[Title 32 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2019 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 32
National Defense
________________________
Parts 400 to 629
Revised as of July 1, 2019
Containing a codification of documents of general
applicability and future effect
As of July 1, 2019
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 32:
SUBTITLE A--Department of Defense (Continued)
Chapter V--Department of the Army 5
Finding Aids:
Table of CFR Titles and Chapters........................ 415
Alphabetical List of Agencies Appearing in the CFR...... 435
List of CFR Sections Affected........................... 445
[[Page iv]]
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 32 CFR 504.1 refers
to title 32, part 504,
section 1.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
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parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
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LEGAL STATUS
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HOW TO USE THE CODE OF FEDERAL REGULATIONS
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To determine whether a Code volume has been amended since its
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collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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(b) The matter incorporated is in fact available to the extent
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(c) The incorporating document is drafted and submitted for
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this volume.
[[Page vii]]
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Oliver A. Potts,
Director,
Office of the Federal Register
July 1, 2019
[[Page ix]]
THIS TITLE
Title 32--National Defense is composed of six volumes. The parts in
these volumes are arranged in the following order: Parts 1-190, parts
191-399, parts 400-629, parts 630-699, parts 700-799, and part 800 to
end. The contents of these volumes represent all current regulations
codified under this title of the CFR as of July 1, 2019.
The current regulations issued by the Office of the Secretary of
Defense appear in the volumes containing parts 1-190 and parts 191-399;
those issued by the Department of the Army appear in the volumes
containing parts 400-629 and parts 630-699; those issued by the
Department of the Navy appear in the volume containing parts 700-799,
and those issued by the Department of the Air Force, Defense Logistics
Agency, Selective Service System, Office of the Director of National
Intelligence, National Counterintelligence Center, Central Intelligence
Agency, Information Security Oversight Office (National Archives and
Records Administration), National Security Council, Office of Science
and Technology Policy, Office for Micronesian Status Negotiations, and
Office of the Vice President of the United States appear in the volume
containing part 800 to end.
For this volume, Cheryl E. Sirofchuck was Chief Editor. The Code of
Federal Regulations publication program is under the direction of John
Hyrum Martinez, assisted by Stephen J. Frattini.
[[Page 1]]
TITLE 32--NATIONAL DEFENSE
(This book contains parts 400 to 629)
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SUBTITLE A--Department of Defense (Continued)
Part
chapter v--Department of the Army........................... 504
Abbreviations Used in This Chapter:
AGCT = Army General Classification Test. AGO = Adjutant General's
Office. APP = Army Procurement Procedure. AR = Army Regulations. ASPR
= Armed Services Procurement Regulations. ATC = Air Transport Command.
A. W. = Articles of War. AWOL = Absent Without Leave. Comp. Gen. =
Comptroller General. OCF = Office, Chief of Finance. ROTC = Reserve
Officer's Training Corps. ZI = Zone of Interior.
[[Page 3]]
Subtitle A--Department of Defense (Continued)
[[Page 5]]
CHAPTER V--DEPARTMENT OF THE ARMY
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SUBCHAPTER A--AID OF CIVIL AUTHORITIES AND PUBLIC RELATIONS
Part Page
400-500
[Reserved]
504 Obtaining information from financial
institutions............................ 7
505 Army Privacy Act Program.................... 15
507 Manufacture and sale of decorations, medals,
badges, insignia, commercial use of
heraldic designs and Heraldic Quality
Control Program......................... 72
510 Chaplains................................... 79
516 Litigation.................................. 79
525 Entry authorization regulation for Kwajalein
Missile Range........................... 135
SUBCHAPTER B--CLAIMS AND ACCOUNTS
534 Military court fees......................... 143
536 Claims against the United States............ 147
537 Claims on behalf of the United States....... 222
SUBCHAPTER C--MILITARY EDUCATION
543-544
[Reserved]
SUBCHAPTER D--MILITARY RESERVATIONS AND NATIONAL CEMETERIES
552 Regulations affecting military reservations. 234
553 Army national military cemeteries........... 291
555 Corps of Engineers, research and
development, laboratory research and
development and tests, work for others.. 309
SUBCHAPTER E--ORGANIZED RESERVES
564 National Guard regulations.................. 315
SUBCHAPTER F--PERSONNEL
575 Admission to the United States Military
Academy................................. 323
581 Personnel review board...................... 326
583
Former personnel [Reserved]
584 Family support, child custody, and paternity 335
[[Page 6]]
589 Compliance with court orders by personnel
and command sponsored family members.... 354
SUBCHAPTER G--PROCUREMENT
619
[Reserved]
SUBCHAPTER H--SUPPLIES AND EQUIPMENT
621 Loan and sale of property................... 359
623 Loan of Army materiel....................... 370
625 Surface transportation--administrative
vehicle management...................... 410
626-629
[Reserved]
[[Page 7]]
SUBCHAPTER A_AID OF CIVIL AUTHORITIES AND PUBLIC RELATIONS
PARTS 400 500 [RESERVED]
PART 504_OBTAINING INFORMATION FROM FINANCIAL INSTITUTIONS--Table of Contents
Sec.
504.1 General.
504.2 Procedures.
Appendix A to Part 504--Request for Basic Identifying Account Data--
Sample Format.
Appendix B to Part 504--Customer Consent and Authorization for Access--
Sample Format.
Appendix C to Part 504--Certificate of Compliance with the Right to
Financial Privacy Act of 1978--Sample Format.
Appendix D to Part 504--Formal Written Request for Access--Sample
Format.
Appendix E to Part 504--Customer Notice of Formal Written Request--
Sample Format.
Authority: 12 U.S.C. 3401 et seq., Pub. L. 95-630, unless otherwise
noted.
Source: 70 FR 60723, Oct. 19, 2005, unless otherwise noted.
Sec. 504.1 General.
(a) Purpose. This part provides DA policies, procedures, and
restrictions governing access to and disclosure of financial records
maintained by financial institutions during the conduct of Army
investigations or inquiries.
(b) Applicability and scope. (1) This part applies to the Active
Army, the Army National Guard of the United States (ARNGUS)/Army
National Guard (ARNG), and the United States Army Reserve unless
otherwise stated.
(2) The provisions of 12 U.S.C. 3401 et seq. do not govern obtaining
access to financial records maintained by financial institutions located
outside of the territories of the United States, Puerto Rico, the
District of Columbia, Guam, American Samoa, or the Virgin Islands. The
procedures outlined in Sec. 504.2(d)(4) will be followed in seeking
access to financial information from these facilities.
(3) This part also applies to financial records maintained by
financial institutions as defined in Sec. 504.1(c)(1).
(c) Explanation of terms. (1) For purposes of this part, the
following terms apply:
(i) Financial institution. Any office of a--
(A) Bank.
(B) Savings bank.
(C) Card issuer as defined in section 103 of the Consumers Credit
Protection Act (15 U.S.C. 1602(n)).
(D) Industrial loan company.
(E) Trust company.
(F) Savings association.
(G) Building and loan association.
(H) Homestead association (including cooperative banks).
(I) Credit union.
(J) Consumer finance institution.
(ii) This includes only those offices located in any State or
territory of the United States, or in the District of Columbia, Puerto
Rico, Guam, American Samoa, or the Virgin Islands.
(2) Financial record. An original record, its copy, or information
known to have been derived from the original record held by a financial
institution, pertaining to a customer's relationship with the financial
institution.
(3) Person. An individual or partnership of five or fewer
individuals. (Per DODD 5400.12.)
(4) Customer. Any person or authorized representative of that
person--
(i) Who used or is using any service of a financial institution.
(ii) For which a financial institution is acting or has acted as a
fiduciary for an account maintained in the name of that person.
(5) Law enforcement inquiry. A lawful investigation or official
proceeding inquiring into a violation of, or failure to comply with, a
criminal or civil statute or any regulation, rule, or order issued
pursuant thereto.
(6) Army law enforcement office. Any army element, agency, or unit
authorized to conduct investigations under the Uniform Code of Military
Justice or Army regulations. This broad definition of Army law
enforcement office
[[Page 8]]
includes military police, criminal investigation, inspector general, and
military intelligence activities conducting investigations of suspected
violations of law or regulation.
(7) Personnel security investigation. An investigation required to
determine a person's eligibility for access to classified information,
assignment or retention in sensitive duties, or other designated duties
requiring such investigation. Personnel security investigation includes
investigations of subversive affiliations, suitability information, or
hostage situations conducted to make personnel security determinations.
It also includes investigations of allegations that--
(i) Arise after adjudicative action, and
(ii) Require resolution to determine a person's current eligibility
for access to classified information or assignment or retention in a
sensitive position. With DA, the Defense Investigative Service conducts
personnel security investigations.
(d) Policy--(1) Customer consent. It is DA policy to seek customer
consent to obtain a customer's financial records from a financial
institution unless doing so would compromise or harmfully delay a
legitimate law enforcement inquiry. If the person declines to consent to
disclosure, the alternative means of obtaining the records authorized by
this part will be used. (See Sec. 504.2 (c) through (g).)
(2) Access requests. Except as provided in paragraph (d)(3) of this
section and Sec. Sec. 504.1(f)(1), 504.2(g) and 504.2(j), Army
investigative elements may not have access to or obtain copies of the
information in the financial records of any customer from a financial
institution unless the financial records are reasonably described and
the--
(i) Customer has authorized such disclosure (Sec. 504.2(b));
(ii) Financial records are disclosed in response to a search warrant
which meets the requirements of Sec. 504.2(d);
(iii) Financial records are disclosed in response to a judicial
subpoena which meets the requirements of Sec. 504.2(e); or
(iv) Financial records are disclosed in response to a formal written
request which meets the requirements of Sec. 504.2(f).
(3) Voluntary information. Nothing in this part will preclude any
financial institution, or any officer, employee, or agent of a financial
institution, from notifying an Army investigative element that such
institution, or officer, employee or agent has information which may be
relevant to a possible violation of any statute or regulation.
(e) Authority. (1) Law enforcement offices are authorized to obtain
records of financial institutions per this part, except as provided in
Sec. 504.2(e).
(2) The head of a law enforcement office of field grade rank or
higher (or an equivalent grade civilian official) is authorized to
initiate requests for such records.
(f) Exceptions and waivers. (1) A law enforcement office may issue a
formal written request for basic identifying account information to a
financial institution as part of a legitimate law enforcement inquiry.
The request may be issued for any or all of the following identifying
data:
(i) Name.
(ii) Address.
(iii) Account number.
(iv) Type of account of any customer or ascertainable group of
customers associated with a financial transaction or class of financial
transactions.
(2) A request for disclosure of the above specified basic
identifying data on a customer's account may be issued without complying
with the customer notice, challenge, or transfer procedures described in
Sec. 504.2. However, if access to the financial records themselves is
required, the procedures in Sec. 504.2 must be followed. (A sample
format for requesting basic identifying account data is in app. A.)
(3) This part will not apply when financial records are sought by
the Army under the Federal Rules for Civil Procedure, Criminal
Procedure, Rules for Courts-Martial, or other comparable rules of other
courts in connection with litigation to which the Government and the
customer are parties.
(4) No exceptions or waivers will be granted for those portions of
this part required by law. Submit requests for exceptions or waivers of
other aspects
[[Page 9]]
of this part to HQDA OPMG (DAPM-MPD-LE), Washington, DC 20310-2800.
Sec. 504.2 Procedures.
(a) General. A law enforcement official seeking access to a person's
financial records will, when feasible, obtain the customer's consent.
This section also sets forth other authorized procedures for obtaining
financial records if it is not feasible to obtain the customer's
consent. Authorized procedures for obtaining financial records follow.
All communications with a U.S. Attorney or a U.S. District Court, as
required by this part, will be coordinated with the supporting staff
judge advocate before dispatch.
(b) Customer consent. (1) A law enforcement office may gain access
to or a copy of a customer's financial records by obtaining the
customer's consent and authorization in writing. (See app. B to this
part for a sample format.) Any consent obtained under the provisions of
this paragraph must--
(i) Be in writing, signed, and dated.
(ii) Identify the particular financial records being disclosed.
(iii) State that the customer may revoke the consent at any time
before disclosure.
(iv) Specify the purpose of disclosure and to which agency the
records may be disclosed.
(v) Authorize the disclosure for a period not over 3 months.
(vi) Contain a ``'Statement of Customer Rights Under the Right to
Financial Privacy Act of 1978'' (12 U.S.C. 3401 et seq.) (app. B).
(2) Any customer's consent not containing all of the elements listed
in paragraph (a) of this section will not be valid.
(3) A copy of the customer's consent will be made a part of the law
enforcement inquiry file.
(4) A certification of compliance with 12 U.S.C. 3401 et seq. (app.
C), along with the customer's consent, will be provided to the financial
institution as a prerequisite to obtaining access to the financial
records.
(c) Administrative summons or subpoena. The Army has no authority to
issue an administrative summons or subpoena for access to financial
records.
(d) Search warrant. (1) A law enforcement office may obtain
financial records by using a search warrant obtained under Rule 41 of
the Federal Rules of Criminal Procedure in appropriate cases.
(2) No later than 90 days after the search warrant is served, unless
a delay of notice is obtained under Sec. 504.2(i), a copy of the search
warrant and the following notice must be mailed to the customer's last
known address:
Records or information concerning your transactions held by the
financial institution named in the attached search warrant were obtained
by this (office/agency/unit) on (date) for the following purpose: (state
purpose). You may have rights under the Right to Financial Privacy Act
of 1978.
(3) Search authorization signed by installation commanders or
military judges will not be used to gain access to financial records
from financial institutions in any State or territory of the United
States.
(4) Access to financial records maintained by military banking
contractors in overseas areas or by other financial institutions located
on DOD installations outside the United States, Puerto Rico, the
District of Columbia, Guam, American Samoa, or the Virgin Islands is
preferably obtained by customer consent.
(i) In cases where it would not be appropriate to obtain this
consent or such consent is refused and the financial institution is not
otherwise willing to provide access to its records, the law enforcement
activity may seek access by use of a search authorization. This
authorization must be prepared and issued per AR 27-10, Military
Justice.
(ii) Information obtained under this paragraph should be properly
identified as financial information. It should be transferred only where
an official need-to-know exists. Failure to do so, however, does not
render the information inadmissible in courts-martial or other
proceedings.
(iii) Law enforcement activities seeking access to financial records
maintained by all other financial institutions overseas will comply with
local foreign statutes or procedures governing such access.
[[Page 10]]
(e) Judicial subpoena. Judicial subpoenas--
(1) Are those subpoenas issued in connection with a pending judicial
proceeding.
(2) Include subpoenas issued under Rule for Courts-Martial 703(e)(2)
of the Manual for Courts-Martial and Article 46 of the Uniform Code of
Military Justice. The servicing staff judge advocate will be consulted
on the availability and use of judicial subpoenas.
(f) Formal written request. (1) A law enforcement office may
formally request financial records when the records are relevant to a
legitimate law enforcement inquiry. This request may be issued only if--
(i) The customer has declined to consent to the disclosure of his or
her records, or
(ii) Seeking consent from the customer would compromise or harmfully
delay a legitimate law enforcement inquiry.
(2) A formal written request will be in a format set forth in
appendix D of this part and will--
(i) State that the request is issued under the Right to Financial
Privacy Act of 1978 and this part.
(ii) Described the specific records to be examined.
(iii) State that access is sought in connection with a legitimate
law enforcement inquiry.
(iv) Describe the nature of the inquiry.
(v) Be signed by the head of the law enforcement office or a
designee (persons specified in Sec. 504.1(e)(2)).
(3) At the same time or before a formal written request is issued to
a financial institution, a copy of the request will be personally served
upon or mailed to the customer's last known address unless a delay of
customer notice has been obtained under Sec. 504.2(i). The notice to
the customer will be--
(i) In a format similar to appendix E of this part.
(ii) Personally served at least 10 days or mailed at least 14 days
before the date on which access is sought.
(4) The official who signs the customer notice is designated to
receive any challenge from the customer.
(5) The customer will have 10 days to challenge a notice request
when personal service is made, and 14 days when service is by mail.
(6) The head of the law enforcement office initiating the formal
written request will set up procedures to ensure that no access to
financial records is attempted before expiration of the above time
periods--
(i) While awaiting receipt of a potential customer challenge, or
(ii) While awaiting the filing of an application for an injunction
by the customer.
(7) Proper preparation of the formal written request and notice to
the customer requires preparation of motion papers and a statement
suitable for court filing by the customer. Accordingly, the law
enforcement office intending to initiate a formal written request will
coordinate preparation of the request, the notice, motion papers, and
sworn statement with the supporting staff judge advocate. These
documents are required by statute; their preparation cannot be waived.
(8) The supporting staff judge advocate is responsible for liaison
with the proper United States Attorney and United States District Court.
The requesting official will coordinate with the supporting staff judge
advocate to determine whether the customer has filed a motion to prevent
disclosure of the financial records within the prescribed time limits.
(9) The head of the law enforcement office (Sec. 504.2(f)(2)(v))
will certify in writing (see app. C) to the financial institution that
such office has complied with the requirements of 12 U.S.C. 3401 et
seq.--
(i) When a customer fails to file a challenge to access to financial
records within the above time periods, or
(ii) When a challenge is adjudicated in favor of the law enforcement
office. No access to any financial records will be made before such
certification is given.
(g) Emergency access. Section 504.2(g)(2)(3) provides for emergency
access in such cases of imminent danger. (No other procedures in this
part apply to such emergency access.)
(1) In some cases, the requesting law enforcement office may
determine that a delay in obtaining access would create an imminent
danger of--
[[Page 11]]
(i) Physical injury to a person,
(ii) Serious property damage, or
(iii) Flight to avoid prosecution.
(2) When emergency access is made to financial records, the
requesting official (Sec. 504.1(e)(2)) will--
(i) Certify in writing (in a format similar to that in app. C) to
the financial institution that the provisions of 12 U.S.C. 3401 et seq.
have been complied with as a prerequisite to obtaining access.
(ii) File with the proper court a signed, sworn statement setting
forth the grounds for the emergency access within 5 days of obtaining
access to financial records.
(3) After filing of the signed, sworn statement, the official who
has obtained access to financial records under this paragraph will as
soon as practicable--
(i) Personally serve or mail to the customer a copy of the request
to the financial institution and the following notice, unless a delay of
notice has been obtained under Sec. 504.2(i):
Records concerning your transactions held by the financial
institution named in the attached request were obtained by (office/
agency/unit) under the Right to Financial Privacy Act of 1978 on (date)
for the following purpose: (state with reasonable detail the nature of
the law enforcement inquiry). Emergency access to such records was
obtained on the grounds that (state grounds).
(ii) Ensure that mailings under this section are by certified or
registered mail to the last known address of the customer.
(h) Release of information obtained from financial institutions--(1)
Records notice. Financial records, to include derived information,
obtained under 12 U.S.C. 3401 et seq. will be marked as follows:
This record was obtained pursuant to the Right to Financial Privacy
Act of 1978, 12 U.S.C. 3401 et seq., and may not be transferred to
another Federal agency or department outside DOD without prior
compliance with the transferring requirements of 12 U.S.C. 3412.
(2) Records transfer. (i) Financial records originally obtained
under this part will not be transferred to another agency or department
outside the DOD unless the transferring law enforcement office certifies
their relevance in writing. Certification will state that there is
reason to believe that the records are relevant to a legitimate law
enforcement inquiry within the jurisdiction of the receiving agency or
department. To support this certification, the transferring office may
require that the requesting agency submit adequate justification for its
request. File a copy of this certification with a copy of the released
records.
(ii) Unless a delay of customer notice has been obtained (Sec.
504.2(i)), the transferring law enforcement office will, within 14 days,
personally serve or mail the following to the customer at his or her
last known address--
(A) A copy of the certification made according to Sec.
504.2(h)(2)(i) and
(B) The following notice, which will state the nature of the law
enforcement inquiry with reasonable detail:
Copies of, or information contained in, your financial records
lawfully in possession of the Department of the Army have been furnished
to (state the receiving agency or department) pursuant to the Right to
Financial Privacy Act of 1978 for (state the purpose). If you believe
that this transfer has not been made to further a legitimate law
enforcement inquiry, you may have legal rights under the Financial
Privacy Act of 1978 or the Privacy Act of 1974.
(iii) If a request for release of information is from a Federal
agency authorized to conduct foreign intelligence or foreign
counterintelligence activities (Executive Order 12333) and is for
purposes of conducting such activities by these agencies, the
information will be released without notifying the customer, unless
permission to provide notification is given in writing by the requesting
agency.
(iv) Financial information obtained before the effective date of the
Financial Privacy Act of 1978 (March 10, 1979) may continue to be
provided to other agencies according to existing procedures, to include
applicable Privacy Act System Notices published in AR 340-21 series.
(3) Precautionary measures. Whenever financial data obtained under
this part is incorporated into a report of investigation or other
correspondence, precautions must be taken to ensure that--
[[Page 12]]
(i) The report or correspondence is not distributed outside of DOD
except in compliance with paragraph (h)(2)(ii)(B) of this section.
(ii) The report or other correspondence contains the following
warning restriction on the first page or cover:
Some of the information contained herein (cite specific paragraphs)
is financial record information which was obtained pursuant to the Right
to Financial Privacy Act of 1978, 12 U.S.C. 3401 et seq. This
information may not be released to another Federal agency or department
outside the DOD without compliance with the specific requirements of 12
U.S.C. 3412 and AR 190-6.
(i) Delay of customer notice procedures--(1) Length of delay. The
customer notice required by formal written request (Sec. 504.2(f)(3)),
emergency access (Sec. 504.2(g)(3)), and release of information (Sec.
504.2(h)(2)(iii)) may be delayed for successive periods of 90 days. The
notice required for search warrant (Sec. 504.2(d)(2)) may be delayed
for one period of 180 days and successive periods of 90 days.
(2) Conditions for delay. A delay of notice may only be made by an
order of an appropriate court. This will be done when not granting a
delay in serving the notice would result in--
(i) Endangering the life or physical safety of any person.
(ii) Flight from prosecution.
(iii) Destruction of or tampering with evidence.
(iv) Intimidation of potential witnesses.
(v) Otherwise seriously jeopardizing an investigation or official
proceeding or unduly delaying a trial or ongoing official proceeding to
the same degree as the circumstances in Sec. 504.2(i)(2)(i) through
(iv).
(3) Coordination. When a delay of notice is appropriate, the law
enforcement office involved will consult with the supporting staff judge
advocate before attempting to obtain such a delay. Applications for
delay of notice should contain reasonable detail.
(4) After delay expiration. Upon the expiration of a delay of notice
under above and required by--
(i) Section 504.2(d)(2), the law enforcement office obtaining
financial records will mail to the customer a copy of the search warrant
and the following notice.
Records or information concerning your transactions held by the
financial institution named in the attached search warrant were obtained
by this (agency or office) on (date). Notification was delayed beyond
the statutory 180-day delay period pursuant to a determination by the
court that such notice would seriously jeopardize an investigation
concerning (state with reasonable detail). You may have rights under the
Right to Financial Privacy Act of 1978.
(ii) Section 504.2(f)(3), the law enforcement office obtaining
financial records will serve personally or mail to the customer a copy
of the process or request and the following notice:
Records or information concerning your transactions which are held
by the financial institution named in the attached process or request
were supplied to or requested by the Government authority named in the
process or request on (date). Notification was withheld pursuant to a
determination by the (title of the court so ordering) under the Right to
Financial Privacy Act of 1978 that such notice might (state reason). The
purpose of the investigation or official proceeding was (state purpose
with reasonable detail).
(iii) Section 504.2(g)(3), the law enforcement office obtaining
financial records will serve personally or mail to the customer a copy
of the request and the notice required by Sec. 504.2(g)(3).
(iv) Section 504.2(h)(2), the law enforcement office transferring
financial records will serve personally or mail to the customer the
notice required by Sec. 504.2(f)(3). If the law enforcement office was
responsible for obtaining the court order authorizing the delay, such
office shall also serve personally or by mail to the customer the notice
required in Sec. 504.2(f)(3).
(j) Foreign intelligence and foreign counterintelligence activities.
(1) Except as indicated below, nothing in this regulation applies to
requests for financial information in connection with authorized foreign
intelligence and foreign counterintelligence activities as defined in
Executive Order 12333. Appropriate foreign intelligence and
counterintelligence directives should be consulted in these instances.
(2) However, to comply with the Financial Privacy Act of 1978, the
following guidance will be followed for
[[Page 13]]
such requests. When a request for financial records is made--
(i) A military intelligence group commander, the chief of an
investigative control office, or the Commanding General (CG) (or Deputy
CG), U.S. Army Intelligence and Security Command, will certify to the
financial institution that the requesting activity has complied with the
provisions of 12 U.S.C. 3403(b).
(ii) The requesting official will notify the financial institution
from which records are sought that 12 U.S.C. 3414(a)(3) prohibits
disclosure to any person by the institution, its agents, or employees
that financial records have been sought or obtained.
(k) Certification. A certificate of compliance with the Right to
Financial Privacy Act of 1978 (app. C) will be provided to the financial
institution as a prerequisite to obtaining access to financial records
under the following access procedures:
(1) Customer consent (Sec. 504.2(b)).
(2) Search warrant (Sec. 504.2(d)).
(3) Judicial subpoena (Sec. 504.2(e)).
(4) Formal written request (Sec. 504.2(f)).
(5) Emergency access (Sec. 504.2(g)).
(6) Foreign intelligence and foreign counterintelligence activities
(Sec. 504.2(j)).
Sec. Appendix A to Part 504--Request For Basic Identifying Account
Data--Sample Format
(Official Letterhead)
(Date)_________________________________________________________________
Mr./Mrs. ______________________________________________________________
Chief Teller (as appropriate), First National
Bank, Little Rock, AR 72203.
Dear Mr./Mrs. _____: In connection with a legitimate law enforcement
inquiry and pursuant to section 3414 of the Right to Financial Privacy
Act of 1978, section 3401 et seq., Title 12, United States Code, you are
requested to provide the following account information: (name, address,
account number, and type of account of any customer or ascertainable
group of customers associated with a certain financial transaction or
class of financial transactions as set forth in Sec. 504.1(f)).
I hereby certify, pursuant to section 3403(b) of the Right to
Financial Privacy Act of 1978, that the provisions of the Act have been
complied with as to this request for account information.
(Official Signature Block) ____________________________________________
Under section 3417(c) of the Act, good faith reliance upon this
certification relieves your institution and its employees and agents of
any possible liability to the subject in connection with the disclosure
of the requested financial records.
Sec. Appendix B to Part 504--Customer Consent and Authorization For
Access--Sample Format
Pursuant to section 3404(a) of the Right to Financial Privacy Act of
1978, I, (name of customer), having read the explanation of my rights on
the reverse side, hereby authorize the (name and address of financial
institution) to disclose these financial records: (list of particular
financial records) to (Army law enforcement office) for the following
purpose(s): (specify the purpose(s)).
I understand that this authorization may be revoked by me in writing
at any time before my records, as described above, are disclosed, and
that this authorization is valid for no more than 3 months from the date
of my signature.
Date:__________________________________________________________________
Signature:_____________________________________________________________
(Typed name)
(Mailing address of customer)
Statement of Customer Rights Under the Right to Financial Privacy Act of
1978
Federal law protects the privacy of your financial records. Before
banks, savings and loan associations, credit unions, credit card
issuers, or other financial institutions may give financial information
about you to a Federal agency, certain procedures must be followed.
Consent to Financial Records
You may be asked to consent to the financial institution making your
financial records available to the Government. You may withhold your
consent, and your consent is not required as a condition of doing
business with any financial institution. If you give your consent, it
can be revoked in writing at any time before your records are disclosed.
Furthermore, any consent you give is effective for only 3 months and
your financial institution must keep a record of the instances in which
it discloses your financial information.
Without Your Consent
Without your consent, a Federal agency that wants to see your
financial records may do so ordinarily only by means of a lawful
subpoena, summons, formal written request, or search warrant for that
purpose. Generally, the Federal agency must give you advance notice of
its request for your records explaining why the information is being
sought and telling you how to object in court. The Federal agency must
also send
[[Page 14]]
you copies of court documents to be prepared by you with instructions
for filling them out. While these procedures will be kept as simple as
possible, you may want to consult an attorney before making a challenge
to a Federal agency's request.
Exceptions
In some circumstances, a Federal agency may obtain financial
information about you without advance notice or your consent. In most of
these cases, the Federal agency will be required to go to court for
permission to obtain your records without giving you notice beforehand.
In these instances, the court will make the Government show that its
investigation and request for your records are proper. When the reason
for the delay of notice no longer exists, you will usually be notified
that your records were obtained.
Transfer of Information
Generally, a Federal agency that obtains your financial records is
prohibited from transferring them to another Federal agency unless it
certifies in writing the transfer is proper and sends a notice to you
that your records have been sent to another agency.
Penalties
If the Federal agency or financial institution violates the Right to
Financial Privacy Act, you may sue for damages or seek compliance with
the law. If you win, you may be repaid your attorney's fee and costs.
Additional Information
If you have any questions about your rights under this law, or about
how to consent to release your financial records, please call the
official whose name and telephone number appears below:
________________________________________________________________________
(Last Name, First Name, Middle Initial)
________________________________________________________________________
Title (Area Code) (Telephone Number)
________________________________________________________________________
(Component activity, address)
Sec. Appendix C to Part 504--Certificate of Compliance With the Right to
Financial Privacy Act of 1978--Sample Format
(Official Letterhead)
Mr./Mrs._______________________________________________________________
Manager, Army Federal Credit Union, Fort Ord, CA 93941.
Dear Mr./Mrs. _____: I certify, pursuant to section 3403(b) of the
Right to Financial Privacy Act of 1978, section 3401 et seq., Title 12,
United States Code, that the applicable provisions of that statute have
been complied with as to the (customer's consent, search warrant or
judicial subpoena, formal written request, emergency access, as
applicable) presented on (date), for the following financial records of
(customer's name):
________________________________________________________________________
(Describe the specific records)
(Official Signature Block)_____________________________________________
Pursuant to section 3417(c) of the Right to Financial Privacy Act of
1978, good faith reliance upon this certificate relieves your
institution and its employees and agents of any possible liability to
the customer in connection with the disclosure of these financial
records.
Sec. Appendix D to Part 504--Formal Written Request For Access--Sample
Format
(Official Letterhead)
(Date)_________________________________________________________________
Mr./Mrs._______________________________________________________________
President (as appropriate), City National Bank and Trust Company,
Altoona, PA 16602.
Dear Mr./Mrs. _____: In connection with a legitimate law enforcement
inquiry and pursuant to section 3402(5) and section 3408 of the Right to
Financial Privacy Act of 1978, section 3401 et seq., Title 12, United
States Code, and Army Regulation 190-6, you are requested to provide the
following account information pertaining to (identify customer);
________________________________________________________________________
(Describe the specific records to be examined)
The Army has no authority to issue an administrative summons or
subpoena for access to these financial records which are required for
(describe the nature or purpose of the inquiry).
A copy of this request was (personally served upon or mailed to) the
subject on (date) who has (10 or 14) days in which to challenge this
request by filing an application in an appropriate United States
district court if the subject desires to do so.
Upon expiration of the above mentioned time period and in the
absence of any filing or challenge by the subject, you will be furnished
a certification certifying in writing that the applicable provisions of
the Act have been complied with prior to obtaining the requested
records. Upon your receipt of a Certificate of Compliance with the Right
to Financial Privacy Act of 1978, you will be relieved of any possible
liability to the subject in connection with the disclosure of the
requested financial records.
(Official Signature Block)_____________________________________________
[[Page 15]]
Sec. Appendix E to Part 504--Customer Notice of Formal Written Request--
Sample Format
(Official Letterhead)
(Date)_________________________________________________________________
Mr./Ms.________________________________________________________________
1500 N. Main Street, Washington, DC 20314.
Dear Mr./Ms. __: Information or records concerning your transactions
held by the financial institution named in the attached request are
being sought by the (agency/department) in accordance with the Right to
Financial Privacy Act of 1978, section 3401 et seq., Title 12, United
States Code, and Army Regulation 190-6, for the following purpose(s):
________________________________________________________________________
(List the purpose(s))
If you desire that such records or information not be made
available, you must do the following:
a. Fill out the accompanying motion paper and sworn statement or
write one of your own--
(1) Stating that you are the customer whose records are being
requested by the Government.
(2) Giving the reasons you believe that the records are not relevant
or any other legal basis for objecting to the release of the records.
b. File the motion and statement by mailing or delivering them to
the clerk of any one of the following United States District Courts:
________________________________________________________________________
(List applicable courts)
c. Mail or deliver a copy of your motion and statement to the
requesting authority: (give title and address).
d. Be prepared to come to court and present your position in further
detail.
You do not need to have a lawyer, although you may wish to employ
one to represent you and protect your rights.
If you do not follow the above procedures, upon the expiration of
(10 days from the date of personal service) (14 days from the date of
mailing) of this notice, the records or information requested therein
may be made available.
These records may be transferred to other Government authorities for
legitimate law enforcement inquiries, in which event you will be
notified after the transfer if such transfer is made.
3 Enclosures (see para __)
(Signature)____________________________________________________________
PART 505_ARMY PRIVACY ACT PROGRAM--Table of Contents
Sec.
505.1 General information.
505.2 General provisions.
505.3 Privacy Act systems of records.
505.4 Collecting personal information.
505.5 Individual access to personal information.
505.6 Amendment of records.
505.7 Disclosure of personal information to other agencies and third
parties.
505.8 Training requirements.
505.9 Reporting requirements.
505.10 Use and establishment of exemptions.
505.11 Federal Register publishing requirements.
505.12 Privacy Act enforcement actions.
505.13 Computer Matching Agreement Program.
505.14 Recordkeeping requirements under the Privacy Act.
Appendix A to Part 505--References
Appendix B to Part 505--Denial Authorities for Records Under Their
Authority (Formerly Access and Amendment Refusal Authorities)
Appendix C to Part 505--Privacy Act Statement Format
Appendix D to Part 505--Exemptions, Exceptions, and DoD Blanket Routine
Uses
Appendix E to Part 505--Litigation Status Sheet
Appendix F to Part 505--Example of a System of Records Notice
Appendix G to Part 505--Management Control Evaluation Checklist
Appendix H to Part 505--Definitions
Authority: Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).
Source: 71 FR 46052, Aug. 10, 2006, unless otherwise noted.
Sec. 505.1 General information.
(a) Purpose. This part sets forth policies and procedures that
govern personal information maintained by the Department of the Army
(DA) in Privacy Act systems of records. This part also provides guidance
on collecting and disseminating personal information in general. The
purpose of the Army Privacy Act Program is to balance the government's
need to maintain information about individuals with the right of
individuals to be protected against unwarranted invasions of their
privacy stemming from Federal agencies' collection, maintenance,
[[Page 16]]
use and disclosure of personal information about them. Additionally,
this part promotes uniformity within the Army's Privacy Act Program.
(b) References: (1) Referenced publications are listed in Appendix A
of this part.
(2) DOD Computer Matching Program and other Defense Privacy
Guidelines may be accessed at the Defense Privacy Office Web site http:/
/www.defenselink.mil/privacy.
(c) Definitions are provided at Appendix H of this part.
(d) Responsibilities. (1) The Office of the Administrative Assistant
to the Secretary of the Army will--
(i) Act as the senior Army Privacy Official with overall
responsibility for the execution of the Department of the Army Privacy
Act Program;
(ii) Develop and issue policy guidance for the program in
consultation with the Army General Counsel; and
(iii) Ensure the DA Privacy Act Program complies with Federal
statutes, Executive Orders, Office of Management and Budget guidelines,
and 32 CFR part 310.
(2) The Chief Attorney, Office of the Administrative Assistant to
the Secretary of the Army (OAASA) will--
(i) Provide advice and assistance on legal matters arising out of,
or incident to, the administration of the DA Privacy Act Program;
(ii) Serve as the legal advisor to the DA Privacy Act Review Board.
This duty may be fulfilled by a designee in the Chief Attorney and Legal
Services Directorate, OAASA;
(iii) Provide legal advice relating to interpretation and
application of the Privacy Act of 1974; and
(iv) Serve as a member on the Defense Privacy Board Legal Committee.
This duty may be fulfilled by a designee in the Chief Attorney and Legal
Services Directorate, OAASA.
(3) The Judge Advocate General will serve as the Denial Authority on
requests made pursuant to the Privacy Act of 1974 for access to or
amendment of Army records, regardless of functional category, concerning
actual or potential litigation in which the United States has an
interest.
(4) The Chief, DA Freedom of Information Act and Privacy Office
(FOIA/P), U.S. Army Records Management and Declassification Agency
will--
(i) Develop and recommend policy;
(ii) Execute duties as the Army's Privacy Act Officer;
(iii) Promote Privacy Act awareness throughout the DA;
(iv) Serve as a voting member on the Defense Data Integrity Board
and the Defense Privacy Board;
(v) Represent the Department of the Army in DOD policy meetings; and
(vi) Appoint a Privacy Act Manager who will--
(A) Administer procedures outlined in this part;
(B) Review and approve proposed new, altered, or amended Privacy Act
systems of records notices and subsequently submit them to the Defense
Privacy Office for coordination;
(C) Review Department of the Army Forms for compliance with the
Privacy Act and this part;
(D) Ensure that reports required by the Privacy Act are provided
upon request from the Defense Privacy Office;
(E) Review Computer Matching Agreements and recommend approval or
denial to the Chief, DA FOIA/P Office;
(F) Provide Privacy Act training;
(G) Provide privacy guidance and assistance to DA activities and
combatant commands where the Army is the Executive Agent;
(H) Ensure information collections are developed in compliance with
the Privacy Act provisions;
(I) Ensure Office of Management and Budget reporting requirements,
guidance, and policy are accomplished; and
(J) Immediately review privacy violations of personnel to locate the
problem and develop a means to prevent recurrence of the problem.
(5) Heads of Department of the Army activities, field-operating
agencies, direct reporting units, Major Army commands, subordinate
commands down to the battalion level, and installations will--
(i) Supervise and execute the privacy program in functional areas
and activities under their responsibility; and
(ii) Appoint a Privacy Act Official who will--
(A) Serve as the staff advisor on privacy matters;
[[Page 17]]
(B) Ensure that Privacy Act records collected and maintained within
the Command or agency are properly described in a Privacy Act system of
records notice published in the Federal Register;
(C) Ensure no undeclared systems of records are being maintained;
(D) Ensure Privacy Act requests are processed promptly and
responsively;
(E) Ensure a Privacy Act Statement is provided to individuals when
information is collected that will be maintained in a Privacy Act system
of records, regardless of the medium used to collect the personal
information (i.e., forms, personal interviews, stylized formats,
telephonic interviews, or other methods);
(F) Review, biennially, recordkeeping practices to ensure compliance
with the Act, paying particular attention to the maintenance of
automated records. In addition, ensure cooperation with records
management officials on such matters as maintenance and disposal
procedures, statutory requirements, forms, and reports; and
(G) Review, biennially Privacy Act training practices. This is to
ensure all personnel are familiar with the requirements of the Act.
(6) DA Privacy Act System Managers and Developers will--
(i) Ensure that appropriate procedures and safeguards are developed,
implemented, and maintained to protect an individual's personal
information;
(ii) Ensure that all personnel are aware of their responsibilities
for protecting personal information being collected and maintained under
the Privacy Act Program;
(iii) Ensure official filing systems that retrieve records by name
or other personal identifier and are maintained in a Privacy Act system
of records have been published in the Federal Register as a Privacy Act
system of records notice. Any official who willfully maintains a system
of records without meeting the publication requirements, as prescribed
by 5 U.S.C. 552a, as amended, OMB Circular A-130, 32 CFR part 310 and
this part, will be subject to possible criminal penalties and/or
administrative sanctions;
(iv) Prepare new, amended, or altered Privacy Act system of records
notices and submit them to the DA Freedom of Information and Privacy
Office for review. After appropriate coordination, the system of records
notices will be submitted to the Defense Privacy Office for their review
and coordination;
(v) Review, biennially, each Privacy Act system of records notice
under their purview to ensure that it accurately describes the system of
records;
(vi) Review, every four years, the routine use disclosures
associated with each Privacy Act system of records notice in order to
determine if such routine use continues to be compatible with the
purpose for which the activity collected the information;
(vii) Review, every four years, each Privacy Act system of records
notice for which the Secretary of the Army has promulgated exemption
rules pursuant to Sections (j) or (k) of the Act. This is to ensure such
exemptions are still appropriate;
(viii) Review, every year, contracts that provide for the
maintenance of a Privacy Act system of records to accomplish an
activity's mission. This requirement is to ensure each contract contains
provisions that bind the contractor, and its employees, to the
requirements of 5 U.S.C. 552a(m)(1); and
(ix) Review, if applicable, ongoing Computer Matching Agreements.
The Defense Data Integrity Board approves Computer Matching Agreements
for 18 months, with an option to renew for an additional year. This
additional review will ensure that the requirements of the Privacy Act,
Office of Management and Budget guidance, local regulations, and the
requirements contained in the Matching Agreements themselves have been
met.
(7) All DA personnel will--
(i) Take appropriate actions to ensure personal information
contained in a Privacy Act system of records is protected so that the
security and confidentiality of the information is preserved;
(ii) Not disclose any personal information contained in a Privacy
Act system of records except as authorized by 5 U.S.C. 552a, DOD
5400.11-R, or other applicable laws. Personnel willfully making a
prohibited disclosure are subject to possible criminal penalties and/or
administrative sanctions; and
[[Page 18]]
(iii) Report any unauthorized disclosures or unauthorized
maintenance of new Privacy Act systems of records to the applicable
activity's Privacy Act Official.
(8) Heads of Joint Service agencies or commands for which the Army
is the Executive Agent or the Army otherwise provides fiscal,
logistical, or administrative support, will adhere to the policies and
procedures in this part.
(9) Commander, Army and Air Force Exchange Service, will supervise
and execute the Privacy Program within that command pursuant to this
part.
(10) Overall Government-wide responsibility for implementation of
the Privacy Act is the Office of Management and Budget. The Department
of Defense is responsible for implementation of the Act within the armed
services. The Privacy Act also assigns specific Government-wide
responsibilities to the Office of Personnel Management and the General
Services Administration.
(11) Government-wide Privacy Act systems of records notices are
available at http://www.defenselink.mil/privacy.
(e) Legal Authority. (1) Title 5, United States Code, Section 552a,
as amended, The Privacy Act of 1974.
(2) Title 5, United States Code, Section 552, The Freedom of
Information Act (FOIA).
(3) Office of Personnel Management, Federal Personnel Manual (5 CFR
parts 293, 294, 297, and 7351).
(4) OMB Circular No. A-130, Management of Federal Information
Resources, Revised, August 2003.
(5) DOD Directive 5400.11, Department of Defense Privacy Program,
November 16, 2004.
(6) DOD Regulation 5400.11-R, Department of Defense Privacy Program,
August 1983.
(7) Title 10, United States Code, Section 3013, Secretary of the
Army.
(8) Executive Order No. 9397, Numbering System for Federal Accounts
Relating to Individual Persons, November 30, 1943.
(9) Public Law 100-503, the Computer Matching and Privacy Act of
1974.
(10) Public Law 107-347, Section 208, Electronic Government (E-Gov)
Act of 2002.
(11) DOD Regulation 6025.18-R, DOD Health Information Privacy
Regulation, January 24, 2003.
Sec. 505.2 General provisions.
(a) Individual privacy rights policy. Army policy concerning the
privacy rights of individuals and the Army's responsibilities for
compliance with the Privacy Act are as follows--
(1) Protect the privacy of United States living citizens and aliens
lawfully admitted for permanent residence from unwarranted intrusion.
(2) Deceased individuals do not have Privacy Act rights, nor do
executors or next-of-kin in general. However, immediate family members
may have limited privacy rights in the manner of death details and
funeral arrangements of the deceased individual. Family members often
use the deceased individual's Social Security Number (SSN) for federal
entitlements; appropriate safeguards must be implemented to protect the
deceased individual's SSN from release. Also, the Health Insurance
Portability and Accountability Act extends protection to certain medical
information contained in a deceased individual's medical records.
(3) Personally identifiable health information of individuals, both
living and deceased, shall not be used or disclosed except for
specifically permitted purposes.
(4) Maintain only such information about an individual that is
necessary to accomplish the Army's mission.
(5) Maintain only personal information that is timely, accurate,
complete, and relevant to the collection purpose.
(6) Safeguard personal information to prevent unauthorized use,
access, disclosure, alteration, or destruction.
(7) Maintain records for the minimum time required in accordance
with an approved National Archives and Records Administration record
disposition.
(8) Let individuals know what Privacy Act records the Army maintains
by publishing Privacy Act system of records notices in the Federal
Register. This will enable individuals to review and make copies of
these
[[Page 19]]
records, subject to the exemptions authorized by law and approved by the
Secretary of the Army. Department of the Army Privacy Act systems of
records notices are available at http://www.defenselink.mil/privacy.
(9) Permit individuals to correct and amend records about themselves
which they can prove are factually in error, not timely, not complete,
not accurate, or not relevant.
(10) Allow individuals to request an administrative review of
decisions that deny them access to or the right to amend their records.
(11) Act on all requests promptly, accurately, and fairly.
(12) Keep paper and electronic records that are retrieved by name or
personal identifier only in approved Privacy Act systems of records.
(13) Maintain no records describing how an individual exercises his
or her rights guaranteed by the First Amendment (freedom of religion,
freedom of political beliefs, freedom of speech and press, freedom of
peaceful assemblage, and petition) unless expressly authorized by
statute, pertinent to and within the scope of an authorized law
enforcement activity, or otherwise authorized by law or regulation.
(14) Maintain appropriate administrative technical and physical
safeguards to ensure records are protected from unauthorized alteration
or disclosure.
(b) Safeguard personal information. (1) Privacy Act data will be
afforded reasonable safeguards to prevent inadvertent or unauthorized
disclosure of records during processing, storage, transmission, and
disposal.
(2) Personal information should never be placed on shared drives
that are accessed by groups of individuals unless each person has an
``official need to know'' the information in the performance of official
duties.
(3) Safeguarding methods must strike a balance between the
sensitivity of the data, need for accuracy and reliability for
operations, general security of the area, and cost of the safeguards. In
some situations, a password may be enough protection for an automated
system with a log-on protocol. For additional guidance on safeguarding
personal information in automated records see AR 380-67, The Department
of the Army Personnel Security Program.
(c) Conveying privacy protected data electronically via e-mail and
the World Wide Web. (1) Unencrypted electronic transmission of privacy
protected data makes the Army vulnerable to information interception
which can cause serious harm to the individual and the accomplishment of
the Army's mission.
(2) The Privacy Act requires that appropriate technical safeguards
be established, based on the media (e.g., paper, electronic) involved,
to ensure the security of the records and to prevent compromise or
misuse during transfer.
(3) Privacy Web sites and hosted systems with privacy-protected data
will employ secure sockets layers (SSL) and Public Key Infrastructure
(PKI) encryption certificates or other DoD-approved commercially
available certificates for server authentication and client/server
authentication. Individuals who transmit data containing personally
identifiable information over e-mail will employ PKI or other DoD-
approved certificates.
(4) When sending Privacy Act protected information within the Army
using encrypted or dedicated lines, ensure that--
(i) There is an ``official need to know'' for each addressee
(including ``cc'' addressees); and
(ii) The Privacy Act protected information is marked For Official
Use Only (FOUO) to inform the recipient of limitations on further
dissemination. For example, add FOUO to the beginning of an e-mail
message, along with the following language: ``This contains FOR OFFICIAL
USE ONLY (FOUO) information which is protected under the Privacy Act of
1974 and AR 340-21, The Army Privacy Program. Do not further disseminate
this information without the permission of the sender.''
(iii) Do not indiscriminately apply this statement. Use it only in
situations when actually transmitting protected Privacy Act information.
(iv) For additional information about marking documents ``FOUO''
review AR 25-55, Chapter IV.
(5) Add appropriate ``Privacy and Security Notices'' at major Web
site
[[Page 20]]
entry points. Refer to AR 25-1, para 6-4n for requirements for posting
``Privacy and Security Notices'' on public Web sites. Procedures related
to the establishing, operating, and maintaining of unclassified DA Web
sites can be accessed at http://www.defenselink.mil/webmasters/policy/
DOD_web_policy.
(6) Ensure public Web sites comply with policies regarding
restrictions on persistent and third party cookies. The Army prohibits
both persistent and third part cookies. (see AR 25-1, para 6-4n)
(7) A Privacy Advisory is required on Web sites which host
information systems soliciting personally identifying information, even
when not maintained in a Privacy Act system of records. The Privacy
Advisory informs the individual why the information is solicited and how
it will be used. Post the Privacy Advisory to the Web site page where
the information is being solicited, or to a well marked hyperlink
stating ``Privacy Advisory--Please refer to the Privacy and Security
Notice that describes why this information is collected and how it will
be used.''
(d) Protecting records containing personal identifiers such as names
and Social Security Numbers. (1) Only those records covered by a Privacy
Act system of records notice may be arranged to permit retrieval by a
personal identifier (e.g., an individual's name or Social Security
Number). AR 25-400-2, paragraph 6-2 requires all records covered by a
Privacy Act system of records notice to include the system of record
identification number on the record label to serve as a reminder that
the information contained within must be safeguarded.
(2) Use a coversheet or DA Label 87 (For Official Use Only) for
individual records not contained in properly labeled file folders or
cabinets.
(3) When developing a coversheet, the following is an example of a
statement that you may use: ``The information contained within is FOR
OFFICIAL USE ONLY (FOUO) and protected by the Privacy Act of 1974.''
(e) Notification of Individuals when personal information is lost,
stolen, or compromised. (1) Whenever an Army organization becomes aware
the protected personal information pertaining to a Service member,
civilian employee (appropriated or non-appropriated fund), military
retiree, family member, or another individual affiliated with Army
organization (e.g., volunteer) has been lost, stolen, or compromised,
the organization shall inform the affected individuals as soon as
possible, but not later than ten days after the loss or compromise of
protected personal information is discovered.
(2) At a minimum, the organization shall advise individuals of what
specific data was involved; the circumstances surrounding the loss,
theft, or compromise; and what protective actions the individual can
take.
(3) If Army organizations are unable to comply with policy, they
will immediately notify their superiors, who will submit a memorandum
through the chain of command to the Administrative Assistant of the
Secretary of the Army to explain why the affected individuals or
population's personal information has been lost, stolen, or compromised.
(4) This policy is also applicable to Army contractors who collect,
maintain, use, or disseminate protected personal information on behalf
of the organization.
(f) Federal government contractors' compliance. (1) When a DA
activity contracts for the design, development, or operation of a
Privacy Act system of records in order to accomplish a DA mission, the
agency must apply the requirements of the Privacy Act to the contractor
and its employees working on the contract (See 48 CFR part 24 and other
applicable supplements to the FAR; 32 CFR part 310).
(2) System Managers will review annually, contracts contained within
the system(s) of records under their responsibility, to determine which
ones contain provisions relating to the design, development, or
operation of a Privacy Act system of records.
(3) Contractors are considered employees of the Army for the purpose
of the sanction provisions of the Privacy Act during the performance of
the contract requirements.
(4) Disclosing records to a contractor for use in performing the
requirements
[[Page 21]]
of an authorized DA contract is considered a disclosure within the
agency under exception (b)(1), ``Official Need to Know'', of the Act.
Sec. 505.3 Privacy Act systems of records.
(a) Systems of records. (1) A system of records is a group of
records under the control of a DA activity that are retrieved by an
individual's name or by some identifying number, symbol, or other
identifying particular assigned to an individual.
(2) Privacy Act systems of records must be--
(i) Authorized by Federal statute or an Executive Order;
(ii) Needed to carry out DA's mission; and
(iii) Published in the Federal Register in a system of records
notice, which will provide the public an opportunity to comment before
DA implements or changes the system.
(3) The mere fact that records are retrievable by a name or personal
identifier is not enough. Records must actually be retrieved by a name
or personal identifier. Records in a group of records that may be
retrieved by a name or personal identifier but are not normally
retrieved by this method are not covered by this part. However, they are
covered by AR 25-55, the Department of the Army Freedom of Information
Act Program.
(4) The existence of a statute or Executive Order mandating the
maintenance of a system of records to perform an authorized activity
does not abolish the responsibility to ensure the information in the
system of records is relevant and necessary to perform the authorized
activity.
(b) Privacy Act system of records notices. (1) DA must publish
notices in the Federal Register on new, amended, altered, or deleted
systems of records to inform the public of the Privacy Act systems of
records that it maintains. The Privacy Act requires submission of new or
significantly changed systems of records to OMB and both houses of
Congress before publication in the Federal Register (See Appendix E of
this part).
(2) Systems managers must send a proposed notice at least 120 days
before implementing a new, amended or altered system to the DA Freedom
of Information and Privacy Office. The proposed or altered notice must
include a narrative statement and supporting documentation. A narrative
statement must contain the following items:
(i) System identifier and name;
(ii) Responsible Official, title, and phone number;
(iii) If a new system, the purpose of establishing the system or if
an altered system, nature of changes proposed;
(iv) Authority for maintenance of the system;
(v) Probable or potential effects of the system on the privacy of
individuals;
(vi) Whether the system is being maintained, in whole or in part, by
a contractor;
(vii) Steps taken to minimize risk of unauthorized access;
(viii) Routine use compatibility;
(ix) Office of Management and Budget information collection
requirements; and
(x) Supporting documentation as an attachment. Also as an attachment
should be the proposed new or altered system notice for publication in
the Federal Register.
(3) An amended or altered system of records is one that has one or
more of the following:
(i) A significant increase in the number, type, or category of
individuals about whom records are maintained;
(ii) A change that expands the types of categories of information
maintained;
(iii) A change that alters the purpose for which the information is
used;
(iv) A change to equipment configuration (either hardware or
software) that creates substantially greater access to the records in
the system of records;
(v) An addition of an exemption pursuant to Section (j) or (k) of
the Act; or
(vi) An addition of a routine use pursuant to 5 U.S.C. 552a(b)(3).
(4) For additional guidance contact the DA FOIA/P Office.
(5) On behalf of DA, the Defense Privacy Office maintains a list of
DOD Components' Privacy Act system of records notices at the Defense
Privacy Office's Web site http://www.defenselink.mil/privacy.
[[Page 22]]
(6) DA PAM 25-51 sets forth procedures pertaining to Privacy Act
system of records notices.
(7) For new systems, system managers must establish appropriate
administrative, technical, and physical safeguards to ensure the
security and confidentiality of records. This applies to all new systems
of records whether maintained manually or automated.
(i) One safeguard plan is the development and use of a Privacy
Impact Assessment (PIA) mandated by the E-Gov Act of 2002, Section 208.
The Office of Management and Budget specifically directs that a PIA be
conducted, reviewed, and published for all new or significantly altered
information in identifiable form collected from or about the members of
the public. The PIA describes the appropriate administrative, technical,
and physical safeguards for new automated systems. This will assist in
the protection against any anticipated threats or hazards to the
security or integrity of data, which could result in substantial harm,
embarrassment, inconvenience, or unfairness to any individual on whom
information is maintained. Contact your local Information Officer for
guidance on conducting a PIA.
(ii) The development of appropriate safeguards must be tailored to
the requirements of the system as well as other factors, such as the
system environment, location, and accessibility.
Sec. 505.4 Collecting personal information.
(a) General provisions. (1) Employees will collect personal
information to the greatest extent practicable directly from the subject
of the record. This is especially critical, if the information may
result in adverse determinations about an individual's rights, benefits,
and privileges under federal programs (See 5 U.S.C. 552a(e)(2)).
(2) It is unlawful for any Federal, State, or local government
agency to deny anyone a legal right, benefit, or privilege provided by
law for refusing to give their SSN unless the law requires disclosure,
or a law or regulation adopted before January 1, 1975, required the SSN
or if DA uses the SSN to verify a person's identity in a system of
records established and in use before that date. Executive Order 9397
(issued prior to January 1, 1975) authorizes the Army to solicit and use
the SSN as a numerical identifier for individuals in most federal
records systems. However, the SSN should only be collected as needed to
perform official duties. Executive Order 9397 does not mandate the
solicitation of SSNs from Army personnel as a means of identification.
(3) Upon entrance into military service or civilian employment with
DA, individuals are asked to provide their SSN. The SSN becomes the
service or employment number for the individual and is used to establish
personnel, financial, medical, and other official records. After an
individual has provided his or her SSN for the purpose of establishing a
record, the Privacy Act Statement is not required if the individual is
only requested to furnish or verify the SSN for identification purposes
in connection with the normal use of his or her records. If the SSN is
to be used for a purpose other than identification, the individual must
be informed whether disclosure of the SSN is mandatory or voluntary; by
what statutory authority the SSN is solicited; and what uses will be
made of the SSN. This notification is required even if the SSN is not to
be maintained in a Privacy Act system of records.
(4) When asking an individual for his or her SSN or other personal
information that will be maintained in a system of records, the
individual must be provided with a Privacy Act Statement.
(b) Privacy Act Statement (PAS). (1) A Privacy Act Statement is
required whenever personal information is requested from an individual
and will become part of a Privacy Act system of records. The information
will be retrieved by the individual's name or other personal identifier
(See 5 U.S.C. 552a(e)(3)).
(2) The PAS will ensure that individuals know why the information is
being collected so they can make an informed decision as to providing
the personal information.
(3) In addition, the PAS will include language that is explicit,
easily understood, and not so lengthy as to deter an individual from
reading it.
[[Page 23]]
(4) A sign can be displayed in areas where people routinely furnish
this kind of information, and a copy of the PAS will be made available
upon request by the individual.
(5) Do not ask the person to sign the PAS.
(6) A Privacy Act Statement must include the following four items--
(i) Authority: Cite the specific statute or Executive Order,
including a brief title or subject that authorizes the DA to collect the
personal information requested.
(ii) Principal Purpose (s): Cite the principal purposes for which
the information will be used.
(iii) Routine Uses: A list of where and why the information will be
disclosed OUTSIDE of DOD. Applicable routine uses are published in the
applicable Privacy Act system of records notice(s). If none, the
language to be used is: ``Routine Use(s): None. However the `Blanket
Routine Uses' set forth at the beginning of the Army's compilation of
systems of records notices apply.''
(iv) Disclosure: Voluntary or Mandatory. Include in the Privacy Act
Statement specifically whether furnishing the requested personal data is
mandatory or voluntary. A requirement to furnish personal data is
mandatory ONLY when a federal statute, Executive Order, regulation, or
other law specifically imposes a duty on the individual to provide the
information sought, and when the individual is subject to a penalty if
he or she fails to provide the requested information. If providing the
information is only a condition of or prerequisite to granting a benefit
or privilege and the individual has the option of receiving the benefit
or privilege, providing the information is always voluntary. However,
the loss or denial of the privilege, benefit, or entitlement sought must
be listed as a consequence of not furnishing the requested information.
(7) Some acceptable means of administering the PAS are as follows,
in the order of preference--
(i) Below the title of the media used to collect the personal
information. The PAS should be positioned so that the individual will be
advised of the PAS before he or she provides the requested information;
(ii) Within the body with a notation of its location below the
title;
(iii) On the reverse side with a notation of its location below the
title;
(iv) Attached as a tear-off sheet; or
(v) Issued as a separate supplement.
(8) An example of a PAS is at appendix B of this part.
(9) Include a PAS on a Web site page if it collects information
directly from an individual and is retrieved by his or her name or
personal identifier (See Office of Management and Budget Privacy Act
Guidelines, 40 FR 28949, 28961 (July 9, 1975)).
(10) Army policy prohibits the collection of personally identifying
information on public Web sites without the express permission of the
user. Requests for exceptions must be forwarded to the Army CIO/G-6.
(See AR 25-1, para 6-4n.)
(c) Collecting personal information from third parties. (1) It may
not be practical to collect personal information directly from the
individual in all cases. Some examples of when collection from third
parties may be necessary are when--
(i) Verifying information;
(ii) Opinions or evaluations are needed;
(iii) The subject cannot be contacted; or
(iv) At the request of the subject individual.
(2) When asking third parties to provide information about other
individuals, they will be advised of--
(i) The purpose of the request; and
(ii) Their rights to confidentiality as defined by the Privacy Act
of 1974 (Consult with your servicing Staff Judge Advocate for potential
limitations to the confidentiality that may be offered pursuant to the
Privacy Act).
(d) Confidentiality promises. Promises of confidentiality must be
prominently annotated in the record to protect from disclosure any
information provided in confidence pursuant to 5 U.S.C. 552a(k)(2),
(k)(5), or (k)(7).
Sec. 505.5 Individual access to personal information.
(a) Individual access. (1) The access provisions of this part are
intended for use by individuals whose records are maintained in a
Privacy Act system of
[[Page 24]]
records. If a representative acts on their behalf, a written
authorization must be provided, with the exception of members of
Congress acting on behalf of a constituent.
(2) A Department of the Army ``Blanket Routine Use'' allows the
release of Privacy Act protected information to members of Congress when
they are acting on behalf of the constituent and the information is
filed and retrieved by the constituent's name or personal identifier.
The said ``Blanket Routine Use'' is listed below.
``Congressional Inquiries Disclosure Routine Use: Disclosure from a
system of records maintained by a DOD Component may be made to a
congressional office from the record of an individual in response to an
inquiry from the congressional office made at the request of that
individual.''
(3) Upon a written request, an individual will be granted access to
information pertaining to him or her that is maintained in a Privacy Act
system of records, unless--
(i) The information is subject to an exemption, the system manager
has invoked the exemption, and the exemption is published in the Federal
Register; or
(ii) The information was compiled in reasonable anticipation of a
civil action or proceeding.
(4) Legal guardians or parents acting on behalf of a minor child
have the minor child's rights of access under this part, unless the
records were created or maintained pursuant to circumstances where the
interests of the minor child were adverse to the interests of the legal
guardian or parent.
(5) These provisions should allow for the maximum release of
information consistent with Army and DOD's statutory responsibilities.
(b) Individual requests for access. (1) Individuals will address
requests for access to records in a Privacy Act system of records to the
system manager or the custodian of the record designated in DA systems
of records notices (See DA PAM 25-51 or the Defense Privacy Office's Web
site http://www.defenselink.mil/privacy).
(2) Individuals do not have to state a reason or justify the need to
gain access to records under the Act.
(3) Release of personal information to individuals under this
section is not considered a ``public release'' of information.
(c) Verification of identity for first party requesters. (1) Before
granting access to personal data, an individual will provide reasonable
verification of identity.
(2) When requesting records in writing, the preferred method of
verifying identity is the submission of a notarized signature. An
alternative method of verifying identity for individuals who do not have
access to notary services is the submission of an un-sworn declaration
in accordance with 28 U.S.C. 1746 in the following format:
(i) If executed within the United States, its territories,
possessions, or commonwealths: ``I declare (or certify, verify, or
state) under penalty of perjury that the foregoing is true and correct.
Executed on (date). (Signature)''.
(ii) If executed outside of the United States: ``I declare under
perjury or penalty under the laws of the United States of America that
the foregoing is true and correct. Executed on (date). (Signature).''
(3) When an individual seeks access in person, identification can be
verified by documents normally carried by the individual (such as
identification card, driver's license, or other license, permit or pass
normally used for identification purposes). However, level of proof of
identity is commensurate with the sensitivity of the records sought. For
example, more proof is required to access medical records than is
required to access parking records.
(4) Telephonic requests will not be honored.
(5) An individual cannot be denied access solely for refusal to
provide his or her Social Security Number (SSN) unless the SSN was
required for access by statute or regulation adopted prior to January 1,
1975.
(6) If an individual wishes to have his or her records released
directly to a third party or to be accompanied by a third party when
seeking access to his or her records, reasonable proof of authorization
must be obtained. The individual may be required to furnish a
[[Page 25]]
signed access authorization with a notarized signature or other proof of
authenticity (i.e. telephonic confirmation) before granting the third
party access.
(d) Individual access to medical records. (1) An individual must be
given access to his or her medical and psychological records unless a
judgment is made that access to such records could have an adverse
effect on the mental or physical health of the individual. This
determination normally should be made in consultation with a medical
doctor. Additional guidance is provided in DOD 5400.11-R, Department of
Defense Privacy Program. In this instance, the individual will be asked
to provide the name of a personal health care provider, and the records
will be provided to that health care provider, along with an explanation
of why access without medical supervision could be harmful to the
individual.
(2) Information that may be harmful to the record subject should not
be released to a designated individual unless the designee is qualified
to make psychiatric or medical determinations.
(3) DA activities may offer the services of a military physician,
other than the one who provided the treatment.
(4) Do not require the named health care provider to request the
records for the individual.
(5) The agency's decision to furnish the records to a medical
designee and not directly to the individual is not considered a denial
for reporting purposes under the Act and cannot be appealed.
(6) However, no matter what the special procedures are, DA has a
statutory obligation to ensure that access is provided the individual.
(7) Regardless of age, all DA military personnel and all married
persons are considered adults. The parents of these individuals do not
have access to their medical records without written consent of the
individual.
(8) DOD 6025.18-R, DOD Health Information Privacy Regulation, issued
pursuant to the Health Insurance Portability and Accountability Act
(HIPAA) of 1996, has placed additional procedural requirements on the
uses and disclosure of individually identifiable health information
beyond those found in the Privacy Act of 1974 and this part. In order to
be in compliance with HIPAA, the additional guidelines and procedures
will be reviewed before release of an individual's identifiable health
information.
(e) Personal notes. (1) The Privacy Act does not apply to personal
notes of individuals used as memory aids. These documents are not
Privacy Act records and are not subject to this part.
(2) The five conditions for documents to be considered personal
notes are as follows--
(i) Maintained and discarded solely at the discretion of the author;
(ii) Created only for the author's personal convenience and the
notes are restricted to that of memory aids;
(iii) Not the result of official direction or encouragement, whether
oral or written;
(iv) Not shown to others for any reason; and
(v) Not filed in agency files.
(3) Any disclosure from personal notes, either intentional or
through carelessness, removes the information from the category of
memory aids and the personal notes then become subject to provisions of
the Act.
(f) Denial or limitation of individual's right to access. (1) Even
if the information is filed and retrieved by an individual's name or
personal identifier, his or her right to access may be denied if--
(i) The records were compiled in reasonable anticipation of a civil
action or proceeding including any action where DA expects judicial or
administrative adjudicatory proceedings. The term ``civil action or
proceeding'' includes quasi-judicial, pre-trial judicial, and
administrative proceedings, as well as formal litigation;
(ii) The information is about a third party and does not pertain to
the requester. A third party's SSN and home address will be withheld.
However, information about the relationship between the individual and
the third party would normally be disclosed as it pertains to the
individual;
(iii) The records are in a system of records that has been properly
exempted by the Secretary of the Army from the access provisions of this
part and the information is exempt from release
[[Page 26]]
under a provision of the Freedom of Information Act (See appendix C of
this part for a list of applicable Privacy Act exemptions, exceptions,
and ``Blanket'' routine uses);
(iv) The records contain properly classified information that has
been exempted from the access provision of this part;
(v) The records are not described well enough to enable them to be
located with a reasonable amount of effort on the part of an employee
familiar with the file. Requesters should reasonably describe the
records they are requesting. They do not have to designate a Privacy Act
system of records notice identification number, but they should at least
identify a type of record or functional area. For requests that ask for
``all records about me,'' DA personnel should ask the requester for more
information to narrow the scope of his or her request; and
(vi) Access is sought by an individual who fails or refuses to
comply with Privacy Act established procedural requirements, included
refusing to pay fees.
(2) Requesters will not use government equipment, supplies,
stationery, postage, telephones, or official mail channels for making
Privacy Act requests. System managers will process such requests but
inform requesters that using government resources to make Privacy Act
requests is not authorized.
(3) When a request for information contained in a Privacy Act system
of records is denied in whole or in part, the Denial Authority or
designee shall inform the requester in writing and explain why the
request for access has been refused.
(4) A request for access, notification, or amendment of a record
shall be acknowledged in writing within 10 working days of receipt by
the proper system manager or record custodian.
(g) Relationship between the Privacy Act and the Freedom of
Information Act. (1) Not all requesters are knowledgeable of the
appropriate statutory authority to cite when requesting information. In
some instances, they may cite neither the PA nor the Freedom of
Information Act in their request. In some instances they may cite one
Act but not the other. The Freedom of Information Act and the PA works
together to ensure that requesters receive the greatest amount of
information possible.
(2) Do not deny the individual access to his or her records simply
because he or she failed to cite the appropriate statute or regulation.
(3) If the records are required to be released under the Freedom of
Information Act, the PA will never block disclosure to requester. If the
PA allows the DA activity to deny access to an individual, the Freedom
of Information Act must still be applied, and the information released
if required by the Freedom of Information Act.
(4) Unlike the Freedom of Information Act, the Privacy Act applies
only to U.S. citizens and aliens lawfully admitted for permanent
residence.
(5) Requesters who seek records about themselves contained in a
Privacy Act system of records (1st party requesters) and who cite or
imply only the Privacy Act, will have their request processed under the
provisions of both the PA and the Freedom of Information Act. If the
information requested is not contained in a Privacy Act system of
records or is not about the requester, the individual's request will be
processed under the provisions of the Freedom of Information Act only,
and the Freedom of Information Act processing requirements/time lines
will apply.
(6) Third party information. (i) Third party information contained
in a Privacy Act system of records that does not pertain to the
requester, such as SSN, home addresses, and other purely personal
information that is not about the requester, will be processed under the
provisions of Freedom of Information Act only. Third party information
that is not about the requester is not subject to the Privacy Act's
first party access provision.
(ii) Information about the relationship between the first party
requester and a third party is normally disclosed as pertaining to the
first party requester. Consult your servicing Staff Judge Advocate if
there is a question about the release of third party information to a
first party requester.
[[Page 27]]
(7) If an individual requests information about them contained in a
Privacy Act system of records, the individual may be denied the
information only if the information is exempt under both the PA and the
Freedom of Information Act. Both PA and Freedom of Information Act
exemptions will be cited in the denial letter and appeals will be
processed in accordance with both Acts.
(8) Each time a first party requester cites or implies the PA,
perform this analysis:
(i) Is the request from a United States living citizen or an alien
lawfully admitted for permanent residence?
(ii) Is the individual requesting an agency record?
(iii) Are the records within a PA system of records that are filed
and retrieved by an individual's name or other personal identifier? (If
the answer is ``yes'' to all of these questions, then the records should
be processed under the ``Privacy Act'') and
(iv) Does the information requested pertain exclusively to the
requester?
(A) If yes, no further consideration of Freedom of Information Act
exemptions required. Release all information unless a PA exemption
authorizes withholding.
(B) If no, process the information that is not about the requester
under the Freedom of Information Act and withhold only if a proper
Freedom of Information Act exemption applies.
(h) Functional requests. If an individual asks for his or her
records and does not cite or reasonably imply either the Privacy Act or
the Freedom of Information Act, and another prescribing directive or
regulation authorizes the release, the records should be released under
that other directive or regulation and not the PA or the FOIA. Examples
of functional requests are military members asking to see their Official
Military Personnel Records or civilian employees asking to see their
Official Personnel Folder.
(i) Procedures for denying or limiting an individual's right to
access or amendment and the role of the Denial Authority. (1) The only
officials authorized to deny a request for records or a request to amend
records in a PA system of records pertaining to the requesting
individual, are the appropriate Denial Authorities, their designees, or
the Secretary of the Army who will be acting through the General
Counsel.
(2) Denial Authorities are authorized to deny requests, either in
whole or in part, for notification, access and amendment of Privacy Act
records contained in their respective areas of responsibility.
(i) The Denial Authority may delegate all or part of their authority
to a division chief under his supervision within the Agency in the grade
of 0-5/GS-14 or higher. All delegations must be in writing.
(ii) The Denial Authority will send the names, office names, and
telephones numbers of their delegates to the DA Freedom of Information
and Privacy Office.
(iii) If a Denial Authority delegate denies access or amendment, the
delegate must clearly state that he or she is acting on behalf of the
Denial Authority, who must be identified by name and position in the
written response to the requester. Denial Authority designation will not
delay processing privacy requests/actions.
(iv) The official Denial Authorities are for records under their
authority (See appendix B of this part). The individuals designated as
Denial Authorities under this part are the same individuals designated
as Initial Denial Authorities under AR 25-55, the Department of the Army
Freedom of Information Act Program. However, delegation of Denial
Authority pursuant to this part does not automatically encompass
delegation of Initial Denial Authority under AR 25-55. Initial Denial
Authority must be expressly delegated pursuant to AR 25-55 for an
individual to take action on behalf of an Initial Denial Authority under
AR 25-55.
(3) The custodian of the record will acknowledge requests for access
made under the provisions of the Privacy Act within 10 working days of
receipt.
(4) Requests for information recommended for denial will be
forwarded to the appropriate Denial Authority, along with a copy of the
records and justification for withholding the record. At the same time,
notify the requester of the referral to the Denial
[[Page 28]]
Authority for action. All documents or portions thereof determined to be
releasable to the requester will be released to the requester before
forwarding the case to the Denial Authority.
(5) Within 30 working days, the Denial Authority will provide the
following notification to the requester in writing if the decision is to
deny the requester access to the information.
(6) Included in the notification will be:
(i) Denying Official's name, position title, and business address;
(ii) Date of the denial;
(iii) The specific reason for the denial, citing the appropriate
subsections of the Privacy Act, the Freedom of Information Act, AR 25-
55, The Department of the Army Freedom of Information Act Program and
this part; and
(iv) The individual's right to administratively appeal the denial
within 60 calendar days of the mailing date of the notice, through the
Denial Authority, to the Office of the General Counsel, Secretary of the
Army, 104 Army Pentagon, Washington, DC 20310-0104.
(7) The appeal must be in writing and the requester should provide a
copy of the denial letter and a statement of their reasons for seeking
review.
(8) For denials made by the DA when the record is maintained in a
Government-wide system of records, an individual's request for further
review must be addressed to each of the appropriate government Privacy
Act offices listed in the Privacy Act system of records notices. For a
current listing of Government-wide Privacy Act system of records notices
see the Defense Privacy Office's Web site http://www.defenselink.mil/
privacy or DA PAM 25-51.
(j) No records determinations. (1) Since a no record response may be
considered an ``adverse'' determination, the Denial Authority must make
the final determination that no records exist. The originating agency
shall notify the requester that an initial determination has been made
that there are no responsive records, however the final determination
will be made by the Denial Authority. A no records certificate must
accompany a no records determination that is forwarded to the Denial
Authority.
(2) The Denial Authority must provide the requester with appeal
rights.
(k) Referral of requests. (1) A request received by a DA activity
having no records responsive to a request shall be referred to another
DOD Component or DA activity, if the other Component or activity
confirms that they have the requested records, or verifies that they are
the proper custodian for that type of record. The requester will be
notified of the referral. In cases where the DA activity receiving the
request has reason to believe that the existence or nonexistence of the
record may in itself be classified, that activity will consult the
Component or activity having cognizance over the records in question
before referring the request. If the Component or activity that is
consulted determines that the existence or nonexistence of the records
is in itself classified, the requester shall be so notified by the DA
activity originally receiving the request that it can neither confirm
nor deny the existence of the record, and no referral shall take place.
(2) A DA activity shall refer a Privacy Act request for a classified
record that it holds to another DOD Component, DA activity, or agency
outside the Department of Defense, if the record originated in the other
DOD Component, DA activity, or outside agency, or if the classification
is derivative. The referring DA activity will provide the records and a
release recommendation with the referral action.
(3) Any DA activity receiving a request that has been misaddressed
will refer the request to the proper address and advise the requester.
(4) Within DA, referrals will be made directly to offices having
custody of the requested records (unless the Denial Authority is the
custodian of the requested records). If the office receiving the Privacy
Act request does not know where the requested records are located, the
office will contact the DA FOIA/P Office, to determine the appropriate
office for referral.
(5) The requester will be informed of the referral whenever records
or a portion of records are, after prior consultation, referred to
another activity for a release determination and direct
[[Page 29]]
response. Additionally, the DA activity referral letter will accomplish
the following--
(i) Fully describe the Privacy Act system of records from which the
document was retrieved; and
(ii) Indicate whether the referring activity claims any exemptions
in the Privacy Act system of records notice.
(6) Within the DA, an activity will refer a Privacy Act request for
records that it holds but was originated by another activity, to the
originating activity for direct response. An activity will not, in any
case, release or deny such records without prior consultation with the
originating activity. The requester will be notified of such referral.
(7) A DA activity may refer a Privacy Act request for records that
originated in an agency outside of DOD, or that is based on information
obtained from an agency outside the DOD, to that agency for direct
response to the requester, only if that agency is subject to the Privacy
Act. Otherwise, the DA activity must respond to the request.
(8) DA activities will not honor any Privacy Act requests for
investigative, intelligence, or any other type of records that are on
loan to the Department of Defense for a specific purpose, if the records
are restricted from further release in writing. Such requests will be
referred to the agency that provided the records.
(9) A DA activity will notify requesters seeking National Security
Council (NSC) or White House documents that they should write directly
to the NSC or White House for such documents. DA documents in which the
NSC or White House have a concurrent reviewing interest will be
forwarded to the Department of Defense, Office of Freedom of Information
and Security Review, which will coordinate with the NSC or White House,
and return the documents to the originating DA activity after NSC or
White House review. NSC or White House documents discovered in DA
activity files which are responsive to a Privacy Act request will be
forwarded to DOD for coordination and return with a release
determination.
(10) To the extent referrals are consistent with the policies
expressed above; referrals between offices of the same DA activity are
authorized.
(l) Reproduction fees. (1) Use fees only to recoup direct
reproduction costs associated with granting access.
(2) DA activities may use discretion in their decision to charge for
the first copy of records provided to an individual to whom the records
pertain. Thereafter, fees will be computed pursuant to the fee schedule
set forth in AR 25-55, including the fee waiver provisions.
(3) Checks or money orders for fees should be made payable to the
Treasurer of the United States and will be deposited in the
miscellaneous receipts of the treasury account maintained at the
activity's finance office.
(4) Reproduction costs shall only include the direct costs of
reproduction and shall not include costs of--
(i) Time or effort devoted to searching for or reviewing the records
by personnel;
(ii) Fees not associated with the actual cost of reproduction;
(iii) Producing a copy when it must be provided to the individual
without cost under another regulation, directive, or law;
(iv) Normal postage;
(v) Transportation of records or personnel; or
(vi) Producing a copy when the individual has requested only to
review the records and has not requested a copy, and the only means of
allowing review is to make a copy (e.g., the records are stored in a
computer and a copy must be printed to provide individual access, or the
activity does not wish to surrender temporarily the original records for
the individual to review).
(m) Privacy Act case files. (1) Whenever an individual submits a
Privacy Act request, a case file will be established. This Privacy Act
case file is a specific type of file that is governed by a specific
Privacy Act system of records notice. In no instance will the
individual's Privacy Act request and corresponding Army actions be
included in the individual's military personnel file or other military
filing systems, such as adverse action files or general legal files, and
in no instance will the Privacy Act case file be used
[[Page 30]]
to make an adverse determination about the individual.
(2) The case file will be comprised of the request for access/
amendment, grants, refusals, coordination action(s), and all related
papers.
Sec. 505.6 Amendment of records.
(a) Amended records. (1) Individuals are encouraged to periodically
review the information maintained about them in Privacy Act systems of
records and to familiarize themselves with the amendment procedures
established by this part.
(2) An individual may request to amend records that are retrieved by
his or her name or personal identifier from a system of records unless
the system has been exempted from the amendment provisions of the Act.
The standard for amendment is that the records are inaccurate as a
matter of fact rather than judgment, irrelevant, untimely, or
incomplete. The burden of proof is on the requester.
(3) The system manager or custodian must review Privacy Act records
for accuracy, relevance, timeliness, and completeness.
(4) Amendment procedures are not intended to permit individuals to
challenge events in records that have actually occurred. Amendment
procedures only allow individuals to amend those items that are
factually inaccurate and not matters of official judgment (e.g.,
performance ratings, promotion potential, and job performance
appraisals). In addition, an individual is not permitted to amend
records for events that have been the subject of judicial or quasi-
judicial actions/proceedings.
(b) Proper amendment requests. (1) Amendment requests, except for
routine administrative changes, will be in writing.
(2) When acting on behalf of a first party requester, an individual
must provide written documentation of the first party requester's
consent to allow the individual to view his or her records.
(3) Amendment is appropriate if it can be shown that--
(i) Circumstances leading up to the recorded event were found to be
inaccurately reflected in the document;
(ii) The record is not identical to the individual's copy; or
(iii) The document was not constructed in accordance with the
applicable recordkeeping requirements prescribed in AR 25-400-2, The
Army Records Information Management System (ARIMS).
(4) Under the amendment provisions, an individual may not challenge
the merits of an adverse determination.
(5) U.S. Army Criminal Investigation Command (USACIDC) reports of
investigations (PA system of records notice A0195-2a USACIDC, Source
Register; A0195-2b USACIDC, Criminal Investigation and Crime Laboratory
Files) have been exempted from the amendment provisions of the Privacy
Act. Requests to amend these reports will be considered under AR 195-2.
Actions taken by the Commander of U.S. Army Criminal Investigation
Command will constitute final action on behalf of the Secretary of the
Army under that regulation.
(6) Records placed in the National Archives are exempt from the
Privacy Act provision allowing individuals to request amendment of
records. Most provisions of the Privacy Act apply only to those systems
of records that are under the legal control of the originating agency;
for example, an agency's current operating files or records stored at a
Federal Records Center.
(7) Inspector General investigative files and action request/
complaint files (records in system notice A0021-1 SAIG, Inspector
General Records) have been exempted from the amendment provisions of the
Privacy Act. Requests to amend these reports will be considered under AR
20-1 by the Inspector General. Action by the Inspector General will
constitute final action on behalf of the Secretary of the Army under
that regulation.
(8) Other records that are exempt from the amendment provisions of
the Privacy Act are listed in the applicable PA system of records
notices.
(c) Amendment procedures. (1) Requests to amend records should be
addressed to the custodian or system manager of the records. The request
must reasonably describe the records to be amended and the changes
sought
[[Page 31]]
(e.g., deletion, addition, or amendment). The burden of proof is on the
requester. The system manager or records custodian will provide the
individual with a written acknowledgment of the request within 10
working days and will make a final response within 30 working days of
the date the request was received. The acknowledgment must clearly
identify the request and inform the individual that final action will be
forthcoming within 30 working days.
(2) Records for which amendment is sought must be reviewed by the
proper system manager or custodian for accuracy, relevance, timeliness,
and completeness.
(3) If the amendment is appropriate, the system manager or custodian
will physically amend the records accordingly. The requester will be
notified of such action.
(4) If the amendment is not warranted, the request and all relevant
documents, including reasons for not amending, will be forwarded to the
proper Denial Authority within 10 working days to ensure that the 30 day
time limit for the final response is met. In addition, the requester
will be notified of the referral.
(5) Based on the documentation provided, the Denial Authority will
either amend the records and notify the requester and the custodian of
the records of all actions taken, or deny the request. If the records
are amended, those who have received the records in the past will
receive notice of the amendment.
(6) If the Denial Authority determines that the amendment is not
warranted, he or she will provide the requester and the custodian of the
records reason(s) for not amending. In addition, the Denial Authority
will send the requester an explanation regarding his or her right to
seek further review by the DA Privacy Act Review Board, through the
Denial Authority, and the right to file a concise ``Statement of
Disagreement'' to append to the individual's records.
(i) On receipt of a request for further review by the Privacy Act
Review Board, the Denial Authority will append any additional records or
background information that substantiates the refusal or renders the
case complete;
(ii) Within 5 working days of receipt, forward the appeal to the DA
Privacy Act Review Board; and
(iii) Append the servicing Judge Advocate's legal review, including
a determination that the Privacy Act Review Board packet is complete.
(d) DA Privacy Act Review Board. (1) The DA Privacy Act Review Board
acts on behalf of the Secretary of the Army in deciding appeals of the
appropriate Denial Authority's refusal to amend records.
(2) The Board will process an appeal within 30 working days of its
receipt. The General Counsel may authorize an additional 30 days when
unusual circumstances and good cause so warrant.
(3) The Board membership consists of the following principal
members, comprised of three voting and two non-voting members, or their
delegates.
(4) Three voting members include--
(i) Administrative Assistant to the Secretary of the Army (AASA) who
acts as the Chairman of the Board;
(ii) The Judge Advocate General; and
(iii) The Chief, DA Freedom of Information and Privacy Division,
U.S. Army Records Management and Declassification Agency.
(5) In addition, two non-voting members include--
(i) The Chief Attorney, OAASA (or designee) who serves as the legal
advisor and will be present at all Board sessions to provide legal
advice as required; and
(ii) Recording Secretary provided by the Office of the
Administrative Assistant to the Secretary of the Army.
(e) DA Privacy Act Review Board meetings. (1) The meeting of the
Board requires the presence of all five members or their designated
representatives. Other non-voting members with subject matter expertise
may participate in a meeting of the Board, at the discretion of the
Chairman.
(2) Majority vote of the voting members is required to make a final
determination on a request before the Board.
(3) Board members, who have denial authority, may not vote on a
matter upon which they took Denial Authority action. However, an
individual who
[[Page 32]]
took Denial Authority action, or his or her representative, may serve as
a non-voting member when the Board considers matters in the Denial
Authority's area of functional specialization.
(4) The Board may seek additional information, including the
requester's official personnel file, if relevant and necessary to decide
the appeal.
(5) If the Board determines that an amendment is warranted (the
record is inaccurate as a matter of fact rather than judgment,
irrelevant, untimely, or incomplete) it will amend the record and notify
the requester, the Denial Authority, the custodian of the record, and
any prior recipients of the record, of the amendment.
(6) If the Board determines that amendment is unwarranted, they
will--
(i) Obtain the General Counsel's concurrence in writing;
(ii) Respond to the requester with the reasons for denial; and
(iii) Inform the requester of the right to file a ``Statement of
Disagreement'' with the Board's action and to seek judicial review of
the Army's refusal to amend. A ``Statement of Disagreement'' must be
received by the system manager within 120 days and it will be made an
integral part of the pertinent record. Anyone who may have access to,
use of, or need to disclose information from the record will be aware
that the record was disputed. The disclosing authority may include a
brief summary of the Board's reasons for not amending the disputed
record.
(7) It is inappropriate for the Privacy Act Review Board to consider
any record which is exempt from the amendment provision of the Privacy
Act.
Sec. 505.7 Disclosure of personal information to other agencies
and third parties.
(a) Disclosing records to third parties. (1) DA is prohibited from
disclosing a record from a Privacy Act system of records to any person
or agency without the prior written consent of the subject of the
record, except when--
(i) Pursuant to the twelve Privacy Act exceptions. The twelve
exceptions to the ``no disclosure without consent'' rule are those
exceptions which permit the release of personal information without the
individual's/subject's consent (See appendix C of this part).
(ii) The FOIA requires the release of the record. One of the twelve
exceptions to Privacy Act is the FOIA Exception. If the FOIA requires
the release of information, the information must be released. The
Privacy Act can not prevent release to a third party if the FOIA
requires release. However, information must not be discretionarily
released under the FOIA if the information is subject to the Privacy
Act's ``no disclosure without consent'' rule.
(iii) A routine use applies. Another major exception to the ``no
disclosure without consent'' rule is the routine use exception. The
Privacy Act allows federal agencies to publish routine use exceptions to
the Privacy Act. Some routine uses are Army specific, DOD specific, and
Governmentwide. Routine uses exceptions are listed in the Privacy Act
system of records notice(s) applicable to the Privacy Act records in
question. The Army and other agencies' system of records notices may be
accessed at the Defense Privacy Office's Web site http://
www.defenselink.mil/privacy.
(2) The approved twelve exceptions to the Privacy Act ``no
disclosure without consent'' rule are listed at appendix C of this part.
(b) Disclosing records to other DOD components and to federal
agencies outside the DOD. (1) The twelve Privacy Act exceptions referred
to in appendix C of this part are available to other DOD components and
to federal agencies outside the DOD as exceptions to the Privacy Act's
``no disclosure without consent'' rule, with the exception of the FOIA
exception. The FOIA is not an appropriate mechanism for providing
information to other DOD components and to federal agencies outside the
DOD.
(2) A widely used exception to requests for information from local
and state government agencies and federal agencies not within the DOD is
the routine use exception to the Privacy Act.
(3) The most widely used exception to requests for information from
other DOD components is the ``intra-agency
[[Page 33]]
need to know'' exception to the Privacy Act. Officers and employees of
the DOD who have an official need for the records in the performance of
their official duties are entitled to Privacy Act protected information.
Rank, position, or title alone does not authorize access to personal
information about others. An official need for the information must
exist before disclosure.
(4) For the purposes of disclosure and disclosure accounting, the
Department of Defense (DOD) is considered a single agency.
(c) Disclosures under AR 25-55, the Freedom of Information Act
(FOIA) Program. (1) Despite Privacy Act protections, all records must be
disclosed if the Freedom of Information Act (FOIA) requires their
release. The FOIA requires release unless the information is exempted by
one or more of the nine FOIA exemptions.
(2) Required release under the FOIA. The following are examples of
personal information that is generally not exempt from the FOIA;
therefore, it must be released to the public, unless covered by
paragraphs (d)(2) and (d)(3) of this section. The following list is not
all inclusive:
(i) Military Personnel--
(A) Rank, date of rank, active duty entry date, basic pay entry
date, and gross pay (including base pay, special pay, and all allowances
except Basic Allowance for Housing);
(B) Present and past duty assignments, future stateside assignments;
(C) Office/unit name, duties address and telephone number (DOD
policy may require withholding of this information in certain
circumstances);
(D) Source of commission, promotion sequence number, military awards
and decorations, and professional military education;
(E) Duty status, at any given time;
(F) Separation or retirement dates;
(G) Military occupational specialty (MOS);
(H) Active duty official attendance at technical, scientific or
professional meetings; and
(I) Biographies and photos of key personnel (DOD policy may require
withholding of this information in certain circumstances).
(ii) Federal civilian employees--
(A) Present and past position titles, occupational series, and
grade;
(B) Present and past annual salary rates (including performance
awards or bonuses, incentive awards, merit pay amount, Meritorious or
Distinguished Executive Ranks, and allowances and differentials);
(C) Present and past duty stations;
(D) Office or duty telephone number (DOD policy may require
withholding of this information in certain circumstances); and
(E) Position descriptions, identification of job elements, and
performance standards (but not actual performance appraisals), the
release of which would not interfere with law enforcement programs or
severely inhibit agency effectiveness. Performance elements and
standards (or work expectations) may also be withheld when they are so
intertwined with performance appraisals, the disclosure would reveal an
individual's performance appraisal.
(d) Personal information that requires protection. (1) The following
are examples of information that is generally NOT releasable without the
written consent of the subject. This list is not all inclusive--
(i) Marital status;
(ii) Dependents' names, sex and SSN numbers;
(iii) Civilian educational degrees and major areas of study (unless
the request for the information relates to the professional
qualifications for Federal employment);
(iv) School and year of graduation;
(v) Home of record;
(vi) Home address and phone;
(vii) Age and date of birth;
(viii) Overseas assignments (present or future);
(ix) Overseas office or unit mailing address and duty phone of
routinely deployable or sensitive units;
(x) Race/ethnic origin;
(xi) Educational level (unless the request for the information
relates to professional qualifications for federal employment);
(xii) Social Security Number (SSN); and
(xiii) The information that would otherwise be protected from
mandatory disclosure under a FOIA exemption.
[[Page 34]]
(2) The Office of the Secretary of Defense issued a policy
memorandum in 2001 that provided greater protection of DOD personnel in
the aftermath of 9/11 by requiring information that personally
identifies DOD personnel be more carefully scrutinized and limited. In
general, the Department of Defense has specifically advised that DOD
components are not to release lists of names, duty addresses, present or
past position titles, grades, salaries, and performance standards of DOD
military members and civilian employees. At the office director level or
above, the release of information will be limited to the name, official
title, organization, and telephone number, provided a determination is
made that disclosure does not raise security or privacy concerns. No
other information, including room numbers, will normally be released
about these officials. Consistent with current policy, information on
officials below the office director level may continue to be released if
their positions or duties require frequent interaction with the public.
(3) Disclosure of records pertaining to personnel of overseas,
sensitive, or routinely deployed units shall be prohibited to the extent
authorized by 10 U.S.C. 130b.
(e) Release of home addresses and home telephone numbers. (1) The
release of home addresses and home telephone numbers normally is
prohibited. This release is normally considered a clearly ``unwarranted
invasion'' of personal privacy and is exempt from mandatory release
under the FOIA. However, home addresses and home telephone numbers may
still be released if--
(i) The individual has indicated previously in writing that he or
she has no objection to the release;
(ii) The source of the information to be released is a public
document such as commercial telephone directory or other public listing;
(iii) The release is required by Federal statute (for example,
pursuant to federally funded state programs to locate parents who have
defaulted on child support payments) (See 42 U.S.C. 653); or
(iv) The releasing of information is pursuant to the routine use
exception or the ``intra-agency need to know'' exception to the Privacy
Act.
(2) A request for a home address or telephone number may be referred
to the last known address of the individual for a direct reply by the
individual to the requester. In such cases, the requester shall be
notified of the referral.
(3) Do not sell or rent lists of individual names and addresses
unless such action is specifically authorized by the appropriate
authority.
(f) Emergency recall rosters. (1) The release of emergency recall
rosters normally is prohibited. Their release is normally considered a
clearly ``unwarranted invasion'' of personal privacy and is exempt from
mandatory release under the FOIA. Emergency recall rosters should only
be shared with those who have an ``official need to know'' the
information, and they should be marked ``For Official Use Only'' (See AR
25-55).
(2) Do not include a person's SSN on an emergency recall roster or
their spouse's name.
(3) Commanders and supervisors should give consideration to those
individuals with unlisted phone numbers. Commanders and supervisors
should consider limiting access to an unlisted number within the unit.
(g) Social rosters. (1) Before including personal information such
as a spouse's name, home addresses, home phone numbers, and similar
information on social rosters or social directories, which will be
shared with individuals, always ask for the individual's written
consent. Without their written consent, do not include this information.
(2) Collection of this information will require a Privacy Act
Statement which clearly tells the individual what information is being
solicited, the purpose, to whom the disclosure of the information is
made, and whether collection of the information is voluntary or
mandatory.
(h) Disclosure of personal information on group orders. (1) Personal
information will not be posted on group orders so that everyone on the
orders can view it. Such a disclosure of personal information violates
the Privacy Act and this part.
[[Page 35]]
(2) The following are some examples of personal information that
should not be contained in group orders. The following list is not all-
inclusive--
(i) Complete SSN;
(ii) Home addresses and phone numbers; or
(iii) Date of birth.
(i) Disclosures for established routine uses. (1) Records may be
disclosed outside the DOD without the consent of the individual to whom
they pertain for an established routine use.
(2) A routine use shall--
(i) Be compatible with and related to the purpose for which the
record was compiled;
(ii) Identify the persons or organizations to which the records may
be released; and
(iii) Have been published previously in the Federal Register.
(3) Establish a routine use for each user of the information outside
the Department of Defense who needs official access to the records.
(4) Routine uses may be established, discontinued, or amended
without the consent of the individuals involved. However, new or changed
routine uses must be published in the Federal Register at least 30 days
before actually disclosing any records.
(5) In addition to the routine uses listed in the applicable systems
of records notices, ``Blanket Routine Uses'' for all DOD maintained
systems of records have been established. These ``Blanket Routine Uses''
are applicable to every record system maintained within the DOD unless
specifically stated otherwise within a particular record system. The
``Blanket Routine Uses'' are listed at appendix C of this part.
(j) Disclosure accounting. (1) System managers must keep an accurate
record of all disclosures made from DA Privacy Act system of records,
including those made with the consent of the individual, except when
records are--
(i) Disclosed to DOD officials who have a ``need to know'' the
information to perform official government duties; or
(ii) Required to be disclosed under the Freedom of Information Act.
(2) The purpose for the accounting of disclosure is to--
(i) Enable an individual to ascertain those persons or agencies that
have received information about them;
(ii) Enable the DA to notify past recipients of subsequent
amendments or ``Statements of Dispute'' concerning the record; and
(iii) Provide a record of DA compliance with the Privacy Act of
1974, if necessary.
(3) Since the characteristics of records maintained within DA vary
widely, no uniform method for keeping the disclosure accounting is
prescribed.
(4) Essential elements to include in each disclosure accounting
report are--
(i) The name, position title, and address of the person making the
disclosure;
(ii) Description of the record disclosed;
(iii) The date, method, and purpose of the disclosure; and
(iv) The name, position title, and address of the person or agency
to which the disclosure was made.
(5) The record subject has the right of access to the disclosure
accounting except when--
(i) The disclosure was made for law enforcement purposes under 5
U.S.C. 552a(b)(7); or
(ii) The disclosure was made from a system of records for which an
exemption from 5 U.S.C. 552a(c)(3) has been claimed.
(6) There are no approved filing procedures for the disclosure of
accounting records; however, system managers must be able to retrieve
upon request. With this said, keep disclosure accountings for 5 years
after the disclosure, or for the life of the record, whichever is
longer.
(7) When an individual requests such an accounting, the system
manager or designee will respond within 20 working days.
Sec. 505.8 Training requirements.
(a) Training. (1) The Privacy Act requires all heads of Army Staff
agencies, field operating agencies, direct reporting units, Major
Commands, subordinate commands, and installations to establish rules of
conduct for all personnel involved in the design, development,
operation, and maintenance of any Privacy Act system of records and
[[Page 36]]
to train the appropriate personnel with respect to the privacy rules
including the penalties for non-compliance (See 5 U.S.C. 552a(e)(9)).
(2) To meet the training requirements, three general levels of
training must be established. They are--
(i) Orientation. Training that provides basic understanding of this
part as it applies to the individual's job performance. This training
will be provided to personnel, as appropriate, and should be a
prerequisite to all other levels of training;
(ii) Specialized training. Training that provides information as to
the application of specific provisions of this part to specialized areas
of job performance. Personnel of particular concern include, but are not
limited to, personnel specialists, finance officers, DOD personnel who
may be expected to deal with the news media or the public, special
investigators, paperwork managers, individuals working with medical and
security records, records managers, computer systems development
personnel, computer systems operations personnel, statisticians dealing
with personal data and program evaluations, contractors and anyone
responsible for implementing or carrying out functions under this part.
Specialized training should be provided on a periodic basis; and
(iii) Managerial training. Training designed to identify for
responsible managers (such as senior system managers, Denial
Authorities, and functional managers described in this section) issues
that they should consider when making management decisions affected by
the Privacy Act Program.
(b) Training tools. Helpful resources include--
(1) Privacy Act training slides for Major Commands and Privacy Act
Officers: Contact the DA FOIA/P Office, or slides can be accessed at the
Web site https://www.rmda.belvoir.army.mil/rmdaxml/rmda/FPHomePage.asp.
(2) The ``DOJ Freedom of Information Act Guide and Privacy Act
Overview'': The U.S. Department of Justice, Executive Office for United
States Attorneys, Office of Legal Education, 600 E. Street, NW., Room
7600, Washington, DC 20530, or training programs can be accessed at the
Web site www.usdoj.gov/usao/eousa/ole.html.
Sec. 505.9 Reporting requirements.
The Department of the Army will submit reports, consistent with the
requirements of DOD 5400.11-R, OMB Circular A-130, and as otherwise
directed by the Defense Privacy Office. Contact the DA FOIA/P Office for
further guidance regarding reporting requirements.
Sec. 505.10 Use and establishment of exemptions.
(a) Three types of exemptions. (1) There are three types of
exemptions applicable to an individual's right to access permitted by
the Privacy Act. They are the Special, General, and Specific exemptions.
(2) Special exemption (d)(5)--Relieves systems of records from the
access provision of the Privacy Act only. This exemption applies to
information compiled in reasonable anticipation of a civil action or
proceeding.
(3) General exemption (j)(2)--Relieves systems of records from most
requirements of the Act. Only Army activities actually engaged in the
enforcement of criminal laws as their primary function may claim this
exemption.
(4) Specific exemptions (k)(1)-(k)(7)-Relieves systems of records
from only a few provisions of the Act.
(5) To find out if an exemption is available for a particular
record, refer to the applicable system of records notices. System of
records notices will state which exemptions apply to a particular type
of record. System of records notices that are applicable to the Army are
contained in DA Pam 25-51 (available at the Army Publishing Directorate
Web site http://www.usapa.army.mil/), the Defense Privacy Office's Web
site http://www.defenselink.mil/privacy/), or in this section). Some of
the system of records notices apply only to the Army and the DOD and
some notices are applicable government-wide.
(6) Descriptions of current exemptions are listed in detail at
appendix C of this part.
(b) Exemption procedures. (1) For the General and Specific
exemptions to be applicable to the Army, the Secretary
[[Page 37]]
of the Army must promulgate exemption rules to implement them. This
requirement is not applicable to the one Special exemption which is
self-executing. Once an exemption is made applicable to the Army through
the exemption rules, it will be listed in the applicable system of
records notices to give notice of which specific types of records the
exemption applies to. When a system manager seeks to have an exemption
applied to a certain Privacy Act system of records that is not currently
provided for by an existing system of records notice, the following
information will be furnished to the DA FOIA/P Office--
(i) Applicable system of records notice;
(ii) Exemption sought; and
(iii) Justification.
(2) After appropriate staffing and approval by the Secretary of the
Army and the Defense Privacy Office, it will be published in the Federal
Register as a proposed rule, followed by a final rule 60 days later. No
exemption may be invoked until these steps have been completed.
Sec. 505.11 Federal Register publishing requirements.
(a) The Federal Register. There are three types of documents
relating to the Privacy Act Program that must be published in the
Federal Register. They are the DA Privacy Program policy and procedures
(AR 340-21), the DA exemption rules, and Privacy Act system of records
notices.
(b) Rulemaking procedures. (1) DA Privacy Program procedures and
exemption rules are subject to the formal rulemaking process.
(2) Privacy Act system of records notices are not subject to formal
rulemaking and are published in the Federal Register as Notices, not
Rules.
(3) The Privacy Program procedures and exemption rules are
incorporated into the Code of Federal Regulations (CFR). Privacy Act
system of records notices are not published in the CFR.
Sec. 505.12 Privacy Act enforcement actions.
(a) Judicial sanctions. The Act has both civil remedies and criminal
penalties for violations of its provisions.
(1) Civil remedies. The DA is subject to civil remedies for
violations of the Privacy Act. In addition to specific remedial actions,
5 U.S.C. 552a(g) may provide for the payment of damages, court costs,
and attorney's fees.
(2) Criminal penalties. A DA official or employee may be found
guilty of a misdemeanor and fined not more than $5,000 for willfully--
(i) Disclosing individually identifiable personal information to one
not entitled to the information;
(ii) Requesting or obtaining information from another's record under
false pretenses; or
(iii) Maintaining a system of records without first meeting the
public notice requirements of the Act.
(b) Litigation Status Sheet. (1) When a complaint citing the Privacy
Act is filed in a U.S. District Court against the Department of the
Army, an Army Component, a DA Official, or any Army employee, the
responsible system manager will promptly notify the Army Litigation
Division, U.S. Army Legal Services Agency (USALSA), 9275 Gunston Road,
Fort Belvoir, VA 22060.
(2) The Litigation Status Sheet at appendix E of this part provides
a standard format for this notification. At a minimum, the initial
notification will have items (a) through (f) provided.
(3) A revised Litigation Status Sheet must be provided at each stage
of the litigation.
(4) When a court renders a formal opinion or judgment, copies must
be provided to the Defense Privacy Office by the Army Litigation
Division.
(c) Administrative remedies--Privacy Act complaints. (1) The
installation level Privacy Act Officer is responsible for processing
Privacy Act complaints or allegations of Privacy Act violations.
Guidance should be sought from the local Staff Judge Advocate and
coordination made with the system manager to assist in the resolution of
Privacy Act complaints. The local Privacy Act officer is responsible
for--
(i) Reviewing allegations of Privacy Act violations and the evidence
provided by the complainants;
(ii) Making an initial assessment as to the validity of the
complaint, and taking appropriate corrective action;
[[Page 38]]
(iii) Coordinating with the local Staff Judge Advocate to determine
whether a more formal investigation such as a commander's inquiry or an
AR 15-6 investigation is appropriate; and
(iv) Ensuring the decision at the local level from either the
Privacy Act Officer or other individual who directed a more formal
investigation is provided to the complainant in writing.
(2) The decision at the local level may be appealed to the next
higher command level Privacy Act Officer.
(3) A legal review from the next higher command level Privacy Act
Officer's servicing Staff Judge Advocate is required prior to action on
the appeal.
[71 FR 46052, Aug. 10, 2006, as amended at 78 FR 18473, Mar. 27, 2013]
Sec. 505.13 Computer Matching Agreement Program.
(a) General provisions. (1) Pursuant to the Privacy Act and this
part, DA records may be subject to computer matching, i.e., the computer
comparison of automated systems of records.
(2) There are two specific kinds of Matching Programs covered by the
Privacy Act--
(i) Matches using records from Federal personnel or payroll systems
of records; and
(ii) Matches involving Federal benefit programs to accomplish one or
more of the following purposes--
(A) To determine eligibility for a Federal benefit;
(B) To comply with benefit program requirements; and
(C) To effect recovery of improper payments or delinquent debts from
current or former beneficiaries.
(3) The comparison of records must be computerized. Manual
comparisons are not covered.
(4) Any activity that expects to participate in a Computer Matching
Program must contact the DA FOIA/P Office immediately.
(5) In all cases, Computer Matching Agreements are processed by the
Defense Privacy Office and approved by the Defense Data Integrity Board.
Agreements will be conducted in accordance with the requirements of 5
U.S.C. 552a, and OMB Circular A-130.
(b) Other matching. Several types of computer matching are exempt
from the restrictions of the Act such as matches used for statistics,
pilot programs, law enforcement, tax administration, routine
administration, background checks, and foreign counterintelligence. The
DA FOIA/P Office should be consulted if there is a question as to
whether the Act governs a specific type of computer matching.
Sec. 505.14 Recordkeeping requirements under the Privacy Act.
(a) AR 25-400-2, The Army Records Information Management System
(ARIMS). To maintain privacy records are required by the Army Records
Information Management System (ARIMS) to provide adequate and proper
documentation of the conduct of Army business so that the rights and
interests of individuals and the Federal Government are protected.
(b) A full description of the records prescribed by this part and
their disposition/retention requirements are found on the ARIMS Web site
at https://www.arims.army.mil.
Sec. Appendix A to Part 505--References
(a) The Privacy Act of 1974 (5 U.S.C. 552a, as amended).
(b) OMB Circular No. A-130, Management of Federal Information
Resources.
(c) AR 25-55, The Department of the Army Freedom of Information
Program.
(d) DA PAM 25-51, The Army Privacy Program--System of Records
Notices and Exemption Rules.
(e) DOD Directive 5400.11, Department of Defense Privacy Program.
(f) DOD 5400.11-R, Department of Defense Privacy Program.
(g) AR 25-2, Information Assurance
(h) AR 25-400-2, The Army Records Information Management System
(ARIMS).
(i) AR 27-10, Military Justice.
(j) AR 40-66, Medical Record Administration and Health Care
Documentation.
(k) AR 60-20 and AFR 147-14, Army and Air Force Exchange Service
Operating Policies.
(l) AR 190-45, Law Enforcement Reporting.
(m) AR 195-2, Criminal Investigation Activities.
(n) AR 380-5, Department of Army Information Security Program.
(o) DOD Directive 5400-7, DOD Freedom of Information Act (FOIA)
Program.
(q) DOD 5400.7-R, DOD Freedom of Information Program.
(r) DOD 6025.18-R, DOD Health Information Privacy Regulation
(HIPAA).
[[Page 39]]
(s) U.S. Department of Justice, Freedom of Information Act Guide and
Privacy Act Overview.
(t) Office of Secretary of Defense memorandum, dated July 15, 2005,
subject: Notifying Individuals when Personal Information is Lost,
Stolen, or Compromised located at http://www.army.mil/ciog6/referencs/
policy/dos/OSDprivateinfo.pdf.
Sec. Appendix B to Part 505--Denial Authorities for Records Under Their
Authority (Formerly Access and Amendment Refusal Authorities)
(a) The Administrative Assistant to the Secretary of the Army is
authorized to act for the Secretary of the Army on requests for all
records maintained by the Office of the Secretary of the Army and its
serviced activities, as well as requests requiring the personal
attention of the Secretary of the Army. This also includes civilian
Equal Employment Opportunity (EEO) actions. (See DCS, G-1 for Military
Equal Opportunity (EO) actions.) The Administrative Assistant to the
Secretary of the Army has delegated this authority to the Chief
Attorney, OAASA (See DCS, G1 for Military Equal Opportunity (EO)
actions).
(b) The Assistant Secretary of the Army (Financial Management and
Comptroller) is authorized to act on requests for finance and accounting
records. Requests for CONUS finance and accounting records should be
referred to the Defense Finance and Accounting Service (DFAS). The Chief
Attorney, OAASA, acts on requests for non-finance and accounting records
of the Assistant Secretary of the Army (Financial Management and
Comptroller).
(c) The Assistant Secretary of the Army (Acquisition, Logistics, &
Technology) is authorized to act on requests for procurement records
other than those under the purview of the Chief of Engineers and the
Commander, U.S. Army Materiel Command. The Chief Attorney, OAASA, acts
on requests for non-procurement records of the Assistant Secretary of
the Army (Acquisition, Logistics and Technology).
(d) The Deputy Assistant Secretary of the Army (Civilian Personnel
Policy)/Director of Civilian Personnel, Office of the Assistant
Secretary of the Army (Manpower and Reserve Affairs) is authorized to
act on requests for civilian personnel records, personnel administration
and other civilian personnel matters, except for EEO (civilian) matters
which will be acted on by the Administrative Assistant to the Secretary
of the Army. The Deputy Assistant Secretary of the Army (Civilian
Personnel Policy)/Director of Civilian Personnel has delegated this
authority to the Chief, Policy and Program Development Division (Note:
Requests from former civilian employees to amend a record in an Office
of Personnel Management system of records, such as the Official
Personnel Folder, should be sent to the Office of Personnel Management,
Assistant Director for Workforce Information, Compliance, and
Investigations Group: 1900 E. Street, NW., Washington, DC 20415-0001).
(e) The Chief Information Officer G-6 is authorized to act on
requests for records pertaining to Army Information Technology, command,
control communications and computer systems and the Information
Resources Management Program (automation, telecommunications, visual
information, records management, publications and printing).
(f) The Inspector General is authorized to act on requests for all
Inspector General Records.
(g) The Auditor General is authorized to act on requests for records
relating to audits done by the U.S. Army Audit Agency under AR 10-2.
This includes requests for related records developed by the Audit
Agency.
(h) The Director of the Army Staff is authorized to act on requests
for all records of the Chief of Staff and its Field Operating Agencies.
The Director of the Army Staff has delegated this authority to the Chief
Attorney and Legal Services Directorate, U.S. Army Resources & Programs
Agency (See The Judge Advocate General for the General Officer
Management Office actions). The Chief Attorney and Legal Services
Director, U.S. Army Resources & Programs Agency acts on requests for
records of the Chief of Staff and its Field Operating Agencies (See The
Judge Advocate General for the General Officer Management Office
actions).
(i) The Deputy Chief of Staff, G-3/5/7 is authorized to act on
requests for records relating to International Affairs policy, planning,
integration and assessments, strategy formulation, force development,
individual and unit training policy, strategic and tactical command and
control systems, nuclear and chemical matters, use of DA forces.
(j) The Deputy Chief of Staff, G-8 is authorized to act on requests
for records relating to programming, material integration and externally
directed reviews.
(k) The Deputy Chief of Staff, G-1 is authorized to act on the
following records: Personnel board records, Equal Opportunity (military)
and sexual harassment, health promotions, physical fitness and well-
being, command and leadership policy records, HIV and suicide policy,
substance abuse programs except for individual treatment records which
are the responsibility of the Surgeon General, retiree benefits,
services, and programs (excluding individual personnel records of
retired military personnel, which are the responsibility of the U.S.
Army Human Resources Command-St. Louis), DA dealings with Veterans
Affairs, U.S. Soldier's
[[Page 40]]
and Airmen's Home; all retention, promotion, and separation records; all
military education records including records related to the removal or
suspension from a military school or class; Junior Reserve Officer
Training Corps (JROTC) and Senior Reserve Officer Training Corps (SROTC)
records; SROTC instructor records; U.S. Military Academy Cadet Records;
recruiting and MOS policy issues, personnel travel and transportation
entitlements, military strength and statistics, The Army Librarian,
demographics, and Manprint.
(l) The Deputy Chief of Staff, G-4 is authorized to act on requests
for records relating to DA logistical requirements and determinations,
policy concerning materiel maintenance and use, equipment standards, and
logistical readiness.
(m) The Chief of Engineers is authorized to act on requests for
records involving civil works, military construction, engineer
procurement, and ecology; and the records of the U.S. Army Engineer
divisions, districts, laboratories, and field operating agencies.
(n) The Surgeon General/Commander, U.S. Army Medical Command, is
authorized to act on requests for medical research and development
records, and the medical records of active duty military personnel,
dependents, and persons given physical examination or treatment at DA
medical facilities, to include alcohol and drug treatment/test records.
(o) The Chief of Chaplains is authorized to act on requests for
records involving ecclesiastical relationships, rites performed by DA
chaplains, and nonprivileged communications relating to clergy and
active duty chaplains' military personnel files.
(p) The Judge Advocate General is authorized to act on requests for
records relating to claims, courts-martial, legal services,
administrative
(q) The Chief, National Guard Bureau, is authorized to act on
requests for all personnel and medical records of retired, separated,
discharged, deceased, and active Army National Guard military personnel,
including technician personnel, unless such records clearly fall within
another Denial Authority's responsibility. This authority includes, but
is not limited to, National Guard organization and training files;
plans, operations, and readiness files, policy files, historical files,
files relating to National Guard military support, drug interdiction,
and civil disturbances; construction, civil works, and ecology records
dealing with armories, facilities within the States, ranges, etc.; Equal
Opportunity investigative records; aviation program records and
financial records dealing with personnel, operation and maintenance, and
equipment budgets.
(r) The Chief, Army Reserve and Commander, U.S. Army Reserve Command
are authorized to act on requests for all personnel and medical records
of retired, separated, discharged, deceased, and reserve component
military personnel, and all U.S. Army Reserve (USAR) records, unless
such records clearly fall within another Denial Authority's
responsibility. Records under the responsibility of the Chief, Army
Reserve and the Commander, U.S. Army Reserve Command include records
relating to USAR plans, policies, and operations; changes in the
organizational status of USAR units; mobilization and demobilization
policies, active duty tours, and the Individual Mobilization
Augmentation program; and all other Office of the Chief, Army Reserve
(OCAR) records and Headquarters, U.S. Army Reserve Command records.
(s) The Commander, United States Army Materiel Command (AMC) is
authorized to act on requests for the records of AMC headquarters and to
subordinate commands, units, and activities that relate to procurement,
logistics, research and development, and supply and maintenance
operations.
(t) The Provost Marshal General is authorized to act on all requests
for provost marshal activities and law enforcement functions for the
Army, all matters relating to police intelligence, physical security,
criminal investigations, corrections and internment (to include
confinement and correctional programs for U.S. prisoners, criminal
investigations, provost marshal activities, and military police support.
The Provost Marshal General is responsible for the Office of Security,
Force Protection, and Law Enforcement Division and is the functional
proponent for AR 190-series (Military Police) and 195-series (Criminal
Investigation), AR 630-10 Absent Without Leave, Desertion, and
Administration of Personnel Involved in Civilian Court Proceedings, and
AR 633-30, Military Sentences to Confinement.
(u) The Commander, U.S. Army Criminal Investigation Command, is
authorized to act on requests for criminal investigative records of
USACIDC headquarters, and its subordinate activities, and military
police reports. This includes criminal investigation records,
investigation-in-progress records, and all military police records and
reports that result in criminal investigation reports. This authority
has been delegated to the Director, U.S. Army Crime Records Center.
(v) The Commander, U.S. Army Human Resources Command, is authorized
to act on requests for military personnel files relating to active duty
personnel including, but not limited to military personnel matters,
military education records including records related to the removal or
suspension from a military school or class; personnel locator, physical
disability determinations, and other military personnel administration
[[Page 41]]
records; records relating to military casualty and memorialization
activities; heraldic activities, voting, records relating to
identification cards, naturalization and citizenship, commercial
solicitation, Military Postal Service Agency and Army postal and
unofficial mail service. The Commander, U.S. Army Human Resources
Command, is also authorized to act on requests concerning all personnel
and medical records of retired, separated, discharged, deceased, and
reserve component military personnel, unless such records clearly fall
within another Denial Authority's authority.
(w) The Commander, U.S. Army Resources Command-St. Louis has been
delegated authority to act on behalf of the U.S. Army Human Resources
Commander for requests concerning all personnel and medical records of
retired, separated, discharged, deceased, and reserve component military
personnel, unless such records clearly fall within another Denial
Authority's authority. The authority does not include records relating
to USAR plans, policies, and operations; changes in the organizational
status of USAR units, mobilization and demobilization policies; active
duty tours, and the individual mobilization augmentation program.
(x) The Assistant Chief of Staff for Installation Management is
authorized to act on requests for records relating to planning,
programming, execution and operation of Army installations. This
includes base realignment and closure activities, environmental
activities other than litigation, facilities and housing activities, and
installation management support activities.
(y) The Commander, U.S. Army Intelligence and Security Command, is
authorized to act on requests for intelligence and security records,
foreign scientific and technological records, intelligence training,
intelligence threat assessments, and foreign liaison information,
mapping and geodesy information, ground surveillance records,
intelligence threat assessment, and missile intelligence data relating
to tactical land warfare systems.
(z) The Commander, U.S. Army Combat Readiness Center (formerly U.S.
Army Safety Center), is authorized to act on requests for Army safety
records.
(aa) The Commander, U.S. Army Test and Evaluation Command (ATEC), is
authorized to act on requests for the records of ATEC headquarters, its
subordinate commands, units, and activities that relate to test and
evaluation operations.
(bb) The General Counsel, Army and Air Force Exchange Service, is
authorized to act on requests for Army and Air Force Exchange Service
records, under AR 60-20/AFR 147-14.
(cc) The Commandant, United States Disciplinary Barracks (USDB) is
authorized to act on records pertaining to USDB functional area
responsibilities relating to the administration and confinement of
individual military prisoners at the USDB. This includes, but is not
limited to, all records pertaining to the treatment of military
prisoners; investigation of prisoner misconduct; management, operation,
and administration of the USDB confinement facility; and related
programs which fall directly within the scope of the Commandant's
functional area of command and control.
(dd) The Commander, U.S. Army Community and Family Support Center
(USACFSC) is authorized to act on requests for records pertaining to
morale, welfare, recreation, and entertainment programs; community and
family action programs; child development centers; non-appropriated
funds issues, and private organizations on Army installations.
(ee) The Commander, Military Surface Deployment and Distribution
Command (formerly Military Traffic Management Command) is authorized to
act on requests for records pertaining to military and commercial
transportation and traffic management records.
(ff) The Director, Installation Management Agency (IMA) is
authorized to act on requests for all IMA records.
(gg) Special Denial Authority's authority for time-event related
records may be designated on a case-by-case basis. These will be
published in the Federal Register. You may contact the Department of the
Army, Freedom of Information and Privacy Office to obtain current
information on special delegations.
Sec. Appendix C to Part 505--Privacy Act Statement Format
(a) Authority: The specific federal statute or Executive Order that
authorizes collection of the requested information.
(b) Principal Purpose(s): The principal purpose or purposes for
which the information is to be used.
(c) Routine Uses(s): Disclosure of the information outside DOD.
(d) Disclosure: Whether providing the information is voluntary or
mandatory and the effects on the individual if he or she chooses not to
provide the requested information.
(1) Example of a Privacy Act Statement
(i) Authority: Emergency Supplement Act of 2000; Public Law 106-246;
5 U.S.C. 3013, Secretary of the Army; 10 U.S.C. 5013, Secretary of the
Navy; 10 U.S.C. 8013, Secretary of the Air Force; Department of Defense
Directive 8500.aa, Information Assurance (IA); and E.O. 9397 (SSN).
(ii) Principal Purpose(s): To control access to DOD information,
information based systems and facilities by authenticating the identity
of a person using a measurable physical characteristic(s). This computer
[[Page 42]]
system uses software programs to create biometrics templates and summary
statistics, which are used for purposes such as assessing system
performance or identifying problem areas.
(iii) Routine Use(s): None. The DoD ``Blanket Routine Uses'' set
forth at the beginning of the Army's Compilations of System of Records
Notices applies to this system.
(iv) Disclosure: Voluntary; however, failure to provide the
requested information may result in denial of access to DOD information
based systems and/or DOD facilities.
(2) [Reserved]
Sec. Appendix D to Part 505--Exemptions, Exceptions, and DoD Blanket
Routine Uses
(a) Special exemption. 5 U.S.C. 552a(d)(5)--Denies individual access
to any information compiled in reasonable anticipation of a civil action
or proceeding.
(b) General and specific exemptions. The Secretary of the Army may
exempt Army systems of records from certain requirements of the Privacy
Act of 1974. The two kinds of exemptions that require Secretary of the
Army enactment are general and specific exemptions. The general
exemption authorizes the exemption of a system of records from most
requirements of the Act; the specific exemptions authorize the exemption
of a system of record from only a few.
(c) General exemptions. Only Army activities actually engaged in the
enforcement of criminal laws as their principal function may claim the
general exemption. See 5 U.S.C. 552a(j)(2). To qualify for this
exemption, a system must consist of:
(1) Information compiled to identify individual criminal offenders
and alleged offenders, which consists only of identifying data and
arrest records; type and disposition of charges; sentencing,
confinement, and release records; and parole and probation status;
(2) Information compiled for the purpose of criminal investigation
including reports of informants and investigators, and associated with
an identifiable individual; or
(3) Reports identifiable to an individual, compiled at any stage of
the process of enforcement of the criminal laws, from arrest or
indictment through release from supervision.
(d) Specific exemptions. The Secretary of the Army has exempted all
properly classified information and systems of records that have the
following kinds of information listed in this section, from certain
parts of the Privacy Act. The Privacy Act exemption reference appears in
parentheses after each category.
(1) Classified information in every Army system of records. Before
denying any individual access to classified information, the Access and
Amendment Refusal Authority must make sure that it was properly
classified under the standards of Executive Orders 11652, 12065, or
12958 and that it must remain so in the interest of national defense of
foreign policy (5 U.S.C. 552a(k)(1)).
(2) Investigatory material compiled for law enforcement purposes
(other than material within the scope of subsection 5 U.S.C. 552a(j)(2),
may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if this
information has been used to deny someone a right, privilege or benefit
to which the individual is entitled by Federal law, or for which an
individual would otherwise be eligible as a result of the maintenance of
the information, it must be released, unless doing so would reveal the
identity of a confidential source. Note: When claimed, this exemption
allows limited protection of investigative reports maintained in a
system of records used in personnel or administrative actions.
(3) Records maintained in connection with providing protective
services to the President of the United States or other individuals
protected pursuant to Title 18 U.S.C., section 3056 (5 U.S.C.
552a(k)(3)).
(4) Records maintained solely for statistical research or program
evaluation purposes and which are not used to make decisions on the
rights, benefits, or entitlements of individuals, except for census
records which may be disclosed under Title 13 U.S.C., section 8 (5
U.S.C. 552a(k)(4)).
(5) Investigatory material compiled solely to determine suitability,
eligibility, or qualifications for Federal service, Federal contracts,
or access to classified information. This information may be withheld
only to the extent that disclosure would reveal the identity of a
confidential source (5 U.S.C. 552a(k)(5)).
(6) Testing or examination material used solely to determine if a
person is qualified for appointment or promotion in the Federal service.
This information may be withheld only if disclosure would compromise the
objectivity or fairness of the examination process (5 U.S.C.
552a(k)(6)).
(7) Evaluation material used solely to determine promotion potential
in the Armed Forces. Information may be withheld, but only to the extent
that disclosure would reveal the identity of a confidential source (5
U.S.C. 552a(k)(7)).
(e) Procedures. When a system manager seeks an exemption for a
system of records, the following information will be furnished to the
Chief Information Officer, 107 Army Pentagon, Room 3E608, Washington, DC
20310-0107; applicable system notice, exemptions sought, and
justification. After appropriate staffing and approval by the Secretary
of the Army, a proposed rule will be published in the Federal Register,
followed by a final rule 60 days later. No exemption may
[[Page 43]]
be invoked until these steps have been completed.
(f) The Army system of records notices for a particular type of
record will state whether the Secretary of the Army has authorized a
particular general and specific exemption to a certain type of record.
The Army system of records notices are published on the Defense Privacy
and Civil Liberties Division's Web site: http://dpcld.defense.gov/
Privacy/DODComponentArticleList/tabid/6799/Category/278/department-of-
the-army.aspx
(g) Exempt Army records. The following records may be exempt from
certain parts of the Privacy Act:
(1) System identifier: A0020-1 SAIG.
(i) System name: Inspector General Records.
(ii) Exemptions: (A) Investigatory material compiled for law
enforcement purposes, other than material within the scope of subsection
5 U.S.C. 552a(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2).
However, if an individual is denied any right, privilege, or benefit for
which he would otherwise be entitled by Federal law or for which he
would otherwise be eligible, as a result of the maintenance of such
information, the individual will be provided access to such information
except to the extent that disclosure would reveal the identity of a
confidential source.
(B) Investigatory material compiled solely for the purpose of
determining suitability, eligibility, or qualifications for federal
civilian employment, military service, federal contracts, or access to
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5),
but only to the extent that such material would reveal the identity of a
confidential source.
(C) Therefore, portions of this system of records may be exempt
pursuant to 5 U.S.C. 552a(k)(2) and (k)(5) from subsections 5 U.S.C.
552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and (f).
(iii) Authority: 5 U.S.C. 552a(k)(2) and(k)(5).
(iv) Reasons: (A) From subsection (c)(3) because the release of the
disclosure accounting would permit the subject of a criminal
investigation or matter under investigation to obtain valuable
information concerning the nature of that investigation which will
present a serious impediment to law enforcement.
(B) From subsection (d) because access to such records contained in
this system would inform the subject of a criminal investigation of the
existence of that investigation, provide the subject of the
investigation with information that might enable him to avoid detection
or apprehension, and would present a serious impediment to law
enforcement.
(C) From subsection (e)(1) because in the course of criminal
investigations, information is often obtained concerning the violations
of laws or civil obligations of others not relating to an active case or
matter. In the interests of effective law enforcement, it is necessary
that this valuable information is retained since it can aid in
establishing patterns of activity and provide valuable leads for other
agencies and future cases that may be brought.
(D) From subsections (e)(4)(G) and (e)(4)(H) because portions of
this system of records have been exempted from the access provisions of
subsection (d), making these subsections not applicable.
(E) From subsection (e)(4)(I) because the identity of specific
sources must be withheld in order to protect the confidentiality of the
sources of criminal and other law enforcement information. This
exemption is further necessary to protect the privacy and physical
safety of witnesses and informants.
(F) From subsection (f) because portions of this system of records
have been exempted from the access provisions of subsection (d).
(2) System identifier: A0 025-400-2 0AA.
(i) System name: Army Records Information Management System (ARIMS)
(ii) Exemption: During the course of records management,
declassification and claims research, exempt materials from other
systems of records may in turn become part of the case record in this
system. To the extent that copies of exempt records from those ``other''
systems of records are entered into this system, the Department of the
Army hereby claims the same exemptions for the records from those
``other'' systems.
(iii) Authority: 5 U.S.C. 552a (j)(2) and (k)(1) through (k)(7).
(iv) Reasons: Records are only exempt from pertinent provisions of 5
U.S.C. 552a to the extent such provisions have been identified and an
exemption claimed for the original record and the purposes underlying
the exemption for the original record still pertain to the record which
is now contained in this system of records. In general, the exemptions
were claimed in order to protect properly classified information
relating to national defense and foreign policy, to avoid interference
during the conduct of criminal, civil, or administrative actions or
investigations, to ensure protective services provided to the President
and others are not compromised, to protect records used solely as
statistical records, to protect the identity of confidential sources
incident to Federal employment, military service, contract, and security
clearance determinations, to preserve the confidentiality and integrity
of Federal testing materials, and to safeguard evaluation materials used
for military promotions when furnished by a confidential source. The
exemption rule for the original records will identify the specific
reasons why the records may be exempt from specific provisions of 5
U.S.C. 552a.
(3) System identifier: A0025-55 OAA.
[[Page 44]]
(i) System name: Freedom of Information Act Program Files.
(ii) Exemption: During the processing of Freedom of Information Act
(FOIA) requests, exempt materials from other systems of records may in
turn become part of the case record in this system. To the extent that
copies of exempt records from those ``other'' systems of records are
entered into this system, the Department of the Army claims the same
exemptions for the records from those ``other'' systems.
(iii) Authority: 5 U.S.C. 552a(j)(2) and (k)(1) through (k)(7).
(iv) Reasons: Records are only exempt from pertinent provisions of 5
U.S.C. 552a to the extent such provisions have been identified and an
exemption claimed for the original record and the purposes underlying
the exemption for the original record still pertain to the record which
is now contained in this system of records. In general, the exemptions
were claimed in order to protect properly classified information
relating to national defense and foreign policy, to avoid interference
during the conduct of criminal, civil, or administrative actions or
investigations, to ensure protective services provided to the President
and others are not compromised, to protect records used solely as
statistical records, to protect the identity of confidential sources
incident to Federal employment, military service, contract, and security
clearance determinations, to preserve the confidentiality and integrity
of Federal testing materials, and to safeguard evaluation materials used
for military promotions when furnished by a confidential source. The
exemption rule for the original records will identify the specific
reasons why the records may be exempt from specific provisions of 5
U.S.C. 552a.
(4) System identifier: A0027-1 DAJA.
(i) System name: General Legal Files.
(ii) Exemption: (A) Information specifically authorized to be
classified under E.O. 12958, as implemented by DoD 5200.1-R, may be
exempt pursuant to 5 U.S.C. 552a(k)(1).
(B) Investigatory material compiled for law enforcement purposes,
other than material within the scope of subsection 5 U.S.C. 552a(j)(2),
may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual
is denied any right, privilege, or benefit for which he would otherwise
be entitled by Federal law or for which he would otherwise be eligible,
as a result of the maintenance of such information, the individual will
be provided access to such information except to the extent that
disclosure would reveal the identity of a confidential source.
(C) Investigatory material compiled solely for the purpose of
determining suitability, eligibility, or qualifications for federal
civilian employment, military service, federal contracts, or access to
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5),
but only to the extent that such material would reveal the identity of a
confidential source.
(D) Testing or examination material used solely to determine
individual qualifications for appointment or promotion in the Federal
service may be exempt pursuant to 5 U.S.C. 552a(k)(6), if the disclosure
would compromise the objectivity or fairness of the test or examination
process.
(E) Evaluation material used to determine potential for promotion in
the Military Services may be exempt pursuant to 5 U.S.C. 552a(k)(7), but
only to the extent that the disclosure of such material would reveal the
identity of a confidential source.
(F) Therefore, portions of this system of records may be exempt
pursuant to 5 U.S.C. 552a(k)(1) through(k)(7) from subsections 5 U.S.C.
552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and (f).
(iii) Authority: 5 U.S.C. 552a(k)(1), (k)(2), (k)(5), (k)(6), and
(k)(7).
(iv) Reasons: (A) From subsection (c)(3) because the release of the
disclosure accounting would permit the subject of a criminal
investigation or matter under investigation to obtain valuable
information concerning the nature of that investigation which will
present a serious impediment to law enforcement.
(B) From subsection (d) because access to such records contained in
this system would inform the subject of a criminal investigation of the
existence of that investigation, provide the subject of the
investigation with information that might enable him to avoid detection
or apprehension, and would present a serious impediment to law
enforcement.
(C) From subsection (e)(1) because in the course of criminal
investigations, information is often obtained concerning the violations
of laws or civil obligations of others not relating to an active case or
matter. In the interests of effective law enforcement, it is necessary
that this valuable information is retained since it can aid in
establishing patterns of activity and provide valuable leads for other
agencies and future cases that may be brought.
(D) From subsections (e)(4)(G) and (e)(4)(H) because portions of
this system of records have been exempted from the access provisions of
subsection (d), making these subsections not applicable.
(E) From subsection (e)(4)(I) because the identity of specific
sources must be withheld in order to protect the confidentiality of the
sources of criminal and other law enforcement information. This
exemption is further necessary to protect the privacy and physical
safety of witnesses and informants.
(F) From subsection (f) because portions of this system of records
have been exempted from the access provisions of subsection (d).
(5) System identifier: A0027-10a DAJA.
(i) System name: Military Justice Files.
[[Page 45]]
(ii) Exemptions: Parts of this system may be exempt pursuant to 5
U.S.C. 552a(j)(2) if the information is compiled and maintained by a
component of the agency which performs as its principal function any
activity pertaining to the enforcement of criminal laws. Therefore,
portions of this system of records may be exempt pursuant to 5 U.S.C.
552a(j)(2) from subsections 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(1),
(e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), (f),
and (g).
(iii) Authority: 5 U.S.C. 552a(j)(2).
(iv) Reason: (A) From subsection (c)(3) because the release of the
disclosure accounting would permit the subject of a criminal
investigation or matter under investigation to obtain valuable
information concerning the nature of that investigation which will
present a serious impediment to law enforcement.
(B) From subsection (c)(4) because an exemption is being claimed for
subsection (d), making this subsection not applicable.
(C) From subsection (d) because access to the records contained in
this system would inform the subject of a criminal investigation of the
existence of that investigation, provide the subject of the
investigation with information that might enable him to avoid detection
or apprehension, and would present a serious impediment to law
enforcement.
(D) From subsection (e)(1) because in the course of criminal
investigations, information is often obtained concerning the violation
of laws or civil obligations of others not relating to an active case or
matter. In the interests of effective law enforcement, it is necessary
that this information be retained since it can aid in establishing
patterns of activity and provide valuable leads for other agencies and
future cases that may be brought.
(E) From subsection (e)(2) because in a criminal investigation the
requirement that information be collected to the greatest extent
possible from the subject individual would present a serious impediment
to law enforcement in that the subject of the investigation would be
placed on notice of the existence of the investigation and would
therefore be able to avoid detection.
(F) From subsection (e)(3) because the requirement that individuals
supplying information be provided with a form stating the requirements
of subsection (e)(3) would constitute a serious impediment to law
enforcement in that it could compromise the existence of a confidential
investigation, reveal the identity of confidential sources of
information and endanger the life and physical safety of confidential
informants.
(G) From subsections (e)(4)(G) and (e)(4)(H) because portions of
this system of records have been exempted from the access provisions of
subsection (d), making these subsections not applicable.
(H) From subsection (e)(4)(I) because the identity of specific
sources must be withheld in order to protect the confidentiality of the
sources of criminal and other law enforcement information. This
exemption is further necessary to protect the privacy and physical
safety of witnesses and informants.
(I) From subsection (e)(5) because in the collection of information
for law enforcement purposes it is impossible to determine in advance
what information is accurate, relevant, timely, and complete. With the
passage of time, seemingly irrelevant or untimely information may
acquire new significance as further investigation brings new details to
light and the accuracy of such information can only be determined in a
court of law. The restrictions of subsection (e)(5) would restrict the
ability of trained investigators and intelligence analysts to exercise
their judgment in reporting on investigations and impede the development
of intelligence necessary for effective law enforcement.
(J) From subsection (e)(8) because the individual notice
requirements of subsection (e)(8) could present a serious impediment to
law enforcement as this could interfere with the ability to issue search
authorizations and could reveal investigative techniques and procedures.
(K) From subsection (f) because portions of this system of records
have been exempted from the access provisions of subsection (d).
(L) From subsection (g) because portions of this system of records
are compiled for law enforcement purposes and have been exempted from
the access provisions of subsections (d) and (f).
(6) System identifier: A0027-10b DAJA.
(i) System name: Courts-Martial Records and Reviews.
(ii) Exemptions: Parts of this system may be exempt pursuant to 5
U.S.C. 552a(j)(2) if the information is compiled and maintained by a
component of the agency which performs as its principal function any
activity pertaining to the enforcement of criminal laws. Therefore,
portions of this system of records may be exempt pursuant to 5 U.S.C.
552a(j)(2) from subsections 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(1),
(e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), (f),
and (g).
(iii) Authority: 5 U.S.C. 552a(j)(2).
(iv) Reasons: (A) From subsection (c)(3) because the release of the
disclosure accounting would permit the subject of a criminal
investigation or matter under investigation to obtain valuable
information concerning the nature of that investigation which will
present a serious impediment to law enforcement.
(B) From subsection (c)(4) because an exemption is being claimed for
subsection (d), making this subsection not applicable.
(C) From subsection (d) because access to the records contained in
this system would
[[Page 46]]
inform the subject of a criminal investigation of the existence of that
investigation, provide the subject of the investigation with information
that might enable him to avoid detection or apprehension, and would
present a serious impediment to law enforcement.
(D) From subsection (e)(1) because in the course of criminal
investigations, information is often obtained concerning the violation
of laws or civil obligations of others not relating to an active case or
matter. In the interests of effective law enforcement, it is necessary
that this information be retained since it can aid in establishing
patterns of activity and provide valuable leads for other agencies and
future cases that may be brought.
(E) From subsection (e)(2) because in a criminal investigation, the
requirement that information be collected to the greatest extent
possible from the subject individual would present a serious impediment
to law enforcement in that the subject of the investigation would be
placed on notice of the existence of the investigation and would
therefore be able to avoid detection.
(F) From subsection (e)(3) because the requirement that individuals
supplying information be provided with a form stating the requirements
of subsection (e)(3) would constitute a serious impediment to law
enforcement in that it could compromise the existence of a confidential
investigation, reveal the identity of confidential sources of
information and endanger the life and physical safety of confidential
informants.
(G) From subsections (e)(4)(G) and (e)(4)(H) because portions of
this system of records have been exempted from the access provisions of
subsection (d), making these subsections not applicable.
(H) From subsection (e)(4)(I) because the identity of specific
sources must be withheld in order to protect the confidentiality of the
sources of criminal and other law enforcement information. This
exemption is further necessary to protect the privacy and physical
safety of witnesses and informants.
(I) From subsection (e)(5) because in the collection of information
for law enforcement purposes it is impossible to determine in advance
what information is accurate, relevant, timely, and complete. With the
passage of time, seemingly irrelevant or untimely information may
acquire new significance as further investigation brings new details to
light and the accuracy of such information can only be determined in a
court of law. The restrictions of subsection (e)(5) would restrict the
ability of trained investigators and intelligence analysts to exercise
their judgment in reporting on investigations and impede the development
of intelligence necessary for effective law enforcement.
(J) From subsection (e)(8) because the individual notice
requirements of subsection (e)(8) could present a serious impediment to
law enforcement as this could interfere with the ability to issue search
authorizations and could reveal investigative techniques and procedures.
(K) From subsection (f) because portions of this system of records
have been exempted from the access provisions of subsection (d).
(L) From subsection (g) because portions of this system of records
are compiled for law enforcement purposes and have been exempted from
the access provisions of subsections (d) and (f).
(7) System identifier: A0040-5b DASG.
(i) System name: Army Public Health Data Repository (APHDR).
(ii) Exemption: (A) Investigatory material compiled for law
enforcement purposes, other than material within the scope of subsection
5 U.S.C. 552a(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2).
However, if an individual is denied any right, privilege, or benefit for
which he would otherwise be entitled by Federal law or for which he
would otherwise be eligible, as a result of the maintenance of such
information, the individual will be provided access to such information
except to the extent that disclosure would reveal the identity of a
confidential source.
(B) Records maintained solely for statistical research or program
evaluation purposes and which are not used to make decisions on the
rights, benefits, or entitlement of an individual except for census
records which may be disclosed under 13 U.S.C. 8, may be exempt pursuant
to 5 U.S.C. 552a(k)(4).
(C) Therefore, portions of this system of records may be exempt
pursuant to 5 U.S.C. 552a(k)(2) and (k)(4) from subsections 5 U.S.C.
552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and (f).
(iii) Authority: 5 U.S.C. 552a(k)(2) and (k)(4)
(iv) Reasons: (A) From subsection (c)(3) because the release of the
disclosure accounting would permit the subject of a criminal
investigation or matter under investigation to obtain valuable
information concerning the nature of that investigation which will
present a serious impediment to law enforcement.
(B) From subsection (d) because access to the records contained in
this system would inform the subject of a criminal investigation of the
existence of that investigation, provide the subject of the
investigation with information that might enable him to avoid detection
or apprehension, and would present a serious impediment to law
enforcement.
(C) From subsection (e)(1) because in the course of criminal
investigations, information is often obtained concerning the violations
of laws or civil obligations of others not relating to an active case or
matter. In the interests of effective law enforcement, it
[[Page 47]]
is necessary that this valuable information is retained since it can aid
in establishing patterns of activity and provide valuable leads for
other agencies and future cases that may be brought.
(D) From subsections (e)(4)(G) and (e)(4)(H) because portions of
this system of records have been exempted from the access provisions of
subsection (d), making these subsections not applicable.
(E) From subsection (e)(4)(I) because the identity of specific
sources must be withheld in order to protect the confidentiality of the
sources of criminal and other law enforcement information. This
exemption is further necessary to protect the privacy and physical
safety of witnesses and informants.
(F) From subsection (f) because portions of this system of records
have been exempted from the access provisions of subsection (d).
(8) System identifier: A0190-5 OPMG.
(i) System name: Vehicle Registration System.
(ii) Exemption: Parts of this system of records may be exempt
pursuant to 5 U.S.C. 552a(j)(2) if the information is compiled and
maintained by a component of the agency which performs as its primary
function any activity pertaining to the enforcement of criminal laws.
Therefore, portions of this system of records may be exempt pursuant to
5 U.S.C. 552a(j)(2) from subsections 5 U.S.C. 552a(c)(3), (c)(4), (d),
(e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(8), (f),
and (g).
(iii) Authority: 5 U.S.C. 552a(j)(2).
(iv) Reasons: (A) From subsection (c)(3) because the release of the
disclosure accounting would permit the subject of a criminal
investigation or matter under investigation to obtain valuable
information concerning the nature of that investigation which will
present a serious impediment to law enforcement.
(B) From subsection (c)(4) because an exemption is being claimed for
subsection (d), making this subsection not applicable.
(C) From subsection (d) because access to the records contained in
this system would inform the subject of a criminal investigation of the
existence of that investigation, provide the subject of the
investigation with information that might enable him to avoid detection
or apprehension, and would present a serious impediment to law
enforcement.
(D) From subsection (e)(1) because in the course of criminal
investigations, information is often obtained concerning the violation
of laws or civil obligations of others not relating to an active case or
matter. In the interests of effective law enforcement, it is necessary
that this valuable information be retained since it can aid in
establishing patterns of activity and provide valuable leads for other
agencies and future cases that may be brought.
(E) From subsection (e)(2) because in a criminal investigation, the
requirement that information be collected to the greatest extent
possible from the subject individual would present a serious impediment
to law enforcement in that the subject of the investigation would be
placed on notice of the existence of the investigation and would
therefore be able to avoid detection.
(F) From subsection (e)(3) because the requirement that individuals
supplying information be provided with a form stating the requirements
of subsection (e)(3) would constitute a serious impediment to law
enforcement in that it could compromise the existence of a confidential
investigation, reveal the identity of confidential sources of
information and endanger the life and physical safety of confidential
informants.
(G) From subsections (e)(4)(G) and (e)(4)(H) because portions of
this system of records have been exempted from access provisions of
subsection (d), making these subsections not applicable.
(H) From subsection (e)(4)(I) because the identity of specific
sources must be withheld in order to protect the confidentiality of the
sources of criminal and other law enforcement information. This
exemption is further necessary to protect the privacy and physical
safety of witnesses and informants.
(I) From subsection (e)(5) because in the collection of information
for law enforcement purposes it is impossible to determine in advance
what information is accurate, relevant, timely, and complete. With the
passage of time, seemingly irrelevant or untimely information may
acquire new significance as further investigation brings new details to
light and the accuracy of such information can only be determined in a
court of law. The restrictions of subsection (e)(5) would restrict the
ability of trained investigators and intelligence analysts to exercise
their judgment reporting on investigations and impede the development of
intelligence necessary for effective law enforcement.
(J) From subsection (e)(8) because the individual notice
requirements of subsection (e)(8) could present a serious impediment to
law enforcement as this could interfere with the ability to issue search
authorizations and could reveal investigative techniques and procedures.
(K) From subsection (f) because portions of this system of records
have been exempted from the access provisions of subsection (d).
(L) From subsection (g) because portions of this system of records
are compiled for law enforcement purposes and have been exempted from
the access provisions of subsections (d) and (f).
(9) System identifier: A0190-9 OPMG.
(i) System name: Absentee Case Files.
(ii) Exemption: Parts of this system of records may be exempt
pursuant to 5 U.S.C. 552a(j)(2) if the information is compiled and
[[Page 48]]
maintained by a component of the agency which performs as its principal
function any activity pertaining to the enforcement of criminal laws.
Therefore, portions of this system of records may be exempt pursuant to
5 U.S.C. 552a(j)(2) from subsections 5 U.S.C. 552a(c)(3), (c)(4), (d),
(e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(8), (f),
and (g).
(iii) Authority: 5 U.S.C. 552a(j)(2).
(iv) Reasons: (A) From subsection (c)(3) because the release of the
disclosure accounting would permit the subject of a criminal
investigation or matter under investigation to obtain valuable
information concerning the nature of that investigation which will
present a serious impediment to law enforcement.
(B) From subsection (c)(4) because an exemption is being claimed for
subsection (d), making this subsection not applicable.
(C) From subsection (d) because access to the records contained in
this system would inform the subject of a criminal investigation of the
existence of that investigation, provide the subject of the
investigation with information that might enable him to avoid detection
or apprehension, and would present a serious impediment to law
enforcement.
(D) From subsection (e)(1) because in the course of criminal
investigations, information is often obtained concerning the violation
of laws or civil obligations of others not relating to an active case or
matter. In the interests of effective law enforcement, it is necessary
that this valuable information be retained since it can aid in
establishing patterns of activity and provide valuable leads for other
agencies and future cases that may be brought.
(E) From subsection (e)(2) because in a criminal investigation, the
requirement that information be collected to the greatest extent
possible from the subject individual would present a serious impediment
to law enforcement in that the subject of the investigation would be
placed on notice of the existence of the investigation and would
therefore be able to avoid detection.
(F) From subsection (e)(3) because the requirement that individuals
supplying information be provided with a form stating the requirements
of subsection (e)(3) would constitute a serious impediment to law
enforcement in that it could compromise the existence of a confidential
investigation, reveal the identity of confidential sources of
information and endanger the life and physical safety of confidential
informants.
(G) From subsections (e)(4)(G) and (e)(4)(H) because portions of
this system of records have been exempted from access provisions of
subsection (d), making these subsections not applicable.
(H) From subsection (e)(4)(I) because the identity of specific
sources must be withheld in order to protect the confidentiality of the
sources of criminal and other law enforcement information. This
exemption is further necessary to protect the privacy and physical
safety of witnesses and informants.
(I) From subsection (e)(5) because in the collection of information
for law enforcement purposes it is impossible to determine in advance
what information is accurate, relevant, timely, and complete. With the
passage of time, seemingly irrelevant or untimely information may
acquire new significance as further investigation brings new details to
light and the accuracy of such information can only be determined in a
court of law. The restrictions of subsection (e)(5) would restrict the
ability of trained investigators and intelligence analysts to exercise
their judgment reporting on investigations and impede the development of
intelligence necessary for effective law enforcement.
(J) From subsection (e)(8) because the individual notice
requirements of subsection (e)(8) could present a serious impediment to
law enforcement as this could interfere with the ability to issue search
authorizations and could reveal investigative techniques and procedures.
(K) From subsection (f) because portions of this system of records
have been exempted from the access provisions of subsection (d).
(L) From subsection (g) because portions of this system of records
are compiled for law enforcement purposes and have been exempted from
the access provisions of subsections (d) and (f).
(10) System identifier: A0190-14 OPMG.
(i) System name: Registration and Permit Files.
(ii) Exemption: Investigatory material compiled for law enforcement
purposes, other than material within the scope of subsection 5 U.S.C.
552a(j)(2), is exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an
individual is denied any right, privilege, or benefit for which he would
otherwise be entitled by Federal law or for which he would otherwise be
eligible, as a result of the maintenance of such information, the
individual will be provided access to such information except to the
extent that disclosure would reveal the identity of a confidential
source. Therefore, portions of this system of records may be exempt
pursuant to 5 U.S.C. 552a(k)(2) from subsections 5 U.S.C. 552a(c)(3),
(d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and (f).
(iii) Authority: 5 U.S.C. 552a(k)(2).
(iv) Reasons: (A) From subsection (c)(3) because the release of the
disclosure accounting would permit the subject of a criminal
investigation or matter under investigation to obtain valuable
information concerning the nature of that investigation which will
present a serious impediment to law enforcement.
(B) From subsection (d) because access to the records contained in
this system would
[[Page 49]]
inform the subject of a criminal investigation of the existence of that
investigation, provide the subject of the investigation with information
that might enable him to avoid detection or apprehension, and would
present a serious impediment to law enforcement.
(C) From subsection (e)(1) because in the course of criminal
investigations, information is often obtained concerning the violations
of laws or civil obligations of others not relating to an active case or
matter. In the interests of effective law enforcement, it is necessary
that this valuable information is retained since it can aid in
establishing patterns of activity and provide valuable leads for other
agencies and future cases that may be brought.
(D) From subsections (e)(4)(G) and (e)(4)(H) because portions of
this system of records have been exempted from the access provisions of
subsection (d), making these subsections not applicable.
(E) From subsection (e)(4)(I) because the identity of specific
sources must be withheld in order to protect the confidentiality of the
sources of criminal and other law enforcement information. This
exemption is further necessary to protect the privacy and physical
safety of witnesses and informants.
(F) From subsection (f) because portions of this system of records
have been exempted from the access provisions of subsection (d).
(11) System identifier: A0190-45 OPMG.
(i) System name: Military Police Reporting Program Records (MPRP).
(ii) Exemptions: Parts of this system may be exempt pursuant to 5
U.S.C. 552a(j)(2) if the information is compiled and maintained by a
component of the agency which performs as its principal function any
activity pertaining to the enforcement of criminal laws. Therefore,
portions of the system may be exempt pursuant to 5 U.S.C. 552a(j)(2)
from subsections 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(1), (e)(2),
(e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), (f), and (g).
(iii) Authority: 5 U.S.C. 552a(j)(2).
(iv) Reasons: (A) From subsection (c)(3) because the release of the
disclosure accounting would permit the subject of a criminal
investigation or matter under investigation to obtain valuable
information concerning the nature of that investigation which will
present a serious impediment to law enforcement.
(B) From subsection (c)(4) because an exemption is being claimed for
subsection (d), making this subsection not applicable.
(C) From subsection (d) because access to the records contained in
this system would inform the subject of a criminal investigation of the
existence of that investigation, provide the subject of the
investigation with information that might enable him to avoid detection
or apprehension, and would present a serious impediment to law
enforcement.
(D) From subsection (e)(1) because in the course of criminal
investigations, information is often obtained concerning the violation
of laws or civil obligations of others not relating to an active case or
matter. In the interests of effective law enforcement, it is necessary
that this valuable information be retained since it can aid in
establishing patterns of activity and provide valuable leads for other
agencies and future cases that may be brought.
(E) From subsection (e)(2) because in a criminal investigation, the
requirement that information be collected to the greatest extent
possible from the subject individual would present a serious impediment
to law enforcement in that the subject of the investigation would be
placed on notice of the existence of the investigation and would
therefore be able to avoid detection.
(F) From subsection (e)(3) because the requirement that individuals
supplying information be provided with a form stating the requirements
of subsection (e)(3) would constitute a serious impediment to law
enforcement in that it could compromise the existence of a confidential
investigation, reveal the identity of confidential sources of
information and endanger the life and physical safety of confidential
informants.
(G) From subsections (e)(4)(G) and (e)(4)(H) because portions of
this system of records have been exempted from access provisions of
subsection (d), making these subsections not applicable.
(H) From subsection (e)(4)(I) because the identity of specific
sources must be withheld in order to protect the confidentiality of the
sources of criminal and other law enforcement information. This
exemption is further necessary to protect the privacy and physical
safety of witnesses and informants.
(I) From subsection (e)(5) because in the collection of information
for law enforcement purposes it is impossible to determine in advance
what information is accurate, relevant, timely, and complete. With the
passage of time, seemingly irrelevant or untimely information may
acquire new significance as further investigation brings new details to
light and the accuracy of such information can only be determined in a
court of law. The restrictions of subsection (e)(5) would restrict the
ability of trained investigators and intelligence analysts to exercise
their judgment reporting on investigations and impede the development of
intelligence necessary for effective law enforcement.
(J) From subsection (e)(8) because the individual notice
requirements of subsection (e)(8) could present a serious impediment to
law enforcement as this could interfere with the ability to issue search
authorizations and could reveal investigative techniques and procedures.
[[Page 50]]
(K) From subsection (f) because portions of this system of records
have been exempted from the access provisions of subsection (d).
(L) From subsection (g) because portions of this system of records
are compiled for law enforcement purposes and have been exempted from
the access provisions of subsections (d) and (f).
(12) System identifier: A0190-45a OPMG.
(i) System name: Local Criminal Intelligence Files.
(ii) Exemptions: Parts of this system may be exempt pursuant to 5
U.S.C. 552a(j)(2) if the information is compiled and maintained by a
component of the agency which performs as its principal function any
activity pertaining to the enforcement of criminal laws. Therefore,
portions of the system of records may be exempt pursuant to 5 U.S.C.
552a(j)(2) from subsections 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(1),
(e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(8), (f), and (g).
(iii) Authority: 5 U.S.C. 552a(j)(2).
(iv) Reasons: (A) From subsection (c)(3) because the release of the
disclosure accounting would permit the subject of a criminal
investigation or matter under investigation to obtain valuable
information concerning the nature of that investigation which will
present a serious impediment to law enforcement.
(B) From subsection (c)(4) because an exemption is being claimed for
subsection (d), making this subsection not applicable.
(C) From subsection (d) because access to the records contained in
this system would inform the subject of a criminal investigation of the
existence of that investigation, provide the subject of the
investigation with information that might enable him to avoid detection
or apprehension, and would present a serious impediment to law
enforcement.
(D) From subsection (e)(1) because in the course of criminal
investigations, information is often obtained concerning the violation
of laws or civil obligations of others not relating to an active case or
matter. In the interests of effective law enforcement, it is necessary
that this valuable information be retained since it can aid in
establishing patterns of activity and provide valuable leads for other
agencies and future cases that may be brought.
(E) From subsection (e)(2) because in a criminal investigation, the
requirement that information be collected to the greatest extent
possible from the subject individual would present a serious impediment
to law enforcement in that the subject of the investigation would be
placed on notice of the existence of the investigation and would
therefore be able to avoid detection.
(F) From subsection (e)(3) because the requirement that individuals
supplying information be provided with a form stating the requirements
of subsection (e)(3) would constitute a serious impediment to law
enforcement in that it could compromise the existence of a confidential
investigation, reveal the identity of confidential sources of
information and endanger the life and physical safety of confidential
informants.
(G) From subsections (e)(4)(G) and (e)(4)(H) because portions of
this system of records have been exempted from access provisions of
subsection (d), making these subsections not applicable.
(H) From subsection (e)(4)(I) because the identity of specific
sources must be withheld in order to protect the confidentiality of the
sources of criminal and other law enforcement information. This
exemption is further necessary to protect the privacy and physical
safety of witnesses and informants.
(I) From subsection (e)(5) because in the collection of information
for law enforcement purposes it is impossible to determine in advance
what information is accurate, relevant, timely, and complete. With the
passage of time, seemingly irrelevant or untimely information may
acquire new significance as further investigation brings new details to
light and the accuracy of such information can only be determined in a
court of law. The restrictions of subsection (e)(5) would restrict the
ability of trained investigators and intelligence analysts to exercise
their judgment reporting on investigations and impede the development of
intelligence necessary for effective law enforcement.
(J) From subsection (e)(8) because the individual notice
requirements of subsection (e)(8) could present a serious impediment to
law enforcement as this could interfere with the ability to issue search
authorizations and could reveal investigative techniques and procedures.
(K) From subsection (f) because portions of this system of records
have been exempted from the access provisions of subsection (d).
(L) From subsection (g) because portions of this system of records
are compiled for law enforcement purposes and have been exempted from
the access provisions of subsections (d) and (f).
(13) System identifier: A0190-45b OPMG.
(i) System Name: Serious Incident Reporting Files.
(ii) Exemptions: Parts of this system may be exempt pursuant to 5
U.S.C. 552a(j)(2) if the information is compiled and maintained by a
component of the agency which performs as its principal function any
activity pertaining to the enforcement of criminal laws. Therefore,
portions of the system of records may be exempt pursuant to 5 U.S.C.
552a(j)(2) from subsections 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(1),
(e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(8), (f), and (g).
(iii) Authority: 5 U.S.C. 552a(j)(2).
(iv) Reasons (A) From subsection (c)(3) because the release of the
disclosure accounting would permit the subject of a criminal
investigation or matter under investigation
[[Page 51]]
to obtain valuable information concerning the nature of that
investigation which will present a serious impediment to law
enforcement.
(B) From subsection (c)(4) because an exemption is being claimed for
subsection (d), making this subsection not applicable.
(C) From subsection (d) because access to the records contained in
this system would inform the subject of a criminal investigation of the
existence of that investigation, provide the subject of the
investigation with information that might enable him to avoid detection
or apprehension, and would present a serious impediment to law
enforcement.
(D) From subsection (e)(1) because in the course of criminal
investigations, information is often obtained concerning the violation
of laws or civil obligations of others not relating to an active case or
matter. In the interests of effective law enforcement, it is necessary
that this valuable information be retained since it can aid in
establishing patterns of activity and provide valuable leads for other
agencies and future cases that may be brought.
(E) From subsection (e)(2) because in a criminal investigation, the
requirement that information be collected to the greatest extent
possible from the subject individual would present a serious impediment
to law enforcement in that the subject of the investigation would be
placed on notice of the existence of the investigation and would
therefore be able to avoid detection.
(F) From subsection (e)(3) because the requirement that individuals
supplying information be provided with a form stating the requirements
of subsection (e)(3) would constitute a serious impediment to law
enforcement in that it could compromise the existence of a confidential
investigation, reveal the identity of confidential sources of
information and endanger the life and physical safety of confidential
informants.
(G) From subsections (e)(4)(G) and (e)(4)(H) because portions of
this system of records have been exempted from access provisions of
subsection (d), making these subsections not applicable.
(H) From subsection (e)(4)(I) because the identity of specific
sources must be withheld in order to protect the confidentiality of the
sources of criminal and other law enforcement information. This
exemption is further necessary to protect the privacy and physical
safety of witnesses and informants.
(I) From subsection (e)(5) because in the collection of information
for law enforcement purposes it is impossible to determine in advance
what information is accurate, relevant, timely, and complete. With the
passage of time, seemingly irrelevant or untimely information may
acquire new significance as further investigation brings new details to
light and the accuracy of such information can only be determined in a
court of law. The restrictions of subsection (e)(5) would restrict the
ability of trained investigators and intelligence analysts to exercise
their judgment reporting on investigations and impede the development of
intelligence necessary for effective law enforcement.
(J) From subsection (e)(8) because the individual notice
requirements of subsection (e)(8) could present a serious impediment to
law enforcement as this could interfere with the ability to issue search
authorizations and could reveal investigative techniques and procedures.
(K) From subsection (f) because portions of this system of records
have been exempted from the access provisions of subsection (d).
(L) From subsection (g) because portions of this system of records
are compiled for law enforcement purposes and have been exempted from
the access provisions of subsections (d) and (f).
(14) System identifier: A0190-47 DAPM-ACC.
(i) System Name: Army Corrections System and Parole Board Records.
(ii) Exemptions: Parts of this system may be exempt pursuant to 5
U.S.C. 552a(j)(2) if the information is compiled and maintained by a
component of the agency which performs as its principal function any
activity pertaining to the enforcement of criminal laws. Therefore,
portions of the system of records may be exempt pursuant to 5 U.S.C.
552a(j)(2) from subsections 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(1),
(e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), (f),
and (g).
(iii) Authority: 5 U.S.C. 552a(j)(2).
(iv) Reasons: (A) From subsection (c)(3) because the release of the
disclosure accounting would permit the subject of a criminal
investigation or matter under investigation to obtain valuable
information concerning the nature of that investigation which will
present a serious impediment to law enforcement.
(B) From subsection (c)(4) because an exemption is being claimed for
subsection (d), making this subsection not applicable.
(C) From subsection (d) because access to the records contained in
this system would inform the subject of a criminal investigation of the
existence of that investigation, provide the subject of the
investigation with information that might enable him to avoid detection
or apprehension, and would present a serious impediment to law
enforcement.
(D) From subsection (e)(1) because in the course of criminal
investigations, information is often obtained concerning the violation
of laws or civil obligations of others not relating to an active case or
matter. In the interests of effective law enforcement, it is necessary
that this valuable information be retained since it can aid in
establishing patterns of activity and provide valuable leads for other
agencies and future cases that may be brought.
[[Page 52]]
(E) From subsection (e)(2) because in a criminal or other law
enforcement investigation, the requirement that information be collected
to the greatest extent possible from the subject individual would alert
the subject as to the nature or existence of the investigation and
thereby present a serious impediment to effective law enforcement.
(F) From subsection (e)(3) because the requirement that individuals
supplying information be provided with a form stating the requirements
of subsection (e)(3) would constitute a serious impediment to law
enforcement in that it could compromise the existence of a confidential
investigation, reveal the identity of confidential sources of
information and endanger the life and physical safety of confidential
informants.
(G) From subsections (e)(4)(G) and (e)(4)(H) because an exemption is
being claimed for subsection (d), making these subsections not
applicable.
(H) From subsection (e)(4)(I) because the identity of specific
sources must be withheld in order to protect the confidentiality of the
sources of criminal and other law enforcement information. This
exemption is further necessary to protect the privacy and physical
safety of witnesses and informants.
(I) From subsection (e)(5) because in the collection of information
for law enforcement purposes it is impossible to determine in advance
what information is accurate, relevant, timely, and complete. With the
passage of time, seemingly irrelevant or untimely information may
acquire new significance as further investigation brings new details to
light and the accuracy of such information can only be determined in a
court of law. The restrictions of subsection (e)(5) would restrict the
ability of trained investigators and intelligence analysts to exercise
their judgment reporting on investigations and impede the development of
intelligence necessary for effective law enforcement.
(J) From subsection (e)(8) because the individual notice
requirements of subsection (e)(8) could present a serious impediment to
law enforcement as this could interfere with the ability to issue search
authorizations and could reveal investigative techniques and procedures.
(K) From subsection (f) because portions of this system of records
have been exempted from the access provisions of subsection (d).
(L) From subsection (g) because portions of this system of records
are compiled for law enforcement purposes and have been exempted from
the access provisions of subsections (d) and (f).
(15) System identifier: A0195-2a USACIDC.
(i) System name: Source Register.
(ii) Exemption: (A): Parts of this system may be exempt pursuant to
5 U.S.C. 552a(j)(2) if the information is compiled and maintained by a
component of the agency which performs as its principal function any
activity pertaining to the enforcement of criminal laws. Therefore,
portions of this system of records may be exempt pursuant to 5 U.S.C.
552a(j)(2) from subsections 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(1),
(e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), (f),
and (g).
(iii) Authority: 5 U.S.C. 552a(j)(2).
(iv) Reasons: (A) From subsection (c)(3) because the release of the
disclosure accounting would permit the subject of a criminal
investigation or matter under investigation to obtain valuable
information concerning the nature of that investigation which will
present a serious impediment to law enforcement.
(B) From subsection (c)(4) because an exemption is being claimed for
subsection
(d), making this subsection not applicable.
(C) From subsection (d) because access to the records contained in
this system would inform the subject of a criminal investigation of the
existence of that investigation, provide the subject of the
investigation with information that might enable him to avoid detection
or apprehension, and would present a serious impediment to law
enforcement.
(D) From subsection (e)(1) because in the course of criminal
investigations, information is often obtained concerning the violation
of laws or civil obligations of others not relating to an active case or
matter. In the interests of effective law enforcement, it is necessary
that this valuable information be retained since it can aid in
establishing patterns of activity and provide valuable leads for other
agencies and future cases that may be brought.
(E) From subsection (e)(2) because in a criminal investigation, the
requirement that information be collected to the greatest extent
possible from the subject individual would present a serious impediment
to law enforcement in that the subject of the investigation would be
placed on notice of the existence of the investigation and would
therefore be able to avoid detection.
(F) From subsection (e)(3) because the requirement that individuals
supplying information be provided with a form stating the requirements
of subsection (e)(3) would constitute a serious impediment to law
enforcement in that it could compromise the existence of a confidential
investigation, reveal the identity of confidential sources of
information and endanger the life and physical safety of confidential
informants.
(G) From subsections (e)(4)(G) and (e)(4)(H) because portions of
this system of records have been exempted from access provisions of
subsection (d), making these subsections not applicable.
(H) From subsection (e)(4)(I) because the identity of specific
sources must be withheld in order to protect the confidentiality of the
sources of criminal and other law enforcement information. This
exemption is further
[[Page 53]]
necessary to protect the privacy and physical safety of witnesses and
informants.
(I) From subsection (e)(5) because in the collection of information
for law enforcement purposes it is impossible to determine in advance
what information is accurate, relevant, timely, and complete. With the
passage of time, seemingly irrelevant or untimely information may
acquire new significance as further investigation brings new details to
light and the accuracy of such information can only be determined in a
court of law. The restrictions of subsection (e)(5) would restrict the
ability of trained investigators and intelligence analysts to exercise
their judgment reporting on investigations and impede the development of
intelligence necessary for effective law enforcement.
(J) From subsection (e)(8) because the individual notice
requirements of subsection (e)(8) could present a serious impediment to
law enforcement as this could interfere with the ability to issue search
authorizations and could reveal investigative techniques and procedures.
(K) From subsection (f) because portions of this system of records
have been exempted from the access provisions of subsection (d).
(L) From subsection (g) because portions of this system of records
are compiled for law enforcement purposes and have been exempted from
the access provisions of subsections (d) and (f).
(16) System identifier: A0195-2b USACIDC.
(i) System name: Criminal Investigation and Crime Laboratory Files.
(ii) Exemption: Parts of this system may be exempt pursuant to 5
U.S.C. 552a(j)(2) if the information is compiled and maintained by a
component of the agency which performs as its principal function any
activity pertaining to the enforcement of criminal laws. Therefore,
portions of this system of records may be exempt pursuant to 5 U.S.C.
552a(j)(2) from subsections 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(1),
(e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), (f),
and (g).
(iii) Authority: 5 U.S.C. 552a(j)(2).
(iv) Reasons: (A) From subsection (c)(3) because the release of the
disclosure accounting would permit the subject of a criminal
investigation or matter under investigation to obtain valuable
information concerning the nature of that investigation which will
present a serious impediment to law enforcement.
(B) From subsections (c)(4) because an exemption is being claimed
for subsection (d), making this subsection not applicable.
(C) From subsection (d) because access to the records contained in
this system would inform the subject of a criminal investigation of the
existence of that investigation, provide the subject of the
investigation with information that might enable him to avoid detection
or apprehension, and would present a serious impediment to law
enforcement.
(D) From subsection (e)(1) because in the course of criminal
investigations, information is often obtained concerning the violation
of laws or civil obligations of others not relating to an active case or
matter. In the interests of effective law enforcement, it is necessary
that this information be retained since it can aid in establishing
patters of activity and provide valuable leads for other agencies and
future cases that may be brought.
(E) From subsection (e)(2) because in a criminal or other law
enforcement investigation, the requirement that information be collected
to the greatest extent possible from the subject individual would alert
the subject as to the nature or existence of the investigation and
thereby present a serious impediment to effective law enforcement.
(F) From subsection (e)(3) because the requirement that individuals
supplying information be provided with a form stating the requirements
of subsection (e)(3) would constitute a serious impediment to law
enforcement in that it could compromise the existence of a confidential
investigation, reveal the identity of confidential sources of
information and endanger the life and physical safety of confidential
informants.
(G) From subsections (e)(4)(G) and (e)(4)(H) because portions of
this system of records have been exempted from access provisions of
subsection (d), making these subsections not applicable.
(H) From subsections (e)(4)(I) because the identity of specific
sources must be withheld in order to protect the confidentiality of the
sources of criminal and other law enforcement information. This
exemption is further necessary to protect the privacy and physical
safety of witnesses and informants.
(I) From subsection (e)(5) because the requirement that records be
maintained with attention to accuracy, relevance, timeliness, and
completeness would unfairly hamper the investigative process. It is the
nature of law enforcement for investigations to uncover the commission
of illegal acts at diverse stages. It is frequently impossible to
determine initially what information is accurate, relevant, timely, and
least of all complete. With the passage of time, seemingly irrelevant or
untimely information may acquire new significance as further
investigation brings new details to light.
(J) From subsection (e)(8) because the notice requirements of this
provision could present a serious impediment to criminal law enforcement
by revealing investigative techniques, procedures, and the existence of
confidential investigations.
(K) From subsection (f) because portions of this system of records
have been exempted from the access provisions of subsection (d).
(L) From subsection (g) because portions of this system of records
are compiled for law
[[Page 54]]
enforcement purposes and have been exempted from the access provisions
of subsections (d) and (f).
(17) System identifier: A0195-2c USACIDC DoD.
(i) System name: DoD Criminal Investigation Task Force (CITF) Files.
(ii) Exemption: Parts of this system may be exempt pursuant to 5
U.S.C. 552a(j)(2) if the information is compiled and maintained by a
component of the agency, which performs as its principal function any
activity pertaining to the enforcement of criminal laws. Therefore,
portions of this system of records may be exempt pursuant to 5 U.S.C.
552a(j)(2) from subsections 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(1),
(e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), (f),
and (g).
(iii) Authority: 5 U.S.C. 552a(j)(2).
(iv) Reasons: (A) From subsection (c)(3) because the release of the
disclosure accounting would permit the subject of a criminal
investigation or matter under investigation to obtain valuable
information concerning the nature of that investigation which will
present a serious impediment to law enforcement.
(B) From subsection (c)(4) because an exemption is being claimed for
subsection (d), making this subsection not applicable.
(C) From subsection (d) because access to the records contained in
this system would inform the subject of a criminal investigation of the
existence of that investigation, provide the subject of the
investigation with information that might enable him to avoid detection
or apprehension, and would present a serious impediment to law
enforcement.
(D) From subsection (e)(1) because in the course of criminal
investigations, information is often obtained concerning the violation
of laws or civil obligations of others not relating to an active case or
matter. In the interests of effective law enforcement, it is necessary
that this information be retained since it can aid in establishing
patters of activity and provide valuable leads for other agencies and
future cases that may be brought.
(E) From subsection (e)(2) because in a criminal or other law
enforcement investigation, the requirement that information be collected
to the greatest extent possible from the subject individual would alert
the subject as to the nature or existence of the investigation and
thereby present a serious impediment to effective law enforcement.
(F) From subsection (e)(3) because the requirement that individuals
supplying information be provided with a form stating the requirements
of subsection (e)(3) would constitute a serious impediment to law
enforcement in that it could compromise the existence of a confidential
investigation, reveal the identity of confidential sources of
information and endanger the life and physical safety of confidential
informants.
(G) From subsections (e)(4)(G) and (e)(4)(H) because portions of
this system of records have been exempted from access provisions of
subsection (d), making these subsections not applicable.
(H) From subsection (e)(4)(I) because the identity of specific
sources must be withheld in order to protect the confidentiality of the
sources of criminal and other law enforcement information. This
exemption is further necessary to protect the privacy and physical
safety of witnesses and informants.
(I) From subsection (e)(5) because the requirement that records be
maintained with attention to accuracy, relevance, timeliness, and
completeness would unfairly hamper the investigative process. It is the
nature of law enforcement for investigations to uncover the commission
of illegal acts at diverse stages. It is frequently impossible to
determine initially what information is accurate, relevant, timely, and
least of all complete. With the passage of time, seemingly irrelevant or
untimely information may acquire new significance as further
investigation brings new details to light.
(J) From subsection (e)(8) because the notice requirements of this
provision could present a serious impediment to criminal law enforcement
by revealing investigative techniques, procedures, and the existence of
confidential investigations.
(K) From subsection (f) because portions of this system of records
have been exempted from the access provisions of subsection (d).
(L) From subsection (g) because portions of this system of records
are compiled for law enforcement purposes and have been exempted from
the access provisions of subsections (d) and (f).
(18) System identifier: A0195-2d USACIDC DoD.
(i) System name: Defense Criminal Investigation DNA Database and
Sample Repository; CODIS Records.
(ii) Exemption: Parts of this system may be exempt pursuant to 5
U.S.C 552a(j)(2) if the information is compiled and maintained by a
component of the agency that performs as its principal function any
activity pertaining to the enforcement of criminal laws. Therefore,
portions of this system of records may be exempt pursuant to 5 U.S.C.
552a(j)(2) from subsections 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(1),
(e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), (f),
and (g).
(iii) Authority: 5 U.S.C 552a(j)(2).
(iv) Reasons: (A) From subsection (c)(3) because the release of the
disclosure accounting would permit the subject of a criminal
investigation or matter under investigation to obtain valuable
information concerning the nature of that investigation which will
present a serious impediment to law enforcement.
[[Page 55]]
(B) From subsection (c)(4) because an exemption is being claimed for
subsection (d), making this subsection not applicable.
(C) From subsection (d) because access to the records contained in
this system would inform the subject of a criminal investigation of the
existence of that investigation, provide the subject of the
investigation with information that might enable him to avoid detection
or apprehension, and would present a serious impediment to law
enforcement.
(D) From subsection (e)(1) because in the course of criminal
investigations, information is often obtained concerning the violation
of laws or civil obligations of others not relating to an active case or
matter. In the interests of effective law enforcement, it is necessary
that this valuable information be retained since it can aid in
establishing patterns of activity and provide valuable leads for other
agencies and future cases that may be brought.
(E) From subsection (e)(2) because in a criminal investigation, the
requirement that information be collected to the greatest extent
possible from the subject individual would present a serious impediment
to law enforcement in that the subject of the investigation would be
placed on notice of the existence of the investigation and would
therefore be able to avoid detection.
(F) From subsection (e)(3) because the requirement that individuals
supplying information be provided with a form stating the requirements
of subsection (e)(3) would constitute a serious impediment to law
enforcement in that it could compromise the existence of a confidential
investigation, reveal the identity of confidential sources of
information and endanger the life and physical safety of confidential
informants.
(G) From subsections (e)(4)(G) and (e)(4)(H) because portions of
this system of records have been exempted from the access provisions of
subsection (d), making these subsections not applicable.
(H) From subsection (e)(4)(I) because the identity of specific
sources must be withheld in order to protect the confidentiality of the
sources of criminal and other law enforcement information. This
exemption is further necessary to protect the privacy and physical
safety of witnesses and informants.
(I) From subsection (e)(5) because in the collection of information
for law enforcement purposes it is impossible to determine in advance
what information is accurate, relevant, timely, and complete. With the
passage of time, seemingly irrelevant or untimely information may
acquire new significance as further investigation brings new details to
light and the accuracy of such information can only be determined in a
court of law. The restrictions of subsection (e)(5) would restrict the
ability of trained investigators and intelligence analysts to exercise
their judgment reporting on investigations and impede the development of
intelligence necessary for effective law enforcement.
(J) From subsection (e)(8) because the individual notice
requirements of subsection (e)(8) could present a serious impediment to
law enforcement as this could interfere with the ability to issue search
authorizations and could reveal investigative techniques and procedures.
(K) From subsection (f) because portions of this system of records
have been exempted from the access provisions of subsection (d).
(L) From subsection (g) because portions of this system of records
are compiled for law enforcement purposes and have been exempted from
the access provisions of subsections (d) and (f).
(19) System identifier: A0195-6 USACIDC.
(i) System name: Criminal Investigation Accreditation and Polygraph
Examiner Evaluation Files.
(ii) Exemption: (A) Investigatory material compiled for law
enforcement purposes, other than material within the scope of subsection
5 U.S.C. 552a(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2).
However, if an individual is denied any right, privilege, or benefit for
which he would otherwise be entitled by Federal law or for which he
would otherwise be eligible, as a result of the maintenance of such
information, the individual will be provided access to such information
except to the extent that disclosure would reveal the identity of a
confidential source.
(B) Investigatory material compiled solely for the purpose of
determining suitability, eligibility, or qualifications for federal
civilian employment, military service, federal contracts, or access to
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5),
but only to the extent that such material would reveal the identity of a
confidential source.
(C) Evaluation material used to determine potential for promotion in
the Military Services may be exempt pursuant to 5 U.S.C. 552a(k)(7), but
only to the extent that the disclosure of such material would reveal the
identity of a confidential source.
(D) Therefore, portions of this system of records may be exempt
pursuant to 5 U.S.C. 552a(k)(2), (k)(5), or (k)(7) from subsections 5
U.S.C. 552a (c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), and (f).
(iii) Authority: 5 U.S.C. 552a(k)(2), (k)(5), and (k)(7).
(iv) Reasons: (A) From subsections (c)(3) because the release of the
disclosure accounting would permit the subject of a criminal
investigation or matter under investigation to obtain valuable
information concerning the nature of that investigation which will
present a serious impediment to law enforcement.
(B) From subsection (d), because access to the records contained in
this system would
[[Page 56]]
inform the subject of a criminal investigation of the existence of that
investigation, provide the subject of the investigation with information
that might enable him to avoid detection or apprehension, and would
present a serious impediment to law enforcement.
(C) From subsection (e)(1) because in the course of criminal
investigations, information is often obtained concerning the violation
of laws or civil obligations of others not relating to an active case or
matter. In the interests of effective law enforcement, it is necessary
that this valuable information be retained since it can aid in
establishing patterns of activity and provide valuable leads for other
agencies and future cases that may be brought.
(D) From subsections (e)(4)(G) and (e)(4)(H) because portions of
this system of records have been exempted from the access provisions of
subsection (d), making these subsections not applicable.
(E) From subsection (e)(4)(I) because the identity of specific
sources must be withheld in order to protect the confidentiality of the
sources of criminal and other law enforcement information. This
exemption is further necessary to protect the privacy and physical
safety of witnesses and informants.
(F) From subsection (f) because portions of this system of records
have been exempted from the access provisions of subsection (d).
(20) System identifier: A02107 DAMO.
(i) System name: Expelled or Barred Person Files.
(ii) Exemption: Parts of this system may be exempt pursuant to 5
U.S.C. 552a(j)(2) if the information is compiled and maintained by a
component of the agency, which performs as its principal function any
activity pertaining to the enforcement of criminal laws. Therefore,
portions of this system of records may be exempt pursuant to 5 U.S.C.
552a(j)(2) from subsections 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(1),
(e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(8), (f) and (g).
(iii) Authority: 5 U.S.C. 552a(j)(2).
(iv) Reasons: (A) From subsection From subsection (c)(3) because the
release of the disclosure accounting would permit the subject of a
criminal investigation or matter under investigation to obtain valuable
information concerning the nature of that investigation which will
present a serious impediment to law enforcement.
(B) From subsection (c)(4) because an exemption is being claimed for
subsection (d), making this subsection not applicable.
(C) From subsection (d) because access to the records contained in
this system would inform the subject of a criminal investigation of the
existence of that investigation, provide the subject of the
investigation with information that might enable him to avoid detection
or apprehension, and would present a serious impediment to law
enforcement.
(D) From subsection (e)(1) because in the course of criminal
investigations, information is often obtained concerning the violation
of laws or civil obligations of others not relating to an active case or
matter. In the interests of effective law enforcement, it is necessary
that this valuable information be retained since it can aid in
establishing patterns of activity and provide valuable leads for other
agencies and future cases that may be brought.
(E) From subsection (e)(2) because in a criminal investigation, the
requirement that information be collected to the greatest extent
possible from the subject individual would present a serious impediment
to law enforcement in that the subject of the investigation would be
placed on notice of the existence of the investigation and would
therefore be able to avoid detection.
(F) From subsection (e)(3) because the requirement that individuals
supplying information be provided with a form stating the requirements
of subsection (e)(3) would constitute a serious impediment to law
enforcement in that it could compromise the existence of a confidential
investigation, reveal the identity of confidential sources of
information and endanger the life and physical safety of confidential
informants.
(G) From subsections (e)(4)(G) and (e)(4)(H) because portions of
this system of records have been exempted from the access provisions of
subsection (d), making these subsections not applicable.
(H) From subsection (e)(4)(I) because the identity of specific
sources must be withheld in order to protect the confidentiality of the
sources of criminal and other law enforcement information. This
exemption is further necessary to protect the privacy and physical
safety of witnesses and informants.
(I) From subsection (e)(8) because the individual notice
requirements of subsection (e)(8) could present a serious impediment to
law enforcement as this could interfere with the ability to issue search
authorizations and could reveal investigative techniques and procedures.
(J) From subsection (f) because portions of this system of records
have been exempted from the access provisions of subsection (d).
(K) From subsection (g) because portions of this system of records
are compiled for law enforcement purposes and have been exempted from
the access provisions of subsections (d) and (f).
(21) System identifier: A0340-21 OAA.
(i) System name: Privacy Case Files.
(ii) Exemption: During the processing of a Privacy Act request
(which may include access requests, amendment requests, and requests for
review for initial denials of such requests), exempt materials from
other systems of records may in turn become part of the case record in
this system. To the extent that copies of exempt records from those
[[Page 57]]
`other' systems of records are entered into this system, the Department
of the Army hereby claims the same exemptions.
(iii) Authority: 5 U.S.C. 552a(j)(2), and (k)(1) through (k)(7).
(iv) Records are only exempt from pertinent provisions of 5 U.S.C.
552a to the extent such provisions have been identified and an exemption
claimed for the original record and the purposes underlying the
exemption for the original record still pertain to the record which is
now contained in this system of records. In general, the exemptions were
claimed in order to protect properly classified information relating to
national defense and foreign policy, to avoid interference during the
conduct of criminal, civil, or administrative actions or investigations,
to ensure protective services provided to the President and others are
not compromised, to protect records used solely as statistical records,
to protect the identity of confidential sources incident to Federal
employment, military service, contract, and security clearance
determinations, and to preserve the confidentiality and integrity of
Federal evaluation materials. The exemption rule for the original
records will identify the specific reasons why the records may be exempt
from specific provisions of 5 U.S.C. 552a.
(22) System identifier: A0351-12 DAPE.
(i) System name: Applicants/Students, U.S. Military Academy Prep
School.
(ii) Exemption: (A) Investigatory material compiled solely for the
purpose of determining suitability, eligibility, or qualifications for
federal civilian employment, military service, federal contracts, or
access to classified information may be exempt pursuant to 5 U.S.C.
552a(k)(5), but only to the extent that such material would reveal the
identity of a confidential source.
(B) Evaluation material used to determine potential for promotion in
the Military Services may be exempt pursuant to 5 U.S.C. 552a(k)(7), but
only to the extent that the disclosure of such material would reveal the
identity of a confidential source.
(C) It is imperative that the confidential nature of evaluation
material on individuals, furnished to the U.S. Military Academy
Preparatory School under an express promise of confidentiality, be
maintained to ensure the candid presentation of information necessary in
determinations involving admission to or retention at the United States
Military Academy and suitability for commissioned military service.
(D) Therefore, portions of this system of records may be exempt
pursuant to 5 U.S.C. 552a(k)(5) and (k)(7) subsections 5 U.S.C.
552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and (f).
(iii) Authority: 5 U.S.C. 552a(k)(5) and (k)(7).
(iv) Reasons: (A) From subsections (c)(3) because the release of the
disclosure accounting would permit the subject of a criminal
investigation or matter under investigation to obtain valuable
information concerning the nature of that investigation which will
present a serious impediment to law enforcement.
(B) From subsection (d), because access to the records contained in
this system would inform the subject of a criminal investigation of the
existence of that investigation, provide the subject of the
investigation with information that might enable him to avoid detection
or apprehension, and would present a serious impediment to law
enforcement.
(C) From subsection (e)(1) because in the course of criminal
investigations, information is often obtained concerning the violation
of laws or civil obligations of others not relating to an active case or
matter. In the interests of effective law enforcement, it is necessary
that this valuable information be retained since it can aid in
establishing patterns of activity and provide valuable leads for other
agencies and future cases that may be brought.
(D) From subsections (e)(4)(G) and (e)(4)(H) because portions of
this system of records have been exempted from the access provisions of
subsection (d), making these subsections not applicable.
(E) From subsection (e)(4)(I) because the identity of specific
sources must be withheld in order to protect the confidentiality of the
sources of criminal and other law enforcement information. This
exemption is further necessary to protect the privacy and physical
safety of witnesses and informants.
(F) From subsection (f) because portions of this system of records
have been exempted from the access provisions of subsection (d).
(23) System identifier: A0351-17a USMA.
(i) System name: U.S. Military Academy Candidate Files.
(ii) Exemption: (A) Investigatory material compiled solely for the
purpose of determining suitability, eligibility, or qualifications for
federal civilian employment, military service, federal contracts, or
access to classified information may be exempt pursuant to 5 U.S.C.
552a(k)(5), but only to the extent that such material would reveal the
identity of a confidential source.
(B) Testing or examination material used solely to determine
individual qualifications for appointment or promotion in the Federal
service may be exempt pursuant to 5 U.S.C. 552a(k)(6), if the disclosure
would compromise the objectivity or fairness of the test or examination
process.
(C) Evaluation material used to determine potential for promotion in
the Military Services may be exempt pursuant to 5 U.S.C. 552a(k)(7), but
only to the extent that the disclosure of such material would reveal the
identity of a confidential source.
(D) Therefore, portions of this system of records may be exempt
pursuant to 5 U.S.C.
[[Page 58]]
552a(k)(5), (k)(6) or (k)(7) from subsections 5 U.S.C. 552a(c)(3), (d),
(e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and (f).
(iii) Authority: 5 U.S.C. 552a(k)(5), (k)(6) and (k)(7).
(iv) Reasons: (A) From subsections (c)(3) because the release of the
disclosure accounting would permit the subject of a criminal
investigation or matter under investigation to obtain valuable
information concerning the nature of that investigation which will
present a serious impediment to law enforcement.
(B) From subsection (d), because access to the records contained in
this system would inform the subject of a criminal investigation of the
existence of that investigation, provide the subject of the
investigation with information that might enable him to avoid detection
or apprehension, and would present a serious impediment to law
enforcement.
(C) From subsection (e)(1) because in the course of criminal
investigations, information is often obtained concerning the violation
of laws or civil obligations of others not relating to an active case or
matter. In the interests of effective law enforcement, it is necessary
that this valuable information be retained since it can aid in
establishing patterns of activity and provide valuable leads for other
agencies and future cases that may be brought.
(D) From subsections (e)(4)(G) and (e)(4)(H) because portions of
this system of records have been exempted from the access provisions of
subsection (d), making these subsections not applicable.
(E) From subsection (e)(4)(I) because the identity of specific
sources must be withheld in order to protect the confidentiality of the
sources of criminal and other law enforcement information. This
exemption is further necessary to protect the privacy and physical
safety of witnesses and informants.
(F) From subsection (f) because portions of this system of records
have been exempted from the access provisions of subsection (d).
(24) System identifier: A0351-17b USMA.
(i) System name: U.S. Military Academy Management System Records.
(ii) Exemption: (A) Investigatory material compiled solely for the
purpose of determining suitability, eligibility, or qualifications for
federal civilian employment, military service, federal contracts, or
access to classified information may be exempt pursuant to 5 U.S.C.
552a(k)(5), but only to the extent that such material would reveal the
identity of a confidential source.
(B) Evaluation material used to determine potential for promotion in
the Military Services may be exempt pursuant to 5 U.S.C. 552a(k)(7), but
only to the extent that the disclosure of such material would reveal the
identity of a confidential source.
(C) It is imperative that the confidential nature of evaluation and
investigatory material on candidates, cadets, and graduates, furnished
to the United States Military Academy under a promise of confidentiality
be maintained to ensure the candid presentation of information necessary
in determinations involving admissions to the Military Academy and
suitability for commissioned service and future promotion.
(D) Therefore, portions of this system of records may be exempt
pursuant to 5 U.S.C. 552a(k)(5) or (k)(7) from subsections 5 U.S.C.
552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and (f).
(iii) Authority: 5 U.S.C. 552a(k)(5) and (k)(7).
(iv) Reasons: (A) From subsections (c)(3) because the release of the
disclosure accounting would permit the subject of a criminal
investigation or matter under investigation to obtain valuable
information concerning the nature of that investigation which will
present a serious impediment to law enforcement.
(B) From subsection (d), because access to the records contained in
this system would inform the subject of a criminal investigation of the
existence of that investigation, provide the subject of the
investigation with information that might enable him to avoid detection
or apprehension, and would present a serious impediment to law
enforcement.
(C) From subsection (e)(1) because in the course of criminal
investigations, information is often obtained concerning the violation
of laws or civil obligations of others not relating to an active case or
matter. In the interests of effective law enforcement, it is necessary
that this valuable information be retained since it can aid in
establishing patterns of activity and provide valuable leads for other
agencies and future cases that may be brought.
(D) From subsections (e)(4)(G) and (e)(4)(H) because portions of
this system of records have been exempted from the access provisions of
subsection (d), making these subsections not applicable.
(E) From subsection (e)(4)(I) because the identity of specific
sources must be withheld in order to protect the confidentiality of the
sources of criminal and other law enforcement information. This
exemption is further necessary to protect the privacy and physical
safety of witnesses and informants.
(F) From subsection (f) because portions of this system of records
have been exempted from the access provisions of subsection (d).
(25) System identifier: A0380-67 DAMI.
(i) System name: Personnel Security Clearance Information Files.
(ii) Exemption: (A) Information specifically authorized to be
classified under E.O. 12958, as implemented by DoD 5200.1-R, may be
exempt pursuant to 5 U.S.C. 552a(k)(1).
(B) Investigatory material compiled for law enforcement purposes,
other than material within the scope of subsection 5 U.S.C.
[[Page 59]]
552a(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if
an individual is denied any right, privilege, or benefit for which he
would otherwise be entitled by Federal law or for which he would
otherwise be eligible, as a result of the maintenance of such
information, the individual will be provided access to such information
except to the extent that disclosure would reveal the identity of a
confidential source.
(C) Investigatory material compiled solely for the purpose of
determining suitability, eligibility, or qualifications for federal
civilian employment, military service, federal contracts, or access to
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5),
but only to the extent that such material would reveal the identity of a
confidential source.
(D) Therefore, portions of this system of records may be exempt
pursuant to 5 U.S.C. 552a(k)(1), (k)(2), or (k)(5) from subsections 5
U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I) and (f).
(iii) Authority: 5 U.S.C. 552a(k)(1), (k)(2), or (k)(5).
(iv) Reasons: From subsection (c)(3) because the release of the
disclosure accounting would permit the subject of a criminal
investigation or matter under investigation to obtain valuable
information concerning the nature of that investigation which will
present a serious impediment to law enforcement.
(B) From subsection (d), because access to the records contained in
this system would inform the subject of a criminal investigation of the
existence of that investigation, provide the subject of the
investigation with information that might enable him to avoid detection
or apprehension, and would present a serious impediment to law
enforcement.
(C) From subsection (e)(1) because in the course of criminal
investigations, information is often obtained concerning the violation
of laws or civil obligations of others not relating to an active case or
matter. In the interests of effective law enforcement, it is necessary
that this valuable information be retained since it can aid in
establishing patterns of activity and provide valuable leads for other
agencies and future cases that may be brought.
(D) From subsections (e)(4)(G) and (e)(4)(H) because portions of
this system of records have been exempted from the access provisions of
subsection (d), making these subsections not applicable.
(E) From subsection (e)(4)(I) because the identity of specific
sources must be withheld in order to protect the confidentiality of the
sources of criminal and other law enforcement information. This
exemption is further necessary to protect the privacy and physical
safety of witnesses and informants.
(F) From subsection (f) because portions of this system of records
have been exempted from the access provisions of subsection (d).
(26) System identifier: A0381-20b DAMI.
(i) System name: Foreign Intelligence/Counterintelligence/
Information Operations/Security Files
(ii) Exemption: (A) Information specifically authorized to be
classified under E.O. 12958, as implemented by DoD 5200.1-R, may be
exempt pursuant to 5 U.S.C. 552a(k)(1).
(B) Investigatory material compiled for law enforcement purposes,
other than material within the scope of subsection 5 U.S.C. 552a(j)(2),
may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual
is denied any right, privilege, or benefit for which he would otherwise
be entitled by Federal law or for which he would otherwise be eligible,
as a result of the maintenance of such information, the individual will
be provided access to such information except to the extent that
disclosure would reveal the identity of a confidential source.
(C) Investigatory material compiled solely for the purpose of
determining suitability, eligibility, or qualifications for federal
civilian employment, military service, federal contracts, or access to
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5),
but only to the extent that such material would reveal the identity of a
confidential source.
(D) Therefore, portions of this system of records may be exempt
pursuant to 5 U.S.C. 552a(k)(1), (k)(2) and (k)(5) from subsections 5
U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and
(f).
(E) To the extent that copies of exempt records from external
systems of records are entered into A0381-10b DAMI, the Army hereby
claims the same exemptions for those records as claimed for the original
primary system of which they are a part.
(iii) Authority: 5 U.S.C. 552a(j)(2), and (k)(1) through (k)(7).
(iv) Reasons: (A) From subsection (c)(3) because the release of the
disclosure accounting would permit the subject of a criminal
investigation or matter under investigation to obtain valuable
information concerning the nature of that investigation which will
present a serious impediment to law enforcement.
(B) From subsection (d), because access to the records contained in
this system would inform the subject of a criminal investigation of the
existence of that investigation, provide the subject of the
investigation with information that might enable him to avoid detection
or apprehension, and would present a serious impediment to law
enforcement.
(C) From subsection (e)(1) because in the course of criminal
investigations, information is often obtained concerning the violation
of laws or civil obligations of others not relating to an active case or
matter. In the
[[Page 60]]
interests of effective law enforcement, it is necessary that this
valuable information be retained since it can aid in establishing
patterns of activity and provide valuable leads for other agencies and
future cases that may be brought.
(D) From subsections (e)(4)(G) and (e)(4)(H) because portions of
this system of records have been exempted from the access provisions of
subsection (d), making these subsections not applicable.
(E) From subsection (e)(4)(I) because the identity of specific
sources must be withheld in order to protect the confidentiality of the
sources of criminal and other law enforcement information. This
exemption is further necessary to protect the privacy and physical
safety of witnesses and informants.
(F) From subsection (f) because portions of this system of records
have been exempted from the access provisions of subsection (d).
(G) For records that are copies of exempt records from external
systems of records, such records are only exempt from pertinent
provisions of 5 U.S.C. 552a to the extent such provisions have been
identified and an exemption claimed for the original record and the
purposes underlying the exemption for the original record still pertain
to the record which is now contained in this system of records. In
general, the exemptions were claimed in order to protect properly
classified information relating to national defense and foreign policy,
to avoid interference during the conduct of criminal, civil, or
administrative actions or investigations, to ensure protective services
provided to the President and others are not compromised, to protect
records used solely as statistical records, to protect the identity of
confidential sources incident to Federal employment, military service,
contract, and security clearance determinations, to preserve the
confidentiality and integrity of Federal testing materials, and to
safeguard evaluation materials used for military promotions when
furnished by a confidential source. The exemption rule for the original
records will identify the specific reasons why the records are exempt
from specific provisions of 5 U.S.C. 552a.
(27) System identifier: A0381-100a DAMI.
(i) System name: Intelligence/Counterintelligence Source Files.
(ii) Exemption: (A) Information specifically authorized to be
classified under E.O. 12958, as implemented by DoD 5200.1-R, may be
exempt pursuant to 5 U.S.C. 552a(k)(1).
(B) Investigatory material compiled for law enforcement purposes,
other than material within the scope of subsection 5 U.S.C. 552a(j)(2),
may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual
is denied any right, privilege, or benefit for which he would otherwise
be entitled by Federal law or for which he would otherwise be eligible,
as a result of the maintenance of such information, the individual will
be provided access to such information except to the extent that
disclosure would reveal the identity of a confidential source.
(C) Investigatory material compiled solely for the purpose of
determining suitability, eligibility, or qualifications for federal
civilian employment, military service, federal contracts, or access to
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5),
but only to the extent that such material would reveal the identity of a
confidential source.
(D) Therefore, portions of this system of records may be exempt
pursuant to 5 U.S.C. 552a(k)(1), (k)(2), or (k)(5) from subsections 5
U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and
(f).
(iii) Authority: 5 U.S.C. 552a(k)(1), (k)(2), and (k)(5).
(iv) Reasons: (A) From subsection (c)(3) because the release of the
disclosure accounting would permit the subject of a criminal
investigation or matter under investigation to obtain valuable
information concerning the nature of that investigation which will
present a serious impediment to law enforcement.
(B) From subsection (d), because access to the records contained in
this system would inform the subject of a criminal investigation of the
existence of that investigation, provide the subject of the
investigation with information that might enable him to avoid detection
or apprehension, and would present a serious impediment to law
enforcement.
(C) From subsection (e)(1) because in the course of criminal
investigations, information is often obtained concerning the violation
of laws or civil obligations of others not relating to an active case or
matter. In the interests of effective law enforcement, it is necessary
that this valuable information be retained since it can aid in
establishing patterns of activity and provide valuable leads for other
agencies and future cases that may be brought.
(D) From subsections (e)(4)(G) and (e)(4)(H) because portions of
this system of records have been exempted from the access provisions of
subsection (d), making these subsections not applicable.
(E) From subsection (e)(4)(I) because the identity of specific
sources must be withheld in order to protect the confidentiality of the
sources of criminal and other law enforcement information. This
exemption is further necessary to protect the privacy and physical
safety of witnesses and informants.
(F) From subsection (f) because portions of this system of records
have been exempted from the access provisions of subsection (d).
(28) System identifier: A0381-100b DAMI.
(i) System name: Technical Surveillance Index.
(ii) Exemption: (A) Information specifically authorized to be
classified under E.O.
[[Page 61]]
12958, as implemented by DoD 5200.1-R, may be exempt pursuant to 5
U.S.C. 552a(k)(1).
(B) Investigatory material compiled for law enforcement purposes,
other than material within the scope of subsection 5 U.S.C. 552a(j)(2),
may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual
is denied any right, privilege, or benefit for which he would otherwise
be entitled by Federal law or for which he would otherwise be eligible,
as a result of the maintenance of such information, the individual will
be provided access to such information except to the extent that
disclosure would reveal the identity of a confidential source.
(C) Investigatory material compiled solely for the purpose of
determining suitability, eligibility, or qualifications for federal
civilian employment, military service, federal contracts, or access to
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5),
but only to the extent that such material would reveal the identity of a
confidential source.
(D) Therefore, portions of this system of records may be exempt
pursuant to 5 U.S.C. 552a(k)(1), (k)(2), or (k)(5) from subsections 5
U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and
(f).
(iii) Authority: 5 U.S.C. 552a(k)(1), (k)(2) or (k)(5).
(iv) Reasons: (A) From subsection (c)(3) because the release of the
disclosure accounting would permit the subject of a criminal
investigation or matter under investigation to obtain valuable
information concerning the nature of that investigation which will
present a serious impediment to law enforcement.
(B) From subsection (d), because access to the records contained in
this system would inform the subject of a criminal investigation of the
existence of that investigation, provide the subject of the
investigation with information that might enable him to avoid detection
or apprehension, and would present a serious impediment to law
enforcement.
(C) From subsection (e)(1) because in the course of criminal
investigations, information is often obtained concerning the violation
of laws or civil obligations of others not relating to an active case or
matter. In the interests of effective law enforcement, it is necessary
that this valuable information be retained since it can aid in
establishing patterns of activity and provide valuable leads for other
agencies and future cases that may be brought.
(D) From subsections (e)(4)(G) and (e)(4)(H) because portions of
this system of records have been exempted from the access provisions of
subsection (d), making these subsections not applicable.
(E) From subsection (e)(4)(I) because the identity of specific
sources must be withheld in order to protect the confidentiality of the
sources of criminal and other law enforcement information. This
exemption is further necessary to protect the privacy and physical
safety of witnesses and informants.
(F) From subsection (f) because portions of this system of records
have been exempted from the access provisions of subsection (d).
(29) System identifier: A0600-20 DCSG-1.
(i) System name: Sexual Assault (SADMS) and Sexual Harassment
(SHARP) Program Records.
(ii) Exemptions: This system of records is a compilation of
information from other Department of Defense/Army systems of records. To
the extent that copies of exempt records from those other systems of
records are entered into this system of records, the Army G-1 hereby
claims the same exemptions for the records from those other systems.
(iii) Authority: 5 U.S.C. 552a(j)(2), and (k)(1) through (k)(7).
(iv) Reasons: Records are only exempt from pertinent provisions of 5
U.S.C. 552a to the extent such provisions have been identified and an
exemption claimed for the original record and the purposes underlying
the exemption for the original record still pertain to the record which
is now contained in this system of records. In general, the exemptions
were claimed in order to protect properly classified information
relating to national defense and foreign policy, to avoid interference
during the conduct of criminal, civil, or administrative actions or
investigations, to ensure protective services provided to the President
and others are not compromised, to protect records used solely as
statistical records, to protect the identity of confidential sources
incident to Federal employment, military service, contract, and security
clearance determinations, to preserve the confidentiality and integrity
of Federal testing materials, and to safeguard evaluation materials used
for military promotions when furnished by a confidential source. The
exemption rule for the original records will identify the specific
reasons why the records may be exempt from specific provisions of 5
U.S.C. 552a.
(30) System identifier: A0601-141 DASG.
(i) System name: Applications for Appointment to Army Medical
Department.
(ii) Exemption: Investigatory material compiled solely for the
purpose of determining suitability, eligibility, or qualifications for
federal civilian employment, military service, federal contracts, or
access to classified information may be exempt pursuant to 5 U.S.C.
552a(k)(5), but only to the extent that such material would reveal the
identity of a confidential source. Therefore, portions of the system of
records may be exempt pursuant to 5 U.S.C. 552(a)(k)(5) from subsections
5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and
(f).
(iii) Authority: 5 U.S.C. 552a(k)(5).
[[Page 62]]
(iv) Reasons: (A) From subsection (c)(3) because the release of the
disclosure accounting would permit the subject of a criminal
investigation or matter under investigation to obtain valuable
information concerning the nature of that investigation which will
present a serious impediment to law enforcement.
(B) From subsection (d), because access to the records contained in
this system would inform the subject of a criminal investigation of the
existence of that investigation, provide the subject of the
investigation with information that might enable him to avoid detection
or apprehension, and would present a serious impediment to law
enforcement.
(C) From subsection (e)(1) because in the course of criminal
investigations, information is often obtained concerning the violation
of laws or civil obligations of others not relating to an active case or
matter. In the interests of effective law enforcement, it is necessary
that this valuable information be retained since it can aid in
establishing patterns of activity and provide valuable leads for other
agencies and future cases that may be brought.
(D) From subsections (e)(4)(G) and (e)(4)(H) because portions of
this system of records have been exempted from the access provisions of
subsection (d), making these subsections not applicable.
(E) From subsection (e)(4)(I) because the identity of specific
sources must be withheld in order to protect the confidentiality of the
sources of criminal and other law enforcement information. This
exemption is further necessary to protect the privacy and physical
safety of witnesses and informants.
(F) From subsection (f) because portions of this system of records
have been exempted from the access provisions of subsection (d).
(31) System identifier: A0601-210a USAREC.
(i) System name: Enlisted Eligibility Files.
(ii) Exemption: Investigatory material compiled solely for the
purpose of determining suitability, eligibility, or qualifications for
federal civilian employment, military service, federal contracts, or
access to classified information may be exempt pursuant to 5 U.S.C.
552a(k)(5), but only to the extent that such material would reveal the
identity of a confidential source. Therefore, portions of this system of
records may be exempt pursuant to 5 U.S.C. 552a(k)(5) from subsections 5
U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and
(f).
(iii) Authority: 5 U.S.C. 552a(k)(5).
(iv) Reasons: (A) From subsection (c)(3) because the release of the
disclosure accounting would permit the subject of a criminal
investigation or matter under investigation to obtain valuable
information concerning the nature of that investigation which will
present a serious impediment to law enforcement.
(B) From subsection (d), because access to the records contained in
this system would inform the subject of a criminal investigation of the
existence of that investigation, provide the subject of the
investigation with information that might enable him to avoid detection
or apprehension, and would present a serious impediment to law
enforcement.
(C) From subsection (e)(1) because in the course of criminal
investigations, information is often obtained concerning the violation
of laws or civil obligations of others not relating to an active case or
matter. In the interests of effective law enforcement, it is necessary
that this valuable information be retained since it can aid in
establishing patterns of activity and provide valuable leads for other
agencies and future cases that may be brought.
(D) From subsections (e)(4)(G) and (e)(4)(H) because portions of
this system of records have been exempted from the access provisions of
subsection (d), making these subsections not applicable.
(E) From subsection (e)(4)(I) because the identity of specific
sources must be withheld in order to protect the confidentiality of the
sources of criminal and other law enforcement information. This
exemption is further necessary to protect the privacy and physical
safety of witnesses and informants.
(F) From subsection (f) because portions of this system of records
have been exempted from the access provisions of subsection (d).
(32) System identifier: A0608-18 DASG.
(i) System name: Army Family Advocacy Program Files.
(ii) Exemptions: (A) Investigatory material compiled for law
enforcement purposes, other than material within the scope of subsection
5 U.S.C. 552a(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2).
However, if an individual is denied any right, privilege, or benefit for
which he would otherwise be entitled by Federal law or for which he
would otherwise be eligible, as a result of the maintenance of such
information, the individual will be provided access to such information
except to the extent that disclosure would reveal the identity of a
confidential source.
(B) Investigative material compiled solely for the purpose of
determining suitability, eligibility, or qualifications for federal
civilian employment, military service, federal contracts, or access to
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5),
but only to the extent that such material would reveal the identity of a
confidential source.
(C) Therefore, portions of the system of records may be exempt
pursuant to 5 U.S.C. 552a(k)(2) or (k)(5) from subsections 5 U.S.C.
552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I) and (f).
(iii) Authority: 5 U.S.C. 552a(k)(2) and (k)(5).
[[Page 63]]
(iv) Reason: (A) From subsection (c)(3) because the release of the
disclosure accounting would permit the subject of a criminal
investigation or matter under investigation to obtain valuable
information concerning the nature of that investigation which will
present a serious impediment to law enforcement.
(B) From subsection (d) because access to the records contained in
this system would inform the subject of a criminal investigation of the
existence of that investigation, provide the subject of the
investigation with information that might enable him to avoid detection
or apprehension, and would present a serious impediment to law
enforcement.
(C) From subsection (e)(1) because in the course of criminal
investigations, information is often obtained concerning the violation
of laws or civil obligations of others not relating to an active case or
matter. In the interests of effective law enforcement, it is necessary
that this valuable information be retained since it can aid in
establishing patterns of activity and provide valuable leads for other
agencies and future cases that may be brought.
(D) From subsections (e)(4)(G) and (e)(4)(H) because the
requirements in those subsections are inapplicable to the extent that
portions of this system of records may be exempt from subsection (d),
concerning individual access.
(E) From subsection (e)(4)(I) because the identity of specific
sources must be withheld in order to protect the confidentiality of the
sources of criminal and other law enforcement information. This
exemption is further necessary to protect the privacy and physical
safety of witnesses and informants.
(F) From subsection (f) because portions of this system of records
have been exempted from the access provisions of subsection (d).
(33) System identifier: A0614-115 DAMI.
(i) System name: Department of the Army Operational Support
Activities.
(ii) Exemption: (A) Information specifically authorized to be
classified under E.O. 12958, as implemented by DoD 5200.1-R, may be
exempt pursuant to 5 U.S.C. 552a(k)(1).
(B) Investigatory material compiled for law enforcement purposes,
other than material within the scope of subsection 5 U.S.C. 552a(j)(2),
may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual
is denied any right, privilege, or benefit for which he would otherwise
be entitled by Federal law or for which he would otherwise be eligible,
as a result of the maintenance of such information, the individual will
be provided access to such information except to the extent that
disclosure would reveal the identity of a confidential source.
(C) Investigatory material compiled solely for the purpose of
determining suitability, eligibility, or qualifications for federal
civilian employment, military service, federal contracts, or access to
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5),
but only to the extent that such material would reveal the identity of a
confidential source.
(D) Therefore, portions of this system of records may be exempt
pursuant to 5 U.S.C. 552a(k)(1), (k)(2), or (k)(5) from subsections 5
U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I) and (f).
(iii) Authority: 5 U.S.C. 552a(k)(1), (k)(2), and (k)(5).
(iv) Reasons: (A) From subsection (c)(3) because the release of the
disclosure accounting would permit the subject of a criminal
investigation or matter under investigation to obtain valuable
information concerning the nature of that investigation which will
present a serious impediment to law enforcement.
(B) From subsection (d), because access to the records contained in
this system would inform the subject of a criminal investigation of the
existence of that investigation, provide the subject of the
investigation with information that might enable him to avoid detection
or apprehension, and would present a serious impediment to law
enforcement.
(C) From subsection (e)(1) because in the course of criminal
investigations, information is often obtained concerning the violation
of laws or civil obligations of others not relating to an active case or
matter. In the interests of effective law enforcement, it is necessary
that this valuable information be retained since it can aid in
establishing patterns of activity and provide valuable leads for other
agencies and future cases that may be brought.
(D) From subsections (e)(4)(G) and (e)(4)(H) because portions of
this system of records have been exempted from the access provisions of
subsection (d), making these subsections not applicable.
(E) From subsection (e)(4)(I) because the identity of specific
sources must be withheld in order to protect the confidentiality of the
sources of criminal and other law enforcement information. This
exemption is further necessary to protect the privacy and physical
safety of witnesses and informants.
(F) From subsection (f) because portions of this system of records
have been exempted from the access provisions of subsection (d).
(34) System identifier: A0025-2 PMG (DFBA) DoD
(i) System name: Defense Biometrics Identification Records System
(ii) Exemptions: (A) Investigatory material compiled for law
enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2).
However, if an individual is denied any right, privilege, or benefit for
which he would otherwise be entitled by Federal law or for which he
would otherwise be eligible, as a result of the maintenance of such
information, the individual will be provided access to such
[[Page 64]]
information except to the extent that disclosure would reveal the
identity of a confidential source.
(B) Exempt materials from other sources listed above may become part
of the case records in this system of records. To the extent that copies
of exempt records from other sources listed above are entered into these
case records, the Department of the Army hereby claims the same
exemptions, (j)(2) and (k)(2), for the records as claimed by the source
systems, specifically to the extent that copies of exempt records may
become part of these records from JUSTICE/FBI-019 Terrorist Screening
Records System, the Department of the Army hereby claims the same
exemptions for the records as claimed at their source (JUSTICE/FBI-019,
Terrorist Screening Records System).
(C) Therefore, portions of this system of records may be exempt
pursuant to 5 U.S.C. 552a(j)(2) and (k)(2) from subsections 5 U.S.C.
552a(c)(3), (c)(4), (d), (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H),
(e)(4)(I), (e)(5), (e)(8), (f), and (g).
(iii) Authority: 5 U.S.C. 552a(j)(2) and(k)(2).
(iv) Reasons: (A) From subsection (c)(3) because the release of the
disclosure accounting would permit the subject of a criminal
investigation or matter under investigation to obtain valuable
information concerning the nature of that investigation which will
present a serious impediment to law enforcement.
(B) From subsection (c)(4) because an exemption is being claimed for
subsection (d), making this subsection not applicable.
(C) From subsection (d) because access to such records contained in
this system would inform the subject of a criminal investigation of the
existence of that investigation, provide the subject of the
investigation with information that might enable him to avoid detection
or apprehension, and would present a serious impediment to law
enforcement.
(D) From subsection (e)(1) because the nature of the criminal and/or
civil investigative function creates unique problems in prescribing a
specific parameter in a particular case with respect to what information
is relevant or necessary. Also, information may be received which may
relate to a case under the investigative jurisdiction of another agency.
The maintenance of this information may be necessary to provide leads
for appropriate law enforcement purposes and to establish patterns of
activity that may relate to the jurisdiction of other cooperating
agencies.
(E) From subsection (e)(2) because in a criminal investigation, the
requirement that information be collected to the greatest extent
possible from the subject individual would present a serious impediment
to law enforcement in that the subject of the investigation would be
placed on notice of the existence of the investigation and would
therefore be able to avoid detection.
(F) From subsection (e)(3) because the requirement that individuals
supplying information be provided with a form stating the requirements
of subsection (e)(3) would constitute a serious impediment to law
enforcement in that it could compromise the existence of a confidential
investigation, reveal the identity of confidential sources of
information and endanger the life and physical safety of confidential
informants.
(G) From subsections (e)(4)(G) and (e)(4)(H) because the
requirements in those subsections are inapplicable to the extent that
portions of this system of records may be exempt from subsection (d),
concerning individual access.
(H) From subsection (e)(4)(I) because the identity of specific
sources must be withheld in order to protect the confidentiality of the
sources of criminal and other law enforcement information. This
exemption is further necessary to protect the privacy and physical
safety of witnesses and informants.
(I) From subsection (e)(5) because in the collection of information
for law enforcement purposes, it is impossible to determine in advance
what information is accurate, relevant, timely, and complete. With the
passage of time, seemingly irrelevant or untimely information may
acquire new significance as further investigation brings new details to
light and the accuracy of such information can only be determined in a
court of law. The restrictions of subsection (e)(5) would restrict the
ability of trained investigators and intelligence analysts to exercise
their judgment in reporting on investigations and impede the development
of intelligence necessary for effective law enforcement.
(J) From subsection (e)(8) because the individual notice
requirements of subsection (e)(8) could present a serious impediment to
law enforcement as this could interfere with the ability to issue search
authorizations and could reveal investigative techniques and procedures.
(K) From subsection (f) because portions of this system of records
have been exempted from the access provisions of subsection (d).
(L) From subsection (g) because portions of this system of records
are compiled for law enforcement purposes and have been exempted from
the access provisions of subsections (d) and (f).
(35) System identifier: A0600-20 SAMR.
(i) System name: Soldiers Equal Opportunity Investigative Files.
(ii) Exemptions: Investigatory material compiled for law enforcement
purposes, other than material within the scope of subsection 5 U.S.C.
552a(j)(2), is exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an
individual is denied any right, privilege, or benefit for which he would
otherwise be entitled
[[Page 65]]
by Federal law or for which he would otherwise be eligible, as a result
of the maintenance of such information, such material shall be provided
to the individual, except to the extent that disclosure would reveal the
identity of a confidential source. Therefore, portions of this system of
records may be exempt pursuant to 5 U.S.C. 552a(k)(2) from subsections 5
U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I), and
(f).
(iii) Authority: 5 U.S.C. 552a(k)(2).
(iv) Reasons: (A) From subsection (c)(3) because the release of the
disclosure accounting would permit the subject of a criminal
investigation or other investigation conducted for law enforcement
purposes to obtain valuable information concerning the nature of that
investigation which will present a serious impediment to law
enforcement.
(B) From subsection (d) because access to such records contained in
this system would inform the subject of a criminal investigation or
other investigation conducted for law enforcement purposes, of the
existence of that investigation, provide the subject of the
investigation with information that might enable him to avoid detection
or apprehension, and would present a serious impediment to law
enforcement.
(C) From subsection (e)(1) because in the course of criminal
investigations or other law enforcement investigations, information is
often obtained concerning the violations of laws or civil obligations of
others not relating to an active case or matter. In the interests of
effective law enforcement, it is necessary that this valuable
information is retained because it can aid in establishing patterns of
activity and provide valuable leads for other agencies and future cases
that may be brought.
(D) From subsections (e)(4)(G) and (e)(4)(H) because the
requirements in those subsections are inapplicable to the extent that
portions of this system of records may be exempted from subsection (d),
concerning individual access.
(E) From subsection (e)(4)(I) because the identity of specific
sources must be withheld to protect the confidentiality of the sources
of criminal and other law enforcement information. This exemption is
further necessary to protect the privacy and physical safety of
witnesses and informants.
(F) From subsection (f) because portions of this system of records
have been exempted from the access provisions of subsection (d).
(G) For records that are copies of exempt records from external
systems of records, such records are only exempt from pertinent
provisions of 5 U.S.C. 552a to the extent such provisions have been
identified and an exemption claimed for the original record and the
purposes underlying the exemption for the original record still pertain
to the record that is now contained in this system of records. In
general, the exemptions were claimed to properly protect classified
information relating to national defense and foreign policy; to avoid
interference during the conduct of criminal, civil, or administrative
actions or investigations; to ensure protective services provided to the
President and others are not compromised; to protect records used solely
as statistical records; to protect the identity of confidential sources
incident to Federal employment, military service, contract, and security
clearance determinations; to preserve the confidentiality and integrity
of Federal testing materials; and to safeguard evaluation materials used
for military promotions when provided by a confidential source. The
exemption rule for the original records will identify the specific
reasons the records are exempt from specific provisions of 5 U.S.C.
552a.
(h) Exempt OPM records. Three Office of Personnel Management systems
of records apply to Army employees, except for non-appropriated fund
employees. These systems, the specific exemptions determined to be
necessary and proper, the records exempted, provisions of the Privacy
Act from which exempt, and justification are set forth below:
(1) Personnel Investigations Records (OPM/CENTRAL-9).
(i) Exemptions: (A) Information specifically authorized to be
classified under E.O. 12958, as implemented by DoD 5200.1-R, may be
exempt pursuant to 5 U.S.C. 552a(k)(1).
(B) Investigatory material compiled for law enforcement purposes,
other than material within the scope of subsection 5 U.S.C. 552a(j)(2),
may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual
is denied any right, privilege, or benefit for which he would otherwise
be entitled by Federal law or for which he would otherwise be eligible,
as a result of the maintenance of such information, the individual will
be provided access to such information except to the extent that
disclosure would reveal the identity of a confidential source.
(C) Records maintained in connection with providing protective
services to the President of the United States or other individuals
pursuant to Title 18 U.S.C., section 3056 may be exempt pursuant to 5
U.S.C. 552a(k)(3).
(D) Investigatory material compiled solely for the purpose of
determining suitability, eligibility, or qualifications for federal
civilian employment, military service, federal contracts, or access to
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5),
but only to the extent that such material would reveal the identity of a
confidential source.
(E) Testing or examination material used solely to determine
individual qualifications for appointment or promotion in the Federal
service may be exempt pursuant to 5 U.S.C.
[[Page 66]]
552a(k)(6), if the disclosure would compromise the objectivity or
fairness of the test or examination process.
(F) Evaluation material used to determine potential for promotion in
the Military Services may be exempt pursuant to 5 U.S.C. 552a(k)(7), but
only to the extent that the disclosure of such material would reveal the
identity of a confidential source.
(G) Therefore, portions of this system of records may be exempt
pursuant to 5 U.S.C. 552a(k)(1), (k)(2), (k)(3), (k)(5), (k)(6), or
(k)(7) from subsections 5 U.S.C. 552a(c)(3) and (d).
(ii) Reasons: (A) Personnel investigations may obtain from another
Federal agency, properly classified information which pertains to
national defense and foreign policy. Application of exemption (k)(1) may
be necessary to preclude the data subject's access to an amendment of
such classified information under 5 U.S.C. 552a(d) in order to protect
such information.
(B) Personnel investigations may contain investigatory material
compiled for law enforcement purposes other than material within the
scope of 5 U.S.C. 552a(j)(2), e.g., investigations into the
administration of the merit system. Application of exemption (k)(2) may
be necessary to preclude the data subject's access to or amendment of
such records, under 552a(c)(3) and (d) because otherwise, it would
inform the subject of a criminal investigation of the existence of that
investigation, provide the subject of the investigation with information
that might enable him to avoid detection or apprehension, and would
present a serious impediment to law enforcement.
(C) Personnel investigations may obtain from another Federal agency,
information that relates to providing protective services to the
President of the United States or other individuals pursuant to section
3056 of title 18. Application of exemption (k)(3) may be necessary to
preclude the data subject's access to or amendment of such records under
5 U.S.C. 552a(d) to ensure protective services provided to the President
and others are not compromised.
(D) All information about individuals in these records that meets
the criteria stated in 5 U.S.C. 552a(k)(5) is exempt from the
requirements of 5 U.S.C. 552a(c)(3) and (d) in order to protect the
identity of confidential sources incident to determinations of
suitability, eligibility, or qualifications for Federal employment,
military service, contract, and security clearance determinations.
(E) All material and information in the records that meets the
criteria stated in 5 U.S.C. 552a(k)(6) is exempt from the requirements
of 5 U.S.C. 552a(d), relating to access to and amendment of records by
the data subject in order to preserve the confidentiality and integrity
of Federal testing materials.
(F) All material and information in the records that meets the
criteria stated in 5 U.S.C. 552a(k)(7) is exempt from the requirements
of 5 U.S.C. 552a(d), relating to access to and amendment of records by
the data subject in order to safeguard evaluation materials used for
military promotions when furnished by a confidential source.
(2) Recruiting, Examining, and Placement Records (OPM/GOVT-5).
(i) Exemptions: (A) Investigatory material compiled solely for the
purpose of determining suitability, eligibility, or qualifications for
federal civilian employment, military service, federal contracts, or
access to classified information may be exempt pursuant to 5 U.S.C.
552a(k)(5), but only to the extent that such material would reveal the
identity of a confidential source.
(B) Testing or examination material used solely to determine
individual qualifications for appointment or promotion in the Federal
service may be exempt pursuant to 5 U.S.C. 552a(k)(6), if the disclosure
would compromise the objectivity or fairness of the test or examination
process.
(C) Therefore, portions of this system of records may be exempt
pursuant to 5 U.S.C. 552a(k)(5), or (k)(6) from subsections 5 U.S.C.
552a(c)(3) and (d).
(ii) Reasons: (A) All information about individuals in these records
that meets the criteria stated in 5 U.S.C. 552a(k)(5) is exempt from the
requirements of 5 U.S.C. 552a(c)(3) and (d) in order to protect the
identity of confidential sources incident to determinations of
suitability, eligibility, or qualifications for Federal employment,
military service, contract, and security clearance determinations. These
exemptions are also claimed because this system contains investigative
material compiled solely for the purpose of determining the
appropriateness of a request for approval of an objection to an eligible
individual's qualification for employment in the Federal service.
(B) All material and information in these records that meets the
criteria stated in 5 U.S.C. 552a(k)(6) are exempt from the requirements
of 5 U.S.C. 552a(d), relating to access and amendment of records by the
subject, in order to preserve the confidentiality and integrity of
Federal testing materials.
(3) Personnel Research Test Validation Records (OPM/GOVT-6).
(i) Exemptions: Testing or examination material used solely to
determine individual qualifications for appointment or promotion in the
Federal service may be exempt pursuant to 5 U.S.C. 552a(k)(6), if the
disclosure would compromise the objectivity or fairness of the test or
examination process. Therefore, portions of this system of records may
be exempt pursuant to 5 U.S.C. 552a(k)(6) from subsections 5 U.S.C.
552a(d).
[[Page 67]]
(ii) Reasons: All material and information in these records that
meets the criteria stated in 5 U.S.C. 552a(k)(6) is exempt from the
requirements of 5 U.S.C. 552a(d), relating to access to an amendment of
the records by the data subject, in order to preserve the
confidentiality and integrity of Federal testing materials.
(i) Twelve Exceptions to the ``No Disclosure without Consent'' rule
of the Privacy Act.
(1) 5 U.S.C. 552a(b)(1)--To DoD officers and employees who have a
need for the record in the performance of their official duties. This is
the ``official need to know'' concept.
(2) 5 U.S.C. 552a(b)(2)--FOIA requires release of the information
pursuant to 5. U.S.C. 552.
(3) 5 U.S.C. 552a(b)(3)--For an authorized Routine Use, i.e. the
``Routine Use Exception.'' The Routine Use must be listed in the
applicable system of records notice published in the Federal Register
and the purpose of the disclosure must be compatible with the purpose
for the published Routine Use.
(4) 5 U.S.C. 552a(b)(4)--To the Bureau of the Census to plan or
carry out a census or survey, or related activity pursuant to Title 13
of the U.S. Code.
(5) 5 U.S.C. 552a(b)(5)--To a recipient who has provided the
Department of the Army or DoD with advance adequate written assurance
that the record will be used solely as a statistical research or
reporting record, and the record is to be transferred in a form that is
not individually identifiable.
(6) 5 U.S.C. 552a(b)(6)--To the National Archives and Records
Administration as a record that has sufficient historical or other value
to warrant its continued preservation by the U.S. Government, or for
evaluation by the Archivist of the United States or the designee of the
Archivist to determine whether the record has such value. Note: Records
transferred to the Federal Records Centers for storage remain under the
control of the Department of the Army and no accounting for disclosure
is required under the Privacy Act.
(7) 5 U.S.C. 552a(b)(7)--To another agency or instrumentality of any
governmental jurisdiction within or under the control of the United
States for a civil or criminal law enforcement activity, if the activity
is authorized by law, and if the head of the agency or instrumentality
has made a written request to the Department of the Army or DoD
specifying the particular portion desired and the law enforcement
activity for which the record is sought.
(8) 5 U.S.C. 552a(b)(8)--To a person pursuant to a showing of
compelling circumstances affecting the health or safety of an individual
if upon such disclosure, notification is transmitted to the last known
address of such individual.
(9) 5 U.S.C. 552a(b)(9)--To either House of Congress, or, to the
extent the matter is within its jurisdiction, any committee or
subcommittee thereof, or any joint committee of Congress or subcommittee
of any such joint committee. Requests from a Congressional member acting
on behalf of a constituent are not included in this exception, but may
be covered by a routine use exception to the Privacy Act (See applicable
Army system of records notice).
(10) 5 U.S.C. 552a(b)(10)--To the Comptroller General or authorized
representatives, in the course of the performance of the duties of the
Government Accountability Office.
(11) 5 U.S.C. 552a(b)(11)--Pursuant to the order of a court of
competent jurisdiction. The order must be signed by a judge.
(12) 5 U.S.C. 552a(b)(12)--To a consumer reporting agency in
accordance with section 3711(e) of Title 31 of the U.S. Code. The name,
address, SSN, and other information identifying the individual; amount,
status, and history of the claim; and the agency or program under which
the case arose may be disclosed. However, before doing so, agencies must
complete a series of steps designed to validate the debt and to offer
the individual an opportunity to repay it.
(j) DoD Blanket Routine Uses. In addition to specific routine uses
which are listed in the applicable Army system of records notices,
certain ``Blanket Routine Uses'' may apply to all DoD maintained systems
of records. These are listed on the Defense Privacy and Civil Liberties
Division's Web site http://dpcld.defense.gov/. These ``Blanket Routine
Uses'' are not specifically listed in each system of records notice as
the specific routine uses are. The current DoD ``Blanket Routine Uses''
are as follows--
(1) Law Enforcement Routine Use. If a system of records maintained
by a DoD component to carry out its functions indicates a violation or
potential violation of law, whether civil, criminal or regulatory in
nature, and whether arising by general statute or by regulation, rule,
or order issued pursuant thereto, the relevant records in the system of
records may be referred, as a routine use, to the agency concerned,
whether federal, state, local, or foreign, charged with the
responsibility of investigating or prosecuting such violation or charged
with enforcing or implementing the statute, rule, regulation or order
issued pursuant thereto.
(2) Disclosure When Requesting Information Routine Use. A record
from a system of records maintained by a DoD component may be disclosed
as a routine use to a federal, state, or local agency maintaining civil,
criminal, or other relevant enforcement information or other pertinent
information, such as current licenses, if necessary to obtain
information relevant to a DoD Component decision concerning the hiring
or
[[Page 68]]
retention of an employee, the issuance of a security clearance, the
letting of a contract, or the issuance of a license, grant or other
benefit.
(3) Disclosure of Requested Information Routine Use. A record from a
system of records maintained by a DoD component may be disclosed to a
Federal agency, in response to its request, in connection with the
hiring or retention of an employee, the issuance of a security
clearance, the reporting of an investigation of an employee, the letting
of a contract, or the issuance of a license, grant, or other benefit by
the requesting agency, to the extent that the information is relevant
and necessary to the requesting agency's decision on the matter.
(4) Congressional Inquiries Disclosure Routine Use. Disclosure from
a system of records maintained by a DoD component may be made to a
congressional office from the record of an individual in response to an
inquiry from the congressional office made at the request of that
individual.
(5) Private Relief Legislation Routine Use. Relevant information
contained in all systems of records of DoD published on or before August
22, 1975, may be disclosed to Office of Management and Budget in
connection with the review of private relief legislation, as set forth
in OMB Circular A-19, at any stage of the legislative coordination and
clearance process as set forth in that Circular.
(6) Disclosures Required by International Agreements Routine Use. A
record from a system of records maintained by a DoD Component may be
disclosed to foreign law enforcement, security, investigatory, or
administrative authorities in order to comply with requirements imposed
by, or to claim rights conferred in, international agreements and
arrangements including those regulating the stationing and status in
foreign countries of DoD military and civilian personnel.
(7) Disclosure to State and Local Taxing Authorities Routine Use.
Any information normally contained in Internal Revenue Service Form W-2,
which is maintained in a record from a system of records maintained by a
DoD component, may be disclosed to state and local taxing authorities
with which the Secretary of the Treasury has entered into agreements
pursuant to 5 U.S.C.s 5516, 5517, and 5520 and only to those state and
local taxing authorities for which an employee or military member is or
was subject to tax regardless of whether tax is or was withheld. This
routine use is in accordance with Treasury Fiscal Requirements Manual
Bulletin 76-07.
(8) Disclosure to the Office of Personnel Management Routine Use. A
record from a system of records subject to the Privacy Act and
maintained by a DoD Component may be disclosed to the Office of
Personnel Management concerning information on pay and leave, benefits,
retirement deductions, and any other information necessary for the
Office of Personnel Management to carry out its legally authorized
government-wide personnel management functions and studies.
(9) Disclosure to the Department of Justice for Litigation Routine
Use. A record from a system of records maintained by a DoD component may
be disclosed as a routine use to any component of the Department of
Justice for the purpose of representing the DoD, or any officer,
employee, or member of the Department in pending or potential litigation
to which the record is pertinent.
(10) Disclosure to Military Banking Facilities Overseas Routine Use.
Information as to current military addresses and assignments may be
provided to military banking facilities who provide banking services
overseas and who are reimbursed by the Government for certain checking
and loan losses. For personnel separated, discharged, or retired from
the Armed Forces, information as to last known residential or home of
record address may be provided to the military banking facility upon
certification by a banking facility officer that the facility has a
returned or dishonored check negotiated by the individual or the
individual has defaulted on a loan and that if restitution is not made
by the individual, the U.S. Government will be liable for the losses the
facility may incur.
(11) Disclosure of Information to the General Services
Administration Routine Use. A record from a system of records maintained
by a DoD component may be disclosed as a routine use to the General
Services Administration for the purpose of records management
inspections conducted under authority of 44 U.S.C. Sections 2904 and
2906.
(12) Disclosure of Information to National Archives and Records
Administration Routine Use. A record from a system of records maintained
by a DoD component may be disclosed as a routine use to National
Archives and Records Administration for the purpose of records
management inspections conducted under authority of 44 U.S.C.s 2904 and
2906.
(13) Disclosure to the Merit Systems Protection Board Routine Use. A
record from a system of records maintained by a DoD component may be
disclosed as a routine use to the Merit Systems Protection Board,
including the Office of the Special Counsel for the purpose of
litigation, including administrative proceedings, appeals, special
studies of the civil service and other merit systems, review of the
Office of Personnel Management or component rules and regulations,
investigation of alleged or possible prohibited personnel practices,
including administrative proceedings involving any individual subject of
a DoD investigation, and such other functions, promulgated in 5 U.S.C.s
1205 and 1206, or as may be authorized by law.
[[Page 69]]
(14) Counterintelligence Purposes Routine Use. A record from a
system of records maintained by a DoD component may be disclosed as a
routine use outside the DoD or the U.S. Government for the purpose of
counterintelligence activities authorized by U.S. Law or Executive Order
or for the purpose of enforcing laws which protect the national security
of the United States.
(15) Data Breach Remediation Purposes Routine Use. A record from a
system of records maintained by a Component may be disclosed to
appropriate agencies, entities, and persons when:
(1) The Component suspects or has confirmed that the security or
confidentiality of the information in the system of records has been
compromised;
(2) The Component has determined that as a result of the suspected
or confirmed compromise there is a risk of harm to economic or property
interests, identity theft or fraud, or harm to the security or integrity
of this system or other systems or programs (whether maintained by the
Component or another agency or entity) that rely upon the compromised
information; and
(3) The disclosure made to such agencies, entities, and persons is
reasonably necessary to assist in connection with the Component's
efforts to respond to the suspected or confirmed compromise and prevent,
minimize, or remedy such harm.
(16) Information Sharing Environment Routine Use. A record from a
system of records maintained by a Component consisting of, or relating
to, terrorism information (6 U.S.C. 485(a)(4)), homeland security
information (6 U.S.C. 482(f)(1)), or law enforcement information
(Guideline 2 Report attached to White House Memorandum, ``Information
Sharing Environment Reports,'' November 22, 2006) may be disclosed to a
Federal, State, local, tribal, territorial, foreign governmental and/or
multinational agency, either in response to its request or upon the
initiative of the Component, for purposes of sharing such information as
is necessary and relevant for the agencies to the detection, prevention,
disruption, preemption, and mitigation of the effects of terrorist
activities against the territory, people, and interests of the United
States of America as contemplated by the Intelligence Reform and
Terrorism Protection Act of 2004 (Pub. L. 108-458) and Executive Order
13388 (October 25, 2005).
[80 FR 10336, Feb. 26, 2015, as amended at 80 FR 74988, Dec. 1, 2015; 81
FR 52768, Aug. 10, 2016]
Sec. Appendix E to Part 505--Litigation Status Sheet
(a) Case Number: The number used by a DA activity for reference
purposes; Requester;
(b) Document Title or Description: Indicates the nature of the case,
such as ``Denial of access'', ``Refusal to amend,'' ``Incorrect
records'', or other violations of the Act (specify);
(c) Litigation: Date complaint filed, Court, and Case File Number;
(d) Defendants: DOD component and individual;
(e) Remarks: Brief explanation of what the case is about;
(f) Court action: Court's finding and disciplinary action (if
applicable); and
(g) Appeal (If applicable): Date complaint filed, court, case File
Number, court's finding, disciplinary action (if applicable).
Sec. Appendix F to Part 505--Example of a System of Records Notice
(a) Additional information and guidance on Privacy Act system of
records notices are found in DA PAM 25-51. The following elements
comprise a Privacy Act system of records notice for publication in the
Federal Register:
(b) System Identifier: A0025-55 AHRC--DA FOIA/P Office assigns the
notice number, for example, A0025-55, where ``A'' indicates ``Army,''
the next number represents the publication series number related to the
subject matter, and the final letter group shows the system manager's
command. In this case, it would be U.S. Army Human Resources Command.
(c) System Name: Use a short, specific, plain language title that
identifies the system's general purpose (limited to 55 characters).
(d) System Location: Specify the address of the primary system and
any decentralized elements, including automated data systems with a
central computer facility and input or output terminals at separate
locations. Use street address, 2-letter state abbreviations and 9-digit
ZIP Codes. Spell out office names. Do not use office symbols.
(e) Categories of Individuals: Describe the individuals covered by
the system. Use non-technical, specific categories of individuals about
whom the Department of Army keeps records. Do not use categories like
''all Army personnel'' unless that is truly accurate.
(f) Categories of Records in the System: Describe in clear, plain
language, all categories of records in the system. List only documents
actually kept in the system. Do not identify source documents that are
used to collect data and then destroyed. Do not list form numbers.
(g) Authority for Maintenance of the System: Cite the specific law
or Executive Order that authorizes the maintenance of the system. Cite
the DOD directive/instruction or Department of the Army Regulation(s)
that authorizes the Privacy Act system of records. Always include titles
with the citations.
[[Page 70]]
Note: Executive Order 9397 authorizes using the SSN as a personal
identifier. Include this authority whenever the SSN is used to retrieve
records.
(h) Purpose(s): List the specific purposes for maintaining the
system of records by the activity.
(i) Routine Use(s): The blanket routine uses that appear at the
beginning of each Component compilation apply to all systems notice
unless the individual system notice specifically states that one or more
of them do not apply to the system. Blanket Routine Uses are located at
the beginning of the Component listing of systems notices and are not
contained in individual system of records notices. However, specific
routine uses are listed in each applicable system of records notice.
List the specific activity to which the record may be released, for
example ``To the Veterans Administration'' or ``To state and local
health agencies''. For each routine user identified, include a statement
as to the purpose or purposes for which the record is to release to that
activity. Do not use general statements, such as ``To other federal
agencies as required'' or ``To any other appropriate federal agency''.
(j) Polices and Practices for Storing, Retrieving, Accessing,
Retaining, and Disposing of Records in the System:
(k) Storage: State the medium in which DA maintains the records; for
example, in file folders, card files, microfiche, computer, or a
combination of those methods. Storage does not refer to the storage
container.
(l) Retrievability: State how the Army retrieves the records; for
example, by name, fingerprints or voiceprints.
(m) Safeguards: Identify the system safeguards; for example, storage
in safes, vaults, locked cabinets or rooms, use of guards, visitor
controls, personnel screening, computer systems software, and so on.
Describe safeguards fully without compromising system security.
(n) Retention and Disposal. State how long AR 25-400-2 requires the
activity to maintain the records. Indicate when or if the records may be
transferred to a Federal Records Center and how long the record stays
there. Specify when the Records Center sends the record to the National
Archives or destroys it. Indicate how the records may be destroyed.
(o) System Manager(s) and Address: List the position title and duty
address of the system manager. For decentralized systems, show the
locations, the position, or duty title of each category of officials
responsible for any segment of the system.
(p) Notification Procedures: List the title and duty address of the
official authorized to tell requesters if their records are in the
system. Specify the information a requester must submit; for example,
full name, military status, SSN, date of birth, or proof of identity,
and so on.
(q) Record Access Procedures: Explain how individuals may arrange to
access their records. Include the titles or categories of officials who
may assist; for example, the system manager.
(r) Contesting Records Procedures: The standard language to use is
``The Army's rules for accessing records, and for contesting contents
and appealing initial agency determinations are contained in Army
Regulation 25-71; 32 CFR part 505; or may be obtained from the system
manager.''
(s) Record Source Categories: Show categories of individuals or
other information sources for the system. Do not list confidential
sources protected by 5 U.S.C. 552a(k)(2), (k)(5), or (k)(7).
(t) Exemptions Claimed for the System: Specifically list any
approved exemption including the subsection in the Act. When a system
has no approved exemption, write ``none'' under this heading.
Sec. Appendix G to Part 505--Management Control Evaluation Checklist
(a) Function. The function covered by this checklist is DA Privacy
Act Program.
(b) Purpose. The purpose of this checklist is to assist Denial
Authorities and Activity Program Coordinators in evaluating the key
management controls listed below. This checklist is not intended to
cover all controls.
(c) Instructions. Answer should be based on the actual testing of
key management controls (e.g., document analysis, direct observation,
sampling, simulation, other). Answers that indicate deficiencies should
be explained and corrective action indicated in supporting
documentation. These management controls must be evaluated at least once
every five years. Certificate of this evaluation has been conducted and
should be accomplished on DA Form 11-2-R (Management Control Evaluation
Certification Statement).
Test Questions
a. Is a Privacy Act Program established and implemented in your
organization?
b. Is an individual appointed to implement the Privacy Act
requirements?
c. Are provisions of AR 25-71 concerning protection of OPSEC
sensitive information regularly brought to the attention of managers
responsible for responding to Privacy Act requests and those responsible
for control of the Army's records?
d. When more than twenty working days are required to respond, is
the Privacy Act requester informed, explaining the circumstance
requiring the delay and provided an appropriate date for completion.
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e. Are Accounting Disclosures Logs being maintained?
Comments: Assist in making this a better tool for evaluating
management controls. Submit comments to the Department of Army, Freedom
of Information and Privacy Division.
Sec. Appendix H to Part 505--Definitions
Function
(a) Access. Review or copying a record or parts thereof contained in
a Privacy Act system of records by an individual.
(b) Agency. For the purposes of disclosing records subject to the
Privacy Act, Components of the Department of Defense are considered a
single agency. For other purposes including access, amendment, appeals
from denials of access or amendment, exempting systems of records, and
recordkeeping for release to non-DOD agencies, the Department of the
Army is considered its own agency.
(c) Amendment. The process of adding, deleting, or changing
information in a system of records to make the data accurate, relevant,
timely, or complete.
(d) Computer Matching Agreement. An agreement to conduct a
computerized comparison of two or more automated systems of records to
verify eligibility for payments under Federal benefit programs or to
recover delinquent debts for these programs.
(e) Confidential Source. A person or organization who has furnished
information to the Federal Government under an express promise that the
person's or the organization's identity would be held in confidence or
under an implied promise of such confidentiality if this implied promise
was made before September 27, 1975.
(f) Cookie. A mechanism that allows the server to store its own
information about a user on the user's own computer. Cookies are
embedded in the HTML information flowing back and forth between the
user's computer and the servers. They allow user-side customization of
Web information. Normally, cookies will expire after a single session.
(g) Defense Data Integrity Board. The Board oversees and coordinates
all computer matching programs involving personal records contained in
systems of records maintained by the DOD Component; reviews and approves
all computer matching agreements between the Department of Defense (DOD)
and other Federal, State, and local governmental agencies, as well as
memoranda of understanding when the match is internal to the DOD.
(h) Disclosure. The transfer of any personal information from a
Privacy Act system of records by any means of communication (such as
oral, written, electronic mechanical, or actual review) to any persons,
private entity, or government agency, other than the subject of the
record, the subject's designated agent or the subject's legal guardian.
Within the context of the Privacy Act and this part, this term applies
only to personal information that is a part of a Privacy Act system of
records.
(i) Deceased Individuals. The Privacy Act confers no rights on
deceased persons, nor may their next-of-kin exercise any rights for
them. However, family members of deceased individuals have their own
privacy right in particularly sensitive, graphic, personal details about
the circumstances surrounding an individual's death. This information
may be withheld when necessary to protect the privacy interests of
surviving family members. Even information that is not particularly
sensitive in and of itself may be withheld to protect the privacy
interests of surviving family members if disclosure would rekindle
grief, anguish, pain, embarrassment, or cause a disruption of their
peace minds. Because surviving family members use the deceased's Social
Security Number to obtain benefits, DA personnel should continue to
protect the SSN of deceased individuals.
(j) Individual. A living person who is a citizen of the United
States or an alien lawfully admitted for permanent residence. The parent
or legal guardian of a minor also may act on behalf of an individual.
Members of the United States Armed Forces are individuals. Corporations,
partnerships, sole proprietorships, professional groups, businesses,
whether incorporated or unincorporated, and other commercial entities
are not individuals.
(k) Individual Access. The subject of a Privacy Act file or his or
her designated agent or legal guardian has access to information about
them contained in the Privacy Act file. The term individual generally
does not embrace a person acting on behalf of a commercial entity (for
example, sole proprietorship or partnership).
(l) Denial Authority (formerly Access and Amendment Refusal
Authority). The Army Staff agency head or major Army commander
designated authority by this part to deny access to, or refuse amendment
of, records in his or her assigned area or functional specialization.
(m) Maintain. Includes keep, collect, use or disseminate.
(n) Members of the Public. Individuals or parties acting in a
private capacity.
(o) Minor. An individual under 18 years of age, who is not married
and who is not a member of the Department of the Army.
(p) Official Use. Within the context of this part, this term is used
when Department of the Army officials and employees have demonstrated a
need for the use of any record or the information contained therein in
the performance of their official duties.
(q) Personal Information. Information about an individual that
identifies, relates, or is
[[Page 72]]
unique to, or describes him or her, e.g., a social security number, age,
military rank, civilian grade, marital status, race, salary, home/office
phone numbers, etc.
(r) Persistent cookies. Cookies that can be used to track users over
time and across different Web sites to collect personal information.
(s) Personal Identifier. A name, number, or symbol that is unique to
an individual, usually the person's name or SSN.
(t) System of Records. A group of records under the control of the
DA from which information is filed and retrieved by individuals' names
or other personal identifiers assigned to the individuals. System
notices for all systems of records must be published in the Federal
Register. A grouping of records arranged chronologically or subjectively
that are not retrieved by individuals' names or identifiers is not a
Privacy Act system of records, even though individual information could
be retrieved by individuals' names or personal identifiers, such as
through a paper-by-paper search.
(u) Privacy Advisory. A statement required when soliciting
personally identifying information by a Department of the Army Web site
and the information is not maintained in a system of records. The
Privacy Advisory informs the individual why the information is being
solicited and how it will be used.
(v) Privacy Impact Assessment (PIA). An analysis, which considers
information sensitivity, vulnerability, and cost to a computer facility
or word processing center in safeguarding personal information processed
or stored in the facility.
(w) Privacy Act (PA) Request. A request from an individual for
information about the existence of, access to, or amendment of records
pertaining to that individual located in a Privacy Act system of
records. The request must cite or implicitly refer to the Privacy Act of
1974.
(x) Protected Personal Information. Information about an individual
that identifies, relates to, is unique to, or describes him or her
(e.g., home address, date of birth, social security number, credit card,
or charge card account, etc.).
(y) Records. Any item, collection, or grouping of information,
whatever the storage media (e.g., paper, electronic, etc), about an
individual that is maintained by a DOD Component, including but not
limited to, his or her education, financial transactions, medical
history, criminal or employment history and that contains his or her
name, or the identifying number, symbol, or other identifying particular
assigned to the individual, such as a finger or voice print or a
photograph.
(z) Records Maintenance and Use. Any action involving the storage,
retrieval, and handling of records kept in offices by or for the agency.
(aa) Review Authority. An official charged with the responsibility
to rule on administrative appeals of initial denials of requests for
notification, access, or amendment of records. Additionally, the Office
of Personnel Management is the review authority for civilian official
personnel folders or records contained in any other OMP record.
(bb) Routine Use. Disclosure of a record outside DOD without the
consent of the subject individual for a use that is compatible with the
purpose for which the information was collected and maintained by DA. A
routine use must be included in the notice for the Privacy Act system of
records published in the Federal Register.
(cc) Statistical record. A record in a system of records maintained
for statistical research or reporting purposes and not used in whole or
in part in making determinations about specific individuals.
(dd) System Manager. An official who has overall responsibility for
policies and procedures for operating and safeguarding a Privacy Act
system of records.
(ee) Third-party cookies. Cookies placed on a user's hard drive by
Internet advertising networks. The most common third-party cookies are
placed by the various companies that serve the banner ads that appear
across many Web sites.
(ff) Working Days. Days excluding Saturday, Sunday, and legal
holidays.
PART 507_MANUFACTURE AND SALE OF DECORATIONS, MEDALS, BADGES, INSIGNIA, COMMERCIAL USE OF HERALDIC DESIGNS AND HERALDIC QUALITY CONTROL PROGRAM--Table of Contents
Subpart A_Introduction
Sec.
507.1 Purpose.
507.2 References.
507.3 Explanation of abbreviations and terms.
507.4 Responsibilities.
507.5 Statutory authority.
Subpart B_Manufacture and Sale of Decorations, Medals, Badges, and
Insignia
507.6 Authority to manufacture.
507.7 Authority to sell.
507.8 Articles authorized for manufacture and sale.
507.9 Articles not authorized for manufacture or sale.
[[Page 73]]
Subpart C_Commercial Use of Heraldic Designs
507.10 Incorporation of designs or likenesses of approved designs in
commercial articles.
507.11 Reproduction of designs.
507.12 Possession and wearing.
Subpart D_Heraldic Quality Control Program
507.13 General.
507.14 Controlled heraldic items.
507.15 Certification of heraldic items.
507.16 Violations and penalties.
507.17 Procurement and wear of heraldic items.
507.18 Processing complaints of alleged breach of policies.
Authority: 10 U.S.C. 3012, 18 U.S.C. 701, 18 U.S.C. 702
Source: 63 FR 27208, May 18, 1998, unless otherwise noted.
Subpart A_Introduction
Sec. 507.1 Purpose.
This part prescribes the Department of the Army and the Air Force
policy governing the manufacture, sale, reproduction, possession, and
wearing of military decorations, medals, badges, and insignia. It also
establishes the Heraldic Item Quality Control Program to improve the
appearance of the Army and Air Force by controlling the quality of
heraldic items purchased from commercial sources.
Sec. 507.2 References.
Related publications are listed in paragraphs (a) through (f) of
this section. (A related publication is merely a source of additional
information. The user does not have to read it to understand this part).
Copies of referenced publications may be reviewed at Army and Air Force
Libraries or may be purchased from the National Technical Information
Services, U.S. Department of Commerce, 5285 Port Royal Road,
Springfield, VA 22161.
(a) AFI 36-2903, Dress and Personal Appearance of Air Force
Personnel.
(b) AR 360-5, Public Information.
(c) AR 670-1, Wear and Appearance of Army Uniforms and Insignia.
(d) AR 840-1, Department of the Army Seal, and Department of the
Army Emblem and Branch of Service Plaques.
(e) AR 840-10, Heraldic Activities, Flags, Guidons, Streamers,
Tabards and Automobile Plates.
(f) AFR 900-3, Department of the Air Force Seal, Organizational
Emblems, Use and Display of Flags, Guidons, Streamers, and Automobile
and Aircraft Plates.
Sec. 507.3 Explanation of abbreviations and terms.
(a) Abbreviations. (1) AFB--Air Force Base.
(2) DA--Department of the Army.
(3) DCSPER--Deputy Chief of Staff for Personnel.
(4) DSCP--Defense Supply Center Philadelphia.
(5) DUI--distinctive unit insignia.
(6) ROTC--Reserve Officers' Training Corps.
(7) SSI--shoulder sleeve insignia.
(8) TIOH--The Institute of Heraldry.
(9) USAF--United States Air Force.
(b) Terms--(1) Cartoon. A drawing six times actual size, showing
placement of stitches, color and size of yarn and number of stitches.
(2) Certificate of authority to manufacture. A certificate assigning
manufacturers a hallmark and authorizing manufacture of heraldic items.
(3) Hallmark. A distinguishing mark consisting of a letter and
numbers assigned to certified manufacturers for use in identifying
manufacturers of insignia.
(4) Heraldic items. All items worn on the uniform to indicate unit,
skill, branch, award or identification and a design has been established
by TIOH on an official drawing.
(5) Letter of agreement. A form signed by manufacturers before
certification, stating that the manufacturer agrees to produce heraldic
items in accordance with specific requirements
(6) Letter of authorization. A letter issued by TIOH that authorizes
the manufacture of a specific heraldic item after quality assurance
inspection of a preproduction sample.
(7) Tools. Hubs, dies, cartoons, and drawings used in the
manufacture of heraldic items.
Sec. 507.4 Responsibilities.
(a) Deputy Chief of Staff for Personnel (DCSPER), Army. The DCSPER
has
[[Page 74]]
staff responsibility for heraldic activities in the Army.
(b) The Director, The Institute of Heraldry (TIOH). The Director,
TIOH, will--
(1) Monitor the overall operation of the Heraldic Quality Control
Program.
(2) Authorize the use of insignia designs in commercial items.
(3) Certify insignia manufacturers.
(4) Inspect the quality of heraldic items.
(c) The Commander, Air Force Personnel Center, Randolph AFB, TX
78150-4739. The Commander has staff responsibility for heraldic
activities in the Air Force.
(d) The Chief, Air Force Personnel Center Commander's Programs
Branch (HQ AFPC/DPSFC), 550 C Street West, Suite 37, Randolph AFB, TX
78150-4739. The Chief, Commander's Programs Branch is responsible for
granting permission for the incorporation of certain Air Force badges
and rank insignia designs in commercial items.
(e) Commander, Air Force Historical Research Agency (AFHRA/RSO),
Maxwell AFB, AL 36112-6424. The Commander, AFHRA/RSO, is responsible for
granting permission for use of the Air Force seal, coat of arms, and
crest.
(f) Commanders. Commanders are responsible for purchasing heraldic
items that have been produced by manufacturers certified by TIOH.
Commanders will ensure that only those heraldic items that are of
quality and design covered in the specification and that have been
produced by certified manufacturers are worn by personnel under their
command.
Sec. 507.5 Statutory authority.
(a) The wear, manufacture, and sale of military decorations, medals,
badges, their components and appurtenances, or colorable imitations of
them, are governed by section 704, title 18, United States Code (18
U.S.C. 704).
(b) The manufacture, sale, possession, and reproduction of badges,
identification cards, insignia, or other designs, prescribed by the head
of a U.S. department or agency, or colorable imitations of them, are
governed by Title 18, United States Code, Section 701 (18 U.S.C. 701).
(c) This part incorporates the statutory provisions.
Subpart B_Manufacture and Sale of Decorations, Medals, Badges, and
Insignia
Sec. 507.6 Authority to manufacture.
(a) A certificate of authority to manufacture heraldic articles may
be granted by the Institute of Heraldry.
(1) Certificates of authority will be issued only to companies who
have manufacturing capability and agree to manufacture heraldic items
according to applicable specifications or purchase descriptions.
(2) The certificate of authority is valid only for the individual or
corporation indicated.
(3) A hallmark will be assigned to each certified manufacturer. All
insignia manufactured will bear the manufacturer's hallmark.
(b) A certificate of authority may be revoked or suspended under the
procedures prescribed in subpart D of this part.
(c) Manufacturers will submit a preproduction sample to TIOH of each
item they manufacture for certification under the Heraldic Quality
Control Program. A letter of certification authorizing manufacture of
each specific item will be issued provided the sample meets quality
assurance standards.
(d) A copy of the certified manufactures list will be furnished to
the Army and Air Force Exchange Service and, upon request, to Army and
Air Force commanders.
Sec. 507.7 Authority to sell.
No certificate of authority to manufacture is required to sell
articles listed in Sec. 507.8 of this part; however, sellers are
responsible for insuring that any article they sell is manufactured in
accordance with Government specifications using government furnished
tools, bears a hallmark assigned by TIOH, and that the manufacturer has
received a certification to manufacture that specific item prior to
sale.
[[Page 75]]
Sec. 507.8 Articles authorized for manufacture and sale.
(a) The articles listed in paragraphs (a) (1) through (10) of this
section are authorized for manufacture and sale when made in accordance
with approved specifications, purchase descriptions or drawings.
(1) All authorized insignia (AR 670-1 and AFI 36-2903).
(2) Appurtenances and devices for decorations, medals, and ribbons
such as oak leaf clusters, service stars, arrowheads, V-devices, and
clasps.
(3) Combat, special skill, occupational and qualification badges and
bars.
(4) Identification badges.
(5) Fourrageres and lanyards.
(6) Lapel buttons.
(7) Decorations, service medals, and ribbons, except for the Medal
of Honor.
(8) Replicas of decorations and service medals for grave markers.
Replicas are to be at least twice the size prescribed for decorations
and service medals.
(9) Service ribbons for decorations, service medals, and unit
awards.
(10) Rosettes.
(11) Army emblem and branch of service plaques.
(b) Variations from the prescribed specifications for the items
listed in paragraph (a) of this section are not permitted without prior
approval, in writing, by TIOH.
Sec. 507.9 Articles not authorized for manufacture or sale.
The following articles are not authorized for manufacture and sale,
except under contract with DSCP:
(a) The Medal of Honor.
(b) Service ribbon for the Medal of Honor.
(c) Rosette for the Medal of Honor.
(d) Service flags (prescribed in AR 840-10 or AFR 900-3).
(e) Army seal.
(f) Commercial articles for public sale that incorporate designs or
likenesses of decorations, service medals, and service ribbons.
(g) Commercial articles for public sale that incorporate designs or
likenesses of designs of insignia listed in Sec. 507.8 of this part,
except when authorized by the Service concerned.
Subpart C_Commercial Use of Heraldic Designs
Sec. 507.10 Incorporation of designs or likenesses of approved
designs in commercial articles.
The policy of the Department of the Army and the Department of the
Air Force is to restrict the use of military designs for the needs or
the benefit of personnel of their Services.
(a) Except as authorized in writing by the Department of the Army or
the Department of the Air Force, as applicable, the manufacture of
commercial articles incorporating designs or likenesses of official
Army/Air Force heraldic items is prohibited. However, certain designs or
likenesses of insignia such as badges or organizational insignia may be
incorporated in articles manufactured for sale provided that permission
has been granted as specified in paragraphs (a) (1) and (2) of this
section.
(1) Designs approved for use of the Army. The Director, The
Institute of Heraldry, 9325 Gunston Road, Room S-112, Fort Belvoir, VA
22060-5579, is responsible for granting permission for the incorporation
of certain Army insignia designs and the Army emblem in commercial
articles manufactured for sale. Permission for such use will be in
writing. Commanders of units authorized a SSI or DUI may authorize the
reproduction of their SSI or DUI on commercial articles such as shirts,
tie tacks, cups, or plaques. Permission for use of a SSI or DUI will be
submitted in writing to the commander concerned. Authorization for
incorporation of designs or likenesses of designs in commercial items
will be granted only to those manufacturers who agree to offer these
items for sale only to Army and Air Force Exchange Service and outlets
that sell primarily to military personnel and their dependents.
(2) Designs approved for use of the Air Force. Headquarters, Air
Force Personnel Center, Chief, Commander's Programs Branch (HQ AFPC/
DPSFC), 550 C Street West, Suite 37, Randolph AFB, TX 78150-4739, is
responsible for granting permission for the incorporation of certain Air
Force designs for commercial articles manufactured for
[[Page 76]]
sale. The Commander, Air Force Historical Research Agency, AFHRA/RSO,
Maxwell AFB, AL 36112-6678, is responsible for granting permission for
the incorporation of the coat of arms, crest, seal and organizational
emblems. Such permission will be in writing. Authorization for
incorporation of designs or likenesses of designs in commercial items
will be granted only to those manufacturers who agree to offer these
items for sale only to the Army and Air Force Exchange Service, or to
those outlets that sell primarily to military personnel and their
dependents.
(b) In the case of the Honorable Service lapel button, a general
exception is made to permit the incorporation of that design in articles
manufactured for public sale provided that such articles are not
suitable for wear as lapel buttons or pins.
Sec. 507.11 Reproduction of designs.
(a) The photographing, printing, or, in any manner making or
executing any engraving, photograph, print, or impression in the
likeness of any decoration, service medal, service ribbon, badge, lapel
button, insignia, or other device, or the colorable imitation thereof,
of a design prescribed by the Secretary of the Army or the Secretary of
the Air Force for use by members of the Army or the Air Force is
authorized provided that such reproduction does not bring discredit upon
the military service and is not used to defraud or to misrepresent the
identification or status of an individual, organization, society, or
other group of persons.
(b) The use for advertising purposes of any engraving, photograph,
print, or impression of the likeness of any Department of the Army or
Department of the Air Force decoration, service medal, service ribbon,
badge, lapel button, insignia, or other device (except the Honorable
Service lapel button) is prohibited without prior approval, in writing,
by the Secretary of the Army or the Secretary of the Air Force except
when used to illustrate a particular article that is offered for sale.
Request for use of Army insignia in advertisements or promotional
materials will be processed through public affairs channels in
accordance with AR 360-5, paragraph 3-37.
(c) The reproduction in any manner of the likeness of any
identification card prescribed by Department of the Army or Department
of the Air Force is prohibited without prior approval in writing by the
Secretary of the Army or Secretary of the Air Force.
Sec. 507.12 Possession and wearing.
(a) The wearing of any decoration, service medal, badge, service
ribbon, lapel button, or insignia prescribed or authorized by the
Department of the Army and the Department of the Air Force by any person
not properly authorized to wear such device, or the use of any
decoration, service medal, badge, service ribbon, lapel button, or
insignia to misrepresent the identification or status of the person by
whom such is worn is prohibited. Any person who violates the provision
of this section is subject to punishment as prescribed in the statutes
referred to in Sec. 507.5 of this part.
(b) Mere possession by a person of any of the articles prescribed in
Sec. 507.8 of this part is authorized provided that such possession is
not used to defraud or misrepresent the identification or status of the
individual concerned.
(c) Articles specified in Sec. 507.8 of this part, or any
distinctive parts including suspension ribbons and service ribbons) or
colorable imitations thereof, will not be used by any organization,
society, or other group of persons without prior approval in writing by
the Secretary of the Army or the Secretary of the Air Force.
Subpart D_Heraldic Quality Control Program
Sec. 507.13 General.
The heraldic quality control program provides a method of ensuring
that insignia items are manufactured with tools and specifications
provided by TIOH.
Sec. 507.14 Controlled heraldic items.
The articles listed in Sec. 507.8 of this part are controlled
heraldic items and will be manufactured in accordance with Government
specifications using
[[Page 77]]
Government furnished tools or cartoons. Tools and cartoons are not
provided to manufacturers for the items in paragraphs (a) through (e) of
this section. However, manufacture will be in accordance with the
Government furnished drawings.
(a) Shoulder loop insignia, ROTC, U.S. Army.
(b) Institutional SSI, ROTC, U.S. Army.
(c) Background trimming/flashes, U.S. Army.
(d) U.S. Air Force organizational emblems for other than major
commands.
(e) Hand embroidered bullion insignia.
Sec. 507.15 Certification of heraldic items.
A letter of certification to manufacture each heraldic item, except
those listed in Sec. 507.14 (a) through (e) of this part, will be
provided to the manufacturer upon submission of a preproduction sample.
Manufacture and sale of these items is not authorized until the
manufacturer receives a certification letter from TIOH.
Sec. 507.16 Violations and penalties.
A certificate of authority to manufacture will be revoked by TIOH
upon intentional violation by the holder thereof of any of the
provisions of this part, or as a result of not complying with the
agreement signed by the manufacturer in order to receive a certificate.
Such violations are also subject to penalties prescribed in the Acts of
Congress (Sec. 507.5 of this part). A repetition or continuation of
violations after official notice thereof will be deemed prima facie
evidence of intentional violation.
Sec. 507.17 Procurement and wear of heraldic items.
(a) The provisions of this part do not apply to contracts awarded by
the Defense Personnel Support Center for manufacture and sale to the
U.S. Government.
(b) All Army and Air Force service personnel who wear quality
controlled heraldic items that were purchased from commercial sources
will be responsible for ensuring that the items were produced by a
certified manufacturer. Items manufactured by certified manufacturers
will be identified by a hallmark and/or a certificate label certifying
the item was produced in accordance with specifications.
(c) Commanders will ensure that only those heraldic items that are
of the quality and design covered in the specifications and that have
been produced by certified manufacturers are worn by personnel under
their command. Controlled heraldic items will be procured only from
manufacturers certified by TIOH. Commanders procuring controlled
heraldic items, when authorized by local procurement procedures, may
forward a sample insignia to TIOH for quality assurance inspection if
the commander feels the quality does not meet standards.
Sec. 507.18 Processing complaints of alleged breach of policies.
The Institute of Heraldry may revoke or suspend the certificate of
authority to manufacture if there are breaches of quality control
policies by the manufacturer. As used in this paragraph, the term
quality control policies include the obligation of a manufacturer under
his or her ``Agreement to Manufacture,'' the quality control provisions
of this part, and other applicable instructions provided by TIOH.
(a) Initial processing. (1) Complaints and reports of an alleged
breach of quality control policies will be forwarded to the Director,
The Institute of Heraldry, 9325 Gunston Road, Room S-112, Fort Belvoir,
VA 22060-5579 (hereinafter referred to as Director).
(2) The Director may direct that an informal investigation of the
complaint or report be conducted.
(3) If such investigation is initiated, it will be the duty of the
investigator to ascertain the facts in an impartial manner. Upon
conclusion of the investigation, the investigator will submit a report
to the appointing authority containing a summarized record of the
investigation together with such findings and recommendations as may be
appropriate and warranted by the facts.
(4) The report of investigation will be forwarded to the Director
for review. If it is determined that a possible breach of quality
control policies has occurred, the Director will follow the
[[Page 78]]
procedures outlined in paragraphs (b) through (g) of this section.
(b) Voluntary performance. The Director will transmit a registered
letter to the manufacturer advising of the detailed allegations of
breach and requesting assurances of voluntary compliance with quality
control policies. No further action is taken if the manufacturer
voluntarily complies with the quality control policies; however, any
further reoccurrence of the same breach will be considered refusal to
perform.
(c) Refusal to perform. (1) If the manufacturer fails to reply
within a reasonable time to the letter authorized by paragraph (b) of
this section, or refuses to give adequate assurances that future
performance will conform to quality control policies, or indicates by
subsequent conduct that the breach is continuous or repetitive, or
disputes the allegations of breach, the Director will direct that a
public hearing be conducted on the allegations.
(2) A hearing examiner will be appointed by appropriate orders. The
examiner may be either a commissioned officer or a civilian employee
above the grade of GS-7.
(3) The specific written allegations, together with other pertinent
material, will be transmitted to the hearing examiner for introduction
as evidence at the hearing.
(4) Manufacturers may be suspended for failure to return a loaned
tool without referral to a hearing specified in paragraph (c)(1) of this
section; however, the manufacturer will be advised, in writing, that
tools are overdue and suspension will take effect if not returned within
the specified time.
(d) Notification to the manufacturer by examiner. Within a 7 day
period following receipt by the examiner of the allegations and other
pertinent material, the examiner will transmit a registered letter of
notification to the manufacturer informing him or her of the following:
(1) Specific allegations.
(2) Directive of the Director requiring the holding of a public
hearing on the allegations.
(3) Examiner's decision to hold the public hearing at a specific
time, date, and place that will be not earlier than 30 days from the
date of the letter of notification.
(4) Ultimate authority of the Director to suspend or revoke the
certificate of authority should the record developed at the hearing so
warrant.
(5) Right to--
(i) A full and fair public hearing.
(ii) Be represented by counsel at the hearing.
(iii) Request a change in the date, time, or place of the hearing
for purposes of having reasonable time in which to prepare the case.
(iv) Submit evidence and present witnesses in his or her own behalf.
(v) Obtain, upon written request filed before the commencement of
the hearing, at no cost, a verbatim transcript of the proceedings.
(e) Public hearing by examiner. (1) At the time, date, and place
designated in accordance with paragraph (d) (3) of this section, the
examiner will conduct the public hearing.
(i) A verbatim record of the proceeding will be maintained.
(ii) All previous material received by the examiner will be
introduced into evidence and made part of the record.
(iii) The Government may be represented by counsel at the hearing.
(2) Subsequent to the conclusion of the hearing, the examiner will
make specific findings on the record before him or her concerning each
allegation.
(3) The complete record of the case will be forwarded to the
Director.
(f) Action by the Director. (1) The Director will review the record
of the hearing and either approve or disapprove the findings.
(2) Upon arrival of a finding of breach of quality control policies,
the manufacturer will be so advised.
(3) After review of the findings, the certificate of authority may
be revoked or suspended. If the certificate of authority is revoked or
suspended, the Director will--
(i) Notify the manufacturer of the revocation or suspension.
(ii) Remove the manufacturer from the list of certified
manufacturers.
(iii) Inform the Army and Air Force Exchange Service of the action.
(g) Reinstatement of certificate of authority. The Director may,
upon receipt
[[Page 79]]
of adequate assurance that the manufacturer will comply with quality
control policies, reinstate a certificate of authority that has been
suspended or revoked.
PART 510_CHAPLAINS--Table of Contents
Authority: R.S. 1125; 10 U.S.C. 238.
Sec. 510.1 Private ministrations, sacraments, and ordinances.
Chaplains will conduct or arrange for appropriate burial services at
the interment of members of the military service, active and retired,
and for members of their families upon request. A chaplain may perform
the marriage rite, provided he complies with the civil law of the place
where the marriage is to be solemnized and provided all parties
concerned have complied with the requirements of the denomination the
chaplain represents and with any directives which may have been issued
by the military command or higher headquarters. The scope of the
chaplains' work will include such ministrations as are held by some
denominations or religious bodies as sacraments and by others as rites
or ordinances. Chaplains will administer or arrange for rites and
sacraments for military personnel and civilians under military
jurisdiction according to the respective beliefs and conscientious
practices of all concerned.
[16 FR 12931, Dec. 27, 1951]
PART 516_LITIGATION--Table of Contents
Subpart A_General
Sec.
516.1 Purpose.
516.2 References.
516.3 Explanation of abbreviations and terms.
516.4 Responsibilities.
516.5 Restriction on contact with DOJ.
516.6 Appearance as counsel.
516.7 Mailing addresses.
Subpart B_Service of Process
516.8 General.
516.9 Service of criminal process within the United States.
516.10 Service of civil process within the United States.
516.11 Service of criminal process outside the United States.
516.12 Service of civil process outside the United States.
516.13 Assistance in serving process overseas.
516.14 Service of process on DA or Secretary of Army.
Subpart C_Reporting Legal Proceedings to HQDA
516.15 General.
516.16 Individual and supervisory procedures upon commencement of legal
proceedings.
516.17 SJA or legal adviser procedures.
516.18 Litigation alleging individual liability.
516.19 Injunctive relief.
516.20 Habeas Corpus.
516.21 Litigation against government contractors.
516.22 Miscellaneous reporting requirements.
516.23 Litigation reports.
516.24 Preservation of evidence.
516.25 DA Form 4.
516.26 Unsworn declarations under penalty of perjury.
Subpart D_Individual Liability
516.27 Scope.
516.28 Policy.
516.29 Federal statutes and regulations.
516.30 Procedures for obtaining certification and DOJ representation.
516.31 Private counsel at government expense.
516.32 Requests for indemnification.
Subpart E_Legal Proceedings Initiated by the United States Medical Care
and Property Claims
516.33 General.
516.34 Referral of medical care and property claims for litigation.
516.35 Preparation of claims for litigation.
Assertion of Other Claims
516.36 Referral to Litigation Division.
516.37 Proceedings to repossess government real property or quarters or
to collect delinquent rent.
Subpart F_Environmental Litigation
516.38 Scope.
516.39 Duties and procedures.
Subpart G_Release of Information and Appearance of Witnesses Scope
516.40 General.
516.41 Policy.
[[Page 80]]
516.42 Reference to HQDA.
Release of Records in Connection With Litigation
516.43 Release of Army and other agency records.
516.44 Determination of release authorization.
516.45 Records determined to be releasable.
516.46 Records determined not to be releasable.
DA Personnel as Witnesses in Private Litigation
516.47 Response to subpoenas, orders, or requests for witnesses.
516.48 Official information.
516.49 Expert witnesses.
516.50 Interference with mission.
Litigation in Which the United States Has an Interest
516.51 Response to subpoenas, orders, or requests for witnesses.
516.52 Expert witnesses.
516.53 News media and other inquiries.
Status, Travel, and Expenses of Witnesses
516.54 Witnesses for the United States.
516.55 Witnesses for a State or private litigant.
516.56 Witnesses before foreign tribunals.
Subpart H_Remedies in Procurement Fraud and Corruption
516.57 Purpose.
516.58 Policies.
516.59 Duties and procedures.
516.60 Procurement fraud and irregularities programs at MACOMs.
516.61 Reporting requirements.
516.62 PFD and HQ USACIDC coordination.
516.63 Coordination with DOJ.
516.64 Comprehensive remedies plan.
516.65 Litigation reports in civil recovery cases.
516.66 Administrative and contractual actions.
516.67 Overseas cases of fraud or corruption.
516.68 Program Fraud Civil Remedies Act (PFCRA).
Subpart I_Cooperation With the Office of Special Counsel
516.69 Introduction.
516.70 Policy.
516.71 Duties.
516.72 Procedures.
516.73 Assistance from HQDA.
Subpart J_Soldiers Summoned To Serve on State and Local Juries
516.74 General.
516.75 Policy.
516.76 Exemption determination authority.
516.77 Procedures for exemption.
516.78 Status, fees, and expenses.
Appendix A to Part 516--References
Appendix B to Part 516--Mailing Addresses
Appendix C to Part 516--Department of Defense Directive 5405.2, Release
of Official Information in Litigation and Testimony by DOD
Personnel as Witnesses
Appendix D to Part 516--Department of Defense Directive 7050.5,
Coordination of Remedies for Fraud and Corruption Related to
Procurement Activities
Appendix E to Part 516--Department of Defense Directive 5505.5,
Implementation of the Program Fraud Civil Remedies Act
Appendix F to Part 516--Glossary
Appendix G to Part 516--Figures
Authority: 5 U.S.C. 552; 10 U.S.C. 218, 1037, 1089, 1552, 1553,
2036; 18 U.S.C. 219, 3401; 28 U.S.C. 50, 513, 515, 543; 31 U.S.C. 3729
and 41 U.S.C. 51; 42 U.S.C. 290, 2651; 43 U.S.C. 666
Source: 59 FR 38236, July 27, 1994, unless otherwise noted.
Subpart A_General
Sec. 516.1 Purpose.
(a) This part prescribes policies and procedures for the following:
(1) Defensive and affirmative litigation in Federal and state
civilian courts where the Army or DOD has an interest in the matter.
(2) Proceedings before Federal or state administrative bodies, such
as utility rate commissions.
(3) Release of official information and testimony by DA personnel
with regard to litigation.
(4) Remedies for procurement fraud and corruption.
(5) Environmental civil litigation and administrative proceedings.
(6) Proceedings before the Office of Special Counsel.
(b) This regulation does not apply to DA or DOD proceedings such as
courts-martial or administrative boards.
Sec. 516.2 References.
Applicable publications and forms are listed in appendix A to this
part.
[[Page 81]]
Sec. 516.3 Explanation of abbreviations and terms.
(a) The Glossary contains explanations of abbreviations and terms.
(b) The masculine gender has been used throughout this regulation
for simplicity and consistency. Any reference to the masculine gender is
intended to include women.
Sec. 516.4 Responsibilities.
(a) United States Department of Justice (DOJ). DOJ will defend
litigation in domestic and foreign courts, against the United States,
its agencies and instrumentalities, and employees whose official conduct
is involved. The various U.S. Attorney Offices, under the oversight of
the Attorney General, will conduct much of the representation.
(b) The Judge Advocate General (TJAG). Subject to the ultimate
control of litigation by DOJ (including the various U.S. Attorney
Offices), and to the general oversight of litigation by the Army General
Counsel, TJAG is responsible for litigation in which the Army has an
interest except with respect to proceedings addressed in paragraph (i)
of this section, only TJAG (or Chief, Litigation Division) will
communicate to DOJ the army's position with regard to settlement of a
case.
(c) Assistant Judge Advocate General For Civil Law and Litigation
(AJAG-CL). Responsible to TJAG for litigation issues; supervises Chief,
Litigation Division.
(d) Chief, Litigation Division. Reports to AJAG-CL and is
responsible for the following:
(1) Supervising litigation in which the Army has an interest.
(2) Acting for TJAG and Secretary of the Army on litigation issues,
including the authority to settle or compromise cases, subject to the
supervision of TJAG and AJAG-CL.
(3) Delegating cases if appropriate.
(4) Serving as primary contact with DOJ on litigation.
(5) Accepting service of process for DA and for the Secretary of the
Army in his official capacity. See 32 CFR Sec. 257.5).
(e) Special Assistant U.S. Attorneys (SAUSAs) and DOJ Special
Attorneys. Army judge advocates and civilian attorneys, when appointed
as SAUSAs under 28 U.S.C. 543, will represent the Army's interests in
either criminal or civil matters in Federal court under the following
circumstances:
(1) Felony and misdemeanor prosecutions in Federal court. Army
attorneys, at the installation level, after being duly appointed (See AR
27-10), will prosecute cases, in which the Army has an interest, in
Federal court. Army attorneys who prosecute criminal cases will not
represent the United States in civil litigation without authorization
from Chief, Litigation Division.
(2) SAUSAs for civil litigation. By assignment of TJAG and upon the
approval of the U.S. Attorney, Judge Advocates will serve within a U.S.
Attorney's office to represent the government in litigation in which the
Army or DOD has an interest. These Judge Advocates have the same general
authority and responsibility as an Assistant U.S. Attorney.
(3) Special Attorneys assigned to DOJ. By assignment of TJAG and
with the concurrence of the appropriate DOJ official, Judge Advocates
will work as Special Attorneys for DOJ. Special Attorneys are authorized
to represent the United States in civil litigation in which the Army or
DOD has an interest.
(f) Attorneys at Army activities or commands. SJAs or legal
advisers, or attorneys assigned to them, will represent the United
States in litigation only if authorized by this regulation or delegated
authority in individual cases by the Chief, Litigation Division.
(g) Commander, U.S. Army Claims Service (USARCS). The Commander,
USARCS, and USARCS attorneys, subject to AR 27-20, Chapter 4, will
maintain direct liaison with DOJ in regard to administrative settlement
of claims under the Federal Tort Claims Act.
(h) Chief, Contract Law Division, OTJAG. The Chief, Contract Law
Division, attorneys assigned to the Contract Law Division, and other
attorneys designated by the Chief, Contract Law Division, in litigation
involving taxation, will represent DA in negotiation, administrative
proceedings, and litigation, and maintain liaison with DOJ and other
governmental authorities.
[[Page 82]]
(i) Legal Representatives of the Chief of Engineers. The Office of
Chief Counsel, attorneys assigned thereto, and other attorneys
designated by the Chief Counsel will maintain direct liaison with DOJ
and represent DA in litigation and administrative proceedings a rising
from the navigation, civil works, Clean Water Act 404 permit authority,
environmental response activities, and real property functions of the
U.S. Army Corps of Engineers.
(j) Chief Trial Attorney, Contract Appeals Division, USALSA. The
Chief Trial Attorney, attorneys assigned to the Contract Appeals
Division, and attorneys designated by the Chief Trial Attorney will
represent the government before the Armed Services Board of Contract
Appeals and the General Services Board of Contract Appeals. They will
maintain direct liaison with DOJ concerning appeals from ASBCA and GSBCA
decisions. The Chief Trial Attorney has designated COE attorneys to act
as trial attorneys in connection with COE contract appeals.
(k) Chief, Regulatory Law Office, USALSA. The Chief, Regulatory Law
Office, attorneys assigned to the Regulatory Law Office, and other
attorneys designated by the Chief, will represent DA consumer interests
in regulatory matters before state and Federal administrative agencies
and commissions, including but not limited to proceedings involving
rates and conditions for the purchase of services for communications
(except long-distance telephone), transportation, and utilities (gas,
electric, water and sewer). They will maintain direct liaison with DOJ
for communications, transportation, and utilities litigation.
(l) Chief, Intellectual Property Law Division, USALSA. The Chief,
Intellectual Property Law Division, and the attorneys assigned thereto
will represent DA in matters pertaining to patents, copyrights, and
trademarks. They will maintain direct liaison with DOJ concerning
intellectual property issues.
(m) Chief, Labor and Employment Law Office, OTJAG. The Chief, Labor
and Employment Law Office, attorneys assigned thereto, and attorneys
identified as labor counselors will represent DA in matters pertaining
to labor relations, civilian personnel, and Federal labor standards
enforcement before the following: Federal Labor Relations Authority;
Merit Systems Protection Board; Equal Employment Opportunity Commission;
Department of Labor; National Labor Relations Board; and, state
workmen's compensation commissions. In the event any individual
mentioned in this subparagraph intends to make a recommendation to DOJ
concerning an appeal of any case to a U.S. Court of Appeals, such
recommendation will first be coordinated with Litigation Division.
(n) Chief, Procurement Fraud Division, USALSA. The Chief,
Procurement Fraud Division, attorneys assigned thereto, and other
attorneys designated by the Chief will represent DA in all procurement
fraud and corruption matters before the Army suspension and debarment
authority and before any civil fraud recovery administrative body. They
will maintain liaison and coordinate remedies with DOJ and other
agencies in matters of procurement fraud and corruption.
(o) Chief, Environmental Law Division, USALSA. The Chief,
Environmental Law Division, attorneys assigned thereto, and other
attorneys designated by the Chief, ELD, will maintain direct liaison
with DOJ and represent DA in all environmental and natural resources
civil litigation and administrative proceedings involving missions and
functions of DA, its major and subordinate commands, installations
presently or previously managed by DA, and other sites or issues in
which DA has a substantial interest, except as otherwise specifically
provided in this part.
(p) Chief, Criminal Law Division, OTJAG. The Chief, Criminal Law
Division, will have general oversight of felony and magistrate court
prosecutions conducted by Army lawyers acting as Special Assistant U.S.
Attorneys. (See subpart G of this part). The Chief will coordinate with
DOJ and other governmental agencies concerning the overall conduct of
these prosecutions.
[59 FR 38236, July 27, 1994; 59 FR 45974, Sept. 6, 1994]
[[Page 83]]
Sec. 516.5 Restriction on contact with DOJ.
(a) General rule. Except as authorized by TJAG, the General Counsel,
the Chief of Litigation Division, or this regulation, no Army personnel
will confer or correspond with DOJ concerning legal proceedings in which
the Army has an interest.
(b) Exceptions. This prohibition does not preclude contact with DOJ
required by the Memorandum of Understanding between DOJ and DOD relating
to the investigation and prosecution of certain crimes. (See AR 27-10,
para 2-7). In addition, an installation SJA or legal adviser is expected
to maintain a working relationship with the U.S. Attorney in each
district within his geographical area. An SJA or legal adviser should
request the U.S. Attorney to advise him immediately when litigation
involving DA or its personnel is served on the U.S. Attorney.
[59 FR 38236, July 27, 1994; 59 FR 45974, Sept. 6, 1994]
Sec. 516.6 Appearance as counsel.
(a) General. Military personnel on active duty and DA civilian
personnel will not appear as counsel before any civilian court or in any
preliminary proceeding, for example, deposition, in litigation in which
the Army has an interest without the prior written approval of TJAG,
except under the following conditions:
(1) The appearance is authorized by this regulation.
(2) The individual is a party to the proceeding.
(3) The appearance is authorized under an expanded legal assistance
program (See AR 27-3).
(4) The individual is a judge advocate assigned or detailed by TJAG
to DOJ to represent the United States in civil or criminal cases, for
example, a Special Assistant U.S. Attorney, or an attorney assigned to
Litigation Division.
(b) Procedure. All requests for appearance as counsel will be made
through Litigation Division to the Personnel, Plans and Training Office,
OTJAG. Requests for DA military or civilian attorneys to appear in any
civilian court or proceeding on behalf of a soldier who is also facing
UCMJ action will be delivered to the SJA, legal adviser, or Regional
Defense Counsel, as appropriate. The SJA or legal adviser will forward
the request to Litigation Division with an evaluation of the case and
recommendation. Regional Defense Counsel should send requests for USATDS
counsel to Chief, USATDS, who will forward the request to Litigation
Division. Privileged or otherwise sensitive client information should
only be submitted through USATDS channels.
Sec. 516.7 Mailing addresses.
Mailing addresses for organizations referenced in this regulation
are in appendix B to this part.
Subpart B_Service of Process
Sec. 516.8 General.
(a) Defined. Process is a legal document that compels a defendant in
an action to appear in court or to comply with the court's demands, for
example, in a civil case a summons or subpoena, or in a criminal case, a
warrant for arrest, indictment, contempt order, subpoena, or summons.
Service of process is the delivery of the document to a defendant to
notify him of a claim or charge against him.
(b) Policy. DA personnel will follow the guidance of this chapter
when civil officials attempt to serve civil or criminal process on
individuals on Federal property.
(c) Procedures. Provost marshals shall ensure that installation law
enforcement personnel are adequately trained to respond to situations
which arise with regard to service of civil and criminal process. SJAs
or legal advisers shall provide guidance to law enforcement personnel in
these matters.
Sec. 516.9 Service of criminal process within the United States.
(a) Surrender of personnel. Guidance for surrender of military
personnel to civilian law enforcement officials is in Chapter 7 of AR
630-10 and AR l90-9. Army officials will cooperate with civilian law
enforcement authorities who seek the surrender of a soldier in
connection with criminal charges. Special rules apply when a bail
bondsman or other surety seeks custody of a soldier.
[[Page 84]]
(b) Requests for witnesses or evidence in criminal proceedings. See
subpart G to this part.
[59 FR 38236, July 27, 1994; 59 FR 45975, Sept. 6, 1994]
Sec. 516.10 Service of civil process within the United States.
(a) Policy. DA officials will not prevent or evade the service or
process in legal actions brought against the United States or against
themselves in their official capacities. If acceptance of service of
process would interfere with the performance of military duties, Army
officials may designate a representative to accept service. DA personnel
sued in their individual capacity should seek legal counsel concerning
voluntary acceptance of process.
(b) Request for witnesses or evidence in civil proceedings. See
subpart G to this part.
(c) Process of Federal courts. Subject to reasonable restrictions
imposed by the commander, civil officials will be permitted to serve
Federal process. (See Fed. R. Civ. P. 4, 45).
(d) Process of state courts. (1) In areas of exclusive Federal
jurisdiction that are not subject to the right to serve state process,
the commander or supervisor will determine whether the individual to be
served wishes to accept service voluntarily. A JA or other DA attorney
will inform the individual of the legal effect of voluntary acceptance.
If the individual does not desire to accept service, the party
requesting service will be notified that the nature of the exclusive
Federal jurisdiction precludes service by state authorities on the
military installation.
(2) On Federal property where the right to serve process is reserved
by or granted to the state, in areas of concurrent jurisdiction, or
where the United States has only a proprietary interest, Army officials
asked to facilitate service of process will initially proceed as
provided in the preceding subparagraph. If the individual declines to
accept service, the requesting party will be allowed to serve the
process in accordance with applicable state law, subject to reasonable
restrictions imposed by the commander.
(e) Process of foreign courts. A U.S. District Court may order
service upon a person who resides in the judicial district of any
document issued in connection with a proceeding in a foreign or
international tribunal. (28 U.S.C. 1696). In addition, the U.S. State
Department has the power to receive a letter rogatory issued by a
foreign or international tribunal, to transmit it to a tribunal, officer
or agency in the United States, and to return it after execution. (28
U.S.C. 1781). Absent a treaty or agreement to the contrary, these
provisions will govern.
(f) Seizure of personal property. State and Federal courts issue
orders (for example, writ of attachment) authorizing a levy (seizure) of
property to secure satisfaction of a judgment. DA personnel will comply
with valid state or Federal court orders commanding or authorizing the
seizure of private property to the same extent that state or Federal
process is served.
[59 FR 38236, July 27, 1994; 59 FR 45975, Sept. 6, 1994]
Sec. 516.11 Service of criminal process outside the United States.
Army Regulation 630-10 and international treaties, such as status of
forces agreements, govern the service of criminal process of foreign
courts and the surrender of soldiers to foreign civilian law enforcement
officials.
Sec. 516.12 Service of civil process outside the United States.
(a) Process of foreign courts. In foreign countries service of
process issued by foreign courts will be made under the law of the place
of service, as modified by status of forces agreements, treaties or
other agreements. In foreign areas under exclusive U.S. jurisdiction,
service of process issued by foreign courts will be made under the law
specified by appropriate U.S. authority.
(b) Process of Federal courts. Service of process on U.S. citizens
or residents may be accomplished under the following provisions: The
Hague Convention, reprinted in 28 USCA Federal Rules of Civil Procedure,
following Rule 4; Fed. R. Civ. P. 4(i); 28 USC 1781 and 1783; and, the
rules of the Federal
[[Page 85]]
court concerned. If a DA official receives a request to serve Federal
process on a person overseas, he will determine if the individual wishes
to accept service voluntarily. Individuals will be permitted to seek
counsel. If the person will not accept service voluntarily, the party
requesting service will be notified and advised to follow procedures
prescribed by the law of the foreign country concerned.
(c) Process of state courts. If a DA official receives a request to
serve state court process on a person overseas, he will determine if the
individual wishes to accept service voluntarily. Individuals will be
permitted to seek counsel. If the person will not accept service
voluntarily, the party requesting service will be notified and advised
to follow procedures prescribed by the law of the foreign country
concerned. (See, for example, The Hague Convention, reprinted in 28 USCA
Federal Rules of Civil Procedure, following Rule 4).
(d) Suits against the United States. DA personnel served with
foreign civil process will notify the appropriate SJA or legal adviser,
who will return the document to the issuing authority explaining the
lack of authority to accept service for the United States. Service on
the United States must be made upon DOJ through established diplomatic
channels.
Sec. 516.13 Assistance in serving process overseas.
(a) Europe. For information and assistance concerning service of
process of persons assigned to or accompanying U.S. Forces in Europe,
contact the Foreign Law Branch, International Law Division, Office of
The Judge Advocate, Headquarters U.S. Army, Europe, and Seventh Army,
Unit 29351, (Heidelberg, Germany) APO AE 09014.
(b) Korea. For information and assistance concerning service of
process of persons assigned to or accompanying U.S. Forces in Korea,
contact Staff Judge Advocate, US Forces Korea (Seoul, Republic of
Korea), APO AP 96205.
(c) Panama, Central and South America. For information and
assistance concerning service of process of persons assigned to or
accompanying forces in the U.S. Army Southern Command, contact Staff
Judge Advocate, HQ, US Army South, Fort Clayton, Panama, APO AA 34004-
5000.
Sec. 516.14 Service of process on DA or Secretary of Army.
The Chief, Litigation Division, shall accept service of process for
Department of the Army or for the Secretary of the Army in his official
capacity.
Subpart C_Reporting Legal Proceedings to HQDA
Sec. 516.15 General.
(a) Legal proceedings requiring reporting. Actions must be taken
upon commencement of litigation or administrative proceedings in which
the United States has an interest. Typically, the Secretary of the Army,
DA, the United States, or DA personnel are named as defendant in a
lawsuit or as respondent in an administrative proceeding. A nonexclusive
listing of cases in which the United States has an interest include the
following:
(1) Suits for damages, injunctive relief, or other action filed
against the government or against DA personnel in their official
capacity.
(2) Suits alleging individual liability arising from performance of
official duties by DA personnel.
(3) Actions affecting DA operations or activities or which might
require official action by DA personnel.
(4) Actions arising out of DA contracts, subcontracts, or purchase
orders wherein the government might be required to reimburse a
contractor for litigation expenses.
(5) Bankruptcy proceedings in which the United States or its
instrumentalities may have an interest, including bankruptcies involving
government contractors.
(b) Command and agency responsibility. Commanders and supervisors of
Army units, installations, or organizations will ensure reports required
by this section are promptly submitted.
(c) Reports to HQDA. Reports required by this regulation will be
made telephonically or mailed to the responsible organization at DA.
Appendix B to this part contains mailing addresses for these offices.
Except in the situations described below, reports required by
[[Page 86]]
this chapter will be made to Litigation Division:
(1) Actual or potential litigation (or administrative infringement
claims) involving patents, copyrights, or trademarks will be made to
Intellectual Property Law Division.
(2) Reports of pending or prospective litigation involving taxation
will be made to Contract Law Division.
(3) Communications, transportation, and utility services reports
will be made to Regulatory Law Office.
(4) Reports involving environmental and natural resource litigation
and administrative proceedings will be made to Environmental Law
Division.
(5) Potential civil recovery reports in cases of procurement fraud
and corruption will be made to Procurement Fraud Division.
(6) Reports involving the felony prosecution program and magistrate
court prosecutions will be made to Criminal Law Division, OTJAG.
(7) Cases before the Armed Services Board of Contract Appeals and
the General Services Board of Contract Appeals will be made to Contract
Appeals Division.
(d) Classified information. Information required by this regulation
will be submitted in an unclassified form if possible. If downgrading or
declassification is not feasible, the classified material should be
separated from the report and forwarded under separate cover.
(e) Other reporting requirements. Reports required by this chapter
are in addition to and do not satisfy any other reporting requirement,
such as the following: notifying the FBI of offenses pursuant to AR 27-
10; submitting serious incident reports pursuant to AR 190-40; reporting
procurement fraud or other irregularities per Defense Federal
Acquisition Regulation Supplement, section 209.406-3 (48 CFR 209.406-3);
reporting the exercise of criminal jurisdiction by foreign tribunals
over U.S. personnel pursuant to AR 27-50; or, reporting bankruptcies per
AR 37-103.
(f) Reports control exemption. The reports required herein are
exempt from reports control under AR 335-15, paragraphs 3-3a(5) and 5-
2e(4).
Sec. 516.16 Individual and supervisory procedures upon commencement
of legal proceedings.
(a) Individual procedures. DA personnel served with civil or
criminal process concerning a proceeding in which the United States has
an interest (Sec. 516.15) will immediately inform their supervisor and
furnish copies of process and pleadings. There is no requirement to
notify supervisors of purely private litigation.
(b) Supervisory procedures. When supervisors learn that legal
proceedings in which the United States has an interest have commenced,
the supervisor will forward a copy of all process and pleadings, along
with other readily available information, to the SJA or legal adviser.
If no legal officer is available locally, the documents will be
forwarded to the SJA or legal adviser of the next higher headquarters.
Sec. 516.17 SJA or legal adviser procedures.
(a) Immediate notice to HQDA. When an SJA or legal adviser learns of
litigation in which the United States has an interest, and it appears
that HQDA is not aware of the action, the SJA or legal adviser will
telephonically notify the responsible HQDA office. (See Sec.
516.15(c)). Immediate notice is particularly important when litigation
involves one of the following: a lawsuit against an employee in his
individual capacity; a motion for a temporary restraining order or
preliminary injunction; a habeas corpus proceeding; a judicial or
administrative proceeding involving less than 60 days to file an answer;
and, actions with possible Congressional, Secretarial, or Army Staff
interest. For legal proceedings instituted in foreign tribunals, the SJA
or legal adviser will also notify the major overseas commander concerned
and the appropriate U.S. Embassy or Legation. A telephonic report to
HQDA should include the following:
(1) Title or style of the proceeding.
(2) Full names and addresses of the parties.
(3) Tribunal in which the action is filed, date filed, docket
number, when and on whom service of process was made, and date by which
pleading or response is required.
[[Page 87]]
(4) Nature of the action, amount claimed or relief sought.
(5) Reasons for immediate action.
(b) Transmission of process, pleadings, and related papers. Unless
instructed otherwise by HQDA, the SJA or legal adviser will FAX or mail
HQDA a copy of all process, pleadings, and related papers. Use of
express mail or overnight delivery service is authorized.
(c) Notice to U.S. Attorney. If the legal proceeding is instituted
in the United States, the SJA or legal adviser, unless instructed
otherwise by HQDA, will notify the appropriate U.S. Attorney and render
assistance as required.
Sec. 516.18 Litigation alleging individual liability.
See subpart D for procedures to follow when DA personnel, as a
result of performance of official duties, are either sued in their
individual capacities or face criminal charges.
Sec. 516.19 Injunctive relief.
(a) General. Plaintiffs may attempt to force government action or
restraint in important operational matters or pending personnel actions
through motions for temporary restraining orders (TRO) or preliminary
injunctions (PI). Because these actions can quickly impede military
functions, immediate and decisive action must be taken.
(b) Notification to HQDA and U.S. Attorney. The SJA or legal adviser
will immediately notify Litigation Division or other appropriate office
at HQDA when a motion for TRO or PI has been, or is about to be, filed.
The SJA or legal adviser will also notify the responsible U.S. Attorney.
(c) Actions by SJA or legal adviser. The SJA or legal adviser will
assist the DOJ or DA attorney responsible for the litigation.
Installation attorneys or support personnel should begin accumulating
relevant documentary evidence and identifying witnesses. If requested,
installation attorneys will prepare a legal memorandum concerning the
motion, giving particular attention to the following issues relevant to
a court granting injunctive relief:
(1) Plaintiff's likelihood of success on the merits.
(2) Whether plaintiff will be irreparably harmed if injunctive
relief is not granted.
(3) Harm to defendant and other parties if injunctive relief is
granted.
(4) The public interest.
Sec. 516.20 Habeas Corpus.
(a) General. A soldier may file a writ of habeas corpus to challenge
his continued custody (usually in a post court-martial situation) or
retention in the Army. As is the case with injunctive relief in the
preceding paragraph, installation SJAs and legal advisers must take
immediate action.
(b) Notification to Litigation Division and U.S. Attorney. The SJA
or legal adviser will notify Litigation Division and the responsible
U.S. Attorney's Office immediately upon learning that a petition for
writ of habeas corpus has been filed. All relevant documentary evidence
supporting the challenged action should be assembled immediately.
(c) Procedures in habeas corpus. Upon the filing of a petition for a
writ of habeas corpus, the court will dismiss the petition, issue the
writ, or order the respondent to show cause why it should not be
granted. If a writ or order to show cause is issued, the SJA or legal
adviser should be prepared to assist the responsible Litigation Division
or DOJ attorney in preparing a return and answer. If so directed, the
SJA will also prepare a memorandum of points and authorities to
accompany the return and answer. The government's response should cover
the following: whether the Army has custody of petitioner; whether
respondent and petitioner are within the judicial district; and, whether
appellate or administrative remedies have been exhausted.
(d) Writs or orders issued by state courts. No state court, after
being judicially informed that a petitioner is in custody under the
authority of the United States, should interfere with that custody or
require that petitioner be brought before the state court. A deserter,
apprehended by any civil officer having authority to apprehend offenders
under the laws of the United States or of any state, district,
territory, or possession of the United States, is in custody by
authority of the United States. If a writ of habeas corpus is
[[Page 88]]
issued by a state court, the SJA or legal adviser will seek guidance
from Litigation Division.
(e) Foreign court orders. A foreign court should not inquire into
the legality of restraint of a person held by U.S. military authority.
If a foreign court issues any process in the nature of a writ of habeas
corpus, the SJA or legal adviser will immediately report the matter to
the appropriate U.S. forces commander and to Litigation Division.
Sec. 516.21 Litigation against government contractors.
(a) General. A contract might require that the government reimburse
a contractor (or subcontractor) for adverse judgments or litigation
expenses. Unless a contractor or subcontractor facing a lawsuit requests
representation by DOJ, the Army presumes the contractor will obtain
private counsel to defend the case. If the contract so allows, however,
the contractor may request and HQDA may recommend that DOJ represent the
contractor if it is in the best interests of the United States.
(b) Actions by SJA or legal adviser. If a contractor or
subcontractor faces litigation and the underlying contract with the
government requires reimbursement for adverse judgments or costs of the
litigation, the SJA or legal adviser, through the contracting officer,
should determine if the contractor desires representation by DOJ. If so,
the contractor or authorized agent will sign a request for
representation. (See figure D-3, appendix G, of this part.) The SJA or
legal adviser will determine whether, in his opinion, representation by
DOJ should be granted. He will prepare a memorandum to support his
recommendation, especially concerning any issue regarding the
government's obligation to reimburse the contractor under the contract.
The SJA or legal adviser will forward his memorandum, along with the
contractor's request, to Litigation Division.
(c) Actions by Litigation Division. The Chief, Litigation Division,
will evaluate the submission and decide if it is in the Army's best
interest that the request be granted. He will prepare a memorandum
supporting his decision and send the packet to DOJ. The Chief's decision
constitutes the final DA position on the matter. If DOJ grants the
contractor's request, the Chief, Litigation Division, will ensure that
the contractor is notified through the SJA or legal adviser and the
contracting officer.
(d) Private Counsel. A contractor represented by DOJ may ask that
private counsel assist the DOJ attorney in the litigation. The DOJ
attorney will remain in control of the litigation, and the fees for
private counsel will not be reimbursable except under unusual
circumstances. The contractor must seek both DOJ and DA approval to
employ private counsel when DOJ representation has been granted. Even if
DOJ and DA grant authority to employ private counsel, the contracting
officer will determine whether a contractor will be reimbursed under the
contract for private counsel.
(e) Settlement. The contractor, unless the contract specifies
otherwise, will ultimately decide whether to compromise a suit.
Reimbursement under the contract is determined by the contracting
officer, with the advice of his attorney.
Sec. 516.22 Miscellaneous reporting requirements.
SJAs or legal advisers will comply with the directives cited below
concerning actual or prospective litigation involving the following
types of cases:
(a) Taxation. (1) Contractor transactions. (FAR and DFARS, 48 CFR
parts 29 and 229).
(2) Army and Air Force Exchange Service (AAFES) activities. (AR 60-
20).
(3) Purchase or sale of alcoholic beverages. (AR 215-2).
(4) Nonappropriated fund and related activities. (AR 215-1).
(b) Tort and contract claims, insurance and litigation involving
nonappropriated fund activities. (AR 215-1).
(c) Annexation of Army lands. (AR 405-25).
(d) Communications, transportation, and utility services
administrative proceedings. Any contracting officer or other Army
official responsible for the acquisition of communications,
transportation, utilities (gas, electric, water and sewer), or military
mail services, who becomes aware of any action or proceeding of interest
to the Army,
[[Page 89]]
will promptly refer the matter to the SJA or legal adviser, who will
take the actions prescribed in Sec. 516.17 of this part. Examples of
actions requiring referral follow: new or amended rates, regulations, or
conditions of service; applications for authority to discontinue or
initiate service; changes in electromagnetic patterns causing adverse
communications interference; or, zoning proposals affecting historic or
aesthetic preservation. In addition, the SJA or legal adviser will
transmit the following to Regulatory Law Office:
(1) The names and addresses of any parties intervening and the
substance of their positions.
(2) Names of government users affected by any change.
(3) Copy of any proposed rates, rules, or regulations.
(4) A recommendation whether the Army should intervene in the action
or proceeding. If intervention is recommended, provide a memorandum to
support the recommendation.
(e) Legal proceedings overseas. Foreign communications,
transportation, and utility service proceedings need not be reported. In
other legal proceedings instituted in a foreign country, the SJA or
legal adviser will take the actions prescribed in Sec. 516.17 of this
part.
(f) Maritime claims. Admiralty and maritime claims within the
purview of Chapter 8, AR 27-20, which have been investigated and
processed under AR 55-19 or other applicable regulations, will be
referred to USARCS.
(g) Army and Air Force Exchange Service litigation. The SJA or legal
adviser will send a copy of all documents relating to litigation against
AAFES to General Counsel, AAFES, P.O. Box 660202, Dallas, TX 75266-0202.
(h) Bankruptcy. Reports of bankruptcy or insolvency proceedings
shall be made in accordance with this regulation and AR 37-103.
Sec. 516.23 Litigation reports.
The SJA or legal adviser will prepare a litigation report when
directed by HQDA. The report will contain the following sections:
Statement of Facts; Setoff or Counterclaim; Responses to Pleadings;
Memorandum of Law; Witness List; and, Exhibits.
(a) Statement of Facts. Include a complete statement of the facts
upon which the action and any defense thereto are based. Where possible,
support facts by reference to documents or witness statements. Include
details of previous administrative actions, such as the filing and
results of an administrative claim. If the action is predicated on the
Federal Tort Claims Act, include a description of the plaintiff's
relationship to the United States, its instrumentalities, or its
contractors. Also include a statement whether an insurance company or
other third party has an interest in the plaintiff's claim by
subrogation or otherwise and whether there are additional claims related
to the same incident.
(b) Setoff or Counterclaim. Discuss whether setoff or counterclaim
exists. If so, highlight the supportive facts.
(c) Responses to Pleadings. Prepare a draft answer or other
appropriate response to the pleadings. (See figure C-1, to this part).
Discuss whether allegations of fact are well-founded. Refer to evidence
that refutes factual allegations.
(d) Memorandum of Law. Include a brief statement of the applicable
law with citations to legal authority. Discussions of local law, if
applicable, should cover relevant issues such as measure of damages,
scope of employment, effect of contributory negligence, or limitations
upon death and survival actions. Do not unduly delay submission of a
litigation report to prepare a comprehensive memorandum of law.
(e) Potential witness information. List each person having
information relevant to the case and provide an office address and
telephone number. If there is no objection, provide the individual's
social security account number, home address, and telephone number. This
is ``core information'' required by Executive Order No. 12778 (Civil
Justice Reform). Finally, summarize the information or potential
testimony that each person listed could provide.
(f) Exhibits. (1) Attach a copy of all relevant documents. This is
``core information'' required by Executive Order No. 12778 (Civil
Justice Reform). Unless otherwise directed by HQDA,
[[Page 90]]
each exhibit should be tabbed and internally paginated. References to
exhibits in the litigation report should be to page numbers of
particular exhibits.
(2) Copies of relevant reports of claims officers, investigating
officers, boards or similar data should be attached, although such
reports will not obviate the requirement for preparation of a complete
litigation report.
(3) Prepare an index of tabs and exhibits.
(4) Where a relevant document has been released pursuant to a FOIA
request, provide a copy of the response, or otherwise identify the
requestor and the records released.
(g) Distribution and number of copies. Unless HQDA directs
otherwise, SJAs or legal advisers will mail (first class) an original
and one copy of the litigation report to the responsible HQDA office
(See Sec. 516.15 of this part) and one copy to the U.S. Attorney's
Office handling the case. If possible, record the litigation report onto
a magnetic diskette, using either WordPerfect, Enable, or ACSII, and
send it to Litigation Division.
Sec. 516.24 Preservation of evidence.
Because documents needed for litigation or administrative
proceedings are subject to routine destruction, the SJA or legal adviser
will ensure that all relevant documents are preserved.
Sec. 516.25 DA Form 4.
(a) General. The DA Form 4 (See figure C-2, appendix G, of this
part) is used to authenticate Army records or documents. Documents
attached to a properly prepared and sealed DA Form 4 are self-
authenticating. (See Fed. R. Evid. 902).
(b) Preparation at the installation level. A DA Form 4 need not be
prepared until the trial attorney presenting the government's case
identifies documents maintained at the installation level which he will
need at trial. Once documents are identified, the custodian of the
documents will execute his portion of the DA Form 4. (See figure C-2,
appendix G, of this part). The custodian certifies that the documents
attached to the DA Form 4 are true copies of official documents.
Documents attached to each form should be generally identified; each
document need not be mentioned specifically. Only the upper portion of
the form should be executed at the local level.
(c) Actions at HQDA. Upon receipt of the DA Form 4 with documents
attached thereto, HQDA will affix a ribbon and seal and deliver it to
the Office of the Administrative Assistant to the Secretary of the Army.
That office will place the official Army seal on the packet.
Sec. 516.26 Unsworn declarations under penalty of perjury.
(a) General. Under the provisions of 28 U.S.C. l746, whenever any
matter is required or permitted to be established or proven by a sworn
statement, oath or affidavit, such matter may also be established or
proven by an unsworn written declaration under penalty of perjury.
Because such declaration does not require a notary or other official to
administer oaths, individuals preparing statements for use in litigation
should consider using this format. (See figure C-3, appendix G, of this
part).
(b) When executed within the United States. Place the following at
the end of the witness statement:
I declare under penalty of perjury that the foregoing is true and
correct. (28 U.S.C. 1746).
Executed on
________________________________________________________________________
(Date) (Signature)
(c) When executed outside the United States. Place the following at
the end of the witness statement:
I declare under penalty of perjury under the laws of the United
States of America that the foregoing is true and correct. (28 U.S.C.
1746).
Executed on
________________________________________________________________________
(Date) (Signature)
Subpart D_Individual Liability
Sec. 516.27 Scope.
This subpart guidance when DA personnel, as a result of the
performance of their official duties, are either sued in their personal
capacity, or are charged in a criminal proceeding. Examples of civil
actions alleging individual liability include the following: a medical
malpractice lawsuit against health care providers; suits resulting
[[Page 91]]
from motor vehicle accidents; constitutional torts; or, common law torts
such as assault, libel, or intentional infliction of emotional distress.
Likewise, state or Federal criminal charges can arise from the
performance of official duties, including environmental crimes or motor
vehicle accidents.
Sec. 516.28 Policy.
(a) General. Commanders, supervisors, and SJAs or legal advisers
will give highest priority to compliance with the requirements of this
chapter with regard to current or former DA personnel who face criminal
charges or civil litigation in their individual capacity as a result of
performance of their official duties.
(b) DOJ policy on representation. If in the best interest of the
United States, upon request of the individual concerned, and upon
certification by his agency that he was acting within the scope of his
employment, DOJ may represent present and former DA personnel sued
individually as a result of actions taken within the scope of their
employment. Representation can be declined for a variety of reasons,
including but not limited to the following: the employee was not acting
within the scope of his office; there is a conflict of interest; or,
actions were not taken in a good faith effort to conform to law.
Sec. 516.29 Federal statutes and regulations.
(a) Federal Tort Claims Act (FTCA). (28 U.S.C. 1346(b), 2671-2680).
A waiver of sovereign immunity which, with certain exceptions, makes the
United States liable for tort claims in the same manner as a private
individual.
(b) Federal Employees Liability Reform and Tort Compensation Act of
l988 (FELRTCA or the Westfall Act, Pub. L. No. 100-694, 102 Stat. 4563
(1988) (codified at and amending 28 U.S.C. 2671, 2674, 2679). FELRTCA,
by amending the Federal Tort Claims Act, makes the FTCA the exclusive
remedy for common law tort claims arising from actions taken by Federal
employees acting within the scope of employment. The law was passed to
eliminate problems caused by Westfall v. Erwin, 484 U.S. 292 (1988).
(c) 10 U.S.C. 1089 (Defense of certain suits arising out of medical
malpractice). This provision, commonly referred to as the Gonzales Act,
makes the FTCA the exclusive remedy for suits alleging medical
malpractice against a military health care provider.
(d) 28 CFR 50.15 (Representation of Federal officials and employees
by Department of Justice attorneys [. . .] in civil, criminal, and
congressional proceedings in which Federal employees are sued,
subpoenaed, or charged in their individual capacities). These DOJ
regulations set out the policy and procedures for requesting
representation in individual liability cases. See also 28 CFR part 15
(Defense of Certain Suits Against Federal Employees, etc.).
(e) 28 CFR 50.16 (Representation of Federal employees by private
counsel at Federal expense).
Sec. 516.30 Procedures for obtaining certification and DOJ
representation.
(a) SJA or legal adviser procedures. When an SJA or legal adviser
learns of a criminal charge or of a lawsuit alleging individual
liability against DA personnel as a result of performance of official
duties, he will take the following actions:
(1) Immediately notify Litigation Division and the appropriate U.S.
Attorney and FAX or express deliver copies of process and pleadings to
each office. Where time for response is limited, request that the U.S.
Attorney either petition the court for an extension of time, or provide
temporary counsel and representation pending formal approval.
(2) Investigate whether the employee was acting within the scope of
his office or employment. Obtain, if possible, statements from the
defendant, supervisors, and witnesses.
(3) Advise the individual defendant of the rights and conditions set
out in 28 CFR 50.15, which include the following:
(i) His right to request representation by a DOJ attorney and, in
appropriate cases, certification that he was acting within the scope of
employment. (See 28 U.S.C. 2679; 28 CFR 50.15).
(ii) The right to request private counsel at government expense,
subject to the availability of funds. (See 28 CFR 50.16).
(iii) That the United States is not obligated to pay or indemnify
defendant
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for any judgment rendered against him in his individual capacity.
(4) If the defendant desires certification or DOJ representation,
have him sign a request. (See figure D-1, appendix G, of this part).
Obtain a signed scope of employment statement from the defendant's
supervisor. (Figure D-2, appendix G, of this part).
(5) Prepare a report with, at a minimum, the following information:
facts surrounding the incident for which defendant is being sued and
those relating to scope of employment; the SJA's or legal adviser's
conclusions concerning scope of employment; and, a recommendation
whether certification by the Attorney General or representation by a DOJ
attorney should be granted.
(6) In cases involving National Guard personnel, address also the
following: whether defendant was acting in a state (Title 32 U.S.C.) or
Federal (Title 10 U.S.C.) capacity during relevant periods (include
orders); if defendant was acting under state authority, is it
nevertheless in the interest of the United States to represent the
individual; any impact on policies or practices of DA, the National
Guard Bureau, or DOD; whether the relief requested can be granted only
by a Federal officer or agency; and, whether Federal law or regulation
required actions by state officials.
(7) Send the report, request for representation, and scope of
employment statements to Chief, Litigation Division.
(b) Chief, Litigation Division, procedures. The Chief, Litigation
Division, will review the report and evidence regarding representation
and scope of employment and will determine whether certification and
representation are appropriate. He will send his recommendation to the
appropriate U.S. Attorney or office within DOJ. The Chief, Litigation
Division, will notify the defendant of DOJ's decision.
Sec. 516.31 Private counsel at government expense.
(a) General. DA personnel, sued in their individual capacity or
facing criminal charges as a result of performance of official duties,
have no right to employ a private sector counsel at government expense
or to expect reimbursement for the same. For proceedings in the United
States, a request for employment of counsel at government expense may be
approved by DOJ, contingent among other things upon availability of
funds and a determination that employment of private counsel at
government expense is in the best interests of the United States. (See
28 CFR 50.16). Special rules apply in overseas areas. (See paragraph (e)
of this section).
(b) Individual request procedures. The individual will prepare a
request that private counsel be employed for him at government expense.
The request must also contain the following statement: ``I understand
that the United States is not required to employ private counsel on my
behalf, and that I may be responsible for expenses incurred prior to
proper authorization by the Department of the Army or the Department of
Justice.''
(c) Supervisory and legal adviser procedures. The request will be
submitted through the individual's supervisors, who will make a
recommendation and forward the packet to the local SJA or legal adviser.
The SJA or legal adviser will prepare his own recommendation and forward
the matter to Litigation Division.
(d) Chief, Litigation Division, procedures. If the Chief, Litigation
Division, determines that the request for private counsel is
meritorious, he will prepare an appropriate recommendation and forward
the packet to Civil Division, DOJ, for final approval.
(e) Special actions in foreign countries. Employment of private
counsel in foreign proceedings is governed by AR 27-50 (Status of Forces
Policies, Procedures, and Information). Under the authority of 10 U.S.C.
1037, soldiers, as well as employees or those accompanying the armed
forces overseas, may be granted individual counsel in civil and criminal
proceedings, under the criteria of AR 27-50.
Sec. 516.32 Requests for indemnification.
(a) Policy. An individual liable for a judgment rendered against him
in his
[[Page 93]]
individual capacity has no right to reimbursement from DA. DA will
consider, however, a request for indemnification from DA personnel where
conduct within the scope of official duties has resulted in personal
liability and indemnification is in the best interests of the United
States. Indemnification is strictly contingent upon an appropriation to
pay the judgment, as well as availability of such funds.
(b) Individual request procedures. An individual against whom an
adverse judgment has been rendered may request indemnification. The
request must include, at a minimum, the following: how the employee was
acting within the scope of his employment; whether the requestor has
insurance or any other source of indemnification; and, how reimbursement
is in the best interests of the United States. The request must also
contain the following statements: ``I understand that acceptance of this
request for indemnification for processing by DA does not constitute an
acceptance of any obligation to make such a payment. I also understand
that payment is contingent on availability of funds and that it will
only be made if such is determined to be in the best interests of the
United States.'' The individual should attach a copy of relevant
documents, for example, court's opinion, judgment, and other allied
papers.
(c) Supervisory and SJA procedures. The request for indemnification
will be submitted through supervisory channels to the local SJA or legal
adviser. Each supervisor will make a recommendation on the propriety of
reimbursement.
(d) Chief, Litigation Division, procedures. Requests for
indemnification will be forwarded to Chief, Litigation Division. The
Chief, Litigation Division, will examine the submission and, after
consultation with DOJ or other agencies, forward the packet with his
recommendation to the Army General Counsel. The General Counsel will
obtain a final decision by the Secretary of the Army or his designee on
the matter. There is no administrative appeal of the Secretary's (or his
designee's) decision.
Subpart E_Legal Proceedings Initiated by the United States Medical Care
and Property Claims
Sec. 516.33 General.
(a) Authorities. (1) Federal Medical Care Recovery Act (42 U.S.C.
2651). The act provides for the recovery of medical care expenses
incurred because of a tortfeasor's actions.
(2) Federal Claims Collection Act (31 U.S.C. 3711). The act provides
for the collection of claims for money or property arising from the
activities of Federal agencies.
(3) Third-party Collection Program (10 U.S.C. 1095). The statute
provides for collection of reasonable costs of health-care services,
provided in facilities of the uniformed services to covered
beneficiaries, from private insurers or third-party payers. In
accordance with DOD Instruction 6010.15, ``Third Party Collection (TPC)
Program,'' 7 March 1991, the authority to settle or waive a DOD claim
under the act is delegated to TJAG or to his designee.
(4) Executive Order No. 12778, (56 FR 55195; 3 CFR, 1991 Comp. p.
359), Civil Justice Reform. This order establishes several requirements
on Federal agencies involved in litigation or contemplating filing an
action on behalf of the United States.
(5) AR 27-20, Claims. Chapter l4 (Affirmative Claims) contains
comprehensive guidance for Recovery Judge Advocates (RJAs) in the
administrative determination, assertion, collection, settlement, and
waiver of claims in favor of the U.S. for property damage and for
medical care claims.
(b) Duties and procedures. In accordance with Chapter 14, AR 27-20,
Commander, USARCS, has supervisory responsibility over the
administrative processing of property and medical care claims by RJAs.
The Commander, U.S. Army Health Services Command (HSC), has supervisory
responsibility over the Third Party Collection Program (TPCP). The HSC
TPCP Implementation Plan effects DOD Instruction 6010.15 and establishes
procedures for processing TPC claims. Litigation Division, in
conjunction with DOJ and
[[Page 94]]
U.S. Attorneys, is responsible for pursuing, through litigation, claims
not resolved administratively. DOJ is ultimately responsible for
initiating litigation for the United States. (28 U.S.C. 515).
(c) Assertion of claims on behalf of the United States by private
attorneys. The Army incurs potentially recoverable expenses when it
provides medical care to soldiers or dependents injured by tortfeasors
(for example, a soldier is hospitalized after an automobile accident).
When injured personnel employ a private attorney to sue the tortfeasor,
it may be in the Government's best interests to enter into an agreement
with the private attorney to include the Army's medical care claim.
(d) Statute of limitations. There is a three year statute of
limitations for actions in favor of the U.S. for money damages founded
upon tort. (28 U.S.C. 2415(b)). Limitations periods can vary, however,
depending upon the theory of liability and the jurisdiction involved.
RJAs must be alert to the applicable period of limitations. A case
referred for litigation should arrive at Litigation Division at least 6
months before the expiration of the limitations period.
(e) Reporting of recoveries. Amounts recovered through litigation
will be reported to USARCS by Tort Branch, Litigation Division, or,
where referred directly to a U.S. Attorney or the Nationwide Central
Intake Facility (NCIF), by the responsible RJA.
Sec. 516.34 Referral of medical care and property claims for litigation.
(a) Criteria for referral. The RJA will forward the claims file and
a litigation report (See Sec. 516.35 of this part) through USARCS to
Litigation Division when the claim has not been resolved
administratively and any of the following conditions exist:
(1) The claim exceeds $5,000;
(2) It involves collection from the injured party or his attorney;
(3) The claim raises an important question of policy; or,
(4) There is potential for a significant precedent.
(b) Alternative methods. When none of the conditions cited in the
preceding subparagraph are present, the RJA may refer the claim directly
to the U.S. Attorney for the district in which the prospective defendant
resides. Similar property claims may be referred through USARCS to DOJ's
Nationwide Central Intake Facility (NCIF) rather than directly to the
U.S. Attorney. Notice of all such referrals shall be provided through
USARCS to Tort Branch, Litigation Division. The RJA should be ready to
provide support to the U.S. Attorney if requested.
(c) Closing files. A file referred directly to the U.S. Attorney
will be closed if the U.S. Attorney determines further action is
unwarranted. If the RJA disagrees, the file should be forwarded with the
RJA's recommendation through USARCS to Litigation Division.
Sec. 516.35 Preparation of claims for litigation.
(a) General. In preparing a referral for litigation the RJA will
ensure the file contains at least the following:
(1) A litigation report (See Sec. 516.23 of this part) that
demonstrates a factual basis for the claim and a theory of recovery
under applicable state law. (See Fed. R. Civ. P. 11)
(2) Copies of all medical records and bills reflecting the
reasonable value of the medical care furnished to the injured party,
including DA Form 2631-R (Medical Care-Third Party Liability
Notification), and DA Form 3154 (MSA Invoice and Receipt). These
documents should be authenticated as necessary on a DA Form 4.
(3) Copies of all documents necessary to establish the value of lost
or damaged property.
(b) Transmittal letter. The letter of transmittal referring the
claim for litigation should briefly summarize the facts giving rise to
the claim and the collection actions previously taken by the Army and
the injured party.
Assertion of Other Claims
Sec. 516.36 Referral to Litigation Division.
(a) General. The majority of cases filed on behalf of the United
States will fall under this subpart E. All other civil cases which
cannot be resolved administratively or by direct referral
[[Page 95]]
to DOJ will be forwarded through channels to Litigation Division with a
litigation report. (See Sec. 516.23 of this part).
(b) Government contractors. It may be in the Government's best
interest to authorize a Government contractor, whose contract provides
for the reimbursement of necessary legal expenses, to employ private
counsel to initiate legal proceedings against a third party. To obtain
authorization to employ private counsel in such instances the contractor
should follow the procedures in Sec. 516.21(c) of this part.
Sec. 516.37 Proceedings to repossess government real property or
quarters or to collect delinquent rent.
(a) General. U.S. Attorneys are authorized to accept a Federal
agency's request for the following purposes: to initiate an action to
recover possession of real property from tenants, trespassers, and
others; to enjoin trespasses on Federal property; and, to collect
delinquent rentals or damages for use and occupancy of real property for
amounts less than $200,000.
(b) Procedures. When eviction or an action to collect delinquent
rent is necessary, the SJA or legal adviser will notify General
Litigation Branch, Litigation Division, of the situation. If approved by
Litigation Division, the SJA or legal adviser may ask the U.S. Attorney
to file suit. A copy of the complaint will be sent to Litigation
Division. DOJ can take action to evict the occupants for violation of
the terms of occupancy and collect delinquent rent or other charges.
Once the matter has been referred to the U.S. Attorney, payments for
rent should be sent to the U.S. Attorney. (See AR 210-50, chap 2.)
Subpart F_Environmental Litigation
Sec. 516.38 Scope.
This subpart contains guidance, policies, and procedures applicable
to all environmental and natural resources civil litigation and
administrative proceedings involving missions and functions of DA, its
major and subordinate commands, all installations presently or
previously managed by DA, and all other sites or issues in which DA has
a substantial interest. In this chapter, ``litigation'' includes civil
administrative proceedings.
Sec. 516.39 Duties and procedures.
(a) Water rights. Environmental Law Division will conduct direct
liaison with DOJ and will represent DA in State and Federal litigation
relating to availability and allocation of surface and ground water and
the establishment and protection of water rights for Army military
installations and activities. This will include litigation in State
general adjudications of water rights under the McCarran Amendment, 43
U.S.C. 666, for Army military installations and activities. Such
litigation relating solely to COE civil works projects or activities
will be handled by attorneys under the technical supervision of the
Chief Counsel, COE. With respect to any general adjudication which could
affect the civil works or real property functions of COE, The Judge
Advocate General, acting through the Chief, Environmental Law Division,
and Chief Counsel, COE, will jointly determine which office should
maintain primary direct liaison with DOJ and will scope and execute
appropriate coordination with each other and with the General Counsel
with respect to that litigation.
(b) Navigable waters. The Chief Counsel, COE, will conduct direct
liaison with DOJ and represent DA in civil litigation involving
activities in or across navigable waters of the United States or other
activities regulated under the Rivers and Harbors Act of 1899, 33 U.S.C.
401 et seq.
(c) Waters of the United States. The Chief Counsel, COE, will
conduct direct liaison with DOJ and represent DA in civil litigation
involving The Clean Water Act section 404 (See 33 U.S.C. 1344) permit
authority of COE over the discharge of dredged or fill material into
waters of the United States.
(d) Enforcement. Environmental Law Division will conduct direct
liaison with DOJ and represent DA in all civil litigation involving
citizen or State enforcement of applicable State, Federal and local
requirements respecting the control or abatement of pollution and
[[Page 96]]
involving the management of hazardous wastes, with respect to the
missions and functions of, and Federal facilities owned or controlled
by, DA, except for civil works facilities.
(e) Environmental response--(1) Except as provided in (a)(2) of this
section. Environmental Law Division will conduct direct liaison with DOJ
and represent DA in all civil litigation seeking declaratory or
injunctive relief or involving claims of Army liability for the costs of
response at Federal facilities currently owned or controlled by DA and
at other sites where the Army is a potentially responsible party.
(2) The Chief Counsel, COE, will conduct direct liaison with DOJ and
represent DA in all civil litigation seeking declaratory or injunctive
relief or involving claims of Army liability for the costs of response
at civil works facilities, at former defense sites or at other sites
where the Army is a potentially responsible party due to the response
actions of the COE or its contractors.
(f) Fish and wildlife, and plants. Environmental Law Division will
conduct direct liaison with DOJ and represent DA in civil litigation
involving citizen or State enforcement of applicable State, Federal, and
local laws governing conservation of plant, fish, and wildlife resources
at Federal facilities owned or controlled by DA, except that such
litigation relating solely to the real estate, civil works, navigation
and Clean Water Act section 404 (See 33 U.S.C. 1344) permit functions
and activities of the COE will be handled by attorneys under the
technical supervision of the Chief Counsel, COE.
(g) Toxic torts. (1) Except as otherwise provided in this part,
Environmental Law Division will conduct direct liaison with DOJ and
represent DA in all civil litigation involving claims of tort liability
for exposure to environmental contamination emanating from Federal
facilities owned or controlled by DA.
(2) Litigation Division will conduct liaison with DOJ and represent
DA in civil litigation involving claims of tort liability for singular
and discrete incidents of exposure to environmental contamination
emanating from any Federal facility owned or controlled by DA.
(3) The Chief Counsel, COE, will conduct direct liaison with DOJ and
will represent DA in civil litigation involving claims of tort liability
for exposure to environmental contamination (including singular and
discrete incidents) emanating from any civil works activities under the
jurisdiction of the Secretary of the Army.
(4) The Chief Counsel, COE, and Chief, Environmental Law Division,
will confer and jointly determine which office will conduct direct
liaison with DOJ and represent DA in civil litigation involving all
other claims of toxic tort liability.
Subpart G_Release of Information and Appearance of Witnesses Scope
Sec. 516.40 General.
(a) Introduction. This subpart implements DOD Directive 5405.2 (See
appendix C to this part and 32 CFR part 97). It governs the release of
official information and the appearance of present and former DA
personnel as witnesses in response to requests for interviews, notices
of depositions, subpoenas, and other requests or orders related to
judicial or quasi-judicial proceedings. Requests for records, if not in
the nature of legal process, should be processed under AR 25-55 (The
Department of the Army Freedom of Information Act Program) or AR 340-21
(The Army Privacy Program). This subpart pertains to any request for
witnesses, documents, or information for all types of litigation,
including requests by private litigants, requests by State or U.S.
attorneys, requests by foreign officials or tribunals, subpoenas for
records or testimony, notices of depositions, interview requests, civil
cases, criminal proceedings, private litigation, or litigation in which
the United States has an interest.
(b) Definitions. (See appendix F to this part).
Sec. 516.41 Policy.
(a) General Rule. Except as authorized by this subpart, present or
former DA personnel will not disclose official information (See appendix
F--Glossary)
[[Page 97]]
in response to subpoenas, court orders, or requests.
(b) Exception. Present or former DA personnel may disclose official
information if they obtain the written approval of the appropriate SJA,
legal adviser, or Litigation Division.
(c) Referral to deciding official. If present or former DA personnel
receive a subpoena, court order, request for attendance at a judicial or
quasi-judicial proceeding, or request for an interview related to actual
or potential litigation, and it appears the subpoena, order, or request
seeks disclosures described in a above, the individual should
immediately advise the appropriate SJA or legal adviser. If the SJA or
legal adviser cannot informally satisfy the subpoena, order, or request
in accordance with Sec. Sec. 516.43 through 516.50 of this subpart, he
should consult with Litigation Division.
(d) Requesters' responsibilities. Individuals seeking official
information must submit, at least 14 days before the desired date of
production, a specific written request setting forth the nature and
relevance of the official information sought. (Requesters can be
referred to this subpart G). Subject to Sec. 516.47(a), present and
former DA personnel may only produce, disclose, release, comment upon,
or testify concerning those matters specified in writing and properly
approved by the SJA, legal adviser, or Litigation Division. (See United
States ex. rel. Touhy v. Ragen, 340 U.S. 462 (1951)).
(e) Litigation in which the United States has an interest. If a
subpoena, order, or request relates to litigation in which the United
States has an interest and for which litigation responsibility has not
been delegated, the SJA or legal adviser will coordinate with Litigation
Division under Sec. 516.42.
(f) Motions to stay or quash subpoenas. A subpoena should never be
ignored, and an SJA or legal adviser should seek assistance from
Litigation Division or the U.S. Attorney's office whenever necessary. If
a response to a subpoena or order is required before a release
determination can be made or before Litigation Division or the U.S.
Attorney can be contacted, the SJA or legal adviser will do the
following:
(1) Furnish the court or tribunal a copy of this regulation (32 CFR
part 516, subpart G) and applicable case law (See United States ex. rel.
Touhy v. Ragen, 340 U.S. 462 (1951));
(2) Inform the court or tribunal that the requesting individual has
not complied with this Chapter, as set out in 32 CFR 97 & 516, or that
the subpoena or order is being reviewed;
(3) Seek to stay the subpoena or order pending the requestor's
compliance with this chapter or final determination by Litigation
Division; and,
(4) If the court or other tribunal declines to quash or stay the
subpoena or order, inform Litigation Division immediately so a decision
can be made whether to challenge the subpoena or order. If Litigation
Division decides not to challenge the subpoena or order, the affected
personnel will comply with the subpoena or order. If Litigation Division
decides to challenge the subpoena or order, it will direct the affected
personnel to respectfully decline to comply with the subpoena or order.
(See United States ex. rel. Touhy v. Ragen, 340 U.S. 462 (1951)).
(g) Classified or sensitive information. Only Litigation Division
may authorize the release of official information or appearance of DA
personnel as witnesses in litigation involving terrorism, espionage,
nuclear weapons, or intelligence sources and methods.
(h) Requests for Inspector General records or testimony. IG records,
and information obtained through performance of IG duties, are official
information under the exclusive control of the Secretary of the Army.
(See AR 20-l, Chapter 3.) IG records frequently contain sensitive
official information that may be classified or obtained under guarantees
of confidentiality. When justification exists, DA attorneys will seek
court protection from disclosure of IG records and information. No DA
personnel will release IG records or disclose information obtained
through performance of IG duties without the approval of The Secretary
of the Army, The Inspector General, TIG Legal Advisor, or Chief,
Litigation Division. When IG personnel receive a subpoena, court order,
request for attendance at a judicial or quasi-judicial proceeding, or a
request for an interview which the IG
[[Page 98]]
reasonably believes is related to actual or potential litigation
concerning IG records or related information, they should immediately
notify the Inspector General Legal Adviser or the Chief, Litigation
Division. IG personnel will follow the guidance of this subpart
concerning actions to be taken regarding disclosure and testimony.
Sec. 516.42 Reference to HQDA.
(a) General. If the SJA or legal adviser is unable to resolve the
matter, it will be referred for approval or action by Litigation
Division under this chapter, by the most expeditious means, to General
Litigation Branch, Litigation Division, with the following exceptions:
(1) Those involving a case assigned to another branch of Litigation
Division will be submitted to that branch (appendix B to this part).
(2) Those involving affirmative litigation (for example, medical
care recovery or Army property damage or loss cases) under subpart E
will be submitted to Tort Branch.
(3) Those involving patents, copyrights, privately developed
technical information, or trademarks will be submitted to Intellectual
Property Law Division.
(4) Those involving taxation will be submitted to Contract Law
Division.
(5) Those involving communication, transportation, or utility
service proceedings will be submitted to the Regulatory Law Office.
(6) Those involving environmental matters will be submitted to the
Environmental Law Division.
(7) Those involving contract appeals cases before the ASBCA will be
submitted to the Contract Appeals Division.
(8) Those involving procurement fraud, including Qui Tam cases, will
be submitted to the Procurement Fraud Division.
(b) Information to be submitted. When referring matters pursuant to
paragraph (a) of this section, the following data should be provided:
(1) Parties (named or prospective) to the proceeding, their
attorneys, and case number, where appropriate.
(2) Party making the request (if a subpoena, indicate moving party)
and his attorney.
(3) Name of tribunal in which the proceeding is pending.
(4) Nature of the proceeding.
(5) Date of receipt of request or date and place of service of
subpoena.
(6) Name, grade, position, and organization of person receiving
request or served with subpoena.
(7) Date, time, and place designated in request or subpoena for
production of information or appearance of witness.
(8) Nature of information sought or document requested, and place
where document is maintained.
(9) A copy of each document requested. Contact the appropriate
office at HQDA if this would be burdensome and unnecessary to a decision
whether to release, redact, or withhold a particular document.
(10) Name of requested witness, expected testimony, requested
appearance time and date, and whether witness is reasonably available.
(11) Analysis of the problem with recommendations.
Release of Records in Connection With Litigation
Sec. 516.43 Release of Army and other agency records.
(a) Preservation of originals. To preserve the integrity of DA
records, DA personnel will submit properly authenticated copies rather
than originals of documents or records for use in legal proceedings,
unless directed otherwise by Litigation Division. (See 28 U.S.C. 1733.)
(b) Authentication of copies. Copies of DA records approved for
release can be authenticated for introduction in evidence by use of DA
Form 4. (See Sec. 516.25 for instructions.)
(1) Records maintained in U.S. Army Engineer Districts and Divisions
will be forwarded to HQDA(CECC-K), WASH DC 20314-1000.
(2) All other records will be forwarded to the appropriate office at
HQDA (See Sec. 516.42).
(c) Fees and charges. AR 37-60 prescribes the schedule of fees and
charges for searching, copying, and certifying
[[Page 99]]
Army records for release in response to litigation-related requests.
(d) Release of records of other agencies. Normally an individual
requesting records originating in agencies outside DA (that is, FBI
reports, local police reports, civilian hospital records) that are also
included in Army records should be advised to direct his inquiry to the
originating agency.
Sec. 516.44 Determination of release authorization.
(a) Policy. DA policy is to make official information 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.
(b) Releasability factors. In deciding whether to authorize release
of official information, the deciding official should consider the
following:
(1) Has the requester complied with DA policy governing the release
of official documents in Sec. 516.41(d) of this part.
(2) Is the request unduly burdensome or otherwise inappropriate
under the applicable court rules?
(3) Is the disclosure appropriate under the rules of procedure
governing the matter in which the request arose?
(4) Would the disclosure violate a statute, executive order,
regulation, or directive?
(5) Is the disclosure appropriate under the relevant substantive law
concerning privilege?
(6) Would the disclosure reveal information properly classified
pursuant to the DOD Information Security Program under AR 380-5,
unclassified technical data withheld from public release pursuant to 32
CFR Sec. 250, or other matters exempt from unrestricted disclosure?
(7) Would disclosure interfere with ongoing enforcement proceedings,
compromise constitutional rights, reveal the identity of an intelligence
source or confidential informant, disclose trade secrets or confidential
commercial or financial information, or, otherwise be inappropriate
under the circumstances?
(8) Would the disclosure violate any person's expectation of
confidentiality or privacy?
Sec. 516.45 Records determined to be releasable.
If the deciding official, after considering the factors set forth in
Sec. 536.44, determines that all or part of requested official records
are releasable, copies of the records should be furnished to the
requester.
Sec. 516.46 Records determined not to be releasable.
(a) General. If the deciding official, after considering the factors
in Sec. 516.44, determines that all or part of requested official
records should not be released, he will promptly communicate directly
with the attorney or individual who caused the issuance of the subpoena,
order, or request and seek to resolve the matter informally. If the
subpoena or order is invalid, he should explain the basis of the
invalidity. The deciding official should also explain why the records
requested are privileged from release. The deciding official should
attempt to obtain the agreement of the requester to withdraw the
subpoena, order, or request or to modify the subpoena, order, or request
so that it pertains only to records which may be released. (See figure
G-1, appendix G, of this part.)
(b) Information protected by the Privacy Act. (1) A subpoena duces
tecum or other legal process signed by an attorney or clerk of court for
records protected by the Privacy Act, 5 U.S.C. 552a, does not justify
the release of the protected records. The deciding official should
explain to the requester that the Privacy Act precludes disclosure of
records in a system of records without the written consent of the
subject of the records or ``pursuant to the order of a court of
competent jurisdiction.'' (See 5 U.S.C. 552a(b)(11)). An ``order of the
court'' for the purpose of subsection 5 U.S.C. 552a(b)(11) is an order
or writ requiring the production of the records, signed by a judge or
magistrate.
(2) Unclassified records otherwise privileged from release under 5
U.S.C. 552a may be released to the court under either of the following
conditions:
[[Page 100]]
(i) The subpoena is accompanied by an order signed by a judge or
magistrate, or such order is separately served, that orders the person
to whom the records pertain to release the specific records, or that
orders copies of the records be delivered to the clerk of court, and
indicates that the court has determined the materiality of the records
and the nonavailability of a claim of privilege.
(ii) The clerk of the court is empowered by local statute or
practice to receive the records under seal subject to request that they
be withheld from the parties until the court determines whether the
records are material to the issues and until any question of privilege
is resolved.
(iii) Subpoenas for alcohol abuse or drug abuse treatment records
must be processed under 42 U.S.C. 290dd-3 and 290ee-3, and Public Health
Service regulations published at 42 CFR 2.1-2.67.
(iv) Upon request, SJAs and legal advisers may furnish to the
attorney for the injured party or the tortfeasor's attorney or insurance
company a copy of the narrative summary of medical care that relates to
a claim under subpart E of this part. If additional medical records are
requested, only those that directly pertain to the pending action will
be furnished. If furnishing copies of medical records would prejudice
the cause of action, the matter will be reported to Litigation Division.
(c) Referral to Litigation Division. If the SJA or legal adviser is
not able to resolve a request for Army records informally, he should
contact Litigation Division.
(1) Litigation Division may respond to subpoenas or orders for
records privileged from release by informing the local U.S. Attorney
about the subpoena and requesting that office file a motion to quash the
subpoena or a motion for a protective order. The records privileged from
release should be retained by the custodian pending the court's ruling
upon the government's motion.
(2) When a motion to quash or for a protective order is not filed,
or the motion is unsuccessful, and the appropriate DA official has
determined that no further efforts will be made to protect the records,
copies of the records (authenticated if necessary) will be submitted to
the court (or to the clerk of court) in response to the subpoena or
order.
(d) Classified and privileged materials. Requests from DOJ, U.S.
Attorneys, or attorneys for other governmental entities for records
which are classified or otherwise privileged from release will be
referred to Litigation Division. (See Sec. 516.41(g).
DA Personnel as Witnesses in Private Litigation
Sec. 516.47 Response to subpoenas, orders, or requests for witnesses.
(a) Policy. The involvement of present or former DA personnel in
private litigation is solely a personal matter between the witness and
the requesting party, unless one or more of the following conditions
apply:
(1) The testimony involves official information. (See appendix F--
Glossary to this part).
(2) The witness is to testify as an expert.
(3) The absence of the witness from duty will seriously interfere
with the accomplishment of a military mission.
(b) Former DA personnel. Former DA personnel may freely respond to
requests for interviews and subpoenas except in instances involving
official information (paragraph (a)(1) of this section) or concerning
expert testimony prohibited by Sec. 516.49. In those instances, the
subject of the request or subpoena should take the action specified in
Sec. Sec. 516.41(c) and 516.42.
(c) Present DA personnel. Present DA personnel will refer all
requests for interviews and subpoenas for testimony in private
litigation through their supervisor to the appropriate SJA or legal
adviser.
(d) Discretion to testify. Any individual not wishing to grant an
interview or to testify concerning private litigation may seek the
advice of an Army attorney concerning the consequences, if any, of
refusal. Any individual not authorized to consult with Army counsel
should consult with private counsel, at no expense to the government.
Sec. 516.48 Official information.
(a) In instances involving Sec. 516.47(a)(1), the matter will be
referred
[[Page 101]]
to the SJA or legal adviser serving the organization of the individual
whose testimony is requested, or to HQDA pursuant to Sec. 516.47(a).
The deciding official will determine whether to release the information
sought under the principles established in Sec. 516.44. If funding by
the United States is requested, see Sec. 516.55(d).
(b) If the deciding official determines that the information may be
released, the individual will be permitted to be interviewed, deposed,
or to appear as a witness in court provided such interview or appearance
is consistent with the requirements of Sec. Sec. 516.49 and 516.50.
(See, for example, figure G-2, appendix G, to this part). A JA or DA
civilian attorney should be present during any interview or testimony to
act as legal representative of the Army. If a question seeks information
not previously authorized for release, the legal representative will
advise the witness not to answer. If necessary to avoid release of the
information, the legal representative will advise the witness to
terminate the interview or deposition, or in the case of testimony in
court, advise the judge that DOD directives and Army regulations
preclude the witness from answering without HQDA approval. Every effort
should be made, however, to substitute releasable information and to
continue the interview or testimony.
Sec. 516.49 Expert witnesses.
(a) General rule. Present DA personnel will not provide, with or
without compensation, opinion or expert testimony either in private
litigation or in litigation in which the United States has an interest
for a party other than the United States. Former DA personnel will not
provide, with or without compensation, opinion or expert testimony
concerning official information, subjects, or activities either in
private litigation or in litigation in which the United States has an
interest for a party other than the United States. (See figure G-3,
appendix G of this part). An SJA or legal adviser is authorized to deny
a request for expert testimony, which decision may be appealed to
Litigation Division.
(b) Exception to the general prohibition. If a requester can show
exceptional need or unique circumstances, and the anticipated testimony
will not be adverse to the interests of the United States, Litigation
Division may grant special written authorization for present or former
DA personnel to testify as expert or opinion witnesses at no expense to
the United States. In no event may present or former DA personnel
furnish expert or opinion testimony in a case in which the United States
has an interest for a party whose interests are adverse to the interests
of the United States.
(c) Exception for AMEDD personnel. Members of the Army medical
department or other qualified specialists may testify in private
litigation with the following limitations (See figure G-4, appendix G,
of this part):
(1) The litigation involves patients they have treated,
investigations they have made, laboratory tests they have conducted, or
other actions taken in the regular course of their duties.
(2) They limit their testimony to factual matters such as the
following: their observations of the patient or other operative facts;
the treatment prescribed or corrective action taken; course of recovery
or steps required for repair of damage suffered; and, contemplated
future treatment.
(3) Their testimony may not extend to expert or opinion testimony,
to hypothetical questions, or to a prognosis.
(d) Court-ordered expert or opinion testimony. If a court or other
appropriate authority orders expert or opinion testimony, the witness
will immediately notify Litigation Division. If Litigation Division
determines it will not challenge the subpoena or order, the witness will
comply with the subpoena or order. If directed by Litigation Division,
however, the witness will respectfully decline to comply with the
subpoena or order. (See United States ex. rel. Touhy v. Ragen, 340 U.S.
462 (1951)).
(e) Expert witness fees. All fees tendered to present DA personnel
as an expert or opinion witness, to the extent they exceed actual
travel, meals, and lodging expenses of the witness, will be remitted to
the Treasurer of the United States.
[[Page 102]]
Sec. 516.50 Interference with mission.
If the absence of a witness from duty will seriously interfere with
the accomplishment of a military mission, the SJA or legal adviser will
advise the requesting party and attempt to make alternative
arrangements. If these efforts fail, the SJA or legal adviser will refer
the matter to Litigation Division.
Litigation in Which the United States Has an Interest
Sec. 516.51 Response to subpoenas, orders, or requests for witnesses.
(a) Referral to a deciding official. Requests, subpoenas, or orders
for official information, interviews or testimony of present or former
DA personnel in litigation or potential litigation in which the United
States has an interest, including requests from DOJ, will be resolved by
the SJA or legal adviser pursuant to the principles of this subpart.
Litigation Division will be consulted on issues that cannot be resolved
by the SJA or legal adviser.
(b) Reassignment of witnesses. When requested by the U.S. Attorney,
the SJA or legal adviser will ensure that no witnesses are reassigned
from the judicial district without advising the DOJ attorney. If a
witness is vital to the government's case and trial is imminent, the SJA
or legal adviser should make informal arrangements to retain the witness
in the command until trial. If this is not feasible, or if a
satisfactory arrangement cannot be reached with the DOJ attorney, the
SJA or legal adviser should notify Litigation Division.
Sec. 516.52 Expert witnesses.
Requests for present or former DA personnel as expert or opinion
witnesses from DOJ or other attorneys representing the United States
will be referred to Litigation Division unless the request involves a
matter that has been delegated by Litigation Division to an SJA or legal
adviser. In no event, may present or former DA personnel furnish expert
or opinion testimony in a case in which the United States has an
interest for a party whose interests are adverse to the interests of the
United States.
Sec. 516.53 News media and other inquiries.
News media inquiries regarding litigation or potential litigation
will be referred to the appropriate public affairs office. DA personnel
will not comment on any matter presently or potentially in litigation
without proper clearance. Local public affairs officers will refer press
inquiries to HQDA (SAPA), WASH DC 20310-1500, with appropriate
recommendations for review and approval by the Office of the Chief of
Public Affairs. All releases of information regarding actual or
potential litigation will be coordinated with Litigation Division prior
to release.
Status, Travel, and Expenses of Witnesses
Sec. 516.54 Witnesses for the United States.
(a) Status of witness. A military member authorized to appear as a
witness for the United States, including those authorized to appear
under Sec. 516.55(d), will be placed on temporary duty. If USAR or NG
personnel are requested as witnesses for the United States, and if their
testimony arises from their active duty service, they should be placed
on active duty to testify. The status of a civilian employee will be
determined under Federal Personnel Manual 630, subchapter 10. DA
personnel who appear as necessary witnesses for a party asserting the
government's claim for medical care expenses are witnesses for the
United States.
(b) Travel arrangements. Travel arrangements for witnesses for the
United States normally are made by DOJ through Litigation Division for
other than local travel. Litigation Division will issue instructions for
this travel, including fund citation, to the appropriate commander. A
U.S. Attorney, or an attorney asserting the government's medical care
claim under subpart E, may make arrangements for local travel through
the SJA or legal adviser for attendance of a witness who is stationed at
an installation within the same judicial district, or not more than 100
miles from the place where testifying. Other requests, including those
under Sec. 516.55(d), will be referred
[[Page 103]]
to Litigation Division. The instructions from Litigation Division, or
the request from the U.S. Attorney or the attorney asserting the
government's claim, will serve as a basis for the issuance of
appropriate travel orders by the local commander.
(c) Travel and per diem expenses. The witness' commander or
supervisor should ensure the witness has sufficient funds to defray
expenses. The SJA or legal adviser will provide assistance.
(1) Where local travel is performed at the request of a U.S.
Attorney and the testimony does not involve information acquired in the
performance of duties, transportation arrangements and any per diem
expenses are the responsibility of the U.S. Attorney.
(2) An attorney asserting the government's medical care or property
claim may be required to advance local travel expense money to the
witness requested and to include these in recoverable costs where the
government's claim is not large enough to justify expenditures of
government travel funds.
(3) Other local travel and per diem expense for cases involving Army
activities or claims are proper expenses of the command issuing the
orders.
(4) Litigation Division will furnish travel expense and per diem
funds for other than local travel and will receive reimbursement from
DOJ or other government agencies as appropriate.
Sec. 516.55 Witnesses for a State or private litigant.
(a) Status of witness. If authorized to appear as a witness for a
state or private litigant, and the testimony to be given relates to
information obtained in the performance of official duties, a military
member will attend in a permissive TDY status. If authorized to appear
as a witness, but the testimony does not relate to information obtained
in the performance of official duties, a military member may be granted
a pass or permissive TDY under AR 630-5, or be required to take ordinary
leave. The status of a civilian employee will be determined under 5 CFR
Chapter I.
(b) Travel arrangements. The requesting party or state agency will
make all travel arrangements for attendance of DA personnel authorized
to appear as witnesses for a state or private litigant. The local
commander may issue appropriate orders when necessary.
(c) Travel expenses. The United States may not pay travel, meals,
and lodging expenses of the witness, other than normal allowances for
subsistence pursuant to the DOD Military Pay and Allowances Entitlements
Manual. These expenses are solely a matter between the witness and the
party seeking his appearance. Witnesses ordinarily should be advised to
require advance payment of such expenses. Military personnel authorized
to appear in a pass or permissive TDY status are not entitled to receive
witness attendance fees, but may accept travel, meals, and lodging
expense money from the requesting litigant. All witness fees tendered
the military member, to the extent they exceed such actual expenses of
the member, will be remitted to the Treasurer of the United States. A
civilian employee authorized to appear in his or her official capacity
will accept the authorized witness fees, in addition to the allowance
for travel and subsistence, and make disposition of the witness fees as
instructed by his or her personnel office.
(d) Funding by the United States. Requests for DA personnel to
appear at government expense as witnesses in state or local proceedings
for a party other than the United States, including cases involving
domestic violence or child abuse, will be referred to Litigation
Division. Litigation Division may authorize travel and per diem expenses
under Sec. 516.54 when the case is one in which the United States has a
significant interest.
Sec. 516.56 Witnesses before foreign tribunals.
(a) Referral to the SJA. Requests or subpoenas from a foreign
government or tribunal for present DA personnel stationed or employed
within that country to be interviewed or to appear as witnesses will be
forwarded to the SJA of the command exercising general court-martial
jurisdiction over the unit to which the individual is assigned,
attached, or employed. The SJA will determine the following:
[[Page 104]]
(1) Whether a consideration listed in Sec. 516.47(a)(1) through
(a)(3) applies.
(2) Whether the information requested is releasable under the
principles established in Sec. 516.43 through Sec. 516.46.
(3) Whether the approval of the American Embassy should be obtained
because the person is attached to the Embassy staff or a question of
diplomatic immunity may be involved.
(b) United States has an interest in the litigation. If the SJA
determines that the United States has an interest in the litigation, the
commander may authorize the interview or order the individual's
attendance in a temporary duty status. The United States will be deemed
to have an interest in the litigation if it is bound by treaty or other
international agreement to ensure the attendance of such personnel.
(c) United States has no interest in the litigation. If the SJA
determines that the United States does not have an interest in the
litigation, the commander may authorize the interview or the appearance
of the witness under the principles established in Sec. 516.47 through
Sec. 516.50.
(d) Witnesses located outside the requester's country. If the
requested witness is stationed in a country other than the requester's,
the matter will be referred to Litigation Division.
Subpart H_Remedies in Procurement Fraud and Corruption
Sec. 516.57 Purpose.
This subpart delineates the policies, procedures, and
responsibilities for reporting and resolving allegations of procurement
fraud or irregularities (PFI) within DA. It implements DOD Directive
7050.5. (See appendix D to this part.)
Sec. 516.58 Policies.
(a) Procurement fraud and irregularities will be promptly and
thoroughly addressed whenever encountered. Reports will be initiated in
a timely manner and will be supplemented as appropriate.
(b) Investigations will be monitored to see that interim corrective
action is taken and that final action is taken as expeditiously as
possible.
(c) This regulation establishes the Procurement Fraud Division
(PFD), U.S. Army Legal Services Agency, as the single centralized
organization within the Army to coordinate and monitor criminal, civil,
contractual, and administrative remedies in significant cases of fraud
or corruption relating to Army procurement.
(d) The key elements of the Army's procurement fraud program follow:
centralized policy making and program direction; fraud remedies
coordination; decentralized responsibility for operational matters, such
as reporting and remedial action; continuous case monitorship by PFD
from the initial report until final disposition; and, command-wide fraud
awareness training.
(e) Remedies for PFI will be pursued in a timely manner and properly
coordinated with other agencies. Every effort will be made to support
criminal investigation and prosecution of fraudulent activity.
(f) A specific remedies plan will be formulated for each significant
case of fraud or corruption involving procurement.
(g) Coordination on the status and disposition of cases will be
maintained between PFD, OTJAG, PFI Coordinators at MACOMs, and
Procurement Fraud Advisers at subordinate commands. Coordination of
procurement and personnel actions will be accomplished with
investigative agencies as required by those agencies.
(h) Training which relates to fraud and corruption in the
procurement process is a significant element of this program.
Sec. 516.59 Duties and procedures.
(a) TJAG has overall responsibility for the coordination of remedies
in procurement fraud and corruption within the Army. This responsibility
has been delegated to PFD. Functions of PFD will include the following:
(1) Serving as the single centralized organization in the Army to
monitor the status of, and ensure the coordination of, criminal, civil,
contractual, and administrative remedies for each significant case of
fraud or corruption.
(2) Receiving reports of procurement fraud and corruption from any
source
[[Page 105]]
including, but not limited to the following: DOD criminal investigative
organizations; audit agencies; contracting officers; inspectors general
of the executive branch; correspondence from the public; and,
commanders. This provision does not repeal any other reporting
requirement but establishes PFD as a recipient of PFI information at the
earliest possible time.
(3) Establishing a monitoring system within OTJAG for all cases of
fraud and corruption that relate to Army procurement.
(4) Discussing regularly with the U.S. Army Criminal Investigation
Command (USACIDC) or the assigned DOD criminal investigative
organization the current status of significant fraud or corruption cases
and their coordination with prosecutive authorities.
(5) Ensuring that all criminal, civil, contractual, and
administrative remedies are considered in each significant fraud or
corruption case and that timely and applicable remedies are undertaken
by commanders, contracting officers, and suspension and debarment
authorities. For example, consideration of suspension or debarment of a
contractor or individual should normally be initiated within 30 days of
indictment or conviction.
(6) Coordinating, as appropriate, with other DOD components affected
by a significant fraud or corruption case being monitored by the Army.
(7) Developing, with the responsible DOD investigative organization,
Procurement Fraud Coordinators and Advisers, and other involved
agencies, a specific comprehensive remedies plan for each significant
fraud or corruption case.
(8) Coordinating remedies with DOJ. In the case of ongoing criminal
investigations, coordinate remedies through, or with the prior knowledge
of, the DOD criminal investigative organization responsible for the
case.
(9) In significant fraud or corruption cases, identifying and
documenting any known adverse impact on a DOD mission, and including the
information in any remedies plan.
(10) Providing the appropriate DOD criminal investigative
organization with information concerning final remedies as a result of
an investigation by that organization.
(11) Receiving notifications from criminal investigative agencies
concerning substituted, defective, and counterfeit hardware in which a
serious hazard to health, safety or operational readiness is indicated;
ensuring that appropriate safety, procurement and program officials are
informed in accordance with enclosure 3 of DOD Directive 7050.5. PFD
will specifically ensure that contract reviews (DD 350 reports) and
adverse impact statements (See Sec. 516.64(c)(2) are prepared, and that
such information is used to determine if further inquiry is warranted to
prevent reoccurrence and to detect other possible fraud. Impact
statements will not be released to prosecutive agencies until reviewed
by PFD. When appropriate, PFD will coordinate with other DOD agencies to
establish a lead agency for victim impact statements in multi-DOD agency
cases.
(b) The Commanding General, USACIDC, will take the following
actions:
(1) Notify PFD of any investigations involving fraud or corruption
related to procurement activities.
(2) Notify other DOD component criminal investigative organizations
when investigations involving fraud or corruption affect that component.
This includes evidence of fraud by a contractor, subcontractor, or
employee of either, on current or past contracts with, or affecting,
that component.
(3) Notify the Defense Investigative Service of any investigations
that develop evidence which affects DOD cleared industrial facilities or
personnel.
(4) Determine the effect on any ongoing investigations or
prosecutions of any criminal, civil, contractual, or administrative
actions being considered by a centralized organization and advise of any
adverse impact.
(5) Promptly provide commanders, contracting officers, Procurement
Fraud Advisers, and suspension and debarment authorities, when needed to
allow consideration of applicable remedies, any court records,
documents, or other evidence of fraud or corruption from ongoing or
completed criminal investigations. In cases of indictment or
[[Page 106]]
conviction of a contractor or individual, the information will be
provided in time for initiation, if appropriate, of suspension or
debarment action within 30 days of the indictment or conviction.
(6) Provide prosecutive authorities and centralized organizations
with timely information on the adverse impact on a DOD mission of fraud
or corruption that relates to DOD procurement activities. This
information will be obtained from individuals such as the head of the
contracting agency, appropriate commanders, and staff agencies. Some
examples of adverse impact on a DOD mission are endangerment of
personnel or property, monetary loss, compromise of the procurement
process, or reduction or loss of mission readiness.
(7) Discuss regularly with Procurement Fraud Advisers the status of
significant investigations of fraud or corruption and their coordination
with prosecutive authorities and provide documents and reports resulting
from the investigations.
(c) Commanders of service schools conducting procurement or
procurement-related training (such as The Judge Advocate General's
School, the U.S. Military Police School, and the U.S. Army Logistics
Management Center) will ensure the following:
(1) All procurement and procurement-related training includes a
period of instruction on fraud and corruption in the procurement
process. The length of the period of instruction will be appropriate to
the duration and nature of the training.
(2) Training materials are developed to support that training.
(3) Training materials developed will be sent to MACOM PFI
Coordinators.
(d) MACOM commanders and heads of contracting activities will ensure
the following:
(1) Substantial indications of fraud or corruption relating to Army
contracts or Army administered contracts are reported promptly to the
supporting USACIDC element and the Procurement Fraud Division.
(2) Information provided includes reports by contracting officers
under DFARS 209.406-3.
Sec. 516.60 Procurement fraud and irregularities programs at MACOMs.
(a) Command counsel and SJAs at MACOMs will develop a program and
appoint an attorney as PFI Coordinator for their command. Chief counsel
and SJAs at commands with procurement advisory responsibility will
appoint an attorney as a Procurement Fraud Adviser (PFA) to manage the
PFI program at their installations as well.
(b) Provision may be made for activities not having sufficient
attorney assets to obtain assistance from nearby installations that have
a PFA.
(c) Reports and recommendations will be transmitted through command
channels to the PFI coordinator for the affected MACOM.
(d) Command counsel, chief counsel, and SJAs will exercise
supervisory authority to ensure effective operation of the fraud program
and coordination of remedies within their organizations.
(e) The MACOM PFI Coordinator will have overall responsibility for
the design and implementation of the MACOM's procurement fraud program.
(f) PFAs and PFI Coordinators will coordinate with the appropriate
local CID or Defense Criminal Investigative Service (DCIS) activity to
assure the prompt notification and coordination of all Procurement Fraud
cases.
Sec. 516.61 Reporting requirements.
(a) Typical fraud indicators during the procurement cycle are listed
in figure D-1, appendix G, to this part. The mere presence of one or
more of these indicators does not, by itself, require reporting under
paragraph b of this section. Reports should be submitted if there is a
reasonable suspicion of procurement fraud or irregularity or the
procuring agency refers the matter for investigation.
(b) ``Procurement Flash Reports'' will be transmitted by FAX
directly to PFD whenever a PFI Coordinator or PFA receives notice of a
PFI involving the Army. To facilitate filing, a separate sheet should be
used for each case reported. These reports will provide a succinct
summary of the following available information:
(1) Name and address of contractor.
[[Page 107]]
(2) Known subsidiaries of parent firms.
(3) Contracts involved in potential fraud.
(4) Nature of potential fraud.
(5) Summary of pertinent facts.
(6) Possible damages.
(7) Investigative agencies involved.
(8) Local PFAs (name and phone numbers).
Any of the above categories that cannot be completed will be annotated
as ``unknown at present.''
(c) When a report is required by DFARS or is requested by PFD, the
provisions of DFARS 209.406-3 (48 CFR 209.406-3) will be followed. That
paragraph provides the basic content and format for PFI reports.
(d) All personnel will cooperate to ensure that investigations and
prosecutions of procurement fraud are completed in a timely and thorough
manner. Requests for assistance from federal prosecutors should be
processed through the local PFA whenever possible. Requests for federal
investigators will be processed through the supporting USACIDC and the
PFA will be notified. When the conduct of criminal investigations and
prosecutions conflict with the progress of procurements, reasonable
deference will be given to criminal investigators and prosecutors
whenever possible. Any serious conflict that cannot be resolved at a
local level will be immediately reported to the PFI Coordinator or PFD
for action.
(e) PFI Coordinators and PFAs may request access to information
obtained during criminal investigations that is not protected by Fed. R.
Crim. P. 6(e) and use this information to assist them in taking
appropriate administrative, contractual, and civil remedies. Requests
for this information should be made directly to the appropriate federal
investigative agency. The investigative organization may withhold
requested information if release would compromise an investigation.
Difficulties in obtaining information which cannot be resolved locally
will be referred to PFD for appropriate action.
(f) USACIDC will notify, in writing, local PFAs as well as PFD
within 30 days, of initiation of a significant investigation of fraud or
corruption related to Army procurement activities. Such notification
will include the following:
(1) Case title.
(2) USACIDC Report of Investigation number.
(3) Responsible investigative agency or agencies.
(4) Office of primary responsibility.
(5) Date opened.
(6) Summary of facts.
(7) Suspected offense.
(g) The transmission of the information in f above may be delayed if
the Commanding General, USACIDC, or the head of another DOD criminal
investigation organization determines the transmission would compromise
the success of any case or its prosecution. The prosecutive authorities
dealing with the case will be consulted, when appropriate, in making
such determinations.
(h) USACIDC will obtain the following information at the earliest
possible point in an investigation of fraud or corruption that relates
to DOD procurement activities, whenever possible without reliance on
grand jury subpoenas:
(1) The individuals suspected to be responsible.
(2) The suspected firm's organizational structure.
(3) The firm's financial and contract history.
(4) The firm's organizational documents and records.
(5) Statements of witnesses.
(6) Monetary loss to the government.
(7) Other relevant information.
This information will be provided to PFD or other cognizant DOD
centralized organization.
(i) PFD will provide written notification to the Defense
Investigative Service of all suspension or debarment actions taken by
the Army.
Sec. 516.62 PFD and HQ USACIDC coordination.
PFD and HQ USACIDC will coordinate as follows:
(a) Discuss the status of significant procurement fraud or
corruption investigations being conducted by USACIDC and possible
remedies. These discussions should take place on a regular basis.
[[Page 108]]
(b) Discuss the coordination of possible criminal, civil,
contractual, or administrative remedies with prosecutive authorities.
(c) PFD will maintain liaison with other DOD centralized
organizations and will coordinate remedies with those centralized
organizations affected by a significant investigation of fraud or
corruption that relates to DOD procurement activities.
(d) Ascertain the effect on any ongoing investigation of the
initiation of civil, contractual, or administrative remedies as follows:
(1) PFD will maintain liaison with USACIDC and other DOD criminal
investigative organizations in order to determine the advisability of
initiating any civil, contractual, or administrative actions.
(2) USACIDC will advise PFD of any adverse effect on an
investigation or prosecution by the initiation of civil, contractual, or
administrative actions.
Sec. 516.63 Coordination with DOJ.
(a) PFD will establish and maintain liaison with DOJ and the Defense
Procurement Fraud Unit on significant fraud and corruption cases to
accomplish the following:
(1) Monitor criminal prosecutions.
(2) Initiate litigation for civil recovery.
(3) Coordinate administrative or contractual actions while criminal
or civil proceedings are pending.
(4) Coordinate settlement agreements or proposed settlements of
criminal, civil, and administrative actions.
(5) Respond to DOJ requests for information and assistance.
(b) In cases where there is an ongoing criminal investigation,
coordination with DOJ by any member of the Army normally will be
accomplished by or through USACIDC or the cognizant DOD criminal
investigative organization, or with the investigative organization's
advance knowledge. This does not apply to the routine exchange of
information between government attorneys in the course of civil
litigation or the routine referral of cases to DOJ for civil recovery.
(c) Initial contact by any attorney associated with the U.S. Army
with a U.S. Attorney's office or DOJ, whether initiated by the Army
attorney or not, will be reported to PFD. Activity after the initial
contact will only be reported to PFD when the Army attorney feels there
has been a significant event in the case. If the Army attorney is not a
PFI Coordinator or a PFA, the matter should be referred to one of these
two attorneys as soon as possible. Routine exchanges between Army
attorneys and U.S. Attorney's offices or DOJ do not need to be brought
to the attention of PFD.
Sec. 516.64 Comprehensive remedies plan.
(a) A specific, comprehensive remedies plan will be developed in
each significant investigation involving fraud or corruption that
relates to Army procurement activities. When possible, these plans
should be forwarded with the DFARS 209.406-3 reports. In no case,
however, should the report be delayed an appreciable time pending
completion of the plan. The format for a remedies plan is at figure H-2,
appendix G, to this part.
(b) The plan will be developed initially by the PFA with the
participation of the appropriate criminal investigators and other
relevant personnel such as the contracting officer. In significant cases
the PFA should also coordinate a remedies plan early with PFD. Defective
product/product substitution remedies plans must comply with the
requirements of appendix D to this part.
(c) A comprehensive remedies plan will include at a minimum the
following information and considerations:
(1) Summary of allegations and investigative results.
(2) Statement of any adverse impact on a DOD mission. DOD
investigative organizations, commanders, or procurement officials will
also provide this information to prosecutive authorities to enhance
prosecution of offenses or to prepare a victim impact statement pursuant
to Fed. R. Crim. P. 32(c)(2).
(3) The impact upon combat readiness and safety.
(4) Consideration of each criminal, civil, contractual, and
administrative remedy available, and documentation of those remedies,
either planned, in progress, or completed.
[[Page 109]]
(5) Restrictions on the pursuit of any remedies such as grand jury
information or possible compromise of the investigation.
(d) When remedies plans are received by PFD they will be coordinated
with the headquarters of the appropriate DOD criminal investigative
organization involved.
(e) Testing necessary to support the investigation and remedies plan
should comply with figure H-3, appendix G, to this part.
Sec. 516.65 Litigation reports in civil recovery cases.
(a) All substantiated PFI cases will be evaluated by PFAs to
determine whether it is appropriate to recommend civil recovery
proceedings.
(b) Recovery should be considered under both statutory and common
law theories, including but not limited to the following:
(1) False Claims Act, 31 USC 3729.
(2) Anti-Kickback Act, 41 USC 51.
(3) Sherman Act, 15 USC 1-7.
(4) Racketeer Influenced and Corrupt Organizations Act, 18 USC 1961-
1968.
(5) Common law fraud.
(6) Unjust enrichment.
(7) Constructive trust.
(8) Cases where contracts have been procured in violation of the
conflict of interest statute, 18 USC 218. See K&R Engineering Co. v.
United States, 616 F.2d 469 (Ct. Cl., 1980).
(c) When civil recovery appears possible, PFD should be consulted to
determine if a litigation report is necessary. If requested by PFD, the
report should summarize the available evidence and applicable theories
of recovery and be prepared under Sec. 516.23 of this part. To avoid
unnecessary duplication of effort, recovery reports may include and make
liberal references to other reports previously prepared on a given case
such as the DFARS 209.406-3 (48 CFR 209.406-3) report.
(d) The MACOM PFI coordinator and PFA will monitor all civil fraud
recovery efforts throughout the command and will provide training and
technical assistance as required. Status reports of all civil fraud
recovery efforts will be provided through channels as required by PFD.
Sec. 516.66 Administrative and contractual actions.
(a) The following remedial options should be considered in response
to confirmed fraudulent activity:
(1) Contractual.
(i) Termination of contract for default.
(ii) Nonaward of contract based upon a finding of contractor
nonresponsibility. (If this appears to be a valid option, a DFARS
209.406-3 (48 CFR 209.406-3) report must be prepared where contractor
nonresponsibility is based on lack of integrity).
(iii) Rescission of contract.
(iv) Revocation of acceptance.
(v) Use of contract warranties.
(vi) Withholding of payments to contractor. In the case of
withholding pursuant to DFARS 2032.173, the Chief, PFD, is the Army
Remedy Coordinating Official.
(vii) Offset of payments due to contractor from other contracts.
(viii) Revocation of facility security clearances.
(ix) Increased level of quality assurance.
(x) Refusal to accept nonconforming goods.
(xi) Denial of claims submitted by contractors.
(xii) Removal of contract from automated solicitation or payment
system.
(2) Administrative.
(i) Change in contracting forms and procedures.
(ii) Removal or reassignment of government personnel.
(iii) Review of contract administration and payment controls.
(iv) Revocation of warrant of contracting officer.
(v) Suspension of contractor.
(vi) Debarment of contractor.
(b) In cases which are pending review or action by DOJ, PFAs should
coordinate with the DOJ attorney handling the case prior to initiating
any contractual or administrative remedy. In the case of ongoing
criminal investigations, this coordination will be accomplished through
the appropriate DOD criminal investigation organization.
[[Page 110]]
Sec. 516.67 Overseas cases of fraud or corruption.
(a) Commanders of overseas major commands will establish procedures,
similar to this regulation and consistent with the DFARS, and
regulations and directives of their respective unified commands, for
reporting and coordination of available remedies in overseas procurement
fraud and corruption cases involving foreign firms and individuals.
Overseas major commands will also maintain liaison with PFD and provide
periodic reports of remedies coordination results.
(b) Overseas suspension and debarment actions are governed by DFARS
209.403 (48 CFR 209.403). The names of all firms and individuals
suspended or debarred will be expeditiously forwarded to PFD for
inclusion on the List of Parties Excluded From Federal Procurement or
NonProcurement Programs.
(c) Overseas cases of fraud or corruption related to the procurement
process that involve U.S. firms or U.S. citizens may be referred to PFD
for coordination of remedies under this regulation.
Sec. 516.68 Program Fraud Civil Remedies Act (PFCRA).
(a) PFCRA was enacted on 21 October 1986 (Public Law 99-509) and
implemented by DOD on 30 August 1988 (DOD Directive 5505.5). (See
appendix E to this part.)
(b) PFCRA expands the capability of the government to deter and
recover losses from false, fictitious or fraudulent claims and
statements. It is also applicable to program fraud and provides an
administrative remedy in addition to those otherwise available to the
Army in procurement fraud or pay and entitlements fraud cases.
(c) As part of the Army implementation, the Secretary of the Army's
duties and responsibilities under PFCRA as Authority Head are delegated
to the Army General Counsel. The Chief, Intellectual Property Law
Division, is the Army's Reviewing Official within the meaning of PFCRA.
Army implementation also requires DA to follow the policies and
procedures prescribed in enclosure 2 of DOD Directive 5505.5. (See
appendix E to this part.)
(d) The DOD Inspector General (IG) is the Investigating Official
within DOD. The duties of this position will be performed by the
Assistant IG For Investigations. This individual is vested with the
authority to investigate all allegations of liability under PFCRA. That
authority includes the power to task subordinate investigative agencies
to review and report on allegations that are subject to PFCRA. If the
Investigative Official concludes that an action under PFCRA is warranted
in an Army case, the official will submit a report containing the
findings and conclusions of such investigation through PFD to the Army
Reviewing Official.
(e) Pursuant to DOD IG guidance, USACIDC will forward appropriate
cases that appear to qualify for resolution under PFCRA to the
Investigating Official in a timely manner. Additionally, USACIDC will
forward current information regarding the status of remedies pending or
concluded. USACIDC may obtain remedies information by coordinating with
PFD and the cognizant command.
(f) In pay and entitlement or transportation operation fraud cases,
USACIDC will coordinate with the Office of the Secretary of the Army,
Financial Management, Review and Oversight Directorate (SAFM-RO), to
determine the status of any pending or proposed action under the Debt
Collection Act. This information, in addition to information obtained
under Sec. 517.68(e), will be forwarded with appropriate cases to the
Investigating Official.
(g) In those cases where the Investigating Official has submitted a
report to the Army Reviewing Official for action under PFCRA, PFD will,
at the direction of the Reviewing Official, prepare all legal memoranda
as necessary to transmit the Reviewing Official's intention to issue a
complaint. As part of this responsibility PFD will do the following:
coordinate with the affected command or agency to ensure that all
appropriate remedies have been considered; evaluate the overall
potential benefits to the Army; and, ensure that action under PFCRA is
not duplicative of other remedies already taken. In order to fully
supplement the Reviewing Official's file, PFD may request a litigation
report.
[[Page 111]]
(h) PFD will coordinate all cases involving transportation
operations emanating from Military Traffic Management Command (MTMC)
activity, under the military transportation exception to the FAR, and
all cases involving pay and entitlements fraud with SAFM-RO, for
comments and recommendations. These matters will be forwarded with the
case file to the Reviewing Official.
(i) If the Attorney General approves the issuance of a complaint,
PFD, at the direction of the Army Reviewing Official, shall prepare the
complaint and all necessary memoranda as required. PFD shall also
designate attorneys to represent the Authority in hearings under PFCRA.
Subpart I_Cooperation With the Office of Special Counsel
Sec. 516.69 Introduction.
This subpart prescribes procedures for cooperation with the Office
of Special Counsel (OSC) when OSC is investigating alleged prohibited
personnel practices or other allegations of improper or illegal conduct
within DA activities.
Sec. 516.70 Policy.
(a) DA policy follows:
(1) Civilian personnel actions taken by management officials,
civilian and military, will conform to laws and regulations implementing
established merit system principles and will be free of any prohibited
personnel practices.
(2) Management officials will take vigorous corrective action when
prohibited personnel practices occur. Disciplinary measures under AR
690-700, Chapter 751, may be initiated after consultation and
coordination with appropriate civilian personnel office and labor
counselor.
(b) DA activities will cooperate with OSC in the following ways:
(1) Promoting merit system principles in civilian employment
programs within DA.
(2) Investigating and reporting allegations of improper or illegal
conduct forwarded to the activity by HQDA.
(3) Facilitating orderly investigations by the OSC of alleged
prohibited personnel practices and other matters assigned for
investigation to the OSC, such as violations of the Whistleblower
Protection Act of 1989, the Freedom of Information Act, or the Hatch
Act.
Sec. 516.71 Duties.
(a) DA General Counsel. The DA General Counsel is responsible for
the following:
(1) Provide overall guidance on all issues concerning cooperation
with OSC, including the investigation of alleged prohibited personnel
practices and allegations of improper or illegal conduct.
(2) Review for adequacy and legal sufficiency each OSC report of
investigation that must be personally reviewed by the Secretary of the
Army.
(3) Ensure compliance with the Civil Service Reform Act of 1978 by
obtaining a suitable investigation of allegations of improper or illegal
conduct received from OSC. This includes compliance with time limits for
reporting results of the investigation and personal review of the report
by the Secretary of the Army when required.
(4) Forward to the DOD Inspector General (DODIG) copies of each
allegation of improper or illegal conduct referred to DA by OSC.
(5) Delegate to The Judge Advocate General the authority to act on
behalf of the DA General Counsel in all OSC investigations of prohibited
personnel practices.
(6) Act upon requests for counsel from ``accused'' or ``suspected''
employees.
(b) Chief, Labor and Employment Law Office. The Chief, Labor and
Employment Law Office, OTJAG (DAJA-LE) is responsible for the following:
(1) Act for TJAG as the Senior Management Official in cooperating
with OSC. As Senior Management Official, the Chief, DAJA-LE, through
TJAG, will be responsible to the DA General Counsel for administration
of the policies and procedures contained in this chapter.
(2) Promptly inform the DA General Counsel of any OSC investigation
and consult with the DA General Counsel on any legal or policy issue
arising from an OSC investigation.
[[Page 112]]
(3) Serve as the HQDA point of contact in providing assistance to
OSC.
(4) Act as DA attorney-of-record in administrative matters initiated
by OSC before the MSPB which arise from an OSC investigation. As DA
attorney-of-record, the Chief, DAJA-LE, will file necessary pleadings
and make necessary appearances before the MSPB to represent DA
interests.
(5) Monitor ongoing OSC investigations within DA.
(6) Ensure that appropriate DA personnel are fully apprised of their
rights, duties and the nature and basis for an OSC investigation.
(7) Review and prepare recommendations to the General Counsel
concerning any OSC recommended corrective action referred to DA. Such
review and recommendations will address whether disciplinary action
should be taken against DA civilian employees or military members, and
whether the information warrants referral to appropriate authorities for
corrective and disciplinary action.
(8) Seek OSC approval of DA proposed disciplinary action against an
employee for an alleged prohibited personnel practice or other
misconduct which is the subject of or related to any OSC investigation.
(9) Review and prepare recommendations for DA General Counsel
concerning requests for counsel, to include identifying available DA
attorneys to act as individual representatives. Upon approval of DA
General Counsel, appoint DA civilian and military attorneys, to include
attorneys from the U.S. Army Materiel Command and the Corps of
Engineers, to represent individual military members or employees.
(10) Determine, to the extent practicable, whether an investigation
is being or has been conducted which duplicates, in whole or in part, a
proposed or incomplete OSC investigation, and convey that information to
the OSC whenever it might avoid redundant investigative efforts.
(11) Provide guidance and assistance to activity Labor Counselors in
fulfilling their duties as Liaison Officers.
(c) Activity Labor Counselor. The activity Labor Counselor will do
the following:
(1) Act as Liaison Officer for OSC investigations arising within the
command, activity or installation serviced by the Labor Counselor's
client Employment Office.
(2) Promptly inform the MACOM labor counselor and the Chief, DAJA-
LE, of any OSC inquiry or investigation.
(3) Act as the legal representative of the command, activity, or
installation.
(4) Assist the OSC investigator with administrative matters related
to the investigation, such as requests for witnesses and documents.
(5) Process all OSC requests for documents.
(6) Make appropriate arrangements for OSC requests to interview
civilian employees and military members.
(7) Ensure that personnel involved are advised of the nature and
basis for an OSC investigation, the authority of the OSC, and their
rights and duties.
(8) Consult with the Chief, DAJA-LE, on policy and legal issues
arising from the OSC investigation.
(9) Keep the Chief, DAJA-LE, informed of the status of the OSC
investigation.
(l0) Act as agency representative before the MSPB in actions
initiated by employees (individual right of action appeals).
Sec. 516.72 Procedures.
(a) Witnesses and counsel for consultation. (1) DA military and
civilian managers, supervisors, and employees who are requested by OSC
for an interview will be made available in accordance with arrangements
the Labor Counselor will establish. Requests for the testimony of IGs
will be coordinated with the Inspector General Legal Office, SAIG-ZXL,
DSN 227-9734 or Commercial (703) 697-9734.
(2) The Labor Counselor will ensure that witnesses are aware of
their obligation to answer OSC questions, their potential to be
considered ``suspects'' in OSC investigations, and their right to the
assistance of counsel during interviews with OSC representatives. If the
requested witness is not an ``accused'' or ``suspected'' individual and
[[Page 113]]
the witness asks for assistance of counsel, a DA attorney will be made
available for the limited purpose of consultation regarding the witness'
rights and obligations. An attorney-client relationship will not be
established. (See appendix F to this part).
(3) The Labor Counselor will arrange for individual counsel for
consultation from local assets. If local assets are not sufficient,
assistance may be requested from other DOD activities in the area or
from HQDA, DAJA-LE. DA attorneys tasked to consult with one or more
witnesses individually will not be tasked to represent the DA activity
concerned.
(4) The Labor Counselor, as the legal representative of the
activity, is precluded from assisting or representing individual
witnesses during OSC interviews.
(b) ``Accused'' or ``suspected'' DA personnel and counsel for
representation. (1) If the OSC identifies a DA civilian employee or a
military member as an ``accused'' or ``suspected'' individual, or if the
Labor Counselor concludes that an individual is a ``suspect,'' the Labor
Counselor will inform the individual. The Labor Counselor also will
advise the individual of the availability of counsel for representation
upon approval by DA General Counsel. (See Glossary, Counsel for
Representation).
(2) If the ``suspected'' individual desires legal representation by
DA, the individual must request counsel by submitting a written request
through DAJA-LE to DA General Counsel. (See figure I-1, appendix G, to
this part).
(3) During the investigation but prior to DA General Counsel
approval of the request for counsel, an ``accused'' or ``suspected''
individual will be provided the assistance of counsel for consultation
in the same manner as any other OSC requested witness. ``Accused'' or
``suspected'' individuals who do not request counsel for representation
will be provided counsel for consultation in the same manner as any
other OSC requested witness.
(4) If the DA General Counsel approves the request for counsel, the
Chief, DAJA-LE, will appoint a DA attorney to represent the individual.
This appointment may be made telephonically but will be confirmed in
writing. The Chief, DAJA-LE, will make appropriate coordination with
MACOM SJAs and command counsel to confirm availability of the attorney.
(5) An attorney appointed by DA may represent a civilian employee in
any proceeding initiated by OSC before the MSPB. However, counsel
provided by DA may not represent the employee in any proceeding
initiated by DA, in any appeal from a final decision by the MSPB, or in
any collateral proceeding before any forum other than the MSPB.
(6) OSC may not bring a disciplinary action before the MSPB against
a military member. Accordingly, DA counsel will not be required to
represent the military member in any MSPB disciplinary proceeding.
However, counsel may represent the member during the OSC investigation
with the understanding that the evidence obtained by OSC may be referred
to the member's command for possible disciplinary action under the UCMJ
or appropriate regulations. If DA initiates action against the military
member for misconduct disclosed in the OSC investigation, the member
will obtain counsel as provided under the UCMJ or relevant regulations.
(c) Records. (1) OSC requests for records must be in writing. The
Labor Counselor will assist OSC representatives in identifying the
custodian of specific records sought during the inquiry.
(2) Generally, requested records should be furnished to OSC
representatives if such records would be released under AR 25-55 or AR
340-21 to other government agencies in the normal course of official
business. Records constituting attorney work product should not be
released without approval of the Chief, DAJA-LE. IG records will not be
released without the approval of the Inspector General. (AR 20-1). The
Labor Counselor should seek guidance from the Chief, DAJA-LE, if there
is any doubt concerning the release of records.
(3) If, after completion of the OSC investigation, the OSC files a
complaint against DA or a DA employee, release of records and other
information will be accomplished pursuant to MSPB
[[Page 114]]
rules of discovery (5 CFR part 1201, subpart B).
(d) Funding. The command, activity, or installation within which the
allegations of misconduct arose will provide funding for travel, per
diem and other necessary expenses related to the OSC investigation.
These expenses may include appropriate funding for witnesses, counsel
for consultation and DA General Counsel approved counsel for
representation.
Sec. 516.73 Assistance from HQDA.
Labor Counselors may seek guidance on questions arising from
implementation of this chapter by calling the Chief, DAJA-LE, DSN 225-
9476/9481 or Commercial (703) 695-9476/9481.
Subpart J_Soldiers Summoned To Serve on State and Local Juries
Sec. 516.74 General.
(a) This subpart implements 10 U.S.C. Sec. 982 and DOD Directive
5525.8. It establishes Army policy concerning soldiers on active duty
who are summoned to serve on state and local juries.
(b) This subpart does not apply to Army National Guard soldiers in
an annual training or full-time AGR (Active Guard Reserve) status under
Title 32, U.S. Code. Soldiers in a Title 32 status must refer to their
respective state law for relief from state or local jury duty.
Sec. 516.75 Policy.
(a) Active duty soldiers should fulfill their civic responsibility
by serving on state and local juries, so long as it does not interfere
with military duties.
(b) The following active duty soldiers are exempt from complying
with summons to serve on state and local juries:
(1) General officers.
(2) Commanders.
(3) Active duty soldiers stationed outside the United States, Puerto
Rico, Guam, the Northern Mariana Islands, American Samoa, and the Virgin
Islands.
(4) Active duty soldiers in a training status.
(5) Active duty soldiers assigned to forces engaged in operations.
(c) Other active duty soldiers may be exempted from serving on local
juries if compliance with such summons would have either of the
following effects:
(1) It would unreasonably interfere with performance of the
soldier's military duties; or,
(2) It would adversely affect the readiness of a summoned soldier's
unit, command, or activity.
Sec. 516.76 Exemption determination authority.
(a) The commander exercising special court-martial convening
authority (SPCMCA) over a unit has the authority to determine whether a
soldier of that unit, who has been served with a summons, is exempt from
serving on a state or local jury unless that authority has been limited
or withheld in accordance with paragraph (b) or (c) of this section.
This authority may not be delegated to a subordinate commander who does
not exercise SPCMCA.
(b) A commander superior to the SPCMCA, who also exercises SPCMCA or
general court-martial convening authority (GCMCA) over a unit, may limit
or withhold the exemption determination authority of subordinate
commanders.
(c) A GCMCA, who orders a unit or soldier assigned to one command to
be attached or detailed to another command for disciplinary purposes
(for example, ``for administration'' or ``for administration of military
justice''), may reserve exemption determination authority to the
commander exercising SPCMCA in the chain of command to which the unit or
soldier is assigned rather than the chain of command to which the unit
or soldier is attached or detailed.
Sec. 516.77 Procedures for exemption.
(a) Active duty soldiers served with a summons to serve on a state
or local jury will promptly advise their commander and provide copies of
pertinent documents.
(b) Unit commanders will evaluate the summons considering both the
individual soldier's duties and the unit mission. Coordination with the
servicing judge advocate or legal adviser and with the appropriate state
or local official may be necessary to determine any impact on the
soldier's duties or on unit readiness.
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(1) If the soldier is not exempt under Sec. 516.75 (b) or (c), the
commander will process the soldier for permissive TDY in accordance with
AR 630-5, Leaves and Passes.
(2) If the soldier is exempt under Sec. 516.75 (b) or (c), the
commander will forward the summons and any related documentation, with
recommendations, through the chain of command to the commander with
exemption determination authority over the soldier concerned.
(c) The commander with exemption determination authority over the
soldier concerned will determine whether the soldier is exempt. His
determination is final.
(d) The exemption determination authority will notify responsible
state or local officials whenever a soldier summoned for jury duty is
exempt. The notification will cite 10 U.S.C. 982 as authority.
Sec. 516.78 Status, fees, and expenses.
(a) Soldiers who are required to comply with summons to serve on
state or local juries will be placed on permissive TDY under the
provisions of AR 630-5.
(b) Jury fees accruing to soldiers for complying with the summons to
serve on state and local juries must be turned over to the appropriate
finance office for deposit into the U.S. Treasury. Commands will
establish procedures with local authorities and their servicing finance
and accounting activity to ensure that such jury fees are so deposited.
Soldiers, however, may keep any reimbursement from state or local
authority for expenses incurred in the performance of jury duty,
including transportation, meals, and parking.
Sec. Appendix A to Part 516--References
Publications referenced in this part can be obtained at the National
Technical Information Services, U.S. Department of Commerce, 5285 Port
Royal Road, Springfield, VA 22161.
Required Publications
AR 25-55, The Department of the Army Freedom of Information Act Program.
(Cited in Sec. Sec. 516.40, 516.72)
AR 27-10, Military Justice. (Cited in Sec. 516.4)
AR 27-20, Claims. (Cited in Sec. Sec. 516.4, 516.33, 516.22)
AR 27-60, Patents, Inventions, and Copyrights.
AR 37-60, Pricing for Material and Services. (Cited in Sec. 516.43.)
AR 37-103, Finance and Accounting for Installations: Disbursing
Operations. (Cited in Sec. 516.22.)
AR 60-20, Operating Policies. (Cited in Sec. 516.22.)
AR 190-9, Absentee Deserter Apprehension Program and Surrender of
Military Personnel to Civilian Law Enforcement Agencies.
(Cited in Sec. 516.9)
AR 210-47, State and Local Taxation of Lessee's Interest in Wherry Act
Housing (Title VIII of the National Housing Act).
AR 215-1, Administration of Army Morale, Welfare, and Recreation
Activities and Nonappropriated Fund Instrumentalities. (Cited
in Sec. 516.22.)
AR 215-2, The Management and Operation of Army Morale, Welfare, and
Recreation Activities and Nonappropriated Fund
Instrumentalities. (Cited in Sec. 516.22.)
AR 310-1, Publications, Blank Forms, and Printing Management.
AR 340-21, The Army Privacy Program. (Cited in Sec. Sec. 516.40,
516.72.)
AR 380-5, Department of the Army Information Security Program.
AR 405-25, Annexation. (Cited in Sec. 516.22.)
AR 630-5, Leaves and Passes. (Cited in Sec. Sec. 516.55, 516.77,
516.78.)
AR 630-10, Absence Without Leave, Desertion, and Administration of
Personnel Involved in Civilian Court Proceedings. (Cited in
Sec. 516.9)
Related Publications
A related publication is merely a source of additional information.
The user does not have to read it to understand the regulation.
AR 20-1, Inspector General Activities and Procedures. (Cited in
Sec. Sec. 516.41, 516.72.)
AR 27-1, Judge Advocate Legal Service.
AR 27-3, Legal Assistance. (Cited in Sec. 516.6.)
AR 27-10, Military Justice. (Cited in Sec. Sec. 516.4, 516.5, 516.15.)
AR 27-50, Status of Forces Policies, Procedures, and Information. (Cited
in Sec. 516.15.)
AR 37-104-3, Military Pay and Allowances Procedures.
AR 37-105, Finance and Accounting for Installations: Civilian Pay
Procedures.
AR 55-19, Marine Casualties. (Cited in Sec. 516.22.)
AR 190-29, Misdemeanors and Uniform Violation Notices Referred to U.S.
Magistrates or District Courts.
AR 190-40, Serious Incident Report. (Cited in Sec. 516.15.)
AR 210-50, Family Housing Management. (Cited in Sec. 516.37.)
[[Page 116]]
AR 335-15, Management Information Control System. (Cited in Sec.
516.15.)
AR 600-40, Apprehension, Restraint, and Release to Civil Authorities.
AR 600-50, Standards of Conduct for Department of the Army Personnel.
AR 690-700, Personnel Relations and Services. (Cited in Sec. 516.70.)
Prescribed Form
DA Form 4, Department of the Army Certification for Authentication of
Records. (Prescribed in Sec. 516.25, 516.35.)
Referenced Forms
DA Form 2631-R, Medical Care-Third Party Liability Notification.
DA Form 3154, MSA Invoice and Receipt.
Sec. Appendix B to Part 516--Mailing Addresses
The following is a list of frequently referred to Department of the
Army Services/Divisions/Offices and their mailing addresses:
COMMANDER (JACS-Z), U.S. ARMY CLAIMS SERVICE, OTJAG, BUILDING 4411, ROOM
206, LLEWELLYN AVENUE, FORT GEORGE G. MEADE, MD 20755-5360
(1) PERSONNEL CLAIMS AND RECOVERY DIVISION (JACS-PC), U.S. ARMY
CLAIMS SERVICE, OTJAG, BUILDING 4411, ROOM 206, LLEWELLYN AVENUE, FORT
GEORGE G. MEADE, MD 20755-5360
(2) TORT CLAIMS DIVISION (JACS-TC), U.S. ARMY CLAIMS SERVICE, OTJAG,
BUILDING 4411, ROOM 206, LLEWELLYN AVENUE, FORT GEORGE G. MEADE, MD
20755-5360
CONTRACT APPEALS DIVISION, HQDA(DAJA-CA), 901 NORTH STUART STREET,
ARLINGTON, VA 22203-1837
CONTRACT LAW DIVISION, THE JUDGE ADVOCATE GENERAL, 2200 ARMY PENTAGON,
WASHINGTON, DC 20310-2200
CRIMINAL LAW DIVISION, THE JUDGE ADVOCATE GENERAL, 2200 ARMY PENTAGON,
WASHINGTON, DC 20310-2200
ENVIRONMENTAL LAW DIVISION, HQDA(DAJA-EL), 901 NORTH STUART STREET,
ARLINGTON, VA 22203-1837
LABOR AND EMPLOYMENT LAW DIVISION, THE JUDGE ADVOCATE GENERAL, 2200 ARMY
PENTAGON, WASHINGTON, DC 20310-2200,
LITIGATION DIVISION, HQDA(DAJA-LT), 901 NORTH STUART STREET, ARLINGTON,
VA 22203-1837
(1) CIVILIAN PERSONNEL BRANCH, HQDA(DAJA-LTC), 901 NORTH STUART
STREET, ARLINGTON, VA 22203-1837
(2) GENERAL LITIGATION BRANCH, HQDA(DAJA-LTG), 901 NORTH STUART
STREET, ARLINGTON, VA 22203-1837
(3) MILITARY PERSONNEL BRANCH, HQDA(DAJA-LTM), 901 NORTH STUART
STREET, ARLINGTON, VA 22203-1837
(4) TORT BRANCH, HQDA(DAJA-LTT), 901 NORTH STUART STREET, ARLINGTON,
VA 22203-1837
PERSONNEL, PLANS, AND TRAINING OFFICE, THE JUDGE ADVOCATE GENERAL, 2200
ARMY PENTAGON, WASHINGTON, DC 20310-2200
PROCUREMENT FRAUD DIVISION, HQDA(DAJA-PF), 901 NORTH STUART STREET,
ARLINGTON, VA 22203-1837
INTELLECTUAL PROPERTY DIVISION, HQDA(JALS-IP), 901 NORTH STUART STREET,
ARLINGTON, VA 22203-1837
REGULATORY LAW OFFICE, HQDA(JALS-RL), 901 NORTH STUART STREET,
ARLINGTON, VA 22203-1837
THE JUDGE ADVOCATE GENERAL, 2200 ARMY PENTAGON, WASHINGTON, DC 20310-
2200
THE AJAG FOR CIVIL LAW & LITIGATION, THE JUDGE ADVOCATE GENERAL, 2200
ARMY PENTAGON, WASHINGTON, DC 20310-2200
U.S. ARMY TRIAL DEFENSE SERVICE, HQDA(JALS-TD), NASSIF BUILDING, FALLS
CHURCH, VA 22041-5013
Sec. Appendix C to Part 516--Department of Defense Directive 5405.2,
Release of Official Information in Litigation and Testimony by DoD
Personnel as Witnesses
Department of Defense Directive
July 23, 1985, Number 5405.2, GC, DOD
Subject: Release of Official Information in Litigation and Testimony by
DoD Personnel as Witnesses
References:
(a) Title 5, United States Code, Sections 301, 552, and 552a
(b) Title 10, United States Code, Section 133
(c) DoD Directive 5220.6, ``Industrial Personnel Security Clearance
Program,'' December 20, 1976
(d) DoD Directive 5200.1-R, ``Information Security Program Regulation,''
August 1982, authorized by DoD Directive 5200.1, June 7, 1982
(e) DoD Directive 5230.25, ``Withholding of Unclassified Technical Data
from Public Disclosure,'' November 6, 1984
(f) DoD Instruction 7230.7, ``User Charges,'' January 29, 1985
(g) DoD Directive 5400.7-R, ``DoD Freedom of Information Act Program,''
December 1980, authorized by DoD Directive 5400.7, March 24,
1980
[[Page 117]]
A. Purpose
Under Section 301 reference (a) and reference (b), 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.
B. Applicability and Scope
1. 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.
2. This Directive does not apply to the release of official
information or testimony by DoD personnel in the following situations:
a. Before courts-martial convened by the authority of the Military
Departments or in administrative proceedings conducted by or on behalf
of a DoD Component;
b. 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;
c. In response to requests by Federal Government counsel in
litigation conducted on behalf of the United States;
d. As part of the assistance required in accordance with the Defense
Industrial Personnel Security Clearance Program under DoD Directive
5220.6 (reference (c)); or
e. 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.
3. This Directive does not supersede or modify existing laws or DoD
programs 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. Section 552 (reference (a)) or the Privacy Act, 5 U.S.C. Section
552a (reference (a)), 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.
4. 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.
5. This Directive does not preclude official comment on matters in
litigation in appropriate cases.
6. 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.
C. Definitions
1. 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.
2. 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 United States Armed Forces; and other specific individuals hired
through contractual agreements by or on behalf of the Department of
Defense.
3. 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.
4. 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 United States Armed Forces.
D. 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.
[[Page 118]]
E. Responsibilities
1. The General Counsel, Department of Defense (GC, DoD), 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.
2. The Heads of DoD Components shall issue appropriate regulations
to implement this Directive and to identify official information that is
involved in litigation.
F. Procedures
1. Authority To Act
a. 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 originated by the
Component 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.
b. 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.
c. Notwithstanding the provisions of paragraphs F.1.a. and b., the
GC, DoD, in litigation involving terrorism, espionage, nuclear weapons,
intelligence means or sources, or otherwise as deemed necessary, may
notify Components that GC, DoD, will assume primary responsibility for
coordinating all litigation requests and demands for official DoD
information or the testimony of DoD personnel, or both; consulting with
the Department of Justice, as required; and taking final action on such
requests and demands.
2. Factors To Consider
In deciding whether to authorize the release of official DoD
information or the testimony of DoD personnel concerning official
information (hereinafter referred to as ``the disclosure'') pursuant to
paragraph F.1., DoD officials should consider the following types of
factors:
a. Whether the request or demand is unduly burdensome or otherwise
inappropriate under the applicable court rules;
b. 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;
c. Whether the disclosure would violate a statute, executive order,
regulation, or directive;
d. Whether the disclosure, including release in camera, is
appropriate or necessary under the relevant substantive law concerning
privilege;
e. Whether the disclosure, except when in camera and necessary to
assert a claim of privilege, would reveal information properly
classified pursuant to the DoD Information Security Program under DoD
5200.1-R (reference (d)), unclassified technical data withheld from
public release pursuant to DoD Directive 5230.25 (reference (e)), or
other matters exempt from unrestricted disclosure; and
f. 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.
3. Decisions on Litigation Requests and Demands
a. Subject to paragraph F.3.e., 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
paragraph F.1. Oral approval may be granted, but a record of such
approval shall be made and retained in accordance with the applicable
implementing regulations.
b. 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 F.3.e., 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
[[Page 119]]
paragraph F.1. See United States ex rel. Touhy v. Ragen, 340 U.S. 462
(1951).
c. 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 DoD official designated in paragraph F.1.
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 demands. 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.
d. If, after DoD personnel have received a litigation request or
demand and have in turn notified the appropriate DoD official in
accordance with paragraph F.3.c., a response to the request or demand is
required before instructions from the responsible official are received,
the responsible official designated in paragraph F.1. 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.
e. 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 paragraph F.3.d., 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 ruling or order 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).
4. Fees
Consistent with the guidelines in DoD Instruction 7230.7 (reference
(f)), the appropriate officials designated in paragraph F.1. 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 the DoD
Freedom of Information Act Program (reference (g)). 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 request 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).
5. 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 F.1. 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).
G. Effective Date and Implementation
This Directive is effective immediately. Forward two copies of
implementing documents to the General Counsel, DoD, within 120 days.
Signed by William H. Taft, IV
Deputy Secretary of Defense.
Sec. Appendix D to Part 516--Department of Defense Directive 7050.5,
Coordination of Remedies for Fraud and Corruption Related to Procurement
Activities
Department of Defense Directive
June 7, 1989, Number 7050.5, IG, DOD
Subject: Coordination of Remedies for Fraud and Corruption Related to
Procurement Activities
[[Page 120]]
References:
(a) DoD Directive 7050.5, subject as above, June 28, 1985 (hereby
canceled)
(b) Public Law 97-291, ``The Victim and Witness Protection Act of
1982,'' October 12, 1982
(c) Defense FAR Supplement (DFARS), Subpart 4.6, ``Contract Reporting''
(d) DoD Instruction 4105.61, ``DoD Procurement Coding Manual,'' May 4,
1973
(e) DoD 4105.61-M, ``Procurement Coding Manual'' (Volume I), October
1988, authorized by DoD Instruction 4105.61 May 4, 1973
A. Reissuance and Purpose
This Directive reissues reference (a) to update policies,
procedures, and responsibilities for the coordination of criminal,
civil, administrative, and contractual remedies stemming from
investigation of fraud or corruption related to procurement activities.
More effective and timely communication of information developed during
such investigations will enable the Department of Defense to take the
most appropriate of the available measures.
B. Applicability
This Directive applies to the Office of the Secretary of Defense
(OSD); the Inspector General, Department of Defense (IG, DoD); the
Military Departments; the Defense Agencies; and the DoD Field Activities
(hereafter referred to collectively as ``DoD Components'').
C. Definitions
1. DoD Criminal Investigative Organizations. Refers to the U.S. Army
Criminal Investigation Command; the Naval Investigative Service Command;
the U.S. Air Force Office of Special Investigations; and the Defense
Criminal Investigative Service, Office of the IG, DoD (OIG, DoD).
2. Significant. Refers to all fraud cases involving an alleged loss
of $100,000, or more; all corruption cases related to procurement that
involved bribery, gratuities, or conflicts of interest; and any
investigation into defective products or product substitution in which a
SERIOUS HAZARD to health, safety, or operational readiness is indicated,
regardless of loss value.
D. Policy
It is DoD policy that:
1. Each of the DoD Components shall monitor, from its inception, all
significant investigations of fraud or corruption related to procurement
activities affecting its organizations, for the purpose of ensuring that
all possible criminal, civil, administrative, and contractual remedies
in such cases are identified to cognizant procurement and command
officials and that appropriate remedies are pursued expeditiously. This
process shall include appropriate coordination with all other affected
DoD Components.
2. All investigations of fraud or corruption related to procurement
activities shall be reviewed to determine and implement the appropriate
contractual and administrative actions that are necessary to recover
funds lost through fraud or corruption and to ensure the integrity of
DoD programs and operations.
3. Appropriate civil, contractual, and administrative actions,
including those set forth in enclosure 1, shall be taken expeditiously.
During an investigation and before prosecution or litigation, and when
based in whole or in part on evidence developed during an investigation,
such actions shall be taken with the advance knowledge of the
responsible DoD criminal investigative organization and, when necessary,
the appropriate legal counsel in the Department of Defense and the
Department of Justice (DoJ). When appropriate, such actions shall be
taken before final resolution of the criminal or civil case.
E. Responsibilities
1. The Heads of DoD Components shall:
a. Establish a centralized organization (hereafter referred to as
``the centralized organization'') to monitor and ensure the coordination
of criminal, civil, administrative, and contractual remedies for each
significant investigation of fraud or corruption related to procurement
activities affecting the DoD Component.
b. Establish procedures requiring the centralized organization to
discuss regularly with the assigned DoD criminal investigative
organization(s) such issues as the current status of significant
investigations and their coordination with prosecutive authorities.
c. Establish procedures requiring that all coordination involving
the DoJ, during the pendency of a criminal investigation, is
accomplished by or with the advance knowledge of the appropriate DoD
criminal investigative organization(s).
d. Establish procedures to ensure appropriate coordination of
actions between the centralized organizations of any DoD Components
affected by a significant investigation of fraud or corruption related
to procurement activities.
e. Establish procedures to ensure that all proper and effective
civil, administrative, and contractual remedies available to the
Department of Defense are, when found applicable and appropriate,
considered and undertaken promptly by the necessary DoD officials (e.g.,
commanders, programs officials, and contracting officers). This includes
initiation of any suspension and debarment action within 30 days of an
indictment or conviction. The centralized organization shall
[[Page 121]]
ensure that all proposed actions are coordinated with appropriate
investigative organization.
f. Establish procedures to ensure that a specific comprehensive
remedies plan is developed for each significant investigation involving
fraud or corruption related to procurement activities. These procedures
shall include the participation of the appropriate DoD criminal
investigative organization in the development of the plan.
g. Establish procedures to ensure that in those significant
investigations of fraud or corruption related to procurement activities
when adverse impact on a DoD mission can be determined, such adverse
impact is identified and documented by the centralized organization.
This information is to be used by the centralized organization of the
DoD Component concerned in development of the remedies plan required in
paragraph E.1.f., above, and shall be furnished to prosecutors as stated
in paragraph E.2.e., below. The information shall also be used by the
centralized organizations in development and preparation of ``Victim
Impact Statements'' for use in sentencing proceedings, as provided for
P.L. 97-291 (reference (b)). Some examples of adverse impact on a DoD
mission are as follows:
(1) Endangerment of personnel or property.
(2) Monetary loss.
(3) Denigration of program or personnel integrity.
(4) Compromise of the procurement process.
(5) Reduction or loss of mission readiness.
h. Ensure training materials are developed on fraud and corruption
in the procurement process, and that all procurement and procurement-
related training includes a period of such instruction appropriate to
the duration and nature of the training.
i. Establish procedures enabling the centralized organization to
ensure that safety and readiness issues are examined and appropriately
dealt with for all cases in which a notice is required under paragraph
E.2.i., below. The minimum procedures to be followed by the centralized
organization are in enclosure 3.
j. Ensure that appropriate command, procurement, and investigative
organizations are provided sufficient information to determine if
further inquiry is warranted on their part to prevent reoccurrence and
detect other possible fraud within their activity.
2. The Secretaries of the Military Departments and the Inspector
General, Department of Defense (IG, DoD), or their designees, shall
establish procedures that ensure that their respective criminal
investigative organizations will:
a. Notify, in writing, the centralized organization for the affected
DoD Component of the start of all significant investigations involving
fraud or corruption that are related to procurement activities. Initial
notification shall include the following elements:
(1) Case title.
(2) Case control number.
(3) Investigative agency and office of primary responsibility.
(4) Date opened.
(5) Predication.
(6) Suspected offense(s).
b. Notify expeditiously the Defense Investigative Service (DIS) of
any investigations that develop evidence that would impact on DoD-
cleared industrial facilities or personnel.
c. Discuss regularly with the centralized organization such issues
as the current status of significant investigations and their
coordination with prosecutive authorities. If the DoD criminal
investigative organization has prepared any documents summarizing the
current status of the investigation, such documents shall be provided to
the centralized organization. Completed reports of significant
investigations also should be provided to the centralized organization.
d. Provide to the appropriate procurement officials, commanders, and
suspension and debarment authorities, when needed to allow consideration
of applicable remedies, any court records, documents, or other evidence
of fraud or corruption related to procurement activities. Such
information shall be provided in a timely manner to enable the
suspension and debarment authority to initiate suspension and debarment
action within 30 days of an indictment or conviction.
e. Provide expeditiously to prosecutive authorities the information
regarding any adverse impact on a DoD mission, that is gathered under
paragraph E.1.g., above, for the purpose of enhancing the
prosecutability of a case. Such information also should be used in
preparing a victim impact statement for use in sentencing proceedings as
provided for in Public Law 97-291.
f. Gather, at the earliest practical point in the investigation,
without reliance on grand jury subpoenas whenever possible, relevant
information concerning responsible individuals, the organizational
structure, finances, and contract history of DoD contractors under
investigation for fraud or corruption related to procurement activities,
to facilitate the criminal investigation as well as any civil,
administrative, or contractual actions or remedies that may be taken.
Some available sources of such information are listed in enclosure 2.
g. Provide timely notice to other cognizant DoD criminal
investigative organizations of evidence of fraud by a contractor,
subcontractor, or employees of either, on current or past contracts
with, or affecting, other DoD Components.
h. Ascertain the impact upon any ongoing investigation or
prosecution of civil, contractual, and administrative actions being
[[Page 122]]
considered and advise the appropriate centralized organization of any
adverse impact.
i. Obtain a DD 350 report in every investigation into defective
products or product substitution in which a SERIOUS HAZARD to health,
safety, or operational readiness is indicated. Timely notification shall
be made to the centralized organization of each DoD Component that is
identified as having contract actions with the subject of the
investigation.
j. Obtain a DD 350 report in all significant fraud investigations,
as defined in subsection C.2. above, whether or not the case involved
defective products or product substitution. Timely notification shall be
made to the centralized organization of each DoD Component that is
identified as having contract actions with the subject of the
investigation.
3. The Inspector General, Department of Defense (IG, DoD), shall:
a. Develop training materials relating to fraud and corruption in
procurement related activities which shall be utilized in all
procurement related training in conjunction with training materials
developed by the DoD Components. (See paragraph E.1.h., above.)
b. Establish procedures for providing to the DoD criminal
investigative organizations, through the Office of the Assistant
Inspector General for Auditing (OAIG-AUD), reports of data contained in
the Individual Procurement Action Report (DD Form 350) System.
F. Procedures
Transmissions of information by DoD criminal investigative
organizations required by subsection E.2., above, shall be made as
expeditiously as possible, consistent with efforts not to compromise any
ongoing criminal investigation. The transmission of the information may
be delayed when, in the judgment of the head of the DoD criminal
investigative organization, failure to delay would compromise the
success of any investigation or prosecution. The prosecutive authorities
dealing with the investigation shall be consulted, when appropriate, in
making such determinations.
G. Effective Date and Implementation
This Directive is effective immediately. Forward two copies of
implementing documents to the Inspector General, Department of Defense,
within 120 days.
Donald J. Atwood,
Deputy Secretary of Defense.
Enclosures--3
1. Civil Contractual and Administrative Actions That Can Be Taken in
Response to Evidence of Procurement Fraud
2. Sources of Information Relating to Government Contractors
3. Actions to be Taken in Product Substitution Investigations
Civil, Contractual, and Administrative Actions That Can Be Taken in
Response to Evidence of Procurement Fraud
A. Civil
1. Statutory
a. False Claims Act (31 USC 3729 et seq.).
b. Anti-Kickback Act (41 USC 51 et seq.).
c. Voiding Contracts (18 USC 218).
d. Truth in Negotiations Act (10 USC 2306(f)).
e. Fraudulent Claims-Contract Disputes Act (41 USC 604)
2. Nonstatutory
a. Breach of contract.
b. Breach of warranty.
c. Money paid under mistake of fact.
d. Unjust enrichment.
e. Fraud and/or Deceit.
f. Conversion.
g. Recision and/or Cancellation.
h. Reformation.
i. Enforcement of performance bond/guarantee agreement.
3. Contractual
a. Termination of contract for default.
b. Termination of contract for convenience of Government.
c. Termination for default and exemplary damages under the
gratuities clause.
d. Recision of contract.
e. Contract warranties.
f. Withholding of payments to contractor.
g. Offset of payments due to contractor from other contracts.
h. Price reduction.
i. Correction of defects (or cost of correction).
j. Refusal to accept nonconforming goods.
k. Revocation of acceptance.
l. Denial of claims submitted by contractors.
m. Disallowance of contract costs.
n. Removal of the contractor from automated solicitation or payment
system.
4. Administrative
a. Change in contracting forms and procedures.
b. Removal or reassignment of Government personnel.
c. Review of contract administration and payment controls.
d. Revocation of warrant contracting officer.
e. Suspension of contractor and contractor employees.
f. Debarment of contractor and contractor employees.
g. Revocation of facility security clearances.
[[Page 123]]
h. Nonaward of contract based upon a finding of contractor
nonresponsibility.
i. Voluntary refunds.
Sources of Information Relating to Government Contractors
------------------------------------------------------------------------
Type of information Possible source
------------------------------------------------------------------------
Location, dollar value, type, and a. DD Form 350 Report.\1\
number of current contracts with the b. Defense Logistics Agency's
Department of Defense. (DLA) ``Contract
Administration Defense
Logistics Agency's (DLA)
Contract Administration Report
(CAR Report) on contracts DLA
administers.
2. Financial status of corporation, a. Dunn and Bradstreet Reports.
history of corporation, owners, and b. Corporate filings with local
officers. secretaries of the State, or
corporate recorders.
c. Securities and Exchange
Commission (public
corporations).
d. Small Business
Administration (SBA) (small
businesses).
e. General Accounting Office
(bid protests, and contractors
indebted to the Government).
f. Armed Services Board of
Contract Appeals (ASBCA) or
court litigation.
g. List of Contractors Indebted
to the United States
(maintained, published and
distributed by the U.S. Army
Finance and Accounting Center,
Indianapolis, Indiana 46249).
3. Security clearance background a. Defense Investigative
information on facility and officers. Service.
4. Performance history of contractor... a. Local contracting officers.
b. Defense Contract
Administration Service
preaward surveys.
c. SBA Certificate of
Competency records.
5. Name, location, offense alleged, and DLA Automated Criminal Case
previous investigative efforts Management System. (Available
involving DLA-awarded or DLA- through field offices of the
administered contracts. DLA Counsel's office.)
6. Bid protests, litigation, and Field offices of the DLA
bankruptcy involving DLA-awarded or Counsel's office.
DLA-administered contracts.
------------------------------------------------------------------------
\1\ A determination as to the contract history of any DoD contractor
with contracts in excess of $25,000 annually can be made through a
review of the ``Individual Procurement Action Report'' (DD Form 350)
system, as prescribed by Subpart 4.6 of the DoD FAR Supplement, DoD
Instruction 4105.61, and DoD 4105.61-M (references (c), (d), and (e)).
Actions to be Taken in Product Substitution Investigations
A. The centralized organization, in all cases involving allegations
of product substitution in which a SERIOUS HAZARD to health, safety, or
operational readiness is indicated shall:
1. Review the notice of the case immediately after receiving it from
the Defense criminal investigative organization. Review the notice to
determine any potential safety or readiness issues indicated by the
suspected fraud.
2. Notify all appropriate safety, procurement, and program officials
of the existence of the case.
3. Obtain a complete assessment from safety, procurement, and
program officials of the adverse impact of the fraud on DoD programs and
operations.
4. Ensure that the DoD Component provides the Defense criminal
investigative organization with full testing support to completely
identify the defective nature of the substituted products. Costs
associated with the testing shall be assumed by the appropriate
procurement program.
5. Prepare a comprehensive impact statement describing the adverse
impact of the fraud on DoD programs for use in any criminal, civil, or
contractual action related to the case.
B. In all cases involving allegations of product substitution that
affect more than one DoD Component, that centralized organizations of
the affected DoD Components shall identify a lead Agency. The lead
centralized organization shall ensure that information on the fraud is
provided to the centralized organization of all other affected DoD
Components. The lead centralized organization shall ensure compliance
with the requirements of section A., above. The lead centralized
organization shall then be responsible for preparing a comprehensive
``Victim Impact Statement'' as required by paragraph E.1.g. of this
Directive.
C. In all cases involving allegations of product substitution, the
Defense Criminal Investigative Organization shall:
1. Immediately notify the appropriate centralized organization of
the beginning of the case.
2. Continue to provide to the centralized organization any
information developed during the course of the investigation that
indicates substituted products have been, or might be, provided to the
Department of Defense.
3. Ensure that any request for testing of substituted products is
provided to the centralized organization.
[[Page 124]]
Sec. Appendix E to Part 516--Department of Defense Directive 5505.5,
Implementation of the Program Fraud Civil Remedies Act
DOD Directive 5505.5 is contained in 32 CFR part 277.
Sec. Appendix F to Part 516--Glossary
Abbreviations
AAFES: Army and Air Force Exchange Service
AMEDD: Army Medical Department
AFARS: Army Federal Acquisition Regulation Supplement
ASBCA: Armed Services Board of Contract Appeals
AUSA: Assistant United States Attorney
CFR: Code of Federal Regulations
COE: United States Army Corps of Engineers
DA: Department of the Army
DFARS: Defense Federal Acquisition Regulation Supplement
DOD: Department of Defense
DOJ: Department of Justice. In this regulation, reference to DOJ means
either United States Attorneys' Offices or The (main) Department of
Justice in Washington, DC
DCIS: Defense Criminal Investigative Service
e.g.: An abbreviation for exempli gratia, meaning ``for example''
et seq.: An abbreviation for et sequentes, meaning ``and the following''
FAR: Federal Acquisition Regulation
FAX: Facsimile Transmission
FBI: Federal Bureau of Investigation
Fed. R. Civ. P.: Federal Rules of Civil Procedure
Fed. R. Crim. P.: Federal Rules of Criminal Procedure
FOIA: Freedom of Information Act
GAO: General Accounting Office
HQDA: Headquarters, Department of the Army
i.e.: An abbreviation for id est, meaning ``that is''
IG: Inspector General
JA: Judge Advocate
MACOM: Major Command
MSPB: Merit Systems Protection Board
NAF: Nonappropriated Fund
OTJAG: Office of The Judge Advocate General
OSC: Office of Special Counsel
PFA: Procurement Fraud Advisor
PFCRA: Program Fraud Civil Remedies Act
PFD: Procurement Fraud Division
PFI: Procurement Fraud or Irregularities
RJA: Recovery Judge Advocate
SAUSA: Special Assistant U.S. Attorney
SJA: Staff Judge Advocate
TDY: temporary Duty
TJAG: The Judge Advocate General
UCMJ: Uniform Code of Military Justice
USACIDC: U.S. Army Criminal Investigation Command
USALSA: U.S. Army Legal Services Agency
USARCS: U.S. Army Claims Service
USATDS: U.S. Army Trial Defense Service
USMA: United States Military Academy
U.S.C.: United States Code
Terms
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; 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; and, attendance, while in the active
military service, at advanced civil schooling and training with
industry. It does not include full-time National Guard duty under Title
32, United States Code.
Army Activities
Activities of or under the control of the Army, one of its
instrumentalities, or the Army National Guard, including activities for
which the Army has been designated the administrative agency, and those
designated activities located in an area in which the Army has been
assigned single service claims responsibility by DOD directive.
Army Property
Real or personal property of the United States or its
instrumentalities and, if the United States is responsible therefore,
real or personal property of a foreign government which is in the
possession or control of the Army, one of its instrumentalities, or the
Army National Guard, including property of an activity for which the
Army has been designated the administrative agency, and property located
in an area in which the Army has been assigned single service claims
responsibility.
Centralized Organization
That organization of a DOD component responsible for coordinating
and monitoring of criminal, civil, contractual, and administrative
remedies relating to contract fraud. For DOD components other than the
Army, the Centralized organizations are as follows: the Office of
General Counsel, Department of the Air Force; the Office of the
Inspector General, Department of the Navy; and the Office of General
Counsel, Defense Logistics Agency.
Claim
The Government's right to recover money or property from any
individual, partnership, association, corporation, governmental body, or
other legal entity (foreign and domestic)
[[Page 125]]
except an instrumentality of the United States. A claim against several
joint debtors or tortfeasors arising from a single transaction or
incident will be considered one claim.
Claims Officer
A commissioned officer, warrant officer, or qualified civilian
employee designated by the responsible commander and trained or
experienced in the conduct of investigations and the processing of
claims.
Corruption
Practices that include, but are not limited to, solicitation, offer,
payment, or acceptance of bribes or gratuities; kickbacks; conflicts of
interest; or unauthorized disclosure of official information related to
procurement matters.
Counsel for Consultation
An attorney, provided by DA at no expense to the military member or
civilian employee, who will provide legal advice to the witness
concerning the authority of OSC, the nature of an OSC interview and
their individual rights and obligations. The counsel may accompany the
witness to the interview and advise the witness during the interview. No
attorney-client relationship is established in this procedure.
Counsel for Representation
An attorney, provided by DA at no expense to the military member or
civilian employee, who will act as the individual's lawyer in all
contacts with the MSPB and the OSC during the pendancy of the OSC
investigation and any subsequent OSC initiated action before the MSPB.
An attorney-client relationship will be established between the
individual and counsel for representation.
DA Personnel
DA personnel includes the following:
a. Military and civilian personnel of the Active Army and The U.S.
Army Reserve.
b. Soldiers of the Army National Guard of the United States (Title
10, U.S.C.) and, when specified by statute or where a Federal interest
is involved, soldiers in the Army National Guard (Title 32, U.S.C.). It
also includes technicians under 32 U.S.C. 709(a)(d).
c. USMA cadets.
d. Nonappropriated fund employees.
e. Foreign nationals who perform services for DA overseas.
f. Other individuals hired by or for the Army.
Debarment
Administrative action taken by a debarring authority to exclude a
contractor from Government contracting and Government-approved
subcontracting for a specified period.
Deciding Official (Chapter 7)
SJA, legal adviser, or Litigation Division attorney who makes the
final determination concerning release of official information.
DOD Criminal Investigation Organizations
Refers to the USACIDC; the Naval Investigative Service; the U.S. Air
Force Office of Special Investigations; and the Defense Criminal
Investigative Service, Office of the Inspector General, DOD.
Fraud
Any intentional deception of DOD (including attempts and
conspiracies to effect such deception) for the purpose of inducing DOD
action or reliance on that deception. Such practices include, but are
not limited to, the following: bid-rigging; making or submitting false
statements; submission of false claims; use of false weights or
measures; submission of false testing certificates; adulterating or
substituting materials; or conspiring to use any of these devices.
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.
Information Exempt From Release To The Public
Those categories of information which may be withheld from the
public under one or more provisions of law.
Judge Advocate
An officer so designated (AR 27-1).
Legal Adviser
A civilian attorney who is the principal legal adviser to the
commander or operating head of any Army command or agency.
Litigation
Legal action or process involving civil proceedings, i.e.,
noncriminal.
Litigation in Which The United States Has an Interest
a. A suit in which the United States or one of its agencies or
instrumentalities has been, or probably will be, named as a party.
b. A suit against DA personnel and arises out of the individual's
performance of official duties.
c. A suit concerning an Army contract, subcontract, or purchase
order under the
[[Page 126]]
terms of which the United States may be required to reimburse the
contractor for recoveries, fees, or costs of the litigation.
d. A suit involving administrative proceedings before Federal,
state, municipal, or foreign tribunals or regulatory bodies that may
have a financial impact upon the Army.
e. A suit affecting Army operations or which might require, limit,
or interfere with official action.
f. A suit in which the United States has a financial interest in the
plaintiff's recovery.
g. Foreign litigation in which the United States is bound by treaty
or agreement to ensure attendance by military personnel or civilian
employees.
Medical Care
Includes hospitalization, outpatient treatment, dental care, nursing
service, drugs, and other adjuncts such as prostheses and medical
appliances furnished by or at the expense of the United States.
Misdemeanor
An offense for which the maximum penalty does not exceed
imprisonment for 1 year. Misdemeanors include those offenses categorized
as petty offenses (18 USC Sec. 3559).
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 United States Armed Forces.
Operating Forces
Those forces whose primary missions are to participate in combat and
the integral supporting elements thereof. Within DA, the operating
forces consist of tactical units organized to conform to tables of
organization and equipment (TOE).
Personnel Action
These include--
a. Appointment.
b. Promotion.
c. Adverse action under 5 U.S.C. 7501 et seq. or other disciplinary
or corrective action.
d. Detail, transfer, or reassignment.
e. Reinstatement.
f. Restoration.
g. Reemployment.
h. Performance evaluation under 5 U.S.C. 4301 et seq.
i. 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.
Private Litigation
Litigation other than that in which the United States has an
interest.
Process
The legal document that compels a defendant in an action to appear
in court; e.g., in a civil case a summons or subpoena, or in a criminal
case, a warrant for arrest, subpoena or summons.
Prohibited Personnel Practice
Action taken, or the failure to take action, by a person 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.
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
[[Page 127]]
(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 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, as defined below.
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.
Prosecutive Authorities
These include--
a. A U.S. Attorney;
b. A prosecuting attorney of a State or other political subdivision
when the U.S. Attorney has declined to exercise jurisdiction over a
particular case or class of cases; and
c. An SJA of a general court-martial convening authority considering
taking action against a person subject to the UCMJ.
Recovery JA
A JA or legal adviser responsible for assertion and collection of
claims in favor of the United States for property claims and medical
expenses.
Significant Case of Fraud and Corruption
A procurement fraud case involving an alleged loss of $100,000 or
more; all corruption cases related to procurement that involve bribery,
gratuities, or conflicts of interest; any defective products or product
substitution in which a serious hazard to health, safety or operational
readiness is indicated, regardless of loss value; and, any procurement
fraud case that has received or is expected to receive significant media
coverage.
Staff Judge Advocate
An officer so designated (AR 27-1). The SJA of an installation, a
command or agency reporting directly to HQDA, or of a major subordinate
command of the U.S. Army Materiel Command, and the senior Army JA
assigned to a joint or unified command.
Subpoena
A process to cause a witness to appear and give testimony, e.g., at
a trial, hearing, or deposition.
Suspension
Administrative action taken by a suspending authority to temporarily
exclude a contractor from Government contracting and Government-approved
subcontracting.
Suspension and Debarment Authorities
Officials designated in DFARS, section 9.403, as the authorized
representative of the Secretary concerned.
Tortfeasor
A wrongdoer; one who commits a tort.
Sec. Appendix G to Part 516--Figures
This appendix contains figures cited or quoted throughout the text
of this part.
Figure C-1. Sample Answer to Judicial Complaint, With Attached
Certificate of Service
In the United States District Court for the Southern District of
Texas Corpus Christi Division, No. C-90-100
John Doe, Plaintiff v. Togo D. West, Jr., Secretary of the Army,
Department of the Army, Defendant.
First Affirmative Defense
The Complaint is barred by laches.
Figure C-3. Sample Answer to Judicial Complaint, with attached
Certificate of Service. This is intended to be used as a guide in
preparing a draft Answer as part of a Litigation Report.
Answer
For its answer to the complaint, defendant admits, denies and
alleges as follows:
1. Admits.
2. Denies.
3. Denies.
4. The allegations contained in paragraph 4 are conclusions of law
to which no response is required; to the extent they may be deemed
allegations of fact, they are denied.
5. Denies the allegations contained in the first sentence of
paragraph 5; admits the allegations contained in the second sentence of
paragraph 5; denies the remainder of the allegations in paragraph 5.
6. Denies the allegations in paragraph 6 for lack of knowledge or
information sufficient to form a belief as to their truth.
7. Denies each allegation in the complaint not specifically admitted
or otherwise qualified.
[[Page 128]]
Prayer for Relief
The remainder of plaintiff's Complaint contains his prayer for
relief, to which no answer is required. Insofar as an answer is
required, denies that plaintiff is entitled to any relief whatsoever.
Defendant respectfully prays that the Court dismiss plaintiff's
Complaint and award to defendant costs and such further relief as the
Court deems proper.
Respectfully submitted,
Ronald M. Ford,
United States Attorney.
Roy A. Andersen,
Assistant United States Attorney, 606 N. Carancua, Corpus Christi, Texas
78476, (512) 884-3454.
Captain Christopher N. Jones,
Department of the Army, Office of the Judge, Advocate General, 901 N.
Stuart St., Suite 400, Arlington, Virginia 22203-1837, (703)
696-1666.
Certificate of Service
I hereby certify that a true and correct copy of Defendant's Answer
has been placed in the mail, postage prepaid, this __ day of _____,
1991, addressed to plaintiff's counsel as follows: Mr. Eugene Henderson,
777 Fourth Street, Corpus Christi, TX 78888.
Roy A. Andersen,
Assistant United States Attorney.
Sample DA Form 4
Figure C-3. Unsworn Declaration Under Penalty of Perjury Executed Within
the United States
Declaration Under Penalty of Perjury
I am Private Paul Jones, currently assigned to Company B, 4th
Battalion, 325th Parachute Infantry Regiment, Fort Bragg, North
Carolina. I have personal knowledge of the following matters.
On the evening of 3 June 1970, I was present at the company party at
Lake Popolopen when the accident occurred. I saw a bright, full moon
that evening.
I declare under penalty of perjury that the foregoing is true and
correct. (28 U.S.C. Sec. 1746).
Executed on: _____
Paul Jones,
Private, U.S. Army.
Figure D-1. Format for a Request for a Representation Using an Unsworn
Declaration Under Penalty of Perjury Executed Within the United States
Request for Representation
I request that the Attorney General of the United States, or his
agent, designate counsel to defend me in my official and individual
capacities in the case of John Doe v. Private Paul Jones, now pending in
the U.S. District Court for the Eastern District of North Carolina. I
have read the complaint filed in this case and I declare that all my
actions were performed in my official capacity, within the scope of my
official duties, and in a good faith belief that my actions conformed to
the law. I am not aware of any pending related criminal investigation.
I understand the following: if my request for representation is
approved, I will be represented by a U.S. Department of Justice
attorney; that the United States is not required to pay any final
adverse money judgment rendered against me personally, although I can
request indemnification; that I am entitled to retain private counsel at
my own expense; and, that the Army expresses no opinion whether I should
or should not retain private counsel.
I declare under penalty of perjury that the foregoing is true and
correct. (28 U.S.C. Sec. 1746).
Executed on: _____
Paul Jones,
Private, U.S. Army.
Figure D-2. Format for Scope of Employment Statement Using an Unsworn
Declaration Under Penalty of Perjury Executed Outside the United States
Declaration
I am currently the Commander of HHC, 6th Armored Division, Bad
Vilbel, Germany. I have read the allegations concerning Private Paul
Jones in the complaint of John Doe v. Private Paul Jones, now pending in
the U.S. District Court for the Eastern District of North Carolina.
At all times relevant to the complaint, I was Private Jones' company
commander. His actions relevant to this case were performed within the
scope of his official duties as Assistant Charge of Quarters, Company B,
4th Battalion, 325th Parachute Infantry Regiment, Fort Bragg, North
Carolina.
I declare under penalty of perjury under the laws of the United
States of America that the foregoing is true and correct. (28 U.S.C.
Sec. 1746).
Executed on: _____
John Smith,
Captain, Infantry.
Figure D-3. Format for Contractor Request for Representantion
Request for Representation
I am the President of the XYZ Corporation. I request the Attorney
General of the United States designate counsel to defend me and my
company in Doe v. XYZ, Inc., now pending in the U.S. District Court for
the Eastern District of North Carolina.
I understand that the assumption by the Attorney General of the
defense of this case
[[Page 129]]
does not alter or increase the obligations of the United States under
United States Contract No. WP-70-660415.
I further agree that such representation will not be construed as
waiver or estoppel to assert any rights which any interested party may
have under said contract.
Executed on: _____
D.D. Tango,
President, XYZ, Inc.
Figure G-1. Sample ``Touhy'' Compliance Letter
Department of the Army, Office of the Staff Judge Advocate, Fort Smith,
North Dakota 84165, 15 April 1993
Mr. T. Hudson Taylor,
Attorney At Law, 105 Hay Street, Whynot, ND 84167
Dear Mr. Taylor: We have learned that you subpoenaed Captain Roberta
Selby to testify at a deposition in the case Kramer v. Kramer, currently
filed in state court, and that you directed her to bring her legal
assistance file concerning her client, SSG Kramer.
Under 32 CFR Sec. Sec. 97.6(c), 516.35, and 516.40, the Army must
authorize the appearance of its personnel or the production of official
documents in private litigation. In this case, the Army cannot authorize
Captain Selby to appear or produce the requested file absent the
following:
You must request in writing her appearance and the production of the
file in accordance with Department of Defense directives, 32 CFR Sec.
97.6(c), and Army regulations, 32 CFR Sec. Sec. 516.34-516.40. The
request must include the nature of the proceeding, 32 CFR Sec.
516.34(b), and the nature and relevance of the official information
sought. Id. Sec. 516.35(d). We cannot act on your request until we
receive the required information. See, for example, United States ex
rel. Touhy v. Ragen, 340 U.S. 462 (1951); Boron Oil Co. v. Downie, 873
F.2d 67 (4th Cir. 1989); United States v. Bizzard, 674 F.2d 1382 (11th
Cir. 1982); United States v. Marino, 658 F.2d 1120 (6th Cir. 1981);
United States v. Allen, 554 F.2d 398 (10th Cir. 1977).
To overcome Federal statutory restrictions on the disclosure of the
requested file imposed by the Privacy Act, 5 U.S.C. Sec. 552a, you must
provide either a written release authorization signed by the individual
to whom the file pertains (that is, SSG Kramer) or a court ordered
release signed by a judge of a court of competent jurisdiction. A
subpoena signed by a clerk of court, notary, or other official is
insufficient. See, for example, Doe v. DiGenova, 779 F.2d 74 (DC Cir.
1985).
In this case, because of the attorney-client relationship between
Captain Selby and SSG Kramer, you must produce a written waiver of the
attorney-client privilege from SSG Kramer. Because the privilege may
protect both documents and testimony, Captain Selby may not divulge such
information without SSG Kramer's consent. See, for example, Rule of
Professional Conduct for Army Lawyers 1.6(a).
In addition to the above requirements, Captain Selby's supervisor
must approve her absence from duty. See 32 CFR Sec. 516.43. In this
regard, we suggest you take the deposition at Fort Smith. In any event,
however, you or your client must pay all travel expenses, as this is
purely private litigation and witness' appearance must be at no expense
to the United States. See id. Sec. 516.48(c).
Finally, if Captain Selby does appear as a witness, she may only
give factual testimony. She may not testify as an opinion or expert
witness. This limitation is based on Department of Defense and Army
policy that generally prohibits Government employees from appearing as
expert witnesses in private litigation. See id. Sec. Sec. 97.6(e),
516.42.
Our sole concern in this matter is to protect the interests of the
United States Army; the Army will not block access to witnesses or
documents to which you are lawfully entitled. So that the Army can
adequately protect its interests in this matter, I request that you
respond to this letter by 27 April 1993. If you have any questions,
please call CPT Taylor at 919-882-4500.
Sincerely,
Robert V. Jackansi,
Major, JA, Chief, Administrative Law.
Figure G-2. Sample Fact Witness Approval Letter
Department of the Army, Office of the Staff Judge Advocate, Fort Smith,
North Dakota 84165, 15 April 1993
Mr. T. Hudson Taylor,
Attorney At Law, l05 Hay Street, Whynot, ND 84167
Dear Mr. Taylor: This letter responds to your request to interview
and depose Captain Buzz Sawyer as a witness in Morgan v. Jones. Subject
to the following conditions, your request is approved.
This grant of authority is limited to factual testimony only.
Captain Sawyer may not testify as an expert witness. This limitation is
based on Army policy prohibiting Government employees from appearing as
expert witnesses in private litigation. See 32 CFR Sec. 516.42. Captain
Sawyer may not provide official information that is classified,
privileged, or otherwise protected from public disclosure.
The decision whether to testify in private litigation is within the
discretion of the prospective witness. This authorization is also
subject to the approval of the witness' supervisors to be absent during
the period involved. Finally, because this is private litigation, the
witness' participation must be at no expense to the United States. See
32 CFR Sec. 516.48.
If you have any questions, please call CPT Taylor at 919-882-4500.
[[Page 130]]
Sincerely,
Robert V. Jackansi,
Major, JA, Chief, Administrative Law
Figure G-3. Sample Expert Witness Denial Letter
Department of the Army, Office of the Staff Judge Advocate, Fort Smith,
North Dakota 84165, 15 April 1993
Mr. T. Hudson Taylor,
Attorney At Law, l05 Hay Street, Whynot, ND 84167
Dear Mr. Taylor: This responds to your request for Mr. Charles
Montrose to appear as an expert witness in private litigation: Smithers
v. ABC Video. For the following reasons, the request is denied.
Army Regulation 27-40 forbids Army personnel from providing expert
testimony in private litigation, with or without compensation, except
under the most extraordinary circumstances. See 32 CFR Sec. Sec.
97.6(e), 516.42. Several reasons support the exercise of strict control
over such witness appearances.
The Army policy is one of strict impartiality in litigation in which
the Army is not a named party, a real party in interest, or in which the
Army does not have a significant interest. When a witness with an
official connection with the Army testifies, a natural tendency exists
to assume that the testimony represents the official view of the Army,
despite express disclaimers to the contrary.
The Army is also interested in preventing the unnecessary loss of
the services of its personnel in connection with matters unrelated to
their official responsibilities. If Army personnel testify as expert
witnesses in private litigation, their official duties are invariably
disrupted, often at the expense of the Army's mission and the Federal
taxpayer.
Finally, the Army is concerned about the potential for conflict of
interest inherent in the unrestricted appearance of its personnel as
expert witnesses on behalf of parties other than the United States. Even
the appearance of such conflicts of interest seriously undermines the
public trust and confidence in the integrity of our Government.
This case does not present the extraordinary circumstances necessary
to justify the requested witness' expert testimony. You have
demonstrated no exceptional need or unique circumstances that would
warrant (his or her) appearance. The expert testimony desired can be
secured from non-Army sources. Consequently, we are unable to grant you
an exception to the Army's policy.
If you have any questions, please call me or CPT Taylor at 919-882-
4500.
Sincerely,
Robert V. Jackansi,
Major, JA, Chief, Administrative Law.
Figure G-4. Sample of Doctor Approval Letter
Department of the Army, Office of the Staff Judge Advocate, Fort Smith,
North Dakota 84165, 15 April 1993
Mr. T. Hudson Taylor,
Attorney At Law, 105 Hay Street, Whynot, ND 84167
Dear Mr. Taylor: This responds to your request to depose Dr. (MAJ)
J. McDonald, Fort Smith Medical Treatment Facility. Pursuant to 32 CFR
Sec. Sec. 516.33-516.49, you may depose him subject to the following
conditions:
He may testify as to his treatment of his patient, Sergeant Rock, as
to related laboratory tests he may have conducted, or other actions he
took in the regular course of his duties.
He must limit his testimony to factual matters such as his
observations of the patient or other operative facts, the treatment
prescribed or corrective action taken, course of recovery or steps
required for treatment of injuries suffered, or contemplated future
treatment.
His testimony may not extend to hypothetical questions or to a
prognosis. He may not testify as an ``expert.'' This limitation is based
on Department of Defense and Army policy prohibiting present or former
military personnel and Army civilian employees from providing opinion or
expert testimony concerning official information, subjects, or
activities in private litigation. See 32 CFR Sec. Sec. 97.6(e), 516.42.
The witnesses may not provide official information that is
classified, privileged, or otherwise protected from public disclosure.
To protect the Army's interests, CPT Taylor or another Army attorney
will be present during the depositions.
To overcome restrictions imposed by the Privacy Act, 5 U.S.C. Sec.
552a, Dr. McDonald may not discuss matters derived from the patient's
medical records absent the patient's written consent or a court order
signed by a judge. A subpoena issued by someone other than a judge or
magistrate is insufficient. See Doe v. DiGenova, 779 F.2d 74 (D.C. Cir.
1985); Stiles v. Atlanta Gas Light Co., 453 F. Supp. 798 (N.D. Ga.
1978).
The decision whether to testify in private litigation is within the
discretion of the witness, subject to the approval of his supervisors to
be absent during the period involved.
Finally, because this is private litigation, the witnesses'
participation must be at no expense to the United States. See 32 CFR
Sec. 516.48.
If you have any questions, please call me or CPT Taylor at 919-882-
4500.
Sincerely,
Robert V. Jackansi,
Major, JA, Chief, Administrative Law.
[[Page 131]]
Figure H-1. Procurement Fraud Indicators
Procurement Fraud Indicators
1. During the identification of the government and services.
a. Need determinations for items currently scheduled for disposal or
reprocurement, or which have predetermined reorder levels.
b. Excessive purchase of ``expendables'' such as drugs or auto
parts.
c. Inadequate or vague need assessment.
d. Frequent changes in the need assessment or determination.
e. Mandatory stock levels and inventory requirements appear
excessive.
f. Items appear to be unnecessarily declared excess or sold as
surplus, while same items are being reprocured.
g. It appears that an item or service is being purchased more as a
result of aggressive marketing efforts rather than in response to a
valid requirement.
h. Need determination appears to be unnecessarily tailored in ways
that can only be met by certain contractors.
i. Items and services are continually obtained from the same source
due to an unwarranted lack of effort to develop second sources.
2. During the development of the statements of work and
specifications.
a. Statements of work and specifications appear to be intentionally
written to fit the products or capabilities of a single contractor.
b. Statements of work, specifications, or sole source justifications
developed by or in consultation with a preferred contractor.
c. Information concerning requirements and pending contracts is
released only to preferred contractors.
d. Allowing companies and industry personnel who participated in the
preparation of bid packages to perform on subsequent contracts in either
a prime or subcontractor capacity.
e. Release of information by firms or personnel participating in
design or engineering to companies competing for prime contract.
f. Prequalification standards or specifications appear designed to
exclude otherwise qualified contractors or their productions.
g. Requirements appear split up to allow for rotating bids, giving
each contractor his or her ``fair share.''
h. Requirements appear split up to meet small purchase requirements
(that is, $25,000) or to avoid higher levels of approval that would be
otherwise required.
i. Bid specifications or statement of work appear inconsistent with
the items described in the general requirements.
j. Specifications appear so vague that reasonable comparisons of
estimate would be difficult.
k. Specifications appear inconsistent with previous procurements of
similar items of services.
3. During the presolicitation phase.
a. Sole source justifications appear unnecessary or poorly
supported.
b. Statements justifying sole source or negotiated procurements
appear inadequate or incredible.
c. Solicitation documents appear to contain unnecessary requirements
which tend to restrict competition.
d. Contractors or their representatives appear to have received
advanced information related to the proposed procurement on a
preferential basis.
4. During the solicitation phase.
a. Procurement appears to be processed so as to exclude or impede
certain contractors.
b. The time for submission of bids appears to be unnecessarily
limited so that only those with advance information have adequate time
to prepare bids or proposals.
c. It appears that information concerning the procurement has been
revealed only to certain contractors, without being revealed to all
prospective competitors.
d. Bidders conferences are conducted in a way that apparently
invites bid rigging, price fixing, or other improper collusion between
contractors.
e. There is an apparent intentional failure to fairly publish notice
of the solicitation.
f. Solicitation appears vague as to the details such as time, place
and manner, of submitting acceptable bids.
g. There is evidence of improper communications or social contract
between contractors and government personnel.
h. Controls over the number and destination of bid packages sent to
interested bidders appear inadequate.
i. Indications that government personnel or their families may own
stock or have some other financial interest in either a contractor or
subcontractor.
j. Indications that government personnel are discussing possible
employment for themselves or a family member with a contractor or
subcontractor or indications that a proposal for future employment from
a contractor or subcontractor to a government employee or his or her
family members has not been firmly rejected.
k. Indications that any contractor has received special assistance
in preparation of his or her bid or proposal.
l. It appears that a contract is given an expressed or implied
reference to a specific subcontractor.
m. Failure to amend solicitation to reflect necessary changes or
modifications.
5. During the submission of bids and proposals.
a. Improper acceptance of a late bid.
b. Documents, such as receipts, appear falsified to obtain
acceptance of a late bid.
[[Page 132]]
c. Improperly attempting to change a bid after other bidders prices
are known.
d. Indications that mistakes have been deliberately planted in a bid
to support correction after bid opening.
e. Withdrawal by a low bidder who may later become a subcontractor
to a higher bidder who gets the contract.
f. Apparent collusion or bid rigging among the bidders.
g. Bidders apparently revealing their prices to each other.
h. Required contractor certifications appear falsified.
i. Information concerning contractor's qualifications, finances, and
capabilities appears falsified.
6. During the evaluation of bids and proposals.
a. Deliberately losing or discarding bids of certain contractors.
b. Improperly disqualifying the bids or proposals of certain
contractors.
c. Accepting apparently nonresponsive bids from preferred
contractors.
d. Unusual or unnecessary contacts between government personnel and
contractors during solicitation, evaluation, and negotiation.
e. Any apparently unauthorized release of procurement information to
a contractor or to non-government personnel.
f. Any apparent favoritism in the evaluation of the bid or proposal
of a particular contractor.
g. Apparent bias in the evaluation criteria or in the attitude or
actions of the members of the evaluation panel.
7. During contract formation and administration.
a. Defective pricing by the contractor usually associated with
submitting false cost and pricing data under the Truth in Negotiation
Act.
b. Cost/Labor mischarging.
c. Product substitution.
d. Progress payment fraud. For more details on these subjects see DA
PAM 27-153, Contract Law, paragraph 23-5.
Figure H-2. Guide for Preparing Remedies Plan
Guide for Preparing a Remedies Plan
(Date of Plan)
Section I (Administrative Data)
A. Subject of Allegation.
B. Principal Investigative Agency.
C. Investigative Agency File Number.
D. Subject's Location.
E. Location Where Offense Took Place.
F. Responsible Action Commander.
G. Responsible MACOM.
H. Contract Administrative Data (If Applicable):
1. Contract Number.
2. Type of Contract.
3. Dollar Amount of Contract.
4. Period of Contract.
I. Principal Case Agent (Name and Telephone Number).
J. Civilian Prosecutor (If Applicable) (Name, Address, and Telephone
Number).
K. Is Grand Jury Investigating This Matter? If So, Where is Grand Jury
Located?
L. Audit Agency Involved (If Applicable). Name and Telephone Number of
Principal Auditor.
M. Suspense Date for Update of This Plan.
Section II (Summary of Allegations and Investigative Results to Date)
(Provide sufficient detail for reviewers of the plan to evaluate the
appropriateness of the planned remedies. If information is ``close-
hold'' or if grand jury secrecy applies, so state.)
Section III (Adverse Impact Statement)
(Describe any adverse impact on the DA/DOD mission. Adverse impact
is described in DOD Directive 7050.5, paragraph E.1.g. Identify impact
as actual or potential. Describe the impact in terms of monetary loss,
endangerment to personnel or property, mission readiness, etc. This
information should be considered in formulating your remedies as
described below and provided to prosecutors for their use in prosecution
of the offenses.)
Section IV (Remedies Taken and/or Being Pursued)
A. Criminal Sanctions. (As a minimum, address the following: Are
criminal sanctions appropriate? If so, which ones? If not, why not? Has
the local U.S. Attorney or other civilian prosecutor been notified and
briefed? What actions have been taken or are intended? If and when
action is complete, describe action and final results of the action.
Other pertinent comments should be included.)
B. Civil Remedies. (As a minimum address the following: Which civil
remedies are appropriate? Has the local U.S. Attorney or other civilian
prosecutor been notified and briefed? How, when, where and by whom are
the appropriate civil remedies implemented? If and when action is
completed, describe action and final results. Other pertinent comments
should be included.)
C. Contractual/Administrative Remedies. (As a minimum, address the
following: Are contractual and administrative remedies appropriate: If
so, which ones? If not, Why? If contractual or administrative remedies
are considered appropriate, describe how, when, and by whom the remedies
are implemented. If and when action is completed, describe action and
results of the action. Other pertinent comments should be included.)
[[Page 133]]
D. Restrictions on Remedies Action. (Comment as to why obvious
remedies are not being pursued. For example, the U.S. Attorney requests
suspension action held in abeyance pending criminal action.)
Section V (Miscellaneous Comments/Information)
Section VI (Remedies Plan Participants)
(Record the name, grade, organization, and telephone number of all
Remedies Plan participants.)
Section VII (MACOM Coordination Comments)
(Record the name, grade, office symbol, and telephone number of all
MACOM officials providing coordination comments; record the date when
comments are submitted and append to the Remedies Plan the signed
comments provided.)
MACOM Focal Point
(Record the name, grade, office symbol, and telephone number of the
MACOM focal point.)
Section VIII (Coordination/Comments)
(Record the name, grade, organization, office symbol, and telephone
number of all officials with whom you have coordinated the Remedies Plan
or who have provided comments on your plan; append any comments provided
to the Remedies Plan.)
Figure H-3. Guide for Testing Defective Items Under Criminal or Civil
Investigation
Testing Defective Items Under Criminal or Civil Investigation
1. Under no circumstances is testing to proceed unless the command
has committed sufficient funding to cover the entire cost of the
projected testing.
2. No testing will be initiated unless there has been a written
request for the testing to the appropriate Procurement Fraud Advisor
from a criminal investigator or Assistant United States Attorney or
Department of Justice Attorney (AUSA is used in these procedures to
indicate either an AUSA or Department of Justice attorney). If they have
not already done so, criminal investigators should be requested to
coordinate their testing requests with the AUSA overseeing the
investigation.
3. Barring extraordinary circumstances, only one test will be
conducted to support the criminal and civil recovery efforts of a
procurement fraud/irregularity matter. Early coordination with the Civil
Division of Department of Justice or the local United States Attorneys
Office is necessary to ensure that testing funds are not wasted.
4. The request for testing should include a clear, concise statement
of the purpose of the testing to include a statement of the allegations
made and the contact number(s) involved. Any test plan which requires
destructive testing must be approved by the AUSA.
5. No testing will be initiated unless a test plan has been
developed which states the following:
a. the contract number(s) involved
b. the National Stock Number (NSN) of the item to be tested
c. the purpose of the testing
d. the alleged defect or the contractual requirement violated
e. the CID report of investigation (ROI) number or the DCIS case number
f. cost of the test (a cost proposal should be an attachment to the test
plan)
g. where the test will be conducted
h. how the test will be conducted
i. the name and telephone number of the test team leader
j. the names of all test team members
k. the approximate dates of the testing
l. the date that completion of the test is required
m. a clear statement of the desired product (that is test report, raw
data, analysis of results, evaluation of test results)
n. the PRON to fund the testing
o. a retention plan.
6. The test plan shall be coordinated with the concurrence received
in advance from the appropriate personnel in the Procurement
Directorate, Product Assurance and Test Directorate, the Procurement
Fraud Advisor, and the investigator/AUSA requesting the test. No testing
will be initiated until the criminal investigator/AUSA who requested the
testing has approved the test plan.
7. If the items tested are to be retained as evidence, the criminal
investigator should arrange for retention of the evidence. While the
Command will support evidence retention, this is primarily the
responsibility of the criminal investigators. Agents should be advised
that putting items in Code L or similar non-use status is insufficient
to protect it from being released to the field. A decision not to retain
the tested items as evidence must have the approval of the AUSA.
8. All items to be tested should be from a statistically valid
random sample. The sample should conform with the inspection
requirements of the contract or be in conformance with a random sample
specifically developed for the instant test plan. It is recommended that
a statistician be consulted to determine the feasibility of a random
sample specifically created to support the test plan.
9. Results of testing should be available to Command and DA
personnel for appropriate contractual and administrative remedies.
[[Page 134]]
Any request for testing results that indicates that dissemination of the
testing results will be limited by Rule 6(e) of the Federal Rules of
Criminal Procedure is to be forwarded through the MACOM or AMC
Procurement Fraud Coordinator to DA Procurement Fraud Division prior to
the initiation of any testing.
10. Resolution of problems associated with testing requests should
be conducted at the local level. In AMC the authority to refuse a
testing request resides with the Office of Command Counsel. Any disputes
which cannot be resolved at the local level will be forwarded to the AMC
or MACOM Procurement Fraud Coordinator for resolution. This includes
disputes regarding funding or any time sensitive issues.
11. Second requests for testing of the same item due to a change in
the investigative plan require coordination by the PFA with the
investigator and AUSA overseeing the investigation to determine the
deficiencies in the earlier test. Disputes which cannot be resolved
between the AUSA, PFA, and investigator regarding testing are to be
forwarded simultaneously to the MACOM Procurement Fraud Coordinator and
PFD for resolution. The procedures established in paragraphs 5 and 6
apply for second requests for testing with the additional requirement
that the Assistant United States Attorney must be requested to approve
the test plan.
Figure I-1. Guide for Seeking Legal Advice and Representation Before
Office of Special Counsel
Guide for Seeking Legal Advice and Representation Before Office of
Special Counsel
1. Overview
a. DA employees or military members asked to provide information
(testimonial or documentary) to OSC may obtain legal advice through the
Labor Counselor from DA attorneys concerning their rights and
obligations. This includes assistance at any interviews with OSC
investigators. However, an attorney-client relationship will not be
established unless the employee or military member--
(1) Is suspected or accused by the OSC of committing a prohibited
personnel practice or other illegal or improper act; and
(2) Has been assigned counsel by the DA General Counsel.
b. Any military member or employee who reasonably believes that he
or she is suspected or has been accused by OSC of committing a
prohibited personnel practice or other illegal or improper act may
obtain legal representation from DA. The counsel assigned will be from
another DOD component whenever a DA attorney is likely to face a
conflict between the attorney's ethical obligation to the client and DA,
or when the suspected or accused individual has requested representation
from another DOD component. Outside legal counsel may be retained by DA
on behalf of the member or employee under unusual circumstances and only
with the personal approval of the DOD General Counsel.
c. The DA General Counsel will determine whether a conflict is
likely to occur if a DA attorney is assigned to represent a military
member or civilian. If the DA General Counsel determines a conflict may
occur, or if the suspected or accused employee has requested
representation from another DOD component, the DA General Counsel will
seek the assistance of another General Counsel in obtaining
representation outside DA.
2. Requests for Representation
a. To obtain legal representation, military members or civilian
employees must--
(1) Submit a written request for legal representation through the
Labor and Employment Law Office, Office of the Judge Advocate General,
Department of the Army, to DA General Counsel, explaining the
circumstances that justify legal representation. Copies of all process
and pleadings served should accompany the request.
(2) Indicate whether private counsel, at personal expense, has been
retained.
(3) Obtain written certification from their supervisor that--
(a) They were acting within the scope of official duties; and
(b) DA has not initiated any adverse or disciplinary action against
them for the conduct being investigated by the OSC.
b. Requests for DA legal representation must be approved by the DA
General Counsel.
c. The conditions of legal representation must be explained and
accepted in writing by the member or employee.
3. Limitations on Representation
a. DA will not provide legal representation with respect to a DA
initiated disciplinary action against a civilian employee for committing
or participating in a prohibited personnel practice or for engaging in
illegal or improper conduct. This prohibition applies regardless of
whether the participation or conduct is also the basis for the
disciplinary action proposed by the OSC.
b. In certain situations, counsel provided by DA may be limited to
representing the individual 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 contained in this regulation.
[[Page 135]]
4. Attorney-Client Relationship
a. An attorney-client relationship will be established and continued
between the suspected or accused individual and assigned DA counsel.
b. In representing a DA employee or military member, the DA attorney
designated as counsel will act as a vigorous advocate of the
individual's legal interests before the OSC or MSPB. The attorney's
professional responsibility to DA will be satisfied by fulfilling this
responsibility to the employee or military member. Legal representation
may be terminated only with the approval of the DA General Counsel and
normally only on the basis of information not available at the time the
attorney was assigned.
c. The attorney-client relationship may be terminated if the
assigned DA counsel determines, with the approval of the DA General
Counsel, that--
(1) The military member or civilian 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; and
(2) Termination is not in violation of the rules of professional
conduct applicable to the assigned counsel.
d. The DA attorney designated as counsel may request relief from the
duties of representation or counseling without being required to furnish
explanatory information that might compromise confidential
communications between the client and the attorney.
5. Funding
This regulation authorizes cognizant DA officials to approve
requests from military members or civilian employees for travel, per
diem, witness appearances, or other departmental support necessary to
ensure effective legal representation by the designated counsel.
6. Status
A military member's or civilian employee's participation in OSC
investigations, MSPB hearings, and other related proceedings will be
considered official departmental business for time and attendance
requirements and similar purposes.
7. Advice to Witnesses
The following advice to military members and civilian employees
questioned during the course of an OSC investigation may be appropriate
in response to these frequent inquiries:
a. A witness 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 question.
b. Requests for clarification of both questions and answers are
appropriate to avoid misinterpretation.
c. Means to ensure verifications of an interview by OSC
investigators are appropriate, whether or not the military member or
civilian employee is accompanied by counsel. 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 investigator agrees to record the proceeding.
d. Any errors that appear in a written summary of an interview
prepared by the investigator should be corrected before the member or
employee signs the statement. The military member or civilian employee
is not required to sign any written summary that is not completely
accurate. A military member or civilian employee may receive a copy of
the summary as a condition of signing.
PART 525_ENTRY AUTHORIZATION REGULATION FOR KWAJALEIN MISSILE RANGE
--Table of Contents
Sec.
525.1 General.
525.2 Background and authority.
525.3 Criteria.
525.4 Entry authorization (policy).
525.5 Entry authorization (procedure).
Authority: 44 U.S.C. 1681, 50 U.S.C. 797, 18 U.S.C. 1001, and E.O.
11021.
Source: 48 FR 34028, July 27, 1983, unless otherwise noted.
Sec. 525.1 General.
(a) Purpose. This regulation prescribes policies and procedures
governing entry of persons, ships, and aircraft into the Kwajalein
Missile Range (KMR), Kwajalein Atoll, Marshall Islands.
(b) Scope. (1) This regulation is applicable to all persons, ships
and aircraft desiring entry into KMR.
(2) The entry authorizations issued under this authority are limited
to KMR and do not apply to entry to any other areas of the Marshall
Islands.
(3) In addition to the controls covered by this regulation movement
within the Kwajalein Missile Range, the territorial sea thereof and
airspace above, is subject to local control by the Commander, Kwajalein
Missile Range, and as installation commander.
(4) This regulation is not applicable to entry authorized by the
President of
[[Page 136]]
the United States pursuant to the United Nations (U.N.) Charter and to
Article 13 of the Trusteeship Agreement for the Former Japanese Mandated
Islands.
(c) Explanation of terms--(1) Department of Defense. A department of
the executive branch of the U.S. Government which includes the
Departments of the Army, the Navy, and the Air Force.
(2) Entry Authorization. Authorization by designated authority for a
person, a ship, or an aircraft to enter Kwajalein Missile Range, the
surrounding territorial sea, and the airspace above.
(3) National Range Commander. The Commander, Ballistic Missile
Defense Systems Command, is the National Range Commander.
Address: National Range Commander, Kwajalein Missile Range,
Ballistic Missile Defense Systems Command, ATTN: BDMSC-R, P.O. Box 1500,
Huntsville, Alabama 35807.
Electrical Address: CDRBMDSCOM HUNTSVILLE AL//BMDSC-R//.
(4) Commander. KMR. The Commander of the Kwajalein Missile Range is
located at Kwajalein Island, Republic of the Marshall Islands.
Address: Commander, Kwajalein Missile Range, P.O. Box 26, APO San
Francisco 96555.
Electrical Address: CDRKMR MI //BMDSC-RK//
(5) Excluded person. A person who has been notified by the National
Range Commander or the Commander, KMR, that authority for said person to
enter Kwajalein Missile Range or to remain in Kwajalein Missile Range
has been denied or revoked.
(6) Unauthorized person. A person who does not hold a currently
valid entry authorization for the Kwajalein Missile Range and does not
possess entry rights under authority of paragraph 4-1.a.
(7) Aliens. Persons who are neither citizens of, nor nationals of,
nor aliens to the United States of America.
(8) Permanent resident aliens. Persons who are not citizens of the
United States of America but who have entered the United States under an
immigrant quota.
(9) Military installation. A military (Army, Navy, Air Force, Marine
Corps, and/or Coast Guard) activity ashore, having a commanding officer,
and located in an area having fixed boundaries, within which all persons
are subject to military control and to the immediate authority of a
commanding officer.
(10) Public ship or aircraft. A ship, boat, or aircraft owned by or
belonging to a Government and not engaged in commercial activity.
(11) Kwajalein Missile Range. Kwajalein Missile Range is defined as
all those defense sites in the Kwajalein Atoll, Marshall Islands,
including airspace and adjacent territorial waters, to which the United
States Government has exclusive rights and entry control by agreement
with the Trust Territory of the Pacific Islands and the Republic of the
Marshall Islands.
(12) Territorial waters. In accordance with title 19, chapter 3,
section 101 of the Code of the Trust Territory of the Pacific Islands
territorial waters mean, ``that part of the sea comprehended within the
envelope of all arcs of circles having a radius of three marine miles
drawn from all points of the barrier reef, fringing reef, or other reef
system of the Trust Territory, measured from the low water line, or, in
the absence of such a reef system, the distance to be measured from the
low water line of any island, islet, reef, or rocks within the
jurisdiction of the Trust Territory.''
(13) Kwajalein Missile Range Airspace. The air lying above the
Kwajalein Atoll, including that above the territorial waters.
(14) Trust Territory Republic of the Marshall Islands Registry.
Registration of a ship or aircraft in accordance with the laws of the
Trust Territory of the Pacific Islands or the Republic of the Marshall
Islands.
(15) U.S. Registry. Registration of a ship or aircraft in accordance
with the laws and regulations of the United States.
(16) U.S. Armed Forces. Military personnel of the Department of
Defense and the United States Coast Guard.
(17) Principal. A resident of Kwajalein Missile Range who is
authorized to have his or her dependent(s) reside or visit with him
(her) on Kwajalein Missile Range.
[[Page 137]]
(18) Dependent. (i) Spouse of principal.
(ii) Unmarried child of principal less than 21 years of age.
(iii) Sponsored individual meeting the dependency criteria of
section 152, Internal Revenue Code (26 U.S.C. 152), and approved by the
Commander, Kwajalein Missile Range.
Sec. 525.2 Background and authority.
(a) Background. (1) Certain areas, due to their strategic nature or
for purposes of defense, have been subjected to restrictions regarding
the free entry of persons, ships, and aircraft. Free entry into the
areas listed and defined in this regulation, and military installations
contiguous to or within the boundaries of defense site areas, is subject
to control as provided for in the Executive Order 11021 of May 7, 1962
and Departments of Interior and Defense Agreement effective July 1,
1963, or other regulations. Such restrictions are imposed for defense
purposes because of the unique strategic nature of the area and for the
protection of the United States Government military bases, stations,
facilities, and other installations, and the personnel, property, and
equipment assigned to or located therein. Persons, ships, and aircraft
are excluded from KMR unless and until they are granted permission to
enter under applicable regulations.
(2) The control of entry into or movement within KMR by persons,
ships, or aircraft will be exercised so as to protect fully the physical
security of, and insure the full effectiveness of, bases, stations,
facilities, other installations, and individuals within KMR. However,
unnecessary interference with the free movement of persons, ships, and
aircraft is to be avoided.
(3) This regulation will be administered to provide the prompt
processing of all applications and to insure uniformity of
interpretation and application insofar as changing conditions permit.
(4) In cases of doubt, the determination will be made in favor of
the course of action which will best serve the interests of the United
States and national defense as distinguished from the private interests
of an individual or group.
(b) Authority. (1) The Trust Territory of the Pacific Islands is a
strategic area administered by the United States under the provisions of
the Trusteeship Agreement for the Former Japanese Mandated Islands,
approved by the United Nations April 2, 1947. Congress, by 48 U.S.C.
Sec. 1681, gave responsibility for this area to the President. By
Executive Order 11021, the President delegated this authority to the
Secretary of Interior. By agreement between the Secretary of Interior
and Secretary of Defense, the Navy became responsible for all entry
control July 1, 1963. With approval of the Secretary of Defense and
Director of the Office of Territories, the authority to control entry
into KMR was transferred to the Army in July of 1964.
(2) The authority of the Department of the Army to control entry of
persons, ships, and aircraft into Kwajalein Missile Range is exercised
through the Commander, Ballistic Missile Defense Systems Command, who is
the National Range Commander.
(3) Penalties are provided by law for:
(i) Violation of regulations imposed for the protection or security
of military or naval aircraft, airports, air facilities, vessels,
harbors, ports, piers, waterfront facilities, bases, forts, posts,
laboratories, stations, vehicles, equipment, explosives, or other
property or places subject to the jurisdiction of, administration of, or
in the custody of the Department of Defense (sec. 21 of the Internal
Security Act of 1950 (50 U.S.C. 797) and Department of Defense Directive
5200.8 of 29 July 1980.
(ii) Knowingly and willfully making a false or misleading statement
or representation in any matter within the jurisdiction of any
department or agency of the United States (18 U.S.C. 1001).
Sec. 525.3 Criteria.
(a) General. (1) Entry authorizations may be issued only after the
National Range Commander, the Commander, KMR, or a duly authorized
subordinate has determined that the presence of the person, ship, or
aircraft will not, under existing or reasonably forseeable future
conditions, endanger, place an undue burden upon, or otherwise
jeopardize the efficiency, capability or effectiveness of any military
installation
[[Page 138]]
located within Kwajalein Missile Range or areas contiguous thereto.
Factors to be considered shall include, but not be limited to, the true
purpose of the entry, the possible burdens or threats to the defense
facilities which the presence of the ship, aircraft, or the individual
or individuals involved impose or might reasonably be expected to impose
on those islands in the Kwajalein Atoll under U.S. Army jurisdiction.
(2) Request for entry authorizations will be evaluated and adjudged
as to whether the entry at the time and for the purpose stated will or
will not be inimical to the purposes of U.S. national defense.
(b) Aliens and permanent resident aliens. (1) Entry of aliens for
employment or residence (except as specified in paragraph 3-2.b.) in an
area entirely within the borders of Kwajalein Missile Range is not
authorized except when such entry would serve the interests of the U.S.
Government, and then only for specified periods and under prescribed
conditions. Entry application shall include the name and nationality of
the person desiring entry.
(2) Alien and immigrant spouses and dependents of U.S. citizen
sponsors or principals assigned to Kwajalein Missile Range may be
granted entry authorization by the National Range Commander so long as
U.S. sponsor or principal remains on duty or resides within Kwajalein
Missile Range.
(c) Excluded persons. Excluded persons, as defined in 1-3.e., are
normally prohibited from entering Kwajalein Missile Range. Excluded
persons may enter Kwajalein Missile Range only when a bona fide
emergency exists and the Commander, Kwajalein Missile Range, grants
permission for them to enter or transit the Kwajalein Missile Range.
While they are within the jurisdiction of the Commander, Kwajalein
Missile Range, they will be subject to such restrictions and regulations
as he may impose.
(d) Unauthorized persons. Persons not authorized to enter Kwajalein
will not normally be allowed to debark from authorized ships or aircraft
at Kwajalein Island or other islands in the Kwajalein Atoll to which the
U.S. Government has lease rights, except that continuing aircraft
passengers may be allowed at the discretion of the Commander, Kwajalein
Missile Range, to debark during aircraft ground time to remain within
specified portions of the terminal building designated by the Commander,
Kwajalein Missile Range. In emergency situations, entry of unauthorized
personnel may be granted by the Commander, Kwajalein Missile Range.
(e) Entrance to other areas of the Trust Territory. No person,
unless a citizen, national, or permanent resident alien of the Marshall
Islands, will be permitted to debark at Kwajalein Missile Range for the
purpose of transiting to areas under the jurisdiction of the Republic of
the Marshall Islands without possessing a permit issued by its Chief of
Immigration.
Address: Chief of Immigration, Office of the Attorney General, Republic
of the Marshall Islands, Majuro, MI 96960.
(f) Unauthorized marine vessels and aircraft. No unauthorized marine
vessel or aircraft shall enter Kwajalein Missile Range unless a bona
fide emergency exists and the Commander, Kwajalein Missile Range, has
granted such permission. The Commander, Kwajalein Missile Range, shall
use all means at his disposal to prevent unauthorized vessels and
aircraft from entering Kwajalein Missile Range. Unauthorized marine
vessels and aircraft will be seized for prosecution along with the crew,
passengers, and cargo.
(g) Military areas. Entries authorized under this instruction do not
restrict the authority of the Commander, Kwajalein Missile Range, to
impose and enforce proper regulations restricting movement into or
within portions of Kwajalein Missile Range reserved for military
operations.
(h) Waivers. No one except the National Range Commander, or his duly
authorized representative, has authority to waive the requirements of
this regulation. Any waiver shall be in writing and signed.
(i) Security clearances. Organizations, including U.S. Government
contractors, responsible for the assignment of personnel to KMR on
either a temporary or permanent basis will comply with security
clearance requirements
[[Page 139]]
for the assignment. A copy of the security clearance notification will
be forwarded to Cdr, BMDSCOM, ATTN: BMDSC-AU.
Sec. 525.4 Entry authorization (policy).
(a) Personnel. (1) Persons in the following categories may enter
Kwajalein Missile Range without obtaining specific entry authorization
provided the Commander, Kwajalein Missile Range, is notified of
impending entry 14 days prior to entry date:
(i) Personnel being assigned to Kwajalein Missile Range as
permanent-party and traveling on official orders.
(ii) Personnel being temporarily assigned to Kwajalein Missile Range
and who are traveling on official orders.
(iii) Dependents of permanent-party personnel who are accompanying
their sponsors and are traveling on official orders.
(iv) Crew members on ships and aircraft authorized to enter
Kwajalein Missile Range.
(2) Persons in the following categories will submit request for
entry authorization to the Commander, Kwajalein Missile Range, ATTN:
BMDSC-RKE-S:
(i) Dependents of KMR-based permanent-party personnel for the
purpose of joining their sponsors (already stationed at KMR) on either a
permanent or temporary basis.
(ii) Citizens, nationals and permanent resident aliens of the
Republic of the Marshall Islands except those who deplaned for the
purpose of transiting Kwajalein Defense Site.
(iii) Citizens of the Trust Territory of the Pacific Islands.
(iv) U.S. citizen employees and officials of the Trust Territory of
the Pacific Islands.
(3) All other personnel, except news media representatives, will
submit request for entry authorization to the National Range Commander,
BMDSCOM, ATTN: BMDSC-R (electrical address: CDRBMDSCOM HUNTSVILLE AL //
BMDSC-RA//).
(4) All requests and notifications will include the following data
(as applicable):
(i) Full name(s).
(ii) Citizenship.
(iii) Organization.
(iv) Purpose of entry.
(v) Point of contact at Kwajalein Missile Range.
(vi) Inclusive dates of stay.
(vii) Return address.
(viii) Proof of security clearance (if access to classified
information is required).
(5) News media representatives require authority from the National
Range Commander to visit Kwajalein Missile Range (news media
representatives wishing to transit Kwajalein Island to visit any island
not within the Kwajalein Missile Range must obtain entry authorization
from the Republic of the Marshall Islands and present same to the air
carrier at the point of departure to Kwajalein Island). Requests should
be addressed to the National Range Commander, BMDSCOM, ATTN: BMDSC-S
(electrical address: CDRBMDSCOM HUNTSVILLE AL//BMDSC-S//) and contain
the following information:
(i) Name.
(ii) Date and place of birth.
(iii) Citizenship.
(iv) Organization(s) represented.
(v) Objective(s) of visit.
(vi) Desired and alternative arrival and departure dates.
(vii) Address(es) and telephone number(s) for additional information
and/or reply.
(b) Ship. (1) Ships or other marine vessels in the following
categories, except those which have been denied entry or have had a
prior entry authorization revoked, may enter the Kwajalein Missile Range
territorial waters upon request to and approval of the Commander,
Kwajalein Missile Range:
(i) U.S. private ships which are:
(A) Under charter to the Military Sealift Command, or
(B) Employed exclusively in support of and in connection with a
Department of Defense construction, maintenance, or repair contract.
(ii) Trust Territory of the Pacific Islands/RMI ships which have
been approved by the resident representative on Kwajalein.
(iii) Any ship in distress.
(iv) U.S. public ships which are providing a service to the
Kwajalein Atoll in accordance with their agency responsibilities.
[[Page 140]]
(2) All other ships or marine vessels must obtain an entry
authorization from the National Range Commander before entering the
Kwajalein Atoll territorial sea. The entry authorization application
should reach the National Range Commander at least 14 days prior to the
desired entry date and should include the following information:
(i) Name of ship.
(ii) Place of registry and registry number.
(iii) Name, nationality, and address of operator.
(iv) Name, nationality, and address of owner.
(v) Gross tonnage of ship.
(vi) Nationality and numbers of officers and crew (include crew list
when practicable).
(vii) Number of passengers (include list when practicable).
(viii) Last port of call prior to entry into area for which
clearance is requested.
(ix) Purpose of visit.
(x) Proposed date of entry and estimated duration of stay.
(xi) Whether ship is equipped with firearms or photographic
equipment.
(xii) Whether crew or passengers have in their possession firearms
or cameras.
(3) Entry authorizations may be granted for either single or
multiple entries.
(4) Captains of ships and/or marine vessels planning to enter
Kwajalein Missile Range shall not knowingly permit excluded persons to
board their vessels.
(5) U.S. public ships which are authorized to enter defense areas by
the controlling Defense Department agency may enter the Kwajalein Atoll
territorial sea without the specific approval of either the National
Range Commander or the Commander, KMR, provided that the Commander, KMR,
is notified as far in advance of the impending entry as is consistent
with the security requirements pertaining to such movement.
(c) Aircraft. (1) Aircraft in the following categories, except those
aircraft which have been denied entry or have had a prior entry
authorization revoked, may enter Kwajalein Atoll airspace upon request
to and approval of the Commander, KMR:
(i) U.S. private aircraft which are under charter to the Military
Airlift Command.
(ii) Public aircraft of the Trust Territory of the Pacific Islands/
RMI which have been approved by the resident representative on
Kwajalein.
(iii) Private aircraft registered with and approved by the
Commander, KMR, which are based on Kwajalein Island.
(iv) Any aircraft in distress.
(v) Private aircraft operated by a common carrier which is providing
scheduled air service to or through the Kwajalein Atoll under a current
license issued by the Department of the Army.
(vi) U.S. public aircraft which are providing a service to the
Kwajalein Atoll in accordance with their agency responsibilities.
(2) All aircraft, except those categorized in paragraph 4-3.a., must
obtain an entry authorization from the National Range Commander before
entering Kwajalein Atoll airspace. The entry authorization application
should reach the National Range Commander at least 14 days prior to the
desired entry date and should include the following information:
(i) Type and serial number of aircraft.
(ii) Nationality and name of registered owner.
(iii) Name and rank of senior pilot.
(iv) Nationality and number of crew (include crew list when
practicable).
(v) Number of passengers (include list when practicable).
(vi) Purpose of flight.
(vii) Plan of flight route, including the point of origin of flight
and its designation and estimated date and times of arrival and
departure of airspace covered by this procedure.
(viii) Radio call signs of aircraft and radio frequencies available.
(ix) Whether aircraft is equipped with firearms or photographic
equipment.
(x) Whether crew or passengers have in their possession firearms or
cameras.
(3) Entry authorizations may be granted for either single or
multiple entries.
(4) Captains of aircraft planning to enter Kwajalein Missile Range
airspace
[[Page 141]]
shall not knowingly permit excluded persons to board their aircraft.
(5) U.S. public aircraft which are authorized to enter defense areas
by the controlling Defense Department agency may enter the Kwajalein
Atoll airspace with the specific approval of either the National Range
Commander or the Commander, KMR, provided that the Commander, KMR, is
notified as far in advance of the impending entry as is consistent with
the security requirement pertaining to such movements.
Sec. 525.5 Entry authorization (procedure).
(a) Processing. (1) Upon receipt of an application, the appropriate
officer (either the National Range Commander, the Commander, Kwajalein
Missile Range or the designated representative) shall take the following
actions:
(i) Determine that the entry of the applicant is, or is not, in
accordance with the criteria set forth in chapter 3. After having made a
determination, the reviewing authority shall either:
(A) Issue an entry authorization as requested, or with modifications
as circumstances require; or
(B) Deny the request and advise the applicant of his/her right to
appeal in accordance with the provisions of paragraph 5-2.
(ii) If the reviewing authority feels that additional information is
required before reaching a decision, the reviewing authority will
request that information from the applicant and then proceed as in
paragraph 5-1.a.(1).
(iii) If, after having obtained all pertinent information, the
reviewing authority cannot reach a decision, he/she will forward the
application to the next higher headquarters. A statement containing the
following information shall accompany the application:
(A) A summary of the investigation conducted by the reviewing
organization.
(B) The reason the application is being forwarded.
(C) Appropriate comments and/or recommendations.
(2) All applicants will be kept fully informed of actions/decisions
pertaining to his/her application. Normally a response will be forwarded
to the applicant within ten working days after receipt of an
application. When the National Range Commander responds to an
application, he/she will send a copy of that response to the Commander,
KMR. When the Commander, Kwajalein Missile Range, responds to an
application, and the National Range Commander has an interest in the
visit, the Commander, KMR, will concurrently send a copy of that
response to the National Range Commander.
(3) Entry authorizations shall state the purpose for which the entry
is authorized and such other information and conditions as are pertinent
to the particular authorization.
(b) Revocations. (1) Entry authorizations may be revoked by the
National Range Commander or the Commander, Kwajalein Missile Range, for
misconduct, or termination of status, or upon being advised of the
discovery of information which would have been grounds for denial of the
initial request. Such a revocation will be confirmed in writing to the
holder of an entry authorization. When an entry authorization is
revoked, a one-way permit will be normally issued as appropriate, to
permit the ship, aircraft, or person to depart the area.
(2) When Commander, Kwajalein Missile Range revokes an entry
authorization, he shall forward a copy of such revocation with
supporting documentation to the National Range Commander.
(c) Appeals. (1) Appeals from entry denial or revocation by
Commander, Kwajalein Missile Range will be filed with the National Range
Commander. An appeal shall contain a complete statement of the purpose
of the proposed entry and a statement or reasons why the entry should be
authorized, or why revocation of entry authorization should not be
enforced.
(2) Final appeal letters will be forwarded promptly by the National
Range Commander to the BMD Program Manager with an indorsement setting
forth in detail the facts and circumstances surrounding the action
taken.
(d) Renewals. Entry authorizations having been granted and utilized
may be extended or renewed upon request at
[[Page 142]]
the expiration of the period for which the entry was originally
authorized or extended provided the justification for remaining in the
area or for making a reentry meets the criteria set forth in this
procedure. It shall be the responsibility of every applicant to depart
Kwajalein Missile Range upon expiration of the time prescribed in the
entry authorization, unless such authorization has been extended or
renewed. Failure to comply herewith will be considered as evidence or
violation of this procedure and may result in denial of future
authorizations.
[[Page 143]]
SUBCHAPTER B_CLAIMS AND ACCOUNTS
PART 534_MILITARY COURT FEES--Table of Contents
Sec.
534.1 General.
534.2 Allowable expenses for reporters.
534.3 Allowable expenses for witnesses.
534.4 Other fees.
Authority: Sec. 3012, 70A Stat. 157; 10 U.S.C. 3012.
Cross Reference: General Accounting Office, see 4 CFR chapter I.
Source: 26 FR 9989, Oct. 25, 1961, unless otherwise noted.
Sec. 534.1 General.
(a) Applicability. This part applies to court reporters and
interpreters appointed under the Uniform Code of Military Justice,
Article 28 (10 U.S.C. 828), and witnesses both in Government employ and
those not in Government employ when subpoenaed to appear before a court.
(b) Use of term ``court''. The term ``court'' as used in this part
will be construed to include court-martial, court of inquiry, military
commission, or retiring board. ``Military commission'' includes any
United States tribunal, by whatever name described, convened in the
exercise of military government, martial law, or the laws of war.
Sec. 534.2 Allowable expenses for reporters.
(a) General. Reporters appointed under the Uniform Code of Military
Justice, Article 28, are entitled to payment for their services in such
capacity at the rates specified in paragraphs (b) through (i) of this
section, or at such lower rates as may be stated in the appointing
instrument.
(b) Per diem pay. A reporter is entitled to a per diem payment of
not to exceed $5 for each day or fraction thereof in attendance at
court. Only one such payment is authorized for any 1 day even if the
reporter attends two or more courts. For the purpose of this payment,
the day ends at midnight and any fraction will be considered a whole
day.
(c) Hourly pay. A reporter is entitled to an hourly payment of not
to exceed 50 cents for each hour, or fractional part equal to or greater
than one-half hour, actually spent in court during the trial or hearing.
A fractional part of an hour, less than one-half hour, will be
disregarded, except that if the total time in attendance in one day or
at one court in one day is less than 1 hour, such time will be
considered as 1 hour. Time will be computed separately for each day if
only one court is attended in such day. If more than one court is
attended in 1 day, time in attendance at each court will be computed
separately. The hourly pay is in addition to the per diem prescribed in
paragraph (b) of this section.
(d) Piece-work pay--(1) Rates. In addition to per diem and hourly
pay prescribed in paragraphs (b) and (c) of this section, a reporter
will be paid on a piece-work basis for transcribing notes and copy work
based on the following rates:
(i) Transcribing notes and making that portion of the original
record which is required to be typewritten--25 cents for each 100 words.
(ii) Each carbon copy of the record when authorized by the convening
authority--10 cents for each 100 words.
(iii) Copying papers material to the inquiry--15 cents for each 100
words.
(iv) Each carbon copy of the papers referred to in paragraph
(d)(1)(iii) of this section when ordered by the court for its use--2
cents for each 100 words.
(2) Counting number of words. The certifying officer may determine
the total number of words by counting the words on a sufficient number
of pages to arrive at a fair average of words per page and multiplying
such average by the total number of pages. Abbreviations ``Q'' and ``A''
for ``Questions'' and ``Answer'' and all dates such as ``25th'' and
``1957'' will each be counted as one word. Punctuation marks will not be
counted as words.
(e) Mileage. A reporter is entitled to 8 cents a mile for travel
from his home or usual place of employment to the court and for his
return journey, computed on the basis of the Rand McNally
[[Page 144]]
Standard Highway Mileage Guide. Mileage is not authorized for return
trips each night unless the sessions of the court are held on
nonconsecutive days. The fact that a reporter may serve two or more
courts in the same day does not warrant a duplication of his mileage
allowance.
(f) Allowance in lieu of subsistence--(1) General. When the official
of the court having control in such matters keeps the reporter at his
own expense away from his usual place of employment for 24 hours or more
on public business referred to the court, a per diem allowance of not to
exceed $4 in lieu of subsistence will be paid to the reporter for
himself. A like allowance when ordered by the court will be paid to the
reporter for each necessary assistant. The fact that a reporter returns
each night to his home does not preclude the view that he is kept away
from his usual place of employment for 24 hours. Service as reporter
before two or more courts in the same day does not warrant duplication
of the per diem allowance in lieu of subsistence.
(2) Computation. The time for which the per diem allowance for
expenses is to be paid will be computed in the manner prescribed in
Sec. 534.3(b)(3) for a civilian witness not in Government employ.
(g) Allowance for constructive attendance. A reporter duly employed
but who after arrival at court performs no service because of
adjournment is entitled to mileage; to a day's pay as prescribed in
paragraph (c) of this section; and also to the per diem allowance
prescribed in paragraph (f) of this section if kept away from his usual
place of employment for 24 hours.
(h) Detail of enlisted members. Enlisted members may be detailed to
serve as stenographic reporters for military courts, boards, and
commissions, but will receive no extra pay for such service.
(i) Persons receiving pay from Government. Compensation for clerical
duties performed for a court will not be paid to a person who is in the
pay of the Government, except retired military members to the extent
permitted under the dual compensation laws.
Sec. 534.3 Allowable expenses for witnesses.
(a) Military members--(1) On active duty. Members in the military
service, on active duty, when required to appear as witnesses before
courts will receive the appropriate travel and transportation allowances
prescribed in chapter 4, Joint Travel Regulations.
(2) Retired members. Retired military members, not on active duty,
when called as witnesses (other than expert witnesses), are entitled for
their services as such to the mileage and other fees prescribed in
paragraph (b)(3) of this section, for civilian witnesses not in
Government employ.
(b) Civilians--(1) General. (i) Persons not subject to military law
when called as witnesses are entitled to the fees and mileage allowed to
wintesses attending courts of the United States.
(Article 47, Uniform Code of Military Justice (10 U.S.C. 847; 1 Comp.
Gen. 347))
(ii) When the court is sitting in a foreign country, the oversea
commander within whose command the court is convened will fix fees and
allowances to be paid to witnesses, not in excess of maximum rates
permitted to witnesses attending the courts of the United States or the
courts of the foreign country, whichever rates may be higher.
(2) In Government employ. Any officer or employee of the United
States or any agency thereof, summoned as a witness on behalf of the
United States, shall be paid his necessary expenses incident to travel
by common carrier, or, if travel is made by privately owned automobile,
mileage at a rate not to exceed 10 cents per mile, together with a per
diem allowance not to exceed the rate of $12 a day.
(62 Stat. 950, 63 Stat. 103, 704, 69 Stat. 394; 28 U.S.C. 1823(a))
(3) Not in Government employ--(i) Excluding Alaska and Canal Zone. A
witness attending in any court of the United States or before a United
States commissioner or person taking his deposition pursuant to any
order of the court of the United States, will receive $4 for each day's
attendance and for the time necessarily occupied in going to
[[Page 145]]
and returning from the same, and 8 cents per mile for going from and
returning to his place of residence. Witnesses who are not salaried
employees of the Government and who are not in custody and who attend at
point so far removed from their respective residences as to prohibit
return thereto from day to day will be entitled to an additional
allowance of $8 per day for expenses of subsistence including the time
necessarily occupied in going to and returning from the place of
attendance. In lieu of the mileage allowance provided for herein,
witnesses who are required to travel between the Territories,
possessions, or to and from the continental United States, will be
entitled to the actual expenses of travel at the lowest first-class rate
available at the time of reservation for passage, by means of
transportation employed. When a witness is detained in prison for want
of security for his appearance, he will be entitled, in addition to his
subsistence, to a compensation of $1 a day.
(ii) In Alaska and Canal Zone. (a) In Alaska such witnesses are
entitled to the witness fees and mileage prescribed for witnesses before
the United States district court in the judicial division in which the
trial or hearing is held. Fees vary in the different judicial divisions.
(b) In the Canal Zone such witnesses are entitled to the witness
fees and mileage as are prescribed for witnesses before the United
States court in the Canal Zone.
(c) Responsible officers in Alaska and in the Panama Canal Zone will
keep informed as to the fees payable in United States courts in those
places.
(c) Mileage--(1) General. A civilian witness not in Government
employ, when furnished transportation in kind by the Government, is
entitled to 8 cents per mile less the cost of transportation furnished.
A civilian witness residing within the jurisdiction of the court, who is
subpoenaed and attends the trial in obedience to such subpoena, is
entitled to mileage between his residence and the place of trial,
regardless of whether both are in the same city.
(2) Computation. Mileage at the rate of 8 cents per mile will be
computed on the basis of the Rand McNally Standard Highway Mileage Guide
regardless of the mode of transportation used.
(d) Subsistence per diem allowance--(1) When payable. The
subsistence per diem allowance is payable only when the place of trial
is so far removed from the place of residence as to prohibit return of
the witness thereto from day to day and such fact is properly certified.
(See 6 Comp. Gen. 835.)
(2) Computation. In computing the subsistence per diem allowance
prescribed in paragraph (b)(3)(i) of this section, the calendar day
beginning at midnight is the unit, and the subsistence per diem
allowance accrues from the time it is necessary for the witness to leave
his home in order to arrive at the place of trial at the appointed time
until the time he could arrive at his home by first available
transportation after his discharge from attendance, any fractional part
of a day under such transportation to be regarded as a day for per diem
purposes. (See 5 Comp. Gen. 1028, as modified by 6 Comp. Gen. 480 and 6
id. 835.)
(e) Attendance fees--(1) Attendance at more than one case on same
day. A person attending as a witness in more than one case on the same
day under a general subpoena to appear and testify is entitled to only
one per diem for each day's attendance. If separate subpoenas are issued
in each case, the defendants being different, the witness is entitled to
separate per diem for actual attendance in each case. The duplication of
fees on account of attendance as witness in more than one case on the
same day does not apply to the 8-cent mileage allowance and does not
apply to the per diem on $8 in lieu of subsistence.
(2) Attendance before officer taking deposition. A witness who is
required to appear before an officer (civil or military) empowered to
take depositions and there to give testimony under oath to be used
before a court is entitled for such service and for the necessary travel
incident thereto, including return travel, to the allowances prescribed
in paragraphs (a) and (b) of this section, the same as though his
appearance were before a court. (See 8 Comp. Gen. 18.)
(3) Attendance before military courts or boards of limited
jurisdiction. A subpoena
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or other compulsory process addressed to a civilian by a military court
or board which has not express statutory authority to issue such
process, such as a board of officers convened to investigate and report
upon the facts connected with the death of an enlisted member while on
temporary duty, is void. Civilian witnesses who appear before such a
board in response to such void process must be regarded as having done
so voluntarily and are not entitled to witness fees, in the absence of a
specific appropriation therefor. (See 8 Comp. Gen. 64.)
(4) Computation. The provisions of paragraph (d)(2) of this section
are equally applicable for computation of the attendance fee.
(f) Expert--(1) Fees paid. An expert witness employed in accordance
with Manual for Courts-Martial, 1951, paragraph 116, may be paid
compensation at the rate prescribed in advance by the official empowered
to authorize his employment. (See 11 Comp. Gen. 504.) In the absence of
such advance authorization no fees, other than ordinary witness fees,
may be paid for the employment of an individual as an expert witness.
(See paragraph 116, Manual for Courts-Martial (Executive Order 10214).)
(2) Limitations. (i) An expert while employed on behalf of the
Government is an officer or employee of the United States within the
laws affecting traveling and subsistence expenses of officers and
employees of the Government generally. His traveling allowances are
therefore subject to the limitations prescribed in the Travel Expense
Act of 1949 (63 Stat. 166; 5 U.S.C. 835-842) and the Standardized
Government Travel Regulations. (See 6 Comp. Gen. 712.)
(ii) There is no authority for payment by the Government of fees to
an expert, who was employed by an officer or employee of the Government
to aid in the performance of his duties, other than an expert witness
who actually appears as such (paragraph (b)(2) of this section).
(iii) A retired officer, not on active duty, employed as an expert
witness is not entitled to any compensation in addition to his retired
pay for such service. The traveling allowances of such a retired
officer, so employed, are subject to the limitations prescribed in the
Travel Expense Act of 1949 and the Standardized Government Travel
Regulations. (See 6 Comp. Gen 712.)
(g) Witness not subpoenaed--(1) Compelled to testify. A person who,
although not subpoenaed, is present at trial or hearing before a court
or other body authorized to compel the attendance of witnesses by
compulsory process, and who is compelled or required to testify at such
hearing, is entitled to fees and mileage allowances payable to
witnesses.
(2) Voluntarily testifies. A person who was neither subpoenaed nor
requested to appear as a witness, but who voluntarily requested and was
granted permission to testify to certain matters considered pertinent to
an inquiry being conducted, is not entitled to mileage and witness fees.
(See 9 Comp. Gen. 255.)
Sec. 534.4 Other fees.
(a) Service of subpoena. Fees or compensation for the service of a
subpoena by a civilian are not prescribed by the laws of the United
States. Fees and mileage allowed by the local law for similar services
may be paid. If no specific fee or mileage is fixed by local law,
reasonable allowances may be paid. (See Dig. Op. JAG, 1912-40, sec.
379.)
(b) Taking of depositions--(1) Fees of civil officers. A civil
officer before whom a deposition is taken may be paid the fees allowed
by law of the place where the deposition is taken (or a reasonable fee
if no specific fee is fixed by local laws), but no mileage or other
allowance for travel of the civil officer to the witness is provided for
or authorized by law. (See 2 Comp. Gen. 65.)
(2) Travel of witnesses. If the witness and the civil officer before
whom the deposition is to be taken do not reside at the same place, the
witness should be required to perform the necessary travel, and he is
entitled to mileage or other travel allowance therefor as prescribed in
Sec. 534.3(e)(2).
(3) Oaths in matters of military administration. Where the service
of one of the officers designated in the Uniform Code of Military
Justice, Article 136, is not available, fees may be paid to civil
officers for administering oaths in matters
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relating to military administration, subject to the conditions indicated
in paragraph (b)(1) of this section.
(c) Interpreters. An interpreter appointed under the Uniform Code of
Military Justice, Article 28 (10 U.S.C. 828), is entitled for his
services as such to the allowances prescribed for witnesses (Sec.
534.3).
(d) Furnishing copies of official records or documents. The fees
provided by the local laws may be paid to the proper officials for
furnishing such certified copies of public records or documents and
expenses in connection with the procurement of photostatic copies,
photographs, and negatives as are required by the court.
(e) Attendance upon civil courts--(1) Cases involving performance of
official duties. A military member on active duty or a civilian in
Government employ appearing on behalf of the United States in cases
arising out of the performance of their official duties is entitled to
transportation and per diem as prescribed in Sec. 534.3(a)(1) and
(b)(1). Payment may be made by Department of the Army finance and
accounting officers and will be charged to Department of the Army
appropriations available for travel expenses of military personnel and
civilian employees.
(2) Cases involving other than performance of official duties. A
military member on active duty or a civilian in Government employ
appearing on behalf of the United States in cases involving other than
the performance of their official duties is entitled to transportation
or transportation allowances and per diem as may be prescribed by The
Attorney General. The subpoena or letter requesting attendance will
specify the rates payable and will cite the appropriation chargeable.
Payment may be made by a Department of the Army finance and accounting
officer and reimbursement obtained from the Department of Justice.
(3) Cases in which civilians not in Government employ are called as
witnesses. Payments to civilians out of Government employ will not be
made by Department of the Army finance and accounting officers. Such
payments will be made by the Department of Justice.
PART 536_CLAIMS AGAINST THE UNITED STATES--Table of Contents
Subpart A_The Army Claims System
Sec.
536.1 Purpose of the Army Claims System.
536.2 Claims authorities.
536.3 Command and organizational relationships.
536.4 Designation of claims attorneys.
536.5 The Judge Advocate General.
536.6 The Army claims mission.
536.7 Responsibilities of the Commander USARCS.
536.8 Responsibilities and operations of command claims services.
536.9 Responsibilities and operations of area claims offices.
536.10 Responsibilities and operations of claims processing offices.
536.11 Chief of Engineers.
536.12 Commanding General, U.S. Army Medical Command.
536.13 Chief, National Guard Bureau.
536.14 Commanders of major Army commands.
536.15 Claims policies.
536.16 Release of information policies.
536.17 Single-service claims responsibility (DODD 5515.8 and DODD
5515.9).
536.18 Cross-servicing of claims.
536.19 Disaster claims planning.
536.20 Claims assistance visits.
536.21 Annual claims award.
Subpart B_Investigation and Processing of Claims
536.22 Claims investigative responsibility--General.
536.23 Identifying claims incidents both for and against the government.
536.24 Delegation of investigative responsibility.
536.25 Procedures for accepting claims.
536.26 Identification of a proper claim.
536.27 Identification of a proper claimant.
536.28 Claims acknowledgment.
536.29 Revision of filed claims.
536.30 Action upon receipt of claim.
536.31 Opening claim files.
536.32 Transfer of claims among armed services branches.
536.33 Use of small claims procedures.
536.34 Determination of correct statute.
536.35 Unique issues related to environmental claims.
536.36 Related remedies.
536.37 Importance of the claims investigation.
536.38 Elements of the investigation.
536.39 Use of experts, consultants and appraisers.
536.40 Conducting the investigation.
536.41 Determination of liability--generally.
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536.42 Constitutional torts.
536.43 Incident to service.
536.44 FECA and LSHWCA claims exclusions.
536.45 Statutory exceptions.
536.46 Other exclusions.
536.47 Statute of limitations.
536.48 Federal employee requirement.
536.49 Scope of employment requirement.
536.50 Determination of damages--applicable law.
536.51 Collateral source rule.
536.52 Subrogation.
536.53 Evaluation of claims--general rules and guidelines.
536.54 Joint tortfeasors.
536.55 Structured settlements.
536.56 Negotiations--purpose and extent.
536.57 Who should negotiate.
536.58 Settlement negotiations with unrepresented claimants.
536.59 Settlement or approval authority.
536.60 Splitting property damage and personal injury claims.
536.61 Advance payments.
536.62 Action memorandums.
536.63 Settlement agreements.
536.64 Final offers.
536.65 Denial notice.
536.66 The ``Parker'' denial.
536.67 Mailing procedures.
536.68 Appeal or reconsideration.
536.69 Retention of file.
536.70 Preparation and forwarding of payment vouchers.
536.71 Fund sources.
536.72 Finality of settlement.
Subpart C_Claims Cognizable Under the Military Claims Act
536.73 Statutory authority for the Military Claims Act.
536.74 Scope for claims under the Military Claims Act.
536.75 Claims payable under the Military Claims Act.
536.76 Claims not payable under the Military Claims Act.
536.77 Applicable law for claims under the Military Claims Act.
536.78 Settlement authority for claims under the Military Claims Act.
536.79 Action on appeal under the Military Claims Act.
536.80 Payment of costs, settlements, and judgments related to certain
medical malpractice claims.
536.81 Payment of costs, settlements, and judgments related to certain
legal malpractice claims.
536.82 Reopening an MCA claim after final action by a settlement
authority.
Subpart D_Claims Cognizable Under the Federal Tort Claims Act
536.83 Statutory authority for the Federal Tort Claims Act.
536.84 Scope for claims under the Federal Tort Claims Act.
536.85 Claims payable under the Federal Tort Claims Act.
536.86 Claims not payable under the Federal Tort Claims Act.
536.87 Applicable law for claims under the Federal Tort Claims Act.
536.88 Settlement authority for claims under the Federal Tort Claims
Act.
536.89 Reconsideration of Federal Tort Claims Act claims.
Subpart E_Claims Cognizable Under the Non-Scope Claims Act
536.90 Statutory authority for the Non-Scope Claims Act.
536.91 Scope for claims under the Non-Scope Claims Act.
536.92 Claims payable under the Non-Scope Claims Act.
536.93 Claims not payable under the Non-Scope Claims Act.
536.94 Settlement authority for claims under the Non-Scope Claims Act.
536.95 Reconsideration of Non-Scope Claims Act claims.
Subpart F_Claims Cognizable Under the National Guard Claims Act
536.96 Statutory authority for the National Guard Claims Act.
536.97 Scope for claims under the National Guard Claims Act.
536.98 Claims payable under the National Guard Claims Act.
536.99 Claims not payable under the National Guard Claims Act.
536.100 Applicable law for claims under the National Guard Claims Act.
536.101 Settlement authority for claims under the National Guard Claims
Act.
536.102 Actions on appeal under the National Guard Claims Act.
Subpart G_Claims Cognizable Under International Agreements
536.103 Statutory authority for claims cognizable under international
claims agreements.
536.104 Current agreements in force.
536.105 Responsibilities generally/international agreements claims.
536.106 Definitions for international agreements claims.
536.107 Scope for international agreements claims arising in the United
States.
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536.108 Claims payable under international agreements (for those arising
in the United States).
536.109 Claims not payable under international agreements (for those
arising in the United States).
536.110 Notification of incidents arising under international agreements
(for claims arising in the United States).
536.111 Investigation of claims arising under international agreements
(for those claims arising in the United States).
536.112 Settlement Authority for claims arising under international
agreements (for those claims arising in the United States).
536.113 Assistance to foreign forces for claims arising under
international agreements (as to claims arising in the United
States).
536.114 Scope for claims arising overseas under international
agreements.
536.115 Claims procedures for claims arising overseas under
international agreements.
536.116 Responsibilities as to claims arising overseas under
international agreements.
Subpart H_Maritime Claims
536.117 Statutory authority for maritime claims.
536.118 Related statutes for maritime claims.
536.119 Scope for maritime claims.
536.120 Claims payable as maritime claims.
536.121 Claims not payable as maritime claims.
536.122 Limitation of settlement of maritime claims.
536.123 Limitation of liability for maritime claims.
536.124 Settlement authority for maritime claims.
Subpart I_Claims Cognizable Under Article 139, Uniform Code of Military
Justice
536.125 Statutory authority for the Uniform Code of Military Justice
(UCMJ) claims.
536.126 Purpose of UCMJ claims.
536.127 Proper claimants; unknown accused--under the UCMJ.
536.128 Effect of disciplinary action, voluntary restitution, or
contributory negligence for claims under the UCMJ.
536.129 Claims cognizable as UCMJ claims.
536.130 Claims not cognizable as UCMJ claims.
536.131 Limitations on assessments arising from UCMJ claims.
536.132 Procedure for processing UCMJ claims.
536.133 Reconsideration of UCMJ claims.
536.134 Additional claims judge advocate and claims attorney
responsibilities (for UCMJ claims).
Subpart J_Claims Cognizable Under the Foreign Claims Act
536.135 Statutory authority for the Foreign Claims Act.
536.136 Scope for claims arising under the Foreign Claims Act.
536.137 Claims payable under the Foreign Claims Act.
536.138 Claims not payable under the Foreign Claims Act.
536.139 Applicable law for claims under the Foreign Claims Act.
536.140 Appointment and functions of Foreign Claims Commissions.
536.141 Composition of Foreign Claims Commissions.
536.142 Qualification of members of Foreign Claims Commissions.
536.143 Settlement authority of Foreign Claims Commissions.
536.144 Reopening a claim after final action by a Foreign Claims
Commission.
536.145 Solatia payment.
Subpart K_Nonappropriated Fund Claims
536.146 Claims against nonappropriated fund employees--generally.
536.147 Claims by NAFI employees for losses incident to employment.
536.148 Claims generated by the acts or omissions of NAFI employees.
536.149 Identification of persons whose actions may generate liability.
536.150 Claims payable from appropriated funds.
536.151 Settlement authority for claims generated by acts or omissions
of NAFI employees.
536.152 Payment of claims generated by acts or omissions of NAFI
employees.
536.153 Claims involving tortfeasors other than nonappropriated fund
employees: NAFI contractors.
536.154 Claims involving tortfeasors other than nonappropriated fund
employees: NAFI risk management program (RIMP) claims.
536.155 Claims payable involving tortfeasors other than nonappropriated
fund employees.
536.156 Procedures for claims involving tortfeasors other than
nonappropriated fund employees.
536.157 Settlement/approval authority for claims involving tortfeasors
other than nonappropriated fund employees.
Authority: 10 U.S.C. 2733; 10 U.S.C. 1089; 10 U.S.C. 1054; 28 U.S.C.
1291, 2401-2402, 2411-2412, 2671-2680; 10 U.S.C. 2737; 32 U.S.C. 715; 10
U.S.C. 2734a, 2734b; 10 U.S.C. 2734; 10 U.S.C. 4801, 4802, 4806; 46
U.S.C. app. 740; 39 U.S.C. 411; 10 U.S.C. 939; 10 U.S.C. 2736; 10 U.S.C.
2735; 10 U.S.C. 2731.
[[Page 150]]
Source: 71 FR 69360, Nov. 30, 2006, unless otherwise noted.
Subpart A_The Army Claims System
Sec. 536.1 Purpose of the Army Claims System.
This part sets forth policies and procedures that govern the
investigating, processing, and settling of claims against, and in favor
of, the United States under the authority conferred by statutes,
regulations, international and interagency agreements, and Department of
Defense Directives (DODDs). It is intended to ensure that claims are
investigated properly and adjudicated according to applicable law, and
valid recoveries and affirmative claims are pursued against carriers,
third-party insurers, and tortfeasors.
Sec. 536.2 Claims authorities.
(a) General. Claims cognizable under the following list of statutes
and authorities are processed and settled under DA Pam 27-162 and this
part. All of these materials may be viewed on the USARCS Web site,
https://www.jagcnet.army.mil/85256F33005C2B92/(JAGCNETDocID)/
HOME?OPENDOCUMENT. Select the link ``Claims Resources.''
(1) Tort claims. (i) The Military Claims Act (MCA), 10 United States
Code (U.S.C.) 2733 (see subpart C of this part). The ``incident-to-
service'' provision, applicable to both military and civilian personnel
of the Department of Defense, is contained in the MCA.
(ii) The Gonzales Act, 10 U.S.C. 1089. This act permits individual
suits against health care providers for certain torts (see Sec.
536.80).
(iii) Certain suits arising out of legal malpractice, 10 U.S.C.
1054, discussed at Sec. 536.81 and at DA Pam 27-162, paragraph 2-62f.
(iv) The Federal Tort Claims Act (FTCA), 28 U.S.C. 1291, 1402, 2401-
2402, 2411-2412, and 2671-2680 (see subpart D of this part). The
Westfall Act, 28 U.S.C. 2679, an integral part of the FTCA, provides
absolute immunity from individual suit for common law torts for
employees of the United States acting within the scope of their
employment.
(A) The legislative history of the FTCA.
(B) Regulations of the Attorney General implementing the Federal
Tort Claims Act, 28 CFR part 14.
(C) An appendix to 28 CFR part 14 sets forth certain delegations of
settlement authority to the Secretary of Veterans Affairs, the
Postmaster General, the Secretary of Defense, the Secretary of
Transportation, and the Secretary of Health and Human Services.
(v) The Non-Scope Claims Act (NSCA), 10 U.S.C. 2737 (see subpart E
of this part).
(vi) The National Guard Claims Act (NGCA), 32 U.S.C. 715 (see
subpart F of this part).
(vii) Claims under International Agreements or the Foreign Claims
Act.
(A) International Agreements Claims Act (IACA), 10 U.S.C. 2734a and
2734b.
(B) Foreign Claims Act (FCA), 10 U.S.C. 2734 (see subpart J of this
part).
(viii) The Army Maritime Claims Settlement Act (AMCSA), 10 U.S.C.
4801, 4802 and 4806. Affirmative claims under the AMCSA are processed
under 10 U.S.C. 4803 and 4804 (see Sec. 537.16 of this chapter).
(ix) Admiralty Extension Act (AEA), 46 U.S.C. app. 740 (see subpart
H of this part).
(x) Claims against nonappropriated fund (NAF) activities and the
risk management program (RIMP) (see subpart K of this part), processed
under Army Regulation (AR) 215-1 and AR 608-10.
(xi) Claims by the U.S. Postal Service for losses or shortages in
postal accounts caused by unbonded Army personnel (39 U.S.C. 411 and
Department of Defense (DOD) Manual 4525.6-M).
(2) Personnel claims (subpart I of this part and AR 27-20, chapter
11).
(i) The Personnel Claims Act (PCA), 31 U.S.C. 3721 (see AR 27-20,
chapter 11).
(ii) Redress of injuries to personal property, Uniform Code of
Military Justice (UCMJ), Article 139, 10 U.S.C. 939 (see subpart I of
this part).
(3) Affirmative claims (32 CFR part 537).
(i) The Federal Claims Collection Act (FCCA), 31 U.S.C. 3711-3720E.
(ii) The Federal Medical Care Recovery Act (FMCRA), 42 U.S.C. 2651-
2653.
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(iii) Collection from third-party payers of reasonable costs of
healthcare services, 10 U.S.C. 1095.
(b) Fund source authority for claims under Title 10 statutes. 10
U.S.C. 2736, advance payments for certain property claims (see Sec.
536.71).
(c) Fund source authority for tort claims paid by Financial
Management Service (FMS). 31 U.S.C. 1304, provides authority for
judgments, awards and compromise settlements.
(d) Additional authorities under Title 10. (1) 10 U.S.C. 2735,
establishes that settlements (or ``actions'') under the Title 10 claims
processing statutes are final and conclusive.
(2) 10 U.S.C. 2731, provides a definition of the word ``settle.''
(e) Related remedies statutes. The Army frequently receives claims
or inquiries that are not cognizable under the statutory and other
authorities administered by the U.S. Army under this publication and DA
Pam 27-162. Every effort should be made to refer the claim or inquiry to
the proper authority following the guidance in Sec. 536.34 or Sec.
536.36. (See also the corresponding paragraphs 2-15 and 2-17,
respectively, in DA Pam 27-162). Some authorities for related remedies
are used more frequently than others. Where an authority for a related
remedy is frequently used, it is listed below and is posted on the
USARCS Web site (for the address see Sec. 536.2(a)).
(1) Tucker Act, 28 U.S.C. 1346, provides exclusive jurisdiction in
the Court of Federal Claims over causes of actions alleging property
loss caused by a Fifth Amendment ``taking.''
(2) Maritime authority statutes, Public Vessels Act (PVA), 46 U.S.C.
app. 781-790, Suits in Admiralty Act (SIAA), 46 U.S.C. app. 741-752, and
the Rivers and Harbors Act, 33 U.S.C. 408 and 412.
(3) Federal Employees Compensation Act (FECA), two excerpts: 5
U.S.C. 8116 and 8140, providing guidance on personal injury and death
claims by civilian employees arising within the scope of their
employment (see DA Pam 27-162, paragraph 2-15b) and information on
certain claims by Reserve Officers Training Corps (ROTC) cadets,
respectively, (see DA Pam 27-162, paragraph 2-17d(2)).
(4) Longshore and Harbor Workers Compensation Act (LHWCA), 33 U.S.C.
901-950.
(5) Claims for consequential property damage by civilian employees
may only be considered in the Court of Federal Claims pursuant to 28
U.S.C. 1491.
(f) Additional materials. There are some additional authoritative
materials for the processing of claims, mostly of an administrative
nature. For a complete listing of all of the supplementary materials
relevant to claims processing under this publication and DA Pam 27-162
see appendix B of DA Pam 27-162.
(g) Conflict of authorities. Where a conflict exists between a
general provision of this publication and a specific provision found in
one of this publication's subparts implementing a specific statute, the
specific provision, as set forth in the statute, will control.
Sec. 536.3 Command and organizational relationships.
(a) The Secretary of the Army. The Secretary of the Army (SA) heads
the Army Claims System and acts on certain claims appeals directly or
through a designee.
(b) The Judge Advocate General. The SA has delegated authority to
The Judge Advocate General (TJAG) to assign areas of responsibility and
designate functional responsibility for claims purposes. TJAG has
delegated authority to the Commander USARCS to carry out the
responsibilities assigned in Sec. 536.7 and as otherwise lawfully
delegable.
(c) U.S. Army Claims Service. USARCS, a command and component of the
Office of TJAG, is the agency through which the SA and TJAG discharge
their responsibilities for the administrative settlement of claims
worldwide (see AR 10-72). USARCS' mailing address is: U.S. Army Claims
Service, 4411 Llewellyn Ave., Fort George G. Meade, MD 20755-5360,
Commercial: (301) 677-7009.
(d) Command claims services. (1) Command claims services exercise
general supervisory authority over claims matters arising within their
assigned areas of operation. Command claims services will:
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(i) Effectively control and supervise the investigation of
potentially compensable events (PCEs) occurring within the command's
geographic area of responsibility, in other areas for which the command
is assigned claims responsibility, and during the course of the
command's operations.
(ii) Provide services for the processing and settlement of claims
for and against the United States.
(2) The Commander USARCS, may delegate authority to establish a
command claims service to the commander of a major overseas command or
other commands that include areas outside the United States, its
territories and possessions.
(i) When a large deployment occurs, the Commander USARCS, may
designate a command claims service for a limited time or purpose, such
as for the duration of an operation and for the time necessary to
accomplish the mission. The appropriate major Army command (MACOM) will
assist the Commander USARCS, in obtaining resources and personnel for
the mission.
(ii) In coordination with the Commander USARCS, the MACOM will
designate the area of responsibility for each new command claims
service.
(3) A command claims service may be a separate organization with a
designated commander or chief. If it is part of the command's Office of
the Staff Judge Advocate (SJA), the SJA will also be the chief of the
command claims service, however, the SJA may designate a field grade
officer as chief of the service.
(e) Area claims offices. The following may be designated as area
claims offices (ACOs):
(1) An office under the supervision of the senior judge advocate
(JA) of each command or organization so designated by the Commander
USARCS. The senior JA is the head of the ACO.
(2) An office under supervision of the senior JA of each command in
the area of responsibility of a command claims service so designated by
the chief of that service after coordination with the Commander USARCS.
The senior JA is the head of the ACO.
(3) The office of counsel of each U.S. Army Corps of Engineers (COE)
district within the United States and such other COE commands or
agencies as designated by the Commander USARCS, with concurrence of the
Chief Counsel, Office of the Chief of Engineers, for all claims
generated within such districts, commands or agencies. The district
counsel or the attorney in charge of the command's or agency's legal
office is the head of the ACO.
(f) Claims processing offices. Claims processing offices (CPOs) are
normally small legal offices or ACO subordinate elements, designated by
the Commander USARCS, a command claims service or an ACO. These offices
are established for the investigation of all actual and potential claims
arising within their jurisdiction, on either an area, command or agency
basis. There are four types of claims processing offices (see Sec.
536.10):
(1) Claims processing offices without approval authority.
(2) Claims processing offices with approval authority.
(3) Medical claims processing offices.
(4) Special claims processing offices.
(g) Limitations on delegation of authority under any subpart. (1)
The Commander USARCS, commanders or chiefs of command claims services,
or the heads of ACOs or CPOs with approval authority may delegate, in
writing, all or any portion of their monetary approval authority to
subordinate JAs or claims attorneys in their services or offices.
(2) The authority to act upon appeals or requests for
reconsideration, to deny claims (including disapprovals based on
substantial fraud), to grant waivers of maximum amounts allowable, or to
make final offers will not be delegated except that the Commander USARCS
may delegate this authority to USARCS Division Chiefs.
(3) CPOs will provide copies of all delegations affecting them to
the ACO and, if so directed, to command claims services.
Sec. 536.4 Designation of claims attorneys.
(a) Who may designate. The Commander USARCS, the senior JA of a
command having a command claims service, the chief of a command claims
service, the head of an ACO, or the Chief Counsel of a COE District, may
[[Page 153]]
designate a qualified attorney other than a JA as a claims attorney. The
head of an ACO may designate a claims attorney to act as a CPO with
approval authority.
(b) Eligibility. To qualify as a claims attorney, an individual must
be a civilian employee of the Department of the Army (DA) or DOD, a
member of the bar of a state, the District of Columbia, or a
jurisdiction where U.S. federal law applies, serving in the grade of GS-
11 or above, and performing primary duties as a legal adviser.
Sec. 536.5 The Judge Advocate General.
TJAG has worldwide Army Staff responsibility for administrative
settlement of claims by and against the U.S. government, generated by
employees of the U.S. Army and DOD components other than the Departments
of the Navy and Air Force. Where the Army has single-service
responsibility, TJAG has responsibility for the Army. See DODD 5515.9.
Certain claims responsibilities of TJAG are exercised by The Assistant
Judge Advocate General (TAJAG) as set forth in this part and directed by
TJAG.
Sec. 536.6 The Army claims mission.
(a) Promptly investigate potential claims incidents with a view to
determining the degree of the Army's exposure to liability, the damage
potential, and when the third party is at fault, whether the Army should
take action to collect for medical expenses, lost wages and property
damage.
(b) Efficiently and expeditiously dispose of claims against the U.S.
by fairly settling meritorious claims at the lowest level within the
claims system commensurate with monetary jurisdiction delegated, or by
denying non-meritorious claims.
(c) Develop a system that has a high level of proficiency, so that
litigation and appeals can be avoided or kept to a minimum.
Sec. 536.7 Responsibilities of the Commander USARCS.
The Commander USARCS shall:
(a) Supervise and inspect claims activities worldwide.
(b) Formulate and implement claims policies and uniform standards
for claims office operations.
(c) Investigate, process and settle claims beyond field office
monetary authority and consider appeals and requests for reconsideration
on claims denied by the field offices.
(d) Supervise the investigation, processing, and settlement of
claims against, and in favor of, the United States under the statutes
and regulations listed in Sec. 536.2 and pursuant to other appropriate
statutes, regulations, and authorizations.
(e) Designate ACOs, CPOs, and claims attorneys within DA and DOD
components other than the Departments of the Navy and Air Force, subject
to concurrence of the commander concerned.
(f) Designate continental United States (CONUS) geographic areas of
claims responsibility.
(g) Recommend action to be taken by the SA, TJAG or the U.S.
Attorney General, as appropriate, on claims in excess of $25,000 or the
threshold amount then current under the FTCA, on claims in excess of
$100,000 or the threshold amount then current under the FCA, the MCA,
the NGCA, AMCSA, FCCA and FMRCA and on other claims that have been
appealed. Direct communication with Department of Justice (DOJ) and the
SA's designee is authorized.
(h) Operate the ``receiving State office'' for claims arising in the
United States, its territories, commonwealths and possessions cognizable
under Article VIII of the North Atlantic Treaty Organization (NATO)
Status of Forces Agreement (SOFA), Partnership for Peace (PFP) SOFA,
Article XVI of the Singapore SOFA, and other SOFAs which have reciprocal
claims provisions as delegated by TJAG, as implemented by 10 U.S.C.
2734a and 2734b (subpart G of this part).
(i) Settle claims of the U.S. Postal Service for reimbursement under
39 U.S.C. 411 (see DOD Manual 4525.6-M).
(j) Settle claims against carriers, warehouse firms, insurers, and
other third parties for loss of, or damage to, personal property of DA
or DOD soldiers or civilians incurred while the goods are in storage or
in transit at
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government expense (AR 27-20, chapter 11).
(k) Formulate and recommend legislation for Congressional enactment
of new statutes and the amendment of existing statutes considered
essential for the orderly and expeditious administrative settlement of
noncontractual claims.
(l) Perform post-settlement review of claims.
(m) Prepare, justify, and defend estimates of budgetary requirements
and administer the Army claims budget.
(n) Maintain permanent records of claims for which TJAG is
responsible.
(o) Assist in developing disaster and maneuver claims plans designed
to implement the responsibilities set forth in Sec. 536.9(a)(12).
(p) Develop and maintain plans for a disaster or civil disturbance
in those geographic areas that are not under the jurisdiction of an area
claims authority and in which the Army has single-service responsibility
or in which the Army is likely to be the predominant Armed Force.
(q) Take initial action, as appropriate, on claims arising in
emergency situations.
(r) Provide assistance as available or take appropriate action to
ensure that command claims services and ACOs are carrying out their
responsibilities as set forth in Sec. Sec. 536.8 and 536.9, including
claims assistance visits.
(s) Serve as proponent for the database management systems for
torts, personnel and affirmative claims and provide standard automated
claims data management programs for worldwide use.
(t) Ensure proper training of claims personnel.
(u) Coordinate claims activities with the Air Force, Navy, Marine
Corps, and other DOD agencies to ensure a consistent and efficient joint
service claims program.
(v) Investigate, process and settle, and supervise the field office
investigation and processing of, medical malpractice claims arising in
Army medical centers within the United States; provide medical claims
judge advocates (MCJAs), medical claims attorneys, and medical claims
investigators assigned to such medical centers with technical guidance
and direction on such claims.
(w) Coordinate support with the U.S. Army Medical Command (MEDCOM)
on matters relating to medical malpractice claims.
(x) Issue an accounting classification to all properly designated
claims settlement and approval authorities.
(y) Perform the investigation, processing, and settlement of claims
arising in areas outside command claims service areas of operation.
(z) Maintain continuous worldwide deployment and operational
capability to furnish claims advice to any legal office or command
throughout the world. When authorized by the chain of command or
competent authority, issue such claims advice or services, including
establishing a claims system within a foreign country, interpreting
claims aspects of international agreements, and processing claims
arising from Army involvement in civil disturbances, chemical accidents
under the Chemical Energy Stockpile Program, other man-made or natural
disasters, and other claims designated by competent authority.
(aa) Upon receiving both the appropriate authority's directive or
order and full fiscal authorization, disburse the funds necessary to
administer civilian evacuation, relocation, and similar initial response
efforts in response to a chemical disaster arising at an Army facility.
(bb) Respond to all inquiries from the President, members of
Congress, military officials, and the general public on claims within
USARCS' responsibility.
(cc) Serve as the proponent for this publication and DA Pam 27-162,
both of which set forth guidance on personnel, tort, disaster and
affirmative claims, as well as claims management and administration.
(dd) Provide supervision for the Army's affirmative claims and
carrier recovery programs, as well as other methods for recovering legal
debts.
(ee) Provide support for the overseas environmental claims program
as designated by the DA.
(ff) Execute other claims missions as designated by DOD, DA, TJAG
and other competent authority.
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(gg) Appoint Foreign Claims Commissions outside Command Claims
Services' geographic areas of responsibility.
(hh) Budget for and fund claims investigations and activities; such
as per diem and transportation of claims personnel, claimants and
witnesses; independent medical examinations; appraisals; independent
expert opinions; long distance telephone calls; recording and
photographic equipment; use of express mail or couriers; and other
necessary expenses.
Sec. 536.8 Responsibilities and operations of command claims services.
(a) Chiefs of command claims services. Chiefs of command claims
services shall:
(1) Exercise claims settlement authority as specified in this part,
including appellate authority where so delegated.
(2) Supervise the investigation, processing, and settlement of
claims against, and in favor of the United States under the statutes and
regulations listed in Sec. 536.2, and pursuant to other appropriate
statutes, regulations, and authorizations.
(3) Designate and grant claims settlement authority to ACOs. A grant
of such authority will not be effective until coordinated with the
Commander USARCS, and assigned an office code. However, the chief of a
command claims service may redesignate a CPO that already has an
assigned office code as an ACO without coordination with the Commander
USARCS. The Commander USARCS will be informed of such a designation.
(4) Designate and grant claims approval authority to CPOs. Only CPOs
staffed with a claims judge advocate (CJA) or claims attorney may be
granted approval authority. A grant of such authority will not be
effective until coordinated with the Commander USARCS, and assigned an
office code.
(5) Train claims personnel and monitor their operations and ongoing
claims administration. Conduct a training course annually.
(6) Implement pertinent claims policies.
(7) Prepare and publish command claims directives.
(8) Administer the command claims expenditure allowance, providing
necessary data, estimates, and reports to USARCS on a regular basis.
(9) Perform the responsibilities of an ACO (see Sec. 536.9), as
applicable, ensure that SOFA claims are investigated properly and timely
filed with the receiving State and adequately funded.
(10) Serve as the United States ``sending State office,'' if so
designated, when operating in an area covered by a SOFA.
(11) Supervise and provide technical assistance to subordinate ACOs
within the command claims service's geographic area of responsibility.
(12) Appoint FCCs.
(b) Operations of command claims services. The SJA of the command
shall supervise the command claims service. The command SJA may
designate a field grade JA as the chief of the service. An adequate
number of qualified claims personnel shall be assigned to ensure that
claims are promptly investigated and acted upon. With the concurrence of
the Commander USARCS, a command claims service may designate ACOs within
its area of operations to carry out claims responsibilities within
specified geographic areas subject to agreement by the commander
concerned.
Sec. 536.9 Responsibilities and operations of area claims offices.
(a) Heads of ACOs. Heads of ACOs, including COE offices (see Sec.
536.3(e)(3)) shall:
(1) Ensure that claims and potential claims incidents in their area
of responsibility are promptly investigated in accordance with this
part.
(2) Ensure that each organization or activity (for example, U.S.
Army Reserve (USAR) or Army National Guard of the United States (ARNGUS)
unit, ROTC detachment, recruiting company or station, or DOD agency)
within the area appoints a claims officer to investigate claims
incidents not requiring investigation by a JA (see Sec. 536.23) and
ensure that this officer is adequately trained.
(3) Supervise the investigation, processing, and settlement of
claims against, and in favor of, the United
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States under the statutes and regulations listed in Sec. 536.2 and
pursuant to other appropriate statutes, regulations, and authorizations.
(4) Act as a claims settlement authority on claims that fall within
the appropriate monetary jurisdictions set forth in this part and
forward claims exceeding such jurisdictions to the Commander USARCS, or
to the chief of a command claims service, as appropriate, for action.
(5) Designate CPOs and request that the Commander USARCS, or the
chief of a command claims service, as appropriate, grant claims approval
authority to a CPO for claims that fall within the jurisdiction of that
office.
(6) Supervise the operations of CPOs within their area.
(7) Implement claims policies and guidance furnished by the
Commander USARCS.
(8) Ensure that there are adequate numbers of qualified and
adequately trained CJAs or claims attorneys, RCJAs or attorneys,
recovery claims clerks, claims examiners, claims adjudicators and claims
clerks in all claims offices within their areas to act promptly on
claims.
(9) Budget for and fund claims investigations and activities, such
as: per diem and transportation of claims personnel, claimants and
witnesses; independent medical examinations; appraisals and independent
expert opinions; long distance telephone calls; recording and
photographic equipment; use of express mail or couriers; and other
necessary expenses.
(10) Within the United States and its territories, commonwealths and
possessions, procure and disseminate, within their areas of
jurisdiction, appropriate legal publications on state or territorial law
and precedent relating to tort claims.
(11) Notify the Commander USARCS, of all claims and potentially
compensable events (PCEs) as required by Sec. 536.22(c); notify the
chief of a command claims service of all claims and PCEs.
(12) Develop and maintain written plans for a disaster or civil
disturbance. These plans may be internal SJA office plans or an annex to
an installation or an agency disaster response plan.
(13) Implement the Army's Article 139 claims program. (See subpart I
of this part).
(14) Notify USARCS of possible deployments and ensure adequate FCCs
are appointed by USARCS and are trained.
(b) Operations of area claims offices. (1) The ACO is the principal
office for the investigation and adjudication or settlement of claims,
and shall be staffed with qualified legal personnel under the
supervision of the SJA, command JA, or COE district or command legal
counsel.
(2) In addition to the utilization of unit claims officers required
by Sec. 536.10(a), if indicated, the full-time responsibility for
investigating and processing claims arising within or related to the
activities of a unit or organization located within a section of the
designated area may be delegated to another command, unit, or activity
by establishing a CPO at the command, unit, or activity (see Sec.
536.10(b)(4)). Normally, all CPOs will operate under the supervision of
the ACO in whose area the CPO is located. Where a proposed CPO is not
under the command of the ACO parent organization, this designation may
be achieved by a support agreement or memorandum of understanding
between the affected commands.
(3) Normally, claims that cannot be settled by a COE ACO will be
forwarded directly to the Commander USARCS, with notice of referral to
the Chief Counsel, COE. However, as part of his or her responsibility
for litigating suits that involve civil works and military construction
activities, the Chief Counsel, COE, may require that a COE ACO forward
claims through COE channels, provided that such requirement does not
preclude the Commander USARCS from taking final action within the time
limitations set forth in subparts D and H of this part.
Sec. 536.10 Responsibilities and operations of claims processing offices.
(a) Heads of CPOs. Heads of CPOs will:
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(1) Investigate all potential and actual claims arising within their
assigned jurisdiction, on either an area, command, or agency basis. Only
a CPO that has approval authority may adjudicate and pay presented
claims within its monetary jurisdiction.
(2) Ensure that units and organizations within their jurisdiction
have appointed claims officers for the investigation of claims not
requiring a JA's investigation. (See Sec. 536.22).
(3) Budget for and fund claims investigations and activities;
including, per diem and transportation of claims personnel, claimants
and witnesses; independent medical examinations; appraisals; independent
expert opinions; long distance telephone calls; recording and
photographic equipment; use of express mail or couriers; and other
necessary expenses.
(4) Within CONUS, procure and maintain legal publications on local
law relating to tort claims pertaining to their jurisdiction.
(5) Notify the Commander USARCS of all claims and claims incidents,
as required by Sec. 536.22 and AR 27-20, paragraph 2-12.
(6) Implement the Army's Article 139 claims program (see subpart I
of this part).
(b) Operations of claims processing offices--(1) Claims processing
office with approval authority. A CPO that has been granted approval
authority must provide for the investigation of all potential and actual
claims arising within its assigned jurisdiction, on an area, command, or
agency basis, and for the adjudication and payment of all claims
presented within its monetary jurisdiction. If the estimated value of a
claim, after investigation, exceeds the CPO's payment authority, or if
disapproval is the appropriate action, the claim file will be forwarded
to the ACO unless otherwise specified in this part, or forwarded to
USARCS or the command claims service, if directed by such service.
(2) Claims processing offices without approval authority. A CPO that
has not been granted claims approval authority will provide for the
investigation of all potential and actual claims arising within its
assigned jurisdiction on an area, command, or agency basis. Once the
investigation has been completed, the claim file will be forwarded to
the appropriate ACO for action. Alternatively, an ACO may direct the
transfer of a claim investigation from a CPO without approval authority
to another CPO with approval authority, located within the ACO's
jurisdiction.
(3) Medical claims processing offices. The MCJAs or medical claims
attorneys at Army medical centers, other than Walter Reed Army Medical
Center, may be designated by the SJA or head of the ACO for the
installation on which the center is located as CPOs with approval
authority for medical malpractice claims only. Claims for amounts
exceeding a medical CPO's approval authority will be investigated and
forwarded to the Commander USARCS.
(4) Special claims processing offices--(i) Designation and
authority. The Commander USARCS, the chief of a command claims service,
or the head of an ACO may designate special CPOs within his or her
command for specific, short-term purposes (for example, maneuvers, civil
disturbances and emergencies). These special CPOs may be delegated the
approval authority necessary to effect the purpose of their creation,
but in no case will this delegation exceed the maximum monetary approval
authority set forth in other subparts of this part for regular CPOs. All
claims will be processed under the claims expenditure allowance and
claims command and office code of the authority that established the
office or under a code assigned by USARCS. The existence of any special
CPO must be reported to the Commander USARCS, and the chief of a command
claims service, as appropriate.
(ii) Maneuver damage and claims office jurisdiction. A special CPO
is the proper organization to process and approve maneuver damage
claims, except when a foreign government is responsible for adjudication
pursuant to an international agreement (see subpart G of this part).
Personnel from the maneuvering command should be used to investigate
claims and, at the ACO's discretion, may be assigned to the special CPO.
The ACO will process claims filed after the maneuver terminates. The
special CPO will investigate claims
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arising while units are traveling to or from the maneuver within the
jurisdiction of other ACOs, and forward such claims for action to the
ACO in whose area the claims arose. Claims for damage to real or
personal property arising on private land that the Army has used under a
permit may be paid from funds specifically budgeted by the maneuver for
such purposes in accordance with AR 405-15.
(iii) Disaster claims and civil disturbance. A special CPO provided
for a disaster or civil disturbance should include a claims approving
authority with adequate investigatory, administrative, and logistical
support, including damage assessment and finance and accounting support.
It will not be dispatched prior to notification of the Commander USARCS,
whose concurrence must be obtained before the first claim is paid.
(5) Supervisory requirements. The CPOs discussed in paragraphs
(b)(2) through (b)(4) of this section must be supervised by an assigned
CJA or claims attorney in order to exercise delegated approval
authority.
Sec. 536.11 Chief of Engineers.
The Chief of Engineers, through the Chief Counsel, shall:
(a) Provide general supervision of the claims activities of COE
ACOs.
(b) Ensure that each COE ACO has a claims attorney designated in
accordance with Sec. 536.4.
(c) Ensure that claims personnel are adequately trained, and monitor
their ongoing claims administration.
(d) Implement pertinent claims policies.
(e) Provide for sufficient funding in accordance with existing Army
regulations and command directives for temporary duty (TDY), long
distance telephone calls, recording equipment, cameras, and other
expenses for investigating and processing claims.
(f) Procure and maintain adequate legal publications on local law
relating to claims arising within the United States, its territories,
commonwealths and possessions.
(g) Assist USARCS in evaluation of claims by furnishing qualified
expert and technical advice from COE resources, on a non-reimbursable
basis except for temporary duty (TDY) and specialized lab services
expenses.
Sec. 536.12 Commanding General, U.S. Army Medical Command.
(a) After consulting with the Commander USARCS on the selection of
medical claims attorneys, the Commander of the U.S. Army MEDCOM, the
European Medical Command, or other regional medical command, through his
or her SJA/Center Judge Advocate, shall ensure that an adequate number
of qualified MCJAs or medical claims attorneys and medical claims
investigators are assigned to investigate and process medical
malpractice claims arising at Army medical centers under the Commander's
control. In accordance with an agreement between TJAG and The Surgeon
General, such personnel shall be used primarily to investigate and
process medical malpractice claims and affirmative claims and will be
provided with the necessary funding and research materials to carry out
this function.
(b) Upon request of a claims judge advocate or claims officer, shall
provide a qualified health care provider at a medical treatment facility
(MTF) to examine a claimant for his injuries even if the claimant is not
otherwise entitled to care at an MTF (See AR 40-400, Patient
Administration, paragraph 3-47).
Sec. 536.13 Chief, National Guard Bureau.
The Chief, National Guard Bureau (NGB), shall:
(a) Ensure the designation of a point of contact for claims matters
in each State Adjutant General's office.
(b) Provide the name, address, and telephone number of these points
of contact to the Commander USARCS.
(c) Designate claims officers to investigate claims generated by
ARNG personnel and forward investigations to the Active Army ACO that
has jurisdiction over the area in which the claims incident occurred.
Sec. 536.14 Commanders of major Army commands.
Commanders of MACOMs, through their SJAs, shall:
(a) Assist USARCS in monitoring ACOs and CPOs under their respective
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commands for compliance with the responsibilities assigned in Sec. Sec.
536.9 and 536.10.
(b) Assist claims personnel in obtaining qualified expert and
technical advice from command units and organizations on a
nonreimbursable basis (although the requesting office may be required to
provide TDY funding).
(c) Assist TJAG, through the Commander USARCS, in implementing the
functions set forth in Sec. 536.7.
(d) Coordinate with the ACO within whose jurisdiction a maneuver is
scheduled, to ensure the prompt investigation and settlement of any
claims arising from it.
Sec. 536.15 Claims policies.
(a) General. The following policies will be adhered to in processing
and adjudicating claims falling within this regulation. The Commander
USARCS is authorized to publish new policies or rescind existing
policies from time to time as the need arises.
(1) Notification. The Commander USARCS must be notified as soon as
possible of both potential and actual claims which are serious incidents
that cannot be settled within the monetary jurisdiction of a Command
Claims Service or an ACO, including those which occur in the area of
responsibility of a CPO. On such claims, the USARCS Area Action Officer
(AAO) must coordinate with the field office as to all aspects of the
investigation, evaluation and determination of liability. An offer of
settlement or the assertion of an affirmative claim must be the result
of a discussion between the AAO and the field office. Payment of a
subrogated claim may commit the United States to liability as to larger
claims. On the other hand, where all claims out of an incident can be
paid within field authority they should be paid promptly with maximum
use of small claims procedures.
(2) Consideration under all subparts. Prior to denial, a claim will
be considered under all subparts of this part, regardless of the form on
which the claim is presented. A claim presented as a personnel claim
will be considered as a tort prior to denial. A claim presented as a
tort will first be considered as a personnel claim, and if not payable,
then considered as a tort. If deniable, the claim will be denied both as
a personnel claim and as a tort.
(3) Compromise. DA policy seeks to compromise claims in a manner
that represents a fair and equitable result to both the claimant and the
United States. This policy does not extend to frivolous claims or claims
lacking factual or legal merit. A claim should not be settled solely to
avoid further processing time and expense. All claims, regardless of
amount, should be evaluated. Congress imposed no minimum limit on
payable claims nor did it intend that small non-meritous claims be paid.
Practically any claim, regardless of amount, may be subject to
compromise through direct negotiation. A CJA or claims attorney should
develop expertise in assessing liability and damages, including small
property damage claims. For example, a property damage claim may be
compromised by deducting the cost of collection, i.e., attorney fees and
costs, even where liability is certain.
(4) Expeditious processing at the lowest level. Claims investigation
and adjudication should be accomplished at the lowest possible level,
such as the CPO or ACO that has monetary authority over the estimated
total value of all claims arising from the incident. The expeditious
investigation and settlement of claims is essential to successfully
fulfilling the Army's responsibilities under the claims statutes
implemented by this part.
(5) Notice to claimants of technical errors in claim. When technical
errors are found in a claim's filing or contents, claimants should be
advised of such errors and the need to correct the claim. If the errors
concern a jurisdictional matter, a record should be maintained and the
claimant should be immediately warned that the error must be corrected
before the statute of limitations (SOL) expires.
(b) Cooperative investigative environment. Any person who indicates
a desire to file a claim against the United States cognizable under one
of the subparts of this part will be instructed concerning the procedure
to follow. The claimant will be furnished claim forms and, when
necessary, assisted in completing claim forms, and may be
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assisted in assembling evidence. Claims personnel may not assist any
claimant in determining what amount to claim. During claims
investigation, every effort should be made to create a cooperative
environment that engenders the free exchange of information and
evidence. The goal of obtaining sufficient information to make an
objective and fair analysis should be paramount. Personal contact with
claimants or their representatives is essential both during
investigation and before adjudication. When settlement is not feasible,
issues in dispute should be clearly identified to facilitate resolution
of any reconsideration, appeal or litigation.
(c) Claims directives and plans--(1) Directives. Two copies of
command claims directives will be furnished to the Commander USARCS. ACO
directives will be distributed to all DA and DOD commands, installations
and activities within the ACO's area of responsibility, with an
information copy to the Commander USARCS.
(2) Disaster and civil preparedness plan. One copy of all ACOs'
disaster or civil disturbance plans or annexes will be furnished to the
Commander USARCS.
(d) Interpretations. The Commander USARCS will publish written
interpretations of this part. Interpretations will have the same force
and effect as this part.
(e) Authority to grant exceptions to and deviations from this part.
If, in particular instances, it is considered to be in the best
interests of the government, the Commander USARCS may authorize
deviations from this part's specific requirements, except as to matters
based on statutes, treaties and international agreements, executive
orders, controlling directives of the Attorney General or Comptroller
General, or other publications that have the force and effect of law.
(f) Guidance. The Commander USARCS, may publish bulletins, manuals,
handbooks and notes, and a DA Pamphlet that provides guidance to claims
authorities on administrative and procedural rules implementing this
part. These will be binding on all Army claims personnel.
(g) Communication. All claims personnel are authorized to
communicate directly with USARCS personnel for guidance on matters of
policy or on matters relating to the implementation of this part.
(h) Private relief bills. The issue of a private relief bill is one
between a claimant and his or her Congressional representative. There is
no established procedure under which the DA sponsors private relief
legislation. Claims personnel shall remain neutral in all private relief
matters and shall not make any statement that purports to reflect the
DA's position on a private relief bill.
Sec. 536.16 Release of information policies.
(a) Conflict of interest. Except as part of their official duties,
government personnel are forbidden from advising or representing
claimants or from receiving any payment or gratuity for services
rendered. They may not accept any share or interest in a claim or assist
in its presentation, under penalty of federal criminal law (18 U.S.C.
203 and 205).
(b) Release of information. (1) Relevant statutes pertinent to the
release of information include the Privacy Act of 1974, 5 U.S.C. 552a
and 552b, the Freedom of Information Act (FOIA), 5 U.S.C. 552 and the
Health Insurance Portability and Accountability Act (HIPAA), 42 U.S.C.
1320d through 1320d-8.
(2) It is the policy of USARCS that unclassified attorney work
product may be released with or without a request from the claimant or
attorney, whenever such release may help settle the claim or avoid
unnecessary litigation.
(3) A statutory exemption or privilege may not be waived. Similarly,
documents subject to such statutorily required nondisclosure, exemption,
or privilege may not be released. Regarding other exemptions and
privileges, authorities may waive such exemptions or privileges and
direct release of the protected documents, upon balancing all pertinent
factors, including finding that release of protected records will not
harm the government's interest, will promote settlement of a claim and
will avoid unnecessary litigation, or for other good cause.
[[Page 161]]
(4) All requests for records and information made pursuant to the
FOIA, 5 U.S.C. 552, the Privacy Act of 1974, 5 U.S.C. 552a, or HIPAA, 42
U.S.C. 1320d, will be processed in accordance with the procedures set
forth in AR 25-55 and AR 340-21, respectively as well as 45 CFR Parts
160 and 164, DODD 6025.18-R, this part, and DA Pam 27-162.
(i) Any request for DOD records that either explicitly or implicitly
cites the FOIA shall be processed under the provisions of AR 25-55.
Requests for DOD records submitted by a claimant or claimant's attorney
will be processed under both the FOIA and under the Privacy Act when the
request is made by the subject of the records requested and those
records are maintained in a system of records. Such requests will be
processed under the FOIA time limits and the Privacy Act fee provisions.
Withheld information must be exempt from disclosure under both Acts.
(ii) Requests that cite both Acts or neither Act are processed under
both Acts, using the FOIA time limits and the Privacy Act fee
provisions. For further guidance, see AR 25-55, paragraphs 1-301 and 1-
503.
(5) The following records may not be disclosed:
(i) Medical quality assurance records exempt from disclosure
pursuant to 10 U.S.C. 1102(a).
(ii) Records exempt from disclosure pursuant to appropriate
balancing tests under FOIA exemption (6) (clearly unwarranted invasion
of personal privacy), exemption (7)(c) (reasonably constitutes
unwarranted invasion of privacy), and law enforcement records (5 U.S.C.
Sec. 552(b)) unless requested by the subject of the record.
(iii) Records protected by the Privacy Act.
(iv) Records exempt from disclosure pursuant to FOIA exemption (1)
(National security) (5 U.S.C. 552(b)), unless such records have been
properly declassified.
(v) Records exempt from disclosure pursuant to the attorney-client
privilege under FOIA exemption (5) (5 U.S.C. 552(b)), unless the client
consents to the disclosure.
(6) Records within a category for which withholding of the record is
discretionary (AR 25-55, paragraph 3-101), such as exemptions under the
deliberative process or attorney work product privileges (exemption (5)
(5 U.S.C. 552(b)) may be released when there is no foreseeable harm to
government interests in the judgment of the releasing authority.
(7) When it is determined that exempt information should not be
released, or a question as to its releaseability exists, forward the
request and two copies of the responsive documents to the Commander
USARCS. The Commander USARCS, acting on behalf of TJAG (the initial
denial authority), may deny release of records processed under the FOIA
only. The Commander USARCS, will forward to TJAG all such requests
processed under both the FOIA and PA. TJAG is the denial authority for
Privacy Act requests (AR 340-21, paragraph 1-7i).
(c) Claims assistance. In the vicinity of a field exercise, maneuver
or disaster, claims personnel may disseminate information on the right
to present claims, procedures to be followed, and the names and location
of claims officers and the COE repair teams. When the government of a
foreign country in which U.S. Armed Forces are stationed has assumed
responsibility for the settlement of certain claims against the United
States, officials of that country will be furnished as much pertinent
information and evidence as security considerations permit.
Sec. 536.17 Single-service claims responsibility (DODD 5515.8
and DODD 5515.9).
(a) Assignment for DOD claims. The army is responsible for
processing DOD claims pursuant to DODD 5515.9 (posted on the USARCS Web
site; for the address see Sec. 536.2(a)).
(b) Statutes and agreements. DOD has assigned single-service
responsibility for the settlement of certain claims in certain
countries, pursuant to DODD 5515.8 (posted on the USARCS Web site; for
the address see Sec. 536.2(a)) under the following statutes and
agreements:
(1) FCA (10 U.S.C. 2734);
(2) MCA (10 U.S.C. 2733);
(3) Status of Forces Agreements (10 U.S.C. 2734a and 2734b);
(4) NATO SOFA (4 U.S.T. 1792, Treaties and International Acts Series
[[Page 162]]
(T.I.A.S.) 2846) and other similar agreements;
(5) FCCA (31 U.S.C. 3711-3720E) and FMCRCA (42 U.S.C. 2651-2653);
(6) Claims not cognizable under any other provision of law, 10
U.S.C. 2737; and
(7) Advance payments, 10 U.S.C. 2736.
(c) Specified foreign countries. Responsibility for the settlement
of claims cognizable under the laws listed above has been assigned to
military departments pursuant to DODD 5515.8, as supplemented by
executive agreement and other competent directives.
(d) When claims responsibility has not been assigned. When necessary
to implement contingency plans, the unified or specified commander with
authority over the geographic area in question may, on an interim basis
before receiving confirmation and approval from the General Counsel,
DOD, assign single-service responsibility for processing claims in
countries where such assignment has not already been made.
Note to Sec. 536.17: See also Sec. 536.32 for information on
transferring claims among armed services branches.
Sec. 536.18 Cross-servicing of claims.
(a) Where claims responsibility has not been assigned. Claims
cognizable under the FCA or the MCA that are generated by another
military department within a foreign country for which single-service
claims responsibility has not been assigned, may be settled by the Army
upon request of the military department concerned. Conversely, Army
claims may in appropriate cases be referred to another military
department for settlement, DODD 5515.8, E1.2 (posted on the USARCS Web
site; for the address see Sec. 536.2(a)). Tables listing claims offices
worldwide are posted to the USARCS Web site at that address. U.S. Air
Force claims offices may be identified by visiting the Web site at
http://afmove.hq.af.mil/page_afclaims.asp.
(b) Claims generated by the Coast Guard. Claims resulting from the
activities of, or generated by, soldiers or civilian employees of the
Coast Guard while it is operating as a service of the U.S. Department of
Homeland Security may upon request be settled under this part by a
foreign claims commission appointed as authorized herein, but they will
be paid from Coast Guard appropriations, 10 U.S.C. 2734.
(c) SOFA claims within the United States. Claims cognizable under
the NATO PFP or Singaporean SOFAs arising out of the activities of
aircraft within the United States may be investigated and adjudicated by
the U.S. Air Force under a delegation from the Commander USARCS. Claims
exceeding the delegated amount will be adjudicated by the USARCS.
(d) Claims generated by the American Battle Monuments Commission.
Claims arising out of the activities of or in cemeteries outside the
United States managed by the American Battle Monuments Commission (36
U.S.C. 2110) will be investigated and adjudicated by the U.S. Army.
Note to Sec. 536.18: See also Sec. 536.32 for information on
transferring claims among armed services branches.
Sec. 536.19 Disaster claims planning.
All ACOs will prepare a disaster claims plan and furnish a copy to
USARCS. See DA Pam 27-162, paragraph 1-21 for specific requirements
related to disaster claims planning.
Sec. 536.20 Claims assistance visits.
Members of USARCS and command claims services will make claims
assistance visits to field offices on a periodic basis. See DA Pam 27-
162, paragraph 1-22 for specific requirements related to claims
assistance visits.
Sec. 536.21 Annual claims award.
The Commander USARCS will make an annual claims award to outstanding
field offices. See DA Pam 27-162, para 1-23 for more information on
annual claims awards.
Subpart B_Investigation and Processing of Claims
Sec. 536.22 Claims investigative responsibility--General.
(a) Scope. This subpart addresses the investigation, processing,
evaluation, and settlement of tort and tort-related claims for and
against the United States. The provisions of this subpart do not apply
to personnel claims (AR
[[Page 163]]
27-20, chapter 11), or to claims under subpart G of this part,
Sec. Sec. 536.114 through 536.116.
(b) Cooperation. Claims investigation requires team effort between
the U.S. Army Claims Service (USARCS), command claims services, and area
claims offices (ACOs) including U.S. Army Corps of Engineers (COE)
District Offices, claims processing offices (CPOs), and unit claims
officers. Essential to this effort is the immediate investigation of
claims incidents. Prompt investigation depends on the timely reporting
of claims incidents as well as continuous communication between all
commands or echelons bearing claims responsibility.
(c) Notification to USARCS. A CPO or an ACO receiving notice of a
potentially compensable event (PCE) that requires investigation will
immediately refer it to the appropriate claims office. The Commander
USARCS will be notified of all major incidents involving serious injury
or death or those in which property damage exceeds $50,000. A command
claims service may delegate to an ACO the responsibility for advising
USARCS of serious incidents and complying with mirror file requirements.
A copy of the written delegation and any changes made thereafter will be
forwarded to the Commander USARCS.
(d) Geographic concept of responsibility. A command claims service
or an ACO in whose geographic area a claims incident occurs is primarily
responsible for initiating investigation and processing of any claim
filed in the absence of a formal transfer of responsibility (see
Sec. Sec. 536.30 through 536.36). DOD and Army organizations whose
personnel are involved in the incident will cooperate with and assist
the ACO, regardless of where the former may be located.
Note to Sec. 536.22: See the parallel discussion at DA Pam 27-162,
paragraph 2-1.
Sec. 536.23 Identifying claims incidents both for and against
the government.
(a) Investigation is required when:
(1) There is property loss or damage.
(i) Property other than that belonging to the government is damaged,
lost, or destroyed by an act or omission of a government employee or a
member of North Atlantic Treaty Association (NATO), Australian or
Singaporean forces stationed or on temporary duty within the United
States.
(ii) Property belonging to the government is damaged or lost by a
tortious act or omission not covered by the report of survey system or
by a carrier's bill of lading.
(2) There is personal injury or death.
(i) A civilian other than an employee of the U.S. government is
injured or killed by an act or omission of a government employee or by a
member of a NATO, Australian or Singaporean force stationed or on
temporary duty within the United States. (This category includes
patients injured during treatment by a health care provider).
(ii) Service members, active or retired, family members of either,
or U.S. employees, are injured or killed by a third party and receive
medical care at government expense.
(3) A claim is filed.
(4) A competent authority or another armed service or federal agency
requires investigation.
(b) Determining who is a government employee is a matter of federal,
not local, law. Categories of government employees usually accepted as
tortfeasors under federal law are:
(1) Military personnel (soldiers of the Army, or members of other
services where the Army exercises single-service jurisdiction on foreign
soil; and soldiers or employees within the United States who are members
of NATO or of other foreign military forces with whom the United States
has a reciprocal claims agreement and whose sending States have
certified that they were acting within the scope of their duty) who are
serving on full-time active duty in a pay status, including soldiers:
(i) Assigned to units performing active or inactive duty.
(ii) Serving on active duty as Reserve Officer Training Corps (ROTC)
instructors.
(iii) Serving as Army National Guard (ARNG) instructors or advisors.
(iv) On duty or training with other federal agencies, for example:
the National Aeronautics and Space Administration, the Department of
State, the Navy, the Air Force, or DOD (federal
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agencies other than the armed service to which the Soldier is attached
may also provide a remedy).
(v) Assigned as students or ordered into training at a non-federal
civilian educational institution, hospital, factory, or other facility
(excluding soldiers on excess leave or those for whom the training
institution or organization has assumed liability by written agreement).
(vi) Serving on full-time duty at nonappropriated fund (NAF)
activities.
(vii) Of the United States Army Reserve (USAR) and ARNG on active
duty under Title 10, U.S.C.
(2) Military personnel who are United States Army Reserve soldiers
including ROTC cadets who are Army Reserve soldiers while at annual
training, during periods of active duty and inactive duty training.
(3) Military personnel who are soldiers of the ARNG while engaged in
training or duty under 32 U.S.C. 316, 502, 503, 504, 505, or engaged in
properly authorized community action projects under the Federal Tort
Claims Act (FTCA), the Non-Scope Claims Act (NSCA), or the National
Guard Claims Act (NGCA), unless performing duties in furtherance of a
mission for a state, commonwealth, territory or possession.
(4) Civilian officials and employees of both the DOD and DA (there
is no practical significance to the distinction between the terms
``official'' and ``employee''), including but not limited to the
following:
(i) Civil service and other full-time employees of both the DOD and
DA who are paid from appropriated funds.
(ii) Persons providing direct health care services pursuant to
personal service contracts under 10 U.S.C. 1089 or 1091 or where another
person exercised control over the health care provider's day-to-day
practice. When the conduct of a health care provider performing services
under a personal service contract is implicated in a claim, the CJA,
Medical Claims Judge Advocate (MCJA), or claims attorney should consult
with USARCS to determine if that health care provider can be considered
an employee for purposes of coverage.
(iii) Employees of a NAF instrumentality (NAFI) if it is an
instrumentality of the United States and thus a federal agency. To
determine whether a NAFI is a ``federal agency,'' consider both whether
it is an integral part of the Army charged with an essential DA
operational function and also what degree of control and supervision DA
personnel exercise over it. Members or users, unlike employees of NAFIs,
are not considered government employees; the same is true of family
child care providers. However, claims arising out of the use of some
NAFI property or from the acts or omissions of family child care
providers may be payable from such funds under subpart K of this part as
a matter of policy, even when the user is not acting within the scope of
employment and the claim is not otherwise cognizable under any of the
other authorities described in this part.
(5) Prisoners of war and interned enemy aliens.
(6) Civilian employees of the District of Columbia ARNG, including
those paid under ``service contracts'' from District of Columbia funds.
(7) Civilians serving as ROTC instructors paid from federal funds.
(8) ARNG technicians employed under 32 U.S.C. 709(a) for claims
accruing on or after January 1, 1969 (Public Law 90-486, August 13, 1968
(82 Stat. 755)), unless performing duties solely in pursuit of a mission
for a state, commonwealth, territory or possession.
(9) Persons acting in an official capacity for the DOD or DA either
temporarily or permanently with or without compensation, including but
not limited to the following:
(i) Dollar-a-year personnel.
(ii) Members of advisory committees, commissions, or boards.
(iii) Volunteers serving in an official capacity in furtherance of
the business of the United States, limited to those categories set forth
in DA Pam 27-162, paragraph 2-45.
Note to Sec. 536.23: See the parallel discussion at DA Pam 27-162,
paragraph 2-2.
Sec. 536.24 Delegation of investigative responsibility.
(a) Area Claims Office. An ACO is authorized to carry out its
investigative responsibility as follows:
[[Page 165]]
(1) At the request of the area claims authority, commanders and
heads of Army and DOD units, activities, or components will appoint a
commissioned, warrant, or noncommissioned officer or a qualified
civilian employee to investigate a claims incident in the manner set
forth in DA Pam 27-162 and this part. An ACO will direct such
investigation to the extent deemed necessary.
(2) CPOs are responsible for investigating claims incidents arising
out of the activities and operations of their command or agency. An ACO
may assign area jurisdiction to a CPO after coordination with the
appropriate commander to investigate claims incidents arising in the
ACO's designated geographic area. (See Sec. 536.3(f).)
(3) Claims incidents involving patients arising from treatment by a
health care provider in an Army medical treatment facility (MTF),
including providers defined in 536.23(b)(4)(ii), will be investigated by
a claims judge advocate (CJA), medical claims judge advocate (MCJA), or
claims attorney rather than by a unit claims officer.
(4) An ACO will publish and distribute a claims directive to all DOD
and Army installations and activities including active, Army Reserve,
and ARNG units as well as units located on the post at which the ACO is
located. The directive will outline each installations' and activities'
claims responsibilities. It will institute a serious claims incident
reporting system.
(b) Command claims service responsibility. A command claims service
is responsible for the investigation and processing of claims incidents
arising in its geographic area of responsibility or for any incidents
within the authority of any foreign claims commission (FCC) it appoints.
This responsibility will be carried out by an ACO or a CPO to the extent
possible. A command claims service will publish a claims directive
outlining the geographic areas of claims investigative responsibilities
of each of its installations and activities, requiring each ACO or CPO
to report all serious claims incidents directly to the Commander USARCS.
(c) USARCS responsibility. USARCS exercises technical supervision
over all claims offices, providing guidance on specific cases throughout
the claims process, including the method of investigation. Where
indicated, USARCS may investigate a claims incident that normally falls
within a command claims services', an ACO's, or a CPO's jurisdiction.
USARCS typically acts through an area action officer (AAO) who is
assigned as the primary point of contact with command claims services,
ACOs or CPOs within a given geographic area. In areas outside the United
States and its commonwealths, territories and possessions, where there
is no command claims service or ACO, USARCS is responsible for
investigation and for appointment of FCCs.
Note to Sec. 536.24: See the parallel discussion at DA Pam 27-162,
paragraph 2-3.
Sec. 536.25 Procedures for accepting claims.
All ACOs and CPOs will institute procedures to ensure that potential
claimants or attorneys speak to a CJA, claims attorney, investigator, or
examiner. On initial contact, claims personnel will render assistance,
discuss all aspects of the potential claim, and determine what statutes
or procedures apply. Assistance will be furnished to the extent set
forth in DA Pam 27-162, paragraph 2-4. To advise claimants on the
correct remedy, claims personnel will familiarize themselves with the
remedies listed in DA Pam 27-162, paragraphs 2-15 and 2-17.
Sec. 536.26 Identification of a proper claim.
(a) A claim is a writing that contains a sum certain for each
claimant and that is signed by each claimant, or by an authorized
representative, who must furnish written authority to sign on a
claimant's behalf. The writing must contain enough information to permit
investigation. The writing must be received not later than two years
from the date the claim accrues. A claim under the Foreign Claims Act
(FCA) may be presented orally to either the United States or the
government of the foreign country in which the incident occurred, within
two years, provided that it is reduced to writing not later than three
years from the date of accrual. A claim may be transmitted by facsimile
or telegram.
[[Page 166]]
However, a copy of an original claim must be submitted as soon as
possible.
(b) Where a claim is only for property damage and it is filed under
circumstances where there might be injuries, the CJA should inquire if
the claimant desires to split the claim as discussed in Sec. 536.60.
(c) Normally, a claim will be presented on a Standard Form (SF) 95
(Claim for Damage, Injury, or Death). When the claim is not presented on
an SF 95, the claimant will be requested to complete an SF 95 to ease
investigation and processing.
(d) If a claim names two claimants and states only one sum certain,
the claimants will be requested to furnish a sum certain for each. A
separate sum certain must be obtained prior to payment under the Federal
Tort Claims Act (FTCA), Military Claims Act (MCA), National Guard Claims
Act (NGCA) or the FCA. The Financial Management Service will only pay an
amount above the threshold amount of $2,500 for the FTCA, or $100,000
for the other statutes.
(e) A properly filed claim meeting the definition of ``claim'' in
paragraph (a) of this section tolls the two-year statute of limitations
(SOL) even though the documents required to substantiate the claim are
not present, such as those listed on the back of an SF 95 or in the
Attorney General's regulations implementing the FTCA, 28 CFR 14.1--
14.11. However, refusal to provide such documents may lead to dismissal
of a subsequent suit under the FTCA or denial of a claim under other
subparts of this part.
(f) Receipt of a claim by another federal agency does not toll the
SOL. Receipt of a U.S. Army claim by DOD, Navy, or Air Force does toll
the SOL.
(g) The guidelines set forth in federal FTCA case law will apply to
other subparts of this part in determining whether a proper claim was
filed.
Note to Sec. 536.26: See the parallel discussion at DA Pam 27-162,
paragraph 2-5.
Sec. 536.27 Identification of a proper claimant.
The following are proper claimants:
(a) Claims for property loss or damage. A claim may be presented by
the owner of the property or by a duly authorized agent or legal
representative in the owner's name. As used in this part, the term
``owner'' includes the following:
(1) For real property. The mortgagor, mortgagee, executor,
administrator, or personal representative, if he or she may maintain a
cause of action in the local courts involving a tort to the specific
property, is a proper claimant. When notice of divided interests in real
property is received, the claim should if feasible be treated as a
single claim and a release from all interests must be obtained. This
includes both the owner and tenant where both claim.
(2) For personal property. A claim may be presented by a bailee,
lessee, mortgagee, conditional vendor, or others holding title for
purposes of security only, unless specifically prohibited by the
applicable subpart. When notice of divided interests in personal
property is received, the claim should if feasible be treated as a
single claim; a release from all interests must be obtained. Property
loss is defined as loss of actual tangible property, not consequential
damage resulting from such loss.
(b) Claims for personal injury or wrongful death--(1) For personal
injury. A claim may be presented by the injured person or by a duly
authorized agent or legal representative or, where the claimant is a
minor, by a parent or a person in loco parentis. However, determine
whether the claimant is a proper claimant under applicable state law or,
if considered under the MCA, under Sec. 536.77. If not, the claimant
should be so informed in the acknowledgment letter and requested to
withdraw the claim. If not withdrawn, deny the claim without delay. An
example is a claim filed on behalf of a minor for loss of consortium for
injury to a parent where not permitted by state law. Personal injury
claims deriving from the principal injury may be presented by other
parties. A claim may not be presented by a ``volunteer,'' meaning one
who has no legal or contractual obligation, yet voluntarily pays damages
on behalf of an injured party and then seeks reimbursement for their
economic damages by filing a claim. See paragraph (f) (3) of this
section.
(2) For wrongful death. A claim may be presented by the executor or
administrator of the deceased's estate, or by
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any person determined to be legally or beneficially entitled under
applicable local law. The amount allowed will be apportioned, to the
extent practicable, among the beneficiaries in accordance with the law
applicable to the incident. Under the MCA (subpart C of this part), only
one wrongful death claim is authorized (see Sec. 536.77(c)(1)(i)).
Under subparts D and H of this part, a claim by the insured for property
damage may be considered as a claim by the insurer as the real party in
interest provided the insured has been reimbursed by the insurer and the
insurance information is listed on the SF 95. The insurer should be
required to file a separate SF 95 for payment purposes even though the
SOL has expired. Where the insurance information is not listed on the SF
95 and the insured is paid by the United States, the payment of the
insurer is the responsibility of the insured even though the insurer
subsequently files a timely claim. To avoid this situation, always
inquire as to the status of any insurance prior to payment of a property
damage claim.
(c) By an agent or legal representative. A claimant's agent or legal
representative who presents a claim will do so in the claimant's name
and sign the form in such a way that indicates the agent's or legal
representative's title or capacity. When a claim is presented by an
agent or legal representative:
(1) It must contain written evidence of the agent's or legal
representative's authority to sign, such as a power of attorney, or
(2) It must refer to or cite the statute granting authority.
(d) Subrogation. A claim may be presented by the subrogee in his or
her own name if authorized by the law of the place where the incident
giving rise to the claim occurred, under subpart D or H of this part
only. A lienholder is not a proper claimant and should be distinguished
from a subrogee to avoid violation of the Antiassignment Act. See
paragraph (f) of this section. However, liens arising under Medicare
will be processed directly with the Center for Medicare and Medicaid
Systems. See DA Pam 27-162, paragraphs 2-57g and h and 2-58.
(e) Contribution or indemnity. A claim may be filed for contribution
or indemnification by the party who was held liable as a joint
tortfeasor where authorized by state law. Such a claim is not perfected
until payment has been made by the claimant/joint tortfeasor. A claim
filed for contribution prior to payment being made should be considered
as an opportunity to share a settlement where the United States is
liable.
(f) Transfer or assignment. (1) Under the Antiassignment Act (31
U.S.C. 3727) and Defense Finance and Accounting Service--Indianpolis
(DFAS-IN) regulation 37-1, a transfer or assignment is null and void
except where it occurs by operation of law or after a voucher for the
payment has been issued. The following are null and void:
(i) Every purported transfer or assignment of a claim against the
United States, or any interest, in whole or in part, on a claim, whether
absolute or conditional; and
(ii) Every power of attorney or other purported authority to receive
payment for all or part of any such claim.
(2) The Antiassignment Act was enacted to eliminate multiple payment
of claims, to cause the United States to deal only with original parties
and to prevent persons of influence from purchasing claims against the
United States.
(3) In general, this statute prohibits voluntary assignments of
claims, with the exception of transfers or assignments made by operation
of law. The operation of law exception has been held to apply to claims
passing to assignees because of bankruptcy proceedings, assignments for
the benefit of creditors, corporate liquidations, consolidations, or
reorganizations, and where title passes by operation of law to heirs or
legatees. Subrogated claims that arise under a statute are not barred by
the Antiassignment Act. For example, subrogated workers' compensation
claims are cognizable when presented by the insurer under subpart D or H
of this part, but not other subparts.
(4) Subrogated claims that arise pursuant to contractual provisions
may be paid to the subrogee, if the legal basis for the subrogated claim
is recognized by state statute or case law, only under
[[Page 168]]
subpart D or H of this part. For example, an insurer that issues an
insurance policy becomes subrogated to the rights of a claimant who
receives payment of a property damage claim. Generally, such subrogated
claims are authorized by state law and are therefore not barred by the
Antiassignment Act.
(5) Before claims are paid, it is necessary to determine whether
there may be a valid subrogated claim under a federal or state statute
or a subrogation contract held valid by state law.
(g) Interdepartmental waiver rule. Neither the U.S. government nor
any of its instrumentalities are proper claimants due to the
interdepartmental waiver rule. This rule bars claims by any organization
or activity of the Army, whether or not the organization or activity is
funded with appropriated or nonappropriated funds. Certain federal
agencies are authorized by statute to file claims, for example, Medicare
and the Railroad Retirement Commission. See DA Pam 27-162, paragraph 2-
17f.
(h) States are excluded. If a state, U.S. commonwealth, territory,
or the District of Columbia maintains a unit to which ARNG personnel
causing the injury or damage are assigned, such governmental entity is
not a proper claimant for loss or damage to its property. A unit of
local government other than a state, commonwealth, or territory is a
proper claimant.
Note to Sec. 536.27: See the parallel discussion at DA Pam 27-162,
paragraph 2-6.
Sec. 536.28 Claims acknowledgment.
Claims personnel will acknowledge all claims immediately upon
receipt, in writing, by telephone, or in person. A defective claim will
be acknowledged in writing, pointing out its defects. Where the defects
render the submission jurisdictionally deficient based on the
requirements discussed in DA Pam 27-162, paragraphs 2-5 and 2-6, the
claimant or attorney will be informed in writing of the need to present
a proper claim no later than two years from the date of accrual. Suit
must be filed in maritime claims not later than two years from the date
of accrual. See Sec. 536.122. In any claim for personal injury or
wrongful death, an authorization signed by the patient, natural or legal
guardian or estate representative will be obtained authorizing the use
of medical information, including medical records, in order to use
sources other than claims personnel to evaluate the claim as required by
the Health Care Portability and Accountability Act (HIPAA), 42 U.S.C.
1320d-1320d-8. See the parallel discussion at DA Pam 27-162, paragraph
2-7.
Sec. 536.29 Revision of filed claims.
(a) General. A revision or change of a previously filed claim may
constitute an amendment or a new claim. Upon receipt, the CJA must
determine whether a new claim has been filed. If so, the claim must be
logged with a new number and acknowledged in accordance with Sec.
536.27.
(b) New claim. A new claim is filed whenever the writing alleges a
new theory of liability, a new tortfeasor, a new party claimant, a
different date or location for the claims incident, or other basic
element that constitutes an allegation of a different tort not
originally alleged. If the allegation is made verbally or by e-mail, the
claimant will be informed in writing that a new SF 95 must be filed. A
new claim must be filed not later than two years from the accrual date
under the FTCA. Filing a new claim creates an additional six month
period during which suit may not be filed.
(c) Amendment. An increase or decrease in the amount claimed
constitutes an amendment, not a new claim. Similarly, the addition of
required information not on the original claim constitutes an amendment.
Examples are date of birth, marital status, military status, names of
witnesses, claimant's address, description, or location of property or
insurance information. An amendment may be filed before or after the two
year SOL has run unless final action has been taken. A new number will
not be assigned to an amended claim; however, a change in the amount
will be annotated in the database.
Note to Sec. 536.29: See the parallel discussion at DA Pam 27-162,
paragraph 2-8.
Sec. 536.30 Action upon receipt of claim.
(a) A properly filed claim stops the running of the SOL when it is
received by any organization or activity of the
[[Page 169]]
DOD or the U.S. Armed Services. Placing a claim in the mail does not
constitute filing. The first Army claims office that receives the claim
will date, time stamp, and initial the claim as of the date the claim
was initially received ``on post,'' not by the claims office. If
initially received close to the SOL's expiration date by an organization
or activity that does not have a claims office, claims personnel will
discover and record in the file the date of original receipt.
(b) The ACO or CPO that first receives the claim will enter the
claim into the Tort and Special Claims Application (TSCA) database and
let the system assign a number to the claim. The claim, whether on an SF
95 or in any other format, shall be scanned into a computer and uploaded
onto the TSCA database so that it will become a permanent part of the
electronic record. A joint claim will be given a number for each
claimant, for example, husband and wife, injured parent and children. If
only one sum is filed for all claimants, the same sum will be assigned
for each claimant. However, request the claimant to name a sum for each
claimant. The claim will bear this number throughout the claims process.
Upon transfer, a new number will not be assigned by the receiving
office. If a claim does not meet the definition of a proper claim under
Sec. Sec. 536.26 and 536.27, it will be date stamped and logged as a
Potentially Compensable Event (PCE).
(c) The claim will be transferred if the claim incident arose in
another ACO's geographic area; the receiving ACO will use the claims
number originally assigned.
(d) Non-Appropriated Fund Instrumentality (NAFI) claims that relate
to claims determined cognizable under subpart K of this part will be
marked with the symbol ``NAFI'' immediately following the claimant's
name, to preclude erroneous payment from appropriated funds (APF). This
symbol will also be included in the subject line of all correspondence.
(e) Upon receipt, copies of the claims will be furnished as follows
(when a current e-mail address is available and it is agreeable with the
receiving party, providing copies by e-mail is acceptable):
(1) To USARCS, if the amount claimed exceeds $25,000, or $50,000 per
incident. However, if the claim arises under the FTCA or AMCSA, only
furnish copies if the amount claimed exceeds $50,000, or $100,000 per
incident.
(2) For medical malpractice claims, to the appropriate MTF
Commander/s through MEDCOM Headquarters, and to the Armed Forces
Institute of Pathology at the addresses listed below.
MEDCOM, ATTN: MCHO-CL-Q, 2050 Worth Road, Suite 26, Fort Sam
Houston, TX 78234-5026.
Department of Legal Medicine, Armed Forces Institute of Pathology,
1335 E. West Highway, 6-100, Silver Spring, MD 20910-6254, Commercial:
301-295-8115, e-mail: [email protected].
(3) If the claim is against AAFES forward a copy to: HQ Army and Air
Force Exchange Service (AAFES), ATTN: Office of the General Counsel (GC-
Z), P.O. Box 650062, Dallas, TX 75265-0062, e-mail: [email protected].
(4) If the claim involves a NAFI, including a recreational user or
family child care provider forward a copy to: Army Central Insurance
Fund, ATTN: CFSC-FM-I, 4700 King Street, Alexandria, VA 22302-4406, e-
mail: [email protected].
(f) ACOs or CPOs will furnish a copy of any medical or dental
malpractice claim to the MTF or dental treatment facility commander and
advise the commander of all subsequent actions. The commander will be
assisted in his or her responsibility to complete DD Form 2526 (Case
Abstract for Malpractice Claims).
Note to Sec. 536.30: See the parallel discussion at DA Pam 27-162,
paragraph 2-9.
Sec. 536.31 Opening claim files.
A claim file will be opened when:
(a) Information that requires investigation under Sec. 536.23 is
received.
(b) Records or other documents are requested by a potential claimant
or legal representative.
(c) A claim is filed.
Note to Sec. 536.31: See the parallel discussion at DA Pam 27-162,
paragraph 2-10.
Sec. 536.32 Transfer of claims among armed services branches.
(a) Claims filed with the wrong federal agency, or claims that
should be
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adjudicated by receiving State offices under NATO or other SOFA, will be
immediately transferred to the proper agency together with notice of
same to the claimant or legal representative. Where multiple federal
agencies are involved, other agencies will be contacted and a lead
agency established to take all actions on the claim. Where the DA is the
lead agency, any final action will include other agencies. Similarly,
where another agency is the lead agency, that agency will be requested
to include DA in any final action. Such inclusion will prevent multiple
dates for filing suit or appeal.
(b) If another agency has taken denial action on a claim that
involves the DA, without informing the DA, and in which the DA desires
to make a payment, the denial action may be reconsidered by the DA not
later than six months from the date of mailing and payment made
thereafter.
Note to Sec. 536.32: See also Sec. Sec. 536.17 and 536.18; AR 27-
20, paragraph 13-2; and the parallel and related discussion of this
topic at DA Pam 27-162, paragraphs 1-19, 1-20, 2-13 and 13-2.
Sec. 536.33 Use of small claims procedures.
Small claims procedures are authorized for use whenever a claim may
be settled for $5,000 or less. These procedures are designed to save
processing time and eliminate the need for most of the documentation
otherwise required. These procedures are described in DA Pam 27-162,
paragraphs 2-14 and 2-26.
Sec. 536.34 Determination of correct statute.
(a) Consideration under more than one statute. When Congress enacted
the various claims statutes, it intended to allow federal agencies to
settle meritorious claims. A claim must be considered under other
statutes in this part unless one particular statute precludes the use of
other statutes, whether the claim is filed on DD Form 1842 (Claim for
Loss of or Damage to Personal Property Incident to Service) or SF 95.
Prior to denial of an AR 27-20, chapter 11 claim, consider whether it
may fall within the scope of subparts C, D, or F of this part, and where
indicated, question the claimant to determine whether the claim sounds
in tort.
(b) Exclusiveness of certain remedies. Certain remedies exclude all
others. For example, the Court of Federal Claims has exclusive
jurisdiction over U.S. Constitution Fifth Amendment takings, express or
implied-in-fact, as well as governmental contract losses, or intangible
property losses. Claims of this nature for $10,000 or less may be filed
in a U.S. District Court. There is no administrative remedy. While the
FTCA is the preemptive tort remedy in the United States, its
commonwealths, territories and possessions, nevertheless, other remedies
must be exhausted prior to favorable consideration under the FTCA. The
FTCA does not preclude use of the MCA or the NGCA for claims arising out
of noncombat activities or brought by soldiers for incident-to-service
property losses sustained within the United States. See DA Pam 27-162,
paragraphs 2-15a and b for a more detailed discussion of determining the
correct statute for property claims versus personal injury and death
claims. In addition, it is important to consider the nature of the
claim, e.g., whether the claim may be medical malpractice in nature,
related to postal matter, or an automobile accident. Discussions of
these and many other different types of claims are also provided herein
as well as in the corresponding paragraph 2-15 of DA Pam 27-162. It is
also very important to consider when a claim may fall outside the
jurisdiction of the Army claims system. Some of these instances are
alluded to immediately above, but for a detailed discussion of related
remedies see Sec. 536.36 of this part and paragraph 2-17 of DA Pam 27-
162.
(c) Status of Forces Agreement claims. (1) Claims arising out of the
performance of official duties in a foreign country where the United
States is the sending State must be filed and processed under a SOFA,
provided that the claimant is a proper party claimant under the SOFA. DA
Pam 27-162, paragraph 2-15c sets forth the rules applicable in
particular countries. A SOFA provides an exclusive remedy subject to
waiver as set forth in Sec. 536.76(h) of this part.
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(2) Single-service jurisdiction is established for all foreign
countries in which a SOFA is in effect and for certain other countries.
A list of these countries is posted on the USARCS Web site; for the
address see Sec. 536.2(a). Claims will be processed by the service
exercising single-service responsibility. In the United States, USARCS
is the receiving State office and all SOFA claims should be forwarded
immediately to USARCS for action. Appropriate investigation under
subpart B of this part procedures is required of an ACO or a CPO under
USARCS' direction.
(d) Foreign Claims Act claims. (1) Claims by foreign inhabitants,
arising in a foreign country, which are not cognizable under a SOFA,
fall exclusively under the FCA. The determination as to whether a
claimant is a foreign inhabitant is governed by the rules set out in
subpart C and subpart J of this part. In case of doubt, this
determination must be based on information obtained from the claimant
and others, particularly where the claimant is a former U.S. service
member or a U.S. citizen residing in a foreign country.
(2) Tort claims will be processed by the armed service that
exercises single-service responsibility. When requested, the Commander
USARCS may furnish a Judge Advocate or civilian attorney to serve as a
Foreign Claims Commission (FCC) for another service. With the
concurrence of the Commander USARCS, Army JAs may be appointed as
members of another department's foreign claims commissions. See subpart
J of this part. The FCA permits compensation for damages caused by
``out-of-scope'' tortious conduct of Soldier and civilian employees.
Many of these claims are also compensable under Article 139, Uniform
Code of Military Justice. See DA Pam 27-162, chap. 9. To avoid the
double payment of claims, ACOs and CPOs must promptly notify the Command
Claims Service of each approved Article 139 claim involving a claimant
who could also file under an applicable SOFA.
(e) National Guard Claims Act claims. (1) Claims attributed to the
acts or omissions of ARNG personnel in the course of employment fall
into the categories set forth in subpart F of this part.
(2) An ACO will establish with a state claims office routine
procedures for the disposition of claims, designed to ensure that the
United States and state authorities do not issue conflicting
instructions for processing claims. The procedures will require
personnel to advise the claimant of any remedy against the state or its
insurer.
(i) Where the claim arises out of the act or omission of a member of
the ARNG or a person employed under 32 U.S.C. 709, it must be determined
whether the employee is acting on behalf of the state or the United
States. For example, an ARNG pilot employed under section 709 may be
flying on a state mission, federal mission, or both, on the same trip.
This determination will control the disposition of the claim. If
agreement with the concerned state cannot be reached and the claim is
otherwise payable, efforts may be made to enter into a sharing agreement
with the state concerned. The following procedures are required in the
event there is a remedy against the state and the state refuses to pay
or the state maintains insurance coverage and the claimant has filed an
administrative claim against the United States. First, forward the file
and the tort claim memorandum, including information on the status of
any judicial or administrative action the claimant has taken against the
state or its insurer to the Commander USARCS. Upon receipt, the
Commander USARCS will determine whether to require the claimant to
exhaust his or her remedy against the state or its insurer or whether
the claim against the United States can be settled without requiring
such exhaustion. If the Commander USARCS decides to follow the latter
course of action, he or she will also determine whether to obtain an
assignment of the claim against the state or its insurer and whether to
initiate recovery action to obtain contribution or indemnification. The
state or its insurer will be given appropriate notification in
accordance with state law.
(ii) If an administrative claim remedy exists under state law or the
state maintains liability insurance, the Commander USARCS or an ACO
acting
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upon the Commander USARCS' approval may enter into a sharing agreement
covering payment of future claims. The purpose of such an agreement is
to determine in advance whether the state or the DA is responsible for
processing a claim (did the claim arise from a federal or state
mission?), to expedite payment in meritorious claims, and to preclude
double recovery by a claimant.
(f) Third-party claims involving an independent contractor--(1)
Generally. (i) Upon receipt, all claims will be examined to determine
whether a contractor of the United States is the tortfeasor. If so, the
claimant or legal representative will be notified of the name and
address of the contractor and further advised that the United States is
not responsible for the acts or omissions of an independent contractor.
This will be done prior to any determination as to the contractor's
degree of culpability as compared to that of the United States.
(ii) If, upon investigation, the damage is considered to be
primarily due to the contractor's fault or negligence, the claim will be
referred to the contractor or the contractor's insurance carrier for
settlement and the claimant will be so advised.
(iii) Health care providers hired under personal services contracts
under the provisions of 10 U.S.C. 1089 are not considered to be
independent contractors but employees of the United States for tort
claims purposes.
(2) Claims for injury or death of contractor employees. Upon receipt
of a claim for injury or death of a contractor employee, a copy of the
portions of the contract applicable to claims and workers' compensation
will be obtained, either through the contracting office or from the
contractor. Claims personnel must find out the status of any claim for
workers' compensation benefits as well as whether the United States paid
the premiums. The goal is to involve the contractor in any settlement,
where indicated, in the manner set forth in DA Pam 27-162, paragraphs 2-
15f and 2-61. In claims arising in foreign countries consider whether
the claim is covered by the Defense Bases Act, 42 U.S.C. 1651-1654.
(g) Claims by contractors for damage to or loss of their property
during the performance of their contracts. Claims by contractors for
property damage or loss should be referred to the contracting officer
for determination as to whether the claim is payable under the contract.
Such a claim is not payable under the FTCA where the damage results from
an in-scope act or omission. Contract appeal procedures must be
exhausted prior to consideration as a bailment under the MCA or FCA.
(h) Maritime claims. Maritime torts are excluded from consideration
under the FTCA. The various maritime statutes are exclusive remedies
within the United States and its territorial waters. Maritime statutes
include the Army Maritime Claims Settlement Act (AMCSA), 10 U.S.C. 4801,
4802 and 4806, the Suits in Admiralty Act (SIAA), 46 U.S.C. app. 781-
790, the Public Vessels Act (PVA), 46 U.S.C. app. 781-790, and the
Admiralty Extension Act (AEA), 46 U.S.C. app. 740. Within the U.S. and
its territorial waters, maritime suits may be filed under the SIAA or
the PVA without first filing an administrative claim, except where
administrative filing is required by the AEA. Administrative claims may
also be filed under the AMSCA. In any administrative claim brought under
the AMCSA, all action must be completed not later than two years from
its accrual date or the SOL will expire. Outside the United States, a
maritime tort may be brought under the MCA or FCA as well as the AMCSA.
The body of water on which it occurs must be navigable and a maritime
nexus must exist. Once a maritime claim is identified, give the claimant
written notice of the two-year filing requirement. In case of doubt, the
ACO or CPO should discuss the matter with the appropriate AAO. Even when
the claimant does not believe that a maritime claim is involved, provide
the claimant with precautionary notice. See DA Pam 27-162, paragraphs 2-
7e and 8-6.
(i) Postal claims. See also DA Pam 27-162, paragraphs 2-15i, 2-30
and 2-56g discussing postal claims.
(1) Claims by the U.S. Postal Service for funds and stock are
adjudicated by USARCS with assistance from the Military Postal Service
Agency and the
[[Page 173]]
ACO or CPO having jurisdiction over the particular Army post office,
when directed by USARCS to assist in the investigation of the claim.
(2) Claims for loss of registered and insured mail are processed
under subpart C of this part by the ACO or CPO having jurisdiction over
the particular Army post office.
(3) Claims for loss of, or damage to, parcels delivered by United
Parcel Service (UPS) are the responsibility of UPS.
(j) Blast damage claims. After completing an investigation and prior
to final action, all blast damage claims resulting from Army firing and
demolition activities must be forwarded to the Commander USARCS for
technical review. The sole exception to this rule is when a similar
claim is filed citing the same time, place and type of damage as one
which has already received technical review. See also DA Pam 27-162,
paragraph 2-28.
(k) Motor vehicle damage claims arising from the use of non-
governmental vehicles. See also Sec. 536.60 (splitting property damage
and personal injury claims) and DA Pam 27-162, paragraphs 2-15k
(determining the correct statute), 2-61 (joint tort feasors), and 2-62e
(indemnity or contribution).
(1) Government tortfeasors. A Soldier or U.S. government civilian
employee who negligently damages his or her personal property while
acting within the scope of employment is not a proper claimant for
damage to that property.
(2) Claims by lessors for damage to rental vehicles. Third-party
claims arising from the use of rental vehicles will be processed in the
same manner as NAFI commercially insured activities after exhaustion of
any other remedy under the Government Travel Card Program or the Surface
Deployment and Distribution Command Car Rental Agreement.
(3) Third-party damages arising from the use of privately owned
vehicles. Third-party tort claims arising within the United States from
a Soldier's use of a privately owned vehicle (POV) while allegedly
within the scope of employment must be forwarded to the Commander USARCS
for review and consultation before final action. The claim will be
investigated and any authorization for use ascertained including payment
for mileage. A copy of the Soldier's POV insurance policy will be
obtained prior to forwarding. If the DA is an additional insurer under
applicable state law, the claim will be forwarded to the Soldier's
liability carrier for payment. When the tort claim arises in a foreign
country, follow the provisions of subpart J of this part.
(l) Claims arising from gratuitous use of DOD or Army vehicles,
equipment or facilities. (1) Before the commencement of any event that
involves the use of DOD or Army land, vehicles, equipment or Army
personnel for community activities, the Command involved should be
advised to first determine and weigh the risk to potential third-party
claimants against the benefits to the DOD or the Army. Where such risk
is excessive, try to obtain an agreement from the sponsoring civilian
organization holding the Army harmless. When feasible, third-party
liability insurance may be required from the sponsor and the United
States added to the policy as a third-party insured.
(2) When Army equipment and personnel are used for debris removal
relief pursuant to the Federal Disaster Relief Act, 42 U.S.C. 5173, the
state is required to assume responsibility for third-party claims. The
senior judge advocate for a task force engaged in such relief should
obtain an agreement requiring the state to hold the Army harmless and
establish a procedure for payment by the state. Claims will be received,
entered into the TSCA database, investigated and forwarded to state
authorities for action.
(m) Real estate claims. Claims for rent, damage, or other payments
involving the acquisition, use, possession or disposition of real
property or interests therein, are generally payable under AR 405-15.
These claims are handled by the Real Estate Claims Office in the
appropriate COE District or a special office created for a deployment.
Directorate of Real Estate, Office of the Chief of Engineers, has
supervisory authority. Claims for damage to real property and incidental
personal property, but not for rent (for example, claims arising during
a maneuver or
[[Page 174]]
deployment) may be payable under subparts C or J of this part. However,
priority should be given to the use of AR 405-15 as it is more flexible
and expeditious. In contingency operations and deployments, there is a
large potential for overlap between contractual property damage claims
and noncombat activity/maneuver claims. Investigate carefully to ensure
the claim is in the proper channel (claims or real estate), that it is
fairly settled, and that the claimant does not receive a double payment.
For additional guidance, see subpart J of this part and United States
Army Claims Service Europe (USACSEUR) Real Estate/Office of the Judge
Advocate Standard Operating Procedures for Processing Claims Involving
Real Estate During Contingency Operations (August 20, 2002).
(n) Claims generated by civil works projects. Civil works projects
claims arising from tortious activities are defined by whether the
negligent or wrongful act or omission arising from a project or activity
is funded by a civil works appropriation. Civil works claims are those
noncontractual claims which arise from a negligent or wrongful act or
omission during the performance of a project or activity funded by civil
works appropriations as distinguished from a project or activity funded
by Army operation and maintenance funds. Civil works claims are paid out
of civil works appropriations to the extent set forth in Sec.
536.71(f). A civil works claim can also arise out of a noncombat
activity, for example, an inverse condemnation claim in which flooding
exceeds the high water mark. Maritime claims under subpart H of this
part are civil works claims when they arise out of the operation of a
dam, locks or navigational aid.
Note to Sec. 536.34: See parallel discussion at DA Pam 27-162,
paragraph 2-1.
Sec. 536.35 Unique issues related to environmental claims.
Claims for property damage, personal injury, or death arising in the
United States based on contamination by toxic substances found in the
air or the ground must be reported by USARCS to the Environmental Law
Division of the Army Litigation Center and the Environmental Torts
Branch of DOJ. Such claims arising overseas must be reported to the
Command Claims Service with geographical jurisdiction over the claim and
USARCS. Claims for personal injury from contamination frequently arise
at an area that is the subject of claims for cleanup of the
contamination site. The cleanup claims involve other Army agencies, use
of separate funds, and prolonged investigation. Administrative
settlement is not usually feasible because settlement of property damage
claims must cover all damages, including personal injury. Payment by
Defense Environmental Rehabilitation Funds should be considered
initially and any such payment should be deducted from any settlement
under AR 27-20.
Sec. 536.36 Related remedies.
An ACO or a CPO routinely receives claims or inquiries about claims
that clearly are not cognizable under this part. It is the DA's policy
that every effort be made to discover another remedy and inform the
inquirer as to its nature. Claims personnel will familiarize themselves
with the remedies set forth in DA Pam 27-162, paragraph 2-17, to carry
out this policy. If no appropriate remedy can be discovered, forward the
file to the Commander USARCS, with recommendations.
Sec. 536.37 Importance of the claims investigation.
Prompt and thorough investigation will be conducted on all potential
and actual claims for and against the government. Evidence developed
during an investigation provides the basis for every subsequent step in
the administrative settlement of a claim or in the pursuit of a lawsuit.
Claims personnel must gather and record adverse as well as favorable
information. The CJA, claims attorney or unit claims officer must
preserve their legal and factual findings.
Sec. 536.38 Elements of the investigation.
(a) The investigation is conducted to ascertain the facts of an
incident. Which facts are relevant often depends on the law and
regulations applicable to the conduct of the parties involved but
generally the investigation should develop definitive answers to such
[[Page 175]]
questions as ``When?'' ``Where?'' ``Who?'' ``What?'' and ``How?''.
Typically, the time, place, persons, and circumstances involved in an
incident may be established by a simple report, but its cause and the
resulting damage may require extensive effort to obtain all the
pertinent facts.
(b) The object of the investigation is to gather, with the least
possible delay, the best available evidence without accumulating
excessive evidence concerning any particular fact. The claimant is often
an excellent source of such information and should be contacted early in
the investigation, particularly when there is a question as to whether
the claim was timely filed.
Sec. 536.39 Use of experts, consultants and appraisers.
(a) ACOs or CPOs will budget operation and maintenance (O&M) funds
for the costs of hiring property appraisers, accident
reconstructionists, expert consultants to furnish opinions, and medical
specialists to conduct independent medical examinations (IMEs). Other
expenses to be provided for from O&M funds include the purchase of
documents, such as medical records, and the hiring of mediators. See
Sec. 536.53(b). Where the cost exceeds $750 or local funds are
exhausted, a request for funding should be directed to the Commander
USARCS, with appropriate justification. The USARCS AAO must be notified
as soon as possible when an accident reconstruction is indicated.
(b) Where the claim arises from treatment at an Army MTF, the MEDDAC
commander should be requested to fund the cost of an independent
consultant's opinion or an IME.
(c) The use of outside consultants and appraisers should be limited
to claims in which liability or damages cannot be determined otherwise
and in which the use of such sources is economically feasible, for
instance, where property damage is high in amount and not determinable
by a government appraiser or where the extent of personal injury is
serious and a government IME is neither available nor acceptable to a
claimant. Prior to such an examination at an MTF, ensure that the
necessary specialists are available and a prompt written report may be
obtained.
(d) Either an IME or an expert opinion is procured by means of a
personal services contract under the Federal Acquisition Regulation
(FAR), part 37, 48 CFR 37.000 et seq., through the local contracting
office. The contract must be in effect prior to commencement of the
records review. Payment is authorized only upon receipt of a written
report responsive to the questions asked by the CJA or claims attorney.
(e) Whenever a source other than claims personnel is used to assist
in the evaluation of a claim in which medical information protected by
HIPAA is involved, the source must sign an agreement designed to protect
the patient's privacy rights.
Sec. 536.40 Conducting the investigation.
(a) The methods and techniques for investigating specific categories
of claims are set forth in DA Pam 27-162, paragraphs 2-25 through 2-34.
The investigation of medical malpractice claims should be conducted by a
CJA or claims attorney, using a medical claims investigator.
(b) A properly filed claim must contain enough information to permit
investigation. For example, if the claim does not specify the date,
location or details of every incident complained of, the claimant or
legal representative should be required to furnish the information.
(c) Request the claimant or legal representative to specify a theory
of liability. However, the investigation should not be limited to the
theories specified, particularly where the claimant is unrepresented.
All logical theories should be investigated.
Sec. 536.41 Determination of liability--generally.
(a) Under the FTCA, the United States is liable in the same manner
and to the same extent as a private individual under like circumstances
in accordance with the law of the place where the act or omission giving
rise to the tort occurred (28 U.S.C. 2673 and 2674). This means that
liability must rest on the existence of a tort cognizable under state
law, hereinafter referred to as a state tort. A finding of
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state tort liability requires the litigating attorney to prove the
elements of duty, breach of duty, causation, and damages as interpreted
by federal case law.
(b) The foregoing principles and requirements will be followed in
regard to tort claims against the United States under other subparts,
with certain exceptions noted within the individual subparts or
particular tort statutes.
(c) Interpretation will be made in accordance with FTCA case law and
also maritime case law where applicable. Additionally, a noncombat
activity can furnish the basis for a claim under subparts C, F, and J of
this part. Noncombat activities include claims arising out of civil
works, such as inverse condemnation.
(d) Federal, not state or local, law applies to a determination as
to who is a federal employee or a member of the armed forces. Under all
subparts, the designation ``federal employee'' excludes a contractor of
the United States. See 28 U.S.C. 2671. See however, Sec.
536.23(b)(4)(ii) concerning personal services contractors. For
employment identification purposes apply FTCA case law in making a
determination.
(e) Federal, not state or local, law applies to an interpretation of
the SOL under all subparts. Minority or incompetence does not toll the
SOL. Case law developed under the FTCA will be used in other subparts in
interpreting SOL questions.
(f) Under the FTCA state or local law is used to determine scope of
employment and under other subparts for guidance.
Sec. 536.42 Constitutional torts.
A claim for violation of the U.S. Constitution does not constitute a
state tort and is not cognizable under any subpart. A constitutional
claim will be scrutinized in order to determine whether it is totally or
partially payable as a state tort. For example, a Fifth Amendment taking
may be payable in an altered form as a real estate claim. For further
discussion see DA Pam 27-162, paragraph 2-36.
Sec. 536.43 Incident to service.
(a) A member of the armed forces' claim for personal injury or
wrongful death arising incident to service is not payable under any
subpart except to the extent permitted by the receiving State under
Sec. Sec. 536.114 through 536.116 (Claims arising overseas); however, a
claim by a member of the United States Armed Forces for property loss or
damage may be payable under AR 27-20, chapter 11 or, if not, under
subparts C, E, F, or G of this part. Derivative claims and claims for
indemnity are also excluded.
(b) Claims for personal injury or wrongful death by members of a
foreign military force participating in a joint military exercise or
operation arising incident to service are not payable under any subpart.
Claims for property loss or damage, but not subrogated claims, may be
payable under subpart C of this part. Derivative claims and claims for
indemnity or contribution are not payable under any subpart.
Note to Sec. 536.43: For further discussion see DA Pam 27-162,
paragraph 2-37.
Sec. 536.44 FECA and LSHWCA claims exclusions.
A federal or NAFI employee's personal injury or wrongful death claim
payable under the Federal Employees Compensation Act (FECA) or the
Longshore and Harbor Workers Compensation Act (LSHWCA) is not payable
under any subpart. Derivative claims are also excluded but a claim for
indemnity may be payable under certain circumstances. A federal or NAFI
employee's claim for an incident-to-service property loss or damage may
be payable under AR 27-20, chapter 11 or, if not, under subparts C, D,
F, G, H or J of this part. For further discussion see DA Pam 27-162,
paragraph 2-38.
Sec. 536.45 Statutory exceptions.
This topic is more fully discussed in DA Pam 27-162, paragraph 2-39.
The exclusions listed below are found at 28 U.S.C. 2680 and apply to
subparts C, D, F, and H and Sec. Sec. 536.107 through 536.113 (Claims
arising in the United States) of subpart G, except as noted therein, and
not to subparts E, J or Sec. Sec. 536.107
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through 536.113 (Claims arising overseas) of subpart G of this part. A
claim is not payable if it:
(a) Is based upon an act or omission of an employee of the U.S.
government, exercising due care, in the execution of a statute or
regulation, whether or not such statute or regulation is valid. This
exclusion does not apply to a noncombat activity claim.
(b) Is based upon the exercise or performance or the failure to
exercise or perform a discretionary function or duty on the part of a
federal agency or an employee of the government, whether or not the
discretion is abused. This exclusion does not apply to a noncombat
activity claim.
(c) Arises out of the loss, miscarriage, or negligent transmission
of letters or postal matters. This exclusion is not applicable to
registered or certified mail claims under subpart C of this part. See
Sec. 536.34(i).
(d) Arises in respect of the assessment or collection of any tax or
customs duty, or the detention of any goods or merchandise by any
customs or other law enforcement officer. See 28 U.S.C. 2680(c).
(e) Is cognizable under the SIAA (46 U.S.C. app. 741-752), the PVA
(46 U.S.C. app. 781-790), or the AEA (46 U.S.C. app. 740). This
exclusion does not apply to subparts C, F, H or J of this part.
(f) Arises out of an act or omission of any federal employee in
administering the provisions of the Trading with the Enemy Act, 50
U.S.C. app. 1-44.
(g) Is for damage caused by the imposition or establishment of a
quarantine by the United States.
(h) Arises out of assault, battery, false imprisonment, false
arrest, malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with contract rights, except
for acts or omissions of investigation of law enforcement officers of
the U.S. government with regard to assault, battery, false imprisonment,
false arrest, abuse of process or malicious prosecution. This exclusion
also does not apply to a health care provider as defined in 10 U.S.C.
1089 and Sec. 536.80 of this part, under the conditions listed therein.
(i) Arises from the fiscal operations of the U.S. Department of the
Treasury or from the regulation of the monetary system.
(j) Arises out of the combatant activities of U.S. military or naval
forces, or the Coast Guard during time of war.
(k) Arises in a foreign country. This exclusion does not apply to
subparts C, E, F, H, J or Sec. Sec. 536.114 through 536.116 (Claims
arising overseas) of subpart G of this part.
(l) Arises from the activities of the Tennessee Valley Authority, 28
U.S.C. 2680(l).
(m) Arises from the activities of the Panama Canal Commission, 28
U.S.C. 2680(m).
(n) Arises from the activities of a federal land bank, a federal
intermediate credit bank, or a bank for cooperatives, 28 U.S.C. 2680(n).
Note to Sec. 536.45: This topic is more fully discussed in DA Pam
27-162, paragraph 2-39.
Sec. 536.46 Other exclusions.
(a) Statutory employer. A claim is not payable under any subpart if
it is for personal injury or death of any contract employee for whom
benefits are provided under any workers' compensation law, if the
provisions of the workers' compensation insurance are retrospective and
charge an allowable expense to a cost-type contract, or if precluded by
state law. See Federal Tort Claims Handbook (FTCH), section II, D7
(posted on the Web at https://www.jagcnet.army.mil/laawsxxi/cds.nsf.
Select the link ``Claims'' under ``JAG Publications.'') The statutory
employer exclusion also applies to claims that may be covered by the
Defense Bases Act, 42 U.S.C. 1651-1654.
(b) Flood exclusion. Within the United States a claim is not payable
if it arises from damage caused by flood or flood waters associated with
the construction or operation of a COE flood control project, 33 U.S.C.
702(c). See DA Pam 27-162, paragraph 2-40.
(c) ARNG property. A claim is not payable under any subpart if it is
for damage to, or loss of, property of a state, commonwealth, territory,
or the District of Columbia caused by ARNG personnel, engaged in
training or duty under 32 U.S.C. 316, 502, 503, 504, or 505, who are
assigned to a unit maintained
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by that state, commonwealth, territory, or the District of Columbia. See
DA Pam 27-162, paragraph 2-41.
(d) Federal Disaster Relief Act. Within the United States a claim is
not payable if it is for damage to, or loss of, property or for personal
injury or death arising out of debris removal by a federal agency or
employee in carrying out the provisions of the Federal Disaster Relief
Act, 42 U.S.C. 5173. See DA Pam 27-162, paragraph 2-42.
(e) Non-justiciability doctrine. A claim is not payable under any
subpart if it arises from activities that present a non-justiciable
political question. See DA Pam 27-162, paragraph 2-43.
(f) National Vaccine Act. (42 U.S.C. 300aa-1 through 300aa-7). A
claim is not payable under any subpart if it arises from the
administration of a vaccine unless the conditions listed in the National
Vaccine Injury Compensation Program (42 U.S.C. 300aa-9 through 300aa-19)
have been met. See DA Pam 27-162, paragraph 2-17c(6)(a).
(g) Defense Mapping Agency. A claim is not payable under any subpart
if it arises from inaccurate charting by the Defense Mapping Agency, 10
U.S.C. 456. See FTCH section II, B4s (Web address at paragraph (a) of
this section).
(h) Quiet Title Act. Within the U.S., a claim is not payable if it
falls under the Quiet Title Act 28 U.S.C. 2409a.
(i) Defense Bases Act. A claim arising outside the United States is
not payable if it is covered by the Defense Bases Act, 42 U.S.C. 1651-
1654.
Note to Sec. 536.46: See parallel discussion at DA Pam 27-162,
paragraphs 2-40 through 2-43.
Sec. 536.47 Statute of limitations.
To be payable, a claim against the United States under any subpart,
except Sec. Sec. 536.114 through 536.116 (Claims arising overseas),
must be filed no later than two years from the date of accrual as
determined by federal law. The accrual date is the date on which the
claimant is aware of the injury and its cause. The claimant is not
required to know of the negligent or wrongful nature of the act or
omission giving rise to the claim. The date of filing is the date of
receipt by the appropriate federal agency, not the date of mailing. See
also Sec. 536.26(a) and parallel discussion at DA Pam 27-162, paragraph
2-44.
Sec. 536.48 Federal employee requirement.
To be payable, a claim under any subpart except subpart K of this
part, Sec. Sec. 536.153 through 536.157 (Claims involving tortfeasors
other than nonappropriated fund employees), must be based on the acts or
omissions of a member of the armed forces, a member of a foreign
military force within the United States with which the United States has
a reciprocal claims agreement, or a federal civilian employee. This does
not include a contractor of the United States. Apply federal case law
for interpretation. See parallel discussion at DA Pam 27-162, paragraph
2-46.
Sec. 536.49 Scope of employment requirement.
To be payable, a claim must be based on acts or omissions of a
member of the armed forces, a member of a foreign military force within
the United States with which the United States has a reciprocal claims
agreement, or a federal employee acting within the scope of employment,
except for subparts E, J, or subpart K of this part, Sec. Sec. 536.153
through 536.157 (Claims involving tortfeasors other than nonappropriated
fund employees). A claim arising from noncombat activities must be based
on the armed service's official activities. Excluded are claims based on
vicarious liability or the holder theory in which the owner of the
vehicle is responsible for any injury or damage regardless of who the
operator was. See parallel discussion at DA Pam 27-162, paragraph 2-46.
Sec. 536.50 Determination of damages--applicable law.
(a) The Federal Tort Claims Act. The whole law of the place where
the incident giving rise to the claim occurred, including choice of law
rules, is applicable. Therefore, the law of the place of injury or death
does not necessarily apply. Where there is a conflict between local law
and an express provision of the FTCA, the latter governs.
(b) The Military Claims Act or National Guard Claims Act. See
subparts C and F of this part. The law set forth in Sec. 536.80 applies
only to claims accruing on or after September 1, 1995. The law of the
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place of the incident giving rise to the claim will apply to claims
arising in the United States, its commonwealths, territories and
possessions prior to September 1, 1995. The general principles of U.S.
tort law will apply to property damage or loss claims arising outside
the United States prior to September 1, 1995. Established principles of
general maritime law will apply to injury or death claims arising
outside the United States prior to September 1, 1995. See Moragne v.
States Marine Lines, Inc., 398 U.S. 375 (1970) and federal case law.
Where general maritime law provides no guidance, the general principles
of U.S. tort law will apply.
(c) The Foreign Claims Act. See subpart J of this part. The law of
the place of occurrence applies to the resolution of claims. However,
the law of damages set forth in Sec. 536.139 will serve as a guide.
(d) The Army Maritime Claims Settlement Act. Maritime law applies.
(e) Damages not payable. Under all subparts, property loss or damage
refers to actual tangible property. Accordingly, consequential damages,
including, but not limited to bail, interest (prejudgment or otherwise),
or court costs are not payable. Costs of preparing, filing, and pursuing
a claim, including expert witness fees, are not payable. The payment of
punitive damages, that is, damages in addition to general and special
damages that are otherwise payable, is prohibited. See DA Pam 27-162,
paragraphs 2-56 and 3-4b.
(f) Source of attorney's fees. Attorney's fees are taken from the
settlement amount and not added thereto. They may not exceed 20 percent
of the settlement amount under any subpart.
Note to Sec. 536.50: For further discussion see DA Pam 27-162,
paragraph 2-51.
Sec. 536.51 Collateral source rule.
Where permitted by applicable state or maritime law, damages
recovered from collateral sources are payable under subparts D and H,
but not under subparts C, E, F, or J of this part. For further
discussion see DA Pam 27-162, paragraph 2-57.
Sec. 536.52 Subrogation.
Subrogation is the substitution of one person in place of another
with regard to a claim, demand or right. It should not be confused with
a lien, which is an obligation of the claimant. Applicable state law
should be researched to determine the distinction between subrogation
and a lien. Subrogation claims are payable under subparts D and H, but
not under subparts C, E, F or J of this part. For further discussion see
DA Pam 27-162, paragraph 2-58.
Sec. 536.53 Evaluation of claims--general rules and guidelines.
(a) Before claims personnel evaluate a claim:
(1) A claimant or claimant's legal representative will be furnished
the opportunity to substantiate the claim by providing essential
documentary evidence according to the claim's nature including, but not
instead of, the following: Medical records and reports, witness
statements, itemized bills and paid receipts, estimates, federal tax
returns, W-2 forms or similar proof of loss of earnings, photographs,
and reports of appraisals or investigation. If necessary, request
permission, through the legal representative, to interview the claimant,
the claimant's family, proposed witnesses and treating health care
providers (HCPs). In a professional negligence claim, the claimant will
submit an expert opinion when requested. State law concerning the
requirement for an affidavit of merit should be cited.
(2) When the claimant or the legal representative fails to respond
in a timely manner to informal demands for documentary evidence,
interviews, or an independent medical examination (IME), make a written
request. Such written request provides notice to the claimant that
failure to provide substantiating evidence will result in an evaluation
of the claim based only on information currently in the file. When,
despite the government's request, there is insufficient information in
the file to permit evaluation, the claim will be denied for failure to
document it. Failure to submit to an IME or sign an authorization to use
medical information protected by HIPAA, for
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review or evaluation by a source other than claims personnel, are both
grounds for denial for failure to document, provided such evaluation is
essential to the determination of liability or damages. State a time
limit, for example, 30 or 60 days, to furnish the substantiation or
expert opinion required in a medical malpractice claim.
(3) If, in exchange for complying with the government's request for
the foregoing information, the claimant or the legal representative
requests similar information from the file, the claimant may be provided
such information and documentation as is releasable under the Federal
Rules of Civil Procedure (FRCP). Additionally, work product may be
released if such release will help settle the claim. See Sec. 536.18.
(b) An evaluation should be viewed from the claimant's perspective.
In other words, before denying a claim, first determine whether there is
any reasonable basis for compromise. Certain jurisdictional issues and
statutory bases may not be open for compromise. The incident to service
and FECA exclusions are rarely subject to compromise, whereas the SOL is
more subject to compromise. Factual and legal disputes are
compromisable, frequently providing a basis for limiting damages, not
necessarily grounds for denial. Where a precise issue of dispute is
identified and is otherwise unresolvable, mediation by a disinterested
qualified person, such as a federal judge, or foreign equivalent for
claims arising under the FCA, should be obtained upon agreement with the
claimant or the claimant's legal representative. Contributory negligence
has given way to comparative negligence in most United States
jurisdictions. In most foreign countries, comparative negligence is the
rule of law.
Note to Sec. 536.53: For further discussion see DA Pam 27-162,
paragraph 2-59.
Sec. 536.54 Joint tortfeasors.
When joint tortfeasors are liable, it is DA policy to pay only the
fair share of a claim attributable to the fault of the United States
rather than pay the claim in full and then bring suit against the joint
tortfeasor for contribution. If payment from a joint tortfeasor is not
forthcoming after the CJA's demand, the United States should settle for
its fair share, provided the claimant is willing to hold the United
States harmless. Where a joint tortfeasor's liability greatly outweighs
that of the United States, the claim should be referred to the joint
tortfeasor for action.
Sec. 536.55 Structured settlements.
(a) The use of future periodic payments, including reversionary
medical trusts, is encouraged to ensure that the injured party is
adequately compensated and able to meet future needs.
(1) It is necessary to ensure adequate care and compensation for a
minor or other incompetent claimant or unemployed survivor over a period
of years.
(2) A medical trust is necessary to ensure the long-term
availability of funds for anticipated future medical care, the cost of
which is difficult to predict.
(3) The injured party's life expectancy cannot be reasonably
determined or is likely to be shortened.
(b) Under subpart D of this part, structured settlements cannot be
required but are encouraged in situations listed above or where state
law permits them. In the case of a minor, every effort should be made to
insure that the minor, and not the parents, receives the benefit of the
settlement. Annuity payments at the age of majority should be
considered. If rejected, a blocked bank account may be used.
(c) It is the policy of the Department of Justice never to discuss
the tax-free nature of a structured settlement.
Note to Sec. 536.55: For further discussion, see DA Pam 27-162,
paragraph 2-63.
Sec. 536.56 Negotiations--purpose and extent.
It is DA policy to settle meritorious claims promptly and fairly
through direct negotiation at the lowest possible level. The Army's
negotiator should not admit liability as such is not necessary. However,
the settlement should reflect diminished value where contributory
negligence or other value-diminishing factors exist. The negotiator
should be thoroughly familiar with all aspects of the case, including
the claimant's background, the key witnesses, the anticipated testimony
and
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the appearance of the scene. There is no substitute for the claims
negotiator's personal study of, and participation in, the case before
settlement negotiations begin. If settlement is not possible due to the
divergence in the offers, refine the issues as much as possible in order
to expedite any subsequent suit. Mediation should be used if the
divergence is due to an issue of law affecting either liability or
damages. For further discussion see DA Pam 27-162, paragraph 2-64.
Sec. 536.57 Who should negotiate.
An AAO or, when delegated additional authority, an ACO or a CPO, has
authority to settle claims in an amount exceeding the monetary authority
delegated by regulation. It is DA policy to delegate USARCS authority,
on a case-by-case basis, to an ACO or a CPO possessing the appropriate
ability and experience. Only an attorney should negotiate with a
claimant's attorney. Negotiations with unrepresented claimants may be
conducted by a non-attorney, under the supervision of an attorney. For
further discussion see DA Pam 27-162, paragraph 2-65.
Sec. 536.58 Settlement negotiations with unrepresented claimants.
All aspects of the applicable law and procedure, except the amount
to be claimed, should be explained to both potential and actual
claimants. The negotiator will ensure that the claimant is aware of
whether the negotiator is an attorney or a non-attorney, and that the
negotiator represents the United States. As to claims within USARCS'
monetary authority, the chronology and details of negotiations should be
memorialized with a written record furnished to the claimant. The
claimant should understand that it is not necessary to hire an attorney,
but when an attorney is needed, the negotiator should recommend hiring
one. In a claim where liability is not an issue, the claimant should be
informed that if an attorney is retained, the claimant should attempt to
negotiate an hourly fee for determination of damages only. For further
discussion see DA Pam 27-162, paragraph 2-68.
Sec. 536.59 Settlement or approval authority.
``Settlement authority'' is a statutory term (10 U.S.C. 2735)
meaning that officer authorized to approve, deny or compromise a claim,
or make final action. ``Approval authority'' means the officer empowered
to settle, pay or compromise a claim in full or in part, provided the
claimant agrees. ``Final action authority'' means the officer empowered
to deny or make a final offer on a claim. Determining the proper officer
empowered to approve or make final action on a claim depends on the
claims statute involved and any limitations that apply under that
statute. DA Pam 27-162, paragraph 2-69, outlines how various authority
is delegated among offices.
Sec. 536.60 Splitting property damage and personal injury claims.
Normally, a claim will include all damages that accrue by reason of
the incident. Where a claimant has a claim for property damage and
personal injury arising from the same incident, the property damage
claim may be paid, under certain circumstances, prior to the filing of
the personal injury claim. The personal injury claim may be filed later
provided it is filed within the applicable statute of limitations. When
both property damage and personal injury arise from the same incident,
the property damage claim may be paid to either the claimant or, under
subparts D or H of this part, the insurer and the same claimant may
receive a subsequent payment for personal injury. Only under subparts D
or H of this part may the insurer receive subsequent payment for
subrogated medical bills and lost earnings when the personal injury
claim is settled. The primary purpose of settling an injured claimant's
property damage claim before settling the personal injury claim is to
pay the claimant for vehicle damage expeditiously and avoid costs
associated with delay such as loss of use, loss of business, or storage
charges. The Commander USARCS' approval must be obtained whenever the
estimated value of any one claim exceeds $25,000, or the value of all
claims, actual or potential, arising from the incident exceeds $50,000;
however, if the
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claim arises under the FTCA or AMCSA, only if the amount claimed exceeds
$50,000, or $100,000 per incident.
Sec. 536.61 Advance payments.
(a) This section implements 10 U.S.C. 2736 (Act of September 8, 1961
(75 Stat. 488)) as amended by Public Law 90-521 (82 Stat. 874); Public
Law 98-564 (90 Stat. 2919); and Public Law 100-465 (102 Stat. 2005)). No
new liability is created by 10 U.S.C. 2736, which merely permits partial
advance payments, only under subparts C, F or J of this part, on claims
not yet filed. See AR 27-20, paragraph 11-18 for information on
emergency partial payments in personnel claims, which are not governed
by 10 U.S.C. 2736.
(b) The Judge Advocate General (TJAG) and the Assistant Judge
Advocate General (TAJAG) may make advance payments in amounts not
exceeding $100,000; the Commander USARCS, in amounts not exceeding
$25,000, and the authorities designated in Sec. Sec. 536.786(4) and (5)
and 536.101, in amounts not exceeding $10,000, subject to advance
coordination with USARCS, if the estimated total value of the claim
exceeds their monetary authority. Requests for advance payments in
excess of $10,000 will be forwarded to USARCS for processing.
(c) Under subpart J of this part, three-member foreign claims
commissions may make advance payments under the FCA in amounts not
exceeding $10,000, subject to advance coordination with USARCS if the
estimated total value of the claim exceeds their monetary authority.
(d) An advance payment, not exceeding $100,000, is authorized in the
limited category of claims or potential claims considered meritorious
under subparts C, F or J of this part, that result in immediate
hardship. An advance payment is authorized only under the following
circumstances:
(1) The claim, or potential claim, must be determined to be
cognizable and meritorious under the provisions of subparts C, F or J of
this part.
(2) An immediate need for food, clothing, shelter, medical or burial
expenses, or other necessities exists.
(3) The payee, so far as can be determined, would be a proper
claimant, including an incapacitated claimant's spouse or next-of-kin.
(4) The total damage sustained must exceed the amount of the advance
payment.
(5) A properly executed advance payment acceptance agreement has
been obtained. This acceptance agreement must state that it does not
constitute an admission of liability by the United States and that the
amount paid shall be deducted from any subsequent award.
(e) There is no statutory authority for making advance payments for
claims payable under subparts D or H of this part.
Note to Sec. 536.61: For further discussion see DA Pam 27-162,
paragraph 2-71.
Sec. 536.62 Action memorandums.
(a) When required. (1) All claims will be acted on prior to being
closed except for those that are transferred. For claims on which suit
is filed before final action, see Sec. 536.66. A settlement authority
may deny or pay in full or in part any claim in a stated amount within
his or her delegated authority. An approval authority may pay in full or
in part, but may not deny, a claim in a stated amount within his or her
delegated authority. If any one claim arising out of the same incident
exceeds a settlement or approval authority's monetary jurisdiction, all
claims from that incident will be forwarded to the authority having
jurisdiction.
(2) In any claim which must be supported by an expert opinion as to
duty, negligence, causation or damages, an expert opinion must be
submitted upon request. All opinions must meet the standards set forth
in Federal Rule of Evidence 702.
(3) An action memorandum is required for all final actions
regardless of whether payment is made electronically. The memorandum
will contain a sufficient rendition of the facts, law or damages to
justify the action being taken. (A model action is posted on the USARCS
Web site; for the address see Sec. 536.2(a).)
(b) Memorandum of Opinion. Upon completion of the investigation, the
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ACO or CPO will prepare a memorandum of opinion in the format prescribed
at DA Pam 27-162, when a claim is forwarded to USARCS for action. This
requirement can be waived by the USARCS AAO.
(c) Claim brought by a claims authority or superior. A claim filed
by an approval or settlement authority or his or her superior officer in
the chain of command or a family member of either will be investigated
and forwarded for final action, without recommendation, to the next
higher settlement authority (in an overseas area, this includes a
command claims service) or to USARCS.
Note to Sec. 536.62: For further discussion see DA Pam 27-162,
paragraph 2-72.
Sec. 536.63 Settlement agreements.
(a) When required. (1) A claimant's acceptance of an award
constitutes full and final settlement and release of any and all claims
against the United States and its employees, except as to payments made
under Sec. Sec. 536.60 and 536.61. A settlement agreement is required
prior to payment on all tort claims, whether the claim is paid in full
or in part.
(2) DA Form 1666 (Claims Settlement Agreement) may be used for
payment of COE claims of $2,500 or less or all Army Central Insurance
Fund and Army and Air Force Exchange Service claims.
(3) DA Form 7500 (Tort Claim Payment Report) will be used for all
payments from the Defense Finance and Accounting Service (DFAS), for
example, FTCA claims of $2,500 or less, FCA and MCA claims of $100,000
or less and all maritime claims regardless of amount.
(4) Financial Management Service (FMS) Forms 194, 196 and 197 will
be used for all payments from the Judgment Fund, for example, FTCA
claims exceeding $2,500, MCA and FCA claims exceeding $100,000.
(5) An alternative settlement agreement will be used when the
claimant is represented by an attorney, or when any of the above
settlement agreement forms are legally insufficient (such as when
multiple interests are present, a hold harmless agreement is reached, or
there is a structured settlement). For further discussion, see DA Pam
27-162, paragraph 2-73c.
(b) Unconditional settlement. The settlement agreement must be
unconditional. The settlement agreement represents a meeting of the
minds. Any changes to the agreement must be agreed upon by all parties.
The return of a proffered settlement agreement with changes written
thereon or on an accompanying document represents, in effect, a
counteroffer and must be resolved. Even if the claimant signs the
agreement and objects to its terms, either in writing or verbally, the
settlement is defective and the objection must be resolved. Otherwise a
final offer should be made.
(c) Court approval--(1) When required. Court approval is required in
a wrongful death claim, or where the claimant is a minor or incompetent.
The claimant is responsible to obtain court approval in a jurisdiction
that is locus of the act or omission giving rise to the claim or in
which the claimant resides. The court must be a state or local court,
including a probate court. If the claimant can show that court approval
is not required under the law of the jurisdiction where the incident
occurred or where the claimant resides, the citation of the statute will
be provided and accompany the payment documents.
(2) Attorney representation. If the claimant is a minor or
incompetent, the claimant must be represented by a lawyer. If not
already represented, the claimant should be informed that the
requirement is mandatory unless state or local law expressly authorizes
the parents or a person in loco parentis to settle the claim.
(3) Costs. The cost of obtaining court approval will be factored
into the amount of the settlement; however, the amount of the costs and
other costs will not be written into the settlement, only the 20%
limitation on attorney fees will be included.
(4) Claims involving an estate or personal representative of an
estate. On claims presented on behalf of a decedent's estate, the law of
the state having jurisdiction should be reviewed to determine who may
bring a claim on
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behalf of the estate, if court appointment of an estate representative
is required, and if court approval of the settlement is required.
(d) Signature requirements. (1) Except as noted in paragraphs (d)(2)
through (d)(6) of this section, all settlement agreements will be signed
individually by each claimant. A limited power of attorney signed by the
claimant specifically stating the amount being accepted and authorizing
an attorney at law or in fact to sign is acceptable when the claimant is
unavailable to sign. The signatures of the administrator or executor of
the estate, appointed by a court of competent jurisdiction or authorized
by local law, are required. The signatures of all adult beneficiaries,
acknowledging the settlement, should be obtained unless permission is
given by Commander USARCS. Court approval must be obtained where
required by state law. If not required by state law, the citation of the
state statute will accompany the payment document. Additionally, all
adult heirs will sign as acknowledging the settlement. In lieu thereof,
where the adult heirs are not available, the estate representative will
acknowledge that all heirs have been informed of the settlement.
(2) Generally, only a court-appointed guardian of a minor's estate,
or a person performing a similar function under court supervision, may
execute a binding settlement agreement on a minor's claim. In the United
States, the law of the state where the minor resides or is domiciled
will determine the age of majority and the nature and type of court
approval that is needed, if any. The age of majority is determined by
the age at the time of settlement, not the date of filing.
(3) For claims arising in foreign countries where the amount agreed
upon does not exceed $2,500, the requirement to obtain a guardian may be
eliminated. For settlements over $2,500, whether or not the claim arose
in the United States, refer to applicable local law, including the law
of the foreign country where the minor resides.
(4) In claims where the claimant is an incompetent, and for whom a
guardian has been appointed by a court of competent jurisdiction, the
signature of the guardian must be obtained. In cases in which competence
of the claimant appears doubtful, a written statement by the plaintiff's
attorney and a member of the immediate family should be obtained.
(5) Settlement agreements involving subrogated claims must be
executed by a person authorized by the corporation or company to act in
its behalf and accompanied by a document signed by a person authorized
by the corporation or company to delegate execution authority.
(6) If it is believed that the foregoing requirements are materially
impeding settlement of the claim, bring the matter to the attention of
the Commander USARCS for appropriate resolution.
(e) Attorneys' fees and costs. (1) Attorneys' fees for all subparts
in this part 536 fall under the American Rule and are payable only out
of the up front cash in any settlement. Attorneys' fees will be stated
separately in the settlement agreement as a sum not to exceed 20% of the
award.
(2) Costs are a matter to be determined solely between the attorney
and the claimant and will not be set forth or otherwise enumerated in
the settlement agreement.
(f) Claims involving workers' compensation carriers. The settlement
of a claim involving a claimant who has elected to receive workers'
compensation benefits under local law may require the consent of the
workers' compensation insurance carrier, and in certain jurisdictions,
the state agency that has authority over workers' compensation awards.
Accordingly, claims approval and settlement authorities should be aware
of local requirements.
(g) Claims involving multiple interests. Where two or more parties
have an interest in the claim, obtain signatures on the settlement
agreement from all parties. Examples are where both the subrogee and
subrogor file a single claim for property damage, where both landlord
and tenant file a claim for damage to real property, or when a POV is
leased, both the lessor or lessee.
(h) Claims involving structured settlements. All settlement
agreements involving structured settlements will be prepared by the Tort
Claims Division,
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USARCS, and approved by the Chief or Deputy Chief, Tort Claims Division.
Sec. 536.64 Final offers.
(a) When claims personnel believe that a claim should be
compromised, and after every reasonable effort has been made to settle
at less than the amount claimed, a settlement authority will make a
written final offer within his or her monetary jurisdiction or forward
the claim to the authority having sufficient monetary jurisdiction,
recommending a final offer under the applicable statute. The final offer
notice will contain sufficient detail to outline each element of damages
as well as discuss contributory negligence, the SOL or other reasons
justifying a compromise offer. The offer letter should include language
indicating that if the offer is not accepted within a named time period,
for example, 30 or 60 days the offer is withdrawn and the claim is
denied.
(b) A final offer under subpart D of this part will notify the
claimant of the right to sue, not later than six months from the
notice's date of mailing, and of the right to request reconsideration.
The procedures for processing a request for reconsideration are set
forth in Sec. 536.89.
(c) Under subparts C or F of this part, the notice will contain an
appeal paragraph. A similar procedure will be followed in subparts E and
H of this part. Subpart J of this part sets forth its own procedures for
FCA final offers. The procedures for processing an appeal are set forth
in Sec. 536.79 of this part. The letter must inform claimants of the
following:
(1) They must accept the offer within 60 days or appeal. The appeal
should state a counteroffer.
(2) The identity of the official who will act on the appeal, and the
requirement that the appeal will be addressed to the settlement
authority who last acted on the claim.
(3) No form is prescribed for the appeal, but the notice of appeal
must fully set forth the grounds for appeal or state that it is based on
the record as it exists at the time of denial or final offer.
(4) The appeal must be postmarked not later than 60 days after the
date of mailing of the final notice of action. If the last day of the
appeal period falls on a Saturday, Sunday, or legal holiday, as
specified in Rule 6a of the Federal Rules of Civil Procedure, the
following day will be considered the final day of the appeal period.
(d) Where a claim for the same injury falls under both subparts C
and D of this part (the MCA and the FTCA), and the denial or final offer
applies equally to each such claim, the letter of notification must
advise the claimant that any suit brought on any portion of the claim
filed under the FTCA must be brought not later than six months from the
date of mailing of the notice of final offer and any appeal under
subpart C of this part must be made as stated in paragraph (c) of this
section. Further, the claimant must be advised that if suit is brought,
action on any appeal under subpart C of this part will be held in
abeyance pending final determination of such suit.
(e) Upon request, the settlement authority may extend the six-month
reconsideration or 60-day appeal period provided good cause is shown.
The claimant will be notified as to whether the request is granted under
the FTCA and that the request precludes the filing of suit under the
FTCA for 6 months. Only one reconsideration is authorized. Accordingly,
that claimant should be informed of the need to make all submissions
timely.
Note to Sec. 536.64: For further discussion see DA Pam 27-162,
paragraph 2-74.
Sec. 536.65 Denial notice.
(a) Where there is no reasonable basis for compromise, a settlement
authority will deny a claim within his or her monetary jurisdiction or
forward the claim recommending denial to the settlement authority that
has jurisdiction. The denial notice will contain instructions on the
right to sue or request reconsideration. The notice will state the basis
for denial. No admission of liability will be made. A notice to an
unrepresented claimant should detail the basis for denial in lay
language sufficient to permit an informed decision as to whether to
request appeal or reconsideration. In the interest of deterring
reconsideration, appeal or suit, a denial notice may be releasable under
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the Federal Rules of Civil Procedure or by the work product documents
doctrine.
(b) Regardless of the claim's nature or the statute under which it
may be considered, letters denying claims on jurisdictional grounds that
are valid, certain, and not easily overcome (and for this reason no
detailed investigation as to the merits of the claim was conducted),
must state that denial on such grounds is not to be construed as an
opinion on the merits of the claim or an admission of liability. In
medical malpractice claims, the denial should state that the file is
being referred to U.S. Army Medical Command for review. If sufficient
factual information exists to make a tentative ruling on the merits of
the claim, liability may be expressly denied.
Note to Sec. 536.65: See Sec. 536.53, on denying a claim for
failure to substantiate. In addition, the procedures and rules in DA Pam
27-162, paragraph 2-69, settlement and approval authority, apply equally
to the denial of claims. See also DA Pam 27-162, paragraph 2-75.
Sec. 536.66 The ``Parker'' denial.
(a) When suit is filed before final action is taken on a subpart D
of this part claim, a denial letter will be issued only upon request of
DOJ or the trial attorney. If suit is filed prematurely or in error, the
claimant may be requested to withdraw the suit without prejudice. Such a
request must be coordinated with the trial attorney.
(b) Claimants who have filed companion claims should be notified
that, due to suit being filed, no action can be taken pending the
outcome of suit and they may file suit if they wish.
Note to Sec. 536.66: For further discussion see DA Pam 27-162,
paragraph 2-76.
Sec. 536.67 Mailing procedures.
Thirty or sixty day letters seeking information from claimants,
final offers and denial notices are time-sensitive as they require a
claimant to take additional action within certain time limits.
Accordingly, follow procedures to ensure that the date of mailing and
receipt of a request for reconsideration are documented. Use certified
mail with return receipt requested (or registered mail, if being sent to
a foreign country other than by the military postal system) to mail such
notices. Upon receipt, an appeal or request for reconsideration will be
date-time stamped, logged in, and acknowledged as set forth in Sec.
536.68.
Note to Sec. 536.67: See also AR 27-20, paragraph 13-5, and DA Pam
27-162, paragraph 2-77.
Sec. 536.68 Appeal or reconsideration.
(a) An appeal or a request for reconsideration will be acknowledged
in writing. A request for reconsideration under subpart D of this part
invokes the six-month period during which suit cannot be filed, 28 CFR
14.9(b). The acknowledgment letter will underscore this restriction.
(b) Where the contents of the appeal or request for reconsideration
indicate, additional investigation will be conducted and the original
action changed if warranted. Except for subpart J of this part, which
sets forth separate rules for FCCs, if the relief requested is not
warranted the settlement authority will forward the claim to a higher
settlement authority with a claims memorandum of opinion (see Sec.
536.62) stating the reasons why the request is invalid.
Note to Sec. 536.68: See also DA Pam 27-162, paragraph 2-78.
Sec. 536.69 Retention of file.
After final action has been taken, the settlement authority will
retain the file until at least one month after either the period of
filing suit or the appeal has expired and until all data has been
entered into the database. A paid claim file will be retained until
final action has been taken on all other claims arising out of the same
incident. If any single claim arising out of the same incident must be
forwarded to higher authority for final action, all claims files for
that incident will be forwarded at the same time. For further discussion
see DA Pam 27-162, paragraph 2-79.
Sec. 536.70 Preparation and forwarding of payment vouchers.
(a) An unrepresented claimant will be listed as the sole payee.
Joint claimants will not be listed since settlement
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agreements must specify the amount payable to each claimant individually
and each must be issued a separate check.
(b) When a claimant is represented by an attorney, only one payment
voucher will be issued with the claimant and the attorney as joint
payees. The payment will be sent to the office of the claimant's
attorney. The attorney of record, either an individual or firm
designated by the claimant, will be the co-payee. If claimant has been
represented by other attorneys in the same claim, such attorneys will
not be listed as payees, even if they have a lien. Satisfaction of any
such fee will be a matter between the claimant and such attorney. If
payment is made by electronic transfer, the funds will be paid into the
account of the claimant. However, if requested, the payment may be made
into the attorney's escrow account provided the claimant has provided
written authorization.
(c) In a structured settlement the structured settlement broker will
be the sole payee, who is authorized to issue checks for the amounts set
forth in the settlement agreement. The up-front cash payment may be
deposited into an escrow account established for the benefit of the
claimant.
(d) If a claimant is a minor or has been declared incompetent by a
court or other authority authorized to do so, payment will be made to
the court-appointed guardian of the minor or incompetent, at a financial
institution approved by the court approving the settlement.
(e) If the claimant is representing a deceased's estate on a
wrongful death claim, or a survival action on behalf of the deceased,
the payment will be made to the court-appointed representative of the
estate. No payment will be made directly to the estate.
Note to Sec. 536.70: See also Sec. 536.63 and DA Pam 27-162,
paragraphs 2-73 and 2-81.
Sec. 536.71 Fund sources.
(a) 31 U.S.C. 1304 sets forth the type and limits of claims payable
out of the Judgment Fund. Only final payments that are not payable out
of agency funds are allowable, per the Treasury Financial Manual, Volume
I, Part 6, Chapter 3110, at Section 3115, September 2000. Threshold
amounts for payment from the judgment fund vary according to the subpart
and statutes under which a claim is processed. To determine the
threshold amount for any given payment procedure one must arrive at a
sum of all awards for all claims arising out of that incident, including
derivative claims. A joint amount is not acceptable. A claim for injury
to a spouse or a child is a separate claim from one for loss of
consortium or services by a spouse or parent. The monetary limits of
$2,500 set forth in subpart D and $100,000 set forth in subparts C, F or
J of this part, apply to each separate claim.
(b) A claim for $2,500 or less arising under subpart D or E, or
under Sec. Sec. 536.107 through 536.113 of subpart G, is paid from the
open claims allotment (see AR 27-20 paragraph 13-6 b(1)) or, if arising
from a project funded by a civil works appropriation, from COE civil
works funds. The Department of the Treasury pays any settlement
exceeding $2,500 in its entirety, from the Judgment Fund. However, if a
subpart G of this part, Sec. Sec. 536.107 through 536.113 claim is
treated as a noncombat activity claim, payment is made as set forth in
paragraph (c) of this section.
(c) The first $100,000 for each claimant on a claim settled under
subparts C, F or J of this part is paid from the open claims allotment.
Any amount over $100,000 is paid out of the Judgment Fund.
(d) If not over $500,000, a claim arising under subpart H of this
part is paid from the open claims allotment or civil works project funds
as appropriate. A claim exceeding $500,000 is paid entirely by a
deficiency appropriation.
(e) AAFES or NAFI claims are paid from nonappropriated funds, except
when such claims are subject to apportionment between appropriated and
nonappropriated funds. See DA Pam 27-162, paragraph 2-80h.
(f) COE claims arising out of projects not funded out of civil works
project funds are payable from the open claims allotment not to exceed
$2,500 for subpart D claims and $100,000 for claims arising from
subparts C, F or J of this part and from the Judgment Fund, over such
amounts.
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Note to Sec. 536.71: For further discussion see DA Pam 27-162,
paragraph 2-80.
Sec. 536.72 Finality of settlement.
A claimant's acceptance of an award, except for an advance payment
or a split payment for property damage only, constitutes a release of
the United States and its employees from all liability. Where
applicable, a release should include the ARNG or the sending State. For
further discussion see DA Pam 27-162, paragraph 2-82.