intervention assessment reports, the IFSP, and relevant supporting documentation are transmitted to the DoDEA CSC;
(D) Identification of transition services or other activities that the IFSP team determines are necessary to support the transition of the child.
(ii) Families shall be included in the transition planning. EDIS shall inform the toddler's parents regarding future preschool, the child-find requirements of the school, and the procedures for transitioning the toddler from EIS to preschool.
(iii) Not later than 6 months before the toddler's third birthday, the EDIS service coordinator shall obtain parental consent prior to release of identified records of a toddler receiving EIS to the DoD local school in order to allow the DoDEA school to meet child-find requirements.
(iv) The EDIS service coordinator shall initiate a pre-transition meeting with the CSC, and shall provide the toddler's early intervention assessment reports, IFSP, and relevant supporting documentation. The parent shall receive reasonable notice of the pre-transition meeting, shall receive copies of any documents provided to the CSC, and shall have the right to participate in and provide input to the pre-transition meeting.
(v) As soon as reasonably possible following receipt of notice of a toddler potentially transitioning to preschool, the local DoDEA school shall convene a CSC. The CSC and EDIS shall cooperate to obtain parental consent, in accordance with IDEA and this part, to conduct additional evaluations if necessary.
(vi) Based on the information received from EDIS, the CSC, coordinating with EDIS, will determine at the pre-transition meeting whether:
(A) No additional testing or observation is necessary to determine that the toddler is eligible for special education and related services, in which case the CSC shall develop an eligibility report based on the EDIS early intervention assessment reports, IFSP, supporting documentation and other information obtained at the pre-transition meeting, in accordance with paragraph (b) of this section; or
(B) Additional testing or observation is necessary to determine whether the toddler is eligible for special education and related services, in which case the CSC shall develop an assessment plan to collect all required information necessary to determine eligibility for special education and obtain parental consent, in accordance with IDEA and this part, for evaluation in accordance with paragraph (b) of this section.
(vii) In the event that the toddler is first referred to EDIS fewer than 90 days before the toddler's third birthday, EDIS and the DoDEA school shall work cooperatively in the evaluation process and shall develop a joint assessment plan to determine whether the toddler is eligible for EIS or special education.
(A) EDIS shall complete its eligibility determination process and the development of an IFSP, if applicable.
(B) The CSC shall determine eligibility for special education.
(viii) Eligibility assessments shall be multidisciplinary and family-centered and shall incorporate the resources of the EDIS as necessary and appropriate.
(ix) Upon completion of the evaluations, the CSC shall schedule an eligibility determination meeting at the local school, no later than 90 days prior to the toddler's third birthday.
(A) The parents shall receive reasonable notice of the eligibility determination meeting, shall receive copies of any documents provided to the CSC, and shall have the right to participate in and provide input to the meeting.
(B) EDIS and the CSC shall cooperate to develop an eligibility determination report based upon all available data, including that provided by EDIS and the parents, in accordance with paragraph (b) of this section.
(x) If the toddler is found eligible for special education and related services, the CSC shall develop an individualized education program (IEP) in accordance with paragraph (b) of this section, and must implement the IEP on or before the toddler's third birthday.
(xi) If the toddler's third birthday occurs during the period June through August (the traditional summer vacation period for school systems), the CSC shall complete the eligibility determination process and the development of an IEP before the end of the school year preceding the toddler's third birthday. An IEP must be prepared to ensure that the toddler enters preschool services with an instructional program at the start of the new school year.
(xii) The full transition of a toddler shall occur on the toddler's third birthday unless the IFSP team and the CSC determine that an extended transition is in the best interest of the toddler and family.
(A) An extended transition may occur when:
(1) The toddler's third birthday falls within the last 6 weeks of the school year;
(2) The family is scheduled to have a permanent change of station (PCS) within 6 weeks after a toddler's third birthday; or
(3) The toddler's third birthday occurs after the end of the school year and before October 1.
(B) An extended transition may occur if the IFSP team and the CSC determine that extended EIS beyond the toddler's third birthday are necessary and appropriate, and if so, how long extended services will be provided.
(1) The IFSP team, including the parents, may decide to continue services in accordance with the IFSP until the end of the school year, PCS date, or until the beginning of the next school year.
(2) Extended services must be delivered in accordance with the toddler's IFSP, which shall be updated if the toddler's or family's needs change on or before the toddler's third birthday.
(3) The CSC shall maintain in its records meeting minutes that reflect the decision for EDIS to provide an extended transition for the specified period.
(4) Prior to the end of the extended transition period, the CSC shall meet to develop an IEP that shall identify all special education and related services that will begin at the end of the transition period and meet all requirements of the IDEA and this part, in accordance with paragraph (b) of this section.
(C) The IFSP team and the CSC may jointly determine that the toddler should receive services in the special education preschool prior to the toddler's third birthday.
(1) If only a portion of the child's services will be provided by the DoDEA school, the information shall be identified in the IFSP, which shall also specify responsibilities for service coordination and transition planning. The CSC shall develop an IEP that shall identify all services to be delivered at the school, in accordance with paragraph (b) of this section.
(2) If all the toddler's services will be provided by the DoDEA school, the services will be delivered pursuant to an IEP developed in accordance with paragraph (b) of this section. Transition activities and other services under the IFSP will terminate with the toddler's entry into the special education preschool.
(3) Early entry into preschool services should occur only in exceptional circumstances (e.g., to facilitate natural transitions).
(xiii) In the case of a child who may not be eligible for DoDEA preschool special education services, with the approval of the parents, EDIS shall make reasonable efforts to convene a conference among EDIS, the family, and providers of other services for children who are not eligible for special education preschool services (e.g., community preschools) in order to explain the basis for this conclusion to the parents and obtain parental input.
(8) Maintenance of records. (i) EDIS officials shall maintain all EIS records, in accordance with 32 CFR part 310.
(ii) EIS records, including the IFSP and the documentation of services delivered in accordance with the IFSP, are educational records consistent with 32 CFR part 285 and shall not be placed in the child's medical record.
(9) Procedural safeguards. (i) Parents of an infant or toddler who is eligible for EIS shall be afforded specific procedural safeguards that must include:
(A) The right to confidentiality of personally identifiable information in accordance with 32 CFR part 310, including the right of a parent to receive written notice and give written consent to the exchange of information between the Department of Defense and outside agencies in accordance with Federal law and 32 CFR part 310 and 32 CFR part 285.
(B) The opportunity to inspect and review records relating to screening, evaluations and assessments, eligibility determinations, development and implementation of IFSPs.
(C) The right to determine whether they or other family members will accept or decline any EIS, and to decline such a service after first accepting it without jeopardizing the provision of other EIS.
(D) The right to written parental consent.
(1) Consent must be obtained before evaluation of the infant or toddler in accordance with this section.
(2) Consent must be obtained before initiation of EIS in accordance with this section.
(3) If consent is not given, EDIS shall make reasonable efforts to ensure that the parent:
(i) Is fully aware of the nature of the evaluation and assessment or the services that would be available.
(ii) Understands that the infant or toddler will not be able to receive the evaluation and assessment or services unless consent is given.
(E) The right to prior written notice.
(1) Prior written notice must be given to the parents of an infant or toddler entitled to EIS a reasonable time before EDIS proposes to initiate or change, or refuses to initiate or change the identification, evaluation, or placement of the infant or toddler, or the provision of appropriate EIS to the infant or toddler and any family member.
(2) The notice must be in sufficient detail to inform the parents about:
(i) The action that is being proposed or refused.
(ii) The reasons for taking the action.
(iii) Each of the procedural safeguards that are available in accordance with this section, including availability of mediation, administrative complaint procedures, and due process complaint procedures that are available for dispute resolution as described in paragraph (d) of this section, including descriptions of how to file a complaint and the applicable timelines.
(3) The notice must be provided in language written for a general lay audience and 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.
(F) The right to timely administrative resolution of complaints.
(G) The availability of dispute resolution with respect to any matter relating to the provision of EIS to an infant or toddler, through the administrative complaint, mediation and due process procedures described in paragraph (d) of this section, except the requirement to conduct a resolution meeting, in the event of a dispute between the Military Department concerned and the parents regarding EIS.
(H) Any party aggrieved by the decision regarding a due process complaint filed in accordance with paragraph (d) of this section shall have the right to bring a civil action in a district court of the United States of competent jurisdiction without regard to the amount in controversy.
(ii) During the pendency of any proceeding or action involving a complaint by the parent of an infant or toddler with a disability relating to the provision of EIS, unless the parent and EDIS otherwise agree, the infant or toddler shall continue to receive the appropriate EIS currently being provided under the most recent signed IFSP or, if applying for initial EIS services, shall receive the services not in dispute.
(10) Mediation and due process procedures. Mediation and due process procedures, described in paragraph (d) of this section, except the requirement to conduct a resolution meeting, are applicable to early intervention when the Military Department concerned and the parents will be the parties in the dispute.
(b) Procedures for the provision of educational programs and services for children with disabilities, ages 3 through 21 years, inclusive—(1) Parent involvement and general provisions. (i) The CSC shall take reasonable steps to provide for the participation of the parent(s) in the special education program of his or her child. 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. Special education parental rights and responsibilities will be provided in the parent's native language, unless it is clearly not feasible to do so, e.g., low incidence language or not a written language.
(ii) The CSC shall afford the child's parents the opportunity to participate in CSC meetings to determine their child's initial or continuing eligibility for special education and related services, to prepare or change the child's IEP, or to determine or change the child's placement.
(iii) No child shall be required to obtain a prescription for a substance covered by the Controlled Substances Act, as amended, 21 U.S.C. 801 et seq. as a condition of attending school, receiving an evaluation, or receiving services.
(iv) For meetings described in this section, the parent of a child with a disability and the DoDEA school officials may agree to use alternative means of meeting participation, such as video conferences and conference calls.
(2) Identification and referral. (i) DoDEA shall:
(A) Engage in child-find activities to locate, identify, and screen all children who are entitled to enroll in DDESS in accordance with DoD Instruction 1342.26, “Eligibility Requirements for Minor Dependents to Attend Department of Defense Domestic Dependent Elementary and Secondary Schools (DDESS)” (available at http://www.dtic.mil/whs/directives/corres/pdf/134226p.pdf) or in DoDDS in accordance with DoDEA Regulation 1342.13, “Eligibility Requirements for Education of Elementary and Secondary School-Age Dependents in Overseas Areas” (available at http://www.dodea.edu/foia/iod/pdf/1342_13.pdf) who may require special education and related services.
(B) Cooperate with the Military Departments to conduct ongoing child-find activities and periodically publish any information, guidelines, and directions on child-find activities for eligible children with disabilities, ages 3 through 21 years, inclusive.
(C) Conduct the following activities to determine if children may need special education and related services:
(1) Review school records for information about student performance on system-wide testing and other basic skills tests in the areas of reading and language arts and mathematics.
(2) Review 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. For children with disabilities, any health records or other information that tends to identify a child as a person with a disability must be maintained in confidential files that are not co-mingled with other records and that are available only to essential staff for the purpose of providing effective education and services to the child.
(3) Review school discipline records and maintain the confidentiality of such records and any information that tends to identify a child as a person with a disability.
(4) Participate in transition activities of children receiving EIS who may require special education preschool services.
(ii) DoDEA school system officials, related service providers, or others who suspect that a child has a possible disabling condition shall submit a child-find referral to the CSC containing, at a minimum, the name and contact information for the child and the reason for the referral.
(iii) The screening of a student by a teacher or specialist to determine appropriate instructional strategies for curriculum implementation shall not be considered to be an evaluation for eligibility for special education and related services and does not require informed consent.
(3) Incoming students. The DoDEA school will take the following actions, in consultation with the parent, when a child transfers to a DoDEA school with an active IEP:
(i) If the current IEP is from a non-DoDEA school:
(A) Promptly obtain the child's educational records including information regarding assessment, eligibility, and provision of special education and related services from the previous school.
(B) Provide FAPE, including services comparable (i.e., similar or equivalent) to those described in the incoming IEP, which could include extended school year services, in consultation with the parents, until the CSC:
(1) Conducts an evaluation, if determined necessary by such agency.
(2) Develops, adopts, and implements a new IEP, if appropriate, in accordance with the requirements of the IDEA and this part within 30 school days of receipt of the IEP.
(ii) If the current IEP is from a DoDEA school, the new school must provide the child a FAPE, including services comparable to those described in the incoming IEP, until the new school either:
(A) Adopts the child's IEP from the previous DoDEA school; or
(B) Develops, adopts, and implements a new IEP that meets the requirements of the IDEA and this part within 30 school days of receipt of the incoming IEP.
(iii) Coordinate assessments of children with disabilities who transfer with the child's previous school as quickly as possible to facilitate prompt completion of full evaluations.
(4) Referral by a parent. A parent may submit a request for an evaluation if they suspect their child has a disability. The CSC shall ensure any such request is placed in writing and signed by the requesting parent and shall, within 15 school days, review the request and any information provided by the parents regarding their concerns, confer with the child's teachers, and gather information related to the educational concerns. Following a review of the information, the CSC shall:
(i) Convene a conference among the parents, teachers, and one or more other members of the CSC to discuss the educational concerns and document their agreements. Following the discussion, the parents may agree that:
(A) The child's needs are not indicative of a suspected disability and other supports and accommodations will be pursued;
(B) Additional information is necessary and a pre-referral process will be initiated; or
(C) Information from the conference will be forwarded to the CSC for action on the parent's request for an evaluation.
(ii) Within 10 school days of receipt of information from the conference regarding the parents' request for evaluation, agree to initiate the preparation of an assessment plan for a full and comprehensive educational evaluation or provide written notice to the parent denying the formal evaluation.
(5) Referral by a teacher. (i) Prior to referring a child who is struggling academically or behaviorally to the CSC for assessment and evaluation and development of an IEP, the teacher shall identify the child's areas of specific instructional need and target instructional interventions to those needs using scientific, research-based interventions as soon as the areas of need become apparent.
(ii) If the area of specific instructional need is not resolved, the teacher shall initiate the pre-referral process involving other members of the school staff.
(iii) If interventions conducted during pre-referral fail to resolve the area of specific instructional need, the teacher shall submit a formal referral to the CSC.
(6) Assessment and evaluation. (i) A full and comprehensive evaluation of educational needs shall be conducted prior to eligibility determination and before an IEP is developed or placement is made in a special education program, subject to the provisions for incoming students transferring to a DoDEA school as set forth in paragraph (b)(3) of this section. When the school determines that a child should be evaluated for a suspected disability, the school will:
(A) Issue a prior written notice to the parents of the school's intention to evaluate and a description of the evaluation in accordance with paragraph (b)(19) of this section.
(B) Provide parents notice of procedural safeguards.
(C) Request that the parent execute a written consent for the evaluation in accordance with paragraph (b)(17) of this section.
(D) Make reasonable efforts to obtain the informed consent from the parent for an initial evaluation to determine whether the child is a child with a disability.
(ii) The CSC shall ensure that the following elements are included in a full and comprehensive assessment and evaluation of a child:
(A) Screening of visual and auditory acuity.
(B) Review of existing school educational and health records.
(C) Observation in an educational environment.
(D) A plan to assess the type and extent of the disability. A child shall be assessed in all areas related to the suspected disability. The assessment plan shall include, as appropriate:
(1) An assessment of the nature and level of communication and the level of functioning academically, intellectually, emotionally, socially, and in the family.
(2) An assessment of physical status including perceptual and motor abilities.
(3) An assessment of the need for transition services for students 16 years and older.
(iii) The CSC shall involve the parents in the assessment process in order to obtain information about the child's strengths and needs and family concerns.
(iv) The CSC, where possible, shall conduct the evaluations in the geographic area where the child resides, and shall use all locally available community, medical, and school resources, including qualified examiners employed by the Military Departments, to accomplish the assessment and evaluation. At least one specialist with knowledge in each area of the suspected disability shall be a member of the multidisciplinary assessment team.
(v) The CSC must obtain parental consent, in accordance with IDEA and this part, before conducting an evaluation. The parent shall not be required to give consent for an evaluation without first being informed of the specific evaluation procedures that the school proposes to conduct.
(vi) The evaluation must be completed by the school within 45 school days following the receipt of the parent's written consent to evaluate in accordance with the school's assessment plan.
(vii) The eligibility determination meeting must be conducted within 10 school days after completion of the school's formal evaluation.
(viii) All DoD elements including the CSC and related services providers shall:
(A) Use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information, including information provided by the parent, which may assist in determining:
(1) Whether the child has a disability.
(2) The content of the child's IEP, including information related to enabling the child to be involved and progress in the general education curriculum or, for preschool children, to participate in appropriate activities.
(B) Not use any single measure or assessment as the sole criterion for determining whether a child has a disability or determining an appropriate educational program for the child.
(C) Use technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.
(ix) The CSC and DoD related services providers shall ensure that assessment materials and evaluation procedures are:
(A) Selected and administered so as not to be racially or culturally discriminatory.
(B) Provided in the child's native language or other mode of communication and in the form most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally, unless it is clearly not feasible to so provide and administer.
(C) Selected and administered to assess the extent to which the child with limited English proficiency has a disability and needs special education, rather than measuring the child's English language skills.
(D) Validated for the specific purpose for which they are used or intended to be used.
(E) Administered by trained and knowledgeable personnel in compliance with the instructions of the testing instrument.
(F) Selected to assess specific areas of educational needs and strengths and not merely to provide a single general intelligence quotient.
(G) Administered to a child with impaired sensory, motor, or communication skills so that the results accurately reflect a child's aptitude or achievement level or other factors the test purports to measure, rather than reflecting the child's impaired sensory, manual, or speaking skills.
(x) As part of an initial evaluation and as part of any reevaluation, the CSC shall review existing evaluation data on the child, including:
(A) The child's educational records.
(B) Evaluations and information provided by the parents of the child.
(C) Current classroom-based, local, or system-wide assessments and classroom observations.
(D) Observations by teachers and related services providers.
(xi) 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 academic achievement and related developmental and functional 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.
(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 and to participate, as appropriate, in the general education curriculum.
(xii) The CSC may conduct its review of existing evaluation data without a meeting.
(xiii) The CSC shall administer tests and other evaluation materials as needed to produce the data identified in paragraph (b)(6)(ii) and (xi) of this section.
(7) Eligibility. (i) The CSC shall:
(A) Require that the full comprehensive evaluation of a child is accomplished by a multidisciplinary team including specialists with knowledge in each area of the suspected disability and shall receive input from the child's parent(s).
(B) Convene a meeting to determine eligibility of a child for special education and related services not later than 10 school days after the child has been assessed by the school.
(C) Afford the child's parents the opportunity to participate in the CSC eligibility meeting.
(D) Determine whether the child is a child with a disability as defined by the IDEA and this part, and the educational needs of the child.
(E) Issue a written eligibility determination report, including a synthesis of evaluation findings, that documents a child's primary eligibility in one of the disability categories described in paragraph (g) of this section, providing a copy of the eligibility determination report to the parent.
(F) Determine that a child does NOT have a disability if the determinant factor is:
(1) Lack of appropriate instruction in essential components of reading;
(2) Lack of instruction in mathematics; or
(3) Limited English proficiency.
(ii) The CSC shall reevaluate the eligibility of a child with a disability every 3 years, or more frequently, if the child's educational or related services needs, including improved academic achievement and functional performance, warrant a reevaluation. School officials shall not reevaluate more often than once a year, unless the parents and the school officials agree otherwise.
(A) 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.
(B) 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, in accordance with paragraph (b)(19) of this section, provide prior written notice to the child's parents of:
(1) The determination that no additional assessment data are needed and the reasons for their determination.
(2) The right of the parents to request an assessment to determine whether the child continues to have a disability and to determine the child's educational needs.
(C) The CSC is not required to conduct assessments for the purposes described in paragraph § 57.6(b)(7)(ii)(B), unless requested to do so by the child's parents.
(iii) The CSC shall evaluate a child in accordance with paragraph (b)(7)(ii) of this section before determining that the child no longer has a disability.
(iv) The CSC is not required to evaluate a child before the termination of the child's eligibility due to graduation from secondary school with a regular diploma, or due to exceeding the age of eligibility for FAPE.
(v) When a child's eligibility has terminated due to graduation or exceeding the age of eligibility, the DoDEA school must provide the child, or the parent if the child has not yet reached the age of majority or is otherwise incapable of providing informed consent, with a summary of the child's academic achievement and functional performance.
(A) The summary of performance must be completed during the final year of a child's high school education.
(B) The summary must include:
(1) Child's demographics.
(2) Child's postsecondary goal.
(3) Summary of performance in the areas of academic, cognitive, and functional levels of performance to include the child's present level of performance, and the accommodations, modifications, and assistive technology that were essential in high school to assist the student in achieving maximum progress.
(4) Recommendations on how to assist the child in meeting the child's post-secondary goals.
(8) IEP—(i) IEP development. (A) DoDEA shall ensure that the CSC develops and implements an IEP to provide FAPE for each child with a disability who requires special education and related services as determined by the CSC. An IEP shall be in effect at the beginning of each school year for each child with a disability eligible for special education and related services under the IDEA and this part.
(B) In developing the child's IEP, the CSC shall consider:
(1) The strengths of the child.
(2) The concerns of the parents for enhancing the education of their child.
(3) The results of the initial evaluation or most recent evaluation of the child.
(4) The academic, developmental, and functional needs of the child.
(ii) IEP development meeting. The CSC shall convene a meeting to develop the IEP of a child with a disability. The meeting shall:
(A) Be scheduled within 10 school days from the eligibility meeting following a determination by the CSC that the child is eligible for special education and related services.
(B) Include as participants:
(1) 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 education curriculum and available resources.
(2) Not less than one general education teacher of the child (if the child is, or may be, participating in the general education environment).
(3) Not less than one special education teacher or, where appropriate, not less than one special education provider of such child.
(4) The child's parents.
(5) An EIS coordinator or other representative of EIS, if the child is transitioning from EIS.
(6) The child, if appropriate.
(7) A representative of the evaluation team who is knowledgeable about the evaluation procedures used and can interpret the instructional implications of the results of the evaluation.
(8) Other individuals invited at the discretion of the parents or school who have knowledge or special expertise regarding the child or the IDEA, including related services personnel, as appropriate.
(iii) IEP content. The CSC shall include in the IEP:
(A) A statement of the child's present levels of academic achievement and functional performance including:
(1) How the child's disability affects involvement and progress in the general education curriculum, or
(2) For preschoolers, how the disability affects participation in appropriate activities.
(3) For children with disabilities who take an alternate assessment, a description of short-term objectives.
(B) A statement of measurable annual goals including academic and functional goals designed to meet:
(1) The child's needs that result from the disability to enable the child to be involved in and make progress in the general education curriculum.
(2) Each of the child's other educational needs resulting from his or her disability.
(C) A description of how the child's progress toward meeting the annual goals shall be measured, and when periodic progress reports will be provided to the parents.
(D) A statement of the special education and related services, supplementary aids and services (which are based on peer-reviewed research to the extent practicable and shall 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:
(1) Advance appropriately toward attaining the annual goals.
(2) Be involved in and make progress in the general education curriculum and participate in extracurricular and other non-academic activities.
(3) Be educated and participate with other children who may or may not have disabilities.
(E) An explanation of the extent, if any, to which the child will not participate with non-disabled children in the regular class and in non-academic activities.
(F) A statement of any individualized appropriate accommodations necessary to measure the child's academic achievement and functional performance on system-wide or district-wide assessments. If the CSC determines that the child shall take an alternate assessment of a particular system-wide or district-wide assessment of student achievement (or part of an assessment), a statement of why:
(1) The child cannot participate in the regular assessment.
(2) The particular alternate assessment selected is appropriate for the child.
(G) Consideration of the following special factors:
(1) Assistive technology devices and services for all children.
(2) Language needs for the child with limited English proficiency.
(3) Instruction in Braille and the use of Braille for a child who is blind or visually impaired, unless the CSC determines, after an evaluation of the child's reading and writing skills, needs, and appropriate reading and writing media (including an evaluation of the child's future needs for instruction in Braille or the use of Braille) that instruction in Braille or the use of Braille is not appropriate for the child.
(4) Interventions, strategies, and supports including positive behavioral interventions and supports to address behavior for a child whose behavior impedes his or her learning or that of others.
(5) Language and communication needs, and in the case of a child who is deaf or hard of hearing, opportunities for direct communications with peers and professional personnel in the child's language and communication mode, academic level, and full range of needs, including opportunities for direct instruction in the child's communication mode.
(H) A statement of the amount of time that each service shall be provided to the child, including the date for beginning of services and the anticipated frequency, number of required related services sessions to be provided by EDIS, location and duration of those services (including adjusted school day or an extended school year), and modifications.
(I) A statement of special transportation requirements, if any.
(J) Physical education services, specially designed if necessary, shall be made available to every child with a disability receiving a FAPE. Each child with a disability must be afforded the opportunity to participate in the regular physical education program available to non-disabled children unless the child is enrolled full-time in a separate facility or needs specially designed physical education, as prescribed in the child's IEP.
(iv) Transition services. (A) Beginning not later than the first IEP to be in effect when the child turns 16, or younger if determined appropriate by the CSC, and updated annually, thereafter, the IEP must include:
(1) Appropriate measurable postsecondary goals based on age-appropriate transition assessments related to training, education, employment and, where appropriate, independent living skills.
(2) The transition services, including courses of study, needed to assist the child in reaching postsecondary goals.
(B) Beginning at least 1 year before the child reaches the age of majority (18 years of age), except for a child with a disability who has been determined to be incompetent in accordance with Federal or State law, a statement that the child has been informed of those rights that transfer to him or her in accordance with this part.
(9) Implementation of the IEP. (i) The CSC shall ensure that all IEP provisions developed for any child entitled to an education by the DoDEA school system are fully implemented.
(ii) The CSC shall:
(A) Seek to obtain parental agreement and signature on the IEP before delivery of special education and related services in accordance with that IEP is begun.
(B) Provide a copy of the child's IEP to the parents.
(C) Ensure that the IEP is implemented as soon as possible following the IEP development meeting.
(D) Ensure the provision of special education and related services, in accordance with the IEP.
(E) Ensure that the child's IEP is accessible to each general education teacher, special education teacher, related service provider, and any other service provider who is responsible for its implementation, and that each teacher and provider is informed of:
(1) His or her specific responsibilities related to implementing the child's IEP.
(2) The specific accommodations, modifications, and supports that must be provided for the child in accordance with the IEP.
(F) Review the IEP for each child periodically and at least annually in a CSC meeting to determine whether the child has been progressing toward the annual goals.
(G) Revise the IEP, as appropriate, and address:
(1) Any lack of progress toward the annual goals and in the general education curriculum, where appropriate.
(2) The results of any reevaluation.
(3) Information about the child provided by the parents, teachers, or related service providers.
(4) The child's needs.
(10) Placement and Least Restrictive Environment (LRE). (i) The CSC shall determine the educational placement of a child with a disability.
(ii) The educational placement decision for a child with a disability shall be:
(A) Determined at least annually.
(B) Made in conformity with the child's IEP.
(C) Made in conformity with the requirements of IDEA and this part for LRE.
(1) A child with a disability shall be educated, to the maximum extent appropriate, with children who are not disabled.
(2) A child with a disability shall not be removed from education in age-appropriate general education classrooms solely because of needed modifications in the general education classroom.
(3) As appropriate, the CSC shall make provisions for supplementary services to be provided in conjunction with general education placement.
(4) Special classes, separate schooling, or other removal of a child with a disability from the general education environment shall occur only when the nature or severity of the disability is such that education in general education classes with the use of supplementary aids and services cannot be achieved satisfactorily.
(5) In providing or arranging for the provision of non-academic and extracurricular services and activities, including meals, recess periods, assemblies, and study trips, the CSC shall ensure that a child with a disability participates with non-disabled children in those services and activities to the maximum extent appropriate to the needs of that child.
(iv) In determining the LRE for an individual student, the CSC shall:
(A) Consider the needs of the individual child as well as any potential harmful effect on the child or the quality of services that he or she needs.
(B) Make a continuum of placement options available to meet the needs of children with disabilities for special education and related services. The options on this continuum include the general education classroom, special classes (a self-contained classroom in the school), home bound instruction, or instruction in hospitals or institutions.
(v) When special schools and institutions may be appropriate, the CSC shall consider such placement options in coordination with the Area Special Education Office.
(vi) In the case of a disciplinary placement, school officials shall follow the procedures set forth in paragraph (b)(13) of this section.
(11) Extended School Year (ESY) services. ESY services must be provided only if a child's IEP team determines that the services are necessary for the provision of FAPE to the child. DoDEA may not:
(i) Limit ESY services to particular categories of disability; or
(ii) Unilaterally limit the type, amount, or duration of ESY services.
(12) Discipline—(i) School discipline. All regular disciplinary rules and procedures applicable to children attending a DoDEA school shall apply to children with disabilities who violate school rules and regulations or disrupt regular classroom activities, except that:
(A) A manifestation determination must be conducted for discipline proposed for children with disabilities in accordance with DoDEA disciplinary rules and regulations and paragraph (b)(12)(v) of this section, and
(B) The child subject to disciplinary removal shall continue to receive educational services in accordance with DoD disciplinary rules and regulations and paragraph (b)(12)(iv) of this section.
(ii) Change of placement. (A) It is a change of placement if a child is removed from his or her current placement for more than 10 consecutive school days or for a series of removals that cumulates to more than 10 school days during the school year that meets the criteria of paragraph (b)(12)(ii)(C) of this section.
(B) It is not a change of placement if a child is removed from his or her current academic placement for not more than 10 consecutive or cumulative days in a school year for one incident of misconduct. A child can be removed from the current educational placement for separate incidents of misconduct in the same school year (as long as those removals do not constitute a change of placement under IDEA) to the extent such a disciplinary alternative is applied to children without disabilities.
(C) If a child has been removed from his or her current placement for more than 10 days in a school year, but not more than 10 consecutive school days, the CSC shall determine whether the child has been subject to a series of removals that constitute a pattern. The determination is made on a case-by-case basis and is subject to review by a hearing officer in accordance with the provisions of paragraph (d)(5) of this section. The CSC will base its determination on whether the child has been subjected to a series of removals that constitute a pattern by examining whether:
(1) The child's behavior is substantially similar to his or her behavior in previous incidents that resulted in the series of removals, and;
(2) Additional factors such as the length of each removal, the total amount of time the child has been removed, and the proximity of the removals to one another.
(D) On the date the decision is made to remove a child with a disability because of misconduct, when the removal would change the child's placement, the school must notify the parents of that decision and provide the parents the procedural safeguards notice described in paragraph (b)(19) of this section.
(iii) Alternate educational setting determination, period of removal. School personnel may remove a child with a disability for misconduct from his or her current placement:
(A) To an appropriate interim alternate educational setting (AES), another setting, or suspension for not more than 10 consecutive school days to the extent those alternatives are applied to children without disabilities (for example, removing the child from the classroom to the school library, to a different classroom, or to the child's home), and for additional removals of not more than 10 consecutive school days in that same school year for separate incidents of misconduct as long as the CSC has determined that those removals do not constitute a pattern in accordance with paragraphs (b)(12)(ii) and (b)(12)(iv)(C) of this section; or
(B) To an AES determined by the CSC for not more than 45 school days, without regard to whether the behavior is determined to be a manifestation of the child's disability, if the child, at school, on school-provided transportation, on school premises, or at a school-sponsored event:
(1) Carries a weapon or possesses a weapon;
(2) Knowingly possesses or uses illegal drugs or sells or solicits the sale of a controlled substance; or
(3) Has inflicted serious bodily injury upon another person; or
(C) To an AES determined by the CSC, another setting or suspension for more than 10 school days, where the behavior giving rise to the violation was determined by the CSC not to be a manifestation of the child's disability, in accordance with (b)(12)(v) of this section.
(D) After an expedited hearing if school personnel believe that returning the child to his or her current educational placement is substantially likely to cause injury to the child or to others.
(iv) Required services during removal. (A) If a child with a disability is removed from his or her placement for 10 cumulative school days or less in a school year, the school is required only to provide services comparable to the services it provides to a child without disabilities who is similarly removed.
(B) If a child with a disability is removed from his or her placement for more than 10 school days, where the behavior that gave rise to the violation of the school code is determined in accordance with paragraph (b)(12)(v) of this section not to be a manifestation of the child's disability, or who is removed under paragraph (b)(12)(iii)(B) of this section irrespective of whether the behavior is determined to be a manifestation of the child's disability, the school must:
(1) Continue to provide the child with the educational services as identified by the child's IEP as a FAPE so as to enable the child to continue participating in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child's IEP.
(2) Provide, as appropriate, a functional behavioral assessment and behavioral intervention services and modifications designed to address the behavior violation so that it does not recur.
(C) If a child with a disability has been removed for more than 10 cumulative school days and the current removal is for 10 consecutive school days or less, then the CSC must determine whether the pattern of removals constitutes a change of placement in accordance with paragraph (b)(12)(ii) of this section.
(1) If the CSC determines the pattern of removals is NOT a change of placement, then the CSC must determine the extent to which services are needed to enable the child to continue participating in the general education curriculum, although in another setting, and to progress toward meeting the goals set out in the child's IEP.
(2) If the CSC determines that the pattern of removals IS a change of placement, then the CSC must conduct a manifestation determination.
(v) Manifestation determination and subsequent action by CSC and school personnel. (A) A principal must give the notice required and convene a manifestation determination meeting with the CSC within 10 school days of recommending, in accordance with DoDEA Regulation 2051.1, a disciplinary action that would remove a child with disabilities for:
(1) More than 10 consecutive school days, or
(2) A period in excess of 10 cumulative school days when the child has been subjected to a series of removals that constitute a pattern.
(B) The manifestation CSC will review all relevant information in the child's file (including the IEP, any teacher observations, and any information provided by the sponsor or parent) and determine whether the misconduct was a manifestation of the child's disability.
(1) The misconduct must be determined to be a manifestation of the child's disability if it is determined the misconduct:
(i) Was caused by the child's disability or had a direct and substantial relationship to the child's disability; or
(ii) Was the direct result of the school's failure to implement the IEP.
(2) If the determination is made that the misconduct was a manifestation of the child's disability, the CSC must:
(i) Conduct a functional behavioral assessment, unless the school conducted a functional behavioral assessment before the behavior that resulted in the change of placement occurred, and implement a behavioral intervention plan for the child; or
(ii) Review any existing behavioral intervention or disciplinary plan and modify it, as necessary, to address the behavior; and
(iii) Revise the student's IEP or placement and delivery system to address the school's failure to implement the IEP and to ensure that the student receives services in accordance with the IEP.
(3) Unless the parent and school agree to a change of placement as part of the modification of the behavioral intervention plan, the CSC must return the child to the placement from which the child was removed:
(i) Not later than the end of 10 days of removal; or
(ii) Not later than the end of 45 consecutive school days, if the student committed a weapon or drug offense or caused serious bodily injury for which the student was removed to an AES.
(4) If the determination is made that the misconduct in question was the direct result of the school's failure to implement the IEP, the school must take immediate steps to remedy those deficiencies.
(5) If the determination is made that the behavior is NOT a manifestation of the child's disability, school personnel may apply the relevant disciplinary procedures in the same manner and for the same duration as the procedures that would be applied to children without disabilities, and must:
(i) Forward the case and a recommended course of action to the school principal, who may then refer the case to a disciplinary committee for processing.
(ii) Reconvene the CSC following a disciplinary decision that would change the student's placement, to identify, if appropriate, an educational setting and delivery system to ensure the child receives services in accordance with the IEP.
(vi) Appeals of school decision regarding placement or manifestation determination. (A) The parent of a child with a disability who disagrees with any decision regarding placement or manifestation determination, or a school that believes maintaining the current placement of the child is substantially likely to result in injury to the child or others, may appeal the decision by requesting an expedited due process hearing before a hearing officer by filing a petition in accordance with paragraph (d)(5) of this section.
(B) A hearing officer, appointed in accordance with paragraph (d) of this section, hears and makes a determination regarding an appeal. In making the determination the hearing officer may:
(1) Return the child with a disability to the placement from which the child was removed if the hearing officer determines that the removal was a violation of the authority of school personnel in accordance with this part or that the child's behavior was a manifestation of the child's disability; or
(2) Order a change of placement of the child with a disability to an appropriate interim AES for not more than 45 school days if the hearing officer determines that maintaining the child's current placement is substantially likely to result in injury to the child or to others.
(C) At the end of the placement in the appropriate AES, the procedures for placement in an AES may be repeated, with the consent of the Area Director, if the school believes that returning the child to the original placement is substantially likely to result in injury to the child or to others.
(D) When an appeal has been made by either the parent or the school, the child must remain in the interim AES pending the decision of the hearing officer or until the expiration of the specified time period, whichever occurs first, unless the parent and the DoDEA school system agree otherwise.
(13) Children not yet determined eligible for special education. (i) A child who has not been determined to be eligible for special education and related services and who is subject to discipline may assert any of the protections provided for in paragraph (b)(19) of this section if the school had knowledge that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred.
(ii) DoDEA shall be deemed to have knowledge that a child is a child with a disability if, before the behavior that precipitated the disciplinary action occurred:
(A) The parent of the child expressed concern in writing to a teacher of the child, the school principal or assistant principal, or the school special education coordinator that the child was in need of special education and related services;
(B) The child presented an active IEP from another school;
(C) The parent of the child requested an evaluation of the child; or
(D) The teacher of the child or other school personnel expressed specific concerns about a pattern of behavior demonstrated by the child directly to the principal or assistant principal, the special education coordinator, or to another teacher of the child.
(iii) A school is deemed NOT to have knowledge that a child is a child with a disability if:
(A) The parent of the child has not allowed an evaluation of the child or the parent has revoked consent, in writing, to the delivery of the child's special education and related services, in accordance with this part; or
(B) The child has been evaluated and determined not to be a child with a disability.
(iv) Conditions that apply if there is no basis of knowledge that the child is a child with a disability.
(A) If a school has no basis of knowledge that a child is a child with a disability prior to taking disciplinary measures against the child, the child may be subjected to the disciplinary measures applied to non-disabled children who engage in comparable behaviors in accordance with paragraph (b)(12)(i) of this section.
(B) If a request is made for an evaluation of a child during the time period when the child is subjected to disciplinary measures:
(1) The evaluation must be expedited.
(2) Until the evaluation is completed, the child remains in his or her then current educational placement, which can include suspension or expulsion without educational services.
(v) If the child is determined to be a child with a disability, taking into consideration information from the evaluation conducted by the agency and information provided by the parents, the school must provide special education and related services in accordance with an IEP.
(14) Referral to and action by law enforcement and judicial authorities—(i) Rule of construction. Nothing prohibits a school from reporting a crime threatened or committed by a child with a disability to appropriate authorities, or prevents military, host-nation, or State law enforcement and judicial authorities from exercising their responsibilities with regard to the application of Federal, host-nation, and State law to crimes committed or threatened by a child with a disability.
(ii) Transmittal of records. An agency reporting a crime in accordance with this paragraph may transmit copies of the child's special education and disciplinary records only to the extent that the transmission is in accordance with 32 CFR part 285.
(15) Children with disabilities who are placed in a non-DoDEA school or facility pursuant to an IEP.
(i) Children with disabilities who are eligible to receive a DoDEA school education, but are placed in a non-DoD school or facility by DoDEA because a FAPE cannot be provided by DoD, shall have all the rights of children with disabilities who are enrolled in a DoDEA school.
(ii) A child with a disability may be placed at DoD expense in a non-DoD school or facility only if required by the IEP.
(iii) DoDEA 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 DoDEA school officials shall communicate in other ways to facilitate participation including individual or conference telephone calls. A valid IEP must document the necessity of the placement in a non-DoD school or facility. The IEP must:
(A) Be signed by an authorized DoDEA official before it becomes valid.
(B) Include a determination that the DoDEA school system does not currently have and cannot reasonably create an educational program appropriate to meet the needs of the child with a disability.
(C) Include a determination that the non-DoD school or facility and its educational program and related services conform to the requirements of this part.
(iv) The DoD shall not be required to reimburse the costs of special education and related services if DoDEA made FAPE available in accordance with the requirements of the IDEA and a parent unilaterally places the child in a non-DoD school without the approval of DoDEA.
(A) Reimbursement may be ordered by a hearing officer if he or she determines that DoDEA had not made FAPE available in a timely manner prior to enrollment in the non-DoDEA school and that the private placement is appropriate.
(B) Reimbursement may be reduced or denied:
(1) If, at the most recent CSC meeting that the parents attended prior to removal of the child from the DoDEA school, the parents did not inform the CSC that they were rejecting the placement proposed by the DoDEA school to provide FAPE to their child, including stating their concerns and their intent to enroll their child in non-DoD school at DoD expense.
(2) If, at least 10 business days (including for this purpose any holidays that occur on a Monday through Friday) prior to the removal of the child from the DoDEA school, the parents did not give written notice to the school principal or CSC chairperson of the information described in paragraph (b)(15)(iv)(B)(1) of this section.
(3) If, the CSC informed the parents of its intent to evaluate the child, using the notice requirement described in paragraph (b)(6)(i) and paragraph (b)(19) of this section, but the parents did not make the child available; or
(4) Upon a hearing officer finding of unreasonableness with respect to actions taken by the parents.
(C) Reimbursement may not be reduced or denied for failure to provide the required notice if:
(1) The DoDEA school prevented the parent from providing notice;
(2) The parents had not received notification of the requirement that the school provide prior written notice required by paragraph (b)(19) of this section;
(3) Compliance would result in physical or emotional harm to the child; or
(4) The parents cannot read and write in English.
(16) Confidentiality of the records. The DoDEA school and EDIS officials shall maintain all student records in accordance with 32 CFR part 310.
(17) Parental consent—(i) Consent requirements. The consent of a parent of a child with a disability or suspected of having a disability shall be obtained before:
(A) Initiation of formal evaluation procedures to determine whether the child qualifies as a child with a disability and prior to conducting a reevaluation;
(B) Initial provision of special education and related services.
(ii) Consent for initial evaluation. If the parent of a child does not provide consent for an initial evaluation or fails to respond to a request for consent for an initial evaluation, then DoDEA may use the procedures described in paragraph (d) of this section to pursue an evaluation of a child suspected of having a disability.
(A) Consent to evaluate shall not constitute consent for placement or receipt of special education and related services.
(B) If a parent declines to give consent for evaluation, DoDEA shall not be in violation of the requirement to conduct child-find, the initial evaluation, or the duties to follow evaluation procedures or make an eligibility determination and write an IEP as prescribed in this section.
(iii) Consent for reevaluation. The school must seek to obtain parental consent to conduct a reevaluation. If the parent does not provide consent or fails to respond to a request for consent for a reevaluation, then the school may conduct the reevaluation without parental consent if the school can demonstrate that it has made reasonable efforts to obtain parental consent and documented its efforts. The documentation must include a record of the school's attempts in areas such as:
(A) Detailed records of telephone calls made or attempted and the results of those calls.
(B) Copies of correspondence sent to the parents and any responses received.
(C) Detailed records of visits made to the parents' home, place of employment or duty station, and the results of those visits.
(iv) Consent for the initial provision of special education and related services. The school that is responsible for making a FAPE available to a child with a disability under this part must seek to obtain informed consent from the parent of such child before providing special education and related services to the child. If the parent refuses initial consent for services, the DoDEA school:
(A) May not use the procedures described in paragraph (d) of this section (mediation and due process) to obtain agreement or a ruling that the special education and related services recommended by the child's CSC may be provided to the child without parental consent.
(B) Shall not be considered to be in violation of the requirement to make a FAPE available to the child for its failure to provide those services to the child for which parental consent was requested.
(C) Shall not be required to convene an IEP meeting or develop an IEP for the child.
(18) Parent revocation of consent for continued special education and related services. (i) Parents may unilaterally withdraw their children from further receipt of all special education and related services by revoking their consent for the continued provision of special education and related services to their children.
(ii) Parental revocation of consent must be in writing.
(iii) Upon receiving a written revocation of consent, the DoDEA school must cease the provision of special education and related services and must provide the parents prior written notice before ceasing the provision of services. The notice shall comply with the requirements of paragraph (b)(19) of this section and shall advise the parents:
(A) Of any changes in educational placement and services that will result from the revocation of consent.
(B) That the school will terminate special education and related services to the child on a specified date, which shall be within a reasonable time following the delivery of the written notice.
(C) That DoDEA will not be considered to be in violation of the requirement to make FAPE available to the child because of the failure to provide the child with further special education and related services.
(D) That the DoDEA school will not be deemed to have knowledge that the child is a child with a disability and the child may be disciplined as a general education student and will not be entitled to the IDEA discipline protections.
(E) That the parents maintain the right to subsequently request an initial evaluation to determine if the child is a child with a disability who needs special education and related services and that their child will not receive special education and related services until eligibility has been determined.
(F) That the DoDEA school will not challenge, through mediation or a due process hearing, the revocation of consent to the provision of special education or related services.
(G) That while the school is not required to convene a CSC meeting or to develop an IEP for further provision of special education and related services, it is willing to convene a CSC meeting upon request of the parent prior to the date that service delivery ceases.
(iv) Revocation of consent for a particular service:
(A) Upon receiving a revocation of consent for a particular special education or related service, the DoDEA school must provide the parent prior written notice in accordance with the requirements of paragraph (b)(19) of this section.
(B) If parents disagree with the provision of a particular special education or related service and the school members of the CSC and the parents agree that the child would be provided a FAPE if the child did not receive that service, the child's IEP may be modified to remove the service.
(C) If the parent and the school members of the CSC disagree as to whether the child would be provided a FAPE if the child did not receive a particular service, the parent may use the mediation or due process procedures under this part to obtain a determination as to whether the service with which the parent disagrees is or is not appropriate to his or her child and whether it is necessary to FAPE, but the school may not cease the provision of a particular service.
(19) Procedural safeguards—(i) Parental rights. Parents of children, ages 3 through 21 inclusive, with disabilities must be afforded procedural safeguards with respect to the provision of FAPE which shall include:
(A) The right to confidentiality of personally identifiable information in accordance with Federal law and DoD regulations.
(B) The right to examine records and to participate in meetings with respect to assessment, screening, eligibility determinations, and the development and implementation of the IEP.
(C) The right to furnish or decline consent in accordance with this section.
(D) The right to prior written notice when the school proposes to initiate or change, or refuses to initiate or change the identification, evaluation, educational placement, or provision of FAPE to a child with a disability.
(1) The notice shall include:
(i) A description of the action that is being proposed or refused.
(ii) An explanation of why the agency proposes or refuses to take the action.
(iii) A description of each evaluation procedure, assessment, record, or report used as a basis for the proposed or refused action.
(iv) A description of the factors that were relevant to the agency's proposal or refusal.
(v) A description of any other options considered by the CSC and the reasons why those options were rejected.
(vi) Each of the procedural safeguards that is available in accordance with the IDEA and this part.
(vii) Sources for parents to contact to obtain assistance in understanding the provisions of this part.
(viii) Dispute resolution procedures, including a description of mediation, how to file a complaint, due process hearing procedures, and applicable timelines.
(2) The notice must be provided in language understandable to a lay person and 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.
(E) The right to obtain an independent educational evaluation (IEE) of the child.
(F) The right to timely administrative resolution of complaints.
(G) The availability of dispute resolution through the administrative complaint, mediation, and due process procedures described in paragraph (d) of this section with respect to any matter relating to the identification, evaluation, or educational placement of the child, or a FAPE for the child, age 3 through 21 years, inclusive.
(H) The right of any party aggrieved by the decision regarding a due process complaint to bring a civil action in a district court of the United States of competent jurisdiction in accordance with paragraph (d)(21) of this section.
(ii) Procedural safeguards notice. A DoDEA school shall not be required to give parents a copy of the procedural safeguards notice more than once a school year, except that a copy must be given to parents upon a request from the parents; upon initial referral for evaluation or parental request for evaluation; and upon receipt of the first due process complaint.
(A) The procedural safeguards notice must include a full explanation of all of the procedural safeguards available, including:
(1) Independent evaluation for children (3 through 21 years, inclusive).
(2) Prior written notice.
(3) Parental consent.
(4) Access to educational records.
(5) Dispute resolution procedures together with applicable timelines including:
(i) The availability of mediation.
(ii) Procedures for filing a due process complaint and the required time period within which a due process complaint must be filed.
(iii) The opportunity for the DoDEA school system to resolve a due process complaint filed by a parent through the resolution process.
(iv) Procedures for filing an administrative complaint and for administrative resolution of the issues.
(6) The child's placement during pendency of due process proceedings in accordance with paragraph (d)(18) of this section.
(7) Procedures for children (3 through 21 years, inclusive) who are subject to placement in an interim AES.
(8) Requirements for unilateral placement by parents of children in private schools at public expense.
(9) Due process hearings, including requirements for disclosure of evaluation results and recommendations.
(10) The right to bring a civil action in a district court of the United States in accordance with paragraph (d)(21) of this section, including the time period in which to file such action.
(11) The possibility of an award of attorney's fees to the prevailing party in certain circumstances.
(B) The procedural safeguards notice must be:
(1) Written in language understandable to the general public.
(2) 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 procedural safeguards notice is not translated into the native language of the parent, then the DoDEA school system shall ensure that:
(i) The notice is translated orally or by other means for the parent in his or her native language or other mode of communication.
(ii) The parent understands the content of the notice.
(iii) There is written evidence that the requirements above have been met.
(iii) Independent Educational Evaluation (IEE)—(A) Obtaining an IEE. The DoDEA school system shall provide to the parents, upon request for an IEE, information about the requirements to meet the DoDEA school system criteria, as set forth in paragraph (b)(19)(iii)(F) of this section, and identification of qualified resources available to meet the requirements of paragraph (b)(iii)(F)(2) of this section.
(B) Right to IEE. The parents of a child with a disability have a right to an IEE at the DoDEA school system expense if the parent disagrees with an evaluation obtained by the DoDEA school system, subject to paragraph (b)(19)(iii)(C) to (H) of this section.
(C) Written request for IEE. If a parent provides the DoDEA school system with a written request for an IEE funded by the school system, then the school system shall either:
(1) Agree to fund an appropriate IEE that meets the criteria the DoDEA school system would use for an initial evaluation of a child as set forth in paragraph (b)(19)(iii)(F) of this section, or
(2) Initiate a due process hearing in accordance with paragraph (d) of this section, without unnecessary delay, and demonstrate that its evaluation was appropriate under this part.
(i) If the DoDEA school system initiates a due process hearing and the final decision is that the school system's evaluation is appropriate, the parent still has the right to an IEE, but not at public expense.
(ii) If a parent requests an IEE, the DoDEA school system may ask for the parent's reason why he or she objects to the school system's evaluation. However, the parent may not be compelled to provide an explanation and the DoDEA school system may not unreasonably delay either agreeing to fund an IEE that meets DoDEA school system criteria or initiating a due process hearing to defend its evaluation.
(D) Parent-initiated evaluations. If the parent obtains an IEE funded by the school system or shares with the DoDEA school system an evaluation obtained at private expense:
(1) The results of the evaluation shall be considered by the DoDEA school if it meets the school system's criteria in any decision made with respect to the provision of FAPE to the child.
(2) The results may be presented by any party as evidence at a due process hearing under this section regarding that child.
(3) The DoDEA school system may not be required to fund an IEE that has been obtained by a parent if at a due process hearing initiated by either party and conducted under this section, the DoDEA school system demonstrates either that:
(i) The parentally obtained evaluation was not educationally appropriate or failed to meet agency criteria; or
(ii) The DoDEA school system's evaluation was appropriate.
(E) Hearing officer order for evaluation. A hearing officer may only order an IEE at the DoDEA school system's expense as part of a due process hearing under this section if:
(1) The school system has failed to demonstrate its assessment was appropriate; or
(2) The school system has not already funded an IEE in response to a given school evaluation.
(F) DoDEA school system criteria. An IEE provided at the DoDEA school system's expense must:
(1) Conform to the requirements of paragraph (b)(6)(viii) and (ix) of this section.
(2) Be conducted, when possible, in the geographic area where the child resides utilizing available qualified resources, including qualified examiners employed by the Military Department, in accordance with (b)(6)(iv) of this part, unless the parent can demonstrate to the satisfaction of the DoDEA school system or in a due process hearing filed in accordance with paragraph (d) of this section, that the geographic limitation renders the IEE impossible.
(G) Conditions. Except for the criteria in paragraph (b)(19)(iii)(F) of this section, the DoDEA school system shall not impose conditions or timelines related to obtaining an IEE at the DoDEA school system expense.
(H) Limitations. A parent is entitled to only one IEE at DoDEA school system expense in response to a given DoDEA school system evaluation with which the parent disagrees.
(iv) Placement during due process, appeal, or civil procedures. While an impartial due process proceeding, appeal proceeding, or civil proceeding is pending, unless the DoDEA school system and the parent of the child agree otherwise in writing, the child shall remain in his or her current placement, subject to the disciplinary procedures prescribed in paragraph (b)(12) of this section.
(v) Transfer of parental rights at age of majority. (A) In the DoDEA school system, a child reaches the age of majority at age 18.
(B) 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 in accordance with Federal or State law) the rights afforded to the parents in accordance with the IDEA and this part transfer to the child.
(C) When a child reaches the age of majority, the DoDEA school shall notify the child and the parents of the transfer of rights.
(D) When a child with a disability 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 reaches the age of majority, the DoD shall appoint a parent or the parents of the child to represent the educational interests of the child throughout the period of eligibility for special education services.
(c) Procedures for provision of related services by the military departments to students with disabilities in a DoDDS—(1) Evaluation procedures. (i) Upon request by a 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 shall oversee an EDIS evaluation used in determining a child's need for related services.
(ii) The medical or related services evaluation, including necessary consultation with other medical personnel, shall be supervised by a physician or other qualified healthcare provider.
(iii) The medical or related services evaluation shall be specific to the concerns addressed in the request from the CSC.
(iv) The EDIS shall provide to the CSC an evaluation report that responds to the questions posed in the original request for an evaluation. The written report shall include:
(A) Demographic information about the child, such as the child's name, date of birth, and grade level.
(B) Behavioral observation of the child during testing.
(C) Instruments and techniques used.
(D) Evaluation results.
(E) Descriptions of the child's strengths and limitations.
(F) Instructional implications of the findings.
(G) The impact of the child's medical condition(s), if applicable, on his or her educational performance.
(v) If the EDIS that supports the DoDDS school requires assistance to conduct or complete an evaluation, the EDIS shall contact the MTF designated by the Military Department with geographic responsibility for the area where the EDIS is located.
(vi) 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:
(A) Obtain parental permission for the additional activities.
(B) Complete its initial evaluation by the original due date.
(C) Notify the CSC of the additional evaluation activities.
(vii) When additional evaluation information is submitted by EDIS, the CSC shall review all data and determine the need for program changes and the reconsideration of eligibility.
(viii) An EDIS provider shall serve on the CSC when eligibility, placement, or requirements for related services that EDIS provides are to be determined.
(2) IEP—(i) EDIS shall be provided the opportunity to participate in the IEP meeting.
(ii) EDIS shall provide related services assigned to EDIS that are listed on the IEP.
(3) Liaison with DoDDS. Each EDIS shall designate a special education liaison officer to:
(i) Provide liaison between the EDIS and DoDDS on requests for evaluations and other matters within their purview.
(ii) Offer, on a consultative basis, training for school personnel on medical aspects of specific disabilities.
(iii) Offer consultation and advice as needed regarding the medical services provided at school (for example, tracheotomy care, tube feeding, occupational therapy).
(iv) Participate with school 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 the requirements of the IDEA and this part.
(d) Dispute resolution and due process procedures—(1) General. This section establishes requirements for resolving disputes regarding the provision of EIS to an infant or toddler up to 3 years of age, or the identification, evaluation, or educational placement of a child (ages 3 through 21, inclusive), or the provision of a FAPE to such child in accordance with the IDEA and this part.
(2) Conferences. Whenever possible, parties are encouraged to resolve disputes through the use of conferences at the lowest level possible between the parents and EDIS or the DoDEA school.
(i) Within a DoDEA school, problems should be brought first to the teacher, then the school administrator, and then the district office.
(ii) At EDIS, problems should be brought first to the EDIS provider, then the EDIS program manager, and then the local MTF commander.
(3) Administrative complaints. (i) A complaint filed with the responsible agency, relating to the provision of services under the IDEA and this part, other than due process complaints filed in accordance with paragraph (d)(5) of this section, is known as an administrative complaint.
(ii) An individual or organization may file an administrative complaint alleging issues relating to services required to be delivered under the IDEA and this part with:
(A) The Office of the Inspector General of a Military Department when the issue involves services or programs for infants and toddlers with disabilities, or related services provided by the Military Departments to children with disabilities.
(B) The DoDEA Director, Office of Investigations and Internal Review (OI&IR) when the issue involves the services or programs for children ages 3 through 21, inclusive that are under the direction or control of the DoDEA school system.
(iii) An administrative complaint alleging issues relating to services required to be delivered under the IDEA or this part must include:
(A) A statement that the Military Service or the DoDEA school system has violated a requirement of the IDEA or this part.
(B) The facts on which the statement is based.
(C) The signature and contact information for the complainant.
(D) If alleging violations with respect to specific children:
(1) The name of the school the child is attending.
(2) The name and address of the residence of the child.
(3) A description of the nature of the problem of the child, including facts relating to the problem.
(4) A proposed resolution of the problem to the extent known and available to the complainant at the time the complaint is filed.
(iv) An administrative complaint may not allege a violation that occurred more than 1 year prior to the date that the complaint is received.
(v) The complainant filing an administrative complaint alleging issues related to services required to be delivered under the IDEA or this part must forward a copy of the complaint to the DoDEA school or EDIS clinic serving the child at the same time the complainant files the complaint with the appropriate authority in paragraph (d)(3)(i) of this section.
(A) Upon receipt of the complaint, the Inspector General of the Military Department concerned will notify the Secretary of the Military Department concerned, and the OI&IR will notify the Director, DoDEA, of the complaint.
(B) Upon receipt of a complaint, the responsible Military Department Inspector General or the OCA shall, if warranted, promptly open an investigation consistent with its established procedures for investigating complaints.
(1) The investigation shall afford the complainant an opportunity to submit additional information about the allegations.
(2) The investigation shall afford the DoDEA school system or the Military Department an opportunity to:
(i) Respond to the complaint;
(ii) Propose a resolution to the complaint; or
(iii) If the parties are willing, voluntarily engage in mediation of the complaint.
(3) The investigation shall produce a report consistent with those the investigating agency routinely provides, shall determine whether its findings support the complaint, and shall state whether the DoDEA school system or the Military Department is violating a requirement of the IDEA or this part.
(vi) The findings and conclusions of the report of investigation related to the administrative complaint shall be made available to the complainant and members of the public in accordance with the standard operating procedures of the investigating activity and 32 CFR parts 285 and 310.
(A) The investigating activity shall provide a copy of the report to the Director, DoDEA and the Secretary of a Military Department concerned or in accordance with the investigating activity's protocols.
(B) The report shall be provided, to the extent practicable, within 60 days of initiating the investigation, unless extended by the complainant and the DoDEA school system or the Military Department.
(vii) The Secretary of the Military Department concerned or the Director, DoDEA shall resolve complaints within their respective area of responsibility when the Military Service or the DoDEA school system is found to have failed to provide appropriate services consistent with the requirements of the IDEA or this part. Remediation may include corrective action appropriate to address the needs of the child such as compensatory services, or monetary reimbursement where otherwise authorized by law.
(viii) When a complaint received under this section is also the subject of a due process complaint regarding alleged violations of rights afforded under the IDEA and this part, or contains multiple issues of which one or more are part of that due process complaint, the investigation activity shall set aside any issues alleged in the due process complaint until a hearing is concluded in accordance with the IDEA and this part. Any issue that is not part of the due process hearing must be resolved using the procedures of this section.
(ix) If an issue raised in a complaint filed under this section has been previously decided in a due process hearing involving the same parties:
(A) The due process hearing decision is binding on that issue.
(B) The Director, DoDEA or the Secretary of the Military Department concerned shall so inform the complainant.
(4) Mediation. (i) A parent, the Military Department concerned, or DoDEA may request mediation at any time, whether or not a due process petition has been filed, to informally resolve a disagreement on any matter relating to the provision of EIS to an infant or toddler (birth up to 3 years of age), or the identification, evaluation, or educational placement of a child (ages 3 through 21, inclusive), or the provision of a FAPE to such child.
(ii) Mediation must be voluntary on the part of the parties and shall not be used to deny or delay a parent's right to a due process hearing or to deny other substantive or procedural rights afforded under the IDEA.
(A) DoDEA school officials participate in mediation involving special education and related services; the cognizant Military Department participates in mediation involving EIS.
(B) The initiating party's request must be written, include a description of the dispute, bear the signature of the requesting party, and be provided:
(1) In the case of a parent initiating mediation, to:
(i) The local EDIS program manager in disputes involving EDIS; or
(ii) The school principal in disputes involving a DoDEA school.
(2) In the case of the school or EDIS initiating mediation, to the parent.
(C) Acknowledgment of the request for mediation shall occur in a timely manner.
(D) Agreement to mediate shall be provided in writing to the other party in a timely manner.
(iii) Upon agreement of the parties to mediate a dispute, the local EDIS or DoDEA school shall forward a request for a mediator to the Military Department or to DoDEA's Center for Early Dispute Resolution (CEDR), respectively.
(iv) The mediator shall be obtained from the Defense Office of Hearings and Appeals (DOHA) unless another qualified and impartial mediator is obtained by the Military Department or CEDR.
(A) Where DOHA is used, the DOHA Center for Alternate Dispute Resolution (CADR) shall provide the mediator from its roster of mediators qualified in special education disputes.
(B) Where the Military Department or DoDEA elects to secure a mediator through its own DoD Component resources, the mediator shall be selected from the Component's roster of mediators qualified in special education disputes, or by contract with an outside mediator duly qualified in special education disputes and who is trained in effective mediation techniques.
(v) The Military Department or DoDEA through CEDR shall obtain a mediator within 15 business days of receipt of a request for mediation, or immediately request a mediator from the Director, DOHA, through the DOHA CADR.
(vi) When requested, the Director, DOHA, through the CADR, shall appoint a mediator within 15 business days of receiving the request, unless a party provides written notice to the Director, DOHA that the party refuses to participate in mediation.
(vii) Unless both parties agree otherwise, mediation shall commence in a timely manner after both parties agree to mediation.
(viii) The parents of the infant, toddler, or child, and EDIS or the school shall be parties in the mediation. With the consent of both parties, other persons may attend the mediation.
(ix) Mediation shall be conducted using the following rules:
(A) The Military Department concerned shall bear the cost of the mediation process in mediations concerning EIS.
(B) DoDEA shall bear the cost of the mediation process in mediations concerning special education and related services.
(C) Discussions and statements made during the mediation process, and any minutes, statements or other records of a mediation session other than a final executed mediation agreement, shall be considered confidential between the parties to that mediation and are not discoverable or admissible in a due process proceeding, appeal proceeding, or civil proceeding under this part.
(D) Mediation shall be confidential. The mediator may require the parties to sign a confidentiality pledge before the commencement of mediation.
(E) Either party may request a recess of a mediation session to consult advisors, whether or not present, or to consult privately with the mediator.
(F) The mediator shall ensure and the contract for mediation services shall require that any partial or complete resolution or agreement of any issue in mediation is reduced to writing, and that the written agreement is signed and dated by the parties, with a copy given to each party.
(x) Any written agreement resulting from the mediation shall state that all discussions that occurred during the mediation process and all records of the mediation other than a final executed agreement shall be confidential and may not be discoverable or admissible as evidence in any subsequent due process proceeding, appeal proceeding, or civil proceeding, and shall be legally binding upon the parties and enforceable in a district court of the United States.
(xi) All mediation sessions shall be held in a location that is convenient to both parties.
(xii) No hearing officer or adjudicative body shall draw any inference from the fact that a mediator or a party withdrew from mediation or from the fact that mediation did not result in settlement of a dispute.
(5) Due process complaint procedures. (i) Parents of infants, toddlers, and children who are covered by this part and the cognizant Military Department or DoDEA, are afforded impartial hearings and administrative appeals after the parties have waived or participated in and failed to resolve a dispute through:
(A) Mediation, in the case of an infant or toddler; or
(B) A resolution process, or mediation in lieu of the resolution process prior to proceeding to a due process hearing in the case of a child (ages 3 through 21 years, inclusive).
(ii) An impartial due process hearing is available to resolve any dispute concerning the provision of EIS to infants and toddlers with disabilities or with respect to any matter relating to the identification, evaluation, educational placement of, and the FAPE provided by the Department of Defense to children (ages 3 through 21, inclusive) who are covered by this part, in accordance with the IDEA and this part.
(A) Whenever the parents or the cognizant Military Department present a due process complaint (petition) in accordance with this part, an impartial due process hearing is available to resolve any dispute concerning the provision of EIS.
(B) When the parents of children ages 3 through 21 years, inclusive, or the cognizant Military Department or DoDEA, present a due process complaint (petition) in accordance with this part relating to any matter regarding the identification, evaluation, placement, or the provision of FAPE, the parties shall first proceed in accordance with the requirements for a statutory resolution process in accordance with this part, after which time an impartial due process hearing is available to resolve the dispute set forth by the complaint.
(iii) An expedited impartial due process hearing may be requested:
(A) By a parent when the parent disagrees with the manifestation determination or any decision regarding the child's disciplinary placement.
(B) By the school when it believes that maintaining a student in his or her current educational placement is substantially likely to result in injury to the student or others.
(iv) Any party to a special education dispute may initiate a due process hearing by filing a petition stating the specific issues that are in dispute. The initiating party is the “petitioner” and the responding party is the “respondent.” The petition itself will remain confidential, in accordance with applicable law, not be released to those not a party to the litigation and its Personally Identifiable Information shall be protected in accordance with the DoD Privacy Act.
(v) Petitioner and respondent are each entitled to representation by counsel at their own expense. The parent and child may choose to be assisted by a personal representative with special knowledge or training with respect to the problems of disabilities rather than by legal counsel.
(vi) To file a petition that affords sufficient notice of the issues and commences the running of relevant timelines, petitioners shall specifically include in the petition:
(A) The name and residential address of the child and the name of the school the child is attending or the location of the EDIS serving the child.
(B) A description of the nature of the problem of the child relating to the proposed or refused initiation or change including facts (such as who, what, when, where, how, why of the problem).
(C) A proposed resolution of the problem to the extent known and available to the petitioner at the time.
(D) The signature of the parent, or if the petitioner is DoDEA or a Military Department, an authorized representative of that petitioner, or of the counsel or personal representative for the petitioner, and his or her telephone number and mailing address.
(vii) When the cognizant Military Department or DoDEA petitions for a hearing, it shall additionally:
(A) Inform the parent of the 10 business-day deadline (or 5 school days in the case of an expedited hearing) for filing a response that specifically addresses the issues raised in the petition.
(B) Provide the parent with a copy of this part.
(viii) A special rule applies for expedited hearing requests. The petitioner must state, as applicable to his or her petition:
(A) The disciplinary basis for the child's change in placement to an interim AES or other removal from the child's current placement.
(B) The reasons for the change in placement.
(C) The reasoning of the manifestation determination committee in concluding that a particular act of misconduct was not a manifestation of the child's disability.
(D) How the child's current educational placement is or is not substantially likely to result in injury to the child or others.
(ix) The petition or request for an expedited due process hearing must be delivered to:
(A) The Director, DOHA, by mail to P.O. Box 3656, Arlington, Virginia 22203, by fax to 703-696-1831, or email to specialedcomplaint@osdgc.osd.mil. Filing may also be made by hand delivery to the office of the Director, DOHA if approval from the Director, DOHA is obtained in advance of delivery.
(B) The respondent by mail, fax, email, or hand delivery.
(1) If the petitioner is a parent of a child (ages of 3 through 21, inclusive), or a child (in the event that rights have been transferred in accordance with paragraph (b)(19) of this section, the respondent is DoDEA and the petition must be delivered to and received by the principal of the school in which the child is enrolled, or if the child is enrolled in the Non-DoD School Program (NDSP) to the DoDEA General Counsel (generalcounsel@hq.dodea.edu).
(2) If the petitioner is the parent of an infant or toddler (birth up to 3 years of age), the respondent is the responsible Military Department and the petition must be delivered to and received by the EDIS manager.
(3) If the petitioner is the responsible Military Department or DoDEA, the petition must be delivered to and received by the parent of the child.
(C) Filing of the due process petition with DOHA is considered complete when received by DOHA.
(x) The timelines for requesting and conducting a due process hearing are:
(A) Timelines for requesting a hearing. A petitioner may not allege a violation that occurred more than 2 years before the date the petitioner knew, or should have known, about the alleged action that forms the basis of the complaint, unless the parent was prevented from requesting the hearing due to:
(1) Specific misrepresentation by DoDEA or EDIS that it had resolved the problem forming the basis of the complaint.
(2) The withholding of information by DoDEA or EDIS from the petitioning parent that was required to be provided to the parent in accordance with the IDEA and this part.
(B) Timelines for conducting a due process hearing. Except as provided in paragraph (d)(5)(x)(D) and (d)(8)(ii) of this section, a hearing officer shall issue findings of fact and conclusions of law not later than 50 business days:
(1) In a case involving EDIS, following the filing and service of a legally sufficient petition or amended petition in accordance with this section.
(2) In disputes involving a school and a child age 3 through 21, inclusive, following the filing and service of a legally sufficient petition or amended petition in accordance with this section and the hearing officer's receipt of notice that the 30-day resolution period concluded without agreement, the parties waived the resolution meeting, or the parties concluded mediation in lieu of the resolution process without reaching agreement.
(C) Exceptions to the timelines for conduct of a hearing. (1) When the hearing officer grants a request for discovery made by either party, as provided for in paragraph (d)(10) of this section, in which case the time required for such discovery does not count toward the 50 business days.
(2) When the hearing officer grants a specific extension of time for good cause in accordance with paragraph (d)(8) of this section.
(D) Timeline for conducting an expedited hearing. In the event of a petition for expedited hearing is requested, a DOHA hearing officer shall arrange for the hearing to be held not later than 20 school days (when school is in session) of the date the request is filed with DOHA, subject to the timeline for scheduling a resolution meeting and the 15 day resolution period requirements of this section. The hearing officer must make a determination within 10 school days after the hearing.
(6) Responses and actions required following receipt of a petition or request for expedited hearing. (i) Immediately upon receipt of the petition, the Director, DOHA, shall appoint a hearing officer to take charge of the case.
(A) The hearing officer shall immediately notify the parties of his or her appointment.
(B) Upon receipt of notice that a hearing officer is appointed, the parties shall communicate all motions, pleadings, or amendments in writing to the hearing officer, with a copy to the opposing party, unless the hearing officer directs otherwise.
(ii) Within 10 business days of receipt of the petition (5 school days when school is in session in the case of a petition for an expedited hearing), the respondent shall deliver a copy of the written response to the petitioner and file the original written response with the hearing officer. Filing may be made by mail to P.O. Box 3656, Arlington, Virginia 22203, by fax to 703-696-1831, by hand delivery if approved in advance by the hearing officer, or by email to specialedcomplaint@osdgc.osd.mil. If a hearing officer has not yet been appointed, the respondent will deliver the original written response to the Director, DOHA in accordance with paragraph (d)(5)(ix) of this section.
(iii) The respondent shall specifically address the issues raised in the due process hearing petition.
(iv) If the respondent is the cognizant Military Department or DoDEA, the response shall include:
(A) An explanation of why the respondent proposed or refused to take the action at issue in the due process complaint.
(B) A description of each evaluation procedure, assessment, record, or report the DoD Component used as the basis for the proposed or refused action.
(C) A description of the options that the respondent considered and the reasons why those options were rejected.
(D) A description of the other factors that are relevant to the respondent's proposed or refused action.
(v) The respondent may file a notice of insufficient petition within 15 business days of receiving a petition if the respondent wishes to challenge the sufficiency of the petition for failure to state the elements required by the IDEA. Within 5 business days of receiving a notice of insufficient petition, the hearing officer will issue a decision and will notify the parties in writing of that determination.
(vi) A response to the petitioner under (d)(6)(ii) of this section shall not be construed to preclude the respondent from asserting that the due process complaint was insufficient using the procedures available under (d)(6)(v) of this section.
(vii) Parties may amend a petition only if:
(A) The other party consents in writing to such amendment and is given the opportunity to resolve the complaint through the resolution process; or
(B) The hearing officer grants permission, except that the hearing officer may not grant such permission at any time later than 5 days before a due process hearing is scheduled to begin.
(viii) The filing of an amended petition resets the timelines for:
(A) The conduct of a resolution meeting and the resolution period relating to the amended petition, and
(B) All deadlines for responses and actions required following the receipt of the amended petition, and for conducting a due process hearing on the amended petition.
(7) Statutory resolution process. A resolution meeting shall be convened by DoDEA and a resolution period afforded, in accordance with this section, for any dispute in which a due process petition has been filed regarding the identification, evaluation, or educational placement, or the provision of FAPE for children ages 3 to 21, inclusive.
(i) Within 15 calendar days of receiving the parent's petition for due process (7 calendar days in the case of an expedited hearing), DoDEA, through the pertinent school principal or superintendent, shall convene a dispute resolution meeting, which must be attended by:
(A) The parents.
(B) A legal representative of the parents if desired by the parents.
(C) A DoDEA official designated and authorized by the District Superintendent or Area Director to exercise decision-making authority on behalf of DoDEA.
(D) A DoDEA legal representative, only if the parents are represented by counsel at the resolution meeting.
(E) The relevant members of the child's CSC who have specific knowledge of the facts identified in the petition.
(ii) The parties may agree to mediate in lieu of conducting a resolution meeting or in lieu of completing the resolution period. The resolution meeting need not be held if the parties agree in writing to waive the meeting or agree to use the mediation process.
(iii) Failure to convene or participate in resolution meeting.
(A) If DoDEA has offered to convene a resolution meeting and has been unable to obtain parental participation in the resolution meeting after making and documenting its reasonable efforts, DoDEA may, at the conclusion of the resolution period (30 days or 15 days in the case of an expedited hearing) request that a hearing officer dismiss the parent's due process complaint or request for an expedited due process hearing.
(B) If DoDEA fails to convene a resolution meeting within 15 days of receipt of a due process complaint or if it fails to participate in the resolution meeting, the parent may request the hearing officer to immediately convene the due process hearing without waiting for the 30-day resolution period to expire.
(iv) DoDEA shall have a 30-day resolution period, counted from the receipt of the complaint by the school principal, (15 days in the case of an expedited hearing request) within which to resolve the complaint to the satisfaction of the parents.
(v) The resolution period may be adjusted because of one of the following events:
(A) Both parties agree in writing to waive the resolution meeting.
(B) After the resolution meeting starts, but before the end of the applicable resolution period, the parties agree in writing that no agreement is possible and agree to waive the balance of the resolution period.
(C) Both parties agree in writing to continue the resolution meeting at the end of the applicable resolution period, but later the parent or the school withdraws from the resolution process.
(vi) If a partial or complete resolution to the dispute is reached at the resolution meeting, the parties must execute a written agreement that is:
(A) Signed by both the parents and a representative of the school with authority to bind the school to the terms of the agreement.
(B) Legally enforceable in a U.S. District Court of competent jurisdiction, unless the parties have voided the agreement within an agreement review period of 3 business days following the execution of the agreement.
(vii) Discussions held, minutes, statements, and other records of a resolution meeting, and any final executed resolution agreement are not presumed confidential and therefore are discoverable and admissible in a due process proceeding, appeal proceeding, or civil proceeding, except when the parties have agreed to confidentiality.
(viii) If DoDEA has not resolved the complaint to the satisfaction of the parents at the expiration of the resolution period or the adjusted resolution period, if applicable:
(A) DoDEA shall provide written notice to the hearing officer, copy to the parents, within 3 business days (1 business day in the case of an expedited hearing) of the expiration of the resolution period or adjusted resolution period that the parties failed to reach agreement.
(B) Upon receipt of that notification by the hearing officer, all of the applicable timelines for proceeding to a due process hearing under this section shall commence.
(ix) If the parties execute a binding written agreement at the conclusion of the resolution period, and do not subsequently declare it void during the 3-business day agreement review period, then:
(A) DoDEA shall provide written notice to the hearing officer, copy to the parents, at the conclusion of the agreement review period that the parties have reached an agreement for resolution of complaints set forth in the due process petition.
(B) Upon receipt of that notification by the presiding hearing officer, no due process hearing shall proceed on the issues resolved.
(8) The due process hearing—(i) Purpose. The purpose of the due process hearing is to establish the relevant facts necessary for the hearing officer to reach a fair and impartial determination of the case.
(ii) Hearing officer duties. The hearing officer shall be the presiding officer, with judicial powers to manage the proceeding and conduct the hearing. Those powers shall include, but are not limited to, the authority to:
(A) Determine the adequacy of pleadings.
(B) Decide whether to allow amendment of pleadings, provided permission is granted to authorize the amendment not later than 5 days before a due process hearing occurs.
(C) Rule on questions of timeliness and grant specific extension of time for good cause either on his or her own motion or at the request of either party.
(1) Good cause includes the time required for mediation in accordance with paragraph (d)(4) of this section where the parties have jointly requested an extension of time in order to complete mediation.
(2) 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. Any such extension shall be excluded from the time required to convene a hearing or issue a final decision, and at the discretion of the hearing officer may delay other filing dates specified by this section.
(D) Rule on requests for discovery and discovery disputes.
(E) Order an evaluation of the child at the expense of the DoDEA school system or the Military Department concerned.
(F) Rule on evidentiary issues.
(G) Ensure a full and complete record of the case is developed.
(H) Decide when the record in a case is closed.
(I) Issue findings of fact and conclusions of law.
(J) Issue a decision on substantive grounds based on a determination of whether the child received a FAPE. When the petition alleges a procedural violation, a hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies:
(1) Impeded the child's right to a FAPE;
(2) Significantly impeded the parent's opportunity to participate in the decision-making process regarding the provision of FAPE to the child; or
(3) Caused a deprivation of educational benefits.
(K) Order such relief as is necessary for the child to receive a FAPE or appropriate EIS, including ordering the DoDEA school system or the responsible Military Department to:
(1) Correct a procedural deficiency that caused a denial of a FAPE or appropriate EIS;
(2) Conduct evaluations or assessments and report to the hearing officer;
(3) Change the school-aged child's placement or order the child to an AES for up to 45 days;
(4) Provide EIS or specific school-age educational or related services to a child to remedy a denial of FAPE, including compensatory services when appropriate and in accordance with the current early intervention or educational program; or
(5) Placement of a school-aged child in an appropriate residential program for children with disabilities at DoD expense, when appropriate under the law and upon a determination that DoDEA has failed to provide and cannot provide an otherwise eligible child with a FAPE at the appropriate DoD facility.
(i) A residential program must be one that can address the specific needs of the child as determined by the DoDEA school.
(ii) The program should, whenever possible, be located near members of the child's family.
(9) Attendees at the hearing. Attendance at the hearing is limited to:
(i) The parents and the counsel or personal representative of the parents.
(ii) A representative of DoDEA or the EDIS concerned and the counsel representing DoDEA or the EDIS.
(iii) Witnesses for the parties, including but not limited to the professional employees of DoDEA or the EDIS concerned and any expert witnesses.
(iv) A person qualified to transcribe or record the proceedings.
(v) Other persons with the agreement of the parties or the order of the hearing officer, in accordance with the privacy interests of the parents and the individual with disabilities.
(10) Discovery. (i) Full discovery shall be available, with the Federal Rules of Civil Procedure, Rules 26-37, 28 U.S.C. appendix, serving as a guide to parties to a due process hearing or conducted in accordance with this part.
(ii) 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 document or information sought is relevant or reasonably calculated to lead to the discovery of admissible evidence. An order granting discovery, or compelling testimony or the production of evidence shall be enforceable by all reasonable means within the authority of the hearing officer, to include the exclusion of testimony or witnesses, adverse inferences, and dismissal or summary judgment.
(iii) Records compiled or created in the regular course of business, which have been provided to the opposing party at least 5 business days prior to the hearing, may be received and considered by the hearing officer without authenticating witnesses.
(iv) A copy of the written or electronic transcription of a deposition taken by a Military Department or DoDEA shall be made available by the Military Department or DoDEA without charge to the opposing party.
(11) Right to an open hearing. The parents, or child who has reached the age of majority, have the right to an open hearing upon waiving, in writing, their privacy rights and those of the individual with disabilities who is the subject of the hearing.
(12) Location of hearing. Subject to modification by the hearing officer for good cause shown or upon the agreement of the parties, the hearing shall be held:
(i) In the DoDEA school district attended by the child (ages 3 through 21, inclusive):
(ii) On the military installation of the EDIS serving infants and toddlers with disabilities; or
(iii) At a suitable video teleconferencing facility convenient for the parents of the child involved in the hearing and available for the duration of a hearing.
(13) Witnesses and documentary evidence. (i) 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 a hearing along with a proffer of the anticipated testimony of each witness.
(ii) At least 10 business days prior to a hearing, each party must provide the name, title, description of professional qualifications, and summary of proposed testimony of any expert witness it intends to call at the hearing.
(iii) Failure to disclose documents, materials, or witnesses may result in the hearing officer barring their introduction at the hearing.
(iv) Parties must limit evidence to the issues pleaded, except by order of the hearing officer or with the consent of the parties.
(v) The 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. appendix, serving as guide.
(vi) All witnesses testifying at the hearing shall be advised by the hearing officer that under 18 U.S.C. 1001, it is a criminal offense to knowingly and willfully make a materially false, fictitious, or fraudulent statement or representation to a department or agency of the U.S. Government as to any matter within the jurisdiction of that department or agency, and may result in a fine or imprisonment.
(vii) A party calling a witness shall bear the witness' travel and incidental expenses associated with testifying at the hearing. The DoDEA school system or the Military Department concerned shall pay such expenses if a witness is called by the hearing officer.
(viii) The parties shall have the right to cross-examine witnesses testifying at the hearing.
(ix) The hearing officer may issue an order compelling a party to make a specific witness employed by or under control of the party available for testimony at the party's expense or to submit specific documentary or physical evidence for inspection by the hearing officer or for submission into the record on motion of either party or on the hearing officer's own motion.
(x) When the hearing officer determines that a party has failed to obey an order to make a specific witness available for testimony or to submit specific documentary or physical evidence in accordance with the hearing officer's order, and that such failure is in knowing and willful disregard of the order, the hearing officer shall so certify as a part of the written record in the case and may order appropriate sanctions.
(14) Transcripts. (i) A verbatim written transcription of any deposition taken by a party shall be provided to the opposing party in hardcopy written format or as attached to an electronic email with prior permission of the recipient. If a Military Department or DoDEA takes a deposition, the verbatim written transcript of that deposition shall be provided to the parent(s) without charge.
(ii) A verbatim written transcription of the due process hearing shall be arranged by the hearing officer and shall be made available to the parties in hardcopy written format, or as an attachment to an electronic email, with prior permission of the recipient, on request and without cost to the parent(s), and a copy of the verbatim written transcript of the hearing shall become a permanent part of the record
(15) Hearing officer's written decision. (i) The hearing officer shall make written findings of fact and conclusions of law and shall set forth both in a written decision addressing the issues raised in the due process complaint, the resolution of those issues, and the rationale for the resolution.
(ii) The hearing officer's decision of the case shall be based on the record, which shall include the petition, the answer, the transcript 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.
(iii) The hearing officer shall file the written decision with the Director, DOHA, and additionally provide the Director, DOHA with a copy of that decision from which all personally identifiable information has been redacted.
(iv) The Director, DOHA, shall forward to parents and to the DoDEA or the EDIS concerned, copies, unredacted and with all personally identifiable information redacted, of the hearing officer's decision.
(v) The decision of the hearing officer shall become final unless a timely notice of appeal is filed in accordance with paragraph (d)(17) of this section.
(vi) The DoDEA or the EDIS concerned shall implement the decision as soon as practicable after it becomes final.
(16) Determination without hearing. (i) At the request of a parent of an infant or toddler, birth to 3 years of age, when EIS are at issue, or of a parent of a child age 3 through 21, inclusive, or child who has reached the age of majority, when special education (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 and issue a written decision within the period fixed by paragraph (d)(5)(x) of this section.
(ii) DoDEA or the EDIS concerned may oppose a request to waive a hearing. In that event, the hearing officer shall rule on the request.
(iii) Documentary evidence submitted to the hearing officer in a case determined without a hearing shall comply with the requirements of paragraph (d)(13) of this section. A party submitting such documents shall provide copies to all other parties.
(17) Appeal of hearing officer decision. (i) A party may appeal the hearing officer's findings of fact and decision by filing a written notice of appeal within 15 business days of receipt of the hearing officer's decision with the Chairperson, DOHA Appeal Board by mail to P.O. Box 3656, Arlington, Virginia 22203, by fax to 703-696-1831, by email to specialedcomplaint@osdgc.osd.mil, or by hand delivery to the office of the Chairperson, DOHA Appeal Board if approval from the Chairperson, DOHA Appeal Board is obtained in advance of delivery. The notice of appeal must contain the appealing party's certification that a copy of the notice of appeal has been provided to the other party by mail.
(ii) Within 30 business days of filing the notice of appeal, the appealing party shall file a written statement of issues and arguments on appeal with the Chairperson, DOHA Appeal Board by mail to P.O. Box 3656, Arlington, Virginia 22203, by fax to 703-696-1831, by email to specialedcomplaint@osdgc.osd.mil, or by hand delivery to the office of the Chairperson, DOHA Appeal Board if approval from the Chairperson, DOHA Appeal Board is obtained in advance of filing. The appealing party shall deliver a copy to the other party by mail.
(iii) The non-appealing party shall file any reply within 20 business days of receiving the appealing party's statement of issues and arguments on appeal with the Chairperson, DOHA Appeal Board by mail to P.O. Box 3656, Arlington, Virginia 22203, by fax to 703-696-1831, by email to specialedcomplaint@osdgc.osd.mil, or by hand delivery to the office of the Chairperson, DOHA Appeal Board if approval from the Chairperson, DOHA Appeal Board is obtained in advance of filing The non-appealing party shall deliver a copy of the reply to the appealing party by mail.
(iv) Appeal filings with DOHA are complete upon transmittal. It is the burden of the appealing party to provide timely transmittal to and receipt by DOHA.
(v) The DOHA Appeal Board, shall issue a decision on all parties' appeals within 45 business days of receipt of the matter.
(vi) 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, in accordance with the IDEA, 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.
(vii) 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 section before seeking judicial review of a determination.
(18) Maintenance of current educational placement. (i) Except when a child is in an interim AES for disciplinary reasons, during the pendency of any proceeding conducted pursuant to this section, unless the school and the parents otherwise agree, the child will remain in the then current educational placement.
(ii) When the parent has appealed a decision to place a child in an interim AES, the child shall remain in the interim setting until the expiration of the prescribed period or the hearing officer makes a decision on placement, whichever occurs first, unless the parent and the school agree otherwise.
(19) General hearing administration. The Director, DOHA, shall:
(i) Exercise administrative responsibility for ensuring the timeliness, fairness, and impartiality of the hearing and appeal procedures to be conducted in accordance with this section.
(ii) Appoint hearing officers from the DOHA Administrative judges who shall:
(A) Be attorneys who are active members of the bar of the highest court of a State, U.S. Commonwealth, U.S. Territory, or the District of Columbia and permitted to engage in the active practice of law, who are qualified in accordance with DoD Instruction 1442.02, “Personnel Actions Involving Civilian Attorneys” (available at http://www.dtic.mil/whs/directives/corres/pdf/144202p.pdf).
(B) Possess the knowledge of and ability to:
(1) Understand the provisions of the IDEA and this part, and related Federal laws and legal interpretations of those regulations by Federal courts.
(2) Conduct hearings in accordance with appropriate, standard legal practice.
(3) Render and write decisions in accordance with the requirements of this part.
(C) Be disqualified from presiding in any individual case if the hearing officer:
(1) Has a personal or professional interest that conflicts with the hearing officer's objectivity in the hearing.
(2) Is a current employee of, or military member assigned to, DoDEA or the Military Medical Department providing services in accordance with the IDEA and this part.
(20) Publication and reporting of final decisions. The Director, DOHA, shall ensure that hearing officer and appeal board decisions in cases arising in accordance with this section are published and indexed with all personally identifiable information redacted to protect the privacy rights of the parents who are parties in the due process hearing and the children of such parents, in accordance with 32 CFR part 310.
(21) Civil actions. Any party aggrieved by the final administrative decision of a due process complaint shall have the right to file a civil action in a district court of the United States of competent jurisdiction without regard to the amount in controversy. The party bringing the civil action shall have 90 days from the date of the decision of the hearing officer or, if applicable, the date of the decision of the DOHA Appeal Board, to file a civil action.
(e) DoD-CC on early intervention, special education, and related services—(1) Committee membership. The DoD-CC shall meet at least annually to facilitate collaboration in early intervention, special education, and related services in the Department of Defense. The Secretary of Defense shall appoint representatives to serve on the DoD-CC who shall be full-time or permanent part-time government employees or military members from:
(i) USD(P&R), who shall serve as the Chair.
(ii) Secretaries of the Military Departments.
(iii) Defense Health Agency.
(iv) DoDEA.
(v) GC, DoD.
(2) Responsibilities. The responsibilities of the DoD-CC include:
(i) Implementation of a comprehensive, multidisciplinary program of EIS for infants and toddlers with disabilities and their families.
(ii) Provision of a FAPE, including special education and related services, for children with disabilities who are enrolled full-time in the DoDEA school system, as specified in their IEP.
(iii) Designation of a subcommittee on compliance to:
(A) Advise and assist the USD(P&R) in the performance of his or her responsibilities.
(B) At the direction of the USD(P&R), advise and assist the Military Departments and DoDEA in the coordination of services among providers of early intervention, special education, and related services.
(C) Monitor compliance in the provision of EIS for infants and toddlers and special education and related services for children ages 3 to 21, inclusive.
(D) Identify common concerns, facilitate coordination of effort, and forward issues requiring resolution to the USD(P&R).
(E) 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 through DoDEA or EIS through the Military Departments.
(F) Perform other duties as assigned by the USD(P&R), including oversight for monitoring the delivery of services consistent with the IDEA and this part.
(f) Monitoring—(1) Program monitoring and oversight. (i) The USD(P&R) shall monitor the implementation of the provisions of the IDEA and this part in the programs operated by the Department of Defense. The USD(P&R) will carry out his or her responsibilities under this section primarily through the DoD-CC.
(ii) The primary focus of monitoring shall be on:
(A) Improving educational results and functional outcomes for all children with disabilities.
(B) Ensuring the DoD programs meet the requirements of the IDEA and this part.
(iii) Monitoring shall include the following priority areas and any additional priority areas identified by the USD(P&R):
(A) Provision of a FAPE in the LRE and the delivery of early intervention services.
(B) Child-find.
(C) Program management.
(D) The use of dispute resolution including administrative complaints, due process and the mandatory resolution process, and voluntary mediation.
(E) A system of transition services.
(iv) The USD(P&R) shall develop quantifiable indicators in each of the priority areas and such qualitative indicators necessary to adequately measure performance.
(v) DoDEA and the Military Departments shall establish procedures for monitoring special services and reviewing program compliance in accordance with the requirements of this section.
(vi) By January 1 of each calendar year, the DoD-CC shall identify any additional information required to support compliance activities that will be included in the next annual compliance report to be submitted no later than September 30 of that year. The results of monitoring program areas described in paragraph (f)(1)(iii) of this section shall be reported in a manner that does not result in the disclosure of data identifiable to individual children.
(2) Compliance reporting. The Director, DoDEA, and the Military Departments shall submit reports to the DoD-CC not later than September 30 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 the IDEA and this part.
(ii) Summarize the findings and indicate the status of program compliance.
(iii) Describe corrective actions required of the programs that did not meet the requirements of the IDEA and this part and identify the technical assistance that was or shall be provided to ensure compliance.
(iv) Include applicable data on the operation of special education and early intervention in the Department of Defense. Data must be submitted in the format required by the DoD-CC to enable the aggregation of data across components. March 31 shall be the census date for counting children for the reporting period that begins on July 1 and ends on June 30 of the following year.
(3) School level reporting. (i) The reporting requirements for school aged children (3 through 21, inclusive) with disabilities shall also include:
(A) Data to determine if significant disproportionality based on race and ethnicity is occurring with respect to:
(1) The identification of school-aged children as children with disabilities including the identification of children as children with disabilities affected by a particular impairment described in paragraph (g) of this section.
(2) The placement of these children in particular educational settings.
(3) The incidence, duration, and type of disciplinary suspensions and expulsions.
(4) Removal to an interim AES, the acts or items precipitating those removals, and the number of children with disabilities who are subject to long-term suspensions or expulsions.
(5) The number and percentage of school-aged children with disabilities, by race, ethnicity, limited English proficiency status, gender, and disability category, who are:
(i) Receiving special education and related services.
(ii) Participating in regular education.
(iii) In separate classes, separate schools or facilities, or public or private residential facilities.
(B) The number of due process complaints requested, the number of hearings conducted, and the number of changes in placement ordered as a result of those hearings.
(C) The number of mediations held and the number of settlement agreements reached through such mediations.
(ii) For each year of age from age 16 through 21, children who stopped receiving special education and related services because of program completion (including graduation with a regular secondary school diploma) or other reasons, and the reasons why those children stopped receiving special education and related services.
(4) Early intervention reporting. The reporting requirements for infants and toddlers with disabilities shall also include:
(i) Data to determine if significant disproportionality based on race, gender, and ethnicity is occurring with respect to infants and toddlers with disabilities who:
(A) Received EIS by criteria of developmental delay or a high probability of developing a delay.
(B) Stopped receiving EIS because of program completion or for other reasons.
(C) Received EIS in natural environments.
(D) Received EIS in a timely manner as defined in paragraph (a) of this section.
(ii) The number of due process complaints requested and the number of hearings conducted.
(iii) The number of mediations held and the number of settlement agreements reached through such mediations.
(5) USD(P&R) oversight. (i) On behalf of the USD(P&R), the DoD-CC shall make or arrange for periodic visits, not less than annually, to selected programs to ensure the monitoring process is in place; validate the compliance data and reporting; and address select focus areas identified by the DoD-CC and priority areas identified in paragraph (f)(1) of this section. The DoD-CC may use other means in addition to periodic visits to ensure compliance with the requirements established in this part.
(ii) The DoD-CC shall identify monitoring team members to conduct monitoring activities.
(iii) For DoD-CC monitoring visits, the Secretaries of the Military Departments shall:
(A) Provide necessary technical assistance and logistical support to monitoring teams during monitoring visits to facilities for which they are responsible.
(B) Provide necessary travel funding and support for their respective team members.
(C) Cooperate with monitoring teams, including making all pertinent records available to the teams.
(D) Promptly implement 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.
(iv) For DoD-CC monitoring visits, the Director, DoDEA, shall:
(A) Provide necessary technical assistance and logistical support to monitoring teams during monitoring visits to facilities for which he or she is responsible.
(B) Cooperate with monitoring teams, including making all pertinent records available to the teams.
(C) Promptly implement monitoring teams' recommendations concerning special education and related services for which the DoDEA school system concerned has responsibility.
(v) The ASD(HA) shall provide technical assistance to the DoD monitoring teams when requested.
(vi) The GC, DoD shall:
(A) Provide legal counsel to the USD(P&R), and, where appropriate, to DoDEA, monitored agencies, and monitoring teams regarding monitoring activities conducted pursuant to this part.
(B) Provide advice about the legal requirements of this part and Federal law to the DoDEA school systems, military medical commanders, military installation commanders, and to other DoD personnel as appropriate, in connection with monitoring activities conducted pursuant to this part.
(g) Types of disabilities in children ages 3 through 21. A child may be eligible for services under paragraph (b) of this section if by reason of one of the following disabilities the child needs special education and related services.
(1) Autism Spectrum Disorder. A developmental disability significantly affecting verbal and nonverbal communication and social interaction that adversely affects a child's 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. Essential features are typically but not necessarily manifested before age 3. Autism may include autism spectrum disorders such as but not limited to autistic disorder, pervasive developmental disorder not otherwise specified, and Asperger's syndrome. The term does not apply if a child's educational performance is adversely affected primarily because the child has an emotional disturbance.
(2) 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.
(3) Deaf-blindness. A combination of hearing and visual impairments causing such severe communication, developmental, and educational needs that the child cannot be accommodated in programs specifically for children with deafness or children with blindness.
(4) Developmental delay. A significant discrepancy, as defined and measured in accordance with paragraph (a)(4)(ii)(A) and confirmed by clinical observation and judgment, in the actual functioning of a child, birth through age 7, or any subset of that age range including ages 3 through 5, when compared with the functioning of a non-disabled child of the same chronological age in any of the following developmental areas: Physical, cognitive, communication, social or emotional, or adaptive development. A child determined to have a developmental delay before the age of 7 may maintain that eligibility through age 9.
(5) 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:
(i) Inability to learn that cannot be explained by intellectual, sensory, or health factors.
(ii) Inability to build or maintain satisfactory interpersonal relationships with peers and teachers.
(iii) Inappropriate types of behavior or feelings under normal circumstances.
(iv) A general pervasive mood of unhappiness or depression.
(v) A tendency to develop physical symptoms or fears associated with personal or school problems.
(vi) Includes children who are schizophrenic, but does not include children who are socially maladjusted unless it is determined they are emotionally disturbed.
(6) 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.
(7) Intellectual disability. Significantly below-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.
(8) 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.
(9) Other health impairment. Limited strength, vitality, or alertness including a heightened alertness to environmental stimuli that results in limited alertness with respect to the educational environment, that is due to chronic or acute health problems and that adversely affects a child's educational performance. Such impairments may include, but are not necessarily limited to, attention deficit disorder, attention deficit hyperactivity disorder, heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, seizure disorder, lead poisoning, leukemia, or diabetes.
(10) 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, remember, or do mathematical calculations. That term includes such conditions, recognizing that they may have been otherwise labeled with terms such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. This term does not include learning problems that are primarily the result of visual, hearing, or motor disabilities; intellectual disability; emotional disturbance; or environmental, cultural, or economic differences.
(11) Speech or language impairments. A communication disorder such as stuttering; impaired articulation; limited, impaired or delayed capacity to use expressive and/or receptive language; or a voice impairment that adversely affects a child's educational performance.
(12) 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 (or both) that adversely affects educational performance. Includes open or closed head injuries resulting in 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. The term does not include brain injuries that are congenital or degenerative or brain injuries that are induced by birth trauma.
(13) Visual impairment, including blindness. An impairment of vision that, even with correction, adversely affects a child's educational performance. Term includes both partial sight and blindness. DoD also recognizes that a child may be eligible for services under paragraph (b) if they demonstrate “Multiple Disabilities” which DoD defines as: “Concomitant impairments (such as intellectual disability-blindness or intellectual disability-orthopedic impairment), the combination of which causes such severe educational needs that they cannot be accommodated in special education programs solely for one of the impairments. Multiple disabilities does not include deaf-blindness, which is set forth as its own type of disability at § 57.6(g)(3).
Pt. 60

PART 60—FAMILY ADVOCACY COMMAND ASSISTANCE TEAM (FACAT)
Sec.
60.1
Purpose.
60.2
Applicability.
60.3
Definitions.
60.4
Policy.
60.5
Responsibilities.
60.6
Procedures.

Authority:
10 U.S.C. 1794; 42 U.S.C. 13031.

Source:
79 FR 25676, May 6, 2014, unless otherwise noted.
§ 60.1
Purpose.
This part establishes policy, assigns responsibilities, and prescribes procedures for implementation and use of the FACAT in accordance with 10 U.S.C. 1794.
§ 60.2
Applicability.
(a) This part applies to Office of the Secretary of Defense (OSD), 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 DoD (hereinafter referred to collectively as the “DoD Components”).
(b) The term “Military Services,” as used herein, refers to the Army, Navy, Air Force, and Marine Corps.
§ 60.3
Definitions.
Unless otherwise noted, these terms and their definitions are for the purpose of this part.
Child. An unmarried person under 18 years of age for whom a parent, guardian, foster parent, caregiver, employee of a residential facility, or any staff person providing out-of-home care is legally responsible. The term “child” means a biological child, adopted child, stepchild, foster child, or ward. The term also includes a sponsor's family member (except the sponsor's spouse) of any age who is incapable of self-support because of a mental or physical incapacity, and for whom treatment in a DoD medical treatment program is authorized.
Child abuse. The physical or sexual abuse, emotional abuse, or neglect of a child by a parent, guardian, foster parent, or by a caregiver, whether the caregiver is intrafamilial or extrafamilial, under circumstances indicating the child's welfare is harmed or threatened. Such acts by a sibling, other family member, or other person shall be deemed to be child abuse only when the individual is providing care under express or implied agreement with the parent, guardian, or foster parent.
Child sexual abuse. The employment, use, persuasion, inducement, enticement, or coercion of any child to engage in, or assist any other person to engage in, any sexually explicit conduct or simulation of such conduct for the purpose of producing a visual depiction of such conduct; or the rape, and in cases of caretaker or inter-familial relationships, statutory rape, molestation, prostitution, or other form of sexual exploitation of children, or incest with children.
DoD-sanctioned activity. A U.S. Government activity or a nongovernmental activity authorized by appropriate DoD officials to perform child care or supervisory functions on DoD controlled property. The care and supervision of children may be either its primary mission or incidental in carrying out another mission (e.g., medical care). Examples include Child Development Centers, Department of Defense Dependents Schools, Youth Activities, School Age/Latch Key Programs, Family Day Care providers, and child care activities that may be conducted as a part of a chaplain's program or as part of another Morale, Welfare, or Recreation Program.
FACAT. A multidisciplinary team composed of specially trained and experienced individuals who are on-call to provide advice and assistance on cases of child sexual abuse that involve DoD-sanctioned activities.
Family Advocacy Program Director (FAPD). An individual designated by the Secretary of the Military Department or the head of another DoD Component to manage, monitor, and coordinate the FAP at the headquarters level.
Family Advocacy Program Manager (FAPM). An individual designated by the Secretary of the Military Department to manage, monitor, and coordinate the FAP at the headquarters level.
Military criminal investigative organization (MCIO). U.S. Army Criminal Investigation Command, Naval Criminal Investigative Service, and Air Force Office of Special Investigations.
Out-of-home care. The responsibility of care for and/or supervision of a child in a setting outside the child's home by an individual placed in a caretaker role sanctioned by a DoD Component or authorized by a DoD Component as a provider of care. Examples include a child development center, school, recreation program, family child care, and child care activities that may be conducted as a part of a chaplain's program or as part of another morale, welfare, or recreation program.
§ 60.4
Policy.
It is DoD policy to:
(a) Provide a safe and secure environment for DoD personnel and their families by promoting the prevention, early identification, and intervention in all allegations of child abuse and neglect in accordance with DoD Directive 6400.1, “Family Advocacy Program (FAP)” (see http://www.dtic.mil/whs/directives/corres/pdf/640001p.pdf).
(b) Promote early identification and intervention in allegations of extrafamilial child sexual abuse in accordance with DoD Directive 6400.1 as it applies to DoD-sanctioned activities.
(c) Provide a coordinated and comprehensive DoD response through the deployment of the FACAT to assist the Military Department upon DoD Component request to address allegations of extrafamilial child sexual abuse in DoD-sanctioned activities.
(d) Foster cooperation among the DoD, other Federal agencies, and responsible civilian authorities when addressing allegations of extrafamilial child sexual abuse in DoD-sanctioned activities.
(e) Promote timely and comprehensive reporting of all incidents covered by this part.
(f) As appropriate, actively seek prosecution of alleged perpetrators to the fullest extent of the law.
(g) Ensure that personally identifiable information, to include protected health information collected, used, and released by covered entities in the execution of this part is protected as required by DoD 6025.18-R, “DoD Health Information Privacy Regulation” (see http://www.dtic.mil/whs/directives/corres/pdf/602518r.pdf) and 5 U.S.C. 552a as implemented in the Department of Defense by 32 CFR part 310.
§ 60.5
Responsibilities.
(a) The Deputy Assistant Secretary of Defense for Military Community and Family Policy (DASD(MC&FP)), under the authority, direction, and control of the Assistant Secretary of Defense for Readiness and Force Management, shall:
(1) Monitor compliance with this part.
(2) Train, maintain, and support a team of full-time or permanent part-time federal officers or employees from various disciplines to comprise the FACAT and respond to child sexual abuse in DoD-sanctioned activities.
(3) Develop and coordinate criteria for determining the appropriate professional disciplines, support staff, and the required capabilities of FACAT members.
(4) Ensure that policies and guidelines on activation and use of the FACAT are shared and coordinated with the DoD Components.
(5) Program, budget, and allocate funds for the FACAT.
(6) Appoint the chief of the FACAT and team members, and provide required logistical support when the FACAT is deployed.
(7) Coordinate the management and interaction of this effort with other Federal and civilian agencies as necessary.
(8) Foster general awareness of FACAT goals and responsibilities.
(b) The Secretaries of the Military Departments shall:
(1) Ensure compliance with this part throughout their respective Departments.
(2) Establish departmental procedures to implement with this part.
(3) Designate nominees for the FACAT upon request and ensure replacements are nominated when vacancies are indicated.
(4) Ensure that commanders and staff are aware of the availability and proper use of the FACAT and the procedures for requesting a FACAT to assist in addressing extrafamilial child sexual abuse allegations covered by this part.
(5) Encourage timely and comprehensive reporting in accordance with this part.
§ 60.6
Procedures.
(a) Reporting requirements. Any person with a reasonable belief that an incident of child abuse has occurred in a DoD-sanctioned activity must report it to:
(1) The appropriate civilian agency in accordance with 42 U.S.C. 13031 and 28 CFR 81.1-81.5.
(2) The installation FAP as required by DoD Directive 6400.1.
(b) Notification of suspected abuse—(1) Physical or emotional abuse or neglect. If a report of suspected child physical abuse, emotional abuse, or neglect in a DoD-sanctioned activity is made to the FAP, the FAPM shall:
(i) Notify the appropriate military or civilian law enforcement agency, or multiple law enforcement agencies as appropriate.
(ii) Contact the appropriate civilian child protective services agency, if any, to request assistance.
(2) Sexual abuse. If a report of suspected child sexual abuse in a DoD-sanctioned activity is made to the FAP, the FAPM, in addition to the procedures noted in paragraph (b)(1) of this section, shall:
(i) Immediately notify the servicing MCIO and civilian law enforcement as appropriate.
(ii) Forward the report DD Form 2951, “Initial Report of Suspected Child Sexual Abuse in DoD Operated or Sponsored Activities,” required by 10 U.S.C. 1794 through DoD Component FAP channels to the DASD(MC&FP) within 72 hours.
(iii) Consult with the person in charge of the DoD-sanctioned activity and the appropriate law enforcement agency to estimate the number of potential victims and determine whether an installation response team may be appropriate to address the investigative, medical, psychological, and public affairs issues that may arise.
(iv) Notify the installation commander of the allegation and recommend whether an installation response team may be appropriate to assess the current situation and coordinate the installation's response to the incidents.
(v) Submit a written follow-up report using DD Form 2952, “Closeout Report of Suspected Child Sexual Abuse in DoD Operated or Sponsored Activities,” through DoD Component channels regarding all allegations of child sexual abuse to the DASD(MC&FP) when:
(A) There have been significant changes in the status of the case;
(B) There are more than five potential victims;
(C) The sponsors of the victims are from different Military Services or DoD Components;
(D) There is increased community sensitivity to the allegation; or
(E) The DASD(MC&FP) has requested a follow-up report.
(c) Requesting a FACAT. An installation commander may request a FACAT through appropriate DoD Component channels from the DASD(MC&FP) when alleged child sexual abuse by a care provider in a DoD-sanctioned-activity has been reported and at least one of the following apply:
(1) Additional personnel are needed to:
(i) Fully investigate a report of child sexual abuse by a care provider or employee in a DoD-sanctioned activity;
(ii) Assess the needs of the child victims and their families; or
(iii) Provide supportive treatment to the child victims and their families.
(2) The victims are from different Military Services or DoD Components, or there are multiple care providers who are the subjects of the report from different Military Services or DoD Components.
(3) Significant issues in responding to the allegations have arisen between the Military Services or DoD Components and other Federal agencies or civilian authorities.
(4) The situation has potential for widespread public interest that could negatively impact performance of the DoD mission.
(d) Deployment of a FACAT. (1) The DASD(MC&FP) shall deploy a FACAT at the request of a DoD Component.
(2) The DASD(MC&FP) may deploy a FACAT at the request of the Head of the DoD Component without a request from the installation commander. Such circumstances include a case where:
(i) The victims are from different Military Services or DoD Components, or there are multiple care providers who are the subjects of the report from different Military Services or DoD Components;
(ii) Significant issues in responding to the allegations have arisen between the Military Services or DoD Components and other Federal agencies or civilian authorities; or
(iii) The situation has potential for widespread public interest that could negatively impact performance of the DoD mission.
(3) The DASD(MC&FP) shall configure the FACAT based on the information and recommendations of the requestor, the installation FAPM, and the FAPD of the DoD Component.
(4) The DASD(MC&FP) shall:
(i) Request the FAPDs to identify several individuals from the FACAT roster who are available for deployment.
(ii) Request, through the appropriate channels of the DoD Component, that the individuals' supervisors release them from normal duty positions to serve on temporary duty with the deploying FACAT.
(5) The DASD(MC&FP) shall provide fund citations to the FACAT members for their travel orders and per diem and shall provide information regarding travel arrangements. The FACAT members shall be responsible for preparing travel orders and making travel arrangements.
(6) FACAT members who are subject to DoD Instruction 6025.13, “Medical Quality Assurance (MQA) and Clinical Quality Management in the Military Health System (MHS)” (see http://www.dtic.mil/whs/directives/corres/pdf/602513p.pdf) shall be responsible for arranging temporary clinical privileges in accordance with DoD 6025.13-R, “Military Health System (MHS) Clinical Quality Assurance (CQA) Program Regulation” (see http://www.dtic.mil/whs/directives/corres/pdf/602513r.pdf) at the installation to which they shall be deployed.
(e) FACAT tasks. The FACAT shall meet with the installation's commanding officer, the MCIO, or designated response team to assess the current situation and assist in coordinating the installation's response to the incidents. Depending on the composition of the team, such tasks may include:
(1) Investigating the allegations.
(2) Conducting medical and mental health assessment of the victims and their families.
(3) Developing and implementing plans to provide appropriate treatment and support for the victims and their families and for the non-abusing staff of the DoD-sanctioned activity.
(4) Coordinating with local officials to manage public affairs tasks.
(f) Reports of FACAT activities. The FACAT chief shall prepare three types of reports:
(1) Daily briefs for the installation commander or designee.
(2) Periodic updates to the FAPD of the DoD Component and to the DASD(MC&FP).
(3) An after-action brief for the installation commander briefed at the completion of the deployment and transmitted to the DASD(MC&FP) and the FAPD of the DoD Component.
Pt. 61

PART 61—FAMILY ADVOCACY PROGRAM (FAP)

Subpart A—Family Advocacy Program (FAP)
Sec.
61.1
Purpose.
61.2
Applicability.
61.3
Definitions.
61.4
Policy.
61.5
Responsibilities.
61.6
Procedures.

Subpart B—FAP Standards
61.7
Purpose.
61.8
Applicability.
61.9
Definitions.
61.10
Policy.
61.11
Responsibilities.
61.12
Procedures.
Subparts C-D [Reserved]

Subpart E—Guidelines for Clinical Intervention for Persons Reported as Domestic Abusers
61.25
Purpose.
61.26
Applicability.
61.27
Definitions.
61.28
Policy.
61.29
Responsibilities.
61.30
Procedures.

Subpart A—Family Advocacy Program (FAP)

Authority:
5 U.S.C. 552a; 10 U.S.C. 1058(b), 1783, 1787, and 1794; Public Law 103-337, Section 534(d)(2).

Source:
80 FR 11780, Mar. 4, 2015, unless otherwise noted.
§ 61.1
Purpose.
This part is composed of several subparts, each containing its own purpose. This subpart establishes policy and assigns responsibilities for addressing child abuse and domestic abuse through the FAP.
§ 61.2
Applicability.
This subpart applies to the Office of the Secretary of Defense (OSD), 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 within the Department of Defense (referred to collectively in this subpart as the “DoD Components”).
§ 61.3
Definitions.
Unless otherwise noted, these terms and their definitions are for the purposes of this subpart.
Alleged abuser. An individual reported to the FAP for allegedly having committed child abuse or domestic abuse.
Child. An unmarried person under 18 years of age for whom a parent, guardian, foster parent, caregiver, employee of a residential facility, or any staff person providing out-of-home care is legally responsible. The term means a biological child, adopted child, stepchild, foster child, or ward. The term also includes a sponsor's family member (except the sponsor's spouse) of any age who is incapable of self-support because of a mental or physical incapacity, and for whom treatment in a DoD medical treatment program is authorized.
Child abuse. The physical or sexual abuse, emotional abuse, or neglect of a child by a parent, guardian, foster parent, or by a caregiver, whether the caregiver is intrafamilial or extrafamilial, under circumstances indicating the child's welfare is harmed or threatened. Such acts by a sibling, other family member, or other person shall be deemed to be child abuse only when the individual is providing care under express or implied agreement with the parent, guardian, or foster parent.
DoD-sanctioned activity. A DoD-sanctioned activity is defined as a U.S. Government activity or a nongovernmental activity authorized by appropriate DoD officials to perform child care or supervisory functions on DoD controlled property. The care and supervision of children may be either its primary mission or incidental in carrying out another mission (e.g., medical care). Examples include Child Development Centers, Department of Defense Dependents Schools, or Youth Activities, School Age/Latch Key Programs, Family Day Care providers, and child care activities that may be conducted as a part of a chaplain's program or as part of another Morale, Welfare, or Recreation Program.
Domestic abuse. Domestic violence or a pattern of behavior resulting in emotional/psychological abuse, economic control, and/or interference with personal liberty that is directed toward a person who is:
(1) A current or former spouse.
(2) A person with whom the abuser shares a child in common; or
(3) A current or former intimate partner with whom the abuser shares or has shared a common domicile.
Domestic violence. An offense under the United States Code, the Uniform Code of Military Justice (UCMJ), or State law involving the use, attempted use, or threatened use of force or violence against a person, or a violation of a lawful order issued for the protection of a person who is:
(1) A current or former spouse.
(2) A person with whom the abuser shares a child in common; or
(3) A current or former intimate partner with whom the abuser shares or has shared a common domicile.
Family Advocacy Command Assistance Team (FACAT). A multidisciplinary team composed of specially trained and experienced individuals who are on-call to provide advice and assistance on cases of child sexual abuse that involve DoD-sanctioned activities.
Family advocacy committee (FAC). The policy-making, coordinating, recommending, and overseeing body for the installation FAP.
FAP. A program designed to address prevention, identification, evaluation, treatment, rehabilitation, follow-up, and reporting of family violence. FAPs consist of coordinated efforts designed to prevent and intervene in cases of family distress, and to promote healthy family life.
Family Advocacy Program Manager (FAPM). An individual designated by a Secretary of a Military Department or the head of another DoD Component to manage, monitor, and coordinate the FAP at the headquarters level.
Incident determination committee (IDC). A multidisciplinary team of designated individuals working at the installation level, tasked with determining whether a report of domestic abuse or child abuse meets the relevant DoD criteria for entry into the Service FAP Central Registry as child abuse and domestic abuse incident. Formerly known as the Case Review Committee.
Incident status determination. The IDC determination of whether or not the reported incident meets the relevant criteria for alleged child abuse or domestic abuse for entry into the Service FAP central registry of child abuse and domestic abuse reports.
New Parent Support Program (NPSP). A standardized secondary prevention program under the FAP that delivers intensive, voluntary, strengths based home visitation services designed specifically for expectant parents and parents of children from birth to 3 years of age to reduce the risk of child abuse and neglect.
Restricted reporting. A process allowing an adult victim of domestic abuse, who is eligible to receive military medical treatment, including civilians and contractors who are eligible to receive military healthcare outside the Continental United States on a reimbursable basis, the option of reporting an incident of domestic abuse to a specified individual without initiating the investigative process or notification to the victim's or alleged offender's commander.
Unrestricted reporting. A process allowing a victim of domestic abuse to report an incident using current reporting channels, e.g. chain of command, law enforcement or criminal investigative organization, and FAP for clinical intervention.
§ 61.4
Policy.
It is DoD policy to:
(a) Promote public awareness and prevention of child abuse and domestic abuse.
(b) Provide adult victims of domestic abuse with the option of making restricted reports to domestic abuse victim advocates and to healthcare providers in accordance with DoD Instruction 6400.06, “Domestic Abuse Involving DoD Military and Certain Affiliated Personnel” (available at http://www.dtic.mil/whs/directives/corres/pdf/640006p.pdf).
(c) Promote early identification; reporting options; and coordinated, comprehensive intervention, assessment, and support to:
(1) Victims of suspected child abuse, including victims of extra-familial child abuse.
(2) Victims of domestic abuse.
(d) Provide assessment, rehabilitation, and treatment, including comprehensive abuser intervention.
(e) Provide appropriate resource and referral information to persons who are not covered by this subpart, who are victims of alleged child abuse or domestic abuse.
(f) Cooperate with responsible federal and civilian authorities and organizations in efforts to address the problems to which this subpart applies.
(g) Ensure that personally identifiable information (PII) collected in the course of FAP activities is safeguarded to prevent any unauthorized use or disclosure and that the collection, use, and release of PII is in compliance with 5 U.S.C. 552a.
(h) Develop program standards (PSs) and critical procedures for the FAP that reflect a coordinated community risk management approach to child abuse and domestic abuse.
(i) Provide appropriate individualized and rehabilitative treatment that supplements administrative or disciplinary action, as appropriate, to persons reported to FAP as domestic abusers.
(j) Maintain a central child abuse and domestic abuse database to:
(1) Analyze the scope of child abuse and domestic abuse, types of abuse, and information about victims and alleged abusers to identify emerging trends, and develop changes in policy to address child abuse and domestic abuse.
(2) Support the requirements of DoD Instruction 1402.5, “Criminal History Background Checks on Individuals in Child Care Services” (available at http://www.dtic.mil/whs/directives/corres/pdf/140205p.pdf).
(3) Support the response to public, congressional, and other government inquiries.
(4) Support budget requirements for child abuse and domestic abuse program funding.
§ 61.5
Responsibilities.
(a) The Under Secretary of Defense for Personnel and Readiness (USD(P&R)) will:
(1) Collaborate with the DoD Component heads to establish programs and guidance to implement the FAP elements and procedures in § 61.6 of this subpart.
(2) Program, budget, and allocate funds and other resources for FAP, and ensure that such funds are only used to implement the policies described in § 61.6 of this subpart.
(b) Under the authority, direction, and control of the USD(P&R), the Assistant Secretary of Defense for Readiness and Force Management (ASD(R&FM)) or designee will review FAP instructions and policies prior to USD(P&R) signature.
(c) Under the authority, direction, and control of the USD(P&R) through the ASD(R&FM), the Deputy Assistant Secretary of Defense for Military Community and Family Policy (DASD(MC&FP)) will:
(1) Develop DoD-wide FAP policy, coordinate the management of FAP with other programs serving military families, collaborate with federal and State agencies addressing FAP issues, and serve on intra-governmental advisory committees that address FAP-related issues.
(2) Ensure that the information included in notifications of extra-familial child sexual abuse in DoD-sanctioned activities is retained for 1 month from the date of the initial report to determine whether a request for a FACAT in accordance with DoD Instruction 6400.03, “Family Advocacy Command Assistance Team” (available at http://www.dtic.mil/whs/directives/corres/pdf/640003p.pdf) may be forthcoming.
(3) Monitor and evaluate compliance with this subpart.
(4) Review annual summaries of accreditation/inspection reviews submitted by the Military Departments.
(5) Convene an annual DoD Accreditation/Inspection Review Summit to review and respond to the findings and recommendations of the Military Departments' accreditation/inspection reviews.
(d) The Secretaries of the Military Departments will:
(1) Establish DoD Component policy and guidance on the development of FAPs, including case management and monitoring of the FAP consistent with 10 U.S.C. 1058(b), this subpart, and published FAP guidance, including DoD Instruction 6400.06 and DoD 6400.1-M, “Family Advocacy Program Standards and Self-Assessment Tool” (available at http://www.dtic.mil/whs/directives/corres/pdf/640001m.pdf).
(2) Designate a FAPM to manage the FAP. The FAPM will have, at a minimum:
(i) A masters or doctoral level degree in the behavioral sciences from an accredited U.S. university or college.
(ii) The highest licensure in good standing by a State regulatory board in either social work, psychology, or marriage and family therapy that authorizes independent clinical practice.
(iii) 5 years of post-license experience in child abuse and domestic abuse.
(iv) 3 years of experience supervising licensed clinicians in a clinical program.
(3) Coordinate efforts and resources among all activities serving families to promote the optimal delivery of services and awareness of FAP services.
(4) Establish standardized criteria, consistent with DoD Instruction 6025.13, “Medical Quality Assurance (MQA) and Clinical Quality Management in the Military Health System (MHS)” (available at http://www.dtic.mil/whs/directives/corres/pdf/602513p.pdf) and DoD 6025.13-R, “Military Health System (MHS) Clinical Quality Assurance (CQA) Program” (available at http://www.dtic.mil/whs/directives/corres/pdf/602513r.pdf), for selecting and certifying FAP healthcare and social service personnel who provide clinical services to individuals and families. Such staff will be designated as healthcare providers who may receive restricted reports from victims of domestic abuse as set forth in DoD Instruction 6400.06.
(5) Establish a process for an annual summary of installation accreditation/inspection reviews of installation FAP.
(6) Ensure that installation commanders or Service-equivalent senior commanders or their designees:
(i) Appoint persons at the installation level to manage and implement the local FAPs, establish local FACs, and appoint the members of IDCs in accordance with DoD 6400.1-M and supporting guidance issued by the USD(P&R).
(ii) Ensure that the installation FAP meets the standards in DoD 6400.1-M.
(iii) Ensure that the installation FAP immediately reports allegations of a crime to the appropriate law enforcement authority.
(7) Notify the DASD(MC&FP) of any cases of extra-familial child sexual abuse in a DoD-sanctioned activity within 72 hours in accordance with the procedures in § 61.6 of this subpart.
(8) Submit accurate quarterly child abuse and domestic abuse incident data from the DoD Component FAP central registry of child abuse and domestic abuse incidents to the Director of the Defense Manpower Data Center in accordance with DoD 6400.1-M-1, “Manual for Child Maltreatment and Domestic Abuse Incident Reporting System” (available at http://www.dtic.mil/whs/directives/corres/pdf/640001m1.pdf).
(9) Submit reports of DoD-related fatalities known or suspected to have resulted from an act of domestic abuse; child abuse; or suicide related to an act of domestic abuse or child abuse on DD Form 2901, “Child Abuse or Domestic Violence Related Fatality Notification,” by fax to the number provided on the form in accordance with DoD Instruction 6400.06 or by other method as directed by the DASD(MC&FP). The DD Form 2901 can be found at http://www.dtic.mil/whs/directives/infomgt/forms/formsprogram.htm.
(10) Ensure that fatalities known or suspected to have resulted from acts of child abuse or domestic violence are reviewed annually in accordance with DoD Instruction 6400.06.
(11) Ensure the annual summary of accreditation/inspection reviews of installation FAPs are forwarded to OSD FAP as directed by DASD(MC&FP).
(12) Provide essential data and program information to the USD(P&R) to enable the monitoring and evaluation of compliance with this subpart in accordance with DoD 6400.1-M-1.
(13) Ensure that PII collected in the course of FAP activities is safeguarded to prevent any unauthorized use or disclosure and that the collection, use, and release of PII is in compliance with 5 U.S.C. 552a, also known as “The Privacy Act of 1974,” as implemented in the DoD by 32 CFR part 310).
§ 61.6
Procedures.
(a) FAP Elements. FAP requires prevention, education, and training efforts to make all personnel aware of the scope of child abuse and domestic abuse problems and to facilitate cooperative efforts. The FAP will include:
(1) Prevention. Efforts to prevent child abuse and domestic abuse, including public awareness, information and education about the problem in general, and the NPSP, in accordance with DoD Instruction 6400.05, specifically directed toward potential victims, offenders, non-offending family members, and mandated reporters of child abuse and neglect.
(2) Direct Services. Identification, treatment, counseling, rehabilitation, follow-up, and other services, directed toward the victims, their families, perpetrators of abuse, and their families. These services will be supplemented locally by:
(i) A multidisciplinary IDC established to assess incidents of alleged abuse and make incident status determinations.
(ii) A clinical case staff meeting (CCSM) to make recommendations for treatment and case management.
(3) Administration. All services, logistical support, and equipment necessary to ensure the effective and efficient operation of the FAP, including:
(i) Developing local memorandums of understanding with civilian authorities for reporting cases, providing services, and defining responsibilities when responding to child abuse and domestic abuse.
(ii) Use of personal service contracts to accomplish program goals.
(iii) Preparation of reports, consisting of incidence data.
(4) Evaluation. Needs assessments, program evaluation, research, and similar activities to support the FAP.
(5) Training. All educational measures, services, supplies, or equipment used to prepare or maintain the skills of personnel working in the FAP.
(b) Responding to FAP Incidents. The USD(P&R) or designee will establish procedures for:
(1) Reporting and responding to suspected child abuse consistent with 10 U.S.C. 1787 and 1794, 42 U.S.C. 13031, and 28 CFR part 81.
(2) Providing victim advocacy services to victims of domestic abuse consistent with DoD Instruction 6400.06 and section 534(d)(2) of Public Law 103-337, “National Defense Authorization Act for Fiscal Year 1995.”
(3) Responding to restricted and unrestricted reports of domestic abuse consistent with DoD Instruction 6400.06 and 10 U.S.C. 1058(b).
(4) Collection of FAP data into a central registry and analysis of such data in accordance with DoD 6400.1-M-1.
(5) Coordinating a comprehensive DoD response, including the FACAT, to allegations of extra-familial child sexual abuse in a DoD-sanctioned activity in accordance with DoD Instruction 6400.03 and 10 U.S.C. 1794.
(c) Notification of Extra-Familial Child Sexual Abuse in DoD-Sanctioned Activities. The names of the victim(s) and alleged abuser(s) will not be included in the notification. Notification will include:
(1) Name of the installation.
(2) Type of child care setting.
(3) Number of children alleged to be victims.
(4) Estimated number of potential child victims.
(5) Whether an installation response team is being convened to address the investigative, medical, and public affairs issues that may be encountered.
(6) Whether a request for the DASD(MC&FP) to deploy a FACAT in accordance with DoD Instruction 6400.03 is being considered.

Subpart B—FAP Standards

Authority:
5 U.S.C. 552a, 10 U.S.C. chapter 47, 42 U.S.C. 13031.
§ 61.7
Purpose.
(a) This part is composed of several subparts, each containing its own purpose. The purpose of the overall part is to implement policy, assign responsibilities, and provide procedures for addressing child abuse and domestic abuse in military communities.
(b) This subpart prescribes uniform program standards (PSs) for all installation FAPs.
§ 61.8
Applicability.
This subpart applies to OSD, the Military Departments, 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 DoD (referred to collectively in this subpart as the “DoD Components”).
§ 61.9
Definitions.
Unless otherwise noted, the following terms and their definitions are for the purposes of this subpart.
Alleged abuser. Defined in subpart A of this part.
Case. One or more reported incidents of suspected child abuse or domestic abuse pertaining to the same victim.
Clinical case staff meeting (CCSM). An installation FAP meeting of clinical service providers to assist the coordinated delivery of supportive services and clinical treatment in child abuse and domestic abuse cases, as appropriate. They provide: clinical consultation directed to ongoing safety planning for the victim; the planning and delivery of supportive services, and clinical treatment, as appropriate, for the victim; the planning and delivery of rehabilitative treatment for the alleged abuser; and case management, including risk assessment and ongoing safety monitoring.
Child. Defined in subpart A of this part.
Child abuse. The physical or sexual abuse, emotional abuse, or neglect of a child by a parent, guardian, foster parent, or by a caregiver, whether the caregiver is intrafamilial or extrafamilial, under circumstances indicating the child's welfare is harmed or threatened. Such acts by a sibling, other family member, or other person shall be deemed to be child abuse only when the individual is providing care under express or implied agreement with the parent, guardian, or foster parent.
Clinical case management. The FAP process of providing or coordinating the provision of clinical services, as appropriate, to the victim, alleged abuser, and family member in each FAP child abuse and domestic abuse incident from entry into until exit from the FAP system. It includes identifying risk factors; safety planning; conducting and monitoring clinical case assessments; presentation to the Incident Determination Committee (IDC); developing and implementing treatment plans and services; completion and maintenance of forms, reports, and records; communication and coordination with relevant agencies and professionals on the case; case review and advocacy; case counseling with the individual victim, alleged abuser, and family member, as appropriate; other direct services to the victim, alleged abuser, and family members, as appropriate; and case transfer or closing.
Clinical intervention. A continuous risk management process that includes identifying risk factors, safety planning, initial clinical assessment, formulation of a clinical treatment plan, clinical treatment based on assessing readiness for and motivating behavioral change and life skills development, periodic assessment of behavior in the treatment setting, and monitoring behavior and periodic assessment of outside-of-treatment settings.
Domestic abuse. Domestic violence or a pattern of behavior resulting in emotional/psychological abuse, economic control, and/or interference with personal liberty that is directed toward a person who is:
(1) A current or former spouse.
(2) A person with whom the abuser shares a child in common; or
(3) A current or former intimate partner with whom the abuser shares or has shared a common domicile.
Domestic violence. An offense under the United States Code, the Uniform Code of Military Justice (UCMJ), or State law involving the use, attempted use, or threatened use of force or violence against a person, or a violation of a lawful order issued for the protection of a person who is:
(1) A current or former spouse.
(2) A person with whom the abuser shares a child in common; or
(3) A current or former intimate partner with whom the abuser shares or has shared a common domicile.
Family Advocacy Committee (FAC). Defined in subpart A of this part.
Family Advocacy Command Assistance Team (FACAT). Defined in subpart A of this part.
Family Advocacy Program (FAP). Defined in subpart A of this part.
High risk for violence. A level of risk describing families or individuals experiencing severe abuse or the potential for severe abuse, or offenders engaging in high risk behaviors such as making threats to cause grievous bodily harm, preventing victim access to communication devices, stalking, etc. Such cases require coordinated community safety planning that actively involves installation law enforcement, command, legal, and FAP.
Home visitation. A strategy for delivering services to parents in their homes to improve child and family functioning.
Home visitor. A person who provides FAP services to promote child and family functioning to parents in their homes.
IDC. Defined in subpart A of this part.
Installation. Any more or less permanent post, camp, station, base for the support or carrying on of military activities.
Installation Family Advocacy Program Manager (FAPM). The individual at the installation level designated by the installation commander in accordance with Service FAP headquarters implementing guidance to manage the FAP, supervise FAP staff, and coordinate all FAP activities. If the Service FAP headquarters implementing guidance assigns the responsibilities of the local FAPM between two individuals, the FAPM is the individual who has been assigned the responsibility for implementing the specific procedure.
NPSP. A standardized secondary prevention program under the FAP that delivers intensive, voluntary, strengths based home visitation services designed specifically for expectant parents and parents of children from birth to 3 years of age to reduce the risk of child abuse and neglect.
Non-DoD eligible extrafamilial caregiver. A caregiver who is not sponsored or sanctioned by the DoD. It includes nannies, temporary babysitters certified by the Red Cross, and temporary babysitters in the home, and other non-DoD eligible family members who provide care for or supervision of children.
Non-medical counseling. Short term, non-therapeutic counseling that is not appropriate for individuals needing clinical therapy. Non-medical counseling is supportive in nature and addresses general conditions of living, life skills, improving relationships at home and at work, stress management, adjustment issues (such as those related to returning from a deployment), marital problems, parenting, and grief and loss. This definition is not intended to limit the authority of the Military Departments to grant privileges to clinical providers modifying this scope of care consistent with current Military Department policy.
Out-of-home care. The responsibility of care for and/or supervision of a child in a setting outside the child's home by an individual placed in a caretaker role sanctioned by a Military Service or Defense Agency or authorized by the Service or Defense Agency as a provider of care, such as care in a child development center, school, recreation program, or family child care. part.
Primary managing authority (PMA). The installation FAP that has primary authority and responsibility for the management and incident status determination of reports of child abuse and unrestricted reports of domestic abuse.
Restricted reporting. Defined in subpart A of this part.
Risk management. The process of identifying risk factors associated with increased risk for child abuse or domestic abuse, and controlling those factors that can be controlled through collaborative partnerships with key military personnel and civilian agencies, including the active duty member's commander, law enforcement personnel, child protective services, and victim advocates. It includes the development and implementation of an intervention plan when significant risk of lethality or serious injury is present to reduce the likelihood of future incidents and to increase the victim's safety, continuous assessment of risk factors associated with the abuse, and prompt updating of the victim's safety plan, as needed.
Safety planning. A process whereby a victim advocate, working with a domestic abuse victim, creates a plan, tailored to that victim's needs, concerns, and situation, that will help increase the victim's safety and help the victim to prepare for, and potentially avoid, future violence.
Service FAP headquarters. The office designated by the Secretary of the Military Department to develop and issue Service FAP implementing guidance in accordance with DoD policy, manage the Service-level FAP, and provide oversight for Service FAP functions.
Unrestricted reporting. Defined in subpart A of this part.
Victim. A child or current or former spouse or intimate partner who is the subject of an alleged incident of child maltreatment or domestic abuse because he/she was allegedly maltreated by the alleged abuser.
Victim advocate. An employee of the Department of Defense, a civilian working under contract for the Department of Defense, or a civilian providing services by means of a formal memorandum of understanding between a military installation and a local victim advocacy service agency, whose role is to provide safety planning services and comprehensive assistance and liaison to and for victims of domestic abuse, and to educate personnel on the installation regarding the most effective responses to domestic abuse on behalf of victims and at-risk family members. The advocate may also be a volunteer military member, a volunteer civilian employee of the Military Department, or staff assigned as collateral duty.
§ 61.10
Policy.
According to subpart A of this part, it is DoD policy to:
(a) Promote early identification; reporting; and coordinated, comprehensive intervention, assessment, and support to victims of child abuse and domestic abuse.
(b) Ensure that personally identifiable information (PII) collected in the course of FAP activities is safeguarded to prevent any unauthorized use or disclosure and that the collection, use, and release of PII is in compliance with 5 U.S.C. 552a.
§ 61.11
Responsibilities.
(a) Under the authority, direction, and control of the USD(P&R) through the Assistant Secretary of Defense for Readiness and Force Management, the Deputy Assistant Secretary of Defense for Military Community and Family Policy (DASD(MC&FP)):
(1) Monitors compliance with this subpart.
(2) Collaborates with the Secretaries of the Military Departments to develop policies and procedures for monitoring compliance with the PSs in § 61.12 of this subpart.
(3) Convenes an annual DoD Accreditation and Inspection Summit to review and respond to the findings and recommendations of the Military Departments' accreditation or inspection results.
(b) The Secretaries of the Military Departments:
(1) Develop Service-wide FAP policy, supplementary standards, and instructions to provide for unique requirements within their respective installation FAPs to implement the PSs in this subpart as appropriate.
(2) Require all installation personnel with responsibilities in this subpart receive appropriate training to implement the PSs in § 61.12 of this subpart.
(3) Conduct accreditation and inspection reviews outlined in § 61.12 of this subpart.
§ 61.12
Procedures.
(a) Purposes of the standards—(1) Quality Assurance (QA) to address child abuse and domestic abuse. The FAP PSs provide DoD and Service FAP headquarters QA guidelines for installation FAP-sponsored prevention and clinical intervention programs. Therefore, the PSs presented in this section and cross referenced in the Index of FAP Topics in the Appendix to § 61.12 represent the minimal necessary elements for effectively dealing with child abuse and domestic abuse in installation programs in the military community.
(2) Minimum requirements for oversight, management, logistical support, procedures, and personnel requirements. The PSs set forth minimum requirements for oversight, management, logistical support, procedures, and personnel requirements necessary to ensure all military personnel and their family members receive family advocacy services from the installation FAPs equal in quality to the best programs available to their civilian peers.
(3) Measuring quality and effectiveness. The PSs provide a basis for measuring the quality and effectiveness of each installation FAP and for systematically projecting fiscal and personnel resources needed to support worldwide DoD FAP efforts.
(b) Installation response to child abuse and domestic abuse—(1) FAC—(i) PS 1: Establishment of the FAC. The installation commander must establish an installation FAC and appoint a FAC chairperson in accordance with subpart A of this part and Service FAP headquarters implementing policies and guidance to serve as the policy-making, coordinating, and advisory body to address child abuse and domestic abuse at the installation.
(ii) PS 2: Coordinated community response and risk management plan. The FAC must develop and approve an annual plan for the coordinated community response and risk management of child abuse and domestic abuse, with specific objectives, strategies, and measurable outcomes.
The plan is based on a review of:
(A) The most recent installation needs assessment.
(B) Research-supported protective factors that promote and sustain healthy family relationships.
(C) Risk factors for child abuse and domestic abuse.
(D) The most recent prevention strategy to include primary, secondary, and tertiary interventions.
(E) Trends in the installation's risk management approach to high risk for violence, child abuse, and domestic abuse.
(F) The most recent accreditation review or DoD Component Inspector General inspection of the installation agencies represented on the FAC.
(G) The evaluation of the installation's coordinated community response to child abuse and domestic abuse.
(iii) PS 3: Monitoring coordinated community response and risk management plan. The FAC monitors the implementation of the coordinated community response and risk management plan. Such monitoring includes a review of:
(A) The development, signing, and implementation of formal memorandums of understanding (MOUs) among military activities and between military activities and civilian authorities and agencies to address child abuse and domestic abuse.
(B) Steps taken to address problems identified in the most recent accreditation review of the FAP and evaluation of the installation's coordinated community response and risk management approach.
(C) FAP recommended criteria to identify populations at higher risk to commit or experience child abuse and domestic abuse, the special needs of such populations, and appropriate actions to address those needs.
(D) Effectiveness of the installation coordinated community response and risk management approach in responding to high risk for violence, child abuse, and domestic abuse incidents.
(E) Implementation of the installation prevention strategy to include primary, secondary, and tertiary interventions.
(F) The annual report of fatality reviews that Service FAP headquarters fatality review teams conduct. The FAC should also review the Service FAP headquarters' recommended changes for the coordinated community response and risk management approach. The coordinated community response will focus on strengthening protective factors that promote and sustain healthy family relationships and reduce the risk factors for future child abuse and domestic abuse-related fatalities.
(2) Coordinated Community Response—(i) PS 4: Roles, functions, and responsibilities. The FAC must ensure that all installation agencies involved with the coordinated community response to child abuse and domestic abuse comply with the defined roles, functions, and responsibilities in DoD Instruction 6400.06 and the Service FAP headquarters implementing policies and guidance.
(ii) PS 5: MOUs. The FAC must verify that:
(A) Formal MOUs are established as appropriate with counterparts in the local civilian community to improve coordination on: Child abuse and domestic abuse investigations; emergency removal of children from homes; fatalities; arrests; prosecutions; and orders of protection involving military personnel.
(B) Installation agencies established MOUs setting forth the respective roles and functions of the installation and the appropriate federal, State, local, or foreign agencies or organizations (in accordance with status-of-forces agreements (SOFAs)) that provide:
(1) Child welfare services, including foster care, to ensure ongoing and active collaborative case management between the respective courts, child protective services, foster care agencies, and FAP.
(2) Medical examination and treatment.
(3) Mental health examination and treatment.
(4) Domestic abuse victim advocacy.
(5) Related social services, including State home visitation programs when appropriate.
(6) Safety shelter.
(iii) PS 6: Collaboration between military installations. The installation commander must require that installation agencies have collaborated with counterpart agencies on military installations in geographical proximity and on joint bases to ensure coordination and collaboration in providing child abuse and domestic abuse services to military families. Collaboration includes developing MOUs, as appropriate.
(iv) PS 7: Domestic abuse victim advocacy services. The installation FAC must establish 24 hour access to domestic abuse victim advocacy services through personal or telephone contact in accordance with DoD Instruction 6400.06 and Service FAP headquarters implementing policy and guidance for restricted reports of domestic abuse and the domestic abuse victim advocate services.
(v) PS 8: Domestic abuse victim advocate personnel requirements. The installation commander must require that qualified personnel provide domestic abuse victim advocacy services in accordance with DoD Instruction 6400.06 and Service FAP headquarters implementing policy and guidance.
(A) Such personnel may include federal employees, civilians working under contract for the DoD, civilians providing services through a formal MOU between the installation and a local civilian victim advocacy service agency, volunteers, or a combination of such personnel.
(B) All domestic abuse victim advocates are supervised in accordance with Service FAP headquarters policies.
(vi) PS 9: 24-hour emergency response plan. An installation 24-hour emergency response plan to child abuse and domestic abuse incidents must be established in accordance with DoD Instruction 6400.06 and the Service FAP headquarters implementing policies and guidance.
(vii) PS 10: FAP Communication with military law enforcement. The FAP and military law enforcement reciprocally provide to one another:
(A) Within 24 hours, FAP will communicate all reports of child abuse involving military personnel or their family members to the appropriate civilian child protective services agency or law enforcement agency in accordance with subpart A of this part, 42 U.S.C. 13031, and 28 CFR 81.2.
(B) Within 24 hours, FAP will communicate all unrestricted reports of domestic abuse involving military personnel and their current or former spouses or their current or former intimate partners to the appropriate civilian law enforcement agency in accordance with subpart A of this part, 42 U.S.C. 13031, and 28 CFR 81.2.
(viii) PS 11: Protection of children. The installation FAC in accordance with Service FAP headquarters implementing policies and guidance must set forth the procedures and criteria for:
(A) The safety of child victim(s) of abuse or other children in the household when they are in danger of continued abuse or life-threatening child neglect.
(B) Safe transit of such child(ren) to appropriate care. When the installation is located outside the continental United States, this includes procedures for transit to a location of appropriate care within the United States.
(C) Ongoing collaborative case management between FAP, relevant courts, and child welfare agencies when military children are placed in civilian foster care.
(D) Notification of the affected Service member's command when a dependent child has been taken into custody or foster care by local or State courts, or child welfare or protection agencies.
(3) Risk Management—(i) PS 12: PMA. When an installation FAP receives a report of a case of child abuse or domestic abuse in which the victim is at a different location than the abuser, PMA for the case must be:
(A) In child abuse cases:
(1) The sponsor's installation when the alleged abuser is the sponsor; a non-sponsor DoD-eligible family member; or a non-sponsor, status unknown.
(2) The alleged abuser's installation when the alleged abuser is a non-sponsor active duty Service member; a non-sponsor, DoD-eligible extrafamilial caregiver; or a DoD-sponsored out-of-home care provider.
(3) The victim's installation when the alleged abuser is a non-DoD-eligible extrafamilial caregiver.
(B) In domestic abuse cases:
(1) The alleged abuser's installation when both the alleged abuser and the victim are active duty Service members.
(2) The alleged abuser's installation when the alleged abuser is the only sponsor.
(3) The victim's installation when the victim is the only sponsor.
(4) The installation FAP who received the initial referral when both parties are alleged abusers in bi-directional domestic abuse involving dual military spouses or intimate partners.
(ii) PS 13: Risk management approach—(A) All installation agencies involved with the installation's coordinated community risk management approach to child abuse and domestic abuse must comply with their defined roles, functions, and responsibilities in accordance with 42 U.S.C. 13031 and 28 CFR 81.2 and Service FAP headquarters implementing policies and guidance.
(B) When victim(s) and abuser(s) are assigned to different servicing FAPs or are from different Services, the PMA is assigned according to PS 12 (paragraph (b)(3)(i) of this section), and both serving FAP offices and Services are kept informed of the status of the case, regardless of who has PMA.
(iii) PS 14: Risk assessments. FAP conducts risk assessments of alleged abusers, victims, and other family members to assess the risk of re-abuse, and communicate any increased levels of risk to appropriate agencies for action, as appropriate. Risk assessments are conducted:
(A) At least quarterly on all open FAP cases.
(B) Monthly on FAP cases assessed as high risk and those involving court involved children placed in out-of-home care, child sexual abuse, and chronic child neglect.
(C) Within 30 days of any change since the last risk assessment that presents increased risk to the victim or warrants additional safety planning.
(iv) PS 15: Disclosure of information in risk assessments. Protected information collected during FAP referrals, intake, and risk assessments is only disclosed in accordance with DoD 6025.18-R, “DoD Health Information Privacy Regulation” (available at http://www.dtic.mil/whs/directives/corres/pdf/602518r.pdf) when applicable, 32 CFR part 310, and the Service FAP headquarters implementing policies and guidance.
(v) PS 16: Risk management and deployment. Procedures are established to manage child abuse and domestic abuse incidents that occur during the deployment cycle of a Service member, in accordance with subpart A of this part and DoD Instruction 6400.06, and Service FAP headquarters implementing policies and guidance, so that when an alleged abuser Service member in an active child abuse or domestic abuse case is deployed:
(A) The forward command notifies the home station command when the deployed Service member will return to the home station command.
(B) The home station command implements procedures to reduce the risk of subsequent child abuse and domestic abuse during the reintegration of the Service member into the FAP case management process.
(4) IDC—(i) PS 17: IDC established. An installation IDC must be established to review reports of child abuse and unrestricted reports of domestic abuse.
(ii) PS 18: IDC operations. The IDC reviews reports of child abuse and unrestricted reports of domestic abuse to determine whether the reports meet the criteria for entry into the Service FAP headquarters central registry of child abuse and domestic abuse incidents in accordance with subpart A of this part and Service FAP headquarters implementing policies and guidance.
(iii) PS 19: Responsibility for training FAC and IDC members. All FAC and IDC members must receive:
(A) Training on their roles and responsibilities before assuming their positions on their respective teams.
(B) Periodic information and training on DoD policies and Service FAP headquarters policies and guidance.
(iv) PS 20: IDC QA. An IDC QA process must be established for monitoring and QA review of IDC decisions in accordance with Service FAP headquarters implementing policy and guidance.
(c) Organization and management of the FAP—(1) General organization of the FAP—(i) PS 21: Establishment of the FAP. The installation commander must establish a FAP to address child abuse and domestic abuse in accordance with DoD policy and Service FAP headquarters implementing policies and guidance.
(ii) PS 22: Operations policy. The installation FAC must ensure coordination among the following key agencies interacting with the FAP in accordance with subpart A of this part and Service FAP headquarters implementing policies and guidance:
(A) Family center(s).
(B) Substance abuse program(s).
(C) Sexual assault and prevention response programs.
(D) Child and youth program(s).
(E) Program(s) that serve families with special needs.
(F) Medical treatment facility, including:
(1) Mental health and behavioral health personnel.
(2) Social services personnel.
(3) Dental personnel.
(G) Law enforcement.
(H) Criminal investigative organization detachment.
(I) Staff judge advocate or servicing legal office.
(J) Chaplain(s).
(K) Department of Defense Education Activity (DoDEA) school personnel.
(L) Military housing personnel.
(M) Transportation office personnel.
(iii) PS 23: Appointment of an installation FAPM. The installation commander must appoint in writing an installation FAPM to implement and manage the FAP. The FAPM must direct the development, oversight, coordination, administration, and evaluation of the installation FAP in accordance with subpart A of this part and Service FAP headquarters implementing policy and guidance.
(iv) PS 24: Funding. Funds received for child abuse and domestic abuse prevention and treatment activities must be programmed and allocated in accordance with the DoD and Service FAP headquarters implementing policies and guidance, and the plan developed under PS 3, described in paragraph (b)(1)(ii) of this section.
(A) Funds that OSD provides for the FAP must be used in direct support of the prevention and intervention for domestic abuse and child maltreatment; including management, staffing, domestic abuse victim advocate services, public awareness, prevention, training, intensive risk-focused secondary prevention services, intervention, record keeping, and evaluation as set forth in this subpart.
(B) Funds that OSD provides for the NPSP must be used only for secondary prevention activities to support the screening, assessment, and provision of home visitation services to prevent child abuse and neglect in vulnerable families in accordance with DoD Instruction 6400.05.
(v) PS 25: Other resources. FAP services must be housed and equipped in a manner suitable to the delivery of services, including but not limited to:
(A) Adequate telephones.
(B) Office automation equipment.
(C) Handicap accessible.
(D) Access to emergency transport.
(E) Private offices and rooms available for interviewing and counseling victims, alleged abusers, and other family members in a safe and confidential setting.
(F) Appropriate equipment for 24/7 accessibility.
(2) FAP personnel—(i) PS 26: Personnel requirements. The installation commander is responsible for ensuring there are a sufficient number of qualified FAP personnel in accordance with subpart A of this part, DoD Instruction 6400.06, and DoD Instruction 6400.05, and Service FAP headquarters implementing policy and guidance. FAP personnel may consist of military personnel on active duty, employees of the federal civil service, contractors, volunteers, or a combination of such personnel.
(ii) PS 27: Criminal history record check. All FAP personnel whose duties involve services to children require a criminal history record check in accordance with DoD Instruction 1402.5, “Criminal History Background Checks on Individuals in Child Care Services” (available at http://www.dtic.mil/whs/directives/corres/pdf/140205p.pdf).
(iii) PS 28: Clinical staff qualifications. All FAP personnel who conduct clinical assessment of or provide clinical treatment to victims of child abuse or domestic abuse, alleged abusers, or their family members must have all of the following minimum qualifications:
(A) A Master in Social Work, Master of Science, Master of Arts, or doctoral-level degree in human service or mental health from an accredited university or college.
(B) The highest licensure in a State or clinical licensure in good standing in a State that authorizes independent clinical practice.
(C) Two years of experience working in the field of child abuse and domestic abuse.
(D) Clinical privileges or credentialing in accordance with Service FAP headquarters policies.
(iv) PS 29: Prevention and Education Staff Qualifications. All FAP personnel who provide prevention and education services must have the following minimum qualifications:
(A) A Bachelor's degree from an accredited university or college in any of the following disciplines:
(1) Social work.
(2) Psychology.
(3) Marriage, family, and child counseling.
(4) Counseling or behavioral science.
(5) Nursing.
(6) Education.
(7) Community health or public health.
(B) Two years of experience in a family and children's services public agency or family and children's services community organization, 1 year of which is in prevention, intervention, or treatment of child abuse and domestic abuse.
(C) Supervision by a qualified staff person in accordance with the Service FAP headquarters policies.
(v) PS 30: Victim advocate staff qualifications. All FAP personnel who provide victim advocacy services must have these minimum qualifications:
(A) A Bachelor's degree from an accredited university or college in any of the following disciplines:
(1) Social work.
(2) Psychology.
(3) Marriage, family, and child counseling.
(4) Counseling or behavioral science.
(5) Criminal justice.
(B) Two years of experience in assisting and providing advocacy services to victims of domestic abuse or sexual assault.
(C) Supervision by a Master's level social worker.
(vi) PS 31: NPSP staff qualifications. All FAP personnel who provide services in the NPSP must have qualifications in accordance with DoD Instruction 6400.05.
(3) Safety and home visits—(i) PS 32: Internal and external duress system established. The installation FAPM must establish a system to identify and manage potentially violent clients and to promote the safety and reduce the risk of harm to staff working with clients and to others inside the office and when conducting official business outside the office.
(ii) PS 33: Protection of home visitors. The installation FAPM must:
(A) Issue written FAP procedures to ensure minimal risk and maximize personal safety when FAP or NPSP staff perform home visits.
(B) Require that all FAP and NPSP personnel who conduct home visits are trained in FAP procedures to ensure minimal risk and maximize personal safety before conducting a home visit.
(iii) PS 34: Home visitors' reporting of known or suspected child abuse and domestic abuse. All FAP and NPSP personnel who conduct home visits are to report all known or suspected child abuse in accordance with subpart A of this part and 42 U.S.C. 13031, and domestic abuse in accordance with DoD Instruction 6400.06 and the Service FAP headquarters implementing policy and guidance.
(4) Management information system—(i) PS 35: Management information system policy. The installation FAPM must establish procedures for the collection, use, analysis, reporting, and distributing of FAP information in accordance with subpart A of this part, DoD 6025.18-R, 32 CFR part 310, DoD 6400.1-M-1 and Service FAP headquarters implementing policy. These procedures ensure:
(A) Accurate and comparable statistics needed for planning, implementing, assessing, and evaluating the installation coordinated community response to child abuse and domestic abuse.
(B) Identifying unmet needs or gaps in services.
(C) Determining installation FAP resource needs and budget.
(D) Developing installation FAP guidance.
(E) Administering the installation FAP.
(F) Evaluating installation FAP activities.
(ii) PS 36: Reporting of statistics. The FAP reports statistics annually to the Service FAP headquarters in accordance with subpart A of this part and the Service FAP headquarters implementing policies and guidance, including the accurate and timely reporting of:
(A) FAP metrics—(1) The number of new commanders at the installation whom the Service FAP headquarters determined must receive the FAP briefing, and the number of new commanders who received the FAP briefing within 90 days of taking command.
(2) The number of senior noncommissioned officers (NCOs) in pay grades E-7 and higher whom the Service FAP headquarters determined must receive the FAP briefing annually, and the number of senior NCOs who received the FAP briefing within the year.
(B) NPSP metric—(1) The number of high risk families who began receiving NPSP intensive services (two contacts per month) for at least 6 months in the previous fiscal year.
(2) The number of these families with no reports of child maltreatment incidents that met criteria for abuse for entry into the central registry (formerly, “substantiated reports”) within 12 months after their NPSP services ended, in accordance with DoD Instruction 6400.05.
(C) Domestic abuse treatment metric—(1) The number of allegedly abusive spouses in incidents that met FAP criteria for domestic abuse who began receiving and successfully completed FAP clinical treatment services during the previous fiscal year.
(2) The number of these spouses who were not reported as allegedly abusive in any domestic abuse incidents that met FAP criteria within 12 months after FAP clinical services ended.
(D) Domestic abuse victim advocacy metrics. The number of domestic abuse victims:
(1) Who receive domestic abuse victim advocacy services, and of those, the respective totals of domestic abuse victims who receive such services from domestic abuse victim advocates or from FAP clinical staff.
(2) Who initially make restricted reports to domestic abuse victim advocates and the total of domestic abuse victims who initially make restricted reports to FAP clinical staff, and of each of those, the total of domestic abuse victims who report being sexually assaulted.
(3) Whose initially restricted reports to domestic abuse victim advocates became unrestricted reports, and the total of domestic abuse victims whose initially restricted reports to FAP clinical staff became unrestricted reports.
(4) Initially making unrestricted reports to domestic abuse victim advocates and making unrestricted reports to FAP clinical staff and, of each of those, the total of domestic abuse victims who report being sexually assaulted.
(d) Public awareness, prevention, NPSP, and training—(1) Public awareness activities—(i) PS 37: Implementation of public awareness activities in the coordinated community response and risk management plan. The FAP public awareness activities highlight community strengths; promote FAP core concepts and messages; advertise specific services; use appropriate available techniques to reach out to the military community, especially to military families who reside outside of the military installation; and are customized to the local population and its needs.
(ii) PS 38: Collaboration to increase public awareness of child abuse and domestic abuse. The FAP partners and collaborates with other military and civilian organizations to conduct public awareness activities.
(iii) PS 39: Components of public awareness activities. The installation public awareness activities promote community awareness of:
(A) Protective factors that promote and sustain healthy parent/child relationships.
(1) The importance of nurturing and attachment in the development of young children.
(2) Infant, childhood, and teen development.
(3) Programs, strategies, and opportunities to build parental resilience.
(4) Opportunities for social connections and mutual support.
(5) Programs and strategies to facilitate children's social and emotional development.
(6) Information about access to community resources in times of need.
(B) The dynamics of risk factors for different types of child abuse and domestic abuse, including information for teenage family members on teen dating violence.
(C) Developmentally appropriate supervision of children.
(D) Creating safe sleep environments for infants.
(E) How incidents of suspected child abuse should be reported in accordance with subpart A of this part, 42 U.S.C. 13031, 28 CFR 81.2, and DoD Instruction 6400.03, “Family Advocacy Command Assistance Team” (available at http://www.dtic.mil/whs/directives/corres/pdf/640003p.pdf) and the Service FAP headquarters implementing policy and guidance.
(F) The availability of domestic abuse victim advocates.
(G) Hotlines and crisis lines that provide 24/7 support to families in crisis.
(H) How victims of domestic abuse may make restricted reports of incidents of domestic abuse in accordance with DoD Instruction 6400.06.
(I) The availability of FAP clinical assessment and treatment.
(J) The availability of NPSP home visitation services.
(K) The availability of transitional compensation for victims of child abuse and domestic abuse in accordance with DoD Instruction 1342.24, “Transitional Compensation for Abused Dependents” (available at http://www.dtic.mil/whs/directives/corres/pdf/134224p.pdf) and Service FAP headquarters implementing policy and guidance.
(2) Prevention activities—(i) PS 40: Implementation of prevention activities in the coordinated community response and risk management plan. The FAP implements coordinated child abuse and domestic abuse primary and secondary prevention activities identified in the annual plan.
(ii) PS 41: Collaboration for prevention of child abuse and domestic abuse. The FAP collaborates with other military and civilian organizations to implement primary and secondary child abuse and domestic abuse prevention programs and services that are available on a voluntary basis to all persons eligible for services in a military medical treatment facility.
(iii) PS 42: Primary prevention activities. Primary prevention activities include, but are not limited to:
(A) Information, classes, and non-medical counseling as defined in § 61.3 to assist Service members and their family members in strengthening their interpersonal relationships and marriages, in building their parenting skills, and in adapting successfully to military life.
(B) Proactive outreach to identify and engage families during pre-deployment, deployment, and reintegration to decrease the negative effects of deployment and other military operations on parenting and family dynamics.
(C) Family strengthening programs and activities that facilitate social connections and mutual support, link families to services and opportunities for growth, promote children's social and emotional development, promote safe, stable, and nurturing relationships, and encourage parental involvement.
(iv) PS 43: Identification of populations for secondary prevention activities. The FAP identifies populations at higher risk for child abuse or domestic abuse from a review of:
(A) Relevant research findings.
(B) One or more relevant needs assessments in the locality.
(C) Data from unit deployments and returns from deployment.
(D) Data of expectant parents and parents of children 3 years of age or younger.
(E) Lessons learned from Service FAP headquarters and local fatality reviews.
(F) Feedback from the FAC, the IDC, and the command.
(v) PS 44: Secondary prevention activities. The FAP implements secondary prevention activities that are results-oriented and evidence-supported, stress the positive benefits of seeking help, promote available resources to build and sustain protective factors for healthy family relationships, and reduce risk factors for child abuse or domestic abuse. Such activities include, but are not limited to:
(A) Educational classes and counseling to assist Service members and their family members with troubled interpersonal relationships and marriages in improving their interpersonal relationships and marriages.
(B) The NPSP, in accordance with DoD Instruction 6400.05 and Service FAP headquarters implementing policy and guidance.
(C) Educational classes and counseling to help improve the parenting skills of Service members and their family members who experience parenting problems.
(D) Health care screening for domestic abuse.
(E) Referrals to essential services, supports, and resources when needed.
(3) NPSP—(i) PS 45: Referrals to NPSP. The installation FAPM ensures that expectant parents and parents with children ages 0-3 years may self-refer to the NPSP or be encouraged to participate by a health care provider, the commander of an active duty Service member who is a parent or expectant parent, staff of a family support program, or community professionals.
(ii) PS 46: Informed Consent for NPSP. The FAPM ensures that parents who ask to participate in the NPSP are provided informed consent in accordance with subpart A of this part and DoD Instruction 6400.05 and Service FAP headquarters implementing policy and guidance to be:
(A) Voluntarily screened for factors that may place them at risk for child abuse and domestic abuse.
(B) Further assessed using standardized and more in-depth measurements if the screening indicates potential for risk.
(C) Receive home visits and additional NPSP services as appropriate.
(D) Assessed for risk on a continuing basis.
(iii) PS 47: Eligibility for NPSP. Pending funding and staffing capabilities, the installation FAPM ensures that qualified NPSP personnel offer intensive home visiting services on a voluntary basis to expectant parents and parents with children ages 0-3 years who:
(A) Are eligible to receive services in a military medical treatment facility.
(B) Have been assessed by NPSP staff as:
(1) At-risk for child abuse or domestic abuse.
(2) Displaying some indicators of high risk for child abuse or domestic abuse, but whose overall assessment does not place them in the at-risk category.
(3) Having been reported to FAP for an incident of abuse of a child age 0-3 years in their care who have previously received NPSP services.
(iv) PS 48: Review of NPSP screening. Results of NPSP screening are reviewed within 3 business days of completion. If the screening indicates potential for risk, parents are invited to participate in further assessment by a NPSP home visitor using standardized and more in-depth measurements.
(v) PS 49: NPSP services. The NPSP offers expectant parents and parents with children ages 0-3, who are eligible for the NPSP, access to intensive home visiting services that:
(A) Are sensitive to cultural attitudes and practices, to include the need for interpreter or translation services.
(B) Are based on a comprehensive assessment of research-based protective and risk factors.
(C) Emphasize developmentally appropriate parenting skills that build on the strengths of the parent(s).
(D) Support the dual roles of the parent(s) as Service member(s) and parent(s).
(E) Promote the involvement of both parents when applicable.
(F) Decrease any negative effects of deployment and other military operations on parenting.
(G) Provide education to parent(s) on how to adapt to parenthood, children's developmental milestones, age-appropriate expectations for their child's development, parent-child communication skills, parenting skills, and effective discipline techniques.
(H) Empower parents to seek support and take steps to build proactive coping strategies in all domains of family life.
(I) Provide referral to additional community resources to meet identified needs.
(vi) PS 50: NPSP protocol. The installation FAPM ensures that NPSP personnel implement the Service FAP headquarters protocol for NPSP services, including the NPSP intervention plan with clearly measurable goals, based on needs identified by the standard screening instrument, assessment tools, the NPSP staff member's clinical assessment, and active input from the family.
(vii) PS 51: Frequency of NPSP home visits. NPSP personnel exercise professional judgment in determining the frequency of home visits based on the assessment of the family, but make a minimum of two home visits to each family per month. If at least two home visits are not provided to a high risk family enrolled in the program, NPSP personnel will document what circumstance(s) occurred to preclude twice monthly home visits and what services/contacts were provided instead.
(viii) PS 52: Continuing NPSP risk assessment. The installation FAPM ensures that NPSP personnel assess risk and protective factors impacting parents receiving NPSP home visitation services on an ongoing basis to continuously monitor progress toward intervention goals.
(ix) PS 53: Opening, transferring, or closing NPSP cases. The installation FAPM ensures that NPSP cases are opened, transferred, or closed in accordance with Service FAP headquarters policy and guidance.
(x) PS 54: Disclosure of information in NPSP cases. Information gathered during NPSP screening, clinical assessments, and in the provision of supportive services or treatment that is protected from disclosure under 5 U.S.C. 552a, DoD 6025.18-R, and 32 CFR part 310 is only disclosed in accordance with 5 U.S.C. 552a, DoD 6025.18-R, 32 CFR part 310, and the Service FAP headquarters implementing policies and guidance.
(4) Training—(i) PS 55: Implementation of training requirements. The FAP implements coordinated training activities for commanders, senior enlisted advisors, Service members, and their family members, DoD civilians, and contractors.
(ii) PS 56: Training for commanders and senior enlisted advisors. The installation commander or senior mission commander must require that qualified FAP trainers defined in accordance with Service FAP headquarters implementing policy and guidance provide training on the prevention of and response to child abuse and domestic abuse to:
(A) Commanders within 90 days of assuming command.
(B) Annually to NCOs who are senior enlisted advisors.
(iii) PS 57: Training for other installation personnel. Qualified FAP trainers as defined in accordance with Service FAP headquarters implementing policy and guidance conduct training (or help provide subject matter experts who conduct training) on child abuse and domestic abuse in the military community to installation:
(A) Law enforcement and investigative personnel.
(B) Health care personnel.
(C) Sexual assault prevention and response personnel.
(D) Chaplains.
(E) Personnel in DoDEA schools.
(F) Personnel in child development centers.
(G) Family home care providers.
(H) Personnel and volunteers in youth programs.
(I) Family center personnel.
(J) Service members.
(iv) PS 58: Content of training. FAP training for personnel, as required by PS 56 and PS 57, located at paragraphs (d)(4)(ii) and (d)(4)(iii) of this section, includes:
(A) Research-supported protective factors that promote and sustain healthy family relationships.
(B) Risk factors for and the dynamics of child abuse and domestic abuse.
(C) Requirements and procedures for reporting child abuse in accordance with subpart A of this part, 42 U.S.C. 13031, 28 CFR 81.2, and DoD Instruction 6400.03.
(D) The availability of domestic abuse victim advocates and response to restricted and unrestricted reports of incidents of domestic abuse in accordance with DoD Instruction 6400.06.
(E) The dynamics of domestic abuse, reporting options, safety planning, and response unique to the military culture that establishes and supports competence in performing core victim advocacy duties.
(F) Roles and responsibilities of the FAP and the command under the installation's coordinated community response to a report of a child abuse, including the response to a report of child sexual abuse in a DoD sanctioned child or youth activity in accordance with subpart A of this part and DoD 6400.1-M-1, or domestic abuse incident, and actions that may be taken to protect the victim in accordance with subpart A of this part and DoD Instruction 6400.06.
(G) Available resources on and off the installation that promote protective factors and support families at risk before abuse occurs.
(H) Procedures for the management of child abuse and domestic abuse incidents that happen before a Service member is deployed, as set forth in PS 16, located at paragraph (b)(3)(v) of this section.
(I) The availability of transitional compensation for victims of child abuse and domestic abuse in accordance with 5 U.S.C. 552a and DoD Instruction 6400.03, and Service FAP headquarters implementing policy and guidance.
(v) PS 59: Additional FAP training for NPSP personnel. The installation FAPM ensures that all personnel offering NPSP services are trained in the content specified in PS 58, located at paragraph (d)(4)(iv) of this section, and in DoD Instruction 6400.05.
(e) FAP Response to incidents of child abuse or domestic abuse—(1) Reports of child abuse—(i) PS 60: Responsibilities in responding to reports of child abuse. The installation commander in accordance with subpart A of this part and Service FAP headquarters implementing policy and guidance must issue local policy that specifies the installation procedures for responding to reports of:
(A) Suspected incidents of child abuse in accordance with subpart A of this part, 42 U.S.C. 13031, 28 CFR 81.2, and Service FAP headquarters implementing policies and guidance, federal and State laws, and applicable SOFAs.
(B) Suspected incidents of child abuse involving students, ages 3-18, enrolled in a DoDEA school or any children participating in DoD-sanctioned child or youth activities or programs.
(C) Suspected incidents of the sexual abuse of a child in DoD-sanctioned child or youth activities or programs that must be reported to the DASD(MC&FP) in accordance with DoD Instruction 6400.03 and Service FAP headquarters implementing policies and guidance.
(D) Suspected incidents involving fatalities or serious injury involving child abuse that must be reported to OSD FAP in accordance with subpart A of this part and Service FAP headquarters implementing policies and guidance.
(ii) PS 61: Responsibilities during emergency removal of a child from the home. (A) In responding to reports of child abuse, the FAP complies with subpart A of this part and Service FAP headquarters implementing policy and guidance and installation policies, procedures, and criteria set forth under PS 11, located at paragraph (b)(2)(vii) of this section, during emergency removal of a child from the home.
(B) The FAP provides ongoing and direct case management and coordination of care of children placed in foster care in collaboration with the child welfare and foster care agency, and will not close the FAP case until a permanency plan for all involved children is in place.
(iii) PS 62: Coordination with other authorities to protect children. The FAP coordinates with military and local civilian law enforcement agencies, military investigative agencies, and civilian child protective agencies in response to reports of child abuse incidents in accordance with subpart A of this part, 42 U.S.C. 13031, 28 CFR 81.2, and DoD 6400.1-M-1 and appropriate MOUs under PS 5, located at paragraph (b)(2)(i) of this section.
(iv) PS 63: Responsibilities in responding to reports of child abuse involving infants and toddlers from birth to age 3. Services and support are delivered in a developmentally appropriate manner to infants and toddlers, and their families who come to the attention of FAP to ensure decisions and services meet the social and emotional needs of this vulnerable population.
(A) FAP makes a direct referral to the servicing early intervention agency, such as the Educational and Developmental Intervention Services (EDIS) where available, for infants and toddlers from birth to 3 years of age who are involved in an incident of child abuse in accordance with 20 U.S.C. 921 through 932 and chapter 33.
(B) FAP provides ongoing and direct case management services to families and their infants and toddlers placed in foster care or other out-of-home placements to ensure the unique developmental, physical, social-emotional, and mental health needs are addressed in child welfare-initiated care plans.
(v) PS 64: Assistance in responding to reports of multiple victim child sexual abuse in dod sanctioned out-of-home care. (A) The installation FAPM assists the installation commander in assessing the need for and implementing procedures for requesting deployment of a DoD FACAT in cases of multiple-victim child sexual abuse occurring in DoD-sanctioned or operated activities, in accordance with DoD Instruction 6400.03 and Service FAP headquarters implementing policies and guidance.
(B) The installation FAPM acts as the installation coordinator for the FACAT before it arrives at the installation.
(2) PS 65: Responsibilities in Responding to Reports of Domestic Abuse. Installation procedures for responding to unrestricted and restricted reports of domestic abuse are established in accordance with DoD Instruction 6400.06 and Service FAP headquarters implementing policy and guidance.
(3) Informed consent—(i) PS 66: Informed consent for FAP clinical assessment, intervention services, and supportive services or clinical treatment. Every person referred for FAP clinical intervention and supportive services must give informed consent for such assessment or services. Clients are considered voluntary, non-mandated recipients of services except when the person is:
(A) Issued a lawful order by a military commander to participate.
(B) Ordered by a court of competent jurisdiction to participate.
(C) A child, and the parent or guardian has authorized such assessment or services.
(ii) PS 67: Documentation of informed consent. FAP staff document that the person gave informed consent in the FAP case record, in accordance with DoD Instruction 6400.06 and the Service FAP headquarters implementing policies and guidance.
(iii) PS 68: Privileged communication. Every person referred for FAP clinical intervention and support services is informed of their right to the provisions of privileged communication by specified service providers in accordance with Military Rules of Evidence 513 and 514 in the Manual for Courts Martial, current edition (available at http://www.apd.army.mil/pdffiles/mcm.pdf, Section III, pages III-34 to III-36.).
(4) Clinical case management and risk management—(i) PS 69: FAP case manager. A clinical service provider is assigned to each FAP referral immediately when the case enters the FAP system in accordance with Service FAP headquarters implementing policy and guidance.
(ii) PS 70: Initial risk monitoring. FAP monitoring of the risk of further abuse begins when the report of suspected child abuse or domestic abuse is received and continues through the initial clinical assessment. The FAP case manager requests information from a variety of sources, in addition to the victim and the abuser (whether alleged or adjudicated), to identify additional risk factors and to clarify the context of the use of any violence, and ascertains the level of risk and the risk of lethality using standardized instruments in accordance with subpart A of this part and DoD Instruction 6400.06, and Service FAP headquarters policies and guidance.
(iii) PS 71: Ongoing risk assessment. (A) FAP risk assessment is conducted from the clinical assessment until the case closes:
(1) During each contact with the victim;
(2) During each contact with the abuser (whether alleged or adjudicated);
(3) Whenever the abuser is alleged to have committed a new incident of child abuse or domestic abuse;
(4) During significant transition periods for the victim or abuser;
(5) When destabilizing events for the victim or abuser occur; or
(6) When any clinically relevant issues are uncovered during clinical intervention services.
(B) The FAP case manager monitors risk at least quarterly when civilian agencies provide the clinical intervention services or child welfare services through MOUs with such agencies.
(C) The FAP case manager monitors risk at least monthly when the case is high risk or involves chronic child neglect or child sexual abuse.
(iv) PS 72: Communication of increased risk. The FAPM communicates increases in risk or risk of lethality to the appropriate commander(s), law enforcement, or civilian officials. FAP clinical staff assess whether the increased risk requires the victim or the victim advocate to be urged to review the victim's safety plan.
(5) Clinical assessment—(i) PS 73: Clinical assessment policy. The installation FAPM establishes procedures for the prompt clinical assessment of victims, abusers (whether alleged or adjudicated), and other family members, who are eligible to receive treatment in a military medical facility, in reports of child abuse and unrestricted reports of domestic abuse in accordance with subpart A of this part and DoD 6025.18-R when applicable and Service FAP headquarters policies and guidance, including:
(A) A prompt response based on the severity of the alleged abuse and further risk of child abuse or domestic abuse.
(B) Developmentally appropriate clinical tools and measures to be used, including those that take into account relevant cultural attitudes and practices.
(C) Timelines for FAP staff to complete the assessment of an alleged abuse incident.
(ii) PS 74: Gathering and disclosure of information. Service members who conduct clinical assessments and provide clinical services to Service member abusers (whether alleged or adjudicated) must adhere to Service policies with respect to advisement of rights in accordance with 10 U.S.C. chapter 47, also known as “The Uniform Code of Military Justice”. Clinical service providers must also seek guidance from the servicing legal office when a question of applicability arises. Before obtaining information about and from the person being assessed, FAP staff fully discuss with such person:
(A) The nature of the information that is being sought.
(B) The sources from which such information will be sought.
(C) The reason(s) why the information is being sought.
(D) The circumstances in accordance with 5 U.S.C. 552a, DoD 6025.18-R, 32 CFR part 310, and Service FAP headquarters policies and guidance under which the information may be released to others.
(E) The procedures under 5 U.S.C. 552a, DoD 6025.18-R, 32 CFR part 310, and Service FAP headquarters policies and guidance for requesting the person's authorization for such information.
(F) The procedures under 5 U.S.C. 552a, DoD 6025.18-R, 32 CFR part 310, and Service FAP headquarters policies and guidance by which a person may request access to his or her record.
(iii) PS 75: Components of clinical assessment. FAP staff conducts or ensures that a clinical service provider conducts a clinical assessment of each victim, abuser (whether alleged or adjudicated), and other family member who is eligible for treatment in a military medical treatment facility, in accordance with PS 73, located at paragraph (e)(5)(i) of this section, including:
(A) An interview.
(B) A review of pertinent records.
(C) A review of information obtained from collateral contacts, including but not limited to medical providers, schools, child development centers, and youth programs.
(D) A psychosocial assessment, including developmentally appropriate assessment tools for infants, toddlers, and children.
(E) An assessment of the basic health, developmental, safety, and special health and mental health needs of infants and toddlers.
(F) An assessment of the presence and balance of risk and protective factors.
(G) A safety assessment.
(H) A lethality assessment.
(iv) PS 76: Ethical conduct in clinical assessments. When conducting FAP clinical assessments, FAP staff treat those being clinically assessed with respect, fairness, and in accordance with professional ethics.
(6) Intervention strategy and treatment plan—(i) PS 77: Intervention strategy and treatment plan for the alleged abuser. The FAP case manager prepares an appropriate intervention strategy based on the clinical assessment for every abuser (whether alleged or adjudicated) who is eligible to receive treatment in a military treatment facility and for whom a FAP case is opened. The intervention strategy documents the client's goals for self, the level of client involvement in developing the treatment goals, and recommends appropriate:
(A) Actions that may be taken by appropriate authorities under the coordinated community response, including safety and protective measures, to reduce the risk of another act of child abuse or domestic abuse, and the assignment of responsibilities for carrying out such actions.
(B) Treatment modalities based on the clinical assessment that may assist the abuser (whether alleged or adjudicated) in ending his or her abusive behavior.
(C) Actions that may be taken by appropriate authorities to assess and monitor the risk of recurrence.
(ii) PS 78: Commanders' access to relevant information for disposition of allegations. FAP provides commanders and senior enlisted personnel timely access to relevant information on child abuse incidents and unrestricted reports of domestic abuse incidents to support appropriate disposition of allegations. Relevant information includes:
(A) The intervention goals and activities described in PS 77, located at paragraph (e)(6)(i) of this section.
(B) The alleged abuser's prognosis for treatment, as determined from a clinical assessment.
(C) The extent to which the alleged abuser accepts responsibility for his or her behavior and expresses a genuine desire for treatment, provided that such information obtained from the alleged abuser was obtained in compliance with Service policies with respect to advisement of rights in accordance with 10 U.S.C. chapter 47.
(D) Other factors considered appropriate for the command, including the results of any previous treatment of the alleged abuser for child abuse or domestic abuse and his or her compliance with the previous treatment plan, and the estimated time the alleged abuser will be required to be away from military duties to fulfill treatment commitments.
(E) Status of any child taken into protective custody.
(iii) PS 79: Supportive services plan for the victim and other family members. The FAP case manager prepares a plan for appropriate supportive services or clinical treatment, based on the clinical assessments, for every victim or family member who is eligible to receive treatment in a military treatment facility, who expresses a desire for FAP services, and for whom a FAP case is opened. The plan recommends one or more appropriate treatment modalities or support services, in accordance with subpart A of this part and DoD Instruction 6400.05 and Service FAP headquarters policies and guidance.
(iv) PS 80: Clinical consultation. All FAP clinical assessments and treatment plans for persons in incidents of child abuse or domestic abuse are reviewed in the CCSM, in accordance with DoD 6025.18-R when applicable, 32 CFR part 310, and Service FAP headquarters policies and guidance.
(7) Intervention and treatment—(i) PS 81: Intervention services for abusers. Appropriate intervention services for an abuser (whether alleged or adjudicated) who is eligible to receive treatment in a military medical program are available either from the FAP or from other military agencies, contractors, or civilian services providers, including:
(A) Psycho-educationally based programs and services.
(B) Supportive services that may include financial counseling and spiritual support.
(C) Clinical treatment specifically designed to address risk and protective factors and dynamics associated with child abuse or domestic abuse.
(D) Trauma informed clinical treatment when appropriate.
(ii) PS 82: Supportive services or treatment for victims who are eligible to receive treatment in a military treatment facility. Appropriate supportive services and treatment are available either from the FAP or from other military agencies, contractors, or civilian services providers, including:
(A) Immediate and ongoing domestic abuse victim advocacy services, available 24 hours per day through personal or telephone contact, as set forth in DoD Instruction 6400.06 and Service FAP headquarters policies and guidance.
(B) Supportive services that may include financial counseling and spiritual support.
(C) Psycho-educationally based programs and services.
(D) Appropriate trauma informed clinical treatment specifically designed to address risk and protective factors and dynamics associated with child abuse or domestic abuse victimization.
(E) Supportive services, information and referral, safety planning, and treatment (when appropriate) for child victims and their family members of abuse by non-caretaking offenders.
(iii) PS 83: Supportive services for victims or offenders who are not eligible to receive treatment in a military treatment facility. Victims must receive initial safety-planning services only and must be referred to civilian support services for all follow-on care. Offenders must receive referrals to appropriate civilian intervention or treatment programs.
(iv) PS 84: Ethical conduct in supportive services and treatment for abusers and victims. When providing FAP supportive services and treatment, FAP staff treats those receiving such supportive services or clinical treatment with respect, fairness, and in accordance with professional ethics.
(v) PS 85: CCSM review of treatment progress. Treatment progress and the results of the latest risk assessment are reviewed periodically in the CCSM in accordance with subpart A of this part.
(A) Child sexual abuse cases are reviewed monthly in the CCSM.
(B) Cases involving foster care placement of children are reviewed monthly in the CCSM.
(C) All other cases are reviewed at least quarterly in the CCSM.
(D) Cases must be reviewed within 30 days of any significant event or a pending significant event that would impact care, including but not limited to a subsequent maltreatment incident, geographic move, deployment, pending separation from the Service, or retirement.
(vi) PS 86: Continuity of services. The FAP case manager ensures continuity of services before the transfer or referral of open child abuse or domestic abuse cases to other service providers:
(A) At the same installation or other installations of the same Service FAP headquarters.
(B) At installations of other Service FAP headquarters.
(C) In the civilian community.
(D) In child welfare services in the civilian community.
(8) Termination and case closure—(i) PS 87: Criteria for case closure. FAP services are terminated and the case is closed when treatment provided to the abuser (whether alleged or adjudicated) is terminated and treatment or supportive services provided to the victim are terminated.
(A) Treatment provided to the abuser(s) (whether alleged or adjudicated) is terminated only if either:
(1) The CCSM discussion produced a consensus that clinical objectives have been substantially met and the results of a current risk assessment indicate that the risk of additional abuse and risk of lethality have declined; or
(2) The CCSM discussion produced a consensus that clinical objectives have not been met due to:
(i) Noncompliance of such abuser(s) with the requirements of the treatment program.
(ii) Unwillingness of such abuser(s) to make changes in behavior that would result in treatment progress.
(B) Treatment and supportive services provided to the victim are terminated only if either:
(1) The CCSM discussion produced a consensus that clinical objectives have been substantially met; or
(2) The victim declines further FAP supportive services.
(ii) PS 88: Communication of case closure. Upon closure of the case the FAP notifies:
(A) The abuser (whether alleged or adjudicated) and victim, and in a child abuse case, the non-abusing parent.
(B) The commander of an active duty victim or abuser (whether alleged or adjudicated).
(C) Any appropriate civilian court currently exercising jurisdiction over the abuser (whether alleged or adjudicated), or in a child abuse case, over the child.
(D) A civilian child protective services agency currently exercising protective authority over a child victim.
(E) The NPSP, if the family has been currently receiving NPSP intensive home visiting services.
(F) The domestic abuse victim advocate if the victim has been receiving victim advocacy services.
(iii) PS 89: Disclosure of information. Information gathered during FAP clinical assessments and during treatment or supportive services that is protected from disclosure under 5 U.S.C. 552a, DoD 6025.18-R, and 32 CFR part 310 is only disclosed in accordance with 5 U.S.C. 552a, DoD 6025.18-R, 32 CFR part 310, and Service FAP headquarters implementing policies and guidance.
(f) Documentation and records management—(1) Documentation of NPSP cases—(i) PS 90: NPSP case record documentation. For every client screened for NPSP services, NPSP personnel must document in accordance with Service FAP headquarters policies and guidance, at a minimum:
(A) The informed consent of the parents based on the services offered.
(B) The results of the initial screening for risk and protective factors and, if the risk was high, document:
(1) The assessment(s) conducted.
(2) The plan for services and goals for the parents.
(3) The services provided and whether suspected child abuse or domestic abuse was reported.
(4) The parents' progress toward their goals at the time NPSP services ended.
(ii) PS 91: Maintenance, storage, and security of NPSP case records. NPSP case records are maintained, stored, and kept secure in accordance with DoD 6025.18-R when applicable, 32 CFR part 310, and Service FAP headquarters policies and guidance.
(iii) PS 92: Transfer of NPSP case records. NPSP case records are transferred in accordance with DoD 6025.18-R when applicable, 32 CFR part 310, and Service FAP headquarters policies and procedures.
(iv) PS 93: Disposition of NPSP records. NPSP records are disposed of in accordance with DoD 6025.18-R when applicable, 32 CFR part 310, and Service FAP headquarters policies and guidance.
(2) Documentation of reported incidents—(i) PS 94: Reports of child abuse and unrestricted reports of domestic abuse. For every new reported incident of child abuse and unrestricted report of domestic abuse, the FAP documents, at a minimum, an accurate accounting of all risk levels, actions taken, assessments conducted, foster care placements, clinical services provided, and results of the quarterly CCSM from the initial report of an incident to case closure in accordance with Service FAP headquarters policies and guidance.
(ii) PS 95: Documentation of multiple incidents. Multiple reported incidents of child abuse and unrestricted reports of domestic abuse involving the same Service member or family members are documented separately within one FAP case record.
(iii) PS 96: Maintenance, storage, and security of FAP case records. FAP case records are maintained, stored, and kept secure in accordance with Service FAP headquarters policies and procedures.
(iv) PS 97: Transfer of FAP case records. FAP case records are transferred in accordance with DoD 6025.18-R when applicable, 32 CFR part 310, and Service FAP headquarters policies and procedures.
(v) PS 98: Disposition of FAP records. FAP records are disposed of in accordance with DoD Directive 5015.2, “DoD Records Management Program” (available at http://www.dtic.mil/whs/directives/corres/pdf/501502p.pdf) and Service FAP headquarters policies and guidance.
(3) Central registry of child abuse and domestic abuse incidents—(i) PS 99: Recording data into the Service FAP headquarters central registry of child abuse and domestic abuse incidents. Data pertaining to child abuse and unrestricted domestic abuse incidents reported to FAP are added to the Service FAP headquarters central registry of child and domestic abuse incidents. Quarterly edit checks are conducted in accordance with Service FAP headquarters policies and procedures. Data that personally identifies the sponsor, victim, or alleged abuser are not retained in the central registry for any incidents that did not meet criteria for entry or on any victim or alleged abuser who is not an active duty member or retired Service member, DoD civilian employee, contractor, or eligible beneficiary.
(ii) PS 100: Access to the DoD central registry of child and domestic abuse incidents. Access to the DoD central registry of child and domestic abuse incidents and disclosure of information therein complies with DoD 6400.1-M-1 and Service FAP headquarters policies and guidance.
(iii) PS 101: Access to Service FAP headquarters central registry of child and domestic abuse reports. Access to the Service FAP headquarters central registry of child and domestic abuse incidents and disclosure of information therein complies with DoD 6400.1-M-1 and Service FAP headquarters policies and procedures.
(4) Documentation of restricted reports of domestic abuse—(i) PS 102: Documentation of restricted reports of domestic abuse. Restricted reports of domestic abuse are documented in accordance with DoD Instruction 6400.06 and Service FAP headquarters policies and guidance.
(ii) PS 103: Maintenance, storage, security, and disposition of restricted reports of domestic abuse. Records of restricted reports of domestic abuse are maintained, stored, kept secure, and disposed of in accordance with DoD Instruction 6400.06 and Service FAP headquarters policies and procedures.
(g) Fatality notification and review—(1) Fatality notification—(i) PS 104: Domestic abuse fatality and child abuse fatality notification. The installation FAC establishes local procedures in compliance with Service FAP headquarters implementing policy and guidance to report fatalities known or suspected to have resulted from an act of domestic abuse, child abuse, or suicide related to an act of domestic abuse or child abuse that involve personnel assigned to the installation or within its area of responsibility. Fatalities are reported through the Service FAP headquarters and the Secretaries of the Military Departments to the DASD(MC&FP) in compliance with subpart A of this part and DoD Instruction 6400.06, and Service FAP headquarters implementing policy and guidance.
(ii) PS 105: Timeliness of reporting domestic abuse and child abuse fatalities to DASD(MC&FP). The designated installation personnel report domestic abuse and child abuse fatalities through the Service FAP headquarters channels to the DASD(MC&FP) within the timeframe specified in DoD Instruction 6400.06 in accordance with the Service FAP headquarters implementing policy and guidance.
(iii) PS 106: Reporting format for domestic abuse and child abuse fatalities. Installation reports of domestic abuse and child abuse fatalities are reported on the DD Form 2901, “Child Abuse or Domestic Abuse Related Fatality Notification,” and in accordance with subpart A of this part.
(2) Review of fatalities—(i) PS 107: Information forwarded to the Service FAP headquarters fatality review. The installation provides written information concerning domestic abuse and child abuse fatalities that involve personnel assigned to the installation or within its area of responsibility promptly to the Service FAP headquarters fatality review team in accordance with DoD Instruction 6400.06 and in the format specified in the Service FAP headquarters implementing policy and guidance.
(ii) PS 108: Cooperation with non-DoD fatality review teams. Authorized installation personnel provide information about domestic abuse and child abuse fatalities that involve personnel assigned to the installation or within its area of responsibility to non-DoD fatality review teams in accordance with written MOUs and 5 U.S.C. 552a and 32 CFR part 310.
(h) QA and accreditation or inspections—(1) QA—(i) PS 109: Installation FAP QA program. The installation FAC will establish local QA procedures that address compliance with the PSs in this section in accordance with subpart A of this part and Service FAP headquarters implementing policy and guidance.
(ii) PS 110: QA Training. All FAP personnel must be trained in installation QA procedures.
(iii) PS 111: Monitoring FAP compliance with PSs. The installation FAPM monitors compliance of FAP personnel to installation QA procedures and the PSs in this section.
(2) Accreditation or inspections—(i) PS 112: Accreditation or inspections. The installation FAP undergoes accreditation or inspection at least every 4 years to monitor compliance with the PSs in this section, in accordance with subpart A of this part and Service FAP headquarters policies and guidance.
(ii) PS 113: Review of accreditation and inspection results. The installation FAC reviews the results of the FAP accreditation review or inspection and submits findings and corresponding corrective action plans to the Service FAP headquarters in accordance with its implementing policy and guidance.
Appendix to § 61.12—Index of FAP Topics
Topic | PS number(s) | Page number(s)
Accreditation/inspection of FAP | 109-113 | 37
Case manager | 69 | 27
Case closure | 87-89 | 33-34
Case transfer | 92, 97 | 34-35
Central registry | 99-101 | 35
Access to DoD central registry | 100 | 35
Access to Service FAP Headquarters central registry | 101 | 35
Reporting of statistics | 36 | 17-18
Child abuse reports | 60-64 | 25-26
Coordination with other authorities | 62 | 26
Emergency removal of a child | 61 | 26
FAP and military law enforcement communication | 10 | 10
Protection of children | 11 | 10
Involving infants and toddlers birth to age three | 63 | 26
Sexual abuse in DoD-sanctioned activities | 64 | 26
Clinical assessment policy | 73 | 28
Components of FAP clinical assessment | 75 | 29
Ethical conduct | 76 | 30
Gathering and disclosing information | 74 | 29
Informed consent | 66-68 | 27
Clinical consultation | 80 | 31
Collaboration between military installations | 6 | 9
Continuity of services | 87 | 33
Coordinated community response | 2-4 | 7-9
Emergency response plan | 9 | 10
FAP and military law enforcement | 10 | 10
MOUs | 5 | 9
Criminal history record check | 27 | 15
Disclosure of information | 15, 54, 74, 90 | 12, 23, 28, 34
Disposition of records
FAP records | 98 | 35
NPSP records | 93 | 34
Restricted reports of domestic abuse | 103 | 36
Documentation
Informed consent | 67 | 27
Multiple incidents | 95 | 35
NPSP cases | 90 | 34
Reports of child abuse | 94 | 35
Restricted reports of domestic abuse | 102 | 36
Unrestricted reports of domestic abuse | 94 | 34
Domestic abuse
Clinical assessment | 73-76 | 28-30
Clinical case management | 69-72 | 27-28
FAP and military law enforcement communication | 10 | 10
FAP case manager | 69 | 27
Informed consent | 66-69 | 27
Privileged communication | 68 | 27
Response to reports | 65 | 25
Victim advocacy services | 7 | 9
Emergency response plan | 9 | 10
FAC | 1-4 | 7-9
Coordinated community response and risk management plan | 2 | 7
Establishment | 1 | 7
Monitoring of coordinated community response and risk management | 3 | 8
Risk management | 3, 13 | 8, 11
Roles, functions, responsibilities | 4 | 8
FAP
| Accreditation/inspection | 109-113 | 37
Clinical staff qualifications | 28 | 15
Coordinated community response and risk management plan | 2 | 7
Criminal history background check | 27 | 15
Establishment | 21 | 13
FAP manager | 23 | 14
Funding | 24 | 14
Internal and external duress system | 32 | 16
Management information system policy | 35 | 17
Metrics | 36 | 17-18
NPSP staff qualifications | 31 | 16
Operations policy | 22 | 13
Other resources | 25 | 14
Personnel requirements | 26 | 15
Prevention and education staff qualifications | 29 | 15
QA | 110-112 | 37
Victim advocate personnel requirements | 8 | 9
Victim advocate staff qualifications | 30 | 16
Fatality notification | 104-106 | 36
Reporting format | 106 | 36
Timeliness of report to OSD | 105 | 36
Fatality review | 107-108 | 36
Cooperation with non-DoD fatality review teams | 108 | 36
Service FAP headquarters fatality review process | 107 | 36
IDC
Establishment | 17 | 12
Operations | 18 | 12
QA | 20 | 13
Training of IDC members | 19 | 12
Intervention strategy and treatment plan
CCSM review of treatment progress | 85 | 32
Clinical consultation | 80 | 31
Commander's access to information | 78 | 30
Communication of case closure | 88 | 33
Continuity of services | 86 | 32
Criteria for case closure | 87 | 33
Disclosure of information | 89 | 34
Ethical conduct in supportive services | 84 | 32
Informed consent | 66 | 27
Intervention services for abusers | 81 | 31
Intervention strategy and treatment plan for abusers | 77 | 30
Supportive services and treatment for eligible victims | 82 | 31
Supportive services for ineligible victims | 83 | 32
Management information system | 35-36 | 17-18
Policy | 35 | 17
Reporting statistics | 36 | 17
Domestic abuse offender treatment | 36 | 17
Domestic abuse victim advocate metrics | 36 | 17
FAP metrics | 36 | 17
NPSP metrics | 36 | 18
MOU | 5 | 9
Metrics | 36 | 17-18
Domestic abuse treatment | 36 | 18
Domestic abuse victim advocacy | 36 | 18
FAP | 36 | 17
NPSP | 36 | 18
NPSP
Continuing risk assessment | 53 | 23
Disclosure of information | 54 | 23
Disposition of records | 93 | 34
Eligibility | 47 | 22
Frequency of home visits | 51 | 23
Informed consent | 46 | 21
Internal and external duress system | 32 | 16
Maintenance, storage, and security of records | 91 | 34
Opening, transferring, and closing cases | 53 | 23
Protection of home visitors | 33 | 16
Protocol | 50 | 23
Referrals to NPSP | 45 | 21
Reporting known or suspected child abuse | 34 | 17
Screening | 48 | 22
Services | 49 | 22
| Staff qualifications | 31 | 16
Training for NPSP personnel | 59 | 25
Transfer of NPSP records | 92 | 34
Prevention activities | 40-44 | 20-21
Collaboration | 41 | 20
Identification of populations for secondary prevention activities | 43 | 20
Implementation of activities in coordinated community response and risk management plan | 40 | 20
Primary prevention activities | 42 | 20
Secondary prevention activities | 44 | 21
PMA | 12 | 11
Public awareness | 37-39 | 19-20
Collaboration to increase public awareness | 38 | 19
Components | 39 | 19-20
Implementation of activities in the annual FAP plan | 37 | 19
QA | 109-113 | 37
FAP QA program | 109 | 37
Monitoring FAP QA | 111 | 37
Training | 110 | 37
Records Management
Disposition of FAP records | 98 | 35
Disposition of NPSP records | 93 | 34
FAP case records maintenance, storage, and security | 96 | 35
NPSP case records maintenance, storage, and security | 91 | 34
Transfer of FAP records | 97 | 35
Transfer of NPSP records | 92 | 34
Unrestricted reports of domestic abuse | 94 | 35
Risk management | 13 | 11
Assessments | 14 | 11
Case manager | 69 | 27
Communication of increased risk | 72 | 28
Deployment | 16 | 12
Disclosure of information | 15 | 12
Initial risk monitoring | 70 | 27
Ongoing risk assessment | 71 | 27
Review and monitoring of the coordinated community response and risk management plan | 2, 3 | 7, 8
PMA | 12 | 11
Training
Commanders and senior enlisted advisors | 56 | 23
Content | 58 | 24
FAC and IDC | 19 | 12
Implementation of training requirements | 55 | 23
Installation personnel | 57 | 24
NPSP personnel | 59 | 25
QA | 111 | 37
Subparts C-D [Reserved]

Subpart E—Guidelines for Clinical Intervention for Persons Reported as Domestic Abusers

Authority:
10 U.S.C. chapter 47, 42 U.S.C. 5106g, 42 U.S.C. 13031.
§ 61.25
Purpose.
(a) This part is composed of several subparts, each containing its own purpose. This subpart implements policy, assigns responsibilities, and provides procedures for addressing child abuse and domestic abuse in military communities.
(b) Restricted reporting guidelines are provided in DoD Instruction 6400.06, “Domestic Abuse Involving DoD Military and Certain Affiliated Personnel” (available at http://www.dtic.mil/whs/directives/corres/pdf/640006p.pdf). This subpart prescribes guidelines for Family Advocacy Program (FAP) assessment, clinical rehabilitative treatment, and ongoing monitoring of individuals who have been reported to FAP by means of an unrestricted report for domestic abuse against:
(1) Current or former spouses, or
(2) Intimate partners.
§ 61.26
Applicability.
This subpart applies to OSD, 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 within the DoD (referred to in this subpart as the “DoD Components”).
§ 61.27
Definitions.
Unless otherwise noted, the following terms and their definitions are for the purpose of this subpart.
Abuser. An individual adjudicated in a military disciplinary proceeding or civilian criminal proceeding who is found guilty of committing an act of domestic violence or a lesser included offense, as well as an individual alleged to have committed domestic abuse, including domestic violence, who has not had such an allegation adjudicated.
Abuser contract. The treatment agreement between the clinician and the abuser that specifies the responsibilities and expectations of each party. It includes specific abuser treatment goals as identified in the treatment plan and clearly specifies that past, present, and future allegations and threats of domestic abuse and child abuse or neglect will be reported to the active duty member's commander, to local law enforcement and child protective services, as appropriate, and to the potential victim.
Clinical case management. Defined in subpart B of this part.
Clinical case staff meeting (CCSM). Defined in subpart B of the part.
Clinical intervention. Defined in subpart B of this part.
Domestic abuse. Domestic violence or a pattern of behavior resulting in emotional/psychological abuse, economic control, and/or interference with personal liberty that is directed toward a person who is:
(1) A current or former spouse;
(2) A person with whom the abuser shares a child in common; or
(3) A current or former intimate partner with whom the abuser shares or has shared a common domicile.
Domestic violence. An offense under the United States Code, the UCMJ, or State law involving the use, attempted use, or threatened use of force or violence against a person, or a violation of a lawful order issued for the protection of a person, who is:
(1) A current or former spouse.
(2) A person with whom the abuser shares a child in common; or
(3) A current or former intimate partner with whom the abuser shares or has shared a common domicile.
FAP Manager. Defined in subpart A of this part.
Incident determination committee. Defined in subpart A of this part.
Intimate partner. A person with whom the victim shares a child in common, or a person with whom the victim shares or has shared a common domicile.
Risk management. Defined in subpart B of this part.
Severe abuse. Exposure to chronic pattern of emotionally abusive behavior with physical or emotional effects requiring hospitalization or long-term mental health treatment. In a spouse emotional abuse incident, this designation requires an alternative environment to protect the physical safety of the spouse. Exposure to a chronic pattern of neglecting behavior with physical, emotional, or educational effects requiring hospitalization, long-term mental health treatment, or long-term special education services. Physical abuse resulting in major physical injury requiring inpatient medical treatment or causing temporary or permanent disability or disfigurement; moderate or severe emotional effects requiring long-term mental health treatment; and may require placement in an alternative environment to protect the physical safety or other welfare of the victim. Sexual abuse involving oral, vaginal, or anal penetration that may or may not require one or more outpatient visits for medical treatment; may be accompanied by injury requiring inpatient medical treatment or causing temporary or permanent disability or disfigurement; moderate or severe emotional effects requiring long-term mental health treatment; and may require placement in an alternative environment to protect the physical safety or welfare of the victim.
Unrestricted report. A process allowing a victim of domestic abuse to report an incident using current reporting channels, e.g. chain of command, law enforcement or criminal investigative organization, and FAP for clinical intervention.
§ 61.28
Policy.
In accordance with subpart A of this part and DoD Instruction 6400.06, it is DoD policy to:
(a) Develop PSs and critical procedures for the FAP that reflect a coordinated community response to domestic abuse.
(b) Address domestic abuse within the military community through a coordinated community risk management approach.
(c) Provide appropriate individualized and rehabilitative treatment that supplements administrative or disciplinary action, as appropriate, to persons reported to FAP as domestic abusers.
§ 61.29
Responsibilities.
(a) The Under Secretary of Defense for Personnel and Readiness (USD(P&R)):
(1) Sponsors FAP research and evaluation and participates in other federal research and evaluation projects relevant to the assessment, treatment, and risk management of domestic abuse.
(2) Ensures that research is reviewed every 3 to 5 years and that relevant progress and findings are distributed to the Secretaries of the Military Departments using all available Web-based applications.
(3) Assists the Secretaries of the Military Departments to:
(i) Identify tools to assess risk of recurrence.
(ii) Develop and use pre- and post-treatment measures of effectiveness.
(iii) Promote training in the assessment, treatment, and risk management of domestic abuse.
(b) The Secretaries of the Military Departments issue implementing guidance in accordance with this part. The guidance must provide for the clinical assessment, rehabilitative treatment, and ongoing monitoring and risk management of Service members and eligible beneficiaries reported to FAP for domestic abuse by means of an unrestricted report.
§ 61.30
Procedures.
(a) General principles for clinical intervention—(1) Components of clinical intervention. The change from abusive to appropriate behavior in domestic relationships is a process that requires clinical intervention, which includes ongoing coordinated community risk management, assessment, and treatment.
(2) Military administrative and disciplinary actions and clinical intervention. The military disciplinary system and FAP clinical intervention are separate processes. Commanders may proceed with administrative or disciplinary actions at any time.
(3) Goals of clinical intervention. the primary goals of clinical intervention in domestic abuse are to ensure the safety of the victim and community, and promote stopping abusive behaviors.
(4) Therapeutic alliance—(i) Although clinical intervention must address abuser accountability, clinical assessment and treatment approaches should be oriented to building a therapeutic alliance with the abuser so that he or she is sincerely motivated to take responsibility for his or her actions, improve relationship skills, and end the abusive behavior.
(ii) Clinical intervention will neither be confrontational nor intentionally or unintentionally rely on the use of shame to address the abuser's behavior. Such approaches have been correlated in research studies with the abuser's premature termination of or minimal compliance with treatment.
(A) It is appropriate to encourage abusers to take responsibility for their use of violence; however, in the absence of a strong, supportive, therapeutic relationship, confrontational approaches may induce shame and are likely to reduce treatment success and foster dropout. Approaches that create and maintain a therapeutic alliance are more likely to motivate abusers to seek to change their behaviors, add to their relationship skills, and take responsibility for their actions. Studies indicate that a strong therapeutic alliance is related to decreased psychological and physical aggression.
(B) A clinical style that helps the abuser identify positive motivations to change his or her behavior is effective in strengthening the therapeutic alliance while encouraging the abuser to evaluate his or her own behavior. Together, the therapist and abuser attempt to identify the positive consequences of change, identify motivation for change, determine the obstacles that lie in the path of change, and identify specific behaviors that the abuser can adopt.
(5) Criteria for clinical intervention approaches. Clinical intervention approaches should reflect the current state of knowledge. This subpart recommends an approach (or multiple approaches) and procedures that have one or more of these characteristics:
(i) Demonstrated superiority in formal evaluations in comparison to one or more other approaches.
(ii) Demonstrated statistically significant success in formal evaluations, but not yet supported by a consensus of experts.
(iii) The support of a consensus due to significant potential in the absence of statistically significant success.
(iv) Significant potential when consensus does not yet exist.
(6) Clinical intervention for female abusers. Findings from research and clinical experience indicate that women who are domestic abusers may require clinical intervention approaches other than those designed specifically for male abusers.
(i) Attention should be given to the motivation and context for their use of abusive behaviors to discover whether or not using violence against their spouse, former spouse, or intimate partner has been in response to his or her domestic abuse.
(ii) Although both men and women who are domestic abusers may have undergone previous traumatic experiences that may warrant treatment, women's traumatic experiences may require additional attention within the context of domestic abuse.
(7) Professional standards. Domestic abusers who undergo clinical intervention will be treated with respect, fairness, and in accordance with professional ethics. All applicable rights of abusers will be observed, including compliance with the rights and warnings in 10 U.S.C. 831, chapter 47, also known and referred to in this subpart as the “Uniform Code of Military Justice (UCMJ)” for abusers who are Service members.
(i) Clinical service providers who conduct clinical assessments of or provide clinical treatment to abusers will adhere to Service policies with respect to the advisement of rights pursuant to the UCMJ, will seek guidance from the supporting legal office when a question of applicability arises, and will notify the relevant military law enforcement investigative agency if advisement of rights has occurred.
(ii) Clinical service providers and military and civilian victim advocates must follow the Privacy Act of 1974, as amended, and other applicable laws, regulations, and policies regarding the disclosure of information about victims and abusers.
(iii) Individuals and agencies providing clinical intervention to persons reported as domestic abusers will not discriminate based on race, color, religion, gender, disability, national origin, age, or socioeconomic status. All members of clinical intervention teams will treat abusers with dignity and respect regardless of the nature of their conduct or the crimes they may have committed. Cultural differences in attitudes will be recognized, respected, and addressed in the clinical assessment process.
(8) Clinical case management. The FAP clinical service provider has the responsibility for clinical case management.
(b) Coordinated community risk management—(1) General. A coordinated community response to domestic abuse is the preferred method to enhance victim safety, reduce risk, and ensure abuser accountability. In a coordinated community response, the training, policies, and operations of all civilian and military human service and FAP clinical service providers are linked closely with one another. Since no particular response to a report of domestic abuse can ensure that a further incident will not occur, selection of the most appropriate response will be considered one of coordinated community risk management.
(2) Responsibility for coordinated community risk management. Overall responsibility for managing the risk of further domestic abuse, including developing and implementing an intervention plan when significant risk of lethality or serious injury is present, lies with:
(i) The Service member's commander when a Service member is a domestic abuser or is the victim (or their military dependent is the victim) of domestic abuse.
(ii) The commander of the installation or garrison on which a Service member who is a domestic abuser or who is the victim (or their military dependent who is the victim) of domestic abuse may live.
(iii) The commander of the military installation on which the civilian is housed for a civilian abuser accompanying U.S. military forces outside the United States.
(iv) The FAP clinical service provider or case manager for liaison with civilian authorities in the event the abuser is a civilian.
(3) Implementation. Coordinated community risk management requires:
(i) The commander of the military installation to participate in local coalitions and task forces to enhance communication and strengthen program development among activities. In the military community, this may include inviting State, local, and tribal government representatives to participate in their official capacity as non-voting guests in meetings of the Family Advocacy Committee (FAC) to discuss coordinated community risk management in domestic abuse incidents that cross jurisdictions. (See subpart B of this part for FAC standards.)
(A) Agreements with non-federal activities will be reflected in signed MOU.
(B) Agreements may be among military installations of different Military Services and local government activities.
(ii) Advance planning through the installation FAC by:
(A) The commander of the installation.
(B) FAP and civilian clinical service providers.
(C) Victim advocates in the military and civilian communities.
(D) Military chaplains.
(E) Military and civilian law enforcement agencies.
(F) Military supporting legal office and civilian prosecutors.
(G) Military and civilian mental health and substance abuse treatment agencies.
(H) DoDEA school principals or their designees.
(I) Other civilian community agencies and personnel including:
(1) Criminal and family court judges.
(2) Court probation officials.
(3) Child protective services agencies.
(4) Domestic abuse shelters.
(iii) FAP clinical service providers to address:
(A) Whether treatment approaches under consideration are based on individualized assessments and directly address other relevant risk factors.
(B) Whether the operational tempo of frequent and lengthy deployments to accomplish a military mission affects the ability of active duty Service members to complete a State-mandated treatment program.
(C) Respective responsibilities for monitoring abusers' behavior on an ongoing basis, developing procedures for disclosure of relevant information to appropriate authorities, and implementing a plan for intervention to address the safety of the victim and community.
(4) Deployment. Risk management of a Service member reported to FAP as a domestic abuser prior to a military deployment, when his or her deployment is not cancelled, or reported to FAP as a domestic abuser while deployed requires planning for his or her return to their home station.
(i) The installation FAC should give particular attention to special and early returns so during deployment of a unit, the forward command is aware of the procedures to notify the home station command of regularly-scheduled and any special or early returns of such personnel to reduce the risk of additional abuse.
(ii) An active duty Service member reported as a domestic abuser may be returned from deployment early for military disciplinary or civilian legal procedures, for rest and recuperation (R&R), or, if clinical conditions warrant, for treatment not otherwise available at the deployed location and if the commander feels early return is necessary under the circumstances. To prevent placing a victim at higher risk, the deployed unit commander will notify the home station commander and the installation FAP in advance of the early return, unless operational security prevents such disclosure.
(5) Clinical case management. Ongoing and active case management, including contact with the victim and liaison with the agencies in the coordinated community response, is necessary to ascertain the abuser's sincerity and changed behavior. Case management requires ongoing liaison and contact with multiple information sources involving both military and surrounding civilian community agencies. Clinical case management includes:
(i) Initial clinical case management. Initial case management begins with the intake of the report of suspected domestic abuse, followed by the initial clinical assessment.
(ii) Periodic clinical case management. Periodic case management includes the FAP clinical service provider's assessment of treatment progress and the risk of recurrence of abuse. Treatment progress and the results of the latest risk assessment should be discussed whenever the case is reviewed at the CCSM.
(iii) Follow-up. As a result of the risk assessment, if there is a risk of imminent danger to the victim or to another person, the FAP clinical service provider may need to notify:
(A) The victim or other person at risk and the victim advocate to review, and possibly revise, the safety plan.
(B) The appropriate military command, and military or civilian law enforcement agency.
(C) Other treatment providers to modify their intervention with the abuser. For example, the provider of substance abuse treatment may need to change the requirements for monitored urinalysis.
(c) Clinical assessment—(1) Purposes. A structured clinical assessment of the abuser is a critical first step in clinical intervention. The purposes of clinical assessment are to:
(i) Gather information to evaluate and ensure the safety of all parties—victim, abuser, other family members, and community.
(ii) Assess relevant risk factors, including the risk of lethality.
(iii) Determine appropriate risk management strategies, including clinical treatment; monitoring, controlling, or supervising the abuser's behavior to protect the victim and any individuals who live in the household; and victim safety planning.
(2) Initial information gathering. Initial information gathering and risk assessment begins when the unrestricted report of domestic abuse is received by FAP.
(i) Since the immediacy of the response is based on the imminence of risk, the victim must be contacted as soon as possible to evaluate her or his safety, safety plan, and immediate needs. If a domestic abuse victim advocate is available, the victim advocate must contact the victim. If a victim advocate is not available, the clinician must contact the victim. Every attempt must be made to contact the victim via telephone or email to request a face-to-face interview. If the victim is unable or unwilling to meet face-to-face, the victim's safety, safety plan, and immediate needs will be evaluated by telephone.
(ii) The clinician must interview the victim and abuser separately to maximize the victim's safety. Both victim and abuser must be assessed for the risk factors in paragraphs (c)(4) and (c)(6) of this section.
(A) The clinician must inform the victim and abuser of the limits of confidentiality and the FAP process before obtaining information from them. Such information must be provided in writing as early as practical.
(B) The clinician must build a therapeutic alliance with the abuser using an interviewing style that assesses readiness for and motivates behavioral change. The clinician must be sensitive to cultural considerations and other barriers to the client's engagement in the process.
(iii) The clinician must also gather information from a variety of other sources to identify additional risk factors, clarify the context of the use of any violence, and determine the level of risk. The assessment must include information about whether the Service member is scheduled to be deployed or has been deployed within the past year, and the dates of scheduled or past deployments. Such sources of information may include:
(A) The appropriate military command.
(B) Military and civilian law enforcement.
(C) Medical records.
(D) Children and other family members residing in the home.
(E) Others who may have witnessed the acts of domestic abuse.
(F) The FAP central registry of child maltreatment and domestic abuse reports.
(iv) The clinician will request disclosure of information and use the information disclosed in accordance with 32 CFR part 310 and DoD 6025.18-R, “DoD Health Information Privacy Regulation” (available at http://www.dtic.mil/whs/directives/corres/pdf/602518r.pdf).
(3) Violence contextual assessment. The clinical assessment of domestic abuse will include an assessment of the use of violence within the context of relevant situational factors to guide intervention. Relevant situational factors regarding the use of violence include, but are not limited to:
(i) Exacerbating factors. Exacerbating factors include whether either victim or domestic abuser:
(A) Uses violence as an inappropriate means of expressing frustrations with life circumstances.
(B) Uses violence as a means to exert and maintain power and control over the other party.
(C) Has inflicted injuries on the other party during the relationship, and the extent of such injuries.
(D) Fears the other.
(ii) Mitigating factors. Mitigating factors include whether either victim or domestic abuser uses violence:
(A) In self-defense.
(B) To protect another person, such as a child.
(C) In retaliation, as noted in the most recent incident or in the most serious incident.
(4) Lethality risk assessment. The clinician must assess the risk for lethality in every assessment for domestic abuse, whether or not violence was used in the present incident. The lethality assessment will assess the presence of these factors:
(i) For both victim and domestic abuser:
(A) Increased frequency and severity of violence in the relationship.
(B) Ease of access to weapons.
(C) Previous use of weapons or threats to use weapons.
(D) Threats to harm or kill the other party, oneself, or another (especially a child of either party).
(E) Excessive use of alcohol and use of illegal drugs.
(F) Jealousy, possessiveness, or obsession, including stalking.
(ii) For the domestic abuser only:
(A) Previous acts or attempted acts of forced or coerced sex with the victim.
(B) Previous attempts to strangle the victim.
(iii) For the victim only:
(A) The victim's attempts or statements of intent to leave the relationship.
(B) If the victim is a woman, whether the victim is pregnant and the abuser's attitude regarding the pregnancy.
(C) The victim's fear of harm from the abuser to himself or herself or any child of either party or other individual living in the household.
(5) Results of lethality risk assessment. When one or more lethality factors are identified:
(i) The clinician will promptly contact the appropriate commander and military or civilian law enforcement agency and the victim advocate.
(ii) The commander or military law enforcement agency will take immediate steps to protect the victim, addressing the lethality factor(s) identified.
(iii) The victim advocate will contact the victim to develop or amend any safety plan to address the lethality factor(s) identified.
(iv) The commander will intensify ongoing coordinated community risk management and monitoring of the abuser.
(6) Assessment of other risk factors. The clinician will separately assess the victim and abuser for other factors that increase risk for future domestic abuse. Such risk factors to be assessed include, but are not limited to, the abuser's:
(i) Previous physical and sexual violence and emotional abuse committed in the current and previous relationships. The greater the frequency, duration, and severity of such violence, the greater the risk.
(ii) Use of abuse to create and maintain power and control over others.
(iii) Attitudes and beliefs directly or indirectly supporting domestic abusive behavior. The stronger the attitudes and beliefs, the greater the risk.
(iv) Blaming of the victim for the abuser's acts. The stronger the attribution of blame to the victim, the greater the risk.
(v) Denial that his or her abusive acts were wrong and harmful, or minimization of their wrongfulness and harmfulness.
(vi) Lack of motivation to change his or her behavior. The weaker the motivation, the greater the risk.
(vii) Physical and/or emotional abuse of any children in the present or previous relationships. The greater the frequency, duration, and severity of such abuse, the greater the risk.
(viii) Physical abuse of pets or other animals. The greater the frequency, duration, and severity of such abuse, the greater the risk.
(ix) Particular caregiver stress, such as the management of a child or other family member with disabilities.
(x) Previous criminal behavior unrelated to domestic abuse. The greater the frequency, duration, and severity of such criminal behavior, the greater the risk.
(xi) Previous violations of civil or criminal court orders. The greater the frequency of such violations, the greater the risk.
(xii) Relationship problems, such as infidelity or significant ongoing conflict.
(xiii) Financial problems.
(xiv) Mental health issues or disorders, especially disorders of emotional attachment or depression and issues and disorders that have not been treated successfully.
(xv) Experience of traumatic events during military service, including events that resulted in physical injuries.
(xvi) Any previous physical harm, including head or other physical injuries, sexual victimization, or emotional harm suffered in childhood and/or as a result of violent crime outside the relationship.
(xvii) Fear of relationship failure or of abandonment.
(7) Periodic risk assessment. The FAP clinical service provider will periodically conduct a risk assessment with input from the victim, adding the results of such risk assessments to the abuser's treatment record in accordance with subpart B of this part, and incorporating them into the abuser's clinical treatment plan and contract. Risk assessment will be conducted:
(i) At least quarterly, but more frequently as required to monitor safety when the current situation is deemed high risk.
(ii) Whenever the abuser is alleged to have committed a new incident of domestic abuse or an incident of child abuse.
(iii) During significant transition periods in clinical case management, such as the change from assessment to treatment, changes between treatment modalities, and changes between substance abuse or mental health treatment and FAP treatment.
(iv) After destabilizing events such as accusations of infidelity, separation or divorce, pregnancy, deployment, administrative or disciplinary action, job loss, financial issues, or health impairment.
(v) When any clinically relevant issues are uncovered, such as childhood trauma, domestic abuse in a prior relationship, or the emergence of mental health problems.
(8) Assessment of events likely to trigger the onset of future abuse. The initial clinical assessment will include a discussion of potential events that may trigger the onset of future abuse, such as pregnancy, upcoming deployment, a unilateral termination of the relationship, or conflict over custody and visitation of children in the relationship.
(9) Tools and instruments for assessment. The initial clinical assessment process will include the use of appropriate standardized tools and instruments, Service-specific tools, and clinical interviewing. Unless otherwise indicated, the results from one or more of these tools will not be the sole determinant(s) for excluding an individual from treatment. The tools should be used for:
(i) Screening for suitability for treatment.
(ii) Tailoring treatment approaches, modalities, and content.
(iii) Reporting changes in the level of risk.
(iv) Developing risk management strategies.
(v) Making referrals to other clinical service providers for specialized intervention when appropriate.
(d) Clinical treatment—(1) Theoretical approaches. Based on the results of the clinical assessment, the FAP clinical service provider will select a treatment approach that directly addresses the abuser's risk factors and his or her use of violence. Such approaches include, but are not limited to, cognitive and dialectical behavioral therapy, psychodynamic therapy, psycho-educational programs, attachment-based intervention, and combinations of these and other approaches. See paragraph (a)(5) of this section for criteria for clinical intervention approaches.
(2) Treatment Planning. A FAP clinical service provider will develop a treatment plan for domestic abuse that is based on a structured assessment of the particular relationship and risk factors present.
(i) The treatment plan will not be based on a generic “one-size-fits-all” approach. The treatment plan will consider that people who commit domestic abuse do not compose a homogeneous group, and may include people:
(A) Of both sexes.
(B) With a range of personality characteristics.
(C) With mental illness and those with no notable mental health problems.
(D) Who abuse alcohol or other substances and/or use illegal drugs and those who do not.
(E) Who combine psychological abuse with coercive techniques, including violence, to maintain control of their spouse, former spouse, or intimate partner and those who do not attempt to exert coercive control.
(F) In relationships in which both victim and domestic abuser use violence (excluding self-defense).
(ii) Due to the demographics of the military population, structure of military organizations, and military culture, it is often possible to intervene in a potentially abusive relationship before the individual uses coercive techniques to gain and maintain control of the other party. Thus, a reliance on addressing the abuser's repeated use of power and control tactics as the sole or primary focus of treatment is frequently inapplicable in the military community.
(iii) Treatment objectives, when applicable, will seek to:
(A) Educate the abuser about what domestic abuse is and the common dynamics of domestic abuse in order for the abuser to learn to identify his or her own abusive behaviors.
(B) Identify the abuser's thoughts, emotions, and reactions that facilitate abusive behaviors.
(C) Educate the abuser on the potential for re-abusing, signs of abuse escalation and the normal tendency to regress toward previous unacceptable behaviors.
(D) Identify the abuser's deficits in social and relationship skills. Teach the abuser non-abusive, adaptive, and pro-social interpersonal skills and healthy sexual relationships, including the role of intimacy, love, forgiveness, development of healthy ego boundaries, and the appropriate role of jealousy.
(E) Increase the abuser's empathic skills to enhance his or her ability to understand the impact of violence on the victim and empathize with the victim.
(F) Increase the abuser's self-management techniques, including assertiveness, problem solving, stress management, and conflict resolution.
(G) Educate the abuser on the socio-cultural basis for violence.
(H) Identify and address issues of gender role socialization and the relationship of such issues to domestic abuse.
(I) Increase the abuser's understanding of the impact of emotional abuse and violence directed at children and violence that is directed to an adult but to which children in the family are exposed.
(J) Facilitate the abuser's acknowledgment of responsibility for abusive actions and consequences of actions. Although the abuser's history of victimization should be addressed in treatment, it should never take precedence over his or her responsibility to be accountable for his or her abusive and/or violent behavior, or be used as an excuse, rationalization, or distraction from being held so accountable.
(K) Identify and confront the abuser's issues of power and control and the use of power and control against victims.
(L) Educate the abuser on the impact of substance abuse and its correlation to violence and domestic abuse.
(iv) These factors should inform treatment planning:
(A) Special objectives for female abusers. Findings from research and clinical experience indicate that clinical treatment based solely on analyses of male power and control may not be applicable to female domestic abusers. Clinical approaches must give special attention to the motivation and context for use of violence and to self-identified previous traumatic experiences.
(B) Special Strategies for Grieving Abusers. When grief and loss issues have been identified in the clinical assessment or during treatment, the clinician will incorporate strategies for addressing grief and loss into the treatment plan. This is especially important if a victim has decided to end a relationship with a domestic abuser because of the abuse.
(1) Abusers with significant attachment issues who are facing the end of a relationship with a victim are more likely to use lethal violence against the victim and children in the family. This is exemplified by the statement: “If I can't have you no one else can have you.”
(2) They are also more likely to attempt suicide. This is exemplified by the statement: “Life without you is not worth living.”
(C) Co-Occurrence of substance abuse. The coordinated community management of risk is made more difficult when the person committing domestic abuse also abuses alcohol or other substances. When the person committing domestic abuse also abuses alcohol or other substances:
(1) Treatment for domestic abuse will be coordinated with the treatment for substance abuse and information shared between the treatment providers in accordance with applicable laws, regulations, and policies.
(2) Special consideration will be given to integrating the two treatment programs or providing them at the same time.
(3) Information about the abuser's progress in the respective treatment programs will be shared between the treatment providers. Providing separate treatment approaches with no communication between the treatment providers complicates the community's management of risk.
(D) Co-occurrence of child abuse. When a domestic abuser has allegedly committed child abuse, the clinician will:
(1) Notify the appropriate law enforcement agency and other civilian agencies as appropriate in accordance with 42 U.S.C. 13031.
(2) Notify the appropriate child protective services agency and the FAP supervisor to ascertain if a FAP child abuse case should be opened in accordance with DoD Instruction 6400.06 and 42 U.S.C. 5106g.
(3) Address the impact of such abuse of the child(ren) as a part of the domestic abuser clinical treatment.
(4) Seek to improve the abuser's parenting skills if appropriate in conjunction with other skills.
(5) Continuously assess the abuser as a parent or caretaker as appropriate throughout the treatment process.
(6) Address the impact of the abuser's domestic abuse directed against the victim upon children in the home as a part of the domestic abuser clinical treatment.
(E) Occurrence of sexual abuse within the context of domestic abuse. Although sexual abuse is a subset of domestic abuse, victims may not recognize that sexual abuse can occur in the context of a marital or intimate partner relationship. Clinicians should employ specific assessment strategies to identify the presence of sexual abuse within the context of domestic abuse.
(F) Deployment. Deployment of an active duty Service member who is a domestic abuser is a complicating factor for treatment delivery.
(1) A Service member who is scheduled to deploy in the near future may be highly stressed and therefore at risk for using poor conflict management skills.
(2) While on deployment, a Service member is unlikely to receive clinical treatment for the abuse due to mission requirements and unavailability of such treatment.
(3) A deployed Service member reported to FAP as a domestic abuser may return from deployment early for military disciplinary or civilian legal procedures, for R&R, or if clinical conditions warrant early return from deployment for treatment not otherwise available at the deployed location and if the commander feels early return is necessary under the circumstances. The home station command and installation FAP must be notified in advance of the early return of a deployed Service member with an open FAP case, unless operational security prevents disclosure, so that the risk to the victim can be assessed and managed.
(4) A Service member who is deployed in a combat operation or in an operation in which significant traumatic events occur may be at a higher risk of committing domestic abuse upon return.
(5) The Service member may receive head injuries. Studies indicate that such an injury increases the risk of personality changes, including a lowered ability to tolerate frustration, poor impulse control, and an increased risk of using violence in situations of personal conflict. If the Service member has a history of a head injury prior to or during deployment, the clinician should ascertain whether the Service member received a medical assessment, was prescribed appropriate medication, or is undergoing current treatment.
(6) The Service member may suffer from depression prior to, during, or after deployment and may be at risk for post-traumatic stress disorder. Studies indicate that males who are depressed are at higher risk of using violence in their personal relationships. If the Service member presents symptoms of depression, the clinician should ascertain whether the Service member has received a medical assessment, was prescribed appropriate medication, or is undergoing current treatment.
(3) Treatment modalities. Clinical treatment may be provided in one or more of these modalities as appropriate to the situation:
(i) Group therapy. Group therapy is the preferred mode of treatment for domestic abusers because it applies the concept of problem universality and offers opportunities for members to support one another and learn from other group members' experiences.
(A) The decision to assign an individual to group treatment is initially accomplished during the clinical assessment process; however, the group facilitator(s) should assess the appropriateness of group treatment for each individual on an ongoing basis.
(B) The most manageable maximum number of participants for a domestic abuser treatment group with one or two facilitators is 12.
(C) A domestic abuser treatment group may be restricted to one sex or open to both sexes. When developing a curriculum or clinical treatment agenda for a group that includes both sexes, the clinician should consider that the situations in paragraphs (d)(3)(i)(C)(1) through (d)(3)(i)(C)(3) are more likely to occur in a group that includes both sexes.
(1) Treatment-disruptive events such as sexual affairs or emotional coupling.
(2) Jealousy on the part of the non-participant victim.
(3) Intimidation of participants whose sex is in the minority within the group.
(D) A group may have one or two facilitators; if there are two facilitators, they may be of the same or both sexes.
(ii) Individual treatment. In lieu of using a group modality, approaches may be applied in individual treatment if the number of domestic abusers at the installation entering treatment is too small to create a group.
(iii) Conjoint treatment with substance abusers. When small numbers of both domestic abusers and substance abusers make separate treatment groups impractical, therapists should consider combining abusers into the same group because co-occurrence of domestic abuse and substance abuse has been documented in scientific literature and the content for clinical treatment of domestic abuse and substance abuse is very similar. When domestic abusers and substance abusers are combined into the same group, the facilitator(s) must be certified in substance abuse treatment as well as meeting the conditions in paragraph (e) of this section.
(iv) Conjoint treatment of victim and abuser. Domestic abuse in a relationship may be low-level in severity and frequency and without a pervasive pattern of coercive control.
(A) Limitations on Use. Conjoint treatment may be considered in such cases where the abuser and victim are treated together, but only if all of these conditions are met:
(1) Each of the parties separately and voluntarily indicates a desire for this approach.
(2) Any abuse, especially any violence, was infrequent, not severe, and not intended or likely to cause severe injury.
(3) The risk of future violence is periodically assessed as low.
(4) Each party agrees to follow safety guidelines recommended by the clinician.
(5) The clinician:
(i) Has the knowledge, skills, and abilities to provide conjoint treatment therapy as well as treat domestic abuse.
(ii) Fully understands the level of abuse and violence and specifically addresses these issues.
(iii) Takes appropriate measures to ensure the safety of all parties, including regular monitoring of the victim and abuser, using all relevant sources of information. The clinician will take particular care to ensure that the victim participates voluntarily and without fear and is contacted frequently to ensure that violence has not recurred.
(B) Contra-indications. Conjoint treatment will be suspended or discontinued if monitoring indicates an increase in the risk for abuse or violence. Conjoint treatment will not be used if one or more of these factors are present:
(1) The abuser:
(i) Has a history or pattern of violent behavior and/or of committing severe abuse.
(ii) Lacks a credible commitment or ability to maintain the safety of the victim or any third parties. For example, the abuser refuses to surrender personal firearms, ammunition, and other weapons.
(2) Either the victim or the abuser or both:
(i) Participates under threat, coercion, duress, intimidation, or censure, and/or otherwise participates against his or her will.
(ii) Has a substance abuse problem that would preclude him or her from substantially benefiting from conjoint treatment.
(iii) Has one or more significant mental health issues (e.g., untreated mood disorder or personality disorder) that would preclude him or her from substantially benefiting from conjoint treatment.
(v) Couple's meetings. Periodic case management meetings with the couple, as opposed to the ongoing conjoint therapy of a single victim and abuser, may be used only after the clinician (or clinicians) has made plans to ensure the safety of the victim. All couples meetings must be structured and co-facilitated by the clinician(s) providing treatment to the abusers and support for the victims to ensure support and protection for the victims.
(4) Treatment contract. Properly informing the abuser of the treatment rules is a condition for treating violations as a risk management issue. The clinician will prepare and discuss with the abuser an agreement between them that will serve as a treatment contract. The agreement will be in writing and the clinician will provide a copy to the abuser and retain a copy in the treatment record. The contract will include:
(i) Goals. Specific abuser treatment goals, as identified in the treatment plan.
(ii) Time and attendance requirements. The frequency and duration of treatment and the number of absences permitted.
(A) Clinicians may follow applicable State standards specifying the duration of treatment as a benchmark unless otherwise indicated.
(B) An abuser may not be considered to have successfully completed clinical treatment unless he or she has completed the total number of required sessions. An abuser may not miss more than 10 percent of the total number of required sessions. On a case-by-case basis, the facilitator should determine whether significant curriculum content has been missed and make-up sessions are required.
(iii) Crisis plan. A response plan for abuser crisis situations (information on referral services for 24-hour emergency calls and walk-in treatment when in crisis).
(iv) Abuser responsibilities. The abuser must agree to:
(A) Abstain from all forms of domestic abuse.
(B) Accept responsibility for previous abusive and violent behavior.
(C) Abstain from purchasing or possessing personal firearms or ammunition.
(D) Talk openly and process personal feelings.
(E) Provide financial support to his or her spouse and children per the terms of an agreement with the spouse or court order.
(F) Treat group members, facilitators, and clinicians with respect.
(G) Contact the facilitator prior to the session when unable to attend a treatment session.
(H) Comply with the rules concerning the frequency and duration of treatment, and the number of absences permitted.
(v) Consequences of treatment contract violations. Violation of any of the terms of the abuser contract may lead to termination of the abuser's participation in the clinical treatment program.
(A) Violations of the abuser contract may include, but are not limited to:
(1) Subsequent incidents of abuse.
(2) Unexcused absences from more than 10 percent of the total number of required sessions.
(3) Statements or behaviors of the abuser that show signs of imminent danger to the victim.
(4) Behaviors of the abuser that are escalating in severity and may lead to violence.
(5) Non-compliance with co-occurring treatment programs that are included in the treatment contract.
(B) If the abuser violates any of the terms of the abuser contract, the clinician or facilitator may terminate the abuser from the treatment program; notify the command, civilian criminal justice agency, and/or civilian court as appropriate; and notify the victim if contact will not endanger the victim.
(C) The command should take any action it deems appropriate when notified that the abuser's treatment has been terminated due to a contract violation.
(vi) Conditions of information disclosure. The circumstances and procedures, in accordance with applicable laws, regulations, and policies, under which information may be disclosed to the victim and to any court with jurisdiction.
(A) Past, present, and future acts and threats of child abuse or neglect will be reported to the member's commander; child protective services, when appropriate; and the appropriate military and/or civilian law enforcement agency in accordance with applicable laws, regulations, and policies.
(B) Recent and future acts and threats of domestic abuse will be reported to the member's commander, the appropriate military and/or civilian law enforcement agency, and the potential victim in accordance with applicable laws, regulations, and policies.
(vii) Complaints. The procedures according to which the abuser may complain regarding the clinician or the treatment.
(5) Treatment outside the FAP. If the abuser's treatment is provided by a clinician outside the FAP, the FAP clinical service provider will follow procedures in accordance with relevant laws, regulations, and policies regarding the confidentiality and disclosure of information. FAP may not close an open FAP case as resolved if the abuser does not consent to release of information from the outside provider confirming goal achievement, treatment progress, or risk reduction.
(6) Criteria for evaluating treatment progress and risk reduction. The FAP clinical service provider will assess progress in treatment and reduction of risk consistent with subpart B of this part. If a risk factor is not addressed within the FAP but is being addressed by a secondary clinical service provider, the FAP clinical service provider will ascertain the treatment progress or results in consultation with the secondary clinical service provider. Treatment progress should be assessed periodically using numerous sources, especially, but not limited to, the victim. In making contact with the victim and in using the information, promoting victim safety is the priority. Progress in clinical treatment and risk reduction is indicated by a combination of:
(i) Abuser behaviors and attitudes. An abuser is demonstrating progress in treatment when, among other indicators, he or she:
(A) Demonstrates the ability for self-monitoring and assessment of his or her behavior.
(B) Is able to develop a relapse prevention plan.
(C) Is able to monitor signs of potential relapse.
(D) Has completed all treatment recommendations.
(ii) Information from the victim and other relevant sources. The abuser is demonstrating progress in treatment when the victim and other relevant sources of information state any one or combination of the following: That the abuser has:
(A) Ceased all domestic abuse.
(B) Reduced the frequency of non-violent abusive behavior.
(C) Reduced the severity of non-violent abusive behavior.
(D) Delayed the onset of abusive behavior.
(E) Demonstrated the use of improved relationship skills.
(iii) Reduced ratings on risk assessment variables that are subject to change. The abuser has successfully reduced risk when the assessment of his or her risk is rated at the level the Military Service has selected for case closure.
(e) Personnel qualifications—(1) Minimum qualifications. All personnel who conduct clinical assessments of and provide clinical treatment to domestic abusers must have these minimum qualifications:
(i) A master's or doctoral-level human service and/or mental health professional degree from an accredited university or college.
(ii) The highest license in a State or clinical license in good standing in a State that authorizes independent clinical practice.
(iii) 1 year of experience in domestic abuse and child abuse counseling or treatment.
(2) Additional training. All personnel who conduct clinical assessments of and/or provide clinical treatment to domestic abusers must undergo this additional training:
(i) Within 6 months of employment, orientation into the military culture. This includes training in the Service rank structures and military protocol.
(ii) A minimum of 15 hours of continuing education units within every 2 years that are relevant to domestic abuse and child abuse. This includes, but is not limited to, continuing education in interviewing adult victims of domestic abuse, children, and domestic abusers, and conducting treatment groups.
(iii) Service FAP Managers must develop policies and procedures for continued education with clinical skills training that validates clinical competence, and not rely solely on didactic or computer disseminated training to meet continuing education requirements.
(f) QA—(1) QA procedures. The FAP Manager must ensure that clinical intervention undergoes these QA procedures:
(i) A quarterly peer review of a minimum of 10 percent of open clinical records that includes procedures for addressing any deficiencies with a corrective action plan
(ii) A quarterly administrative audit of a minimum of 10 percent of open records that includes procedures for addressing any deficiencies with a corrective action plan.
(2) FAC responsibilities. The installation FAC will analyze trends in risk management, develop appropriate agreements and community programs with relevant civilian agencies, promote military interagency collaboration, and monitor the implementation of such agreements and programs on a regular basis consistent with subpart B of this part.
(3) Evaluation and accreditation review. The installation domestic abuse treatment program will undergo evaluation and/or accreditation every 4 years, including an evaluation and/or accreditation of its coordinated community risk management program consistent with subpart B of 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.

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

Source:
78 FR 34251, June 7, 2013, unless otherwise noted.
§ 65.1
Purpose.
This part:
(a) Establishes policy, assigns responsibilities, and prescribes procedures for implementing DoD authorities and responsibilities for chapter 33 of title 38, United States Code (U.S.C.) (also known and hereafter referred to as “the Post-9/11 GI Bill”)
(b) Establishes policy for the use of supplemental educational assistance (hereafter referred to as “kickers”) for Service members with critical skills or specialties, or for members serving additional service in accordance with 38 U.S.C. 3316.
(c) Establishes policy for authorizing the transferability of education benefits (TEB) in accordance with 38 U.S.C. 3319.
(d) Assigns responsibility to the DoD Office of the Actuary to perform determinations in support of DoD funding responsibilities for 38 U.S.C. chapter 33 in accordance with 10 U.S.C. 183 and 2006.
§ 65.2
Applicability.
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 that Department), 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 within the DoD (hereinafter referred to collectively as the “DoD Components”). Section 65.6 of this part also applies to the Commissioned Corps of the Public Health Service (PHS) by agreement with the Surgeon General, and to the National Oceanic and Atmospheric Administration Commissioned Officer Corps (NOAA Corps) by agreement with the Director, NOAA Corps.
§ 65.3
Definitions.
Unless otherwise noted, these terms and their definitions are for the purpose of this part:
Active duty. For the Post-9/11 GI Bill, the term “active duty” is defined in 38 U.S.C. 3301(1).
Affiliation kicker. Supplemental educational assistance that may be offered by the Secretary of a Military Department to the monthly amount of educational assistance otherwise payable to an individual pursuant to paragraph (1)(B), or to paragraphs (2) through (7) (as applicable), of 38 U.S.C. 3313(c), to a Service 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.
Enlistment kicker. Supplemental educational assistance that may be offered by a Secretary of a Military Department to the monthly amount of educational assistance otherwise payable to an individual pursuant to paragraph (1)(B), or to paragraphs (2) through (7) (as applicable), of 38 U.S.C. 3313(c), who initially enlists 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.
Family member. A spouse or child as codified in 38 U.S.C. 101 who is enrolled in Defense Eligibility Enrollment Reporting System (DEERS).
Kickers. Supplemental educational assistance that may be offered by a Secretary of a Military Department to the monthly amount of educational assistance otherwise payable to an individual pursuant to paragraph (1)(B), or to paragraphs (2) through (7) (as applicable), of 38 U.S.C. 3313(c).
Reenlistment kicker. Supplemental educational assistance that may be offered by a Secretary of a Military Department to the monthly amount of educational assistance otherwise payable to an individual pursuant to paragraph (1)(B), or to paragraphs (2) through (7) (as applicable), of 38 U.S.C. 3313(c), to a member who, after completing 5 or more years of continuous service, signs an agreement to remain on active duty for a period of at least 2 years.
Secretary 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. For a member of the PHS, the term means the Surgeon General. For a member of the NOAA Corps, the term means the Director, NOAA Corps.
Service member. An individual serving 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 Service members, unless they are serving on active duty.) For purposes of § 65.6, includes members of the PHS and members of the NOAA Corps.
§ 65.4
Policy.
It is DoD policy that:
(a) Kickers may be authorized to assist in the recruitment, reserve affiliation, 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 critical units, to retain personnel.
(b) Transferability of education benefits may be used to promote recruitment and retention.
§ 65.5
Responsibilities.
(a) The Deputy Assistant Secretary of Defense for Military Personnel Policy (DASD(MPP)), under the authority, direction, and control of the Assistant Secretary of Defense for Readiness and Force Management, shall:
(1) Develop guidance and procedures for implementation and oversight of DoD authorities and responsibilities under the Post-9/11 GI Bill.
(2) Coordinate administrative procedures of the Post-9/11 GI Bill with the Department of Veterans Affairs (VA), and other appropriate DoD and intergovernmental agencies, as applicable.
(3) Review and approve each Military Department plan to use supplemental assistance in accordance with the provisions of 38 U.S.C. 3316.
(4) Establish the standard data elements needed to administer the Post-9/11 GI Bill.
(b) The Under Secretary of Defense (Comptroller) (USD(C))/Chief Financial Officer (CFO) (USD(C)/CFO), Department of Defense shall:
(1) Provide guidance on budgeting, accounting, and funding for the educational benefits program in support of plans established in § 65.6, and for investing the available DoD Education Benefits Fund balance.
(2) In coordination with the DASD(MPP), review and approve the Military Department budget estimates for the supplemental payments in accordance with the provisions of 38 U.S.C. 3316.
(c) The Director, Department of Defense Human Resources Activity (DoDHRA), under the authority, direction, and control of the Under Secretary of Defense for Personnel and Readiness, shall ensure the Director, Defense Manpower Data Center (DMDC) shall:
(1) Replicate Post 9/11 GI Bill eligibility data using the Veterans Affairs and DoD Identity Repository (VADIR) with the DVA as needed and specified.
(i) Maintain personnel information needed by the DVA to determine benefit entitlement.
(ii) Maintain DVA payment and usage data for the Post 9/11 GI Bill program.
(2) [Reserved]
(d) The Secretaries Concerned shall:
(1) Provide implementing guidance within their Department to govern the administration of the Post-9/11 GI Bill consistent with this part and other guidance issued by the DASD(MPP) and the USD(C)/CFO consistent with the needs of the Military Services. This guidance must include Service implementation of kickers and the transfer of unused educational benefits as established in 38 U.S.C. 3319, as outlined in § 65.6.
(2) Ensure that all eligible active duty Service members and members of the Reserve Components are aware that they are automatically eligible for Post-9/11 GI Bill educational assistance upon serving the required active duty time as outlined in 38 U.S.C. 3311.
(3) Ensure that all officers without earlier established eligibility, following commissioning through the Service academies (with the exception of the Coast Guard Academy for individuals who enter into an agreement to service before January 4, 2011) or Reserve Officer Training Corps Scholarship Programs consistent with 10 U.S.C. 2107, are aware that their eligible period of active duty for Post-9/11 GI Bill benefits does not begin until they have completed their statutory obligated active duty service. Ensure that such officers are aware that any active duty service after that obligated period of service may qualify as active duty service for Post-9/11 GI Bill eligibility.
(4) Ensure that all Service members participating in the student loan repayment program in accordance with 10 U.S.C. chapter 109 are aware that their service counted pursuant to 10 U.S.C. chapter 109 does not count as qualifying active duty service for Post-9/11 GI Bill eligibility. Ensure that such Service members are aware that any service after that obligated period of service may qualify as active duty service for Post-9/11 GI Bill eligibility.
(5) Authorize kickers for recruitment and retention of individuals with critical skills or in programs that are hard to recruit or retain in accordance with 38 U.S.C. 3316, and advise the DASD(MPP) of such approval.
(6) Budget for and transfer funds to support the kickers, in accordance with § 65.6 of this part and guidance issued by the USD(C)/CFO.
(7) Ensure pre-separation or release from active duty counseling on Post-9/11 GI Bill benefits to active duty members and members of the Reserve Components with qualifying active duty service and document this counseling accordingly.
(8) Promulgate guidance for their Service(s) to administer the transferability of unused education entitlements to family members to support recruiting and retention in accordance with § 65.6.
(9) Ensure maintenance of records for individuals who receive kickers in accordance with 38 U.S.C. 3316. Provide those records to the DMDC and VA.
(10) Report all qualifying active duty pursuant to DoD Manual 7730.54-M-V1, “Reserve Component Common Personnel Data System (RCCPDS)” (see http://www.dtic.mil/whs/directives/corres/pdf/773054m_vol1.pdf).
(11) Direct use of DoD standard data elements and codes established by DoD Instruction 1336.05, “Automated Extract of Active Duty Military Personnel Records” (see http://www.dtic.mil/whs/directives/corres/pdf/133605p.pdf) and DoD Manual 7730.54-M when specified.
§ 65.6
Procedures.
(a) General eligibility. Eligibility and administration of the Post-9/11 GI Bill are the responsibility of the VA. Policies and procedures for utilization of Post-9/11 GI Bill benefits are available from that agency. Those policies and procedures are codified in 38 CFR part 21 and presented and updated at http://www.gibill.va.gov.
(b) Kickers—(1) Enlistment kickers. The use of enlistment kickers should be based on the criticality of the skill or the length of enlistment commitment and may be offered in amounts from $150 to $950 a month in increments of $100. Reporting codes for enlistment kickers are listed in DoD Instruction 1336.05 and DoD Manual 7730.54-M-V1.
(2) Affiliation kickers. The use of affiliation kickers shall 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 to $950 a 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 above the enlistment kicker will be in $100 increments. Reporting codes for affiliation kickers are the same as the codes for enlistment kickers listed in DoD Instruction 1336.05 and DoD Manual 7730.54-M-V1.
(3) Reenlistment kickers. The use of reenlistment kickers should be based on the criticality of the skill and may be offered in amounts from $100 to $300 a month in increments of $100, based on length of additional service. Reporting codes for reenlistment kickers are listed in DoD Instruction 1336.05 and DoD Manual 7730.54-M-V1.
(4) Payment of kickers. Kickers are paid by VA in conjunction with the monthly stipend paid pursuant to 38 U.S.C. 3313(c).
(c) Transferability of unused education benefits to family members. Subject to the provisions of this section, the Secretary Concerned, to promote recruitment and retention in the Uniformed Services, may permit an individual eligible for Post-9/11 GI Bill educational assistance to elect to transfer to one or more of his or her family members all or a portion of his or her entitlement to such assistance (see paragraphs (c)(1) and (c)(2) of this section).
(1) Eligible individuals. Any Service member on or after August 1, 2009, who is entitled to the Post-9/11 GI Bill at the time of the approval of his or her request to transfer that entitlement under this section, may transfer that entitlement provided he or she meets one of these conditions:
(i) Has at least 6 years of service in the Military Services (active duty or Selected Reserve), NOAA Corps, or PHS on the date of approval and agrees to serve 4 additional years in the Military Services, NOAA Corps, or PHS from the date of election.
(ii) Has at least 10 years of service in the Military Services (active duty or Selected Reserve), NOAA Corps, or PHS on the date of approval, is precluded by either standard policy (Service or DoD) or statute from committing to 4 additional years, and agrees to serve for the maximum amount of time allowed by such policy or statute.
(iii) Is or becomes retirement eligible during the period from August 1, 2009, through July 31, 2012, and agrees to serve the additional period, if any, specified in paragraphs (c)(1)(iii)(A) through (c)(1)(iii)(D) 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 pursuant to 10 U.S.C. 12732. This paragraph will no longer be in effect on August 1, 2013, and on or after that date all members must comply with paragraphs (c)(1)(i) or (c)(1)(ii) of this section to be eligible for transfer of unused education benefits to family members.
(A) For individuals eligible for retirement on August 1, 2009, no additional service is required.
(B) For individuals eligible for retirement after August 1, 2009, and before August 1, 2010, 1 year of additional service is required.
(C) For individuals eligible for retirement on or after August 1, 2010, and before August 1, 2011, 2 years of additional service is required.
(D) For individuals eligible for retirement on or after August 1, 2011, and before August 1, 2012, 3 years of additional service is required.
(iv) The provisions of paragraph (c)(1)(iii) of this section will apply to Service members recalled to active duty under the provisions of 10 U.S.C. 688 or members of the Individual Ready Reserve ordered to active duty under the provisions of 10 U.S.C. 12301(d) only when the active duty is for a period of at least 90 days.
(2) Eligible family members. (i) An individual approved to transfer an entitlement to educational assistance under this section may transfer that entitlement to his or her spouse, to one or more of his or her children, or to a combination of his or her spouse and one or more children.
(ii) For purposes of this provision, the definition of spouse and child are as codified in 38 U.S.C. 101. Confirmation of family members will be made using the DEERS.
(iii) Once an individual has designated a child as a transferee, a child's subsequent marriage will not affect his or her eligibility to receive the educational benefit; however, the individual retains the right to revoke or modify the transfer at any time.
(iv) Once an individual has designated a spouse as a transferee, subsequent divorce will not affect the transferee's eligibility to receive educational benefits; however, the eligible individual retains the right to revoke or modify the transfer at any time.
(3) Months of transfer. Months transferred must be whole months. The number of months of benefits transferred by an individual under this section may not exceed the lesser of:
(i) The months of Post-9/11 GI Bill unused benefits available.
(ii) 36 months.
(4) Transferee usage. (i) Policies and procedures for family member use of Post-9/11 GI Bill transferred educational benefits are the responsibility of the VA. Those policies and procedures are codified in 38 CFR part 21 and presented and updated at http://www.gibill.va.gov.
(ii) Commencement of use by a family member is subject to these conditions:
(A) A spouse may start to use the benefit only after the individual making the transfer has completed at least 6 years of service in the Military Services, NOAA Corps, or PHS.
(B) A child may start to use the benefit after the individual making the transfer:
(1) Has completed at least 10 years of service in the Military Services, NOAA Corps, or PHS, or
(2) Is separated for one of the reasons referred to in paragraph (c)(7)(ii) or (c)(7)(iii) of this section.
(5) Designation of transferee. An individual transferring an entitlement to educational assistance under this section shall, through notification to the Secretary Concerned as specified in paragraph (c)(9) of this section:
(i) Designate the family member or members to whom such entitlement is being transferred.
(ii) Designate the number of months of such entitlement to be transferred to each family member.
(iii) Specify the period for which the transfer shall be effective for each family member. The effective period must be on or after the date of designation.
(6) 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 family member only while serving in the Military Services (active duty or Selected Reserve.), NOAA Corps, or PHS. An individual may not add family members after retirement or separation from the Uniformed Services.
(ii) Modification or revocation. (A) An individual transferring entitlement in accordance with 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 family members, modify the number of months of the transferred entitlement for existing family members, or revoke transfer of entitlement while serving in the Uniformed Services.
(2) An individual may not add family members after retirement or separation from the Military Services, NOAA Corps, or PHS, but may modify the number of months of the transferred entitlement or revoke transfer of entitlement after retirement or separation for those family members who have received transferred benefits prior to separation or retirement.
(B) The modification or revocation of the transfer of entitlement 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 Military Services, NOAA Corps, or PHS will be made through the TEB Web site as described in paragraph (c)(8) of this section. Modifications or revocations after separation from the Military Services, NOAA Corps, or PHS will be accomplished through VA.
(7) Failure to complete service agreement. (i) Except as provided in this section, if an individual transferring entitlement under this section fails to complete the service agreed to consistent with paragraph (c)(1) of this section in accordance with the terms of the agreement, the amount of any transferred entitlement that is used as of the date of such failure shall be treated as an overpayment of educational assistance and shall be subject to collection by VA.
(ii) Paragraph (c)(7)(i) of this section shall not apply to an individual who fails to complete service agreement due to:
(A) His or her death.
(B) Discharge or release from active duty or the Selected Reserve for a medical condition that pre-existed his or her service and was not service-connected.
(C) Discharge or release from active duty or the Selected Reserve for hardship as determined by the Secretary of the Military Department concerned.
(D) Discharge or release from active duty or the Selected Reserve for a physical or mental condition, not a disability, that did not result from his or her willful misconduct, but did interfere with the performance of duty.
(iii) The transferor is also considered to have completed his or her service agreement as a result of being discharged for a disability or a reduction in force or force shaping.
(iv) The Secretaries of the Military Departments may promulgate guidance regarding waiver of the military service obligation agreed to consistent with paragraph (c)(1) of this section if the individual revokes all transfers and no benefits have been used.
(8) Procedures. All requests and transactions for individuals who remain in the Uniformed Services will be completed through the TEB Web application at https://www.dmdc.osd.mil/milconnect/. The TEB Users Manual, maintained on that site, will provide instruction for enrollment; verification; and additions, changes, and revocations. Modifications or revocations after separation from the Uniformed Services will be accomplished through VA.
(9) Regulations. The Secretaries of the Military Departments shall promulgate guidance to administer the transferability of unused education entitlements to family members in accordance with this part. Such guidance shall specify:
(i) The manner of verifying and documenting the additional service commitment, if any, consistent with paragraph (c)(1) of this section, to be authorized to transfer education benefits.
(ii) The manner of determining eligibility to authorize the transfer of education benefits as allowed in paragraphs (c)(1)(i), (c)(1)(ii), or (c)(1)(iii) of this section.
Pt. 66

PART 66—QUALIFICATION STANDARDS FOR ENLISTMENT, APPOINTMENT, AND INDUCTION
Sec.
66.1
Purpose.
66.2
Applicability.
66.3
Definitions.
66.4
Policy.
66.5
Responsibilities.
66.6
Enlistment, appointment, and induction criteria.
66.7
Enlistment waivers.

Authority:
10 U.S.C. 504, 505, 520, 532, 12102, 12201, and 12205.

Source:
80 FR 16270, Mar. 27, 2015, unless otherwise noted.
§ 66.1
Purpose.
In accordance with the authority in DoD Directive 5124.02, “Under Secretary of Defense for Personnel and Readiness (USD(P&R))” (available at http://www.dtic.mil/whs/directives/corres/pdf/512402p.pdf), this part:
(a) Updates established policies and responsibilities for basic entrance qualification standards for enlistment, appointment, and induction into the Military Services and delegates the authority to specify certain standards to the Secretaries of the Military Departments.
(b) Establishes the standards for age, aptitude, citizenship, dependents, education, medical, character/conduct, physical fitness, and other disqualifying conditions, which are cause for non-qualification for military service. Other standards may be prescribed in the event of national emergency.
(c) Sets standards designed to ensure that individuals under consideration for enlistment, appointment, or induction are able to perform military duties successfully, and to select those who are the most trainable and adaptable to Service life.
§ 66.2
Applicability.
This part applies to:
(a) 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 by agreement with that Department), 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 within the DoD (referred to collectively in this part as the “DoD Components”).
(b) Applicants for initial enlistment into the Military Services Regular and Reserve Components.
(c) Applicants for appointment as commissioned or warrant officers in the Regular and Reserve Components.
(d) Applicants for reenlistment following release from active duty into subsequent Regular or Reserve Components (including the Army National Guard of the United States and the Air National Guard of the United States) after a period of more than 6 months has elapsed since discharge.
(e) Applicants for contracting into the Reserve Officer Training Corps (ROTC), and all other Military Services special officer personnel procurement programs, including the Military Service Academies.
(f) All individuals being inducted into the Military Services.
§ 66.3
Definitions.
Unless otherwise noted, these terms and their definitions are for the purposes of this part.
Adjudicating authority. Any government official who is empowered to make findings or determinations concerning an alleged criminal offense (adult and juvenile) and establish responsibility for commission of the offense. Examples include judges, courts, magistrates, prosecutors, hearing officers, military commanders (for Article 15 actions pursuant to 10 U.S.C. chapter 47, suspension of dependent privileges, or similar actions), probation officers, juvenile referees, and parole officers or boards.
Adverse adjudication (adult or juvenile).
(1) A finding, decision, sentence, or judgment by an adjudicating authority, against an individual, that was other than unconditionally dropped or dismissed or the individual was acquitted is considered adverse adjudication. If the adjudicating authority places a condition or restraint that leads to dismissal, drops the charges, acquits, or the records are later expunged, or the charge is dismissed after a certain period of time, the adjudication is still considered adverse. A suspension of sentence, not processed, or a dismissal after compliance with imposed conditions is also adverse adjudication. This includes fines and forfeiture of bond in lieu of trial.
(2) A conviction for violating any federal law (including 10 U.S.C. chapter 47), or any State or municipal law or ordinance) is considered an adverse adjudication. For example, a shoplifter is reprimanded and required by the on-scene police officer, store security guard, or manager to pay for the item before leaving the store but is not charged, not found guilty, or is not convicted. In this situation, there is no adverse adjudication because no legal proceedings occurred and no adjudicating authority was involved.
Conviction. The act of finding a person guilty of a crime, offense, or other violation of the law by an adjudicating authority.
Dependent.
(1) A spouse of an applicant for enlistment.
(2) An unmarried adopted child or an unmarried step-child under the age of 18 living with the applicant.
(3) An unmarried biological child of the applicant under the age of 18.
(4) Any person living with the applicant who is, by law or in fact, dependent upon the applicant for support, or who is not living with the applicant and is dependent upon the applicant for over one-half of his or her support.
Reserve components. Includes the Army National Guard of the United States, the Army Reserve, the Navy Reserve, the Marine Corps Reserve, the Air National Guard of the United States, the Air Force Reserve, and the Coast Guard Reserve.
Restitution. Any compensation in time, labor, or money for the adverse effects of an offense as a result of agreements from judicial or prosecutorial involvement. For example, an individual is adversely adjudicated for vandalism and is ordered by the adjudicating authority to replace or repair the damaged property.
Service review. A formal review of condition(s) or event(s) that, based on Service-specific standards, may make an applicant for enlistment ineligible to serve. Once a Service review is complete, the Service may grant an exception to policy to allow an individual to serve. These standards are subject to change at the discretion of the Service.
Waiver. A formal request to consider the suitability for service of an applicant who because of inappropriate conduct, dependency status, current or past medical conditions, or drug use may not be qualified to serve. Upon the completion of a thorough examination using a “whole person” review, the applicant may be granted a waiver. The applicant must have displayed sufficient mitigating circumstances that clearly justify waiver consideration. The Secretaries of the Military Departments may delegate the final approval authority for all waivers.
§ 66.4
Policy.
It is DoD policy to:
(a) Use common entrance qualification standards for enlistment, appointment, and induction into the Military Services.
(b) Avoid inconsistencies and inequities based on ethnicity, gender, race, religion, or sexual orientation in the application of these standards by the Military Services.
(c) Judge the suitability of individuals to serve in the Military Services on the basis of their adaptability, potential to perform, and conduct.
§ 66.5
Responsibilities.
(a) Under the authority, direction, and control of the Under Secretary of Defense for Personnel and Readiness (USD(P&R)), the Assistant Secretary of Defense for Reserve Affairs (ASD(RA)) acts as an advisor to the USD(P&R) on the Reserve enlistment and appointment standards.
(b) Under the authority, direction, and control of the USD(P&R), the Assistant Secretary of Defense for Health Affairs (ASD(HA)) acts as an advisor to the USD(P&R) on the medical requirements of the standards in § 66.6.
(c) Under the authority, direction, and control of the USD(P&R), the Assistant Secretary of Defense for Readiness and Force Management (ASD(R&FM)):
(1) Acts as an advisor to the USD(P&R) on the height and weight requirements of the standards in § 66.6.
(2) Ensures the U.S. Military Entrance Processing Command assists the Military Services in implementing the standards in § 66.6 of this part.
(d) The Secretaries of the Military Departments:
(1) Oversee conformance with this part.
(2) Recommend suggested changes to this part to the USD(P&R) as necessary.
(3) Establish other Service-specific standards as necessary to implement this part.
(4) Review all standards on an annual basis.
(5) Establish procedures to grant waivers, accomplish reviews, and require individuals to meet the appropriate standards or be granted an exception pursuant to 10 U.S.C. 504(a).
(6) Request approval from the USD(P&R) for generalized exceptions to these standards as permitted by law.
(7) Use the standards in § 66.6 to determine the entrance qualifications for all individuals being enlisted, appointed, or inducted into any component of the Military Services.
§ 66.6
Enlistment, appointment, and induction criteria.
(a) General eligibility criteria—(1) Entrance considerations. Accession of qualified individuals will be a priority when processing applicants for the Military Services.
(2) Eligibility determination. Eligibility will be determined by the applicant's ability to meet all requirements of this part, to include obtaining waivers. Applicants will not be enlisted, appointed, or inducted unless all requirements of this part are met.
(b) Basic eligibility criteria—(1) Age. (i) To be eligible for Regular enlistment, the minimum age for enlistment is 17 years and the maximum age is 42 years in accordance with 10 U.S.C. 505. The maximum age for a prior service enlistee is determined by adding the individual's years of prior service to age 42. The Secretary concerned will establish enlistment age standards for the Reserve Components in accordance with 10 U.S.C. 12102.
(ii) Age limitations for appointment as a commissioned or warrant officer normally depend on the Military Service concerned. In accordance with 10 U.S.C. 532, most persons appointed as commissioned officers must be able to complete 20 years of active commissioned service before their 62nd birthday to receive a Regular commission.
(iii) In accordance with 10 U.S.C. 12201, a person will be at least 18 years of age for appointment as a Reserve Officer. The maximum age qualification for initial appointment as a Reserve Officer will not be less than 47 years of age for individuals in a health profession specialty designated by the Secretary concerned as a specialty critically needed in wartime.
(iv) In accordance with 32 U.S.C. 313, to be eligible for original enlistment in the National Guard, a person must be at least 17 years of age and under 45, or under 64 years of age and a former member of the Regular Army, Regular Navy, Regular Air Force, or Regular Marine Corps. To be eligible for reenlistment, a person must be under 64 years of age.
(v) In accordance with 32 U.S.C. 313, to be eligible for appointment as an officer of the National Guard, a person must be at least 18 years of age and under 64 years of age.
(2) Citizenship. (i) To be eligible for Regular or Reserve enlistment, an individual must meet one of the conditions outlined in 10 U.S.C. 504(b); however, the Secretary concerned may authorize the enlistment of a person not described in this section if the Secretary determines that such enlistment is vital to the national interest.
(ii) To be eligible for appointment as a commissioned officer (other than as a commissioned warrant officer) in the Regular Army, Regular Navy, Regular Air Force, or Regular Marine Corps, the individual must be a citizen of the United States as outlined in 10 U.S.C. 532. The Secretary of Defense (or the Secretary of Homeland Security for the Coast Guard) may waive the requirement of U.S. citizenship with respect to a person who has been lawfully admitted to the United States for permanent residence, or for a United States national otherwise eligible for appointment as a cadet or midshipman in accordance with 10 U.S.C. 2107(a), when the Secretary determines that the national security so requires, but only for an original appointment in a grade below the grade of major or lieutenant commander.
(iii) To be eligible for appointment as a Reserve Officer in an armed force, the individual must be a citizen of the United States or lawfully admitted to the United States for permanent residence in accordance with 8 U.S.C. 1101 et seq. (also known as the “Immigration and Nationality Act”) or have previously served in the Military Services or in the National Security Training Corps as outlined under 10 U.S.C. 12201.
(iv) To be eligible for enlistment in the National Guard, a person must meet one of the conditions in 10 U.S.C. 504(b); however, the Secretary concerned may authorize the enlistment of a person not described in this section if the Secretary determines that such enlistment is vital to the national interest.
(v) To become an officer of the Army National Guard of the United States or the Air National Guard of the United States, the individual must first be appointed to, and be federally recognized in, the same grade in the Army National Guard or the Air National Guard. In accordance with 10 U.S.C. 12201, the individual must be a citizen of the United States or lawfully admitted to the United States for permanent residence in accordance with 8 U.S.C. 1101 et seq. or have previously served in Military Service or in the National Security Training Corps.
(3) Education. (i) Possession of a high school diploma is desirable, although not mandatory, for enlistment in any component of the Military Services. 10 U.S.C. 520 states that a person who is not a high school graduate may not be accepted for enlistment in the Military Services unless the score of that person on the Armed Forces Qualification Test (AFQT) is at or above the thirty-first percentile. 10 U.S.C. 520 also states that a person may not be denied enlistment in the Military Services solely because he or she does not have a high school diploma if his or her enlistment is needed to meet established strength requirements.
(ii) Bearers of alternative credential (e.g., General Educational Development certificates and certificates of attendance) and non-graduates may be assigned lower enlistment priority based on first-term attrition rates for those credentials. DoD Instruction 1145.01, “Qualitative Distribution of Military Manpower” (available at http://www.dtic.mil/whs/directives/corres/pdf/114501p.pdf) identifies the authority for establishing the qualitative distribution objectives for accessions.
(iii) Educational requirements for appointment as a commissioned or warrant officer are determined by each Military Service. 10 U.S.C. 12205 establishes education requirements for certain Reserve appointments. Generally, and unless excepted under 10 U.S.C. 12205, a baccalaureate degree is required for appointment above the grade of first lieutenant in the Army, Air Force, and Marine Corps Reserves or lieutenant junior grade in the Navy Reserve, or to be federally recognized in a grade above the grade of first lieutenant as a member of the Army National Guard or Air National Guard. In addition, special occupations (e.g., physician or chaplain) may require additional vocational credentials as determined by the Secretary concerned.
(4) Aptitude. (i) Overall aptitude requirements for enlistment and induction are based on applicant scores on the AFQT derived from the Armed Services Vocational Aptitude Battery. Applicant scores are grouped into percentile categories. Persons who score in AFQT Category V (percentiles 1-9) are ineligible to enlist. In accordance with 10 U.S.C. 520, the number of persons who enlist in any Armed Force during any fiscal year (i.e., accession cohort) who score in AFQT Category IV (percentiles 10-30) may not exceed 20 percent of the total number of persons enlisted by Service. DoD Instruction 1145.01 identifies the authority for establishing the qualitative distribution objectives for accessions.
(ii) For officers and warrant officers, no single test or instrument is used as an aptitude requirement for appointment.
(5) Medical. (i) In accordance with DoD Instruction 6130.03, “Medical Standards for Appointment, Enlistment, or Induction in the Military Services” (available at http://www.dtic.mil/whs/directives/corres/pdf/613003p.pdf), the pre-accession screening process will be structured to identify any medical condition, including mental health, that disqualifies an applicant for military service.
(ii) Individuals who fail to meet established medical standards, as defined in DoD Instruction 6130.03, may be considered for a medical waiver. Each Service's waiver authority for medical conditions will make a determination based on all available information regarding the issue or condition. Waiver requirements are outlined in § 66.7.
(6) Physical fitness. (i) In accordance with DoD Instruction 1308.3, “DoD Physical Fitness and Body Fat Programs Procedures” (available at http://www.dtic.mil/whs/directives/corres/pdf/130803p.pdf), all individuals must meet the pre-accession height and weight standards as prescribed in Table 1 of DoD Instruction 1308.3.
(ii) The Military Services may have additional physical fitness screening requirements.
(7) Dependency status. (i) The Military Services may not enlist married individuals with more than two dependents under the age of 18 or unmarried individuals with custody of any dependents under the age of 18; however, the Secretary concerned may grant a waiver for particularly promising entrants. Waiver requirements are outlined in § 66.7 of this part.
(ii) The Military Services will specify the circumstances under which individuals who have dependents may become commissioned officers or warrant officers; variations in policy may be affected by the commissioning source (e.g., Service Academies, ROTC, or Officer Candidate School).
(8) Character/conduct. The underlying purpose of these enlistment, appointment, and induction standards is to minimize entrance of persons who are likely to become disciplinary cases, security risks, or who are likely to disrupt good order, morale, and discipline. The Military Services are responsible for the defense of the Nation and should not be viewed as a source of rehabilitation for those who have not subscribed to the legal and moral standards of society at-large. As a minimum, an applicant will be considered ineligible if he or she:
(i) Is under any form of judicial restraint (bond, probation, imprisonment, or parole).
(ii) Has a significant criminal record. 10 U.S.C. 504 prohibits any person who has been convicted of a felony from being enlisted in any of the Military Services; however, 10 U.S.C. 504 authorizes a waiver in meritorious cases. Except as limited by paragraph (b)(8)(iii) of this section, persons convicted of felonies may request a waiver to permit their enlistment. The waiver procedure is not automatic, and approval is based on each individual case. Waiver requirements are outlined in § 66.7 of this part.
(iii) Has a State or federal conviction or a finding of guilty in a juvenile adjudication for a felony crime of rape, sexual abuse, sexual assault, incest, any other sexual offense, or when the disposition requires the person to register as a sex offender. In these cases, the enlistment, appointment, or induction will be prohibited and no waivers are allowed.
(iv) Has been previously separated from the Military Services under conditions other than honorable or for the good of the Military Service concerned.
(v) Has exhibited antisocial behavior or other traits of character that may render the applicant unfit for service.
(vi) Receives an unfavorable final determination by the DoD Consolidated Adjudication Facility on a completed National Agency Check with Law and Credit (NACLC) or higher-level investigation, which is adjudicated to the National Security Standards in accordance with Executive Order 12968, during the accession process.
(A) An applicant may be accessed (including shipping him or her to training or a first duty assignment) provided that a NACLC or higher-level investigation was submitted and accepted by the investigative service provider (OPM) and an advanced fingerprint was conducted, and OPM did not identify any disqualifying background information.
(B) If NACLC adjudication is not completed until after accession, any additional disqualifying information identified during the adjudication should be transmitted to the appropriate personnel or human resource offices, as determined by the Services, for appropriate action.
(9) Drugs and alcohol. A current or history of alcohol dependence, drug dependence, alcohol abuse, or other drug abuse is incompatible with military life and does not meet military standards in accordance with DoD Instruction 6130.03. Pursuant to DoD Instruction 1010.01, “Military Personnel Drug Abuse Testing Program (MPDATP)” (available at http://www.dtic.mil/whs/directives/corres/pdf/101001p.pdf), the pre-accession screening process is structured to identify individuals with a history of drug (including pharmaceutical medications, illegal drugs and other substances of abuse) and alcohol abuse.
(i) Drug use (to include illegal drugs, other illicit substances, and pharmaceutical medications), drug abuse, and alcohol abuse may be self-admitted by an applicant, discovered during the medical screening process, or identified by the drug and alcohol test (DAT), which is administered at the Military Entrance Processing Stations (MEPS) or other approved military processing facility.
(ii) Current or history of alcohol dependence, drug dependence, alcohol abuse, or other drug abuse may be a medically disqualifying condition based on the standards in accordance with DoD Instruction 6130.03. The MEPS Chief Medical Officer, or equivalent, when the physical is not performed at MEPS, will make that determination based on all of the information available on a case-by-case basis. These instances will be treated as a medical disqualification and handled in accordance with the guidance provided in paragraphs (b)(5)(i) through (b)(5)(ii) of this section.
(iii) Individuals who test positive for illegal drugs on the DAT, which is administered as part of the accession physical, will be disqualified. A waiver may be requested. Waiver requirements are outlined in § 66.7.
(iv) Service qualification standards, regarding drugs and alcohol, may be more restrictive.
§ 66.7
Enlistment waivers.
(a) Waiver requirements. In accomplishing whole person reviews of enlistment eligibility, the following categories and combinations of categories would require a favorable waiver determination by the Secretary of the Military Department concerned for the applicant to be considered qualified.
(1) Medical waiver. A medical waiver is required for enlistment qualification of an applicant who has or may have had a disqualifying medical condition in accordance with DoD Instruction 6130.03.
(2) Dependent waiver. A dependent waiver is required when an applicant is married with more than two dependents under the age of 18 or when an applicant is unmarried and has custody of any dependents under the age of 18.
(3) Conduct waiver. In processing conduct waiver requests, the Military Services will require information about the “who, what, when, where, and why” of the offense in question; and letters of recommendation from responsible community leaders, such as school officials, clergy, and law enforcement officials, attesting to the applicant's character or suitability for enlistment.
(i) A Conduct Waiver is required when the final finding of the courts or other adjudicating authority is a conviction or other adverse adjudication of:
(A) One “major misconduct” offense, or;
(B) Two “misconduct” offenses, or;
(C) A pattern of misconduct.
(1) One “misconduct” offense and four “non-traffic” offenses.
(2) Five or more “non-traffic” offenses.
(ii) Use the Table of this section to determine the appropriate level of offense and applicable code. See paragraph (b) of this section for additional guidance.
(4) Drug waiver. A drug waiver is required when an applicant or enlistee is confirmed positive for the presence of drugs at the time of the original or subsequent physical examination (i.e., tests positive on the DAT at a MEPS or equivalent facility). Drug waivers for these applicants may be considered and granted or rejected only after the disqualification period established in section 6 of Enclosure 7 of DoD Instruction 1010.16, “Technical Procedures for the Military Personnel Drug Abuse Testing Program (MPDATP)” (available at http://www.dtic.mil/whs/directives/corres/pdf/101016p.pdf) ends.
(b) Classifying conduct offenses. The procedures that will be used in the classifying and coding of all conduct offenses are:
(1) Initial classification. Align the offense that is the subject of adverse adjudication with an offense from the Table of this section. As an exception, any offense classified as a felony under State or federal jurisdiction will be treated as a major misconduct offense for DoD purposes regardless of where similar charges are listed.
(2) Non-similar offenses. If unable to find a similar charge, the Military Services will:
(i) Treat the offense as a major misconduct offense if the adjudicating authority can impose a maximum period of confinement that exceeds 1 year.
(ii) Treat the offense as a misconduct offense if the adjudicating authority can impose a maximum period of confinement that exceeds 6 months but is not more than 1 year.
(iii) Treat all other offenses as either other non-traffic offenses or traffic offenses, depending on the nature of the offense.
Table to § 66.7—Conduct Waiver Codes
Offense code | Offense title
TRAFFIC OFFENSES
100 | Bicycle ordinance violation.
101 | Blocking or retarding traffic.
102 | Contempt of court for minor traffic offenses.
103 | Crossing yellow line; driving left of center.
104 | Disobeying traffic lights, signs, or signals.
105 | Driving on shoulder.
106 | Driving uninsured vehicle.
107 | Driving with blocked vision and/or tinted window.
108 | Driving with expired plates or without plates.
109 | Driving with suspended or revoked license.
110 | Driving without license.
111 | Driving without registration or with improper registration.
112 | Driving wrong way on one-way street.
113 | Failure to appear for traffic violations.
114 | Failure to comply with officer's directive.
115 | Failure to have vehicle under control.
116 | Failure to signal.
117 | Failure to stop or yield to pedestrian.
118 | Failure to submit report after accident.
119 | Failure to yield right-of-way.
120 | Faulty equipment such as defective exhaust, horn, lights, mirror, muffler, signal device, steering device, tail pipe, or windshield wipers.
121 | Following too closely.
122 | Hitchhiking.
123 | Improper backing such as backing into intersection or highway, backing on expressway, or backing over crosswalk.
124 | Improper blowing of horn.
125 | Improper passing such as passing on right, passing in no-passing zone, passing stopped school bus, or passing pedestrian in crosswalk.
126 | Improper turn.
127 | Invalid or unofficial inspection sticker or failure to display inspection sticker.
128 | Jaywalking.
129 | Leaving key in ignition.
130 | Leaving scene of accident (when not considered hit and run).
131 | License plates improperly displayed or not displayed.
132 | Operating overloaded vehicle.
133 | Racing, dragging, or contest for speed.
134 | Reckless, careless, or imprudent driving (considered a traffic offense when the fine is less than $300 and there is no confinement). Court costs are not part of a fine.
135 | Reserved for future use.
136 | Seat belt and/or child restraint violation.
137 | Skateboard, roller skate, or inline skate violation.
138 | Speeding.
139 | Spilling load on highway.
140 | Spinning wheels, improper start, zigzagging, or weaving in traffic.
141 | Violation of noise control ordinance.
142 | Other traffic offenses not specifically listed.
143 | Reserved for future use.
144 | Reserved for future use.
NON-TRAFFIC OFFENSES
200 | Altered driver's license or identification.
201 | Assault (simple assault with fine or restitution of $500 or less and no confinement).
202 | Carrying concealed weapon (other than firearm); possession of brass knuckles.
203 | Check, worthless, making or uttering, with intent to defraud or deceive (less than $500).
204 | Committing a nuisance.
205 | Conspiring to commit misdemeanor.
206 | Curfew violation.
207 | Damaging road signs.
208 | Discharging firearm through carelessness or within municipal limits.
209 | Disobeying summons; failure to appear (other than traffic).
210 | Disorderly conduct; creating disturbance; boisterous conduct.
211 | Disturbing the peace.
212 | Drinking alcoholic beverages on public transportation.
213 | Drunk in public.
214 | Dumping refuse near highway.
215 | Failure to appear, contempt of court (all offenses except felony proceedings).
216 | Failure to appear, contempt of court (felony proceedings).
217 | Failure to stop and render aid after accident.
| 218 | Fare and/or toll evasion.
219 | Harassment, menacing, or stalking.
220 | Illegal betting or gambling; operating illegal handbook, raffle, lottery, or punchboard; cockfighting.
221 | Indecent exposure.
222 | Indecent, insulting, or obscene language communicated directly or by telephone to another person.
223 | Jumping turnstile (to include those States that adjudicate jumping a turnstile as petty larceny).
224 | Juvenile adjudications such as beyond parental control, incorrigible, runaway, truant, or wayward.
225 | Killing a domestic animal.
226 | Littering.
227 | Loitering.
228 | Malicious mischief (fine or restitution of $500 or less and no confinement).
229 | Pandering.
230 | Poaching.
231 | Purchase, possession, or consumption of alcoholic beverages or tobacco products by minor.
232 | Removing property from public grounds.
233 | Removing property under lien.
234 | Robbing an orchard.
235 | Shooting from highway.
236 | Throwing glass or other material in roadway.
237 | Trespass (non-criminal or simple).
238 | Unlawful assembly.
239 | Unlawful manufacture, sale, possession, or consumption of liquor in public place.
240 | Unlawful use of long-distance telephone calling card.
241 | Using or wearing unlawful emblem and/or identification.
242 | Vagrancy.
243 | Vandalism (fine or restitution of $500 or less and no confinement).
244 | Violation of fireworks laws.
245 | Violation of fish and game laws.
246 | Violation of leash laws.
247 | Violation of probation.
248 | Other non-traffic offenses not specifically listed.
249 | Reserved for future use.
MISCONDUCT OFFENSES
300 | Aggravated assault, fighting, or battery (more than $500 fine or restitution or confinement).
301 | Carrying of weapon on school grounds (other than firearm).
302 | Concealment of or failure to report a felony.
303 | Contributing to delinquency of minor.
304 | Crimes against the family (non-payment of court-ordered child support and/or alimony).
305 | Criminal mischief (more than $500 fine or restitution or confinement).
306 | Criminal trespass.
307 | Desecration of grave.
308 | Domestic battery and/or violence not considered covered by 18 U.S.C. 922, referred to in this issuance as the “Lautenberg Amendment”).
309 | Driving while drugged or intoxicated; driving while ability impaired; permitting driving under the influence.
310 | Illegal or fraudulent use of a credit card or bank card (value less than $500).
311 | Larceny or conversion (value less than $500).
312 | Leaving scene of an accident or hit and run.
313 | Looting.
314 | Mailbox destruction.
315 | Mailing of obscene or indecent matter (including e-mail).
316 | Possession of marijuana or drug paraphernalia.
317 | Prostitution or solicitation for prostitution.
318 | Reckless, careless, or imprudent driving (considered a misdemeanor when the fine is $300 or more or when confinement is imposed; otherwise, considered a minor traffic offense).
319 | Reckless endangerment.
320 | Resisting arrest or eluding police.
321 | Selling or leasing weapons.
322 | Stolen property, knowingly receiving (value less than $500).
323 | Throwing rocks on a highway; throwing missiles at sporting events; throwing objects at vehicles.
324 | Unauthorized use or taking of a vehicle or conveyance from family member; joy riding.
325 | Unlawful carrying of firearms or carrying concealed firearm.
326 | Unlawful entry.
327 | Use of telephone, Internet, or other electronic means to abuse, annoy, harass, threaten, or torment another.
328 | Vandalism (more than $500 fine or restitution or confinement).
329 | Willfully discharging firearm so as to endanger life; shooting in public.
330 | Other misconduct offenses not specifically listed.
331 | Reserved for future use.
332 | Reserved for future use.
| MAJOR MISCONDUCT OFFENSES
400 | Aggravated assault; assault with dangerous weapon; maiming.
401 | Arson.
402 | Attempt to commit a felony.
403 | Breaking and entering with intent to commit a felony.
404 | Bribery.
405 | Burglary.
406 | Carjacking.
407 | Carnal knowledge of a child.
408 | Carrying of weapon on school grounds (firearm).
409 | Check, worthless, making or uttering, with intent to defraud or deceive (over $500).
410 | Child abuse.
411 | Child pornography.
412 | Conspiring to commit a felony.
413 | Criminal libel.
414 | Domestic battery and/or violence as defined in the Lautenberg Amendment. (Waiver not authorized if applicant was convicted of this offense.)
415 | Embezzlement.
416 | Extortion.
417 | Forgery, knowingly uttering or passing forged instrument (except for altered identification cards).
418 | Grand larceny or larceny (value of $500 or more).
419 | Grand theft auto.
420 | Hate crimes.
421 | Illegal and/or fraudulent use of a credit card, bank card, or automated card (value of $500 or more).
422 | Indecent acts or liberties with a child; molestation.
423 | Indecent assault.
424 | Kidnapping or abduction.
425 | Mail matter; abstracting, destroying, obstructing, opening, secreting, stealing, or taking (not including the destruction of mailboxes).
426 | Manslaughter.
427 | Murder.
428 | Narcotics or habit-forming drugs, wrongful possession or use (not including marijuana).
429 | Negligent or vehicular homicide.
430 | Perjury or subornation of perjury.
431 | Possession or intent to use materials in a manner to make a bomb or explosive device to cause bodily harm or destruction of property.
432 | Public record; altering, concealing, destroying, mutilating, obligation, or removing.
433 | Rape, sexual abuse, sexual assault, criminal sexual abuse, incest, or other sex crimes. (See paragraph (b)(8)(iii) of § 66.6 of this part; waivers for these offenses are not authorized.)
434 | Riot.
435 | Robbery (including armed).
436 | Sale, distribution, or trafficking of cannabis (marijuana) or any other controlled substance (including intent).
437 | Sodomy (only when it is nonconsensual or involves a minor).
438 | Stolen property, knowingly received (value of $500 or more).
439 | Terrorist threats (including bomb threats).
440 | Violation of civil rights.
441 | Other major misconduct offenses not specifically listed.
442 | Reserved for future use.
443 | Reserved for future use.
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. 68

PART 68—VOLUNTARY EDUCATION PROGRAMS
Sec.
68.1
Purpose.
68.2
Applicability.
68.3
Definitions.
68.4
Policy.
68.5
Responsibilities.
68.6
Procedures.
Appendix A to Part 68—DoD Voluntary Education Partnership Memorandum of Understanding (MOU) Between DoD Office of the Under Secretary of Defense for Personnel and Readiness (USD(P&R)) and [Name of Educational Institution]
Appendix B to Part 68—Addendum for Education Services Between [Name of Educational Institution] and the U.S. Air Force (USAF)
Appendix C to Part 68—Addendum for Education Services between [Name of Educational Institution] and the U.S. Army
Appendix D to Part 68—Addendum for Education Services between [Name of Educational Institution] and the U.S. Marine Corps
Appendix E to Part 68—Addendum for Education Services between [Name of Educational Institution] and the U.S. Navy

Authority:
10 U.S.C. 2005, 2007.

Source:
79 FR 27737, May 15, 2014, unless otherwise noted.
§ 68.1
Purpose.
This part:
(a) Implements policy, assigns responsibilities, and prescribes procedures for the operation of voluntary education programs in the DoD.
(b) Establishes policy stating the eligibility criteria for tuition assistance (TA) and the requirement for a memorandum of understanding (MOU) from all educational institutions providing educational programs through the DoD TA Program.
(c) Establishes policy that:
(1) All educational institutions providing education programs through the DoD Tuition Assistance (TA) Program:
(i) Will provide meaningful information to students about the financial cost and attendance at an institution so military students can make informed decisions on where to attend school.
(ii) Will not use unfair, deceptive, and abusive recruiting practices.
(iii) Will provide academic and student support services to Service members and their families.
(2) Creates rules to strengthen existing procedures for access to DoD installations by educational institutions.
(3) Requires an annual review and notification process of uniform semester-hour (or equivalent) TA caps and annual TA ceilings.
(4) Requires the Military Departments to provide their Service members with a joint services transcript (JST).
(5) Implements the DoD Postsecondary Education Complaint System for Service members, spouses, and adult family members to register student complaints.
(6) Authorizes the Military Departments to establish Service-specific TA eligibility criteria and management controls.
(d) Establishes the Interservice Voluntary Education Board.
§ 68.2
Applicability.
This part 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 DoD, the Defense Agencies, the DoD Field Activities, and all other organizational entities within the DoD (referred to collectively in this part as the “DoD Components”).
§ 68.3
Definitions.
The following terms and their definitions are for the purpose of this part:
Academic. Relating to education, educational studies, an educational institution, or the educational system.
Academic skills. Competencies in English, reading, writing, speaking, mathematics, and computer skills that are essential to successful job performance and new learning. Also referred to as functional or basic skills.
Active Guard and Reserve (AGR). National Guard or Reserve members of the Selected Reserve (SELRES) who are ordered to active duty or full-time National Guard duty for a period of 180 consecutive days or more for the purpose of organizing, administering, recruiting, instructing, or training the Reserve Component (RC) units or duties as prescribed in 10 U.S.C. 12310. All AGR members must be assigned against an authorized mobilization position in the unit they support. (Includes Navy full-time support (FTS), Marine Corps Active Reserve (ARs), and Coast Guard Reserve Personnel Administrators (RPAs)).
American Council on Education (ACE). The major coordinating body for all of the Nation's higher education institutions. Seeks to provide leadership and a unifying voice on key higher education issues and publishes the “Guide to the Evaluation of Educational Experiences in the Armed Services.”
Annual TA Ceiling. The maximum dollar amount authorized for each Service member for TA per fiscal year. Each Service member participating in off-duty voluntary education programs will be entitled to the full amount authorized each fiscal year in accordance with DoD policy.
Army/American Council on Education Registry Transcript System. A document sent directly from the Army American Council on Education Registry Transcript System Center to the educational institution to articulate a soldier's military experience and training and the American Council on Education-recommended college credit for this training and experience. The JST consolidates data from the legacy Army/ACE Registry Transcript System.
Degree requirements. A document provided by the educational institution that outlines required courses and conditions to complete an educational program. The document presents the general education, major-related, and elective course requirements, degree competencies (e.g., foreign language, computer literacy), and other requirements (e.g., examination, thesis, dissertation, practicum, grade point average, credits by course level, or academic residency) for the specified program of study. This document becomes the basis for the evaluated educational plan.
DoD Installation. For the purposes of this Instruction, any active duty military, Reserve or National Guard owned, leased, or operated base, reservation, post, site, camp, building, or other facility to which DoD personnel are assigned for duty.
Education advisor. A professionally qualified, subject matter expert or program manager in the Education Services Series 1740 or possessing equivalent qualifications at the education center. The following position titles may also be used for an education advisor: Education Services Specialist, Education Services Officer (ESO), Voluntary Education Director, Navy College Office Director, and Education and Training Section (ETS) Chief.
Education center. A DoD installation facility, including office space, classrooms, laboratories, or other features, that is staffed with professionally qualified personnel and to conduct voluntary education programs. This may be located at an active duty military installation, Reserve and National Guard facility (state readiness center, armory, unit, etc.), or recruiting center (leased space inside a shopping mall or office building). For Navy, this is termed the “Navy College Office.”
Educational institution. A college, university, or other institution of higher education. For the purposes of this Instruction, the parent/home/main campus and any sub-campuses included in the signed MOU with DoD.
Educational institution agent. A lawful agent of the educational institution is limited to persons who have written authorization to act on behalf of the educational institutions.
Educational institution representative. An employee of the educational institution.
Eligible adult family member. The adult family member, over the age of 18, of an active duty, Reserve, National Guardsman, or DoD civilian with a valid DoD identification card.
Evaluated educational plan. An individualized official academic document provided by the educational institution that:
(1) Articulates all degree requirements for degree completion or in the case of a non-degree program, all educational requirements for completion of the program;
(2) Identifies all courses required for graduation in the individual's intended academic discipline and level of postsecondary study; and
(3) Includes an evaluation of all successfully completed prior coursework, and evaluated credit for military training and experience, and other credit sources applied to the institutional degree requirements. At a minimum, the evaluated educational plan will identify required courses and where appropriate, College Level Examination Program, DSST (formerly known as the DANTES Subject Standardized Tests) Program, and potential American Council on Education recommended college credits for training and experiences. For participating SOC Degree Network System institutions, the SOC Degree Network System Student Agreement serves as this evaluated educational plan. For some educational institutions this may be termed a degree audit.
Individual Ready Reserve (IRR). A manpower pool consisting principally of individuals who have had training, have previously served in the Active Component or in the SELRES, and have some period of their military service obligation or other contractual obligation remaining. Some individuals volunteer to remain in the IRR beyond their military service or contractual obligation and participate in programs providing a variety of professional assignments and opportunities for earning retirement points and military benefits.
Joint services transcript (JST). An official education transcript tool for documenting the recommended ACE college credits for a variety of professional military education, training courses, and occupational experience of Service members across the Services. The JST consolidates data from legacy documents such as the Army/ACE Registry Transcript System, the Sailor/Marine ACE Registry Transcript System, the Community College of the Air Force transcript, and the Coast Guard Institute transcript.
Needs assessment. A process used to determine the staffing requirements, course offerings, size of facilities, funding, or other standards for delivery of educational programs.
Off-duty. Time when the Service member is not scheduled to perform official duties.
Ready Reserve. Composed of military members of the Reserve and National Guard, organized in units or as individuals, or both, and liable for involuntary order to active duty in time of war or national emergency pursuant to 10 U.S.C. 12310 and 12301 and 14 U.S.C. 712 in the case of members of the Coast Guard Reserve. The Ready Reserve consists of the SELRES, the IRR, and the Inactive National Guard.
Sailor/Marine American Council on Education Registry Transcript System. A document sent directly from the Sailor/Marine ACE Registry Transcript System Operations Center to the educational institution to articulate a Sailor's or Marine's military experience and training and the American Council on Education recommended college credit for this training and experience. The JST consolidates data from the legacy Sailor/Marine ACE Registry Transcript System.
Semester-hour TA cap. The maximum dollar amount authorized for TA per semester-hour (or equivalent) credit. A Service will pay no more than the established DoD cap per semester-unit (or equivalent) for tuition.
Servicemembers Opportunity Colleges (SOC). A consortium of over 1,800 colleges and universities, created in 1972 that seeks to enhance the educational opportunities to Service members who may have difficulty in completing college programs due to frequent military moves.
Third Party Education Assessment. A third-party evaluation of voluntary education programs covered by the DoD Voluntary Education Partnership MOU.
Top-Up. An option, under the Montgomery G.I. Bill and the Post-9/11 G.I. Bill, that enables active duty Service members and certain Reservists to receive from the VA those tuition costs that exceed or are not authorized in the amount of TA provided to the Service member by his or her Service. Entitlement is charged differently depending on which G.I. Bill program a Service member uses. The Montgomery G.I. Bill entitlement is charged based on the dollar amount of benefits VA pays to the individual. The Service member will be charged one month of entitlement for each payment received that is equal to the full-time monthly rate for the Montgomery G.I. Bill. The Post-9/11 entitlement is charged based on the enrolled amount of time and the individual's rate of pursuit during the period of enrollment. If a Service member is attending classes part-time or at the 1/2 time level, the charge is 1/2 month of Post-9/11 G.I. Bill benefits for each month enrolled and receiving G.I. Bill benefits.
Troops-to-Teachers program (TTT). A DoD program to assist transitioning Service members and veterans in meeting the requirements necessary to become a teacher and facilitating their subsequent employment.
Tuition assistance (TA). Funds provided by the Military Services or U.S. Coast Guard to pay a percentage of the charges of an educational institution for the tuition of an active duty, Reserve or National Guard member of the Military Services, or Coast Guard member, enrolled in approved courses of study during off-duty time.
Voluntary education programs. Continuing, adult, or postsecondary education programs of study that Service members elect to participate in during their off-duty time, and that are available to other members of the military community.
§ 68.4
Policy.
It is DoD policy, consistent with DoD Directive 1322.08E, “Voluntary Education Programs for Military Personnel” (available at http://www.dtic.mil/whs/directives/corres/pdf/132208p.pdf), that:
(a) Members of the Military Services serving on active duty and members of the Selected Reserve (SELRES) will be afforded the opportunity to complete their high school education through a state-funded or Service component sponsored program; earn an equivalency diploma, improve their academic skills or level of literacy, enroll in career and technical education schools, receive college credit for military training and experience in accordance with the American Council on Education (ACE) Guide to the Evaluation of Educational Experiences in the Armed Services (available at http://www.acenet.edu/news-room/Pages/Military-Guide-Online.aspx), take tests to earn college credit, and enroll in postsecondary education programs that lead to industry-recognized credentials, and undergraduate and graduate degrees.
(b) Service members' costs to participate in the DoD Voluntary Education Program as authorized by 10 U.S.C. 2007, will be reduced through financial support, including TA that is administered uniformly across the Military Services. On an annual basis and no later than the end of the second quarter of the fiscal year, the Under Secretary of Defense for Personnel and Readiness (USD(P&R)), in coordination with the Military Departments, will review the uniform semester-hour (or equivalent) TA caps and annual TA ceilings to determine possible changes for the upcoming fiscal year. If there are any changes in the uniform semester-hour (or equivalent) caps and annual TA ceilings, a memorandum will be released from the USD(P&R), in coordination with the Military Departments, and a corresponding notice will be published in the Federal Register.
(c) Professional education counseling will be readily available and easy to access so that Service members can make informed decisions concerning available educational opportunities and benefits. Education counseling will be provided by qualified professional (Education Services Series 1740 or an individual with equivalent qualifications) in sufficient numbers to operate voluntary education programs as determined by individual Service standards.
(d) In accordance with Executive Order (E.O.) 13607:
(1) Educational institutions receiving funding from federal military educational benefits programs, such as the DoD TA Program, will:
(i) Provide meaningful information to students on the financial cost and attendance at an educational institution so military students can make informed decisions on where to attend school as stated in section 3 of Appendix A.
(ii) Prevent unfair, deceptive, and abusive recruiting practices that target Service members as defined by the Dodd-Frank Wall Street Reform and Consumer Protection Act and as stated in section 3 of Appendix A.
(iii) Provide academic and student support services specific to the institutions' programs to all enrolled Service members, spouses and adult family members.
(2) DoD will implement a centralized online complaint system for Service members, spouses, and adult family members that will register, track, and respond to student complaints. DoD or the assigned Military Service will work with educational institutions to resolve any filed complaints. Educational institutions having recurring, substantive complaints or demonstrating an unwillingness to resolve complaints may face a range of penalties from a directed Third Party Education Assessment to revocation of the DoD Voluntary Education Partnership MOU and removal from participation in the DoD TA Program. As appropriate, DoD will refer student complaints to other government agencies/regulators including but not limited to the Federal Trade Commission (FTC), Department of Justice (DOJ), Consumer Financial Protection Bureau (CFPB), Department of Veterans Affairs (VA), and Department of Education (ED).
(e) Educational institutions accredited by a national or regional accrediting agency recognized by ED will be encouraged to provide degree programs on DoD installations and the Military Services will facilitate their operations on the DoD installations referred to in § 68.6(c).
(f) To the extent that space is otherwise available, eligible adult family members of Service members, DoD civilian employees and their eligible adult family members, and military retirees may enroll in postsecondary education programs offered on a DoD installation at no cost to the individual Service TA programs.
§ 68.5
Responsibilities.
(a) The USD(P&R) will:
(1) Monitor implementation of and ensure compliance with this part and DoD Directive 1322.08E.
(2) Establish rates of TA and ensure uniformity across the Military Services as required by DoD Directive 1322.08E and this part. The uniform semester-hour (or equivalent) TA caps and annual TA ceilings will be reviewed annually and if changed, a memorandum from the USD(P&R) will be released following coordination with each of the Military Departments. Additionally, if the uniform TA rates are changed, a notice will be published in the Federal Register at approximately the start of the fiscal year.
(3) Establish, under the provisions of DoD Instruction 5105.18, “DoD Intergovernmental and Intragovernmental Committee Management Program” (available at http://www.dtic.mil/whs/directives/corres/pdf/510518p.pdf), the Interservice Voluntary Education Board, which will be composed of full-time or permanent part-time federal employees.
(4) Maintain a program to assess the effectiveness of the voluntary education programs.
(5) Issue written supplemental guidance annually for the funding and operation of the Defense Activity for Non-Traditional Education Support (DANTES) for those items not reflected in paragraph (f) of § 68.6.
(b) The Assistant Secretary of Defense for Readiness and Force Management (ASD(R&FM)), under the authority, direction, and control of the USD(P&R) will:
(1) Provide administrative assistance to the Deputy Assistant Secretary of Defense for Military Community and Family Policy (DASD(MCFP)), in support of the voluntary education programs.
(2) Respond to matters that are referred by the DASD(MCFP).
(c) The DASD(MCFP), under the authority, direction, and control of the ASD(R&FM), will:
(1) Monitor compliance with this part and DoD Directive 1322.08E and related issuances by personnel under his or her authority, direction, and control.
(2) Oversee the DoD Voluntary Education Program.
(3) Provide ongoing and routine clarifying guidance for the DoD Voluntary Education Program.
(4) Provide representatives to professional education and cross-agency panels addressing issues impacting the DoD Voluntary Education Program, its regulatory scope, clientele, and partners.
(5) Designate the Voluntary Education Chief within the Office of the DASD(MCFP) as the Chair of the Interservice Voluntary Education Board and oversee implementation of Board and DANTES procedures as detailed in § 68.6 of this part.
(6) Oversee the DoD Postsecondary Education Complaint System through which Service members, spouses, and adult family members receiving federal military and veterans educational benefits can register on-line complaints that will be tracked and responded to by DoD, VA, ED, CFPB, DOJ, FTC, and other relevant agencies. The DoD Postsecondary Education Complaint System is web-based and accessible on-line at https://afaems.langley.af.mil/pecs/DoDPECS. This complaint system contains the uniform procedures for the processing of the complaint intake (DD Form 2961, “DoD Postsecondary Education Complaint Intake”).
(7) Oversee the Third-Party Education Assessment, which is a third party review process to assess the quality, delivery, and coordination of the voluntary education programs provided to military personnel on the DoD installation, in the community, and via distance learning (DL). It assists in improving the quality of the delivery of these programs through recommendation to educational institutions, DoD installations, and the Military Services. DASD(MCFP) will monitor actions:
(i) By the Military Services to resolve recommendations for improvement identified on the respective Military Service's installation during the Third Party Education Assessment.
(ii) By the DoD Voluntary Education Chief to resolve recommendations for improvement concerning educational institutions operating off the DoD installation or via DL identified during Third Party Education Assessments. These educational institutions will provide corrective actions taken within 6 months of the assessment to the DoD Voluntary Education Chief. In instances when the issue cannot be resolved within the 6 month timeframe, the educational institution will submit a status report every 3 months to the DoD Voluntary Education Chief until the recommendation is resolved.
(8) Prepare written supplemental guidance annually for the USD(P&R) regarding the funding and operation of DANTES for those items not reflected in paragraph (f) of § 68.6.
(9) Oversee the policy of the JST.
(d) The Assistant Secretary of Defense for Reserve Affairs (ASD(RA)), under the authority, direction, and control of the USD(P&R), will:
(1) Monitor compliance with this part and DoD Directive 1322.08E and related issuances by personnel under his or her authority, direction, and control.
(2) Appoint a representative to serve on the Interservice Voluntary Education Board.
(3) Arrange the assignment of, on a rotating basis, a field grade officer, to serve as the RC Advisor to the Voluntary Education Chief and a representative on the Interservice Voluntary Education Board.
(e) The Secretaries of the Military Departments will:
(1) Monitor compliance with this part and DoD Directive 1322.08E and related issuances by personnel under their respective authority, direction, and control.
(2) Establish, maintain, coordinate, and operate voluntary education programs that encompass a broad range of educational experiences including, but not limited to, academic skills development, high school completion programs, vocational programs, career and technical programs, and programs leading to the award of undergraduate and graduate degrees.
(3) Require that sufficient funding is available to provide Service members with TA support consistent with the requirements in § 68.6 and appendices A, B, C, D, and E to this part.
(4) Require that educational counseling is available to Service members so they will have sufficient information and guidance to plan an appropriate program of study. Educational counseling will be provided by qualified professional (Education Services Series 1740 or an individual with equivalent qualifications) individuals.
(5) Require that voluntary education programs participate in the DoD-established third-party review process titled the Third Party Education Assessment.
(i) Within 6 months of the Third Party Education Assessment on their installation, the responsible Military Service will resolve recommendations received as a result of the assessment and provide the resolutions to the DoD Voluntary Education Chief. In instances when the issue cannot be resolved within the 6 month timeframe, the Military Service will submit a status report every 3 months to the DoD Voluntary Education Chief until the recommendation is resolved.
(ii) If the recommendation(s) requires involvement of an educational institution operating on their respective installation, the Military Service will coordinate the submission of corrective actions taken by the educational institution(s) through the appropriate Education Advisor, and forward the submission through their respective Military Service leadership to the DoD Voluntary Education Chief.
(iii) Waivers to the Third Party Education Assessment must be submitted to and approved by the DoD Voluntary Education Chief.
(6) Provide one representative to serve on the Interservice Voluntary Education Board responsible for their Services' voluntary education policy from each of the following Military Services: Army, Navy, Air Force, and Marine Corps. Each Service representative's membership will be on a permanent basis and changed only when their voluntary education policy position is changed.
(7) Assign, on a rotating basis, a senior enlisted Service member in the military pay grade E-9 to serve as the DANTES enlisted advisor.
(8) Assign, on a rotating basis, a field-grade officer to serve as the DANTES RC advisor.
(9) Require that military test control officers and test centers comply with the guidance and procedures published in the DANTES Examination Program Handbook, available at http://www.dantes.doded.mil/Programs/Docs/DEPH_part1.pdf.
(10) Require that personnel who provide counseling, advice, and program management related to voluntary education programs have access to the DoD Voluntary Education homepage and other Web sites so they can provide current and accurate information to Service members.
(11) Provide opportunities for Service members to access the Internet, where available, to enroll in and complete postsecondary courses that are part of their evaluated educational plan leading to an educational goal.
(12) Submit requested quarterly and annual information for the Voluntary Education Management Information System (VEMIS) by the 20th day of the month after the end of each fiscal quarter for the quarterly reports and November 15th each year for the annual report. Reporting information includes, but is not limited to, voluntary education program data on enrollments, participation, and costs.
(13) Respond to and resolve Service-specific student complaints received and managed through the DoD Postsecondary Education Complaint System.
(14) Provide Service members with a JST. At a minimum, the JST will include documented military student data, courses, and military occupations evaluated by ACE, including descriptions, learning outcomes, and equivalent college credit recommendations, as well as national college-level exam results. The U.S. Air Force (USAF) will continue to use the Community College of the Air Force (CCAF) to document its members' academic and military credit.
(f) Secretary of the Navy. The Secretary of the Navy, as the DoD Executive Agent (DoD EA) for DANTES pursuant to DoD Directive 1322.08E and DoD Directive 5101.1, “DoD Executive Agent” (available at http://www.dtic.mil/whs/directives/corres/pdf/510101p.pdf), and in addition to the responsibilities in this section, will:
(1) Transmit supplemental annual guidance issued by the USD(P&R) to DANTES for those items not reflected in paragraph (f) of § 68.6.
(2) Require that the Director, DANTES, provide updates on DANTES plans, operations, and activities to the USD(P&R).
(3) Through its civilian personnel system, advertise the position of Director, DANTES, when the position is vacated and appoint the Director, DANTES, in accordance with the procedures outlined in § 68.6.
§ 68.6
Procedures.
(a) TA for Service members participating in education programs. (1) TA will be available for Service members participating in high school completion and approved courses from accredited undergraduate or graduate education programs or educational institutions. Approved courses are those that are part of an identified course of study leading to a postsecondary certificate or degree and non-degree oriented language courses integral to the Defense Language Transformation Roadmap (available at http://www.defense.gov/news/Mar2005/d20050330roadmap.pdf).
(i) Use of TA for non-degree oriented language courses is limited to those published by the Under Secretary of Defense (P&R) on the DoD Strategic Language List.
(ii) Dominant-in-the-force languages and languages deemed by DoD as already having sufficient strategic capacity will not be funded under 10 U.S.C. 2007, except for assignments outside the continental United States.
(2) TA will be applied as follows:
(i) For 100 percent of the cost of approved high school completion programs for Service members who have not been awarded a high school or equivalency diploma and who are enrolled in such programs.
(ii) In support of the voluntary education of active duty Service members during their off-duty periods, each Military Service will pay all or a portion, as specified in paragraphs (a)(2)(ii)(A) through (F) of this section, of the charges of an educational institution for education during the member's off-duty periods. TA funding will only be paid to educational institutions accredited by an accrediting organization recognized by ED, approved VA funding, and certified to participate in federal student aid programs through the ED under Title IV of Public Law 89-329, also known and referred to in this part as the Higher Education Act of 1965. Whenever ED withdraws the recognition of any accrediting agency, an institution of higher education that meets the requirements of accreditation, eligibility, and certification on the day before such withdrawal, may, notwithstanding the withdrawal, continue to participate in the TA program for a period not to exceed 18 months from the date of the withdrawal of recognition.
(A) When an educational institution's charges are equal to or less than the established cap per semester-hour of credit or its equivalent, the responsible Service will pay the entire amount charged by the educational institution. In computing credit equivalency, the following conversions will apply: 1 quarter-hour credit = 2/3 semester-hour credit; and 45 contact hours will be considered equivalent to 1 semester-hour credit when neither semester- nor quarter-hours are specified for the education for which the Service member is enrolled.
(B) When an educational institution's charges exceed the established cap per semester-hour of credit, or its equivalent, the responsible Service, will pay no more than the established cap per semester-unit (or equivalent) for tuition.
(C) Each Service member participating in off-duty, voluntary education will be allowed no more than the established annual ceiling, in aggregate, for each fiscal year.
(D) Covered charges include those that are submitted to the Service by the educational institution for tuition only. Educational institutions that bundle tuition, fees, or books into a consolidated cost must detail the charges of fees and books separately for Service members participating in the TA program. Fees include any charge not directly related to course instruction including but not limited to costs associated with room, board, distance learning, equipment, supplies, books/materials, exams, insurance, parking, transportation, admissions, registration, or fines.
(E) TA funds are not to be used for the purchase of books to include textbooks, ebooks, CDs/DVDs, or reference or instructional materials. Additionally, institutional education revenue generated from military TA funds cannot be used to support textbook grants or scholarships.
(F) To be eligible to receive TA, a Service member must meet the minimum requirement of successfully completing basic training. RC members are exempt from the requirement to first attend basic training before authorized to receive TA. Additional, respective Service requirements must be met to include training qualification, unit assignment, and time in service criteria.
(iii) The TA rate, credit-cap, and annual per capita ceiling, will be reviewed annually in consideration of inflation and other effects, and will be applicable uniformly whether instruction is delivered traditionally in-the-classroom or through distance education. Rates of TA other than as identified in paragraphs (a)(2)(ii)(A) through (F) of this section are not authorized.
(3) Service-specific TA eligibility requirements. (i) Service-specific eligibility criteria and management controls are determined by each Military Service.
(ii) Service-specific TA eligibility criteria and management controls may include, but are not limited to, applying TA:
(A) For courses leading to a certificate or required for a credentialing program. All payments for courses must comply with the allowable caps and ceilings.
(B) For graduate studies through the master's degree level. All payments for courses must comply with the allowable caps and ceilings.
(C) For same level degrees, subject to the availability of funds. However, TA is primarily intended to raise the academic degree level of the Service member.
(4) TA is available to a commissioned officer on active duty, other than an officer serving in the Ready Reserves (addressed in paragraphs (a)(5)(i) and (a)(6)(i) of this section), only if the officer agrees to remain on active duty, for a period of at least 2 years after the completion of the education or training for which TA was paid (see 10 U.S.C. 2007).
(5) The Secretary of the Military Department concerned may only make TA available to a member of the SELRES, pursuant to 10 U.S.C. 2007, under the following conditions:
(i) In the case of a commissioned officer, the officer must agree to remain a member of the SELRES for at least 4 years after completion of the education or training for which TA is paid.
(ii) In the case of an enlisted member, the Secretary concerned may require the member of the SELRES to enter into an agreement to remain a member of the SELRES for up to 4 years after completion of the education or training for which TA is paid.
(6) The Secretary of the Military Department concerned may only make TA available to a member of the IRR who has a military occupational specialty designated by the Secretary concerned pursuant to 10 U.S.C. 2007 and only under the following conditions:
(i) In the case of a commissioned officer, the officer must agree to remain a member of the SELRES or IRR for at least 4 years after completion of the education or training for which TA was paid.
(ii) In the case of an enlisted member, the Secretary concerned may require the member of the IRR to enter into an agreement to remain a member of the IRR for up to 4 years after completion of the education or training for which TA is paid.
(7) Members performing Active Guard and Reserve (AGR) duty under either 10 U.S.C. 12310 or active duty under 14 U.S.C. 712 are eligible for TA under paragraph (a)(4) of this section.
(8) The Secretary of the Military Department concerned may make TA available to National Guard members in accordance with paragraph (a)(4), except for National Guard members assigned to the Inactive National Guard.
(9) Reimbursement and repayment requirements:
(i) If a commissioned officer or member of the RR does not fulfill a specified Service obligation as required by 10 U.S.C. 2007, they are subject to the repayment provisions of 37 U.S.C. 303a(e).
(ii) For other conditions pursuant to 10 U.S.C. 2005, the Secretary concerned may require a Service member to enter into a written agreement when providing advanced education assistance. If the Service member does not fulfill any terms or conditions as prescribed by the Secretary concerned, the Service member will be subject to the repayment provisions of 37 U.S.C. 303a(e).
(iii) Pursuant to 37 U.S.C. 303a(e), the Secretary concerned may establish procedures for determining the amount of the repayment required from the Service member and the circumstances under which an exception to the required repayment may be granted.
(iv) Reimbursement will be required from the Service member if a successful course completion is not obtained. For the purpose of reimbursement, a successful course completion is defined as a grade of “C” or higher for undergraduate courses, a “B” or higher for graduate courses and a “Pass” for “Pass/Fail” grades. Reimbursement will also be required from the Service member if he or she fails to make up a grade of “I” for incomplete within the time limits stipulated by the educational institution or 6 months after the completion of the class, whichever comes first. The Secretary of the Military Department will establish recoupment processes for unsuccessful completion of courses.
(10) Students using TA must maintain a cumulative grade point average (GPA) of 2.0 or higher after completing 15 semester hours, or equivalent, in undergraduate studies, or a GPA of 3.0 or higher after completing 6 semester hours, or equivalent, in graduate studies, on a 4.0 grading scale. If the GPA for TA funded courses falls below these minimum GPA limits, TA will not be authorized and Service members will use alternative funding (such as financial aid or personal funds) to enroll in courses to raise the cumulative GPA to 2.0 for undergraduate studies or 3.0 for graduate studies.
(11) TA will not be authorized for any course for which a Service member receives reimbursement in whole or in part from any other Federal source such as veterans' education benefits (GI Bill and other programs) and Service-funded programs (ROTC scholarship, education-related incentive or bonus, and advanced civil schooling) when the payment would constitute a duplication of benefits paid to that educational institution. Federal student aid loan, grant, and work-study programs will not be considered a duplication of benefit. Educational institutions have the responsibility to notify the Service if there is any duplication of benefits, determine the amount of credit that should be returned, and credit the amount back to the Service. The use of funds related to veterans' education benefits to supplement TA received by active duty and RC personnel is authorized in accordance with applicable VA guidelines.
(12) Pell Grants may be used in conjunction with TA assistance to pay that portion of tuition costs not covered by TA.
(13) TA will be provided for courses provided by educational institutions awarding degrees based on demonstrated competency, if:
(i) Competency rates are equated to semester or quarter units of credit, and
(ii) The educational institution publishes traditional grade correlations with “Pass/Fail” grades, and
(iii) The educational institution provides a breakdown by course equivalent for Service members.
(14) Enrollment in a professional practicum integral to these types of programs is also authorized. However, normal DoD TA caps and ceilings apply; the cost of expanded levels of enrollment over and above these enrollment levels and normal caps and ceilings must be borne by the student.
(15) When used for postsecondary education, TA will be provided only for courses offered by postsecondary educational institutions whose home campus is operating within the United States, to include the District of Columbia and U.S. territories, which are accredited by a national or regional accrediting body recognized by the ED.
(16) On a date to be determined, but not earlier than 60 days following the publication of this part in the Federal Register, to receive TA, all educational institution home campuses must sign the revised DoD Voluntary Education Partnership Memorandum of Understanding (MOU) in appendices A, B, C, D, and E to this part, and the name of the educational institution must be posted on the DoD MOU Web site under the `Participating Institutions' tab (located at http://www.dodmou.com). One signed, revised DoD Voluntary Education Partnership MOU with the educational institution's home campus will cover any program offered by the educational institution, regardless of location. The requirement to sign the revised DoD Voluntary Education Partnership MOU contained in this part applies to institutions with a previously approved and signed DoD Voluntary Education Partnership MOU posted on the DoD MOU Web site.
(17) To the extent that any provision of the standard language of the DoD Voluntary Education Partnership MOU template in appendices A, B, C, D, and E to this part, results from DoD policy that conflicts with a state law or regulation, the DASD(MCFP) may authorize amending the standard language of the DoD Voluntary Education Partnership MOU template on a case-by-case basis to the extent permissible by Federal law or regulation.
(18) A DoD Voluntary Education Partnership MOU with an educational institution may be suspended or terminated by DoD in these circumstances:
(i) The DoD Voluntary Education Partnership MOU with an educational institution may be terminated by the ASD(R&FM) following written notice and an opportunity to respond for the failure to comply with any element of this part of the DoD Voluntary Education Partnership MOU. In addition, an otherwise qualified educational institution may be suspended from participating in the tuition assistance program by the ASD(R&FM) following written notice and an opportunity to respond through either the termination of an existing DoD Voluntary Education Partnership MOU or the refusal by DoD to enter into a new DoD Voluntary Education Partnership MOU upon indictment of the educational institution or any senior official of the educational institution on a criminal charge related to the operation of the educational institution. The decision of the ASD(R&FM) in either of these cases may be appealed to the USD(P&R), and the decision of the USD(P&R) will be deemed to be the final administrative action by DoD on the matter.
(ii) An otherwise qualified educational institution may also be immediately suspended from participating in the tuition assistance program through either the termination of an existing DoD Voluntary Education Partnership MOU or the refusal to enter into a new DoD Voluntary Education Partnership MOU by the USD(P&R) on national security grounds. Written notice of the action will be provided to the educational institution, and, if practicable without damaging national security, the written notice will include a short unclassified summary of the reasons for the action. Such a decision of the USD(P&R) is only appealable to the Secretary of Defense, who has authorized the Deputy Secretary of Defense to act on such an appeal.
(iii) The authorities pursuant to this paragraph are not delegable.
(b) Guidelines for establishing, maintaining, and operating voluntary education programs. (1) Education programs established under this part by each Military Service will:
(i) Provide for the academic, technical, intellectual, personal, and professional development of Service members, thereby contributing to the readiness of the Military Services and the quality of life of Service members and their families.
(ii) Increase Service members' opportunities for advancement and leadership by reinforcing their academic skills and occupational competencies with new skills and knowledge.
(iii) Lead to a credential, such as a high school diploma, certificate, or college degree, signifying satisfactory completion of the educational program.
(iv) Include an academic skills program, which allows personnel to upgrade their reading, writing, computation, and communication abilities in support of academic skills and military occupations and careers. Academic skills programs may include English as a Second Language, mathematics and basic science.
(v) Include programs and college offerings that support findings from periodic needs assessments conducted by the appropriate DoD installation official (normally the Education Services Officer) for programs provided on the DoD installation. The DoD installation needs assessment process is used to determine such items as staffing requirements, course offerings, size of facilities, funding, or other standards for delivery of educational programs. Duplication of course offerings on a DoD installation should be avoided. However, the availability of similar courses through correspondence or electronic delivery will not be considered duplication.
(vi) Be described in a publication or on-line source that includes on-installation educational programs, programs available at nearby DoD installations, and colleges and universities nearby the DoD installation.
(2) Each Military Service, in cooperation with community educational service providers, will provide support essential to operating effective education programs. This support includes:
(i) Adequate funds for program implementation, administration, and TA.
(ii) Adequately trained staff to determine program needs, counsel students, provide testing services, and procure educational programs and services. Education counseling will be provided by qualified professional (Education Services Series 1740 or an individual with equivalent qualifications) individuals.
(iii) Adequate and appropriate classroom, laboratory, and office facilities and equipment, including computers to support local needs.
(iv) Access to telecommunications networks, computers, and physical or online libraries at times convenient to active duty personnel.
(3) In operating its programs, each Military Service will:
(i) Provide to newly assigned personnel, as part of their orientation to each new DoD installation or unit of assignment for RC personnel, information about voluntary education programs available at that DoD installation, unit, or State for RC personnel.
(ii) Maintain participants' educational records showing education accomplishments and educational goals.
(iii) Provide for the continuing professional development of their education services staff, including the participation of field staff in professional, as well as Service-sponsored, conferences, symposiums, and workshops.
(iv) Provide educational services, including TA counseling, academic advice and testing to their personnel and to personnel of other Services (including the U.S. Coast Guard when operating as a service in the Navy) who are assigned for duty at DoD installations of the host Service. These educational services will be provided by qualified professional (Education Services Series 1740 or an individual with equivalent qualifications) individuals in sufficient numbers to operate voluntary education programs as determined by individual Service standards. Outcomes from these educational services will include:
(A) A prior learning assessment that includes a review of all education transcripts to include the JST, the CCAF transcript, and academic transcript recommendations for ACE recommended credit.
(B) An assessment of the Service members' readiness to accomplish the degree requirements as outlined in the evaluated educational plan and a discussion of academic skills development programs.
(C) Discussion and review of technical credentials that can be obtained concurrent to academic pursuits.
(D) Discussion of credit-by-examination options.
(E) Review of academic program options, leading to a degree plan.
(F) Discussion with prospective military students on payment options and the use of education benefits for postsecondary courses to include the DoD TA Program, VA education benefit programs, State and federal grants and loans, commercial lending, and out-of-pocket costs for the Service member. Discussion will include streamlined tools and information to compare educational institutions using key measures of affordability and value through the VA eBenefits portal at http://www.ebenefits.va.gov. The eBenefits portal is updated by VA to facilitate access to school performance information and key federal financial aid documents.
(v) Continually assess the state of its voluntary education programs and periodically conduct a formal needs assessment by the appropriate DoD installation official (normally the Education Services Officer) to ensure that the best possible programs are available to their members at each DoD installation or in their State or area command for RC personnel. It is essential that a formal needs assessment be conducted if there is a significant change in the demographic profile of the DoD installation population.
(4) Eligible adult family members of Service members, DoD civilian employees and their eligible adult family members, and military retirees may participate in installation postsecondary education programs on a space-available basis at no cost to the individual Service TA programs.
(5) At locations where an educational program that is offered on a DoD installation is not otherwise conveniently available outside the DoD installation, civilians who are not directly employed by the DoD or other Federal agencies, and who are not eligible adult family members of DoD personnel, may be allowed to participate in DoD installation educational programs. While such participation contributes to positive community relations, participation must be on a student-funded, space-available basis at no cost to the individual Service TA programs, after the registration of Service members, DoD civilian employees, eligible adult family members, and military retirees. Additionally, a review of these potential participants by the relevant DoD installation ethics counselor may be required as part of the installation commander's access requirements. Participation may also be subject to the terms of status-of-forces or other regulating agreements.
(6) Education centers will maintain liaison with appropriate State planning and approving agencies and coordinating councils to ensure that planning agencies for continuing, adult, or postsecondary education are aware of the educational needs of military personnel located within their jurisdiction.
(7) In supporting a high school completion program, each Military Service will:
(i) Ensure that all Service members with less than a high school education have the opportunity to attain a high school diploma or its equivalent.
(ii) Ensure that neither a Military Service nor DANTES issues a certificate or similar document to Service members based on performance on high school equivalency tests. Military Services will recognize attainment of high school completion or equivalency only after a State- or territory-approved agency has awarded the appropriate credential.
(iii) Pay 100 percent of the cost of high school equivalency instruction or proficiency testing and credentialing for Service members.
(iv) Ensure that Service sponsored high school diploma programs are delivered by institutions that are State-funded or a Service component program accredited by a regional accrediting body or recognized by a State's secondary school authority.
(c) Procedures for the responsible education advisor, on behalf of the installation commander, to follow to provide voluntary education programs and services from postsecondary educational institutions. (1) Contacts by an educational institution with a Service member for the purpose of asking or encouraging the member to sign up for one of the educational institution's programs (assuming the program has some cost) are considered personal commercial solicitations. The responsible education advisor will ensure educational institutions comply with DoD Instruction 1344.07, “Personal Commercial Solicitation on DoD Installations” (available at http://www.dtic.mil/whs/directives/corres/pdf/134407p.pdf) and all requirements established by the installation commander for solicitation. Materials available through the education center that provide basic information about the educational institution or its programs or services in compliance with this MOU will not be considered personal commercial solicitation including, but not limited to, brochures, flyers, and catalogs provided by the educational institution. The responsible education advisor will ensure adequate and appropriate materials are available at no cost to the Service member and at no additional charge to the educational institution meeting the requirements as stated in the policy section of this part and in compliance with the DoD Voluntary Education Partnership MOU.
(2) The responsible education advisor will limit DoD installation access to educational institutions or their agents meeting the requirements as stated in the policy section of this part and in compliance with the DoD Voluntary Education Partnership MOU. Agents representing education institutions in the performance of contracted services are permitted DoD installation access only in accordance with the requirements of their contract and/or agreement.
(3) Educational institutions interested in providing education, guidance, training opportunities, and participating in sanctioned education fairs on a DoD installation provide their requests to the responsible education advisor, who will review and analyze these requests on behalf of the installation commander.
(4) The responsible education advisor will ensure all educational institutions and its agents granted access to DoD installations to provide education, guidance, training opportunities, and participate in sanctioned education fairs to Service members:
(i) Adhere to federal law, DoD Instruction 1344.07, DoD Instruction 1322.19, “Voluntary Education Programs in Overseas Areas” (available at http://www.dtic.mil/whs/directives/corres/pdf/132219p.pdf; and the cognizant Military Service's policies and regulations.
(ii) Comply with applicable DoD installation policies and procedures designated by the installation commander on such matters as fire and safety, environment, physical security, personnel background checks, vehicle inspection and registration, and any other applicable statues or regulations designated by the installation commander.
(5) Monitor educational institutions and its agents granted access to a DoD installation to ensure they do not:
(i) Use unfair, deceptive, abusive or fraudulent devices, schemes, or artifices, including misleading advertising or sales literature.
(ii) Engage in unfair, deceptive, or abusive marketing tactics, such as during unit briefings or assemblies; engaging in open recruiting efforts; or distributing marketing materials on the DoD installation at unapproved locations or events.
(iii) Market to or recruit newly assigned military personnel to the DoD installation, unless the Service member has received information about voluntary education programs and educational services available at that DoD installation, to include TA, from their education services staff or as part of their orientation to the new DoD installation.
(6) Ensure educational institutions granted access to DoD installations to provide programs, services, or education guidance to their students meet these criteria:
(i) Have a signed Voluntary Education Partnership MOU with DoD.
(ii) Are in compliance with State authorization requirements consistent with regulations issued by ED including 34 CFR 600.9. Educational institutions must meet the requirements of the state where services will be rendered to include compliance with all state laws as they relate to distance education.
(iii) Are State approved for the use of veterans' education benefits. Copies of the certification will be filed with the appropriate State approving agency for the military or veteran student.
(iv) Are certified to participate in federal student aid programs through the ED under Title IV of the Higher Education Act of 1965. Title IV certification may be provisional so long as the educational institution maintains eligibility to participate in the Federal Direct Loan Program.
(v) Are accredited by a national or regional accrediting body recognized by the ED and conduct programs only from among those offered or authorized by the main administrative and academic office in accordance with standard procedures for authorization of degree programs by the educational institution.
(7) DoD installations seeking an educational institution to provide on-installation education programs, through the responsible education advisor, must:
(i) Communicate the educational needs of the DoD installation to a wide variety of potential providers.
(ii) Seek favorable tuition rates, student services, and instructional support from providers.
(iii) Provide to interested providers:
(A) The level of services and instruction desired, and specific degree programs being sought.
(B) A demographic profile of the DoD installation population and probable volume of participation in the program.
(C) Facilities and level of security at no charge to the educational institution.
(D) Cost associated with equipment and supporting services provided at the discretion of the DoD installation.
(E) A copy of this part.
(F) Special requirements, such as:
(1) Format (e.g., distance, evening, or weekend classes), independent study, short seminar, or other mode of delivery of instruction.
(2) Unique scheduling problems related to the operational mission of the DoD installation.
(3) Any DoD installation restrictions, limitations, or special considerations relevant to using an alternate delivery system (e.g., DL).
(4) Available computer hardware and supporting equipment.
(5) Electrical, satellite, and network capabilities at the site.
(8) In evaluating proposals, responsible education advisors must ensure potential providers meet, at a minimum, these criteria:
(i) Programs satisfy objectives defined by the most recent needs assessment.
(ii) Programs, courses, and completion requirements are the same as those at the provider's main administrative and academic campus.
(iii) The educational institution granting undergraduate academic credit must adhere to the Servicemembers Opportunity Colleges (SOC) Principles and Criteria (available at http://www.soc.aascu.org/socconsortium/PublicationsSOC.html) regarding the transferability of credit, the awarding of credit for military training and experience, and residency requirements.
(iv) The provider is prepared to:
(A) Offer academic counseling and flexibility in accommodating special military schedules.
(B) Ensure main administrative and academic office approval in faculty selection, assignment, and orientation; and participation in monitoring and evaluation of programs. Adjunct or part-time faculty will possess comparable qualifications as full-time permanent faculty members.
(C) Conduct on-installation or online courses that carry identical credit values, represent the same content and experience, and use the same student evaluation procedures as courses offered through the main administrative and academic campus. All substantive course change requirements must follow the schools accreditation agencies requirements. If the educational institution's accrediting agency's substantive change policy requires new courses or program offerings to be submitted to the agency for approval, the educational institution will be required to submit such items for approval before admitting Service members using military TA.
(D) Maintain the same admission and graduation standards that exist for the same programs at the main administrative and academic office, and include credits from courses taken at a branch or auxiliary campus of the same educational institution in establishing academic residency to meet degree requirements.
(E) Provide library and other reference and research resources, in either print or electronic format, that are appropriate and necessary to support course offerings.
(F) Establish procedures to maintain regular communication among central institutional academic leadership and administrators, and off-campus representatives and faculty. Any educational institution's proposal must specify these procedures.
(G) Provide students with regular and accessible academic and financial counseling services either electronically or in-person. At a minimum, this includes Title IV and VA education benefits.
(H) Charge tuition that is not more than tuition charged to nonmilitary students.
(I) Have established policies for awarding credit for military training by examinations, experiential learning, and courses completed using modes of delivery other than instructor-delivered, on-site classroom instruction.
(J) Conduct programs only from among those offered or authorized by the main administrative and academic office in accordance with standard procedures for authorization of degree programs by the educational institution.
(d) Requirements and procedures for educational institutions seeking access to the DoD installation solely to provide academic counseling or student support services to students. (1) Educational institutions must meet the criteria in paragraphs (c)(6)(i) through (v) of this section.
(2) Educational institutions must have a DoD installation student population of at least 20 military students, except in overseas locations covered by DoD Instruction 1322.19. For this exception, only contracted educational institutions are permitted on overseas DoD installations. Educational institutions may submit eligible Title IV and GI Bill recipients (military or family member) to supplement military TA recipients in meeting the minimum requirement.
(3) Educational institutions must request access through the responsible education advisor via a written proposal. If a request is received from an educational institution seeking access to a joint DoD installation, the responsible education advisor from the education center will determine the appropriate Military Service to work the request. The request should include as a minimum:
(i) Educational institution name and intent or purpose of the visit.
(ii) Number and names of educational institution representatives that will be available.
(iii) Counseling delivery method: By appointment or walk-in.
(iv) Communication process used to inform students of their availability for counseling.
(4) The responsible education advisor will review and analyze the request on behalf of the installation commander. The installation commander has the final authority to approve, deny, suspend, or withdraw DoD installation access permission from an educational institution, as deemed appropriate.
(5) If a request is received from an educational institution seeking access to a DoD installation, the responsible education advisor will:
(i) Fully consider requests from those educational institutions complying with requirements as stated in paragraphs (d)(1) through (3) of this section and be consistent in treatment of educational institutions in accordance with this part. Also, consider the value to the Service member as it relates to geographic location, accessibility and mission tempo.
(ii) If request is denied, provide a timely response to the educational institution and inform the educational institution they may reapply for access once reasons for denial are addressed.
(iii) Maintain copies of all correspondence in accordance with the DoD installation records management schedule and disposition, with a minimum time requirement of 2 years.
(6) If a DoD installation grants access to an educational institution to provide guidance to their students, the educational institution and its agents will:
(i) Only advise or counsel students at the education center or at a location approved by the responsible education advisor.
(ii) Maintain a record of students counseled and provide a copy to the education office. The record will annotate the type of program and the status of the Service member (current or reenrollment).
(iii) Comply with applicable DoD installation policies and procedures designated by the installation commander on such matters as fire and safety, environment, physical security, personnel background checks, vehicle inspection and registration, and any other applicable statues or regulations designated by the installation commander.
(e) Interservice Voluntary Education Board. Under the direction of the Voluntary Education Chief, the Interservice Voluntary Education Board is composed of full-time or permanent part-time employees of DoD or military members, and consists of one representative responsible for policy from the Office of the ASD(RA), and the senior voluntary education advisor responsible for policy each from the Army, Navy, Air Force, and Marine Corps. The Director, DANTES, will serve as an ex-officio member. Meeting quarterly, the Board will:
(1) Provide a forum for the exchange of information and discussion of issues related to voluntary education programs.
(2) Develop recommendations for changes in policies and procedures.
(3) Develop recommendations for DANTES' activities and operations that support voluntary education programs.
(4) Review and prioritize DANTES activities that support DoD voluntary education programs, to include budget execution and recommend execution year adjustments.
(5) Develop recommended policy and program guidance for DANTES for the Future-Year Defense Program.
(f) DANTES. (1) Guidance and recommendations for DANTES will be developed with the advice of the Interservice Voluntary Education Board.
(2) The selection and rating of the Director, DANTES will be as follows:
(i) The DASD(MCFP) will convene and chair the search committee responsible for replacing the Director, DANTES, when the position is vacated. At the request of the USD(P&R), the Secretaries of the Military Departments will provide a senior manager to sit on the search committee. The committee will recommend the best qualified candidate to the DoD EA for DANTES, for possible appointment as the Director, DANTES.
(ii) The DoD EA for DANTES will designate the rater of the Director, DANTES. The Director, State Liaison and Educational Opportunity within the Office of the USD(P&R), MCFP, will provide input to the DoD EA designated rater concerning the performance of the Director, DANTES.
(3) DANTES will:
(i) Support the Service voluntary education programs by executing the program outlined in this part and the annual USD(P&R) supplemental guidance for those items not reflected in this paragraph of this section.
(ii) Provide execution information to the Interservice Voluntary Education Board quarterly and provide information required to assist with the program objective memorandum development as requested by the Board.
(iii) Support DoD off-duty, voluntary education programs and conduct special projects and developmental activities in support of education-related DoD functions.
(iv) Assist the Military Services in providing high-quality and valuable educational opportunities for Service members, their eligible adult family members, and DoD personnel, and assist personnel in achieving professional and personal educational objectives. This role includes the consolidated management of programs that prevent duplication of effort among the Services. Through its activities, DANTES supports DoD recruitment, retention, and the transition efforts.
(v) Assume responsibilities and functions that include:
(A) Managing and facilitating the delivery of a wide variety of examinations including the General Equivalency Diploma test, college admissions, and credit-by-examination programs.
(B) Upon request, issuing transcripts for the United States Armed Forces Institute and the examination and certification programs.
(C) Managing the contract through which former DoD Dependents Schools students can obtain copies of archived transcripts.
(D) Managing the contract and functions related to the evaluation of educational experiences in the Military Services that are covered by the contract.
(E) Providing or developing and distributing educational materials, reference books, counseling publications, educational software, and key educational resource information to Defense Agencies and DoD installations.
(F) Managing the SOC program contract and related functions.
(G) Managing the DoD contract that provides for periodic third-party reviews of DoD voluntary education programs titled the Third Party Education Assessment.
(H) Managing the contract and data received on the voluntary education programs for the VEMIS, which includes gathering, collating, and verifying participation and cost data from the Services. Providing requisite consolidated reports to USD(P&R). Requested data from the Military Services on voluntary education programs is located and stored at https://afaems.langley.af.mil/vemis. A user guide containing voluntary education program data and report information for the Military Services and DANTES is also available at this Web site, under the “Resources” tab.
(I) Managing the DoD independent study catalog and its support systems, as required.
(J) Negotiating, administering, and coordinating contracts for DoD Worldwide Education Symposiums in support of and in conjunction with the Interservice Voluntary Education Board.
(K) Establishing, refining, updating, and maintaining information on worldwide education support of DoD off-duty, voluntary education programs on the Internet. Maintaining necessary infrastructure to ensure that information on the Internet is always current and available to leadership, agency personnel, the public, and others.
(L) Administering the TTT program in accordance with section 1154 of chapter 58 of 10 U.S.C.
(M) Monitoring new technological developments, providing reports, cost analyses, and recommendations on educational innovations, and conducting special projects requested by the Department of Defense and the Services, approved by the Interservice Voluntary Education Board, and as reflected and approved in DANTES' annual policy guidance.
(N) Conducting staff development training on DANTES' policies, procedures, and practices related to voluntary education testing programs, and providing additional training as requested by the Office of the Secretary of Defense and the Services.
(O) Serving as the Defense Media Activity's point of contact for information on DANTES programs for military personnel.
(P) Providing support, as requested, to DoD and Service Quality of Life and Transition support programs.
(Q) Providing other support in mission areas as directed by the USD(P&R) and the DASD(MCFP).
(R) Managing DoD contingency Tri-Service contracts, which provide educational opportunities for deployed Service members with guidance and oversight from the DoD Voluntary Education Chief.
(S) Monitoring and maintaining liaison with the office responsible for consolidating and distributing the JST for the Services.
(vi) Maintain liaison with education services officials of the Military Services, and appropriate Federal and State agencies and educational associations, in matters related to the DANTES mission and assigned functions.
(vii) Serve on panels and working groups designated by the DASD(MCFP).
(viii) Serve as the Executive Secretary at the Interservice Voluntary Education Board meeting convened annually to review DANTES programs and to develop recommendations for inclusion in annual policy guidance for DANTES. In this role, the Director, DANTES, will coordinate the meeting, prepare the agenda, review and analyze DANTES programs and initiatives outlined in the prior year's operational plan, and provide minutes after the meeting.
(ix) Assist the Services in screening candidates for the DANTES Senior Enlisted Advisor and DANTES RC Advisor positions.
(x) Maintain the repository for the DoD Voluntary Education Partnership MOU between USD(P&R) and partner educational institutions, to include Service-specific addendums (see the Appendix to this section for the template of the DoD Voluntary Education Partnership MOU). DANTES will:
(A) Administer and update the system that is the repository of the MOUs per guidance from USD(P&R).
(B) Create, track, and maintain a centrally managed database for all signed documents.
(C) Publish an Internet-based list of all educational institutions that have a signed DoD Voluntary Education Partnership MOU.
(D) Generate reports in accordance with guidance from the USD(P&R) and procedures in DTM 12-004, “DoD Internal Information Collections” (available at http://www.dtic.mil/whs/directives/corres/pdf/DTM-12-004.pdf) and DoD 8910-1-M, “Department of Defense Procedures for Management of Information Requirements” (available at http://www.dtic.mil/whs/directives/corres/pdf/891001m.pdf).
(x) Provide data analyses and generate reports required by DoD and the Interservice Voluntary Education Board as needed.
Pt. 68, App. A

Appendix A to Part 68—DoD Voluntary Education Partnership Memorandum of Understanding (MOU) Between DoD Office of the Under Secretary of Defense for Personnel and Readiness (USD(P&R)) and [Name of Educational Institution]
1. Preamble.
a. Providing access to quality postsecondary education opportunities is a strategic investment that enhances the U.S. Service member's ability to support mission accomplishment and successfully return to civilian life. A forward-leaning, lifelong learning environment is fundamental to the maintenance of a mentally powerful and adaptive leadership-ready force. Today's fast-paced and highly mobile environment, where frequent deployments and mobilizations are required to support the Nation's policies and objectives, requires DoD to sponsor postsecondary educational programs using a variety of learning modalities that include instructor-led courses offered both on- and off-installation, as well as distance learning options. All are designed to support the professional and personal development and progress of the Service members and our DoD civilian workforce.
b. Making these postsecondary programs available to the military community as a whole further provides Service members, their eligible adult family members, DoD civilian employees, and military retirees ways to advance their personal education and career aspirations and prepares them for future vocational pursuits, both inside and outside of DoD. This helps strengthen the Nation by producing a well-educated citizenry and ensures the availability of a significant quality-of-life asset that enhances recruitment and retention efforts in an all-volunteer force.
2. Purpose.
a. This MOU articulates the commitment and agreement educational institutions provide to DoD by accepting funds via each Service's tuition assistance (TA) program in exchange for education services.
b. This MOU is not an obligation of funds, guarantee of program enrollments by DoD personnel, their eligible adult family members, DoD civilian employees, or retirees in an educational institution's academic programs, or a guarantee for DoD installation access.
c. This MOU covers courses delivered by educational institutions through all modalities. These include, but are not limited to, classroom instruction, distance education (i.e., web-based, CD-ROM, or multimedia) and correspondence courses.
d. This MOU includes high school programs, academic skills programs, and adult education programs for military personnel and their eligible adult family members.
e. This MOU articulates regulatory and governing directives and instructions:
(1) Eligibility of DoD recipients is governed by Federal law, DoD Instruction 1322.25, DoD Directive 1322.08E, and the cognizant Military Service's policies, regulations, and fiscal constraints.
(2) Postsecondary educational programs provided to Service members using TA on DoD installations outside of the United States, will be operated in accordance with guidance from DoD Instruction 1322.25, DoD Instruction 1322.19, section 1212 of Public Law 99-145, as amended by section 518 of Public Law 101-189; and under the terms of the Tri-Services contract currently in effect.
f. This MOU is subject at all times to Federal law and the rules, guidelines, and regulations of DoD. Any conflicts between this MOU and such Federal law, rules, guidelines, and regulations will be resolved in favor of the Federal law, rules, guidelines, or regulations.
3. Educational Institution (Including Certificate and Degree Granting Educational Institutions) Requirements for TA. Educational institutions must:
a. Sign and adhere to requirements of this MOU, including Service-specific addendums as appropriate, prior to being eligible to receive TA payments.
(1) Those educational institutions that have a current Voluntary Education Partnership MOU with DoD will sign this MOU:
(a) At the expiration of their current MOU (renewal);
(b) At the request of DoD or the specific Military Service holding a separate current MOU. The DoD Voluntary Education Partnership MOU (which includes the Service-specific addendums) is required for an educational institution to participate in the DoD TA Program. An “installation MOU” (which is separate from this MOU) is only required if an educational institution is operating on a DoD installation. The installation MOU:
1. Contains the installation-unique requirements that the responsible education advisor coordinated, documented, and retained; is approved by the appropriate Service voluntary education representative; and is presented to the installation commander for final approval.
2. Cannot conflict with the DoD Voluntary Education Partnership MOU and governing regulations.
(2) Educational institutions must comply with this MOU and the requirements in Service-specific addendums that do not conflict with governing Federal law and rules, guidelines, and regulations, which include, but are not limited to, Title 10 of the U.S. Code; DoD Directive 1322.08E, “Voluntary Education Programs for Military Personnel”; DoD Instruction 1322.25, “Voluntary Education Programs”; DoD Instruction 1322.19, “Voluntary Education Programs in Overseas Areas”; and all DoD installation requirements imposed by the installation commander, if the educational institution has been approved to operate on a particular base. Educational institutions failing to comply with the requirements set forth in this MOU may receive a letter of warning, be denied the opportunity to establish new programs, have their MOU terminated, be removed from the DoD installation, and may have the approval of the issuance of TA withdrawn by the Service concerned.
b. Be accredited by a national or regional accrediting agency recognized by ED, approved for VA funding, and certified to participate in Federal student aid programs through ED under Title IV of the Higher Education Act of 1965.
c. Comply with the regulatory guidance provided by DoD and the Services.
d. Comply with state authorization requirements consistent with regulations issued by ED, including 34 CFR 600.9. Educational institutions must meet all State laws as they relate to distance education as required.
e. Participate in the Third Party Education Assessment process when requested. This requirement applies not only to educational institutions providing courses on DoD installations, but also to those educational institutions that provide postsecondary instruction located off the DoD installation or via DL. Educational institutions may be selected for Third Party Education Assessment based on provider offerings (on-installation, off-installation, or DL), education benefits received (large provider in terms of enrollments or TA funds), or an observed promising practice. Educational institutions may also be selected as a result of reports of non-compliance with the DoD Voluntary Education Partnership MOU, complaint(s) received, or negative information received from other government agencies and regulators. Educational institutions demonstrating an unwillingness to resolve findings may receive a range of penalties from a written warning to revocation of the DoD Voluntary Education Partnership MOU and removal from participation in the DoD TA Program. As appropriate, Third Party Education Assessment findings will be shared with other government agencies/regulators including but not limited to CFPB, VA, ED, DOJ, and FTC.
(1) If an educational institution is operating on the DoD installation, the educational institution will resolve the assessment report findings and provide corrective actions taken within 6 months of the Third Party Education Assessment to the responsible education advisor on the DoD installation, the appropriate Service Voluntary Education Chief, and the DoD Voluntary Education Chief.
(2) If an educational institution is operating off the DoD installation or via DL, the educational institution will resolve the assessment report findings and provide corrective actions taken within 6 months of the Third Party Education Assessment to the DoD Voluntary Education Chief.
(3) In instances when the resolution action cannot be completed within the 6 month timeframe, the educational institution will submit a status report every 3 months to the responsible education advisor on the DoD installation if the educational institution is operating on the DoD installation, and the DoD Voluntary Education Chief, until the recommendation is resolved.
f. Before enrolling a Service member, provide each prospective military student with specific information to locate, explain, and properly use the following ED and CFPB tools:
(1) The College Scorecard which is a consumer planning tool and resource to assist prospective students and their families as they evaluate options in selecting a school and is located at: http://collegecost.ed.gov/scorecard/.
(2) The College Navigator which is a consumer tool that provides school information to include tuition and fees, retention and graduation rates, use of financial aid, student loan default rates and features a cost calculator and school comparison tool. The College Navigator is located at: http://nces.ed.gov/collegenavigator/.
(3) The Financial Aid Shopping Sheet which is a model aid award letter designed to simplify the information that prospective students receive about costs and financial aid so they can easily compare institutions and make informed decisions about where to attend school. The shopping sheet can be accessed at: http://www2.ed.gov/policy/highered/guid/aid-offer/index.html.
(4) The `Paying for College' Web page which can be used by prospective students to enter the names of up to three schools and receive detailed financial information on each one and to enter actual financial aid award information. The tool can be accessed at: http://www.consumerfinance.gov/paying-for-college/.
g. Designate a point of contact or office for academic and financial advising, including access to disability counseling, to assist Service members with completion of studies and with job search activities.
(1) The designated person or office will serve as a point of contact for Service members seeking information about available, appropriate academic counseling, financial aid counseling, and student support services at the educational institution;
(2) The point of contact will have a basic understanding of the military tuition assistance program, ED Title IV funding, education benefits offered by the VA, and familiarity with institutional services available to assist Service members.
(3) The point of contact does not need to be exclusively dedicated to providing these services and, as appropriate, may refer the Service member to other individuals with an ability to provide these services, both on- and off-campus.
h. Before offering, recommending, arranging, signing-up, dispersing, or enrolling Service members for private student loans, provide Service members access to an institutional financial aid advisor who will make available appropriate loan counseling, including, but not limited to:
(1) Providing a clear and complete explanation of available financial aid, including Title IV of the Higher Education Act of 1965, as amended.
(2) Describing the differences between private and federal student loans to include terms, conditions, repayment and forgiveness options.
(3) Disclosing the educational institution's student loan Cohort Default Rate (CDR), the percentage of its students who borrow, and how its CDR compares to the national average. If the educational institution's CDR is greater than the national average CDR, it must disclose that information and provide the student with loan repayment data.
(4) Explaining that students have the ability to refuse all or borrow less than the maximum student loan amount allowed.
i. Have a readmissions policy for Service members that:
(1) Allows Service members and reservists to be readmitted to a program if they are temporarily unable to attend class or have to suspend their studies due to service requirements.
(2) Follows the regulation released by ED (34 CFR 668.18) regarding readmissions requirements for returning Service members seeking readmission to a program that was interrupted due to a Military service obligation, and apply those provisions to Service members that are temporarily unable to attend classes for less than 30 days within a semester or similar enrollment period due to a Military service obligation when such absence results in a withdrawal under institution policies. A description of the provisions for U.S. Armed Forces members and their families is provided in Chapter 3 of Volume 2 of the Federal Student Aid Handbook.
j. Have policies in place compliant with program integrity requirements consistent with the regulations issued by ED (34 CFR 668.71-668.75 and 668.14) related to restrictions on misrepresentation, recruitment, and payment of incentive compensation. This applies to the educational institution itself and its agents including third party lead generators, marketing firms, or companies that own or operate the educational institution. As part of efforts to eliminate unfair, deceptive, and abusive marketing aimed at Service members, educational institutions will:
(1) Ban inducements including any gratuity, favor, discount, entertainment, hospitality, loan, transportation, lodging, meals, or other item having a monetary value of more than a de minimis amount to any individual, entity, or its agents including third party lead generators or marketing firms other than salaries paid to employees or fees paid to contractors in conformity with all applicable laws for the purpose of securing enrollments of Service members or obtaining access to TA funds. Educational institution sponsored scholarships or grants and tuition reductions available to military students are permissible.
(2) Refrain from providing any commission, bonus, or other incentive payment based directly or indirectly on securing enrollments or federal financial aid (including TA funds) to any persons or entities engaged in any student recruiting, admission activities, or making decisions regarding the award of student financial assistance.
(3) Refrain from high-pressure recruitment tactics such as making multiple unsolicited contacts (3 or more), including contacts by phone, email, or in-person, and engaging in same-day recruitment and registration for the purpose of securing Service member enrollments.
k. Refrain from automatic program renewals, bundling courses or enrollments. The student and Military Service must approve each course enrollment before the start date of the class.
l. The educational institution will obtain the approval of their accrediting agency for any new course or program offering, provided such approval is required under the substantive change requirements of the accrediting agency. Approval must be obtained before the enrollment of a Service member into the new course or program offering.
m. If the educational institution is a member of the Servicemembers Opportunity Colleges (SOC), in addition to the requirements stated in paragraphs 3.a through 3.l of this MOU, the educational institution will:
(1) Adhere to the SOC Principles, Criteria, and Military Student Bill of Rights. (located at http://www.soc.aascu.org/socconsortium/PublicationsSOC.html).
(2) Provide processes to determine credit awards and learning acquired for specialized military training and occupational experience when applicable to a Service member's degree program.
(3) Recognize and use the ACE Guide to the Evaluation of Educational Experiences in the Armed Services to determine the value of learning acquired in military service. Award credit for appropriate learning acquired in military service at levels consistent with ACE Guide recommendations and/or those transcripted by CCAF, when applicable to a Service member's program.
n. If an educational institution is not a member of SOC, in addition to the requirements stated in paragraphs 3.a. through 3.l. of this MOU, the educational institution will:
(1) Disclose its transfer credit policies and articulated credit transfer agreements before a Service member's enrollment. Disclosure will explain acceptance of credits in transfer is determined by the educational institution to which the student wishes to transfer and refrain from making unsubstantiated representations to students about acceptance of credits in transfer by another institution.
(a) If the educational institution accepts transfer credit from other accredited institutions, then the educational institution agrees to evaluate these credits in conformity with the principles set forth in the Joint Statement on the Transfer and Award of Credit developed by members of the American Association of Collegiate Registrars and Admissions Officers, the American Council on Education, and the Council for Higher Education Accreditation. The educational institution will then award appropriate credit, to the extent practicable within the framework of its institutional mission and academic policies.
(b) Decisions about the amount of transfer credit accepted, and how it will be applied to the student's program, will be left to the educational institution.
(2) Disclose its policies on how they award academic credit for prior learning experiences, including military training and experiential learning opportunities provided by the Military Services, at or before a Service member's enrollment.
(a) In so far as the educational institution's policies generally permit the award of credit for comparable prior learning experiences, the educational institution agrees to evaluate the learning experiences documented on the Service member's official Service transcripts, and, if appropriate, award credit.
(b) The JST is an official education transcripts tool for documenting the recommended college credits for professional military education, training courses, and occupational experiences of Service members across the Services. The JST incorporates data from documents such as the Army/ACE Registry Transcript System, the Sailor/Marine ACE Registry Transcript System, the Community College of the Air Force transcript, and the Coast Guard Institute transcript.
(c) Decisions about the amount of experiential learning credit awarded, and how it will be applied to the student's program, will be left to the educational institution. Once an educational institution has evaluated a particular military training or experiential learning opportunity for a given program, the educational institution may rely on its prior evaluation to make future decisions about awarding credit to Service members with the same military training and experience documentation, provided that the course content has not changed.
(3) If general policy permits, award transfer credit or credit for prior learning to:
(a) Replace a required course within the major;
(b) Apply as an optional course within the major;
(c) Apply as a general elective;
(d) Apply as a basic degree requirement; or
(e) Waive a prerequisite.
(4) Disclose to Service members any academic residency requirements pertaining to the student's program of study, including total and any final year or final semester residency requirement at or before the time the student enrolls in the program.
(5) Disclose basic information about the educational institution's programs and costs, including tuition and other charges to the Service member. This information will be made readily accessible without requiring the Service member to disclose any personal or contact information.
(6) Before enrollment, provide Service members with information on institutional “drop/add,” withdrawal, and readmission policies and procedures to include information on the potential impact of military duties (such as unanticipated deployments or mobilization, activation, and temporary duty assignments) on the student's academic standing and financial responsibilities. For example, a Service member's military duties may require relocation to an area where he or she is unable to maintain consistent computer connectivity with the educational institution, which could have implications for the Service member's enrollment status. This information will also include an explanation of the educational institution's grievance policy and process.
(7) Conduct academic screening and competency testing; make course placement based on student readiness.
4. TA Program Requirements for Educational Institutions.
a. One Single Tuition Rate. All Service members attending the same educational institution, at the same location, enrolled in the same course, will be charged the same tuition rate without regard to their Service component. This single tuition rate includes active duty Service members and the National Guard and Reservists who are activated under Title 10 and using Title 10 Military Tuition Assistance, in order to assure that tuition rate distinctions are not made based on the Service members' branches of Service.
(1) It is understood tuition rates may vary by mode of delivery (traditional or online), at the differing degree levels and programs, and residency designations (in-state or out-of-state). Tuition rates may also vary based on full-time or part-time status, daytime vs. evening classes, or matriculation date, such as in the case of a guaranteed tuition program.
(2) It is also understood that some States have mandated State rates for Guard and Reservists within the State. (Those Guard and Reservists not activated on Title 10, U.S. Code orders).
b. Course Enrollment Information. The educational institutions will provide course enrollment, course withdrawal, course cancellation, course completion or failure, grade, verification of degree completion, and billing information to the TA issuing Service's education office, as outlined in the Service's regulations and instructions.
(1) Under section 1232g of title 20, United States Code (also known as “The Family Educational Rights and Privacy Act” and hereinafter referred to as “FERPA”), DoD recognizes that educational institutions are required to obtain consent before sharing personally identifiable non-directory information with a third party. Service members must authorize the educational institutions to release and forward course enrollment information required in 4.b. to DoD prior to approval of course enrollment using tuition assistance.
(2) If an educational institution wants to ensure confidentiality during the transmission of data to the third party, then the educational institution can contact the appropriate Service TA management point of contact to discuss security and confidentiality concerns prior to transmitting information.
c. Degree Requirements and Evaluated Educational Plans.
(1) Educational institutions will disclose general degree requirements for the Service member's educational program (evaluated educational plan) to the member and his or her Service before the enrollment of the Service member at the educational institution. These requirements, typically articulated in the educational institution's course catalog, should:
(a) Include the total number of credits needed for graduation.
(b) Divide the coursework students must complete in accordance with institutional academic policies into general education, required, and elective courses.
(c) Articulate any additional departmental or graduate academic requirements, such as satisfying institutional and major field grade point average requirements, a passing grade in any comprehensive exams, or completion of a thesis or dissertation.
(2) In addition to providing degree requirements, the educational institution will provide to Service members who have previous coursework from other accredited institutions and relevant military training and experiential learning an evaluated educational plan that indicates how many, if any, transfer credits it intends to award and how these will be applied toward the Service member's educational program. The evaluated educational plan will be provided within 60 days after admission to the educational institution in which the individual has selected a degree program and all required official transcripts have been received.
(3) When a Service member changes his or her educational goal or major at the attending school and the Services' education advisor approves the change, then the educational institution will provide a new evaluated educational plan to the Service member and the Service within 60 days. Only courses listed in the Service member's evaluated educational plan will be approved for TA.
(4) Degree requirements in effect at the time of each Service member's enrollment will remain in effect for a period of at least 1 year beyond the program's standard length, provided the Service member is in good academic standing and has been continuously enrolled or received an approved academic leave of absence. Adjustments to degree requirements may be made as a result of formal changes to academic policy pursuant to institutional or departmental determination, provided that:
(a) They go into effect at least 2 years after affected students have been notified; or
(b) In instances when courses or programs are no longer available or changes have been mandated by a State or accrediting body, the educational institution will identify low or no cost solutions, working with affected Service members to identify substitutions that would not hinder the student from graduating in a timely manner.
(5) Degree requirements and evaluated educational plans will meet educational requirements for credentialing in stated career field and graduates of a program will be eligible for relevant professional license or certification. Educational institutions will disclose any conditions (state or agency limitations) or additional requirements (training, experience, or exams) required to obtain relevant credentials.
d. Approved and TA Eligible Courses.
(1) Approved Courses. If an eligible Service member decides to use TA, educational institutions will enroll him or her only after the TA is approved by the individual's Service. Service members will be solely responsible for all tuition costs without this prior approval. This requirement does not prohibit an educational institution from pre-registering a Service member in a course in order to secure a slot in the course. If a school enrolls the Service member before the appropriate Service approves Military TA, then the Service member could be responsible for the tuition. All Military TA must be requested and approved prior to the start date of the course. The Military TA is approved on a course-by-course basis and only for the specific course(s) and class dates that a Service member requests. If a military student “self-identifies” their eligibility and the Service has not approved the funding, then the Service member will be solely responsible for all tuition costs, not the Service.
(2) TA Eligible Courses. Courses will be considered eligible for TA if they are:
(a) Part of an individual's evaluated educational plan; or
(b) Prerequisites for courses within the individual's evaluated educational plan; or
(c) Required for acceptance into a higher-level degree program, unless otherwise specified by Service regulations.
e. Use of Financial Aid with TA.
(1) “Top-Up” eligible active duty DoD personnel may use their Montgomery or Post-9/11 G.I. Bill benefit in conjunction with TA funds from their Service to cover those course costs to the Service member that exceed the amount of TA paid by his or her Service. RC members who qualify for Montgomery G.I. Bill benefits may use those benefits concurrently with TA. RC members who have earned entitlement for the Post-9/11 G.I. Bill can use both VA education benefits and TA, but VA will only pay for the portion of tuition not covered by TA; therefore, the combination of VA education benefits and TA will not exceed 100 percent of the actual costs of tuition.
(2) DoD personnel are entitled to consideration for all forms of financial aid that educational institutions make available to students at their home campus. Educational institution financial aid officers will provide information and application processes for Title IV student aid programs, scholarships, fellowships, grants, loans, etc., to DoD TA recipients.
(3) Service members identified as eligible DoD TA recipients, who qualify for Pell Grants through ED's student aid program, will have their TA benefits applied to their educational institution's account prior to the application of their Pell Grant funds to their account. Unlike TA funds, which are tuition-restricted, Pell Grant funds are not tuition-restricted and may be applied to other allowable charges on the account.
f. Administration of Tuition.
(1) The Services will provide TA in accordance with DoD- and Service-appropriate regulations.
(2) Educational institutions will comply with these requirements for the return of TA funds:
(a) Return any TA Program funds directly to the Military Service, not to the Service member.
(b) Up to the start date, return all (100 percent) TA funds to the appropriate Military Service when the Service member does not:
(i) begin attendance at the institution or
(ii) start a course, regardless of whether the student starts other courses
(c) Return any TA funds paid for a course that is cancelled by the educational institution.
(d) Have an institutional policy that returns any unearned TA funds on a proportional basis through at least the 60 percent portion of the period for which the funds were provided. TA funds are earned proportionally during an enrollment period, with unearned funds returned based upon when a student stops attending. In instances when a Service member stops attending due to a military service obligation, the educational institution will work with the affected Service member to identify solutions that will not result in a student debt for the returned portion.
(3) Tuition charged to a Service member will in no case exceed the rate charged to nonmilitary students, unless agreed upon in writing by both the educational institution and the Service.
(4) Educational institutions will provide their tuition charges for each degree program to the Services on an annual basis. Any changes in the tuition charges will be provided to and explained to all the Services, as soon as possible, but not fewer than 90 days prior to implementation.
(a) Tuition charges at many public institutions are established by entities over which they have no jurisdiction, such as State legislatures and boards. As such, in some instances tuition decisions will not be made within the 90-day requirement window.
(b) When this happens, the educational institution will request a waiver (via the DoD MOU Web page) and provide the Services with the new tuition charges. To the extent practicable by State law or regulation, Service members already enrolled will not be impacted by changes in tuition charges.
(5) TA invoicing information is located in the Service-specific addendums attached to this MOU.
g. Course Cancellations. Educational institutions are responsible for notifying Service members of class cancellations for both classroom and DL courses.
h. Materials and Electronic Accessibility.
(1) Educational institutions will ensure that course materials are readily available, either electronically or in print medium, and provide information about where the student may obtain class materials at the time of enrollment or registration.
(2) Educational institution representatives will refrain from encouraging or requiring students to purchase course materials prior to confirmation of sufficient enrollments to conduct the class. Students will be encouraged to verify course acceptance by CCAF (Air Force only) or other program(s), with the responsible education advisor before enrolling or requesting TA.
(3) Educational institutions will provide, where available, electronic access to their main administrative and academic center's library materials, professional services, relevant periodicals, books, and other academic reference and research resources in print or online format that are appropriate or necessary to support the courses offered. Additionally, educational institutions will ensure adequate print and non-print media resources to support all courses being offered are available at base or installation library facilities, on-site Institution resource areas, or via electronic transmission.
i. Graduation Achievement Recognition.
(1) The educational institution will issue, at no cost to the Government, documentation as proof of completion, such as a diploma or certificate, to each student who completes the respective program requirements and meets all financial obligations.
(2) In accordance with Service requirements, the educational institution will report to the Service concerned those TA recipients who have completed a certificate, diploma, or degree program. Reporting will occur at least annually and include the degree level, major, and program requirements completion date.
(3) The academic credentials for certificate, diploma, or degree completion will reflect the degree-granting educational institution and campus authorized to confer the degree.
(a) If the Service member attends a branch of a large, multi-branch university system, the diploma may indicate the credential of the specific campus or branch of the educational institution from which the student received his or her degree.
(b) Credentials will be awarded to Service members with the same institutional designation as non-Service members who completed the same course work for a degree from the same institution.
(4) The educational institution will provide students with the opportunity to participate in a graduation ceremony.
j. Reporting Requirements and Performance Metrics.
(1) The educational institution will provide reports via electronic delivery on all DoD TA recipients for programs and courses offered to personnel as required by the cognizant Service. This includes, but is not limited to, TA transactions, final course grades to include incompletes and withdrawals, degrees awarded, certificates earned, evaluated educational plans, courses offered, and military graduation. Educational institutions providing face-to-face courses on a DoD installation will provide a class roster to the responsible education advisor. The class roster will include information such as the name of the instructor, the first and last name of each student (military and non-military), the course title, the class meeting day(s), the start and ending time of the class, and the class location (e.g., building and room number).
(a) All reporting and transmitting of this information will be done in conformity with all applicable privacy laws, including FERPA.
(b) Educational institutions will respond to these requests in a timely fashion, which will vary based on the specific nature and scope of the information requested.
(2) The cognizant Service may evaluate the educational institution's overall effectiveness in administering its academic program, courses, and customer satisfaction to DoD. A written report of the findings will be provided to the educational institution. The educational institution will have 90 calendar days to review the report, investigate if required, and provide a written response to the findings.
(3) The Services may request reports from an educational institution at any time, but not later than 2 years after termination of the MOU with such educational institution. Responses to all requests for reports will be provided within a reasonable period of time, and generally within 14 calendar days. Institutional response time will depend on the specific information sought by the Services in the report.
5. Requirements and Responsibilities for the Delivery of On-Installation Voluntary Education Programs and Services
a. The requirements in this section pertain to educational institutions operating on a DoD installation.
An installation MOU:
(1) Is required if an educational institution is operating on a DoD installation.
(2) Contains only the installation-unique requirements coordinated by the responsible education advisor, with concurrence from the appropriate Service voluntary education representative, and approved by the installation commander.
(3) Cannot conflict with the DoD Voluntary Education Partnership MOU and governing regulations.
b. Educational institutions will:
(1) Agree to have a separate installation MOU if they have a Service agreement to provide on-installation courses or degree programs.
(2) Comply with the installation-unique requirements in the installation MOU.
(3) Agree to coordinate degree programs offered on the DoD installation with the responsible education advisor, who will receive approval from the installation commander, prior to the opening of classes for registration.
(4) Admit candidates to the educational institution's on-installation programs at their discretion; however, priority for registration in DoD installation classes will be given in the following order:
(a) Service members.
(b) Federally funded DoD civilian employees.
(c) Eligible adult family members of Service members and DoD civilian employees.
(d) Military retirees.
(e) Non-DoD personnel.
(5) Provide the responsible education advisor, as appropriate, a tentative annual schedule of course offerings to ensure that the educational needs of the military population on the DoD installation are met and to ensure no course or scheduling conflicts with other on-installation programs.
(6) Provide instructors for their DoD installation courses who meet the criteria established by the educational institution to qualify for employment as a faculty member on the main administrative and academic center.
(7) Inform the responsible education advisor about cancellations for classroom-based classes on DoD installations per the guidelines set forth in the separate installation MOU.
c. The Services' designated installation representative (usually the responsible education advisor), will be responsible for determining the local voluntary education program needs for the serviced military population and for selecting the off-duty educational programs to be provided on the DoD installation, in accordance with the Services' policies. The Service, in conjunction with the educational institution, will provide support services essential to operating effective educational programs. All services provided will be commensurate with the availability of resources (personnel, funds, and equipment). This support includes:
(1) Classroom and office space, as available. The Service will determine the adequacy of provided space.
(2) Repairs as required to maintain office and classroom space in “good condition” as determined by the Service, and utility services for the offices and classrooms of the educational institution located on the DoD installation (e.g., electricity, water, and heat).
(3) Standard office and classroom furnishings within available resources. No specialized equipment will be provided.
(4) Janitorial services in accordance with DoD installation facility management policies and contracts.
d. The Service reserves the right to disapprove DoD installation access to any employee or agent of the educational institution employed to carry out any part of this MOU.
e. Operation of a privately owned vehicle by educational institution employees on the DoD installation will be governed by the DoD installation's policies.
f. The responsible education advisor will check with his or her Service's responsible office for voluntary education before allowing an educational institution to enter into an MOU with the DoD installation.
6. Review, Modifications, Signatures, Effective Date, Expiration Date, and Cancellation Provision.
a. Review. The signatories (or their successors) will review this MOU periodically in coordination with the Services, but no less than every 5 years to consider items such as current accreditation status, updated program offerings, and program delivery services.
b. Modifications. Modifications to this MOU will be in writing and, except for those required due to a change in State or Federal law, will be subject to approval by both of the signatories below, or their successors.
c. Signatures. The authorized signatory for DoD will be designated by the USD(P&R). The authorized signatory for the educational institution will be determined by the educational institution.
d. Effective Date. This MOU is effective on the date of the later signature.
e. Expiration Date. This MOU will expire 5 years from the effective date, unless terminated or updated prior to that date in writing by DoD or the educational institution.
f. Cancellation Provision. This MOU may be cancelled by either DoD or the educational institution 30 days after receipt of the written notice from the cancelling party. In addition, termination and suspension of an MOU with an educational institution may be done at any time for failure to follow a term of this MOU or misconduct in accordance paragraphs (a)(18)(i) through (a)(18)(iii) of § 68.6.
FOR THE DEPARTMENT OF DEFENSE:
DESIGNATED SIGNATORY
DATE
FOR THE EDUCATIONAL INSTITUTION:
PRESIDENT or Designee
DATE
Pt. 68, App. B

Appendix B to Part 68—Addendum for Education Services Between [Name of Educational Institution] and the U.S. Air Force (USAF)
1. Purpose. This addendum is between (Name of Educational Institution), hereafter referred to as the “Institution,” and the United States Air Force (USAF). The purpose of this agreement is to provide guidelines and procedures for the delivery of educational services to Service members, DoD civilian employees, eligible adult family members, military retirees, and non-DoD personnel not covered in the DoD Voluntary Education Partnership Memorandum of Understanding (MOU) between the DoD Office of the Under Secretary of Defense for Personnel and Readiness and the Institution. This addendum is not to be construed in any way as giving rise to a contractual obligation of the USAF to provide funds to the Institution that would be contrary to Federal law.
2. Responsibilities.
a. USAF Education and Training Section (ETS) Chief. The USAF ETS Chief will:
(1) Maintain a continuing liaison with the designated Institution representative and be responsible for inspections and the acceptance of the Institution's services. The ETS Chief will assist the Institution representative to provide military and USAF culture orientation to the Institution personnel.
(2) Review requests from Institutions with no on-installation MOU for permission of DoD installation access and space within the ETS to counsel current students, provide information briefings and materials, attend education fairs, and provide other informational services approved by the installation commander. Approval depends on the installation commander. Approval of any school eligible for Military TA will be extended equally to all such schools; same time allotment, space, and frequency.
(3) Assist the Institution or refer them to the information technology contractor for training in the use of the Academic Institution Portal (AI Portal) regarding input of Institution information, degree offerings, tuition rates, grades, invoices, degree completions, and search tools pre-built into the USAF online Voluntary Education System.
b. Institutions will:
(1) Appoint and designate an Institution representative to maintain a continuing liaison with the USAF ETS Chief.
(2) Provide general degree requirements to each member for his or her education program and the ETS as soon as he or she makes known their intention to register with the Institution and while awaiting final evaluation of transfer credits.
(3) Assume responsibility for the administration and proctoring of all course examinations not normally administered and proctored within the traditional, in-the-classroom setting.
(4) Provide to airmen, upon their request, information on Institution policies including, but not limited to, course withdrawal dates and penalties, course cancellation procedures, course grade publication, billing practices, and policy regarding incompletion of a course. Face-to-face counseling is not required.
(5) Register and use the AI Portal to input Institution basic information, degree offerings, tuition rates, invoice submission, course grades submission, degree completions, and to pull pre-established educational institution reports while conducting business with the USAF.
(6) Submit one consolidated invoice per term via the AI Portal for each class in which active duty military airmen are enrolled using Mil TA. Submission will be made during the term, no earlier than after the final add/drop/census date, and no later than 30 calendar days after the end of the term.
(7) Submit course grades via the AI Portal for each class in which active duty military airmen are enrolled using Mil TA. Submission will be made no later than 30 calendar days after the end of the term.
(8) Adopt the AI Portal procedures for all payment processing. Institutions with a current waiver may continue to participate at the discretion of Air Force Voluntary Education Branch.
(9) Provide a list of program graduates via the AI Portal consisting of student name, program title, program type (such as bachelor's degree), and date of graduation no later than 30 calendar days after the end of the term in which graduation requirements are completed. If the AI Portal is not available, provide directly to the base Education and Training Section.
c. Institutions with no on-installation MOU are authorized to request permission for DoD installation access and space within the ETS to counsel current students, provide information briefings and materials, attend education fairs, and other informational services. Approval depends on the installation commander. If approval is granted, then all other permissions will be authorized equally for any school eligible for Military TA; the same time allotment, space, and frequency.
d. All Institutions with an on-installation MOU or invitation for an on-installation activity, such as an educational fair, are authorized to counsel or provide information on any of their programs.
3. Additional Guidelines
a. In addition to DoD policy outlined in the DoD Voluntary Education Partnership MOU, the authorization of Mil TA is further governed by Air Force Instruction (AFI) 36-2306, as well as applicable policy and guidance.
b. DoD installation access of non-DoD and non-installation personnel is at the discretion of the installation commander. Access once provided can be revoked at any time due to military necessity or due to conduct that violates DoD installation rules or policies.
c. No off-base school will be given permanent space or scheduled for regularly recurring time on-base for student counseling.
Pt. 68, App. C

Appendix C to Part 68—Addendum for Education Services Between [Name of Educational Institution] and the U.S. Army
1. Purpose. This addendum is between (Name of Educational Institution), hereafter referred to as the “Institution,” and the United States Army. The purpose of this agreement is to provide guidelines and procedures for the delivery of educational services to Service members, DoD civilian employees, eligible adult family members, military retirees, and non-DoD personnel not covered in the DoD Voluntary Education Partnership Memorandum of Understanding between the DoD Office of the Under Secretary of Defense for Personnel and Readiness and the Institution. This addendum is not to be construed in any way as giving rise to a contractual obligation of the U.S. Army to provide funds to the Institution that would be contrary to Federal law.
2. Responsibilities.
a. Army Education Services Officer (ESO): In support of this addendum, the Army ESO will maintain a continuing liaison with a designated Institution representative and be responsible for inspections and the acceptance of the Institution's services. The ESO will provide assistance to the Institution representative to provide military and Army culture orientation to the Institution personnel.
b. Institutions. The Institution will:
(1) Appoint and designate an Institution representative to maintain a continuing liaison with the Army ESO.
(2) Adopt the GoArmyEd processes. GoArmyEd is the Army Continuing Education System (ACES) centralized and streamlined management system for the Army's postsecondary voluntary education programs. Existing MOUs or Memorandums of Agreement, Tri-Services contracts, or other contracts that Institutions may have with DoD installations and ACES remain in place and will be supplemented with DoD Instruction 1322.25.
(3) Agree to all of the terms in the ACES policies and procedures, available at https://www.hrc.army.mil/site/education/GoArmyEd_School_Instructions.html, such as: Invoicing, grades, reports, library references, etc. For non-Letter of Instruction (LOI) institutions satisfying paragraph 3.f. of this MOU, any requirements in ACES policies and procedures requiring institutions to be a member of SOC are hereby waived.
(4) Institutions currently participating with GoArmyEd as LOI and non-LOI schools, may continue to do so at the discretion of Headquarters, ACES. Non-LOI schools will be subject to the requirements of paragraphs 2.b.(2) and 2.b.(3) of this MOU only to the extent that their existing non-LOI agreement with the U.S. Army provides.
Pt. 68, App. D

Appendix D to Part 68—Addendum for Education Services Between [Name Of Educational Institution] and the U.S. Marine Corps
1. Purpose. This addendum is between (Name of Educational Institution), hereafter referred to as the “Institution,” and the U.S. Marine Corps. The purpose of this agreement is to provide guidelines and procedures for the delivery of educational services to Service members, DoD civilian employees, eligible adult family members, military retirees, and non-DoD personnel not covered in the DoD Voluntary Education Partnership Memorandum of Understanding between the DoD Office of the Under Secretary of Defense for Personnel and Readiness and the Institution. This addendum is not to be construed in any way as giving rise to a contractual obligation of the U.S. Marine Corps to provide funds to the Institution that would be contrary to Federal law.
2. Responsibilities.
a. Marine Corps Education Services Officer (ESO): In support of this addendum, the Marine Corps ESO will maintain a continuing liaison with a designated Institution representative and be responsible for inspections and the acceptance of the Institution's services. The ESO will provide assistance to the Institution representative to provide military and Marine Corps culture orientation to the Institution personnel.
b. Institution. The Institution will:
(1) Appoint and designate an Institution representative to maintain a continuing liaison with the Marine Corps ESO.
(2) Provide open enrollment during a designated time periods in courses conducted through media (e.g., portable media devices or computer-aided). Those courses will be on an individual enrollment basis.
(3) When operating on a Marine Corps installation, provide all required equipment when the Institution provides instruction via media.
(4) When operating on a Marine Corps installation, provide library services to the Marine Corps installation for students in the form of research and reference materials (e.g., books, pamphlets, magazines) of similar quality to the support provided students on the institution's home campus. Services will also include research and reference material in sufficient quantity to meet curriculum and program demands. Materials will be, at a minimum, the required readings of the instructor(s) for a particular course or program, or the ability for the student to request a copy of such material, from the institution's main library, without any inconvenience or charge to the student (e.g., a library computer terminal that may allow students to order material and have it mailed to their residence).
(5) Permit employment of off-duty military personnel or Government civilian employees by the institution, provided such employment does not conflict with the policies set forth in DoD Regulation 5500.7-R. However, Government personnel employed in any way in the administration of this addendum will be excluded from such employment because of conflict of interest.
3. Billing Procedures, And Formal Grades.
a. Comply with wide area work flow process for invoicing tuition assistance available at https://www.navycollege.navy.mil/links.
b. Grades will be submitted through the Navy College Management Information System grade entry application.
c. Grade reports will be provided to the Naval Education and Training Professional Development and Technology Center within 30 days of term ending or completion of the course, whichever is earlier.

Appendix E to Part 68—Addendum for Education Services Between [Name of Educational Institution] and the U.S. Navy
1. Purpose. This addendum is between (Name of Educational Institution), hereafter referred to as the “Institution,” and the U.S. Navy. The purpose of this agreement is to provide guidelines and procedures for the delivery of educational services to Service members, DoD civilian employees, eligible adult family members, military retirees, and non-DoD personnel not covered in the DoD Voluntary Education Partnership Memorandum of Understanding (MOU) between the DoD Office of the Under Secretary of Defense for Personnel and Readiness and the Institution. This addendum is not to be construed in any way as giving rise to a contractual obligation of the Department of the Navy to provide funds to the Institution that would be contrary to Federal law.
2. Responsibilities.
a. Commanding Officer responsible for execution of the Voluntary Education Program. The commanding officer responsible for execution of the voluntary education program will:
(1) Determine the local voluntary education program needs for the Navy population to be served and recommend to the installation commander the educational programs to be offered on the base;
(2) Administer this agreement and provide program management support;
(3) Manage the Navy College Program Distance Learning Partnership (NCPDLP) agreements.
b. Navy College Office (NCO): In support of this addendum, the NCO will maintain a continuing liaison with the designated Institution representative and be responsible for inspections and the acceptance of the Institution's services. The NCO will provide assistance to the Institution representative to provide military and Navy culture orientation to the Institution personnel.
c. Institution. The Institution will:
(1) If a distance learning partner institution:
(i) Comply with NCPDLP agreements, if an institution participates in NCPDLP.
(ii) Provide a link to the institution through the Navy College Program Web site, only if designated as an NCPDLP school.
(iii) Display the Institution's advertising materials (i.e., pamphlets, posters, and brochures) at all NCOs, only if designated as an NCPDLP school.
(2) Appoint and designate an Institution representative to maintain a continuing liaison with the NCO staff.
(3) Comply with wide area work flow processes for invoicing of tuition assistance available at https://www.navycollege.navy.mil/links. Grades will be submitted to the Navy College Management Information System grade entry application.
(4) Ensure library resource arrangements are in accordance with the standards of the Institution's accrediting association and the State regulatory agency having jurisdiction over the Institution.
(5) Respond to email messages from students within a reasonable period of time—generally within two workdays, unless extenuating circumstances would justify additional time.
(6) Comply with host command procedures before starting instructor-based courses on any Navy installation. The NCO will negotiate a separate agreement with the Institution in concert with the host command procedures.
(7) Mail an official transcript indicating degree completion, at no cost to the sailor or the Government to: Center for Personal and Professional Development, ATTN: Virtual Education Center, 1905 Regulus Ave., Suite 234, Virginia Beach, VA 23461-2009.
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. 79

PART 79—CHILD DEVELOPMENT PROGRAMS (CDPs)
Sec.
79.1
Purpose.
79.2
Applicability.
79.3
Definitions.
79.4
Policy.
79.5
Responsibilities.
79.6
Procedures.

Authority:
10 U.S.C. 1783, 1791 through 1800, 2809, and 2812.

Source:
79 FR 28409, May 16, 2014, unless otherwise noted.
§ 79.1
Purpose.
This part:
(a) Reissues DoD Instruction (DoDI) 6060.2 in accordance with the authority in DoD Directive (DoDD) 5124.02, “Under Secretary of Defense for Personnel and Readiness (USD(P&R))” (available at http://www.dtic.mil/whs/directives/corres/pdf/512402p.pdf) and DoD Instruction 1342.22, “Military Family Readiness” (available at http://www.dtic.mil/whs/directives/corres/pdf/134222p.pdf) and the requirements of DoDD 1020.1
(b) Updates established policy, assigns responsibilities, and prescribes procedures for providing care to minor children (birth through age 12 years) of individuals who are eligible for care in DoD CDPs. This includes:
(1) Center-based care and community-based care.
(2) Family child care (FCC).
(3) School-age care (SAC).
(4) Supplemental child care.
(c) Cancels DODI 6060.3
(d) Implements 10 United States Code (U.S.C.) 1791 through 1800.
(e) Authorizes the publication of supporting guidance for the implementation of CDP policies and responsibilities, including child development training modules, program aids, and other management tools.
(f) Establishes the DoD Effectiveness Rating and Improvement System (ERIS), in accordance with 10 U.S.C. 1791 through 1800.
§ 79.2
Applicability.
This part 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 within the DoD (hereinafter referred to collectively as the “DoD Components”).
§ 79.3
Definitions.
Unless otherwise noted, these terms and their definitions are for the purpose of this part.
Accreditation. Verification that a CDP has been assessed by an appropriate, external national accrediting body and meets the standards of quality established by that body.
Affiliated family child care (FCC). Home-based child care services that are provided by licensed individuals in homes located off of the installation, who agree to comply with the standards outlined in this part.
Appropriated funds (APF). Funds appropriated by Congress and received by the U.S. Government as tax dollars.
APF employees. Civilian employees hired by DoD Components with APF. Includes temporary employees, 18 years or older.
Caregiver. For the purpose of determining priority, a parent or an individual who performs the functions of a parent.
Caregiving personnel. Civilian employees of a CDP who are directly involved with the care and supervision of children and are counted in the staff to child ratios.
Child development program (CDP). Child care services for children of DoD personnel from birth through 12 years of age.
CDP employee. A civilian employed by the DoD to work in a DoD CDP (regardless of whether the employee is paid from APF or NAF).
Child(ren). A person under 18 years of age for whom a parent, guardian, or foster parent, is legally responsible.
Child care fees. NAF derived from fees paid by Military members and other authorized users of child care services provided at a military CDC or other DoD-approved facility-based CDP. Also referred to as user fees or parent fees.
Child care hour. One hour of care provided to one child. If a provider cares for six children for 10 hours, that is the equivalent of 60 child care hours.
Combat related wounded warrior. A term referring to the entire population of wounded, ill and injured Service members and veterans who have incurred a wound, illness, or injury for which the member was awarded the Purple Heart or whose wound, illness, or injury was incurred as a direct result of armed conflict or while engaged in hazardous service or in the performance of duty under conditions simulating war, or through an instrumentality of war.
Direct care personnel. Staff members whose main responsibility focuses on providing care to children and youth.
DoD CDP Employee Wage Plan. The wage plan that uses a NAF pay banding system to provide direct service personnel with rates of pay substantially equivalent to other employees at the installation with similar training, seniority, and experience. Pay increases and promotions are tied to completion of training. Completion of training is a condition of employment. This wage plan does not apply to CDPs constructed and operated by contractors under DoDI 1015.15, “Establishment, Management and Control of Nonappropriated Fund Instrumentalities and Financial Management of Supporting Resources” (see http://www.dtic.mil/whs/directives/corres/pdf/101515p.pdf).
DoD Certification to Operate. Certification issued to each DoD CDP after the program has been inspected by a representative(s) of the DoD Component or a major command, and found to be in compliance with DoD standards in § 79.6, paragraphs (a), (c)-(f), (i) and (j).
DoD Child Abuse and Safety Hotline. A hotline (found at DoD's Military Homefront Web site) required by 10 U.S.C. 1794 that enables parents and visitors to anonymously report suspected child abuse or safety violations at a military CDP or home.
Eligible patron. Patrons who qualify for CDP services, to include active duty Military Service members, DoD civilian employees paid from APF and NAF, Reserve Component Military Service members on inactive duty training, combat related wounded warriors, surviving spouses of military members who died from a combat related incident, eligible employees of DoD contractors, other Federal employees, and those acting in loco parentis of the aforementioned eligible patrons.
Eligible employee of a DoD contractor. An employee of a DoD contractor or subcontractor, or individual under contract or subcontract to DoD, who requires physical access to DoD facilities at least two days out of a work week.
Facility-based program. Refers to child care that is provided within a building, structure, or other improvement to real property. Does not include FCC homes.
Family child care (FCC). Home-based child care services that are provided for Military Service members, DoD civilian employees, or eligible employees of a DoD contractor by an individual who is certified by the Secretary of the Military Department or Director of the Defense Agency or DoD Field Activity concerned as qualified to provide those services, and provides those services for 10 hours or more per week per child on a regular basis for compensation. Also referred to as family home day care, family home care, child development homes, and family day care.
FCC administrator. DoD civilian employees or contract personnel, either APF or NAF, who are responsible for FCC program management, training, inspections, and other services to assist FCC providers. Includes program directors, monitors, outreach workers, United States Department of Agriculture (USDA) CACFP monitors, and administrative personnel.
FCC provider. An individual 18 years of age or older who provides child care for 10 hours or more per week per child on a regular basis in his or her home with the approval and certification of the commanding officer, and has responsibility for planning and carrying out a program that meets the children's needs at their various stages of development and growth.
Family member. For a Military Service member, the member's spouse or unmarried dependent child, or an unmarried dependent child of the member's spouse. For an eligible DoD civilian employee or eligible employee of a DoD contractor, the employee's spouse or same-sex domestic partner, or unmarried dependent child of the employee, employee's spouse, or the employee's same-sex domestic partner.
Financial hardship. A severe hardship resulting from, but not limited to: Sudden and unexpected illness or accident of the spouse or the same-sex domestic partner of an eligible DoD Civilian employee; loss of the spouse's or eligible DoD Civilian's same-sex domestic partner's employment or wages; property damage not covered by insurance; extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the patron.
Full-day care. This care meets the needs of parents working outside the home who require child care services 6 hours or more per day on a regular basis, usually at least 4 days per week.
Hourly care. Care provided in a CDP that meets the needs of parents requiring short-term child care services on an intermittent basis. Hourly care includes on-site group care.
Individual with a disability. A handicapped person as defined in 32 CFR part 56, in accordance with 29 U.S.C. 705, also known as “Section 7 of The Rehabilitation Act of 1973,” as amended, and consistent with 42 U.S.C. 12102, also known as “The Americans with Disabilities Act, as amended”. Synonymous with the phrase “person with a disability.”
Identification Action Team. A multidisciplinary team that supports families of children with special needs that consider the needs of the child, the disability, and the environment of group care in child development facilities or home-based care, staffing needs and training requirements, and the resources of the program.
Infant. A child, aged birth through 12 months.
In loco parentis. In the place or position of a parent. An “in loco parentis” relationship is one in which a person takes on the role of a lawful parent by assuming the obligations and discharging the duties of a parent without formally becoming an adoptive parent or legal guardian. The child(ren) must reside with and be supported by the person. A special power of attorney to act “in loco parentis” is required to be on file.
Military approved community based program. Military approved child care available to geographically dispersed eligible families.
Military CDP facility. A facility on a military installation or operated by a DoD Component at which child care services are provided for Military Service members or DoD civilian employees or any other facility at which such child care services are provided that is operated by the Secretary of a Military Department.
Military installation. Defined in 32 CFR 238.3.
Mixed-age group. A group of children that includes children from more than one age group.
Multidisciplinary inspection team. An inspection team led by a representative of the installation commander with authority to verify compliance with standards.
Non-appropriated funds (NAF). Funds derived from CDP fees paid by eligible patrons.
NAF employees. Civilian employees hired by DoD Components and compensated from NAFI funds. Includes temporary employees, 18 years or older.
Off-site group care. An option which provides child care on an occasional rather than a daily basis and allows on-site hourly group care when parents of children in care are attending command functions in the same facility.
On-site group care. A child care program that provides on-site hourly group child care when a parent or guardian of the children in care are attending the same function and are in the same facility.
Operational hardship. A program's inability to operate at full capacity due to documented staffing shortages.
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 at least 25 percent of the time in any month, provided that such person stands in loco parentis to that child and contributes at least one-half of the child's support.
Parent board. A group established pursuant to 10 U.S.C. 1783 and 1795 comprised of parents who are also Military Service members, retired Military Service members, or spouses of Military Service members or retired Military Service members of children attending DoD CDPs, including FCC. This board shall act in an advisory capacity, providing recommendations for improving services. The board shall meet periodically with staff of the CDP. The board, with the advice of the program staff, shall be responsible for developing and overseeing the implementation of the parent participation program in accordance with 10 U.S.C. 1795.
Parent participation plan. A planned group of activities and projects established by the Parent Board to encourage parents to volunteer in CDPs, including special events and activities (such as field trips, holiday events, and special curriculum programs), small group activities, special projects (such as playground improvement, procurement of equipment, and administrative aid), and parent education programs and training workshops to include child abuse prevention education for parents.
Part-day care. This care meets the needs of parents working outside the home who require child care services on a seasonal or regularly scheduled part-day basis for fewer than 6 hours per day, usually fewer than 4 days per week.
Preschool-age. Children 36 months through 5 years of age.
Pre-toddler. A child 13 months through 24 months of age.
Qualifying children. Children of an eligible patron or their spouse or the same-sex domestic partner of eligible DoD civilian employees.
Resource and referral (R&R). A service that provides information about child care services on and off the installation to meet patrons' child care needs and maximize use of available sources of child care.
Respite child care. Care for children that provides a parent or guardian temporary respite from their role as a primary caregiver.
Same-sex domestic partner. A person in a same-sex domestic partnership with a uniformed service member, civilian employee or employee of a DoD contractor of the same-sex.
Same-sex domestic partnership. A committed relationship between two adults of the same-sex in which the partners:
(1) Are each other's sole same-sex domestic partner and intend to remain so indefinitely;
(2) Are not married (legally or by common law) to, joined in civil union with, or in a same-sex domestic partnership with anyone else;
(3) Are at least 18 years of age and mentally competent to consent to contract;
(4) Share responsibility for a significant measure of each other's common welfare and financial obligations;
(5) Are not related in a way that, if they were of opposite sex, would prohibit legal marriage in the state or U.S. jurisdiction in which they reside; and,
(6) Maintain a common residence and intend to continue the arrangement (or would maintain a common residence but for the requirements of military service, an assignment abroad, or other employment-related, financial, or similar obstacle).
School age care (SAC). Either facility-based or home-based care for children ages 6-12, or those attending kindergarten, who require supervision before and after school, or during duty hours, school holidays, or school closures.
School-age children. Children aged 6 years through 12, or attending kindergarten through sixth grade, enrolled in a SAC program.
Screen time. Time spent watching television, playing video games, or on the computer.
Special needs. Children with special needs are children who may need accommodations to make child care accessible or may otherwise require more than routine and basic care; including children with or at risk of disabilities, chronic illnesses and physical, developmental, behavioral, or emotional conditions that require health and related services of a type or amount beyond that required by children in general.
Staff:child ratio. The number of children for whom individual caregiving personnel or FCC providers shall be responsible.
Sudden Infant Death Syndrome (SIDS). The sudden, unexplained death of an infant younger than 1 year old.
Supplemental child care. Child care programs and services that augment and support CDC and FCC programs to increase the availability of child care for military and DoD civilian employees. These may include, but are not limited to, resource and referral services, contract-provided services, short-term, hourly child care at alternative locations, and interagency initiatives.
Support staff. Person(s) responsible for providing services not directly related to direct child care services, such as, but not limited to, janitorial, food service, clerical, and administrative duties.
Surviving spouse. A spouse of a Service member who dies on active duty, active duty training, inactive duty training, or within 120 days after release from active duty if the death is due to a service-related disability.
Third party administrator (TPA). An independent organization or entity contracted to perform identified services on behalf of the plan administrator. These services may include clerical and administrative functions such as enrollment and claims administration, payment of subsidies to providers and information services.
Toddler. A child between the ages of 24 and 36 months of age.
Total family income (TFI). Includes all earned income including wages, salaries, tips, long-term disability benefits, voluntary salary deferrals, basic allowance for housing Reserve Component/Transit (BAH RC/T) and subsistence allowances and in-kind quarters and subsistence received by a Military Service member, civilian employee, a spouse, or, in the case of an eligible DoD civilian employee, the same-sex domestic partner, and anything else of value, even if not taxable, that was received for providing services. BAH RC/T and subsistence allowances mean the Basic Allowance for Quarters and the Basic Allowance for Subsistence received by military personnel and civilian personnel when provided (with respect to grade and status) and the value of meals and lodging furnished in-kind to military personnel residing on military bases.
Training & curriculum specialist—Personnel whose main responsibility is providing training and oversight to other CDC or SAC employees.
Unmet need. The number of children whose parents cannot work outside the home because child care is not available.
Waiting list. List of children waiting for a CDP space and whose parents have requested space in a CDP and none is available.
§ 79.4
Policy.
In accordance with DoD Instruction 1342.22, and 10 U.S.C. 1783, 1791 through 1800, 2809, and 2812, it is DoD policy to:
(a) Ensure that the CDPs support the mission readiness, family readiness, retention, and morale of the total force during peacetime, overseas contingency operations, periods of force structure change, relocation of military units, base realignment and closure, and other emergency situations (e.g. natural disasters, and epidemics). Although child care supports working parents, it is not an entitlement and parents must pay their share of the cost of child care.
(b) Reduce the stress of families who have the primary responsibility for the health, safety and well-being of their children and help them balance the competing demands of family life and the DoD mission. CDPs provide access and referral to available, affordable, quality programs and services that meet the basic needs of children, from birth through 12 years of age, in a safe, healthy, and nurturing environment.
(c) Conduct an annual internal certification process to ensure that all installation-operated CDPs are operating in accordance with all applicable Federal mandates and statutory requirements.
(d) Provide child care to support the personnel and the mission of DoD. Eligibility is contingent on the status of the sponsor.
(1) Eligible patrons include:
(i) Active duty military personnel
(ii) DoD civilian employees paid from either appropriated funds (APF) or non-appropriated funds (NAF).
(iii) Reserve Component military personnel on active duty or inactive duty training status.
(iv) Combat related wounded warriors.
(v) Surviving spouses of Military members who died from a combat related incident.
(vi) Those acting in loco parentis for the dependent child of an otherwise eligible patron.
(vii) Eligible employees of DoD contractors.
(viii) Others authorized on a space available basis.
(2) In the case of unmarried, legally separated parents with joint custody, or divorced parents with joint custody, children are eligible for child care only when they reside with the Military Service member or eligible civilian sponsor at least 25 percent of the time in a month that the child receives child care through a DoD program. There may be exceptions as addressed in § 79.6.
(e) Promote the cognitive, social, emotional, cultural, language and physical development of children through programs and services that recognize differences in children and encourage self-confidence, curiosity, creativity, self-discipline, and resiliency.
(f) Employ qualified direct program staff whose progression from entry level to positions of greater responsibility is determined by training, education, experience, and competency. Ensure that civilian employees maintain their achieved position and salary as they move within the military child care system.
(g) Certify qualified FCC providers who can support the mission requirements of the installation.
(h) Facilitate the availability and expansion of quality, affordable, child care off of military installations that meet the standards of this part to ensure that geographically dispersed eligible families have access to legally operating military-approved community-based child care programs.
(i) Promote the early identification and reporting of alleged child abuse and neglect in DoD CDPs in accordance with DoD Directive 6400.1, “Family Advocacy Program (FAP)” (see http://www.dtic.mil/whs/directives/corres/pdf/640001p.pdf).
(j) Ensure that funding is available to meet Military Child Care Act requirements pursuant to 10 U.S.C. 1791 through 1800 and protect the health, safety, and well-being of children in care.
§ 79.5
Responsibilities.
(a) The Assistant Secretary of Defense for Readiness and Force Management (ASD(R&FM)), under the authority, direction, and control of the USD (P&R) shall:
(1) Monitor compliance with this part by personnel under his or her authority, direction, and control.
(2) Annually review and issue a child care fee policy based upon total family income (TFI) for use by programs in the DoD child development system of care.
(b) The Deputy Assistant Secretary of Defense for Military Community and Family Policy (DASD(MC&FP)), under the authority, direction, and control of the ASD(R&FM), shall:
(1) Work across functional areas of responsibility and collaborate with other federal and non-governmental organizations to ensure access to a continuum of quality, affordable CDPs.
(2) Program, budget, and allocate funds and other resources to meet the objectives of this part.
(3) Issue DD Form 2636, “Child Development Program, Department of Defense Certificate to Operate,” to the Military Departments for each CDP found to be in compliance with this part.
(4) Require that the policies and related documents are updated and relevant to the program.
(5) Report DoD Component program data to support legislative, research, and other requirements.
(c) The Heads of the DoD Components shall:
(1) Establish implementing guidance and ensure full implementation within 12 months of the publication date, consistent with this part, to monitor compliance through regular inspection of CDPs and follow-up oversight actions as needed.
(2) Program, budget, and allocate funds and other resources to meet the requirements of this part.
(3) Establish a priority system for all patrons seeking to enroll children in CDPs in accordance with paragraph (a) of § 79.6.
(4) Assess DoD Component demand and take appropriate action to address the child care capability needed on and off the installation in accordance with paragraph (g) of § 79.6.
(5) Establish a hardship waiver policy to address financial and operational situations.
(6) Submit fiscal year annual summary of operations reports to the DASD(MC&FP) by December 30 of each year using Report Control Symbol DD-P&R(A) 1884, “Department of Defense Child Development Program (CDP) Annual Summary of Operations.”
(7) Require that background checks are conducted for individuals who have contact with children in DoD CDPs in accordance with DoDI 1402.5, “Criminal History Background Checks on Individuals in Child Care Services” (available at http://www.dtic.mil/whs/directives/corres/pdf/140205p.pdf) and 32 CFR part 86 and paragraph (c)(1) of § 79.6.
(8) Require that all individuals who have contact with children in a DoD CDP complete a DD Form X656 “Basic Criminal History and Statement of Admission”.
(9) Require that each CDP establishes a Parent Board in accordance with 10 U.S.C. 1783 and 1795.
(10) Forward the results of DoD Component inspections to the DASD(MC&FP).
(11) Ensure that all incidents that occur within a DoD CDP and involve allegations of child abuse or neglect, revocation of accreditation, or hospitalization of a child, are reported to DASD (MC&FP) through the Office of Family Policy (OFP/CY) within 72 hours of the incident.
(12) Notify the DASD(MC&FP) through OFP/CY if, at any time, a facility in the CDP is closed due to a violation (see paragraph (c)(4)(ii) of § 79.6, for more information on violations).
(13) Provide the DASD(MC&FP) through OFP/CY with a copy of applications made in accordance with DoD Instruction 5305.5, “Space Management Procedures, National Capital Region” (see http://www.dtic.mil/whs/directives/corres/pdf/530505p.pdf) and 40 U.S.C. 590 to the U.S. General Services Administration (GSA) for building space for use in providing child care for DoD personnel, and comply with GSA standards for funding and operation of child care programs in GSA-controlled space.
(i) Where the DoD is the sole sponsoring agency and the space has been delegated to the DoD by the GSA, the space must comply with the requirements prescribed in this part.
(ii) For the National Capital Region, space acquisition procedures in DoD Instruction 5305.5 shall be used to gain the assignment of space in Government-owned or Government-leased facilities from the GSA.
(14) Require that CDPs follow the recommendations of the Advisory Committee on Immunization Practices (ACIP) and comply with generally accepted practices endorsed by the American Academy of Pediatrics (AAP) and Centers for Disease Control or the latest guidance provided by OFP/CY.
(15) Establish and implement DoD Component-specific child care fees based on the DoD-issued fee policy on an annual basis, and issue supplemental guidance on fees for school-age programs, hourly care, preschool programs, DoD Component approved community-based programs, and FCC subsidies. Submit DoD Component-specific requests for waiver for any deviation from DoD policy, including selection of the high or low cost fee option, to the Office of the DASD (MC&FP) through OFP/CY for approval.
(16) Establish guidelines for communication between command, installation, and educational and behavioral support systems.
(17) Require that all military installations under their authority follow guidance that addresses the ages and circumstances under which a child under 13 years of age can be left at home alone without adult supervision, also known as a “home alone policy,” or “self-care policy.” The installation commander should approve this policy in consultation with the installation director of the Family Advocacy Program. Guidance is consistent with or more stringent than applicable laws and ordinances of the State and country in which the installations are located.
(18) Establish guidance and operating procedures to provide services for children with special needs in accordance with 32 CFR part 56, “Nondiscrimination on the Basis of Handicap in Programs and Activities Assisted or conducted by the Department of Defense” that implement section 504 of the Rehabilitation Act for federally conducted and federally assisted programs and 42 U.S.C. 12102, “The American Disabilities Act” as they apply to children and youth with special needs.
(i) Require procedures for reviewing and making reasonable accommodation for children with special needs that do not fundamentally alter the nature of the program.
(ii) Consider the needs of the child, the disability, and the environment of group care in child development facilities or home-based care, staffing needs and training requirements, and the resources of the program.
(iii) Include CDPs as part of the Multidisciplinary Inclusion Action Team that supports families of children with special needs.
(19) Establish guidance and operating procedures to provide services for children of the deployed.
(20) Establish standard risk management procedures for responding to emergency or contingency situations. This includes, but is not limited to, natural disasters, pandemic disease outbreaks, allegations of child abuse or neglect, active shooter, or an installation or facility lockdown.
(21) Require that vehicles used to transport children comply with Federal motor vehicle safety standards in accordance with 49 U.S.C. 30125 and applicable State or host nation requirements.
(22) Notify applicable civilian patrons annually of their potential tax liability associated with child care subsidies, and ensure that information required by the third party administrator (TPA) is provided in accordance with 26 U.S.C. 129.
(23) Require that a current plan to implement direct cash subsidies to military-approved child care providers to expand the availability of child care spaces and meet specialized child care needs, such as weekend and evening care, special needs, deployment support, and respite child care support, is in place.
(d) The Secretaries of the Military Departments, in addition to the responsibilities in paragraph (c) of this section, shall:
(1) Work with the Heads of the DoD Components to implement CDPs in accordance with this part.
(2) Notify the OFP/CY of any Service-wide specific requirements that will require a waiver to deviate from existing policy.
(e) The Installation Commanders (under the authority, direction, and control of the Secretary of the Military Department concerned) shall:
(1) Require that CDPs within his or her jurisdiction are in compliance with this part.
(2) Require that child care fees are used in accordance with DoD Instruction 5305.5 and paragraph (c)(2) of § 79.6.
(3) Require that CDP direct program staff are paid in accordance with Volume 1405 of DoD Instruction 1400.25, “DoD Civilian Personnel Management System: Nonappropriated Fund (NAF) Pay and Allowances” (available at http://www.dtic.mil/whs/directives/corres/pdf/1400.25-V1405.pdf). Ensure 75 percent of the program's direct program staff total labor hours are paid to direct program staff who are in benefit status.
(4) Require that there are adequate numbers of qualified professional staff to manage the CDPs according to the Service manpower and child space staffing requirements and referenced in paragraphs (c) and (d) of § 79.6 of this part.
(5) Manage child care priority policy, as directed by their respective DoD Component.
(6) Manage hardship waiver policy (financial and operational), as directed by their respective DoD Component.
(7) Review and validate the demand for installation child care capacity and take appropriate action to expand the availability of care as needed. See paragraph (h) of § 79.6 of this part.
(8) Convene a Parent Board, and ensure that a viable Parent Participation Program is in accordance with 10 U.S.C. 1783 and 1795.
(9) Implement mandated annual and periodic inspections and complete required corrective and follow-up actions within timeframes specified by their respective DoD Component.
(f) Directors of the Defense Agencies and DoD Field Activities. In addition to the responsibilities in paragraph (c) of this section, the Directors of the Defense Agencies and DoD Field Activities shall:
(1) Require that CDPs within his or her jurisdiction are in compliance with this part.
(2) Require that child care fees are used in accordance with DoD Instruction 5305.5 and paragraph (c)(2) of § 79.6.
(3) Require that CDP direct program staff are paid in accordance with Volume 1405 of DoD Instruction 1400.25. Ensure 75 percent of the program's direct program staff total labor hours are paid to direct program staff who are in benefit status.
(4) Require that there are adequate numbers of qualified professional staff to manage the CDPs according to the Service manpower and child space staffing requirements and referenced in paragraphs (c) and (d) of § 79.6 of this part.
(5) Manage child care priority policy, as directed by their respective DoD Component.
(6) Manage hardship waiver policy (financial and operational), as directed by their respective DoD Component.
(7) Review and validate the demand for installation child care capacity and take appropriate action to expand the availability of care, as needed. See paragraph (h) of § 79.6 of this part.
(8) Convene a Parent Board, and require that a viable Parent Participation Program is in accordance with 10 U.S.C. 1783 and 1795.
(9) Implement mandated annual and periodic inspections and complete required corrective and follow-up actions within timeframes specified by their respective DoD Component.
§ 79.6
Procedures.
(a) Priority System. To the extent possible, CDPs shall be offered to the qualifying children of eligible patrons.
(1) Priority 1. The highest priority for full-time care shall be given to qualifying children from birth through 12 years of age of combat related wounded warriors, child development program direct care staff, single or dual active duty Military Service members, single or dual DoD civilian employees paid from APF and NAF, surviving spouses of military members who died from a combat related incident, and those acting in loco parentis on behalf of the aforementioned eligible patrons. With the exception of combat related wounded warriors, ALL eligible parents or caregivers residing with the child are employed outside the home.
(2) Priority 2. The second priority for full-time care shall be given equally to qualifying children from birth through 12 years of age of active duty Military Service members, DoD civilian employees paid from APF and NAF, surviving spouses of military members who died from a combat related incident, and those acting in loco parentis on behalf of the aforementioned eligible patrons, where a non-working spouse, or in the case of a DoD civilian employee with a same-sex domestic partner, is actively seeking employment. The status of actively seeking employment must be verified every 90 days.
(3) Priority 3. The third priority for full-time care shall be given equally to qualifying children from birth through 12 years of age of active duty Military Service members, DoD civilian employees paid from APF and NAF, surviving spouses of military members who died from a combat related incident, and those acting in loco parentis on behalf of the aforementioned eligible patrons, where a non-working spouse, or in the case of a DoD civilian employee with a same-sex domestic partner, is enrolled in an accredited post-secondary institution. The status of post-secondary enrollment must be verified every 90 days.
(4) Space Available. After meeting the needs of parents in priorities 1, 2, and 3, CDPs shall support the need for full-time care for other eligible patrons such as active duty Military Service members with non-working spouses, DoD civilian employees paid from APF and NAF with non-working spouses or same-sex domestic partners, eligible employees of DoD Contractors, Federal employees from non-DoD agencies, and military retirees on a space available basis. In this category, CDPs may also authorize otherwise ineligible patrons in accordance with 10 U.S.C. 1783, 1791 through 1800, 2809, and 2812 to enroll in the CDP to make more efficient use of DoD facilities and resources.
(5) Individual priorities will be determined based on the date of application with the DoD Component. Components may only establish sub-priorities if unique mission related installation requirements are identified by higher headquarters.
(b) Types of Care. The types of care offered for children from birth through 12 years of age include 24/7 care and care provided on a full-day, part-day, short-term or intermittent basis.
(1) Military-Operated CDPs. Military-operated (on and off installation) CDPs generally include:
(i) CDCs. Reference Table 1 of this section of this part for standards of operation for CDCs. CDCs primarily offer care to children from birth to 5 years of age, but may also be used to provide SAC programs.
(ii) SAC Programs. Reference Table 1 of this section for SAC standards of operation. SAC programs primarily offer care to children from 6 to 12 years of age. Care may be offered in CDCs and other installation facilities, such as youth centers and schools.
(iii) FCC. Reference Table 2 of this section for FCC standards of operation. Child care services are available to children from infancy through 12 years of age and are provided in government housing or in state licensed/regulated homes in the community.
(iv) Supplemental Child Care. Services include short-term alternative child care options in approved settings on and off installation.
(v) Part-Day and Hourly Programs. CDP space used for part-day and hourly programs, including programs to provide respite child care, shall not exceed 20 percent of the CDP program's capacity during duty hours.
(2) Military Department, Defense Agency, and DoD Field Activity-Approved Supplemental Child Care Programs. See paragraph (g) of this section.
(c) Administration, Funding and Oversight of Military Operated CDPs. Unless otherwise noted, the requirements in this section apply to all DoD-operated CDPs.
(1) Background Checks. All background checks for individuals who have regular, recurring contact with children and youth in CDPs, including adult family members of FCC providers and any individual over the age of 18 living in a home where child care is provided, and persons who serve as substitute or backup providers, shall be conducted in accordance with 32 CFR part 86.
(2) Funding. CDPs are funded by a combination of APF and NAF.
(i) The amount of APF used to operate CDPs shall be no less than the amount collected through child care fees, except for CDCs that operate under a long-term facility's contract or lease-purchase agreement under 10 U.S.C. 2809 and 2812.
(A) A family's child care fee category is determined based on an initial and subsequent annual verification of TFI. Families pay the child care fee assigned to that TFI category. A family's fees may only be adjusted once per year, with exceptions listed in paragraph (c)(2)(i)(E) of this section. TFI is determined utilizing DD Form 2652.
(B) APF may be used to subsidize child care in military-approved civilian programs in accordance with 10 U.S.C. 1791 through 1800.
(C) DoD Components establishing child care fee assistance programs for their employees must contribute the amounts required to pay subsidies out of agency APFs.
(D) FCC providers are private contractors. Fees are established between the provider and parent, unless such providers receive direct monetary subsidies. When FCC providers receive direct monetary subsidies to reduce the cost of care for the families they service, the installation commander or DoD Component shall determine relevant fees charged by FCC providers.
(E) Fees may be adjusted:
(1) By the installation commander, Defense Agency Director, or DoD Field Activity Director:
(i) On a case-by-case basis for families who are facing financial hardship or unusual circumstances that merit review, in accordance with established DoD Component guidance.
(ii) For parents participating in an approved parent participation program.
(2) By the DoD Components, Defense Agency Director, or DoD Field Activity Director:
(i) To accommodate an optional high market rate when it is necessary to pay higher wages to compete with local labor or at those installations where wages are affected by non-foreign area cost of living allowance (COLA), post differential or locality pay. The optional low market rate may be used in areas where costs for comparable care within the installation catchment area are significantly lower. A request to utilize the high or low market rate options must be submitted to OFP/CY for approval.
(ii) To reflect changes in employment status, relocation, and annual internal reviews that find inaccurate determination or calculation of TFI.
(iii) For CDP employees when CDC programs are facing operational hardships.
(ii) Child Development Program Element APF may be used for:
(A) Salaries of CDP employees.
(B) Food.
(C) Training and education.
(D) Program accreditation fees and support services.
(E) Travel and transportation.
(F) Marketing, to include recruitment, retention, and participation efforts.
(G) Supplies and equipment, to include lending libraries and training materials for use by FCC providers.
(H) Local travel expenses incurred by FCC program staff using their private vehicles to perform government functions.
(I) Direct monetary subsidies to FCC providers.
(iii) To the maximum extent possible, child care fees shall cover the NAF cost of care, and NAF costs not covered by child care fees are to be minimized. Child care fees shall only be used for:
(A) Compensation of direct care CDP employees who are classified as NAF employees, to include training and education, and recruitment and retention initiatives approved by the DoD Component.
(B) Food-related expenses not paid by the USDA or DoD APFs.
(C) Consumable supplies.
(3) Facility Requirements and Construction.
(i) Minimum prescribed construction standards:
(A) For all Marine Corps, Navy, and Air Force CDC facility construction, the Unified Facilities Criteria (UFC) 4-740-14, “Design: Child Development Centers” (see http://www.wbdg.org/ccb/DOD/UFC/ufc_4_740_14.pdf) apply.
(B) For all Army CDC facility construction, the Army Standard for Child Development Centers (see https://mrsi.usace.army.mil/fdt/Army%20Standards/CDC%20age%206wk%20to%205yr%20Army%20Standard.pdf) apply.
(C) When SAC is provided in youth facilities, UFC 4-740-06, “Youth Centers” (see http://www.wbdg.org/ccb/DOD/UFC/ufc_4_740_06.pdf) and Service-specific exceptions to the UFC apply.
(D) State and local construction standards may be used but are not required, except if the CDC facility is located on an area over which the United States has no legislative jurisdiction and then only if State and local standards are more stringent than those in UFC 4-740-14.
(ii) All facilities shall comply with the structural requirements of the National Fire Protection Association 101, “Life Safety Code®” 2012 (available at http://www.nfpa.org/aboutthecodes/AboutTheCodes.asp?DocNum=101&cookie%5Ftest=1)
(4) Oversight.
(i) DoD Certification Inspection. Installation-operated CDPs in which care is provided for 10 or more child care hours per week on a regular basis shall be certified to operate through inspections occurring no fewer than four (4) times a year. Inspections must be unannounced, and parent and staff feedback shall be solicited as part of the inspection process.
(A) Three local inspections and one higher headquarters inspection shall be conducted to verify compliance with this part and DoD Component implementing guidance. Local inspection teams are led by a representative of the installation commander, Defense Agency Director, or Defense Field Activity Director, and a multidisciplinary team, to include human resource, fire, health, and safety proponents, with expertise and authority to verify compliance with this part.
(1) Local inspections include an annual comprehensive health and sanitation inspections, annual comprehensive fire and safety inspections, and a multidisciplinary inspection whose team that includes parent representation. Community representation on the team by appropriate professionals is highly encouraged.
(2) DoD Component inspection teams inspecting CDPs serving children birth through 12 years of age shall include staff possessing:
(i) A baccalaureate degree in child development, early childhood education (ECE), home economics (early childhood emphasis), elementary education, special education, or other degree appropriate to the position filled from an accredited college;
(ii) Knowledge of child/youth development programs; or
(iii) A combination of education and experience that provide knowledge comparable to that normally acquired through the successful completion of a 4-year degree (experience must include at least 3 years of full-time teaching or management experience with children of the appropriate age group).
(3) Parents shall be interviewed as part of the DoD Component inspection. Additional inspections shall be conducted in response to program complaints in accordance with paragraph (b) of § 79.5.
(4) Results of DoD Component inspections shall be provided by the DoD Component to the ODASD(MC&FP) through OFP/CY. CDPs whose inspection results demonstrate compliance with this part shall receive DD Form 2636. Certificates shall be displayed in a prominent location in the CDP.
(5) Inspection results shall be made available to parents. Results from inspections of CDC programs shall be available online.
(6) Periodic, unannounced inspections shall be made by the ODASD(MC&FP) to ensure compliance with the requirements in this part.
(7) In response to each inspection, a corrective action plan with appropriate timelines shall be developed to address any deficiencies identified during inspection.
(ii) Violations. The installation commander, Defense Agency Director or DoD Field Activity Director shall ensure the immediate remedy of any life-threatening violation of this part or other safety, health, and child welfare laws or regulations (discovered at an inspection or otherwise) at a DoD CDP, or he or she will close the facility (or affected parts of the facility).
(A) In the case of a violation that is not life-threatening, the commander of the major command under which the installation concerned operates, or the Director of the Defense Agency or DoD Field Activity concerned, may waive the requirement that the violation be remedied immediately for up to 90 days beginning on the date of discovery of the violation.
(B) If the violation that is not life-threatening is not remedied by the end of that 90-day period, the facility or parts involved will be closed until the violation is remedied.
(C) The Secretary of the Military Department, or Director of the Defense Agency or DoD Field Activity concerned, may request a waiver of the requirements of the preceding sentence to authorize the program to remain open in a case where the violation cannot reasonably be remedied within the 90-day period or in which major facility reconstruction is required. A waiver request must be submitted to OFP/CY for approval.
(iii) Accreditation. Eligible CDP facilities (excluding FCC) shall be accredited by a DoD-approved national accrediting body. CDP oversight is a statutory requirement involving an external nationally recognized accreditation process and internal DoD Certification process.
(A) FCC providers shall be encouraged to seek accreditation from an appropriate national accrediting body.
(B) The percentage of CDP facilities successfully achieving accreditation shall be reflected in the Annual Summary of Operations report referenced in § 79.5.
(iv) Monitoring. There shall be a system in place to monitor FCC homes on a regular basis during all hours of operation. The following information shall be maintained for FCC providers:
(A) Results of family interview.
(B) Background check with suitability determination.
(C) Inspection results.
(D) Insurance.
(E) Training records.
(F) Monitoring visit records.
(5) Parent Board. In accordance with 10 U.S.C. 1783 and 1795, each CDP shall establish a Parent Board to discuss problems and concerns and to provide recommendations for improving CDPs. The Board, with the staff of the program, is responsible for coordinating a parent participation program.
(i) The Board shall be composed only of parents of children enrolled in the installation CDP facilities that are Military Service members, retired Military Service members, or spouses of Military Service members or retired Military Service members, and chaired by such a parent.
(ii) The Board shall meet periodically with the staff of the program and the installation commander, Defense Agency Director, or DoD Field Activity Director to discuss problems and concerns. Board recommendations shall be forwarded to the installation commander, Defense Agency Director, or DoD Field Activity Director for review and disposition. These recommendations are reviewed during the DoD certification inspection.
(iii) The Board shall coordinate a parent participation program with CDP staff to ensure parents are involved in CDP planning and evaluation. In accordance with 10 U.S.C. 1795, parents participating in such program may be eligible for child care fees at a rate lower than the rate that otherwise applies.
(6) Enrollment. To enroll in the CDP, parents shall complete DD Form 2606 or electronic equivalent, DoD Child Development Program Request for Care Record. At the time of enrollment in an installation-based CDP, parents shall provide:
(i) Child(ren)'s health and emergency contact information.
(ii) Documentation that children have been fully immunized.
(A) Children who have not received their age-appropriate immunizations prior to enrollment and do not have a documented religious or medical exemption from routine childhood immunizations shall show evidence of an appointment for immunizations; the immunization series must be initiated within 30 days.
(B) Children in SAC are not required to provide documentation if they are enrolled in a local public school system where proof of currency of vaccination is required.
(iii) Children's records shall be updated annually or as needed for their health, safety, or well-being.
(7) Immunizations. Children enrolling in or currently enrolled in DoD CDPs must provide written documentation of immunizations appropriate for the child's age. Per AR 40-562/BUMEDINST 6230.15A/AFJI 48-110/CG COMDTINST M6230.4F, “Immunizations and Chemoprophylaxis” (see http://www.vaccines.mil/documents/969r40_562.pdf), immunizations recommended by the ACIP are required.
(i) All records shall be updated at least annually and kept on file. Any child not enrolled in a school system where proof of currency of vaccination is required must provide proof of currency.
(ii) Children enrolled in a local public school system and volunteer sports coaches are excluded from this requirement.
(iii) A waiver for an immunization exemption may be granted for medical or religious reasons. Philosophical exemptions are not permitted. The DoD Component must provide guidance on the waiver process.
(A) A statement from the child's health care provider is required if an immunization may not be administered because of a medical condition. The statement must document the reason why the child is exempt.
(B) If an immunization is not administered because of a parent's religious beliefs, the parent must provide a written statement stating that he or she objects to the vaccination based upon religious beliefs.
(C) During a documented outbreak of a contagious disease (as determined by local DoD Medical authorities) that has a vaccine, the child who is attending the program under an immunization waiver for that vaccine, will be excluded from the program for his or her protection and the safety of the other children and staff until the contagious period is over.
(iv) Civilian employees (including specified regular volunteers) and FCC providers shall obtain appropriate immunization against communicable diseases in accordance with recommendations from the ACIP. The requirement for appropriate immunization is a condition of continued employment or active participation in the program or organization.
(A) This requirement is waived if a current immunization, a protective titer, or a medical exemption is approved and documented. A waiver for an immunization exemption may also be granted for religious reasons. Philosophical exemptions are not permitted.
(B) The DoD Component must provide guidance on the waiver process. The DoD Component must approve all waivers and documentation of the waiver kept on file.
(C) During a documented outbreak of a contagious disease, staff with a waiver will be excluded from the program for their protection and the safety of the other children and staff until the contagious period is over.
(8) Child Abuse Prevention and Reporting. In accordance with 10 U.S.C. 1794, CDPs shall minimize the risk for child abuse.
(i) CDPs shall have standard operating procedures for reporting cases of suspected child abuse and neglect, and all employees, employees of DoD contractors, individuals working with CDPs, providers, volunteers and parents shall be informed of child abuse prevention, and identification and reporting requirements. Staff shall be knowledgeable of the child abuse reporting requirements.
(ii) In accordance with 10 U.S.C. 1794, the DoD Child Abuse and Safety Hotline telephone number shall be posted in highly visible areas, including the facility lobby, where parents have easy access to the telephone number. The hotline number shall be published in parent handbooks and other media.
(9) Programming and Standards of Operation. All CDPs shall establish a planned program of developmentally appropriate activities, and adhere to the standards of operation outlined in Tables 1 and 2 of this section.
(d) Personnel. Installation-based CDP personnel and FCC providers shall meet the following requirements:
(1) CDC Directors. CDC directors shall have at a minimum:
(i) A baccalaureate degree in child development, ECE, home economics (early childhood emphasis), elementary education, special education, or other degree appropriate to the position filled from an accredited college; or
(ii) A combination of education and experiences, which provide knowledge comparable to that normally acquired through the successful completion of the 4-year course of study in a child-related field.
(2) SAC Directors. Directors shall have at a minimum:
(i) A baccalaureate degree in a field of child or youth development, such as youth recreation, physical education, elementary education, secondary education, child development, psychology, social work, or other degree appropriate to the position filled from an accredited college; or
(ii) A combination of education and experiences, which provide knowledge comparable to that normally acquired through the successful completion of the 4-year course of study in a child development or youth-related field.
(3) Training and Curriculum Specialists. Each program within the CDP shall employ at least one training and curriculum specialist. Training and curriculum specialists shall have at a minimum:
(i) A baccalaureate degree with a major course of study directly related to child or youth development, ECE or an equivalent field of study from an accredited college, or a combination of education and experiences, which provide knowledge comparable to that normally acquired through the successful completion of the 4-year course of study in the field of child or youth development or ECE.
(ii) Knowledge of early childhood or youth education principles, concepts, and techniques to develop, interpret, monitor, and evaluate the execution of curriculum and age-appropriate activities.
(iii) Knowledge of adult learning techniques and strategies and experience training adult learners.
(iv) Ability to support DoD certification, accreditation, and staff credentialing (Child Development Associate (CDA), Associate of Arts (AA) Degree) by ensuring that required training is administered and successfully accomplished to meet statutory and program requirements.
(4) FCC Administrators. FCC administrators shall have at a minimum:
(i) A baccalaureate degree with a major course of study directly related to child or youth development, family studies, or an equivalent field of study from an accredited university; or
(ii) A combination of education and experiences, which provide knowledge comparable to that normally acquired through the successful completion of the 4-year course of study in the field of child or youth development or family studies.
(5) CDP Direct Care Personnel, Support Staff, and FCC Providers. CDP direct care personnel and support staff, as a condition of employment, and FCC providers shall, as a condition of participation:
(i) Be at least 18 years of age.
(ii) Hold a high school diploma or equivalent.
(iii) Read, speak, and write English.
(iv) Successfully pass a pre-employment physical, maintain current immunizations and be physically and behaviorally capable of performing the duties of the job.
(e) Training. Each CDP must have a DoD Component-approved training program. Satisfactory completion of training is a condition of employment for staff in a center-based program and for providers offering care in FCC homes.
(1) CDP Management Personnel. CDP management personnel, including CDP directors (CDC directors, FCC administrators, and SAC directors), shall receive annual training, which includes the following topics:
(i) Child abuse prevention, identification, and reporting.
(ii) Program administration, including APF and NAF financial management, funding metrics, and fiscal accountability.
(iii) Staff development and personnel management.
(iv) Prevention of illness and injury and promotion of health.
(v) Emergency procedures and preparedness.
(vi) Working with children with special needs.
(vii) Developmentally appropriate practices.
(2) Training and Curriculum Specialists. Training and curriculum specialists shall receive annual training, to include the following topics:
(i) Child abuse prevention, identification, and reporting.
(ii) Developmentally appropriate practices.
(iii) Principles of adult learning.
(iv) Prevention of illness and injury and promotion of health.
(v) Emergency procedures.
(vi) Working with children with special needs.
(3) CDP Direct Care Personnel and FCC Providers.
(i) Training requirements for direct care personnel (excluding FCC providers) shall be linked to the DoD CDP Employee Wage Plan implemented in response to 10 U.S.C. 1783, and 1791 through 1800 to include completion of the DoD-approved competency based training modules within DoD Component specified time frames.
(ii) All newly hired CDP direct care personnel and FCC providers shall complete 40 hours of orientation. Orientation shall begin prior to working with children, with the full 40 hours completed within the first 90 days of employment. Orientation completion shall be documented for each direct care personnel or FCC provider. Orientation includes:
(A) Working with children of different ages, including developmentally appropriate activities and environmental observations.
(B) Age-appropriate guidance and discipline techniques.
(C) Applicable regulations, policies, and procedures.
(D) Child safety and fire prevention.
(E) Child abuse prevention, identification, and reporting.
(F) Parent and family relations.
(G) Health and sanitation procedures, including blood-borne pathogens, occupational health hazards for direct care personnel, and recognizing symptoms of illness.
(H) Emergency health and safety procedures, including pediatric cardiopulmonary resuscitation (CPR) and first aid.
(I) Safe infant sleep practices and Sudden Infant Death Syndrome (SIDS) prevention.
(J) Nutrition, obesity prevention, and meal service.
(K) Working with children with special needs.
(L) Accountability and child supervision training.
(M) For FCC providers only, infant and child (pediatric) CPR and first aid must be completed prior to accepting children for care. Training shall be updated as necessary to maintain current certifications.
(N) For FCC providers only, training in business operations.
(iii) CDP direct care personnel and FCC providers shall complete additional training specified by the DoD Component within 90 days of beginning work. The training shall include, at a minimum, in-depth training on the subjects covered in the orientation as well as infant and child (pediatric) CPR and first aid, which shall be updated as necessary to maintain current certifications.
(iv) CDP direct care personnel and FCC providers shall complete a minimum of 24 hours per year of ongoing training by the DoD Component approved training program. Training shall include child abuse prevention, identification and reporting, safe infant sleep practices and SIDS prevention, working with children with special needs, and if required, administering medication.
(v) Substitute FCC providers must complete a basic orientation and background checks prior to providing care. Such orientation includes child abuse prevention, identification and reporting, working with children with special needs, safety procedures and pediatric CPR and first aid, and SIDS prevention. The FCC provider's spouse may serve as a backup provider on a limited basis, as designated by the DoD Component and must complete the required substitute FCC provider training.
(4) CDP Support Staff. CDP support staff shall participate in annual training related to the latest techniques and procedures in child care, including topics on child abuse prevention, identification and reporting, and other training related to their position.
(f) Volunteers. All volunteers shall be screened, trained, and supervised in accordance with DoD Instruction 1402.5 and 32 CFR part 86; and DoD Instruction 1100.21, “Voluntary Services in the Department of Defense” (see http://www.dtic.mil/whs/directives/corres/pdf/110021p.pdf) and DoD Component implementing guidance, as appropriate to their role. Volunteers may not be alone with children and are not counted in the staff ratio. All regularly scheduled volunteers shall be trained in:
(1) Program orientation.
(2) Age-appropriate learning activities.
(3) Child abuse identification, reporting and prevention.
(4) Age-appropriate guidance and discipline.
(5) Working with children with special needs.
(6) Child health and safety.
(7) Safe infant sleep practices and SIDS prevention.
(8) Emergency procedures.
(9) Applicable regulations and installation policy.
(10) Role of the volunteer in the CDP.
(g) Supplemental Child Care. On-site group care services are designed to provide occasional, intermittent care to children on an hourly basis, including respite child care.
(1) When on-site group care is provided in an installation CDP facility by CDP staff members, the requirements of this part apply.
(2) When on-site group care is provided in a non-CDP facility by CDP personnel and parents are not on site, the requirements of this part apply.
(3) When on-site group care is provided in a non-CDP facility by CDP personnel and parents remain on site, the facility is not required to meet the requirements of this part.
(4) When on-site group care is provided in an alternative facility by volunteers or parents, and the parent or guardian remain on site, the requirements of this part do not apply.
(h) Administration and Oversight of Community-Based Care Providers. (1) Types of Care. Efforts shall be made to expand the availability of these programs through referrals to comparable programs off of the installation through participation in consortiums with other Federal and non-governmental entities.
(i) Efforts shall be made to ensure quality, affordable child care options exist for all eligible patrons, including those who are geographically dispersed active duty military and their families. Community-based child care options are designed to supplement, not replace, child care programs on the installation.
(ii) Care may be delivered through military-approved community-based CDPs, utilizing a myriad of delivery systems, including existing child care facilities, schools, recreation and after-school and summer programs, and home-based care programs.
(iii) Programs that support the needs of eligible deployed families in military-approved community-based child care programs where care is needed for a short-term basis during the deployment phase must meet the State licensing regulations and requirements and be inspected by an outside agency once a year. All other types of care must meet the intent of this part.
(iv) Programs shall meet State licensing standards for background checks.
(v) Military-approved community-based child care programs will be encouraged to participate in an evaluation process utilizing the ERIS in this section, a detailed assessment tool developed by the DoD to evaluate facility-based child care providers.
(2) Subsidies.
(i) The DoD Components may subsidize a portion of the cost of child care incurred by eligible active duty and DoD civilian employees.
(ii) Subsidies resulting from the child care provided to children of active duty military members are excluded from gross income pursuant to 26 U.S.C. 134.
(iii) Subsidies provided to DoD civilian employees may qualify for exclusion from gross income, provided the specific program used qualifies under 26 U.S.C. 129(d) and the employee receives the subsidy for an eligible purpose on behalf of an eligible child as described in 26 U.S.C. 21(a) and 21(b). Subsidies in excess of the excludable amounts will be treated as gross income under 26 U.S.C. 61. Employees are advised to consult with a qualified tax expert with questions or concerns related to taxability of child care subsidies.
(iv) Child care programs and providers who offer their services under this provision must comply with the standards outlined in this part and must be approved by the plan administrator or designee prior to issuance of subsidy payments by a DoD Component.
(v) The DoD Components are responsible for budgeting for child care subsidies and are not to establish a special fund out of which child care subsidies are paid, nor will eligible users of Military Child Development Programs be required to make a contribution as a condition of receiving a child care subsidy.
(vi) The DoD Components have the discretion to amend or terminate their participation in a child care subsidy program under this plan at any time. The benefits in this section are not guaranteed and may be reduced by plan amendment.
(vii) The OFP/CY will designate a TPA to administer the Military Department, Defense Agency, and DoD Field Activity civilian child care subsidy program for all DoD Components. Each civilian sponsor must register with the TPA contracted by the Defense Department.
(A) The TPA shall annually document family and provider eligibility, TFI, child data, and other information required to comply with reporting requirements, in accordance with 26 U.S.C. 21(a), 21(b), 61, 129, and 134.
(B) The TPA shall provide authorization and payment of child care subsidies to the provider. All subsidy payments shall be made to the child care provider.
(C) The TPA shall comply with fee assistance guidelines established by the individual DoD Components.
(i) Augmented Program Support. When possible, CDPs should utilize personnel, such as behavioral health consultants and school liaison officers to assist the program staff and parents with children's social-emotional development and behavior. These personnel shall assist staff, parents, and children in developing skills to respond to challenging behaviors and reduce stress for staff and participating children.
(j) CDC and SAC Standards of Operation, FCC Standards of Operation, and the ERIS. (1) Table 1 outlines the minimum operational standards required for installation-based CDCs and SACs to receive the DoD Certificate to Operate. These standards implement the policy requirements of paragraphs (a), (c)-(f), and (i) of this section. When a SAC program operates within a CDC, SAC standards of operation shall be used for the SAC portion of the program.
(2) Table 2 outlines the minimum operational standards required for installation-based and affiliated FCC providers to receive the DoD Certificate to Operate. These standards implement the policy requirements outlined in the body of this part.
(3) Table 3 outlines the operational standards for community-based child care facilities. These standards, in addition to the state licensing requirements, may be used to determine eligibility of child care subsidies under conditions designated by the DoD Components. Programs eligible to receive child care subsidies when the Service member is deployed must meet the state licensing requirements and be annually inspected.
Table 1—CDC and School-Age Programs Standards of Operations
A. Administrative
Both CDC and SAC
The program has implemented the fee policy in accordance with current DoD and DoD Component guidance. If appropriate, the program has an approved waiver to utilize the high cost fee option.
75 percent of the program's total labor hours are paid to direct program staff who are in benefit status.
Unannounced inspections are conducted by program staff following complaints.
B. Facility
Facility: Both CDC and SAC
The DoD Certificate to Operate is displayed in a prominent location.
Newly constructed CDP facilities follow the UFC or Service guidance for program capacity and capability.
The facility food service area supports the sanitary preparation and service of healthy foods.
All playgrounds, playground surfaces, and equipment meet American Society for Testing and Materials and Consumer Product Safety Commission (CPSC) guidelines.
There is a balance of sun and shade on the playground and a variety of surfaces, such as resilient surfaces, and natural elements. CDC playgrounds include equipment for riding, climbing, balancing, and swinging.
The program provides opportunities for active play every day, indoors and outdoors. Children have ample opportunity to do vigorous activities such as running, climbing, dancing, skipping, and jumping.
Programs use gardens to educate children about healthy eating.
The square footage of useable space for each child in each activity room meets the requirements of the UFC or Service-specific guidelines.
Sound absorbing materials, such as ceiling tiles and rugs are used to minimize noise levels.
Areas used by children have adequate lighting for safety, evacuation, and security measures, are ventilated and kept at a comfortable temperature.
There is adequate and convenient storage space for equipment and materials.
Individual space is provided for each child's belongings.
Supervised private areas where children can play or work alone or with a friend are available indoors and outdoors.
Bathrooms, drinking water, and hand-washing facilities are easily accessible to children.
Clean, sanitary drinking water is readily available at all times.
| The facility includes a place for adults to take a break away from children, an adult bathroom, a secure place for staff to store their personal belongings, and an administrative area for planning or preparing materials that is separated from the children's areas.
The facility includes soft elements that help create a home-like environment.
Facility: CDC ONLY
The square footage of activity space per child meets the requirements of the UFC or Service specifications for facilities built after 2002. A minimum of 50 square feet per child of activity space is provided for infants in facilities built prior to 2002.
If more than one care group occupies a single room, each group has its own defined physical space and primary interest centers.
Outdoor play areas directly adjoin CDCs. Playgrounds for alternative program options must be accessible via a route free from hazards and are located within 1/8 mile from the facility.
Playgrounds are enclosed by a fence and meet the requirements of the UFC.
The square footage of playground space per child meets the requirements of the UFC or Service specific guidelines. The playground area is capable of supporting 30 percent of the total capacity of the CDC in a center of 100 or more children, and all the children in centers with a capacity of fewer than 100 children.
The facility has a designated place set aside for breastfeeding mothers who want to come during work to breastfeed, as well as a private area with an outlet (not a bathroom) for mothers to pump their breast milk.
Facility: SAC ONLY
There are separate male and female bathrooms for children as well as separate multi-unit restrooms for staff and visitors or a system to ensure that adults and teens do not use the bathrooms at the same time as children in SAC.
C. Health and Sanitation
Health and Sanitation: Both CDC and SAC
A comprehensive health and sanitation inspection has been conducted within the last 12 months, corrective actions have been completed per specified timelines, and the inspection report is available for review.
The program shall require that all children enrolling in CDPs provide written documentation of immunizations appropriate for the child's age in accordance with Army Standard for Child Development Center. Children enrolled in the SAC program are not required to provide documentation if they are enrolled in a local public school system.
Staff employed by the CDP and regular volunteers shall be current for all immunizations recommended for adults by the ACIP of the Centers for Disease Control and Prevention. All must provide written documentation of immunization.
There is a policy in place that addresses the daily informal screening for illness based on criteria established by the DoD Component. This policy also addresses admission back into the CDP after an illness.
There is a policy in place that addresses food or other allergies, special accommodations, or potentially life-threatening conditions.
Individual medical problems and accidents are recorded and reported to management staff and families, and a written record is kept of such incidents.
Only physician-prescribed medications are administered; medications are only given with the written approval of the child's parents; and medications given are documented.
Providers have documented parental permission to apply basic topical care items such as sunscreen, insect repellant, and lotion.
A plan exists for dealing with medical emergencies that include written parental consent forms, and transportation arrangements approved by the DoD Component.
| Policies and procedures are followed for administering and storing medication. Designated staff are trained to administer medications, and the training is updated annually or as required by state laws.
The facility is cleaned daily, and as needed throughout the day. Food preparation areas, bathrooms, diapering areas, hand-washing facilities, and drinking fountains are sanitary.
A sink with running water at a comfortable temperature of no more than 110 degrees temperature is very close to bathrooms and diapering areas.
Staff and children wash hands before and after eating, after toileting and diapering, after handling animals, after entering the facility from outdoors, before water play, after wiping their nose, and after any other activity when the hands become contaminated. Signs are posted reminding staff and children of proper hand-washing procedures.
Staff and volunteers follow universal precautions to prevent transmission of blood-borne diseases and the program has a blood-borne pathogen procedure, as required by the Occupational Safety and Health Administration (OSHA).
The program requires parents to provide proper attire for active play indoors and outdoors.
At least one staff member, who has certification in first aid treatment, including CPR for infants and children and emergency management of choking, is always present. Current certificates are kept on file.
Health and Sanitation: CDC ONLY
Infant equipment is washed and disinfected at least daily. Toys that are mouthed are removed immediately after mouthing and are washed and sanitized prior to being used by another child.
Individual bedding is washed at least once a week and used by only one child between washings. Individual cribs, cots, and mats are washed if soiled.
Diapering procedures are in accordance with national recommendations and are posted in diapering areas.
Sinks used for diapering are not co-located with food service areas or the sink used for dishwashing.
D. Fire and Safety
Fire and Safety: Both CDC and SAC
Comprehensive fire and safety inspections have been completed within the last 12 months, corrective actions have been completed per specified timelines, and the inspection reports are available for review.
A safety walk-through of all play areas is conducted daily. Safety concerns are identified, documented, and corrected immediately or put off limits to children until they can be corrected.
The building, playground, and all equipment are maintained in safe, clean condition, are in good repair, and there are no observable safety hazards in the indoor and outdoor program space.
Stairways and ramps are well lighted and equipped with handrails, where appropriate.
Fire extinguishers, smoke detectors, and carbon monoxide detectors, where required, are in working order, and documentation shows status is checked monthly.
Adequate first aid supplies are readily available and maintained. First aid supplies are available during field trips and outings.
Toys and materials do not present a choking hazard for children under age 3 years.
Chemicals and potentially dangerous products, such as medicine or cleaning supplies, are stored in original, labeled containers in locked cabinets inaccessible to children. Diluted bleach solution must be accessible to staff in an unlocked location, but inaccessible to children.
There is a written plan for reporting and managing emergencies, including terrorist attacks, severe storm warnings, medical and pandemic emergencies, or a lost or missing child, which includes shelter in place and evacuation procedures. Staff and volunteers understand the plan.
| Evacuation drills are conducted monthly at different times of the day or evening when children are in care. The drills are documented.
Emergency telephone numbers including police, fire, rescue, and poison control services are posted by telephones and are available at all times.
Staff and regular volunteers are familiar with primary and secondary evacuation routes and practice evacuation procedures monthly with children.
A system is in place to keep unauthorized people from taking children from the program.
Smoking and use of tobacco is not permitted in the facility or in the sight or presence of children.
Fire and Safety: CDC ONLY
Cribs meet the current CPSC guidelines.
CPSC crib safety guidelines are followed: infants are placed on their backs for sleeping; soft cushions, such as pillows, comforters, thick blankets, quilts, or bumper pads are not used in cribs.
E. Parent Involvement/Participation
Parent Involvement/Participation: Both CDC and SAC
Parents have access to their children at all times, are helped to feel welcome and comfortable, and are treated with respect.
Written information is available to families, including operating policies and procedures, program philosophy, and a parent participation plan.
Programs are encouraged to include the culture and language of the families they serve. Families are encouraged to share their heritage and culture.
Parents are offered a program orientation as a part of the child enrollment process.
Parents are informed about the program and curriculum and about policy or regulatory changes and other critical issues that could potentially affect the program, through newsletters, bulletin boards, technology, and other appropriate means.
Families are encouraged to participate in the planning and evaluation of the CDC and SAC programs with regards to their child's care and development. They are encouraged to be involved in the program in various ways, taking into consideration working parents and those with little spare time.
There is a parent board that meets on a scheduled basis through in-person or virtual meetings. The board meets periodically to provide opportunities for families to have input regarding policies, procedures, and plans for meeting children's needs.
Staff work in collaborative partnerships with families, establishing and maintaining daily or ongoing two-way communication with children's parents to build trust, share changes in a child's physical or emotional state regularly, facilitate smooth transitions for children, and ensure that children's learning and developmental needs are met.
Policies ensure that staff and parents have an effective way of negotiating difficulties and differences that arise in their interactions.
Programs inform families on how to increase physical activity, improve nutrition, and reduce screen time (TV, video games, computers, etc.).
The program provides information to parents to ensure that each child has routine health assessment by the child's primary care provider, according to standards of the AAP, to include evaluation for nutrition-related medical problems.
Parent Involvement/Participation: CDC ONLY
Conferences are held at least once per year and at other times, as needed, to discuss children's progress, accomplishments, and difficulties at home and at the program.
F. Learning Activities and Interaction with Children
| Both CDC and SAC
Learning activities reflect the program's written statement of its philosophy and goals for children. This statement is available to all staff and families.
The program is designed to reasonably accommodate and be inclusive of all children, including those with identified disabilities as well as special learning, medical, and developmental needs.
Programs have established a planned program of developmentally appropriate activities that recognizes the individual differences of children and provides an environment that encourages children's self-confidence, self-help, life skills, curiosity, creativity, and self-discipline.
Staff include age-appropriate nutrition education activities in the curriculum.
The daily schedule provides a balance of activities in consideration of the child's daily routine and experience.
Staff are engaged and interact frequently with children, speaking in a friendly, positive, and courteous manner, respectful of gender, race, religion, family background, special needs, and culture. The physical environment supports these interactions.
Staff conduct smooth and unregimented transitions between activities and are flexible in changing planned or routine activities, as appropriate. Infants and toddlers are not expected to function in large group activities.
Staff use a variety of teaching strategies to enhance children's learning and development throughout the day.
Staff addresses bullying and supports positive behavior by modeling appropriate behavior, responding consistently to issues, and encouraging children to resolve their own conflicts, when possible and appropriate.
The outdoor environment meets the needs of children, allows them to be independent and creative, and have access to a variety of age-appropriate outdoor equipment and games. Staff plan and participate in children's active play.
Program materials are in good condition, sufficient for the number of children in the program, developmentally appropriate for the age of the children, and appropriate to the activities offered.
Screen time and the use of passive media is limited and developmentally appropriate. Media viewing and computer use is not permitted for children younger than 2 years.
CDC Only
There is a DoD Component-approved curriculum that supports school readiness. It is based on knowledge of child and youth development and learning, and assessment of individual needs and interests.
Developmentally appropriate activities emphasize concrete experiential learning and promote development in six developmental domains: social, physical, language and literacy, cognitive and intellectual, emotional, and cultural.
Individual observations of children's development and learning are written, compiled, assessed, and are used as a basis for planning appropriate learning activities.
Staff plan with families to make toileting, feeding, and the development of other self-regulation skills a positive experience for children.
SAC Only
Developmentally appropriate activities encourage physical fitness; positive self-esteem; intellectual, social, and physical achievement; leadership skills and initiative; lifelong recreation skill; positive use of leisure time; moral development and community leadership; self-reliance and independence; and respect for diversity.
SAC daily schedules are flexible, provide stability without being rigid, allow youth to meet their physical needs (e.g., water, food, restrooms) in a relaxed way, allow children to move smoothly from one activity to another (usually at their own pace), and facilitate smooth transitions when it is necessary for children to move as a group.
Appropriate protected internet access and programs that teach technology are available.
| G. Nutrition and Food Service
Both CDC and SAC
Meals and snacks are a pleasant, social learning experience for children.
The DoD Components will establish policies that are consistent with USDA guidelines for meals provided by parents. Under limited circumstances when meals are provided by parents, food storage and handling procedures are approved by local health and sanitation authorities.
Unless documented circumstances approved by the DoD Component prevent enrollment, all programs must enroll in the USDA CACFP (United States Department of Agriculture Child and Adult Care Food Program).
Dietary modifications are made on the basis of recommendations by the child's primary medical care provider and are documented. Documentation is available for religious and medical dietary substitutions. Menus contain some vegetarian meals.
The program provides or posts menus showing all foods to be served during that month. Core and cyclical menus are approved by a nutritionist or registered dietician. Foods typical of the child's culture and religious preferences, as well as a variety of healthful foods that may not be familiar to the child, are included.
The program provides healthy meals and snacks that include restrictions on the provision of juice and beverages with added sweeteners and no fried, high-fat, or highly salted foods.
Meals and snacks are conducted using family-style dining. In SAC programs, snacks may be served buffet style.
CDC Only
The program encourages, provides arrangements for, and supports breastfeeding.
There is an accountability system in place for bottles, including bottles for breast milk. Bottle-feeding is done in such a way as to minimize disease and promote interaction. Infants are held for bottle-feeding, bottles are never propped, never heated in a crock pot or microwave, and infants are never put to sleep with a bottle.
One adult should not feed more than one infant for bottle feeding, two children in high chairs, or three children who need assistance with feeding at the same time.
H. Supervision of Children
Both CDC and SAC
The following staffing requirements are met at all times, except during nap time (for CDC):
a. For infants from birth to 12 months, there are never more than four children per staff member.
b. For pre-toddlers 13 months to 24 months, there are never more than five children per staff member.
c. For toddlers, 25 months to 36 months, there are never more than seven children per staff member.
d. For children 37 months through 5 years, there are never more than twelve children per staff member.
e. For children 6 years through 12 years, there are never more than fifteen children per staff member.
During rest time, the staff-to-child ratios for children over 24 months of age may increase to twice the non-napping staff-to-child ratio. Sufficient staff are required to remain in the building during rest time to meet the non-napping ratios and be available to assist with emergencies.
The following maximum group sizes are followed at all times:
a. For infants birth to 12 months, there are never more than eight children per group.
b. For pre-toddlers 13 months to 24 months, there are never more than ten children per group.
c. For toddlers, 25 to 36 months, there are never more than fourteen children per group.
| d. For children thirty-seven months through five years, there are never more than twenty-four children per group.
e. For SAC, there are never more than thirty children per group.
In multi-age groupings, the Service may follow the ratio per age group. For example, four infants and five pre-toddlers equal a group of nine with two direct care personnel, or seven toddlers and twelve preschoolers equal a group of nineteen with two direct care personnel.
Volunteers or persons under 18 years of age may not be counted in determining compliance with staff-to-child ratios and are not allowed to work alone with children.
The program has an accountability system in place. Each staff member has primary responsibility and accountability for a group of children. There is specific accountability for each child by one staff member. Systems are in place for accounting for children's whereabouts, especially during periods of transition and emergencies.
Children are released only to their parents or guardian. Children may be released to a designee when signed permission is given by the parent or guardian.
Families are notified about procedures and policies for field trips. Families are notified of all activities outside the center.
Children are under adult supervision at all times. Staff are not permitted to use personal electronic devices (including, but not limited to cell phones, iPods, smart phones, etc.) when supervising children.
CDC Only
At least two staff members must be present with each group of children at all times. When one staff person is alone with a single ratio of children, the program director or designee frequently monitors the room through closed circuit television or visual access panels to ensure oversight by more than one adult. In this case, the staff member must have an initiated National Agency Check Investigation (NACI) and the program director or designee must have a completed NACI.
Infants and toddlers spend the majority of the time interacting with staff who have primary responsibility for them each day.
SAC Only
At least two paid staff members shall be present whenever children are in the facility.
Adult volunteers may supplement paid staff during field trips and other activities away from the facility. Only paid staff are counted in the ratio.
Signed permission is given by the parent allowing the child to self-release for a specific organized activity. Self-release procedures are consistent with the installation home alone policy or self-care policy.
I. Child Abuse Prevention and Reporting
Both CDC and SAC
A NACI to include a name-based criminal history record check (State and Federal) and fingerprint check has been initiated on all staff. Background checks are tracked to ensure completion in a timely manner.
All individuals in a CDP who have contact with children have completed a DD Form X656 “Basic Criminal History and Statement of Admission”
Updates to the background checks are completed every five years.
Newly hired staff without a completed background check are readily identifiable and work within line of sight of a staff member with a completed check.
Hiring practices include careful checking of references of all potential employees and volunteers.
The program has a written guidance, discipline, and touch policy that is available to staff and families. Staff do not use corporal punishment or other negative discipline methods that hurt, humiliate, or frighten children.
| The program has a child abuse and neglect policy that includes reporting requirements for staff as well as procedures to be followed should a staff member be accused of abuse or neglect. This information is included in employee handbooks. All staff are knowledgeable of the policy.
The DoD Child Abuse and Safety Hotline telephone number is displayed in a highly visible area where parents can see it. The telephone number is published in parent handbooks and other brochures.
The facility is designed in accordance with the Unified Facilities Criteria (UFC) 4-740-14, “Design: Child Development Centers,” to help minimize the risk of child abuse:
a. Access to children by those not employed by the program is restricted.
b. Areas to which a child or children can be taken out of view of others are limited.
c. All exit doors that do not open onto a fenced area have operating alarms, except the main entrance to the facility and the kitchen entrance.
d. Evening or weekend care is provided in rooms located near the front entryway to facilitate additional supervision by the front desk staff and parents.
e. In the CDC:
1) Children can be observed at all times by parents and supervisors.
2) There is visual access into and throughout activity rooms used for care, including nap time. Closed-circuit television, vision panels, and convex mirrors are used as necessary to facilitate visual access.
3) Diapering areas are visible.
All persons other than employees and family members bringing in or picking up children sign in and out at the front desk or with appropriate personnel. Visitors to the CDP shall sign in and out of the facility and wear a visitors badge at all times while they are in the facility or on playgrounds.
If transportation is provided for children by the program, vehicles are equipped with age-appropriate restraint devices in accordance with State and Federal requirements. The program maintains documentation that vehicles used in transporting children are appropriately licensed, inspected, and maintained. A current copy of the appropriate driver's license and Department of Motor Vehicles driving record is on file for staff members who transport children.
In SAC programs, a procedure for accountability when a child fails to show for the program is in place and followed.
Table 2—FCC Standards of Operation
A. Administrative
The installation regulates FCC in accordance with DoD Component requirements, ensuring care is not permitted unless subject to inspection and approval.
Processes are in place to support recruitment and retention of FCC providers.
Unannounced inspections are conducted by program staff following complaints.
B. Home
Where applicable, the DoD Component has a process to register and certify homes located off the installation or in privatized government housing.
The Certificate to Operate, issued by the DoD Component or designee, is displayed in a prominent location.
Providers can demonstrate proof of current liability insurance.
There is a signed contract between each family and provider. Parents are informed of changes in the provider's household composition.
Children are cared for by the provider or an approved substitute. Parents and the FCC administrator are informed when a substitute provider will be caring for their children. Civilian members of the provider's household providing care as a substitute must be approved and trained. Active duty Military Service members may serve as substitute providers only under circumstances approved by the DoD component.
| There is adequate space indoors and outdoors in the home for the number of children in care to play, rest, and eat.
C. Health and Sanitation
On installations, comprehensive fire, safety, and sanitation inspections have been completed within the last 12 months, and the inspection reports are available for review.
The provider notifies parents and FCC of medical emergencies, communicable diseases or illness of the children, the provider, or the provider's family member(s). Health consultants will be informed based on installation policy.
Children are informally screened daily for illness based on criteria established by the DoD Component. Children are readmitted after illness only when their presence no longer endangers the health of other children.
Only physician-prescribed medications are administered; medications are only given with the written approval of the child's parents; and medications given are documented.
Providers have documented parental permission to apply basic topical care items such as sunscreen, insect repellant, and lotion.
Procedures for diapering, hand washing, and toileting are followed in accordance with national recommendations.
Providers follow universal precautions to prevent transmission of blood-borne diseases, and the provider has a blood-borne pathogen procedure, as required by OSHA.
Providers and children wash hands before and after eating, after toileting and diapering, after handling animals, after entering the home from outdoors, before water play, after wiping their nose, and after any other activity when the hands become contaminated. Signs are posted reminding providers and children of proper hand-washing procedures.
Homes are maintained in a sanitary manner.
Individual bedding is washed at least once a week and used by only one child between washings. Individual cribs, cots, and mats are washed if soiled.
Infant equipment is washed and disinfected at least daily. Toys that are mouthed are removed immediately after mouthing and are washed and sanitized prior to being used by another child.
All windows used for ventilation are properly screened.
Providers do not consume alcohol while children are in care.
Smoking is not permitted in the home or outdoor area while children are in care.
D. Fire and Safety
There are policies in place to ensure the home operates to protect children against the risk of fire and safety hazards.
There is a policy to keep children protected from hazards stemming from poisoning, toxic materials, electrical shock, standing water, unsafe playground equipment, and strangulation.
There is a written plan for reporting and managing emergencies, including terrorist attacks, severe storm warnings, medical and pandemic emergencies, or a lost or missing child, which includes shelter in place and evacuation procedures. Providers and volunteers understand the plan.
First aid supplies are readily available for emergencies and maintained.
Evacuation drills are conducted monthly at different times of the day or evening when children are in care. The drills are documented.
There is a working landline or cellular phone within the home. Emergency telephone numbers including police, fire, rescue, and poison control services, and instructions are accessible or kept with the telephone(s).
Providers use safety gates to prevent children from falls. Door locks that can entrap children inside a bathroom or bedroom may be opened from the outside.
If there are firearms in the home, the ammunition must be removed from the firearm. Firearms and ammunition are stored separately in locked cabinets that are inaccessible to children.
Young infants are placed on their backs for sleeping to lower the risk of SIDS. Soft cushions, pillows, thick blankets, and comforters are not used in cribs.
| Providers shall not permit children to sleep in family beds unless a separate bed is designated for the child and clean linens are provided.
Cribs meet CPSC guidelines. The sides of infants' cribs shall be in a locked position when cribs are occupied and do not present a strangulation or entrapment hazard.
Providers inform parents if they will be taking children from the home while they are in care.
If transportation is provided for children by the provider, age-appropriate restraint devices are used, and appropriate safety precautions are taken.
A current copy of the driver's license and proof of insurance is on file for providers who transport children.
E. Parent Involvement/Participation
Parents are given access to the home at all times when their children are present.
Parents are provided with a copy of policies governing FCC.
The provider communicates regularly with parents and recognizes them as partners in the care of children, and there is a prominent place to display information for parents.
Parents are provided with information about the importance of routine health supervision by the child's primary care provider, according to standards of the AAP, to include evaluation for nutrition-related medical problems.
F. Learning Activities and Interaction with Children
Activities and experiences are provided daily that enhance children's physical, social, emotional, and cognitive development.
Activities include age-appropriate nutrition education.
There are enough toys and materials, home-made or purchased, to engage all the children in developmentally appropriate ways.
Toys, materials, and equipment are in good repair and are arranged so children are able to select and put toys and materials away with little or no assistance.
A variety of daily activities is planned for indoors and outdoors. There is a balance between child-initiated and adult-directed activities. A daily schedule of activities is posted for parents to see.
The provider plans and participates in children's active play.
The provider interacts frequently with the children and shows them affection and respect. The provider speaks to children in a friendly, courteous manner.
Children's routines are handled in a relaxed and individualized manner that promotes respect and opportunities to develop self-esteem, self-discipline, and learning by doing.
Screen time (e.g., non-active video games) and the use of passive media, (e.g., television, audio tapes), are limited and developmentally appropriate. Media viewing and computer use are not permitted for children younger than 2 years.
The provider observes and evaluates each child's growth and development for program planning.
G. Nutrition and Meal Service
Unless documented circumstances prevent enrollment, providers are offered the opportunity to enroll in the USDA CACFP and all meals and snacks are prepared, handled, transported, and served according to USDA CACFP guidelines found in 7 CFR part 226.
Providers develop written menus showing all foods to be served during that month, and the menus are available to parents and guardians. Menus are posted for meals and snacks.
Dietary modifications are made on the basis of recommendations by the child's primary care provider and are documented. Documentation is available for religious and medical dietary substitutions. Menus contain some vegetarian meals.
Meals and snacks include restrictions on the provision of juice and beverages with added sweeteners and limited high-fat and salted foods.
Food is prepared, served and stored in a sanitary manner. If meals are provided by parents, food storage and handling procedures are approved by local health and sanitation authorities.
| All children present are served meals or snacks. Meals and snacks for toddlers, preschool, and school-age children use family-style dining.
Bottle-feeding is done in such a way as to minimize disease and promote interaction. Infants are held for bottle-feeding. Bottles are never propped, never heated in a crock pot or microwave, and infants are never put to sleep with a bottle.
There is an accountability system in place for bottles, including bottles for breast milk.
The provider encourages, provides arrangements for, and supports breastfeeding. There is an accountability system in place for bottles.
H. Supervision of Children
The maximum group size in a home is six children per provider, including the provider's own children under the age of eight.
a. When all children are under the age of two, the maximum group size at any one time is three.
b. In mixed-age groups, the number of children under two years of age is limited to two children.
c. When all children are school-age, the maximum group size is eight.
Parents sign children in and out of the home on a daily basis. Children are only released to persons that parents have authorized in writing. Children may sign themselves out of the home consistent with the installation home alone policy or self-care policy and parental consent.
Providers supervise all children in care both inside and outdoors. School-age children may be outside without direct supervision as long as they are within sight or sound of the provider.
I. Child Abuse Prevention and Reporting
Providers, substitute providers, and individuals age 18 and older living in the home, must complete a background check annually.
All individuals in a CDP who have contact with children have completed a DD Form X656 “Basic Criminal History and Statement of Admission”.
The DoD Child Abuse and Safety Hotline telephone number is displayed in a highly visible area where parents can see it. The telephone number is published in parent materials.
Children are never left alone with a visitor or another adult who is not authorized to care for children.
There is a guidance policy in place, and providers do not use corporal punishment or other negative discipline methods that hurt, humiliate, or frighten children.
Table 3—ERIS
Oversight
The State Child Care Licensing/Regulating Agency conducts an annual on-site inspection of the facility and program.
SCR 01—Staff-Child Ratio/Group Size (SCR)
Standard
SCR 01.01 | RATIO (number of children per child care provider/staff). Ratios must be equal to or lower than:
| 1:4 or less for infants (birth to 12 months).
| 1:5 or less for pre-toddlers (13-24 months).
| 1:7 or less for toddlers (25-36 months).
| 1:12 or less for preschool (37 months-5 years).
| 1:15 or less for school age (6-12 years).
| SCR 01.02 | GROUP SIZE (the total number of children within various age groups). Group size must be equal to or lower than:
| Eight or less for infants (birth to 12 months) with two caregiving staff per eight infants.
| Ten or less for pre-toddlers (13-24 months) with two caregiving staff per ten pre-toddlers.
| Fourteen or less for toddlers (25-36 months) with two caregiving staff per fourteen toddlers.
| Twenty four or less for preschool (27 months-5 years) with two caregiving staff per twenty four preschoolers.
| Twenty four/thirty or less for school age (6-12 years) with two caregiving staff per twenty four/thirty school agers.
SCR 01.03 | MULTI-AGE GROUPINGS (more than one age group in a room). No more than TWO AGE GROUPs may be combined within 18 month range (THIS DOES NOT APPLY TO SAC). Each age group is represented by appropriate ratio. Examples: two caregiving staff: four infants and five pre-toddlers; twp caregiving staff: five pre-toddlers and seven toddlers; two caregiving staff: seven toddlers and twelve preschoolers.
BAC 02—Background Check/Child Abuse Prevention (BAC)
Standard
BAC 2.01 | Background checks are completed and documented for each employee or regular volunteer who is in contact with children, including management, administration, classroom, support staff, and individuals contracted for hire.
BAC 02.02 | Background checks are renewed and documented every 5 years for each employee or regular volunteer who is in contact with children, including management and administration, classroom staff, and support staff.
BAC 02.03.a | Background checks include documentation of State Criminal History Repository completed for all states that an employee or prospective employee lists as current and former residences, in an employment application by using fingerprints.
BAC 02.03.b | Background checks include documentation of FBI fingerprint check and name-based criminal history records check of law enforcement records completed for any States lived in by applicant during the past 5 years.
BAC 02.03.c | Background checks include documentation of a review of the State Child Abuse Registry.
BAC 02.03.d | Background checks include a review of the State Sex Offender Registry.
BAC 02.04 | Each employee and regular volunteer is trained annually about child abuse prevention, common symptoms, and signs of child abuse.
BAC 02.05 | All employees and regular volunteers are trained annually on HOW to report, WHERE to report, and WHEN to report possible child abuse or neglect.
SR 03—Staff Requirements (SR)
Standard
SR 03.01.a | Director has a minimum of a Bachelor's Degree (BA) in childhood education, child development, social work, nursing, or other child-related field AND experience working with the age groups enrolled in the program.
| | In the event that the director does not have a BA degree in those areas, the director must have an AA degree and must be working toward the completion of a BA degree.
SR 03.01.b | The director is not responsible for a classroom of children.
SR 03.02 | The direct care personnel are at least 18 years old and have a high school diploma or a graduation equivalency diploma (GED).
TRG 04—Training Requirements (TRG)
Standard
TRG 04.01 | Orientation is provided for each staff member and includes training on the following: early childhood development and education; child abuse recognition, prevention, and reporting; safety; first aid; proper hygiene; and positive guidance.
TRG 04.02.a | There is an annual training plan for directors. Topics shall include, but are not limited to:
| Child abuse prevention and positive guidance.
| Universally accepted health and safety practices to include hand washing.
| Emergency preparedness and evacuation procedures.
| Social and emotional needs of children.
| Developmentally appropriate practices.
| General management practices, such as financial management, facility management, staff development, and working with parents.
| Safe sleep practices.
TRG 04.02.b | There is an annual training plan for staff that include topics such as:
| Child abuse prevention and positive guidance.
| Universally accepted health and safety practices to include hand washing.
| Social and emotional needs of children.
| Developmentally appropriate practices.
TRG 04.03 | Staff complete forty hours of initial orientation training within the first three months.
TRG 04.04 | Staff are required to complete at least 24 hours of training per year.
TRG 04.05 | At least one staff member certified in emergency pediatric first aid treatment, including CPR for infants and children and emergency management of choking, is present in the facility during hours of operation.
IMM 05—Immunizations (IMM)
Standard
IMM 05.01 | Children's records include EITHER:
| Documentation of current age-appropriate immunizations, as recommended by the AAP; OR
| A letter of exception on file and a statement of medical religious exception.
IMM 05.02 | Staff files include a copy of a TB screening. Also included is documentation of a general health assessment or a physical examination completed during employment in-processing. Information is available at: http://www.cdc.gov/media/.
SUP 06—Supervision/Guidance (SUP)
| Standard
SUP 06.01.a | The written policies and practices of the program specify that staff supervise children at all times, including nap times. No child is left alone or unsupervised.
SUP 06.01.b | The written policies and practices of the program specify that children are released only to persons listed on the child's registration form or for whom the parents have provided written authorization.
SUP 06.01.c | The written policies and practices of the program specify that parent, or authorized adult, signs children in and out upon arrival and departure each day, and attendance records are kept.
| A system is in place for accounting for school-age arriving from school or other activities without the parent (for example, children transported to the program by a school bus).
SUP 06.02 | Organizational policy prohibits: punishment by spanking or hitting or other physical means, to include corporal punishment; isolation from adult sight; confinement, binding, humiliation, or verbal abuse; deprivation of food and water, outdoor play or activities, or other program components; inappropriate touch; and punishment for lapses in toilet training or refusing food.
DRL 07—Evacuation and Fire Drills (DRL)
Standard
DRL 07.01 | The program has a written plan for emergency evacuation (for example, a plan for evacuating building occupants in case of fire, tornado, earthquake, hurricane, or other disaster that could pose a health and safety hazard).
DRL 07.02 | Procedures are in place to ensure all children in attendance are accounted for during an evacuation drill or event.
DRL 07.03 | There is an automatic fire detection and alarm system in place, and it is operational.
DRL 07.04 | A fire extinguisher is accessible and in operating condition.
DRL 07.05 | Fire and emergency evacuation drill procedures are practiced at least monthly.
HWD 08—Hand Washing and Diapering (HWD)
Standard
HWD 08.01 | Policies are in place to ensure staff and children wash their hands with soap and warm running water:
| Before eating or food preparation.
| After toileting or changing diapers.
| After handling animals, and after any other activity when the hands may become contaminated to include returning from outside.
HWD 08.02 | Toileting and diapering areas are not located in food preparation areas. The areas are in easily visible locations and are sanitary.
MED 09—Medication and Health (MED)
Standard
| If the program does not administer medications, proceed to 09.02.
MED 09.01.a | The program has a written policy and clear procedures on administering medicine, proper storage, and labeling.
| MED 09.01.b | If medication (prescription and/or over-the-counter) is administered, written parental permission is kept on file and instructions from a physician are required (“N/A” is allowed if no children currently receive medication).
MED 09.01.c | Designated staff are trained to administer the medicine, and the training is updated annually.
MED 09.02 | First aid kits are readily available and maintained.
MED 09.03.a | Programs provide healthy meals and snacks consistent the U.S. Dietary Guidelines and are encouraged to participate in the USDA CACFP.
MED 09.03.b | Programs are encouraged to limit sugar-sweetened juices, beverages, and snacks, and high-fat and high-salt foods.
MED 09.04 | Bottle-feeding is done in such a way to minimize disease and promote interaction. For example, infants are held for bottle-feeding, bottles are never propped, never heated in a crock pot or microwave, and infants are never put to sleep with a bottle.
EMG 10—Emergency Plan/Contact Information (EMG)
Standard
EMG 10.01.a | There is a written plan for reporting and managing a lost or missing child.
EMG 10.01.b | There is a written plan for reporting and managing injuries requiring medical or dental care, including hospitalization or serious injury.
EMG 10.01.c | There is a written plan for reporting and managing abuse or neglect of a child.
EMG 10.01.d | There is a written policy that requires all parents to provide emergency information to include:
| Multiple contact phone numbers (work, cellular, home).
| Emergency contact phone numbers (relatives or friends) authorized to pick up the child if parent cannot be reached.
| The child's physician, dentist, and emergency room preference.
OUT 11—Outdoor Play Area (OUT)
Standard
OUT 11.01 | The playground and all equipment are maintained in safe, clean condition, in good repair, and there are no observable safety hazards and no entrapment areas.
OUT 11.02 | Playground equipment is surrounded by resilient surfaces (e.g., fine, loose sand, wood chips, wood mulch) of an acceptable depth (9 inches) or by rubber mats manufactured for such use.
OUT 11.03 | The playground equipment is arranged to ensure that a child is visible and supervision is maintained.
OUT 11.04 | There is a plan to check and inspect playgrounds on a weekly basis. Each staff member is responsible for immediately reporting hazards or unsafe areas to the director.
HAZ 12—Hazardous Materials and General Safety (HAZ)
Standard
HAZ 12.01 | Accident protection and liability insurance coverage are maintained for children and adults.
| HAZ 12.02 | All chemicals and potentially dangerous products, such as medicine or cleaning supplies are stored in original, labeled containers in locked cabinets inaccessible to children.
HAZ 12.03 | Poisonous or potentially harmful plants on the premises are inaccessible to children.
HAZ 12.04 | Children are protected from accidental drowning by limiting access to all bodies of water.
HAZ 12.05 | Electrical outlets are covered in all areas accessible to children, including corridors.
HAZ 12.06 | Toys and art supplies are made of safe, non-toxic, durable, and cleanable materials.
HAZ 12.07 | There are no items that could cause choking or strangulation. Additional information is available at: http://www.cpsc.gov/.
HAZ 12.08.a | Infants are placed on their backs for sleeping to lower the risk of SIDS.
HAZ 12.08.b | Staff make sure that soft surfaces such as pillows, quilts, thick blankets, and soft bumpers are not used in the crib.
HAZ 12.09 | The building has been inspected for dangerous substances such as lead, radon, formaldehyde, asbestos, etc., in accordance with State requirements.
PAR 13—Parent Involvement (PAR)
Standard
PAR 13.01 | Families are offered an orientation and information prior to enrolling to include: hours of operation, enrollment policies, program costs, inclusion of special needs children, and opportunities for parent involvement.
PAR 13.02 | The program policy clearly includes open door policy; family members are welcome visitors in the program at all times.
PAR 13.03 | The program provides opportunities for communication between parents and staff verbally or in writing on a daily basis.
DEV 14—Developmentally Appropriate Environment and Materials (DEV)
Standard
DEV 14.01 | Classrooms are arranged to facilitate a variety of activities for each age group and provide areas where children can play and work independently or with friends.
DEV 14.02 | Classrooms are well lit, ventilated, and kept at a comfortable temperature.
DEV 14.03.a | Staff offer a variety of developmentally appropriate activities and materials for children indoors and outdoors that are respective of children's race, gender, religion, family background, culture, age, and special needs and include:
| Language and literacy.
| Physical development.
| Health, safety, and nutrition.
| Creative expression.
| Cognitive development.
| Social and emotional development.
DEV 14.03.b | Weekly classroom schedules include opportunities for alternating periods of quiet and active play, child-initiated and teacher-initiated activity, and individual, small group, and large group activities. Schedules are available for parents to review.
DEV 14.03.c | Programs provide an opportunity for physical activity on a daily basis.
| DEV 14.03.d | Screen time (e.g., non-active video games) and the use of passive media (e.g., television, audio tapes) are limited and developmentally appropriate.
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 unavailability caused by a specific reason, a completely responsive answer cannot 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—BACKGROUND CHECKS ON INDIVIDUALS IN DOD CHILD CARE SERVICES PROGRAMS
Secs.
86.1
Purpose.
86.2
Applicability.
86.3
Definitions.
86.4
Policy.
86.5
Responsibilities.
86.6
Procedures.

Authority:
5 U.S.C. 2105, 10 U.S.C. chapter 47, and 42 U.S.C. 13041.

Source:
80 FR 55756, Sept. 17, 2015, unless otherwise noted.
§ 86.1
Purpose.
This part establishes policy, assigns responsibilities, and provides procedures to conduct criminal history checks on individuals involved in the provision of child care services for children under the age of 18 in DoD programs.
§ 86.2
Applicability.
This part 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 within the DoD (referred to collectively in this part as the “DoD Components”).
§ 86.3
Definitions.
Unless otherwise noted, these terms and their definitions are for the purposes of this part.
Adjudication. The evaluation of pertinent data in a background investigation, as well as any other available information that is relevant and reliable, to determine whether an individual is suitable for work.
Adult. An individual 18 years of age or older regarded in the eyes of the law as being able to manage his or her own affairs.
Applicant. A person upon whom a criminal history background check is, will be, or has been conducted, including individuals who have been selected or are being considered for a position subject to a criminal history background check, and individuals undergoing a recurring criminal history background check. Includes current employees.
Child. A person under 18 years of age.
Care provider. Current or prospective individuals hired with appropriated funds (APF) and nonappropriated funds (NAFs) 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. Individuals working within programs that include: Child Development Programs, DoD dependents schools, DoD-operated or -sponsored activities, foster care, private organizations on DoD installations, and youth programs.
Child care services. Care or services provided to children under the age of 18 in settings including 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 42 U.S.C. 13041.
Class. With regard to the designation of positions, a categorical descriptor identifying employee, contractor, provider, or volunteer positions by group rather than by individual position or title (e.g., “doctors” or “individuals supervising children in a school”).
Contractor. Any individual, firm, corporation, partnership, association, or other legal non-Federal entity that enters into a contract directly with DoD or a DoD Component to furnish supplies, services, or both including construction. Foreign governments or representatives of foreign governments that are engaged in selling to DoD or a DoD Component are defense contractors when acting in that context. A subcontractor is any supplier, distributor, vendor, or firm that furnishes supplies or services to or for a prime contractor or another subcontractor.
Covered position. Defined in volume 731 of DoD Instruction 1400.25, “DoD Civilian Personnel Management System” (available at http://www.dtic.mil/whs/directives/corres/pdf/140025v731.pdf).
Criminal history background checks. A review of records, investigative reports, and other investigative elements to generate criminal history background findings to be used to make fitness or suitability determinations.
Derogatory information. Information that may reasonably justify an unfavorable personnel suitability or fitness determination because of the nexus between the issue or conduct and the core duties of the position.
DoD affiliation. A prior or current association, relationship, or involvement with the DoD or any elements of DoD, including the Military Departments.
DoD-sanctioned programs. Any program, facility, or service funded, or operated by the DoD, a Military Department or Service, or any agency, unit, or subdivision thereof. Examples include, but are not limited to, chapel programs, child development centers, family child care (FCC) programs, medical treatment facilities, Department of Defense Education Activity (DoDEA) schools, recreation and youth programs. These do not include programs operated by other State or Federal government agencies or private organizations without the official sanction of a DoD entity.
Duties. Those activities performed as an employee, contractor, provider, or volunteer that involve interaction with children, including any work performed in a child development program or DoDEA school.
Employee. An individual, paid from funds appropriated by the Congress of the United States, or an individual employed by a NAF instrumentality in accordance with 5 U.S.C. 2105(c). Includes foreign nationals in accordance with Volume 1231 of DoD Instruction 1400.25, “DoD Civilian Personnel Management System” (available at http://www.dtic.mil/whs/directives/corres/pdf/1400.25-V1231.pdf), Military Service members working during their off-duty hours, and non-status, non-continuing temporary positions with specified employment periods not to exceed 1 year such as summer hires, student interns, and seasonal hires.
FAP. Defined in DoD Directive 6400.1, “Family Advocacy Program (FAP)” (available at http://www.dtic.mil/whs/directivescorres/pdf/640001p.pdf).
FAP records check. A review of FAP records maintained on an individual, including records maintained by the installation office and records in the Service Child and Spouse Abuse Central Registry in accordance with DoD Directive 6400.1. If the individual is the spouse or dependent of a Service member, this may entail review of records maintained on the sponsoring Service member. Installation and Service Central Registry checks are limited to identifying pending and met criteria incidents of maltreatment and do not include information related to incidents that did not meet criteria or any information contained in the clinical case record that is protected by section 1320d-6 or 5 U.S.C. 552a.
Federal Bureau of Investigation (FBI) criminal history background check. An FBI identification record—often referred to as a criminal history record or a “rapsheet”—is a listing of certain information taken from fingerprint submissions retained by the FBI in connection with arrests and, in some instances, federal employment, naturalization, or military service. The process of responding to an identification record request is generally known as a criminal history background check.
FCC. Defined in DoD Instruction 6060.2, “Child Development Programs (CDPs)” (available at http://www.dtic.mil/whs/directives/corres/pdf/606002p.pdf).
FCC provider. Defined in DoD Instruction 6060.2.
FCC adult family members. Any adult, 18 years of age or older, who resides in the home of an FCC provider for 30 or more consecutive days.
Fitness. The reference to a person's level of character and conduct determined necessary for an individual to perform work for, or on behalf of, a Federal Agency as an employee in the excepted service (other than in a position subject to suitability) or as a contractor employee.
Fitness determination. A decision, based on review of criminal history background check findings, that an individual is fit to perform duties in a position subject to criminal history background check. Fitness determinations will be “favorable,” meaning that the individual is fit to perform the duties, or “unfavorable,” meaning that the individual is not.
Foreign nationals. Individuals who are not citizens of the United States.
Foster care providers. A voluntary or court-mandated program that provides 24-hour care and supportive services in a family home or group facility, within government-owned or -leased quarters, for children and youth who cannot be properly cared for by their own family.
Healthcare personnel. Military, civilian, or contract staff involved in the delivery of healthcare services.
Host-government check. A criminal history background check conducted on foreign nationals in accordance with U.S. and host country treaties or agreements.
Interim suitability or fitness determination. Part of the pre-screening process in the identification and resolution of suitability or fitness issues, which occurs prior to the initiation of the required investigation. It involves the review of applications and other employment related documents. A favorable interim suitability or fitness determination is a status granted on a temporary basis, which permits individuals to work under line-of-sight supervision (LOSS) after the return of the advance FBI fingerprint check, pending completion of full investigative requirements and a final suitability determination.
Investigative elements. The records, reports, or other individual elements that comprise the whole of information collected during a criminal history background check and used to make a fitness or suitability determination.
Installations records check (IRC). A query of records maintained on an individual by programs and entities at the military installation where the individual lives, is assigned, or works, including military law enforcement and installation security records, drug and alcohol records, and FAP records for a minimum of 2 years before the date of the application.
Investigative service provider (ISP). The company or agency authorized to perform background investigations on personnel on behalf of the agency.
Line of Sight Supervision (LOSS). Continuous visual observation and supervision of an individual whose background check has not yet cleared, and has a favorable interim suitability or fitness determination, while engaged in child interactive duties, or in the presence of children in a DoD-sanctioned program or activity. The person providing supervision must have undergone a background check and received a final favorable suitability or fitness determination and be current on all periodic reinvestigations as required by this part.
Met criteria. Reported incident of alleged maltreatment found to meet DoD incident determination criteria for child abuse or domestic abuse and entry into the Service FAP central registry of child abuse and domestic abuse reports.
Position. An employee, contractor, provider, or volunteer role or function.
Preliminary investigations. Those investigative elements of a criminal history background check, including those specified in § 86.6(f), which must be favorably completed and reviewed before an individual may be permitted to perform duties under LOSS.
Providers. Individuals involved in child care services who have regular contact with children or may be alone with children in the performance of their duties. Includes FCC providers and individuals with overall management responsibility for child and youth programs.
Regular contact with children. Recurring and more than incidental contact with or access to children in the performance of their duties on a DoD installation, program, or as part of a DoD-sanctioned activity.
Reinvestigation. A criminal history background check conducted after the period of time prescribed by this part to ensure the individual remains eligible to provide child care services. Reinvestigation includes the same checks conducted for the initial investigation as outlined in § 86.6(b).
Respite care providers. Individuals who provide short-term care and supportive services in a family home or group facility within government-owned or -leased quarters.
State criminal history repository (SCHR). A repository of criminal information that lists past state convictions, current offender information, and criminal identification information (fingerprints, photographs, and other information or descriptions) that identify a person as having been the subject of a criminal arrest or prosecution. Checks of the SCHR may include the State child abuse and neglect repository and the State sex offender registry.
Suitability determination. A decision that a person is or is not suitable for a covered position within the DoD.
Supervisor. The person supervising individuals who are permitted to perform duties only under LOSS, who is not necessarily the same as an employee's supervisor for employment purposes (e.g., ratings, assignment of duties).
Volunteer. There are two types of volunteers:
(1) Specified volunteers. Individuals who could have extensive or frequent contact with children over a period of time. They include, but are not limited to, positions involving extensive interaction alone, extended travel, or overnight activities with children or youth. Coaches and long-term instructors are among those who fall in this category. Specified volunteers are designated by the DoD Component head. Background checks are required in accordance with § 86.6(b)(4).
(2) Non-specified volunteers. Individuals who provide services that are shorter in duration than is required to perform a criminal history background check (e.g., one-day class trip, class party). Because non-specified volunteers do not receive the same level of background checks as specified volunteers, non-specified volunteers must always be in line of sight of a staff member with a complete background check.
Youth program. Defined in DoD Instruction 6060.4, “Department of Defense (DoD) Youth Programs (YPs)” (available at http://www.dtic.mil/whs/directives/corres/pdf/606004p.pdf).
§ 86.4
Policy.
It is DoD policy that:
(a) Individuals who have regular contact with children under 18 years of age in DoD-sanctioned child care services programs will undergo a criminal history background check in order to protect the health, safety and well-being of children in such programs.
(b) All individuals who have regular contact with children under 18 years of age in DoD-sanctioned child care services programs and who also have a current or prior DoD affiliation must also undergo an IRC.
(c) DoD Component heads are delegated the authority to make suitability determinations and take subsequent actions in cases involving applicants and appointees to covered positions as defined by 5 CFR 731.101, subject to the conditions in 5 CFR 731.103. This authority may be further delegated to authorized management officials, in writing, in accordance with volume 731 of DoD Instruction 1400.25.
(1) The DoD Consolidated Adjudications Facility is responsible for making favorable suitability determinations for civilian personnel in accordance with Deputy Assistant Secretary of Defense for Civilian Personnel and Policy Memorandum, “Responsibilities Under the Department of Defense Suitability and Fitness Adjudications for Civilians Employees Programs,” August 26, 2013.
(2) Military members are not subject to suitability adjudication under Volume 731 of DoD Instruction 1400.25, “DoD Civilian Personnel Management System” (available at http://www.dtic.mil/whs/directives/corres/pdf/140025v731.pdf). Military members are subject to the background check requirements of DoD Instruction 5200.02, “Personnel Security Program” (available at http:// www.dtic.mil/whs/directives/corres/pdf/520002_2014.pdf) and § 86.6.
(d) Suitability and fitness determinations for individuals subject to this part will follow the guidance of Volume 731 of DoD Instruction 1400.25 for APF employees and Subchapter 1403 of DoD Instruction 1400.25 for NAF employees. Suitability and fitness are to be applied for the child care worker population in accordance with Volume 731 of DoD Instruction 1400.25 for appropriated fund employees in covered positions as defined by 5 CFR part 731.
(e) Individuals who have received a favorable interim suitability or fitness determination based on the FBI criminal history background check are permitted to work under LOSS pursuant to 42 U.S.C. 13041(b)(3).
§ 86.5
Responsibilities.
(a) Under the authority, direction, and control of the Under Secretary of Defense for Personnel and Readiness (USD(P&R)), the Assistant Secretary of Defense for Readiness and Force Management (ASD(R&FM)):
(1) Ensures the conduct of criminal history background checks complies with DoD policy and the Criminal Justice Information Services Division of the FBI's operational and security policies and procedures.
(2) Monitors DoD Component compliance with this part, applicable laws, and subsequent guidance issued by the applicable ISP.
(b) Under the authority, direction, and control of the ASD(R&FM), the Deputy Assistant Secretary of Defense for Civilian Personnel Policy (DASD(CPP)) oversees development of DoD Component policies and procedures for the background check initiation, completion, adjudication, and suitability or fitness determination process for civilian employees in accordance with this part.
(c) Under the authority, direction, and control of the ASD(R&FM), the Deputy Assistant Secretary of Defense for Military Community and Family Policy (DASD(MC&FP)) oversees development of DoD Component policies and procedures related to the background check initiation, completion, adjudication, and fitness determination process for specified volunteers, FCC providers and adults residing in their home, and others as identified in accordance with this part.
(d) Under the authority, direction, and control of the ASD(R&FM), the Deputy Assistant Secretary of Defense for Military Personnel Policy (DASD(MPP)):
(1) Implements this part for military personnel in accordance with DoD Instruction 5200.02.
(2) Institutes effective quality assurance and quality control systems for chaplains, support staff, specified volunteers, and contractors who provide support to religious programs and activities identified in § 86.6(a)(5)(v) and in accordance with this part.
(e) Under the authority, direction, and control of the Deputy Chief Management Officer (DCMO) of the Department of Defense, the Director of Administration ensures that the adjudication of background investigations of individuals who have regular contact with children under 18 years of age in DoD-sanctioned programs considers the criteria for presumptive and automatic disqualification as specified in this part.
(f) The Under Secretary of Defense for Acquisition, Technology, and Logistics (USD(AT&L)) establishes policies and procedures for the background check initiation, completion, adjudication, and fitness determination process for contractors in accordance with the requirements of this part.
(g) The DoD Component heads:
(1) Ensure Component compliance with the requirements of this part, applicable laws, and guidance for civilian employees.
(2) Ensure compliance with suitability and fitness determination policies, requirements, and procedures for individuals in child care services in DoD programs as defined in 42 U.S.C. 13041 and DoD Instruction 1400.25.
(3) Ensure compliance with policies, requirements, and procedures for LOSS of individuals with a favorable interim suitability determination.
(4) Provide support and resources as required to implement this part and any Component-specific policies, requirements, and procedures, and ensure implementation.
§ 86.6
Procedures.
(a) Requirements for criminal history background checks. (1) All criminal history background checks required by this part must be initiated, tracked, and overseen by properly trained and vetted individuals who have been determined to be responsible for personnel security pursuant to DoD Instruction 5200.02 or human resource functions pursuant to Volume 731 of DoD Instruction 1400.25. Program managers, supervisors, and others not routinely performing personnel security and human resource functions are prohibited from managing the criminal history checks.
(2) All employment applications completed by individuals subject to this part must comply with the requirements of 42 U.S.C. 13041(d).
(3) The DoD Component will ensure that only authorized ISPs are used.
(4) When permitted by the host government, foreign government checks of individuals serving on DoD installations overseas must be requested directly by the employing Military Service or agency in accordance with Volume 1231 of DoD Instruction 1400.25. As an alternative, DoD Components may request that overseas Military Service investigative elements obtain appropriate host-government checks and accept such checks if they are comparable to those required by 42 U.S.C. 13041. Where it is not possible to obtain criminal history checks comparable to those required by 42 U.S.C. 13041, foreign nationals will not be eligible for employment in child care services.
(5) Individuals subject to criminal history background checks are:
(i) All personnel employed or performing duties in DoD Child and Youth or other sanctioned child care services programs.
(ii) Individuals providing in-home FCC.
(iii) Personnel employed or performing duties in child and youth recreational and athletic programs (e.g., Morale, Welfare, and Recreation), including instructors and, when working in a facility when children and youth are present, custodial personnel.
(iv) Individuals employed or performing duties in a DoDEA school (whether or not directly involved with teaching), including but not limited to teachers, administrators, other professional staff, aides, bus drivers, janitors, cafeteria workers, nurses, and attendants.
(v) Chaplains, chaplains' assistants, religious program specialists, and other individuals employed or performing child care services duties for children under 18 years of age on a DoD installation or as part of a military-sanctioned program.
(vi) Foster and respite child care providers on a DoD installation, program, or as part of a military-sanctioned activity.
(vii) Health and mental health care personnel, employed or performing child care services duties on a DoD installation, in a DoD sanctioned program, or as part of a military-sanctioned activity, including but not limited to physicians, dentists, nurse practitioners, clinical social workers, physical therapists, speech-language pathologists, clinical support staff (including residents), registered nurses, licensed practical nurses, nursing assistants, play therapists, and technicians.
(viii) Individuals employed or performing child care duties in social services, residential care, rehabilitation programs, detention, and correctional services on a DoD installation, program, or as part of a military-sanctioned activity.
(ix) Any other individuals reasonably expected to have regular contact with children on a DoD installation, in a DoD sanctioned program, or as part of a military-sanctioned activity, including specified volunteers and any person 18 years of age or older residing in an FCC, foster, or respite care home. Healthcare providers participating in TRICARE shall be governed by TRICARE policy.
(6) The DoD Components will also determine any other classes of positions subject to criminal history background checks, taking care to ensure that all individuals who have regular contact with children when providing child care services are investigated and the requirement must pertain to the class as a whole.
(7) Individuals designated in non-specified volunteer positions must always be under direct LOSS in accordance with paragraph (g) of this section.
(b) Types of background checks. Procedures for conducting a background check on individuals in paragraphs (a)(5)(i) through (ix) of this section differ based on the employment status of the individual. Military members are subject to the background check requirements of DoD Instruction 5200.02 and this section. The FBI criminal history background checks for all categories of individuals must be fingerprint-based and fingerprints must be captured using an FBI-approved system. SCHR checks may require hardcopy fingerprint submissions. State checks must include the state child abuse and neglect repository and the state sex offender registry. The Component must request a check of the state child abuse and neglect repository and the State sex offender registry if they are not automatically checked as part of the standard SCHR check.
(1) Criminal history background checks for DoD civilian and military personnel who are investigated at the NACI or a higher level pursuant to DoD's personnel security program. (i) DoD civilian and military personnel required by DoD Instruction 5200.02 to be investigated according to the requirements of the National Agency Check and Inquiries (NACI) or a higher level investigation and who have regular contact with children under 18 years of age in DoD-sanctioned programs will be investigated and adjudicated in accordance with the provisions of DoD Instruction 5200.02.
(ii) These personnel will also be subject to the additional requirements of the Child Care National Agency Check and Inquiries (CNACI) and the criteria for presumptive and automatic disqualification as specified in paragraph (c) of this section.
(2) Criminal history background checks for civilian employees (APF and NAF). (i) In accordance with 42 U.S.C. 13041 and Volume 731 and Subchapter 1403 of DoD Instruction 1400.25, complete a CNACI, which includes an FBI criminal history background check conducted through the Criminal Justice Information Services Division of the FBI and SCHR checks through State repositories of all States that an employee or prospective employee lists as current and former residences on an employment application. Results of an advanced FBI fingerprint check must be provided before completion of the full CNACI to determine employment under LOSS.
(ii) Individuals with a prior DoD affiliation must also complete an IRC, which includes an installation law enforcement check, drug and alcohol records check, and a check of the Family Advocacy Program (FAP) records for a minimum of 2 years before the date of the application.
(3) Criminal history background checks for FCC providers and contractors. (i) In accordance with 42 U.S.C. 13041, complete a CNACI, which includes an FBI criminal history background check conducted through the Criminal Justice Identification Services Division of the FBI and SCHR checks through State repositories of all States that a provider or contractor or prospective provider or contractor lists as current and former residences in an employment application. Results of an advanced FBI fingerprint check must be provided before completion of the full CNACI. Results for contractors may be used to determine employment under LOSS.
(ii) Individuals with a prior DoD affiliation must also complete an IRC, including an installation law enforcement check, drug and alcohol records check, and a check of the FAP records for a minimum of 2 years before the date of the application.
(4) Criminal history background checks for others. (i) In accordance with 42 U.S.C. 13041, only an FBI advanced fingerprint check is required for criminal history background checks for volunteers and persons 18 years of age or older residing in an FCC, foster, or respite care home.
(ii) Individuals with a prior DoD affiliation must also complete an IRC to include: an installation law enforcement check, drug and alcohol records check, and a check of the FAP records for a minimum of 2 years before the date of the application.
(5) Timely completion. To ensure timely completion, the DoD Components will establish procedures to initiate or request criminal history background check results, follow up to ensure checks have been completed, and address situations where there is a delay in receiving results. In no event will an individual subject to this part be presumed to have a favorable background check merely because there has been a delay in receiving the results of the requisite background check. If no response from the state(s) is received within 60 days, determinations based upon the CNACI report may be made.
(c) Criteria for disqualification based on results on criminal history background checks. 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 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. A disqualifying event may be the basis for a non-selection, withdrawal of a tentative offer of employment, ineligibility for facility access, removal from a contract, a suitability action under 5 CFR part 731, a probationary termination, an adverse action, or other appropriate action.
(1) Criteria for automatic disqualification. No person, regardless of circumstances, will be approved to provide child care services pursuant to this part if the background check discloses:
(i) That the individual has been convicted in either a civilian or military court (to include any general, special or summary court-martial conviction) or received non-judicial punishment (under Article 15 or chapter 47 of Title 10, U.S.C., also known and referred to in this part as “the Uniform Code of Military Justice (UCMJ)”) for any of the following:
(A) A sexual offense.
(B) Any criminal offense involving a child victim.
(C) A felony drug offense.
(ii) That the individual has been held to be negligent in a civil adjudication or administrative proceeding concerning the death or serious injury to a child or dependent person entrusted to the individual's care.
(2) [Reserved]
(d) Suitability and fitness determinations for individuals involved with the provision of child care services. Suitability and fitness determinations for individuals subject to this part will be made in accordance with Volume 731, Volume 1231, and Subchapter 1403 of DoD Instruction 1400.25, and part 1201 of 5 U.S.C., as appropriate. The following may be the basis for non-selection, withdrawal of a tentative offer of employment, ineligibility for facility access, removal from a contract, a suitability action under DoD Instruction 1400.25, a probationary termination, an adverse action, or other appropriate action.
(1) Criteria for presumptive disqualification. Officials charged with making determinations pursuant to this part must include in the record a written justification for any favorable determination made where background check findings include any of the following presumptively disqualifying information:
(i) A FAP record indicating that the individual met criteria for child abuse or neglect or civil adjudication that the individual committed child abuse or neglect.
(ii) Evidence of an act or acts by the individual that tend to indicate poor judgment, unreliability, or untrustworthiness in providing child care services.
(iii) Evidence or documentation of the individual's past or present dependency on or addiction to any controlled or psychoactive substances, narcotics, cannabis, or other dangerous drug without evidence of rehabilitation.
(iv) A conviction, including any general, special, or summary court-martial conviction, or non-judicial punishment under Article 15 of the UCMJ for:
(A) A crime of violence committed against an adult.
(B) Illegal or improper use, possession, or addiction to any controlled or psychoactive substances, narcotics, cannabis, or other dangerous drug.
(v) A civil adjudication that terminated the individual's parental rights to his or her child, except in cases where the birth parent places his or her child for adoption.
(2) Evaluation of presumptively disqualifying information. The DoD Components will establish and oversee procedures for the evaluation of presumptively disqualifying information for all categories of individuals in paragraph (b) of this section. Evaluation of presumptively disqualifying information for APF and NAF personnel must be in accordance with Volume 731 and Subchapter 1403 of DoD Instruction 1400.25, respectively.
(3) Criteria for disqualification under LOSS. If an investigation of an individual who is currently working under LOSS subsequently results in an unfavorable determination, the DoD Components will take action to protect children by reassigning or removing the individual from employment, contract, or volunteer status.
(4) Disputes and appeals. The DoD Components will establish and oversee procedures for the communication of determinations and the appeal of unfavorable determinations for all categories of individuals in paragraph (b) of this section. The procedures for civilian personnel are subject to Volume 731 of DoD Instruction 1400.25 for APF employees and Subchapter 1403 of DoD Instruction 1400.25 for NAF employees.
(e) Reinvestigation. (1) All DoD civilian employees (both APF and NAF), contractors, military personnel, and any other individuals reasonably expected to have regular contact with children on a DoD installation, program, or as part of a military-sanctioned activity, including specified volunteers and any person 18 years of age or older residing in an FCC, foster, or respite care home, who continue to perform duties in the position for which their initial background check was conducted, must undergo a reinvestigation every 5 years. The reinvestigation must consist of the same check conducted for the initial investigation as outlined in paragraph (b) of this section.
(2) All FCC providers and adults residing in an FCC home must undergo an annual reinvestigation utilizing the Special Agreement Check (SAC) for childcare providers. The SAC reinvestigation consists of an update to the initial investigation as outlined in paragraph (b) of this section.
(3) If the reinvestigation results in an unfavorable determination, the DoD Components will take action to protect children by reassigning or removing the individual from employment, contract, or volunteer status.
(4) If derogatory information surfaces within the 5 years before the reinvestigation, the DoD Component will take action to protect children by reassigning or suspending from having contact with children, any individual, contractor or volunteer until the case is resolved.
(f) Self-reporting. (1) Individuals who have regular contact with children under 18 years of age in DoD-sanctioned programs who have a completed background check are required to immediately report subsequent automatic disqualification criteria under paragraph (c)(1) of this section and presumptive disqualification criteria under paragraphs (c)(2)(i), (iv), and (v) of this section.
(2) The DoD Components will establish procedures for:
(i) Informing individuals of the requirement to immediately report any incident or conviction that may invalidate their prior background check and make them ineligible to work or have contact with children.
(ii) Responding to and evaluating reports made by such individuals, and taking appropriate action until the case has been resolved or closed.
(g) Eligibility to perform duties under LOSS. The DoD Components will establish Component-specific procedures, policies, and requirements, subject to the requirements of this paragraph, to permit applicants for whom a criminal history background check has been initiated but not yet completed, to perform duties under LOSS upon favorable findings of preliminary investigations.
(1) No presumption of right. No individual will be permitted to perform duties under LOSS in a position subject to criminal history background check without authorizing policy or other written permission from a DoD Component head.
(2) Preliminary investigations required. No individual will be permitted to perform duties under LOSS in a position subject to criminal history background check unless the following investigative elements have been reviewed and determined favorably:
(i) An IRC, including installation law enforcement records check, drug and alcohol records, and FAP records check for a minimum of 2 years before the date of the application if the individual has a preexisting DoD affiliation.
(ii) Initial results from the advanced FBI fingerprint criminal history background check (not the full check).
(3) Exception for non-specified volunteers. Due to the controlled, limited duration of an activity for these individuals, an advanced FBI fingerprint criminal history background check is not required. Non-specified volunteers will be permitted to perform duties and services under LOSS for the duration of the activity.
(4) Supervisor requirements. The supervisor must be a person who:
(i) Has undergone and successfully completed the required background check.
(ii) Has complied, as required, with the periodic reinvestigation requirement for a recurring criminal history background check.
(iii) Has not previously exhibited reckless disregard for an obligation to supervise an employee, contractor, or volunteer.
(5) Video surveillance. The use of video surveillance equipment to provide temporary oversight for individuals whose required background checks have been initiated but not completed is acceptable provided it is continuously monitored by an individual who has undergone and successfully completed all required background checks. This provision shall meet the intent of a flexible and reasonable alternative for “direct sight supervision.”
(6) Conspicuous identification of individuals subject to LOSS. Individuals permitted to perform duties solely under LOSS must be conspicuously marked by means of distinctive clothing, badges, wristbands, or other visible and apparent markings. The purpose of such markings must be communicated to staff, customers, parents, and guardians by conspicuous posting or printed information.
(7) Permissible performance of duties without supervision. Individuals otherwise required to perform duties only under LOSS may perform duties without supervision if:
(i) Interaction with a child occurs in the presence of the child's parent or guardian;
(ii) Interaction with children is in a medical facility, subject to supervisory policies of the facility, and in the presence of a mandated reporter of child abuse; or
(iii) Interaction is necessary to prevent death or serious harm to the child, and supervision is impractical or unfeasible (e.g., response to a medical emergency, emergency evacuation of a child from a hazardous location).
Pt. 88

PART 88— TRANSITION ASSISTANCE PROGRAM (TAP) FOR MILITARY PERSONNEL
Sec.
88.1
Purpose.
88.2
Applicability.
88.3
Definitions.
88.4
Policy.
88.5
Responsibilities.
88.6
Procedures.
Appendix A to Part 88—Career Readiness Standards
Appendix B to Part 88—MLC TAP
Appendix C to Part 88—Pre-Separation or Transition Counseling
Appendix D to Part 88—IDP and ITP
Appendix E to Part 88—Transition GPS (Goals, Plans, Success)
Appendix F to Part 88—DOLEW Exemptions
Appendix G to Part 88—Virtual Curricula
Appendix H to Part 88—Capstone
Appendix I to Part 88—Data, Information Collection, Data Sharing, and Management Portfolio

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

Source:
80 FR 74683, Nov. 30, 2015, unless otherwise noted.
§ 88.1
Purpose.
This part establishes policy, assigns responsibilities, and prescribes procedures for administration of the DoD TAP.
§ 88.2
Applicability.
This part:
(a) Applies to the Office of the Secretary of Defense (OSD), the Military Departments, the Office of the Chairman of the Joint Chiefs of Staff (CJCS) and the Joint Staff (JS), 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 within the DoD (referred to collectively in this part as the “DoD Components”).
(b) Does not apply to members of the Army and Air National Guard serving under 32 U.S.C. 101.
§ 88.3
Definitions.
Unless otherwise noted, these terms and their definitions are for the purpose of this part.
Active Component (AC). Defined in 10 U.S.C. 101.
Active Duty. Defined in 10 U.S.C. 101.
Active Service. Defined in 10 U.S.C. 101.
Active Status. Defined in 10 U.S.C. 101.
Brick and mortar classroom. A learning environment where participants attend a Transition Goals, Plans, Success (GPS) module in a traditional classroom facility led by an in-person instructor or facilitator.
Credentialing. The act of obtaining certificates, licensure, or other official verification of competency accepted by civilian industry or federal, State, or local authorities.
Career Readiness Standards (CRS). A set of common and specific activities and associated relevant deliverables (documentation within the last 12 months) that must be achieved to demonstrate Service members are prepared to transition effectively to pursue their personal post-separation higher education, career technical training, and civilian employment goals.
Continuum of Military Service Opportunity Counseling. Counseling that provides information to AC Service members on the procedures for and advantages of affiliating with the Selected Reserve, pursuant to 10 U.S.C. 1142.
Department of Labor (DOL) American Job Centers. American Job Centers (or AJCs) provide free help to job seekers and employers for a variety of career and employment-related needs. More than 2,500 AJCs are located throughout the United States. Priority of service applies to employment and training programs funded by the Department of Labor. Many locations have staff directly assigned to assist veterans in finding employment. Although the AJC makes assistance available to everyone looking for a job, veterans are given priority. Priority of Service for veterans at the AJC is offered to all veterans. This means that veterans are offered services before non-veterans and have priority of access to all DOL-funded employment and training programs offered at the AJC.
DOL Employment Workshop. Mandatory DOL-led workshop, which focuses on the mechanics of resume writing, networking, job search skills, interview skills, and labor market research.
DOL Gold Card. The Gold Card initiative is a joint effort of the Department of Labor's Employment and Training Administration (ETA) and the Veterans' Employment and Training Service (VETS). An eligible veteran can present the Gold Card at his/her local AJC to receive enhanced intensive services including up to six months of follow-up.
Eligible Service member. Defined in 10 U.S.C. 101.
Facilitator. A person trained or qualified as a subject matter expert to deliver appropriate components of Transition GPS. The facilitator's primary duty is presenting instruction, information, and engaging curricula to ensure Service members meet learning objectives.
Individual Development Plan (IDP). A written plan designed to meet particular goals for individual career development that is aligned with the eligible Service member's organizational and operational missions. It outlines developmental objectives with training activities (e.g., professional military education and military certifications). Service members will align the IDP effectively to make use of active duty time, experiences, training, and education towards personal long-term post-transition career goals.
Individual Transition Plan (ITP). An OSD standardized document that is created, evolves and is maintained by the Service member that provides the framework to perform detailed assessments of their personal and professional preparedness to achieve realistic career goals after separation from active duty.
Involuntary separation. A Service member is considered to be involuntarily separated if the member was involuntarily discharged or denied reenlistment under adverse or other-than-adverse conditions (e.g., force shaping) pursuant to 10 U.S.C. 1141.
ITP Checklist. An automated tool to document that Service members have met the CRS.
ITP Review. A module in the transition GPS Core Curricula where TAP staff explains the purpose, use, function, and responsibilities associated with the ITP. Eligible Service members must produce evidence of this deliverable indicating they met this CRS before separation, retirement, or release from active duty.
Job placement counseling. Transition services pursuant to 10 U.S.C. 1142 for one-on-one counseling that refines and guides spouses of eligible Service members on all facets of the job search process, to include writing resumes.
Military Occupation Code (MOC) Crosswalk. A curriculum that translates military skills, training, and experience into identification of required civilian credentialing appropriate for civilian jobs.
National Guard. Defined in 10 U.S.C. 101 and 32 U.S.C. 101.
Personal Financial Planning. A curriculum that provides Service members with skills to develop a post-separation 12-month budget. It also assists Service members in learning how to manage their own finances as civilians, both at home and in the workplace.
Recovering Service member. Defined in Department of Defense/Department of Veterans Affairs, Wounded, Ill, and Injured Senior Oversight Committee Memorandum, “Implementation of Wounded, Ill and Injured Related Standard Definitions,” December 10, 2008.
Relocation assistance. Information about the benefits and services provided by the Military Departments related to transport of household goods for transitioning Service members and their dependents and any entitlements for storage.
Reserve Component (RC). Defined in 10 U.S.C. 101 and 37 U.S.C. 101. The Reserve Corps of the Public Health Service is not eligible for TAP services.
Resilient Transitions. A module in the Transition GPS Core Curriculum that introduces participants to resources on transition-related issues, including stress management, considerations for families, support systems, value of a mentor, and special issues, that eligible Service members and their families may encounter as they prepare for a post-military life. These issues may have a significant negative impact on the transition process if overlooked. The focus of the curriculum is to connect the Service member with agencies and organizations based on the individual Service member's need for support and guidance.
Short notice separation. An unanticipated separation with 30 days or fewer before separation, retirement, or release from active duty.
TAP Coordinating Council. Individuals designated in this part to participate in updating and improving the TAP. The TAP Coordinating Council meets at least quarterly.
TAP Governance Body. A structure, established in October 2013, comprised of interagency senior leadership from the DoD, VA, DOL, Department of Homeland Security (DHS), Department of Education (ED), Small Business Administration (SBA), and the Office of Personnel Management (OPM), that steers and monitors implementation of the TAP redesign and modifies TAP, as needed, to meet the changing environment consisting of the TAP Executive Council (EC) and the Senior Steering Group (SSG). See Interagency Statement of Intent, “Transition Assistance for Separating Service Members” (available at http://prhome.defense.gov/ RFM/TVPO) for a description of the TAP governance structure.
TAP interagency parties. By law, Federal agencies are required to deliver TAP services to transitioning Service members. See § 88.6 for a list of the TAP interagency parties.
TAP Staff. Subject matter experts hired by OSD and the Military Services, to provide services and programs that prepare Service members for transition from active duty to civilian life.
Targeted population. A population of eligible Service members consisting of those who are:
(1) 18 to 24 years old;
(2) Completing first-term enlistments;
(3) Involuntarily separating due to force shaping; and/or
(4) Separating on short notice from military service.
Transition. The preparation and process for moving from active duty service to the civilian sector.
Transition GPS. A package of activities and curricula specifically designed to provide eligible Service members with the targeted set of knowledge, skills, documentation, and assistance required to meet the CRS before transition and enable a successful transition from active duty to civilian life.
Transition GPS Core Curricula and Tracks. Components of Transition GPS based on value-added learning objectives that enable Service members to become career ready. The Core Curricula builds the CRS common to all Service members. Transition GPS tracks are chosen by Service members to meet Accessing Higher Education and Career Technical Training CRS or to pursue business ownership or other self-employment.
Transition GPS Participant Assessment. A web-based evaluation completed by the Service member about the Transition GPS modules, tracks, and virtual curricula. It includes curriculum and instruction materials, learning outcomes, facilitator performance, facilities, and logistics. Participant feedback from the assessment ensures that Transition GPS meets the needs and expectations of transitioning Service members and is outcome based. Information collected in the assessment will support the performance monitoring, evaluation, and reoccurring modifications to Transition GPS.
Transition overview. The Transition GPS module that explains the transition process in terms of who, what, where, when, and why. It is intended to gain the participant's attention and emphasize the importance of preparing for transition and making the most of the information provided. It is also intended to provide an overview of the Transition GPS Core Curricula program and the benefits of preparation for active involvement in each session. A skilled trainer well versed in the overall TAP should facilitate the transition assistance overview session.
Unanticipated Separation. Service members released from active duty before completion of enlistment, contract, or orders.
VA Benefits Briefings I and II. VA-led mandatory briefings that provide eligible Service members with hands-on training and information on available veterans' benefits and services.
Virtual Transition GPS Curricula. A web-based version of the Transition GPS curricula that provides an alternative delivery method for Service members who cannot attend installation-based training to access Transition GPS classes.
Warm Handover. A Capstone process between respective Military Departments and appropriate interagency parties resulting in the person-to-person connection of Service members to services and follow-up resources as needed. The Warm Handover provides a confirmed introduction and assurance that the appropriate interagency party/parties acknowledge(s) that an eligible Service member requires post-military assistance and the interagency party/parties is/are willing to follow through on providing assistance to meet the needs of Service members and assist them in attaining the CRS and making a successful transition.

Effective Date Note:
At 81 FR 41808, June 28, 2016,§ 88.3 was amended by revising the definition of “Involuntary separation”, effective Sept. 1, 2016. For the convenience of the user, the revised text is set forth as follows:
§ 88.3
Definitions.
* * * * *
Involuntary separation. A Service member is considered to be involuntarily separated if the member was involuntarily discharged or denied reenlistment under other-than-adverse conditions (e.g., force shaping) pursuant to 10 U.S.C. 1141.
* * * * *
§ 88.4
Policy.
It is DoD policy that:
(a) The TAP:
(1) Prepares all eligible members of the Military Services for a transition from Active Duty back to civilian life.
(2) Enables eligible Service members to fulfill the requirements of the VOW to Hire Heroes Act and meet CRS as required by this part.
(3) Is the overarching program that provides transition assistance, information, training, and services to eligible transitioning Service members to prepare them to be career ready when they separate, retire, or are released from active duty back to civilian life. The TAP consists of multiple elements, including: The Transition GPS curricula, the components of which are outlined in appendix E to part 88; policy and procedures; information technology (IT) infrastructure; research, studies and survey data; performance measures and outcomes; assessments; curricula development in both brick and mortar and virtual settings and modifications; CRS; accountability data; and resources required to implement transition assistance.
(b) Components are integrated throughout the eligible Service member's Military Life Cycle (MLC) TAP at key touch points. The Transition GPS component of TAP consists of curriculum, counseling, information, referral, and deliverables to enable eligible Service members to meet the CRS.
(c) This policy establishes a TAP interagency governance structure according to DoD Instruction 5105.18, “DoD Intergovernmental and Intragovernmental Committee Management Program” (available at http://www.dtic.mil/whs/directives/corres/pdf/510518p.pdf), referred to in this part as the TAP EC and SSG. DoD will support and carry out the DoD mission of the governance structure as set out in the Interagency Statement of Intent, dated August 15, 2013, “Transition Assistance for Separating Service Members.” The EC will designate working groups as appropriate. DoD representation to working groups will be in accordance with § 88.5 of this part.
§ 88.5
Responsibilities.
(a) Under the authority, direction, and control of the Under Secretary of Defense (Personnel and Readiness) (USD(P&R)), the Assistant Secretary of Defense for Manpower and Reserve Affairs Readiness and Force Management (ASD(M&RA)):
(1) Provides policy, direction, and oversight to the Transition to Veterans Program Office (TVPO);
(2) Provides oversight and governance for the TAP and serves as the DoD lead chair of the TAP EC on a rotational basis with DOL and the VA;
(3) Oversees TAP policy and programs, monitors compliance with TAP provisions, and provides guidance to DoD Component heads; and
(4) Coordinates with the CJCS to provide JS Senior Enlisted Advisor participation for the TAP EC and Senior Enlisted Advisor representation to the TAP SSG;
(b) Under the authority, direction, and control of USD(P&R)), the Assistant Secretary of Defense for Health Affairs (ASD(HA)):
(1) Ensures that the Defense Health Agency provides transitional medical and dental care information pursuant to 10 U.S.C. 1145 to the TVPO for incorporation into Pre-separation Counseling; and
(2) Provides representation to the TAP EC and SSG working groups, as necessary;
(c) Under the authority, direction, and control of the USD(P&R), the Assistant Secretary of Defense for Reserve Affairs (ASD(RA)):
(1) Helps the TVPO establish and publish guidance for participation in the TAP that is specific to eligible RC Service members as defined in law and policy;
(2) Coordinates with TVPO to integrate elements of Transition GPS, before the DD Form 214, “Certificate of Release from Active Duty,” August 20, 2009, into the Yellow Ribbon Reintegration Program in conjunction with the policy established in DoD Instruction 1342.28, “DoD Yellow Ribbon Reintegration Program (YRRP)” (available at http://www.dtic.mil/whs/directives/corres/pdf/134228p.pdf), as appropriate;
(3) Provides Executive Director, Family and Employer Programs Policy, Senior Executive Service (SES), representation to the TAP SSG; and
(4) Provides representation to the TAP EC and SSG working groups, as necessary.
(d) Under the authority, direction, and control of the (ASD (M&RA), the Deputy Assistant Secretary of Defense for Military Community and Family Policy (DASD(MC&FP)):
(1) Develops policy and programs in DoD Instruction 1342.22, “Military Family Readiness” (available at http://www.dtic.mil/whs/directives/corres/pdf/134222p.pdf) and other applicable MC&FP issuances that complements TAP;
(2) Coordinates with TVPO on the roles, responsibilities, and policies set out in DoD Instruction 1342.22. The roles include coordination with:
(i) Installation education officers that impact the delivery of the Transition GPS Accessing Higher Education track;
(ii) Certified financial counselors that impact the delivery of the Transition GPS Core Curricula Personal Financial Planning for Transition module;
(iii) TAP staff, in conjunction with Military Departments whose staff are functionally aligned with DASD(MC&FP), regarding the delivery of the Transition GPS components to enable eligible Service members to meet CRS;
(3) Provides policy regarding job placement counseling for the spouses of eligible transitioning Service members and career change counseling to Service members and dependents of eligible Service members in accordance with 10 U.S.C. Chapter 58; and
(4) Provides representation to the TAP EC and SSG working groups, as necessary.
(e) Under the authority, direction, and control of the (ASD(R&FM)), the Deputy Assistant Secretary of Defense for Military Personnel Policy (DASD(MPP)) provides:
(1) Information and updates on entitlements and policies affecting eligible Service members as defined in law and policy; and
(2) Representation to the TAP EC and SSG working groups, as necessary.
(f) Under the authority, direction, and control of the ASD(R&FM), the Deputy Assistant Secretary of Defense for Readiness (DASD(R)):
(1) Provides information and updates on entitlements and policies affecting eligible Service members as defined in law and policy;
(2) To the extent possible and where available, ensures DASD(R) programs and policies related to job training, employment skills training, apprenticeships, and internships complement those programs and policies that govern the TAP that fall under the purview of TVPO in conjunction with DoD Instruction 1322.29, “Job Training, Employment Skills Training, Apprenticeships, and Internships (JTEST-A1) for Eligible Service Members” (available at http://www.dtic.mil/whs/directives/corres/pdf/132229p.pdf);
(3) Coordinates private-sector credentialing, licensing, and training outreach, and collaborates with the TVPO to align transition preparation across the MLC TAP and facilitate the military talent pipeline from the Military Departments to the civilian work force; and
(4) Provides representation to the TAP EC and SSG working groups, as necessary;
(g) Under the authority, direction, and control of the USD(P&R), the Director, Department of Defense Human Resource Activity (DoDHRA) provides:
(1) Administrative support to TVPO, including human capital, funding, and logistics; and
(2) Representation to the TAP EC and SSG working groups, as necessary.
(h) Under the authority, direction, and control of the Director, DoDHRA, the Director, Defense Suicide Prevention Office (DSPO):
(1) Provides suicide prevention and resource information to TVPO for incorporation into Transition GPS programming for eligible Service members as defined in statute and policy pursuant to 10 U.S.C. Chapter 58;
(2) Coordinates with TVPO on the role, responsibilities, and training of Suicide Prevention Program Managers (SPPMs), in conjunction with the Military Departments as it relates to Transition GPS; and
(3) Provides representation to the TAP EC and SSG working groups, as necessary.
(i) Under the authority, direction, and control of the Director, DoDHRA, the Director, Defense Manpower Data Center (DMDC):
(1) Oversees implementation of the TAP data collection, data sharing, and IT portfolio management requirements as described in this section;
(2) Provides assistance to TVPO with the establishment of business processes for data collection, data sharing, web services, and cost sharing related to IT portfolio management requirements in this part;
(3) Provides representation to the TAP EC and SSG working groups, as necessary; and
(4) Provides program status updates, as determined by the TVPO, based on data housed within DMDC capabilities;
(j) Under the authority, direction, and control of the ASD(R&FM), the Director, TVPO:
(1) Coordinates TAP policies, programs, and delivery with the USD(P&R);
(2) Develops policy, strategic guidance, and program goals for the TAP and Transition GPS; and reviews, modifies, and reissues such guidance, as required;
(3) Oversees the Military Departments' implementation of TAP;
(4) Implements the requirements of the TAP governance bodies as defined by Interagency Statement of Intent, “Transition Assistance for Separating Service Members”;
(5) In conjunction with ASD(R&FM), supports and coordinates meetings and activities for TAP governance bodies, as defined in § 88.3;
(6) Serves as the DoD lead chair of the TAP SSG on a rotational basis with DOL and VA;
(7) Establishes processes to monitor compliance with statutory mandates and other performance management requirements, as appropriate;
(8) Establishes automated data collection processes through secure electronic data transfer, in conjunction with the Military Departments, partner agencies, and DMDC. (See paragraph (c) of appendix I to part 88);
(9) Before submission of operational execution plans, coordinates with the Military Departments and must receive approval from Director, TVPO, before final submission of operational execution plans, system modifications, or development of new systems that fall under DoD TAP data and information requirements.
(i) Implementation of any new IT system or capability; or
(ii) Revision to an existing system or capability of the Military Departments that support the TAP.
(10) Coordinates and collaborates with the interagency parties and other organizations, as appropriate, in accordance with a Memorandum of Understanding among the DoDVADOLEDDHS, SBA, and OPM “Transition Assistance Program for Separating Service Members” (available at http://prhome.defense.gov/RFM/TVPO/), to facilitate delivery of Transition GPS curricula, resources, and services, and to determine data sharing requirements;
(11) Coordinates with DMDC to provide TVPO-approved web-based services to the Military Departments for electronic transmission of DD Form 2958, “Service Member's Individual Transition Plan Checklist” and DD Forms 2648 or 2648-1, “Pre-separation or Transition Counseling Checklist for Active Component (AC) Service Members” and “Transition Assistance Program (TAP) Checklist for Deactivating/Demobilizing National Guard and Reserve Service Members,” respectively;
(12) Establishes a performance management framework to determine current and future resourcing and requirements;
(13) Analyzes data to evaluate the overall performance of the TAP;
(14) Establishes, reviews, assesses, and evaluates the effectiveness of Transition GPS;
(15) Oversees and monitors the development, delivery, maintenance, modification, and quality assurance of the Transition GPS brick-and-mortar and virtual curricula, products, and CRS deliverables, in accordance with this paragraph and MOU among DoD, VA, DOL, ED, DHS, SBA, and OPM, “Transition Assistance Program for Separating Service Members.” Develops brick-and-mortar and virtual curricula for the components of Transition GPS that fall under the purview of DoD and coordinates with interagency partners on their respective curriculums;
(16) Coordinates with interagency parties, the Military Departments, and Joint Knowledge Online (JKO), on the methods, processes, and standards used to deliver Transition GPS brick-and-mortar and virtual curricula, products, and deliverables used within Transition GPS, in accordance with MOU among DoD, VA, DOL, ED, DHS, SBA, and OPM, “Transition Assistance Program for Separating Service Members” and this part;
(17) Monitors Transition GPS curricula delivery by TVPO and Military Departments by conducting evaluations and participant assessments;
(18) Updates DD Forms 2648, 2648-1 and 2958 in conjunction with the Military Departments, within 180 days of legislative changes that affect eligible Service members, as appropriate;
(19) Develops, maintains, standardizes, and oversees usage of the ITP at the appropriate time in an eligible Service member's MLC TAP in conjunction with Military Departments;
(20) Establishes and leads TAP Coordinating Council consisting of subject matter experts from the DoD Components, to formulate, review, and update TAP policies and programs. Collaborates and coordinates on the development of the Military Departments' implementation plans related to TAP. RC members appointed to the TAP Coordinating Council will be determined pursuant to guidance from the Director, TVPO and in consultation with the Military Departments;
(21) Designates the DoD lead for the EC Transition Assistance Working Group. Conducts outreach to private- and public-sector entities to improve transition preparation in order to keep transition services aligned to the needs of the civilian labor market; and
(22) Expands TAP services through online media and other cooperative outreach efforts to support eligible Service members and their spouses, as defined by statute and policy.
(k) The Secretaries of the Military Departments:
(1) Implement and administer TAP in accordance with this part;
(2) Oversee TAP for their respective AC and RC;
(3) Coordinate electronically with TVPO their implementation guidance pertaining to this part, before publication. A copy of the final implementing guidance will be provided to TVPO within 120 days from the publication date of this part. Future changes to TAP guidance will be forwarded to the TVPO within 30 days of issuance;
(4) Ensure the Inspector General (IG) of each Military Department, including their respective RC, conducts an inspection of TAP in accordance with established IG protocols;
(i) TAP IG inspection findings will be submitted biannually to the USD(P&R) no later than January 31 of the fiscal year following the previous inspection date.
(ii) The first TAP IG inspection findings will be submitted two full fiscal years from the effective date of this part.
(5) Internally resource TAP to meet the provisions as defined in law and policy;
(6) Ensure that eligible Service members receive the TVPO standardized Transition GPS components, develop a viable ITP, and meet CRS;
(7) Ensure that Service members who do not meet the CRS or do not have a viable ITP receive a warm handover, as defined in § 88.3, to the appropriate interagency party;
(8) Align, administer, and reinforce Transition GPS components and resources at appropriate key touch points throughout the MLC TAP of eligible Service members to ensure they are afforded the opportunity, time, and resources for career readiness preparation. At the separation, retirement, or release from active duty touch point all Service members must meet the CRS;
(9) Ensure Service member access to Transition GPS brick-and-mortar and virtual curricula;
(10) Provide the opportunity within the officer and enlisted evaluation systems to use the rate at which Service members within a command have met the CRS, as a performance criteria;
(11) In order to execute Transition GPS in accordance with MOU among DoD, VA, DOL, ED, DHS, SBA, and OPM, “Transition Assistance Program for Separating Service Members” and DoD 5500.07-R, “Joint Ethics Regulation (JER)” (available at http://www.dtic.mil/whs/directives/corres/pdf/550007r.pdf), DoD Instruction 1344.07, “Personal Commercial Solicitation on DoD Installations” (available at http://www.dtic.mil/whs/directives/corres/pdf/134407p.pdf), DoD Instruction 1000.15, “Procedures and Support for Non-Federal Entities Authorized to Operate on DoD Installations” (available at http://www.dtic.mil/whs/directives/corres/pdf/100015p.pdf), DoDI 1322.25, “Voluntary Education Program,” and DoDI 1322.19, “Voluntary Education Program in Overseas Areas” to allow facility access to interagency parties on installations in the United States and abroad;
(12) Encourage installation commanders to permit properly vetted civilian employers to have access to transition assistance-related events and activities in the United States and abroad in accordance with MOU among DoD, VA, DOL, ED, DHS, SBA, and OPM, “Transition Assistance Program for Separating Service Members,” DoD 5500.07-R, and DoD Instruction 1344.07, at no cost to the U.S. Government. Access must be for the purpose of offering job opportunities, mentoring, internships, or apprenticeships leading to employment. Educational institution access will also be in accordance with DoD Instruction 1322.25, “Voluntary Education Program,” and DoD Instruction 1322.19, “Voluntary Education Program in Overseas Areas;”
(13) Strongly encourage installation commanders to permit access to VSOs and MSOs to transition assistance-related events and activities in the United States and abroad in accordance with MOU among DoD, VA, DOL, ED, DHS, SBA, and OPM, “Transition Assistance Program for Separating Service Members,” DoD 5500.07-R, and DoD Instruction 1344.07, at no cost to the U.S. Government. Access must be for the purpose of assisting Service members with the pre- and post-military disability claim process and transition resources and services;
(14) Assign the appropriate Departmental Deputy Assistant Secretary or Director to serve as a TAP SSG member (e.g., Civilian Personnel/Quality of Life; Air Force Management Integration; Fleet and Family Readiness); and
(15) Provides representatives to the TAP EC working groups, as necessary.
(l) The Chief of the National Guard Bureau assigns the Director of Personnel, an SES, to serve as a TAP SSG member.
(m) In addition to the responsibilities in paragraph (k) of this section and in consultation with the Commandant of the U.S. Marine Corps (USMC), the Secretary of the Navy (SECNAV):
(1) Develops joint implementation instructions to ensure statutory compliance for all eligible transitioning USMC and U.S. Coast Guard (USCG), personnel whenever the Coast Guard operates as a service in the Navy pursuant to 10 U.S.C. 5033 and 14 U.S.C. 3.
(2) Assigns an SES member to serve as TAP SSG member.

Effective Date Note:
At 81 FR 41808, June 28, 2016, § 88.5 was amended by revising the introductory text for paragraphs (a), (c), (e), (f), and (j), and paragraph (j)(5), effective Sept. 1, 2016. For the convenience of the user, the revised text is set forth as follows:
§ 88.5
Responsibilities.
(a) Under the authority, direction, and control of the Under Secretary of Defense (Personnel and Readiness) (USD(P&R)), the Assistant Secretary of Defense for Readiness (ASD(R)):
* * * * *
(c) Under the authority, direction, and control of the USD (P&R), the Assistant Secretary of Defense for Manpower and Reserve Affairs (ASD (M&RA)):
* * * * *
(e) Under the authority, direction, and control of the (ASD(M&RA), the Deputy Assistant Secretary of Defense for Military Personnel Policy (DASD(MPP) provides:
* * * * *
(f) Under the authority, direction, and control of the (ASD(R)), the Deputy Assistant Secretary of Defense for Force Education and Training (DASD(FE&T)):
* * * * *
(j) Under the authority, direction, and control of the (ASD(R)), the Director, TVPO:
* * * * *
(5) In conjunction with ASD(R), supports and coordinates meetings and activities for TAP governance bodies, as defined in § 88.3;
* * * * *
§ 88.6
Procedures.
(a) Military Department Requirements. The Military Services' additional requirements include:
(1) Perform these TAP operations and resource management functions:
(i) Develop requirements and budgets for the Program Objective Memorandum (POM); Future Year Defense Program (FYDP); and program budget reviews, as required to comply with TAP requirements. Coordinate with OSD TVPO for TAP resource advocacy throughout these cycles.
(ii) Establish program elements or accounting codes to separately and independently verify and review the monthly Military Department-funded execution data (i.e., program funding levels, obligations, disbursements) in Defense Finance and Accounting Service (DFAS) reports and submit to TVPO quarterly. Any decrement to Military Department TAP annual program funding of 5% or greater must be reported to TVPO.
(iii) Identify and submit TAP-related issues at the general or flag officer and SES equivalent level to the TVPO in a timely manner so that TAP-related issues can go before the SSG for discussion and decision.
(2) Coordinate with TVPO on implementation of any new IT systems or capabilities and revisions to existing systems that support the TAP. TVPO will have final approval on any new IT systems and or modifications. TVPO approval will be obtained before the Military Departments implement any IT systems modifications or develop any new systems that support TAP. See paragraph (c) of appendix I to part 88.
(3) Use TVPO-selected standardized individual assessment tools.
(4) Ensure that Service members receive an individualized assessment, pursuant to this paragraph, of the various positions of civilian employment in the private sector for which members may be qualified as a result of the skills developed through MOC qualification, successful completion of resident training courses, attainment of military ranks or rates, or other military experiences.
(5) Develop, maintain, document, and oversee the IDP process.
(6) Inform and educate unit, command, and installation leadership on their responsibility to administer the TAP to ensure that eligible Service members meet the CRS before separation, retirement, or release from active duty.
(7) Identify the eligible population for Transition GPS services.
(8) Identify and provide qualified counselors and trained instructors to facilitate the Transition GPS core curricula and Accessing Higher Education track.
(9) Coordinate with DSPO SPPMs at the local installation level to provide information in support of the Transition GPS Core Curricula module on resilient transitions and to distribute suicide prevention information and resources pursuant to 10 U.S.C. Chapter 58 .
(10) Release eligible Service members during duty hours to complete the Transition GPS and exempt them from normal duty for the full 24-hour period of each workshop or briefing day and the 12 hours immediately preceding and following each workshop or briefing.
(11) Provide eligible Service members with the link to the TVPO web-based Transition GPS Participant Assessment and encourage them to complete it at the end of each Transition GPS brick-and-mortar and virtual curricula module or group of modules. Responses will not identify individual Service members.
(12) Establish a process within the military personnel organizations of the Military Departments to receive a legible copy of the completed and authenticated DD Forms 2648 or 2648-1 from the TAP staff. The process will include a mechanism to verify transmission of the form to the eligible Service member's permanent official military personnel file.
(13) Maintain or establish permanent employment assistance centers at appropriate military installations pursuant to 10 U.S.C. 1143.
(14) Use appropriate assets at military installations and in the local community to enhance Transition GPS in accordance with DoD 5500.07-R and DoD Instruction 1344.07.
(15) Coordinate with the appropriate TAP interagency parties for scheduling and conducting the VA Benefits Briefings I and II and Career Technical Training track; DOLEW and SBA Entrepreneurship track in accordance with MOU among DoD, VA, DOL, ED, DHS, SBA, and OPM, “Transition Assistance Program for Separating Service Members.”
(16) Coordinate warm handovers and Capstone support with interagency parties.
(17) Provide classroom space. Classes cannot exceed 50 participants (facilitator-to-student ratio should be 1:50 per separate classroom). A minimum of 10 participants is required to conduct a class. Military Departments will provide classrooms, appropriate facilities, IT infrastructure, fully-functioning web access, equipment, including classroom computers or accommodation for personal computers to enable effective Transition GPS instruction and counseling in accordance with MOU among DoD, VA, DOL, ED, DHS, SBA, and OPM, “Transition Assistance Program for Separating Service Members;” provide adequate facilities and workspace for instruction and counseling as agreed to by interagency parties also in accordance with MOU among DoD, VA, DOL, ED, DHS, SBA, and OPM, “Transition Assistance Program for Separating Service Members.” Military Departments may request exceptions for classrooms of more than 50 or less than 10 participants on a case-by-case basis. Such requests will be handled by the local installation level staff with partner agencies.
(18) Provide reasonable accommodations that enable wounded, ill or injured recovering Service members to successfully complete TAP.
(b) TAP Implementation. (1) Development of brick-and-mortar and virtual curricula, staff training, and delivery of certain elements of the Transition GPS Core Curricula and Transition GPS tracks will be conducted in coordination and conjunction with the TVPO and appropriate TAP interagency parties in accordance with MOU among DoD, VA, DOL, ED, DHS, SBA, and OPM, “Transition Assistance Program for Separating Service Members.”
(2) Interagency parties, and their respective curriculas consist of:
(i) VA: Provides the VA Benefits Briefings I and II and Career Technical Training track.
(A) The VA hosts a web portal for connectivity between employers and transitioning Service members, Veterans and military spouses.
(B) The VA web portal supports providing private and public sector employers with a direct link to profiles of separating Service members.
(ii) DOL: Provides the DOLEW.
(iii) SBA: Provides the Entrepreneurship track.
(iv) OPM: In conjunction with DOL, reviews and provides federal job search curriculum content for use in the DOLEW.
(v) ED: Consultative reviews of curricula to ensure accuracy of content, employment of adult learning principles, and to enhance adult learning experiences.
(vi) DHS: Coordinates and plans for USCG participation in the TAP, in accordance with this paragraph. MOU among DoD, VA, DOL, ED, DHS, SBA, and OPM, “Transition Assistance Program for Separating Service Members,” and pursuant to 14 U.S.C. 13
(vii) DoD provides transition overview, resilient transitions, MOC Crosswalk, Financial Planning for Transition, ITP review, and Accessing Higher Education.
(c) TAP Eligibility—(1) Service Members. (i) Eligible Service members who have completed their first 180 days or more of continuous active duty in accordance with 10 U.S.C. 1142 are eligible for the following components of Transition GPS:
(A) Pre-separation or Transition Counseling.
(B) Transition GPS Core Curricula.
(C) Transition GPS Tracks.
(D) Capstone.
(ii) RC members may choose to decline pre-separation or transition counseling, using the DD Form 2648 or DD Form 2648-1, for each successive period of active duty under 10 U.S.C. 1142 consisting of 180 days or more of continuous active duty.
(iii) Eligible Service members may choose to participate in one or more of the individual Transition GPS tracks, if resources, capacity, and operational requirements allow, based on the Service member's interests and ability to meet the CRS and complete the track.
(iv) A minimum day requirement for Pre-separation or Transition Counseling does not apply to eligible Service members who are retiring or separating due to a disability.
(v) Administrative and punitive separations change the eligibility of Service member's participation as follows:
(A) Pre-separation or transition counseling will not be provided to a Service member who is being discharged or released before the completion of that member's first 180 continuous days or more on active duty pursuant to 10 U.S.C. 1142.
(B) All Service members shall participate in all mandatory components of Transition GPS. In cases where Service members receive a punitive or “Under Other Than Honorable Conditions” discharge, Commanders have the discretion to determine participation in the remaining Transition GPS curricula in consultation with interagency partners, as appropriate.
(2) Spouses and dependents. (i) Pursuant to 10 U.S.C. 1144, spouses of eligible Service members are entitled to the DOLEW.
(ii) Pursuant to 10 U.S.C. 1142 spouses of eligible Service members are entitled to:
(A) Job placement counseling for spouses and career change counseling to dependents of eligible members in accordance with 10 U.S.C. 1142. See paragraph (d)(3) of § 88.5 for the spouse job placement counseling responsibilities of the DASD(MC&FP).
(B) DoD and VA administered survivor benefits information.
(C) DoD financial planning assistance, including information on budgeting, saving, credit, loans, and taxes.
(E) VA-benefits orientation, such as education, employment, home loan services, housing assistance benefits information, and responsible borrowing practices counseling.
(iii) Pursuant to 10 U.S.C. 1142, eligible Service members and their dependents are entitled to:
(A) Career change counseling.
(B) Information on suicide prevention resource availability following military separation, retirement, or release from active duty.
(iv) Pursuant to 10 U.S.C. 1145, eligible Service members and their dependents are entitled to transitional medical and health care that will be available for 180 days, beginning on the first day after the date of separation, retirement, or release from active duty.
(v) Unless prohibited by statute, spouses of eligible Service members are encouraged to participate in Transition GPS as resources and capacity allow. Participating spouses may have their attendance recorded in accordance with the privacy and information collection mandates and requirements of appendix I to part 88 and 32 CFR part 310.
(vi) Spouses or designated caregivers completing Pre-separation or Transition Counseling (using DD Forms 2648 or 2648-1) on behalf of an eligible recovering Service member will provide their Social Security Number for data collection purposes in accordance with this paragraph,10 U.S.C. 1142, DoD Instruction 1342.28 32 CFR part 310 and 14 U.S.C. 5033.
(d) Transition GPS Priority of Service. The following is the descending order of priority for participation in Transition GPS:
(1) Eligible Service members identified as part of the targeted population, as defined in § 88.3 of this part.
(2) Eligible Service members closest to their dates of separation, retirement, or release from active duty.
(3) Eligible Service members returning from overseas or assigned to remote or isolated and geographically dispersed locations.
(4) All other eligible Service members that do not fall into the categories addressed in paragraphs (a) through (c) of this section.
(5) Eligible Service members who have attended any previous Transition GPS component and who want to repeat a component, as resources and capacity allow.
(6) Spouses of eligible Service members, based on statute and policy, as resources and capacity allow.
(e) Transition GPS participation. All eligible Service members must participate in Transition GPS and must meet the Common CRS and the specific CRS commensurate with their personal higher education or career technical training objectives before separation, retirement, or release from active duty. This will be reflected by the discharge date recorded on the DD Form 214.
Pt. 88, App. A

Appendix A to Part 88—Career Readiness Standards
(a) The CRS are defined as a set of common and specific activities and associated relevant deliverables (documentation within the last 12 months) that, when achieved, the Service member will be able to demonstrate that he or she is prepared to transition to effectively and pursue their personal post-separation higher education, career technical training, and civilian employment goals. General and flag officers are exempt from CRS, completion of the ITP, ITP Checklist, and Capstone.
(b) The CRS are tangible measures of a Service member's preparedness for higher education or direct entry into a civilian career. The tangible measures consist of:
(1) Common CRS. All eligible Service members will show documented evidence that they have:
(i) Completed the TVPO standardized ITP. The ITP must document the individual's personal employment; higher education; career technical training; or entrepreneurship goals, actions, and milestones ;
(ii) Completed the TVPO standardized 12-month post-separation budget;
(iii) Registered for VABenefits online account;
(iv) Completed the Continuum of Military Service Opportunity counseling (AC only);
(v) Evaluated the transferability of military skills to the civilian workforce and completed the TVPO standardized gap analysis provided during the MOC crosswalk;
(vi) Identified requirements and eligibility for certification, licensure, and apprenticeship in the Service member's desired potential career field;
(vii) Completed a standardized individual assessment tool, as determined by TVPO or the Military Departments, to identify personal interests and leanings that will enable informed decision-making regarding career selection;
(viii) Received a DOL Gold Card, as defined in § 88.3, for DOL American Job Centers; and
(ix) Completed a job application package, received a job offer letter, or provided proof of future employment. The job application package must include the Service member's private or public sector resume, personal and professional references, and at least two submitted job applications.
(2) Accessing Higher Education and Career Technical Training CRS. Eligible Service members seeking higher education or career technical training when they depart from military service will show documented evidence that they have:
(i) Completed a standardized individual assessment tool, selected by the Military Departments, to assess aptitudes, interests, strengths, or skills used to inform a Service member's decisions about selecting higher education and career technical training toward a desired future career field;
(ii) Completed a comparison of higher education or career technical training institution options;
(iii) Completed an application or received acceptance letter from a higher education or career technical training institution and
(iv) Confirmed one-on-one counseling with a higher education or career technical training institution advisor via telephone, email, or letter.
Pt. 88, App. B

Appendix B to Part 88—MLC TAP
(a) Key Touch Points. (1) Key touch points of the MLC TAP are reflected in the individual Military Service's plans and will include, at a minimum:
(i) First permanent duty station for AC personnel or first home station for RC personnel during initial drilling weekends;
(ii) Reenlistment;
(iii) Promotion;
(iv) Deployment and redeployment or mobilization or activation; demobilization or deactivation;
(v) Change of duty station;
(vi) Major life events (e.g., change in family status, change in Military Occupational Specialty, Navy Rating or Air Force Specialty Code); and
(vii) Retirement, separation or release from active duty.
(2) Transition GPS services may be made available to ineligible RC members during the MLC TAP as resources and capacity allow.
(b) MLC TAP Timeline. (1) The MLC TAP begins at the first permanent duty station or home station, continues throughout the military career of an eligible Service member, and culminates at Capstone. It includes the development of the IDP. Throughout the MLC TAP, Service members will be trained, educated, and postured to become career-ready upon separation from military service by completing the Transition GPS curriculum to meet the CRS. On commencing the transition process, the IDP will migrate into the ITP. The MLC TAP will include a Capstone.
(2) Before participating in Pre-separation or Transition Counseling, eligible Service members will complete a standardized individual assessment tool, as determined by TVPO or the Military Departments, to identify personal interests and leanings that will enable informed decision-making regarding career selection.
(3) Before participating in the Transition GPS Core Curricula, eligible Service members will complete a standardized individual assessment tool, selected by the Military Departments or TVPO, to assess aptitudes, interests, strengths, or skills used to inform a Service member's decisions about selecting higher education and career technical training toward a desired future career field.
(4) Eligible RC component Service members, on completion of two or more mobilizations, must have a relevant standardized individual assessment.
Pt. 88, App. C

Appendix C to Part 88—Pre-Separation or Transition Counseling
(a) Pre-Separation or Transition Counseling. Mandatory counseling is provided to eligible Service members by TAP staff or command career counselors to inform members of services, benefits, curricula, assessments, CRS deliverables, and ITP during and after their separation, retirement, or release from active duty.
(1) An appropriate legal representative or ethics official will brief eligible Service members on ethics pursuant to DoD 5500.07-R, to ensure they understand information on post government (military) employment counseling (restrictions on employment, imposed by statute and regulation). These briefings shall be conducted by the Military Services as appropriate.
(2) Eligible Service members will receive information from a career counselor or transition staff member on how to access and use the DD Form 2586, “Verification of Military Experience and Training.”
(3) Eligible Service members who are voluntarily or involuntarily separated under any program initiated by a DoD instruction or directive, Congressional directive, Presidential executive order, or Military Department regulation, in order to ensure good order and discipline, shape the force, or draw down or realign forces, will be briefed by a career counselor or transition staff member on any special entitlements or benefits associated with these programs.
(4) Eligible Service members retained on active duty past their enlistment or reenlistment or contracts for purposes of mission essentiality, deployment continuity, or operational requirements, as determined by the Secretary concerned, will be briefed by a career counselor or transition staff member on any entitlements and benefits incurred during involuntary retention actions.
(5) Eligible Services members will be counseled and provided information or referrals, as requested, on all items listed on DD Forms 2648 or 2648-1 by the transition staff or command career counselors.
(b) Pre-Separation or Transition Counseling Timeline. Pursuant to 10 U.S.C. 1142, Pre-separation or Transition Counseling:
(1) For retirement purposes, will begin as soon as possible during the 24-month period preceding an anticipated retirement date but no later than 90 days before retirement; or
(2) For reasons other than retirement, will begin as soon as possible during the 12-month period preceding the anticipated date of separation but no later than 90 days before separation, retirement, or release from active duty; or.
(3) Will begin as soon as possible within the remaining period of service when:
(i) A retirement or other separation is unanticipated, and there are 90 or fewer days before separation, retirement, or release from active duty; or,
(ii) An eligible RC member is being demobilized or deactivated from active duty under circumstances in which operational requirements, as determined by the Secretary concerned, make the 90-day requirement unfeasible.
(4) Will not be provided to Service members who are discharged or released before completing their first 180 continuous days or more on active duty, as defined by 10 U.S.C. 1142. This limitation does not apply in the case of Service members who retire or separate for a disability.
(c) Involuntary Separations. Eligible Service members, and their dependents, undergoing involuntary separation from active duty as defined in 10 U.S.C. 1141 and in accordance with DoD Instruction 1332.30 and DoD Instruction 1332.14, will be made aware that they are entitled to:
(1) Use of commissary and exchange stores during the two-year period starting on the date of involuntary separation, pursuant to 10 U.S.C. 1146;
(2) Transitional medical and dental health care that will be available for 180 days beginning on the first day after the date of involuntary separation, pursuant to 10 U.S.C. 1145;
(3) Extended use of military family housing, subject to overseas Status of Forces Agreements, for up to 180 days after separation on a space-available basis and potential rental charges, pursuant to 10 U.S.C. 1147, the Secretary, shall require a reasonable rental charge for the continued use of military family housing under paragraph (a) of this appendix, except that such Secretary may waive all or any portion of such charge in any case of hardship;
(4) Overseas relocation assistance, including computerized job relocation assistance and job search information, pursuant to 10 U.S.C. 1148;
(5) Preference in hiring by non-appropriated fund instrumentalities, pursuant to 10 U.S.C. 1143; and
(6) Excess leave for a period not in excess of 30 days or permissive temporary duty for a period not in excess of 10 days for the purpose of carrying out necessary relocation activities, pursuant to 10 U.S.C. 1149.
(d) Pre-Separation or Transition Counseling Checklist (DD Forms 2648 or 2648-1). (1) The DD Form 2648 and DD Form 2648-1 will be used by eligible Service members to record Pre-separation or Transition Counseling.
(2) In accordance with 32 CFR part 310, privacy information contained within these forms will be maintained based on the System of Records Notification pertaining to these forms.
(3) All items on the applicable DD Forms 2648 or 2648-1 will be addressed during Pre-separation or Transition Counseling.
(4) Pre-separation or Transition Counseling checklist data will be submitted electronically to DMDC through the DMDC web-based service or TVPO-approved systems.
Pt. 88, App. D

Appendix D to Part 88—IDP and ITP
(a) IDP. (1) Eligible Service members will initiate an IDP in accordance with Military Department regulations and procedures.
(2) Eligible Service members will document on the IDP the actions they must take to achieve their military and post-transition career goals and meet the CRS before separation, retirement, or release from active duty.
(3) Commanders, or commanders' designees, will ensure eligible Service members develop, update, and maintain the IDP at key touch points throughout the MLC TAP, in accordance with Military Department regulations and procedures.
(4) The IDP should be initiated in accordance with Military Departments regulations, but no later than 180 days after arrival at the first permanent active duty station for AC members or first home station for RC members during their initial drilling weekends.
(5) On the eligible Service member's decision to separate or retire or on notification of involuntary separation, the IDP will migrate into the ITP.
(b) ITP. (1) Service members will be introduced to the requirement of developing an ITP from their IDP during Pre-separation or Transition Counseling.
(2) The ITP is a step-by-step plan derived from the eligible Service member's IDP.
(3) Eligible Service members are required to document their post-military personal and professional goals and objectives on the ITP.
(4) The ITP is an evolving document that is reviewed, modified, and verified throughout transition preparation.
(5) ITP responses serve as potential triggers for further action by the eligible Service member to connect to the appropriate interagency party or subject matter expert for assistance.
(6) During the ITP review and verification processes, eligible Service members must produce evidence of the deliverables that meet the CRS before separation, retirement, or release from active duty.
(c) ITP Checklist (DD Form 2958). (1) The ITP Checklist, in conjunction with the ITP, will be used by the commander, or commander's designee, to verify that the eligible Service member has or has not met the CRS.
(2) If it is determined that the CRS or a viable ITP have not been achieved, then the ITP checklist will document confirmation of a warm handover to partner agencies and or other appropriate agencies.
(3) During the ITP review and verification processes, eligible Service members must produce deliverables to serve as evidence that they are prepared to meet the CRS before separation, retirement, or release from active duty.
(4) ITP Checklist data will be submitted electronically to DMDC through the DMDC web-based service or a TVPO-approved system.
(5) TAP staff will explain to eligible Service members during Pre-separation or Transition Counseling how the ITP and Pre-separation or Transition Counseling checklists work together to provide the Service member with a plan for meeting the CRS.
Pt. 88, App. E

Appendix E to Part 88—Transition GPS (Goals, Plans, Success)
(a) Transition GPS. (1) Transition GPS is the package of TAP resources and services that will be used as a vehicle to enable eligible Service members to attain the CRS throughout the MLC TAP.
(2) Changes, as needed, to the standardized Transition GPS brick-and-mortar or virtual curricula, services, and learning objectives must be approved by TVPO for implementation across all Military Departments.
(3) The following Transition GPS components require mandatory participation unless Service members are exempt:
(i) Pre-separation or Transition Counseling is mandatory. See appendix C to part 88 for Pre-separation or Transition Counseling requirements.
(ii) VA Benefits Briefings I and II are mandatory.
(iii) Capstone is mandatory. See appendix H to part 88 for Capstone requirements.
(4) Participation in the DOLEW is mandatory, unless exempt. See appendix F to part 88 for specific DOLEW exemptions.
(5) Except for the components designated as mandatory, participation in Transition GPS tracks are based on proof of the Service member's ability to meet the associated CRS.
(6) Transition GPS consist of these components:
(i) Pre-separation or Transition Counseling. Pre-separation or Transition Counseling is mandatory for all eligible Service members no later than 90 days before separation, in accordance with 10 U.S.C. 1142. See appendix C to part 88 for Pre-separation or Transition Counseling requirements.
(ii) Transition GPS Core Curricula. Except for those subcomponents designated as mandatory, completion of the following subcomponents is determined based on the eligible Service member's ability to attain the CRS. The curricula consists of thefollowing subcomponents (defined in § 88.3):
(A) Transition Overview;
(B) Resilient Transitions;
(C) MOC Crosswalk;
(D) Personal Financial Planning for Transition;
(E) VA Benefits Briefings I and II, to be conducted pursuant to 10 U.S.C. 1142. Completion of this subcomponent is mandatory;
(F) DOLEW, to be conducted pursuant to 10 U.S.C. 1144. Completion of this subcomponent is mandatory, unless exempt. See appendix F to part 88 for DOLEW exemption eligibility; and
(G) ITP Review.
(iii) Transition GPS Tracks. (A) Eligible Service members may choose to participate in one or more, if resources, capability, and operational requirements allow of the Transition GPS tracks based on their interests and ability to meet the CRS.
(B) The outcome of completed tracks will be documented in the Service member's ITP and on the ITP checklist, as applicable.
(C) Eligible Service members may participate in one or more, if resource availability and operational requirements allow, of the following Transition GPS tracks:
(1) Accessing Higher Education Track. Eligible Service members pursuing higher education will receive guidance to prepare for the application process. On completing the Accessing Higher Education Track, eligible Service members will be prepared to:
(i) Complete an application to an accredited academic institution offering a sound program of study towards the Service member's career aspirations within the member's financial means.
(ii) Schedule a session with a counselor from an academic institution.
(iii) Meet individually with education counselors, as needed.
(2) Career Technical Training Track. Eligible Service members pursuing career technical training will receive guidance and help in selecting schools and technical fields. On completion of the Career Technical Training Track, eligible Service members will be prepared to:
(i) Complete an application to an accredited career technical training institution offering a sound program of study towards the Service member's career aspirations within the member's financial means.
(ii) Schedule a session with a counselor from a career technical training institution.
(iii) Meet individually with career technical training experts and VA vocational education counselors, as applicable.
(3) Entrepreneurship Track. Eligible Service members pursuing business ownership or self-employment in the private or non-profit sectors will receive information related to the benefits and challenges of entrepreneurship, the steps required to pursue business ownership and evaluate the feasibility of a business concept, and the SBA and other public and private sector resources available for further technical assistance and access to capital and contracting opportunities. Upon completing of Entrepreneurship Track, eligible Service members will have developed the initial components of a business feasibility plan at no cost to the participant.
(i) Eligible Service members will be given the opportunity to enroll in an optional eight-week online entrepreneurship course instructed by professors and practitioners.
(ii) Eligible Service members will be afforded the opportunity to connect with a small business owner as a mentor to assist with the business start-up process. A warm handover, as needed, will be coordinated through procedures established by the SBA.
(iv) Capstone. (A) Completion of Capstone is mandatory.
(B) Capstone provides an opportunity for eligible Service members to have attainment of the CRS verified by the commander or his or her designee.
(C) At Capstone, if the Service member cannot meet the CRS before transition, the commander or his or her designee confirms and documents a warm handover to appropriate interagency parties, or local resources. If in the judgement of the Commander or commander's designee, it is determined that the Service member does not meet CRS or does not have a viable ITP, then he or she must confirm that a warm handover takes place with the appropriate interagency parties, as needed.
(b) Command responsibility. (1) Commanders have oversight responsibility for Service members achieving CRS via Transition GPS. The oversight responsibility may not be delegated. Transition GPS may not be delegated except as stated in paragraph (b)(2) of this appendix.
(2) Commanders will:
(i) Ensure eligible Service members are afforded the opportunity, resources, and time to meet the CRS before separation, retirement, or release from active duty.
(ii) Be fully engaged throughout the MLC TAP in enabling Service members the opportunity, resources, and time to meet and attain the CRS and comply with statutory mandates before separation, retirement, or release from active duty.
(iii) Verify that eligible Service members have met the CRS and have a viable ITP during Capstone and ensure that members who did not meet the CRS or do not have a viable ITP receive a warm handover to the appropriate interagency parties or local resources.
(iv) Ensure Transition GPS components are delivered at key touch points throughout the MLC TAP.
(v) Ensure development and maintenance of the IDP throughout the MLC TAP and afford Service members the opportunity, resources and time to meet the CRS.
(c) Transition GPS timeline. In anticipation of the discharge or release from active duty of an eligible Service member, and during key touch points in the MLC TAP, the following timeline is applicable:
(1) In the case of an anticipated retirement, the components of Transition GPS not yet completed will begin as soon as possible during the 24-month period before the retirement date;
(2) In the case of a separation other than a retirement, the components of Transition GPS not yet completed will begin as soon as possible during the 12-month period before the anticipated discharge date;
(3) The incomplete components of Transition GPS will begin no later than 90 days before separation, retirement, or release from active duty except in those cases where statute determines specific timelines;
(4) In the case that there is a retirement or an unanticipated separation, and there are 89 days or fewer before discharge or release from active duty, the components of Transition GPS not yet completed will begin as soon as possible within the remaining period of service or the effective date on the DD 214, and the Service member must meet all requirements; and
(5) Transition GPS will begin as soon as possible within the remaining period of service when:
(i) An eligible RC member is being released from active duty under circumstances in which operational requirements, as determined by the Secretary concerned, make the prescribed timeline unfeasible; or
(ii) There are 90 or fewer days before the anticipated release from active duty.
Pt. 88, App. F

Appendix F to Part 88—DOLEW Exemptions
(a) The only exemptions to eligible Service member participation in the DOLEW portion of the Transition GPS Core Curricula are:
(1) Eligible Service members retiring after 20 or more years of qualifying military service.
(2) Eligible Service members who, after serving their first 180 continuous days or more on active duty, pursuant to 10 U.S.C. 1142 meet at least one of the following criteria:
(i) Are able to provide documented evidence of civilian employment; or.
(ii) Are able to provide documented acceptance into an accredited career technical training, undergraduate, or graduate degree program; or.
(iii) Have specialized skills which, due to unavoidable circumstances, are needed to support a unit on orders scheduled to deploy within 60 days. The first commander in the eligible Service members' chain of command, with authority pursuant to 10 U.S.C. chapter 47, also known and referred to as the Uniform Code of Military Justice (UCMJ), must certify on the DD Form 2958 any such request for exemption from the DOLEW. A make-up plan must accompany the postponement certification.
(iv) Eligible recovering Service members who are separating, retiring, or being released from active duty who are enrolled in the Education and Employment Initiative, or similar transition program designed to secure employment, higher education, or career technical training post-separation. The standardized terms and definitions for wounded, ill, and injured are outlined in the DoD/VA Wounded, Ill, and Injured Senior Oversight Committee Memorandum, “Implementation of Wounded, Ill, and Injured Related Standard Definitions” (available at http://www.health.mil/Policies/2008/12/10/Implementation-of-WII-Standard-Definitions).-.
(b) TAP staff will document on the DD Form 2958 the decision of eligible Service members who qualify for an exemption and elect not to participate in the DOLEW.
(c) Eligible RC Service members who have previously participated in the DOLEW may request an exemption.
(d) Eligible Service members who qualify for an exemption may still elect to participate in the DOLEW.
Pt. 88, App. G

Appendix G to Part 88—Virtual Curricula
(a) DoD Components and Military Departments, in conjunction with JKO, DHS, VA, DOL, OPM, SBA and other appropriate interagency parties, must leverage the capabilities of web-based adult learning to ensure the transitioning force complies with statutory mandates to meet the CRS before separation, retirement, or release from active duty.
(b) As provided by TVPO or JKO, the virtual curricula provides an alternative delivery of Transition GPS to enable compliance with statutory mandates and attainment of the CRS as set by this Appendix. Those who can use the virtual curricula include:
(1) Eligible Service members whose duty locations are in remote or isolated geographic areas.
(2) Eligible Service members who are undergoing short-notice separation, as defined in the § 88.3 and pursuant to 10 U.S.C. chapter 59, and cannot access brick-and-mortar curricula in a timely manner.
(3) Spouses of eligible Service members, as resources and capacity allow.
(c) A Virtual Curricula must:
(1) Be easily accessible by eligible Service members through JKO;
(2) Be approved in design, look, color, etc., by the Director of TVPO in consultation with the Military Departments and partner agencies;
(3) Include interactive technology tools to monitor Service member participation in the training and knowledge gained;
(4) Include module materials and activities that engage participants, support diverse learning styles, foster frequent interaction, and encourage meaningful communication and collaboration between the participants and instructors;
(5) Include a data-capture feature or interface with the TVPO and DMDC-provided web service or process to ensure Service members receive credit for successfully completing the curricula;
(6) Ensure Virtual Curricula is compliant with section 508 of the Rehabilitation Act of 1973 as amended, 29 U.S.C 792.
(d) The virtual curricula's educational effectiveness and teaching and learning process will be assessed through an evaluation process that may include Service members' knowledge gain, retention, and satisfaction. TVPO will evaluate assessments in collaboration with the Military Departments and partner agencies.
(e) Intended learning outcomes will be reviewed regularly to ensure clarity, utility, and appropriateness.
(f) Documented procedures will be used to assure that security of personally identifiable information (PII) is protected in the conduct of assessments and evaluations and in the dissemination of results in accordance with 32 CFR part 310 and 14 U.S.C. 5033.
(g) Changes to the DoD virtual curricula will be approved by TVPO for implementation across all Military Departments.
Pt. 88, App. H

Appendix H to Part 88—Capstone
(a) Review and verification. Capstone is a two-stage process. Stage one is an in-depth review of the Service members ITP and CRS, which is conducted by TAP staff. Stage two consists of the Commander or Commanders' designee verifying that the Service member has a viable ITP and has met the CRS. If the Commander or Commanders' designee determines that the Service member does not meet CRS or does not have a viable ITP, then he or she must confirm that a warm handover takes place with the appropriate interagency parties, as needed. The review and verification processes may or may not occur simultaneously.
(1) Stage One—Capstone review. During the Capstone review, a Service member's ITP, CRS deliverables pertaining to the member's personal goals and ITP Checklist will be checked to identify shortfalls and determine if the member is at risk of not meeting the CRS before separation, retirement, or release from active duty.
(i) The review will be conducted by:
(A) A TAP staff member or career counselor for eligible Service members in the rank of O-5 or below.
(B) The first Commander with UCMJ authority in the chain of command, or his or her designee, for eligible Service members in the rank of O-6 and above.
(ii) If during the review a Service member is determined to be incapable of meeting the CRS or has gaps in the ITP, the TAP staff will introduce the member to the necessary resources to assist him or her in becoming career ready. Resources include remedial skills building via the Transition GPS curricula, one-on-one assistance from TAP staff, and assistance from installation or local community resources.
(iii) Service members will document the point of contact name, phone number, and email address of remedial resources on the ITP.
(2) Stage Two—Capstone verification. The eligible Service member's Commander or his or her designee will review the ITP, CRS deliverables, and DD Form 2958 during Capstone verification to determine whether the requirements to complete the CRS have been attained.
(i) In cases where Service members are still not able to meet the CRS during Capstone verification, the Commander or his or her designee will initiate a warm handover to appropriate partner agencies or local resources for post-separation support in the community where the Service member plans to relocate; and
(ii) The Commander or his or her designee will confirm the warm handover has occurred by documenting it on the DD Form 2958.
(3) Completion of Capstone. Service members are to be counseled on their ITPs during Capstone. If they do not have a viable ITP or meet CRS, they will be referred to further training and services, as needed; and connected, as needed, to appropriate interagency parties and local resources that provide continued benefits, services, and support when they become veterans.
(b) Timeline. (1) Capstone will be completed for each eligible Service member in accordance with the timeline prescribed within this appendix to verify the member has met the CRS before separation, retirement, or release from active duty.
(2) Capstone will be completed no later than 90 days preceding an anticipated separation, retirement, or release from active duty for eligible Service members.
(3) Exceptions to this timeline are:
(i) In the case of eligible AC Service members with an unanticipated separation of 89 days or fewer before discharge or release from active duty, Capstone will begin no later than the date of separation as reflected on the DD Form 214.
(ii) In the case of eligible RC members release from active duty, in which operational requirements, as determined by the Secretary concerned, make the prescribed timeline unfeasible, Capstone will begin no later than the date of release from active duty as reflected on the DD Form 214.
Pt. 88, App. I

Appendix I to Part 88—Data, Information Collection, Data Sharing, and Management Portfolio
(a) Data. Individual eligible Service member Transition GPS data and attendance will be stored in the DMDC-provided Web service capabilities for:
(1) DD Forms 2648 or 2648-1;
(2) Transition Overview;
(3) Resilient Transitions;
(4) MOC Crosswalk;
(5) Personal Financial Planning for Transition;
(6) VA Benefits Briefings I and II;
(7) DOLEW;
(8) ITP Review;
(9) Tracks;
(10) ITP Checklist; and
(11) Participant Assessment.
(b) Data sharing. (1) Specific information regarding data collection, data sharing, assessments, and evaluations can be found in the MOU among DOD, VA, DOL, ED, DHS, SBA, and OPM, “Transition Assistance Program for Separating Service Members”. This reference serves as the basis of an information sharing agreement between the interagency parties and the DoD.
(2) TVPO will oversee and coordinate sharing requirements and authorities for DoD TAP data with interagency parties, as applicable.
(3) DMDC will process, store, host, and maintain data and coordinate data sharing on request that meets established DoD information assurance standards in accordance with this appendix and 32 CFR part 310.
(4) Each organization requesting TAP data sharing will prepare a business case to support the purpose and type of data requested from other parties.
(i) The business case will clearly articulate how the requested data enables the parties to meet their mission and better serve Service members and veterans.
(ii) The business case will be submitted to TVPO for review and approval.
(iii) Approved business cases will be submitted to DMDC to set up business processes and cost sharing arrangements.
(5) To ensure protection of PII and privacy:
(i) The DoD Components and interagency parties will share Service member information in accordance with 32 CFR part 310 and requirements for collecting, sharing, storing, and maintaining PII. They will meet the need, if required, to establish a system of records notification; and
(ii) All official procedures for safeguarding and retaining PII will be followed as established in 32 CFR part 310.
(c) Management Portfolio. (1) DoD TAP data and information requirements governed by this appendix will be reviewed by TVPO for alignment to the investment and IT portfolios to ensure no duplication of capability or system redundancies occur during requirement development or IT acquisition.
(2) TAP data will be shared in a standard form for the enterprise to facilitate compliance verification and to measure effectiveness of the program.
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 to Part 100—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:
78 FR 20445, Apr. 5, 2013, 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 found at http://www.dtic.mil/whs/directives/corres/pdf/649502p.pdf;
(5) DoDD 6400.1, “Family Advocacy Program (FAP),” August 23, 2004 found at http://www.dtic.mil/whs/directives/corres/pdf/640001p.pdf;
(6) DoD Instruction 5025.01, “DoD Directives Program,” September 26, 2012 found at http://www.dtic.mil/whs/directives/corres/pdf/502512p.pdf;
(7) DoD Instruction 3020.41, “Operational Contract Support (OCS),” December 20, 2011 found at http://www.dtic.mil/whs/directives/corres/pdf/302041p.pdf;
(8) U.S. Department of Defense, “Manual for Courts-Martial,” 2008;
(9) DoDD 7050.06, “Military Whistleblower Protection,” July 23, 2007 found at http://www.dtic.mil/whs/directives/corres/pdf/705006p.pdf;
(10) 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;
(11) DoDD 5400.11, “DoD Privacy Program,” May 8, 2007 found at http://www.dtic.mil/whs/directives/corres/pdf/540011p.pdf;
(12) DoD 6025.18-R, “DoD Health Information Privacy Regulation,” January 24, 2003 found at http://www.dtic.mil/whs/directives/corres/pdf/602518r.pdf;
(13) DoD 8910.1-M, “DoD Procedures for Management of Information Requirements,” June 30, 1998 found at http://www.dtic.mil/whs/directives/corres/pdf/891001m.pdf;
(14) DoDD 5124.02, “Under Secretary of Defense for Personnel and Readiness (USD(P&R)),” June 23, 2008 found at http://www.dtic.mil/whs/directives/corres/pdf/512402p.pdf;
(15) U.S. Department of Defense paper, “The Department of Defense Sexual Assault Prevention Strategy,” September 30, 2008;
(16) Section 577 of Public Law 108-375, “Ronald Reagan National Defense Authorization Act for Fiscal Year 2005,” October 28, 2004;
(17) Sections 561, 562, and 563 of Public Law 110-417, “The Duncan Hunter National Defense Authorization Act for Fiscal Year 2009,” October 14, 2008;
(18) Section 567(c) of Public Law 111-84, “The National Defense Authorization Act for Fiscal Year 2010,” October 28, 2009;
(19) Joint Publication 1-02, “Department of Defense Dictionary of Military and Associated Terms,” current edition found at http://www.dtic.mil/doctrine/new_pubs/jp1_02.pdf; and
(20) DoD Instruction 5545.02, “DoD Policy for Congressional Authorization and Appropriations Reporting Requirement,” December 19, 2008 found at http://www.dtic.mil/whs/directives/corres/pdf/554502p.pdf.
(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. The installation SARC and the installation family advocacy program (FAP) and domestic violence intervention and prevention staff shall direct coordination when a sexual assault occurs within a domestic relationship or involves child abuse.
(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. The term includes a broad category of sexual offenses consisting of the following specific UCMJ offenses: rape, sexual assault, aggravated sexual contact, abusive sexual contact, forcible sodomy (forced oral or anal sex) 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 legal 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 in the development of investigative policy in support of sexual assault prevention and response.
(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 an 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 FOR SERVICE MEMBERS, FORMER SERVICE MEMBERS AND APPLICANTS OF THE UNIFORMED SERVICES
Sec.
104.1
Purpose.
104.2
Applicability.
104.3
Definitions.
104.4
Policy.
104.5
Responsibilities.
104.6
Procedures.

Authority:
38 U.S.C. chapter 43, specifically 38 U.S.C. 4312(b) and 38 U.S.C. 4333.

Source:
81 FR 10494, Mar. 1, 2016, unless otherwise noted.
§ 104.1
Purpose.
The purpose of this part is to establish policy, assign responsibilities, and promulgate procedures for informing current and former uniformed Service members of the Department of Defense (DoD) and individuals who apply for uniformed service with DoD of their rights, benefits, and obligations under USERRA and its implementing regulations at 20 CFR part 1002 (applicable to States, local governments, and private employers) and 5 CFR part 353 (applicable to the Federal Government). Additionally, this part establishes procedures for DOD components' responsibilities related to fulfilling their USERRA obligations
§ 104.2
Applicability.
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 by agreement with that Department), 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 within the DoD (referred to collectively in this part as the “DoD Components”). This part does not apply to the National Disaster Medical Response System or with the Commissioned Corps of the Public Health Service.
§ 104.3
Definitions.
Unless otherwise noted, the following terms and their definitions are for the purposes of this part.
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 and 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.
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.
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 will include all commissioned officers, warrant officers, and non-commissioned officers authorized by the Secretary concerned to act in this capacity.
Uniformed services. The Armed Forces, the Army National Guard and the Air National Guard when engaged in active duty for training, inactive duty training, or full-time National Guard duty, and any other category of persons designated by the President in time of war or National emergency. (See 38 U.S.C. chapter 4303.) The National Disaster Medical Response System and the Commissioned Corps of the Public Health Service are not governed by this Rule and are therefore excluded from its definition of uniformed services. However, their Service members and applicable employees remain protected under Title 38 U.S.C. Chapter 43 and its definition of Uniformed Services.
§ 104.4
Policy.
It is DoD policy to support uniformed service by taking appropriate actions to inform and assist uniformed Service members and former Service members and individuals who apply for uniformed service of their rights, benefits, and obligations in accordance with 38 U.S.C. chapter 43.
§ 104.5
Responsibilities.
(a) The Under Secretary of Defense for Personnel and Readiness (USD(P&R)):
(1) In addition to the responsibilities in paragraph (d) of this section, the USD(P&R) has overall responsibility for DoD policy pertaining to total force management in accordance with DoD Directive 5124.02.
(2) Develops and oversees the implementation of DoD policy pertaining to civilian employment and reemployment rights, benefits, and obligations.
(b) Under the authority, direction, and control of USD(P&R), the Assistant Secretary of Defense for Reserve Affairs (ASD(RA)), with input from the Department of Labor's Veterans Employment and Training Service (DOL-VETS) and the Office of Personnel Management (OPM), advises the USD(P&R) on policies and procedures to promote and inform uniformed Service members and employers on civilian employment and reemployment rights, benefits and obligations in accordance with USERRA.
(c) Under the authority, direction, and control of the USD(P&R), the Director, Department of Defense Human Resources Activity (DoDHRA), oversees the Employer Support of the Guard and Reserve (ESGR).
(d) The OSD and DoD Component heads develop and implement procedures within their respective Components that are appropriate and in accordance with public law and DoD policy pertaining to providing information to persons entitled to rights, benefits, and obligations afforded under USERRA at 38 U.S.C. Chapter 43.
§ 104.6
Procedures.
(a) Service Member Information and Assistance. (1) The Heads of the DoD Components and the Commandant of the Coast Guard will:
(i) Inform the personnel in paragraph (a)(1)(i)(A) and (B) of this section of their general employment and reemployment rights, benefits, and obligations as described in USERRA.
(A) Civilian employees who apply for uniformed service.
(B) Civilian employees who are current members of the uniformed services who perform or participate on a voluntary or involuntary basis in active duty, inactive duty, or full-time National Guard duty.
(ii) Provide subject-matter experts to serve as points of contact (POCs) to assist applicants for and members of the uniformed service in matters related to employment and reemployment rights, benefits, and obligations.
(iii) Provide initial and annual refresher training for all Human Resources officials, supervisors, employees, and uniformed Service members.
(2) The Secretaries of the Military Departments and the Commandant of the Coast Guard will:
(i) Provide an annual review of USERRA information to employees of the uniformed services.
(ii) Upon completion of a period of active duty extending beyond 30 days, and before separation from active duty, advise Active and Reserve Component Service members covered by USERRA of their employment and reemployment rights, benefits, and obligations as provided under USERRA.
(iii) Advise members of the uniformed services that as employees they must fulfill certain obligations in order to achieve eligibility for reemployment rights as specified in USERRA. At a minimum, advice given will include the following USERRA notification and reporting requirements for returning to civilian employment:
(A) Advance Notification of Military Service. To be eligible for reemployment rights as specified in USERRA, employees must provide advance notice of absence due to uniformed service to their civilian employers except when giving such notice is prevented by military necessity, or otherwise impossible or unreasonable under all the circumstances.
(1) DoD recommends persons applying for and/or performing uniformed service to provide advance notice in writing to their civilian employers of pending absence.
(2) Although oral notice is allowed pursuant to USERRA, written notice of pending uniformed service provides documentary evidence that this basic prerequisite to retaining reemployment rights was fulfilled by the Service member and serves to avoid unnecessary disputes.
(3) Regardless of the means of providing advance notice, whether oral or written, it should be provided as early as possible. The DoD recommends that advance notice to civilian employers be provided at least 30 days prior to departure for uniformed service when feasible, based upon the time the Service member receives confirmation of upcoming uniformed service duty. While the notice may be informal and does not need to follow any particular format, some acceptable methods of providing notice include:
(i) Giving notice on behalf of the employee by an appropriate officer in the uniformed Service member's chain of command. Written notice is preferred.
(ii) Providing the employer a copy of the unit's annual training schedule for the duty served on those dates, or by providing the employer in advance with a signed standardized letter with blanks in which the Service member has filled in the appropriate military duty dates.
(iii) Providing advance notification letters. Sample letters are provided by the ESGR, DoD's primary office for all matters concerning employer support of the National Guard and Reserve. ESGR information is provided in § 104.6(c) of this part.
(B) Reemployment Reporting Requirements. As described in USERRA, when notifying employers of their intent to return to work after completing uniformed service, employees must meet specific time-lines. Depending on the length of service, these time-lines span from less than 24 hours up to 90 days after completing uniformed service.
(1) Sample return notification letters are provided by ESGR.
(2) When the period of service exceeds 30 days from civilian employment, the Service member is required to provide documentation of service performed if requested by the employer.
(i) As a matter of policy the Military Departments strongly recommend Commanders and Service members provide verification of uniformed service absence to civilian employers regardless of the duration of service upon request. Failure of an employee to comply with this recommendation, does not, affect the legal responsibilities of the employer under USERRA including prompt reemployment.
(ii) Types of documentation satisfying this requirement are detailed in 20 CFR part 1002.
(C) Five-Year Service Limit. USERRA imposes a five-year cumulative limit on the absences from each place of civilian employment, due to uniformed service, except that any such period of service shall not include any service excluded pursuant to 38 U.S.C. 4312(c).
(D) Character of Service. Service members must not have been separated from service under a disqualifying discharge.
(iv) Determine and certify in writing, periods of service exempt from USERRA's five-year cumulative limit. Established exempt periods must be reviewed and recertified via policy memorandum, at a minimum, every two years. Failure to comply with this administrative requirement does not affect the continued validity of exempt periods certified in a writing that is more than two years old.
(A) Determine and certify in writing those additional training requirements not already exempt from USERRA five-year cumulative service limit, that are necessary for the professional development or skill training or retraining for members of the National Guard or Reserve. When the Secretary concerned certifies those training requirements, performance of uniformed service to complete a certified training requirement is exempt from USERRA five-year cumulative service limit.
(B) Determine and certify in writing 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 officially declared by the President or Congress. Such orders with the purpose of direct or indirect support of the war or national emergency will be annotated accordingly since these periods of service are exempt from USERRA five-year cumulative service limit.
(C) Determine, and certify in writing, 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 from USERRA five-year cumulative service limit.
(1) The authority for determining what constitutes a critical mission or requirement will not be delegated below the Assistant Secretary level. The designation of a critical requirement to gain the necessary experience to qualify for specific key senior leadership positions will be used judiciously, and the necessary experience and projected key leadership positions fully documented in the determination and certification.
(2) This authority must not be used to grant exemptions to avoid USERRA five-year cumulative service limit or to extend individuals in repeated statutory tours.
(v) 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, and reflect USERRA five-year cumulative exemption status as appropriate.
(A) Order modifications will be initiated, as required, to ensure continuous active duty should the period required to complete the mission or requirement change. Order modifications will be completed, as required, to reflect qualifying five-year exemption, as applicable; or an official Statement of Service must be generated, indicating original qualifying orders as exempt under proper authority, and retained in the Service member's personnel file.
(B) Orders must indicate exemption under USERRA from the five-year cumulative service limit on uniformed service absence from employment, when applicable. Specify the statutory or Secretarial authority for those orders when such authority meets one or more of the exemptions from USERRA five-year cumulative service limit. Orders qualifying for exemption should include a status reflecting the exemption status and authority.
(vi) Document the length of a Service member's initial period of military service obligation performed on active duty.
(vii) 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.
(viii) Designate those officers 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.
(ix) 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:
(A) The inclusive dates of the initial period of military service obligation performed on active duty.
(B) 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 through no fault of the Service member.
(C) The cumulative length of all periods of active duty performed.
(D) The authority under which a Service member was ordered to active duty when such service was exempt from USERRA five-year cumulative service limit.
(E) 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.
(F) A statement indicating service requirements prevented providing a civilian employer with advance notification of pending service, when applicable.
(G) Proof that the Service member's entitlement to reemployment benefits has not been terminated because of the character of service as provided in section 4304 of USERRA.
(H) A statement that sufficient documentation verifying a particular period of service, does not exist, when appropriate.
(x) Establish a central point of contact (POC) at each Reserve Component headquarters or Reserve regional command and each National Guard State headquarters who can render assistance to:
(A) Members of the National Guard or Reserve about employment and reemployment rights, benefits, and obligations.
(B) Employers of National Guard and Reserve members about duty or training requirements arising from a member's uniformed service or service obligation.
(xi) Inform Reserve Component Service members of services provided by ESGR. ESGR's subject-matter expert POCs can render assistance with issues regarding employment and reemployment rights, benefits, and obligations under USERRA. More information about ESGR is contained in paragraph (c) of this section.
(b) Employer Information and Assistance. The Military Departments will:
(1) Provide verification of absence due to uniformed service to civilian employers upon request regardless of the duration of service-related absence.
(2) Provide verification of discharge status upon employer request.
(3) Designate a Reserve Component representative who must be either a Commander or Officer in Charge with the military authority to delay, defer, cancel, or reschedule military service. The designated Reserve Component representative will consider, unless prevented by military necessity or otherwise impossible or unreasonable under all the circumstances, written requests from civilian employers of National Guard and Reserve members to adjust the Service member's absences from civilian employment. The civilian employer must submit a written justification explaining how the National Guard and Reserve member's absence imposes adverse financial or severe operating impact to the civilian employer, and advise as to when the hardship due to the Service member's absence is anticipated to end. The designated representative has discretion to delay, defer, cancel, or rescheduled military service, so long as it does not negatively affect military operations. The designated representative may make arrangements, other than adjusting the period of absence, to accommodate such requests when it serves in the best interest of the military and is reasonable to do so. Section 104.6(b)(3) does not create any right of action against the government by any party.
(c) Agencies Providing USERRA Assistance—(1) ESGR. ESGR is a component of the DoDHRA, a DoD Field Activity under the authority, direction, and control of the USD(P&R).
(i) ESGR is the primary DoD office for all matters concerning employer support of the National Guard and Reserve, and serves as the lead proponent for USERRA matters within DoD.
(ii) ESGR informs Service members and their civilian employers regarding their rights and responsibilities governed by USERRA.
(iii) ESGR does not have enforcement authority for USERRA, but serves as a free resource for Service members and employers.
(iv) ESGR's trained ombudsmen provide neutral, informal alternative dispute mediation services between Service members and employers for issues relating to compliance with USERRA. Headquarters ESGR Ombudsman Services representatives can be contacted by calling 1-800-336-4590.
(v) ESGR's Web site (available at http://www.esgr.mil) provides local and State contact information. Additionally, the Web site provides links to multiple resources for both Service members and employers.
(2) DOL-VETS. (i) A person may file a complaint with the DOL-VETS or initiate private legal action, if alleging that an employer, including any Federal Executive Agency or the OPM, has failed or refused, or is about to fail or refuse, to comply with employment or reemployment rights and benefits under USERRA.
(ii) Using ESGR's mediation services is not a prerequisite for filing a complaint with DOL-VETS. The complaint may be filed in writing, or electronically. Instructions and the forms can be accessed at the DOL-VETS Web site (available at http://www.dol.gov/elaws/vets/userra/1010.asp).
(iii) DOL-VETS receives complaints from veterans and service members who believe their USERRA rights were violated. DOL-VETS investigates these complaints, and if the evidence supports a conclusion that a claimant's USERRA rights have been violated, will work with the employer and employee to obtain an appropriate resolution. If those efforts are unsuccessful—regardless of the outcome—the employee/claimant may request that his or her case be referred to DOJ or OSC for further review and consideration of representation in U.S. District Court or before the Merit Systems Protection Board (MSPB) as appropriate.
(3) DOJ. (i) DOJ is the agency under the Attorney General that enforces USERRA matters involving State and local government employers and private-sector employers. DOJ receives USERRA cases referred by DOL-VETS.
(ii) DOJ reviews USERRA cases to determine if representation is appropriate. In cases found to have merit, the Attorney General will commence court action on behalf of the Service member, to be prosecuted by DOJ attorneys.
(4) OSC. (i) OSC is an independent Federal agency that enforces USERRA matters involving State and local government employers and private-sector employers. OSC receives USERRA cases referred by DOL-VETS.
(ii) OSC reviews USERRA cases to determine if representation is appropriate. In cases found to have merit, OSC will initiate an action before the Merit Systems Protection Board (MSPB), also an independent, Federal agency, serving as the guardian of Federal merit systems. If OSC declines representation, the claimant may still file an appeal with the MSPB.
Pt. 105

PART 105—SEXUAL ASSAULT PREVENTION AND RESPONSE PROGRAM PROCEDURES
Sec.
105.1
Purpose.
105.2
Applicability.
105.3
Definitions.
105.4
Policy.
105.5
Responsibilities.
105.6
Procedures.
105.7
Oversight of the SAPR program.
105.8
Reporting options and Sexual Assault Reporting Procedures.
105.9
Commander and management procedures.
105.10
SARC and SAPR VA procedures.
105.11
Healthcare provider procedures.
105.12
SAFE Kit collection and preservation.
105.13
Case management for Unrestricted Reports of sexual assault.
105.14
Training requirements for DoD personnel.
105.15
Defense Sexual Assault Incident Database (DSAID).
105.16
Sexual assault annual and quarterly reporting requirements.
105.17
Sexual assault offense—investigation disposition descriptions.
105.18
Information collection requirements.

Authority:
10 U.S.C. 113; 10 U.S.C. chapter 47; and Public Laws 106-65, 108-375, 109-163, 109-364, 110-417, 111-84, 111-383, and 112-81.

Source:
78 FR 21718, Apr. 11, 2013, unless otherwise noted.
§ 105.1
Purpose
This part, in accordance with the authority in DoDD 5124.02 ^1 and 32 CFR part 103:
^1 Available: http://www.dtic.mil/whs/directives/corres/pdf/512402p.pdf.
(a) Establishes policy and implements 32 CFR part 103, assigns responsibilities, and provides guidance and procedures for the SAPR Program (see 32 CFR 103.3), can be found at www.dtic.mil/whs/directives/corres/pdf/649501p.pdf;
(b) Establishes the processes and procedures for the Sexual Assault Forensic Examination (SAFE) Kit; can be found at http://www.sapr.mil/index.php/toolkit;
(c) Establishes the multidisciplinary Case Management Group (CMG) (see § 105.3) and provides guidance on how to handle sexual assault;
(d) Establishes Sexual Assault Prevention and Response (SAPR) minimum program standards, SAPR training requirements, and SAPR requirements for the DoD Annual Report on Sexual Assault in the Military consistent with the DoD Task Force Report on Care for Victims of Sexual Assault ^2 and pursuant to DoDD 5124.02 and 32 CFR part 103, 10 U.S.C. 113, 10 U.S.C. chapter 47 (also known and hereafter referred to as the “UCMJ”), and Public Laws 106-65, 108-375, 109-163, 109-364, 110-417, 111-84, 111-383, and 112-81; and
^2 Available: http://www.dtic.mil/whs/directives/corres/pdf/512402p.pdf.
(e) Incorporates DTM 11-063, “Expedited Transfer of Military Service Members Who File Unrestricted Reports of Sexual Assault,” December 16, 2011, can be found at http://www.sapr.mil/media/pdf/policy/DTM-11-063.pdf and DTM 11-062, “Document Retention for Restricted and Unrestricted Reports of Sexual Assault,” December 16, 2011, can be found at http://www.dtic.mil/whs/directives/corres/pdf/DTM-11-062.pdf.
(f) Implements DoD policy and assigns responsibilities for the SAPR Program on prevention, response, and oversight to sexual assault according to the policies and guidance in:
(1) DoDD 5124.02, “Under Secretary of Defense for Personnel and Readiness (USD(P&R)),” June 23, 2008, can be found at http://www.dtic.mil/whs/directives/corres/pdf/512402p.pdf;
(2) 32 CFR part 103;
(3) Under Secretary of Defense for Personnel and Readiness, “Task Force Report on Care for Victims of Sexual Assault,” April 2004, can be found at http://www.sapr.mil/media/pdf/research/Task-Force-Report-for-Care-of-Victims-of-SA-2004.pdf;
(4) Sections 101(d)(3), 113, 504, 4331, chapter 47, and chapter 80 of title 10, U.S.C.;
(5) Public Law 106-65, “National Defense Authorization Act for Fiscal Year 2000,” October 5, 1999;
(6) Public Law 108-375, “Ronald Reagan National Defense Authorization Act for Fiscal Year 2005,” October 28, 2004;
(7) Public Law 109-163, “National Defense Authorization Act for Fiscal Year 2006,” January 6, 2006;
(8) Public Law 109-364, “John Warner National Defense Authorization Act for Fiscal Year 2007,” October 17, 2006;
(9) Sections 561, 562, and 563 of Public Law 110-417, “Duncan Hunter National Defense Authorization Act for Fiscal Year 2009,” October 14, 2008;
(10) Public Law 111-84, “National Defense Authorization Act for Fiscal Year 2010,” October 28, 2009;
(11) Public Law 111-383, “Ike Skelton National Defense Authorization Act for Fiscal Year 2011,” January 7, 2011;
(12) Section 585 and 586 of Public Law 112-81, “National Defense Authorization Act for Fiscal Year 2012,” December 16, 2011;
(13) DTM 11-063, “Expedited Transfer of Military Service Members Who File Unrestricted Reports of Sexual Assault,” December 16, 2011 (hereby cancelled), can be found at http://www.sapr.mil/media/pdf/policy/DTM-11-063.pdf;
(14) DTM 11-062, “Document Retention in Cases of Restricted and Unrestricted Reports of Sexual Assault,” December 16, 2011, can be found at http://www.sapr.mil/media/pdf/policy/DTM-11-062.pdf;
(15) DoDD 6400.1, “Family Advocacy Program (FAP),” August 23, 2004, can be found at http://www.dtic.mil/whs/directives/corres/pdf/640001p.pdf;
(16) DoDI 6400.06, “Domestic Abuse Involving DoD Military and Certain Affiliated Personnel,” August 21, 2007, as amended, can be found at http://www.dtic.mil/whs/directives/corres/pdf/640006p.pdf;
(17) DoDI 3020.41, “Operational Contract Support (OCS),” December 20, 2011, can be found at http://www.dtic.mil/whs/directives/corres/pdf/302041p.pdf;
(18) U.S. Department of Defense, “Manual for Courts-Martial, United States”;
(19) DoDI 5505.18, “Investigation of Adult Sexual Assault in the Department of Defense,” January 25, 2013, can be found at http://www.dtic.mil/whs/directives/corres/pdf/550518p.pdf;
(20) DoDI 5545.02, “DoD Policy for Congressional Authorization and Appropriations Reporting Requirements,” December 19, 2008, can be found at http://www.dtic.mil/whs/directives/corres/pdf/554502p.pdf;
(21) DTM 12-004, “DoD Internal Information Collections,” April 24, 2012, can be found at http://www.dtic.mil/whs/directives/corres/pdf/DTM-12-004.pdf;
(21) DoD 8910.1-M, “Department of Defense Procedures for Management of Information Requirements,” June 30, 1998, can be found at http://www.dtic.mil/whs/directives/corres/pdf/891001m.pdf;
(23) U.S. Department of Justice, Office on Violence Against Women, “A National Protocol for Sexual Assault Medical Forensic Examinations, Adults/Adolescents,” current version, can be found at http://www.ncjrs.gov/pdffiles1/ovw/206554.pdf;
(24) DoDI 1030.2, “Victim and Witness Assistance Procedures,” June 4, 2004, can be found at http://www.dtic.mil/whs/directives/corres/pdf/103002p.pdf;
(25) DoDD 7050.06, “Military Whistleblower Protection,” July 23, 2007, can be found at http://www.dtic.mil/whs/directives/corres/pdf/705006p.pdf;
(26) Section 102 of title 32, U.S.C.;
(27) Section 8(c) of Public Law 100-504, “The Inspector General Act of 1978,” as amended;
(28) DoD 6025.18-R, “DoD Health Information Privacy Regulation,” January 24, 2003, can be found at http://www.dtic.mil/whs/directives/corres/pdf/602518r.pdf;
(29) Executive Order 13593, “2011 Amendments to the Manual for Courts-Martial, United States,” December 13, 2011, can be found at http://www.gpo.gov/fdsys/pkg/FR-2011-12-16/pdf/X11-11216.pdf;
(30) DoDD 5400.11, “DoD Privacy Program,” May 8, 2007, can be found at http://www.dtic.mil/whs/directives/corres/pdf/540011p.pdf;
(31) Public Law 104-191, “Health Insurance Portability and Accountability Act of 1996,” August 21, 1996;
(32) Section 552a of title 5, U.S.C.;
(33) DoDD 1030.01, “Victim and Witness Assistance,” April 13, 2004, can be found at http://www.dtic.mil/whs/directives/corres/pdf/103001p.pdf;
(34) DoDI 1241.2, “Reserve Component Incapacitation System Management,” May 30, 2001, can be found at http://www.dtic.mil/whs/directives/corres/pdf/124102p.pdf;
(35) Section 1561a of Public Law 107-311, “Armed Forces Domestic Security Act,” December 2, 2002;
(36) Secretary of Defense Memorandum, “Withholding Initial Disposition Authority Under the Uniform Code of Military Justice in Certain Sexual Assault Cases,” April 20, 2012, can be found at http://www.dod.gov/dodgc/images/withhold_authority.pdf;
(37) Under Secretary of Defense for Personnel and Readiness Memorandum, “Legal Assistance for Victims of Crime,” October 17, 2011, can be found at http://www.sapr.mil/index.php/law-and-dod-policies/directives-and-instructions; and
(38) DoD 4165.66-M, “Base Redevelopment and Realignment Manual,” March 1, 2006, can be found at http://www.dtic.mil/whs/directives/corres/pdf/416566m.pdf.
§ 105.2
Applicability.
This part applies to:
(a) Office of the Secretary of Defense (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 “DoDComponents”).
(b) NG 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. If reporting a sexual assault that occurred prior to or while not performing active service or inactive training, NG and Reserve Component members will be eligible to receive limited SAPR support services from a SARC and a SAPR VA and are eligible to file a Restricted or Unrestricted Report.
(c) Military dependents 18 years of age and older who are eligible for treatment in the MHS, at installations CONUS and OCONUS, and who were victims of sexual assault perpetrated by someone other than a spouse or intimate partner.
(1) Adult military dependents may file unrestricted or restricted reports of sexual assault.
(2) The FAP, consistent with DoDD 6400.1 and DoDI 6400.06, 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 installation SARC and the installation family advocacy program (FAP) and domestic violence intervention and prevention staff shall direct coordination when a sexual assault occurs within a domestic relationship or involves child abuse.
(d) The following non-military individuals who are victims of sexual assault are only eligible for limited emergency care medical services at a military treatment facility, unless that individual is otherwise eligible as a Service member or TRICARE (http://www.tricare.mil) beneficiary of the military health system to receive treatment in a military MTF at no cost to them. They are only eligible to file an Unrestricted Report. They will also be offered the limited SAPR services to be defined as the assistance of a SARC and SAPR VA while undergoing emergency care OCONUS. 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 MHS at military installations or facilities OCONUS. These DoD civilian employees and their family dependents 18 years of age and older only have the Unrestricted Reporting option.
(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. DoD contractor personnel only have the Unrestricted Reporting option. Additional medical services may be provided to contractors covered under this part in accordance with DoDI 3020.41 as applicable.
(e) Service members who are on active duty but were victims of sexual assault prior to enlistment or commissioning are eligible to receive SAPR services (see § 105.3) under either reporting option. The DoD shall provide support to an active duty Service member regardless of when or where the sexual assault took place.
§ 105.3
Definitions.
Unless otherwise noted, these terms and their definitions are for the purpose of this part. Refer to 32 CFR 103.3 for terms not defined in this part.
(a) Accessions training. Training that a Service member receives upon initial entry into Military Service through basic military training.
(b) Certification. Refers to the process by which the Department credentials SARCs and SAPR VAs, assesses the effectiveness of sexual assault advocacy capabilities using a competencies framework, and evaluates and performs oversight over SARC and SAPR VA training. The certification criteria is established by the Department in consultation with subject-matter experts.
(c) Case Management Group (CMG). A multi-disciplinary group that meets monthly to review individual cases of Unrestricted Reports of sexual assault. The group facilitates monthly victim updates and directs system coordination, accountability, and victim access to quality services. At a minimum, each group shall consist of the following additional military or civilian professionals who are involved and working on a specific case: SARC, SAPR VA, military criminal investigator, DoD law enforcement, healthcare provider and mental health and counseling services, chaplain, command legal representative or staff judge advocate (SJA), and victim's commander.
(d) Collateral misconduct. Victim misconduct that might be in time, place, or circumstance associated with the victim's sexual assault incident. Collateral misconduct by the victim of a sexual assault is one of the most significant barriers to reporting assault because of the victim's fear of punishment. Some reported sexual assaults involve circumstances where the victim may have engaged in some form of misconduct (e.g., underage drinking or other related alcohol offenses, adultery, fraternization, or other violations of certain regulations or orders).
(e) Confidential communications. Defined in 32 CFR part 103.
(f) Consent. Defined in 32 CFR part 103.
(g) Credible information. Information that, considering the source and nature of the information and the totality of the circumstances, is sufficiently believable to presume that the fact or facts in question are true.
(h) Credible report. Either a written or verbal report made in support of an expedited transfer that is determined to have credible information.
(i) Crisis intervention. Defined in 32 CFR part 103.
(j) Culturally-competent care. Defined in 32 CFR part 103.
(k) Defense Sexual Assault Incident Database (DSAID). Defined in 32 CFR part 103.
(l) Designated activity. The agency that processes permanent change of station (PCS) or permanent change of assignment (PCA) for expedited transfers.
(1) Air Force: Air Force Personnel Center.
(2) Army: Human Resources Command for inter-installation transfers and the installation personnel center for intra-installation transfers.
(3) Navy: Bureau of Naval Personnel.
(4) U.S. Marine Corps: the order writing section of Headquarters Marine Corps.
(5) Air and Army NG: the National Guard Bureau (NGB) or the Joint Forces Headquarters-State for the State involved.
(m) DoD Safe Helpline. A crisis support service for victims of sexual assault in the DoD. The DoD Safe Helpline is available 24/7 worldwide with “click, call, or text” user options for anonymous and confidential support. The DoD Safe Helpline can be accessed by logging on to www.safehelpline.org or by calling 1-877-995-5247. The DoD Safe Helpline does not replace local base and installation SARC or SAPR VA contact information.
(n) Emergency. Defined in 32 CFR part 103.
(o) Emergency care. Defined in 32 CFR part 103.
(p) Executive agent. The Head of a DoD Component to whom the Secretary of Defense or the Deputy Secretary of Defense has assigned specific responsibilities, functions, and authorities to provide defined levels of support for operational missions, or administrative or other designated activities that involve two or more of the DoD Components.
(q) Final disposition. Actions taken to resolve the reported incident, document case outcome, and address the misconduct by the alleged perpetrator, as appropriate. It includes, but is not limited to, military justice proceedings, non-judicial punishment, or administrative actions, including separation actions taken in response to the offense, whichever is the most serious action taken.
(r) Gender-responsive care. Defined in 32 CFR part 103.
(s) Healthcare personnel. Persons assisting or otherwise supporting healthcare providers in providing healthcare services (e.g., administrative personnel assigned to a military MTF). Includes all healthcare providers.
(t) Healthcare provider. Those individuals who are employed or assigned as healthcare professionals, or are credentialed to provide healthcare services at a MTF, or who provide such care at a deployed location or otherwise in an official capacity. This also includes military personnel, DoD civilian employees, and DoD contractors who provide healthcare at an occupational health clinic for DoD civilian employees or DoD contractor personnel. Healthcare providers may include, but are not limited to:
(1) Licensed physicians practicing in the MHS with clinical privileges in obstetrics and gynecology, emergency medicine, family practice, internal medicine, pediatrics, urology, general medical officer, undersea medical officer, flight surgeon, or those having clinical privileges to perform pelvic examinations.
(2) Licensed advanced practice registered nurses practicing in the MHS with clinical privileges in adult health, family health, midwifery, women's health, or those having clinical privileges to perform pelvic examinations.
(3) Licensed physician assistants practicing in the MHS with clinical privileges in adult, family, women's health, or those having clinical privileges to perform pelvic examinations.
(4) Licensed registered nurses practicing in the MHS who meet the requirements for performing a SAFE as determined by the local privileging authority. This additional capability shall be noted as a competency, not as a credential or privilege.
(5) A psychologist, social worker or psychotherapist licensed and privileged to provide mental health are or other counseling services in a DoD or DoD-sponsored facility.
(u) Hospital facilities (Level 3). Minimum operational functions required for a Level 3 hospital include: command, control, and communications; patient administration; nutritional care; supply and services; triage; emergency medical treatment; preoperative care; orthopedics; general surgery; operating rooms and central materiel and supply services; anesthesia, nursing services (to include intensive and intermediate care wards); pharmacy; clinical laboratory and blood banking; radiology services; and hospital ministry team services.
(v) Installation. A base, camp, post, station, yard, center, homeport facility for any ship, or other activity under the jurisdiction of the DoD, including any leased facility. It does not include any facility used primarily for civil works, rivers and harbors projects, flood control, or other projects not under the primary jurisdiction or control of the DoD.
(w) Installation commander. Commander of a base, camp, post, station, yard, center, homeport facility for any ship, or other activity under the jurisdiction of the DoD, including any leased facility. It does not include any facility used primarily for civil works, rivers and harbors projects, flood control, or other projects not under the primary jurisdiction or control of the DoD.
(x) Law enforcement. Includes all DoD law enforcement units, security forces, and Military Criminal Investigative Organizations (MCIO).
(y) MCIOs. The U.S. Army Criminal Investigation Command, Naval Criminal Investigative Service, and Air Force Office of Special Investigations.
(z) Medical care. Includes physical and psychological medical services.
(aa) Military Services. The term, as used in the SAPR Program, includes Army, Air Force, Navy, Marines, Reserve Components, and their respective Military Academies.
(bb) Non-identifiable information. Defined in 32 CFR part 103.
(cc) Non-participating victim. Victim choosing not to participate in the military justice system.
(dd) Official investigative process. Defined in 32 CFR part 103.
(ee) Personal identifiable information. Defined in 32 CFR part 103.
(ff) Qualifying conviction. Defined in 32 CFR part 103.
(gg) Recovery-oriented care. Defined in 32 CFR part 103.
(hh) Reprisal. Taking or threatening to take an unfavorable personnel action, or withholding or threatening to withhold a favorable personnel action, or any other act of retaliation, against a Service member for making, preparing, or receiving a communication.
(ii) Responders. Includes first responders, who are generally composed of personnel in the following disciplines or positions: SARCs, SAPR VAs, healthcare personnel, law enforcement, and MCIOs. Other responders are judge advocates, chaplains, and commanders, but they are usually not first responders.
(jj) Respond, response, or response capability. All locations, including deployed areas, have a 24 hour, 7 day per week sexual assault response capability. The SARC shall be notified, respond or direct a SAPR VA to respond, assign a SAPR VA, and offer the victim healthcare treatment and a SAFE. In geographic locations where there is no SARC onsite, the on-call SAPR VA shall respond, offer the victim healthcare treatment and a SAFE, and immediately notify the SARC of the sexual assault. The initial response is generally composed of personnel in the following disciplines or positions: SARCs, SAPR VAs, healthcare personnel, law enforcement, and MCIOs. Other responders are judge advocates, chaplains, and commanders. When victims geographically detached from a military installation, the SARC or SAPR VA will refer to local civilian providers or the DoD Safe Helpline for resources.
(kk) 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), and receive medical treatment, including emergency care, counseling, and assignment of a SARC and SAPR VA, without triggering an 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. The Restricted Reporting Program applies to Service members and their military dependents 18 years of age and older. Additional persons who may be entitled to Restricted Reporting are NG and Reserve Component members. DoD civilians and contractors, at this time, are only eligible to file an Unrestricted Report. Only a SARC, SAPR VA, or healthcare personnel may receive a Restricted Report, previously referred to as Confidential Reporting.
(ll) Re-victimization. A pattern wherein the victim of abuse or crime has a statistically higher tendency to be victimized again, either shortly thereafter or much later in adulthood in the case of abuse as a child. This latter pattern is particularly notable in cases of sexual abuse.
(mm) SAFE Kit. Defined in 32 CFR part 103.
(nn) SAPR Integrated Product Team (IPT). A team of individuals that advises the Under Secretary of Defense (USD) for Personnel and Readiness (P&R) and the Secretary of Defense on policies for sexual assault issues involving persons covered by this part. The SAPR IPT serves as the implementation and oversight arm of the SAPR Program. It coordinates policy and reviews the DoD's SAPR policies and programs consistent with this part and 32 CFR part 103 and monitors the progress of program elements. The SAPR IPT is chaired by the Director, SAPRO.
(oo) SAPR Program. Defined in 32 CFR part 103.
(pp) SAPR services. Services provided by a SARC and SAPR VA.
(qq) SAPR VA. Defined in 32 CFR part 103.
(rr) SAPRO. Defined in 32 CFR part 103.
(ss) SARC. Defined in 32 CFR part 103.
(tt) Secondary victimization. The re-traumatization of the sexual assault, abuse, or rape victim. It is an indirect result of assault that occurs through the responses of individuals and institutions to the victim. The types of secondary victimization include victim blaming, inappropriate behavior or language by medical personnel and by other organizations with access to the victim post assault.
(uu) Service member. Defined in 32 CFR part 103.
(vv) Sexual assault. Intentional sexual contact characterized by the use of force, threats, intimidation, or abuse of authority or when the victim does not or cannot consent. As used in this part, the term includes a broad category of sexual offenses consisting of the following specific UCMJ offenses: rape, sexual assault, aggravated sexual contact, abusive sexual contact, forcible sodomy (forced oral or anal sex), or attempts to commit these offenses.
(ww) Trauma informed care. An approach to engage people with histories of trauma that recognizes the presence of trauma symptoms and acknowledges the role that trauma has played in their lives. Trauma-informed services are based on an understanding of the vulnerabilities or triggers of trauma survivors that traditional service delivery approaches may exacerbate, so these services and programs can be more supportive and avoid re-traumatization.
(xx) Unrestricted reporting. Defined in 32 CFR part 103.
(yy) Victim Witness Assistance Program (VWAP). Provides guidance in accordance with DoD 8910.1-M ^3
for assisting victims and witnesses of crime from initial contact through investigation, prosecution, and confinement. Particular attention is paid to victims of serious and violent crime, including child abuse, domestic violence and sexual misconduct.
^3 Available: http://www.dtic.mil/whs/directives/corres/pdf/891001m.pdf.
(zz) Victim. Defined in 32 CFR part 103.
(aaa) Working Integrated Product Team (WIPT). A team of individuals that focuses on one select issue, is governed by a charter with enumerated goals (the details of which will be laid out in individual work plans), and is subject to a definitive timeline for the accomplishment of the stated goals. The USD(P&R) shall provide decisions for WIPT issues that cannot be resolved by the SAPR IPT or that require higher level decision-making. Chairs or co-chairs are approved by the Director, SAPRO, who serves as the chair of the SAPR IPT. WIPT membership shall be comprised of full-time Federal employees and active duty military personnel. Membership is explained in individual WIPT work plans.
(bbb) Work plan. Each WIPT is governed by a work plan that provides the WIPT's specific subject, chairs or co-chairs, participants, problem statement, key issues to address, issues outside the scope of the WIPT, timeline, deliverables, and expenses.
§ 105.4
Policy.
It is DoD policy, in accordance with 32 CFR part 103, that:
(a) This part and 32 CFR part 103 establish and implement the DoD SAPR program.
(b) The DoD goal is a culture free of sexual assault, through an environment of prevention, education and training, response capability (see § 105.3), victim support, reporting procedures, and appropriate accountability that enhances the safety and well being of all persons covered by this part and 32 CFR part 103.
(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.
(2) Require that medical care and SAPR services are gender-responsive, culturally-competent, and recovery-oriented as defined in 32 CFR 103.3.
(3) Not provide policy for legal processes within the responsibility of the Judge Advocates General (JAG) of the Military Departments provided in the UCMJ, the Manual for Courts-Martial, or for criminal investigative matters assigned to the IG, DoD.
(d) Command sexual assault awareness and prevention programs and DoD law enforcement (see § 105.3) and criminal justice procedures that enable persons to be held appropriately accountable for their actions shall be supported by all commanders.
(e) Standardized SAPR requirements, terminology, guidelines, protocols, and guidelines for training materials shall focus on awareness, prevention, and response at all levels, as appropriate.
(f) SARC and SAPR VA shall be used as standard terms as defined in and in accordance with 32 CFR part 103 throughout the Military Departments to facilitate communications and transparency regarding SAPR response capability.
(g) The SARC shall serve as the single point of contact for coordinating care to ensure that sexual assault victims receive appropriate and responsive care. All SARCs shall be authorized to perform VA duties in accordance with service regulations, and will be acting in the performance of those duties.
(h) All SARCs shall have direct and unimpeded contact and access to the installation commander (see § 105.3) for the purpose of this part and 32 CFR part 103.
(1) If an installation has multiple SARCs on the installation, a Lead SARC shall be designated by the Service.
(2) For SARCs that operate within deployable commands that are not attached to an installation, they shall have access to the senior commander for the deployable command.
(i) A 24 hour, 7 day per week sexual assault response capability for all locations, including deployed areas, shall be established for persons covered in this part. An immediate, trained sexual assault response capability shall be available for each report of sexual assault in all locations, including in deployed locations.
(j) SARCs, SAPR VAs, and other responders (see § 105.3) will assist sexual assault victims regardless of Service affiliation.
(k) Service member and adult military dependent victims of sexual assault shall receive timely access to comprehensive medical and psychological treatment, including emergency care treatment and services, as described in this part and 32 CFR part 103.
(l) Sexual assault victims shall be given priority, and treated as emergency cases. Emergency care (see § 105.3) shall consist of emergency medical care and the offer of a SAFE. The victim shall be advised that even if a SAFE is declined the victim shall be encouraged (but not mandated) to receive medical care, psychological care, and victim advocacy.
(m) The prohibition of enlistment or commissioning of persons in the Military Services when the person has a qualifying conviction (see § 105.3) for a crime of sexual assault or is required to be registered as a sex offender.
(n) Improper disclosure of confidential communications under Restricted Reporting or improper release of medical information are prohibited and may result in disciplinary action pursuant to the UCMJ or other adverse personnel or administrative actions. Even proper release of Restricted Reporting information should be limited to those with an official need to know, or as authorized by law.
(o) Information regarding Unrestricted Reports should only be released to personnel with an official need to know, or as authorized by law.
(p) The DoD will have two separate document retention schedules for records of Service members who report that they are victims of sexual assault, based on whether the Service member filed a Restricted or Unrestricted Report as defined in 32 CFR part 103. The record retention system for Restricted Reports shall protect the Service member's desire for confidentiality. Restricted Report cases direct that Department of Defense Forms (DD Form) 2910 and 2911 be retained for at least 5 years, but at the request of a member of the Armed Forces who files a Restricted Report on an incident of sexual assault, the DD Forms 2910 and 2911 filed in connection with the Restricted Report be retained for 50 years. Unrestricted Report cases direct that DD Forms 2910 and 2911 be retained for 50 years.
(1) Document Retention for Unrestricted Reports: The SARC will enter the Unrestricted Report DD Form 2910, “Victim Reporting Preference Statement,” in DSAID (see 32 CFR 103.3) or the DSAID-interface Military Service data system as an electronic record, where it will be retained for 50 years from the date the victim signed the DD Form 2910. DD Form 2910 is located at the DoD Forms Management Program Web site at http://www.dtic.mil/whs/directives/infomgt/forms/index.htm. The DD Form 2911, “DoD Sexual Assault Forensic Examination (SAFE) Report,” shall be retained in accordance with this part.
(2) Document Retention for Restricted Reports;
(i) The SAFE Kit, which includes the DD Form 2911 or civilian forensic examination report, if available, will be retained for 5 years in a location designated by the Military Service concerned. The 5-year time frame will start from the date the victim signs the DD Form 2910.
(ii) The SARC will retain a hard copy of the Restricted Report DD Form 2910 for 5 years, consistent with DoD guidance for the storage of personally identifiable information (PII). The 5-year time frame for the DD Form 2910 will start from the date the victim signs the DD Form 2910. However, at the request of a member of the Armed Forces who files a Restricted Report on an incident of sexual assault, the DD Forms 2910 and 2911 filed in connection with the Restricted Report be retained for 50 years.
(q) Any threat to the life or safety of a Military Service member shall be immediately reported to command and DoD law enforcement authorities (see § 105.3) and a request to transfer the victim under these circumstances will be handled in accordance with established Service regulations. DoD recognizes that circumstances may also exist that warrant the transfer of a Service member who makes an Unrestricted Report of sexual assault but may not otherwise meet established criteria for effecting the immediate transfer of Service members. Those Service members may request a transfer pursuant to the procedures in this part.
(r) Service members who file an Unrestricted Report of sexual assault shall be informed by the SARC at the time of making the report, or as soon as practicable, of the option to request a temporary or permanent expedited transfer from their assigned command or installation, or to a different location within their assigned command or installation, in accordance with the procedures for commanders in § 105.9 of this part.
(s) Service members who file Unrestricted and Restricted Reports of sexual assault shall be protected from reprisal, or threat of reprisal, for filing a report.
§ 105.5
Responsibilities.
(a) USD(P&R). The USD(P&R), in accordance with the authority in DoDD 5124.02 and 32 CFR part 103, shall:
(1) Oversee the DoD SAPRO (see 32 CFR 103.3) in accordance with 32 CFR part 103.
(2) Direct DoD Component implementation of this part in compliance with 32 CFR part 103.
(3) Direct that Director, SAPRO, be informed of and consulted on any changes in DoD policy or the UCMJ relating to sexual assault.
(4) With the Director, SAPRO, update the Deputy Secretary of Defense on SAPR policies and programs on a semi-annual schedule.
(5) Direct the creation, implementation, and maintenance of DSAID.
(6) Oversee DoD SAPRO in developing DoD requirements for SAPR education, training, and awareness for DoD personnel consistent with this part.
(7) Appoint a general or flag officer (G/FO) or Senior Executive Service (SES) equivalent in the DoD as the Director, SAPRO.
(8) In addition to the Director, SAPRO, assign a military officer from each of the Military Services in the grade of O-4 or above to SAPRO for a minimum tour length of at least 18 months. Of these four officers assigned to the SAPRO, at least one officer shall be in the grade of O-6 or above. See Public Law 112-81.
(9) Establish a DoD-wide certification program (see § 105.3) with a national accreditor to ensure all sexual assault victims are offered the assistance of a SARC or SAPR VA who has obtained this certification.
(b) Director, Department of Defense Human Resource Activity (DoDHRA). The Director, DoDHRA, under the authority, direction, and control of the USD(P&R), shall provide operational support, budget, and allocate funds and other resources for the DoD SAPRO as outlined in 32 CFR part 103.
(c) Assistant Secretary of Defense for Health Affairs (ASD(HA)). The ASD(HA), under the authority, direction, and control of the USD(P&R), shall:
(1) Establish DoD sexual assault healthcare policies, clinical practice guidelines, related procedures, and standards governing the DoD healthcare programs for victims of sexual assault.
(2) Oversee the requirements and procedures in § 105.11 of this part.
(3) Establish guidance to:
(i) Give priority to sexual assault patients at MTFs as emergency cases.
(ii) Require standardized, timely, accessible, and comprehensive medical care at MTFs for eligible persons who are sexually assaulted.
(iii) Require that medical care is consistent with established community standards for the healthcare of sexual assault victims and the collection of forensic evidence from victims, in accordance with the U.S. Department of Justice Protocol, instructions for victim and suspect exams found in the SAFE Kit, and DD Form 2911.
(A) Minimum standards of healthcare intervention that correspond to clinical standards set in the community shall include those established in the U.S. Department of Justice Protocol. However, clinical guidance shall not be solely limited to this resource.
(B) Healthcare providers providing care to sexual assault victims in theaters of operation are required to have access to the current version of the U.S. Department of Justice Protocol.
(iv) Include deliberate planning to strategically position healthcare providers skilled in SAFE at predetermined echelons of care, for personnel with the responsibility of assigning medical assets.
(4) Establish guidance for medical personnel that requires a SARC or SAPR VA to be called in for every incident of sexual assault for which treatment is sought at the MTFs, regardless of the reporting option.
(5) Establish guidance in drafting memorandums of understanding (MOUs) or memorandums of agreement (MOAs) with local civilian medical facilities to provide DoD-reimbursable healthcare (to include psychological care) and forensic examinations for Service members and TRICARE eligible sexual assault victims. As part of the MOU or MOA, Victims shall be asked whether they would like the SARC to be notified and, if notified, a SARC or SAPR VA shall respond. Local private or public sector providers shall have processes and procedures in place to assess that local community standards meet or exceed the recommendations for conducting forensic exams of adult sexual assault victims set forth in the U.S. Department of Justice Protocol as a condition of the MOUs or MOAs.
(6) Establish guidelines and procedures for the Surgeon Generals of the Military Departments to require that an adequate supply of resources, to include personnel, supplies, and SAFE Kits, is maintained in all locations where SAFEs may be conducted by DoD, including deployed locations. Maintaining an adequate supply of SAFE Kits is a shared responsibility of the ASD(HA) and Secretaries of the Military Departments.
(7) Establish minimum standards of initial and refresher SAPR training required for all personnel assigned to MTFs. Specialized responder training is required for personnel providing direct care to victims of sexual assault. Minimum standards shall include trauma-informed care (see § 105.3) and medical and mental health care that is gender-responsive, culturally-competent, and recovery-oriented.
(d) General Counsel of the DoD (GC, DoD). The GC, DoD, shall:
(1) Provide legal advice and assistance on proposed policies, DoD issuances, proposed exceptions to policy, and review of all legislative proposals affecting mission and responsibilities of the SAPRO.
(2) Inform the USD(P&R) of any sexual assault related changes to the UCMJ.
(e) IG DoD. The IG DoD shall:
(1) Establish guidance and provide oversight for the investigations of sexual assault in the DoD to meet the SAPR policy and training requirements of this part.
(2) Inform the USD(P&R) of any changes relating to sexual assault investigation policy or guidance.
(3) DoD IG shall collaborate with SAPRO in the development of investigative policy in support of sexual assault prevention and response.
(f) Secretaries of the military departments. The Secretaries of the Military Departments shall:
(1) Establish SAPR policy and procedures to implement this part.
(2) Coordinate all Military Service SAPR policy changes (Department of the Navy-level for the Navy and Marine Corps) with the USD(P&R).
(3) Establish and publicize policies and procedures regarding the availability of a SARC.
(i) Require that sexual assault victims receive appropriate and responsive care and that the SARC serves as the single point of contact for coordinating care for victims.
(ii) Direct that the SARC or a SAPR VA be immediately called in every incident of sexual assault on a military installation. There will be situations where a sexual assault victim receives medical care and a SAFE outside of a military installation through a MOU or MOA with a local private or public sector entity. In these cases, the MOU or MOA will require that victims shall be asked whether they would like the SARC to be notified as part of the MOU or MOA, and, if yes, a SARC or VA shall be notified and shall respond.
(iii) When a victim has a temporary change of station or PCS or is deployed, direct that SARCs immediately request victim consent in writing to transfer case management documents, which should be documented on the DD Form 2910. Upon receipt of victim consent, SARCs shall expeditiously transfer case management documents to ensure continuity of care and SAPR services. All Federal, DoD, and Service privacy regulations must be strictly adhered to. However, when the SARC has a temporary change of station or PCS or is deployed, no victim consent is required to transfer the case to the next SARC. Every effort must be made to inform the victim of the case transfer. If the SARC has already closed the case and terminated victim contact, no other action is needed.
(iv) Upon the full implementation of the DoD Sexual Assault Advocate Certification Program (D-SAACP), sexual assault victims shall be offered the assistance of a SARC and/or SAPR VA who has been credentialed by the D-SAACP and has passed a National Agency Check (NAC) background check.
(v) Issue guidance to ensure that equivalent standards are met for SAPR where SARCs are not installation-based but instead work within operational and/or deployable organizations.
(4) Establish guidance to meet the SAPR training requirements for legal, MCIO, DoD law enforcement, responders and other Service members in § 105.14 of this part.
(5) Upon request, submit a copy of SAPR training programs or SAPR training elements to USD(P&R) through SAPRO for evaluation of consistency and compliance with DoD SAPR training standards in this part. The Military Departments will correct USD(P&R) identified DoD SAPR policy and training standards discrepancies.
(6) Establish and publicize policies and procedures for reporting a sexual assault.
(i) Require first responders (see § 105.3) to be identified upon their assignment and trained, and require that their response times be continually monitored by their commanders to ensure timely response to reports of sexual assault.
(ii) Ensure established response time is based on local conditions but will reflect that sexual assault victims shall be treated as emergency cases. (See § 105.14 of this part for training requirements.)
(7) Establish policy that ensures commanders are accountable for implementing and executing the SAPR program at their installations consistent with this part, 32 CFR part 103, and their Service regulations.
(8) Establish standards and periodic training for healthcare personnel and healthcare providers regarding the Unrestricted and Restricted Reporting options of sexual assault in accordance with § 105.14 of this part. Enforce eligibility standards of licensed healthcare providers to perform SAFEs.
(9) Establish guidance to direct that all Unrestricted Reports of violations (to include attempts) of sexual assault and non-consensual sodomy, as defined in title 10, U.S.C., against adults are immediately reported to the MCIO, regardless of the severity of the potential punishment authorized by the UCMJ.
(i) Commander(s) of the Service member(s) who is a subject of a sexual assault allegation shall provide in writing all disposition data, to include any administrative or judicial action taken, stemming from the sexual assault investigation to the MCIO.
(ii) Once the investigation is completed, MCIOs shall submit case disposition data that satisfies the reporting requirements for DSAID identified in § 105.15 and the annual reporting requirements in § 105.16 of this part. MCIOs shall submit case disposition data even when the sexual assault case is referred to other DoD law enforcement.
(iii) A unit commander who receives an Unrestricted Report of an incident of sexual assault shall immediately refer the matter to the appropriate MCIO. A unit commander shall not conduct internal command directed investigations on sexual assault (i.e., no referrals to appointed command investigators or inquiry officers) or delay immediately contacting the MCIOs while attempting to assess the credibility of the report.
(10) Establish SAPR policy that encourages commanders to be responsive to a victim's desire to discuss his or her case with the installation commander tasked by the Military Service with oversight responsibility for the SAPR program in accordance with 32 CFR part 103.
(11) Establish standards for command assessment of organizational SAPR climate, including periodic follow-up assessments. Adhere to USD(P&R) SAPR guidance and effectiveness of SAPR training, awareness, prevention, and response policies and programs.
(12) As a shared responsibility with ASD(HA), direct installation commanders to maintain an adequate supply of SAFE Kits in all locations where SAFEs are conducted, including deployed locations. Direct that Military Service SAPR personnel, to include medical personnel, are appropriately trained on protocols for the use of the SAFE Kit and comply with prescribed chain of custody procedures described in their Military Service-specific MCIO procedures.
(13) Establish procedures that require, upon seeking assistance from a SARC, SAPR VA, MCIO, the VWAP, or trial counsel, that each Service member who reports that she or he has been a victim of a sexual assault be informed of and given the opportunity to:
(i) Consult with legal assistance counsel, and in cases where the victim may have been involved in collateral misconduct (see § 105.3), to consult with defense counsel.
(A) When the alleged perpetrator is the commander or in the victim's chain of command, inform such victims shall be informed of the opportunity to go outside the chain of command to report the offense to other commanding officers (CO) or an Inspector General. Victims shall be informed that they can also seek assistance from the DoD Safe Helpline (see § 105.3).
(B) The victim shall be informed that legal assistance is optional and may be declined, in whole or in part, at any time.
(C) Commanders shall require that information and services concerning the investigation and prosecution be provided to victims in accordance with VWAP procedures in DoDI 1030.2.^4
^4 Available: http://www.dtic.mil/whs/directives/corres/pdf/103002p.pdf.
(ii) Have a SARC or SAPR VA present when law enforcement or defense counsel interviews the victim.
(14) Establish procedures to ensure that in the case of a general or special court-martial involving a sexual assault as defined in 32 CFR part 103, a copy of the prepared record of the proceedings of the court-martial (not to include sealed materials, unless otherwise approved by the presiding military judge or appellate court) shall be given to the victim of the offense if the victim testified during the proceedings. The record of the proceedings (prepared in accordance with Service regulations) shall be provided without charge and as soon as the record is authenticated. The victim shall be notified of the opportunity to receive the record of the proceedings in accordance with Public Law 112-81.
(15) The commanders shall also require that a completed DD Form 2701, “Initial Information for Victims and Witnesses of Crime,” be distributed to the victim by DoD law enforcement agents. (DD Form 2701 may be obtained via the Internet at http://www.dtic.mil/whs/directives/infomgt/forms/eforms/dd2701.pdf.)
(16) Establish procedures to require commanders to protect the SARC and SAPR VA from coercion, retaliation, and reprisals, related to the execution of their duties and responsibilities.
(17) Establish procedures to protect victims of sexual assault from coercion, retaliation, and reprisal in accordance with DoDD 7050.06.^5
^5 Available: http://www.dodig.mil/HOTLINE/Documents/DODInstructions/DOD%20Directive%207050.06.pdf.
(18) Establish Military Service-specific guidance to ensure collateral misconduct is addressed in a manner that is consistent and appropriate to the circumstances, and at a time that encourages continued victim cooperation.
(19) Establish expedited transfer procedures of victims of sexual assault in accordance with §§ 105.4(r) and 105.9 of this part.
(20) Appoint a representative to the SAPR IPT in accordance with § 105.7 of this part, and provide chairs or co-chairs for WIPTs, when requested. Appoint a representative to SAPRO oversight teams upon request.
(21) Provide quarterly and annual reports of sexual assault involving Service members to Director, SAPRO, to be consolidated into the annual Secretary of Defense report to Congress in accordance with 32 CFR part 103 and sections 113 and 4331 of title 10, U.S.C. (See § 105.16 of this part for additional information about reporting requirements.)
(22) Provide budget program and obligation data, as requested by the DoD SAPRO.
(23) Require that reports of sexual assault be entered into DSAID through interface with a Military Service data system or by direct data entry by SARCs.
(i) Data systems that interface with DSAID shall be modified and maintained to accurately provide information to DSAID.
(ii) Only SARCs who have, at a minimum, a favorable NAC shall be permitted access to enter sexual assault reports into DSAID.
(24) Provide Director, SAPRO, a written description of any sexual assault related research projects contemporaneous with commencing the actual research. When requested, provide periodic updates on results and insights. Upon conclusion of such research, a summary of the findings will be provided to DoD SAPRO as soon as practicable.
(25) Establish procedures for supporting the DoD Safe Helpline in accordance with each Military Service-specific MOU or MOA between SAPRO and the Military Departments, to include but not limited to, providing and updating SARC contact information for the referral DoD Safe Helpline database, providing timely response to victim feedback, and publicizing the DoD Safe Helpline to SARCs and Service members.
(i) Utilize the DoD Safe Helpline as the sole DoD hotline to provide crisis intervention, facilitate victim reporting through connection to the nearest SARC, and other resources as warranted.
(ii) The DoD Safe Helpline does not replace local base and installation SARC or SAPR VA contact information.
(26) Establish procedures to implement SAPR training in accordance with § 105.14 of this part, to include both prevention and response.
(27) Require that reports of sexual assaults are provided to the Commanders of the Combatant Commands for their respective area of responsibility on a quarterly basis, or as requested.
(28) For CMGs:
(i) Require the installation commander or the deputy installation commander chair the multi-disciplinary CMG (see § 105.13 of this part) on a monthly basis to review individual cases of Unrestricted Reporting of sexual assault, facilitate monthly victim updates, direct system coordination, accountability, and victim access to quality services. This responsibility may not be delegated.
(ii) Require that the installation SARC (in the case of multiple SARCs on an installation, then the Lead SARC) serve as the co-chair of the CMG. This responsibility may not be delegated.
(iii) If the installation is a joint base or if the installation has tenant commands, the commander of the tenant organization and their designated Lead SARC shall be invited to the CMG meetings. The commander of the tenant organization shall provide appropriate information to the host commander, to enable the host commander to provide the necessary supporting services.
(iv) The Secretaries of the Military Departments shall issue guidance to ensure that equivalent standards are met for case oversight by CMGs in situations where SARCs are not installation-based but instead work within operational and/or deployable organizations.
(29) Establish document retention procedures for Unrestricted and Restricted Reports of sexual assault in accordance with § 105.4(p) of this part.
(30) When drafting MOUs or MOAs with local civilian medical facilities to provide DoD-reimbursable healthcare (to include psychological care) and forensic examinations for Service members and TRICARE eligible sexual assault victims, require commanders to include the following provisions:
(i) Ask the victim whether he or she would like the SARC to be notified, and if yes, a SARC or SAPR VA shall respond.
(ii) Local private or public sector providers shall have processes and procedures in place to assess that local community standards meet or exceed those set forth in the U.S. Department of Justice Protocol as a condition of the MOUs or MOAs.
(31) Comply with collective bargaining obligations, if applicable.
(32) Provide SAPR training and education for civilian employees of the military departments in accordance with Section 585 of Public Law 112-81.
(g) Chief, NGB. The Chief, NGB, shall on behalf of the Secretaries of the Army and Air Force, and in coordination with DoD SAPRO and the State Adjutants General, establish and implement SAPR policy and procedures for NG members on duty pursuant to title 32, U.S.C.
(h) Chairman of the Joint Chiefs of Staff. The Chairman of the Joint Chiefs of Staff shall monitor implementation of this part and 32 CFR part 103.
(i) Commanders of the Combatant Commands. The Commanders of the Combatant Commands, through the Chairman of the Joint Chiefs of Staff and in coordination with the other Heads of the DoD Components, shall:
(1) Require that a SAPR capability provided by the Executive Agent (see § 105.3) is incorporated into operational planning guidance in accordance with 32 CFR part 103 and this part.
(2) Require the establishment of an MOU, MOA, or equivalent support agreement with the Executive Agent in accordance with 32 CFR part 103 and this part and requires at a minimum:
(i) Coordinated efforts and resources, regardless of the location of the sexual assault, to direct optimal and safe administration of Unrestricted and Restricted Reporting options with appropriate protection, medical care, counseling, and advocacy.
(A) Ensure a 24 hour per day, 7 day per week response capability. Require first responders to respond in a timely manner.
(B) Response times shall be based on local conditions; however, sexual assault victims shall be treated as emergency cases.
(ii) Notice to SARC of every incident of sexual assault on the military installation, so that a SARC or SAPR VA can respond and offer the victim SAPR services. In situations where a sexual assault victim receives medical care and a SAFE outside of a military installation through a MOU or MOA with a local private or public sector entities, as part of the MOU or MOA, victims shall be asked whether they would like the SARC to be notified, and if yes, the SARC or SAPR VA shall be notified and shall respond.
§ 105.6
Procedures.
See § 105.7 through § 105.16 of this part.
§ 105.7
Oversight of the SAPR Program.
(a) Director, SAPRO. The Director, SAPRO, under the authority, direction and control of the USD(P&R) through the Director, DoDHRA, shall serve as the single point of authority, accountability, and oversight for the DoD SAPR program. DoD SAPRO provides recommendations to the USD(P&R) on the issue of DoD sexual assault policy matters on prevention, response, oversight, standards, training, and program requirements. The Director, SAPRO shall:
(1) Assist the USD(P&R) in developing, administering, and monitoring the effectiveness of DoD SAPR policies and programs. Implement and monitor compliance with DoD sexual assault policy on prevention and response.
(2) With the USD(P&R), update the Deputy Secretary of Defense on SAPR policies and programs on a semi-annual schedule.
(3) Develop DoD programs to direct SAPR education, training, and awareness for DoD personnel consistent with this part and 32 CFR part 103.
(4) Coordinate the management of DoD SAPR Program and oversee the implementation in the Service SAPR Programs.
(5) Provide technical assistance to the Heads of the DoD Components in addressing matters concerning SAPR and facilitate the identification and resolution of issues and concerns common to the Military Services and joint commands.
(6) Develop strategic program guidance, joint planning objectives, standard terminology, and identify legislative changes needed to advance the SAPR program.
(7) Develop oversight metrics to measure compliance and effectiveness of SAPR training, sexual assault awareness, prevention, and response policies and programs; analyze data; and make recommendations regarding SAPR policies and programs to the USD(P&R) and the Secretaries of the Military Departments.
(8) Establish reporting categories and monitor specific goals included in the annual SAPR assessments of each Military Service and its respective Military Service Academy, as required by 32 CFR part 103, sections 113 and 4331 of title 10, U.S.C., and in accordance with § 105.16 of this part.
(9) Acquire quarterly, annual, and installation-based SAPR data from the Military Services and assemble annual congressional reports involving persons covered by this part and 32 CFR part 103. Consult with and rely on the Secretaries of the Military Departments in questions concerning disposition results of sexual assault cases in their respective Military Department.
(10) Prepare the annual fiscal year (FY) reports submitted by the Secretary of Defense to the Congress on the sexual assaults involving Service members and a report on the members of the Military Service Academies to Congress submitted by the Secretary of Defense.
(11) Publicize SAPR outreach, awareness, prevention, response, and oversight initiatives and programs.
(12) Oversee the development, implementation, maintenance, and function of the DSAID to meet congressional reporting requirements, support Military Service SAPR program management, and conduct DoD SAPRO oversight activities.
(13) Establish, oversee, publicize and maintain the DoD Safe Helpline and facilitate victim reporting through its connection to the nearest SARC, and other resources as warranted.
(14) Establish and oversee the D-SAACP to ensure all sexual assault victims are offered the assistance of a credentialed SARC or SAPR VA.
(15) Annually review the Military Services resourcing and funding of the U.S. Army Criminal Investigation Laboratory (USACIL) in the area of sexual assault.
(i) Assist the Department of the Army in identifying the funding and resources needed to operate USACIL, to facilitate forensic evidence being processed within 60 working days from day of receipt in accordance with section 113 of title 10, U.S.C.
(ii) Encourage the Military Services that use USACIL to contribute to the operation of USACIL by ensuring that USACIL is funded and resourced appropriately to complete forensic evidence processing within 60 working days.
(16) Chair the SAPR IPT.
(b) SAPR IPT. (1) Membership. The SAPR IPT shall include:
(i) Director, SAPRO. The Director shall serve as the chair.
(ii) Deputy Assistant Secretaries for Manpower and Reserve Affairs of the Departments of the Army and the Air Force.
(iii) A senior representative of the Department of the Navy SAPRO.
(iv) A G/FO or DoD SES civilian from: the Joint Staff, Manpower and Personnel (J-1); the Office of the Assistant Secretary of Defense for Reserve Affairs; the NGB; the Office of the GC, DoD; and the Office of the ASD(HA). Other DoD Components representatives shall be invited to specific SAPR IPT meetings when their expertise is needed to inform and resolve issues being addressed. A senior representative from the Coast Guard shall be an invited guest.
(v) Consistent with Section 8(c) of Public Law 100-504, the IG DoD shall be authorized to send one or more observers to attend all SAPR IPT meetings in order to monitor and evaluate program performance.
(2) Duties. The SAPR IPT shall:
(i) Through the chair, advise the USD(P&R) and the Secretary of Defense on SAPR IPT meeting recommendations on policies for sexual assault issues involving persons covered by this part.
(ii) Serve as the implementation and oversight arm of the DoD SAPR Program. Coordinate policy and review the DoD's SAPR policies and programs consistent with this part and 32 CFR part 103, as necessary. Monitor the progress of program elements.
(iii) Meet every other month. Ad hoc meetings may be scheduled as necessary at the discretion of the chair. Members are selected and meetings scheduled according to the SAPR IPT Charter.
(iv) Discuss and analyze broad SAPR issues that may generate targeted topics for WIPTs. WIPTs shall focus on one select issue, be governed by a charter with enumerated goals for which the details will be laid out in individual work plans (see § 105.3), and be subject to a definitive timeline for the accomplishment of the stated goals. Issues that cannot be resolved by the SAPR IPT or that require higher level decision making shall be sent to the USD(P&R) for resolution.
(3) Chair duties. The chair shall:
(i) Advise the USD(P&R) and the Secretary of Defense on SAPR IPT recommendations on policies for sexual assault issues involving persons covered by this part.
(ii) Represent the USD(P&R) in SAPR matters consistent with this part and 32 CFR part 103.
(iii) Oversee discussions in the SAPR IPT that generate topics for WIPTs. Provide final approval for topics, charters, and timelines for WIPTs.
§ 105.8
Reporting options and Sexual Assault Reporting Procedures.
(a) Reporting options. Service members and military dependents 18 years and older who have been sexually assaulted have two reporting options: Unrestricted or Restricted Reporting. Unrestricted Reporting of sexual assault is favored by the DoD. However, Unrestricted Reporting may represent a barrier for victims to access services, when the victim desires no command or DoD law enforcement involvement. Consequently, the DoD recognizes a fundamental need to provide a confidential disclosure vehicle via the Restricted Reporting option. Regardless of whether the victim elects Restricted or Unrestricted Reporting, confidentiality of medical information shall be maintained in accordance with DoD 6025.18-R.^6 DoD civilian employees and their family dependents and DoD contractors are only eligible for Unrestricted Reporting and for limited emergency care medical services at an MTF, unless that individual is otherwise eligible as a Service member or TRICARE beneficiary of the military health system to receive treatment in an MTF at no cost to them.
^6 Available: http://www.dtic.mil/whs/directives/corres/pdf/602518r.pdf.
(1) Unrestricted Reporting. This reporting option triggers an investigation, command notification, and allows a person who has been sexually assaulted to access medical treatment and counseling. When a sexual assault is reported through Unrestricted Reporting, a SARC shall be notified, respond or direct a SAPR VA to respond, assign a SAPR VA, and offer the victim healthcare treatment and a SAFE. The completed DD Form 2701, which sets out victims' rights and points of contact, shall be distributed to the victim in Unrestricted Reporting cases by DoD law enforcement agents. If a victim elects this reporting option, a victim may not change from an Unrestricted to a Restricted Report.
(2) Restricted Reporting. This reporting option does not trigger an investigation. The command is notified that “an alleged sexual assault” occurred, but is not given the victim's name or other personally identifying information. Restricted Reporting allows Service members and military dependents who are adult sexual assault victims to confidentially disclose the assault to specified individuals (SARC, SAPR VA, or healthcare personnel) and receive healthcare treatment and the assignment of a SARC and SAPR VA. When a sexual assault is reported through Restricted Reporting, a SARC shall be notified, respond or direct a SAPR VA to respond, assign a SAPR VA, and offer the victim healthcare treatment and a SAFE. The Restricted Reporting option is only available to Service members and adult military dependents. Restricted Reporting may not remain an option in a jurisdiction that requires mandatory reporting, or if a victim first reports to a civilian facility or civilian authority, which will vary by state, territory, and oversees agreements. (See § 105.8(a)(6).) If a victim elects this reporting option, a victim may change from Restricted Report to an Unrestricted Report.
(i) Only the SARC, SAPR VA, and healthcare personnel are designated as authorized to accept a Restricted Report. Healthcare personnel, to include psychotherapist and other personnel listed in Military Rules of Evidence (MRE) 513 pursuant to the Manual for Courts-Martial, United States, who received a Restricted Report shall immediately call a SARC or SAPR VA to assure that a victim is offered SAPR services and so that a DD Form 2910 can be completed.
(ii) A SAFE and the information contained in its accompanying Kit are provided the same confidentiality as is afforded victim statements under the Restricted Reporting option. See § 105.12 of this part.
(iii) In the course of otherwise privileged communications with a chaplain or legal assistance attorney, a victim may indicate that he or she wishes to file a Restricted Report. If this occurs, a chaplain and legal assistance attorney shall facilitate contact with a SARC or SAPR VA to ensure that a victim is offered SAPR services and so that a DD Form 2910 can be completed. A chaplain or legal assistance attorney cannot accept a Restricted Report.
(iv) A victim has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication between a victim and a victim advocate, in a case arising under the UCMJ, if such communication is made for the purpose of facilitating advice or supportive assistance to the victim.
(v) A sexual assault victim certified under the personnel reliability program (PRP) is eligible for both the Restricted and Unrestricted reporting options. If electing Restricted Reporting, the victim is required to advise the competent medical authority of any factors that could have an adverse impact on the victim's performance, reliability, or safety while performing PRP duties. If necessary, the competent medical authority will inform the certifying official that the person in question should be temporarily suspended from PRP status, without revealing that the person is a victim of sexual assault, thus preserving the Restricted Report.
(3) Non-participating victim (see § 105.3). For victims choosing either Restricted or Unrestricted Reporting, the following guidelines apply:
(i) Details regarding the incident will be limited to only those personnel who have an official need to know. The victim's decision to decline to participate in an investigation or prosecution should be honored by all personnel charged with the investigation and prosecution of sexual assault cases, including, but not limited to, commanders, DoD law enforcement officials, and personnel in the victim's chain of command. If at any time the victim who originally chose the Unrestricted Reporting option declines to participate in an investigation or prosecution, that decision should be honored in accordance with this subparagraph. However, the victim cannot change from an Unrestricted to a Restricted Report. The victim should be informed by the SARC or SAPR VA that the investigation may continue regardless of whether the victim participates.
(ii) The victim's decision not to participate in an investigation or prosecution will not affect access to SARC and SAPR VA services or medical and psychological care. These services shall be made available to all eligible sexual assault victims.
(iii) If a victim approaches a SARC and SAPR VA and begins to make a report, but then changes his or her mind and leaves without signing the DD Form 2910 (where the reporting option is selected), the SARC or SAPR VA is not under any obligation or duty to inform investigators or commanders about this report and will not produce the report or disclose the communications surrounding the report. If commanders or law enforcement ask about the report, disclosures can only be made in accordance with exceptions to MRE 514 privilege.
(4) Disclosure of confidential communications. In cases where a victim elects Restricted Reporting, the SARC, SAPR VA, and healthcare personnel may not disclose confidential communications or the SAFE and the accompanying Kit to DoD law enforcement or command authorities, either within or outside the DoD, except as provided in this part. In certain situations, information about a sexual assault may come to the commander's or DoD law enforcement official's (to include MCIO's) attention from a source independent of the Restricted Reporting avenues and an independent investigation is initiated. In these cases, a SARC, SAPR VA, and healthcare personnel are prevented from disclosing confidential communications under Restricted Reporting, unless an exception applies. Improper disclosure of confidential communications or improper release of medical information are prohibited and may result in disciplinary action pursuant to the UCMJ or other adverse personnel or administrative actions.
(5) Victim confiding in another person. In establishing the Restricted Reporting option, DoD recognizes that a victim may tell someone (e.g., roommate, friend, family member) that a sexual assault has occurred before considering whether to file a Restricted or Unrestricted Report.
(i) A victim's communication with another person (e.g., roommate, friend, family member) does not, in and of itself, prevent the victim from later electing to make a Restricted Report. Restricted Reporting is confidential, not anonymous reporting. However, if the person to whom the victim confided the information (e.g., roommate, friend, family member) is in the victim's officer and non-commissioned officer chain of command or DoD law enforcement, there can be no Restricted Report.
(ii) Communications between the victim and a person other than the SARC, SAPR VA, or healthcare personnel are not confidential and do not receive the protections of Restricted Reporting.
(6) Independent investigations. Independent investigations are not initiated by the victim. If information about a sexual assault comes to a commander's attention from a source other than a victim who has elected Restricted Reporting or where no election has been made by the victim, that commander shall report the matter to an MCIO and an official (independent) investigation may be initiated based on that independently acquired information.
(i) If there is an ongoing independent investigation, the sexual assault victim will no longer have the option of Restricted Reporting when:
(A) DoD law enforcement informs the SARC of the investigation, and
(B) The victim has not already elected Restricted Reporting.
(ii) The timing of filing a Restricted Report is crucial. The victim must take advantage of the Restricted Reporting option before the SARC is informed of the investigation. The SARC then shall inform the victim of an ongoing independent investigation of the sexual assault. If an independent investigation begins after the victim has formally elected Restricted Reporting, the independent investigation has no impact on the victim's Restricted Report and the victim's communications and SAFE Kit remain confidential, to the extent authorized by law.
(7) Mandatory reporting laws and cases investigated by civilian law enforcement. Health care may be provided and SAFE Kits may be performed in a jurisdiction bound by State and local laws that require certain personnel (usually health care personnel) to report the sexual assault to civilian agencies or law enforcement. In some cases, civilian law enforcement may take jurisdiction of the sexual assault case, or the civilian jurisdiction may inform the military law enforcement or investigative community of a sexual assault that was reported to it. In such instances, it may not be possible for a victim to make a Restricted Report or it may not be possible to maintain the report as a Restricted Report. To the extent possible, DoD will honor the Restricted Report; however, sexual assault victims need to be aware that their Restricted Report is not guaranteed due to circumstances surrounding the independent investigation and requirements of individual state laws. In order to take advantage of the Restricted Reporting option the victim must file a Restricted Report BEFORE the SARC is informed of an ongoing independent investigation of the sexual assault.
(b) Initiating medical care and treatment upon receipt of report. Healthcare personnel will initiate the emergency care and treatment of sexual assault victims and notify the SARC or the SAPR VA. See § 105.11 of this part. Upon receipt of a Restricted Report, only the SARC or the SAPR VA will be notified. There will be no report to DoD law enforcement, a supervisory official, or the victim's chain of command by the healthcare personnel, unless an exception to Restricted Reporting applies or applicable law requires other officials to be notified. Regardless of whether the victim elects Restricted or Unrestricted Reporting, confidentiality of medical information will be maintained in accordance with applicable laws and regulations.
(c) Implementing 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 prevention programs. The DoD also strongly supports applicable DoD law enforcement and criminal justice procedures that enable persons to be held appropriately accountable for sexual assault offenses and criminal dispositions. To achieve the dual objectives of victim support and offender accountability, DoD preference is for complete Unrestricted Reporting of sexual assaults to allow for the provision of victims' services and to pursue accountability, as appropriate. However, Unrestricted Reporting may represent a barrier for victims to access services, when the victim desires no command or DoD law enforcement involvement. Consequently, the DoD recognizes a fundamental need to provide a confidential disclosure vehicle via the Restricted Reporting option. This section provides procedural guidance and considerations to implement the DoD dual objectives.
(1) Restricted Reporting impact. Restricted Reporting will impact investigations and the ability of the offender's commander to hold the alleged offender accountable. However, such risks shall not outweigh the overall interest in providing a Restricted Reporting option to sexual assault victims.
(2) Victim's perception of the military justice system. The DoD seeks increased reporting by victims of sexual assault. A system that is perceived as fair and treats victims with dignity and respect, and promotes privacy and confidentiality may have a positive impact in bringing victims forward to provide information about being assaulted. The Restricted Reporting option is intended to give victims additional time and increased control over the release and management of their personal information and empowers them to seek relevant information and support to make more informed decisions about participating in the criminal investigation. A victim who receives support, appropriate care and treatment, and is provided an opportunity to make an informed decision about a criminal investigation is more likely to develop increased trust that the victim's needs are of concern to the command. As a result, this trust may eventually lead the victim to decide to pursue an investigation and convert the Restricted Report to an Unrestricted Report.
(d) Reports and commanders. (1) Unrestricted Reports to commanders. The SARC shall provide the installation commander of sexual assault victims with information regarding all Unrestricted Reports within 24 hours of an Unrestricted Report of sexual assault. This notification may be extended by the commander to 48 hours after the Unrestricted Report of the incident when there are extenuating circumstances in deployed environments.
(2) Restricted Reports to commanders. For the purposes of public safety and command responsibility, in the event of a Restricted Report, the SARC shall report non-PII concerning sexual assault incidents (without information that could reasonably lead to personal identification of the victim or the alleged assailant (see exception in § 105.8(e)(2)(ii)) only to the installation commander within 24 hours of the report. This notification may be extended by the commander to 48 hours after the Restricted Report of the incident when there are extenuating circumstances in deployed environments. The SARC's communications with victims are protected by the Restricted Reporting option and the MRE 514 (Executive Order 13593).
(i) Even if the victim chooses not to pursue an investigation, Restricted Reporting gives the installation commander a clearer picture of the reported sexual assaults within the command. The installation commander can then use the information to enhance preventive measures, to enhance the education and training of the command's personnel, and to scrutinize more closely the organization's climate and culture for contributing factors.
(ii) Neither the installation commander nor DoD law enforcement may use the information from a Restricted Report for investigative purposes or in a manner that is likely to discover, disclose, or reveal the identities of the victims unless an exception applies as provided in paragraph (e) of this section. Improper disclosure of Restricted Reporting information may result in discipline pursuant to the UCMJ or other adverse personnel or administrative actions.
(e) Exceptions to Restricted Reporting and disclosures. (1) The SARC will evaluate the confidential information provided under the Restricted Report to determine whether an exception applies.
(i) The SARC shall disclose the otherwise protected confidential information only after consultation with the SJA of the installation commander, supporting judge advocate or other legal advisor concerned, who shall advise the SARC whether an exception to Restricted Reporting applies. In addition, the SJA, supporting judge advocate or other legal advisor concerned will analyze the impact of MRE 514 on the communications.
(ii) When there is uncertainty or disagreement on whether an exception to Restricted Reporting applies, the matter shall be brought to the attention of the installation commander for decision without identifying the victim (using non-PII information). Improper disclosure of confidential communications under Restricted Reporting, improper release of medical information, and other violations of this guidance are prohibited and may result in discipline pursuant to the UCMJ or State statute, loss of privileges, loss of certification or credentialing, or other adverse personnel or administrative actions.
(2) The following exceptions to the prohibition against disclosures of Restricted Reporting authorize a disclosure of a Restricted Report only if one or more of the following conditions apply:
(i) Authorized by the victim in writing.
(ii) Necessary to prevent or mitigate a serious and imminent threat to the health or safety of the victim or another person; for example, multiple reports involving the same alleged suspect (repeat offender) could meet this criteria. See similar safety and security exceptions in MRE 514 (Executive Order 13593).
(iii) Required for fitness for duty or disability determinations. This disclosure is limited to only the information necessary to process duty or disability determinations for Service members.
(iv) Required for the supervision of coordination of direct victim treatment or services. The SARC, SAPR VA, or healthcare personnel can disclose specifically requested information to those individuals with an official need to know, or as required by law or regulation.
(v) Ordered by a military official (e.g., a duly authorized trial counsel subpoena in a UCMJ case), Federal or State judge, or as required by a Federal or State statute or applicable U.S. international agreement. The SARC, SAPR VA, and healthcare personnel will consult with the installation commander's servicing legal office, in the same manner as other recipients of privileged information, to determine if the exception criteria apply and whether a duty to disclose the otherwise protected information is present. Until those determinations are made, only non-PII shall be disclosed.
(3) Healthcare personnel may also convey to the victim's unit commander any possible adverse duty impact related to the victim's medical condition and prognosis in accordance with DoD Directive 5400.11-R.^7
However, such circumstances do not otherwise warrant a Restricted Reporting exception to policy. Therefore, the confidential communication related to the sexual assault may not be disclosed. Improper disclosure of confidential communications, improper release of medical information, and other violations of this part and 32 CFR part 103 are prohibited and may result in discipline pursuant to the UCMJ or State statute, loss of privileges, or other adverse personnel or administrative actions.
^7 Available: http://www.dtic.mil/whs/directives/corres/pdf/540011p.pdf.
(4) The SARC or SAPR VA shall inform the victim when a disclosure in accordance with the exceptions in this section is made.
(5) If a SARC, SAPR VA, or healthcare personnel make an unauthorized disclosure of a confidential communication, that person is subject to disciplinary action. Unauthorized disclosure has no impact on the status of the Restricted Report. All Restricted Reporting information is still confidential and protected. However, unauthorized or inadvertent disclosures made to a commander or law enforcement shall result in notification to the MCIO.
(f) Actionable rights. Restricted Reporting does not create any actionable rights for the victim or alleged offender or constitute a grant of immunity for any actionable conduct by the offender or the victim.
§ 105.9
Commander and management procedures.
(a) SAPR Management. Commanders, supervisors, and managers at all levels are responsible for the effective implementation of the SAPR program and policy. Military and DoD civilian officials at each management level shall advocate a strong SAPR program and provide education and training that shall enable them to prevent and appropriately respond to incidents of sexual assault.
(b) Installation commander SAPR response procedures. Each installation commander shall develop guidelines to establish a 24 hour, 7 day per week sexual assault response capability for their locations, including deployed areas. For SARCs that operate within deployable commands that are not attached to an installation, senior commanders of the deployable commands shall ensure that equivalent SAPR standards are met.
(c) Commander SAPR response procedures. Each Commander shall:
(1) Encourage the use of the commander's sexual assault response protocols for Unrestricted Reports as the baseline for commander's response to the victim, an offender, and proper response of a sexual assault within a unit. The Commander's Sexual Assault Response Protocols for Unrestricted Reports of Sexual Assault are located in the SAPR Policy Toolkit, on www.sapr.mil. These protocols maybe expanded to meet Military Service-specific requirements and procedures.
(2) Meet with the SARC within 30 days of taking command for one-on-one SAPR training. The training shall include a trends brief for unit and area of responsibility and the confidentiality requirements in Restricted Reporting. The commander must contact the judge advocate for training on the MRE 514 privilege.
(3) Require the SARC to:
(i) Be notified of every incident of sexual assault involving Service members or persons covered in this part, in or outside of the military installation when reported to DoD personnel. When notified, the SARC or SAPR VA shall respond to offer the victim SAPR services. All SARCs shall be authorized to perform VA duties in accordance with service regulations, and will be acting in the performance of those duties.
(A) In Restricted Reports, the SARC shall be notified by the healthcare personnel or the SAPR VA.
(B) In Unrestricted Reports, the SARC shall be notified by the DoD responders (see § 105.3).
(ii) Provide the installation commander with information regarding an Unrestricted Report within 24 hours of an Unrestricted Report of sexual assault.
(iii) Provide the installation commander with non-PII, as defined in § 105.3, within 24 hours of a Restricted Report of sexual assault. This notification may be extended to 48 hours after the report of the incident if there are extenuating circumstances in the deployed environment. Command and installation demographics shall be taken into account when determining the information to be provided.
(iv) Be supervised and evaluated by the installation commander or deputy installation commander in the performance of SAPR procedures in accordance with § 105.10 of this part.
(v) Receive SARC training to follow procedures in accordance with § 105.10 of this part. Upon implementation of the D-SAACP, standardized criteria for the selection and training of SARCs and SAPR VAs shall comply with specific Military Service guidelines and certification requirements, when implemented by SAPRO.
(vi) Follow established procedures to store the DD Form 2910 pursuant to Military Service regulations regarding the storage of documents with PII. (Copies may be obtained via the Internet at http://www.dtic.mil/whs/directives/infomgt/forms/eforms/dd2910.pdf.) Follow established procedures to store the original DD Form 2910 and ensure that all Federal and Service privacy regulations are adhered to.
(4) Evaluate medical personnel per Military Service regulation in the performance of SAPR procedures as described in § 105.11 of this part.
(5) Require adequate supplies of SAFE Kits be maintained by the active component. The supplies shall be routinely evaluated to guarantee adequate numbers to meet the need of sexual assault victims.
(6) Require DoD law enforcement and healthcare personnel to comply with prescribed chain of custody procedures described in their Military Service-specific MCIO procedures. Modified procedures applicable in cases of Restricted Reports of sexual assault are explained in § 105.12 of this part.
(7) Require that a CMG is conducted on a monthly basis in accordance with § 105.13 of this part.
(i) Chair or attend the CMG, as appropriate. Direct the required CMG members to attend.
(ii) Commanders shall provide victims of a sexual assault who filed an Unrestricted Reports monthly updates regarding the current status of any ongoing investigative, medical, legal, or command proceedings regarding the sexual assault until the final disposition (see § 105.3) of the reported assault, and to the extent permitted pursuant to DoDI 1030.2, Public Law 104-191,^8 and section 552a of title 5, U.S.C. This is a non-delegable commander duty. This update must occur within 72 hours of the last CMG. Commanders of the NG victims who were sexually assaulted when the victim was on title 10 orders and filed unrestricted reports are required to update, to the extent allowed by law and regulations, the victim's home State title 32 commander as to all or any ongoing investigative, medical, and legal proceedings regarding the extent of any actions being taken by the active component against subjects who remain on title 10 orders.
^8 Available: http://www.gpo.gov/fdsys/pkg/PLAW-104publ191/pdf/PLAW-104publ191.pdf.
(8) Ensure that resolution of Unrestricted Report sexual assault cases shall be expedited.
(i) A unit commander who receives an Unrestricted Report of a sexual assault shall immediately refer the matter to the appropriate MCIO, to include any offense identified by title 10, U.S.C. A unit commander shall not conduct internal command directed investigations on sexual assault (i.e., no referrals to appointed command investigators or inquiry officers) or delay immediately contacting the MCIOs while attempting to assess the credibility of the report.
(ii) The final disposition of a sexual assault shall immediately be reported by the commander to the assigned MCIO. Dispositions on cases referred by MCIOs to other DoD law enforcement agencies shall be immediately reported to the MCIOs upon their final disposition. MCIOs shall request dispositions on referred cases from civilian law enforcement agencies and, if received, those dispositions shall be immediately reported by the MCIO in DSAID in order to meet the congressional annual reporting requirements. When requested by MCIOs and other DoD law enforcement, commanders shall provide final disposition of sexual assault cases. Final case disposition is required to be inputted into DSAID.
(iii) If the MCIO has been notified of the disposition in a civilian sexual assault case, the MCIO shall notify the commander of this disposition immediately.
(9) Appoint a point of contact to serve as a formal liaison between the installation SARC and the installation FAP and domestic violence intervention and prevention staff (or civilian domestic resource if FAP is not available for a Reserve Component victim) to direct coordination when a sexual assault occurs within a domestic relationship or involves child abuse.
(10) Ensure appropriate training of all military responders be directed and documented in accordance with training standards in § 105.14 of this part. Direct and document appropriate training of all military responders who attend the CMG.
(11) Identify and maintain a liaison with civilian sexual assault victim resources. Where necessary, it is strongly recommended that an MOU or MOAs with the appropriate local authorities and civilian service organizations be established to maximize cooperation, reciprocal reporting of sexual assault information, and consultation regarding jurisdiction for the prosecution of Service members involved in sexual assault, as appropriate.
(12) Require that each Service member who reports a sexual assault, pursuant to the respective Military Service regulations, be given the opportunity to consult with legal assistance counsel, and in cases where the victim may have been involved in collateral misconduct, to consult with defense counsel. Victims shall be referred to VWAP. Information concerning the prosecution shall be provided to victims in accordance with VWAP procedures in DoDD 7050.06. The Service member victim shall be informed of this opportunity to consult with legal assistance counsel as soon as the victim seeks assistance from a SARC, SAPR VA, or any DoD law enforcement agent or judge advocate.
(13) Direct that DoD law enforcement agents and VWAP personnel provide victims of sexual assault who elect an Unrestricted Report the information outlined in DoDD 1030.01 ^9 and Public Law 100-504 ^{10} throughout the investigative and legal process. The completed DD Form 2701 shall be distributed to the victim in Unrestricted Reporting cases by DoD law enforcement agents.
^9 Available: http://www.dtic.mil/whs/directives/corres/pdf/103001p.pdf.
^{10} Available: http://ntl.bts.gov/DOCS/iga.html.
(14) Require that MCIOs utilize the investigation descriptions found in § 105.3 in this part.
(15) Establish procedures to ensure that in the case of a general or special court-martial involving a sexual assault as defined in 32 CFR part 103, a copy of the prepared record of the proceedings of the court-martial (not to include sealed materials, unless otherwise approved by the presiding military judge or appellate court) shall be given to the victim of the offense if the victim testified during the proceedings. The record of the proceedings (prepared in accordance with Service regulations shall be provided without charge and as soon as the record is authenticated. The victim shall be notified of the opportunity to receive the record of the proceedings in accordance with Public Law 112-81.
(16) Protect sexual assault victims from coercion, discrimination, or reprisals. Commanders shall protect SARCs and SAPR VAs from coercion, discrimination, or reprisals related to the execution of their SAPR duties and responsibilities.
(17) Require that sexual assault reports be entered into DSAID through interface with a Military Service data system, or by direct data entry by authorized personnel.
(18) Designate an official, usually the SARC, to generate an alpha-numeric Restricted Reporting case number (RRCN).
(19) Appoint a healthcare provider, as an official duty, in each MTF to be the resident point of contact concerning SAPR policy and sexual assault care.
(c) MOUs or MOAs with local civilian authorities. The purpose of MOUs and MOAs is to:
(1) Enhance communications and the sharing of information regarding sexual assault prosecutions, as well as of the sexual assault care and forensic examinations that involve Service members and eligible TRICARE beneficiaries covered by this part.
(2) Collaborate with local community crisis counseling centers, as necessary, to augment or enhance their sexual assault programs.
(3) Provide liaison with private or public sector sexual assault councils, as appropriate.
(4) Provide information about medical and counseling services related to care for victims of sexual assault in the civilian community, when not otherwise available at the MTFs, in order that military victims may be offered the appropriate healthcare and civilian resources, where available and where covered by military healthcare benefits.
(5) Where appropriate or required by MOU or MOA, facilitate training for civilian service providers about SAPR policy and the roles and responsibilities of the SARC and SAPR VA.
(d) Line of Duty (LOD) procedures. (1) Members of the Reserve Components, whether they file a Restricted or Unrestricted Report, shall have access to medical treatment and counseling for injuries and illness incurred from a sexual assault inflicted upon a Service member when performing active service, as defined in section 101(d)(3) of title 10, U.S.C., and inactive duty training.
(2) Medical entitlements remain dependent on a LOD determination as to whether or not the sexual assault incident occurred in an active duty or inactive duty training status. However, regardless of their duty status at the time that the sexual assault incident occurred, or at the time that they are seeking SAPR services (see § 105.3), Reserve Component members can elect either the Restricted or Unrestricted Reporting option (see 32 CFR 103.3) and have access to the SAPR services of a SARC and a SAPR VA.
(3) The following LOD procedures shall be followed by Reserve Component commanders.
(i) LOD determinations may be made without the victim being identified to DoD law enforcement or command, solely for the purpose of enabling the victim to access medical care and psychological counseling, and without identifying injuries from sexual assault as the cause.
(ii) When assessing LOD determinations for sexual assault victims, the commander of the Reserve command in each component and the directors of the Army and Air NGBs shall designate individuals within their respective organizations to process LODs for victims of sexual assault when performing active service, as defined in section 101(d)(3) of title 10, U.S.C., and inactive duty training.
(A) Designated individuals shall possess the maturity and experience to assist in a sensitive situation and, if dealing with a Restricted Report, to safeguard confidential communications. These individuals are specifically authorized to receive confidential communications as defined by § 105.3 of this part for the purpose of determining LOD status.
(B) The appropriate SARC will brief the designated individuals on Restricted Reporting policies, exceptions to Restricted Reporting, and the limitations of disclosure of confidential communications as specified in § 105.8(e) of this part. The SARC and these individuals may consult with their servicing legal office, in the same manner as other recipients of privileged information for assistance, exercising due care to protect confidential communications by disclosing only non-identifying information. Unauthorized disclosure may result in disciplinary action, in accordance with § 105.8(d)(1) and (2) of this part.
(iii) For LOD purposes, the victim's SARC may provide documentation that substantiates the victim's duty status as well as the filing of the Restricted Report to the designated official.
(iv) If medical or mental healthcare is required beyond initial treatment and follow-up, a licensed medical or mental health provider must recommend a continued treatment plan.
(v) When evaluating pay and entitlements, the modification of the LOD process for Restricted Reporting does not extend to pay and allowances or travel and transportation incident to the healthcare entitlement. However, at any time the Service member may request an unrestricted LOD to be completed in order to receive the full range of entitlements authorized pursuant to DoDI 1241.2.^{11}
^{11} Available: http://www.dtic.mil/whs/directives/corres/pdf/124102p.pdf.
(e) Expedited victim transfer requests. (1) Any threat to life or safety of a Service member shall be immediately reported to command and DoD law enforcement authorities (see § 105.3) and a request to transfer the victim under these circumstances will be handled in accordance with established Service regulations.
(2) Service members who file an Unrestricted Report of sexual assault shall be informed by the SARC, SAPR VA, or the Service member's CO at the time of making the report, or as soon as practicable, of the option to request a temporary or permanent expedited transfer from their assigned command or installation, or to a different location within their assigned command or installation. The Service members shall initiate the transfer request and submit the request to their COs. The CO shall document the date and time the request is received.
(i) A presumption shall be established in favor of transferring a Service member (who initiated the transfer request) following a credible report (see § 105.3) of sexual assault. The CO, or the appropriate approving authority, shall make a credible report determination at the time the expedited request is made after considering the advice of the supporting judge advocate, or other legal advisor concerned, and the available evidence based on an MCIO's investigation's information (if available).
(ii) Expedited transfers of Service members who report that they are victims of sexual assault shall be limited to sexual assault offenses reported in the form of an Unrestricted Report.
(A) Sexual assault against adults is defined in 32 CFR part 103.3 and includes Article 120 and Article 125 of the Manual for Courts-Martial, United States. This part does not address victims covered under the FAP in DoDD 6400.1.
(B) If the Service member files a Restricted Report in accordance with 32 CFR part 103 and requests an expedited transfer, the Service member must affirmatively change his or her reporting option to Unrestricted Reporting on the DD Form 2910, in order to be eligible for an expedited transfer.
(iii) When the alleged perpetrator is the commander or otherwise in the victim's chain of command, the SARC shall inform such victims of the opportunity to go outside the chain of command to report the offense to MCIOs, other COs or an Inspector General. Victims shall be informed that they can also seek assistance from a legal assistance attorney or the DoD Safe Helpline.
(iv) The CO shall expeditiously process a transfer request from a command or installation, or to a different location within the command or installation. The CO shall request and take into consideration the Service member's input before making a decision involving a temporary or permanent transfer and the location of the transfer. If approved, the transfer orders shall also include the Service member's dependents or military spouse (as applicable).
(v) The CO must approve or disapprove a Service member's request for a PCS, PCA, or unit transfer within 72 hours from receipt of the Service member's request. The decision to approve the request shall be immediately forwarded to the designated activity that processes PCS, PCA, or unit transfers (see § 105.3).
(vi) If the Service member's transfer request is disapproved by the CO, the Service member shall be given the opportunity to request review by the first G/FO in the chain of command of the member, or a SES equivalent (if applicable). The decision to approve or disapprove the request for transfer must be made within 72 hours of submission of the request for review. If a civilian SES equivalent reviewer approves the transfer, the Secretary of the Military Department concerned shall process and issue orders for the transfer.
(vii) Military Departments shall make every reasonable effort to minimize disruption to the normal career progression of a Service member who reports that he or she is a victim of a sexual assault.
(viii) Expedited transfer procedures require that a CO or the appropriate approving authority make a determination and provide his or her reasons and justification on the transfer of a Service member based on a credible report of sexual assault. A CO shall consider:
(A) The Service member's reasons for the request.
(B) Potential transfer of the alleged offender instead of the Service member requesting the transfer.
(C) Nature and circumstances of the offense.
(D) Whether a temporary transfer would meet the Service member's needs and the operational needs of the unit.
(E) Training status of the Service member requesting the transfer.
(F) Availability of positions within other units on the installation.
(G) Status of the investigation and potential impact on the investigation and future disposition of the offense, after consultation with the investigating MCIOs.
(H) Location of the alleged offender.
(I) Alleged offender's status (Service member or civilian).
(J) Other pertinent circumstances or facts.
(ix) Service members requesting the transfer shall be informed that they may have to return for the prosecution of the case, if the determination is made that prosecution is the appropriate command action.
(x) Commanders shall directly counsel the Service member to ensure that he or she is fully informed regarding:
(A) Reasonably foreseeable career impacts.
(B) The potential impact of the transfer or reassignment on the investigation and case disposition or the initiation of other adverse action against the alleged offender.
(C) The effect on bonus recoupment (if, for example, they cannot work in their Air Force Specialty or Military Occupational Specialty).
(D) Other possible consequences of granting the request.
(xi) Require that expedited transfer procedures for Reserve Component, Army NG, and Air NG members who make Unrestricted Reports of sexual assault be established by commanders within available resources and authorities. If requested by the Service member, the command should allow for separate training on different weekends or times from the alleged offender or with a different unit in the home drilling location to ensure undue burden is not placed on the Service member and his or her family by the transfer. Potential transfer of the alleged offender instead of the Service member should also be considered. At a minimum, the alleged offender's access to the Service member who made the Unrestricted Report shall be controlled, as appropriate.
(xii) Even in those court-martial cases in which the accused has been acquitted, the standard for approving an expedited transfer still remains whether a credible report has been filed. The commander shall consider all the facts and circumstances surrounding the case and the basis for the transfer request.
(f) Military Protective Orders (MPO). In Unrestricted Reporting cases, commanders shall execute the following procedures regarding MPOs:
(1) Require the SARC or the SAPR VA to inform sexual assault victims protected by an MPO, in a timely manner, of the option to request transfer from the assigned command in accordance with section 567(c) of Public Law 111-84.
(2) Notify the appropriate civilian authorities of the issuance of an MPO and of the individuals involved in the order, in the event an MPO has been issued against a Service member and any individual involved in the MPO does not reside on a military installation at any time during the duration of the MPO pursuant to Public Law 110-417.
(i) 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.
(ii) The issuing commander shall notify the appropriate civilian authorities of any change made in a protective order, or its termination, covered by chapter 80 of title 10, U.S.C., and the termination of the protective order.
(iii) When an MPO has been issued against a Service member and any individual involved in the MPO does not reside on a military installation at any time during the duration of the MPO, notify the appropriate civilian authorities of the issuance of an MPO and of the individuals involved in the order. The appropriate civilian authorities shall include, at a minimum, the local civilian law enforcement agency or agencies with jurisdiction to respond to an emergency call from the residence of any individual involved in the order.
(3) Advise the person seeking the MPO that the MPO is not enforceable by civilian authorities off base and that victims desiring protection off base should seek a civilian protective order (CPO). Off base violations of the MPO should be reported to the issuing commander, DoD law enforcement, and the relevant MCIO for investigation.
(i) Pursuant to section 1561a of Public Law 107-311,^{12} a CPO shall have the same force and effect on a military installation as such order has within the jurisdiction of the court that issued such order. Commanders, MCIOs, and installation DoD law enforcement personnel shall take all reasonable measures necessary to ensure that a CPO is given full force and effect on all DoD installations within the jurisdiction of the court that issued such order.
^{12} Available: http://www.gpo.gov/fdsys/pkg/PLAW-107publ311/pdf/PLAW-107publ311.pdf.
(ii) If the victim has informed the SARC of an existing CPO, a commander shall require the SARC to inform the CMG of the existence of the CPO and its requirements. After the CPO information is received at the CMG, DoD law enforcement agents shall be required to document CPOs for all Service members in their investigative case file, to include documentation for Reserve Component personnel in title 10 status.
(4) Note that MPOs in cases other than sexual assault matters may have separate requirements.
(5) Issuing commanders are required to fill out the DD Form 2873, “Military Protective Order (MPO),” and provide victims and alleged offenders with copies of the completed form. Verbal MPOs can be issued, but need to be subsequently documented with a DD Form 2873, as soon as possible.
(6) Require DoD law enforcement agents document MPOs for all Service members in their investigative case file, to include documentation for Reserve Component personnel in title 10 status. The appropriate DoD law enforcement agent representative to the CMG shall brief the CMG chair and co-chair on the existence of an MPO.
(7) If the commander's decision is to deny the MPO request, document the reasons for the denial. Denials of MPO requests go to the installation commander or equivalent command level (in consultation with a judge advocate) for the final decision.
(g) Collateral misconduct in sexual assault cases. (1) Collateral misconduct by the victim of a sexual assault is one of the most significant barriers to reporting assault because of the victim's fear of punishment. Some reported sexual assaults involve circumstances where the victim may have engaged in some form of misconduct (e.g., underage drinking or other related alcohol offenses, adultery, fraternization, or other violations of certain regulations or orders). Commanders shall have discretion to defer action on alleged collateral misconduct by the sexual assault victims (and shall not be penalized for such a deferral decision), until final disposition of the sexual assault case, taking into account the trauma to the victim and responding appropriately so as to encourage reporting of sexual assault and continued victim cooperation, while also bearing in mind any potential speedy trial and statute of limitations concerns.
(2) In accordance with Secretary of Defense Memorandum, the initial disposition authority is withheld from all commanders within the DoD who do not possess at least special court-martial convening authority and who are not in the grade of 0-6 (i.e., colonel or Navy captain) or higher, with respect to the alleged offenses of rape, sexual assault, forcible sodomy, and all attempts to commit such offenses, in violation of Articles 120, 125, and 80 of the Manual for Courts-Martial, United States. Commanders may defer taking action on a victim's alleged collateral misconduct arising from or that relates to the sexual assault incident until the initial disposition action for the sexual assault investigation is completed.
(3) Commanders and supervisors should take appropriate action for the victim's alleged collateral misconduct (if warranted), responding appropriately in order to encourage sexual assault reporting and continued cooperation, while avoiding those actions that may further traumatize the victim. Ultimately, victim cooperation should significantly enhance timely and effective investigations, as well as the appropriate disposition of sexual assaults.
(4) Subordinate commanders shall be advised that taking action on a victim's alleged collateral misconduct may be deferred until final disposition of the sexual assault case. The Military Departments shall establish procedures so that commanders and supervisors are not penalized for deferring collateral misconduct actions for the sexual assault victim until final disposition of the sexual assault case.
(5) Commanders shall have the authority to determine, in a timely manner, how to best manage the disposition of alleged misconduct, to include making the decision to defer disciplinary actions regarding a victim's alleged collateral misconduct until after the final disposition of the sexual assault case, where appropriate. For those sexual assault cases for which the victim's alleged collateral misconduct is deferred, Military Service reporting and processing requirements should take such deferrals into consideration and allow for the time deferred to be subtracted, when evaluating whether a commander took too long to resolve the collateral misconduct.
(h) Commander SAPR prevention procedures. Each commander shall implement a SAPR prevention program that:
(1) Establishes a command climate of sexual assault prevention predicated on mutual respect and trust, recognizes and embraces diversity, and values the contributions of all its Service members.
(2) Emphasizes that sexual assault is a crime and violates the core values of being a professional in the Military Services and ultimately destroys unit cohesion and the trust that is essential for mission readiness and success.
(3) Emphasizes DoD and Military Service policies on sexual assault and the potential legal consequences for those who commit such crimes.
(4) Monitors the organization's SAPR climate and responds with appropriate action toward any negative trends that may emerge.
(5) Identifies and remedies environmental factors specific to the location that may facilitate the commission of sexual assaults (e.g., insufficient lighting).
(6) Emphasizes sexual assault prevention training for all assigned personnel.
(7) Establishes prevention training that focus on identifying the behavior of potential offenders.
§ 105.10
SARC and SAPR VA procedures.
(a) SARC procedures. The SARC shall:
(1) Serve as the single point of contact to coordinate sexual assault response when a sexual assault is reported. All SARCs shall be authorized to perform VA duties in accordance with Military Service regulations, and will be acting in the performance of those duties.
(2) Upon implementation of the D-SAACP, comply with DoD Sexual Assault Advocate Certification requirements.
(3) Be trained in and understand the confidentiality requirements of Restricted Reporting and MRE 514. Training must include exceptions to Restricted Reporting and MRE 514.
(4) Assist the installation commander in ensuring that victims of sexual assault receive appropriate responsive care and understand their available reporting options (Restricted and Unrestricted) and available SAPR services.
(5) Be authorized by this part to accept reports of sexual assault along with the SAPR VA and healthcare personnel.
(6) Report directly to the installation commander in accordance with 32 CFR part 103, to include providing regular updates to the installation commander and assist the commander to meet annual SAPR training requirements, including providing orientation briefings for newly assigned personnel and, as appropriate, providing community education publicizing available SAPR services.
(7) Provide a 24 hour, 7 day per week response capability to victims of sexual assault, to include deployed areas.
(i) SARCs shall respond (see § 105.3) to every Restricted and Unrestricted Report of sexual assault on a military installation and the response shall be in person, unless otherwise requested by the victim.
(ii) Based on the locality, the SARC may ask the SAPR VA to respond and speak to the victim.
(A) There will be situations where a sexual assault victim receives medical care and a SAFE outside of a military installation under a MOU or MOA with local private or public sector entities. In these cases, pursuant to the MOU or MOA, victims shall be asked whether they would like the SARC to be notified, and, if so, the SARC or SAPR VA shall be notified, and a SARC or SAPR VA shall respond.
(B) When contacted by the SARC or SAPR VA, a sexual assault victim can elect not to speak to the SARC or SAPR VA, or the sexual assault victim may ask to schedule an appointment at a later time to speak to the SARC or SAPR VA.
(iii) SARCs shall provide a response that recognizes the high prevalence of pre-existing trauma (prior to the present sexual assault incident).
(iv) SARCs shall provide a response that is gender-responsive, culturally-competent, and recovery-oriented.
(v) SARCs shall offer appropriate referrals to sexual assault victims and facilitate access to referrals. Provide referrals at the request of the victim.
(A) Encourage sexual assault victims to follow-up with the referrals and facilitate these referrals, as appropriate.
(B) In order to competently facilitate referrals, inquire whether the victim is a Reservist or an NG member to ensure that victims are referred to the appropriate geographic location.
(8) Explain to the victim that the services of the SARC and SAPR VA are optional and these services may be declined, in whole or in part, at any time. The victim may decline advocacy services, even if the SARC or SAPR VA holds a position of higher rank or authority than the victim. Explain to victims the option of requesting a different SAPR VA (subject to availability, depending on locality staffing) or continuing without SAPR VA services.
(i) Explain the available reporting options to the victim.
(A) Have the victim fill out the DD Form 2910 where the victim elects to make a Restricted or Unrestricted Report.
(B) Inform the victim that the DD Form 2910 will be uploaded to DSAID and maintained for 50 years in Unrestricted Reports and retained in hard copy for 5 years in Restricted Reports, for the purpose of providing the victim access to document their sexual assault victimization with the Department of Veterans Affairs for care and benefits. However, at the request of a member of the Armed Forces who files a Restricted Report on an incident of sexual assault, the DD Forms 2910 and 2911 filed in connection with the Restricted Report be retained for 50 years.
(C) The SARC or SAPR VA shall tell the victim of any local or State sexual assault reporting requirements that may limit the possibility of Restricted Reporting. At the same time, the victims shall be briefed of the protections and exceptions to MRE 514.
(ii) Give the victim a hard copy of the DD Form 2910 with the victim's signature.
(A) Advise the victim to keep the copy of the DD Form 2910 in their personal permanent records as this form may be used by the victim in other matters before other agencies (e.g., Department of Veterans Affairs) or for any other lawful purpose.
(B) Store the original DD Form 2910 pursuant to secure storage Military Service regulations and privacy laws. A SARC being reassigned shall be required to assure their supervisor of the secure transfer of stored DD Forms 2910 to the next SARC. In the event of transitioning SARCs, the departing SARC shall inform their supervisor of the secure storage location of the DD Forms 2910, and the SARC supervisor will ensure the safe transfer of the DD Forms 2910.
(iii) Explain SAFE confidentiality to victims and the confidentiality of the contents of the SAFE Kit.
(iv) Explain the implications of a victim confiding in another person resulting in a third-party report to command or DoD law enforcement (§ 105.8 of this part).
(v) Provide the installation commander with information regarding an Unrestricted Report within 24 hours of an Unrestricted Report of sexual assault. This notification may be extended to 48 hours after the Unrestricted Report of the incident if there are extenuating circumstances in the deployed environments.
(vi) Provide the installation commander with non-PII within 24 hours of a Restricted Report of sexual assault. This notification may be extended to 48 hours after the Restricted Report of the incident if there are extenuating circumstances in a deployed environment. Command and installation demographics shall be taken into account when determining the information to be provided.
(vii) Exercise oversight responsibility for SAPR VAs authorized to respond to sexual assaults when they are providing victim advocacy services.
(viii) Perform victim advocacy duties, as needed. DoD recognizes the SARC's authority to perform duties as SAPR VAs, even though the SARC may not be designated in writing as a SAPR VA pursuant to Military Service regulation.
(ix) Inform the victim that pursuant to their Military Service regulations, each Service member who reports having been sexually assaulted shall be given the opportunity to consult with legal assistance counsel, and in cases where the victim may have been involved in collateral misconduct, to consult with defense counsel.
(A) Inform the victim that information concerning the prosecution shall be provided to them in accordance with DoDI 1030.2.
(B) The Service member victim shall be informed of the opportunity to consult with legal assistance counsel as soon as the victim seeks assistance from a SARC or SAPR VA.
(x) Facilitate education of command personnel on sexual assault and victim advocacy services.
(xi) Facilitate briefings on victim advocacy services to Service members, military dependents, DoD civilian employees (OCONUS), DoD contractors (accompanying the Military Services in contingency operations OCONUS), and other command or installation personnel, as appropriate.
(xii) Facilitate Annual SAPR training.
(xiii) Facilitate the development and collaboration of SAPR public awareness campaigns for victims of sexual assault, including planning local events for Sexual Assault Awareness Month. Publicize the DoD Safe Helpline on all outreach materials.
(xiv) Coordinate medical and counseling services between military installations and deployed units related to care for victims of sexual assault.
(xv) Conduct an ongoing assessment of the consistency and effectiveness of the SAPR program within the assigned area of responsibility.
(xvi) Collaborate with other agencies and activities to improve SAPR responses to and support of victims of sexual assault.
(xvii) Maintain liaison with commanders, DoD law enforcement, and MCIOs, and civilian authorities, as appropriate, for the purpose of facilitating the following protocols and procedures to:
(A) Activate victim advocacy 24 hours a day, 7 days a week for all incidents of reported sexual assault occurring either on or off the installation involving Service members and other persons covered by this part.
(B) Collaborate on public safety, awareness, and prevention measures.
(C) Facilitate ongoing training of DoD and civilian law enforcement and criminal investigative personnel on the SAPR policy and program and the roles and responsibilities of the SARC and SAPR VAs.
(xviii) Consult with command legal representatives, healthcare personnel, and MCIOs, (or when feasible, civilian law enforcement), to assess the potential impact of State laws governing the reporting requirements for adult sexual assault that may affect compliance with the Restricted Reporting option and develop or revise applicable MOUs and MOAs, as appropriate.
(xix) Collaborate with MTFs within their respective areas of responsibility to establish protocols and procedures to direct notification of the SARC and SAPR VA for all incidents of reported sexual assault, and facilitate ongoing training of healthcare personnel on the roles and responsibilities of the SARC and SAPR VAs.
(xx) Collaborate with local private or public sector entities that provide medical care Service members or TRICARE eligible beneficiaries who are for sexual assault victims and a SAFE outside of a military installation through an MOU or MOA.
(A) Establish protocols and procedures with these local private or public sector entities to facilitate direct notification of the SARC for all incidents of reported sexual assault and facilitate training of healthcare personnel of local private or public sector entities on the roles and responsibilities of SARCs and SAPR VAs, for Service members and persons covered by this policy.
(B) Provide off installation referrals to the sexual assault victims, as needed.
(xxi) When a victim has a temporary or PCS or is deployed, request victim consent to transfer case management documents and upon receipt of victim consent, expeditiously transfer case management documents to ensure continuity of care and SAPR services. If the SARC has already closed the case and terminated victim contact, no other action is needed.
(xxii) Document and track the services referred to and requested by the victim from the time of the initial report of a sexual assault through the final case disposition or until the victim no longer desires services.
(A) Enter information into DSAID or Military Service DSAID-interface within 48 hours of the report of sexual assault. In deployed locations that have internet connectivity issues, the time frame is extended to 96 hours.
(B) Maintain in DSAID, or the DSAID-interfaced Military Service data system, an account of the services referred to and requested by the victim for all reported sexual assault incidents, from medical treatment through counseling, and from the time of the initial report of a sexual assault through the final case disposition or until the victim no longer desires services.
(xxiii) Provide information to assist installation commanders to manage trends and characteristics of sexual assault crimes at the Military Service-level and mitigate the risk factors that may be present within the associated environment (e.g., the necessity for better lighting in the showers or latrines and in the surrounding area).
(xxiv) Participate in the CMG to review individual cases of Unrestricted Reports of sexual assault.
(A) The installation SARC, shall serve as the co-chair of the CMG. This responsibility is not delegable. If an installation has multiple SARCs on the installation, a Lead SARC shall be designated by the Service concerned, and shall serve as the co-chair.
(B) Other SARCs and SAPR VAs shall actively participate in each CMG meeting by presenting oral updates on their assigned sexual assault victim cases, providing recommendations and, if needed, seeking assistance from the chair or victim's commander.
(xxv) Familiarize the unit commanders and supervisors of SAPR VAs with the SAPR VA roles and responsibilities, using the DD Form 2909, “Victim Advocate Supervisor Statement of Understanding.” DD Form 2909 is available via the Internet at http://www.dtic.mil/whs/directives/infomgt/forms/eforms/dd2909.pdf.
(b) SAPR VA procedures. (1) The SAPR VA shall:
(i) Upon implementation of the D-SAACP, comply with DoD Sexual Assault Advocate Certification requirements.
(ii) Be trained in and understand the confidentiality requirements of Restricted Reporting and MRE 514. Training must include exceptions to Restricted Reporting and MRE 514.
(iii) Facilitate care and provide referrals and non-clinical support to the adult victim of a sexual assault.
(A) Support will include providing information on available options and resources so the victim can make informed decisions about his or her case.
(B) The SAPR VA will be directly accountable to the SARC in adult sexual assault cases (not under the FAP jurisdiction) and shall provide victim advocacy for adult victims of sexual assault.
(iv) Acknowledge their understanding of their advocacy roles and responsibilities using DD Form 2909.
(2) At the Military Service's discretion, victim advocacy may be provided by a Service member or DoD civilian employee. Personnel responsible for providing victim advocacy shall:
(i) Be notified and immediately respond upon receipt of a report of sexual assault.
(ii) Provide coordination and encourage victim service referrals and ongoing, non-clinical support to the victim of a reported sexual assault and facilitate care in accordance with the Sexual Assault Response Protocols prescribed SAPR Policy Toolkit located on www.sapr.mil. Assist the victim in navigating those processes required to obtain care and services needed. It is neither the SAPR VA's role nor responsibility to be the victim's mental health provider or to act as an investigator.
(iii) Report directly to the SARC while carrying out sexual assault advocacy responsibilities.
§ 105.11
Healthcare provider procedures.
This section provides guidance on medical management of victims of sexual assault to ensure standardized, timely, accessible, and comprehensive healthcare for victims of sexual assault, to include the ability to elect a SAFE Kit. This policy is applicable to all MHS personnel who provide or coordinate medical care for victims of sexual assault covered by this part.
(a) Standardized medical care. To ensure standardized healthcare, the Surgeons General of the Military Departments shall:
(1) Require the recommendations for conducting forensic exams of adult sexual assault victims in the U.S. Department of Justice Protocol be used to establish minimum standards for healthcare intervention for victims of sexual assault. Training for military sexual assault medical examiners and healthcare providers shall be provided to maintain optimal readiness.
(2) Require that MTFs that provide SAFEs for Service members or TRICARE eligible beneficiaries through an MOU or MOA with private or public sector entities verify initially and periodically that those entities meet or exceed standards of the recommendations for conducting forensic exams of adult sexual victims in the U.S. Department of Justice Protocol. In addition, verify that as part of the MOU or MOA, victims are be asked whether they would like the SARC to be notified, and if notified, that a SARC or SAPR VA actually responds.
(3) Require that medical providers providing healthcare to victims of sexual assault in remote areas or while deployed have access to the current version of the U.S. Department of Justice Protocol for conducting forensic exams.
(4) Implement procedures to provide the victim information regarding the availability of a SAFE Kit, which the victim has the option of refusing. If performed in the MTF, the healthcare provider shall use a SAFE Kit and the most current edition of the DD Form 2911.
(5) Require that the SARC be notified of all incidents of sexual assault in accordance with sexual assault reporting procedures in § 105.8 of this part.
(i) Require processes be established to support coordination between healthcare personnel and the SARC.
(ii) If a victim initially seeks assistance at a medical facility, SARC notification must not delay emergency care treatment of a victim.
(6) Require that care provided to sexual assault victims shall be gender-responsive, culturally competent, and recovery-oriented. Healthcare providers giving medical care to sexual assault victims shall recognize the high prevalence of pre-existing trauma (prior to present sexual assault incident) and the concept of trauma-informed care.
(7) If the healthcare provider is not appropriately trained to conduct a SAFE Kit, require that he or she arrange for a properly trained DoD healthcare provider to do so, if available.
(i) In the absence of a properly trained DoD healthcare provider, the victim shall be offered the option to be transported to a non-DoD healthcare provider for the SAFE Kit, if the victim wants a forensic exam. Victims who are not beneficiaries of the MHS shall be advised that they can obtain a SAFE Kit through a local civilian healthcare provider.
(ii) When a SAFE Kit is performed at local civilian medical facilities, those facilities are bound by State and local laws, which may require reporting the sexual assault to civilian law enforcement.
(iii) If the victim requests to file a report of sexual assault, the healthcare personnel, to include psychotherapists and other personnel listed in MRE 513 (Executive Order 13593), shall immediately call a SARC or SAPR VA, to assure that a victim is offered SAPR services and so that a DD Form 2910 can be completed.
(8) Require that SAFE Kit evidence collection procedures are the same for a Restricted and an Unrestricted Report of sexual assault.
(i) Upon completion of the SAFE Kit and securing of the evidence, the healthcare provider will turn over the material to the appropriate Military Service-designated law enforcement agency or MCIO as determined by the selected reporting option.
(ii) Upon completion of the SAFE Kit, the sexual assault victim shall be provided with a hard copy of the completed DD Form 2911. Advise the victim to keep the copy of the DD Form 2911 in their personal permanent records as this form may be used by the victim in other matters before other agencies (e.g., Department of Veterans Affairs) or for any other lawful purpose.
(9) Publicize availability of medical treatment (to include behavioral health), and referral services for alleged offenders who are also active duty Service members.
(10) Require the healthcare provider in the course of, preparing a SAFE Kit for Restricted Reports of sexual assault:
(i) Contact the designated installation official, usually the SARC, who shall generate an alpha-numeric RRCN, unique to each incident. The RRCN shall be used in lieu of PII to label and identify evidence collected from a SAFE Kit (e.g., accompanying documentation, personal effects, and clothing). The SARC shall provide (or the SARC will designate the SAPR VA to provide) the healthcare provider with the RRCN to use in place of PII.
(ii) Upon completion of the SAFE Kit, package, seal, and completely label of the evidence container(s) with the RRCN and notify the Military Service designated law enforcement agency or MCIO.
(11) Require that healthcare personnel must maintain the confidentiality of a Restricted Report to include communications with the victim, the SAFE, and the contents of the SAFE Kit, unless an exception to Restricted reporting applies. Healthcare personnel who make an unauthorized disclosure of a confidential communication are subject to disciplinary action and that unauthorized disclosure has no impact on the status of the Restricted Report; all Restricted Reporting information remains confidential and protected. Improper disclosure of confidential communications under Restricted Reporting, improper release of medical information, and other violations of this guidance are prohibited and may result in discipline pursuant to the UCMJ or State statute, loss of privileges, or other adverse personnel or administrative actions.
(b) Timely medical care. To comply with the requirement to provide timely medical care, the Surgeons General of the Military Departments shall:
(1) Implement processes or procedures giving victims of sexual assault priority as emergency cases.
(2) Provide sexual assault victims with priority treatment as emergency cases, regardless of evidence of physical injury, recognizing that every minute a patient spends waiting to be examined may cause loss of evidence and undue trauma. Priority treatment as emergency cases includes activities relating to access to healthcare, coding, and medical transfer or evacuation, and complete physical assessment, examination, and treatment of injuries, including immediate emergency interventions.
(c) Comprehensive medical care. To comply with the requirement to provide comprehensive medical care, the Surgeons General of the Military Departments shall:
(1) Establish processes and procedures to coordinate timely access to emergency, follow-up, and specialty care that may be provided in the direct or civilian purchased care sectors for eligible beneficiaries of the Military Health System.
(2) Evaluate and implement, to the extent feasible, processes linking the medical management of the sexually assaulted patient to the primary care manager. To locate his or her primary care manager, a beneficiary may go to beneficiary web enrollment at https://www.hnfs.com/content/hnfs/home/tn/bene/res/faqs/beneficiary/enrollment_eligibility/who_pcm.html.
(d) Clinically stable. Require the healthcare provider to consult with the victim, once clinically stable, regarding further healthcare options to the extent eligible, which shall include, but are not limited to:
(1) Testing, prophylactic treatment options, and follow-up care for possible exposure to human immunodeficiency virus (HIV) and other sexually transmitted diseases or infections (STD/I).
(2) Assessment of the risk of pregnancy, options for emergency contraception, and any necessary follow-up care and referral services.
(3) Assessment of the need for behavioral health services and provisions for a referral, if necessary or requested by the victim.
(e) Other responsibilities. (1) The Surgeons General of the Military Departments shall:
(i) Identify a primary office to represent their Department in Military Service coordination of issues pertaining to medical management of victims of sexual assault.
(ii) Assign a healthcare provider at each MTF as the primary point of contact concerning DoD and Military Service SAPR policy and for updates in sexual assault care.
(2) The Combatant Commanders shall:
(i) Require that victims of sexual assault in deployed locations within their area of responsibility are transported to an appropriate evaluation site, evaluated, treated for injuries (if any), and offered SAPR VA assistance and a SAFE as quickly as possible.
(ii) Require that U.S. theater hospital facilities (Level 3, North Atlantic Treaty Organization role 3) (see § 105.3) have appropriate capability to provide experienced and trained SARC and SAPR VA services, SAFE providers, and those victims of sexual assault, regardless of reporting status, are medically evacuated to such facilities as soon as possible (within operational needs) of making a report, consistent with operational needs.
§ 105.12
SAFE Kit collection and preservation.
For the purposes of the SAPR Program, forensic evidence collection and document and evidence retention shall be completed in accordance with this section pursuant to 32 CFR part 103, taking into account the medical condition, needs, requests, and desires of each sexual assault victim covered by this part.
(a) Medical services offered to eligible victims of sexual assault include the ability to elect a SAFE Kit in addition to the general medical management related to sexual assault response, to include mental healthcare. The SAFE of a sexual assault victim should be conducted by a healthcare provider who has specialized education and clinical experience in the collection of forensic evidence and treatment of these victims. The forensic component includes gathering information in DD Form 2911 from the victim for the medical forensic history, an examination, documentation of biological and physical findings, collection of evidence from the victim, and follow-up as needed to document additional evidence.
(b) The process for collecting and preserving sexual assault evidence for the Restricted Reporting option is the same as the Unrestricted Reporting option, except that the Restricted Reporting option does not trigger the official investigative process, and any evidence collected has to be placed inside the SAFE Kit, which is marked with the RRCN in the location where the victim's name would have otherwise been written. The victim's SAFE and accompanying Kit is treated as a confidential communication under this reporting option. The healthcare provider shall encourage the victim to obtain referrals for additional medical, psychological, chaplain, victim advocacy, or other SAPR services, as needed. The victim shall be informed that the SARC will assist them in accessing SAPR services.
(c) In situations where installations do not have a SAFE capability, the installation commander will require that the eligible victim, who wishes to have a SAFE, be transported to a MTF or local off-base, non-military facility that has a SAFE capability. A local sexual assault nurse examiner or other healthcare providers who are trained and credentialed to perform a SAFE may also be contracted to report to the MTF to conduct the examination.
(d) The SARC or SAPR VA shall tell the victim of any local or State sexual assault reporting requirements that may limit the possibility of Restricted Reporting before proceeding with the SAFE.
(e) Upon completion of the SAFE in an Unrestricted Reporting case, the healthcare provider shall package, seal, and label the evidence container(s) with the victim's name and notify the Military Service designated law enforcement agency or MCIO.
(1) The DoD law enforcement or MCIO representative shall be trained and capable of collecting and preserving evidence to assume custody of the evidence using established chain of custody procedures, consistent with the guidelines published under the authority and oversight of the IG, DoD.
(2) MOUs and MOAs, with off-base, non-military facilities for the purposes of providing medical care to eligible victims of sexual assault covered under this part, shall include instructions for the notification of a SARC (regardless of whether a Restricted or Unrestricted Report of sexual assault is involved), and procedures of the receipt of evidence and disposition of evidence back to the DoD law enforcement agency or MCIO.
(f) Upon completion of the SAFE in a Restricted Reporting case, the healthcare provider shall package, seal, and label the evidence container(s) with the RRCN and store in accordance with Service regulations.
(1) The DoD law enforcement or MCIO representative shall be trained and capable of collecting and preserving evidence to assume custody of the evidence using established chain of custody procedures, consistent with the guidelines published under the authority and oversight of the IG, DoD. MOUs and MOAs, with off-base, non-military facilities for the purpose of to providing medical care to eligible victims of sexual assault covered under this part, shall include instructions for the notification of a SARC (regardless of whether a Restricted or Unrestricted Report of sexual assault is involved), procedures for the receipt of evidence, how to request an RRCN, instructions on where to write the RRCN on the SAFE Kit, and disposition of evidence back to the DoD law enforcement agency or MCIO.
(2) Any evidence and the SAFE Kit in Restricted Reporting cases (to include the DD Form 2911) shall be stored for 5 years from the date of the victim's Restricted Report of the sexual assault, thus allowing victims additional time to accommodate, for example, multiple deployments or deployments exceeding 12 months.
(i) The SARC will contact the victim at the 1-year mark of the report to inquire whether the victim wishes to change their reporting option to Unrestricted.
(A) If the victim does not change to Unrestricted Reporting, the SARC will explain to the victim that the SAFE Kit, DD Form 2911, and the DD Form 2910 will be retained for a total of 5 years from the time the victim signed the DD Form 2910 (electing the Restricted Report) and will then be destroyed. (However, at the request of a member of the Armed Forces who files a Restricted Report on an incident of sexual assault, the Department of Defense Forms 2910 and 2911 filed in connection with the Restricted Report be retained for 50 years.) The SARC will emphasize to the victim that his or her privacy will be respected and he or she will not be contacted again by the SARC. The SARC will stress it is the victim's responsibility from that point forward, if the victim wishes to change from a Restricted to an Unrestricted Report, to affirmatively contact a SARC before the 5-year retention period elapses.
(B) The victim will be advised again to keep a copy of the DD Form 2910 and the DD Form 2911 in his or her personal permanent records as these forms may be used by the victim in other matters with other agencies (e.g., Department of Veterans Affairs) or for any other lawful purpose.
(C) If the victim needs another copy of either of these forms, he or she can request it at this point and the SARC shall assist the victim in accessing the requested copies within 7 business days. The SARC will document this request in the DD Form 2910.
(ii) At least 30 days before the expiration of the 5-year storage period, the DoD law enforcement or MCIO shall notify the installation SARC that the storage period is about to expire and confirm with the SARC that the victim has not made a request to change to Unrestricted Reporting or made a request for any personal effects.
(A) If there has been no change, then at the expiration of the storage period in compliance with established procedures for the destruction of evidence, the designated activity, generally the DoD law enforcement agency or MCIO, may destroy the evidence maintained under that victim's RRCN.
(B) If, before the expiration of the 5-year storage period, a victim changes his or her reporting preference to the Unrestricted Reporting option, the SARC shall notify the respective MCIO, which shall then assume custody of the evidence maintained by the RRCN from the DoD law enforcement agency or MCIO, pursuant to established chain of custody procedures. MCIO established procedures for documenting, maintaining, and storing the evidence shall thereafter be followed.
(1) The DoD law enforcement agency or MCIO, which will receive forensic evidence from the healthcare provider if not already in custody, and label and store such evidence shall be designated.
(2) The designated DoD law enforcement agency or MCIO representative must be trained and capable of collecting and preserving evidence in Restricted Reports prior to assuming custody of the evidence using established chain of custody procedures.
(iii) Evidence will be stored by the DoD law enforcement agency or MCIO until the 5-year storage period for Restricted Reporting is reached or a victim changes to Unrestricted Reporting.
§ 105.13
Case management for Unrestricted Reports of sexual assault.
(a) General. (1) The installation commander or the deputy installation commander shall chair the CMG on a monthly basis to review individual cases, facilitate monthly victim updates, and direct system coordination, accountability, entry of disposition and victim access to quality services. This responsibility may not be delegated. If there are no cases in a given month, the CMG will still meet to ensure training, processes, and procedures are complete for the system coordination.
(2) The installation SARC shall serve as the co-chair of the CMG. This responsibility may not be delegated. Only a SARC who is a Service member or DoD civilian employee may co-chair the multi-disciplinary CMG.
(3) Required CMG members shall include: victim's commander; all SARCs assigned to the installation (mandatory attendance regardless of whether they have an assigned victim being discussed); victim's SAPR VA, MCIO and DoD law enforcement who are involved with and working on a specific case; victim's healthcare provider or mental health and counseling services provider; chaplain, legal representative, or SJA; installation personnel trained to do a safety assessment of current sexual assault victims; victim's VWAP representative (or civilian victim witness liaison, if available). MCIO, DoD law enforcement and the legal representative or SJA shall provide case dispositions. The CMG chair will ensure that the appropriate principal is available.
(4) If the installation is a joint base or if the installation has tenant commands, the commander of the tenant organization and the designated Lead SARC shall be invited to the CMG meetings. The commander of the tenant organization shall provide appropriate information to the host commander, to enable the host commander to provide the necessary supporting services.
(5) CMG members shall receive the mandatory SAPR training pursuant to § 105.14 of this part.
(6) Service Secretaries shall issue guidance to ensure that equivalent standards are met for case oversight by CMGs in situations where SARCs are not installation-based but instead work within operational and/or deployable organizations.
(b) Procedures. (1) The CMG members shall carefully consider and implement immediate, short-term, and long-term measures to help facilitate and assure the victim's well-being and recovery from the sexual assault. They will closely monitor the victim's progress and recovery and strive to protect the victim's privacy, ensuring only those with an official need to know have the victim's name and related details. Consequently, where possible, each case shall be reviewed independently bringing in only those personnel associated with the case, as well as the CMG chair and co-chair.
(2) The CMG chair shall:
(i) Ensure that commander(s) of the Service member(s) who is a subject of a sexual assault allegation, provide in writing all disposition data, to include any administrative or judicial action taken, stemming from the sexual assault investigation to the MCIO. Information provided by commanders is used to meet the Department's requirements for the submission of criminal history data to the Criminal Justice Information System, Federal Bureau of Investigation; and to record the disposition of offenders into DSAID.
(ii) Require that case dispositions are communicated to the sexual assault victim within 2 business days of the final disposition decision. The CMG chair will require that the appropriate paperwork (pursuant to Service regulation) is submitted for each case disposition within 24 hours, which shall be inputted into DSAID or a DSAID Service interface system by the designated officials.
(iii) Monitor and require immediate transfer of sexual assault victim information between SARCs and SAPR VAs, in the event of the SARC's or SAPR VA's change of duty station, to ensure continuity of SAPR services for victims.
(iv) Require that the SARCs and SAPR VAs actively participate in each CMG meeting by presenting oral updates (without disclosing protected communications and victim confidentiality), providing recommendations and, if needed, the SARC or the SAPR VA shall affirmatively seek assistance from the chair or victim's commander.
(v) Require an update of the status of each expedited transfer request and MPO.
(vi) If the victim has informed the SARC of an existing CPO, the chair shall require the SARC to inform the CMG of the existence of the CPO and its requirements.
(vii) After protective order documentation is presented at the CMG from the SARC or the SAPR VA, the DoD law enforcement agents at the CMG will document the information provided in their investigative case file, to include documentation for Reserve Component personnel in title 10 status.
(3) The CMG Co-chair shall:
(i) Confirm that all reported sexual assaults are entered into DSAID or a DSAID Service interface system within 48 hours of the report of sexual assault. In deployed locations that have internet connectivity issues, the time frame is extended to 96 hours.
(ii) Confirm that only the SARC is inputting information into DSAID or a DSAID Service interface system.
(iii) Keep minutes of the monthly meetings to include those in attendance and issues discussed. CMG participants are only authorized to share case information with those who have an official need to know.
(4) For each victim, the assigned SARC and SAPR VA will confirm at the CMG that the victim has been informed of their SAPR services to include counseling, medical, and legal resources without violating victim confidentiality.
(5) For each victim, each CMG member who is involved with and working on a specific case will provide an oral update without violating victim confidentiality or disclosing privileged communications.
(6) For each victim, the victim's commander will confirm at the CMG that the victim has received a monthly update from the victim's commander of her/his case within 72 hours of the last CMG, to assure timely victim updates. This responsibility may not be delegated.
(7) On a joint base or if the installation has tenant commands:
(i) The CMG membership will explore the feasibility of joint use of existing SAPR resources, to include rotating on-call status of SARCs and SAPR VAs. Evaluate the effectiveness of communication among SARCs, SAPR VAs, and first responders.
(ii) The CMG chair will request an analysis of data to determine trends and patterns of sexual assaults and share this information with the commanders on the joint base or the tenant commands. The CMG membership will be briefed on that trend data.
(8) There will be a safety assessment capability. The CMG chair will identify installation personnel who have been trained and are able to perform a safety assessment of each sexual assault victim.
(i) The CMG chair will require designated installation personnel, who have been trained and are able to perform a safety assessment of each sexual assault victim, to become part of the CMG and attend every monthly meeting.
(ii) The CMG chair will request a safety assessment by trained personnel of each sexual assault victim at each CMG meeting, to include a discussion of expedited military transfers or MPOs, if needed.
(iii) The CMG co-chair will confirm that the victims are advised that MPOs are not enforceable off-base by civilian law enforcement.
(iv) If applicable, the CMG chair will confirm that both the suspect and the victim have a hard copy of the MPO.
(v) Form a High-Risk Response Team if a victim is assessed to be in a high-risk situation. The CMG chair will immediately stand up a multi-disciplinary High-Risk Response Team to continually monitor the victim's safety, by assessing danger and developing a plan to manage the situation.
(A) The High-Risk Response Team shall be chaired by the victim's commander and, at a minimum, include the suspect's commander; the victim's SARC and SAPR VA; the MCIO, the judge advocate, and the VWAP assigned to the case, victim's healthcare provider or mental health and counseling services provider; and the personnel who conducted the safety assessment.
(B) The High-Risk Response Team shall make their first report to the installation commander, CMG chair, and CMG co-chair within 24 hours of being activated. A briefing schedule for the CMG chair and co-chair will be determined, but briefings shall occur at least once a week while the victim is on high-risk status.
(C) The High-Risk Response Team assessment of the victim shall include, but is not limited to evaluating:
(1) Victim's safety concerns.
(2) Suspect's access to the victim or whether the suspect is stalking or has stalked the victim.
(3) Previous or existing relationship or friendship between the victim and the suspect, or the suspect and the victim's spouse, or victim's dependents. The existence of children in common. The sharing (or prior sharing) of a common domicile.
(4) Whether the suspect (or the suspect's friends or family members) has destroyed victim's property; threatened or attacked the victim; or threatened, attempted, or has a plan to harm or kill the victim or the victim's family members; or intimidated the victim to withdraw participation in the investigation or prosecution.
(5) Whether the suspect has threatened, attempted, or has a plan to commit suicide.
(6) Whether the suspect has used a weapon, threatened to use a weapon, or has access to a weapon that may be used against the victim.
(7) Whether the victim has sustained serious injury during the sexual assault incident.
(8) Whether the suspect has a history of law enforcement involvement regarding domestic abuse, assault, or other criminal behavior.
(9) Whether the victim has a civilian protective order or command has an MPO against the suspect, or there has been a violation of a civilian protective order or MPO by the suspect.
(10) History of drug or alcohol abuse by either the victim or the suspect.
(11) Whether the suspect exhibits erratic or obsessive behavior, rage, agitation, or instability.
(12) Whether the suspect is a flight risk.
§ 105.14
Training requirements for DoD personnel.
(a) Management of training requirements. (1) Commanders, supervisors, and managers at all levels shall be responsible for the effective implementation of the SAPR program.
(2) Military and DoD civilian officials at each management level shall advocate a robust SAPR program and provide education and training that shall enable them to prevent and appropriately respond to incidents of sexual assault.
(3) Data shall be collected according to the annual reporting requirements in accordance with Public Law 111-383 and explained in § 105.16 of this part.
(b) General training requirements. (1) The Secretaries of the Military Departments and the Chief, NGB, shall direct the execution of the training requirements in this section to individually address SAPR prevention and response in accordance with § 105.5 of this part. These SAPR training requirements shall apply to all Service members and DoD civilian personnel who supervise Service members.
(i) The Secretaries and the Chief, NGB, shall develop dedicated SAPR training to ensure comprehensive knowledge of the training requirements.
(ii) The SAPR training, at a minimum, shall incorporate adult learning theory, which includes interaction and group participation.
(iii) Upon request, the Secretaries and the Chief, NGB, shall submit a copy of SAPR training programs or SAPR training elements to USD(P&R) through SAPRO for evaluation of consistency and compliance with DoD SAPR training standards in this part. The Military Departments will correct USD(P&R) identified DoD SAPR policy and training standards discrepancies.
(2) Commanders and managers responsible for training shall require that all personnel (i.e., all Service members, DoD civilian personnel who supervise Service members, and other personnel as directed by the USD(P&R)) are trained and that completion of training data is annotated. Commanders for accession training will ensure all new accessions are trained and that completion of training data is annotated.
(3) If responsible for facilitating the training of civilians supervising Service members, the unit commander or civilian director shall require all SAPR training requirements in this section are met. The unit commander or civilian equivalent shall be accountable for requiring data collection regarding the training.
(4) The required subject matter for the training shall be appropriate to the Service member's grade and commensurate with their level of responsibility, to include:
(i) Defining what constitutes sexual assault. Utilizing the term “sexual assault” as defined in 32 CFR part 103.
(ii) Explaining why sexual assaults are crimes.
(iii) Defining the meaning of “consent” as defined in 32 CFR part 103.
(iv) Explaining offender accountability and UCMJ violations.
(v) Explaining the distinction between sexual harassment and sexual assault and that both are unacceptable forms of behavior even though they may have different penalties. Emphasizing the distinction between civil and criminal actions.
(vi) Explaining available reporting options (Restricted and Unrestricted), the advantages and limitations of each option, the effect of independent investigations on Restricted Reports (See § 105.8(a)(6) of this part) and explaining MRE 514.
(vii) Providing an awareness of the SAPR program (DoD and Service) and command personnel roles and responsibilities, including all available resources for victims on and off base.
(viii) Identifying prevention strategies and behaviors that may reduce sexual assault, including bystander intervention, risk reduction, and obtaining affirmative consent.
(ix) Discussing process change to ensure that all sexual assault response services are gender-responsive, culturally-competent, and recovery-oriented.
(x) Discussing expedited transfers and MPO procedures.
(xi) Providing information to victims when the alleged perpetrator is the commander or in the victim's chain of command, to go outside the chain of command to report the offense to other COs or an Inspector General. Victims shall be informed that they can also seek assistance from a legal assistance attorney or the DoD Safe Helpline.
(xii) Discussing of document retention for sexual assault documents (DD Forms 2910 and 2911), to include retention in investigative records. Explaining why it is recommended that sexual assault victims retain sexual assault records for potential use in the Department of Veterans Affairs benefits applications.
(c) DoD personnel training requirements. Refer to Military Service-specific training officers that maintain personnel training schedules.
(1) Accessions training shall occur upon initial entry.
(i) Mirror the General Training Requirements in § 105.14(b).
(ii) Provide scenario-based, real-life situations to demonstrate the entire cycle of prevention, reporting, response, and accountability procedures to new accessions to clarify the nature of sexual assault in the military environment.
(2) Annual training shall occur once a year and is mandatory for all Service members regardless of rank or occupation or specialty.
(i) Mirror the General Training Requirements in § 105.14(b).
(ii) Explain the nature of sexual assault in the military environment using scenario-based, real-life situations to demonstrate the entire cycle of prevention, reporting, response, and accountability procedures.
(iii) Deliver to Service members in a joint environment from their respective Military Services and incorporate adult learning theory.
(3) Professional military education (PME) and leadership development training (LDT).
(i) For all trainees, PME and LDT shall mirror the General Training Requirements in § 105.14.
(ii) For senior noncommissioned officers and commissioned officers, PME and LDT shall occur during developmental courses throughout the military career and include:
(A) Explanation and analysis of the SAPR program.
(B) Explanation and analysis of the necessity of immediate responses after a sexual assault has occurred to counteract and mitigate the long-term effects of violence. Long-term responses after sexual assault has occurred will address the lasting consequences of violence.
(C) Explanation of rape myths (See SAPR Toolkit on www.sapr.mil), facts, and trends pertaining to the military population.
(D) Explanation of the commander's and senior enlisted Service member's role in the SAPR program.
(E) Review of all items found in the commander's protocols for Unrestricted Reports of sexual assault. (See SAPR Toolkit on www.sapr.mil.)
(F) Explanation of what constitutes reprisal according to § 105.3 and procedures for reporting allegations of reprisal in accordance with DoDD 7050.06.
(4) Pre-deployment training shall be provided.
(i) Mirror the General Training Requirements in § 105.14(b).
(ii) Explain risk reduction factors tailored to the deployment location.
(iii) Provide a brief history of the specific foreign countries or areas anticipated for deployment, and the area's customs, mores, religious practices, and status of forces agreement. Explain cultural customs, mores, and religious practices of coalition partners.
(iv) Identify the type of trained sexual assault responders who are available during the deployment (e.g., law enforcement personnel, legal personnel, SARC, SAPR VAs, healthcare personnel, chaplains).
(v) Upon implementation of the D-SAACP, and unless previously credentialed, include completion of certification for SARCs and VAs.
(5) Post-deployment reintegration training shall occur within 30 days of returning from deployment and:
(i) Commanders of re-deploying personnel will ensure training completion.
(ii) Explain available counseling and medical services, reporting options, and eligibility benefits for Service members and the Reserve Component.
(iii) Explain MRE 514. Explain that Reserve members not in active service at the time of the incident or at the time of the report can make a Restricted or Unrestricted report with the SARC or SAPR VA when on active duty and then be eligible to receive SAPR services.
(6) Pre-command training shall occur prior to filling a command position.
(i) Mirror the General Training Requirements in § 105.14(b).
(A) The personnel trained shall include all officers who are selected for command and the unit's senior enlisted Service member.
(B) The required subject matter for the training shall be appropriate to the level of responsibility and commensurate with level of command.
(ii) Explain rape myths, facts, and trends.
(iii) Provide awareness of the SAPR program and explain the commander's and senior enlisted Service member's role in executing their SAPR service program.
(iv) Review all items found in the commander's protocols for Unrestricted Reports of sexual assault. (See SAPR Toolkit on www.sapr.mil.)
(v) Explain what constitutes reprisal and procedures for addressing reprisal allegations.
(d) G/FO and SES personnel training requirements. G/FO and SES personnel training shall occur at the initial executive level program training and annually thereafter. Mirror the General Training Requirements in § 105.14(b).
(1) The Military Services' executive level management offices are responsible for tracking data collection regarding the training.
(2) The required subject matter for the training shall be appropriate to the level of responsibility and commensurate with level of command.
(3) Training guidance for other DoD components other than the Military Departments, will be provided in a separate issuance.
(e) Military Recruiters. Military recruiter training shall occur annually and mirror the General Training Requirements in § 105.14(b).
(f) Training for civilians who supervise service members. Training is required for civilians who supervise Service members, for all civilians in accordance with section 585 of Public Law 112-81 and, if feasible, highly recommended for DoD contractors. Training shall occur annually and mirror the General Training Requirements in § 105.14(b).
(g) Responder training requirements. To standardize services throughout the DoD, as required in 32 CFR part 103, all DoD sexual assault responders shall receive the same baseline training. These minimum training standards form the baseline on which the Military Services and specialized communities can build. First responders are composed of personnel in the following disciplines or positions: SARCs; SAPR VAs; healthcare personnel; DoD law enforcement; MCIOs; judge advocates; chaplains; firefighters and emergency medical technicians. Commanders and VWAP personnel can be first responders. Commanders receive their SAPR training separately.
(1) All responder training shall:
(i) Be given in the form of initial and annual refresher training from their Military Service in accordance with § 105.5 of this part. Responder training is in addition to annual training.
(ii) Be developed for each responder functional area from each military service and shall:
(A) Explain the different sexual assault response policies and critical issues.
(1) DoD SAPR policy, including the role of the SARC, SAPR VA, victim witness liaison, and CMG.
(2) Military Service-specific policies.
(3) Unrestricted and Restricted Reporting as well as MRE 514.
(4) Exceptions to Restricted Reporting and limitations to use.
(5) Change in victim reporting preference election.
(6) Victim advocacy resources.
(B) Explain the requirement that SARCs must respond in accordance with this part.
(C) Describe local policies and procedures with regards to local resources, referrals, procedures for military and civilians as well as collaboration and knowledge of resources and referrals that can be utilized at that specific geographic location.
(D) Explain the range of victim responses to sexual assault to include:
(1) Victimization process, including re-victimization and secondary victimization.
(2) Counterintuitive behavior.
(3) Impact of trauma on memory and recall.
(4) Potential psychological consequences, including acute stress disorder and post traumatic stress disorder.
(E) Explain deployment issues, including remote location assistance.
(F) Explain the possible outcomes of investigations of sexual assault.
(G) Explain the possible flow of a sexual assault investigation. (See flowchart in the SAPR Policy Toolkit, located at www.sapr.mil.)
(H) Be completed prior to deployment.
(I) Recommend, but not require, that SAPR training for responders include safety and self care.
(2) SARC training shall:
(i) Provide the responder training requirements in § 105.14(g)(1).
(ii) Be scenario-based and interactive. Provide for role play where a trainee SARC counsels a sexual assault victim and is critiqued by a credentialed SARC and/or an instructor.
(iii) Explain roles and responsibilities and command relationships.
(iv) Explain the different reporting options, to include the effects of independent investigations (see § 105.8 of this part). Explain the exceptions to Restricted Reporting, with special emphasis on suspending Restricted Reporting where it is necessary to prevent or mitigate a serious and imminent threat to the health or safety of the victim or another person.
(v) Provide training on entering reports of sexual assault into DSAID through interface with a Military Service data systems or by direct data entry. Provide training on potential discovery obligations regarding any notes entered in DSAID.
(vi) Provide training on document retention of Restricted and Unrestricted cases.
(vii) Provide training on expedited transfer and MPO procedures.
(viii) Provide instruction on all details of SAPR VA screening, including addressing:
(A) What to do if SAPR VA is a recent victim, or knows sexual assault victims.
(B) What to do if SAPR VA was accused of being an offender or knows someone who was accused.
(C) Identifying the SAPR VA's personal biases.
(D) The necessary case management skills.
(1) Required reports and proper documentation as well as records management.
(2) Instruction to complete DD Form 2910 and proper storage according to Federal service privacy regulations.
(3) Ability to conduct SAPR training, when requested by the SARC or commander.
(4) Transferring cases to another installation SARC.
(ix) Explain the roles and responsibilities of the VWAP and DD Form 2701.
(x) Inform SARCs of the existence of the SAPRO Web site at http://www.sapr.mil, and encourage its use for reference materials and general DoD-level SAPR information.
(3) SAPR VA training shall:
(i) Provide the responder training requirements in § 105.14(g)(1).
(ii) Be scenario-based and interactive. Provide for role play where a trainee SAPR VA counsels a sexual assault victim, and then that counseling session is critiqued by an instructor.
(iii) Explain the different reporting options, to include the effects of independent investigations (see § 105.8 of this part). Explain the exceptions to Restricted Reporting, with special emphasis on suspending Restricted Reporting where it is necessary to prevent or lessen a serious and imminent threat to the health or safety of the victim or another person.
(iv) Include:
(A) Necessary critical advocacy skills.
(B) Basic interpersonal and assessment skills.
(1) Appropriate relationship and rapport building.
(2) Sensitivity training to prevent re-victimization.
(C) Crisis intervention.
(D) Restricted and Unrestricted Reporting options as well as MRE 514.
(E) Roles and limitations, to include: command relationship, SAPR VA's rights and responsibilities, reporting to the SARC, and recognizing personal biases and issues.
(F) Preparing proper documentation for a report of sexual assault.
(G) Document retention in Restricted and Unrestricted cases.
(H) Expedited transfer and MPO procedures.
(I) Record keeping rules for protected disclosures relating to a sexual assault.
(J) A discussion of ethical issues when working with sexual assault victims as a VA.
(K) A discussion of individual versus system advocacy.
(L) A review of the military justice process and adverse administrative actions.
(M) Overview of criminal investigative process and military judicial requirements.
(N) A review of the issues in victimology.
(1) Types of assault.
(2) Health consequences such as mental and physical health.
(3) Cultural and religious differences.
(4) Victims' rights and the victim's role in holding offenders appropriately accountable and limitations on offender accountability when the victim elects Restricted Reporting.
(5) Healthcare management of sexual assault and medical resources and treatment options to include the medical examination, the forensic examination, mental health and counseling, pregnancy, and STD/I and HIV.
(6) Identification of safety issues and their immediate report to the SARC or law enforcement, as appropriate.
(7) Identification of reprisal and retaliation actions against the victim; procedures for responding to reprisal actions and their immediate reporting to the SARC and the VWAP; safety planning to include how to prevent retaliation or reprisal actions against the victim.
(8) Separation of the victim and offender as well as the MPO and CPO process.
(9) Expedited transfer process for the victim.
(O) An explanation of the roles and responsibilities of the VWAP and DD Form 2701.
(P) Safety and self care, to include vicarious trauma.
(4) Healthcare personnel training shall be in two distinct training categories:
(i) Training for Healthcare Personnel Assigned to an MTF. In addition to the responder training requirements in § 105.14(g)(1), MTF healthcare personnel shall be trained and remain proficient in medical treatment resources, in conducting a sexual assault patient interviews, and in conducting the SAFE Kit process. Healthcare personnel who received a Restricted Report shall immediately call a SARC or SAPR VA, so a DD Form 2910 can be completed.
(ii) Training for Healthcare Providers Performing SAFEs in MTFs (see 32 CFR 103.4). In addition to the responder training requirements in § 105.14(g)(1), healthcare providers performing SAFEs shall be trained and remain proficient in conducting SAFEs. Healthcare providers who may be called on to provide comprehensive medical treatment to a sexual assault victim, including performing SAFEs are: obstetricians and gynecologists and other licensed practitioners (preferably family physicians, emergency medicine physicians, and pediatricians); advanced practice nurses with specialties in midwifery, women's health, family health, and pediatrics; physician assistants trained in family practice or women's health; and registered nurses with documented education, training, and clinical practice in sexual assault examinations in accordance with the U.S. Department of Justice Protocol. Healthcare personnel who received a Restricted Report shall immediately call a SARC or SAPR VA so a DD Form 2910 can be completed.
(iv) Healthcare personnel and provider training shall:
(A) Explain how to conduct a sexual assault patient interview to obtain medical history and assault information.
(B) Explain how to conduct a SAFE in accordance with the U.S. Department of Justice Protocol and include explanations on:
(1) SAFE Kit and DD Form 2911.
(2) Toxicology kit for suspected drug-facilitated cases.
(3) Chain of custody.
(4) Translation of findings.
(5) Proper documentation.
(6) Storage of evidence in Restricted Reports (e.g., RRCN).
(7) Management of the alleged offender.
(8) Relevant local and State laws and restrictions.
(9) Medical treatment issues during deployments including remote location assistance to include: location resources including appropriate personnel, supplies (drying device, toluidine blue dye, colposcope, camera), standard operating procedures, location of SAFE Kit and DD Form 2911; and availability and timeliness of evacuation to echelon of care where SAFEs are available.
(C) Explain how to deal with emergency contraception and STD/I treatment.
(D) Discuss physical and mental health assessment.
(E) Explain how to deal with trauma, to include:
(1) Types of injury.
(2) Photography of injuries.
(3) Behavioral health and counseling needs.
(4) Consulting and referral process.
(5) Appropriate follow-up.
(6) Drug or alcohol facilitated sexual assault, to include review of best practices, victim interview techniques, and targeted evidence collections.
(F) Explain medical record management.
(G) Explain legal process and expert witness testimony.
(5) DoD law enforcement (those elements of DoD components, to include MCIOs, authorized to investigate violations of the UCMJ) training shall:
(i) Include the Responder Training requirements in § 105.14(g)(1) for DoD law enforcement personnel who may respond to a sexual assault complaint.
(ii) Remain consistent with the guidelines published under the authority and oversight of the IG, DoD. In addition, DoD law enforcement training shall:
(A) Explain how to respond in accordance with the SAPR program.
(1) Notify the command, SARC, and SAPR VA.
(2) Work with SAPR VAs and SARCs, and medical personnel.
(B) Explain how to work with sexual assault victims, to include the effects of trauma on sexual assault victims. Ensure victims are informed of and accorded their rights, in accordance with DoDI 1030.2 and DoDD 1030.01 by contacting the VWAP.
(C) Take into consideration the victim's safety concerns and medical needs.
(D) Review IG policy and Military Service regulations regarding the legal transfer of the SAFE Kit and the retention of the DD Form 2911 or reports from civilian SAFEs in archived files.
(E) Discuss sex offender issues.
(6) Training for MCIO agents assigned to investigate sexual assaults shall:
(i) In accordance with Public Law 112-81, be detailed in IG policy.
(ii) Adhere to the responder training requirements in § 105.14(g)(1) for military and civilian criminal investigators assigned to MCIOs who may respond to a sexual assault complaint.
(iii) Remain consistent with the guidelines published under the authority and oversight of the IG, DoD. In addition, MCIO training shall:
(A) Include initial and annual refresher training on essential tasks specific to investigating sexual assault investigations that explain that these reports shall be included in sexual assault quarterly and annual reporting requirements found in § 105.16 of this part.
(B) Include IG policy and Military Service regulations regarding the legal transfer of the SAFE Kit and the retention of the DD Form 2911 or reports from civilian SAFEs in archived files.
(C) Explain how to work with victims of sexual assault.
(1) Effects of trauma on the victim to include impact of trauma and stress on memory as well as balancing investigative priorities with victim needs.
(2) Ensure victims are informed of and accorded their rights, in accordance with DoDI 1030.2 and DoDD 1030.01 by contacting the VWAP.
(3) Take into consideration the victim's safety concerns and medical needs.
(D) Explain how to respond to a sexual assault in accordance with to 32 CFR part 103, this part, and the assigned Military Service regulations on:
(1) Notification to command, SARC, and VWAP.
(2) Investigating difficult cases to include drug and alcohol facilitated sexual assaults, having multiple suspects and sexual assaults in the domestic violence context as well as same-sex sexual assaults (male/male or female/female).
(E) Review of available research regarding false information and the factors influencing false reports and false information, to include possible victim harassment and intimidation.
(F) Explain unique issues with sex offenders to include identifying, investigating, and documenting predatory behaviors.
(G) Explain how to work with the SARC and SAPR VA to include SAPR VA and SARC roles, responsibilities, and limitations; victim services and support program; and MRE 514.
(7) Judge advocate training shall:
(i) Prior to performing judge advocate duties, adhere to the Responder Training requirements in § 105.14(g)(1) for judge advocates who are responsible for advising commanders on the investigation or disposition of, or who prosecute or defend, sexual assault cases.
(ii) Explain legal support services available to victims.
(A) Pursuant to the respective Military Service regulations, explain that each Service member who reports a sexual assault shall be given the opportunity to consult with legal assistance counsel, and in cases where the victim may have been involved in collateral misconduct, to consult with defense counsel.
(1) Provide information concerning the prosecution, if applicable, in accordance with DoD 8910.1-M. Provide information regarding the opportunity to consult with legal assistance counsel as soon as the victim seeks assistance from a SARC, SAPR VA, or any DoD law enforcement agent or judge advocate.
(2) Ensure victims are informed of their rights and the VWAP program, in accordance with DoDI 1030.2 and DoDD 1030.01.
(B) Explain the sex offender registration program.
(iii) Explain issues encountered in the prosecution of sexual assaults.
(A) Typologies (characteristics) of victims and sex offenders in non-stranger sexual assaults.
(B) Addressing the consent defense.
(C) How to effectively prosecute alcohol and drug facilitated sexual assault.
(D) How to introduce forensic and scientific evidence (e.g., SAFE Kits, DNA, serology, toxicology).
(E) MRE issues and updates to regard sexual assault prosecution in accordance with MRE 412, 413, and 615 of the Manual for Courts-Martial, United States.
(F) How to advise victims, SAPR VAs, and VWAP about the military justice process, and MRE 514. Explain:
(1) Victims' rights during trial and defense counsel interviews (e.g., guidance regarding answering questions on prior sexual behavior, interviewing parameters, coordinating interviews, case outcomes).
(2) In the case of a general or special court-martial involving a sexual assault as defined in 32 CFR part 103, a copy of the prepared record of the proceedings of the court-martial (not to include sealed materials, unless otherwise approved by the presiding military judge or appellate court) shall be given to the victim of the offense if the victim testified during the proceedings in accordance with Public Law 112-81.
(3) Guidance on victim accompaniment (e.g., who may accompany victims to attorney interviews, what is their role, and what should they do if victim is being mistreated).
(4) MRE 412 of the Manual for Courts-Martial, United States, to investigations pursuant to an Article 32 hearing.
(5) Protecting victim privacy (e.g., access to medical records and conversations with SARC or SAPR VA, discovery consequences of making victim's mental health an issue, MRE 514).
(8) Legal Assistance Attorney training shall adhere to the requirements of annual training in § 105.14(c)(2). Attorneys shall receive training in order to have the capability to provide legal assistance to sexual assault victims in accordance with the USD(P&R) Memorandum. Legal assistance attorney training shall include:
(i) The VWAP, including the rights and benefits afforded the victim.
(A) The role of the VWAP and what privileges do or do not exist between the victim and the advocate or liaison.
(B) The nature of the communication made to the VWAP as opposed to those made to the legal assistance attorney.
(ii) The differences between the two types of reporting in sexual assault cases.
(iii) The military justice system, including the roles and responsibilities of the trial counsel, the defense counsel, and investigators. This may include the ability of the Government to compel cooperation and testimony.
(iv) The services available from appropriate agencies or offices for emotional and mental health counseling and other medical services.
(v) The availability of protections offered by military and civilian restraining orders.
(vi) Eligibility for and benefits potentially available as part of transitional compensation benefits found in section 1059 of title 10, U.S.C., and other State and Federal victims' compensation programs.
(vii) Traditional forms of legal assistance.
(9) Chaplains, chaplain assistants and religious personnel training shall:
(i) Adhere to the responder training requirements in § 105.14(g)(1).
(ii) Pre-deployment SAPR training shall focus on counseling services needed by sexual assault victims and offenders in contingency and remote areas.
(iii) Address:
(A) Privileged communications and the Restricted Reporting policy rules and limitations, including legal protections for chaplains and their confidential communications, assessing victim or offender safety issues (while maintaining chaplain's confidentiality), and MRE 514.
(B) How to support victims with discussion on sensitivity of chaplains in addressing and supporting sexual assault victims, identifying chaplain's own bias and ethical issues, trauma training with pastoral applications, and how to understand victims' rights as prescribed in DoDI 1030.2 and DoDD 1030.01.
(C) Other counseling and support topics.
(1) Offender counseling should include: assessing and addressing victim and offender safety issues while maintaining confidentiality; and counseling an offender when the victim is known to the chaplain (counseling both the offender and the victim when there is only one chaplain at a military installation).
(2) Potential distress experienced by witnesses and bystanders over the assault they witnessed or about which they heard.
(3) Counseling for SARCs, SAPR VAs, healthcare personnel, chaplains, JAGs, law enforcement or any other professionals who routinely works with sexual assault victims and may experience secondary effects of trauma.
(4) Providing guidance to unit members and leadership on how to mitigate the impact that sexual assault has on a unit and its individuals, while keeping in mind the needs and concerns of the victim.
§ 105.15
Defense Sexual Assault Incident Database (DSAID).
(a) Purpose. (1) In accordance with section 563 of Public Law 110-417, DSAID shall support Military Service SAPR program management and DoD SAPRO oversight activities. It shall serve as a centralized, case-level database for the collection and maintenance of information regarding sexual assaults involving persons covered by this part. DSAID will include information, if available, about the nature of the assault, the victim, services offered to the victim, the offender, and the disposition of the reports associated with the assault. DSAID will serve as the DoD's SAPR source for internal and external requests for statistical data on sexual assault in accordance with section 563 of Public Law 110-417. The DSAID has been assigned OMB Control Number 0704-0482. DSAID contains information provided by the military services, which are the original source of the information.
(2) Disclosure of data stored in DSAID will only be granted when disclosure is authorized or required by law or regulation.
(b) Procedures. DSAID shall:
(1) Contain information about sexual assaults reported to the DoD involving persons covered by this part, both via Unrestricted and Restricted Reporting options.
(2) Include adequate safeguards to shield PII from unauthorized disclosure. The system will not contain PII about victims who make a Restricted Report. Information about sexual assault victims and subjects will receive the maximum protection allowed under the law. DSAID will include stringent user access controls.
(3) Assist with annual and quarterly reporting requirements, identifying and managing trends, analyzing risk factors or problematic circumstances, and taking action or making plans to eliminate or to mitigate risks. DSAID shall store case information. Closed case information shall be available to DoD SAPRO for SAPR program oversight, study, research, and analysis purposes. DSAID will provide a set of core functions to satisfy the data collection and analysis requirements for the system in five basic areas: data warehousing, data query and reporting, SARC victim case management functions, subject investigative and legal case information, and SAPR program administration and management.
(4) Receive information from the Military Services' existing data systems or direct data entry by authorized Military Service personnel.
(c) Notification procedure and record access procedures. (1) Requests for information contained in DSAID are answered by the Services. All requests for information should be made to the DoD Component that generated the information in DSAID. Individuals seeking to determine whether information about themselves is contained in this system of records or seeking access to records about themselves should address written inquiries to the appropriate Service office (see Service list at www.sapr.mil).
(2) Requests for information to the DoD Components must be responded to by the office(s) designated by the Component to respond to Freedom of Information Act and Privacy Act requests. Requests shall not be informally handled by the SARCs.
§ 105.16
Sexual assault annual and quarterly reporting requirements.
(a) Annual reporting for the military services. The USD(P&R) submits annual FY reports to Congress on the sexual assaults involving members of the Military Services. Each Secretary of the Military Departments must submit their Military Service report for the prior FY to the Secretary of Defense through the DoD SAPRO by March 1. The Secretary of the Navy must provide separate reports for the Navy and the Marine Corps. The annual report is accomplished in accordance with section 1631(d) of Public Law 111-383, and includes:
(1) The policies, procedures, and processes in place or implemented by the SAPR program during the report year in response to incidents of sexual assault.
(2) An assessment of the implementation of the policies and procedures on the prevention, response, and oversight of sexual assaults in the military to determine the effectiveness of SAPR policies and programs, including an assessment of how Service efforts executed DoD SAPR priorities.
(3) Any plans for the following year on the prevention of and response to sexual assault, specifically in the areas of advocacy, healthcare provider and medical response, mental health, counseling, investigative services, legal services, and chaplain response.
(4) Matrices for Restricted and Unrestricted Reports of the number of sexual assaults involving Service members, that includes case synopses, and disciplinary actions taken in substantiated cases and relevant information.
(5) Analyses of the matrices of the number of sexual assaults involving Service members.
(b) Quarterly reports. The quarterly data reports from the Military Services are the basis for annual reports, including the data fields necessary for comprehensive reporting. The information collected to prepare the quarterly reports has been assigned Reporting Control Symbol DD-P&R(A)2205. In quarterly reports, the policies and planned actions are not required to be reported. Each quarterly report and subsequent FY annual report shall update the status of those previously reported investigations that had been reported as opened but not yet completed or with action pending at the end of a prior reporting period. Once the final action taken is reported, that specific investigation no longer needs to be reported. This reporting system will enable the DoD to track sexual assault cases from date of initiation to completion of command action or disposition. Quarterly reports are due:
(1) January 31 for investigations opened during the period of October 1-December 31.
(2) April 30 for investigations opened during the period of January 1-March 31.
(3) July 31 for investigations opened during the period of April 1-June 30.
(4) The final quarterly report (July 1-September 30) shall be included as part of the FY annual report.
(c) Annual reporting for the Military Service Academies (MSA). Pursuant to section 532 of Public Law 109-364, the USD(P&R) submits annual reports on sexual harassment and violence at MSAs to the House of Representatives and Senate Armed Services Committees each academic program year (APY). The MSA Sexual Assault Survey conducted by the Defense Manpower Data Center (DMDC) has been assigned Report Control Symbol DD-P&R(A)2198.
(1) In odd-numbered APYs, superintendents will submit a report to their respective Military Department Secretaries assessing their respective MSA policies, training, and procedures on sexual harassment and violence involving cadets and midshipmen no later than October 15 of the following APY. DMDC will simultaneously conduct gender relations surveys of cadets and midshipmen to collect information relating to sexual assault and sexual harassment at the MSA to supplement these reports. DoD SAPRO will summarize and consolidate the results of each MSA's APY assessment, which will serve as the mandated DoD annual report to Congress.
(2) In even-numbered APYs, DoD SAPRO and the DoD Diversity Management and Equal Opportunity (DMEO) Office conduct MSA site visits and a data call to assess each MSA's policies; training, and procedures regarding sexual harassment and violence involving cadets and midshipmen; perceptions of Academy personnel regarding program effectiveness; the number of reports and corresponding case dispositions; program accomplishments progress made; and challenges. Together with the DoD SAPRO and DMEO MSA visits, DMDC will conduct focus groups with cadets and midshipmen to collect information relating to sexual harassment and violence from the MSAs to supplement this assessment. DoD SAPRO consolidates the assessments and focus group results of each MSA into a report, which serves as the mandated DoD annual report to Congress that will be submitted in December of the following APY.
(d) Annual reporting of installation data. Installation data is drawn from the annual reports of sexual assault listed in § 105.16(a). The Secretaries of each Military Department must submit their Military Service report of sexual assault for the prior FY organized by installation to the Secretary of Defense through the DoD SAPRO by April 30. The Secretary of the Navy must provide separate reports for the Navy and the Marine Corps. Reports will contain matrices for Restricted and Unrestricted Reports of the number of sexual assaults involving Service members organized by military installation, and matrices including the synopsis and disciplinary actions taken in substantiated cases.
§ 105.17
Sexual assault offense—investigation disposition descriptions.
Pursuant to the legislated requirements specified in Public Law 111-383, the following definitions are used by the Services for annual and quarterly reporting of the dispositions of subjects in sexual assault investigations conducted by the MCIOs. Services must adapt their investigative policies and procedures to comply with these definitions.
(a) Substantiated reports. Dispositions in this category come from Unrestricted Reports that have been investigated and found to have sufficient evidence to provide to command for consideration of action to take some form of punitive, corrective, or discharge action against an offender.
(1) Substantiated reports against Service member subjects. A substantiated report of sexual assault is an Unrestricted Report that was investigated by an MCIO, provided to the appropriate military command for consideration of action, and found to have sufficient evidence to support the command's action against the subject. Actions against the subject may include court-martial charge preferral, Article 15 UCMJ punishment, nonjudicial punishment, administrative discharge, and other adverse administrative action that result from a report of sexual assault or associated misconduct (e.g., adultery, housebreaking, false official statement, etc.).
(2) Substantiated reports by Service member victims. A substantiated report of a sexual assault victim's Unrestricted Report that was investigated by a MCIO, and provided to the appropriate military command for consideration of action, and found to have sufficient evidence to support the command's action against the subject. However, there are instances where an Unrestricted Report of sexual assault by a Service member victim may be substantiated but the command is not able to take action against the person who is the subject of the investigation. These categories include the following: the subject of the investigation could not be identified; the subject died or deserted from the Service before action could be taken; the subject was a civilian or foreign national not subject to the UCMJ; or the subject was a Service member being prosecuted by a civilian or foreign authority.
(b) Substantiated report disposition descriptions. In the event of several types of action a commander takes against the same offender, only the most serious action taken is reported, as provided for in the following list, in descending order of seriousness. For each offender, any court-martial sentence and non-judicial punishment administered by commanders pursuant to Article 15 of the UCMJ is reported annually to the DoD in the case synopses or via DSAID. Further additional actions of a less serious nature in the descending list should also be included in the case synopses reported to the Department. Public Law 111-383 requires the reporting of the number of victims associated with each of the following disposition categories.
(1) Commander action for sexual assault offense. (i) Court-martial charges preferred (initiated) for sexual assault offense. A court-martial charge was preferred (initiated) for at least one of the offenses punishable by Articles 120 and 125 of the UCMJ, or an attempt to commit an Article 120 or 125, UCMJ offense that would be charged as a violation of Article 80 of the UCMJ. (See Rules for Courts-Martial (RCM) 307 and 401 of the Manual for Courts-Martial, United States.^{13} )
^{13} Available: http://www.dod.gov/dodgc/images/mcm2012.pdf.
(ii) Nonjudicial punishments (Article 15, UCMJ). Disciplinary action for at least one of the UCMJ offenses comprised within the SAPR definition of sexual assault that was initiated pursuant to Article 15 of the UCMJ.
(iii) Administrative discharges. Commander action taken to involuntarily separate the offender from military service that is based in whole or in part on an offense within the SAPR definition of sexual assault.
(iv) Other adverse administrative actions. In the absence of an administrative discharge action, any other administrative action that was initiated (including corrective measures such as counseling, admonition, reprimand, exhortation, disapproval, criticism, censure, reproach, rebuke, extra military instruction, or other administrative withholding of privileges, or any combination thereof), and that is based in whole or in part on an offense within the SAPR definition of sexual assault. Cases should be placed in this category only when an administrative action other than an administrative discharge is the only action taken. If an “other administrative action” is taken in combination with another more serious action (e.g., courts-martial, non-judicial punishment, administrative discharge, or civilian or foreign court action), only report the case according to the more serious action taken.
(2) Commander action for other criminal offense. Report actions against subjects in this category when there is probable cause for an offense, but only for a non-sexual assault offense (i.e., the commander took action on a non-sexual assault offense because an investigation showed that the allegations did not meet the required elements of, or there was insufficient evidence for, any of the UCMJ offenses that constitute the SAPR definition of sexual assault). Instead, an investigation disclosed other offenses arising from the sexual assault allegation or incident that met the required elements of, and there was sufficient evidence for, another offense under the UCMJ. Report court-martial charges preferred, non-judicial punishments, and sentences imposed in the case synopses provided to the DoD. To comply with Public Law 111-383, the number of victims associated with each of the following categories must also be reported.
(i) Court-martial charges preferred (initiated) for a non-sexual assault offense.
(ii) Nonjudicial punishments (Article 15, UCMJ) for non-sexual assault offense.
(iii) Administrative discharges for non-sexual assault offense.
(iv) Other adverse administrative actions for non-sexual assault offense.
(c) Command action precluded. Dispositions reported in this category come from an Unrestricted Report that was investigated by a MCIO and provided to the appropriate military command for consideration of action, but the evidence did not support taking action against the subject of the investigation because the victim declined to participate in the military justice action, there was insufficient evidence of any offense to take command action, the report was unfounded by command, the victim died prior to completion of the military justice action, or the statute of limitations for the alleged offense(s) expired. Public Law 111-383 requires the reporting of the number of victims associated with each of the following disposition categories.
(1) Victim declined to participate in the military justice action. Commander action is precluded or declined because the victim has declined to further cooperate with military authorities or prosecutors in a military justice action.
(2) Insufficient evidence for prosecution. Although the allegations made against the alleged offender meet the required elements of at least one criminal offense listed in the SAPR definition of sexual assault (see 32 CFR part 103), there was insufficient evidence to legally prove those elements beyond a reasonable doubt and proceed with the case. (If the reason for concluding that there is insufficient evidence is that the victim declined to cooperate, then the reason for being unable to take action should be entered as “victim declined to participate in the military justice action,” and not entered as “insufficient evidence.”)
(3) Victim's death. Victim died before completion of the military justice action.
(4) Statute of limitations expired. Determination that, pursuant to Article 43 of the UCMJ, the applicable statute of limitations has expired and the case may not be prosecuted.
(d) Command action declined. Dispositions in this category come from an Unrestricted Report that was investigated by a MCIO and provided to the appropriate military command for consideration of action, but the commander determined the report was unfounded as to the allegations against the subject of the investigation. Unfounded allegations reflect a determination by command, with the supporting advice of a qualified legal officer, that the allegations made against the alleged offender did not occur nor were attempted. These cases are either false or baseless. Public Law 111-383 requires the reporting of the number of victims associated with this category.
(1) False cases. Evidence obtained through an investigation shows that an offense was not committed nor attempted by the subject of the investigation.
(2) Baseless cases. Evidence obtained through an investigation shows that alleged offense did not meet at least one of the required elements of a UCMJ offense constituting the SAPR definition of sexual assault or was improperly reported as a sexual assault.
(e) Subject outside DoD's legal authority. When the subject of the investigation or the action being taken are beyond DoD's jurisdictional authority or ability to act, use the following descriptions to report case disposition. To comply with Public Law 111-383, Services must also identify the number of victims associated with these dispositions and specify when there was insufficient evidence that an offense occurred in the following categories.
(1) Offender is unknown. The investigation is closed because no person could be identified as the alleged offender.
(2) Subject is a civilian or foreign national not subject to UCMJ. The subject of the investigation is not amenable to military UCMJ jurisdiction for action or disposition.
(3) Civilian or foreign authority is prosecuting Service member. A civilian or foreign authority has the sexual assault allegation for action or disposition, even though the alleged offender is also subject to the UCMJ.
(4) Offender died or deserted. Commander action is precluded because of the death or desertion of the alleged offender or subject of the investigation.
(f) Report unfounded by MCIO. Determination by the MCIO that the allegations made against the alleged offender did not occur nor were attempted. These cases are either false or baseless. Public Law 111-383 requires the reporting of the number of victims associated with this category.
(1) False cases. Evidence obtained through a MCIO investigation shows that an offense was not committed nor attempted by the subject of the investigation.
(2) Baseless cases. Evidence obtained through an investigation shows that alleged offense did not meet at least one of the required elements of a UCMJ offense constituting the SAPR definition of sexual assault or was improperly reported as a sexual assault.
§ 105.18
Information collection requirements.
(a) The DSAID and the DD Form 2910, referred to in this Instruction, have been assigned OMB control number 0704-0482.
(b) The annual report regarding sexual assaults involving Service members and improvement to sexual assault prevention and response programs referred to in §§ 105.5(f)(22); 105.7(a)(9), 105.7(a)(10), and 105.7(a)(12); 105.9(c)(8)(ii); and 105.16(a) and (d) of this part is submitted to Congress in accordance with section 1631(d) of Public Law 111-383 and is coordinated with the Assistant Secretary of Defense for Legislatives Affair in accordance with the procedures in DoDI 5545.02.
(c) The quarterly reports of sexual assaults involving Service members referred to in §§ 105.5, 105.7, 105.14, 105.15, and 105.16 of this part are prescribed by DoDD 5124.02 and have been assigned a DoD report control symbol in accordance with the procedures in DTM 12-004 and DoD 8910.1-M.
(d) The Service Academy sexual assault survey referred to in § 105.16(c) of this part has been assigned DoD report control symbol in accordance with the procedures in DTM 12-004 and DoD 8910.1-M.
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. 117

PART 117—NATIONAL INDUSTRIAL SECURITY PROGRAM
Subparts A-B [Reserved]

Subpart C—Procedures for Government Activities Relating to Foreign Ownership, Control or Influence (FOCI)
Sec.
117.51
Purpose.
117.52
Applicability.
117.53
Definitions.
117.54
Policy.
117.55
Responsibilities.
117.56
Foreign ownership, control or influence (FOCI).

Authority:
Executive Order (E.O.) 12829, January 6, 1993, 58 FR 3479.

Source:
79 FR 19469, Apr. 9, 2014, unless otherwise noted.
Subparts A-B [Reserved]

Subpart C—Procedures for Government Activities Relating to Foreign Ownership, Control or Influence (FOCI)
§ 117.51
Purpose.
This part sets forth industrial security procedures and practices related to Foreign Ownership, Control or Influence (FOCI) for the Department of Defense (DoD) Components, as defined in this part and non-DoD Components, as defined in this part, to ensure maximum uniformity and effectiveness in DoD implementation of the National Industrial Security Program (NISP) established by Executive Order (E.O.) 12829 “National Industrial Security Program,” (available at http://www.archives.gov/isoo/policy-documents/eo-12829.html).
§ 117.52
Applicability.
(a) This part applies to:
(1) The DoD Components.
(2) The non-DoD Components. When the term Government Contracting Activities (GCAs) is used, it applies to both DoD Components and non-DoD Components.
(b) This part does not:
(1) Limit in any manner the authority of the Secretary of Defense, the Secretaries of the Army, Navy and Air Force; or the Heads of the Components, as defined in this part, to grant access to classified information under the cognizance of their respective department or agency to any individual or entity designated by them. The granting of such access is outside the scope of the NISP and is governed by Executive Order (E.O.) 13526, “Classified National Security Information,” (available at http://www.archives.gov/isoo/pdf/cnsi-eo.pdf) and applicable disclosure policies.
(2) Limit the authority of a GCA to limit, deny, or revoke access to classified information under its statutory, regulatory, or contractual jurisdiction.
(3) Levy requirements on contractors and companies currently in process for facility security clearances (FCLs) as they are subject to the requirements of DoD 5220.22-M, “National Industrial Security Program Operating Manual (NISPOM)” (available at http://www.dtic.mil/whs/directives/corres/pdf/522022m.pdf) and the security requirements of their contracts.
§ 117.53
Definitions.
Unless otherwise noted, these terms and their definitions are for the purposes of this part only.
Access. As defined in DoD 5220.22-M.
Affiliate. As defined in DoD 5220.22-M.
Board resolution. A formal, written decision of a company's board of directors, used to draw attention to a single act or board decision, e.g., to approve or adopt a change to a set of rules, a new program or contract.
Carve-out. As defined in DoD Directive 5205.07, “Special Access Program (SAP) Policy,” (available at http://www.dtic.mil/whs/directives/corres/pdf/520507p.pdf).
Classified contract. As defined in DoD 5220.22-M.
Classified information. As defined in Joint Publication 1-02 “DoD Dictionary of Military and Associated Terms” (available at http://www.dtic.mil/doctrine/new_pubs/jp1_02.pdf).
Company. As defined in DoD 5220.22-M.
Components. DoD Components and non-DoD Components for which DoD provides industrial security services in accordance with E.O. 12829.
COMSEC. As defined in Joint Publication 6-0, “Joint Communication System” (available at http://www.dtic.mil/doctrine/new_pubs/jp6_0.pdf).
Contractor. As defined in DoD 5220.22-M.
Counterintelligence. As defined in Joint Publication 1-02.
Covered transaction. As defined in DoD Instruction 2000.25, “DoD Procedures for Reviewing and Monitoring Transactions Filed with the Committee on Foreign Investment in the United States (CFIUS)”. (available at http://www.dtic.mil/whs/directives/corres/pdf/200025p.pdf).
CSA. As defined in DoD 5220.22-M.
Defense articles. As defined in DoD 5220.22-M.
Defense Industrial Base. As defined in Joint Publication 1-02.
Document. As defined in E.O. 13526.
DoD Components. Office of the Secretary of Defense (OSD), 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 within DoD.
Facility. As defined in DoD 5220.22-M.
Facility security clearance (FCL). As defined in DoD 5220.22-M.
Facility Security Officer (FSO). A U.S. citizen contractor employee, who is cleared as one of the Key Management Personnel required for the FCL, to supervise and direct security measures necessary for implementing applicable requirements set forth in DoD 5220.22-M.
FOCI action plan. For purposes of this part, the methods or agreements that can be applied to mitigate or negate the risk of foreign ownership or control to allow a U.S. contractor to maintain or a U.S. company to be granted an FCL.
FOCI mitigation agreement. For purposes of this part, a signed agreement between a foreign interest and a U.S. contractor or a company in process for an FCL which, based on an assessment of FOCI information, imposes various security measures within an institutionalized set of company practices and procedures. Examples include board resolutions, security control agreements (SCAs) and special security agreements.
FOCI negation agreement. For purposes of this part, a signed agreement between a foreign interest and U.S. contractor or a company in process for an FCL under which the foreign owner relinquishes most ownership rights to U.S. citizens who are approved by the U.S. Government and have been favorably adjudicated for access to classified information based on the results of a personnel security clearance investigation. Examples include voting trust agreements (VTAs) and proxy agreements (PAs).
Foreign government information (FGI). As defined in E.O. 13526.
Foreign interest. As defined in DoD 5220.22-M.
GCA. As defined in DoD 5220.22-M.
Industrial security. As defined in DoD 5220.22-M.
Information. As defined in E.O. 13526.
Limited Access Authorization (LAA). As defined in DoD 5220.22-M.
National interest determination (NID). As defined in 32 CFR part 2004, “National Industrial Security Program Directive No. 1.”
Non-DoD Components. Those USG executive branch departments and agencies identified in DoD 5220.22-M that have entered into agreements with the Secretary of Defense to act as the NISP Cognizant Security Agency (CSA) for, and on their behalf, in rendering security services for the protection of classified information disclosed to or generated by industry pursuant to Section 202 of E.O. 12829.
Personnel security clearance (PCL). As defined in DoD 5220.22-M.
Personnel security clearance assurance (PCLSA). A written certification by USG or applicable foreign government industrial security authorities, which certifies the PCL level or eligibility for a PCL at a specified level for their citizens. The assurance is used, in the case of the United States, to give an LAA to a non-U.S. citizen, provided all other investigative requirements are met.
Prime contract. As defined in DoD 5220.22-M.
Proscribed information. TOP SECRET (TS) information, COMSEC information excluding controlled cryptographic items when unkeyed and utilized with unclassified keys, restricted data (RD), special access program (SAP) information, or sensitive compartmented information (SCI).
Restricted Data (RD). As defined in DoD 5220.22-M.
Sensitive compartmented information (SCI). As defined in Joint Publication 1-02.
Security assurance. A written confirmation, requested by and exchanged between governments, that contains the following elements: Verification of the personnel security clearance (PCL) level of the sponsoring foreign government's citizens or nationals; a statement by a responsible official of the sponsoring foreign government that the recipient of the information is approved by the sponsoring foreign government for access to information of the security classification involved on behalf of the sponsoring government; and an obligation that the sponsoring foreign government will ensure compliance with any security agreement or other use, transfer and security requirements specified by the components. The security assurance usually will be in a request for visit authorization or with courier orders or a transportation plan; but is not related to the PCL security assurance.
Special Access Program (SAP). As defined in E.O. 13526.
Subcontract. As defined in DoD 5220.22-M.
§ 117.54
Policy.
It is DoD policy that DoD FOCI procedures will be used to protect against foreign interests:
(a) Gaining unauthorized access to classified, export-controlled, or all communications security (COMSEC) (classified or unclassified) information in accordance with E.O. 12829 and DoD Instruction 8523.01, “Communications Security” (available at http://www.dtic.mil/whs/directives/corres/pdf/852301p.pdf). DoD FOCI procedures for access to unclassified COMSEC are set forth in National Security Agency Central Security Service (NSA/CSS) Policy Manual 3-16, “Control of Communications Security Material” (available to authorized users of SIPRNET at www.iad.nsa.smil.mil/resources/library/nsa_office_of_policy_section/pdf/NSA_CSS_MAN-3-16_080505.pdf).
(b) Adversely affecting the performance of classified contracts, in accordance with E.O. 12829.
(c) Undermining U.S. security and export controls, in accordance with E.O. 12829.
§ 117.55
Responsibilities.
(a) The Under Secretary of Defense for Intelligence (USD(I)) will, in accordance with DoD Directive 5143.01, “Under Secretary of Defense for Intelligence (USD(I))” (available at http://www.dtic.mil/whs/directives/corres/pdf/514301p.pdf) and DoD Instruction 5220.22, “National Industrial Security Program” (see http://www.dtic.mil/whs/directives/corres/pdf/522022p.pdf):
(1) Oversee policy and management of the NISP, to include FOCI matters.
(2) Direct, administer, and oversee the FOCI provisions of the NISP to ensure that the program is efficient and consistently implemented.
(3) Provide additional guidance regarding FOCI matters by memorandum as needed.
(4) Coordinate with the Under Secretary of Defense for Policy (USD(P)) and the Under Secretary of Defense for Acquisition, Technology and Logistics (USD(AT&L)) on matters under their cognizance that affect the NISP consistent with paragraphs (c) and (d) of this section.
(b) The Director, Defense Security Service (DSS), in addition to the responsibilities in paragraph (d) of this section, under the authority, direction, and control of the USD(I) will in accordance with DoD Instruction 5220.22, “National Industrial Security Program” (available at http://www.dtic.mil/whs/directives/corres/pdf/522022p.pdf).
(1) Make FOCI determinations on a case-by-case basis for U.S. contractors or companies under consideration for an FCL under the NISP.
(2) Collect information necessary to examine the source, nature, and extent of a company's ownership, control, or influence by foreign interests.
(3) Determine, on behalf of the GCAs, whether a U.S. company is under FOCI to such a degree that the granting of an FCL would be inconsistent with the U.S. national security interests.
(4) Determine the security measures necessary to negate or mitigate FOCI and make recommendations to the U.S. company and to those GCAs with a contractual interest or other equity in the matter.
(5) Provide GCAs a guide to clarify their roles and responsibilities with respect to the FOCI process and to national interest determinations (NIDs), in particular. Update the guide, as needed, in coordination with the Office of the Under Secretary of Defense for Intelligence (OUSD(I)) Security Directorate.
(6) Determine a U.S. company's eligibility for an FCL on an initial and continuing basis depending on recurring security reviews and other interactions.
(7) Develop proposed changes to maintain the currency and effectiveness of this part. Forward proposed changes and associated justification to the OUSD(I) Security Directorate for consideration as future changes to this part.
(8) Consider and, as warranted, approve requests for exception to DoD 5220.22-M in consultation with affected GCAs for specific contractors and for specific periods of time (such as, to the completion date of a contract) when a contractor is unable to comply with the requirements of DoD 5220.22-M. Consideration of such requests will include an evaluation of any proposed alternative procedures with supporting justification and coordination as applicable, consistent with paragraph (a)(4) of this section.
(9) Coordinate and receive the concurrence of the OUSD(I) Security Directorate on requests for exception to DoD 5220.22-M and consistent with paragraph (a)(4) of this section when any of the following provisions apply:
(i) The request exceeds the authority of the Director, DSS as defined in this section;
(ii) The proposed exception applies to more than one contractor location; or,
(iii) The exception would be contrary to U.S. national policy or international agreements, including those relating to foreign government information (FGI) and international issues under the cognizance of the USD(P) with coordination as applicable, consistent with paragraph (a)(4) of this section.
(c) The USD(P) will, in accordance with DoD Directive 5111.1, “Under Secretary of Defense for Policy (USD(P))” (available at http://www.dtic.mil/whs/directives/corres/pdf/511101p.pdf), advise the USD(I) and DSS on the foreign relations and international security aspects of FOCI, including FGI, foreign disclosures of U.S. classified information, exports of defense articles and technical data, security arrangements for DoD international programs, North Atlantic Treaty Organization security, and international agreements.
(d) The USD(AT&L) will, in accordance with DoD Directive 5134.01, “Under Secretary of Defense for Acquisition, Technology and Logistics (USD(AT&L))” (available at http://www.dtic.mil/whs/directives/corres/pdf/513401p.pdf):
(1) Advise the USD(I) on the development and implementation of NISP policies, in accordance with DoD Instruction 5220.22.
(2) Ensure that DoD Components establish and maintain a record capturing the current and legitimate need for access to classified information by contractors in the Defense Industrial Base.
(3) Ensure that acquisition elements of DoD Components comply with the applicable provisions of DoD 5220.22-M.
(e) The Director, DoD SAP Central Office (SAPCO) will, in accordance with DoD Directive 5205.07, “Special Access Program (SAP) Policy” (available at http://www.dtic.mil/whs/directives/corres/pdf/520507p.pdf), notify DSS of the existence of SAP equities when DSS considers the acceptability of a contractor's FOCI action plan. In addition, the Director, DoD SAPCO, will develop procedures for the consideration of a NID when a contractor cleared under a Special Security Agreement (SSA) requires access to an unacknowledged Special Access Program (SAP).
(f) The Heads of the Components will:
(1) Oversee compliance by GCA personnel with applicable procedures identified in this subpart.
(2) Designate in writing an individual who is authorized to make decisions and provide a coordinated GCA position on FOCI matters to DSS within timelines established in this part.
(3) Submit proposed changes to DoD 5220.22-M, as deemed appropriate, to the OUSD(I) Security Directorate.
§ 117.56
Foreign ownership, control or influence (FOCI).
(a) General. This section provides guidance for and establishes procedures concerning the initial or continued FCL eligibility of U.S. companies and U.S. contractors with foreign involvement; provides criteria for determining whether U.S. companies are under FOCI; prescribes responsibilities in FOCI matters; and outlines security measures that DSS may consider to mitigate or negate the effects of FOCI to an acceptable level. As stated in DoD 5220.22-M, and in accordance with E.O. 12829:
(1) The Secretary of Defense serves as the Executive Agent for inspecting and monitoring contractors who require or will require access to, or who store or will store classified information.
(2) The Components reserve the discretionary authority, and have the obligation, to impose any security procedure, safeguard, or restriction they believe necessary to ensure that unauthorized access to classified information is effectively precluded and that performance of classified contracts, as defined in DoD 5220.22-M, is not adversely affected by FOCI.
(b) Procedures — (1) Criteria. A U.S. company is considered to be under FOCI whenever a foreign interest has the power, direct or indirect (whether or not exercised, and whether or not exercisable through the ownership of the U.S. company's securities, by contractual arrangements or other means), to direct or decide matters affecting the management or operations of the company in a manner that may result in unauthorized access to classified information or may adversely affect the performance of classified contracts.
(2) FOCI Analysis. Conducting an analysis of available information on a company to determine the existence, nature, and source of FOCI is a critical aspect of evaluating previously uncleared companies for FCLs and also in determining continued eligibility of contractors for FCLs.
(i) A U.S. company determined to be under FOCI is ineligible for an FCL unless and until security measures have been put in place to mitigate FOCI.
(ii) In making a determination as to whether a company is under FOCI, DSS will consider the information provided by the company or its parent entity on the Standard Form (SF) 328, “Certificate Pertaining to Foreign Interests,” (available at http://www.dtic.mil/whs/directives/infomgt/forms/eforms/sf0328.pdf) and any other relevant information (e.g., filings with the Securities and Exchange Commission (for publicly traded companies), articles of incorporation, by-laws, and loan and shareholder agreements, as well as other publicly available information about the company. Depending on specific circumstances (e.g., extensive minority foreign ownership at a cleared subsidiary in the corporate family), DSS may request one or more of the legal entities that make up a corporate family to submit individual SF 328s and will determine the appropriate FOCI action plan(s) that must be put in place.
(iii) When a contractor has been determined to be under FOCI, the primary consideration will be the safeguarding of classified information. DSS is responsible for taking whatever interim action is necessary to safeguard classified information, in coordination with other affected agencies as appropriate consistent with § 117.54.
(iv) When a merger, sale, or acquisition involving a foreign interest and a contractor is finalized prior to having an acceptable FOCI mitigation or negation agreement in place, DSS will invalidate any existing FCL until such time as DSS determines that the contractor has submitted an acceptable FOCI action plan (see DoD 5220.22-M) and has agreed to interim measures that address FOCI concerns pending formal execution of a FOCI mitigation or negation agreement. Invalidation renders the contractor ineligible to receive new classified material or to bid on new classified contracts. If the affected GCA determines that continued access to classified material is required, DSS may continue the FCL in an invalidated status when there is no indication that classified information is at risk of compromise. If classified information remains at risk of compromise due to the FOCI, DSS will take action to impose appropriate security countermeasures or terminate the FCL, in coordination with the affected GCA.
(v) Changed conditions, such as a change in ownership, indebtedness, or a foreign intelligence threat, may justify certain adjustments to the security terms under which a contractor is cleared or, alternatively, require the use of a particular FOCI mitigation or negation agreement. Depending on specific circumstances, DSS may determine that a contractor is no longer under FOCI or, conversely, that a contractor is no longer eligible for an FCL.
(vi) If the contractor determined to be under FOCI does not have possession of classified material and does not have a current or pending requirement for access to classified information, DSS will administratively terminate the FCL.
(3) Assessing the Implications of FOCI. (i) If DSS determines that a company is under FOCI, DSS will assess the extent and manner to which the FOCI may result in unauthorized access to classified information or adverse impact on the performance of classified contracts and the type of actions, if any, that would be necessary to mitigate or negate the associated risks to a level deemed acceptable to DSS. An analysis of some of the FOCI factors may clearly identify risk; while others may result in circumstances that would mitigate or negate risks. Therefore, these factors must be considered in the aggregate with regard to the foreign interest that is the source of the FOCI, the country or countries in which the foreign interest is domiciled and has its principal place of business (if not in the country of domicile), and any other foreign country that is identified by DSS because it is a substantial source of the revenue for, or otherwise has significant ties to, the foreign interest. DSS will consider the following FOCI factors and any other relevant information in the context of threat, vulnerability, and sensitivity of the classified information required for current or prospective contract performance when rendering a risk management assessment and determination of the acceptability of a company's FOCI action plan:
(A) Record of economic and government espionage against U.S. targets.
(B) Record of enforcement and/or engagement in unauthorized technology transfer.
(C) Record of compliance with pertinent U.S. laws, regulations, and contracts.
(D) The type and sensitivity of the information that will be accessed.
(E) The source, nature, and extent of FOCI, including, but not limited to, whether a foreign interest holds a majority or substantial minority position in the company, taking into consideration the immediate, intermediate, and ultimate parent companies of the company or prior relationships between the U.S. company and the foreign interest.
(F) The nature of any relevant bilateral and multilateral security and information exchange agreements, (e.g., the political and military relationship between the United States Government (USG) and the government of the foreign interest).
(G) Ownership or control, in whole or in part, by a foreign government.
(H) Any other factor that indicates or demonstrates a capability on the part of foreign interests to control or influence the operations or management of the business organization concerned.
(ii) As part of its FOCI assessment and evaluation of any FOCI action plan, DSS will also request and consider counterintelligence (CI) and technology transfer risk assessments and any available intelligence from all appropriate USG sources. DSS will request these assessments as soon as practicable, for the company itself and for all business entities in the company's ownership chain.
(iii) If a company disputes a DSS determination that the company is under FOCI, or disputes the DSS determination regarding the types of actions necessary to mitigate or negate the FOCI, the company may appeal in writing those determinations to the Director, DSS, for a final agency decision no later than 30 days after receipt of written notification of the DSS decision. The company must identify the specific relief sought and grounds for that relief in its appeal. In response, the Director, DSS, may request additional information from the company. At a minimum, DSS will respond to appeals within 30 days, either with a decision or an estimate as to when a decision will be rendered. DSS will not release pre-decisional information to the company, its legal counsel, or any of its representatives without the express written approval of the applicable GCAs who own the data and any other USG entities with an interest in the company's FOCI action plan.
(iv) DoD recognizes that FOCI concerns may arise in a variety of other circumstances, all of which cannot be listed in this subpart. In FOCI cases involving any foreign ownership or control, DSS will advise and consult with the appropriate GCAs, including those with special security needs, regarding the required FOCI mitigation or negation method and provide those GCAs with the details of the FOCI factors and any associated risk assessments. DSS and GCAs will meet to discuss the FOCI action plan, when determined necessary by either DSS or the applicable GCAs. When DSS determines that a company may be ineligible for an FCL by virtue of FOCI, or that additional action by the company may be necessary to mitigate the FOCI or associated risks, DSS will promptly notify the company and require it to submit a FOCI action plan to DSS within 30 calendar days of the notification. In addition, DSS will advise company management that failure to submit the requested plan within the prescribed period of time will result in termination of FCL processing or initiation of action to revoke an existing FCL, as applicable.
(v) In instances where the identification of a foreign owner or voting interest of five percent or more cannot be adequately ascertained (e.g., the participating investors in a foreign investment or hedge fund, owning five percent or more of the company, cannot be identified), DSS may determine that the company is not eligible for an FCL.
(vi) DSS will review and consider the FOCI action plan itself, the factors identified in paragraph (b)(3)(i) of this section, and any threat or risk assessments or other relevant information. If an action plan is determined to be unacceptable, DSS can recommend and negotiate an acceptable action plan including, but not limited to, the measures identified in paragraphs (b)(4)(ii) and (b)(4)(iii) of this section. In any event, DSS will provide written feedback to a company or the company's designated representative on the acceptability of the FOCI action plan within 30 calendar days of receipt.
(4) Options To Address FOCI. (i) Under all FOCI action plans, management positions requiring PCLs in conjunction with the FCL must be filled by eligible U.S. citizens residing in the United States in accordance with DoD 5220.22-M.
(ii) When factors related to foreign control or influence are present, but unrelated to ownership, the plan must provide positive measures that assure that the foreign interest can be effectively denied access to classified information and cannot otherwise adversely affect performance on classified contracts. Non-exclusive examples of such measures include:
(A) Adoption of special board resolutions.
(B) Assignment of specific oversight duties and responsibilities to independent board members.
(C) Formulation of special executive-level security committees to consider and oversee matters that affect the performance of classified contracts.
(D) The appointment of a technology control officer.
(E) Modification or termination of loan agreements, contracts, and other understandings with foreign interests.
(F) Diversification or reduction of foreign-source income.
(G) Demonstration of financial viability independent of foreign interests.
(H) Elimination or resolution of problem debt.
(I) Physical or organizational separation of the contractor component performing on classified contracts.
(J) Other actions that negate or mitigate foreign control or influence.
(iii) FOCI concerns related to foreign ownership of a company or corporate family arise when a foreign interest has the ability, either directly or indirectly, whether exercised or exercisable, to control or influence the election or appointment of one or more members to the company's governing board (e.g., Board of Directors, Board of Managers, or Board of Trustees) or its equivalent, by any means. Some methods that may be applied to mitigate the risk of foreign ownership are outlined in DoD 5220.22-M and further described in this section. While these methods are mentioned in relation to specific ownership and control thresholds, these descriptions should not be construed as DoD-sanctioned criteria mandating the selection or acceptance of a certain FOCI action plan. DSS retains the authority to reject or modify any proposed FOCI action plan in consultation with the affected GCAs.
(A) Board Resolution. This method is often used when a foreign interest does not own voting interests sufficient to elect, or otherwise is not entitled to representation on the company's governing board. In such circumstances, the effects of foreign ownership will generally be mitigated by a resolution of the board of directors stating the company recognizes the elements of FOCI and acknowledges its continuing obligations under DD Form 441, “DoD Security Agreement” (available at http://www.dtic.mil/whs/directives/infomgt/forms/eforms/dd0441.pdf). The resolution will identify the foreign shareholders and their representatives (if any) and note the extent of foreign ownership. The resolution will also include a certification that the foreign shareholders and their representatives will not require, will not have, and can be effectively excluded from access to all classified information in the possession of the contractor, and will not be permitted to occupy positions that may enable them to influence the organization's policies and practices in the performance of classified contracts. Copies of such resolutions will be furnished to all board members and principal management officials.
(B) SCA. The SCA is a tailored FOCI mitigation agreement often used when a foreign interest does not effectively own or control a company or corporate family (i.e., the company or corporate family are under U.S. control), but the foreign interest is entitled to representation on the company's board. When an SCA is implemented, a U.S. citizen serves as an outside director, as defined in DoD 5220.22-M. DSS may determine the need for more than one outside director based on the FOCI analysis and risk assessments.
(C) SSA. The SSA is a tailored FOCI mitigation agreement that preserves the foreign owner's right to be represented on the company's board (inside directors) with a direct voice in the business management of the company while denying the foreign owner unauthorized access to classified information. An SSA is based on the analysis of the FOCI factors set forth in paragraph (b)(3) and is often used when a foreign interest effectively owns or controls a company or corporate family. DSS assesses the implications of the FOCI factors in accordance with paragraphs (b)(3) and (b)(4)(iii) of this section. U.S. citizens serve as outside directors in accordance with DoD 5220.22-M.
(1) If a GCA requires a contractor cleared under an SSA to have access to proscribed information, the GCA will initiate action to consider a NID at the pre-contract phase to confirm that disclosure of such information is consistent with the national security interests of the United States.
(2) Proscribed information includes TS; COMSEC material, excluding controlled cryptographic items when unkeyed and utilized with unclassified keys; RD; SAP; and SCI.
(3) Contractor access to proscribed information will not be granted without the approval of the agency with control jurisdiction (i.e., National Security Agency (NSA) for COMSEC, whether the COMSEC is proscribed information or not; the Office of the Director of National Intelligence (ODNI) for SCI; and the Department of Energy (DOE) for RD in accordance with its policies).
(4) In accordance with 32 CFR, part 2004 and the procedures in paragraph (b)(5) of this section, GCAs will forward a request for concurrence to NSA, ODNI, or DOE when a proposed NID involves access to COMSEC, SCI, or RD, respectively, within 30 calendar days of DSS advisement of the NID requirement. NSA, ODNI, and DOE, as appropriate, will then have 30 calendar days to render a decision.
(D) VTA or PA. These FOCI negation agreements may be used when a foreign interest effectively owns or controls a company or corporate family. Under a VTA, PA and associated documentation, the foreign owner relinquishes most rights associated with ownership of the company to cleared U.S. citizens approved by DSS. Both FOCI agreements can effectively negate foreign ownership and control; therefore, neither agreement imposes any restrictions on the company's eligibility to have access to classified information or to compete for classified contracts including contracts with proscribed information. Both FOCI agreements can also effectively negate foreign government control (see paragraph (b)(11) of this section which provides guidance and requirements regarding foreign government ownership or control, including with respect to 10 U.S.C. 2536, “Award of Certain Contracts to Entities Controlled by a Foreign Government Prohibition (available at http://www.gpo.gov/fdsys/granule/USCODE-2010-title10/USCODE-2010-title10-subtitleA-partIV-chap148-subchapV-sec2536/content-detail.html)). DSS retains the authority to deny a proposed VTA or PA.
(iv) When DSS implements a FOCI mitigation or negation agreement at a contractor, the agreement may specify that the entire agreement, or that particular provisions of the agreement (e.g., the provisions restricting unauthorized access to classified information and unclassified export-controlled information and the provisions of the visitation policy) will apply to and will be made binding upon all present and future subsidiaries of the company. If a subsidiary requires and is eligible for an FCL at the TS level, the company executing the FOCI mitigation agreement and any intermediate parents must be formally excluded from TS access unless they have their own requirement and are otherwise eligible for TS access.
(v) DSS will provide a copy of the DSS FOCI assessment, proposed FOCI action plan and any associated risk assessments to the GCAs with an interest in the company or corporate family. In the absence of written objections (signed at the Program Executive Office (PEO) level or higher) from GCAs with an interest in the company or corporate family, DSS may proceed with implementation of what DSS considers in its discretion to be an acceptable FOCI action plan based on available information. Unless other regulatory review processes for mergers or acquisitions have an earlier suspense date, DSS will provide a 30 calendar day period for the GCAs with an interest in the company or corporate family to provide their PEO level or higher written objections.
(vi) DSS will submit to the USD(I) for approval the DSS templates for those FOCI mitigation or negation agreements identified in paragraph (b)(4)(iii) of this section as well as templates for any supplements thereto (e.g., the electronic communications plan (ECP) or technology control plan (TCP)). DSS may propose changes to the contents of these template FOCI mitigation or negation agreements. DSS may tailor non-substantive provisions of the template agreement for any particular FOCI case without further approval from the USD(I), provided DSS notifies the OUSD(I) Security Directorate of the deviation from the template. DSS may provide this notification through the electronic submission of an annotated copy of the modified agreement.
(5) NID. The requirement for a NID to authorize access to proscribed information applies only to those foreign-owned U.S. contractors or companies in process for an FCL under an SSA which is used as a mechanism for FOCI mitigation. A NID does not authorize disclosure of classified information to a foreign government, a non-U.S. citizen or a non-U.S. entity. Timelines for NID decisions are set forth in 32 CFR part 2004 and the provisions of this paragraph. NIDs can be program, project, or contract specific, subject to the concurrence of NSA for COMSEC, ODNI for SCI or DOE for RD. For program and project NIDs, a separate NID is not required for each contract. DSS will inform the DoD SAPCO of NID requirements to allow the SAPCO to advise of awareness of unacknowledged SAPs or any carve-out SAP activity.
(i) A NID is necessary when access to proscribed information is required for:
(A) Pre-contract activities in accordance with paragraph (b)(4)(iii)(C)(1) of this section.
(B) New contracts to be issued to a company in process for an FCL that DSS has determined to be under FOCI when an SSA is anticipated, or a contractor already cleared under an SSA.
(C) Existing contracts when a contractor is acquired by foreign interests and proposes an SSA as the FOCI action plan.
(ii) If a contractor is proposing to use an SSA to mitigate FOCI and requires access to proscribed information:
(A) DSS will:
(1) Request the contractor to provide information on all impacted contracts, both prime and subcontracts, unless the contractor is prohibited by contract from revealing their existence to DSS. In such instances, DSS will request that the contractor notify the government contracting officer and Program Security Officer of the need for a NID.
(2) Provide written notification to the individual designated by the Component, in accordance with paragraph (f) of § 117.55 within 30 calendar days of identifying the requirement for a NID.
(3) Provide to appropriate GCAs the contractor's proposed FOCI action plan, any associated risk assessments, and DSS' recommendation for FOCI mitigation.
(4) Ask the GCA to identify all of the GCA's contracts affected by the proposed SSA that require a NID decision, unless the activity is unacknowledged. The cognizant SAPCO will inform the DoD SAPCO of any unacknowledged SAPs affected by the proposed SSA and consequently the NID requirement.
(5) Provide OUSD(I) Security Directorate and the OUSD(AT&L), Deputy Assistant Secretary of Defense for Manufacturing and Industrial Base Policy, a monthly report of pending NID decisions that:
(i) Exceed 30 calendar days from the date of the DSS written notice to the applicable GCA.
(ii) Have been pending for NSA, ODNI, or DOE concurrence for more than 30 calendar days.
(B) OUSD(I) will intervene, as warranted, with GCAs regarding NID decisions pending beyond 30 calendar days from the date of the DSS written notice, as well as with NSA, ODNI, and DOE regarding concurrence decisions that remain pending beyond 30 days from the date of the GCA request.
(C) OUSD(AT&L) will confer, as warranted, with the applicable DoD Service Acquisition Executive or component equivalent about unresolved NID decisions.
(D) The GCA will, upon written notification by DSS of the need for a NID:
(1) Review the FOCI action plan proposed by the uncleared company, in addition to any associated risk assessments and the DSS analysis of the appropriate FOCI mitigation based on the existing FOCI factors.
(2) Consider the FOCI factors noted in paragraph (b)(3) of this section in the aggregate with any associated risk assessments and DSS' analysis to determine whether to issue a NID.
(3) Provide DSS, as appropriate, one of the following within 30 calendar days of the DSS written notification that a NID is required:
(i) A final, documented NID with a copy provided to the contractor. If the NID is not specific to a single program, project, or contract (e.g., a blanket NID), the GCA will also forward a copy of the NID to the OUSD(I) Security Directorate.
(ii) A copy of the GCA's request for NID concurrence sent to NSA, ODNI, or DOE, when access to COMSEC, SCI, or RD is involved. The GCA will request that NSA, ODNI, or DOE respond within 30 calendar days of the date of the GCA's written request directly to DSS with a copy to the GCA.
(iii) A GCA decision that it will not issue a NID.
(4) Contact DSS to determine an alternative method to the proposed SSA when the GCA chooses not to issue a NID (e.g., a contract modification, a contract novation, or a PA or VTA authorized by the Program Executive Officer).
(5) Notify DSS in writing when NSA, ODNI, or DOE renders a decision on a proposed NID involving access to COMSEC, SCI, or RD, respectively. A GCA's NID decision is not final until NSA, ODNI, or DOE, as applicable, respond regarding access to COMSEC, SCI, or RD.
(6) When denying a NID, retain documentation explaining the rationale for the decision.
(6) Government Security Committee (GSC). (i) Under a VTA, PA, SSA, or SCA, DSS will ensure that the contractor establishes a permanent committee of its Board of Directors or similar body known as the GSC.
(A) The members of the GSC are required in accordance with DoD 5220.22-M to ensure that the contractor maintains policies and procedures to safeguard classified and export controlled information entrusted to it, and that violations of those policies and procedures are promptly investigated and reported to the appropriate authority when it has been determined that a violation has occurred.
(B) The GSC will also take the necessary steps in accordance with DoD 5220.22-M to ensure that the contractor complies with U.S. export control laws and regulations and does not take action deemed adverse to performance on classified contracts. This will include the appointment of a Technology Control Officer and the establishment of Technology Control Plan (TCP).
(ii) DSS will provide oversight, advice, and assistance to GSCs. These measures are intended to ensure that GSCs:
(A) Maintain policies and procedures to safeguard classified information and export-controlled unclassified information in the possession of the contractor with no adverse impact on the performance of classified contracts.
(B) Verify contractor compliance with the DD Form 441 or its successor form, the FOCI mitigation agreement or negation agreement and related documents, contract security requirements, USG export control laws, and the NISP.
(iii) In the case of an SSA, DSS will ensure that the number of outside directors exceeds the number of inside directors, as defined in DoD 5220.22-M. DSS will determine if the outside directors should be a majority of the Board of Directors based on an assessment of security risk factors pertaining to the contractor's access to classified information. In the case of an SCA, DSS will require the contractor to have at least one outside director, but may require more than one outside director based on an assessment of security risk factors.
(iv) In the case where a contractor is cleared to the SECRET level under an SSA, and also has a subsidiary with a TS FCL based on an approved NID, some or all of the outside directors of the cleared parent contractor may be sponsored for eligibility for access to TS information with their TS PCLs held by the subsidiary. Access will be at the level necessary for the outside directors to carry out their security or business responsibilities for oversight of the subsidiary company in accordance with DoD 5220.22-M. If the subsidiary has an approved NID for access to SAP or SCI, the applicable GCA may determine that an outside director at the parent contractor requires approved access at the subsidiary.
(7) Technology Control Plans (TCPs). Under a VTA, PA, SSA, SCA, or Limited FCL, DSS will require the contractor to develop and implement a TCP as required in DoD 5220.22-M. DSS will evaluate and, if the plan is adequate, approve the TCP. The TCP must include a description of all security measures required to prevent the unauthorized disclosure of classified or export-controlled information. Although TCPs must be tailored to the specific circumstances of the contractor or corporate family to be effective, DSS may provide examples of TCPs to the contractor to assist plan creation.
(8) Electronic Communication Plan (ECP). Under a VTA, PA, or SSA, DSS will require the contractor to develop and implement an ECP tailored to the contractor's operations. DSS will determine the extent of the ECP and review the plan for adequacy. The ECP must include a detailed network description and configuration diagram that clearly delineates which networks will be shared and which will be protected from access by the foreign parent or its affiliates. The network description will address firewalls, remote administration, monitoring, maintenance, and separate email servers, as appropriate.
(9) Administrative Support Agreement (ASA). There may be circumstances when the parties to a transaction propose in the FOCI action plan that the U.S. contractor provides certain services to the foreign interest, or the foreign interest provides services to the U.S. contractor. The services to be provided must be such that there is no violation of the applicable FOCI mitigation or negation agreement. If approved, the extent of such support and limitations on the support will be fully documented in an ASA.
(10) Annual Review and Certification—(i) Annual Meeting. DSS will meet at least annually with the GSCs of contractor's operating under a VTA, PA, SSA, or SCA to review and discuss the purpose and effectiveness of the FOCI mitigation or negation agreement; establish a common understanding of the operating requirements and their implementation; answer questions from the GSC members; and provide guidance on matters related to FOCI mitigation and industrial security. These meetings will also include an examination by DSS, with the participation of the (FSO) and the GSC members, of:
(A) Compliance with the approved security arrangement, standard rules, and applicable laws and regulations.
(B) Problems regarding the practical application or utility of the security arrangement.
(C) Security controls, practices, or procedures and whether they warrant adjustment.
(ii) Annual Certification. For contractors operating under a VTA, PA, SSA, or SCA, DSS will obtain from the Chair of the GSC an implementation and compliance report one year from the effective date of the agreement and annually thereafter. DSS will review the annual report; address, resolve, or refer issues identified in the report; document the results of this review and any follow-up actions; and keep a copy of the report and documentation of related DSS actions on file for 15 years. The GSC's annual report must include:
(A) A detailed description stating how the contractor is carrying out its obligations under the agreement.
(B) Changes to security procedures, implemented or proposed, and the reasons for those changes.
(C) A detailed description of any acts of noncompliance with FOCI provisions and a discussion of steps taken to prevent such acts from recurring.
(D) Any changes or impending changes of senior management officials or key board members, including the reasons for the change.
(E) Any changes or impending changes in the organizational structure or ownership, including any acquisitions, mergers, or divestitures.
(F) Any other issues that could have a bearing on the effectiveness of the applicable agreement.
(11) Foreign Government Ownership or Control. (i) In accordance with 10 U.S.C. 2536, the DoD cannot award contracts involving access to proscribed information to a company effectively owned or controlled by a foreign government unless a waiver has been issued by the Secretary of Defense or designee.
(ii) A waiver is not required if the company is cleared under a PA or VTA because both agreements effectively negate foreign government control.
(iii) DSS will, after consultation with the GCA, determine if a waiver is needed in accordance with subpart 209.104-1 of the Defense Federal Acquisition Regulation Supplement “Responsible Prospective Contractors, General Standards” (available at http://www.acq.osd.mil/dpap/dars/dfars/pdf/r20090115/209_1.pdf. The GCA will request the waiver from the USD(I) and provide supporting information, to include a copy of the proposed NID.
(iv) Upon receipt of an approved waiver, the GCA will forward the waiver and the NID to DSS.
(v) If the USD(I) does not grant the waiver, the company may propose to DSS an appropriate PA or VTA. Otherwise, the company is not eligible for access to proscribed information.
(12) Changed Conditions. (i) DSS will require contractors to submit timely reports of changes to FOCI by DSS-designated means in accordance with DoD 5220.22-M.
(ii) Upon receipt of changes to the SF 328 from contractors, DSS will assess the changes to determine if they are material; if they require the imposition of new FOCI mitigation or modification of existing FOCI mitigation; or if they warrant the termination of existing FOCI mitigation. DSS will periodically review the definition of material change with regard to FOCI and publish updated guidance as to what constitutes a reportable material change in coordination with OUSD(I) Security Directorate.
(13) Limited FCL. (i) A Limited FCL may be an option for a single, narrowly defined purpose when there is foreign ownership or control of a U.S. company. In that respect, a Limited FCL is similar to an LAA for a non-U.S. citizen. Consideration of a Limited FCL includes a DSS determination that the company is under FOCI and that the company is either unable or unwilling to implement FOCI negation or mitigation. A GCA or a foreign government may sponsor a Limited FCL consistent with the provisions of paragraphs (b)(13)(iii)(A) through (b)(13)(iii)(D) of this section.
(ii) DSS will:
(A) Document the requirements of each Limited FCL, including the limitations of access to classified information.
(B) Verify a Limited FCL only to the sponsoring GCA or foreign government.
(C) Ensure, in accordance with paragraph (b)(7) of this section, that the contractor has and implements a TCP consistent with DoD 5220.22-M.
(D) Process a home office along with a branch or division, when the GCA or foreign government sponsors the branch or division for a Limited FCL and ensure that the limitations of the Limited FCL are applied to the home office as well as the branch or division.
(E) Administratively terminate the Limited FCL when the FCL is no longer required.
(iii) There are four types of Limited FCLs:
(A) A GCA may sponsor a joint venture company established in the United States for the purpose of supporting a cooperative arms program involving DoD. An authorized GCA official, at the PEO level or higher, must certify in writing that the classified information to be provided to the company has been authorized for disclosure to the participating governments in compliance with U.S. National Disclosure Policy NDP-1, “National Policy and Procedures for the Disclosure of Classified Military Information to Foreign Governments and International Organizations,” (available to designated disclosure authorities on a need-to-know basis from the Office of the Deputy Under Secretary of Defense for Policy Integration and Chief of Staff to the Under Secretary of Defense for Policy). Key management personnel (KMPs) and employees may be citizens of the countries of ownership, if DSS is able to obtain security assurances. The non-U.S. citizens retain their foreign government issued personnel security clearances. The company FSO must be a cleared U.S. citizen as set forth in DoD 5220.22-M.
(B) A U.S. subsidiary of a foreign company may be sponsored for a Limited FCL by the government of the foreign parent company when the foreign government desires to award a contract to the U.S. subsidiary involving access to classified information for which the foreign government is the original classification authority (i.e., FGI), and there is no other need for the U.S, subsidiary to have an FCL. The KMPs must all be U.S. citizens. However, if the U.S. subsidiary is to have access to U.S. classified information in the performance of the contract, the U.S. subsidiary must be considered for one of the FOCI agreements set forth in paragraph (b)(4)(iii) of this section.
(C) A foreign owned freight forwarder may be sponsored for a Limited FCL by a foreign government for the purpose of providing services only to the sponsoring government. Access to U.S. classified information or material will be limited to information and material that has been authorized for export to the sponsoring government consistent with an approved direct commercial sale contract or foreign military sales letter of offer and acceptance. KMPs and employees may be citizens of the sponsoring government, if DSS is able to obtain security assurances on the individuals. As non-U.S. citizens, these individuals would not be eligible for a LAA; would be assigned under an extended visit authorization, and would retain their foreign government issued personnel security clearances. The FSO must be a U.S. citizen.
(D) A senior GCA official, consistent with paragraph (f)(3) of § 117.55, may sponsor a U.S. company, determined to be under FOCI by DSS, for a Limited FCL when the other FOCI agreements described in paragraph (b)(4)(iii) and paragraphs (b)(13)(iii)(A) through (b)(13)(iii)(D) of this section do not apply, and there is a compelling need for the FCL. The official must fully describe the compelling need and certify in writing that the sponsoring GCA accepts the risk inherent in not negating or mitigating the FOCI. The Limited FCL permits performance only on a classified contract issued by the sponsoring GCA.
(14) Foreign Mergers, Acquisitions, Takeovers and CFIUS. (i) CFIUS is a USG interagency committee chaired by the Treasury Department whose purpose is to review transactions that could result in the control of a U.S. business by a foreign person in order to determine the effect of such transactions on the national security of the United States. The regulations defining the CFIUS process are at 31 CFR part 800, “Regulations Pertaining to Mergers, Acquisitions, and Takeovers by Foreign Persons”.
(ii) DoD is a member of CFIUS. DoD procedures for reviewing and monitoring transactions filed with CFIUS are provided in DoD Instruction 2000.25.
(iii) The CFIUS review and the DSS industrial security review for FOCI are separate processes subject to independent authorities, with different time constraints and considerations. However, CFIUS may not mitigate national security risks that are adequately addressed by other provisions of law.
(iv) If the NISP process has not begun or has not been completed prior to the submission of a CFIUS notice, DSS will review, adjudicate, and mitigate FOCI on a priority basis. DSS will provide all relevant information to the OUSD(I) Security Directorate specifically, for any transaction undergoing concurrent CFIUS and DSS reviews.
(A) By the 10th calendar day after the CFIUS review period begins DSS will advise the OUSD (AT&L) Manufacturing and Industrial Base Policy (MIBP) CFIUS Team electronically, with a copy to the OUSD(I) Security Directorate, of the U.S. company's FCL status (e.g., no FCL, FCL in process, TS/S/C FCL).
(B) For contractors or U.S. companies in process for an FCL, DSS will provide the following input in a signed memorandum with rationale included to the Director, Security, OUSD(I) Security Directorate on or before the suspense date established by the MIBP CFIUS Team:
(1) Basic identification information about the contractor, to include name, address, and commercial and government entity code.
(2) FCL level.
(3) Identification of current classified contracts, to include identification of GCAs and any requirement for access to proscribed information.
(4) The nature and status of any discussions DSS has had with the contractor or the foreign interest regarding proposed FOCI mitigation measures.
(5) Whether DSS requires additional time beyond the established MIBP CFIUS team suspense date to determine and recommend to the OUSD(I) Security Directorate whether the proposed FOCI mitigation is sufficient to address risks within the scope of DSS's FOCI authorities.
(6) Identification of any known security issues (e.g., marginal or unsatisfactory security rating, unresolved counterintelligence concerns, alleged export violations).
(v) If it appears that an agreement cannot be reached on material terms of a FOCI action plan, or if the U.S. company subject to the proposed transaction fails to comply with the FOCI reporting requirements of DoD 5220.22-M, DSS may recommend additional time through the OUSD(I) Security Directorate to resolve any national security issues related to FOCI mitigation.
(vi) If the proposed transaction involves access to proscribed information and the contractor is contemplating the use of an SSA to mitigate FOCI, the GCA will provide DSS with a preliminary determination regarding the acceptability of the proposed FOCI mitigation. The determination must be provided to DSS one day prior to the suspense date established by the MIBP CFIUS Team and must include whether a favorable NID will be provided. If the GCA does not notify DSS, DSS will not delay implementation of a FOCI action plan pending completion of a GCA's NID process as long as there is no indication that the NID will be denied.
(vii) If DSS, under its FOCI authorities, is notified of a transaction with respect to which the parties thereto have not filed a notice with CFIUS, DSS will notify the MIBP CFIUS Team through the OUSD(I) Security Directorate.
(viii) When a merger, sale, or acquisition of a contractor is finalized prior to having an acceptable FOCI mitigation agreement in place, DSS will take actions consistent with paragraph (b)(2)(iv) of this section.
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 of Part 147—Standard A—National Agency Check With Local Agency Checks and Credit Check (NACLC)
Attachment B to Subpart B of Part 147—Standard B—Single Scope Background Investigation (SSBI)
Attachment C to Subpart B of Part 147—Standard C—Single Scope Background Investigation Periodic Reinvestigation (SSBI-PR)
Attachment D to Subpart B of Part 147—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.