[Title 32 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2020 Edition]
[From the U.S. Government Publishing Office]



[[Page i]]

          

          Title 32

National Defense


________________________

Parts 700 to 799

                         Revised as of July 1, 2020

          Containing a codification of documents of general 
          applicability and future effect

          As of July 1, 2020
                    Published by the Office of the Federal Register 
                    National Archives and Records Administration as a 
                    Special Edition of the Federal Register

[[Page ii]]

          U.S. GOVERNMENT OFFICIAL EDITION NOTICE

          Legal Status and Use of Seals and Logos
          
          
          The seal of the National Archives and Records Administration 
              (NARA) authenticates the Code of Federal Regulations (CFR) as 
              the official codification of Federal regulations established 
              under the Federal Register Act. Under the provisions of 44 
              U.S.C. 1507, the contents of the CFR, a special edition of the 
              Federal Register, shall be judicially noticed. The CFR is 
              prima facie evidence of the original documents published in 
              the Federal Register (44 U.S.C. 1510).

          It is prohibited to use NARA's official seal and the stylized Code 
              of Federal Regulations logo on any republication of this 
              material without the express, written permission of the 
              Archivist of the United States or the Archivist's designee. 
              Any person using NARA's official seals and logos in a manner 
              inconsistent with the provisions of 36 CFR part 1200 is 
              subject to the penalties specified in 18 U.S.C. 506, 701, and 
              1017.

          Use of ISBN Prefix

          This is the Official U.S. Government edition of this publication 
              and is herein identified to certify its authenticity. Use of 
              the 0-16 ISBN prefix is for U.S. Government Publishing Office 
              Official Editions only. The Superintendent of Documents of the 
              U.S. Government Publishing Office requests that any reprinted 
              edition clearly be labeled as a copy of the authentic work 
              with a new ISBN.

              
              
          U . S . G O V E R N M E N T P U B L I S H I N G O F F I C E

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

          U.S. Superintendent of Documents  Washington, DC 
              20402-0001

          http://bookstore.gpo.gov

          Phone: toll-free (866) 512-1800; DC area (202) 512-1800

[[Page iii]]




                            Table of Contents



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

  Title 32:
    SUBTITLE A--Department of Defense (Continued)
          Chapter VI--Department of the Navy                         5
  Finding Aids:
      Table of CFR Titles and Chapters........................     289
      Alphabetical List of Agencies Appearing in the CFR......     309
      List of CFR Sections Affected...........................     319

[[Page iv]]





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

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

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

[[Page v]]



                               EXPLANATION

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

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

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

LEGAL STATUS

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

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, July 1, 2020), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

    Each volume of the Code contains amendments published in the Federal 
Register since the last revision of that volume of the Code. Source 
citations for the regulations are referred to by volume number and page 
number of the Federal Register and date of publication. Publication 
dates and effective dates are usually not the same and care must be 
exercised by the user in determining the actual effective date. In 
instances where the effective date is beyond the cut-off date for the 
Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

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

[[Page vi]]

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

PAST PROVISIONS OF THE CODE

    Provisions of the Code that are no longer in force and effect as of 
the revision date stated on the cover of each volume are not carried. 
Code users may find the text of provisions in effect on any given date 
in the past by using the appropriate List of CFR Sections Affected 
(LSA). For the convenience of the reader, a ``List of CFR Sections 
Affected'' is published at the end of each CFR volume. For changes to 
the Code prior to the LSA listings at the end of the volume, consult 
previous annual editions of the LSA. For changes to the Code prior to 
2001, consult the List of CFR Sections Affected compilations, published 
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.

``[RESERVED]'' TERMINOLOGY

    The term ``[Reserved]'' is used as a place holder within the Code of 
Federal Regulations. An agency may add regulatory information at a 
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used 
editorially to indicate that a portion of the CFR was left vacant and 
not dropped in error.

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
requirement to publish regulations in the Federal Register by referring 
to materials already published elsewhere. For an incorporation to be 
valid, the Director of the Federal Register must approve it. The legal 
effect of incorporation by reference is that the material is treated as 
if it were published in full in the Federal Register (5 U.S.C. 552(a)). 
This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed as 
an approved incorporation by reference, please contact the agency that 
issued the regulation containing that incorporation. If, after 
contacting the agency, you find the material is not available, please 
notify the Director of the Federal Register, National Archives and 
Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001, 
or call 202-741-6010.

CFR INDEXES AND TABULAR GUIDES

    A subject index to the Code of Federal Regulations is contained in a 
separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Authorities 
and Rules. A list of CFR titles, chapters, subchapters, and parts and an 
alphabetical list of agencies publishing in the CFR are also included in 
this volume.
    An index to the text of ``Title 3--The President'' is carried within 
that volume.

[[Page vii]]

    The Federal Register Index is issued monthly in cumulative form. 
This index is based on a consolidation of the ``Contents'' entries in 
the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

REPUBLICATION OF MATERIAL

    There are no restrictions on the republication of material appearing 
in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-741-6000 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, 8601 Adelphi Road, College Park, MD 
20740-6001 or e-mail [email protected].

SALES

    The Government Publishing Office (GPO) processes all sales and 
distribution of the CFR. For payment by credit card, call toll-free, 
866-512-1800, or DC area, 202-512-1800, M-F 8 a.m. to 4 p.m. e.s.t. or 
fax your order to 202-512-2104, 24 hours a day. For payment by check, 
write to: US Government Publishing Office - New Orders, P.O. Box 979050, 
St. Louis, MO 63197-9000.

ELECTRONIC SERVICES

    The full text of the Code of Federal Regulations, the LSA (List of 
CFR Sections Affected), The United States Government Manual, the Federal 
Register, Public Laws, Public Papers of the Presidents of the United 
States, Compilation of Presidential Documents and the Privacy Act 
Compilation are available in electronic format via www.govinfo.gov. For 
more information, contact the GPO Customer Contact Center, U.S. 
Government Publishing Office. Phone 202-512-1800, or 866-512-1800 (toll-
free). E-mail, [email protected].
    The Office of the Federal Register also offers a free service on the 
National Archives and Records Administration's (NARA) website for public 
law numbers, Federal Register finding aids, and related information. 
Connect to NARA's website at www.archives.gov/federal-register.
    The e-CFR is a regularly updated, unofficial editorial compilation 
of CFR material and Federal Register amendments, produced by the Office 
of the Federal Register and the Government Publishing Office. It is 
available at www.ecfr.gov.

    Oliver A. Potts,
    Director,
    Office of the Federal Register
    July 1, 2020







[[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, 2020.

    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 700 to 799)

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

              SUBTITLE A--Department of Defense (Continued)

                                                                    Part

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

[[Page 3]]

              Subtitle A--Department of Defense (Continued)

[[Page 5]]



                   CHAPTER VI--DEPARTMENT OF THE NAVY




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

    SUBCHAPTER A--UNITED STATES NAVY REGULATIONS AND OFFICIAL RECORDS
Part                                                                Page
701             Availability of Department of the Navy 
                    records and publication of Department of 
                    the Navy documents affecting the public 
                    [Reserved]..............................           7
705             Public affairs regulations..................           7
                         SUBCHAPTER B [RESERVED]
                         SUBCHAPTER C--PERSONNEL
719             Regulations supplementing the Manual for 
                    Courts-Martial..........................          46
720             Delivery of personnel; service of process 
                    and subpoenas; production of official 
                    records.................................          59
721-722

[Reserved]

723             Board for Correction of Naval Records.......          76
724             Naval Discharge Review Board................          82
725             Release of official information for 
                    litigation purposes and testimony by 
                    Department of the Navy personnel........         116
735             Reporting births and deaths in cooperation 
                    with other agencies.....................         130
       SUBCHAPTER D--PROCUREMENT, PROPERTY, PATENTS, AND CONTRACTS
744             Policies and procedures for the protection 
                    of proprietary rights in technical 
                    information proposed for release to 
                    foreign governments.....................         132
746             Licensing of government inventions in the 
                    custody of the Department of the Navy...         132
                          SUBCHAPTER E--CLAIMS
750             General claims regulations..................         139
751             Personnel claims regulations................         162
752             Admiralty claims............................         171
755             Claims for injuries to property under 
                    Article 139 of the Uniform Code of 
                    Military Justice........................         174

[[Page 6]]

756             Procedures for processing claims involving 
                    non-appropriated fund activities and 
                    their employees.........................         177
757             Affirmative claims regulations..............         179
              SUBCHAPTER F--ISLANDS UNDER NAVY JURISDICTION
761             Naval Defensive Sea Areas; Naval Airspace 
                    Reservations, areas under Navy 
                    administration, and the Trust Territory 
                    of the Pacific Islands..................         187
762

[Reserved]

                    SUBCHAPTER G--MISCELLANEOUS RULES
765             Rules applicable to the public..............         200
766             Use of Department of the Navy aviation 
                    facilities by civil aircraft............         204
767             Guidelines for permitting archaeological 
                    investigations and other activities 
                    directed at sunken military craft and 
                    terrestrial military craft under the 
                    jurisdiction of the Department of the 
                    Navy....................................         214
768-769

[Reserved]

770             Rules limiting public access to particular 
                    installations...........................         230
771-774

[Reserved]

775             Policies and Responsibilities for 
                    Implementation of the National 
                    Environmental Policy Act within the 
                    Department of the Navy..................         240
776             Professional conduct of attorneys practicing 
                    under the cognizance and supervision of 
                    the Judge Advocate General..............         250
777-799

[Reserved]

[[Page 7]]



    SUBCHAPTER A_UNITED STATES NAVY REGULATIONS AND OFFICIAL RECORDS





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





PART 705_PUBLIC AFFAIRS REGULATIONS--Table of Contents



Sec.
705.1 Purpose.
705.2 Chief of Information and the Office of Information (CHINFO).
705.3 [Reserved]
705.4 Communication directly with private organizations and individuals.
705.5 Taking of photos on board naval ships, aircraft and installations 
          by members of the general public.
705.6 Releasing public information material to the media.
705.7 Radio and television.
705.8 Motion pictures.
705.9 Availability of motion pictures to external audiences.
705.10 Still photography.
705.11 Supplying photographs and services to other than Navy and Marine 
          Corps.
705.12 Print media.
705.13 Commercial advertising.
705.14 Embarkation of media representatives.
705.15 Employment of Navy personnel as correspondents or staff members 
          of civilian news media.
705.16 Navy produced public information material.
705.17 Participation guidelines.
705.18 Authority and coordination.
705.19 Financing.
705.20 Use of Navy material and facilities.
705.21 Requests for Navy participation.
705.22 Relations with community groups.
705.23 Guest cruises.
705.24 Exhibits.
705.25 Navy Exhibit Center.
705.26 Exhibit availability report.
705.27-705.28 [Reserved]
705.29 Navy Art Collection.
705.30 Aerospace Education Workshop.
705.31 USS Arizona Memorial, Pearl Harbor.
705.32 Aviation events and parachute demonstrations.
705.33 Participation by Armed Forces bands, choral groups, and troops in 
          the public domain.
705.34 Other special events.
705.35 Armed Forces participation in events in the public domain.
705.36 Government transportation of civilians for public affairs 
          purposes.
705.37 Public affairs and public service awards.

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

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



Sec.  705.1  Purpose.

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



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

    (a) The Chief of Information is the direct representative of the 
Secretary of the Navy and of the Chief of Naval Operations in all public 
affairs and internal relations matters. As such, the Chief of 
Information has the authority to implement public affairs and internal 
relations policies and to coordinate Navy and Marine Corps public 
affairs and internal relations activities of mutual interest.
    (b) The Chief of Information will keep Navy commands informed of 
Department of Defense policies and requirements. No command within the 
Department of the Navy, except Headquarters, Marine Corps, will deal 
directly with the Office of the Assistant Secretary of Defense (Public 
Affairs) on public affairs matters unless authorized to do so by the 
Chief of Information.
    (c) The Chief of Information will be consulted on all Navy public 
affairs and internal relations matters and informed of all operations 
and proposed plans and policies which have national or international 
(and in the case of audio-visual material, regional) public affairs 
aspects.
    (d) The Chief of Information heads the Navy Office of Information, 
the Navy Internal Relations Activity (NIRA), the Office of Information 
Branch Offices (NAVINFOs), the Navy Public Affairs Center (NAVPACENs) 
and the Fleet Home Town News Center

[[Page 8]]

(FHTNC). In addition, the Chief of Information has responsibility (on 
behalf of the Secretary of the Navy as Executive Agent for the 
Department of Defense) for the High School News Service and has 
operational control of the U.S. Navy Band, Washington, DC.
    (e) The Navy Office of Information Branch Offices (NAVINFOs) are 
located in Atlanta, Boston, Chicago, Dallas, Los Angeles, and New York. 
As representatives of the Secretary of the Navy, Chief of Naval 
Operations, and Chief of Information, the NAVINFOs have a primary 
mission of providing direct liaison with local and regional mass 
communications media.
    (1) The function of the NAVINFOs are as follows:
    (i) Establish and maintain close personal relationships with local 
television, radio, film, publishing, and other mass-media organizations 
including minority-group-oriented media.
    (ii) Seek ways through these media to inform the public about naval 
personnel and activities.
    (iii) Provide assistance to media organizations and respond to their 
interest in Navy programs, stories, and features. In this regard, 
maintain informal liaison with various information offices afloat and 
ashore in order to respond to requests from local media representatives, 
particularly those from inland areas, who desire to visit fleet units or 
activities ashore.
    (iv) Provide advice on Navy cooperation and assistance, as 
appropriate, to representatives of national industrial and commercial 
organizations, including advertising agencies.
    (v) Maintain a library of Navy motion picture films for use by local 
television stations, distribute news films and audio material, and 
otherwise perform normal audio-visual functions at the local level.
    (vi) Provide personnel and other assistance as appropriate, to 
special Command Information Bureaus and public information staffs of 
other naval activities as directed by the Chief of Information.
    (vii) Advise the Chief of Information on current trends and 
significant problems relating to local media requirements.
    (viii) Seek ways to support the long-range goals and immediate 
priorities of the Navy.
    (ix) Provide advice and assistance in the placement of news and 
feature materials to the field activities of the Navy Recruiting 
Command.
    (x) Perform such other tasks as may be assigned by the Chief of 
Information.
    (2) Additionally, NAVINFO Los Angeles is the Navy representative for 
all appropriate liaison with motion picture and network television 
offices in the Hollywood area. Naval activities will channel all 
requests for information or assistance from these media to NAVINFO Los 
Angeles, which will coordinate with CHINFO.
    (3) Additionally, NAVINFO New York is the Navy representative for 
all appropriate liaison with television and radio networks in the New 
York area and with magazine and book publishers in that area. Requests 
for assistance originating from these media should be directed to 
NAVINFO New York, which will coordinate with CHINFO.
    (4) Except as specifically directed by CHINFO, the Branch Offices do 
not have responsibility or authority for community relations or internal 
relations.
    (5) Direct liaison between NAVINFOs and Naval District public 
affairs offices, Navy recruiters and other naval activities afloat and 
ashore is encouraged.
    (f) Areas covered by the respective offices are:
    (1) NAVINFO Atlanta: Alabama, the District of Columbia, Florida, 
Georgia, Kentucky, Maryland, Mississippi, North Carolina, South 
Carolina, Tennessee, Virginia, and Southern West Virginia.
    (2) NAVINFO Boston: Maine, Massachusetts, New Hampshire, Rhode 
Island, and Vermont.
    (3) NAVINFO Chicago: Illinois, Indiana, Iowa, Michigan, Minnesota, 
Nebraska, North Dakota, Ohio, South Dakota, Wisconsin, and Northern West 
Virginia.
    (4) NAVINFO Dallas: Arkansas, Colorado, Kansas, Louisiana, Missouri, 
New Mexico, Oklahoma, and Texas.
    (5) NAVINFO Los Angeles: Arizona, California, Idaho, Montana, 
Nevada,

[[Page 9]]

Oregon, Utah, Washington, and Wyoming.
    (6) NAVINFO New York: Connecticut, Delaware, New Jersey, New York, 
and Pennsylvania.
    (g) The Navy Public Affairs Centers (NAVPACENs) are located in 
Norfolk and San Diego. The centers have a primary mission of producing 
Navy stories for dissemination to the media through normal information 
channels.
    (1) The following tasks are included among the functions of the 
NAVPACENs.
    (i) Produce written, audio and photographic feature public 
information material about fleet and shore personnel, units and 
activities, as coordinated with and approved for policy and concept by 
the respective fleet and shore commander concerned.
    (ii) Serve as public affairs emergency reaction teams/resource 
personnel responsive to the requirements of the CNO and CHINFO, and when 
feasible and appropriate and as approved by CNO or CHINFO, serve as 
public affairs emergency reaction teams/resource personnel in support of 
Fleet Commanders.
    (iii) Develop feature material to support the long range goals and 
the immediate priorities of the Navy. Direct liaison is authorized with 
the Navy Recruiting Command, Recruiting Areas, Recruiting Districts, and 
other Commanders as appropriate to achieve this function.
    (iv) Perform such other tasks as may be assigned by the Chief of 
Information.
    (2) NAVPACENs will have no public affairs news media 
responsibilities which conflict with the basic public affairs 
responsibilities of Fleet Commanders-in-Chief. Specifically, NAVPACENs 
are excluded from responding to news media queries, releasing news 
information, arranging news media embarkations, or any other day-to-day 
news media services concerning the respective fleets. These 
responsibilities remain with the Fleet Commander.
    (3) NAVPACENs have no direct responsibility or authority for 
community relations or internal relations and shall defer in these areas 
to the cognizant Naval District Commandant.
    (4) Direct liaison with Fleet Commanders-in-Chief and NAVINFOs is 
appropriate and authorized. As approved by the Fleet CINCs, direct 
liaison with forces afloat and shore activities under the Fleet CINCs is 
appropriate.
    (5) NAVPACENs will carry out their mission and functions in such a 
manner as not to interfere with the public affairs responsibilities of 
the District Commandants.

[44 FR 6389, Feb. 1, 1979]



Sec.  705.3  [Reserved]



Sec.  705.4  Communication directly with private organizations and
individuals.

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

[[Page 10]]

    (2) Photos made more than 10 years prior to the current date may be 
purchased from the National Archives. Details are available from: Audio-
Visual Branch National Archives and Records Service, General Services 
Administration, Washington, DC 20408.

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



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

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



Sec.  705.6  Releasing public information material to the media.

    (a) Methods of releasing information:
    (1) Release at the seat of government and/or as approved by the 
Assistant Secretary of Defense (Public Affairs).
    (i) Overall responsibility for release of information rests with the 
Assistant Secretary of Defense (Public Affairs). The Chief of 
Information is responsible for coordinating with him releases of 
national and international interest (and in the case of audiovisual 
material of regional interest) and for arranging for local release of 
such material if considered appropriate by OASD(PA). Information of the 
above types and also information proposed for release at the seat of 
government, with the exception of ``spot news,'' as described in 
paragraph (b) of this section, following.
    (2) Releases by local commands:
    (i) News of purely local interest may be released by the command 
concerned. Higher and coordinating authorities (such as the District 
Commandant) will be informed, when appropriate, that the release has 
been made.
    (ii) News of national or other wide interest may be released by a 
local command under the following circumstances:
    (A) The Assistant Secretary of Defense (Public Affairs), having 
approved a release, directs that it be issued by the command concerned.
    (B) An event of immediate and urgent news interest, such as a 
disasterous accident, occurs at the command, and emergency announcements 
must be made as delay in issuing information would be against the best 
interests of the Navy. The officer in command will make a ``spot news'' 
release of all appropriate information considered releasable.
    (1) Copies of spot news releases made (or a description if the 
announcement is made orally) will be forwarded promptly to the Chief of 
Information.
    (2) If the situation is considered critical, the spot news release 
will be forwarded by telephone or message.
    (b) Means through which information is released to media:
    (1) Navy oriented information material (written, taped, motion 
picture, still photo) is regularly released to all media presumed to be 
interested.
    (2) Similar material is provided in response to query from a news 
media representative. The material may be produced by the Navy, or the 
newsman may be assisted in researching, filming, etc. himself.
    (3) Exclusive releases:
    (i) Information concerning naval activities may be provided on an 
exclusive basis only when a specific request

[[Page 11]]

or inquiry is received from one news media representative for material 
not requested by other media.
    (ii) In such cases, and assuming that the information is properly 
releasable, the following rules will apply:
    (A) If prior to the time information is given to the newsman making 
the original inquiry or request substantially similar inquiries or 
requests are received from other newsmen, the first inquirer will be so 
informed, and subsequent inquirers will be advised that a prior request 
has been received. None of the inquirers will be told the identity of 
the individuals or media who have placed these similar inquiries.
    (B) If not more than three similar requests are received, the 
information will be provided simultaneously to each inquirer.
    (C) If more than three requests for substantially the same 
information have been received before any are answered, inquirers will 
be advised as soon as possible that the information cannot be given on 
an exclusive or limited basis, and a general release covering the 
subject will be issued to all media.
    (4) News conferences:
    (i) A news conference is held when a command has something specific 
to announce to the press that cannot be handled in a news release or by 
phone call. A news conference should not be called just to get together 
with the press. A request from the press is also a reason for conducting 
a news conference. Special events, significant operations or serious 
accidents are frequent reasons for calling news conferences. If 
requested, spokesmen may be made available to the press for questions 
without specific subject matter in mind, but the press should be clearly 
informed of the nature of this meeting. Technically, this is not 
considered a news conference.
    (ii) When a news conference is held, it is essential that all 
interested media be invited to attend.
    (iii) A record of what is said should be kept. Ideally, the news 
conference should be tape recorded and a public affairs officer should 
be present.
    (iv) Official spokesmen will be prepared to answer questions in a 
frank and candid manner. If the answer would compromise military 
security, the inquirer should be so advised. If the answer is not known 
to the spokesman, he should say so and add that the matter will be 
checked and any available unclassified information provided later.
    (v) Newsmen are not normally asked to submit their questions in 
advance. If this is considered advisable, as in cases where highly 
technical answers may be required, the answers are prepared in advance 
and given to all attending newsmen (not just the questioner) at the news 
conference.
    (5) Interviews. These are similar to news conferences except that 
they involve a single newsman (who has usually requested the interview) 
and a single Navy spokesman.
    (i) Required procedures are essentially the same as for news 
conferences. However, a public affairs officer should be present only if 
desired by the person being interviewed. The interview may be taped, if 
the newsman agrees.
    (ii) Without penalizing initiative displayed by a newsman in asking 
pertinent questions, care should be exercised by the naval spokesman not 
to make a major revelation of news material to a single media outlet in 
the course of a routine interview.
    (iii) If major areas of difficulty arise in the interview, the Chief 
of Information should be notified of them.
    (6) Background briefings; ``Not for attribution''; or ``Off the 
record.''
    (i) Since there is a possibility or risk of a misunderstanding 
arising in these briefings, it is important that all concerned 
understand and agree to the ground rules.
    (ii) In general, information will not be made public unless it can 
be openly attributed to the Navy and disseminated without reservation. 
Occasionally, a backgrounder may be helpful. An example is a briefing of 
embarked newsmen in advance of an operation, providing information which 
may not be reported until the operation is over. The purpose is to help 
the newsmen understand the operation while it is taking place.

[[Page 12]]



Sec.  705.7  Radio and television.

    (a) Navy relationships with radio and TV representatives are of two 
types:
    (1) Dissemination to them of Navy produced tapes, photos, films, 
etc. (This is discussed in more detail in Sec.  705.17).
    (2) Cooperation with them when they produce a program on a Navy 
subject. This is discussed in the paragraph following:
    (b) Requirement for approval by higher authority.
    (1) Commanding officers may:
    (i) Release audiovisual material which is spot news, as defined in 
Sec.  705.6(a)(2)(ii) preceding, or is of purely local interest.
    (ii) Participate in local community audiovisual projects of benefit 
to the Department of Defense or in the national interest.
    (iii) Approve one-time, one-station participation by personnel of 
their commands (as individuals) in programs of purely local interest.
    (2) All other audiovisual material originated by the Department of 
the Navy or requiring Navy cooperation must be approved by the Chief of 
Information, who will effect the necessary coordination and/or approval 
of the Assistant Secretary of Defense (Public Affairs).
    (i) Requests for assistance from non-governmental audiovisual media 
will be forwarded, with the maximum available details and an evaluation 
of the request, through the chain of command to the Chief of 
Information.
    (ii) No direct coordination or contact between local naval commands 
and the Assistant Secretary of Defense (PA) is authorized unless 
specifically provided for by separate directives or correspondence.
    (c) Navy cooperation in productions by audiovisual media 
representatives (nongovernment).
    (1) The production or project must:
    (i) Be consistent with the goals and aims of the Department of 
Defense and/or be in the national interest.
    (ii) Portray military operation, historical incidents, persons and 
places, in such a manner as to give a true portrayal and interpretation 
of military life.
    (iii) Comply with accepted standards of dignity and propriety in the 
industry.
    (2) There will be no deviation from established safety standards.
    (3) Operational readiness shall not be impaired.
    (4) Official activities of military personnel assisting the 
production must be within the scope of normal military activities. 
Exceptions to this policy will be made only in unusual circumstances.
    (5) Diversion of ships, equipment, personnel and material resources 
from normal military locations or military operations will not normally 
be authorized for filming. Exceptions to such policy must be authorized 
by the Assistant Secretary of Defense (Public Affairs), through the 
Chief of Information.
    (i) The production company concerned must reimburse the government 
for any extra expense involved. A strict accounting of the additional 
expenses incurred and charged to the production company must be 
maintained by the designated project officer. A copy of this accounting 
will be forwarded to the Chief of Information.
    (ii) [Reserved]
    (6) Naval material and personnel will not be employed in such a 
manner as to compete with commercial and private enterprise. In this 
regard, any person or agency requesting their use will furnish a 
noncompetitive certification.
    (7) Additional details on procedures will be found in DOD 
Instruction 5410.16.
    (8) In addition to cooperation requested by the media, commands will 
be alert to the advantages of providing Navy programming and/or 
encouraging participation by Navy personnel in local radio and TV 
programming. Examples are community forums, local talent shows, 
educational and religious programs, children's shows, sports programs, 
etc.
    (d) Participation by individual Navy personnel on radio or TV 
programs:
    (1) In general, such participation is encouraged if it is:
    (i) Dignified and considered in the interests of the Navy.
    (ii) Compatible with operational commitments.

[[Page 13]]

    (iii) Not in competition with the regular employment of professional 
performers.
    (2) The public affairs officer will screen requests for such 
appearances for members of his command to see that the programs are in 
good taste, and that neither the Navy nor its personnel are exposed to 
embarrassment for the sake of entertainment.
    (3) Approval of participation by Navy individuals:
    (i) Approval is not required for personnel attending audience 
participation broadcasts if they are selected at random from the 
audience.
    (ii) One-time, one-station participation of purely local interest 
may be approved by the officer in command concerned.
    (iii) If participation will be on a network (defined as more than 
one station, even if local) of if the same person or program is 
requested by two or more unrelated stations, approval by the Chief of 
Information must be obtained even if the show is of local interest only.
    (e) Use of official footage:
    (1) Use of official U.S. Navy stock film footage on TV broadcasts is 
not authorized without approval and clearance by the Chief of 
Information and the Department of Defense.
    (2) Use of Navy public information motion pictures cleared for TV is 
authorized and encouraged except that such films may be used on 
subscription or pay TV only when offered to the viewers at no cost.
    (3) Navy films will not be cut or portions duplicated for TV use in 
lieu of stock footage without prior approval by the Chief of 
Information.
    (f) Music clearance. The Navy assumes no responsibility for 
clearance of music used on Navy recordings, transcriptions, or films not 
specially produced or authorized for radio or TV broadcast.
    (g) Disclaimers. A disclaimer is not necessary if a product is 
advertised on a program in which the Navy participates, but there must 
be no stated or implied endorsement of it by the Navy or by naval 
personnel appearing on the program.
    (h) Requests for courtesy prints of commercial television programs:
    (1) Requests will not be made directly to the producer or network 
concerned, but will be forwarded to the Chief of Information by the Navy 
requester.
    (2) These courtesy prints will be exhibited only under circumstances 
which cannot be construed as competitive with commercial ventures.



Sec.  705.8  Motion pictures.

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

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

[[Page 14]]



Sec.  705.9  Availability of motion pictures to external audiences.

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



Sec.  705.10  Still photography.

    (a) Policy and procedures on taking photos by the general public, 
given in Sec.  705.5 apply also to media representatives.
    (b) Basic policy and procedures for still photos are set forth in 
the Manual of Naval Photography, OPNAVINST 3150.6D.
    (c) Authority to forbid photography:
    (1) On Navy property, the officer in command may forbid the taking 
of photographs and may confiscate film, reviewing it if it is suspected 
that classified material has been photographed. In such cases, all 
unclassified photos will be returned promptly to the photographer.
    (2) Navy personnel have no authority to confiscate film off Navy 
property. If, as in an accident, classified equipment is exposed which 
cannot be removed or covered, Navy representatives will ask news media 
photographers not to photograph it and will inform them of 18 U.S.C. 
793(e), 795, 797, which makes it a criminal offense to photograph 
classified material. Navy personnel will not use force if media 
photographers refuse to cooperate, but will instead seek the assistance 
of appropriate civil authorities and/or the photographer's superior in 
recovering film or photographs presumed to be of classified nature.
    (3) If media photographers are uncooperative in regard to protection 
of classified material, an account of the matter will be forwarded to 
the Chief of Information.
    (d) Release of photographs:
    (1) Most unclassified photographs of interest to the public may be 
released to news media. However, the rights of individuals photographed 
and special constraints such as those described in section 0403 of the 
Public Affairs Regulations must be taken into consideration before a 
decision is made to release a photograph. In addition, photos which 
might be harmful to recruiting or otherwise not be in the Navy's best 
interests will not be used unless this failure to release them 
constitutes suppression of legitimate news.
    (2) Photographs of strictly local interest can be made available by 
the command to local media without being submitted to review by higher 
authority.
    (3) If a feature type photo released locally is considered of 
possible interest elsewhere, because of its human interest or artistic 
merit, a single print should be forwarded to the Chief of Information, 
together with a notation of the distribution made.
    (4) Photographs of national interest:
    (i) ``Spot news'' photos may be released by a District Commandant or 
Fleet or Force Commander.
    (ii) If a photo has been released by a local command to national 
news media:
    (A) The original negative or transparency will be forwarded by the 
fastest available means to the Commanding Officer, Naval Photographic 
Center, Naval Station, Washington, DC 20390. Such forwarding will be in 
accordance with the Manual of Naval Photography, par. 0445, 
subparagraphs 3 and 4.
    (B) One print, a copy of the letter of transmittal, and the 
distribution list will be forwarded to the Chief of Information.

[[Page 15]]

    (C) Navy units with a Unified Command will forward the photos 
through Unified Command channels.
    (D) All other commands will forward the photos to the Chief of 
Information who will effect coordination with the Office of the 
Assistant Secretary of Defense (Public Affairs) and, if necessary, 
arrange for security review.
    (iii) Photography of research activities is normally considered to 
be of national interest.
    (iv) Still photographs of national news interest may be forwarded, 
unprocessed, for release by the Chief of Information by any command not 
subject to the authority of a Unified or Specified Commander. Such 
forwarding will be in accordance with paragraph 0445, subparagraph 3, of 
the Manual of Naval Photography. All available caption material will be 
forwarded with this unprocessed photography.



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

    (a) To avoid competition with civilian photographic organizations, 
naval aircraft will not be used to take photographs for, nor will 
photographs or mosaic maps be provided to any individuals, corporations, 
or agencies other than departments or agencies of the federal 
government, without specific permission from the Chief of Naval 
Operations.
    (b) In the case of natural catastrophe, or other circumstances where 
prompt action is required, the senior officer present may authorize a 
departure from the preceding paragraph. In all such cases, a report of 
the circumstances will be made to the Chief of Naval Operations.
    (c) This policy does not preclude releases to the media, news 
companies, and others in accordance with established procedures, or the 
sale of released photographs to private agencies or individuals under 
existing Department of Defense regulations and part 701, subparts A-D, 
Availability to the public of Department of the Navy Information and 
Records. Normally, requests by individuals for still photographs and 
motion picture photography for private use are forwarded to the 
Commanding Officer, Naval Photographic Center, Naval Station, 
Washington, DC 20390, for action. Procedures for the collection or 
authority for waiver of fees for service and material provided are set 
forth in Volume III, NAVCOMPT Manual, and part 701, subparts A-D.
    (d) Navy aerial photography released for sale to the public is 
transferred to the United States Department of the Interior. Inquirers 
regarding the purchase of this photography should be directed to Chief, 
Map Information Office, Geological Survey, Department of the Interior, 
Washington, DC 20025.
    (e) Navy training films suitable for sale to the public are 
transferred to the National Audio-Visual Center, National Archives and 
Records Service, General Services Administration, Washington, DC 20408. 
Inquires regarding the sale of Navy training films should be addressed 
to the National Audio-Visual Center.
    (f) This policy does not preclude releases to contractors and others 
properly engaged in the conduct of the Navy's business. However, when 
services are performed for other agencies of the government, and under 
certain conditions, for other military departments, the Navy Comptroller 
Manual prescribes that such are subject to reimbursement.
    (g) All private inquiries from foreign nationals should be returned, 
advising the addressee to contact his local U.S. Information Service 
officer for the desired materials.



Sec.  705.12  Print media.

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



Sec.  705.13  Commercial advertising.

    (a) The Navy encourages cooperation with advertisers. However, the 
layout, artwork and text of the proposed advertisement must be submitted 
to the Chief of Information for review and for clearance by other 
appropriate authorities.

[[Page 16]]

    (b) Requests from commercial enterprises (including those with Navy 
contracts) for use of Navy personnel, facilities, equipment or supplies 
for advertising purposes must be referred to the Chief of Information.
    (c) Official Navy photos which have been cleared and are released 
for open publication may be furnished for commercial advertising, if 
properly identified and captioned. No photos will be taken exclusively 
for the use of an advertiser.
    (d) Navy cooperation in commercial advertising, publicity and other 
promotional activities will be based on the following requirements.
    (1) It must be in accordance with the provisions of 32 CFR part 721.
    (2) It must be in good taste and not reflect discredit on the Navy 
or the U.S. Government. Statements made must be matters of fact, without 
misleading information or other objectionable features.
    (3) It must not indicate that a product is used by the Navy to the 
exclusion of similar products offered by other manufacturers or appear 
to endorse or selectively benefit or favor (directly or indirectly) any 
private individual, sect, fraternal organization, commercial venture or 
political group, or be associated with solicitation of votes in a 
political election. It will not infer Navy responsibility for the 
accuracy of the advertiser's claims or for his compliance with laws 
protecting the rights of privacy of military personnel whose 
photographs, names or statements appear in the advertisement. It will 
neither indicate that a product has undergone Navy tests nor disclose 
data from any Navy tests which may have been made.
    (4) It may not promote the use of tobacco or alcohol.
    (e) Use of uniforms and naval insignias. These may be used provided 
it is done in a dignified manner.
    (f) Use of Naval personnel:
    (1) Personnel may receive no compensation.
    (2) Personnel will not be inconvenienced or have their training or 
normal duties interrupted.
    (3) Written consent from the person concerned must be obtained 
before a photo may be used.
    (4) Navy civilians and military personnel on active duty may not use 
their position titles or ranks in connection with any commercial 
enterprise or endorsement of a commercial product. (Retired personnel 
and Reserves not on active duty may use their military titles in 
connection with commercial enterprises if this does not give rise to the 
appearance of sponsorship of the enterprise by the Navy or Department or 
in any way reflect discredit upon them.)
    (5) Testimonials from naval personnel are not banned, but the person 
giving the testimonial must not be specifically identified.
    (i) The use of name, initials, rank or rate of Navy personnel 
appearing in testimonial advertising is not permitted, but such 
expressions as, ``says a Navy chief,'' may be used.
    (ii) Care will be taken to ensure that testimonials from Navy 
personnel are presented in such a way as to make clear that the views 
expressed are those of the individual and not of the Department of the 
Navy.



Sec.  705.14  Embarkation of media representatives.

    (a) General. (1) Although this paragraph applies primarily to 
embarkation in ships, provisions which are applicable to embarkation on 
aircraft or visits to shore installations apply also to those 
situations.
    (2) See also Sec.  705.37 on transportation of non-Navy civilians.
    (b) Invitations to embark. (1) Invitations should be extended as far 
in advance as possible and inclusive information on the following should 
be provided:
    (i) Type, scope and duration of operation or cruise.
    (ii) Communications, methods of press transmission, and charges, if 
any.
    (iii) Transportation arrangements.
    (iv) Approximate cost of meals and/or quarters, and the statement 
that the newsman will be expected to pay for these and other personal 
expenses incurred.
    (2) It should be made clear to the newsman that there may be limits 
on movement from one participating unit to another. If helicopters or 
highline

[[Page 17]]

transfers are to be used, their limitations and hazards should be 
explained.
    (3) On operations where security is critical, embarkation of newsmen 
may be made contingent to their agreement to submit copy for security 
review. Under such circumstances, the reason for the review will be made 
clear prior to embarkation, and every effort will be made to avoid any 
interpretation of such review as ``censorship'' or interference with 
freedom of the press.
    (c) Arrangements aboard ship. (1) Where appropriate, a briefing 
should be held at the earliest convenient time after embarkation at 
which newsmen may meet the commanding officer and other key personnel 
and guests and at which previously supplied information is reviewed.
    (2) If feasible, an escort officer will be assigned to each newsman 
(or group of newsmen having similar requirements).
    (3) It should be reported in the ship's newspaper (and on radio and 
closed-circuit TV, if any) that newsmen will be embarked, giving their 
names and the media they represent.
    (4) If a correspondent is interested in home town material, 
personnel from his area should be contacted in advance, if possible, to 
determine if and when they would be available for interviews and photos.
    (5) Representatives of press associations and radio and TV networks 
will be embarked in the Exercise Commander's flagship or the Exercise 
Control ship, when possible. This ship should also control the ship-to-
shore press radio and teletype (RATT).
    (6) When more than one representative from the same medium is 
embarked, an attempt should be made to have them located at separate 
vantage points.
    (d) Communications. (1) Every effort will be made to provide 
suitable communication facilities for newsmen embarked (including 
equipment and personnel, if feasible).
    (2) All persons embarked with permission of proper authority and 
accredited as correspondents are eligible to file press traffic, as 
authorized by the procedures set forth in Naval Telecommunication 
Procedures (NTP-9), ``Commercial Communications.''
    (3) Navy radio or wire transmission facilities, where available, may 
be made available to news media (including accredited civilian 
photographers) when operational requirements permit, in accordance with 
instructions set forth by the Director of Naval Communications. This 
includes making live broadcasts or telecasts. (A live network broadcast 
or telecast must, however, be approved by the Chief of Information.)
    (4) Messages and instructions from editors and station managers to 
embarked newsmen will be handled as press traffic, as authorized in 
Naval Telecommunication Procedures (NTP-9).
    (5) Stations receiving press circuits will be authorized to receipt 
for press traffic without asking for time-consuming ``repeats.''
    (6) Under normal circumstances, press copy will be transmitted on a 
first-come, first-served basis; however, newsmen will be informed that 
the prerogative of limiting the amount to be filed during any one period 
rests with the Exercise Commander.
    (7) If it becomes necessary for operational reasons for newsmen to 
pool copy, such messages shall be filed as ``multiple address messages'' 
or book messages, as appropriate, or when requested by the newsmen 
concerned.
    (8) If the locale of the exercise permits newsfilm and press mail to 
be flown ashore, flights should be scheduled on a high priority basis to 
connect with scheduled commercial air traffic. Operational aircraft as 
well as scheduled government air flights should be considered for 
delivery of television news film, radio tapes and photography to the 
nearest commercial communications facility.
    (e) Voluntary submission of material by a newsman for security 
review. When a review is not required but is sought by the newsman, no 
attempt will be made to delete or change any material, whether or not it 
appears critical of the Navy or of naval personnel. If any classified 
information is included, the newsman will be asked to delete it. In 
addition, his attention will be drawn to

[[Page 18]]

any inaccurate or possibly misleading statements.

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



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

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



Sec.  705.16  Navy produced public information material.

    (a) Still photo--(1) General. (i) The policy and procedures given 
for media produced still photos in Sec.  705.10, apply to Navy produced 
photos.
    (ii) The Office of Information does not issue, nor have funds 
available for the purchases of, any photographic equipment or supplies 
for Navy commands. Details on the establishment of authorized 
laboratories and acquisition of equipment and supplies are given in the 
Manual of Navy Photography (OPNAVINST 3150.6D).
    (2) Photographic coverage of command events. (i) If more than two 
photographers are required to cover a public event, consideration should 
be given to having them wear appropriate civilian attire.
    (ii) Personnel in uniform who are amateur photographers and who are 
attending the event as spectators will not be discouraged from taking 
photos.
    (3) Unofficial photos taken by Navy personnel. (i) The following 
regulations apply to Navy civilian employees and to Navy personnel in 
transit through a command, as well as to active duty personnel assigned 
to the command.
    (ii) Personal cameras and related equipment are permitted on Navy 
ships, aircraft and stations at the discretion of the officer in 
command.
    (iii) An officer in command may screen all photos taken by naval 
personnel with personal cameras within the jurisdiction of the command 
to protect classified information or to acquire photos for official use, 
including public affairs. Photographs taken by bystanders at times of 
accident, combat, or similar significant events can be valuable for 
preparation of official report and public release. They should be 
collected for screening and review as expeditiously as possible.
    (iv) Amateur photographers should also be encouraged to volunteer 
the use of interesting or significant photos for public affairs use.
    (v) Photos made by naval personnel, with either personal cameras and 
film, Navy equipment and film, or any combination thereof, may be 
designated ``Official Navy Photo'' if it is considered in the best 
interests of the Navy.
    (A) All precautions will be taken to protect such film from loss or 
damage, and all unclassified personal photos not designated as 
``official'' will be returned to the owner immediately after review.
    (B) When a photo taken by an individual who is not an official 
photographer is selected for public affairs release:
    (1) The photographer will receive credit for his work in the same 
manner as an official photographer.
    (2) The original negative or transparency will be retained and 
assigned an official file number. It will then be handled like any other 
official Navy photograph.
    (3) At least one duplicate negative or transparency of each 
unclassified personal photo which has been designated as ``official'' 
will be prepared and delivered to the photographer. A black-and-white 
print may also be prepared for the photographer's personal use.

[[Page 19]]

    (b) Audiovisual. (1) The Chief of Information releases TV 
featurettes directly to local TV stations and the Office of 
Information's Branch Offices (NAV INFO's). After such featurettes have 
been cleared for public release by the Assistant Secretary of Defense 
(Public Affairs).
    (2) The Assistant Secretary of Defense (PA) must approve, prior to 
commitment of funds, the initiation of Navy audiovisual productions 
intended for public release.
    (3) Motion picture film.
    (i) Film of major news value will be forwarded immediately, 
unprocessed, to the Commanding Officer, U.S. Naval Photographic Center. 
The package should be labeled as follows:

                         News Film--Do Not Delay

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

                         News Film--Do Not Delay


The Commanding Officer of the Naval Photographic Center will be advised 
(with an information copy to the Chief of Information) of its 
forwarding, the subject, type and amount of footage, method of delivery, 
and estimated time of arrival in Washington.
    (ii) The original negative of motion picture photography of feature 
value (photography which will not lose its timeliness over a reasonable 
length of time) will be forwarded to the Naval Photographic Center, and 
a copy of the forwarding letter will be sent to the Chief of 
Information.
    (c) Fleet Home Town News Center (FHTNC). (1) All public affairs 
officers will assure that appropirate news and photo releases on 
personnel of their commands are regularly sent to the Fleet Home Town 
News Center.
    (2) Procedures, requirements and formats are contained in CHIN-
FOINST 5724.1.

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



Sec.  705.17  Participation guidelines.

    (a) The provisions of this section refer to participation by naval 
personnel and use of Navy facilities and material in events sponsored by 
nongovernment organizations except where otherwise stated.
    (b) In accordance with the established responsibilities of local 
officers in command, these officers will continue to determine whether 
facilities, equipment and personnel within their cognizance may be 
provided for such programs (except in the Washington, DC area where the 
Assistant Secretary of Defense (Public Affairs) is the authorizing 
authority).
    (c) Officers in command will ensure that participation is 
appropriate in scope and type, and is limited to those occasions which 
are: In keeping with the dignity of the Department of the Navy, in good 
taste and in conformance with the provisions of part 721 of this 
chapter. The national, regional, state or local significance of the 
event and the agency sponsoring the event will be used as guides in 
determining the scope and type of Navy participation to be authorized.
    (d) Participation in community relations programs is authorized and 
encouraged to accomplish the aims and purposes as set forth in Sec.  
705.18 (following). Where mutually beneficial to the Department of 
Defense and the public, support authorized and provided is always 
subject to operational considerations, availability of requested support 
and the policy guidance provided herein.
    (e) Military personnel, facilities, and materiel may be used to 
support non-government public affairs programs when:
    (1) The use of such facilities, equipment and personnel will not 
interfere with the military mission or the training or operational 
commitments of the command.
    (2) Such programs are sponsored by responsible organizations.
    (3) Such programs are known to be nonpartisan in character, and 
there is no reason to believe that the views to be expressed by the 
participants will be contrary to established national policy.
    (f) The sponsoring organizations or groups will be clearly 
identified in all cases where naval personnel participate as speakers, 
or military support is furnished.

[[Page 20]]

    (g) Public affairs programs sponsored by civilian organizations will 
not be cosponsored by a naval command unless expressly authorized by the 
Chief of Information.
    (h) Participation will not normally be authorized in public events 
when the presence of military participants deprives civilians of 
employment. Officers in command will screen all requests for use of 
material and personnel in Navy-sponsored social functions held off 
military installations.
    (i) Navy participation and cooperation must not directly or 
indirectly endorse, or selectively benefit, or appear to endorse, 
benefit or favor, any private individual, group, corporation (whether 
for profit or nonprofit), sect, quasi-religious or ideological movement, 
fraternal, or political organization, or commercial venture, or be 
associated with the solicitation of votes in a political election.
    (1) Providing use of government facilities, such as transportation, 
housing, or messing, at government expense to private groups is normally 
interpreted as a selective benefit or favor and is not authorized as 
part of a community relations program. Therefore, such provisions are 
normally not authorized as part of a community relations program, even 
though certain uses of facilities may be authorized under directives on 
domestic action or other programs.
    (2) The above does not bar private groups from providing 
entertainment on base. However, the appearance must be for entertainment 
and not for fund-raising, or any political or promotional purpose.
    (j) Community relations programs must always be conducted in a 
manner free from any discrimination because of race, creed, color, 
national origin, or sex.
    (1) Navy participation in a public event is not authorized if 
admission, seating and other accommodations and facilities are 
restricted in a discriminatory manner.
    (2) Exceptions for participation may be made under certain 
circumstances for an ethnic or ideological group when they do not 
entertain any purpose of discriminating against any other group. Any 
such exceptions must be referred to the Chief of Information for 
consideration.
    (3) Support to nationally recognized veterans' organizations is 
authorized when the participation is in support of positive programs 
which are not in themselves discriminatory.
    (4) Navy support to nonpublic school activities is authorized when 
the participation is clearly in support of educational programs or Navy 
recruiting.
    (5) Commands should ensure minority participation in all community 
relations activities and events, as appropriate. This includes but is 
not limited to the following:
    (i) Ensure that the minority community is aware of the procedure for 
obtaining Navy support for community events and that they are appraised 
of the use of Navy demonstration teams, units, and speakers.
    (ii) Encourage Navy involvement in, and attention to, local minority 
community events.
    (iii) Continue to cultivate a rapport with key members of all 
minority communities.
    (k) Participation is not authorized if there is fund raising of any 
type connected with the event, except as provided for in Sec.  705.34.
    (l) No admission charge may be levied on the public solely to see an 
Armed Forces demonstration, unit, or exhibit.
    (1) When admission is charged, the Armed Forces activity must not be 
the sole or primary attraction.
    (2) A general admission charge need not be considered prohibitory to 
Navy participation, but no specific or additional charge may be made 
because of Navy participation.
    (3) Participation shall be incidental to the event except for 
programs of a patriotic nature, celebration of national holidays, or 
events which are open to the general public at no charge for admission.
    (4) The provisions of this paragraph do not apply to the Navy's Blue 
Angel Flight Demonstration Team or to the Navy Band and other special 
bands engaged in authorized concert tours conducted at no additional 
cost to the government.
    (m) Some participation in or support of commercially sponsored 
programs

[[Page 21]]

on audio or visual media is allowable. See Sec. Sec.  705.7 and 705.8.
    (n) Some participation which supports commercial advertising, 
publicity and promotional activities or events is allowable. See section 
0405, par. 3 of the Navy Public Affairs Regulations.
    (o) Navy speakers may be provided for certain events at which other 
forms of Navy participation may not be appropriate. See section 0604, 
par. 8 of the Navy Public Affairs Regulations.
    (p) When participation is in the mutual interest of the Navy and the 
sponsor of the event, participation will be authorized at no additional 
cost to the government. Additional costs to the government (travel and 
transportation of military personnel, meals and quarters, or standard 
per diem allowances, etc.) will be borne by the sponsor.
    (q) Department of Defense policy prohibits payment by the Armed 
Forces for rental of exhibit space, utilities, or janitorial costs. 
Other exceptions may be given under unusual circumstances.
    (r) Navy participation in professional sports events and post-season 
bowl games will frequently be authorized at no additional cost to the 
government, will emphasize Joint Service activity when possible, and 
must support recruiting programs. Chief of Information approval is 
required.
    (s) Navy participation in public events shall be authorized only 
when it can be reasonably expected to bring credit to the individuals 
involved and to the Armed Forces and their recruiting objectives. Naval 
personnel will not be used in such capacities as ushers, guards, parking 
lot attendants, runner or messengers, baggage handlers or for crowd 
control, or in any installations.
    (t) Maximum advantage of recruiting potential will be taken at 
appropriate events for which Navy participation has been authorized.
    (u) Navy support will not normally be authorized for commercially-
oriented events such as shopping center promotions, Christmas parades, 
and other such events clearly sponsored by, or conducted for the benefit 
of commercial interests. However, this policy does not preclude 
participation of Navy recruiting personnel and their organic equipment, 
materials and exhibits so long as their participation is not used to 
stimulate sales or increase the flow of business traffic or to give that 
appearance. Requests for exceptions will be considered on a case-by-case 
basis by the Chief of Information.
    (v) Questions as to appropriateness of Navy participation, or as to 
existing Navy and OASD (PA) policy, may be referred to the Chief of 
Information.
    (w) Procedures for requesting participation are addressed in Sec.  
705.21.

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



Sec.  705.18  Authority and coordination.

    (a) Each naval command will coordinate its community relations 
program with the senior authority having responsibility for community 
relations in its area (District Commandant, Unified Commander, or 
other).
    (b) Within policy limitations outlined in this section, the command 
receiving a request for Navy participation, and processing the required 
resources, has the authority to process the request and provide the 
support requested.
    (c) Requests for support exceeding local capability, or requiring 
approval from higher authority, or requiring an exception to policy will 
be referred as directed in Sec.  705.21 for determination.
    (d) The Assistant Secretary of Defense (Public Affairs) has the 
overall responsibility for the Department of Defense community relations 
program. Civilian sponsors should be advised to address requests for 
approval of the following types of programs directly to the Director of 
Community Relations, Office of the Assistant Secretary of Defense 
(Public Affairs), Pentagon, Washington, DC 20301:
    (1) National and international events, including conventions, except 
those taking place in overseas areas which are primarily of internal 
concern to Unified Commanders.
    (2) Events outside the United States which have an interest and 
impact extending beyond the Unified Command areas, or which require 
assistance from outside the command area.
    (3) Public events in the Washington, DC area.
    (4) Aerial, parachute, or simulated tactical demonstrations held in 
the

[[Page 22]]

public domain, except those held in areas assigned to overseas Unified 
Commands.
    (5) Aerial reviews on military installations within the United 
States if the review involves more than one Service.
    (6) Programmed national sports, professional athletic events, formal 
international competitions, and contests between a Navy and professional 
team in the public domain. See section 0605, par. 18 of the Navy Public 
Affairs Regulations.
    (7) Performing Navy units appearing on regional or national 
television.
    (8) Overall planning for Armed Forces Day (not including local 
activities).
    (9) Granting exceptions to policy.
    (e) Overseas, Unified Commanders are designated to act for and on 
behalf of the Secretary of Defense in implementing community relations 
programs within their command areas and in granting any exceptions to 
policy or regulations. This authority may be delegated.
    (1) Policy, direction and guidance for Unified Command community 
relations programs are provided to Navy components of these commands by 
the Unified Commander concerned.
    (2) Authority of the Commander-in-Chief, Pacific extends to planning 
and execution of community relations programs in Alaska and Hawaii. 
Participation in events held in Alaska and Hawaii will be governed by 
the same principles as policies applicable to other states.
    (3) Community relations programs and events taking place within the 
United States which have an effect on a Unified or Specified Command as 
a whole, or are otherwise of significant concern to the Unified Command, 
require complete coordination through appropriate channels between the 
Unified Command and naval activities concerned.
    (4) Unified Commanders overseas requiring Navy support for a 
community reltaions program or participation in a public event should 
coordinate their requirements with the appropriate Navy component 
command.
    (f) The Secretary of the Navy will plan and execute Navy community 
relations programs and approve Navy participation in public events not 
otherwise reserved or assigned to the Secretary of Defense. This 
authority may be delegated.



Sec.  705.19  Financing.

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



Sec.  705.20  Use of Navy material and facilities.

    (a) The loan of equipment and permission to use facilities will be 
dependent on the following:

[[Page 23]]

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

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



Sec.  705.21  Requests for Navy participation.

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



Sec.  705.22  Relations with community groups.

    (a) Naval commands will cooperate with and assist community groups 
within their capabilities, to the event authorized by current 
instructions, and will participate in their activitis to the extent 
feasible.
    (b) Navy commands will encourage membership of personnel in 
community organizations.
    (c) Officers in command will withhold approval of requests from 
community groups, organizations or individuals whose purposes are 
unclear, pending advice from the Chief of Information.
    (d) Commands may make facilities, less housing and messing, 
available to community groups, at no expense to the government, when it 
is in the best interest of the Navy to do so. Mess facilities may not be 
used for meetings of civic groups or other asociations unless all the 
members of the group concerned are authorized participants of the mess 
as prescribed in NAVPERS 15951, except as provided below:

[[Page 24]]

    (1) Requests to make open mess facilities available to professional 
or technical seminars or civic groups meeting in connection with an 
official visit to the activity may be submitted to the officer in charge 
of the mess, or other appropriate authority. Such requests may be 
approved when it is shown that the inspection of the activity or the 
holding of a professional seminar is of principal importance and the use 
of mess facilities is incidental thereto.
    (2) Because of the exceptional nature of the Navy League, as 
recognized by the Secretary of the Navy, open mess facilities may be 
used for luncheon or dinner meetings of Navy League Councils, but not 
more often than once per quarter per group.
    (e) Relations with Industry and Labor in the Community (refer to 
SECNAVINST 5370.2F and DOD Directive 5500.7):
    (1) Relations with Navy contractors and with industry and business 
in general are the responsibility of the officer in command, with the 
assistance of his public affairs officer.
    (2) Navy commands will cooperate with industry and its 
representatives in planning and executing community relations projects 
of mutual interest.
    (i) Visits to commands will be scheduled for industrial and employee 
groups under the same conditions as for other civilian groups.
    (ii) A contractor may be identified in a news release, exhibit, or 
the like whenever the major responsibility for the product can be 
clearly and fairly credited to him. In such cases, both the 
manufacturer's name for the product and the Navy designation of it will 
be used.
    (iii) Commands will not solicit, nor authorize others to solicit, 
contractors to provide advertising, contributions, donations, 
subscriptions, etc. Where there is a legitimate need for industrial 
promotion items, such as scale models, the command will contact the 
Chief of Information for advice as to the procedure for requesting 
procurement.
    (iv) Similarly, if Defense contractors wish to distribute 
information material through official Navy channels, the Office of 
Information will be queried as to the desirability and feasibility of 
undertaking the desired distribution.
    (v) Visits to contractor facilities are governed by the provisions 
of DOD Manual 5520.22-M (Industrial Security Manual for Safeguarding 
Classified Information). If nationally known press representatives will 
be involved, prior approval must be obtained both from the contractor 
(via the Chief of Information) and from the Assistant Secretary of 
Defense (Public Affairs).
    (3) Commands will maintain the same relationship with labor unions 
as with other community groups and will not take action in connection 
with labor disputes. Personnel inadvertently or incidentally involved in 
labor disputes will consult officers in command for guidance.
    (f) Emergency Assistance to the Community:
    (1) Navy commands will offer and provide assistance to adjacent 
communities in the event of disaster or other emergency.
    (2) The Chief of Information will be advised immediately of action 
when taken, and copies of subsequent reports to the Chief of Naval 
Operations will be forwarded to the Chief of Information.
    (3) Navy commands will participate in planning by local Civil 
Defense officials.

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



Sec.  705.23  Guest cruises.

    (a) General policy. (1) The embarkation of civilian guests in Navy 
ships is appropriate in the furtherance of continuing public awareness 
of the Navy and its mission.
    (i) Examples of embarkations for public affairs purposes are (but 
not limited to): Individuals, community service clubs, civic groups, the 
Navy League, and trade and professional associations.
    (ii) Embarkation of media representatives on assignment is discussed 
in Sec.  705.14.
    (iii) Other categories may be established by the Secretary of the 
Navy, subject to the approval of the Secretary of Defense.
    (2) It has also been demonstrated that the occasional embarkation on 
cruises of families and personal guests

[[Page 25]]

of naval personnel has contributed materially to the morale of the 
family circle and has instilled in each individual a sense of pride in 
his ship. For further information see OPNAVINST 5720.2G.
    (3) Embarkations should be conducted within the framework of 
regularly scheduled operations; underway periods solely to accommodate 
guests are not authorized.
    (4) Commander-in-Chief, Pacific Fleet, Commander-in-Chief, Atlantic 
Fleet, Commander-in-Chief, U.S. Naval Forces Europe, Commander Military 
Sealift Command (and their subordinate commands if so designated), Chief 
of Naval Education and Training, and District Commandants may authorize 
the embarkation of female civilians for daylight cruises. Embarkation of 
civilians for overnight cruises must be authorized by the Chief of Naval 
Operations via the Chief of Information.
    (5) All guest visits are normally authorized on an unclassified 
basis.
    (6) In all instances, due precautions must be taken for the safety 
of the guests. (See section 0403, pars. 6(b) and, 6(e), of the Navy 
Public Affairs Regulations, for procedures to be followed in the case of 
death of, or injury to, civilians embarked on naval ships.)
    (7) For further information on policy, procedures, and eligibility 
criteria, see OPNAVINST 5720.2G.
    (b) Authority. (1) Authority to establish procedures for the conduct 
of the embarkation of guests for public affairs purposes (including the 
Secretary of the Navy Guest Cruise and Guest of the Navy Cruise 
programs, which are discussed in Sec.  705.24) is vested in the 
Secretary of the Navy. This authority is limited only insofar as the 
Chairman of the Joint Chiefs of Staff and the commanders of the Unified 
and Specified Commands (and their component commanders, if so 
designated) have the authority to use Navy ships to embark individuals 
other than news media representatives for public affairs purposes.
    (i) Public affairs embarkations originating within the geographical 
limits of the Unified Command will be approved by and coordinated with 
the commanders of such commands. This authority may be delegated. 
Requests for such embarkations originating with the subordinate fleet or 
force command of a Unified Command will be submitted via the operational 
chain of command, to the appropriate commander of the Unified Command, 
unless delegated.
    (ii) Requests for public affairs embarkations originating from any 
Navy source other than the Chairman of the Joint Chiefs of Staff, or the 
Unified and Specified Commanders or their subordinate commands, will be 
submitted to the Chief of Information, who will effect coordination with 
the Chief of Naval Operations and/or the Assistant Secretary of Defense 
(Public Affairs) as appropriate.
    (iii) When guests debark in a foreign port which is in the 
geographic area of a Unified Command other than that in which the cruise 
originated, the Chief of Information will coordinate travel by obtaining 
concurrence of all appropriate commanders and the approval of the Chief 
of Naval Operations, and the Assistant secretary of Defense (Public 
Affairs) as appropriate.
    (2) Officers in command to whom authority to embark guests for 
public affairs purposes is delegated will make maximum use of this 
authority.
    (c) Secretary of the Navy Guest Cruise and Guest of the Navy Cruise 
Programs. (1) The objective of these two programs is: To expose top-
level and middle-level opinion leaders in the fields of business, 
industry, science, education, and labor to the operation of the U.S. 
Navy, in order that they may gain a better understanding of its 
capabilities and problems, the complicated nature of modern sea-based 
equipment, and the high levels of responsibility and training required 
of Navy men and women.
    (2) In addition to policy contained in paragraph (c)(1) of this 
section, the following policy guidelines apply to the conduct of the 
Secretary of the Navy Guest Cruise and the Guest of the Navy Cruise 
Programs.
    (i) Secretary of the Navy Guest Cruise Program. (A) Only aircraft 
carriers and cruisers will be used.
    (B) Cruises will be conducted once each quarter on each coast, 
contingent upon the availability of appropriate ships.
    (C) The optimum number of guests is 15.

[[Page 26]]

    (D) Guests will be drawn from top-level executives and leaders who 
have not had previous exposure to the Navy. ``Previous exposure'' is 
defined as active or reserve service in the U.S. Navy or U.S. Marine 
Corps within the last 10 years; membership in the Navy League or any 
other Navy-oriented organization; or participation in a cruise on a U.S. 
Navy ship in the last 10 years.
    (E) Whenever feasible, Secretary of the Navy Guests will be greeted 
by CINCLANTFLT or CINCPACFLT, or in their absence by the SOPA. 
Comprehensive unclassified briefings will be given dealing with the 
Navy's mission, fleet operations, and current problems.
    (F) Cruises will vary in length from 3 to 7 days, when appropriate, 
to conform with the operating schedule of the ship.
    (ii) Guests of the Navy Cruise Program. (A) All types of ships will 
be used. This will include carriers when available, after selection of a 
cruise for the Secretary of the Navy Guest Cruise Program.
    (B) Guest of the Navy Cruise guests will be drawn from middle-level 
executives and leaders who have not had previous exposure to the Navy. 
Guests should include persons who have direct impact on recruiting, such 
as secondary school principals, guidance counselors, coaches and 
teachers.
    (C) Cruises of relatively short duration (3 to 5 days) are 
preferred, although cruises up to 7 days are authorized. Protracted 
cruises will not be approved except for special circumstances.
    (D) Invitations will be extended by the District of Commandants. 
Invitations will include:
    (1) Statement of the purpose of the Guest of the Navy Cruise 
Program.
    (2) Authorization for embarkation and, if applicable, for COD 
flights, with instructions for reporting on board.
    (3) Name and rank of the commanding officer and, if applicable, name 
and rank of embarked flag officer.
    (4) A caution that guests should not accept the invitation unless 
they are in good health.
    (5) Statement to the effect that the tempo of operations might cause 
changes in scheduling which could result in the invitation having to be 
withdrawn.
    (E) The following necessary information may be included separately 
with a letter of invitation: Recommended wardrobe, passport and 
immunization requirements, availability of emergency medical and dental 
facilities, ship's store and laundry facilities, statement that guest's 
use of a camera will be authorized subject to certain restrictions, and 
a listing of those restrictions. In addition, the following statement 
will be included with each invitation, or form part of the attached 
information sheets:

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

    (iii) Applicable to both programs. (A) Guests will provide their own 
transportation from home to the ship and return, and must reimburse the 
Navy for living and incidental expenses while embarked so that the 
program may be conducted at no additional expense to the government.
    (B) Because the number of billets available to accommodate all of 
the potential guests is limited, the guest's opportunity to communicate 
his experience to his associates must be considered. For this reason, 
one of the criteria for selection of guests will be their level of 
activity in civic, professional, and social organizations. In nominating 
and selecting guests, effort

[[Page 27]]

will be made to ensure that minority citizens are included as 
appropriate.
    (C) Atlantic cruises will be made on ships operating between East 
Coast ports, or between CONUS and the U.S. Caribbean ports of San Juan, 
PR, or Charlotte Amalie (St. Thomas), Virgin Islands. Pacific cruises 
will be made on ships operating between West Coast ports: Between CONUS 
and ports in Hawaii, Alaska, Mexico or Canada; or between ports within 
Hawaii or Alaska.
    (D) Guests will be informed of security restrictions. Unclassified 
photography should be permitted on board, as pictures renew guests' 
feelings of identification with a ship. Guests will be advised of areas, 
however, where photography is prohibited, and security regulations will 
be courteously but firmly enforced.
    (E) Guests will be billeted in officers quarters and normally 
subsisted in the wardroom. It is not necessary that guests be assigned 
individual rooms. Billeting with ship's officers promotes mutual 
understanding, and guests feel more closely identified with the ship's 
company. They will be invited to dine at least once in each mess on 
board, if the length of the cruise permits. Guests will be encouraged to 
speak freely and mingle with the crew.
    (F) Guests will be accorded privileges of the cigar mess 
commissioned officers mess (open) ashore--with the exception of package 
store privileges--and the use of ship's or Navy Exchange laundry and 
tailor shops. Other Navy Exchange privileges will be limited to purchase 
of items for immediate personal use.
    (G) Only emergency medical and dental care will be provided and then 
only where civilian care is not conveniently available.
    (1) In the event of injury to civilians embarked in Navy ships and 
aircraft or visiting naval activities, commanding officers will notify 
the Chief of information, the appropriate Commandant, and operational 
commanders, by message, of the injury and action taken.
    (2) In the event of an emergency not covered by Navy Regulations, 
the facts and circumstances will be reported immediately to the 
Secretary of the Navy.
    (H) Guests may be allotted time for side trips at their own expense 
when an itinerary includes naval activities or ports adjacent to 
recognized points of interest.
    (I) As a souvenir of the cruise, it is suggested that guests be 
provided with a photograph of the ship, perhaps suitably inscribed by 
the commanding officer prior to debarkation.
    (J) Any publicity will be limited to that initiated by the 
participants. Navy-sponsored publicity will be avoided unless sought by 
the participants. At the same time, media inquiries or inquiries from 
the general public will be answered fully, the purposes of the cruise 
program outlined and the fact stressed that no cost to the government is 
incurred.

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



Sec.  705.24  Exhibits.

    (a) Navy exhibits are representations or collections of naval 
equipment, models, devices and information and orientation material 
placed on public display for information purposes before audiences at 
conventions, conferences, seminars, demonstrations, exhibits, fairs, or 
similar events. Also included are general purpose displays in public 
buildings or public locations. Museums also occasionally request a Navy 
exhibit on a permanent or temporary loan basis.
    (1) Exhibits may be displayed in any appropriate location or event 
(including commercially owned spaces such as shopping centers, malls, 
etc.) provided it is clearly established that such areas are places the 
general public frequents and that the exhibit is not for the purpose of 
drawing the public to that location, and that it is determined that 
participation is in the best interests of the Department of Defense and 
the Department of the Navy.
    (2) [Reserved]
    (b) Exhibits will be used for the following purposes only:
    (1) To inform the public of the Navy's mission and operations.
    (2) To disseminate technical and scientific information.

[[Page 28]]

    (3) To assist recruiting of personnel for Navy military service and 
for civilian employment in the Department of the Navy.
    (c) Exhibit requests and procedures:
    (1) Requests for Navy exhibits, other than local exhibits may be 
forwarded to the Navy Recruiting Exhibit Center via the local Navy 
recruiter with an information copy to the Chief of Information. The 
primary mission of the Navy Recruiting Exhibit Center is to support 
local Navy recruiters. Requests for exhibits for community relations 
events will be considered favorably only when not in conflict with 
recruiting requirements.
    (i) Requests for exhibits must be submitted well in advance of their 
proposed dates of use.
    (ii) Requests for mobile exhibits requiring tractor-trailer 
transportation should be forwarded prior to November 15th previous to 
the year desired. A tour itinerary of mobile exhibits will then be 
established for the following year.
    (iii) The period of time for which an exhibit is authorized will be 
determined by the nature of the event and the type of exhibit (e.g., 
equipment from local resources used for a local celebration would 
normally not be exhibited for more than three days; but, a formal 
exhibit at an exposition might remain for the duration of the event).
    (2) The office of the Assistant Secretary of Defense (Public 
Affairs) is the approving authority for Navy exhibits in events of 
international or national scope, or those requiring major coordination 
among the Armed Forces, or with other agencies of the Federal 
Government.
    (i) All Navy activities will forward such requests to the Chief of 
Information for coordination with the OASD (PA).
    (ii) Subordinate commands of a Unified Command will forward exhibit 
requests of the above types to the Unified Commander concerned, via the 
chain of command.
    (3) The official OASD(PA) Request Form for Armed Forces 
Participation will be used. See Armed Forces Request Form, Sec.  705.36.
    (4) Requests for exceptions to policy for exhibit displays should be 
forwarded to the Officer in Charge, Navy Recruiting Exhibit Center.
    (5) Policy guidance on costs is defined in Sec.  705.19.
    (6) Occasionally, a project officer will be assigned to coordinate 
use of the exhibit with the sponsor.
    (i) Project officers are normally commissioned officers, equivalent 
civilian personnel, local recruiters or reservists, who have been 
assigned the responsibility of coordinating Service participation in a 
special event.
    (ii) The project officer should establish immediate liaison with the 
sponsor.
    (iii) The project officer should assist in determining the actual 
location of the exhibit, make arrangements for assembling and 
disassembling the exhibit material, and supervise these operations.
    (iv) The project officer will ensure Navy and Department of Defense 
policies are followed, and will coordinate local news releases 
concerning Navy participation.

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



Sec.  705.25  Navy Exhibit Center.

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

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



Sec.  705.26  Exhibit availability report.

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

[[Page 29]]

in-Charge, Navy Recruiting Exhibit Center, Washington Navy Yard, 
Washington, DC 20374.

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



Sec. Sec.  705.27-705.28  [Reserved]



Sec.  705.29  Navy Art Collection.

    (a) The U.S. Navy has continued to record its military actions, 
explorations, launchings, etc., in fine art form since before World War 
II. The present Navy Combat Art Collection contains over 4,000 paintings 
and sketches. A significant number of new works is being added each 
year. The combat artists of World War II have been replaced by civilian 
artists who witness today's Navy in action, record their impressions, 
and donate their works of art to the Department of the Navy.
    (1) The voluntary services of most of the artists are arranged 
through the Navy Art Cooperation and Liaison Committee (NACAL) which 
operates in close cooperation with the Salmagundi Club of New York City 
and the Municipal Art Department of the City of Los Angeles.
    (2) The Chief of Information has established liaison with the 
Salmagundi Club in order to maintain a continuing historical record of 
the Navy. Organized in 1871, the Salmagundi Club is the oldest club of 
professional artists in the United States. The Club appointed a Navy Art 
Cooperation and Liaison (NACAL) Committee to advise the Navy on art 
matters and to nominate artists for assignment to paint Navy activities 
through the world. The Chief of Information reviews the nominations, and 
issues SECNAV invitational travel orders to each artist approved.
    (3) The following policy pertains:
    (i) All finished art portraying the Navy and produced by Navy 
artists on active duty for that purpose and by guest artists working 
under invitational travel orders becomes the property of the Department 
of the Navy.
    (ii) Civilian artists selected to paint Navy life through 
cooperation of a private sponsor and the Chief of Information may be 
authorized by the Chief of Information or the Office of the Secretary of 
Defense to retain their works.
    (iii) Paintings, sketches, drawings and other forms of artwork will 
not be accepted by the Department of the Navy unless all reproduction 
rights are surrendered and unless they become the permanent property of 
the Department of the Navy.
    (iv) Requests for reproduction of combat art for use in advertising 
or publication will be directed to the Chief of Information.
    (b) Responsibilities:
    (1) The Chief of Information exercises supervision and control of 
the Navy Art Program and issues SECNAV invitational travel orders and 
letters of invitation to artists selected for assignment.
    (2) When directed by the Chief of Information or other appropriate 
Navy authority, a NACAL project officer will perform the following 
functions:
    (i) Act as a local liaison officer for the NACAL Program.
    (ii) Assist NACAL artists on assignments within his area.
    (3) The Curator Navy Combat Art Center, in coordination with the 
Chief of Information, will:
    (i) Plan trips for the NACAL Program.
    (ii) Approve requests for art displays.
    (iii) Provide logistic support for the maintenance, storage, 
shipment and display of the Navy Combat Art Program.
    (c) Requests for art displays should be forwarded to the Director, 
Community Relations Division, Office of Information, Navy Department, 
Washington, DC 20350.
    (d) Exhibition of Navy Art:
    (1) Operation Palette I'' is a carefully selected group of 75 to 100 
combat art paintings depicting Navy and Marine Corps activities during 
World War II. The schedule of ``Operation Palette I'' is promulgated by 
the Officer-in-Charge, Navy Recruiting Exhibit Center and supervised by 
the Chief of Information, with the concurrence of District Commandants. 
Schedules are arranged so that the exhibition travels within a 
particular Naval District for several months at a time. District 
Commandants designate project officers for each city where ``Operation

[[Page 30]]

Palette I'' is exhibited. The project officer makes all arrangements, 
including suitable location, publicity and personnel to assist the chief 
petty officer who travels with the collection. Promotional kits are 
provided by the Officer-in-Charge, Navy Recruiting Exhibit Center. 
Requests for exhibitions are not desired, since the collection always 
travels on a prearranged tour.
    (2) ``Operation Palette II'' consists of 75 to 100 paintings 
representative of the worldwide operations of the contemporary Navy and 
Marine Corps * * * the Navy today * * *, and travels on prearranged 
tours similar to ``Operation Palette I.''
    (3) Other exhibitions of original paintings from the Combat Art 
Collection may be scheduled on request by either Navy commands or 
civilian art groups. Requests should be directed to the Director, 
Community Relations Division, Office of Information, Navy Department, 
Washington, DC 20350 and contain the following:
    (i) The occasion.
    (ii) Inclusive dates. (Not less than 10 days or more than 90 days 
sub-custody.)
    (iii) Expected attendance and type of publicity planned.
    (iv) Amount of space allotted.
    (v) If Navy-sponsored show, certification that 24-hour security will 
be provided for the paintings while in custody.
    (vi) If civilian-sponsored show, statement that transportation and 
insurance requirements will be met. (Physical security must be available 
for exhibit, with an attendant on duty during open hours and locked 
building or other means of protecting exhibit when closed to the 
public.)
    (e) Navy Combat Art Lithograph Program:
    (1) This program makes available full color, high quality 
lithographs which are faithful reproductions of the original artwork on 
quality paper of selected works of art from the Navy Art Collection.
    (2) Additional information and ordering details are contained in 
CHINFO NOTICE 5605, which is issued periodically.

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



Sec.  705.30  Aerospace Education Workshop.

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



Sec.  705.31  USS Arizona Memorial, Pearl Harbor.

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

[[Page 31]]



Sec.  705.32  Aviation events and parachute demonstrations.

    (a) Armed Forces aircraft and parachutists may be authorized to 
participate in appropriate in public events which meet basic Department 
of Defense criteria. This participation may be one of the officially 
designated military flight or parachute demonstration teams, flyover by 
aircraft, a general demonstration of capabilities by aircraft, or the 
static display of aircraft.
    (b) Events which are appropriate for aviation participation include: 
Dedication of airports; aviation shows; aircraft exposition; air fairs; 
recruiting programs; civic events which contribute to the public 
knowledge of naval aviation equipment and capabilities and to the 
advancement of general aviation; public observances of certain national 
holidays (Armed Forces Day, Veterans Day, Memorial Day and Independence 
Day); national conventions of major veterans organizations; memorial 
services for deceased, nationally recognized dignitaries; and receptions 
for foreign dignitaries.
    (c) Support of Armed Forces recruiting is the primary purpose of 
military flight and parachute demonstration teams. Armed Forces 
recruiting teams are available to assist sponsors in coordinating 
advance publicity and information coverage to insure maximum exposure 
for the demonstration team and the event. This assistence is at no 
additional expense to the sponsor; however, the sponsor is required to 
give full support to the recruiting effort and to cooperate fully with 
local service officials. Such support could include (but is not limited 
to) the provision of prime space for recruiters at the event site and 
the provision of courtesy passes in controlled quantities to recruiters 
for the purpose of bringing recruit prospects and recruiting advisors to 
view the show.
    (d) DOD support of air show fund raising efforts in the form of 
provision of military flight and parachute demonstration teams is 
limited to charities recognized by the Federal Services Fund-Raising 
Program. These include such agencies as the United Givers Fund, 
Community Chests, National Health Agencies (as a group), International 
Service Agencies and the military aid societies. Armed Forces support to 
fund-raising events for a single cause, even though the charity is a 
member of a federated or joint campaign or donates in part to one or 
several of the campaigns, is inconsistent with the basic position of 
Department of Defense. The name of the nearest Combined Federal Campaign 
coordinator will be supplied to the sponsor, or if he chooses, he might 
elect to work with the local United Givers Fund (Community Chest). As a 
minimum, the sponsor must agree to provide at least half of the profit 
above costs to the Combined Federal or United Givers Campaigns to 
receive Armed Forces support.
    (e) Request form. This form is used to request military flight and 
parachute demonstration team participation in public events. The 
information is required to evaluate the event for appropriateness and 
compliance with Department of Defense policies and for coordination with 
the units involved.

                                 General

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

Name:___________________________________________________________________
Address:________________________________________________________________
City, State: _________ Zip:_____________________________________________
Telephone: (Office) ____ (AC)___________________________________________
________________________________________________________________________
(home) __________ (AC)__________________________________________________
________________________________________________________________________
6. Purpose of this event (explain fully):_______________________________
________________________________________________________________________
7. Expected attendance:_________________________________________________
8. Is this event being used to promote funds for any purpose?___________
9. Admission charge:____________________________________________________
``Charge for seating:___________________________________________________
10. Disposition of profits which may accrue:____________________________

[[Page 32]]

11. Will admission, seating and all other accommodations and facilities 
connected with the event be available to all persons without regard to 
race, creed, color or national origin?__________________________________
12. Will the standard Military Services allowance for quarters and meals 
be provided by the sponsor for Armed Forces participants?_______________
13. Will transportation at sponsor's expense be proviced for Armed 
Forces participants between the site of this event and hotel?
________________________________________________________________________
14. Will telephone facilities, at sponsor's expense, be made available 
for necessary official communications regarding the event?______________
________________________________________________________________________
15. It may be necessary for representatives of the requested unit to 
visit the site prior to the event. Will transportation, meals and hotel 
accommodations be provided by the sponsor?______________________________
________________________________________________________________________
16. Please describe the space which will be provided to recruiters:_____
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
17. Designate charity beneficiary(s):___________________________________
________________________________________________________________________

             Flight Team, Parachute Team, Flyovers, Statics

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

Flight Team Demonstration....................................  .........
U.S. Navy Blue Angels........................................  .........
U.S. Air Force Thunderbirds. (Cost for either team is          .........
 $1500.00 for each day team scheduled at your event.)........
Aircraft Flyover: (No cost to sponsor.)......................  .........
Static Aircraft: (Cost is $25.00 per day per crewmember.)....  .........
U.S. Army Silver Eagles: (Cost for this team is $750.00 for    .........
 each day team scheduled at your event.).....................
Parachute Team Demonstration U.S. Army Golden Knights: (Cost   .........
 is $25.00 per day per man for each day required to support
 your event. Team consists of 10-14 personnel.)..............
(Other)......................................................  .........
 

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

                              Certification

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

Signature:______________________________________________________________
                                              (Sponsor's Representative)

Date of Request:________________________________________________________

[[Page 33]]

Return this form to:____________________________________________________

    (f) Definitions. A flight team demonstration is an exhibition of 
precision aerial maneuvers flown by the official Department of Defense 
military flight demonstration teams, the U.S. Air Force Thunderbirds, 
the U.S. Navy Blue Angels and the U.S. Army Silver Eagles. An aircraft 
demonstration is a flight demonstration by aircraft other than those of 
the teams listed above and designed to portray tactical capabilities of 
aircraft by a single aircraft (i.e., the U.S. Marine Corps ``Harrier'') 
or group of aircraft, including air-to-air refueling, helicopter hover 
and pick-up or rappelling capabilities, Low Altitude Parachute 
Extraction System, maximum performance take-off, etc. A parachute 
demonstration is an exhibition of free-fall and precision landing 
techniques by the official DOD parachute team, the U.S. Army Golden 
Knights. Other parachute demonstrations can be performed by the U.S. 
Navy Parachute Team, or another unofficial team or sports parachute club 
representing the Department of Defense. A flyover is a flight of not 
more than four aircraft over a fixed point at a specific time and does 
not involve precision maneuvers or demonstrations. Flyovers are 
authorized for certain events when the presence of Armed Forces aircraft 
overhead would contribute to the effectiveness of the event based on a 
direct correlation between the event and the aircraft. Flyovers can also 
be authorized for occasions primarily designed to encourage the 
advancement of aviation and which are of more than local interest. 
Flyovers by any of the official DOD flight teams are not authorized. 
Parades are not considered an appropriate event for authorizing flyover 
support. The static display of aircraft is the ground display of any 
military aircraft and its related equipment, not involving flight, 
taxiing or starting of engines.
    (g) Events which are appropriate for Armed Forces aviation 
participation in the public domain include such activities as dedication 
of airports and facilities, aviation shows, expositions, and fairs; and 
other civic events which contribute to the public knowledge of the U.S. 
Military Services aviation equipment and capabilities. The number one 
priority for utilization of military aircraft and parachutists in such 
events in the public domain is to support the recruiting aspects of the 
all-volunteer force concept. The approval of any such military 
demonstration will only be authorized if a maximum recruiting benefit 
exists at each location.
    (h) Costs. (1) The cost for either the United States Air Force 
Thunderbirds or the United States Navy Blue Angels will be $1500 for 
each day a demonstration is scheduled. If the United States Army Golden 
Knights precision parachute team is scheduled for your event, the cost 
will be $25 per man per day for each day required to support your event, 
to include the days of travel if required. Under normal conditions, this 
group is comprised of fourteen members: Nine jumpers, three aircraft 
crewmen, one ground controller, and a narrator. The sponsor will be 
advised by the Golden Knights in advance of the costs related to his 
event for which the government must be reimbursed. The United States 
Army Silver Eagles helicopter team, composed of seven helicopters, 
performs precision formation manuevers and solo helicopter aerobatics to 
demonstrate the capabilities of modern helicopters and the skill of Army 
aviators. The Silver Eagles performance lasts about 30 minutes and is 
conducted entirely in full view of spectators on the crowd line. The 
cost for the team is $750 for each day a demonstration is scheduled. The 
sponsor should make a check payable to the Treasurer of the United 
States for the required amount and present it to the appropriate 
demonstration team commander in advance of the scheduled event.
    (2) Costs associated with static aircraft are normally $25 per day 
for each crew member plus possible fuel requirements discussed below. 
Charges for any other military parachuting demonstration (i.e., U.S. 
Navy Parachute Team, local Armed Forces sport parachute clubs, etc.) 
will depend on the number of personnel and transportation involved. 
Checks payable to the Treasurer of the United States should be made 
available to the appropriate aircraft commander for static displays or 
parachute team commander upon arrival at the event.

[[Page 34]]

    (i) As noted in the Department of Defense request form, the sponsor 
is required to pay per diem costs for team and static display crew 
members except for flyovers or aircraft demonstrations not involving 
landing.
    (3) These costs are binding after a team or crew personnel have 
arrived at the show site, even though weather conditions or other 
unforeseen circumstances force the event to be cancelled. These funds 
provided by the sponsor will be utilized by team members or crew 
personnel for paying housing and subsistence costs. The actual breakdown 
of the per diem involved is $13.20 for housing, $9.30 for subsistence, 
and $2.50 for incidental expenses. In those locations where housing and 
subsistence cannot be procured for these amounts, it will be the 
responsibility of the sponsor to absorb the additional cost. As stated, 
these costs will cover participation but does not include certain ground 
support requirements (i.e., ground transportation, telephone, etc.) to 
be furnished by a sponsor as outlined in a team support packet.
    (4) Other costs that could be incurred by the sponsor are in the 
area of the sponsor's agreement to provide suitable aircraft fuel 
(defined as JP jet fuel or aviation gas and lubricants) at U.S. 
Government contract prices. Where fuel is available from local military 
stocks--usually military installations--or when fuel is available from 
commercial into-plane contract locations, the U.S. Government will pay 
all fuel costs. If military contract fuel is not available at the show 
site, the sponsor will be required to pay all costs above the contract 
price and that price charged by the local supplier. However, the sponsor 
may choose to transport military contract fuel from a military base or a 
commercial airport having a U.S. Government into-plane contract. In this 
case, his cost would be only the transporting and handling of this fuel 
to the show site.
    (5) The Department of Defense no longer requires the sponsor to 
provide the Department with a public liability and property damage 
insurance policy. This should in no way deter the sponsor from obtaining 
such liability and property damage insurance he feels is necessary for 
his own protection. Due to the costs that could accrue to the sponsor in 
case of cancellations because of inclement weather, the sponsor may wish 
to consider rain insurance to protect his investment. Previous sponsors 
have advised us that such insurance is available from most commercial 
companies.
    (i) Other information. (1) Flight and/or parachute team 
demonstrations are restricted to appropriate events at airports, over 
open bodies of water, or over suitable open areas of land. For the U.S. 
Air Force Thunderbirds or U.S. Navy Blue Angels to operate from an 
airport show site, the following operational requirements must be met:
    (i) Minimum useable runway length for the Thunderbirds is 5000 feet 
by 150 feet in width.
    (ii) Minimum useable runway length for the Blue Angels is 6000 feet 
by 150 feet in width.
    (iii) Minimum single landing gear load bearing capacity for 
Thunderbirds is 45,000 pounds; for Blue Angels, 21,000 pounds. Tandem 
landing gear load bearing capacity is 155,000 pounds for Blue Angels and 
Thunderbirds.
    (2) A staged performance may not be given if the location planned 
for the show site does not meet these minimums. The maximum distance for 
a staged performance'' under normal conditions is 50 nautical miles. It 
should be noted that staged performances are seldom authorized since the 
recruiting potential is reduced at such events.
    (3) The type and number of static and/or flyover aircraft which may 
be assigned is entirely dependent upon the Military Services' capability 
to provide such resources at the time of your event. This capability is 
affected by operational commitments and sponsors are advised that 
confirmation of static/flyover aircraft cannot be made by the 
appropriate Service more than 15-30 days before your event.
    (4) The U.S. Army Silver Eagles are normally restricted to 
performances at airports. Other open land areas may be operationally 
suitable but require the prior approval of the team commander in each 
case.
    (5) Only one flight demonstration team and a parachute demonstration 
team may be authorized for any one

[[Page 35]]

event. Military aircraft demonstrations may not be authorized for events 
on the days a flight team is participating. A flyover is not authorized 
when a flight team is participating unless it can be provided by a 
locally-based National Guard or Reserve component.
    (6) Participation by the U.S. Navy Blue Angels and the U.S. Air 
Force Thunderbirds is normally limited to two consecutive years in any 
one event. This usually involves one appearance by each of the two 
flight teams. This provision may be waived when other appropriate 
requests have not been received, when the team is performing in the same 
geographical area and has open dates or when the event is national or 
international in nature and participation would be in the best interests 
of Department of Defense. Participation in an event is normally limited 
to two days unless a third day can be included without preempting other 
requests.
    (7) Sponsors are required to obtain a Federal Aviation Agency (FAA) 
waiver for any demonstration by military aircraft and/or parachutists in 
the public domain. The final authorization for such Armed Forces 
participation hinges upon the sponsor securing this waiver far enough in 
advance to permit adequate planning (normally not later than 60 days 
prior to the event). Further guidance on the details of obtaining this 
waiver will be contained in the team support packet or FAA. FAA 
regulations require that spectators be confined 1500 feet from a flight 
or aircraft demonstration and 250 feet from a parachute demonstration.
    (i) In some cases, parachute demonstrations require that the sponsor 
arrange for appropriate transportation for the team and equipment from 
its home station to the event and return.
    (ii) Mass parachute jumps, drops of equipment, assault aircraft 
demonstrations, or tactical helicopter troop landings under simulated 
tactical conditions, will be limited to military installations. These 
activities, except those scheduled as part of regular training programs, 
are not authorized for public events in the civil domain.
    (8) When civilian air racing is involved in an event where Armed 
Forces participation has also been scheduled, prize monies must come 
from sources other than admission charges.
    (9) Flight team, parachute and aircraft demonstrations also require 
that the sponsor provide: (i) Recent aerial photograph of the site; (ii) 
an ambulance and doctor at the site; and (iii) Guards for the Armed 
Forces aircraft during their entire stay. The aerial photograph should 
be recent, taken vertically from at least 5,000 feet.
    (10) Maximum advantage of Armed Forces recruiting will be taken at 
appropriate events in the public domain where demonstrations by military 
aircraft and parachutists have been authorized.
    (11) Exception to the policies contained herein will only be 
considered by OASD(PA) on events of national or international 
significance.
    (12) Department of Defense hosts a scheduling conference in mid-
December each year to prepare U.S. Air Force Thunderbirds, U.S. Navy 
Blue Angels, U.S. Army Golden Knights and U.S. Army Silver Eagles 
participation schedules for the ensuing year. All requests for such 
demonstrations from sponsors should reach OASD(PA) prior to the middle 
of November each year to be considered at this conference. In order to 
accommodate many requests Department of Defense receives for other 
parachuting demonstrations, aircraft demonstrations, static aircraft 
displays, and flyovers, each request must be received by OASD(PA) a 
minimum of 30 days in advance of the event and preferably 60 days in 
advance.
    (13) If there are any points that a member of the public might wish 
to have clarified, contact Chief, Aerial Events Branch, OASD(PA), Room 
1E790, The Pentagon, Washington, DC 20301. Telephone: AC (202) 695-6795 
or 695-9900.



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

    (a) Military musical participation in public events which otherwise 
meet the criteria outlined herein will be limited to patriotic programs 
as opposed to

[[Page 36]]

pure entertainment and will not duplicate a performance within the 
capability of a civilian group. For example, music to accompany the 
presentation of the national colors, or a performance of military or 
patriotic music by a military band, drum and bugle corps or choral group 
may be authorized; background, dinner, dance or other social music is 
considered ``entertainment.''
    (b) Requests received for military musical participation in 
appropriate events in the civilian domain must include an indication 
from the sponsor that there is no conflict with the local civilian 
musicians concerning the appearance of Navy musicians. A statement to 
this effect from the cognizant local musicians' union must be obtained 
by the sponsor and attached to his request.
    (c) Armed Forces musical units may be authorized to provide certain 
specified musical programs in the public domain. The performance must 
not place military musicians in competition with professional civilian 
musicians. Background, dinner, dance or other social music cannot be 
authorized. The specified programs which may be authorized usually 
include a short opening or closing patriotic presentation. Musical 
selections normally consist of a medley of military or patriotic songs, 
honors to the President or Vice President (if he is there), or music to 
accompany the presentation of colors by a Color Detail.
    (1) Armed Forces musical units may be authorized to participate in 
official government, military and civic functions.
    (i) Official government functions include those in which senior 
officials of the Federal government are involved in the performance of 
their official duties.
    (ii) Official military functions include social activities held on 
military installations (or off when the Military Service certifies that 
suitable facilities are not available on post) which are sponsored by 
the Military Services, have as their principal purpose the promotion of 
esprit de corps, and are conducted primarily for active duty personnel 
and their guests.
    (iii) Official civic functions include such State, county or 
municipal events as inaugurals, dedication of public buildings and 
projects, the convening of legislative bodies, and ceremonies for 
officially invited government visitors.
    (2) Armed Forces musical units may also be authorized to provide 
patriotic and military programs at national conventions and meetings of 
nationally-recognized civic, patriotic and veterans organizations.
    (d) Bands, drill teams and other units can normally participate at 
no cost to the sponsor if the event is within the installation's 
immediate community relations area (approximately 100-mile radius).
    (1) Normally, not more than one band or other musical unit will be 
authorized for a parade in the civilian domain. This guidance intended 
to assure widest possible participation in public events of local 
interest (particularly on national holidays) does not apply to national 
convention of veterans' groups or other events having national 
significance.
    (2) All Armed Forces participation in international and national 
events, and in the Washington, DC area, must be authorized by the 
Assistant Secretary of Defense (Public Affairs).
    (3) Requests for Armed Forces musical or troop units when no 
military installation is accessible, or for the Washington, DC-based 
ceremonial bands or troop units (when the event is outside the 
Washington, DC area), should be addressed to the parent Service of the 
unit:

                              (I) U.S. Army

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

                             (II) U.S. Navy

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

                          (III) U.S. Air Force

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

                         (IV) U.S. Marine Corps

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


[[Page 37]]


    (4) Armed Forces units may not be authorized to participate when:
    (i) The event directly or indirectly endorses or selectively 
benefits or favors (or appears to do so) any private individual, 
commercial venture, sect, fraternal organization, political group, or if 
it is associated with solicitation of votes in a political election.
    (ii) Admission, seating and other accommodations or facilities are 
restricted in any manner with regard to race, creed, color or national 
origin.
    (iii) The sponsoring organization or group excludes any person from 
its membership or practices any form of discrimination in its functions, 
based on race, creed, color or national origin.
    (iv) An admission charge is levied on the public primarily to see 
participation by an Armed Forces unit.
    (v) There is fund-raising of any type connected with the event, 
unless all profits are to be donated to a charity which is one of the 
consolidated programs recognized by the Federal Services Fund-Raising 
Program. These are the United Givers Fund Community Chest, National 
Health Agencies (as a group), the International Service Agencies, and 
the American Red Cross (when not included in a consolidated campaign). 
The Military Services' Welfare Societies (Army Emergency Relief, Navy 
Relief and Air Force Aid Society) are also included.
    (5) Sponsors of an event must agree to reimburse the Military 
Services concerned for transportation and per diem when participation is 
authorized at no additional cost to the government.
    (6) Participation by Armed Forces musical units in other areas is 
within the authority of local military commanders, and requests for 
participation should be made directly to those local military 
installations. All requests should be submitted no earlier than 60 days 
and preferably no later than 45 days prior to the event.



Sec.  705.34  Other special events.

    (a) Ship visits. Requests for visits generally originate with civic 
groups desiring Navy participation in local events. Often, members of 
Congress endorse these requests, advising the Navy of their interest in 
a particular event. Because of the marked increase in requests for ship 
visits, and in order to give equal consideration to all requests, the 
Chief of Information has arranged for quarterly meetings of 
representatives from CHINFO, Commander, Navy Recruiting Command, Chief 
of Naval Operations and Chief of Legislative Affairs. Based on the 
importance of the event (nationally, regionally, or locally) location, 
and prospective audience, recommendations are consolidated and forwarded 
to the fleet commanders prior to their quarterly scheduling conferences.
    (b) Visits to Naval activities--(1) Types of visits. (i) General 
visits or Open House are occasions when a ship or station acts as host 
to the general public. These visits will be conducted in accordance with 
instructions issued by Fleet and Force Commanders, District Commandants, 
or other cognizant authority.
    (ii) Casual visits are visits to ships or stations by individuals or 
specific groups, as differentiated from the general public. Details and 
procedures concerning these visits are a matter of command discretion.
    (iii) Tours are occasions when a ship or station is host to a 
specific group on a scheduled date. Some of the larger shore commands 
also regularly schedule one or more sightseeing type tours daily during 
seasons when many vacationers ask to visit the command.
    (2) General rules. Prior approval for general visiting or Open House 
at any time other than civic-sponsored public observances and official 
ceremonies for Armed Forces Day, memorial Day, Independence Day, and 
Veterans Day, and for observances in overseas areas of similar 
significant holidays, will be requested as follows: Fleet units visiting 
U.S. ports, from Senior Officer present Afloat; fleet units visiting 
foreign ports, from commander ordering the visit; shore stations and 
district vessels in the United States, from District Commandants; and 
overseas shore stations, from the naval area commander.
    (c) Official functions. (1) Navy units may be authorized by local 
commanding officers to participate in official government military and 
civic functions, except in the Washington DC

[[Page 38]]

area where OASD(PA) retains authority.
    (2) Official government functions include those in which senior 
officials of the federal government are involved in the performance of 
their official duties.
    (3) Official military functions include social activities held on 
military installations (or off, when it is certified that suitable 
facilities are not available on base), which are sponsored by the Navy, 
have as their principal purpose the promotion of esprit de corps, and 
are conducted primarily for active duty personnel and their guests.
    (4) Official civic functions include such state, county or municipal 
events as inaugurals, dedications of public buildings and projects, and 
convening of legislative bodies and ceremonies for officially invited 
government visitors.
    (5) Overseas, similar functions attended by comparable host-country 
officials in their official capacities might also be considered 
appropriate for Navy participation.
    (d) A parade which is sponsored by the community as a whole (rather 
than by a single commercial venture) and held on a Sunday or holiday or 
at a time when shops are closed for business may be a public event for 
which participation could properly be authorized; representation by 
individual commercial ventures in such parades need not be a bar to Navy 
participation as long as the emphasis is planned and placed on the civic 
rather than commercial aspects. Such participation will be at no 
additional cost to the government.
    (e) Fund-raising events. (1) Navy support of fund-raising events 
must be limited to recognized, joint or other authorized campaigns. Navy 
support of fund-raising events or projects for a single cause, even 
though the cause is a member of one of the federated, joint or 
authorized campaigns, or donates in part to one of several of the 
recognized campaigns, is not authorized by Department of Defense.
    (2) Navy support for a single-cause fund-raising event may be 
authorized if the event is:
    (i) In support of Navy recruiting objectives;
    (ii) Supported by a letter indicating the local United Way 
representative has no objection; and
    (iii) Approved by the local Navy Commander as a single-cause charity 
which has broad local benefit.

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



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

    (a) Requests for bands, troops, units, teams, exhibits and other 
Armed Forces participation should be addressed to the nearest military 
installation. Local commanders have resources which they can commit to 
appropriate events if mission requirements permit. If no military 
installation is accessible, or if resources requested are not available 
locally or require approval by higher authorities, a standard Department 
of Defense Request Form should be completed. This form is used to 
evaluate the request, determine appropriateness of the event and 
compliance with Department of Defense policies, and eliminate repeated 
correspondence. The request form should be returned to the office or 
military command from which it was received unless another address is 
indicated.
    (b) Basic criteria governing Armed Forces participation in public 
events have been developed by the Department of Defense to ensure 
compliance with public law, to assure equitable distribution of 
resources to as many appropriate events as possible, and to avoid 
excessive disruption of primary training and operational missions of the 
Military Services. the following general rules and information are 
included as an aid to you in understanding Department of Defense 
policies and in planning programs of mutual benefit to the Armed Forces 
and your community.
    (1) When evaluating requests for Armed Forces participation in 
public events, the interests of the Department of Defense and the public 
at large, operational requirements of the Military services, and 
availability of resources are prime considerations. Commitment of 
resources to specific events

[[Page 39]]

must be balanced with the above factors and with requests for similar 
participation received from other sources.
    (2) Department of Defense participation and cooperation must not 
directly or indirectly:
    (i) Endorse or selectively benefit or favor or appear to endorse or 
selectively benefit or favor any private individual, group, corporation 
(whether for profit or nonprofit), sect, quasi-religious or ideological 
movement, fraternal organization, political organization, or commercial 
venture.
    (ii) Be associated with the solicitation of votes in a political 
election. Sites such as commercial theaters or department stores, 
churches or fraternal halls; and events such as testimonials to private 
individuals or sectarian religious services, are generally inappropriate 
for Armed Forces participation.
    (3) Participation by the Armed Forces in any event or activity may 
be authorized only if admission, seating and all other accommodations 
and facilities are available to all without regard to race, creed, color 
or national origin, and only if the sponsoring organization does not 
exclude any form of discrimination based on race, creed, color or 
national origin. This does not bar participation in events sponsored by 
nationally-recognized veteran's organizations when the program is 
oriented toward the veterans' interests, nor does it bar participation 
in non-public school events when the program is directed toward 
education or recruiting.
    (i) No admission charge may be levied on the public solely to see an 
Armed Forces demonstration, unit or exhibit. When admission is charged, 
the Armed Forces activity must not be the sole or primary attraction.
    (4) Armed Forces participation is authorized in a fund-raising event 
only when the sponsor certifies that all net profits in excess of actual 
operating costs will be donated to one of the consolidated programs 
recognized by the Federal Services Fund-Raising program. These include 
such agencies as the United Givers Fund, Community Chests, National 
Health Agencies (as a group), International Service Agencies and the 
military aid societies.
    (5) When Armed Forces participation in an event is in the mutual 
interest of the Department of Defense and the sponsor of the event, 
participation will be authorized at no additional cost to the 
government. Additional costs to the government--travel and 
transportation of military personnel, meals and quarters or standard per 
diem allowance, etc.--will be borne by the sponsor.
    (6) Department of Defense policy prohibits payment by the Armed 
Forces for rental of exhibit space, connection of electricity, or 
utility or janitorial costs.
    (7) The duration of participation by military units in any one event 
is limited in the interests of proper utilization and equitable 
distribution of Armed Forces manpower and resources. While an exhibit 
might be scheduled for the duration of an event, a unit such as a 
military band is limited to three days.
    (8) Armed Forces participation in professional sports events and 
post-season bowl games will normally be authorized at no additional cost 
to the government, will emphasize joint Service activity and must 
support recruiting programs. Participation in beauty contests, fashion 
shows, pageants, Christmas parades, and motion picture premieres is not 
authorized since military support would violate policy and 
appropriateness.



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

    (a) General policy. (1) Regulations on transportation of civilians 
vary according to whether:
    (i) The civilians are news media representatives or not.
    (ii) The travel is local or nonlocal (see paragraph (b) of this 
section).
    (iii) The purpose of the travel is to get to a desired destination 
or is to observe the Navy at first hand.
    (2) Authority for embarkation of individuals in naval vessels and 
military aircraft is vested in the Chief of Naval Operations by Sec.  
700.710 of this chapter. Nothing in this part shall be construed as 
limiting his authority in this regard.
    (3) The following policy has been established by DOD for providing 
all

[[Page 40]]

types of Navy transportation to non-Navy civilians.
    (i) Military transport facilities shall not be placed in a position 
of competition with U.S. commercial carriers.
    (A) When embarkation of a newsman is necessary for him to obtain 
news material about a ship, aircraft, cargo or embarked personnel, or 
when he is invited to report on a matter of special interest to the 
Navy, it is not considered that the transportation furnished him is in 
competition with commercial transport.
    (B) An exception is also made for short trips between an airport (or 
other transportation center) and the command. Cars and buses within the 
resources of the command may be used for meeting guests or taking them 
to make their travel connections.
    (ii) When authorization is requested for travel which is of interest 
to or will affect more than one command or Service, the approving 
authority will coordinate the request with all other interested 
commands, Services and Agencies.
    (iii) Travel in connection with any public affairs program arranged 
by the Navy jointly with another Federal Department or Agency or a 
foreign government will be authorized only by the Assistant Secretary of 
Defense (Public Affairs, or those to whom he has delegated this 
authority. Navy commands desiring authorization of such travel will 
forward the request to the Chief of Information.
    (iv) If a request for travel for nonlocal public affairs purposes is 
disapproved, sufficient reasons should be provided so that the action is 
clearly understood by the individual or group concerned.
    (b) Definition of local v. nonlocal travel. (1) Local travel is 
travel within the immediate vicinity of the command concerned in 
connection with a public affairs program of local interest only. (For 
air travel within the continental U.S., about 150 miles or less is 
generally considered local.)
    (2) Nonlocal travel is that conducted in connection with a public 
affairs program affecting more than one Service, geographic area or 
major command, usually of primary concern to higher authority.
    (c) Transportation of news media representatives. (1) This section 
applies to media representatives who are embarked for the purpose of 
news gathering or of traveling to an area in order to cover a news 
event. It does not apply to:
    (i) Correspondents when members of groups embarked as regular cruise 
guests of the Navy.
    (ii) Casual trips by correspondents to ships in port or to shore 
stations in CONUS. Such visits may be authorized by officers in command 
or higher authority in accordance with instructions promulgated by the 
Chief of Naval Operations. Written orders are not required.
    (2) Local travel. Commanding officers at all levels are authorized 
(under Defense Department policy) to approve local travel for public 
affairs purposes within the scope of the mission and responsibilities of 
their command, if:
    (i) Public interest in the public affairs purpose involved is 
confined primarily to the vicinity of that command.
    (ii) The travel is being provided for the benefit of local media and 
meets a naval public affairs objective.
    (iii) Scheduled commercial air transportation is not readily 
available.
    (iv) The aircraft to be used is a helicopter, or multiengine dual 
piloted aircraft, and is within the resources of the host command on a 
not-to-interfere basis. This provision does not apply to orientation 
flights.
    (3) Nonlocal travel. (i) Requests for nonlocal travel will be 
submitted to the Chief of Information, who will forward them with his 
recommendations to the Chief of Naval Operations and/or the Assistant 
Secretary of Defense (Public Affairs), as appropriate.
    (ii) When the proposed travel is for news coverage of a major 
emergency nature and the coverage will be impaired or delayed, to the 
serious detriment of the interests of the Department of Defense, if 
military transportation is not provided, requests for such travel will 
be submitted to the Chief of Information, who will forward

[[Page 41]]

the request--if approved--to the Assistant Secretary of Defense (Public 
Affairs). The most expeditious means (including telephone) will be used 
by commands requesting such emergency travel. Justification will include 
both the public affairs purpose and the necessity for military carriers.
    (4) Travel between the U.S. and overseas area. (i) The Chief of 
Naval Operations may authorize military transportation for 
correspondents in unusual circumstances, upon recommendations of the 
Chief of Information and the Defense Department.
    (ii) Requests for government transportation to cover specific 
assignments overseas should be made at least three weeks prior to the 
date required and should be addressed to the Assistant Secretary of 
Defense (Public Affairs) via the Chief of Information or Unified 
Commander, as appropriate. The requests should include:
    (A) A statement that the correspondent is a full-time employee, or 
has a specific assignment, and that the trip is for the purpose of news 
gathering.
    (B) Appropriate date of entry into area, port of entry, method of 
travel, proposed duration of visit and travel termination date.
    (C) Assurance that the correspondent will observe currency control 
regulations, and sponsoring agency will guarantee financial obligations 
incurred.
    (5) Embarkation of male correspondents between ports within CONUS. 
(i) Male correspondents may be embarked in naval ships for passage 
between ports within the area of a single Fleet command for the purpose 
of news gathering at the discretion of the Sea Frontier Commander, 
Commandants of the Naval Districts, the Chief of naval Air Training, 
Fleet, Force and Type commanders and flag officers afloat who have been 
delegated authority to arrange directly with appropriate Fleet, Force 
and Type commanders for embarkation of civilians on a local cruise 
basis.
    (ii) Invitational travel orders may be issued.
    (6) Embarkation of female correspondents in naval vessels. (i) 
Privileges equal to those given male correspondents will be accorded 
female correspondents whenever practicable.
    (ii) Female correspondents may not be embarked overnight in a naval 
ship without prior approval of the appropriate Fleet Commander-in-Chief. 
This authority may be delegated to the numbered Fleet Commanders.
    (7) Travel in ships of the Military Sealift Command. Correspondents 
may be carried in ships of the Military Sealift Command on either a 
space-required or space-available basis when travel is in the best 
interests of the Navy or the Department of Defense.
    (i) Space-available travel will be used when practicable. A nominal 
charge is made by the Military Sealift Command and must be borne by the 
correspondents.
    (ii) Space-required travel may be authorized when sufficiently in 
the interest of the Navy, and the charge may be borne by the Navy.
    (iii) In either case, determination of Navy interests will be made 
by the Chief of Information, guided by the transportation policy of the 
Chief of Naval Operations, whose approval of such embarkation is 
required.
    (iv) Requests for such travel will be submitted to the Chief of 
Information, who will coordinate with the Chief of Naval Operations and/
or the Assistant Secretary of Defense (Public Affairs), as appropriate.
    (8) Point to point transportation within the continental United 
States in naval aircraft other than those operated by the Military 
Airlift Command.
    (i) SECNAVINST 4630.2A contains guidance for travel in military 
aircraft other than those operated by the Military Airlift Command.
    (ii) Naval activities desiring to arrange such transportation will 
address requests via the chain of command to the operational command of 
the lowest echelon which has been delegated authority to approve such 
requests.
    (iii) Upon approval of such a request, the naval activity sponsoring 
the correspondent shall:
    (A) Prepare travel orders.
    (B) Ensure that any waiver forms, as may be required by governing 
directives, are executed.
    (9) Embarkation of news media representatives of foreign 
citizenship:

[[Page 42]]

    (i) Requests from foreign news media representatives to cruise with 
units of the U.S. Navy are usually made to the nearest U.S. military 
installation known to the correspondent, and are often not made in the 
proper chain of command to the Fleet Commander unless authorized to 
effect arrangements for an underway cruise.
    (A) if the request is received by a command which is not a 
subordinate of the Fleet Commander concerned, it will be forwarded to 
the U.S. Naval Attache assigned to the foreign newsman's country. The 
Attache will then forward the request to the appropriate Fleet 
Commander, with his recommendations and the result of a brief background 
check on the newsman and his employer.
    (B) If the request is received by a subordinate of the appropriate 
Fleet Commander, it may be forwarded directly to the latter, but the 
U.S. Naval Attache in the newsman's country will be given the 
opportunity to comment on the proposed embarkation.
    (ii) Naval commands should not introduce an embarked third-party 
(i.e., a foreign media representative) into a foreign country other than 
his own without first obtaining appropriate clearance from the country 
to be visited. Approval for entry should be forwarded via appropriate 
command channels to the cognizant U.S. Naval Attache.
    (10) Security considerations. (i) No media representative known to 
be affiliated with a group advocating the overthrow of the U.S. 
government will be permitted aboard naval ships or stations.
    (ii) If security review is directed, the reason will be made clear 
to the correspondent prior to embarkation. News media people refusing to 
agree to observe security regulations may have their privileges 
suspended. Failure to observe security regulations will be reported to 
CHINFO and interested commands.
    (d) Transportation of other civilians. (1) Although groups normally 
provide their own transportation to Navy commands, Navy transportation 
may be authorized when:
    (i) Commercial transport is not available.
    (ii) A professional group visit has been solicited by the Navy, such 
as participants in the Naval Academy Information Program (``Blue and 
Gold'') or educators invited to an Aerospace Education Workshop.
    (2) Requests for nonlocal transportation under the above 
circumstances will be made to the Chief of Naval Operations.
    (3) Carrier-on-board-delivery (COD) flights and helicopters flights 
to ships are considered local transportation.
    (4) When units or areas of a Unified Command are involved in the 
public affairs program in connection with which travel authorization is 
requested by a Navy command which is not a component of the Unified 
Command concerned, coordination will be effected by the host command, 
through command channels, via the Chief of Information, to the Assistant 
Secretary of Defense (Public Affairs), who--as appropriate--will consult 
with the Unified Commander concerned.
    (e) Special programs. (1) Cruises are discussed in Chapter 6, 
section 0604, para. 1 of the Navy Public Affairs Regulations.
    (2) Embarkation of news media representatives, especially on 
operations and exercises, is discussed in Chapter 4, section 0405, 
paragraph 4 of the Navy Public Affairs Regulations.
    (3) Other programs subject to special requirements or which have had 
exceptions authorized for them include:
    (i) Naval Air Training Command Civilian Orientation Cruise Program, 
conducted by the Chief of Naval Air Training.
    (ii) Joint Civilian Orientation Conference, conducted by the 
Assistant Secretary of Defense (Public Affairs).
    (iii) Orientation flights in government aircraft, conducted in 
accordance with OPNAVINST 37107H.
    (iv) Space-available air transportation may be provided Navy League 
members if they are invited to accompany a flag officer attending a Navy 
League convention or regional meeting and if the trip is economically 
justifiable, based on military travel considerations and not community 
relations or public affairs reasons. Approval in each instance will be 
obtained in advance from the Chief of Naval Operations.

[[Page 43]]

    (v) Air transportation for the Naval Sea Cadet Corps of the Navy 
League.
    (A) Flights must be in Navy multiengine, transport type craft.
    (B) Point-to-point flights on a space-required basis are governed by 
an annual quota set by the Chief of Naval Operations. Space-available 
transportation is authorized and will not be charged against this quota 
if it will not result in delays of takeoffs or a change in the itinerary 
planned for the primary mission.
    (C) Flights must not interfere with operational commitments or 
training or results in additional expense to the government.
    (D) This transportation is not available to other youth programs, 
including others sponsored by the Navy League.
    (f) Other instructions on transportation of non-Navy civilians. 
Details on policy, procedures, and the transportation of certain 
categories of people will be found in OPNAVINST 5720.2G and DOD 
Directive 4515.13.

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



Sec.  705.37  Public affairs and public service awards.

    (a) General. (1) A number of public service awards are presented by 
the Department of Defense and the Navy to business and civic leaders, 
scientists and other nongovernment civilians. Other awards--military and 
civilian--are presented to members of the naval establishment.
    (2) These awards are of public affairs interest in the locale where 
they are presented and also in the home towns of those who receive them.
    (b) Department of Defense awards. (1) The Department of Defense 
Medal for Distinguished Public Service is presented to individuals. The 
Department of Defense Meritorious Award honors organizations.
    (2) Details, including nominating procedures, are given in 
SECNAVINST 5061.12.
    (c) Secretary of the Navy awards. (1) The following awards are 
presented by the Secretary of the Navy: The Navy Distinguished Public 
Service Award and Navy Meritorious Public Service Citation to 
individuals; the Navy Certificate of Commendation to members of special 
committees and groups; and the Navy Certificate of Merit to 
organizations and associations.
    (2) Details are given in SECNAVINST 5061.12.
    (3) Nominations for awards to military personnel are considered by 
the Board of Decorations and Medals, in accordance with SECNAVINST 
1650.24A.
    (4) Nominations for honorary awards to Department of the Navy 
civilian employees are considered by the Distinguished Civilian Service 
Awards Panel. (See Civilian Manpower Management Instruction 451.)
    (d) Chief of Information awards--(1) Certificate of Public Relations 
Achievement. (i) This certificate is signed by the Chief of Information. 
It honors individuals who are not Navy employees, corporations, or 
associations.
    (ii) It was established to fill the need for a civilian award for 
public relations achievements which, while not meeting the criteria for 
public service awards presented by the Secretary of the Navy, are of 
such Navy-wide significance as to merit recognition at the Department 
level. Examples of these achievements might be a particularly well done 
feature article about the Navy in a nationally read newspaper or an 
outstanding contribution to a locally sponsored event, which ultimately 
gave national or regional recognition to the Navy.
    (iii) The achievement for which the certificate is given shall meet 
the following criteria:
    (A) Contribute to accomplishment of the public information 
objectives of the Navy.
    (B) Be the result of a single outstanding project or program.
    (C) Have been accomplished within one year of the date of the 
official letter of nomination.
    (iv) Nominations will be submitted through appropriate 
administrative channels to the Chief of Information, and will include a 
description of the service rendered, a statement of its relevance to the 
accomplishment of the public affairs objectives of the Navy and a draft 
of the recommended citation. To avoid possible embarrassment,

[[Page 44]]

nominations shall be marked ``For Official Use Only'' and safeguarded 
until final action has been taken.
    (2) CHINFO Merit Awards. (i) These awards, or certificates, are 
presented quarterly to Navy publications and broadcasts considered to be 
outstanding or to have shown improvement in meeting professional 
standards of journalism.
    (ii) Publications and broadcasts eligible are those which inform the 
reader concerning aspects of service life or related matters which 
contribute to the well-being of naval personnel, their dependents, and 
civilian employees of the Navy. Civilian enterprise periodicals are 
included if produced for the exclusive use of a naval installation.
    (iii) Nominations are made in two ways:
    (A) Selection during regular review periodicals and broadast air-
checks received by the Internal Relations Activity.
    (B) Nominations from the field. Such nominations are informal and 
may be made by the officer-in-charge, publications editor, broadcast 
station manager, or public affairs officer to the chief of Information, 
Navy Department, Washington, DC 20350 (ATTN: OP-0071).
    (3) Other awards pertaining to public affairs/internal relations. 
(i) Silver Anvil award is given by the Public Relations Society of 
America for outstanding public relations programs carried out during the 
preceding year. Entry blanks and details may be obtained by writing 
directly to Public Relations Society of America, 845 Third Ave., New 
York, NY 10022. All Navy entries will be forwarded via the Chief of 
Information.
    (ii) Freedom Foundation Awards of cash and medals are annually given 
to service personnel for letters on patriotic themes. Details are 
carried in ship and station publications, or may be obtained by writing 
to Freedom Foundations, Valley Forge, PA 19481.
    (iii) Thomas Jefferson Awards are the prizes in an annual 
interservice competition sponsored by civilian media through the 
Department of Defense's Office of Information for the Armed Forces. The 
contest is open to all Armed Forces media--broadcast and print. Details 
can be obtained by writing to Office of Information, Department of the 
Navy, Washington, DC 20350.
    (iv) Navy League Awards. Several annual awards are presented to 
naval personnel and civilians who have made a notable contribution to 
the importance of seapower. The awards are for inspirational leadership, 
scientific and technical progess, operational competence, literary 
achievement, etc. Nominations should be forwarded directly to Board of 
Awards, Navy League of the United States, 818 18th St., NW., Washington, 
DC 20006.
    (v) Nonofficial awards to outstanding Navy students or training 
units.
    (A) Various civilian organizations and private individuals have 
established awards to be presented to outstanding training units or 
naval students.
    (B) Requests to establish an award for students in the Naval Air 
Training program should be forwarded to the Chief of Naval Air Training.
    (C) Requests to establish an award which will involve more than one 
school (other than the Naval Air Training Program) will be forwarded to 
the Chief of Naval Personnel.
    (D) All other cases may be decided by the Navy authority at the 
school concerned.
    (E) Directives in the 5061, 1650 and 3590 series issued by pertinent 
authorities may provide further guidance in individual cases.
    (vi) Awards established by a command to honor non-Navy civilians.
    (A) Examples of such awards are ``Good Neighbor'' or ``Honorary Crew 
Member'' certificates.
    (B) Established to honor persons who have been helpful to the 
command, they are a valuable community relations program. They should 
not be awarded to persons or organizations with which the command is 
associated in a commercial or governmental business capacity.

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

[[Page 45]]



                         SUBCHAPTER B [RESERVED]



[[Page 46]]



                         SUBCHAPTER C_PERSONNEL





PART 719_REGULATIONS SUPPLEMENTING THE MANUAL FOR COURTS-MARTIAL-
-Table of Contents



Subparts A-B [Reserved]

                         Subpart C_Trial Matters

Sec.
719.112 Authority to grant immunity from prosecution.
719.113-719.114 [Reserved]
719.115 Release of information pertaining to accused persons; spectators 
          at judicial sessions.

Subpart D [Reserved]

                     Subpart E_Miscellaneous Matters

719.138 Fees of civilian witnesses.
719.139-719.141 [Reserved]
719.142 Suspension of counsel.
719.143 Petition for new trial under 10 U.S.C. 873.
719.144 Application for relief under 10 U.S.C. 869, in cases which have 
          been finally reviewed.
719.145-719.150 [Reserved]
719.151 Furnishing of advice and counsel to accused placed in pretrial 
          confinement.
719.155 Application under 10 U.S.C. 874(b) for the substitution of an 
          administrative form of discharge for a punitive discharge or 
          dismissal.

    Authority: 3 U.S.C. 301; 5 U.S.C. 301; 10 U.S.C. 815, 5013, 5148; 32 
CFR 700.206 and 700.1202.

Subparts A-B [Reserved]



                         Subpart C_Trial Matters



Sec.  719.112  Authority to grant immunity from prosecution.

    (a) General. In certain cases involving more than one participant, 
the interests of justice may make it advisable to grant immunity, either 
transactional or testimonial, to one or more of the participants in the 
offense in consideration for their testifying for the Government or the 
defense in the investigation and/or the trial of the principal offender. 
Transactional immunity, as that term is used in this section, shall mean 
immunity from prosecution for any offense or offenses to which the 
compelled testimony relates. Testimonial immunity, as that term is used 
in this section, shall mean immunity from the use, in aid of future 
prosecution, of testimony or other information compelled under an order 
to testify (or any information directly or indirectly derived from such 
testimony or other information). The authority to grant either 
transactional or testimonial immunity to a witness is reserved to 
officers exercising general court-martial jurisdiction. This authority 
may be exercised in any case whether or not formal charges have been 
preferred and whether or not the matter has been referred for trial. The 
approval of the Attorney General of the United States on certain orders 
to testify may be required, as outlined below.
    (b) Procedure. The written recommendation that a certain witness be 
granted either transactional or testimonial immunity in consideration 
for testimony deemed essential to the Government or to the defense shall 
be forwarded to an officer competent to convene a general court-martial 
for the witness for whom immunity is requested, i.e., any officer 
exercising general court-martial jurisdiction. Such recommendation will 
be forwarded by the trial counsel or defense counsel in cases referred 
for trial, the pretrial investigating officer conducting an 
investigation upon preferred charges, the counsel or recorder of any 
other fact-finding body, or the investigator when no charges have yet 
been preferred. The recommendation shall state in detail why the 
testimony of the witness is deemed so essential or material that the 
interests of justice cannot be served without the grant of immunity. The 
officer exercising general court-martial jurisdiction shall act upon 
such request after referring it to his staff judge advocate for 
consideration and advice. If approved, a copy of the written grant of 
immunity must be served upon the accused or his defense counsel within a 
reasonable time before the witness testifies. Additionally, if any 
witness is expected to testify in response to a promise of leniency, the 
terms of the promise of leniency must

[[Page 47]]

be reduced to writing and served upon the accused or his defense counsel 
in the same manner as a grant of immunity.
    (c) Civilian witnesses. Pursuant to 18 U.S.C. 6002 and 6004, if the 
testimony or other information of a civilian witness at a court-martial 
may be necessary in the public interest, and if the civilian witness has 
refused or is likely to refuse to testify or provide other information 
on the basis of a privilege against self-incrimination, then the 
approval of the Attorney General of the United States, or his designee, 
must be obtained prior to the execution or issuance of an order to 
testify to such civilian witness. The cognizant officer exercising 
general court-martial jurisdiction may obtain the approval of the 
Attorney General in such a circumstance by directing a message or letter 
requesting the assistance of the Judge Advocate General (Code 20) in the 
form prescribed in paragraph (e) of this section.
    (d) Cases involving national security. In all cases involving 
national security or foreign relations of the United States, the 
cognizant officer exercising general court-martial jurisdiction shall 
forward any proposed grant of immunity to the Judge Advocate General for 
the purpose of consultation with the Department of Justice. See section 
0126 of the Manual of the Judge Advocate General regarding relations 
between the Departments of Defense and Justice. The cognizant officer 
exercising general court-martial jurisdiction may obtain approval by the 
Attorney General of a proposed grant of immunity by directing a letter 
requesting the assistance of the Judge Advocate General (Code 20) in the 
form prescribed in paragraph (e) of this section.
    (e) Content of immunity requests. In all cases in which approval of 
the Attorney General of the United States is required prior to the 
issuance of a grant of immunity, whether under paragraph (c) or (d) of 
this section, the cognizant officer exercising general court-martial 
jurisdiction shall forward by message or letter the proposed order to 
testify and grant of immunity to the Judge Advocate General (Code 20). 
The order to testify should be substantially in the form set forth in 
appendix A-1-i(3) of the Manual of the Judge Advocate General. Requests 
for assistance shall be in writing, should allow at least three weeks 
for consideration, and must contain the following information:
    (1) Name, citation, or other identifying information of the 
proceeding in which the order is to be used.
    (2) Name of the witness for whom the immunity is requested.
    (3) Name of the employer or company with which a witness is 
associated or the military unit or organization to which a witness is 
assigned.
    (4) Date and place of birth, if known, of the witness.
    (5) FBI or local police file number, if any, and if known.
    (6) Whether any State or Federal charges are pending against the 
witness and the nature of the charges.
    (7) Whether the witness is currently incarcerated, under what 
conditions, and for what length of time.
    (8) A brief resume of the background of the investigation or 
proceeding before the agency or department.
    (9) A concise statement of the reasons for the request, including:
    (i) What testimony the witness is expected to give;
    (ii) How this testimony will serve the public interest;
    (iii) Whether the witness:
    (A) Has invoked the privilege against self-incrimination; or
    (B) Is likely to invoke the privilege;
    (iv) If paragraph (e)(9)(iii)(B) of this section is applicable, then 
why it is anticipated that the prospective witness will invoke the 
privilege.
    (10) An estimate as to whether the witness is likely to testify in 
the event immunity is granted.
    (f) Post-testimony procedure. After a witness immunized in 
accordance with paragraphs (c) and (d) of this section has testified, 
the following information should be provided to the United States 
Department of Justice, Criminal Division, Immunity Unit, Washington, DC 
20530, via the Judge Advocate General (Code 20).
    (1) Name, citation, or other identifying information, of the 
proceeding in which the order was requested.
    (2) Date of the examination of the witness.

[[Page 48]]

    (3) Name and residence address of the witness.
    (4) Whether the witness invoked the privilege.
    (5) Whether the immunity order was used.
    (6) Whether the witness testified pursuant to the order.
    (7) If the witness refused to comply with the order, whether 
contempt proceedings were instituted, or are contemplated, and the 
result of the contempt proceeding, if concluded. A verbatim transcript 
of the witness' testimony, authenticated by the military judge, should 
be provided to the Judge Advocate General at the conclusion of the 
trial. No testimony or other information given by a civilian witness 
pursuant to such an order to testify (or any information directly or 
indirectly derived from such testimony or other information) may be used 
against him in any criminal case, except a prosecution for perjury, 
giving a false statement, or otherwise failing to comply with the order.
    (g) Review. Under some circumstances, the officer granting immunity 
to a witness may be disqualified from taking reviewing action on the 
record of the trial before which the witness granted immunity testified. 
A successor in command not participating in the grant of immunity would 
not be so disqualified under those circumstances.
    (h) Form of grant. In any case in which a military witness is 
granted transactional immunity, the general court-martial convening 
authority should execute a written grant, substantially in the form set 
forth in appendix section A-1-i(1) of the Manual of the Judge Advocate 
General. In any case in which a military witness is granted testimonial 
immunity, the general court-martial convening authority should execute a 
written grant substantially in the form set forth in appendix section A-
1-i(2) of the Manual of the Judge Advocate General.

[56 FR 57803, Nov. 14, 1991]



Sec. Sec.  719.113-719.114  [Reserved]



Sec.  719.115  Release of information pertaining to accused persons;
spectators at judicial sessions.

    (a) Release of information--(1) General. There are valid reasons for 
making information available to the public concerning the administration 
of military justice. The task of striking a fair balance among the 
protection of individuals accused of offenses, improper or unwarranted 
publicity pertaining to their cases, public understanding of the 
problems of controlling misconduct in the military service, and the 
workings of military justice requires the exercise of sound judgment by 
those responsible for administering military justice and by 
representatives of the press and other news media. At the heart of all 
guidelines pertaining to the furnishing of information concerning an 
accused or the allegations against him is the mandate that no statements 
or other information shall be furnished to news media for the purpose of 
influencing the outcome of an accused's trial, or which could reasonably 
be expected to have such an effect.
    (2) Applicability of regulations. These regulations apply to all 
persons who may obtain information as the result of duties performed in 
connection with the processing of accused persons, the investigation of 
suspected offenses, the imposition of nonjudicial punishment, or the 
trial of persons by court-martial. These regulations are applicable from 
the time of apprehension, the preferral of charges, or the commencement 
of an investigation directed to make recommendations concerning 
disciplinary action, until the imposition of nonjudicial punishment, 
completion of trial (court-martial sessions) or disposition of the case 
without trial. These regulations also prescribe guidelines for the 
release or dissemination of information to public news agencies, to 
other public news media, or to other persons or agencies for unofficial 
purposes.
    (3) Release of information. (i) As a general matter, release of 
information pertaining to accused persons should not be initiated by 
persons in the naval service. Information of this nature should be 
released only upon specific

[[Page 49]]

request therefor, and, subject to the following guidelines, should not 
exceed the scope of the inquiry concerned.
    (ii) Except in unusual circumstances, information which is subject 
to release under the regulation should be released by the cognizant 
public affairs officer; requests for information received from 
representatives of news media should be referred to the public affairs 
office for action. When an individual is suspected or accused of an 
offense, care should be taken to indicate that the individual is alleged 
to have committed or is suspected or accused of having committed an 
offense, as distinguished from stating or implying that the accused has 
committed the offense or offenses.
    (4) Information subject to release. On inquiry, the following 
information concerning a person accused or suspected of an offense or 
offenses may generally be released except as provided in paragraph (6) 
of this section:
    (i) The accused's name, grade, age, unit, regularly assigned duties, 
duty station, and sex.
    (ii) The substance of the offenses of which the individual is 
accused or suspected.
    (iii) The identity of the victim of any alleged or suspected 
offense, except the victim of a sexual offense.
    (iv) The identity of the apprehending and investigative agency, and 
the identity of accused's counsel, if any.
    (v) The factual circumstances immediately surrounding the 
apprehension of the accused, including the time and place of 
apprehension, resistance, pursuit, and use of weapons.
    (vi) The type and place of custody, if any.
    (vii) Information which has become a part of the record of 
proceedings of the court-martial in open session.
    (viii) The scheduling of any stage in the judicial process.
    (ix) The denial by the accused of any offense or offenses of which 
he may be accused or suspected (when release of such information is 
approved by the counsel of the accused).
    (5) Prohibited information. The following information concerning a 
person accused or suspected of an offense or offenses generally may not 
be released, except as provided in paragraph (a)(6) of this section.
    (i) Subjective opinions, observations, or comments concerning the 
accused's character, demeanor at any time (except as authorized in 
paragraph (4)(v) of this section), or guilt of the offense or offenses 
involved.
    (ii) The prior criminal record (including other apprehensions, 
charges or trials) or the character or reputation of the accused.
    (iii) The existence or contents of any confession, admission, 
statement, or alibi given by the accused, or the refusal or failure of 
the accused to make any statement.
    (iv) The performance of any examination or test, such as polygraph 
examinations, chemical tests, ballistics tests, etc., or the refusal or 
the failure of the accused to submit to an examination or test.
    (v) The identity, testimony, or credibility of possible witnesses, 
except as authorized in paragraph (4)(iii), of this section.
    (vi) The possibility of a plea of guilty to any offense charged or 
to a lesser offense and any negotiation or any offer to negotiate 
respecting a plea of guilty.
    (vii) References to confidential sources or investigative techniques 
or procedures.
    (viii) Any other matter when there is a reasonable likelihood that 
the dissemination of such matter will affect the deliberations of an 
investigative body or the findings or sentence of a court-martial or 
otherwise prejudice the due administration of military justice either 
before, during, or after trial.
    (6) Exceptional cases. The provisions of this section are not 
intended to restrict the release of information designed to enlist 
public assistance in apprehending an accused or suspect who is a 
fugitive from justice or to warn the public of any danger that a 
fugitive accused or suspect may present. Further, since the purpose of 
this section is to prescribe generally applicable guidelines, there may 
be exceptional circumstances which warrant the release of information 
prohibited under paragraph (a)(5) of this section or the nonrelease of 
information permitted under paragraph (a)(4) of this section. Attention 
should be given to the Secretary

[[Page 50]]

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

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

Subpart D [Reserved]



                     Subpart E_Miscellaneous Matters



Sec.  719.138  Fees of civilian witnesses.

    (a) Method of Payment. The fees and mileage of a civilian witness 
shall be paid by the disbursing officer of the command of a convening 
authority or appointing authority or by the disbursing officer at or 
near the place where the tribunal sits or where a deposition is taken 
when such disbursing officer is presented a properly completed public 
voucher for such fees and mileage, signed by the witness and certified 
by one of the following:
    (1) Trial counsel or assistant trial counsel of the court-martial;
    (2) Summary court officer;
    (3) Counsel for the court in a court of inquiry;
    (4) Recorder or junior member of a board to redress injuries to 
property, or
    (5) Military or civil officer before whom a deposition is taken.

The public voucher must be accompanied by a subpoena or invitational 
orders (Joint Travel Regulations, vol. 2, chap. 6), and by a certified 
copy of the order appointing the court-martial, court of inquiry, or 
investigation. If, however, a deposition is taken before charges are 
referred for trial, the fees and mileage of the witness concerned shall 
be paid by the disbursing officer at or near the place where the 
deposition is taken upon presentation of a public voucher, properly 
completed as hereinbefore prescribed, and accompanied by an order from 
the officer who authorized the taking of the deposition, subscribed by 
him and directing

[[Page 51]]

the disbursing officer to pay to the witness the fees and mileage 
supported by the public voucher. When the civilian witness testifies 
outside the United States, its territories and possessions, the public 
voucher must be accompanied by a certified copy of the order appointing 
the court-martial, court of inquiry, or investigation, and by an order 
from the convening authority or appointing authority, subscribed by him 
and directing the disbursing officer to pay to the witness the fees and 
mileage supported by the public voucher.
    (b) Obtaining money for advance tender or payment. Upon written 
request by one of the officers listed in paragraph (a) of this section, 
the disbursing officer under the command of the convening or appointing 
authority, or the disbursing officer nearest the place where the witness 
is found, will, at once, provide any of the persons listed in paragraph 
(a) of this section, or any other officer or person designated for the 
purpose, the required amount of money to be tendered or paid to the 
witness for mileage and fees for one day of attendance. The person so 
receiving the money for the purpose named shall furnish the disbursing 
officer concerned with a proper receipt.
    (c) Reimbursement. If an officer charged with serving a subpoena 
pays from his personal funds the necessary fees and mileage to a 
witness, taking a receipt therefor, he is entitled to reimbursement upon 
submitting to the disbursing officer such receipt, together with a 
certificate of the appropriate person named in paragraph (a) of this 
section, to the effect that the payment was necessary.
    (d) Certificate of person before whom deposition is taken. The 
certificate of the person named in paragraph (a) of this section, before 
whom the witness gave his deposition, will be evidence of the fact and 
period of attendance of the witness and the place from which summoned.
    (e) Payment of accrued fees. The witness may be paid accrued fees at 
his request at any time during the period of attendance. The disbursing 
officer will make such interim payment(s) upon receipt of properly 
executed certificate(s). Upon his discharge from attendance, the witness 
will be paid, upon the execution of a certificate, a final amount 
covering unpaid fees and travel, including an amount for return travel. 
Payment for return travel will be made upon the basis of the actual fees 
and mileage allowed for travel to the court, or place designated for 
taking a deposition.
    (f) Computation. Travel expenses shall be determined on the basis of 
the shortest usually traveled route in accordance with official 
schedules. Reasonable allowance will be made for unavoidable detention.
    (g) Nontransferability of accounts. Accounts of civilian witnesses 
may not be transferred or assigned.
    (h) Signatures. Signatures of witnesses signed by mark must be 
witnessed by two persons.
    (i) Rates for civilian witnesses prescribed by law--(1) Civilian 
witnesses not in Government employ. A civilian not in Government employ, 
who is compelled or required to testify as a witness before a Naval 
tribunal at a specified place or to appear at a place where his 
deposition is to be taken for use before a court or fact-finding body, 
will receive fees, subsistence, and mileage as provided in 28 U.S.C. 
1821. Witness and subsistence fees are not prorated. Instead any 
fractional part of a calendar day expended in attendance or qualifying 
for subsistence entitles the witness to payment for a full day. Further, 
nothing in this paragraph shall be construed as authorizing the payment 
of attendance fees to witnesses for:
    (i) Attendance or travel which is not performed either as a direct 
result of being compelled to testify pursuant to a subpoena or as a 
direct result of invitational orders; or
    (ii) For travel which is performed prior to being duly summoned as a 
witness; or
    (iii) For travel returning to their places of residence if the 
travel from their places of residence does not qualify for payment under 
this paragraph.
    (2) Civilian witnesses in Government employ. When summoned as a 
witness, a civilian in the employ of the Government shall be paid as 
authorized by Joint Travel Regulations.
    (j) Supplemental construction of section. Nothing in this paragraph 
shall be

[[Page 52]]

construed as permitting or requiring the payment of fees to those 
witnesses not requested or whose testimony is determined not to meet the 
standards of relevancy and materiality set forth in accordance with MCM, 
1984, R.C.M. 703.
    (k) Expert witnesses. (1) The convening authority will authorize the 
employment of an expert witness and will fix the limit of compensation 
to be paid such expert on the basis of the normal compensation paid by 
United States attorneys for attendance of a witness of such standing in 
United States courts in the area involved. Information concerning such 
normal compensation may be obtained from the nearest officer exercising 
general court-martial jurisdiction having a judge advocate assigned in 
other than an additional duty, temporary duty, or temporary additional 
duty capacity. Convening authorities at overseas commands will adhere to 
fees paid such witnesses in the Hawaiian area and may obtain information 
as to the limit of such fees from the Commander, Naval Base, Pearl 
Harbor. See paragraph (l) of this section for fees payable to foreign 
nationals.
    (2) The provisions of paragraph (i) of this section are applicable 
to expert witnesses. However, the expert witness fee prescribed by the 
convening authority will be paid in lieu of ordinary attendance fees on 
those days the witness is required to attend the court.
    (3) An expert witness employed in strict accordance with MCM, 1984, 
R.C.M. 703(d), may be paid compensation at the rate prescribed in 
advance by the official empowered to authorize his employment (11 Comp. 
Gen. 504). In the absence of such authorization, no fees other than 
ordinary witness fees may be paid for the employment of an individual as 
an expert witness. After an expert witness has testified pursuant to 
such employment, the certificate of one of the officers listed in 
subsection a above, when presented to the disbursing officer, shall also 
enclose a certified copy of the authorization of the convening 
authority.
    (l) Payment of witness fees to foreign nationals: Officers 
exercising general court-martial jurisdiction in areas other than a 
State of the United States shall establish rates of compensation for 
payment of foreign nationals who testify as witnesses, including expert 
witnesses, at courts-martial convened in such areas.

[38 FR 5997, Mar. 6, 1973, as amended at 47 FR 49644, Nov. 2, 1982; 50 
FR 23801, June 6, 1985]



Sec. Sec.  719.139-719.141  [Reserved]



Sec.  719.142  Suspension of counsel.

    (a) Report of Allegations of Misconduct or Disability. When 
information comes to the attention of a member of a court-martial, a 
military judge, trial or defense counsel, staff judge advocate, member 
of the Navy-Marine Corps Court of Military Review or other directly 
interested or concerned party that a judge advocate or civilian who is 
acting or is about to act as counsel before a proceeding conducted under 
the UCMJ or MCM is or has been unable to discharge properly all the 
duties of his or her position by reason of mental or physical disability 
or has been engaged in professional or personal misconduct of such a 
serious nature as to demonstrate that he or she is lacking in integrity 
or is failing to meet the ethical standards of the profession or is 
otherwise unworthy or unqualified to perform the duties of a judge 
advocate or attorney, such information should be reported to the 
commanding officer of that judge advocate or, in the case of civilian 
counsel, to the officer exercising general court-martial jurisdiction 
over the command convening the proceedings or to the Judge Advocate 
General.
    (b) Form of report. The report shall:
    (1) Be in writing, under oath or affirmation, and made and signed by 
the individual reporting the information.
    (2) State that the individual reporting the information has personal 
knowledge or belief or has otherwise received reliable information 
indicating that:
    (i) The counsel is, or has been, unable to discharge properly all 
the duties of his or her office by reason of mental or physical 
disability; or
    (ii) The counsel is or has been engaged in professional or personal 
misconduct of such a serious nature as to demonstrate that he or she is 
lacking

[[Page 53]]

in integrity or is failing to meet the ethical standards of the 
profession; or
    (iii) The counsel is unworthy or unqualified to perform his or her 
duties;
    (3) Set forth the grounds of the allegation together with all 
relevant facts; and
    (4) Be forwarded to the appropriate authority as set forth in 
paragraph (a).
    (c) Consideration of the Report--(1) Action by the Commanding 
Officer of a judge advocate. Upon receipt of the report, the commanding 
officer:
    (i) Shall dismiss any report relating to the performance of a judge 
advocate more properly appealed under law or any report that is 
frivolous, unfounded, or vague and return it to the reporting 
individual;
    (ii) May make further inquiry into the report at his or her 
discretion to determine the merits of the report. The commanding officer 
may appoint an officer to investigate informally the allegations of the 
report to determine whether further action is warranted. Any officer so 
appointed should be a judge advocate senior in rank to the judge 
advocate being investigated;
    (iii) May take appropriate action to address and dispose of the 
matter being mindful of such measures as warning, counseling, caution, 
instruction, proceedings in contempt, therapy, and other punitive or 
administrative action; or
    (iv) Shall, if the commanding officer is of the opinion that 
evidence of disability or professional or personal misconduct exists, 
and that remedial measures short of suspension or decertification are 
not appropriate or will not be effective, forward the original 
complaint, a written report of the inquiry or investigation, all other 
relevant information, and his or her comments and recommendations to the 
officer in the chain of command exercising general court-martial 
authority.
    (2) Action by officer exercising general court-martial authority. 
(i) Upon receipt of a report of an allegation of misconduct or 
disability of a counsel, the officer exercising general court-martial 
convening authority:
    (A) May take the action authorized by subsections (c)(1)(i), (ii) or 
(iii); or
    (B) Shall, if he or she considers that evidence of disability or 
professional or personal misconduct exists and that other remedial 
measures short of suspension or decertification are not appropriate or 
will not be effective, appoint a board of officers to investigate the 
matter and to report its findings and its recommendations. This board 
shall be comprised of at least three officers, each an Article 27(b), 
Uniform Code of Military Justice, certified judge advocate. If 
practicable, each of the officers of the board should be senior to the 
judge advocate under investigation. If the counsel is a member of the 
Marine Corps, a majority of the members of the board should be Marine 
Corps judge advocates. The senior officer of the board shall cause 
notice to be given to the counsel, judge advocate or civilian 
(respondent), informing him or her of the misconduct or other 
disqualification alleged and affording him or her the opportunity to 
appear before the board for a hearing. The respondent shall be permitted 
at least ten (10) days' notice prior to the hearing. Failure to appear 
on a set date after notice shall constitute waiver of appearance, absent 
good cause shown. The respondent shall be generally afforded the rights 
of a party as set out in section 0304 of this Manual, except that, in 
the event the judge advocate respondent wishes to have military counsel 
appointed, he or she shall not have the right to select or identify a 
particular military counsel. A civilian respondent may not be 
represented by military counsel, but may be represented by civilian 
counsel at no expense to the Government. Upon ascertaining the relevant 
facts after notice and hearing, a written report of the findings and 
recommendations of the board shall be made to the officer who convened 
the board. In all cases, a written copy of the board's findings and 
recommendations shall be provided to the respondent. The respondent 
shall be given an opportunity to comment on the report in writing.
    (ii) Upon receipt of the report of the board of investigation, the 
officer exercising general court-martial authority shall:
    (A) Return the report to the board for further investigation, if the 
investigation is determined to be incomplete; or

[[Page 54]]

    (B) Forward the report of the board of investigation to the Judge 
Advocate General together with comments and recommendations concerning 
suspension of the counsel involved.
    (3) Action by the Judge Advocate General. (i) Upon receipt of a 
report of an allegation of misconduct or disability of a counsel, the 
Judge Advocate General:
    (A) May take the action authorized by subsections (c)(1)(i), (ii), 
or (iii);
    (B) May appoint a board of officers for investigation and hearing in 
accordance with subsections (c)(2)(i)(B) or
    (C) May request the officer exercising general court-martial 
jurisdiction over the command of the respondent (if judge advocate 
counsel) or over the proceedings (if civilian counsel) to take the 
matter for investigation and hearing in accordance with subsection 
(c)(2)(i)(B).
    (ii) Upon receipt of the report of the investigating board, the 
Judge Advocate General:
    (A) May determine whether the respondent is to be suspended or 
decertified and, if so, whether for a stated term or indefinitely;
    (B) May determine that the findings of the board do not warrant 
further action; or
    (C) May return the report to the sending officer with appropriate 
instructions for further inquiry or action. The Judge Advocate General 
may, sua sponte, or upon petition of the respondent, modify or revoke 
any prior order of suspension or dismissal of a report. Further, if the 
Judge Advocate General suspends counsel, the Judge Advocates General of 
the other armed forces will be notified.
    (d) Grounds justifying suspension of counsel or suspension or 
decertification of a Judge Advocate. (1) Suspension or decertification 
is to be employed only after it has been established that a counsel has 
been unable to discharge properly all the duties of his or her office by 
reason of mental or physical disability or has been engaged in 
professional or personal misconduct of such a serious nature as to 
demonstrate that he or she is lacking in integrity or is failing to meet 
the ethical standards of the profession or is otherwise unworthy or 
unqualified to perform the duties of a counsel Action to suspend or 
decertify should not be initiated because of personal prejudice or 
hostility toward counsel, nor should such action be initiated because 
counsel has initiated an aggressive, zealous or novel defense, or the 
apparent misconduct stems from inexperience or lack of instruction.
    (2) Specific grounds for suspension or decertification include, but 
are not limited to, the following:
    (i) Demonstrated incompetence while acting as counsel before, during 
or after a court-martial.
    (ii) Preventing or obstructing justice, including the deliberate use 
of frivolous or unwarranted dilatory tactics.
    (iii) Fabricating papers or other evidence.
    (iv) Tampering with a witness.
    (v) Abusive conduct toward the court-martial, the Navy-Marine Corps 
Court of Military Review, the military judge, or opposing counsel.
    (vi) Flagrant or repeated violations of any specific rules of 
conduct prescribed for counsel in the Manual for Courts-Martial.
    (vii) Conviction of an offense involving moral turpitude or 
conviction for violation of article 48, UCMJ.
    (viii) Disbarment by a State Bar, Federal Court, or the United 
States Court of Military Appeals.
    (ix) Suspension as counsel by the Judge Advocate General of the 
Navy, Army, or Air Force or the General Counsel of the Department of 
Transportation.
    (x) Flagrant or repeated violations of the Uniform Rules of Practice 
Before Navy-Marine Corps Courts-Martial as outlined in appendix A-1-p(1) 
of the Manual of the Judge Advocate General.
    (xi) Flagrant or repeated violations of the provisions of section 
0134 of this Manual of the Judge Advocate General dealing with the 
Release of Information Pertaining to Accused Persons; Spectators at 
Judicial Sessions.
    (xii) Failure to meet the rules set forth in the ABA Code of 
Professional Responsibility and the ABA Standards on Fair Trial and Free 
Press and The Prosecution Function and the Defense Function. In view of 
the unique mission

[[Page 55]]

and personal requirements of the military, many of the rules and 
principles of the ABA Code or Standards are not applicable to the 
military lawyer. Accordingly, the rules are to be used as a guide only, 
and a failure to comply with the specific wording of a rule is not to be 
construed as a violation of the rule where common sense would indicate 
to a reasonable person that there is a distinction between the civilian 
context, which the codes were drafted to embrace, and the unique 
concerns of the military setting, where the codes serve as a general 
guide.

[50 FR 23801, June 6, 1985]



Sec.  719.143  Petition for new trial under 10 U.S.C. 873.

    (a) Statutory provisions. 10 U.S.C. 873, provides, ``At any time 
within 2 years after approval by the convening authority of a court-
martial sentence, the accused may petition the Judge Advocate General 
for a new trial on the grounds of newly discovered evidence or fraud on 
the court. If the accused's case is pending before a Court of Military 
Review or before the Court of Military Appeals, that Judge Advocate 
General shall refer the petition to the appropriate court for action. 
Otherwise the Judge Advocate General shall act upon the petition.''
    (b) Submission procedures: At any time within 2 years after approval 
by the convening authority of a court-martial sentence, the accused may 
petition the Judge Advocate General for a new trial on the ground of 
newly discovered evidence or fraud on the court-martial. The petition 
for new trial may be submitted by the accused personally, or by 
accused's counsel, regardless of whether the accused has been separated 
from the service. A petition may not be submitted after the death of the 
accused.
    (c) Contents of petitions: The form and contents of petitions for 
new trial are specified in MCM, 1984, R.C.M. 1210(c). The petition for a 
new trial shall be written and shall be signed under oath or affirmation 
by the accused, by a person possessing the power of attorney of the 
accused for that purpose, or by a person with the authorization of an 
appropriate court to sign the petition as the representative of the 
accused. The petition shall contain the following information, or an 
explanation why such matters are not included:
    (1) The name, service number, and current address of the accused;
    (2) The date and location of the trial;
    (3) The type of court-martial and the title or position of the 
convening authority;
    (4) The request for the new trial;
    (5) The sentence or a description thereof as approved or affirmed, 
with any later reduction thereof by clemency or otherwise,
    (6) A brief description of any finding or sentence believed to be 
unjust;
    (7) A full statement of the newly discovered evidence or fraud on 
the court-martial which is relied upon for the remedy sought;
    (8) Affidavits pertinent to the matters in subsection (6)i; and
    (9) Affidavit of each person whom the accused expects to present as 
a witness in the event of a new trial. Each affidavit should set forth 
briefly the relevant facts within the personal knowledge of the witness.
    (d) Who may act on petition. If the accused's case is pending before 
a Court of Military Review or the Court of Military Appeals, the Judge 
Advocate General shall refer the petition to the appropriate court for 
action. Otherwise, the Judge Advocate shall act on the petition.
    (e) Ground for new trial. A new trial may be granted only on grounds 
of newly discovered evidence or fraud on the court-martial.
    (1) A new trial shall not be granted on the grounds of newly 
discovered evidence unless the petition shows that;
    (i) The evidence was discovered after the trial,
    (ii) The evidence is not such that it would have been discovered by 
the petitioner at the time of trial in the exercise of due diligence; 
and
    (iii) The newly discovered evidence, if considered by a court-
martial in the light of all other pertinent evidence, would probably 
produce a substantially more favorable result for the accused.
    (2) No fraud on the court-martial warrants a new trial unless it had 
a substantial contributing effect on a finding of guilty or the sentence 
adjudged.

[[Page 56]]

    (f) Action on the petition. (1) The authority considering the 
petition may cause such additional investigation to be made and such 
additional information to be secured as that authority believes 
appropriate. Upon written request, and in his discretion, the authority 
considering the petition may permit oral argument on the matter.
    (2) When a petition is considered by the Judge Advocate General, any 
hearing may be before the Judge Advocate General or before an officer or 
officers designated by the Judge Advocate General.
    (3) If the Judge Advocate General believes meritorious grounds for 
relief under Article 74, Uniform Code of Military Justice have been 
established but that a new trial is not appropriate, the Judge Advocate 
General may act under article 74, Uniform Code of Military Justice, if 
authorized, or transmit the petition and related papers to the Secretary 
concerned with a recommendation.
    (4) The Judge Advocate may also, in cases which have been finally 
reviewed but have not been reviewed by a Court of Military Review, act 
under article 69, Uniform Code of Military Justice.

[50 FR 23803, June 6, 1985]



Sec.  719.144  Application for relief under 10 U.S.C. 869, in 
cases which have been finally reviewed.

    (a) Statutory provisions. 10 U.S.C. 869 provides in pertinent part, 
``The findings or sentence, or both, in a court-martial case not 
reviewed under subsection (a) or under section 866 of this title 
(article 66) may be modified or set aside, in whole or in part, by the 
Judge Advocate General on the ground of newly discovered evidence, fraud 
on the court, lack of jurisdiction over the accused or the offense, 
error prejudicial to the substantial rights of the accused, or the 
appropriateness of the sentence. If such a case is considered upon 
application of the accused, the application must be filed in the Office 
of the Judge Advocate General by the accused on or before the last day 
of the two-year period beginning on the date the sentence is approved 
under section 860(c) of this title (article 60(c)), unless the accused 
establishes good cause for failure to file within that time.''
    (b) Time limitations. In order to be considered by the Judge 
Advocate General, an application for relief must be placed in military 
channels if the applicant is on active duty, or be deposited in the mail 
if the applicant is no longer on active duty, on or before the last day 
of the two-year period beginning on the date the sentence is approved by 
the convening authority. An application not filed in compliance with 
these time limits may be considered if the Judge Advocate General 
determines, in his or her sole discretion, that ``good cause'' for 
failure to file within the time limits has been established by the 
applicant.
    (c) Submission procedures. Applications for relief may be submitted 
to the Judge Advocate General by letter. If the accused is on active 
duty, the application shall be submitted via the applicant's commanding 
officer, and the command that convened the court, and the command that 
reviewed the case under 10 U.S.C. 864(a) or (b). If the original record 
of trail is held by the command that reviewed the case under 10 U.S.C. 
864(a) or (b), it shall be forwarded as an enclosure to the endorsement. 
If the original record of trial has been filed in the National Personnel 
Records Center, the endorsement will include all necessary retrieval 
data (accession number, box number, and shelf location) obtained from 
the receipt returned from the National Personnel Records Center to the 
sending activity. This endorsement shall also include information and 
specific comment on the grounds for relief asserted in the application, 
and an opinion on the merits of the application. If the applicant is no 
longer on active duty, the application may be submitted directly to the 
Judge Advocate General.
    (d) Contents of applications. All applications for relief shall 
contain:
    (1) Full name of the applicant;
    (2) Social Security number and branch of service, if any;
    (3) Present grade if on active duty or retired, or ``civilian'' or 
``deceased'' as applicable;
    (4) Address at time the application is forwarded;
    (5) Date of trial;
    (6) Place of trial;

[[Page 57]]

    (7) Command title of the organization at which the court-martial was 
convened (convening authority);
    (8) Command title of the officer exercising review authority in 
accordance with 10 U.S.C. 864 over the applicant at the time of trial, 
if applicable;
    (9) Type of court-martial which convicted the applicant, and 
sentence adjudged;
    (10) General grounds for relief which must be one or more of the 
following:
    (i) Newly discovered evidence;
    (ii) Fraud on the court;
    (iii) Lack of jurisdiction over the accused or the offense;
    (iv) Error prejudicial to the substantial rights of the accused;
    (v) Appropriateness of the sentence;
    (11) An elaboration of the specific prejudice resulting from any 
error cited. (Legal authorities to support the applicant's contentions 
may be included, and the format used may take the form of a legal brief 
if the applicant so desires.);
    (12) Any other matter which the applicant desires to submit;
    (13) Relief requested; and
    (14) Facts and circumstances to establish ``good cause'' for a 
failure to file the application within the time limits prescribed in 
paragraph (b) of this section, if applicable; and
    (15) If the application is signed by a person other than the 
applicant pursuant to subsection e, an explanation of the circumstances 
rendering the applicant incapable of making application. The applicant's 
copy of the record of trial will not be forwarded with the application 
for relief, unless specifically requested by the Judge Advocate General.
    (e) Signatures on applications. Unless incapable of making 
application, the applicant shall personally sign the application under 
oath before an official authorized to administer oaths. If the applicant 
is incapable of making application, the application may be signed under 
oath and submitted by the applicant's spouse, next of kin, executor, 
guardian or other person with a proper interest in the matter. In this 
regard, one is considered incapable of making application for purposes 
of this section when unable to sign the application under oath due to 
physical or mental incapacity.

[50 FR 23804, June 6, 1985]



Sec. Sec.  719.145-719.150  [Reserved]



Sec.  719.151  Furnishing of advice and counsel to accused placed
in pretrial confinement.

    The Department of the Navy Corrections Manual, SECNAVINST 1640.9, 
reiterates the requirement of Article 10, UCMJ, that, when a person is 
placed in pretrial confinement, immediate steps should be taken to 
inform the confinee of the specific wrong of which he is accused and try 
him or to dismiss the charges and release him. The Corrections Manual 
requires that this information normally will be provided within 48 hours 
along with advice as to the confinee's right to consult with lawyer 
counsel and his right to prepare for trial. Lawyer counsel may be either 
a civilian lawyer provided by the confinee at his own expense or a 
military lawyer provided by the Government. If a confinee requests to 
confer with a military lawyer, such lawyer should normally be made 
available for consultation within 48 hours after the request is made.

[39 FR 18437, May 28, 1974]



Sec.  719.155  Application under 10 U.S.C. 874(b) for the substitution
of an administrative form of discharge for a punitive discharge or
dismissal.

    (a) Statutory provisions. 10 U.S.C. 874(b) provides that the 
``Secretary concerned may, for good cause, substitute an administrative 
form of discharge for a discharge or dismissal executed in accordance 
with the sentence of a court-martial.''
    (b) Submission procedures. Applications for relief will be submitted 
to the Secretary using the following address: Secretary of the Navy 
(Judge Advocate General, Code 20), 200 Stovall Street, Alexandria, VA 
22332-2400. Except in unusual circumstances, applications will not 
normally be considered if received within five (5) years of the 
execution of the punitive discharge or dismissal, or within five (5) 
years of disapproval of a prior request under 10 U.S.C. 874(b).

[[Page 58]]

    (c) Contents of the application. All applications shall contain:
    (1) Full name of the applicant;
    (2) Social Security Number, service number (if different), and 
branch of service of the applicant;
    (3) Present age and date of birth of the applicant;
    (4) Present residence of the applicant;
    (5) Date and place of the trial, and type of court-martial which 
resulted in the punitive discharge or dismissal;
    (6) Command title of the convening authority of the court-martial 
which resulted in the punitive discharge or dismissal;
    (7) Offense(s) of which the applicant was convicted, and sentence 
finally approved from the trial which resulted in the punitive discharge 
or dismissal;
    (8) Date the punitive discharge or dismissal was executed;
    (9) Applicant's present marital status, and number and ages of 
dependents, if any;
    (10) Applicant's civilian criminal record (arrest(s) with 
disposition, and conviction(s)), both prior and subsequent to the court-
martial which resulted in the punitive discharge or dismissal;
    (11) Applicant's entire court-martial record (offense(s) of which 
convicted and finally approved sentence(s)), and nonjudicial punishment 
record (including offense(s) and punishment(s) awarded);
    (12) Any military administrative discharge proceedings 
(circumstances and disposition) initiated against the applicant;
    (13) Applicant's full employment record since the punitive discharge 
or dismissal was executed;
    (14) The specific type and character of administrative discharge 
requested pursuant to 10 U.S.C. 874(b) (a more favorable administrative 
discharge than that requested will not be approved);
    (15) At least three but not more than six character affidavits, (The 
character affidavits must be notarized, must indicate the relationship 
of the affiant to the applicant, and must include the address of the 
affiant as well as specific reasons why the affiant believes the 
applicant to be of good character. The affidavits should discuss the 
applicant's character primarily as reflected in the civilian community 
subsequent to the punitive discharge or dismissal which is the subject 
of the application);
    (16) Any matters, other than the character affidavits, supporting 
the considerations described in subparagraph (18) below;
    (17) Any other relief sought within the Department of the Navy and 
outside the Department of the Navy including dates of application and 
final dispositions;
    (18) A statement by the applicant, setting forth the specific 
considerations which the applicant believes constitute ``good cause,'' 
so as to warrant the substitution of an administrative form of discharge 
for the punitive discharge or dismissal previously executed. (In this 
connection, 10 U.S.C. 874(b) does not provide another regular or 
extraordinary procedure for the review of a court-martial. Questions of 
guilt or innocence, or legal issues attendant to the court-martial which 
resulted in the punitive discharge or dismissal, are neither relevant 
nor appropriate for consideration under 10 U.S.C. 874(b). As used in the 
statute, ``good cause'' was envisioned by Congress to encompass only 
Secretarial exercise of clemency and ultimate control of sentence 
uniformity. Accordingly, in determining what constitutes ``good cause'' 
under 10 U.S.C. 874(b), the primary Secretarial concern will be with the 
applicant's record in the civilian community subsequent to his or her 
punitive separation. Material submitted by the 10 U.S.C. 874(b) 
applicant should be consistent with the foregoing.)
    (d) Signature on application. Unless incapable of making application 
himself or herself, the applicant shall personally sign the application, 
under oath, before a notary or other official authorized to administer 
oaths. If the applicant is incapable of executing the application, the 
application may be signed under oath and submitted by the applicant's 
spouse, next of kin, executor, guardian and other person recognized as a 
personal representative by the law of the applicant's domicile. One is 
considered incapable of executing an application for purposes of this 
paragraph only when the applicant is unable to sign the application 
under

[[Page 59]]

oath due to physical or mental incapacity. When an application is signed 
by a person other than the applicant, the circumstances rendering the 
applicant incapable of making sworn application shall be set forth in 
the application, with appropriate documentation.
    (e) Privacy Act Statement. Disclosure of personal information 
requested by paragraph (c) of this section is voluntary; however, 
failure to accurately provide all requested information may result in 
the application being denied because of inadequate documentation of good 
cause.

[47 FR 49645, Nov. 2, 1982, as amended at 50 FR 23804, June 6, 1985]



PART 720_DELIVERY OF PERSONNEL; SERVICE OF PROCESS AND SUBPOENAS; 
PRODUCTION OF OFFICIAL RECORDS--Table of Contents



                     Subpart A_Delivery of Personnel

Sec.
720.1 Delivery of persons requested by State authorities in criminal 
          cases.
720.2 Delivery when persons are within the territorial limits of the 
          requesting State.
720.3 Delivery when persons are beyond territorial limits of the 
          requesting State.
720.4 Persons stationed outside the United States.
720.5 Authority of the Judge Advocate General and the General Counsel.
720.6 Agreement required prior to delivery to State authorities.
720.7 Delivery of persons to Federal authorities.
720.8 Delivery of persons to foreign authorities.
720.9 Circumstances in which delivery is refused.
720.10 Members released by civil authorities on bail or on their own 
          recognizance.
720.11 Interviewing servicemembers or civilian employees by Federal 
          civilian investigative agencies.
720.12 Request for delivery of members serving sentence of court-
          martial.
720.13 Request for delivery of members serving sentence of a State 
          court.
720.14-720.19 [Reserved]

        Subpart B_Service of Process and Subpoenas Upon Personnel

720.20 Service of process upon personnel.
720.21 Members or civilian employees subpoenaed as witnesses in State 
          courts.
720.22 Members or civilian employees subpoenaed as witnesses in Federal 
          courts.
720.23 Naval prisoners as witnesses or parties in civilian courts.
720.24 Interviews and depositions in connection with civil litigation in 
          matters pertaining to official duties.
720.25 Repossession of personal property.
720.26-720.29 [Reserved]

                Subpart C_Production of Official Records

720.30 Production of official records in response to court order.
720.31 Production of official records in the absence of court order.
720.32 Certificates of full faith and credit.

    Subpart D_Compliance With Court Orders by Department of the Navy 
    Members, Employees, and Family Members Outside the United States

720.40 Purpose.
720.41 Definitions.
720.42 Policy.
720.43 Points of contact.
720.44 Responsible officials.
720.45 Procedures.
720.46 Overseas screening programs.
720.47 Report.

    Authority: 5 U.S.C. 301; 10 U.S.C. 5031 and 5148; 32 CFR 700.206 and 
700.1202.



                     Subpart A_Delivery of Personnel

    Source: 57 FR 5228, Feb. 13, 1992, unless otherwise noted.



Sec.  720.1  Delivery of persons requested by State authorities in
criminal cases.

    Subpart A of this part deals with requests by State authorities for 
the surrender of members or civilians pursuant to arrest warrants or 
similar process, generally in connection with a criminal prosecution. 
Responding to such requests by a State for delivery of members or 
civilian employees involves balancing the Federal interest in preserving 
sovereign immunity and the productivity, peace, good order, and 
discipline of the installation against the right of the State to 
exercise its jurisdiction. Additionally, by regulation, naval and Marine 
authorities are limited in the extent to which they can directly assist 
such an act. Commands should respond to such requests as set out below, 
generally using the minimum authority necessary to preserve the Federal 
interests without unduly restricting State jurisdiction.

[[Page 60]]



Sec.  720.2  Delivery when persons are within the territorial limits
of the requesting State.

    When the delivery of any member or civilian is requested by local 
civil authorities of a State for an offense punishable under the laws of 
that jurisdiction, and such person is located at a Navy or Marine Corps 
installation within the requesting jurisdiction, or aboard a ship within 
the territorial waters of such jurisdiction, commanding officers are 
authorized to and normally will deliver such person when a proper 
warrant is issued. In the case of a member, delivery will only be 
effected upon compliance with Sec.  720.6, subject to the exceptions in 
Sec.  720.9. A judge advocate of the Navy or Marine Corps should be 
consulted before delivery is effected. The rule discussed above applies 
equally to civilian employees and civilian contractors and their 
employees when located on a Navy or Marine Corps installation, except 
that compliance with Sec.  720.6 and consideration of Sec.  720.9 are 
not required (for purposes of this part, ``State'' includes the District 
of Columbia, territories, commonwealths, and all possessions or 
protectorates of the United States). Commands should normally not become 
actively involved in civilian law enforcement. When a command has 
determined that a person is to be delivered in response to a valid 
warrant, the following guidance should be considered. If the person to 
be delivered is a military member, the member may be ordered to report 
to a location designated by the commanding officer and surrendered to 
civil authorities under Article 14, UCMJ (10 U.S.C. 814). If the person 
to be delivered is a civilian, the person may be invited to report to 
the designated space for delivery. If the civilian refuses, the civilian 
authorities may be escorted to a place where the civilian is located in 
order that delivery may be effected. A civilian may be directed to leave 
a classified area. All should be done with minimum interference to good 
order and discipline.



Sec.  720.3  Delivery when persons are beyond territorial limits of
the requesting State.

    (a) General. When State civil authorities request delivery of any 
member of the Navy or Marine Corps for an alleged crime or offense 
punishable under the law of the jurisdiction making the request, and 
such member is not attached to a Navy or Marine Corps activity within 
the requesting State or a ship within the territorial waters thereof, 
the following action will be taken. Any officer exercising general 
court-martial jurisdiction, or officer designated by him, or any 
commanding officer, after consultation with a judge advocate of the Navy 
or Marine Corps, is authorized (upon compliance with the provisions of 
this section and Sec.  720.6, and subject to the exceptions in Sec.  
720.9) to deliver such member to make the member amenable to 
prosecution. The member may be delivered upon formal or informal waiver 
of extradition in accordance with Sec.  720.3(b), or upon presentation 
of a fugitive warrant, in which case the procedures of Sec.  720.3(c) 
apply. The rule discussed above applies equally to civilian employees 
and civilian contractors and their employees when located on a 
Department of the Navy installation not within the requesting State, 
except that compliance with Sec.  720.6 and consideration of Sec.  720.9 
are not required.
    (b) Waiver of extradition. (1) Any member may waive formal 
extradition. A waiver must be in writing and be witnessed. It must 
include a statement that the member signing it has received counsel of 
either a military or civilian attorney prior to executing the waiver, 
and it must further set forth the name and address of the attorney 
consulted.
    (2) In every case where there is any doubt as to the voluntary 
nature of a waiver, such doubt shall be resolved against its use and all 
persons concerned will be advised to comply with the procedures set 
forth in Sec.  720.3(c).
    (3) Executed copies of all waivers will be mailed to the Judge 
Advocate General immediately after their execution.
    (4) When a member declines to waive extradition, the nearest Naval 
Legal Service Office or Marine Corps staff judge advocate shall be 
informed and

[[Page 61]]

shall confer with the civil authorities as appropriate. The member 
concerned shall not be transferred or ordered out of the State in which 
he is then located without the permission of the Secretary of the Navy 
(Judge Advocate General), unless a fugitive warrant is obtained as set 
forth in Sec.  720.3(c).
    (c) Fugitive warrants. (1) A fugitive warrant, as used in this 
chapter, is a warrant issued by a State court of competent jurisdiction 
for the arrest of a member. Normally, a State requesting delivery of a 
member from another State will issue a fugitive warrant to the State 
where the member is then located.
    (2) Upon issuance of a fugitive warrant by the requesting State to 
the State in which the member is located, the latter State will normally 
request delivery of the member to local State authorities. Delivery to 
local State authorities should be arranged by Navy or Marine Corps 
officers designated in Sec.  720.3(a), upon compliance with the 
provisions of Sec.  720.6, and subject to the conditions of Sec. Sec.  
720.9 and 720.3(c) (3) and (4).
    (3) Upon receipt of a request for delivery of a member under 
fugitive warrant to State authorities, if the member voluntarily waives 
extradition, the provisions of Sec.  720.3(b) apply. If the member is 
delivered to local authorities but refuses to waive extradition in the 
courts of the State in which he is located.
    (4) No delivery of a member by Navy or Marine Corps officers 
pursuant to a fugitive warrant or waiver of extradition shall be 
effected without completion of the agreement required by Sec.  720.6 and 
execution of such agreement either:
    (i) By authorities of both the requesting State and the State in 
which the member is located, or
    (ii) By authorities of the State in which the member is located if 
such authorities, on behalf of the requesting State, accept the full 
responsibility for returning the number to a command designated by the 
Department of the Navy.
    (d) Members stationed outside the United States. When the member 
sought by State authorities is not located within the United States, see 
Sec.  720.4.



Sec.  720.4  Persons stationed outside the United States.

    (a) Persons desired by local U.S. authorities. When delivery of any 
member in the Navy or Marine Corps, or any civilian employee or 
dependent, is desired for trial by state authorities and the individual 
whose presence is sought is stationed outside the United States, the 
provisions of subpart D of this part will be followed. In all such 
cases, the nearest judge advocate of the Navy or Marine Corps shall be 
consulted before any action is taken.
    (b) Members desired by U.S. Federal authorities. When delivery of 
any member of the Navy or Marine Corps is desired for trial in a Federal 
district court, upon appropriate representation by the Department of 
Justice to the Secretary of the Navy (Judge Advocate General), the 
member will be returned to the United States at the expense of the 
Department of the Navy and held at a military facility convenient to the 
Department of the Navy and to the Department of Justice. Delivery may be 
accomplished as set forth in Sec.  720.7, subject to the exceptions in 
Sec.  720.9.



Sec.  720.5  Authority of the Judge Advocate General and the General
Counsel.

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

[[Page 62]]

Counsel shares responsibility with the Judge Advocate General for 
environmental law cases.
---------------------------------------------------------------------------

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

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



Sec.  720.6  Agreement required prior to delivery to State authorities.

    (a) Delivery under Article 14, UCMJ. When delivery of any member of 
the Navy or Marine Corps to the civilian authorities of a State is 
authorized, the member's commanding officer shall, before making such 
delivery, obtain from the Governor or other duly authorized officer of 
such State a written agreement. The State official completing the 
agreement must show that he is authorized to bind the State to the terms 
of the agreement. When indicating in the agreement the naval or Marine 
Corps activity to which the member delivered is to be returned by the 
State, care should be taken to designate the closest appropriate 
activity (to the command to which the member is attached) that possesses 
special court-martial jurisdiction. The Department of the Navy considers 
this agreement substantially complied with when:
    (1) The member is furnished transportation (under escort in cases of 
delivery in accordance with Sec.  720.12) to a naval or Marine Corps 
activity as set forth in the agreement;
    (2) The member is provided cash to cover incidental expenses en 
route thereto; and
    (3) The Department of the Navy is so informed.

As soon as practicable, a copy of the delivery agreement shall be 
forwarded to the Judge Advocate General.
    (b) Delivery under Interstate Agreement on Detainers Act. Special 
forms are used when delivering prisoners under the Interstate Agreement 
on Detainers Act. The Act is infrequently used and most requests are 
pursuant to Article 14, UCMJ. See Sec.  720.12 for a detailed discussion 
of the Detainers Act.



Sec.  720.7  Delivery of persons to Federal authorities.

    (a) Authority to deliver. When Federal law enforcement authorities 
display proper credentials and Federal warrants for the arrest of 
members, civilian employees, civilian contractors and their employees, 
or dependents residing at or located on a Department of the Navy 
installation, commanding officers are authorized to and should allow the 
arrest of the individual sought. The exceptions in Sec.  720.9 may be 
applied to members. A judge advocate of the Navy or Marine Corps should 
be consulted before delivery is effected.
    (b) Agreement not required of Federal authorities. The agreement 
described in Sec.  720.6 is not a condition to the delivery of members 
to Federal law enforcement authorities. Regardless of whether the member 
is convicted or acquitted, after final disposition of the case, the 
member will be returned to the Naval Service (provided that naval 
authorities desire his return) and the necessary expenses will be paid 
from an appropriation under the control of the Department of Justice.



Sec.  720.8  Delivery of persons to foreign authorities.

    Except when provided by agreement between the United States and the 
foreign government concerned, commanding officers are not authorized to 
deliver members or civilian employees of the Department of the Navy, or 
their dependents residing at or located on a naval or Marine Corps 
installation, to foreign authorities. When a request for delivery of 
these persons is received in a country with which the United States has 
no agreement or when the commanding officer is in doubt, advice should 
be sought from the Judge Advocate General. Detailed information

[[Page 63]]

concerning the delivery of members, civilian employees, and dependents 
to foreign authorities when a status of forces agreement is in effect is 
contained in DoD Directive 5525.1 of 9 April 1985 and SECNAVINST 
5820.4F. \2\
---------------------------------------------------------------------------

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



Sec.  720.9  Circumstances in which delivery is refused.

    (a) Disciplinary proceedings pending. When disciplinary proceedings 
involving military offenses are pending, commanding officers should 
obtain legal guidance from a judge advocate of the Navy or Marine Corps 
prior to delivery of members to Federal or State authorities.
    (b) When delivery may be refused. Delivery may be refused only in 
the following limited circumstances:
    (1) Where the accused has been retained for prosecution; or
    (2) When the commanding officer determines that extraordinary 
circumstances exist which indicate that delivery should be refused.
    (c) Delivery under Detainers Act. When the accused is undergoing 
sentence of a court-martial, see Sec.  720.12.
    (d) Reports required. When delivery will be refused, the commanding 
officer shall report the circumstances to the Judge Advocate General by 
telephone, or by message if telephone is impractical. The initial report 
shall be confirmed by letter setting forth a full statement of the 
facts. A copy of the report shall be forwarded to the regional 
coordinator.



Sec.  720.10  Members released by civil authorities on bail or on
their own recognizance.

    A member of the Navy or Marine Corps arrested by Federal or State 
authorities and released on bail or on his own recognizance has a duty 
to return to his parent organization. Accordingly, when a member of the 
Navy or Marine Corps is arrested by Federal or State authorities and 
returns to his ship or station on bail, or on his own recognizance, the 
commanding officer, upon verification of the attesting facts, date of 
trial, and approximate length of time that should be covered by the 
absence, shall grant liberty or leave to permit appearance for trial, 
unless this would have a serious negative impact on the command. In the 
event that liberty or leave is not granted, a judge advocate of the Navy 
or Marine Corps should immediately be requested to act as liaison with 
the court. Nothing in this section is to be construed as permitting the 
member arrested and released to avoid the obligations of bond or 
recognizance by reason of the member's being in the military service.



Sec.  720.11  Interviewing servicemembers or civilian employees by
Federal civilian investigative agencies.

    Requests by the Federal Bureau of Investigation, Naval Investigative 
Service Command, or other Federal civilian investigative agencies to 
interview members or civilian employees of the Department of the Navy 
suspected or accused of crimes should be promptly honored. Any refusal 
of such a request shall be immediately reported to the Judge Advocate 
General, or the Office of General Counsel, as appropriate, by telephone, 
or by message if telephone is impractical. When the employee in question 
is a member of an exclusive bargaining unit, a staff judge advocate or 
General Counsel attorney will be consulted to determine whether the 
employee has a right to have a bargaining unit representative present 
during the interview.



Sec.  720.12  Request for delivery of members serving sentence of
court-martial.

    (a) General. Article 14, UCMJ (10 U.S.C. 814), provides authority to 
honor requests for delivery of members serving a sentence of a court-
martial. Although seldom utilized, additional authority and mandatory 
obligation to deliver such members are provided by the Interstate 
Agreement on Detainers Act (18 U.S.C. app. 9, hereinafter ``the Act''), 
which applies to the Federal agency holding the prisoner. The Department 
of the Navy, as an agency of the Federal Government, shall comply with 
the Act. The Act is designed to avoid speedy-trial issues and to aid in 
rehabilitation efforts by securing a greater degree of certainty about a 
prisoner's future. The Act provides a way for a prisoner to be tried on

[[Page 64]]

charges pending before State courts, either at the request of the State 
where the charges are pending or the prisoner's request. When refusal of 
delivery under Article 14, UCMJ, is intended, comply with Sec.  
720.9(d).
    (b) Interstate Agreement on Detainers Act. Upon request under the 
Act by either State authorities or the prisoner, the cognizant Navy or 
Marine Corps staff judge advocate, as appropriate, shall communicate 
with the appropriate State officials, and monitor and ensure that the 
cognizant commander acts on all such requests. The Act provides that 
court-martial sentences continue to run during temporary custody. This 
section does not cover requests between Federal authorities. The 
procedure set forth in Sec.  720.12(c) shall be applied in such cases.
    (1) State request. State officials may request delivery of prisoners 
in military custody under section 2, Article IV, of the Act. Where a 
detainer has been lodged against the prisoner, and the prisoner is 
serving a sentence (regardless of whether an appeal is in process), 
delivery is mandatory unless the request is disapproved by the Director 
of the Bureau of Prisons, Washington, DC, 20537 as the designee of the 
Attorney General for this purpose. 28 CFR 0.96(n). There has been no 
further delegation to military authority. The prisoner should be 
informed that he may request the Director of the Bureau of Prisons, 
Washington, DC 20537, within 30 days after such request is received, to 
deny the request. Upon the expiration of such 30-day period or upon the 
Director of the Bureau of Prisons' denial of the prisoner's request, 
whichever occurs first, the prisoner shall be delivered to the 
requesting authority.
    (2) Prisoner request. The obligation to grant temporary custody 
under the Act also applies to prisoners' requests to be delivered to 
State authority. Section 2, Article III(c) of the Act requires the 
custodial official to inform the prisoner of the existence of any 
detainer and of the prisoner's right to request disposition. The 
prisoner's request is directed to the custodial official who must 
forward it to the appropriate prosecuting official and court, with a 
certificate of prisoner status as provided by Article III of the Act.
    (c) Article 14, UCMJ. When a request for custody does not invoke the 
Interstate Agreement on Detainers Act, delivery of custody shall be 
governed by Article 14, UCMJ, and Sec. Sec.  720.2 through 720.9. The 
request shall be honored unless, in the exercise of discretion, there is 
an overriding reason for retaining the accused in military custody, 
e.g., additional courts-martial are to be convened or the delivery would 
severely prejudice the prisoner's appellate rights. Execution of the 
agreement discussed in Sec.  720.6 is a condition precedent to delivery 
to State authorities. It is not required before delivery to Federal 
authorities. See Sec.  720.7. Unlike delivery under the Act, delivery of 
custody pursuant to Article 14, UCMJ, interrupts execution of the court-
martial sentence.



Sec.  720.13  Request for delivery of members serving sentence of
a State court.

    (a) General. Ordinarily, members serving protracted sentences 
resulting from a State criminal conviction will be processed for 
administrative discharge by reason of misconduct. It may, however, be in 
the best interest of the Naval Service to retain a member charged with a 
serious offense, subject to military jurisdiction, to try the member by 
court-martial. The Navy may obtain temporary custody of incarcerated 
members for prosecution with a request to the State under the Interstate 
Agreement on Detainers Act. 18 U.S.C. app. 9. The Department of the Navy 
may use the Act in the same manner in which State authorities may 
request members purusant to Sec.  720.12.
    (b) Interstate Agreement on Detainers Act. Military authorities may 
use the Act to obtain temporary custody of a member incarcerated in a 
State institution, pursuant to conviction by a State court, to resolve 
criminal charges against the member before a court-martial.
    (1) Detainer. If a command requests temporary custody under the Act, 
the commanding officer of the cognizant naval legal service office or 
the Marine Corps staff judge advocate, shall file a

[[Page 65]]

detainer with the warden, commissioner of corrections, or other State 
official having custody of the member. The detainer shall identify the 
member with particularity, enumerate the military charges pending, and 
request the command be notified in advance of any intention to release 
the member from confinement.
    (2) Request for delivery. As soon as practical after filing the 
detainer, the commanding officer of the cognizant naval legal service 
office or the Marine Corps staff judge advocate, shall prepare a written 
request for temporary custody of the member addressed to the State 
official charged with administration of the State penal system. The 
request shall designate the person(s) to whom the member is to be 
delivered and shall be transmitted via the military judge to whom the 
member's case has been assigned. If the request is properly prepared, 
the military judge shall approve, record, and transmit the request to 
the addressee official. The Act provides the State with a 30-day period 
after receipt of the request before the request is to be honored. Within 
that period of time, the governor of the State may disapprove the 
request, either unilaterally or upon the prisoner's request. If the 
governor disapproves the request, the command should coordinate any 
further action with the Judge Advocate General.
    (3) Responsibilities. The cognizant command shall ensure that the 
responsibilities of a receiving jurisdiction, delineated in section 2, 
Article IV of the Act, are discharged. In particular, the Act requires 
that the receiving jurisdiction:
    (i) Commence the prisoner's trial within 120 days of the prisoner's 
arrival, unless the court, for good cause shown during an Article 39(a), 
UCMJ, session, grants a continuance necessary or reasonable to promote 
the ends of justice;
    (ii) Hold the prisoner in a suitable jail or other facility 
regularly used for persons awaiting prosecution, except for periods 
during which the prisoner attends court or travels to or from any place 
at which his presence may be required;
    (iii) Return the prisoner to the sending jurisdiction at the 
earliest practical time, but not before the charges that underlie the 
request have been resolved (prematurely returning the prisoner will 
result in dismissal of the charges); and
    (iv) Pay all costs of transporting, caring for, keeping, and 
returning the prisoner to the sending jurisdiction, unless the command 
and the State agree on some other allocation of the costs or 
responsibilities.



Sec. Sec.  720.14-720.19  [Reserved]



        Subpart B_Service of Process and Subpoenas Upon Personnel

    Source: 57 FR 5232, Feb. 13, 1992, unless otherwise noted.



Sec.  720.20  Service of process upon personnel.

    (a) General. Commanding officers afloat and ashore may permit 
service of process of Federal or State courts upon members, civilian 
employees, dependents, or contractors residing at or located on a naval 
installation, if located within their commands. Service will not be made 
within the command without the commanding officer's consent. The intent 
of this provision is to protect against interference with mission 
accomplishment and to preserve good order and discipline, while not 
unnecessarily impeding the court's work. Where practical, the commanding 
officer shall require that the process be served in his presence, or in 
the presence of a designated officer. In all cases, individuals will be 
advised to seek legal counsel, either from a legal assistance attorney 
or from personal counsel for service in personal matters, and from 
Government counsel for service in official matters. The commanding 
officer is not required to act as a process server. The action required 
depends in part on the status of the individual requested and which 
State issued the process.
    (1) In-State process. When a process server from a State or Federal 
court from the jurisdiction where the naval station is located requests 
permission to serve process aboard an installation, the command 
ordinarily should not

[[Page 66]]

prevent service of process so long as delivery is made in accordance 
with reasonable command regulations and is consistent with good order 
and discipline. Withholding service may be justified only in the rare 
case when the individual sought is located in an area under exclusive 
Federal jurisdiction not subject to any reservation by the State of the 
right to serve process. Questions on the extent of jurisdiction should 
be referred to the staff judge advocate, command counsel, or local naval 
legal service office. If service is permitted, an appropriate location 
should be designated (for example, the command legal office) where the 
process server and the member or employee can meet privately in order 
that process may be served away from the workplace. A member may be 
directed to report to the designated location. A civilian may be invited 
to the designated location. If the civilian does not cooperate, the 
process server may be escorted to the location of the civilian in order 
that process may be served. A civilian may be required to leave a 
classified area in order that the process server may have access to the 
civilian. If unusual circumstances require that the command not permit 
service, see Sec.  720.20(e).
    (2) Out-of-State process. In those cases where the process is to be 
served by authority of a jurisdiction other than that where the command 
is located, the person named is not required to accept process. 
Accordingly, the process server from the out-of-State jurisdiction need 
not be brought face-to-face with the person named in the process. 
Rather, the process server should report to the designated command 
location while the person named is contacted, apprised of the situation, 
and advised that he may accept service, but also may refuse. In the 
event that the person named refuses service, the process server should 
be so notified. If service of process is attempted from out-of-State by 
mail and refused, the refusal should be noted and the documents returned 
to the sender. Questions should be referred to the staff judge advocate, 
command counsel, or the local naval legal service office.
    (b) Service of process arising from official duties. (1) Whenever a 
member or civilian employee of the Department of the Navy is served with 
process because of his official position, the Judge Advocate General or 
the Associate General Counsel (Litigation), as appropriate, shall be 
notified by telephone, or by message if telephone is impractical. 
Notification shall be confirmed by a letter report by the nearest 
appropriate command. The letter report shall include the detailed facts 
which give rise to the action.
    (2) Any member or civilian employee served with Federal or State 
court civil or criminal process or pleadings (including traffic tickets) 
arising from actions performed in the course of official duties shall 
immediately deliver all such process and pleadings to the commanding 
officer. The commanding officer shall ascertain the pertinent facts and 
notify the Judge Advocate General or Associate General Counsel 
(Litigation), as appropriate, by telephone or by message if telephone is 
impractical, of the service and immediately forward the pleadings and 
process to the relevant office. The member or civilian employee will be 
advised of the right to remove civil or criminal proceedings from State 
to Federal court under 28 U.S.C. 1442, 1442a, rights under the Federal 
Employees Liability Reform and Tort Compensation Act (28 U.S.C. 2679b), 
if applicable, and the right of a Federal employee to request 
representation by Department of Justice attorneys in Federal (civil) or 
State (civil or criminal) proceedings and in congressional proceedings 
in which that person is sued in an individual capacity, as delineated in 
28 CFR 50.15. Requests for representation shall be addressed to the 
Judge Advocate General or Associate General Counsel (Litigation), as 
appropriate, and shall be endorsed by the commanding officer, who shall 
provide all necessary data relating to the questions of whether the 
person was acting within the course of official duty or scope of 
employment at the time of the incident out of which the suit arose.
    (3) If the service of process involves a potential claim against the 
Government, see 32 CFR 750.12(a), 750.12(b), and 750.24. The right to 
remove to Federal Court under 28 U.S.C. 1442 and 1442a must be 
considered where the

[[Page 67]]

outcome of the State court action may influence a claim or potential 
claim against the United States. Questions should be directed to the 
Judge Advocate General or the Associate General Counsel (Litigation).
    (c) Service of process of foreign courts. (1) Usually, the 
amenability of members, civilian employees, and their dependents 
stationed in a foreign country, to the service of process from courts of 
the host country will have been settled by an agreement between the 
United States and the foreign country concerned (for example, in the 
countries of the signatory parties, amenability to service of civil 
process is governed by paragraphs 5(g) and 9 of Article VIII of the NATO 
Status of Forces Agreement, TIAS 2846). When service of process on a 
person described above is attempted within the command in a country in 
which the United States has no agreement on this subject, advice should 
be sought from the Judge Advocate General or the Associate General 
Counsel (Litigation), as appropriate. When service of process is upon 
the United States Government or one of its agencies or instrumentalities 
as the named defendant, the doctrine of sovereign immunity may allow the 
service of process to be returned to the court through diplomatic 
channels. Service of process directed to an official of the United 
States, on the other hand, must always be processed in accordance with 
the applicable international agreement or treaty, regardless of whether 
the suit involves acts performed in the course of official duties. The 
Judge Advocate General or the Associate General Counsel (Litigation), as 
appropriate, will arrange through the Department of Justice for defense 
of the suit against the United States or an official acting within the 
scope of official duties, or make other arrangements, and will issue 
instructions.
    (2) Usually, the persons described in Sec.  720.20(c)(1) are not 
required to accept service of process outside the geographic limits of 
the jurisdiction of the court from which the process issued. In such 
cases, acceptance of the service is not compulsory, but service may be 
voluntarily accepted in accordance with Sec.  720.20(b). In exceptional 
cases when the United States has agreed that service of process will be 
accepted by such persons when located outside the geographic limits of 
the jurisdiction of the court from which the process issued, the 
provisions of the agreement and of Sec.  720.20(a) will govern.
    (3) Under the laws of some countries (such as Sweden), service of 
process is effected by the document, in original or certified copy, 
being handed to the person for whom the service is intended. Service is 
considered to have taken place even if the person refuses to accept the 
legal documents. Therefore, if a commanding officer or other officer in 
the military service personally hands, or attempts to hand, that person 
the document, service is considered to have been effected, permitting 
the court to proceed to judgment. Upon receipt of foreign process with a 
request that it be served upon a person described in Sec.  720.20(c)(1), 
a commanding officer shall notify the person of the fact that a 
particular foreign court is attempting to serve process and also inform 
that person that the process may be ignored or received. If the person 
to be served chooses to ignore the service, the commanding officer will 
return the document to the embassy or consulate of the foreign country 
with the notation that the commanding officer had the document, that the 
person chose to ignore it, and that no physical offer of service had 
been made. The commanding officer will advise the Judge Advocate General 
or the Associate General Counsel (Litigation), as appropriate, of all 
requests for service of process from a foreign court and the details 
thereof.
    (d) Leave or liberty to be granted persons served with process. When 
members or civilian employees are either served with process, or 
voluntarily accept service of process, in cases where the United States 
is not a party to the litigation, the commanding officer normally will 
grant leave or liberty to the person served to permit compliance with 
the process, unless to do so would have an adverse impact on naval 
operations. When a member or civilian employee is a witness for a 
nongovernmental party because of performance of official duties, the 
commanding officer may issue the person concerned

[[Page 68]]

permissive orders authorizing attendance at the trail at no expense to 
the Government. The provisions of 32 CFR part 725 must also be 
considered in such cases. Members or civilian employees may accept 
allowances and mileage tendered; however, any fees tendered for 
testimony must be paid to the Department of the Navy unless the member 
or employee is on authorized leave while attending the judicial 
proceeding. When it would be in the best interests of the United States 
Government (for example, in State criminal trails), travel funds may be 
used to provide members and civilian employees as witnesses as provided 
in the Joint Federal Travel Regulations. Responsibility for the payment 
of the member's mileage and allowances will be determined pursuant to 
the Joint Federal Travel Regulations, Volume 1, paragraph M6300, 
subsections 1-3. \3\
---------------------------------------------------------------------------

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

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



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

    Where members or civilian employees are subpoenaed to appear as 
witnesses in State courts, and are served as described in Sec. Sec.  
720.20, 720.20(d) applies. If these persons are requested to appear as 
witnesses in State courts when the interests of the Federal Government 
are involved (e.g., Medical Care Recovery Act cases), follow the 
procedures described in Sec.  720.22. If State authorities are 
attempting to obtain the presence of a member or a civilian employee as 
a witness in a civil or criminal case, and such person is unavailable 
because of an overseas assignment, the command should immediately 
contact the Judge Advocate General, or the Associate General Counsel 
(Litigation), as appropriate.



Sec.  720.22  Members or civilian employees subpoenaed as witnesses
in Federal courts.

    (a) Witnesses on behalf of Federal Government. When members or 
civilian employees of the Department of the Navy are required to appear 
as witnesses in a Federal Court to testify on behalf of the Federal 
Government in cases involving Department of the Navy activities, the 
Chief of Naval Personnel or the Commandant of the Marine Corps, as 
appropriate, will issue temporary additional duty orders to that person. 
The charges for such orders will be borne by the activity to which the 
required witness is attached. Payment to witnesses will be as provided 
by the Joint Federal Travel Regulations and U.S. Navy travel 
instructions. If the required witness is to appear in a case in which 
the activities of the Department of the Navy are not involved, the 
Department of the Navy will be reimbursed in accordance with the 
procedures outlined in the Navy Comptroller Manual, section 046268.
    (b) Witnesses on behalf of nongovernmental parties--(1) Criminal 
actions. When members or civilian employees are served with a subpoena 
to appear as a witness for a defendant in a criminal action and the fees 
and mileage required by rule 17(d) of the Federal Rules of Criminal 
Procedure are tendered, the commanding officer may issue the person 
subpoenaed permissive orders authorizing attendance at the trial at no 
expense to the Government, unless the person's absence would have an 
adverse impact on naval operations. In such a case, a full report of the 
circumstances will be made to the Judge Advocate General or, in the case 
of civilian employees, to the Associate General Counsel (Litigation). In 
those cases where fees and mileage are not tendered as required by rule 
17(d) of the Federal Rules of Criminal Procedure, but the person 
subpoenaed still desires to attend, the commanding officer also may 
issue permissive orders at no cost to the Government. Such persons, 
however, should be advised that an agreement as to reimbursement for any 
expenses incident to travel, lodging, and subsistence should be effected 
with the party desiring their attendance and

[[Page 69]]

that no reimnbursement should be expected from the Government.
    (2) Civil actions. When members or civilian employees are served 
with a subpoena to appear as a witness on the behalf of a 
nongovernmental party in a civil action brought in a Federal court, the 
provisions of Sec.  720.20 apply.



Sec.  720.23  Naval prisoners as witnesses or parties in civilian courts.

    (a) Criminal actions. When Federal or State authorities desire the 
attendance of a naval prisoner as a witness in a criminal case, they 
should submit a written request for such person's attendance to the 
Judge Advocate General. The civilian authority should include the 
following averments in its request:
    (1) That the evidence to be derived from the prisoner's testimony is 
unavailable from any other source:
    (2) That the civilian authority will provide adequate security 
arrangements for the prisoner and assume responsibility for the prisoner 
while he is in its custody; and
    (3) that the civilian authority will assume all costs of 
transporting the prisoner from the brig, of maintaining that prisoner 
while in civilian custody, and of returning the prisoner to the brig 
from which he was removed.

The civilian authority should also include in its request an estimate of 
the length of time the prisoner's services will be required, and should 
specify the mode of transport by which it intends to return the 
prisoner. Upon receipt of such a request, authority by the Judge 
Advocate General will be given, in a proper case, for the production of 
the requested naval prisoner in court without resort to a writ of habeas 
corpus ad testificandum (a writ which requires the production of a 
prisoner to testify before a court of competent jurisdiction).
    (b) Civil actions. The Department of the Navy will not authorize the 
attendance of a naval prisoner in a Federal or State court, either as a 
party or as a witness, in private litigation pending before such a 
court. The deposition of a naval prisoner may be taken in such a case, 
subject to reasonable conditions or limitations imposed by the command 
concerned.



Sec.  720.24  Interviews and depositions in connection with civil
litigation in matters pertaining to official duties.

    Requests to interview, depose, or call as witnesses, current or 
former members or civilian employees of the Department of the Navy, 
regarding information obtained in the course of their official duties, 
including expert testimony related thereto, shall be processed in 
accordance with 32 CFR part 725.



Sec.  720.25  Repossession of personal property.

    Repossession of personal property, located on a Navy or Marine Corps 
installation, belonging to a member or to any dependent residing at or 
located on a Department of the Navy installation, may be permitted in 
the discretion of the commanding officer of the installation where the 
property is located, subject to the following. The documents purporting 
to authorize repossession and the procedures for repossessing the 
property must comply with State law. Prior to permitting physical 
repossession of any property, the commanding officer shall cause an 
informal inquiry into the circumstances and then determine whether to 
allow the repossession. If repossession is to be allowed, the person 
whose property is to be repossessed should be asked if he wishes to 
relinquish the property voluntarily. Repossession must be carried out in 
a manner prescribed by the commanding officer. In the case of property 
owned by civilian employees of the Department of the Navy or civilian 
contractors or their employees or dependents, the commanding officer 
should direct that the disputed property be removed from the 
installation until the commanding officer is satisfied that the dispute 
is resolved.



Sec. Sec.  720.26-720.29  [Reserved]



                Subpart C_Production of Official Records



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

    (a) General. Where unclassified naval records are desired by or on 
behalf of litigants, the parties will be informed

[[Page 70]]

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

[[Page 71]]

in the area. Where travel is involved, it must be without expense to the 
Government.
    (d) Medical and other records of civilian employees. Production of 
medical certificates or other medical reports concerning civilian 
employees is controlled by the provisions of Executive Order 10561, 19 
FR 5963, as implemented by Federal Personnel Manual, chapter 294, and 
chapter 339.1-4 (reprinted in MANMED article 23-255(6)). Records of 
civilian employees other than medical records may be produced upon 
receipt of a court order without procuring specific authority from the 
Secretary of the Navy, provided there is not involved any classified or 
For-Official-Use-Only information, such as loyalty or security records. 
Records relating to compensation benefits administered by the Bureau of 
Employees' Compensation may not be disclosed except upon the written 
approval of that Bureau (20 CFR 1.21). In case of doubt, the matter 
should be handled in accordance with the provisions of subsection a 
above. Where information is furnished hereunder in response to a court 
order, it is advisable that certified copies rather than originals be 
furnished and that, where original records are to be produced, the 
assistance of the U.S. Attorney or U.S. Marshal be requested so that 
custody of the records may be maintained.

[38 FR 6021, Mar. 6, 1973, as amended at 48 FR 4466, Feb. 1, 1983]



Sec.  720.31  Production of official records in the absence of court
order.

    (a) General. Release of official records outside the Department of 
the Navy in the absence of a court order is governed by the Privacy Act 
(5 U.S.C. 552a) and the Freedom of Information Act (5 U.S.C. 552). The 
following sources pertain: SECNAVINST 5211.5 series (Privacy) and 
SECNAVINST 5720.42 series (Freedom of Information).
    (b) Release of JAG Manual Investigations, Court-Martial Records, 
Articles 69 and 73 Petitions, and Article 138 Complaints of Wrongs. 
Except as provided in this section, only the Assistant Judge Advocates 
General (Civil Law) and (Military Law) shall make determinations 
concerning the release of the records covered herein if less than a 
release of the complete requested record will result. In all other 
instances the Deputy Assistant Judge Advocates General, who have 
cognizance of the record(s) in issue, may release such records. Local 
record holders are reminded that the authority to release records does 
not necessarily include denial authority.
    (1) JAG Manual Investigations (including enclosures). Any request 
for release outside the Department of the Navy shall be forwarded to the 
Assistant Judge Advocate General (Military Law) for determination, 
except that Privacy Act requests for release shall be forwarded to the 
Assistant Judge Advocate General (Civil Law) for determination.
    (2) Court-martial records and Articles 69 and 73 petitions. These 
are matters of public record and may be released by any local holder. 
Court-martial records should be released only following proper 
authentication.
    (3) Article 138 Complaints of Wrongs. Forward as in paragraph (b)(1) 
of this section.
    (c) Affirmative claims files. Affirmative claims files (including 
Medical Care Recovery Act files), except to the extent that such files 
contain copies of reports of investigations prepared under the Manual of 
the Judge Advocate General, or classified or privileged information, may 
be released by local holders to insurance companies to support claims; 
to civilian attorneys representing the injured party's and the 
Government's interests; and to other components of the Department of 
Defense, without the prior approval of the Judge Advocate General, 
provided that the amount of the claim is within the monetary settlement 
authority of the releaser. When the request for production involves 
material related to claims in favor of the Government, notification 
should be made to the affirmative claims office at the naval legal 
service office having territorial responsibility for the area.
    (d) Accounting for disclosures of records from systems of records. 
When records located in a ``system of records'' are released, the 
official responsible for releasing the records shall consult SECNAVINST 
5211.5 series regarding the requirement that accountings of

[[Page 72]]

the disclosures be maintained. Appendix A-3-a of the Manual of the Judge 
Advocate General is recommended for this purpose.

(1 CFR 18.14, and part 21, subpart B)

[45 FR 8599, Feb. 8, 1980, as amended at 48 FR 4466, Feb. 1, 1983]



Sec.  720.32  Certificates of full faith and credit.

    The Judge Advocate General, the Deputy Judge Advocate General, or 
any Assistant Judge Advocate General is authorized to execute 
certificates of full faith and credit certifying the signatures and 
authority of officers of the Department of the Navy.

[38 FR 6021, Mar. 6, 1973]



    Subpart D_Compliance With Court Orders by Department of the Navy 
    Members, Employees, and Family Members Outside the United States

    Authority: DoD Directive 5525.9, 54 FR 296, 32 CFR part 146.

    Source: 55 FR 47876, Nov. 16, 1990, unless otherwise noted.



Sec.  720.40  Purpose.

    This instruction:
    (a) Implements 32 CFR part 146.
    (b) Establishes policy and procedures for requesting the return to 
the United States of, or other action affecting, Department of the Navy 
(DON) personnel and employees serving outside the United States, and 
family members accompanying them, in compliance with court orders.



Sec.  720.41  Definitions.

    Court. Any judicial body in the United States with jurisdiction to 
impose criminal sanctions on a Department of the Navy member, employee, 
or family member.
    Employee. A civilian employed by the Department of the Navy or a 
component service, including an individual paid from non-appropriated 
funds, who is a citizen or national of the United States.
    Family member. A spouse, natural or adopted child, or other lawful 
dependent of a Department of the Navy employee or member accompanying 
the Department of the Navy member or employee assigned to duty outside 
the United States.
    Felony. A criminal offense that is punishable by incarceration for 
more than one year, regardless of the sentence that is imposed for 
commission of that offense.
    Member. An individual on active duty in the Navy, Naval Reserve, 
Marine Corps, or Marine Corps Reserve.
    Request for return. Any request or order received from a court, or 
from federal, state or local authorities concerning a court order, for 
the return to the United States of members, employees, or family 
members, for any reason listed in Sec.  720.42.
    Respondent. A member, employee, or family member whose return to the 
United States has been requested, or with respect to whom other 
assistance has been requested under this instruction.
    Responsible official. Officials designated in this instruction to 
act on a request to return, or take other action affecting, members, 
employees or family members to the United States under this instruction.
    United States. The 50 states, the District of Columbia, Puerto Rico, 
Guam, the Northern Mariana Islands, American Samoa, and the Virgin 
Islands.



Sec.  720.42  Policy.

    (a) It is Department of the Navy policy to cooperate, as prescribed 
in this instruction, with courts and federal, state and local officials 
in enforcing court orders. The Department of the Navy will cooperate 
with requests when such action is consistent with mission requirements 
(including operational readiness), the provisions of applicable 
international agreements, and ongoing Department of Defense (DoD) 
investigations and courts-martial.
    (b) Every reasonable effort will be made to resolve the matter 
without the respondent returning to the United States, or other action 
being taken against the respondent under this instruction.
    (c) Requests to return members for felonies or for contempt 
involving unlawful or contemptuous removal of a child from the 
jurisdiction of a court or

[[Page 73]]

the custody of a parent or other person awarded custody by a court order 
will normally be granted, but only if the member cannot resolve the 
issue with the court without return to the United States. When the 
member's return is inconsistent with mission requirements, applicable 
international agreements, or ongoing DoD investigations or courts-
martial, DoD approval of denial will be requested.
    (d) For all other requests involving members, return will be based 
on the circumstances of the individual case as provided in this 
instruction.
    (e) Members will normally be returned on a temporary additional duty 
(TAD) basis unless there are compelling reasons the return should be a 
permanent change of duty station (PCS).
    (f) The involuntary return of employees or family members in 
response to a request for return is not authorized. However, the 
following action will be taken:
    (1) Employees will be strongly urged to comply with court orders. 
Failure to comply with court orders involving felonies or contempt 
involving unlawful or contemptuous removal of a child from the 
jurisdiction of the court or the custody of a parent or other person 
awarded custody by a court order will normally require processing for 
adverse action, up to and including removal from federal service. 
Failure to comply with other court orders may require adverse action, 
depending on the circumstances of the individual case.
    (2) Family members will be strongly encouraged to comply with court 
orders. Family members who fail to comply with court orders involving 
felonies or contempt involving unlawful or contemptuous removal of a 
child from the jurisdiction of the court or the custody of a parent or 
other person awarded custody by a court order will normally have their 
command sponsorship removed. Failure to comply with other court orders 
may also result in removal of command sponsorship, depending on the 
circumstances of the individual case.
    (g) To facilitate prompt resolution of requests for return of 
members, minimize the burden on operating units, and to provide 
consistency during initial implementation of this new program, a limited 
number of responsible officials, designated in Sec.  720.44, will 
respond to requesting officials.



Sec.  720.43  Points of contact.

    (a) Authorities issuing requests for return or for other action 
under this instruction may contact the following activities:
    (1) Chief of Naval Personnel (Pers-14), Washington, DC 20370-5000 
(For Navy members and their family members).
    (2) Commandant, U.S. Marine Corps (Code JAR), Washington, DC 20380-
0001 (For Marine Corps members and their family members).
    (3) Director, Office of Civilian Personnel Management (Code OOL), 
800 N. Quincy Street, Arlington, VA 22203-1998 (For civilian personnel, 
including non-appropriated fund employees and their family members).
    (b) Upon receipt of a request for action under this instruction, the 
Office of Civilian Personnel Management will forward the request to the 
appropriate responsible official for action in accordance with Sec.  
720.44.



Sec.  720.44  Responsible officials.

    The following officials are designated responsible officials for 
acting on requests to return or to take other action affecting members, 
employees or family members to the United States.
    (a) The Chief of Naval Personnel (CHNAVPERS) for requests involving 
Navy members and their family members who are not employees. The 
CHNAVPERS may delegate this authority within his headquarters, not below 
the 0-6 level for routine matters and not lower than the flag officer 
level for decisions to deny the request for return.
    (b) The Commandant of the Marine Corps (CMC) for requests involving 
Marine Corps members and their family members who are not employees. The 
CMC may delegate this authority within his headquarters, not below the 
0-6 level for routine matters and no lower that the general officer 
level for decisions to deny the request for return.
    (c) The local commanding officer or officer in charge for requests 
involving employees and their family members who are not active duty 
military members.

[[Page 74]]

    (d) The Assistant Secretary of the Navy (Manpower and Reserve 
Affairs) (ASN(M&RA)) for requests not covered by Sec. Sec.  720.44 (a) 
through (c).



Sec.  720.45  Procedures.

    (a) If the request pertains to a felony or to contempt involving the 
unlawful or contemptuous removal of a child from the jurisdiction of a 
court or the custody of a parent or another person awarded custody by 
court order, and the matter cannot be resolved with the court without 
the respondent returning to the United States:
    (1) For members: The responsible official shall direct the 
commanding officer or officer in charge to order the member to return to 
the United States. Failure to comply will normally be the basis for 
disciplinary action against the member.
    (2) For employees, military and civilian family members: The 
responsible official shall strongly encourage the respondent to comply. 
Failure to comply may subject employees to adverse action, to include 
removal from the Federal service, and subject military and civilian 
family members to withdrawal of command sponsorship.
    (b) For all other requests when the matter cannot be resolved with 
the court without returning the respondent to the United States, the 
responsible official shall take the action described in this instruction 
when deemed appropriate with the facts and circumstances of each 
particular case, following consultation with legal staff.
    (c) When a member's return is inconsistent with mission 
requirements, the provisions of applicable international agreements, or 
ongoing DoD investigations and courts-martial, the Department of the 
Navy will ask DoD to approve denial of the request for the military 
members's return. To initiate this action, there must be an affirmative 
showing of articulable harm to the unit's mission or violation of an 
international agreement.
    (d) When a responsible official has determined a request for return 
is apparently based on an order issued by a court of competent 
jurisdiction, the responsible official shall complete action on the 
request for return within 30 days of receipt of the request for return 
by the responsible official, unless a delay is authorized by the 
ASN(M&RA).
    (e) When a delay to complete the action is warranted, the ASN(M&RA) 
will grant a 45 day delay, and provide a copy of that approval to the 
Assistant Secretary of Defense (Force Management & Personnel (ASD(FM&P)) 
and the General Counsel, DoD. The 45 day period begins upon request by 
the responsible official of the request for return. Conditions which, 
when accompanied by full supporting justification, will warrant the 
granting of the 45 day delay are:
    (1) Efforts are in progress to resolve the matter to the 
satisfaction of the court without the respondent's return to the United 
States.
    (2) To provide sufficient time for the respondent to provide 
evidence to show legal efforts to resist the request or to show 
legitimate cause for noncompliance.
    (3) To provide commanding officers an opportunity to detail the 
specific effect on command mission and operational readiness anticipated 
from the loss of the member or Department of the Navy employee, and to 
present facts relating to any international agreement, or ongoing DoD 
investigation or courts-martial.
    (f) A commanding officer or officer in charge who receives a request 
for the return of, or other action affecting, a member, family member, 
or employee not of his/her command will forward the request to the 
appropriate commanding officer or officer in charge, copy to the 
responsible official, and advise both of them by message that a request 
for return or other action has been forwarded to them.
    (g) A commanding officer or officer in charge who receives a request 
for the return of, or other action affecting, a member, family member, 
or employee of his/her command will:
    (1) Notify the respondent of the right to provide evidence to show 
legal efforts to resist the request, or to show legitimate cause for 
noncompliance for inclusion in the submission to the responsible 
official.
    (2) For members and their family members who are not employees, 
forward the request immediately to the

[[Page 75]]

appropriate responsible official, together with:
    (i) Any information the individual desires to provide to show legal 
efforts to resist the request, or otherwise to show legitimate cause for 
noncompliance.
    (ii) Facts detailing the specific impacts on command missions and 
readiness anticipated from loss of the member.
    (iii) Facts relating to any international agreements or ongoing DoD 
investigations or courts-martial involving the respondent.
    (iv) Information regarding conditions expected to interfere with a 
member's return to the command after completion of proceedings. If, in 
the opinion of the commanding officer, there are compelling reasons for 
the member to be returned to the United States PCS, provide full 
justification to support that recommendation to the cognizant officer.
    (3) If a delay in processing is warranted under Sec.  720.42 or 
Sec.  720.45(e), make a recommendation with supporting justification to 
the responsible official.
    (4) Monitor, and update as necessary, information provided to the 
responsible official.
    (h) The responsible official shall:
    (1) Determine whether the request is based on an order issued by a 
court of apparent competent jurisdiction and if so, complete action on 
the request no later than 30 days after its receipt by the responsible 
official. If a conflicts of law issue is presented between competing 
state interests, or between a state and a foreign host-nation, or 
between two different foreign nations, the matter shall be referred to 
the ASN(M&RA) on the first issue and to the Judge Advocate General (Code 
10) on the second and third issues.
    (2) Encourage the respondent to attempt to resolve the matter to the 
satisfaction of the court or other requesting authority without return 
of or other action affecting the member, employee, or family member.
    (3) When a delay to complete action under this section is warranted, 
request the delay from ASN(M&RA) with full supporting justification.
    (4) Examine all information the respondent desires to provide to 
show legal efforts to resist the request, or otherwise to show 
legitimate cause for noncompliance.
    (5) Requests for exception from the requirements of this instruction 
shall be submitted, with supporting justification, to the ASN(M&RA) for 
submission to the ASD(FM&P).
    (6) If a member will be ordered to return to the United States, 
determine if the member will be ordered TAD or PCS and advise the 
member's commanding officer of the determination.
    (7) If a member will be ordered to return to an appropriate port of 
entry to comply with a request, ensure:
    (i) The requesting officer has given official notification to the 
responsible official that the requesting official or other appropriate 
party will initiate action with the receiving jurisdiction to secure the 
member's delivery/extradition, as appropriate, per chapter 6 of the 
Manual of the Judge Advocate General, and provide for all costs incident 
thereto, including any escort if desired.
    (ii) If applicable, the necessary accounting data are provided to 
the commanding officer of the member or orders are issued.
    (iii) The member has arranged satisfactory foster care for any 
lawful minor dependents who will be left unaccompanied overseas upon the 
member's return to the United States.
    (8) Notify the requesting official at least 10 days before the 
member's return to the selected port of entry.
    (9) In the case of an employee or of a family member, the commanding 
officer or officer in charge of the activity to which the family 
member's sponsor is attached, or by which the employee is employed, will 
carry out the following steps:
    (i) An employee shall be strongly encouraged to comply with the 
court order or other request for return. Failure to comply may be the 
basis for adverse action to include removal from Federal service. 
Adverse action should only be taken after coordination with the 
cognizant civilian personnel office and legal counsel and in compliance 
with Civilian Personnel Instruction 752.
    (ii) If a family member of either a member or an employee is the 
subject of a request for return, the family

[[Page 76]]

member shall be strongly encouraged to comply with the court order. 
Failure to respond may be the basis for withdrawal of command 
sponsorship of the family member.
    (10) Report promptly to the ASN(M&RA) any actions taken under Sec.  
720.45 (a) or (b).
    (i) The ASN(M&RA):
    (1) May grant delays of up to 45 days from the date of a request for 
delay in accordance with Sec.  720.45(e).
    (2) Will report promptly all delays of requests for the return of 
members to the ASD(FM&P) and to the General Counsel of the Department of 
Defense.
    (3) Will request from the ASD(FM&P), when warranted, exception to 
the policies and procedures of DoD Directive 5525.9 of December 27, 
1988.
    (4) Consolidate and forward reports of action taken under Sec.  
720.45 (a) or (b) to the ASD(FM&P) and the General Counsel, DoD as 
required by DoD Directive 5525.9 of December 27, 1988.



Sec.  720.46  Overseas screening programs.

    The Chief of Naval Operations (CNO) and the CMC shall incorporate 
procedures requiring members and employees to certify they have legal 
custody of all minor dependents accompanying them outside the United 
States into service overseas screening programs.



Sec.  720.47  Report.

    The report requirement in this instruction is exempt from reports 
control by SECNAVINST 5214.2B.

                        PARTS 721	722 [RESERVED]



PART 723_BOARD FOR CORRECTION OF NAVAL RECORDS--Table of Contents



Sec.
723.1 General provisions.
723.2 Establishment, function and jurisdiction of the Board.
723.3 Application for correction.
723.4 Appearance before the board; notice; counsel; witnesses; access to 
          records.
723.5 Hearing.
723.6 Action by the Board.
723.7 Action by the Secretary.
723.8 Staff action.
723.9 Reconsideration.
723.10 Settlement of claims.
723.11 Miscellaneous provisions.

    Authority: 10 U.S.C. 1034, 1552.

    Source: 62 FR 8166, Feb. 24, 1997, unless otherwise noted.



Sec.  723.1  General provisions.

    This part sets up procedures for correction of naval and marine 
records by the Secretary of the Navy acting through the Board for 
Correction of Naval Records (BCNR or the Board) to remedy error or 
injustice. It describes how to apply for correction of naval and marine 
records and how the BCNR considers applications. It defines the Board's 
authority to act on applications. It directs collecting and maintaining 
information subject to the Privacy Act of 1974 authorized by 10 U.S.C. 
1034 and 1552.



Sec.  723.2  Establishment, function and jurisdiction of the Board.

    (a) Establishment and composition. Under 10 U.S.C. 1034 and 1552, 
the Board for Correction of Naval Records is established by the 
Secretary of the Navy. The Board consists of civilians of the executive 
part of the Department of the Navy in such number, not less than three, 
as may be appointed by the Secretary and who shall serve at the pleasure 
of the Secretary. Three members present shall constitute a quorum of the 
Board. The Secretary of the Navy will designate one member as Chair. In 
the absence or incapacity of the Chair, an Acting Chair chosen by the 
Executive Director shall act as Chair for all purposes.
    (b) Function. The Board is not an investigative body. Its function 
is to consider applications properly before it for the purpose of 
determining the existence of error or injustice in the naval records of 
current and former members of the Navy and Marine Corps, to make 
recommendations to the Secretary or to take corrective action on the 
Secretary's behalf when authorized.
    (c) Jurisdiction. The Board shall have jurisdiction to review and 
determine all matters properly brought before it, consistent with 
existing law.



Sec.  723.3  Application for correction.

    (a) General requirements. (1) The application for correction must be 
submitted on DD 149 (Application for Correction of Military Record) or 
exact

[[Page 77]]

facsimile thereof, and should be addressed to: Board for Correction of 
Naval Records, Department of the Navy, 2 Navy Annex, Washington, DC 
20370-5100. Forms and other explanatory matter may be obtained from the 
Board upon request.
    (2) Except as provided in paragraph (a)(3) of this section, the 
application shall be signed by the person requesting corrective action 
with respect to his/her record and will either be sworn to or will 
contain a provision to the effect that the statements submitted in the 
application are made with full knowledge of the penalty provided by law 
for making a false statement or claim. (18 U.S.C. 287 and 1001)
    (3) When the record in question is that of a person who is incapable 
of making application, or whose whereabouts is unknown, or when such 
person is deceased, the application may be made by a spouse, parent, 
heir, or legal representative. Proof of proper interest shall be 
submitted with the application.
    (b) Time limit for filing application. Applications for correction 
of a record must be filed within 3 years after discovery of the alleged 
error or injustice. Failure to file within the time prescribed may be 
excused by the Board if it finds it would be in the interest of justice 
to do so. If the application is filed more than 3 years after discovery 
of the error or injustice, the application must set forth the reason why 
the Board should find it in the interest of justice to excuse the 
failure to file the application within the time prescribed.
    (c) Acceptance of applications. An application will be accepted for 
consideration unless:
    (1) The Board lacks jurisdiction.
    (2) The Board lacks authority to grant effective relief.
    (3) The applicant has failed to comply with the filing requirements 
of paragraphs (a)(l), (a)(2), or (a)(3) of this section.
    (4) The applicant has failed to exhaust all available administrative 
remedies.
    (5) The applicant has failed to file an application within 3 years 
after discovery of the alleged error or injustice and has not provided a 
reason or reasons why the Board should find it in the interest of 
justice to excuse the failure to file the application within the 
prescribed 3-year period.
    (d) Other proceedings not stayed. Filing an application with the 
Board shall not operate as a stay of any other proceedings being taken 
with respect to the person involved.
    (e) Consideration of application. (1) Each application accepted for 
consideration and all pertinent evidence of record will be reviewed by a 
three member panel sitting in executive session, to determine whether to 
authorize a hearing, recommend that the records be corrected without a 
hearing, or to deny the application without a hearing. This 
determination will be made by majority vote.
    (2) The Board may deny an application in executive session if it 
determines that the evidence of record fails to demonstrate the 
existence of probable material error or injustice. The Board relies on a 
presumption of regularity to support the official actions of public 
officers and, in the absence of substantial evidence to the contrary, 
will presume that they have properly discharged their official duties. 
Applicants have the burden of overcoming this presumption but the Board 
will not deny an application solely because the record was made by or at 
the direction of the President or the Secretary in connection with 
proceedings other than proceedings of a board for the correction of 
military or naval records. Denial of an application on the grounds of 
insufficient evidence to demonstrate the existence of probable material 
error or injustice is final subject to the provisions for 
reconsideration contained in Sec.  723.9.
    (3) When an original application or a request for further 
consideration of a previously denied application is denied without a 
hearing, the Board's determination shall be made in writing and include 
a brief statement of the grounds for denial.
    (4) The brief statement of the grounds for denial shall include the 
reasons for the determination that relief should not be granted, 
including the applicant's claims of constitutional, statutory and/or 
regulatory violations that were rejected, together with all the 
essential facts upon which

[[Page 78]]

the denial is based, including, if applicable, factors required by 
regulation to be considered for determination of the character of and 
reason for discharge. Further the Board shall make a determination as to 
the applicability of the provisions of the Military Whistleblower 
Protection Act (10 U.S.C. 1034) if it is invoked by the applicant or 
reasonably raised by the evidence. Attached to the statement shall be 
any advisory opinion considered by the Board which is not fully set out 
in the statement. The applicant will also be advised of reconsideration 
procedures.
    (5) The statement of the grounds for denial, together with all 
attachments, shall be furnished promptly to the applicant and counsel, 
who shall also be informed that the name and final vote of each Board 
member will be furnished or made available upon request. Classified or 
privileged material will not be incorporated or attached to the Board 
statement; rather, unclassified or nonprivileged summaries of such 
material will be so used and written explanations for the substitution 
will be provided to the applicant and counsel.



Sec.  723.4  Appearance before the board; notice; counsel; witnesses;
access to records.

    (a) General. In each case in which the Board determines a hearing is 
warranted, the applicant will be entitled to appear before the Board 
either in person or by counsel of his/her selection or in person with 
counsel. Additional provisions apply to cases processed under the 
Military Whistleblower Protection Act (10 U.S.C. 1034).
    (b) Notice. (1) In each case in which a hearing is authorized, the 
Board's staff will transmit to the applicant a written notice stating 
the time and place of hearing. The notice will be mailed to the 
applicant, at least 30 days prior to the date of hearing, except that an 
earlier date may be set where the applicant waives his/her right to such 
notice in writing.
    (2) Upon receipt of the notice of hearing, the applicant will notify 
the Board in writing at least 15 days prior to the date set for hearing 
as to whether he/she will be present at the hearing and will indicate to 
the Board the name of counsel, if represented by counsel, and the names 
of such witnesses as he/she intends to call. Cases in which the 
applicant notifies the Board that he/she does not desire to be present 
at the hearing will be considered in accordance with Sec.  723.5(b)(2).
    (c) Counsel. As used in this part, the term ``counsel'' will be 
construed to include members in good standing of the federal bar or the 
bar of any state, accredited representatives of veterans' organizations 
recognized by the Secretary of Veterans Affairs under 38 U.S.C. 3402, or 
such other persons who, in the opinion of the Board, are considered to 
be competent to present equitably and comprehensively the request of the 
applicant for correction, unless barred by law. Representation by 
counsel will be at no cost to the government.
    (d) Witnesses. The applicant will be permitted to present witnesses 
in his/her behalf at hearings before the Board. It will be the 
responsibility of the applicant to notify his/her witnesses and to 
arrange for their appearance at the time and place set for hearing. 
Appearance of witnesses will be at no cost to the government.
    (e) Access to records. (1) It is the responsibility of the applicant 
to procure such evidence not contained in the official records of the 
Department of the Navy as he/she desires to present in support of his/
her case.
    (2) Classified or privileged information may be released to 
applicants only by proper authorities in accordance with applicable 
regulations.
    (3) Nothing in this part authorizes the furnishing of copies of 
official records by the Board. Requests for copies of these records 
should be submitted in accordance with applicable regulations governing 
the release of information. The BCNR can provide a requestor with 
information regarding procedures for requesting copies of these records 
from the appropriate retention agency.



Sec.  723.5  Hearing.

    (a) Convening of board. The Board will convene, recess and adjourn 
at the call of the Chair or Acting Chair.
    (b) Conduct of hearing. (1) The hearing shall be conducted by the 
Chair or Acting Chair, and shall be subject to his/

[[Page 79]]

her rulings so as to ensure a full and fair hearing. The Board shall not 
be limited by legal rules of evidence but shall maintain reasonable 
bounds of competency, relevancy, and materiality.
    (2) If the applicant, after being duly notified, indicates to the 
Board that he/she does not desire to be present or to be represented by 
counsel at the hearing, the Board will consider the case on the basis of 
all the material before it, including, but not limited to, the 
application for correction filed by the applicant, any documentary 
evidence filed in support of such application, any brief submitted by or 
in behalf of the applicant, and all available pertinent records.
    (3) If the applicant, after being duly notified, indicates to the 
Board that he/she will be present or be represented by counsel at the 
hearing, and without good cause and timely notice to the Board, the 
applicant or representative fails to appear at the time and place set 
for the hearing or fails to provide the notice required by Sec.  
723.4(b)(2), the Board may consider the case in accordance with the 
provisions of paragraph (b)(2) of this section, or make such other 
disposition of the case as is appropriate under the circumstances.
    (4) All testimony before the Board shall be given under oath or 
affirmation. The proceedings of the Board and the testimony given before 
it will be recorded verbatim.
    (c) Continuance. The Board may continue a hearing on its own motion. 
A request for continuance by or in behalf of the applicant may be 
granted by the Board if a continuance appears necessary to insure a full 
and fair hearing.



Sec.  723.6  Action by the Board.

    (a) Deliberations, findings, conclusions, and recommendations. (1) 
Only members of the Board and its staff shall be present during the 
deliberations of the Board.
    (2) Whenever, during the course of its review of an application, it 
appears to the Board's satisfaction that the facts have not been fully 
and fairly disclosed by the records or by the testimony and other 
evidence before it, the Board may require the applicant or military 
authorities to provide such further information as it may consider 
essential to a complete and impartial determination of the facts and 
issues.
    (3) Following a hearing, or where the Board determines to recommend 
that the record be corrected without a hearing, the Board will make 
written findings, conclusions and recommendations. If denial of relief 
is recommended following a hearing, such written findings and 
conclusions will include a statement of the grounds for denial as 
described in Sec.  723.3(e)(4). The name and final vote of each Board 
member will be recorded. A majority vote of the members present on any 
matter before the Board will constitute the action of the Board and 
shall be so recorded.
    (4) Where the Board deems it necessary to submit comments or 
recommendations to the Secretary as to matters arising from but not 
directly related to the issues of any case, such comments and 
recommendations shall be the subject of separate communication. 
Additionally, in Military Whistleblower Protection Act cases, any 
recommendation by the Board to the Secretary that disciplinary or 
administrative action be taken against any Navy official based on the 
Board's determination that the official took reprisal action against the 
applicant will not be made part of the Board's record of proceedings or 
furnished the applicant but will be transmitted to the Secretary as a 
separate communication.
    (b) Minority report. In case of a disagreement between members of 
the Board a minority report will be submitted, either as to the 
findings, conclusions or recommendation, including the reasons therefor.
    (c) Record of proceedings. Following a hearing, or where the Board 
determines to recommend that the record be corrected without a hearing, 
a record of proceedings will be prepared. Such record shall indicate 
whether or not a quorum was present, and the name and vote of each 
member present. The record shall include the application for relief, a 
verbatim transcript of any testimony, affidavits, papers and documents 
considered by the Board, briefs and written arguments, advisory 
opinions, if any, minority reports, if any,

[[Page 80]]

the findings, conclusions and recommendations of the Board, where 
appropriate, and all other papers, documents, and reports necessary to 
reflect a true and complete history of the proceedings.
    (d) Withdrawal. The Board may permit an applicant to withdraw his/
her application without prejudice at any time before its record of 
proceedings is forwarded to the Secretary.
    (e) Delegation of authority to correct certain naval records. (1) 
With respect to all petitions for relief properly before it, the Board 
is authorized to take final corrective action on behalf of the 
Secretary, unless:
    (i) Comments by proper naval authority are inconsistent with the 
Board's recommendation;
    (ii) The Board's recommendation is not unanimous; or
    (iii) It is in the category of petitions reserved for decision by 
the Secretary of the Navy.
    (2) The following categories of petitions for relief are reserved 
for decision by the Secretary of the Navy:
    (i) Petitions involving records previously reviewed or acted upon by 
the Secretary wherein the operative facts remained substantially the 
same;
    (ii) Petitions by former commissioned officers or midshipmen to 
change the character of, and/or the reason for, their discharge; or,
    (iii) Such other petitions as, in the determination of Office of the 
Secretary or the Executive Director, warrant Secretarial review.
    (3) The Executive Director after ensuring compliance with this 
section, will announce final decisions on applications decided under 
this section.



Sec.  723.7  Action by the Secretary.

    (a) General. The record of proceedings, except in cases finalized by 
the Board under the authority delegated in Sec.  723.6(e), and those 
denied by the Board without a hearing, will be forwarded to the 
Secretary who will direct such action as he or she determines to be 
appropriate, which may include the return of the record to the Board for 
further consideration. Those cases returned for further consideration 
shall be accompanied by a brief statement setting out the reasons for 
such action along with any specific instructions. If the Secretary's 
decision is to deny relief, such decision shall be in writing and, 
unless he or she expressly adopts in whole or in part the findings, 
conclusions and recommendations of the Board, or a minority report, 
shall include a brief statement of the grounds for denial. See Sec.  
723.3(e)(4).
    (b) Military Whistleblower Protection Act. The Secretary will ensure 
that decisions in cases involving the Military Whistleblower Protection 
Act are issued 180 days after receipt of the case and will, unless the 
full relief requested is granted, inform applicants of their right to 
request review of the decision by the Secretary of Defense. Applicants 
will also be informed:
    (1) Of the name and address of the official to whom the request for 
review must be submitted.
    (2) That the request for review must be submitted within 90 days 
after receipt of the decision by the Secretary of the Navy.
    (3) That the request for review must be in writing and include:
    (i) The applicant's name, address and telephone number;
    (ii) A copy of the application to the Board and the final decision 
of the Secretary of the Navy; and
    (iii) A statement of the specific reasons the applicant is not 
satisfied with the decision of the Secretary of the Navy.
    (4) That the request must be based on the Board record; request for 
review based on factual allegations or evidence not previously presented 
to the Board will not be considered under this paragraph but may be the 
basis for reconsideration by the Board under Sec.  723.9.



Sec.  723.8  Staff action.

    (a) Transmittal of final decisions granting relief. (1) If the final 
decision of the Secretary is to grant the applicant's request for relief 
the record of proceedings shall be returned to the Board for 
disposition. The Board shall transmit the finalized record of 
proceedings to proper naval authority for appropriate action. Similarly 
final decisions of the Board granting the applicant's request for relief 
under the authority

[[Page 81]]

delegated in Sec.  723.6(e), shall also be forwarded to the proper naval 
authority for appropriate action.
    (2) The Board shall transmit a copy of the record of proceedings to 
the proper naval authority for filing in the applicant's service record 
except where the effect of such action would be to nullify the relief 
granted. In such cases no reference to the Board's decision shall be 
made in the service record or files of the applicant and all copies of 
the record of proceedings and any related papers shall be forwarded to 
the Board and retained in a file maintained for this purpose.
    (3) The addressees of such decisions shall report compliance 
therewith to the Executive Director.
    (4) Upon receipt of the record of proceedings after final action by 
the Secretary, or by the Board acting under the authority contained in 
Sec.  723.6(e), the Board shall communicate the decision to the 
applicant. The applicant is entitled, upon request, to receive a copy of 
the Board's findings, conclusions and recommendations.
    (b) Transmittal of final decisions denying relief. If the final 
decision of the Secretary or the Board is to deny relief, the following 
materials will be made available to the applicant:
    (1) A statement of the findings, conclusions, and recommendations 
made by the Board and the reasons therefor;
    (2) Any advisory opinions considered by the Board;
    (3) Any minority reports; and
    (4) Any material prepared by the Secretary as required in Sec.  
723.7. Moreover, applicant shall also be informed that the name and 
final vote of each Board member will be furnished or made available upon 
request and that he/she may submit new and material evidence or other 
matter for further consideration.



Sec.  723.9  Reconsideration.

    After final adjudication, further consideration will be granted only 
upon presentation by the applicant of new and material evidence or other 
matter not previously considered by the Board. New evidence is defined 
as evidence not previously considered by the Board and not reasonably 
available to the applicant at the time of the previous application. 
Evidence is material if it is likely to have a substantial effect on the 
outcome. All requests for further consideration will be initially 
screened by the Executive Director of the Board to determine whether new 
and material evidence or other matter (including, but not limited to, 
any factual allegations or arguments why the relief should be granted) 
has been submitted by the applicant. If such evidence or other matter 
has been submitted, the request shall be forwarded to the Board for a 
decision. If no such evidence or other matter has been submitted, the 
applicant will be informed that his/her request was not considered by 
the Board because it did not contain new and material evidence or other 
matter.



Sec.  723.10  Settlement of claims.

    (a) Authority. (1) The Department of the Navy is authorized under 10 
U.S.C. 1552 to pay claims for amounts due to applicants as a result of 
corrections to their naval records.
    (2) The Department of the Navy is not authorized to pay any claim 
heretofore compensated by Congress through enactment of a private law, 
or to pay any amount as compensation for any benefit to which the 
claimant might subsequently become entitled under the laws and 
regulations administered by the Secretary of Veterans Affairs.
    (b) Application for settlement. (1) Settlement and payment of claims 
shall be made only upon a claim of the person whose record has been 
corrected or legal representative, heirs at law, or beneficiaries. Such 
claim for settlement and payment may be filed as a separate part of the 
application for correction of the record.
    (2) When the person whose record has been corrected is deceased, and 
where no demand is presented by a duly appointed legal representative of 
the estate, payments otherwise due shall be made to the surviving 
spouse, heir or beneficiaries, in the order prescribed by the law 
applicable to that kind of payment, or if there is no such law covering 
order of payment, in the order set forth in 10 U.S.C. 2771; or as 
otherwise prescribed by the law applicable to that kind of payment.

[[Page 82]]

    (3) Upon request, the applicant or applicants shall be required to 
furnish requisite information to determine their status as proper 
parties to the claim for purposes of payment under applicable provisions 
of law.
    (c) Settlement. (1) Settlement of claims shall be upon the basis of 
the decision and recommendation of the Board, as approved by the 
Secretary or his designee. Computation of the amounts due shall be made 
by the appropriate disbursing activity. In no case will the amount found 
due exceed the amount which would otherwise have been paid or have 
become due under applicable laws had no error or injustice occurred. 
Earnings received from civilian employment, self employment or any 
income protection plan for such employment during any period for which 
active duty pay and allowances are payable will be deducted from the 
settlement. To the extent authorized by law and regulation, amounts 
found due may be reduced by the amount of any existing indebtedness to 
the Government arising from military service.
    (2) Prior to or at the time of payment, the person or persons to 
whom payments are to be made shall be advised by the disbursing activity 
of the nature and amount of the various benefits represented by the 
total settlement and shall be advised further that acceptance of such 
settlement shall constitute a complete release by the claimants involved 
of any claim against the United States on account of the correction of 
the record.
    (d) Report of settlement. In every case where payment is made, the 
amount of such payment and the names of the payee or payees shall be 
reported to the Executive Director.



Sec.  723.11  Miscellaneous provisions.

    (a) Expenses. No expenses of any nature whatsoever voluntarily 
incurred by the applicant, counsel, witnesses, or by any other person in 
the applicant's behalf, will be paid by the Government.
    (b) Indexing of decisions. (1) Documents sent to each applicant and 
counsel in accordance with Sec.  723.3(e)(5) and Sec.  723.8(a)(4), 
together with the record of the votes of Board members and all other 
statements of findings, conclusions and recommendations made on final 
determination of an application by the Board or the Secretary will be 
indexed and promptly made available for public inspection and copying at 
the Armed Forces Discharge Review/Correction Boards Reading Room located 
on the Concourse of the Pentagon Building in Room 2E123, Washington, DC.
    (2) All documents made available for public inspection and copying 
shall be indexed in a usable and concise form so as to enable the public 
to identify those cases similar in issue together with the circumstances 
under and/or reasons for which the Board and/or Secretary have granted 
or denied relief. The index shall be published quarterly and shall be 
available for public inspection and distribution by sale at the Reading 
Room located on the Concourse of the Pentagon Building in Room 2E123, 
Washington, DC. Inquiries concerning the index or the Reading Room may 
be addressed to the Chief, Micromation Branch/Armed Forces Discharge 
Review/Correction Boards Reading Room, Crystal Mall 4, 1941 Jefferson 
Davis Highway, Arlington, Virginia 22202.
    (3) To the extent necessary to prevent a clearly unwarranted 
invasion of personal privacy, identifying details of the applicant and 
other persons will be deleted from the documents made available for 
public inspection and copying. Names, addresses, social security numbers 
and military service numbers must be deleted. Deletions of other 
information which is privileged or classified may be made only if a 
written statement of the basis for such deletion is made available for 
public inspection.



PART 724_NAVAL DISCHARGE REVIEW BOARD--Table of Contents



                          Subpart A_Definitions

Sec.
724.101 Naval Service.
724.102 Naval Discharge Review Board.
724.103 NDRB panel.
724.104 NDRB Traveling Panel.
724.105 President of the NDRB.
724.106 Presiding Officer, NDRB Panel.
724.107 Discharge.
724.108 Administrative discharge.
724.109 Types of administrative discharges.

[[Page 83]]

724.110 Reason/basis for administrative discharge.
724.111 Punitive discharge.
724.112 Clemency discharge.
724.113 Application.
724.114 Applicant.
724.115 Next of kin.
724.116 Counsel/Representative.
724.117 Discharge review.
724.118 Documentary discharge review.
724.119 Personal appearance discharge review.
724.120 National Capital Region (NCR).
724.121 Decisional document.
724.122 Recorder, NDRB Panel.
724.123 Complainant.

      Subpart B_Authority/Policy for Departmental Discharge Review

724.201 Authority.
724.202 Statutory/Directive Authority.
724.203 Broad objectives of naval discharge review.
724.204 Eligibility for naval discharge review.
724.205 Authority for review of naval discharges; jurisdictional 
          limitations.
724.206 Jurisdictional determinations.
724.207 Disposition of applications for discharge review.
724.208 Implementation of NDRB decisions.
724.209 Evidence supporting applications.
724.210 Review action in instances of unavailable records.
724.211 Regularity of government affairs.
724.212 Availability of records.
724.213 Attendance of witnesses.
724.214 Applicant's expenses.
724.215 Military representation.
724.216 Failure to appear at a hearing or respond to a scheduling 
          notice.
724.217 Limitation--Reconsiderations.
724.218 Limitation--Continuance and Postponements.
724.219 Withdrawal of application.
724.220 Review on motion of the NDRB.
724.221 Scheduling of discharge reviews.
724.222 Personal appearance discharge hearing sites.
724.223 NDRB support and augmentation by regular and reserve activities.
724.224 Court-martial specifications, presumption concerning.

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

724.301 Mission.
724.302 Functions: Director, Secretary of the Navy Council of Review 
          Boards.
724.303 Functions: President, Naval Discharge Review Board.
724.304 Responsibility for Department of the Navy support of the Naval 
          Discharge Review Board.
724.305 Functions of the CMC and CNO.
724.306 Functions of the Commander, Naval Medical Command.
724.307 Functions of the Commander, Naval Reserve Force.

  Subpart D_Principal Elements of the Navy Department Discharge Review 
                                 System

724.401 Applicants.
724.402 Naval Discharge Review Board.
724.403 President, Naval Discharge Review Board.
724.404 Director, Naval Council of Personnel Boards.
724.405 Commandant of the Marine Corps or the Commander, Naval Military 
          Personnel Command.
724.406 Commander, Naval Medical Command.
724.407 Commander, Naval Reserve Force.
724.408 Secretary of the Navy.

Subpart E_Procedural Rights of the Applicant and Administrative Actions 
                     Preliminary to Discharge Review

724.501 Procedural rights of the applicant.
724.502 Actions to be taken by the applicant preliminary to discharge 
          review.
724.503 NDRB response to application for discharge review.
724.504 NDRB actions preliminary to discharge review.

      Subpart F_Naval Discharge Review Board Mission and Functions

724.601 General.
724.602 Mission.
724.603 Functions.

       Subpart G_Organization of the Naval Discharge Review Board

724.701 Composition.
724.702 Executive management.
724.703 Legal counsel.

        Subpart H_Procedures of the Naval Discharge Review Board

724.801 Matters to be considered in discharge review.
724.802 Applicant's responsibilities.
724.803 The decisional document.
724.804 Decision process.
724.805 Response to items submitted as issues by the applicant.
724.806 Decisional issues.
724.807 Record of NDRB proceedings.
724.808 Issuance of decisions following discharge review.

[[Page 84]]

724.809 Final disposition of the record of proceedings.
724.810 Availability of Naval Discharge Review Board documents for 
          public inspection and copying.
724.811 Privacy Act information.
724.812 Responsibilities of the Reading Room.
724.813 The recommendation of the NDRB president.
724.814 Secretarial Review Authority (SRA).
724.815 Complaints.

                Subpart I_Standards for Discharge Review

724.901 Objective of discharge review.
724.902 Propriety of the discharge.
724.903 Equity of the discharge.

Appendix A to Part 724--Policy Statement by the Secretary of Defense--
          Addressing Certain Categories of Discharges
Appendix B to Part 724--Oath or AffirmationT Be Administered To 
          Discharge Review Board Members
Appendix C to Part 724--Samples of Formats Employed by the Naval 
          Discharge Review Board
Appendix D to Part 724--Veterans' Benefits

    Authority: 5 U.S.C. 301; 10 U.S.C. 1553.

    Source: 50 FR 10943, Mar. 19, 1985, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 724 appear at 65 FR 
62616, Oct. 19, 2000.



                          Subpart A_Definitions



Sec.  724.101  Naval Service.

    The Naval Service is comprised of the uniformed members of the 
United States Navy and the United States Marine Corps, including active 
and inactive reserve components.



Sec.  724.102  Naval Discharge Review Board.

    An administrative board, referred to as the ``NDRB'' established by 
the Secretary of the Navy pursuant to title 10 U.S.C., section 1553, for 
the review of discharges of former members of the Naval Service.



Sec.  724.103  NDRB panel.

    An element of the NDRB, consisting of five members, authorized to 
review discharges. In plenary review session, an NDRB panel acts with 
the authority delegated by the Secretary of the Navy to the Naval 
Discharge Review Board.



Sec.  724.104  NDRB Traveling Panel.

    An NDRB Panel that travels for the purpose of conducting personal 
appearances discharge review hearings at locations outside of the 
National Capital Region (NCR).



Sec.  724.105  President of the NDRB.

    A senior officer of the Naval Service designated by the Secretary of 
the Navy who is responsible for the direct supervision of the discharge 
review function within the Naval Service. (See subpart E).



Sec.  724.106  Presiding Officer, NDRB Panel.

    The senior member of an NDRB Panel shall normally be the Presiding 
Officer. He/she shall convene, recess and adjourn the NDRB Panel as 
appropriate.



Sec.  724.107  Discharge.

    In the context of the review function prescribed by 10 U.S.C. 1553, 
a discharge or dismissal is a complete separation from the Naval 
Service, other than one pursuant to the sentence of a general court-
martial. By reason of usage, the term ``discharge'' is predominantly 
applicable to the separation of enlisted personnel for any reason, and 
the term ``dismissal'' to the separation of officers as a result of 
Secretarial or general court-martial action. In the context of the 
mission of the NDRB, the term ``discharge'' used here shall, for purpose 
of ease of expression, include any complete separation from the naval 
service other than that pursuant to the sentence of general court-
martial. The term ``discharge'' also includes the type of discharge and 
the reason/basis for that discharge, e.g., Other Than Honorable/
Misconduct (Civil Conviction).



Sec.  724.108  Administrative discharge.

    A discharge upon expiration of enlistment or required period of 
service, or prior thereto, in a manner prescribed by the Commandant of 
the Marine Corps or the Commander, Naval Personnel Command, but 
specifically excluding separation by sentence of a general court-
martial.

[65 FR 62616, Oct. 19, 2000]

[[Page 85]]



Sec.  724.109  Types of administrative discharges.

    (a) A determination reflecting a member's military behavior and 
performance of duty during a specific period of service. The three 
characterizations are:
    (1) Honorable. A separation from the naval service with honor. The 
issuance of an Honorable Discharge is contingent upon proper military 
behavior and performance of duty.
    (2) Under Honorable Conditions (also termed General Discharge). A 
separation from the naval service under honorable conditions. The 
issuance of a discharge under honorable conditions is contingent upon 
military behavior and performance of duty which is not sufficiently 
meritorious to warrant an Honorable Discharge.
    (3) Under Other Than Honorable Conditions (formerly termed 
Undesirable Discharge). A separation from the naval service under 
conditions other than honorable. It is issued to terminate the service 
of a member of the naval service for one or more of the reasons/basis 
listed in the Naval Military Personnel Manual, Marine Corps Separation 
and Retirement Manual and their predecessor publications.
    (4) Entry Level Separation. (i) A separation initiated while a 
member is in entry level status will be described as an Entry Level 
Separation except in the following circumstances:
    (a) When characterization under Other Than Honorable Conditions is 
authorized and is warranted by the circumstances of the case; or
    (b) When characterization of service as Honorable is clearly 
warranted by the presence of unusual circumstances including personal 
conduct and performance of naval duty and is approved on a case-by-case 
basis by the Secretary of the Navy. This characterization will be 
considered when the member is separated by reason of Selected Changes in 
Service Obligation, Convenience of the Government, or Disability.
    (ii) With respect to administrative matters outside the 
administrative separation system that require a characterization of 
service as Honorable or General, an Entry Level Separation shall be 
treated as the required characterization. An Entry Level Separation for 
a member of a Reserve component separated from the Delayed Entry Program 
is under honorable conditions.
    (b) [Reserved]

[50 FR 10943, Mar. 19, 1985, as amended at 51 FR 44909, Dec. 15, 1986; 
65 FR 62616, Oct. 19, 2000]



Sec.  724.110  Reason/basis for administrative discharge.

    The terms ``reason for discharge'' and ``basis for discharge'' have 
the same meaning. The first is a Navy term and the second is a Marine 
Corps term. These terms identify why an administrative discharge was 
issued, e.g., Convenience of the Government, Misconduct. Reasons/basis 
for discharge are found in the Naval Military Personnel Manual and 
Marine Corps Separation and Retirement Manual as well as predecessor 
publications.



Sec.  724.111  Punitive discharge.

    A discharge awarded by sentence of a court-martial. There are two 
types of punitive discharges:
    (a) Bad conduct. A separation from the naval service under 
conditions other than honorable. It may be effected only as a result of 
the approved sentence of a general or special court-martial.
    (b) Dishonorable. A separation from the naval service under 
dishonorable conditions. It may be effected only as a result of the 
approved sentence of a general court-martial.



Sec.  724.112  Clemency discharge.

    (a) The clemency discharge was created by the President on September 
16, 1974, in his Proclamation 4313, ``Announcing a Program for the 
Return of Vietnam Era Draft Evaders and Military Deserters.'' Upon 
issuance to individuals who have an undesirable discharge or a punitive 
discharge, a clemency discharge serves as a written testimonial to the 
fact that the individual has satisfied the requirements of the 
President's program, and has fully earned his/her return to the 
mainstream of American society in accordance with that program.
    (b) The clemency discharge is a neutral discharge, neither honorable 
nor less than honorable. It does not effect a change in the 
characterization of the

[[Page 86]]

individual's military service as having been under other than honorable 
condition, nor does it serves to change, seal, erase or in any way 
modify the individual's past military record. Therefore, if the 
underlying discharge was issued as a result of a general court-martial, 
the issuance of a Clemency Discharge does not subject the underlying 
characterization to review under 10 U.S.C. 1553. Clemency discharges are 
issued by the Commander, Naval Military Personnel Command or the 
Commandant of the Marine Corps when an individual has met the 
requirements of the Presidential Proclamation.



Sec.  724.113  Application.

    In the context of this Manual, a written application to the NDRB for 
the review of a discharge submitted by a former member of the naval 
service or, where a former member is deceased or incompetent, by spouse, 
next of kin or legal representative. Department of Defense Form 293 must 
be used for the application.



Sec.  724.114  Applicant.

    A former member of the naval service who has been discharged 
administratively in accordance with the directives of the naval service 
or by sentence of a special court-martial under title 10 U.S.C. 801 et 
seq. (Uniform Code of Military Justice) and, in accordance with 
statutory and regulatory provisions:
    (a) Whose case is considered by the NDRB at the request of the 
former member, of, if authorized under Sec.  724.113, the surviving 
spouse, next-of-kin or legal representative, or
    (b) Whose case is considered on the NDRB's own motion.



Sec.  724.115  Next of kin.

    The person or persons in the highest category of priority as 
determined by the following list (categories appear in descending order 
of priority): Surviving legal spouse; children (whether by current or 
prior marriage) age 18 years or older in descending precedence by age; 
father or mother, unless by court order custody has been vested in 
another (adoptive parent takes precedence over natural parent); siblings 
(whole or half) age 18 years or older in descending precedence by age; 
grandfather or grandmother; any other relative (precedence to be 
determined in accordance with the civil law of descent of the deceased 
former member's state of domicile at time of death).



Sec.  724.116  Counsel/Representative.

    An individual or agency designated by the applicant who agrees to 
represent the applicant in a case before the NDRB. It includes, but is 
not limited to: a lawyer who is a member of the bar of a Federal Court 
or of the highest court of a State; an accredited representative 
designated by an organization recognized by the Administrator of 
Veterans Affairs; a representative from a State agency concerned with 
veterans affairs; or a representative from private organizations or 
local Government agencies.



Sec.  724.117  Discharge review.

    A nonadversary administrative reappraisal at the level of the Navy 
Department of discharges from the naval service. The object of the 
reappraisal is to determine whether the discharge should be changed, and 
if so, the nature of the change. This reappraisal includes the type and 
reason/basis for separation, the procedures followed in accomplishing 
separation, and the characterization of service. This term includes 
determinations made under the provisions of 38 U.S.C. 3103(2).



Sec.  724.118  Documentary discharge review.

    A formal session of the NDRB convened for the purpose of reviewing, 
on the basis of documentary data, an applicant's discharge. The 
Documentary data shall include the application together with all 
information accompanying that application, available service records, 
and any other information considered relevant by the NDRB.

[50 FR 10943, Mar. 19, 1985, as amended at 75 FR 747, Jan. 6, 2010]



Sec.  724.119  Personal appearance discharge review.

    A formal session of the NDRB convened for the purpose of reviewing 
an applicant's discharge on the basis of a personal appearance, as well 
as documentary data. The personal appearance

[[Page 87]]

may be by the applicant or by a representative of the applicant, or 
both.



Sec.  724.120  National Capital Region (NCR).

    The District of Columbia; Prince Georges and Montgomery Counties in 
Maryland; Arlington, Fairfax, Loudoun, and Prince William Counties in 
Virginia; and all cities and towns included within the outer boundaries 
of the foregoing counties.



Sec.  724.121  Decisional document.

    The written recordation of the applicant's summary of service, the 
issue or issues presented together with any evidence offered in support 
of the application, the NDRB's response to the issue or issues, the 
votes of the members of the panel, and any recommendations or responses 
by the President of the NDRB or the Secretarial Reviewing Authority 
(SRA). The decisional document is promulgated by the ``en bloc letter''.



Sec.  724.122  Recorder, NDRB Panel.

    A panel member responsible for briefing an applicant's case from the 
documentary evidence available prior to a discharge review, presenting 
the brief to the panel considering the application, performing other 
designated functions during personal appearance discharge hearings, and 
drafting the decisional document subsequent to the hearing.



Sec.  724.123  Complainant.

    A former member of the Armed Forces (or the former member's counsel) 
who submits a complaint under 32 CFR part 70 with respect to the 
decisional document issued in the former member's own case; or a former 
member of the Armed Forces (or the former member's counsel) who submits 
a complaint under reference (b) stating that correction of the 
decisional document will assist the former member in preparing for an 
administrative or judicial proceeding in which the former member's own 
discharge will be at issue.



      Subpart B_Authority/Policy for Departmental Discharge Review



Sec.  724.201  Authority.

    The Naval Discharge Review Board, established pursuant to 10 U.S.C. 
1553, is a component of the Secretary of the Navy Council of Review 
Boards. On December 6, 2004, the Assistant Secretary of the Navy 
(Manpower & Reserve Affairs) approved the change in name from Naval 
Council of Personnel Boards to Secretary of the Navy Council of Review 
Boards. By SECNAVINST 5730.7 series, the Assistant Secretary of the Navy 
(Manpower and Reserve Affairs) is authorized and directed to act for the 
Secretary of the Navy within his/her assigned area of responsibility and 
exercises oversight over the Secretary of the Naval Council of Review 
Boards. SECNAVINST 5420.135 series states the organization, mission, 
duties and responsibilities of the Secretary of the Naval Council of 
Review Boards to include the Naval Discharge Review Board. The Chief of 
Naval Operations established the Office of Naval Disability Evaluation 
and the Navy Council of Personnel Boards on 1 October 1976 (OPNAVNOTE 
5450 Ser 09b26/535376 of 9 Sep 1976 (Canc frp: Apr 77)). The Chief of 
Naval Operations approved the change in name of the Office of Naval 
Disability Evaluation and Navy Council of Personnel Boards to Naval 
Council of Personnel Boards on 1 February 1977 (OPNAVNOTE 5450 Ser 
099b26/32648 of 24 Jan 1977 (Canc frp: Jul 77)) with the following 
mission Statement:

    To administer and supervise assigned boards and councils.

[75 FR 747, Jan. 6, 2010]



Sec.  724.202  Statutory/Directive Authority.

    The NDRB, in its conduct of discharge review, shall be guided by the 
applicable statutes, regulations, and manuals and directives of the 
Department of the Navy, and other written public expressions of policy 
by competent authority:
    (a) 10 U.S.C. 1553, Review of discharge or dismissal:
    (1) ``The Secretary concerned shall, after consulting the 
Administrator of Veterans' Affairs, establish a board of

[[Page 88]]

review, consisting of five members, to review the discharge or dismissal 
(other than a discharge or dismissal by sentence of a general court-
martial) of any former member of an armed force under the jurisdiction 
of his/her department upon its own motion or upon the request of the 
former member or, if he/she is dead, his/her surviving spouse, next of 
kin, or legal representative. A motion or request for review must be 
made within 15 years after the date of the discharge or dismissal.''
    (2) A board established under this section may, subject to review by 
the Secretary concerned, change a discharge or dismissal, or issue a new 
discharge, to reflect its findings.
    (3) A review by the board established under this section shall be 
based on the records of the armed forces concerned and such other 
evidence as may be presented to the board. A witness may present 
evidence to the board in person or by affidavit. A person who requests a 
review under this section may appear before the board in person or by 
counsel or an accredited representative or an organization recognized by 
the Administrator of Veterans' Affairs under title 38 U.S.C. 3401 et 
seq.''.
    (b) Pub. L. 95-126. See appendix D.
    (c) 32 CFR part 70. This provides for uniform standards and 
procedures for review of discharges from the military services of the 
Department of Defense. The provisions of 32 CFR part 70 are incorporated 
in this Manual.
    (d) The Secretary of Defense memoranda dated August 13, 1971 and 
April 28, 1972 (NOTAL). These directed a review for recharacterization 
of (1) administrative discharges under other than honorable conditions 
issued solely on the basis of personal use of drugs or possession of 
drugs for the purpose of such use, and (2) punitive discharges and 
dismissals issued solely for conviction of personal use of drugs and 
possession for the purpose of such use for those discharges executed as 
a result of a case completed or in process on or before July 7, 1971. 
(See appendix B).
    (e) 32 CFR part 41. This prescribes policy, standards and procedures 
which govern the administrative separation of enlisted persons from the 
Armed Forces.



Sec.  724.203  Broad objectives of naval discharge review.

    Naval discharge review shall have as its broad objectives:
    (a) The furtherance of good order and discipline.
    (b) The correction of injustice or inequity in the discharge issued.
    (c) The correction of administrative or clerical errors.



Sec.  724.204  Eligibility for naval discharge review.

    Any former member of the Naval Service, eligible for review under 
reference (a) or surviving spouse, next of kin or legal representative, 
shall upon submission of an application be afforded a review of the 
member's discharge from the Naval Service as provided in Sec. Sec.  
724.205 and 724.206. Discharge review may also be initiated on the 
motion of the NDRB (See Sec.  724.220).



Sec.  724.205  Authority for review of naval discharges; 
jurisdictional limitations.

    (a) The Board shall have no authority to:
    (1) Review a discharge or dismissal resulting from a general court-
martial;
    (2) Alter the judgment of a court-martial, except the discharge or 
dismissal awarded may be changed for purposes of clemency;
    (3) Revoke any discharge or dismissal;
    (4) Reinstate a person in the naval service;
    (5) Recall a former member to active duty;
    (6) Change a reenlistment code;
    (7) Make recommendations for reenlistment to permit entry in the 
naval service or any other branch of the Armed Forces;
    (8) Cancel or void enlistment contracts; or
    (9) Change the reason for discharge from or to a physical disability
    (b) Review of naval discharges shall not be undertaken in instances 
where the elapsed time between the date of discharge and the date of 
receipt of application for review exceeds fifteen years.

[[Page 89]]



Sec.  724.206  Jurisdictional determinations.

    The determination as to whether the NDRB has jurisdiction in any 
case shall be predicated on the policy stated in Sec.  724.205. 
Decisions shall be made by administrative action without referral to the 
NDRB. Normally, they shall be made by the Executive Secretary of the 
NDRB, or they may be referred to the President, NDRB.



Sec.  724.207  Disposition of applications for discharge review.

    One of three dispositions will be made of an application for review 
of a discharge:
    (a) The application may be rejected for reason of:
    (1) Absence of jurisdiction;
    (2) Previous review on the same evidence; or
    (b) The application may be withdrawn by the applicant; or
    (c) The application may be accepted and the discharge reviewed by 
the NDRB, resulting in,
    (1) Change to the discharge, or
    (2) No change.



Sec.  724.208  Implementation of NDRB decisions.

    The Commandant of the Marine Corps and the Chief of Naval Operations 
are responsible for implementing Naval Discharge Review Board decisions 
within their respective services. The Commandant of the Marine Corps 
shall be notified of decisions in each discharge review case and shall 
implement the decisions within the Marine Corps. The Commander, Naval 
Military Personnel Command, acting for the Chief of Naval Operations and 
Chief of Naval Personnel, shall be notified of decisions in each 
discharge review case and shall implement the decisions within the Navy.



Sec.  724.209  Evidence supporting applications.

    In the absence of law, evidence or policy to the contrary, naval 
discharges shall be considered just, equitable and proper as issued. 
When hearings are scheduled, applicants must be prepared to present 
their case at the scheduled time. In the absence of any other evidence, 
naval discharge review shall be undertaken by examination of available 
service and health records of the applicant. Normally, the 
responsibility for presenting evidence from outside available service 
and health records shall rest with the applicant. Applications in which 
elements of relevant information are obviously omitted will be returned 
for completion and resubmission.



Sec.  724.210  Review action in instances of unavailable records.

    (a) In the event that Department of the Navy personnel or health 
records associated with a requested review of discharge are not located 
at the custodial activity, the following action shall be taken by the 
NDRB prior to consideration of the request for discharge review.
    (1) A certification that the records are unavailable shall be 
obtained from the custodial activity.
    (2) The applicant shall be notified of the situation and requested 
to provide such information and documents as may be desired in support 
of the request for discharge review. A period of not less than 60 days 
shall be allowed for such documents to be submitted. At the expiration 
of this time period, the review may be conducted with information 
available to the NDRB.
    (3) The presumption of regularity in the conduct of government 
affairs may be applicable in instances of unavailable records depending 
on the circumstances of the case. (See Sec.  724.211)
    (b) [Reserved]

[50 FR 10943, Mar. 19, 1985, as amended at 65 FR 62616, Oct. 19, 2000]



Sec.  724.211  Regularity of government affairs.

    There is a presumption of regularity in the conduct of governmental 
affairs. This presumption can be applied in any review unless there is 
substantial credible evidence to rebut the presumption.



Sec.  724.212  Availability of records.

    (a) Before applying for discharge review, potential applicants or 
their designated representatives may obtain copies of their military 
personnel records by submitting a General Services Administration 
Standard Form 180, ``Request Pertaining to Military

[[Page 90]]

Records,'' to the National Personnel Records Center (NPRC), 9700 Page 
Boulevard, St. Louis, MO 63132. Once the application for discharge 
review (DD Form 293) is submitted, an applicant's military records are 
forwarded to the NDRB where they cannot be reproduced. Submission of a 
request for an applicant's military records, including a request under 
the Freedom of Information Act (5 U.S.C. 552) or Privacy Act (5 U.S.C. 
552a) after the DD Form 293 has been submitted, shall result 
automatically in the temporary suspension of processing of the 
application for discharge review until the requested records are sent to 
an appropriate location for copying, are copied, and are returned to the 
headquarters of the NDRB. Processing of the application shall then be 
resumed at whatever stage of the discharge review process is 
practicable. Applicants are encouraged to submit any request for their 
military records before applying for discharge review rather than after 
submitting DD Form 293 to avoid delays in processing of applications and 
scheduling of reviews. Applicants and their counsel may also examine 
their military personnel records at the site of their scheduled review 
before the hearing. The NDRB shall notify applicants of the dates the 
records are available for examination in their standard scheduling 
information.
    (b) If the NDRB is not authorized to provide copies of documents 
that are under the cognizance of another government department, office, 
or activity, applications for such information must be made by the 
applicant to the cognizant authority. The NDRB shall advise the 
applicant of the mailing address of the government department, office, 
or activity to which the request should be submitted.
    (c) [Reserved]
    (d) The NDRB may take steps to obtain additional evidence that is 
relevant to the discharge under consideration beyond that found in the 
official military records or submitted by the applicant, if a review of 
available evidence suggests that it would be incomplete without the 
additional information, or when the applicant presents testimony or 
documents that require additional information to evaluate properly. Such 
information shall be made available to the applicant, upon request, with 
appropriate modifications regarding classified material.
    (1) In any case heard on request of an applicant, the NDRB shall 
provide the applicant and counsel or representative, if any, at a 
reasonable time before initiating the decision process, a notice of the 
availability of all regulations and documents to be considered in the 
discharge review, except for documents in the official personnel or 
medical records and any documents submitted by the applicant. The NDRB 
shall also notify the applicant or counsel or representative: (a) of the 
right to examine such documents or to be provided with copies of the 
documents upon request; (b) of the date by which such requests must be 
received; and (c) of the opportunity to respond within a reasonable 
period of time to be set by the NDRB.
    (2) When necessary to acquaint the applicant with the substance of a 
classified document, the classifying authority, on the request of the 
NDRB, shall prepare a summary of or an extract from the document, 
deleting all references to sources of information and other matters, the 
disclosure of which, in the opinion of the classifying authority, would 
be detrimental to the national security interests of the United States. 
Should preparation of such summary be deemed impracticable by the 
classifying authority, information from the classified source shall not 
be considered by the NDRB in its review of the case.
    (e) Regulations of a military department may be obtained at many 
installations under the jurisdiction of the Military Department 
concerned or by writing to the following address: DA Military Review 
Boards Agency, Attention: SFBA (Reading Room), Room 1E520, The Pentagon, 
Washington, DC 20310.

[50 FR 10943, Mar. 19, 1985, as amended at 65 FR 62616, Oct. 19, 2000]



Sec.  724.213  Attendance of witnesses.

    Arrangement for attendance of witnesses testifying in behalf of the 
applicant at discharge review hearings is the responsibility of the 
applicant. The NDRB is not authorized to subpoena or otherwise require 
their presence.

[[Page 91]]



Sec.  724.214  Applicant's expenses.

    Unless otherwise specified by law or regulation, expenses incurred 
by the applicant, witnesses, or counsel/representative will not be paid 
by the Department of Defense. The NDRB is not authorized to issue orders 
or other process to enable the applicant to appear in person.



Sec.  724.215  Military representation.

    Military officers, except those acting pursuant to specific 
detailing by appropriate authorities desiring to act for or on behalf of 
an applicant in the presentation of a case before an NDRB Panel are 
advised to consult legal counsel before undertaking such representation. 
Such representation may be prohibited by 18 U.S.C. 205.



Sec.  724.216  Failure to appear at a hearing or respond to a 
scheduling notice.

    (a) Except as otherwise authorized by the Secretary concerned, 
further opportunity for a hearing shall not be made available in the 
following circumstances to an applicant who has requested a hearing:
    (1) When the applicant has been sent a letter containing the month 
and location of a proposed hearing and fails to make a timely response; 
or
    (2) When the applicant, after being notified by letter of the time 
and place of the hearing, fails to appear at the appointed time, either 
in person or by representative, without having made a prior, timely 
request for a continuation, postponement, or withdrawal.
    (b) In such cases, the applicant shall be deemed to have waived the 
right to a hearing, and the NDRB shall complete its review of the 
discharge. Further request for a hearing shall not be granted unless the 
applicant can demonstrate that the failure to appear or respond was due 
to circumstances beyond the applicant's control.



Sec.  724.217  Limitation--Reconsiderations.

    A discharge review shall not be subject to reconsideration except:
    (a) When the only previous consideration of the case was on the 
motion of the NDRB;
    (b) When the original discharge review did not involve a personal 
hearing and a hearing is now desired, and the provisions of Sec.  
724.216 do not apply;
    (c) When changes in discharge policy are announced after an earlier 
review of an applicant's discharge, and the new policy is made expressly 
retroactive;
    (d) When the NDRB determines that policies and procedures under 
which the applicant was discharged differ in material respects from 
policies and procedures currently applicable on a service-wide basis to 
discharges of the type under consideration, provided that such changes 
in policies or procedures represent a substantial enhancement of the 
rights afforded an applicant in such proceedings;
    (e) When an individual is to be represented by counsel or 
representative, and was not so represented in any previous consideration 
of the case by the NDRB;
    (f) When the case was not previously considered under uniform 
standards published pursuant to Pub. L. 95-126 and such application is 
made within 15 years after the date of discharge; or
    (g) On the basis of presentation of new, substantial, relevant 
evidence not available to the applicant at the time of the original 
review. The decision whether evidence offered by an applicant in support 
of a request for reconsideration is in fact new, substantial, relevant, 
and was not available to the applicant at the time of the original 
review will be based on a comparison of such evidence with the evidence 
considered in the previous discharge review. If this comparison shows 
that the evidence submitted would have had a probable effect on matters 
concerning the propriety or equity of the discharge, the request for 
reconsideration shall be granted.



Sec.  724.218  Limitation--Continuance and Postponements.

    (a) A continuance of a discharge review hearing may be authorized by 
the President of the NDRB or presiding officer of the panel concerned, 
provided that such continuance is of reasonable duration and is 
essential to achieving a full and fair hearing. When a proposal

[[Page 92]]

for continuance is indefinite, the pending application shall be returned 
to the applicant with the option to resubmit when the case is fully 
ready for review.
    (b) Postponements of scheduled reviews normally shall not be 
permitted other than for demonstrated good and sufficient reason set 
forth by the applicant in a timely manner or for the convenience of the 
government.



Sec.  724.219  Withdrawal of application.

    An applicant shall be permitted to withdraw an application without 
prejudice at any time before the scheduled review, except that failure 
to appear for a scheduled hearing shall not be construed or accepted as 
a withdrawal.



Sec.  724.220  Review on motion of the NDRB.

    Reviews of Naval discharges may be initiated by the NDRB on its own 
motion (10 U.S.C. 1553) which includes reviews requested by the Veterans 
Administration under 38 U.S.C. 101, 3103 as amended by Pub. L. 95-126 of 
October 8, 1977 (See Pub. L. 98-209).



Sec.  724.221  Scheduling of discharge reviews.

    (a) If an applicant requests a personal appearance discharge review, 
or to be represented in absentia, the NDRB shall provide a hearing in 
the NCR or at another site within the forty-eight contiguous states.
    (b) The NDRB shall subsequently notify the applicant and 
representative (if any) in writing of the proposed personal appearance 
hearing time and place. This notice shall normally be mailed thirty to 
sixty days prior to the date of the hearing. If the applicant elects, 
this time limit may be waived and an earlier date set.
    (c) When an applicant requests a documentary review, the NDRB shall 
undertake the review as soon as practicable. Normally, documentary 
reviews shall be conducted in the order in which they are received.



Sec.  724.222  Personal appearance discharge hearing sites.

    (a) The NDRB shall be permanently located, together with its 
administrative staff, in the NCR. The NDRB shall routinely conduct 
personal appearance discharge reviews and documentary reviews at this, 
its permanent office.
    (b) In addition, as permitted by available resources, NDRB Panels 
shall travel to other selected sites within the contiguous 48 states for 
the purpose of conducting reviews. The selection of sites and frequency 
of visits shall be predicated on the number of requests pending within a 
region and the availability of resources.



Sec.  724.223  NDRB support and augmentation by regular and reserve
activities.

    (a) When an NDRB Panel travels for the purpose of conducting 
hearings, it shall normally select Navy or Marine Corps installations in 
the area visited as review sites.
    (b) The NDRB Traveling Board shall normally consist of members from 
the NCPB and augmentees from regular and reserve Navy and Marine Corps 
sources, as required.
    (c) Navy and Marine Corps activities in the geographical vicinity of 
selected review sites shall provide administrative support and 
augmentation to an NDRB Panel during its visit where such assistance can 
be undertaken without interference with mission accomplishment. The NDRB 
shall coordinate requests for augmentees and administrative support 
through Commandant of the Marine Corps or the Chief of Naval Reserve, as 
appropriate.
    (d) The administrative staff of the NDRB shall undertake all 
arrangements for NDRB Traveling Panel visits and shall process 
associated review documents.

[50 FR 10943, Mar. 19, 1985, as amended at 75 FR 747, Jan. 6, 2010]



Sec.  724.224  Court-martial specifications, presumption concerning.

    (a) Relevant and material facts stated in a court-martial 
specification, shall be presumed by the NDRB Panel as established facts. 
With respect to a discharge or dismissal adjudged by a court-martial 
case tried under the Uniform Code of Military Justice, the action may 
extend only to change in the discharge or dismissal for purposes of 
clemency. This policy only applies to cases filed with the discharge 
review board after December 6, 1983.

[[Page 93]]

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

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



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



Sec.  724.301  Mission.

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



Sec.  724.302  Functions: Director, Secretary of the Navy Council of
Review Boards.

    (a) Make recommendations to the Secretary of the Navy regarding 
organization, tasking and resources of the NDRB and its associated 
administrative support.
    (b) Submit recommendations to the Secretary of the Navy regarding 
policy and procedures for discharge review.
    (c) Provide administrative and clerical support for NDRB.
    (d) Inform the Secretary of the Navy of matters of interest to him.
    (e) Maintain a system of records, including as a minimum:
    (1) Records specified for the NDRB as stipulated in the procedures 
prescribed in subpart H of this Manual.
    (2) Records required for the administration of military and civilian 
personnel.
    (3) Files of correspondence received and issued.
    (f) Establish billet/position assignment criteria for the NDRB.
    (g) Propose to the Secretary of the Navy, changes to this 
instruction.
    (h) Issue requisite precepts and remove or add members to the NDRB 
from personnel detailed to serve on the Secretary of the Navy Council of 
Review Boards, or from personnel otherwise made available.

[50 FR 10943, Mar. 19, 1985, as amended at 75 FR 747, Jan. 6, 2010]



Sec.  724.303  Functions: President, Naval Discharge Review Board.

    (a) Exercise primary cognizance within the Department of the Navy 
for matters relating to discharge review.
    (b) Supervise and direct the activities of the NDRB.

[[Page 94]]

    (c) Maintain appropriate liaison with discharge review activities in 
other services (use Army Discharge Review Board as focal point for 
service coordination).
    (d) Maintain coordination with the Commandant of the Marine Corps 
(Code M) and the Commander, Naval Military Personnel Command in matters 
associated with discharge review.
    (e) In conformance with SECNAVINST 5211.5 series, protect the 
privacy of individuals in connection with discharge review.
    (f) Assure that NDRB functions are administered in accordance with 
the appropriate Secretary of the Navy instructions dealing with privacy 
and access to information.
    (g) Convene the NDRB as authorized by the Secretary of the Navy.
    (h) Direct the movement of the NDRB Traveling Panel(s) on the basis 
of regional hearing requests.
    (i) Monitor the performance of the naval discharge review system. 
Make recommendations for changes and improvements. Take action to avoid 
delays in processing of individual discharge review actions.
    (j) Provide NDRB inputs for the maintenance of a public reading file 
and maintain associated NDRB indexes updated quarterly.

[50 FR 10943, Mar. 19, 1985, as amended at 75 FR 747, Jan. 6, 2010]



Sec.  724.304  Responsibility for Department of the Navy support of
the Naval Discharge Review Board.

    The Commandant of the Marine Corps; Commander, Naval Military 
Personnel Command; Commander, Naval Reserve Force; Commander, Naval 
Medical Command; and chiefs of other bureaus and offices of the 
Department of the Navy shall provide support, as requested, to the Naval 
discharge review process.



Sec.  724.305  Functions of the CMC and CNO.

    In the case of Navy, CNMPC, under the CNP, shall discharge 
responsibilities of the CNO.
    (a) Provide and facilitate access by the NDRB to service/health 
records and other data associated with performance of duty of 
applicants.
    (b) Advise the NDRB of developments in personnel management which 
may have a bearing on discharge review judgments.
    (c) Implement the discharge review decisions of the NDRB and those 
of higher authority within respective areas of cognizance.
    (d) Include the record of NDRB proceedings as a permanent part of 
the service record of the applicant in each case.
    (e) Where appropriate, recommend cases for the NDRB to review on its 
own motion.
    (f) Provide qualified personnel as NDRB members, recorders and 
administrative staff.
    (g) Establish administrative procedures to ensure that if a member 
is separated from the Navy or the Marine Corps under other than fully 
honorable conditions, the member is advised of:
    (1) The right to a review of his or her discharge under provisions 
of 10 U.S.C. 1553, and
    (2) The procedures for applying for such a review.
    (h) Provide Navy and Marine Corps units and activities with 
information on the mission of the Naval Discharge Review Board through 
entries in appropriate personnel administration directives.



Sec.  724.306  Functions of the Commander, Naval Medical Command.

    Under the CNO the COMNAVMEDCOM shall facilitate, as required, access 
by the NDRB to health records of applicants.



Sec.  724.307  Functions of the Commander, Naval Reserve Force.

    In the case of Navy, the COMNAVRESFOR shall discharge the 
responsibilities of the CNO--
    (a) Upon request and within available resources, provide qualified 
inactive duty reservists to serve as members of the NDRB.
    (b) Upon request, provide appropriate accommodations to the NDRB 
Traveling Panels for purposes of conducting reviews at Naval and Marine 
Corps Reserve Centers and aviation facilities.

[[Page 95]]



  Subpart D_Principal Elements of the Navy Department Discharge Review 
                                 System



Sec.  724.401  Applicants.

    As defined in Sec.  724.114.



Sec.  724.402  Naval Discharge Review Board.

    As defined in Sec.  724.102.



Sec.  724.403  President, Naval Discharge Review Board.

    Supervises the Naval Discharge Review Board. (See subpart C).



Sec.  724.404  Director, Naval Council of Personnel Boards.

    Exercises adminstrative control and oversight of the Naval discharge 
review process. (See subpart C).



Sec.  724.405  Commandant of the Marine Corps or the Commander, 
Naval Military Personnel Command.

    Personnel managers of the Marine Corps and the Navy; responsible for 
providing limited support to the Naval Discharge Review Board and for 
implementation of departmental discharge review decisions. (See subpart 
C).



Sec.  724.406  Commander, Naval Medical Command.

    Custodian of Navy and Marine Corps health records. (See subpart C).



Sec.  724.407  Commander, Naval Reserve Force.

    Manages Naval Reserve resources. Responsible for providing limited 
support to the Naval Discharge Review Board. (See subpart C).



Sec.  724.408  Secretary of the Navy.

    The final authority within the Department of the Navy in discharge 
review.



Subpart E_Procedural Rights of the Applicant and Administrative Actions 
                     Preliminary To Discharge Review



Sec.  724.501  Procedural rights of the applicant.

    Each applicant has the following procedural rights:
    (a) Within 15 years after the date of discharge, to make a written 
request for review of the applicant's discharge if the discharge was 
other than the result of a general court-martial. The request may 
include such other statements, affidavits, or documentation as desired.
    (b) To have that review conducted by the NDRB either in the NCR or 
other designated location, when a personal appearance discharge review 
is desired.
    (c) To appear before the NDRB in person, with or without counsel/
representative; with counsel/representative concurrence, to have 
counsel/representative present the applicant's case in the absence of 
the applicant; or to have the review conducted based on records and any 
additional documentation submitted by the applicant or counsel/
representative.
    (d) To request copies of any documents or other evidence to be 
considered by the NDRB in the review of the applicant's discharge or 
dismissal other than the documents or evidence contained in the official 
record or submitted by the applicant prior to the conduct of the formal 
review and to be afforded an opportunity to examine such other documents 
or evidence or to be provided with copies of them.
    (e) To withdraw the request for discharge review without prejudice 
at any time prior to the scheduled review, except that failure to appear 
for a scheduled hearing shall not be construed or accepted as a 
withdrawal.
    (f) To request a continuance of the review when the continuance is 
of a reasonable duration and essential to achieving a full and fair 
hearing. The request must indicate the reason why the continuance is 
required.
    (g) To request postponement of the discharge review for good and 
sufficient reason set forth in a timely manner.
    (h) To request reconsideration of the discharge review under the 
conditions set forth in Sec.  724.217.
    (i) To have access to the information to be considered by the NDRB 
prior to the actual review of the applicant's case.
    (j) To have the applicant's right to privacy protected in any review 
conducted by the NDRB.

[[Page 96]]

    (k) When appearing personally before the NDRB:
    (1) To introduce witnesses, documents, and sworn or unsworn 
testimony.
    (2) To present oral or written arguments personally or through 
counsel/representative.
    (l) To submit documents, affidavits, briefs or arguments in writing. 
When the counsel/representative appears in person before the NDRB, 
arguments may be presented orally.
    (m) To state clearly and specifically the issue or issues which the 
applicant desires the NDRB to answer in writing. These must be presented 
in writing on DD Form 293 by the applicant or counsel/representative.
    (n) To have the applicant's discharge reviewed under the standards 
of equity and propriety outlined in subpart I.
    (o) To be provided with a written decision on the applicant's 
review.
    (p) If the case is to be forwarded for Secretarial review, to 
present a timely statement rebutting any findings, conclusions, or 
reasons of the NDRB or the President, NDRB, which are alleged to be 
erroneous on the facts, against the substantial weight of the evidence, 
or contrary to law or governing regulation, prior to that Secretarial 
review.

[50 FR 10943, Mar. 19, 1985, as amended at 75 FR 747, Jan. 6, 2010]



Sec.  724.502  Actions to be taken by the applicant preliminary to
discharge review.

    (a) Application for Review of Discharge or Dismissal from the Armed 
Forces of the United States, DD Form 293 must be used in requesting a 
discharge review. DD Form 293 is available at most military 
installations and regional offices of the Veterans Administration. This 
form is to be signed personally by the applicant. In the event the 
discharged individual is deceased or incompetent, the form must be 
signed by an authorized individual as discussed in Sec.  724.113 of this 
Manual.
    (b) The application is to be accompanied by:
    (1) A copy of the certificate of discharge, if available;
    (2) A copy of the Armed Forces of the United States Report of 
Transfer or Discharge (DD-214), if available;
    (3) Certification of death, incompetency and evidence of 
relationship in applicable cases (Sec.  724.113);
    (4) Other statements, affidavits, depositions, documents and 
information desired by the applicant to be considered by the NDRB.
    (c) Correspondence relating to review of naval discharges should be 
addressed to:

Naval Discharge Review Board, 720 Kennon Ave SE., Suite 309, Washington, 
DC 20374-5023

    (d) NDRB telephone number is (202) 685-6600.

[50 FR 10943, Mar. 19, 1985, as amended at 75 FR 747, Jan. 6, 2010]



Sec.  724.503  NDRB response to application for discharge review.

    (a) The NDRB shall acknowledge receipt of the application.
    (b) In the event a documentary review is requested, the applicant 
shall normally receive no further communication from the NDRB until 
notified of the decision in the case.
    (c) In the event a personal appearance discharge review is 
requested, the applicant shall be notified of the proposed time and 
place of this review and shall be advised of the availability of the 
official documents to be considered by the NDRB.
    (d) A copy of NDRB correspondence to an applicant shall be sent to 
the representative of record, if any.



Sec.  724.504  NDRB actions preliminary to discharge review.

    (a) When each application for discharge review is received by the 
NDRB, the service record and, if required, health record of the 
applicant will be requested from the appropriate record custodian.
    (b) Upon receipt, each record of service will be reviewed to 
determine whether or not the applicant appears to have been discharged 
under circumstances which might act as a bar to Veterans' Administration 
benefits under 38 U.S.C. 3103. These circumstances of discharge are:
    (1) Discharge or dismissal by reason of the sentence of a general 
court-martial.

[[Page 97]]

    (2) Discharge as a conscientious objector who refused to perform 
military duty, to wear the uniform or otherwise to comply with lawful 
orders of competent military authority.
    (3) Discharge as a deserter.
    (4) Discharge on the basis, or as part of the basis, of an absence 
without authority from active duty for a continuous period of at least 
180 days, if such discharge was under conditions other than honorable. 
Additionally, such absence is computed without regard to the applicant's 
normal or adjusted expiration of term of service.
    (5) Discharge or dismissal of an officer based on acceptance of the 
officer's resignation for the good of the service.
    (6) Discharge, on his/her own application, during a period of 
hostilities, as an alien.
    (c) If it appears that the applicant was discharged under one or 
more of the circumstances outlined in Sec.  724.504b, a written 
notification will be sent which informs the applicant that:
    (1) An initial service record review reveals that the discharge may 
have been awarded under circumstances which make the applicant 
ineligible for receipt of VA benefits regardless of any action taken by 
the NDRB.
    (2) Separate action by the Board for Correction of Naval Records 
(BCNR) and/or the VA, in case of 180 days consecutive UA 
disqualification, may confer eligibility for VA benefits. Instructions 
for making application to the BCNR and for contacting the VA are 
provided.

[50 FR 10943, Mar. 19, 1985, as amended at 75 FR 747, Jan. 6, 2010]



      Subpart F_Naval Discharge Review Board Mission and Functions



Sec.  724.601  General.

    The NDRB is a component of the Secretary of the Navy Council of 
Review Boards and has its offices located in the NCR. The NDRB conducts 
documentary reviews and personal appearance reviews in the NCR and, on a 
traveling basis, at selected sites within the 48 contiguous states. 
Regional site selection is predicated on the number of pending 
applications accumulated from a given geographical area and the 
resources available to support distant personal appearance reviews. The 
NDRB does not maintain facilities other than at its NCR offices. The 
primary sites of NCR are: Chicago, IL; Dallas, TX; and San Francisco, 
CA.

[50 FR 10943, Mar. 19, 1985, as amended at 75 FR 747, Jan. 6, 2010]



Sec.  724.602  Mission.

    To decide, in accordance with standards of naval law and discipline 
and the standards for discharge review set forth in subpart I, whether a 
discharge or dismissal from the naval service is proper and equitable, 
or whether it should be changed.



Sec.  724.603  Functions.

    (a) Meet as frequently as necessary to provide expeditious review of 
naval discharges.
    (b) Meet at locations within the 48 contiguous states as determined 
appropriate on the basis of the number of discharge review applications 
received from various geographical areas and of available resources and 
facilities.
    (c) Review applications for review of discharges.
    (d) In consonance with directives of higher authority and the 
policies set forth in this Manual, grant or deny change of discharges.
    (e) Promulgate decisions in a timely manner.
    (f) Maintain a system of records.
    (g) Maintain liaison in discharge review matters with:
    (1) General Counsel of the Navy.
    (2) Commandant of the Marine Corps.
    (3) Chief of Naval Operations.
    (i) Commander, Naval Reserve Force.
    (ii) Commander, Naval Medical Command.
    (iii) Commander, Naval Military Personnel Command, under the Chief 
of Naval Personnel.
    (4) Judge Advocate General of the Navy.
    (5) Veterans' service organizations.
    (6) Discharge review boards of the other services, using the Army 
Discharge Review Board as the focal point for service coordination.
    (h) Protect the privacy of individuals whose records are reviewed.

[[Page 98]]

    (i) Maintain for public access a reading file and associated index 
of records of NDRB proceedings in all reviews undertaken subsequent to 
July 1, 1975.



       Subpart G_Organization of the Naval Discharge Review Board



Sec.  724.701  Composition.

    The NDRB acting in plenary review session shall be composed of five 
members. Normally the members shall be career military officers, 
assigned to the Secretary of the Navy Council of Review Boards or 
otherwise made available; inactive duty officers of the Navy and Marine 
Corps Reserve may serve as members when designated to do so by the 
President, NDRB.
    (a) Presiding officers of the NDRB shall normally be Navy or Marine 
Corps officers in the grade of Captain/Colonel or above.
    (b) The remaining NDRB membership shall normally be not less than 
the grade of Lieutenant Commander/Major with preference being given to 
senior grades.
    (c) Normally, at least three of the five members of the NDRB shall 
belong to the service from which the applicant whose case is under 
review was discharged.
    (d) Individual membership in the NDRB may vary within the 
limitations of the prescribed composition.
    (e) Any member of a panel of the NDRB other than the presiding 
officer may act as recorder for cases assigned. The recorder will 
participate as a voting member of the panel.

[50 FR 10943, Mar. 19, 1985, as amended at 75 FR 747, Jan. 6, 2010]



Sec.  724.702  Executive management.

    The administrative affairs of the NDRB shall be managed by the 
Executive Secretary. This responsibility shall include schedules, 
records, correspondence and issuance of NDRB decisions.



Sec.  724.703  Legal counsel.

    Normally, the NDRB shall function without the immediate attendance 
of legal counsel. In the event that a legal advisory opinion is deemed 
appropriate by the NDRB, such opinion shall be obtained routinely by 
reference to the Counsel assigned to the Office of the Director, 
Secretary of the Navy Council of Review Boards. In addition, the NDRB 
may request advisory opinions from staff offices of the Department of 
the Navy, including, but not limited to the General Counsel and the 
Judge Advocate General.

[75 FR 747, Jan. 6, 2010]



          Subpart H_Procedures of Naval Discharge Review Board



Sec.  724.801  Matters to be considered in discharge review.

    In the process of its review of discharges, the NDRB shall examine 
available records and pertinent regulations of the Department of the 
Navy, together with such information as may be presented by the 
applicant and/or representative, which will normally include:
    (a) The application for discharge review;
    (b) Statements, affidavits or documentation, if any, accompanying 
the application or presented during hearings;
    (c) Testimony, if any, presented during hearings;
    (d) Service and health records;
    (e) A brief of pertinent facts extracted from the service and health 
records, prepared by the NDRB recorder.



Sec.  724.802  Applicant's responsibilities.

    (a) Request for change of discharge. An applicant may request a 
change in the character of or reason for discharge (or both).
    (1) Character of discharge. Block 7 of DD Form 293 provides an 
applicant an opportunity to request a specific change in character of 
discharge (for example, General Discharge to Honorable Discharge; Other 
than Honorable Discharge to General or Honorable Discharge). A person 
separated on or after 1 October 1982 while in an entry level status may 
request a change from Other Than Honorable Discharge to Entry Level 
Separation. A request for review from an applicant who does not have an 
Honorable Discharge will be treated as a request for a change to an

[[Page 99]]

Honorable Discharge unless the applicant requests a specific change to 
another character of discharge.
    (2) Reason for discharge. Block 7 of DD Form 293 provides an 
applicant an opportunity to request a specific change in the reason for 
discharge. If an applicant does not request a specific change in the 
reason for discharge, the NDRB will presume that the request for review 
does not involve a request for change in the reason for discharge. Under 
its responsibility to examine the propriety and equity of an applicant's 
discharge, the NDRB will change the reason for discharge if such a 
change is warranted.
    (3) The applicant must ensure that issues submitted to the NDRB are 
consistent with the request for change in discharge set forth in block 7 
of the DD Form 293. If an ambiguity is created by a difference between 
and applicant's issue and the request in block 7, the NDRB will respond 
to the issue in the context of the action requested in block 7. In the 
case of a personal appearance hearing, the NDRB will attempt to resolve 
the ambiguity under Sec.  724.802(c).
    (b) Request for consideration of specific issues. An applicant may 
request the Board to consider specific issues which, in the opinion of 
the applicant, form a basis for changing the character of or reason for 
discharge, or both. In addition to the guidance set forth in this 
section, applicants should consult the other sections in this manual 
before submitting issues for consideration by the Board.
    (1) Submission of issues on DD Form 293. Issues must be provided to 
the NDRB on DD Form 293 (82 Nov) before the NDRB closes the review 
process for deliberation.
    (i) Issues must be clear and specific. An issue must be stated 
clearly and specifically in order to enable the NDRB to understand the 
nature of the issue and its relationship to the applicant's discharge.
    (ii) Separate listing of issues. Each issue submitted by an 
applicant should be listed separately. Submission of a separate 
statement for each issue provides the best means of ensuring that the 
full import of the issue is conveyed to the NDRB.
    (iii) Use of DD Form 293. DD Form 293 provides applicants with a 
standard format for submitting issues to the NDRB, and its use:
    (A) Provides a means for an applicant to set forth clearly and 
specifically those matters that, in the option of the applicant, provide 
a basis for changing the discharge;
    (B) Assists the NDRB in focusing on those matters considered to be 
important by an applicant;
    (C) Assists the NDRB in distinguishing between a matter submitted by 
an applicant in the expectation that it will be treated as a decisional 
issue, and those matters submitted simply as background or supporting 
materials;
    (D) Provides the applicant with greater rights in the event that the 
applicant later submits a complaint concerning the decisional document;
    (E) Reduces the potential for disagreement as to the content of an 
applicant's issue.
    (iv) Incorporation by reference. If the applicant makes an 
additional written submission, such as a brief, in support of the 
application, the applicant may incorporate by reference specific issues 
set forth in the written submission in accordance with the guidance on 
DD Form 293. The reference shall be specific enough for the NDRB to 
identify clearly the matter being submitted as an issue. At a minimum, 
it shall identify the page, paragraph, and sentence incorporated. 
Because it is to the applicant's benefit to bring such issues to the 
NDRB's attention as early as possible in the review, applicants who 
submit a brief are strongly urged to set forth all such issues as a 
separate item at the beginning of the brief. If it reasonably appears 
that the applicant inadvertently failed expressly to incorporate an 
issue which the applicant clearly identifies as an issue to be addressed 
by the NDRB, the NDRB shall respond to such an issue. (See Sec. Sec.  
724.805 and 724.806.)
    (v) Effective date of the new Form DD 293. With respect to 
applications pending (before November 1982, the effective date of the 
new DD Form 293), the NDRB shall consider issues clearly and 
specifically stated in accordance with the rules in effect at the time 
of submission. With respect to applications

[[Page 100]]

received after November 1982, if the applicant submits an obsolete DD 
Form 293, the NDRB shall accept the application, but shall provide the 
applicant with a copy of the new form and advise the applicant that it 
will only respond to issues submitted on the new form in accordance with 
this instruction.
    (2) Relationship of issues to character of or reason for discharge. 
If the application applies to both character of and reason for 
discharge, the applicant is encouraged, but not required, to identify 
the issue as applying to either the character of or the reason for 
discharge (or both). Unless the issue is directed at the reason for 
discharge expressly or by necessary implication, the NDRB will presume 
that it applies solely to the character of discharge.
    (3) Relationship of issues to the standards for discharge review. 
The NDRB reviews discharges on the basis of issues of propriety and 
equity. The standards used by the NDRB are set forth in Sec.  724.804. 
The applicant is encouraged to review those standards before submitting 
any issue upon which the applicant believes a change in discharge should 
be based.
    (i) Issues concerning the equity of the discharge. An issue of 
equity is a matter that involves a determination whether a discharge 
should be changed under the equity standards of this part. This includes 
any issue, submitted by the applicant in accordance with Sec.  
724.802(b)(1), that is addressed to the discretionary authority of the 
NDRB.
    (ii) Issues concerning the propriety of a discharge. An issue of 
propriety is a matter that involves a determination whether a discharge 
should be changed under the propriety standards of this part. This 
includes an applicant's issue, submitted in accordance with Sec.  
724.802(b)(1), in which the applicant's position is that the discharge 
must be changed because of an error in the discharge pertaining to a 
regulation, statute, constitutional provision, or other source of law 
(including a matter that requires a determination whether, under the 
circumstances of the case, action by military authorities was arbitrary, 
capricious, or an abuse of discretion). Although a numerical reference 
to the regulation or other sources of law alleged to have been violated 
is not necessarily required, the context of the regulation or a 
description of the procedures alleged to have been violated normally 
must be set forth in order to inform the NDRB adequately of the basis 
for the applicant's position.
    (iii) The applicant's identification of an issue. The applicant is 
encouraged, but not required, to specify that each issue pertains to the 
propriety or the equity of the discharge. This will assist the NDRB in 
assessing the relationship of the issue to propriety or equity.
    (4) Citation of matter from decisions. The primary function of the 
NDRB involves the exercise of discretion on a case-by-case basis. 
Applicants are not required to cite prior decisions as the basis for a 
change in discharge. If the applicant wishes to bring the NDRB's 
attention to a prior decision as background or illustrative material, 
the citation should be placed in a brief or other supporting documents. 
If, however, it is the applicant's intention to submit an issue that 
sets forth specific principles and facts from a specific cited decision, 
the following requirements with respect to applications received on or 
after November 27, 1982 apply:
    (i) The issue must be set forth or expressly incorporated in the 
``Applicant's Issue'' portion of DD Form 293.
    (ii) If an applicant's issue cites a prior decision (of the NDRB, 
another Board, an agency, or a court), the applicant shall describe the 
specific principles and facts that are contained in the prior decision 
and explain the relevance of cited matter to the applicant's case.
    (iii) To ensure timely consideration of principles cited from 
unpublished opinions (including decisions maintained by the Armed Forces 
Discharge Review Board/Corrective Board Reading Room), applicants must 
provide the NDRB with copies of such decisions or of the relevant 
portion of the treatise, manual or similar source in which the 
principles were discussed. At the applicant's request, such materials 
will be returned.
    (iv) If the applicant fails to comply with requirements in Sec.  
724.802(b)(4), the

[[Page 101]]

decisional document shall note the defect, and shall respond to the 
issue without regard to the citation.
    (c) Identification by the NDRB of issues submitted by an applicant. 
The applicant's issues shall be identified in accordance with this 
section after a review of the materials noted under Sec.  924.803, is 
made.
    (1) Issues on DD Form 293. The NDRB shall consider all items 
submitted as issues by an applicant on DD Form 293 (or incorported 
therein).
    (2) Amendment of issues. The NDRB shall not request or instruct an 
applicant to amend or withdraw any matter submitted by the applicant. 
Any amendment or withdrawal of an issue by an applicant shall be 
confirmed in writing by the applicant. Nothing in this provision:
    (i) Limits the NDRB's authority to question an applicant as to the 
meaning of such matter;
    (ii) Precludes the NDRB from developing decisional issues based upon 
such questions;
    (iii) Prevents the applicant from amending or withdrawing such 
matter any time before the NDRB closes the review process for 
deliberation; or
    (iv) Prevents the NDRB from presenting an applicant with a list of 
proposed decisional issues and written information concerning the right 
of the applicant to add to, amend, or withdraw the applicant's 
submission. The written information will state that the applicant's 
decision to take such action (or decline to do so) will not be used 
against the applicant in the consideration of the case.
    (3) Additional issues identified during a hearing. The following 
additional procedure shall be used during a hearing in order to promote 
the NDRB's understanding of an applicant's presentation. If, before 
closing the case for deliberation, the NDRB believes that an applicant 
has presented an issue not listed on DD Form 293, the NDRB may so inform 
the applicant, and the applicant may submit the issue in writing or add 
additional written issues at that time. This does not preclude the NDRB 
from developing its own decisional issues.



Sec.  724.803  The decisional document.

    A decisional document shall be prepared for each review. At a 
minimum, this document shall contain:
    (a) The circumstances and character of the applicant's service as 
extracted from available service records, including health records, and 
information provided by other government authorities or the applicant, 
such as, but not limited to:
    (1) Information concerning the discharge under review, including:
    (i) Date (YYMMDD) of discharge;
    (ii) Character of discharge;
    (iii) Reason for discharge;
    (iv) The specific regulatory authority under which the discharge was 
issued;
    (v) Date (YYMMDD) of enlistment;
    (vi) Period of enlistment;
    (vii) Age at enlistment;
    (viii) Length of service;
    (ix) Periods of unauthorized absence;
    (x) Conduct and efficiency ratings (numerical or narrative);
    (xi) Highest rank achieved;
    (xii) Awards and decorations;
    (xiii) Educational level;
    (xiv) Aptitude test scores;
    (xv) Incidents of punishment pursuant to Article 15, Uniform Code of 
Military Justice (including nature and date (YYMMDD) of offense or 
punishment);
    (xvi) Convictions by court-martial;
    (xvii) Prior military service and type of discharge received.
    (2) Any other matters in the applicant's record which pertains to 
the discharge or the issues, or provide a clearer picture of the overall 
quality of the applicant's service.
    (b) A list of the type of documents submitted by or on behalf of the 
applicant (including written briefs, letters of recommendation, 
affidavits concerning the circumstances of the discharge, or other 
documentary evidence), if any.
    (c) A statement whether the applicant testified, and a list of the 
type of witnesses, if any , who testified on behalf of the applicant.
    (d) A notation whether the application pertained to the character of 
discharge, the reason for discharge, or both.
    (e) A list of the items submitted as issues on DD Form 293 or 
expressly incorporated therein and such other

[[Page 102]]

items submitted as issues by the applicant that are identified as 
inadvertently omitted. If the issues are listed verbatim on DD Form 293, 
a copy of the relevant portion of the form may be attached. Issues that 
have been withdrawn or modified with the written consent of the 
applicant need not be listed.
    (f) The response to the items submitted as issues by the applicant.
    (g) A list of decisional issues and a discussion of such issues.
    (h) NDRB's conclusions on the following:
    (1) Whether the character of or reason for discharge should be 
changed.
    (2) The specific changes to be made, if any.
    (i) A record of the voting, including:
    (1) The number of votes for the NDRB's decision and the number of 
votes in the minority, if any.
    (2) The NDRB members' names and votes. The copy provided to the 
applicant may substitute a statement that the names and votes will be 
made available to the applicant at the applicant's request.
    (j) Advisory opinions, including those containing factual 
information, when such opinions have been relied upon for final decision 
or have been accepted as a basis for rejecting any of the applicant's 
issues. Such advisory opinions or relevant portions that are not fully 
set forth in the discussion of decisional issues or otherwise in 
response to items submitted as issues by the applicant shall be 
incorporated by reference. A copy of opinions incorporated by reference 
shall be appended to the decision and included in the record of 
proceedings.
    (k) The recommendation of the NDRB president when required.
    (l) The addendum of the SRA when required.
    (m) Index entries for each decisional issue under appropriate 
categories listed in the index of decisions.
    (n) An authentication of the document by an appropriate official.



Sec.  724.804  Decision process.

    (a) The NDRB or the NDRB panel, as appropriate, shall meet in 
plenary session to review discharges and exercise its discretion on a 
case-by-case basis in applying the standard set forth in subpart I.
    (b) The presiding officer is responsible for the conduct of the 
discharge review. The presiding officer shall convene, recess, and 
adjourn the NDRB panel as appropriate and shall maintain an atmosphere 
of dignity and decorum at all times.
    (c) Each NDRB member shall act under oath or affirmation requiring 
careful, objective consideration of the application. NDRB members are 
responsible for eliciting all facts necessary for a full and fair 
review. They shall consider all information presented to them by the 
applicant. In addition, they shall consider available military service 
and health records, together with other records that may be in the files 
of the military department concerned and relevant to the issues before 
the NDRB, and any other evidence obtained in accordance with this 
Manual.
    (d) The NDRB shall identify and address issues after a review of the 
following material obtained and presented in accordance with this Manual 
and any implementing instructions of the NDRB: available official 
records, documentary evidence submitted by or on behalf of an applicant, 
presentation of a hearing examination, testimony by or on behalf of an 
applicant, oral or written arguments presented by or on behalf of an 
applicant, and any other relevant evidence.
    (e) If an applicant who has requested a hearing does not respond to 
a notification letter or does not appear for a scheduled hearing, the 
NDRB may complete the review on the basis of material previously 
submitted and available service records.
    (f) Application of standards. (1) When the NDRB determines that an 
applicant's discharge was improper, the NDRB will determine which reason 
for discharge should have been assigned based upon the facts and 
circumstances before the discharge authority, including the service 
regulations governing reasons for discharge at the time the applicant 
was discharged. Unless it is also determined that the discharge was 
inequitable, the provisions as to the characterization in the regulation 
under which the applicant should have

[[Page 103]]

been discharged will be considered in determining whether further relief 
is warranted.
    (2) When the NDRB determines that an applicant's discharge was 
inequitable, any change will be based on the evaluation of the 
applicant's overall record of service and relevant regulations of the 
service of which the applicant was a member.
    (g) Voting shall be conducted in closed session, a majority of the 
votes of the five members constituting the NDRB decision.
    (h) Details of closed session deliberations of the NDRB are 
priviledged information and shall not be divulged.
    (i) There is no requirement for a statement of minority views in the 
event of a split vote.
    (j) The NDRB may request advisory opinions from appropriate staff 
officers of the naval service. These opinions are advisory in nature and 
are not binding on the NDRB in its decision-making process.
    (k) The preliminary determinations required by 38 U.S.C. 3103(e) 
shall be made upon majority vote of the NDRB concerned on an expedited 
basis. Such determination shall be based upon the standards set forth in 
this Manual.



Sec.  724.805  Response to items submitted as issues by the applicant.

    (a) General guidance. (1) If any issue submitted by an applicant 
contains two or more clearly separate issues, the NDRB should respond to 
each issue under the guidance of this paragraph as if it had been set 
forth separately by the applicant.
    (2) If an applicant uses a ``building block'' approach (that is, 
setting forth a series of conclusions on issues that lead to a single 
conclusion purportedly warranting a change in the applicant's 
discharge), normally there should be a separate response to each issue.
    (3) Nothing in this paragraph precludes the NDRB from making a 
single response to multiple issues when such action would enhance the 
clarity of the decisional document, but such response must reflect an 
adequate response to each separate issue.
    (b) Decisional issues. An item submitted as an issue by an applicant 
in accordance with this Manual shall be addressed as a decisional issue 
in the following circumstances:
    (1) When the NDRB decides that a change in discharge should be 
granted, and the NDRB bases its decision in whole or in part on the 
applicant's issue; or
    (2) When the NDRB does not provide the applicant with the full 
change in discharge requested, and the decision is based in whole or in 
part on the NDRB's disagreement on the merits with an issue submitted by 
the applicant.
    (c) Response to items not addressed as decisional issues. (1) If the 
applicant receives the full change in discharge requested (or a more 
favorable change), that fact shall be noted and the basis shall be 
addressed as a decisional issue. No further response is required to 
other issues submitted by the applicant.
    (2) If the applicant does not receive the full change in discharge 
requested with respect to either the character of or reason for 
discharge (or both), the NDRB shall address the items submitted by the 
applicant under Sec.  724.806, (Decisional Issues) unless one of the 
following responses is applicable:
    (i) Duplicate issues. The NDRB may state that there is a full 
response to the issue submitted by the applicant under a specified 
decisional issue. This response may be used only when one issue clearly 
duplicates another or the issue clearly requires discussion in 
conjunction with another issue.
    (ii) Citations without principles and facts. The NDRB may state that 
the applicant's issue, which consists of a citation to a decision 
without setting forth any principles and facts from the decision that 
the applicant states are relevant to the applicant's case, does not 
comply with the requirements of Sec.  724.802(b)(4).
    (iii) Unclear issues. The NDRB may state that it cannot respond to 
an item submitted by the applicant as an issue because the meaning of 
the item is unclear. An issue is unclear if it cannot be understood by a 
reasonable person familiar with the discharge review process after a 
review of the materials considered.
    (iv) Nonspecific issues. The NDRB may state that it cannot respond 
to an item

[[Page 104]]

submitted by the applicant as an issue because it is not specific. A 
submission is considered not specific if a reasonable person familiar 
with the discharge review process after a review of the materials 
considered cannot determine the relationship between the applicant's 
submission and the particular circumstances of the case. This response 
may be used only if the submission is expressed in such general terms 
that no other response is applicable. For example, if the NDRB disagrees 
with the applicant as to the relevance of matters set forth in the 
submission, the NDRB normally will set forth the nature of the 
disagreement with respect to decisional issues, or it will reject the 
applicant's position. If the applicant's submission is so general that 
none of those provisions is applicable, then the NDRB may state that it 
cannot respond because the item is not specific.



Sec.  724.806  Decisional issues.

    (a) General. Under the guidance in this section, the decisional 
document shall discuss the issues that provide a basis for the decision 
whether there should be a change in the character of or reason for 
discharge. In order to enhance clarity, the NDRB should not address 
matters other than issues relied upon in the decision or raised by the 
applicant.
    (1) Partial change. When the decision changes a discharge, but does 
not provide the applicant with the full change in discharge requested, 
the decisional document shall address both the issues upon which change 
is granted and the issues upon which the NDRB denies the full change 
requested.
    (2) Relationship of issue of character of or reason for discharge. 
Generally, the decisional document should specify whether a decisional 
issue applies to the character of or reason for discharge (or both), but 
it is not required to do so.
    (3) Relationship of an issue to propriety or equity. (i) If an 
applicant identifies an issue as pertaining to both propriety and 
equity, the NDRB will consider it under both standards.
    (ii) If an applicant identifies an issue as pertaining to the 
propriety of the discharge (for example, by citing a propriety standard 
or otherwise claiming that a change in discharge is required as a matter 
of law), the NDRB shall consider the issue solely as a matter of 
propriety. Except as provided in Sec.  724.806(a)(3)(d), the NDRB is not 
required to consider such an issue under the equity standards.
    (iii) If the applicant's issue contends that the NDRB is required as 
a matter of law to follow a prior decision by setting forth an issue of 
propriety from the prior decision and describing its relationship to the 
applicant's case, the issue shall be considered under the propriety 
standards and addressed under Sec.  724.806 (a) or (b).
    (iv) If the applicant's issue sets forth principles of equity 
contained in a prior NDRB decision, describes the relationship to the 
applicant's case, and contends that the NDRB is required as a matter of 
law to follow the prior case, the decisional document shall note that 
the NDRB is not bound by its discretionary decisions in prior cases. 
However, the principles cited by the applicant, and the description of 
the relationship of the principles to the applicant's case, shall be 
considered and addressed under the equity standards.
    (v) If the applicant's issue cannot be identified as a matter of 
propriety or equity, the NDRB shall address it as an issue of equity.
    (b) Change of discharge: issues of propriety. If a change in the 
discharge is warranted under the propriety standards, the decisional 
document shall state that conclusion and list the errors of expressly 
retroactive changes in policy or violations of regulations that provide 
a basis for the conclusion. The decisional document shall cite the facts 
in the record that demonstrate the relevance of the error or change in 
policy to the applicant's case. If the change in discharge does not 
constitute the full change requested by the applicant, the reasons for 
not granting the full change shall be set forth.
    (c) Denial of the full change requested: issues of propriety. (1) If 
the decision rejects the applicant's position on an issue of propriety, 
of if it is otherwise decided on the basis of an issue of propriety that 
the full change in discharge

[[Page 105]]

requested by the applicant is not warranted, the decisional document 
shall note that conclusion.
    (2) The decisional document shall list reasons for its conclusion on 
each issue of propriety under the following guidance:
    (i) If a reason is based in whole or in part upon a regulation, 
statute, constitutional provision, judicial determination, or other 
source of law, the NDRB shall cite the pertinent source of law and the 
facts in the record that demonstrate the relevance of the source of law 
to the particular circumstances in the case.
    (ii) If a reason is based in whole or in part on a determination as 
to the occurrence or nonoccurrence of an event or circumstances, 
including a factor required by applicable service regulations to be 
considered for determination of the character of and reason for the 
applicant's discharge, the NDRB shall make a finding of fact for each 
such event or circumstance.
    (A) For each such finding, the decisional document shall list the 
specific source of the information relied upon. This may include the 
presumption of regularity in appropriate cases. If the information is 
listed in the service record section of the decisional document, a 
citation is not required.
    (B) If a finding of fact is made after consideration of 
contradictory evidence in the record (including information cited by the 
applicant or otherwise identified by members of the NDRB), the 
decisional document shall set forth the conflicting evidence and explain 
why the information relied upon was more persuasive than the information 
that was rejected. If the presumption of regularity is cited as the 
basis for rejecting such information, the decisional document shall 
explain why the contradictory evidence was insufficient to overcome the 
presumption. In an appropriate case, the explanation as to why the 
contradictory evidence was insufficient to overcome the presumption of 
regularity may consist of a statement that the applicant failed to 
provide sufficient corroborating evidence, or that the NDRB did not find 
the applicant's testimony to be sufficiently credible to overcome the 
presumption.
    (iii) If the NDRB disagrees with the position of the applicant on an 
issue of propriety, the following guidance applies in addition to the 
guidance in Sec.  724.806(c)(2) (a) and (b):
    (A) The NDRB may reject the applicant's position by explaining why 
it disagrees with the principles set forth in the applicant's issue 
(including principles derived from cases cited by the applicant in 
accordance with Sec.  724.802(b)(4).
    (B) The NDRB may reject the applicant's position by explaining why 
the principles set forth in the applicant's issue (including principles 
derived from cases cited by the applicant in accordance with Sec.  
724.802(b)(4)) are not relevant to the applicant's case.
    (C) The NDRB may reject an applicant's position by stating that the 
applicant's issue of propriety is not a matter upon which the NDRB 
grants a change in discharge, and by providing an explanation for this 
position. When the applicant indicates that the issue is to be 
considered in conjunction with one or more other specified issues, the 
explanation will address all such specified issues.
    (D) The NDRB may reject the applicant's position on the grounds that 
other specified factors in the case preclude granting relief, regardless 
of whether the NDRB agreed with the applicant's position.
    (E) If the applicant take the position that the discharge must be 
changed because of an alleged error in a record associated with the 
discharge, and the record has not been corrected by the organization 
with primary responsibility for corrective action, the NDRB may respond 
that it will presume the validity of the record in the absence of such 
corrective action. If the organization empowered to correct the record 
is within the Department of Defense, the NDRB should provide the 
applicant with a brief description of the procedures for requesting 
correction of the record. If the NDRB on its own motion cites this issue 
as a decisional issue on the basis of equity, it shall address the 
issue.
    (F) When an applicant's issue contains a general allegation that a 
certain course of action violated his or her constitutional rights, the 
NDRB may

[[Page 106]]

respond in appropriate cases by noting that the action was consistent 
with statutory or regulatory authority, and by citing the presumption of 
constitutionality that attaches to statutes and regulations. If, on the 
other hand, the applicant makes a specific challenge to the 
constitutionality of the action by challenging the application of a 
statute or regulation in a particular set of circumstances, it is not 
sufficient to respond solely by citing the presumption of 
constitutionality of the statute or regulation when the applicant is not 
challenging the constitutionality of the statute or regulation. Instead, 
the response must address the specific circumstances of the case.
    (d) Denial of the full change in discharge requested when propriety 
is not at issue. If the applicant has not submitted an issue of 
propriety and the NDRB has not otherwise relied upon an issue of 
propriety to change the discharge, the decisional document shall contain 
a statement to that effect. The NDRB is not required to provide any 
further discussion as to the propriety of the discharge.
    (e) Change of discharge: issues of equity. If the NDRB concludes 
that a change in the discharge is warranted under the equity standards, 
the decisional document shall list each issue of equity upon which this 
conclusion is based. The NDRB shall cite the facts in the record that 
demonstrate the relevance of the issue to the applicant's case. If the 
change in discharge does not constitute the full change requested by the 
applicant, the reasons for not giving the full change requested shall be 
discussed.
    (f) Denial of the full change in discharge requested: issues of 
equity. (1) If the NDRB rejects the applicant's position on an issue of 
equity, or if the decision otherwise provides less than the full change 
in discharge requested by the applicant, the decisional document shall 
note that conclusion.
    (2) The NDRB shall list reasons for its conclusion on each issue of 
equity under the following guidance:
    (i) If a reason is based in whole or in part upon a regulation, 
statute, constitutional provision, judicial determination, or other 
source of law, the NDRB shall cite the pertinent source of law and the 
facts in the record that demonstrate the relevance of the source of law 
to the exercise of discretion on the issue of equity in the applicant's 
case.
    (ii) If a reason is based in whole or in part on a determination as 
to the occurrence or nonoccurrence of an event or circumstance, 
including a factor required by applicable service regulations to be 
considered for determination of the character of and reason for the 
applicant's discharge, the NDRB shall make a finding of fact for each 
such event or circumstance.
    (A) For each such finding, the decisional document shall list the 
specific source of the information relied upon. This may include the 
presumption of regularity in appropriate cases. If the information is 
listed in the service record section of the decisional document, a 
citation is not required.
    (B) If a finding of fact is made after consideration of 
contradictory evidence in the record (including information cited by the 
applicant or otherwise indentified by members of the NDRB), the 
decisional document shall set forth the conflicting evidence and explain 
why the information relied upon was more persuasive than the information 
that was rejected. If the presumption of regularity is cited as the 
basis for rejecting such information, the decisional document shall 
explain why the contradictory evidence was insufficient to overcome the 
presumption. In an appropriate case, the explanation as to why the 
contradictory evidence was insufficient to overcome the presumption of 
regularity may consist of a statement that the applicant failed to 
provide sufficient corroborating evidence, or that the NDRB did not find 
the applicant's testimony to be sufficiently credible to overcome the 
presumption.
    (iii) If the NDRB disagrees with the postion of the applicant on an 
issue of equity, the following guidance applies in addition to the 
guidance in paragraphs above:
    (A) The NDRB may reject the applicant's position by explaining why 
it disagrees with the principles set forth in the applicant's issue 
(including principles derived from cases cited by the applicant).

[[Page 107]]

    (B) The NDRB may reject the applicant's position by explaining why 
the principles set forth in the applicant's issue (including principles 
derived from cases cited by the applicant) are not relevant to the 
applicant's case.
    (C) The NDRB may reject an applicant's position by explaining why 
the applicant's issue is not a matter upon which the NDRB grants a 
change in discharge as a matter of equity. When the applicant indicates 
that the issue is to be considered in conjunction with other specified 
issues, the explanation will address all such specified issues.
    (D) The NDRB may reject the applicant's position on the grounds that 
other specified factors in the case preclude granting relief, regardless 
of whether the NDRB agrees with the applicant's position.
    (E) If the applicant takes the position that the discharge should be 
changed as a matter of equity because of an alleged error in a record 
associated with the discharge, and the record has not been corrected by 
the organization with primary responsibility for corrective action, the 
NDRB may respond that it will presume the validity of the record in the 
absence of such corrective action. However, the NDRB will consider 
whether it should exercise its equitable powers to change the discharge 
on the basis of the alleged error. If it declines to do so, it shall 
explain why the applicant's position did not provide a sufficient basis 
for the change in the discharge requested by the applicant.
    (iv) When NDRB concludes that aggravating factors outweigh 
mitigating factors, the NDRB must set forth reasons such as the 
seriousness of the offense, specific circumstances surrounding the 
offense, number of offenses, lack of mitigating circumstances, or 
similar factors. The NDRB is not required however, to explain why it 
relied on any such factors unless the applicability or weight of such a 
factor is expressly raised as an issue by the applicant.
    (v) If the applicant has not submitted any issues and the NDRB has 
not otherwise relied upon an issue of equity for a change in discharge, 
the decisional document shall contain a statement to that effect, and 
shall note that the major factors upon which the discharge was based are 
set forth in the service record portion of the decisional document.



Sec.  724.807  Record of NDRB proceedings.

    (a) When the proceedings in any review have been concluded, a record 
thereof will be prepared. Records may include written records, 
electromagnetic records, audio and/or videotape recordings, or a 
combination.
    (b) At a minimum, the record will include the following:
    (1) The application for review;
    (2) A record of the testimony in either verbatim, summarized, or 
recorded form at the option of the NDRB;
    (3) Documentary evidence or copies, other than the military service 
record considered by the NDRB;
    (4) Briefs and arguments submitted by or on behalf of the applicant;
    (5) Advisory opinions considered by the NDRB, if any:
    (6) The findings, conclusions, and reasons developed by the NDRB;
    (7) Notification of the NDRB's decision to the cognizant custodian 
of the applicant's records, or reference to the notification document;
    (8) A copy of the decisional document.



Sec.  724.808  Issuance of decisions following discharge review.

    The applicant and counsel or representative, if any, shall be 
provided with a copy of the decisional document and of any further 
action in review. Final notification of decisions shall be issued to the 
applicant with a copy to the counsel or representative, if any, and to 
the service manager concerned.
    (a) Notification to applicants, with copies to counsel or 
representatives, shall normally be made through the U.S. Postal Service. 
Such notification shall consist of a notification of decision, together 
with a copy of the decisional document.
    (b) Notification to the service manager shall be for the purpose of 
appropriate action and inclusion of review matter in personnel records. 
Such notification shall bear appropriate certification of completeness 
and accuracy.

[[Page 108]]

    (c) Actions on review by superior authority, when occurring, shall 
be provided to the applicant and counsel or representative in the same 
manner as to the notification of the review decision.



Sec.  724.809  Final disposition of the record of proceedings.

    The original decisional document and all appendices thereto, shall 
in all cases be incorporated in the military service record of the 
applicant and the service record shall be returned to the custody of the 
appropriate record holding facility. If a portion of the original record 
of proceedings cannot be stored with the service record, the service 
record shall contain a notation as to the place where the record is 
stored. Other copies including any electromagnetic records, audio and/or 
videotape recordings or any combination thereof shall be filed in the 
NDRB case folder and disposed of in accordance with appropriate naval 
regulations.



Sec.  724.810  Availability of Naval Discharge Review Board
documents for public inspection and copying.

    (a) A copy of the decisional document prepared in accordance with 
subpart H of this enclosure shall be made available for public 
inspection and copying promptly after a notice of final decision is sent 
to the applicant.
    (b) To prevent a clearly unwarranted invasion of personal privacy, 
identifying details of the applicant and other persons will be deleted 
from documents made available for public inspection and copying.
    (1) Names, addresses, social security numbers, and military service 
numbers must be deleted. Written justification shall be made for all 
other deletions and shall be available for public inspection.
    (2) The NDRB shall ensure that there is a means for relating a 
decisional document number to the name of the applicant to permit 
retrieval of the applicant's records when required in processing a 
complaint.
    (c) Any other privileged or classified material contained in or 
appended to any documents required by this Manual to be furnished the 
applicant and counsel or representative or made available for public 
inspection and copying may be deleted only if a written statement on the 
basis for the deletions is provided the applicant and counsel or 
representative and made available for public inspection. It is not 
intended that the statement be so detailed as to reveal the nature of 
the withheld material.
    (d) NDRB documents made available for public inspection and copying 
shall be located in the Armed Forces Discharge Review/Correction Board 
Reading Room. The documents shall be indexed in a usable and concise 
form so as to enable the public, and those who represent applicants 
before the NDRB, to isolate from all these decisions that are indexed, 
those cases that may be similar to an applicant's case and that indicate 
the circumstances under or reasons for (or both) which the NDRB or the 
Secretary concerned granted or denied relief.
    (1) The reading file index shall include, in addition to any other 
item determined by the NDRB, the case number, the date, character of, 
reason and authority for the discharge. It shall also include the 
decisions of the NDRB and reviewing authority, if any, and the issues 
addressed in the statement of findings, conclusions, and reasons.
    (2) The index shall be maintained at selected permanent locations 
throughout the United States. This ensures reasonable availability to 
applicants at least 30 days before a traveling panel review. A list of 
these locations shall be published in the Federal Register by the 
Department of the Army. The index shall also be made available at sites 
selected for traveling panels or hearing examinations for such periods 
as the NDRB is present and in operation. An applicant who has requested 
a traveling panel review shall be advised, in the notice of such review, 
of the permanent index locations.
    (3) The Armed Forces Discharge Review/Corrections Board Reading Room 
shall publish indexes quarterly for all DRBs. The NDRB shall be 
responsible for timely submission to the Reading Room of individual case 
information required for update of the indexes. In addition, the NDRB 
shall be responsible for submission of new index categories based upon 
published changes

[[Page 109]]

in policy, procedures, or standards. These indexes shall be available 
for public inspection or purchase (or both) at the Reading Room. When 
the NDRB has accepted an application, information concerning the 
availability of the index shall be provided in the NDRB's response to 
the application.



Sec.  724.811  Privacy Act information.

    Information protected under the Privacy Act is involved in the 
discharge review functions. The provisions of SECNAVINST 5211.5C shall 
be observed throughout the processing of a request for review of 
discharge or dismissal.



Sec.  724.812  Responsibilities of the Reading Room.

    (a) Copies of decisional documents will be provided to individuals 
or organizations outside the NCR in response to written requests for 
such documents. Although the Reading Room shall try to make timely 
responses to such requests, certain factors such as the length of a 
request, the volume of other pending requests, and the impact of other 
responsibilities of the staff assigned to such duties may cause some 
delays. A fee may be charged for such documents under appropriate DOD 
and Department of the Army directives and regulations. The manual that 
accompanies the index of decisions shall notify the public that if an 
applicant indicates that a review is scheduled for a specific date, an 
effort will be made to provide requested decisional documents before 
that date. The individual or organization will be advised if that cannot 
be accomplished.
    (b) Correspondence relating to matters under the cognizance of the 
Reading Room (including requests for purchase of indexes) shall be 
addressed to:

DA Military Review Board Agency, Attention: SFBA (Reading Room), Room 
1E520, The Pentagon, Washington, DC 20310.



Sec.  724.813  The recommendation of the NDRB president.

    (a) General. The president of the NDRB may forward cases for 
consideration by the Secretarial Review Authority (SRA). There is no 
requirement that the president submit a recommendation when a case is 
forwarded to the SRA. If the president makes a recommendation with 
respect to the character of or reason for discharge, however, the 
recommendation shall be prepared under the guidance in Sec.  724.813b.
    (b) Format for recommendation. If a recommendation is provided, it 
shall contain the president's view whether there should be a change in 
the character of or reason for discharge (or both). If the president 
recommends such a change, the particular change to be made shall be 
specified. The recommendation shall set forth the president's position 
on decisional issues and issues submitted by the applicant under the 
following guidance:
    (1) Adoption of the NDRB's decisional document. The recommendation 
may state that the president has adopted the decisional document 
prepared by the majority. The president shall ensure that the decisional 
document meets the requirements of this enclosure.
    (2) Adoption of the specific statements from the majority. If the 
President adopts the views of the majority only in part, the 
recommendation shall cite the specific matter adopted from the majority. 
If the president modifies a statement submitted by the majority, the 
recommendation shall set forth the modification.
    (3) Response to issues not included in matter adopted from the 
majority. The recommendation shall set forth the following if not 
adopted in whole or in part from the majority:
    (i) The issues on which the president's recommendation is based. 
Each such decisional issue shall be addressed by the president.
    (ii) The president's response to items submitted as issues by the 
applicant.
    (iii) Reasons for rejecting the conclusion of the majority with 
respect to the decisional document which, if resolved in the applicant's 
favor, would have resulted in greater relief for the applicant than that 
afforded by the president's recommendation. Such issues shall be 
addressed under the principles in Sec.  724.806.

[[Page 110]]



Sec.  724.814  Secretarial Review Authority (SRA).

    (a) Review by the SRA. The Secretarial Review Authority (SRA) is the 
Secretary concerned or the official to whom Secretary's discharge review 
authority has been delegated.
    (1) The SRA may review the following types of cases before issuance 
of the final notification of a decision:
    (i) Any specific case in which the SRA has an interest.
    (ii) Any specific case that the president of the NDRB believes is of 
significant interest to the SRA.
    (2) Cases reviewed by the SRA shall be considered under the 
standards set forth in this part.
    (b) Processing the decisional document. (1) The decisional document 
shall be transmitted by the NDRB president under Sec.  724.813.
    (2) The following guidance applies to cases that have been forwarded 
to the SRA except for cases reviewed on the NDRB's own motion, without 
the participation of the applicant or the applicant's counsel:
    (i) The applicant and counsel or representative, if any, shall be 
provided with a copy of the proposed decisional document, including the 
NDRB president's recommendation to the SRA, if any. Classified 
information shall be summarized.
    (ii) The applicant shall be provided with a reasonable period of 
time, but not less than 25 days, to submit a rebuttal to the SRA. Any 
issue in rebuttal consists of a clear and specific statement by the 
applicant in support of or in opposition to the statements of the NDRB 
or NDRB president on decisional issues and other clear and specific 
issues that were submitted by the applicant. The rebuttal shall be based 
solely on matters in the record before the NDRB closed the case for 
deliberation or in the president's recommendation.
    (c) Review of the decisional document. If corrections in the 
decisional document are required, the decisional document shall be 
returned to the NDRB for corrective action. The corrected decisional 
document shall be sent to the applicant (and counsel, if any), but a 
further opportunity for rebuttal is not required unless the correction 
produces a different result or includes a substantial change in the 
decision by the NDRB (or NDRB president) of the issues raised by the 
majority or the applicant.
    (d) The addendum of the SRA. The decision of the SRA shall be in 
writing and shall be appended as an addendum to the decisional document 
under the guidance in this subsection.
    (1) The SRA's decision. The addendum shall set forth the SRA's 
decision whether there will be a change in the character of or reason 
for discharge (or both); if the SRA concludes that a change is 
warranted, the particular change to be made shall be specified. If the 
SRA adopts the decision recommended by the NDRB or the NDRB president, 
the decisional document shall contain a reference to the matter adopted.
    (2) Discussion of issues. In support of the SRA's decision, the 
addendum shall set forth the SRA's position on decisional issues, items 
submitted as issues by an applicant and issues raised by the NDRB and 
the NDRB president in accordance with the following guidance:
    (i) Adoption of the NDRB president's recommendation. The addendum 
may state that the SRA has adopted the NDRB president's recommendation.
    (ii) Adoption of the NDRB's proposed decisional document. The 
addendum may state that the SRA has adopted the proposed decisional 
document prepared by the NDRB.
    (iii) Adoption of specific statements from the majority or the NDRB 
president. If the SRA adopts the views of the NDRB or the NDRB president 
only in part, the addendum shall cite the specific statements adopted. 
If the SRA modifies a statement submitted by the NDRB or the NDRB 
president, the addendum shall set forth the modification.
    (iv) Response to issues not included in matter adopted from the NDRB 
or the NDRB president. The addendum shall set forth the following if not 
adopted in whole or in part from the NDRB or the NDRB president:
    (A) A list of the issues on which the SRA's decision is based. Each 
such

[[Page 111]]

decisional document issue shall be addressed by the SRA. This includes 
reasons for rejecting the conclusion of the NDRB or the NDRB president 
with respect to decisional issues which, if resolved in the applicant's 
favor, would have resulted in a change to the discharge more favorable 
to the applicant than that afforded by the SRA's decision. Such issues 
shall be addressed under the principles in Sec.  724.806(f).
    (B) The SRA's response to items submitted as issues by the 
applicant.
    (3) Response to the rebuttal. (i) If the SRA grants the full change 
in discharge requested by the applicant (or a more favorable change), 
that fact shall be noted, the decisional issues shall be addressed and 
no further response to the rebuttal is required.
    (ii) If the SRA does not grant the full change in discharge 
requested by the applicant (or a more favorable change), the addendum 
shall list each issue in rebuttal submitted by an applicant in 
accordance with this section, and shall set forth the response of the 
SRA under the following guidance:
    (A) If the SRA rejects an issue in rebuttal, the SRA may respond in 
accordance with the principals in Sec.  724.806.
    (B) If the matter adopted by the SRA provides a basis for the SRA's 
rejection of the rebuttal material, the SRA may note that fact and cite 
the specific matter adopted that responds to the issue in rebuttal.
    (C) If the matter submitted by the applicant does not meet the 
requirements for rebuttal material, that fact shall be noted.
    (4) Index entries. Appropriate index entries shall be prepared for 
the SRA's actions for matters that are not adopted from the NDRB's 
proposed decisional document.



Sec.  724.815  Complaints.

    A complaint is any correspondence in which it is alleged that a 
decisional document issued by the NDRB or the SRA contains a 
specifically indentified violation of 32 CFR part 70 or any references 
thereto. Complaints will be reviewed pursuant to 32 CFR part 70.



                Subpart I_Standards for Discharge Review



Sec.  724.901  Objective of discharge review.

    The objective of a discharge review is ot examine the propriety and 
equity of the applicant's discharge and to effect changes, if necessary. 
The standards of the review and the underlying factors which aid in 
determining whether the standards are met shall be consistent with 
historical criteria for determining honorable service. No factors shall 
be established that require automatic change or denial of a change in a 
discharge. Neither the NDRB nor the Secretary of the Navy shall be bound 
by any methodology of weighting of the factors in reaching a 
determination. In each case, the NDRB shall give full, fair, and 
impartial consideration to all applicable factors before reaching a 
decision. An applicant may not receive a less favorable discharge than 
that issued at the time of separation. This does not preclude correction 
of clerical errors.



Sec.  724.902  Propriety of the discharge.

    (a) A discharge shall be deemed to be proper unless, in the course 
of discharge review, it is determined that:
    (1) There exists an error of fact, law, procedure, or discretion 
associated with the discharge at the time of issuance; and that the 
rights of the applicant were prejudiced thereby (such error shall 
constitute prejudicial error if there is substantial doubt that the 
discharge would have remained the same if the error had not been made); 
or
    (2) A change in policy by the military service of which the 
applicant was a member, made expressly retroactive to the type of 
discharge under consideration, requires a change in the discharge.
    (b) When a record associated with the discharge at the time of 
issuance involves a matter in which the primary responsibility for 
corrective action rests with another organization (for example, another 
Board, agency, or court) the NDRB will recognize an error only to the 
extent that the error has been corrected by the organization

[[Page 112]]

with primary responsibility for correcting the record.
    (c) The primary function of the NDRB is to exercise its discretion 
on issues of equity by reviewing the individual merits of each 
application on a case-by-case basis. Prior decisions in which the NDRB 
exercised its discretion to change a discharge based on issues of equity 
(including the factors cited in such decisions or the weight given to 
factors in such decisions) do not bind the NDRB in its review of 
subsequent cases because no two cases present the same issues of equity.
    (d) The following applies to applicants who received less than fully 
honorable administrative discharges because of their civilian misconduct 
while in an inactive duty status in a reserve component and who were 
discharged or had their discharge reviewed on or after April 20, 1971: 
the NDRB shall either recharacterize the discharge to Honorable without 
any additional proceedings or additional proceedings shall be conducted 
in accordance with the Court's Order of December 3, 1981, in Wood v. 
Secretary of Defense to determine whether proper grounds exist for the 
issuance of a less than honorable discharge, taking into account that:
    (1) An other than honorable (formerly undesirable) discharge for an 
inactive duty reservist can only be based upon civilian misconduct found 
to have affected directly the performance of military duties;
    (2) A general discharge for an inactive duty reservist can only be 
based upon civilian misconduct found to have had an adverse impact on 
the overall effectiveness of the military, including military morale and 
efficiency.



Sec.  724.903  Equity of the discharge.

    A discharge shall be deemed to be equitable unless:
    (a) In the course of a discharge review, it is determined that the 
policies and procedures under which the applicant was discharged differ 
in material respects from policies and procedures currently applicable 
on a service-wide basis to discharges of the type under consideration, 
provided that:
    (1) Current policies or procedures represent a substantial 
enhancement of the rights afforded a respondent in such proceedings; and
    (2) There is substantial doubt that the applicant would have 
received the same discharge, if relevant current policies and procedures 
had been available to the applicant at the time of the discharge 
proceedings under consideration.
    (b) At the time of issuance, the discharge was inconsistent with 
standards of discipline in the military service of which the applicant 
was a member.
    (c) In the course of a discharge review, it is determined that 
relief is warranted based upon consideration of the applicant's service 
record and other evidence presented to the NDRB viewed in conjunction 
with the factors listed in this paragraph and the regulations under 
which the applicant was discharged, even though the discharge was 
determined to have been otherwise equitable and proper at the time of 
issuance. Areas of consideration include, but are not limited to:
    (1) Quality of service, as evidenced by factors such as:
    (i) Service history, including date of enlistment, period of 
enlistment, highest rank achieved, conduct and proficiency ratings 
(numerical and narrative);
    (ii) Awards and decorations;
    (iii) Letters of commendation or reprimand;
    (iv) Combat service;
    (v) Wounds received in action;
    (vi) Records of promotions and demotions;
    (vii) Level of responsibility at which the applicant served;
    (viii) Other acts of merit that may not have resulted in formal 
recognition through an award or commendation;
    (ix) Length of service during the service period which is the 
subject of the discharge review;
    (x) Prior military service and type of discharge received or 
outstanding post service conduct to the extent that such matters provide 
a basis for a more thorough understanding of the performance of the 
applicant during the period of service which is the subject of the 
discharge review;
    (xi) Convictions by court-martial;
    (xii) Records of nonjudicial punishment;

[[Page 113]]

    (xiii) Convictions by civil authorities while a member of the 
service, reflected in the discharge proceedings or otherwise noted in 
the service records;
    (xiv) Records of periods of unauthorized absence;
    (xv) Records relating to a discharge in lieu of court-martial.
    (2) Capability to serve, as evidenced by factors such as:
    (i) Total capabilities. This includes an evaluation of matters such 
as age, educational level, and aptitude scores. Consideration may also 
be given as to whether the individual met normal military standards of 
acceptability for military service and similar indicators of an 
individual's ability to serve satisfactorily, as well as ability to 
adjust to military service.
    (ii) Family and personal problems. This includes matters in 
extenuation or mitigation of the reason for discharge that may have 
affected the applicant's ability to serve satisfactorily.
    (iii) Arbitrary or capricious actions. This includes actions by 
individuals in authority which constiute a clear abuse of such authority 
and that, although not amounting to prejudicial error, may have 
contributed to the decision to discharge the individual or unduly 
influence the characterization of service.
    (iv) Discrimination. This includes unauthorized acts as documented 
by records or other evidence.



   Sec. Appendix A to Part 724--Policy Statement by the Secretary of 
          Defense--Addressing Certain Categories of Discharges

    Secretary of Defense memorandum of August 13, 1971, to the 
Secretaries of the Military Departments, The Chairman, Joint Chiefs of 
Staff; Subject: Review of Discharges Under Other Than Honorable 
Conditions Issued to Drug Users:

    ``Consistent with Department of Defense Directive 1300.11, October 
23, 1970, and my memorandum of July 7, 1971, concerning rehabilitation 
and treatment of drug users, administrative discharges under other than 
honorable conditions issued solely on the basis of personal use of drugs 
or possession of drugs for the purpose of such use will be reviewed for 
recharacterization.
    ``Accordingly, each Secretary of a Military Department, acting 
through his/her Discharge Review Board, will consider applications for 
such review from former service members. Each Secretary is authorized to 
issue a discharge under honorable conditions upon establishment of facts 
consistent with this policy. Former service members will be notified of 
the results of the review. The Veterans' Administration will also be 
notified of the names of former service members whose discharges are 
recharacterized.
    ``The statute of limitations for review of discharges within the 
scope of this policy will be in accordance with 10 United States Code 
1553.
    ``This policy shall apply to those service members whose cases are 
finalized or in process on or before July 7, 1971''.
    Secretary of Defense memorandum of April 28, 1972, to Secretaries of 
the Military Departments, Chairman, Joint Chiefs of Staff; Subject: 
Review of Punitive Discharges Issued to Drug Users:
    ``Reference is made to Secretary Packard's memorandum of July 7, 
1971, concerning rehabilitation and treatment of drug users, and my 
memorandum of August 13, 1971, subject: `Review of Discharges Under 
Other Than Honorable Conditions Issued to Drug Users.'
    ``My August 13, 1971 memorandum established the current Departmental 
policy that administrative discharges under other than honorable 
conditions issued solely on the basis of personal use of drugs or 
possession of drugs for the purpose of such use will be reviewed for 
recharacterization to under honorable conditions.
    ``It is my desire that this policy be expanded to include punitive 
discharges and dismissals resulting from approved sentences of courts-
martial issed solely for conviction of personal use of drugs or 
possession of drugs for the purpose of such use.
    ``Review and recharacterization are to be effected, upon the 
application of former service members, utilizing the procedures and 
authority set forth in Title 10, United States Code, sections 874(b), 
1552 and 1553.
    ``This policy is applicable only to discharges which have been 
executed on or before July 7, 1971, or issued as a result of a case in 
process on or before July 7, 1971.
    ``Former service members requesting a review will be notified of the 
results of the review. The Veterans' Administration will also be 
notified of the names of former service members whose discharges are 
recharacterized.''



 Sec. Appendix B to Part 724--Oath or Affirmation To Be Administered To 
                     Discharge Review Board Members

    Prior to undertaking duties as a Board member, each person assigned 
to such duties in the precept of the Board shall execute the following 
oath or affirmation which shall

[[Page 114]]

continue in effect throughout service with the Board.

                            Oath/Affirmation

    I, ______, do swear or affirm that I will faithfully and impartially 
perform all the duties incumbent upon me as a member of the Naval 
Discharge Review Board; that I will fully and objectively inquire into 
and examine all cases coming before me; that I will, without regard to 
the status of the individual in any case, render my individual judgment 
according to the facts, my conscience and the law and regulations 
applicable to review of naval discharges, so help me God.



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

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

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



             Sec. Appendix D to Part 724--Veterans' Benefits

91 Stat. 1106
Pub. L. 95-126, Oct. 8, 1977
95th Congress

                                 An Act

    To deny entitlement to veterans' benefits to certain persons who 
would otherwise become so entitled solely by virtue of the 
administrative upgrading under temporarily revised standards of other 
than honorable discharges from service during the Vietnam era; to 
require case-by-case review under uniform, historically consistent, 
generally appli cable standards and procedures prior to the award of 
veterans' benefits to persons administratively discharged under other 
than honorable conditions from active military, naval, or air service; 
and for other purposes.
    Be it enacted by the Senate and the House of Representatives of the 
United States of America in Congress assembled, That (a) section 3103 of 
Title 38, United States Code, is amended by--
    (1) Inserting ``or on the basis of an absence without authority from 
active duty for a continuous period of at least one hundred and eighty 
days if such person was discharged under conditions other than honorable 
unless such person demonstrates to the satisfaction of the Administrator 
that there are compelling circumstances to warrant such prolonged 
unauthorized absence.'' after ``deserter,'' in subsection (a), and by 
inserting a coma and ``notwithstanding any action subsequent to the date 
of such discharge by a board established pursuant to section 1553 of 
title 10'' before the period at the end of such subsection; and
    (2) Adding at the end of such section the following new subsection:
    ``(e)(1) Notwithstanding any other provision of law, (A) no benefits 
under laws administered by the Veterans' Administration shall be 
provided, as a result of a change in or new issuance of a discharge 
under section 1553 of title 10, except upon a case-by-case review by the 
board of review concerned, subject to review by the Secretary concerned, 
under such section, of all the evidence and factors in each case under 
published uniform standard (which shall be historically consistent with 
criteria for determining honorable service and shall not include any 
criterion for automatically granting or denying such change or issuance) 
and procedures generally applicable to all persons administratively 
discharged or released from active military, naval, or air service under 
other than honorable conditons: and (B) any such person shall be 
afforded an opportunity to apply for such review under such section 1553 
for a period of time terminating not less than one year after the date 
on which such uniform standards and procedures are promulgated and 
published.
    ``(2) Notwithstanding any other provision of law--
    ``(A) No person discharged or released from active military, naval, 
or air service under other than honorable conditions who has been 
awarded a general or honorable discharge under revised standards for the 
review of discharges, (i) as implemented by the President's directive of 
January 19, 1977, initiating further action with respect to the 
President's Proclamation 4313 of September 16, 1974, (ii) as implemented 
on or after April 5, 1977, under the Department of Defense's special 
discharge review program, or (iii) as implemented subsequent to April 5, 
1977, and not made applicable to all persons administratively discharged 
or released from active military, naval, or air service under other than 
honorable conditions, shall be entitled to benefits under laws 
administered by the Veterans' Administration except upon a 
determination, based on a case-by-case review, under standards (meeting 
the requirements of paragraph (1) of this subsection) applied

[[Page 115]]

by the board of review concerned under section 1553 of title 10, subject 
to review by the Secretary concerned, that such person would be awarded 
an upgraded discharged under such standards;
    ``(B) Such determination shall be made by such board, (i) on an 
expedited basis after notification by the Veterans' Administration to 
the Secretary concerned that such person has received, is in receipt of, 
or has applied for such benefits or after a written request is made by 
such person or such determination, (ii) on its own initiative within one 
year after the date of enactment of this paragraph in any case where a 
general or honorable discharge has been awarded on or prior to the date 
of enactment of this paragraph under revised standards referred to in 
clause (A) (i), (ii), or (iii) of this paragraph, or (iii) on its own 
initiative at the time a general or honorable discharge is so awarded in 
any case where a general or honorable discharge is awarded after such 
enactment date.
    ``If such board makes a preliminary determination that such person 
would not have been awarded an upgraded discharge under standards 
meeting the requirements of paragraph (1) of this subsection, such 
personal shall be entitled to an appearance before the board, as 
provided for in section 1553(c) of title 10, prior to a final 
determination on such question and shall be given written notice by the 
board of such preliminary determination and of his or her right to such 
appearance. The Administrator shall, as soon as administratively 
feasible, notify the appropriate board of review of the receipt of 
benefits under laws administered by the Veterans' Administration, or the 
application for such benefits, by any person awarded an upgraded 
discharge under revised standards referred to in clause (A) (i), (ii), 
or (iii) of this paragraph with respect to whom a favorable 
determination has not been made under this paragraph.''.
    (b)(1) The Secretary of Defense shall fully inform each person 
awarded a general or honorable discharge under revised standards for the 
review of discharges referred to in section 3103(e)(2)(A) (i), (ii), or 
(iii) of title 38, United States Code, as added by subsection (a)(2) of 
this section of his or her right to obtain an expedited determination 
under section 3103(e)(2)(B)(i) of such title and of the implications of 
the provisions of this Act for each such person.
    (2) Notwithstanding any other provision of law, the Secretary of 
Defense shall inform each person who applies to a board of review under 
section 1553 of title 10, United States Code, and who appears to have 
been discharged under circumstances which might constitute a bar to 
benefits under section 3103(a), of title 38, United States Code, (A) 
that such person might possibly be administratively found to be entitled 
to benefits under laws administered by the Veterans' Administration only 
through the action of a board for the correction of military records 
under section 1552 of such title 10 or the action of the Administrator 
of Veterans' Affairs under section 3103 of such title 38, and (B) of the 
procedures for making application to such section 1552 board for such 
purpose and to the Administrator of Veterans' Affairs for such purpose 
(including the right to proceed concurrently under such sections 3103, 
1552 and 1553).
    Section 2. Notwithstanding any other provision of law, the 
Administrator of Veterans' Affairs shall provide the type of health care 
and related benefits authorized to be provided under chapter 17 of title 
38, United States Code, for any disability incurred or aggravated during 
active military, naval, or air service in line of duty by a person other 
than a person barred from receiving benefits by section 3103(a) of such 
title, but shall not provide such health care and related benefits 
pursuant to this section for any disability incurred or aggravated 
during a period of service from which such person was discharged by 
reason of a bad conduct discharge.
    Section 3. Paragraph (18) of section 101 of Title 38, United States 
Code, is amended to read as follows:
    ``(18) The term `discharge or release' includes, (A) retirement from 
the active military, naval, or air service, and (B) the satisfactory 
completion of the period of active military, naval, or air service for 
which a person was obligated at the time of entry into such service in 
the case of a person who, due to enlistment or reenlistment, was not 
awarded a discharge or release from such period of service at the time 
of such completion thereof and who, at such time, would otherwise have 
been eligible for the award of a discharge or release under conditions 
other than dishonorable.''
    Section 4. In promulgating, or making any revisions of or amendments 
to, regulations governing the standards and procedures by which the 
Veterans' Administration determines whether a person was discharged or 
released from active military, naval, or air service under conditions 
other than dishonorable, the Administrator of Veterans' Affairs shall, 
in keeping with the spirit and intent of this Act, not promulgate any 
such regulations or revise or amend any such regulations for the purpose 
of, or having the effect of, (1) providing any unique or special 
advantage to veterans awarded general or honorable discharges under 
revised standards for the review of discharges described in section 
3103(e)(2)(A) (i), (ii), or (iii) of title 38, United States Code, as 
added by section 1(a)(2) of this Act, or (2) otherwise making any 
special distinction between such veterans and other veterans.
    Section 5. This Act shall become effective on the date of its 
enactment, except that--

[[Page 116]]

    (1) Section 2 shall become effective on October 1, 1977, or on such 
enactment date, whichever is later; and
    (2) The amendments made by section 1(a) shall apply retroactively to 
deny benefits under laws administered by the Veterans' Administration, 
except that, notwithstanding any other provision of law.
    (A) With respect to any person who, on such enactment date is 
receiving benefits under laws administered by the Veterans' 
Administration, (i) such benefits shall not be terminated under 
paragraph (2) of section 3103(e) of title 38, United States Code, as 
added by section 1(a)(2) of this Act, until, (I) the day on which a 
final determination not favorable to the person concerned is made on an 
expedited basis under paragraph (2) of such section 3103(e), (II) the 
day following the expiration of ninety days after a preliminary 
determination not favorable to such person is made under such paragraph, 
or (III) the day following the expiration of one hundred and eighty days 
after such enactment date, whichever day is the earliest, and (ii) the 
United States shall not make any claim to recover the value of any 
benefits provided to such person prior to such earliest day;
    (B) With respect to any person awarded a general or honorable 
discharge under revised standards for the review of discharges referred 
to in clause (A) (i), (ii), or (iii) of such paragraph who has been 
provided any such benefits prior to such enactment date, the United 
States shall not make any claim to recover the value of any benefits so 
provided; and
    (C) The amendments made by clause (1) of section 1(a) shall apply, 
(i) retroactively only to persons awarded general or honorable 
discharges under such revised standards and to persons who, prior to the 
date of enactment of this Act, had not attained general eligibility to 
such benefits by virtue of (I) a change in or new issuance of a 
discharge under section 1553 of title 10, United States Code, or (II) 
any other provision of law, and (ii) prospectively (on and after such 
enactment date) to all other persons.



PART 725_RELEASE OF OFFICIAL INFORMATION FOR LITIGATION PURPOSES
AND TESTIMONY BY DEPARTMENT OF THE NAVY PERSONNEL--Table of Contents



Sec.
725.1 Purpose.
725.2 Policy.
725.3 Authority to act.
725.4 Definitions.
725.5 Applicability.
725.6 Authority to determine and respond.
725.7 Contents of a proper request or demand.
725.8 Considerations in determining to grant or deny a request.
725.9 Action to grant or deny a request.
725.10 Response to requests or demands in conflict with this 
          instruction.
725.11 Fees.

    Authority: 5 U.S.C. 301; 10 U.S.C. 113, 5013; 31 U.S.C. 9701 and 32 
CFR part 97.

    Source: 57 FR 2463, Jan. 22, 1992, unless otherwise noted.



Sec.  725.1  Purpose.

    This instruction implements 32 CFR part 97 regarding the release of 
official Department of the Navy (DON) information and provision of 
testimony by DON personnel for litigation purposes, and prescribes 
conduct of DON personnel in response to a litigation request or demand. 
It restates the information contained in Secretary of the Navy 
Instruction 5820.8A of 27 August 1991 \1\, and is intended to conform in 
all respects with the requirements of that instruction.
---------------------------------------------------------------------------

    \1\ Copies may be obtained, if needed, from the Naval Publications 
and Forms Directorate, Attn: Code 301, 5801 Tabor Avenue, Philadelphia, 
PA 19120-5099.
---------------------------------------------------------------------------



Sec.  725.2  Policy.

    (a) It is DON policy that official factual information, both 
testimonial and documentary, should be made reasonably available for use 
in Federal courts, state courts, foreign courts, and other governmental 
proceedings unless that information is classified, privileged, or 
otherwise protected from public disclosure.
    (b) DON personnel, as defined in Sec.  725.4(b), however, shall not 
provide such official information, testimony, or documents, submit to 
interview, or permit a view or visit, without the authorization required 
by this part.
    (c) DON personnel shall not provide, with or without compensation, 
opinion or expert testimony concerning official DON or Department of 
Defense (DOD) information, subjects, personnel, or activities, except on 
behalf of the United States or a party represented by the Department of 
Justice, or with the written special authorization required by this 
part.
    (d) Section 725.2(b) and (c) constitute a regulatory general order, 
applicable to all DON personnel individually, and

[[Page 117]]

need no further implementation. A violation of those provisions is 
punishable under the Uniform Code of Military Justice for military 
personnel and is the basis for appropriate administrative procedures 
with respect to civilian employees. Moreover, violations of this 
instruction by DON personnel may, under certain circumstances, be 
actionable under 18 U.S.C. 207.
    (e) Upon a showing by a requester of exceptional need or unique 
circumstances, and that the anticipated testimony will not be adverse to 
the interests of the DON, DOD, or the United States, the General Counsel 
of the Navy, the Judge Advocate General of the Navy, or their respective 
delegates may, in their sole discretion, and pursuant to the guidance 
contained in this instruction, grant such written special authorization 
for DON personnel to appear and testify as expert or opinion witnesses 
at no expense to the United States.



Sec.  725.3  Authority to act.

    (a) The General Counsel of the Navy, the Judge Advocate General of 
the Navy, and their respective delegates [hereafter ``determining 
authorities'' described in Sec.  725.4(a), shall respond to litigation 
requests or demands for official DOD information or testimony by DON 
personnel as witnesses.
    (b) If required by the scope of their respective delegations, 
determining authorities' responses may include: consultation and 
coordination with the Department of Justice or the appropriate United 
States Attorney as required; referral of matters proprietary to another 
DOD component to that component; determination whether official 
information originated by the Navy may be released in litigation; and 
determination whether DOD personnel assigned to or affiliated with the 
Navy may be interviewed, contacted, or used as witnesses concerning 
official DOD information or as expert or opinion witnesses. Following 
coordination with the appropriate commander, a response may further 
include whether installations, facilities, ships, or aircraft may be 
visited or inspected; what, if any, conditions will be imposed upon any 
release, interview, contact, testimony, visit, or inspection; what, if 
any, fees shall be charged or waived for access under the fee assessment 
considerations set forth in Sec.  725.11; and what, if any, claims of 
privilege, pursuant to this instruction, may be invoked before any 
tribunal.



Sec.  725.4  Definitions.

    (a) Determining authority. The cognizant DON or DOD official 
designated to grant or deny a litigation request. In all cases in which 
the United States is, or might reasonably become, a party, or in which 
expert testimony is requested, the Judge Advocate General or the General 
Counsel of the Navy, depending on the subject matter of the request, 
will act as determining authority. In all other cases, the 
responsibility to act as determining authority has been delegated to all 
officers exercising general court-martial convening authority, or to 
their subordinate commands, and to other commands and activities 
indicated in Sec.  725.6.
    (b) DON personnel. Active duty and former military personnel of the 
naval service including retirees; personnel of other DOD components 
serving with a DON component; Naval Academy midshipmen; present and 
former civilian employees of the DON including non-appropriated fund 
activity employees; non-U.S. nationals performing services overseas for 
the DON under provisions of status of forces agreements; and other 
specific individuals or entities hired through contractual agreements by 
or on behalf of DON, or performing services under such agreements for 
DON (e.g., consultants, contractors and their employees and personnel).
    (c) Factual and expert or opinion testimony. DON policy favors 
disclosure of factual information if disclosure does not violate the 
criteria stated in Sec.  725.8. The distinction between factual matters, 
and expert or opinion matters (where DON policy favors non-disclosure), 
is not always clear. The considerations set forth below pertain.
    (1) Naval personnel may merely be percipient witnesses to an 
incident, in which event their testimony would be purely factual. On the 
other hand, they may be involved with the matter only

[[Page 118]]

through an after-the-event investigation (e.g., JAGMAN investigation). 
Describing the manner in which they conducted their investigation and 
asking them to identify factual conclusions in their report would 
likewise constitute factual matters to which they might testify. In 
contrast, asking them to adopt or reaffirm their findings of fact, 
opinions, and recommendations, or asking them to form or express any 
other opinion--particularly one based upon matters submitted by counsel 
or going to the ultimate issue of causation or liability--would clearly 
constitute precluded testimony under the above policy.
    (2) Naval personnel, by virtue of their training, often form 
opinions because they are required to do so in the course of their 
duties. If their opinions are formed prior to, or contemporaneously 
with, the matter in issue, and are routinely required of them in the 
course of the proper performance of their professional duties, they 
constitute essentially factual matters (i.e., the opinion they 
previously held). Opinions formed after the event in question, including 
responses to hypothetical questions, generally constitute the sort of 
opinion or expert testimony which this instruction is intended to 
severely restrict.
    (3) Characterization of expected testimony by a requester as fact, 
opinion, or expert is not binding on the determining authority. When 
there is doubt as to whether or not expert or opinion (as opposed to 
factual) testimony is being sought, advice may be obtained informally 
from, or the request forwarded, to the Deputy Assistant Judge Advocate 
General (General Litigation) or the Associate General Counsel 
(Litigation) for resolution.
    (d) Litigation. All pretrial, trial, and post-trial stages of all 
existing or reasonably anticipated judicial or administrative actions, 
hearings, investigations, or similar proceedings before civilian courts, 
commissions, boards (including the Armed Services Board of Contract 
Appeals), or other tribunals, foreign and domestic. This term includes 
responses to discovery requests, depositions, and other pretrial 
proceedings, as well as responses to formal or informal requests by 
attorneys or others in situations involving, or reasonably anticipated 
to involve, civil or criminal litigation.
    (e) Official information. All information of any kind, however 
stored, in the custody and control of the DOD and its components 
including the DON; relating to information in the custody and control of 
DOD or its components; or acquired by DOD personnel or its component 
personnel as part of their official duties or because of their official 
status within DOD or its components, while such personnel were employed 
by or on behalf of the DOD or on active duty with the United States 
Armed Forces (determining whether ``official information'' is sought, as 
opposed to non-DOD information, rests with the determining authority 
identified in Sec.  725.6, rather than the requester).
    (f) Request or demand (legal process). Subpoena, order, or other 
request by a federal, state, or foreign court of competent jurisdiction, 
by any administrative agency thereof, or by any party or other person 
(subject to the exceptions stated in Sec.  725.5) for production, 
disclosure, or release of official DOD information or for appearance, 
deposition, or testimony of DON personnel as witnesses.



Sec.  725.5  Applicability.

    (a) This instruction applies to all present and former civilian and 
military personnel of the DON whether employed by, or assigned to, DON 
temporarily or permanently. Affected personnel are defined more fully in 
Sec.  725.4(b).
    (b) This instruction applies only to situations involving existing 
or reasonably anticipated litigation, as defined in Sec.  725.4(d), when 
DOD information or witnesses are sought, whether or not the United 
States, the DOD, or its components are parties thereto. It does not 
apply to formal or informal requests for information in other 
situations.
    (c) This instruction provides guidance only for DON operation and 
activities of its present and former personnel in responding to 
litigation requests. It is not intended to, does not, and may not be 
relied upon to, create any right or benefit, substantive or procedural, 
enforceable at law or equity against the United States, DOD, or DON.

[[Page 119]]

    (d) This instruction is not intended to infringe upon or displace 
the responsibilities committed to the Department of Justice in 
conducting litigation on behalf of the United States.
    (e) This instruction does not supersede or modify existing laws, DOD 
or DON regulations, directives, or instructions governing testimony of 
DON personnel or release of official DOD or DON information during grand 
jury proceedings.
    (f) This instruction does not control release of official 
information in response to requests unrelated to litigation or under the 
Freedom of Information Act (FOIA), 5 U.S.C. 552, or the Privacy Act, 5 
U.S.C. 552a. This instruction does not preclude treating any written 
request for DON records as a request under the FOIA or Privacy Acts. 
Activities are encouraged to treat such requests for documents under the 
FOIA or the Privacy Act if they are invoked by the requestor either 
explicitly or by fair implication. See 32 CFR 701.3(a), 701.10(a). 
Activities are reminded that such treatment does not absolve them of the 
responsibility to respond in a timely fashion to legal process. In any 
event, if the official information requested pertains to a litigation 
matter which the United States is a present or potential party, the 
release authority should notify the delegate of the General Counsel or 
the Judge Advocate General, under Sec.  725.6.
    (g) This part does not apply to release of official information or 
testimony by DON personnel in the following situations:
    (1) Before courts-martial convened by any DOD component, or in 
administrative proceedings conducted by, or on behalf of, such 
component;
    (2) Under administrative proceedings conducted by, or on behalf of, 
the Equal Employment Opportunity Commission (EEOC) or the Merit Systems 
Protection Board (MSPB), the Federal Labor Relations Authority, the 
Federal Services Impasse Panel, or under a negotiated grievance 
procedure under a collective bargaining agreement to which the 
Government is a party;
    (3) In response to requests by Federal Government counsel, or 
counsel representing the interests of the Federal Government, in 
litigation conducted, in whole or in part, on behalf of the United 
States (e.g., Medical Care Recovery Act claims, affirmative claims, or 
subpoenas issued by, or concurred in by, Government counsel when the 
United States is a party), but the regulation does apply to an action 
brought under the qui tam provisions of the False Claims Act in which a 
private party brings an action in the name of the United States but in 
which the Department of Justice either has not yet determined to 
intervene in the litigation or has declined to intervene;
    (4) As part of the assistance required by the Defense Industrial 
Personnel Security Clearance Review Program under DOD Directive 5220.6 
\2\;
---------------------------------------------------------------------------

    \2\ See footnote 1 to Sec.  725.1.
---------------------------------------------------------------------------

    (5) Release of copies of Manual of the Judge Advocate General 
(JAGMAN) investigations, to the next of kin (or their representatives) 
of deceased or incompetent naval personnel;
    (6) Release of information by DON personnel to counsel retained on 
their behalf for purposes of litigation, unless that information is 
classified, privileged, or otherwise protected from disclosure (in the 
latter event, compliance with 32 CFR part 97 and this part is required);
    (7) Cases involving garnishment orders for child support and/or 
alimony. The release of official information in these cases is governed 
by 5 CFR 581 and SECNAVINST 7200.16 \3\, or;
---------------------------------------------------------------------------

    \3\ See footnote 1 to Sec.  725.1.
---------------------------------------------------------------------------

    (8) Release of information to Federal, state, and local prosecuting 
and law enforcement authorities, in conjunction with an investigation 
conducted by a DOD component or DON criminal investigative organization.
    (h) This part does not preclude official comment on matters in 
litigation in appropriate cases.
    (i) The DOD General Counsel may notify DOD components that DOD will 
assume primary responsibility for coordinating all litigation requests 
for demands for official DOD information or testimony of DOD personnel 
in litigation involving terrorism, espionage, nuclear weapons, and 
intelligence sources or means. Accordingly, determining officials who 
receive requests

[[Page 120]]

pertaining to such litigation shall notify the Associate General Counsel 
(Litigation) or the Deputy Assistant Judge Advocate General 
(International Law or General Litigation) who shall consult and 
coordinate with DOD General Counsel prior to any response to such 
requests.
    (j) Relationship with Federal Rules of Procedure. The requirements 
imposed by this instruction are intended, among other things, to provide 
adequate notice to DON regarding the scope of proposed discovery. This 
will assure that certain DON information, which properly should be 
withheld, is not inadvertently released in response to a litigation 
request or demand, including a subpoena or other request for discovery 
issued under Federal rules of procedure. When the United States is a 
party to Federal litigation and the party opponent uses discovery 
methods (e.g., request for interrogatories and admissions, depositions) 
set forth in Federal rules of procedure, the Judge Advocate General or 
General Counsel, in consultation with representatives of the Department 
of Justice or the cognizant United States Attorney, may determine 
whether the requirement for a separate written request in accordance 
with Sec.  725.7 should be waived. Even if this requirement is waived, 
however, DON personnel who are subpoenaed to testify still will be 
required to obtain the written permission described in Sec.  725.2.



Sec.  725.6  Authority to determine and respond.

    (a) Matters proprietary to DON. If a litigation request or demand is 
made of DON personnel for official DON or DOD information or for 
testimony concerning such information, the individual to whom the 
request or demand is made will immediately notify the cognizant DON 
official designated in Sec.  725.6(c) and (d), who will determine 
availability and respond to the request or demand.
    (b) Matters proprietary to another DOD component. If a DON activity 
receives a litigation request or demand for official information 
originated by another DOD component or for non-DON personnel presently 
or formerly assigned to another DOD component, the DON activity will 
forward appropriate portions of the request or demand to the DOD 
component originating the information, to the components where the 
personnel are assigned, or to the components where the personnel were 
formerly assigned, for action under 32 CFR part 97. The forwarding DON 
activity will also notify the requester and court (if appropriate) or 
other authority of its transfer of the request or demand.
    (c) Litigation matters to which the United States is, or might 
reasonably become, a party. Examples of such instances include suits 
under the Federal Tort Claims Act, Freedom of Information Act, Medical 
Care Recovery Act, Tucker Act, and suits against Government contractors 
where the contractor may interplead the United States or seek 
indemnification from the United States for any judgment paid, e.g., 
aviation contractors or asbestos matters. Generally, a suit in which the 
plaintiff is representing the interests of the United States under the 
Medical Care Recovery Act is not a litigation matter to which the United 
States is, or might reasonably become, a party. Determining authorities, 
if in doubt whether the United States is likely to become a party to the 
litigation, should seek guidance from representatives of the Offices of 
the Judge Advocate General or General Counsel. The Judge Advocate 
General and the General Counsel have the authority to determine whether 
a litigation request should be forwarded to them, or retained by a 
determining authority, for resolution.
    (1) Litigation requests regarding matters assigned to the Judge 
Advocate General of the Navy under Navy Regulations, article 0331 
(1990), shall be referred to the Deputy Assistant Judge Advocate General 
for General Litigation, Office of the Navy Judge Advocate General 
(Washington Navy Yard), 1322 Patterson Avenue, SE., Suite 3000, 
Washington, DC, 20374-5066, who will respond for the Judge Advocate 
General or transmit the request to the appropriate Deputy Assistant 
Judge Advocate General for response.
    (2) Litigation requests regarding matters assigned to the General 
Counsel of the Navy under Navy Regs., art.

[[Page 121]]

0327 (1990) \5\, shall be referred to the cognizant Command Counsel 
under, and subject to, limitations set forth in Sec.  725.6(d)(2). That 
Command Counsel may either respond or refer the matter for action to 
another office. Requests involving asbestos litigation shall be referred 
to the Office of Counsel, Naval Sea Systems Command Headquarters, 
Personnel and Labor Law Section (Code 00LD), Washington, DC 20362-5101. 
Matters not clearly within the purview of a particular command counsel 
shall be referred to Associate General Counsel (Litigation), who may 
either respond or refer the matter for action to another office.
---------------------------------------------------------------------------

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

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

[[Page 122]]

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

    \6\ See footnote 1 to Sec.  725.1.
---------------------------------------------------------------------------

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

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



Sec.  725.7  Contents of a proper request or demand.

    (a) Routine requests. If official information is sought, through 
testimony or otherwise, a detailed written request must be submitted to 
the appropriate determining authority far enough in advance to assure an 
informed and timely evaluation of the request, and prevention of adverse 
effects on the mission of the command or activity that must respond. The 
determining authority shall decide whether sufficient information has 
been provided by the requester. Absent independent information, the 
following data is necessary to assess a request.
    (1) Identification of parties, their counsel and the nature of the 
litigation. (i) Caption of case, docket number, court.
    (ii) Name, address, and telephone number of all counsel.
    (iii) The date and time on which the documents, information, or 
testimony sought must be produced; the requested location for 
production; and, if applicable, the estimated length of time that 
attendance of the DON personnel will be required.
    (2) Identification of information or documents requested. (i) A 
description, in as much detail as possible, of the documents, 
information, or testimony sought, including the current military 
service, status (active, separated, retired), social security number, if 
known, of the subject of the requested pay, medical, or service records;
    (ii) The location of the records, including the name, address, and 
telephone number, if known, of the person from whom the documents, 
information, or testimony is sought; and
    (iii) A statement of whether factual, opinion, or expert testimony 
is requested (see Sec. Sec.  725.4(c) and 725.8(b)(3)(ii)).
    (3) Description of why the information is needed. (i) A brief 
summary of the facts of the case and the present posture of the case.

[[Page 123]]

    (ii) A statement of the relevance of the matters sought to the 
proceedings at issue.
    (iii) If expert or opinion testimony is sought, an explanation of 
why exceptional need or unique circumstances exist justifying such 
testimony, including why it is not reasonably available from any other 
source.
    (b) Additional considerations. The circumstances surrounding the 
underlying litigation, including whether the United States is a party, 
and the nature and expense of the requests made by a party may require 
additional information before a determination can be made. Providing the 
following information or stipulations in the original request may 
expedite review and eliminate the need for additional correspondence 
with the determining authority.
    (1) A statement of the requester's willingness to pay in advance all 
reasonable expenses and costs of searching for and producing documents, 
information, or personnel, including travel expenses and accommodations 
(if applicable);
    (2) In cases in which deposition testimony is sought, a statement of 
whether attendance at trial or later deposition testimony is anticipated 
and requested. A single deposition normally should suffice;
    (3) An agreement to notify the determining authority at least 10 
working days in advance of all interviews, depositions, or testimony. 
Additional time for notification may be required where the witness is a 
DON health care provider or where the witness is located overseas;
    (4) An agreement to conduct the deposition at the location of the 
witness, unless the witness and his or her commanding officer or 
cognizant superior, as applicable, stipulate otherwise;
    (5) In the case of former DON personnel, a brief description of the 
length and nature of their duties while in DON employment, and a 
statement of whether such duties involved, directly or indirectly, the 
information or matters as to which the person will testify;
    (6) An agreement to provide free of charge to any witness a signed 
copy of any written statement he or she may make, or, in the case of an 
oral deposition, a copy of that deposition transcript, if taken by a 
stenographer, or a video tape copy, if taken solely by video tape, if 
not prohibited by applicable rules of court;
    (7) An agreement that if the local rules of procedure controlling 
the litigation so provide, the witness will be given an opportunity to 
read, sign, and correct the deposition at no cost to the witness or the 
Government;
    (8) A statement of understanding that the United States reserves the 
right to have a representative present at any interview or deposition; 
and
    (9) A statement that counsel for other parties to the case will be 
provided with a copy of all correspondence originated by the determining 
authority so they may have the opportunity to submit any related 
litigation requests and participate in any discovery.
    (c) Response to deficient requests. A letter request that is 
deficient in providing necessary information may be returned to the 
requester by the determining authority with an explanation of the 
deficiencies and a statement that no further action will be taken until 
they are corrected. If a subpoena has been received for official 
information, counsel should promptly determine the appropriate action to 
take in response to the subpoena. See Sec.  725.9(g).
    (d) Emergency requests. Written requests are generally required by 
32 CFR part 97.
    (1) The determining authority, identified in Sec.  725.6, has 
discretion to waive that requirement in the event of a bona fide 
emergency, under conditions set forth here, which were not anticipated 
in the course of proper pretrial planning and discovery. Oral requests 
and subsequent determinations should be reserved for instances where 
factual matters are sought, and compliance with the requirements of a 
proper written request would result in the effective denial of the 
request and cause an injustice in the outcome of the litigation for 
which the information is sought. No requester has a right to make an 
oral request and receive a determination. Whether to permit such an 
exceptional procedure is a decision within the sole discretion of the 
determining authority, unless overruled by

[[Page 124]]

the General Counsel or the Judge Advocate General, as appropriate.
    (2) If the determining authority concludes that the request, or any 
portion of it, meets the emergency test, he or she will require the 
requester to agree to the conditions set forth in Sec.  725.7(a). The 
determining authority will then orally advise the requester of the 
determination, and seek a written confirmation of the oral request. 
Thereafter, the determining authority will make a written record of the 
disposition of the oral request including the grant or denial, 
circumstances requiring the procedure, and conditions to which the 
requester agreed.
    (3) The emergency procedure should not be utilized where the 
requester refuses to agree to the appropriate conditions set forth in 
Sec.  725.7(a) or indicates unwillingness to abide by the limits of the 
oral grant, partial grant, or denial.



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

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

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

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

[[Page 125]]

    (A) If the determining authority to whom the matter is referred 
determines to comply with the order or subpoena, compliance will be 
effected by transmitting certified copies of records to the clerk of the 
court from which process issued. If, because of an unusual circumstance, 
an original record must be produced by a naval custodian, it will not be 
removed from the custody of the person producing it, but copies may be 
placed in evidence.
    (B) Upon written request of one or more parties in interest or their 
respective attorneys, records which would be produced in response to a 
court order signed by a judge as set forth above may be furnished 
without a court order, but only upon a request complying with Sec.  
725.7 and only when such records are not in a ``system of records'' as 
defined by the Privacy Act (5 U.S.C. 552a). In determining whether a 
record not contained in a ``system of records'' will be furnished in 
response to a Freedom of Information Act (FOIA) request, SECNAVINST 
5720.42E \9\ controls.
---------------------------------------------------------------------------

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

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

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

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

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

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

[[Page 126]]

subparagraph in response to a court order and proper request, certified 
copies rather than originals should be furnished. Where original records 
must be produced because of unusual circumstances, they may not be 
removed from the custody of the official producing them, but copies may 
be placed on the record.
---------------------------------------------------------------------------

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

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

[[Page 127]]

    (iii) Visits and views (where the United States is not, and is 
reasonably not expected to become, a party). Such disclosures are 
normally factual in nature and should not be accompanied by interviews 
of personnel unless separately requested and granted. The authority of 
the commanding officer of the activity, ship, or unit at issue is not 
limited by this part. Accordingly, he or she may prescribe appropriate 
conditions as to time, place, and circumstances (including proper 
restrictions on photography).
    (iv) Non-DOD information. A request for disclosure under this part, 
particularly through the testimony of a witness, may involve both 
official information and non-DOD information (e.g., in the case of a 
person who has acquired additional and separate knowledge or expertise 
wholly apart from Government employment). Determining whether or not 
official information is at issue is within the purview of the 
determining authority, not the requester. A requester's contention that 
only non-DOD information is at issue is not dispositive. The requester 
must still comply with this instruction to support that contention. If 
non-DOD information is at issue in whole or in part, the determining 
authority shall so state in the written determination described in Sec.  
725.9. He or she shall make no other determination regarding that non-
DOD information.



Sec.  725.9  Action to grant or deny a request.

    (a) The process of determining whether to grant or deny a request is 
not an adversary proceeding. This part provides guidance for the 
operation of DON only and is not intended to, does not, and may not be 
relied upon to, create any right or benefit, substantive or procedural, 
enforceable at law against the United States, DOD, or DON.
    (b) 32 CFR part 97 and this part apply to testimony by former naval 
personnel and former civilian employees of DON. A proper request must be 
made, under Sec.  725.7, to obtain testimony by former personnel 
regarding official DOD information. However, this part is not intended 
to place unreasonable restraints upon the post-employment conduct of 
such personnel. Accordingly, requests for expert or opinion testimony by 
such personnel will normally be granted unless that testimony would 
constitute a violation of the U.S. Code (e.g., 18 U.S.C. 201 et seq.), 
conflict with pertinent regulations (e.g., Secretary of the Navy 
Instruction 5370.2H), or disclose properly classified or privileged 
information.
    (c) A determination to grant or deny should be made as expeditiously 
as possible to provide the requester and the court with the matter at 
issue or with a statement of the reasons for denial. The decisional 
period should not exceed 10 working days from receipt of a complete 
request complying with the requirements of Sec.  725.7, absent 
exceptional or particularly difficult circumstances. The requester 
should also be informed promptly of the referral of any portion of the 
request to another authority for determination.
    (d) Except as provided in Sec.  725.7(d), a determination to grant 
or deny shall be in writing.
    (e) The determination letter should respond solely to the specific 
disclosures requested, stating a specific determination on each 
particular request. When a request is denied in whole or in part, a 
statement of the reasons for denial should be provided to fully inform a 
court of the reasons underlying the determination if it is challenged.
    (f) A copy of any denial, in whole or in part, of a request, should 
be forwarded to the cognizant Deputy Assistant Judge Advocate General or 
the Associate General Counsel (Litigation), as appropriate. Such 
notification is likewise appropriate when the litigation request has 
been treated under 5 U.S.C. 552, 552a and Sec.  725.5(f). Telephonic 
notification is particularly appropriate where a judicial challenge or 
contempt action is anticipated.
    (g) In cases in which a subpoena has been received and the requester 
refuses to pay fees or otherwise comply with the guidance and 
requirements imposed by this part, or if the determining authority 
declines to make some or all of the subpoenaed information available, or 
if the determining authority has had insufficient time to complete its 
determination as to how to respond to the request, the determining 
authority

[[Page 128]]

must promptly notify the General Litigation Division of the Office of 
the Judge Advocate General or the Navy Litigation Office of the Office 
of the General Counsel, which offices will determine, in consultation 
with the Department of Justice, the appropriate response to be made to 
the tribunal which issued the subpoena. Because the Federal Rules of 
Civil Procedure require that some objections to subpoenas must be made 
either within 10 days of service of the subpoena or on or before the 
time for compliance, whichever first occurs, and because this will 
require consultation with the Department of Justice, timely notice is 
essential.



Sec.  725.10  Response to requests or demands in conflict with
this instruction.

    (a) Except as otherwise provided in this paragraph, DON personnel, 
including former military personnel and civilian employees, shall not 
produce, disclose, release, comment upon, or testify concerning any 
official DOD information in response to a litigation request or demand 
without prior written approval of the appropriate DON official 
designated in Sec.  725.6. If a request has been made, and granted, in 
whole or in part, per 32 CFR part 97 and this part, DON personnel may 
only produce, disclose, release, comment upon, or testify concerning 
those matters specified in the request and properly approved by the 
determining authority designated in Sec.  725.6. See United States ex 
rel. Touhy v. Ragen, 340 U.S. 462 (1951).
    (b) If, after DON personnel have received a litigation request or 
demand and have in turn notified the appropriate determining authority 
described in Sec.  725.6, a response to the request or demand is 
required before instructions from the responsible official have been 
received, the responsible authority designated in Sec.  725.6 shall 
notify the Deputy Assistant Judge Advocate General or Associate General 
Counsel (Litigation) who has cognizance over the matter. That official 
will furnish the requester, the court, or other authority that the 
request or demand is being reviewed in accordance with this part and 
seek a stay of the request or demand pending a final determination.
    (c) If a court of competent jurisdiction or other appropriate 
authority declines to stay the effect of the request or demand in 
response to action taken under Sec.  725.10(b), or if such court or 
other authority orders that the request or demand must be complied with, 
notwithstanding the final decision of the appropriate DON official, the 
DON personnel upon whom the request or demand was made will, if time 
permits, notify the determining authority of such ruling or order. That 
authority will notify the Deputy Assistant Judge Advocate General or the 
Associate General Counsel (Litigation) having cognizance over the 
matter. After due consultation and coordination with the Department of 
Justice, as required by the Manual of the Judge Advocate General, that 
official will determine whether the individual is required to comply 
with the request or demand and will notify the requester, the court, or 
other authority accordingly. The witness shall, if directed by the 
appropriate DON official, respectfully decline to comply with the 
demand. Legal counsel for the command concerned should accompany and 
advise DON personnel during any court proceedings involving the 
foregoing circumstances.
    (d) It is expected that all DON actions in the foregoing paragraphs 
will be taken only after active consultation with the appropriate 
component of the Department of Justice. Generally, DON personnel will be 
instructed to decline to comply with a court order only if the 
Department of Justice commits to represent the DON personnel in 
question.



Sec.  725.11  Fees.

    (a) Generally. Except as provided below, determining authorities 
shall charge reasonable fees and expenses to parties seeking official 
DON information or testimony under this instruction. Pursuant to 32 CFR 
288.4, 288.10, these fees should include all costs of processing a 
request for information, including time and material expended. Travel 
for active duty members summoned as witnesses is governed by Joint 
Travel Regulations, Vol. I, Chap.

[[Page 129]]

7, pt. E. and Navy Travel Instructions, Chap. 6, pt. E. \13\ Travel for 
civilian personnel summoned as witnesses is governed by the Joint Travel 
Regulations, Vol. II, Chap. 4, pt. E. \14\
---------------------------------------------------------------------------

    \13\ See footnote 1 to Sec.  725.1.
    \14\ See footnote 1 to Sec.  725.1.
---------------------------------------------------------------------------

    (1) When DON is a party. No fees normally shall be charged when the 
DON is a party to the proceedings, and the activity holding the 
requested information or employing the witness shall bear the expense of 
complying with the request.
    (2) When another federal agency is a party. No fees shall be charged 
to the requesting agency. Travel and per diem expenses may be paid by 
the requesting agency, or by the Navy activity to which the requested 
witness is assigned, subject to reimbursement from the requesting 
agency.
    (3) When neither DON nor another federal agency is a party. Fees 
shall be charged to the requester for time taken from official duties by 
DON personnel who are authorized to be interviewed, give testimony, or 
escort persons on views and visits of installations. At the discretion 
of the cognizant command, DON personnel need not be made available 
during duty hours unless directed by subpoena. Time which DON personnel 
spend in court testifying, or waiting to testify on factual matters 
shall not be charged. Fees should be charged, however, for expert or 
opinion testimony based upon the witness's education, training, or 
experience. Testimony by a treating physician called to testify about 
his personal knowledge of a specific case is considered fact not expert 
testimony. Fees are payable to the Treasurer of the United States for 
deposit in the Treasury's miscellaneous receipts. Rates for uniformed 
personnel are published in NAVCOMPT Notice 7041 series. \15\ Pursuant to 
32 CFR 288.4, charges for civilian personnel should include the 
employee's hourly rate of pay, as well as allowances and benefits. 
Except as provided in Sec.  725.11(b)(4), no funds may be expended for 
travel or per diem of active duty members when an agency of the Federal 
Government is not a party. The requesting party is responsible for 
travel arrangements and funding. Government funding of travel and per 
diem for civilian employees is authorized.
---------------------------------------------------------------------------

    \15\ See footnote 1 to Sec.  725.1.
---------------------------------------------------------------------------

    (b) Special circumstances--(1) Refusal to pay fees. In cases in 
which a subpoena has been received and the requester refuses to pay 
appropriate fees, it may become necessary to request the Department of 
Justice to take appropriate legal action before the court issuing the 
subpoena. Determining authorities should consult promptly with the OJAG 
General Litigation Division or the Navy Litigation Office of the General 
Counsel if this course of action appears necessary, because some 
objections to subpoenas must be made either within ten days of service 
of the subpoena or on or before the time for compliance, whichever first 
occurs, and because this will require timely consultation with the 
Department of Justice. If no subpoena has been issued, the determining 
authority must decide whether to deny the request or, if appropriate, 
waive the fees.
    (2) Waiver or reduction of fees. The determining authority may waive 
or reduce fees pursuant to 32 CFR 288.4, 288.9, provided such waiver or 
reduction is in the best interest of the DON and the United States. Fee 
waivers and reductions shall not be routinely granted, or granted under 
circumstances which might create the appearance that DON favors one 
party over another.
    (3) Witness fees required by the court. Witness fees required by the 
rules of the applicable court shall be paid directly to the witness by 
the requester. Such amounts are to defray the cost of travel and per 
diem. In a case where the Government has paid the cost of travel and per 
diem, the witness shall turn over to his or her supervisor any payment 
received from a private party to defray the cost of travel that, when 
added to amounts paid by the Government, exceed the actual cost of 
travel. The supervisor shall forward the amount turned over by the 
witness to the Office of the Comptroller of the Navy for appropriate 
action.
    (4) Exceptional cases. If neither the DON, nor an agency of the 
Federal Government is a party, appropriated funds may be used to pay, 
without reimbursement, travel and per diem of

[[Page 130]]

DON personnel who are witnesses in criminal or civil proceedings, 
provided, the case is directly related to the Armed Services, or its 
members, and the Armed Services have a genuine and compelling interest 
in the outcome.



PART 735_REPORTING BIRTHS AND DEATHS IN COOPERATION WITH OTHER 
AGENCIES--Table of Contents



Sec.
735.1 Purpose.
735.2 Background.
735.3 Action.

    Authority: 70A Stat. 278; 80 Stat. 379, 383; 5 U.S.C. 301, 552; and 
10 U.S.C. 5031.

    Source: 51 FR 15321, Apr. 23, 1986, unless otherwise noted.



Sec.  735.1  Purpose.

    To promulgate latest guidance on reporting births and deaths, 
including births to which part 138 of this title is applicable.



Sec.  735.2  Background.

    For Armed Forces members and their dependents on duty overseas, 
registration of vital statistics with an appropriate foreign government 
may be a distinct advantage should documentary evidence, acceptable in 
all courts, be required at any future time. Department of Defense (DOD) 
policy is that military services will require their members to make 
official record of births, deaths, marriages, etc., with local civil 
authorities in whose jurisdiction such events occur.



Sec.  735.3  Action.

    When a medical officer has knowledge of a birth or death occurring 
under the following conditions, he or she shall refer the matter to the 
commanding officer for assurance of compliance with DOD policy.
    (a) Births. (1) In accordance with local health laws and 
regulations, the commanding officer of a naval hospital in the United 
States (U.S.) shall report to proper civil authorities all births, 
including stillbirths, occurring at the hospital. Medical officers on 
ships and aircraft operating within U.S. political boundaries, or at 
stations other than naval hospitals in the U.S., shall report all births 
occurring within their professional cognizance. It shall be the duty of 
the medical officer to determine the requirements of local civil 
authorities for these reports.
    (2) When births occur on aircraft or ships operating beyond U.S. 
political boundaries, the medical officer responsible for delivery shall 
make a report to the commanding officer, master of the ship, or to the 
officer in command of any aircraft, in every case to be recorded in the 
ship or aircraft log. A report shall also be made to local civil 
authorities in the first port of entry if required by law and regulation 
of such authorities when births occur on a course inbound to the U.S. 
Additionally, the medical officer shall:
    (i) Furnish the parents with appropriate certificates and shall, if 
the report is not accepted by the local registrar of vital statistics or 
other civil authority, or in any case in which local authority has 
indicated in writing that such a report will not be accepted,
    (ii) Advise the parents to seek the advice of the nearest office of 
the U.S. Immigration and Naturalization Service (USINS), at the earliest 
practicable time. USINS offices are located in ports of entry and in 
major cities of the United States.
    (iii) For births occurring on courses out-bound and beyond the 
continental limits of the U.S., report to the U.S. consular 
representative at the next appropriate foreign port. When the aircraft 
or ship does not enter a foreign port, procedures described in Sec.  
735.3(a)(2)(ii) shall be followed.
    (3) Attention is invited to the fact that reports of birth may be 
forwarded to the Bureau of Health Statistics, Department of Health, 
Honolulu, Hawaii for any births occurring on courses destined for 
islands in the Pacific Ocean over which the United States has 
jurisdiction as well as for those births which are otherwise accepted by 
civil authorities for Hawaii.
    (4) Part 138 of this title prescribes policy, responsibilities, and 
procedures on birth registration of infants born to U.S. citizens, in 
military medical facilities outside the United States and its 
possessions.
    (b) Deaths. When a death occurs at a naval activity in any State, 
Territory,

[[Page 131]]

or insular possession of the United States, the commanding officer or 
designated representative shall report the death promptly to proper 
civil authorities in accordance with Naval Medical Command directives. 
If requested by these civil authorities, the civil death certificate may 
be prepared and signed by the cognizant naval medical officer. Local 
agreements concerning reporting and preparation of death certificates 
should be made between the naval facility and local civil authorities.

[[Page 132]]



       SUBCHAPTER D_PROCUREMENT, PROPERTY, PATENTS, AND CONTRACTS



    Cross Reference: For joint procurement regulations of the Armed 
Forces, see chapter I of this title.



PART 744_POLICIES AND PROCEDURES FOR THE PROTECTION OF PROPRIETARY
RIGHTS IN TECHNICAL INFORMATION PROPOSED FOR RELEASE TO FOREIGN
GOVERNMENTS--Table of Contents



Sec.
744.1 Purpose.
744.6 Authorization for release without consent of the owner.

    Authority: Sec. 301, 80 Stat. 379, secs. 5031, 6011, 70A Stat. 278, 
375 as amended; 5 U.S.C. 301, 10 U.S.C. 5031, 6011. Interpret or apply 
the Mutual Security Act of 1954 (68 Stat. 832) as amended, 22 U.S.C. 
1750 et seq., and Act of Sept. 4, 1961 (Pub. L. 87-195, 75 Stat. 424), 
22 U.S.C. 2151-2406 (2351, 2356).



Sec.  744.1  Purpose.

    This part implements part 264 of this title and the Technical 
Property Interchange Agreements between the United States and foreign 
governments which agreements are designed to facilitate the interchange 
of patent rights and technical information for defense purposes.

[26 FR 12217, Dec. 21, 1961]



Sec.  744.6  Authorization for release without consent of the owner.

    (a) Military equipment including the information essential for its 
operation, maintenance and repair and technical information, known or 
claimed to be proprietary, which is being considered for release in 
accordance with Sec.  264.4(d)(3), may be released when the Chief of 
Naval Operations or his designee or a bureau chief or deputy bureau 
chief determines under the authority of the Act that such action clearly 
warrants the assumption of financial liability that may be incurred and 
there is no acceptable substitute equipment or information for which 
consent to release is obtainable or which is not proprietary.
    (b) Where any technical information is released in accordance with 
this section, such release shall be subject to the conditions of release 
set forth in Sec.  264.4(f).
    (c) Military equipment, including the information essential for its 
operation, maintenance, and repair, known or claimed to be privately 
owned and for which consent for release cannot be obtained may be 
furnished to foreign governments in accord with Sec.  264.4(d)(3) 
without further legal authorization, provided such release is made 
pursuant to the grant aid provisions of the Mutual Security Act of 1954, 
as amended, and provided further, there is no acceptable substitute 
equipment or information for which consent for release is obtainable or 
which is not proprietary.

[24 FR 10715, Dec. 25, 1959, as amended at 44 FR 30686, May 29, 1979]



PART 746_LICENSING OF GOVERNMENT INVENTIONS IN THE CUSTODY OF THE
DEPARTMENT OF THE NAVY--Table of Contents



Sec.
746.1 Purpose.
746.2 Policy.
746.3 Delegation of authority.
746.4 Definitions.
746.5 Government inventions available for licensing.
746.6 Nonexclusive license.
746.7 Limited exclusive license.
746.8 Additional licenses.
746.9 Royalties.
746.10 Reports.
746.11 Procedures.
746.12 Litigation.
746.13 Transfer of custody of Government inventions.

    Authority: 5 U.S.C. 301; 10 U.S.C. 5031; 40 U.S.C. 486(c); and 41 
CFR 101-4.1.

    Source: 41 FR 55712, Dec. 22, 1976, unless otherwise noted.



Sec.  746.1  Purpose.

    This part implements Department of Defense Directive 5535.3 of 
November 2, 1973 and 41 CFR subpart 101-4.1, and sets forth the policy, 
terms, conditions, and procedures for the licensing of

[[Page 133]]

rights in domestic patents and patent applications vested in the United 
States of America and in the custody of the Department of the Navy.



Sec.  746.2  Policy.

    (a) A major premise of the Presidential Statement fo Government 
Patent Policy, August 23, 1971 (36 FR 16887, August 26, 1971), is that 
government inventions normally will best serve the public interest when 
they are developed to the point of practical application and made 
available to the public in the shortest possible time. The granting of 
express nonexclusive or exclusive licenses for the practice of these 
inventions may assist in the accomplishment of the national objective to 
achieve a dynamic and efficient economy.
    (b) The granting of nonexclusive licenses generally is preferable, 
since the invention is thereby laid open to all interested parties and 
serves to promote competition in industry, if the invention is in fact 
promoted commercially. However, to obtain commercial utilization of the 
invention, it may be necessary to grant an exclusive license for a 
limited period of time as an incentive for the investment of risk 
capital to achieve practical application of an invention.
    (c) Whenever the grant of an exclusive license is deemed 
appropriate, it shall be negotiated on terms and conditions most 
favorable to the public interest. In selecting an exclusive licensee, 
consideration shall be given to the capabilities of the prospective 
licensee to further the technical and market development of the 
invention, his plan to undertake the development, the projected impact 
on competition, and the benefit to the Government and the public. 
Consideration shall be given also to assisting small business and 
minority business enterprises, as well as economically depressed, low 
income, and labor surplus areas, and whether each or any applicant is a 
United States citizen or corporation. Where there is more than one 
applicant for an exclusive license, that applicant shall be selected who 
is determined to be most capable of satisfying the criteria and 
achieving the goals set forth in this part.
    (d) Subject to the following: (1) Any existing or future treaty or 
agreement between the United States and any foreign government or inter-
governmental organization, or
    (2) Licenses under or other rights to inventions made or conceived 
in the course of or under Department of the Navy research and 
development contracts where such licenses or other rights to such 
inventions are provided for in the contract and retained by the party 
contracting with the Department of the Navy, no license shall be granted 
or implied in a government invention, except as provided for in this 
part.
    (e) No grant of a license under this part shall be construed to 
confer upon any licensee any immunity from the antitrust laws or from a 
charge of patent misuse, and the acquisition and use of rights pursuant 
to this part shall not be immunized from the operation of state or 
federal law by reason of the source of the grant.



Sec.  746.3  Delegation of authority.

    The Chief of Naval Research is delegated the authority to administer 
the patent licensing program, with the authority to redelegate such 
authority.



Sec.  746.4  Definitions.

    (a) Government invention means an invention covered by a domestic 
patent or patent application that is vested in the United States and in 
the custody of the Department of the Navy, and is designated by the 
Chief of Naval Research as appropriate for the grant of an express non-
exclusive or exclusive license.
    (b) To the point of practical application means to manufacture in 
the case of a composition or product, to practice in the case of a 
process, or to operate in the case of a machine, under such conditions 
as to establish that the invention is being worked and that its benefits 
are reasonably accessible to the public.



Sec.  746.5  Government inventions available for licensing.

    Government inventions normally will be made available for the 
granting of express nonexclusive or limited exclusive licenses to 
responsible applicants according to the factors and conditions

[[Page 134]]

set forth in Sec. Sec.  746.6 and 746.7, subject to the applicable 
procedures of Sec.  746.11. The Chief of Naval Research may remove a 
prior designation of availability for licensing of any patent(s) or 
patent application(s), provided that no outstanding licenses to that 
invention are in effect.



Sec.  746.6  Nonexclusive license.

    (a) Availability of licenses. Each government invention normally 
shall be made available for the granting of nonexclusive revocable 
licenses, subject to the provisions of any other licenses, including 
those under Sec.  746.8.
    (b) Terms of grant. (1) The duration of the license shall be for a 
period as specified in the license agreement, provided that the licensee 
complies with all the terms of the license.
    (2) The license shall require the licensees to bring the invention 
to the point of practical application within a period specified in the 
license, or such extended period as may be agreed upon, and to contine 
to make the benefits of the invention reasonably accessible to the 
public.
    (3) The license may be granted for all or less than all fields of 
use of the invention, and throughout the United States of America, its 
territories and possessions, the Commonwealth of Puerto Rico, and the 
District of Columbia, or in any lesser geographic portion thereof.
    (4) After termination of a period specified in the license 
agreement, the Chief of Naval Research may restrict the license to the 
fields of use and/or geographic areas in which the licensee has brought 
the invention to the point of practical application and continues to 
make the benefits of the invention reasonably accessible to the public.
    (5) The license may extend to subsidiaries and affiliates of the 
licensee but shall be nonassignable without approval of the Chief of 
Naval Research, except to the successor of that part of the licensee's 
business to which the invention pertains.
    (6) The Government shall make no representation or warranty as to 
the validity of any licensed application(s) or patent(s), or of the 
scope of any of the claims contained therein, or that the exercise of 
the license will not result in the infringement of any other patent(s), 
nor shall the Government assume any liability whatsoever resulting from 
the exercise of the license.



Sec.  746.7  Limited exclusive license.

    (a) Availability of licenses. Each government invention may be made 
available for the granting of a limited exclusive license, provided 
that:
    (1) The invention has been published as available for licensing 
pursuant to paragraph (a) of Sec.  746.11 for a period of at least six 
months;
    (2) The Chief of Naval Research has determined that:
    (i) The invention may be brought to the point of practical 
application in certain fields of use and/or in certain geographical 
locations by exclusive licensing;
    (ii) The desired practical application has not been achieved under 
any nonexclusive license granted on the invention; and
    (iii) The desired practical application is not likely to be achieved 
expeditiously in the public interest under a nonexclusive license or as 
a result of further government-funded research or development;
    (3) The notice of the prospective licensee has been published, 
pursuant to paragraph (d) of Sec.  746.11 for at least 60 days; and
    (4) After termination of the period set forth in paragraph (a)(3) of 
Sec.  746.7 the Chief of Naval Research has determined that no applicant 
for a nonexclusive license has brought or will bring, within a 
reasonable period, the invention to the point of practical application, 
as specified in the exclusive license, and that to grant the exclusive 
license would be in the public interest.
    (b) Selection of exclusive licensee. An exclusive licensee will be 
selected on bases consistent with the policy set forth in Sec.  746.2 
and in accordance with the procedures set forth in Sec.  746.11.
    (c) Terms of grant. (1) The license may be granted for all or less 
than all fields of use of the government invention, and throughout the 
United States of America, its territories and possessions, the 
Commonwealth of Puerto Rico, and the District of Columbia, or in any 
lesser geographic portion thereof.

[[Page 135]]

    (2) Subject to the rights reserved to the Government in paragraphs 
(c)(6) and (c)(7) of Sec.  746.7, the licensee shall be granted the 
exclusive right to practice the invention in accordance with the terms 
and conditions specified in the license.
    (3) The duration of the license shall be negotiated but shall be for 
a period less than the terminal portion of the patent, the period 
remaining being sufficient to make the invention reasonably available 
for the grant of a nonexclusive license; and such period of exclusivity 
shall not exceed 5 years unless the Chief of Naval Research determines, 
on the basis of a written submission supported by a factual showing, 
that a longer period is reasonably necessary to permit the licensee to 
enter the market and recoup his reasonable costs in so doing.
    (4) The license shall require the licensee to bring the invention to 
the point of practical application within a period specified in the 
license, or within a longer period as approved by the Chief of Naval 
Research, and to continue to make the benefits of the invention 
reasonably accessible to the public.
    (5) The license shall require the licensee to expend a specified 
minimum amount of money and/or take other specified actions, within a 
specified period of time after the effective date of the license, in an 
effort to bring the invention to the point of practical application.
    (6) The license shall be subject to the irrevocable, royalty-free 
right of the Government of the United States to practice and have 
practiced the invention throughout the world, by or on behalf of the 
Government of the United States, and by or on behalf of any foreign 
government or intergovernmental organization pursuant to any existing or 
future treaty or agreement with the United states. If the Chief of Naval 
Research finds it to be in the public interest, this license may also be 
expressly subject to this same royalty-free right by or on behalf of 
state and municipal governments.
    (7) The license shall reserve to the Chief of Naval Research the 
right to require the licensee to grant sublicenses to responsible 
applicants on terms that are reasonable in the circumstances:
    (i) The extent that the invention is required for public use by 
government regulations, or
    (ii) As may be necessary to fulfill health or safety needs, or
    (iii) For other public purposes stipulated in the license.
    (8) The license may extend to subsidiaries and affiliates of the 
licensee but shall be nonassignable without approval of the Chief of 
Naval Research, except to successors of that part of the licensee's 
business to which the invention pertains.
    (9) An exclusive licensee may grant sublicenses under his license, 
subject to the approval of the Chief of Naval Research. Each sublicense 
granted by an exclusive licensee shall make reference to the exclusive 
license, including the rights retained by the Government under the 
exclusive license, and a copy of such sublicense shall be furnished to 
the Chief of Naval Research.
    (10) The license may be subject to such other terms as may be in the 
public interest.
    (11) The Government shall make no representation or warranty as to 
validity of any licensed application(s) or patent(s), or of the scope of 
any of the claims contained therein, or that the exercise of the license 
will not result in the infringement of any other patent(s), nor shall 
the Government assume any liability whatsoever resulting from the 
exercise of the license.



Sec.  746.8  Additional licenses.

    Subject to any outstanding licenses, nothing in this part shall 
preclude the Chief of Naval Research from granting additional 
nonexclusive or limited exclusive licenses for government inventions 
when he determines that to do so would provide for an equitable exchange 
of patent rights. The following exemplify circumstances wherein such 
licenses may be granted:
    (a) In consideration of the settlement of an interference;
    (b) In consideration of a release of a claim of infringement; or
    (c) In exchange for, or as part of, the consideration for a license 
under adversely held patents.

[[Page 136]]



Sec.  746.9  Royalties.

    (a) Nonexclusive license. Normally, royalties shall not be changed 
under nonexclusive licenses granted to United States citizens and United 
States corporations on government inventions; however, the Chief of 
Naval Research may require other consideration.
    (b) Limited exclusive license. A limited exclusive license on a 
government invention shall contain a royalty provision and/or other 
consideration flowing to the Government.



Sec.  746.10  Reports.

    A license shall require the licensee to submit periodic reports on 
his efforts to achieve practical application of the invention. The 
reports shall contain information within his knowledge, or which he may 
acquire under normal business practices, pertaining to the commercial 
use being made of the invention, and other information which the Chief 
of Naval Research may determine is pertinent to its licensing activities 
and is specified in the license.



Sec.  746.11  Procedures.

    (a) Publication requirements. The Chief of Naval Research shall 
cause to be published in the Federal Register, the Official Gazette of 
the United States Patent and Trademark Office, and at least one other 
publication that the Chief of Naval Research deems would best serve the 
public interest, a list of the government inventions available for 
licensing under the conditions specified in this part. The list shall be 
revised periodically to include directly, or by reference to a 
previously published list, all inventions currently available for 
licensing. Other publications on inventions available for licensing are 
encouraged, and may include abstracts, when appropriate, as well as 
information on the design, construction, use, and potential market for 
the inventions.
    (b) Contents of a nonexclusive license application. An application 
for a nonexclusive license under a government invention should be 
addressed to the Chief of Naval Research (Code 300), Arlington, VA 
22217, and shall include:
    (1) Identification of the invention for which the license is 
desired, including the patent application serial number or patent 
number, title, and date, if known, and any other identification of the 
invention;
    (2) Name and address of the person, company, or organization 
applying for the license, and whether the applicant is a United States 
citizen or a United States corporation;
    (3) Name and address of the representative of applicant to whom 
correspondence should be sent;
    (4) Nature and type of applicant's business;
    (5) Source of information concerning the availability of a license 
on this invention;
    (6) Purpose for which the license is desired and a brief description 
of applicant's plan to achieve that purpose;
    (7) A statement of the fields of use for which applicant intends to 
practice the invention; and
    (8) A statement as to the geographic areas in which the applicant 
would practice the invention.
    (c) Contents of an exclusive license application. An application for 
an exclusive license should be addressed to the Chief of Naval Research 
(Code 300), Arlington, VA 22217, and, in addition to the information 
indicated in paragraph (b) of Sec.  746.11, an application for an 
exclusive license shall include:
    (1) Applicant's status, if any, in any one or more of the following 
categor- ies:
    (i) Small business firm;
    (ii) Minority business enterprise;
    (iii) Location in a surplus labor area;
    (iv) Location in a low-income area; and
    (v) Location in an economically depressed area;
    (2) A statement of applicant's capability to undertake the 
development and marketing required to achieve the practical application 
of the invention;
    (3) A statement describing the time, expenditure, and other acts 
which the applicant considers necessary to achieve practical application 
of the invention and the applicant's offer to invest that sum to perform 
such acts if the license is granted;
    (4) A statement that contains the applicant's best knowledge of the 
extent to which the government invention is

[[Page 137]]

being practiced by private industry and the Government;
    (5) Identification of other exclusive licenses granted to applicant 
under inventions in the custody of other government agencies; and
    (6) Any other facts which the applicant believes are evidence that 
it is in the public interest for the Chief of Naval Research to grant an 
exclusive license rather than a nonexclusive license, and that such 
exclusive license should be granted to the applicant.
    (d) Published notices. (1) A notice that a prospective exclusive 
licensee has been selected shall be published in the Federal Register, 
and a copy of the notice shall be sent to the Attorney General. The 
notice shall include:
    (i) Identification of the invention;
    (ii) Identification of the selected licensee;
    (iii) Duration and scope of the contemplated license; and
    (iv) A statement to the effect that the license will be granted 
unless:
    (A) An application for a nonexclusive license, submitted by a 
responsible applicant pursuant to paragraph (b) of Sec.  746.11, is 
received by the Chief of Naval Research within 60 days from the 
publication of the notice in the Federal Register, and the Chief of 
Naval Research determines in accordance with his prescribed procedures, 
under which procedures the Chief of Naval Research shall record and make 
available for public inspection all decisions made pursuant thereto and 
the basis therefore, that the applicant has established that he has 
already achieved or is likely to bring the invention to the point of 
practical application withing a reasonable period under a nonexclusive 
license; or
    (B) The Chief of Naval Research determines that third party has 
presented evidence and argument which has established that it would not 
be in the public interest to grant the exclusive license.
    (2) If an exclusive license has been granted pursuant to this part, 
notice thereof shall be published in the Federal Register. Such notice 
shall include:
    (i) Identification of the invention;
    (ii) Identification of the licensee; and
    (iii) Duration and scope of the license.
    (3) If an exclusive license has been modified or revoked pursuant to 
paragraph (e) Sec.  746.11, notice thereof shall be published in the 
Federal Register. Such notice shall include:
    (i) Identification of the invention;
    (ii) Identification of the licensee; and
    (iii) Effective date of the modification or revocation.
    (e) Modification or revocation. (1) Any license granted pursuant to 
this part may be modified or revoked by the Chief of Naval Research if 
the licensee at any time defaults in making any report required by the 
license or commits any breach of covenant or agreement therein 
contained.
    (2) A license may also be revoked by the Chief of Naval Research if 
the licensee willfully makes a false statement of material fact or 
willfully omits a material fact in the license application or any report 
required in the license agreement.
    (3) Before modifying or revoking any license granted pursuant to 
this part for any cause, the Chief of Naval Research shall furnish the 
licensee and any sublicensee of record a written notice of intention to 
modify or revoke the license, and the licensee and any sublicensee shall 
be allowed 30 days after such notice to remedy any breach of any 
covenant or agreement as referred to in paragraph (e)(1) of Sec.  
746.11, or to show cause why the license should not be modified or 
revoked.
    (f) Appeals. An applicant for a license, a licensee, or such other 
third party who has participated under paragraph (d)(1)(iv)(B) of Sec.  
746.11 shall have the right to appeal, in accordance with procedures 
prescribed by the Chief of Naval Research, any decision concerning the 
granting, denial, interpretation, modification, or revocation of a 
license.



Sec.  746.12  Litigation.

    The property interest in a patent is the right to exclude. It is not 
the intent of the Government to transfer the property right in a patent 
when a license is issued pursuant to this part.

[[Page 138]]

Accordingly, the right to sue for infringement shall be retained with 
respect to all licenses so issued by the Government.



Sec.  746.13  Transfer of custody of Government inventions.

    The Chief of Naval Research may enter into an agreement to transfer 
custody of a Government invention to another government agency for 
purposes of administration, including the granting of licenses pursuant 
to this part.

[[Page 139]]



                           SUBCHAPTER E_CLAIMS





PART 750_GENERAL CLAIMS REGULATIONS--Table of Contents



                 Subpart A_General Provisions for Claims

Sec.
750.1 Scope of subpart A.
750.2 Investigations: In general.
750.3 Investigations: The report.
750.4 Claims: In general.
750.5 Claims: Proper claimants.
750.6 Claims: Presentment.
750.7 Claims: Action by receiving command.
750.8 Claims: Responsibility of the Tort Claims Unit Norfolk.
750.9 Claims: Payments.
750.10 Claims: Settlement and release.
750.11 Claims: Denial.
750.12 Claims: Action when suit filed.
750.13 Claims: Single service responsibility.
750.14-750.20 [Reserved]

                    Subpart B_Federal Tort Claims Act

750.21 Scope of subpart B.
750.22 Exclusiveness of remedy.
750.23 Definitions.
750.24 Statutory/regulatory authority.
750.25 Scope of liability.
750.26 The administrative claim.
750.27 Information and supporting documentation.
750.28 Amendment of the claim.
750.29 Investigation and examination.
750.30 Denial of the claim.
750.31 Reconsideration.
750.32 Suits under the Federal Tort Claims Act (FTCA).
750.33 Damages.
750.34 Settlement and payment.
750.35 Attorney's fees.
750.36 Time limitations.
750.37-750.40 [Reserved]

                      Subpart C_Military Claims Act

750.41 Scope of subpart C.
750.42 Statutory authority.
750.43 Claims payable.
750.44 Claims not payable.
750.45 Filing claim.
750.46 Applicable law.
750.47 Measure of damages for property claims.
750.48 Measure of damages in injury or death cases.
750.49 Delegations of adjudicating authority.
750.50 Advance payments.
750.51 Final disposition.
750.52 Appeal.
750.53 Cross-servicing.
750.54 Payment of costs, settlements, and judgments related to certain 
          medical or legal malpractice claims.
750.55 Attorney's fees.
750.56-750.60 [Reserved]

    Subpart D_Claims Not Cognizable Under Any Other Provision of Law

750.61 Scope of subpart D.
750.62 Statutory authority.
750.63 Definitions.
750.64 Claim procedures.
750.65 Statute of limitations.
750.66 Officials with authority to settle.
750.67 Scope of liability.
750.68 Claims not payable.
750.69 Measure of damages.

    Authority: 5 U.S.C. 301, 5 U.S.C. 552, 10 U.S.C. 5013, and 5148.

    Source: 57 FR 4722, Feb. 7, 1992, unless otherwise noted.



                 Subpart A_General Provisions for Claims



Sec.  750.1  Scope of subpart A.

    (a) General. (1) The Judge Advocate General is responsible for the 
administration and supervision of the resolution of claims arising under 
the Federal Tort Claims Act (subpart B of this part), the Military 
Claims Act (subpart C of this chapter), the Nonscope Claims Act (subpart 
D of this part), the Personnel Claims Act (part 751 of this chapter), 
the Foreign Claims Act, the International Agreements Claims Act 
pertaining to cost sharing of claims pursuant to international 
agreements, the Federal Claims Collection Act (subpart A of part 757 of 
this chapter), the Medical Care Recovery Act and Health Care Services 
Incurred on Behalf of Covered Beneficiaries: Collection from Third-party 
Payers (subpart B of part 757 of this chapter), and postal claims.
    (2) The Deputy Assistant Judge Advocate General (Claims and Tort 
Litigation) (Code 15) is the manager of the Navy claims system 
established to evaluate, adjudicate, and provide litigation support for 
claims arising under the acts listed above and is responsible to the 
Judge Advocate General for the management of that system. The claims 
system consists of the Claims

[[Page 140]]

and Tort Litigation Division of the Office of the Judge Advocate General 
(Code 15), and the attorneys and support personnel assigned to the Tort 
Claims Unit at Naval Station, Norfolk, Virginia. For economy of 
language, Naval Legal Service Offices and Naval Legal Service Office 
Detachments are referred to as Naval Legal Service Command Activities.
    (3) Commanding officers of commands receiving claims are responsible 
for complying with the guidance on investigations in Sec. 750.2 and Sec. 
750.3, the guidance on handling and forwarding claims found in Sec. 
750.5, and the guidance provided in the JAG Instruction 5800.7E (JAGMAN) 
\1\ of 20 June 2007.
---------------------------------------------------------------------------

    \1\ JAG Instruction 5800.7E (JAGMAN) may be retrieved at the 
official Web site of the United States Navy Judge Advocate General's 
Corps at http://www.jag.navy.mil.
---------------------------------------------------------------------------

    (b) This subpart A delineates general investigative and claims-
processing requirements to be followed in the handling of all incidents 
and claims within the provisions of this part. Where the general 
provisions of this subpart A conflict with the specific provisions of 
any subsequent subpart of this part, the specific provisions govern.

[57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53417, Sept. 19, 2007]



Sec.  750.2  Investigations: In general.

    (a) Conducting the investigation. The command where the incident 
giving rise to the claim is alleged to have happened is responsible for 
conducting an investigation in accordance with this part.
    (b) Thorough investigation. Every incident that may result in a 
claim against or in favor of the United States shall be promptly and 
thoroughly investigated under this part. Investigations convened for 
claims purposes are sufficiently complex that they should be performed 
with the assistance and under the supervision of a judge advocate or 
other attorney. Where the command has an attorney assigned, he shall be 
involved in every aspect of the proceedings. When an attorney is not 
assigned to the investigating command, consultation shall be sought from 
the appropriate Naval Legal Service Command activity.
    (c) Recovery barred. Even when recovery must be barred by statute or 
case law, all deaths, serious injuries, and substantial losses to 
property that are likely to give rise to claims must be investigated 
while the evidence is available. Claims against persons in the naval 
service arising from the performance of their official duties shall be 
investigated as though they were claims against the United States. When 
an incident involves an actual or potential claim against the United 
States for property damage only and the total amount likely to be paid 
does not exceed $5,000.00, an abbreviated investigative report may be 
submitted. Where this monetary figure may be exceeded, but the 
circumstances indicate an abbreviated report may be adequate to preserve 
the facts and protect the Government's claims interests, approval to 
submit a limited investigative report may be sought from the Office of 
the Judge Advocate General (Claims and Tort Litigation Division) (Code 
15), the Tort Claims Unit Norfolk, or the nearest Naval Legal Service 
Command activity.
    (d) Developing the facts. Any investigation convened for claims 
purposes must focus on developing the facts of the incident, i.e., the 
who, what, where, when, why, and how of the matter. Opinions on the 
possible liability of the United States under any of the claims statutes 
listed above shall not be expressed. Early and continuous consultation 
with claims attorneys at Naval Legal Service Command activities is 
essential to ensure the timely development of all necessary facts, the 
identification and preservation of relevant evidence, and to void the 
need for supplemental inquiries.
    (e) Attorney work product. (1) The convening order and the 
preliminary statement of an investigative report prepared to inquire 
into the facts of an incident giving or likely to give rise to a claim 
against the United States shall include the following:

    This investigation has been convened and conducted, and this report 
prepared, in contemplation of claims adjudication and litigation and for 
the express purpose of assisting

[[Page 141]]

attorneys representing the interests of the United States.

    (2) When an investigation is prepared by or at the direction of an 
attorney representing the Department of the Navy and is prepared in 
reasonable anticipation of litigation, it is exempt from mandatory 
disclosure under the Freedom of Information Act exemption (b)(5) and is 
normally privileged from discovery in litigation under the attorney work 
product privilege. 5 U.S.C. 552(b)(5). Unless an attorney prepares the 
report or personally directs its preparation, the investigation may not 
be privileged, even if it was prepared in reasonable anticipation of 
litigation.
    (f) Advance copy. An advance copy of an investigation conducted 
because a claim has been, or is likely to be, submitted shall be 
forwarded to the Tort Claims Unit Norfolk.

[57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53418, Sept. 19, 2007]



Sec.  750.3  Investigations: The report.

    (a) Purpose. The purpose of investigations into claims incidents is 
to gather all relevant information about the incident so adjudicating 
officers can either pay or deny the claim. The essential task of the 
investigating officer is to answer the questions of who, what, where, 
when, why and how? The Navy's best interests are served when the 
investigation is thorough and is performed in a timely manner so the 
claimant can be advised promptly of the action on the claim.
    (b) Duties of the investigating officer. It is the investigating 
officer's responsibility:
    (1) To interview all witnesses to the incident and prepare summaries 
of their comments. Obtaining signed statements of Government witnesses 
is not necessary. Summaries of the witnesses' remarks prepared by the 
investigating officer are quite sufficient and generally expedite the 
gathering of information. On the other hand, written signed statements 
should be obtained from the claimant, wherever possible;
    (2) To inspect the property alleged to have been damaged by the 
action of Government personnel;
    (3) To determine the nature, extent, and amount of any damage, and 
to obtain pertinent repair bills or estimates and medical, hospital, and 
associated bills necessary to permit an evaluation of the claimant's 
loss;
    (4) To obtain maintenance records of the Navy motor vehicle, plane, 
or other piece of equipment involved in the claim;
    (5) To reduce to writing and incorporate into an appropriate 
investigative report all pertinent statements, summaries, exhibits, and 
other evidence considered by the investigator in arriving at his 
conclusions; and,
    (6) To furnish claim forms to any person expressing an interest in 
filing a claim and to refer such personnel to the Office of the Judge 
Advocate General, Tort Claims Unit Norfolk, 9620 Maryland Avenue, Suite 
100, Norfolk, Virginia 23511-2989.
    (c) Content of the report. The written report of investigation shall 
contain information answering the questions mentioned in Sec.  750.3(a) 
and, depending on the nature of the incident, will include the 
following:
    (1) Date, time, and exact place the accident or incident occurred, 
specifying the highway, street, or road;
    (2) A concise but complete statement of the incident with reference 
to physical facts observed and any statements by the personnel involved;
    (3) Names, grades, organizations, and addresses of military 
personnel and civilian witnesses;
    (4) Opinions as to whether military or civilian employees involved 
in the incident were acting within the scope of their duties at the 
time;
    (5) Description of the Government property involved in the incident 
and the nature of any damage it sustained; and,
    (6) Descriptions of all private property involved.
    (d) Immediate report of certain events. The Navy or Marine Corps 
activity most directly involved in the incident shall notify the Judge 
Advocate General immediately by message, electronic mail, or telephone 
in any of the following circumstances:
    (1) Claims or possible claims arising out of a major disaster or out 
of an incident giving rise to five or more possible death or serious 
injury claims.

[[Page 142]]

    (2) Upon filing of a claim that could result in litigation that 
would involve a new precedent or point of law.
    (3) Claims or possible claims that involve or are likely to involve 
an agency other than the Department of the Navy.
    (e) Request for assistance. When an incident occurs at a place where 
the naval service does not have an installation or a unit conveniently 
located for conducting an investigation, the commanding officer or 
officer in charge with responsibility for performing the investigation 
may request assistance from the commanding officer or officer in charge 
of any other organization of the Department of Defense. Likewise, if a 
commanding officer or officer in charge of any other organization of the 
Department of Defense requests such assistance from a naval commanding 
officer or officer in charge, the latter should normally comply. If a 
complete investigation is requested it will be performed in compliance 
with the regulations of the requested service. These investigations are 
normally conducted without reimbursement for per diem, mileage, or other 
expenses incurred by the investigating unit or installation.
    (f) Report of Motor Vehicle Accident, Standard Form 91. RCS OPNAV 
5100-6. The operator of any Government motor vehicle involved in an 
accident of any sort shall be responsible for making an immediate report 
on the Operator's Report of Motor Vehicle Accident, Standard Form 91. 
This operator's report shall be made even though the operator of the 
other vehicle, or any other person involved, states that no claim will 
be filed, or the only vehicles involved are Government owned. An 
accident shall be reported by the operator regardless of who was 
injured, what property was damaged, or who was responsible. The 
operator's report shall be referred to the investigating officer, who 
shall be responsible for examining it for completeness and accuracy and 
who shall file it for future reference or for attachment to any 
subsequent investigative report of the accident.
    (g) Priority of the investigation. To ensure prompt investigation of 
every incident while witnesses are available and before damage has been 
repaired, the duties of an investigating officer shall ordinarily have 
priority over any other assignments he may have.
    (h) Contents of the report of investigation. The report should 
include the following items in addition to the requirements in Sec.  
750.3(c):
    (1) If pertinent to the investigation, the investigating officer 
should obtain a statement from claimant's employer showing claimant's 
occupation, wage or salary, and time lost from work as a result of the 
incident. In case of personal injury, the investigating officer should 
ask claimant to submit a written statement from the attending physician 
setting forth the nature and extent of injury and treatment, the 
duration and extent of any disability, the prognosis, and the period of 
hospitalization or incapacity.
    (2) A Privacy Act statement for each person who was asked to furnish 
personal information shall be provided. Social Security numbers of 
military personnel and civilian employees of the U.S. Government should 
be included in the report but should be obtained from available records, 
not from the individual.
    (3) Names, addresses, and ages of all civilians or military 
personnel injured or killed; names of insurance companies; information 
on the nature and extent of injuries, degree of permanent disability, 
prognosis, period of hospitalization, name and address of attending 
physician and hospital, and amount of medical, hospital, and burial 
expenses actually incurred; occupation and wage or salary of civilians 
injured or killed; and names, addresses, ages, relationship, and extent 
of dependency of survivors of any such person fatally injured should be 
included.
    (4) If straying animals are involved, a statement as to whether the 
jurisdiction has an ``open range law'' and, if so, reference to such 
statute.
    (5) A statement as to whether any person involved violated any State 
or Federal statute, local ordinance, or installation regulation and, if 
so, in what respect. The statute, ordinance, or regulation should be set 
out in full.
    (6) A statement on whether a police investigation was made. A copy 
of the police report of investigation should be included if available.

[[Page 143]]

    (7) A statement on whether arrests were made or charges preferred, 
and the result of any trial or hearing in civil or military courts.
    (i) Expert opinions. In appropriate cases the opinion of an expert 
may be required to evaluate the extent of damage to a potential 
claimant's property. In such cases the investigating officer should 
consult Navy-employed experts, experts employed by other departments of 
the U.S. Government, or civilian experts to obtain a competent 
assessment of claimant's damages or otherwise to protect the 
Government's interest. Any cost involved with obtaining the opinion of 
an expert not employed by the Navy shall be borne by the command 
conducting the investigation. Any cost involved in obtaining the opinion 
of a Navy-employed expert shall be borne by the command to which the 
expert is attached. Medical experts shall be employed only after 
consultation with the Chief, Bureau of Medicine and Surgery.
    (j) Action by command initiating the investigation and subsequent 
reviewing authorities. (1) The command initiating the investigation in 
accordance with Sec.  750.3 or Sec.  750.5 shall review the report of 
investigation. If additional investigation is required or omissions or 
other deficiencies are noted, the investigation should be promptly 
returned with an endorsement indicating that a supplemental 
investigative report will be submitted. If the original or supplemental 
report is in order, it shall be forwarded by endorsement, with any 
pertinent comments and recommendations. An advance copy of the 
investigation shall be forwarded to the Tort Claims Unit Norfolk.
    (2) A reviewing authority may direct that additional investigation 
be conducted, if considered necessary. The initial investigation should 
not be returned for such additional investigation, but should be 
forwarded by an endorsement indicating that the supplemental material 
will be submitted. The report shall be endorsed and forwarded to the 
next-level authority with appropriate recommendations including an 
assessment of the responsibility for the incident and a recommendation 
as to the disposition of any claim that may subsequently be filed. If a 
reviewing authority may be an adjudicating authority for a claim 
subsequently filed, one copy of the report shall be retained by such 
authority for at least 2 years after the incident.
    (3) It is essential that each investigative report reflect that a 
good faith effort was made to comply with the Privacy Act of 1974 (5 
U.S.C. 552a) as implemented by 32 CFR 701, subpart F. Any indication of 
noncompliance shall be explained either in the preliminary statement of 
the forwarding endorsements and, when required, corrected.

[57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53418, Sept. 19, 2007]



Sec.  750.4  Claims: In general.

    (a) Claims against the United States. Claims against the United 
States shall receive prompt and professional disposition. Every effort 
will be made to ensure an investigation is thoroughly and accurately 
completed, the claimant's allegations evaluated promptly, and where 
liability is established, a check issued as quickly as possible to 
prevent further harm to a meritorious claimant. Similarly, claims not 
payble will be processed promptly and the claimant advised of the 
reasons for the denial.
    (b) Claims in favor of the United States. Potential claims in favor 
of the United States will be critically evaluated and, where 
appropriate, promptly asserted and aggressively pursued.
    (c) Assistance to claimants. Claimants or potential claimants who 
inquire about their rights or the procedures to be followed in the 
resolution of their claims should be referred to the Tort Claims Unit 
Norfolk. The Tort Claims Unit Norfolk will provide claims forms, advise 
where the forms should be filed, and inform the requester of the type of 
substantiating information required. Claims officers may provide advice 
on the claims process but shall not provide advice or opinions about the 
merits or the wisdom of filing a particular claim. While claims officers 
have a responsibility to provide general information about claims, they 
must consider 18 U.S.C. 205, which makes it a crime for an officer or 
employee of the United States to act as an agent or an

[[Page 144]]

attorney in the prosecution of any claim against the United States.

[57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53418, Sept. 19, 2007]



Sec.  750.5  Claims: Proper claimants.

    (a) Damage to property cases. A claim for damage to, or destruction 
or loss of, property shall be presented by the owner of the property or 
a duly authorized agent or legal representative. ``Owner'' includes a 
bailee, lessee, or mortgagor, but does not include a mortgagee, 
conditional vendor, or other person having title for security purposes 
only.
    (b) Personal injury and death cases. A claim for personal injury 
shall be presented by the person injured or a duly authorized agent or 
legal representative, or, in the case of death, by the properly 
appointed legal representative of the deceased's estate or survivor 
where authorized by State law.
    (c) Subrogation. A subrogor and a subrogee may file claims jointly 
or separately. When separate claims are filed and each claim 
individually is within the Tort Claims Unit Norfolk's adjudicating 
authority limits, they may be processed by the Tort Claims Unit, even if 
the aggregate of such claims exceeds the Tort Claims Unit's monetary 
authority. However, if the aggregate of the claims exceeds the sum for 
which approval of the Department of Justice (DoJ) is required, currently 
$200,000.00 under the Federal Tort Claims Act, then the Tort Claims Unit 
Norfolk must obtain DoJ approval via the Office of the Judge Advocate 
General, Claims and Tort Litigation Division, before the claims may be 
settled.
    (d) Limitation on transfers and assignment. All transfers and 
assignments made of any claim upon the United States, and all powers of 
attorney, orders, or other authorities for receiving payment of any such 
claim, are absolutely null and void unless they are made after the 
allowance of such a claim, the ascertainment of the amount due, and the 
issuing of a warrant for the payment thereof. 31 U.S.C. 203. This 
statutory provision does not apply to the assignment of a claim by 
operation of law, as in the case of a receiver or trustee in bankruptcy 
appointed for an individual, firm, or corporation, or the case of an 
administrator or executor of the estate of a person deceased, or an 
insurer subrogated to the rights of the insured.

[57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53418, Sept. 19, 2007]



Sec.  750.6  Claims: Presentment.

    (a) Written demand and Standard Form 95. A claim shall be submitted 
by presenting a written statement with the amount of the claim expressed 
in a sum certain, and, as far as possible, describing the detailed facts 
and circumstances surrounding the incident from which the claim arose. 
The Claim for Damage or Injury, Standard Form 95, shall be used whenever 
practical for claims under the Federal Tort and Military Claims Acts. 
Claims under the Personnel Claims Act shall be submitted on DD Form 
1842. \2\ The claim and all other papers requiring the signature of the 
claimant shall be signed by the claimant personally or by a duly 
authorized agent. If signed by an agent or legal representative, the 
claim shall indicate the title or capacity of the person signing and be 
accompanied by evidence of appointment. When more than one person has a 
claim arising from the same incident, each person shall file a claim 
separately.
---------------------------------------------------------------------------

    \2\ The Claim for Damage or Injury, Standard Form 95 and the DD Form 
1842 are available at the Web site of the United States Navy Judge 
Advocate General's Corps at http://www.jag.navy.mil.
---------------------------------------------------------------------------

    (b) To whom submitted. Claims under the Federal Tort and Military 
Claims Acts should be submitted to the Tort Claims Unit Norfolk at the 
address provided in Sec. 750.3 above, or the Office of the Judge 
Advocate General, Claims and Tort Litigation Division, 1322 Patterson 
Avenue, SE., Suite 3000, Washington Navy Yard, Washington, DC 20374-
5066. Claims may also be submitted to the commanding officer of the Navy 
or Marine Corps activity involved if known, the commanding officer of 
any Navy or Marine activity, preferably the one nearest to where the 
accident occurred, or the local Naval Legal Service Command activity. 
The claim should be immediately forwarded to the Tort Claims Unit 
Norfolk.

[72 FR 53418, Sept. 19, 2007]

[[Page 145]]



Sec.  750.7  Claims: Action by receiving command.

    (a) Record date of receipt. The first command receiving a claim 
shall stamp or mark the date of receipt on the letter or claim form. The 
envelope in which the claim was received shall be preserved.
    (b) Determine the military activity involved. The receiving command 
shall determine the Navy or Marine Corps activity most directly involved 
with the claim--usually the command where the incident is alleged to 
have occurred--and forward a copy of the claim to that activity. The 
original claim (and the transmittal letter, if a copy is forwarded to a 
more appropriate activity) should immediately be sent to the Tort Claims 
Unit Norfolk.
    (c) Initiate an investigation. A JAGMAN Litigation Report 
Investigation shall be commenced immediately by the command most 
directly involved with the claim. Once the investigation has been 
completed, an advance copy shall be forwarded by the convening authority 
to the Tort Claims Unit Norfolk. Waiting until endorsements have been 
obtained before providing a copy of the investigation to the Tort Claims 
Unit Norfolk is neither required nor desirable. The facts of the 
incident must be made known to cognizant claims personnel as soon as 
possible.

[57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53419, Sept. 19, 2007]



Sec.  750.8  Claims: Responsibility of the Tort Claims Unit Norfolk.

    (a) Reviewing prior actions. The adjudicating authority (Tort Claims 
Unit Norfolk) determines whether an adequate investigation has been 
conducted, whether the initial receipt date is recorded on the face of 
the claim, and whether all holders of the investigation, if completed, 
are advised of the receipt of the claim.
    (b) Determining the sufficiency of the claim. The claim should be 
reviewed and a determination of its sufficiency made. If the claim is 
not sufficient as received, it shall be immediately returned to the 
party who submitted it along with an explanation of the insufficiency. 
This does not constitute denial of the claim. The claim shall not be 
considered ``presented'' until it is received in proper form.
    (c) Adjudicating the claim. (1) The Tort Claims Unit Norfolk shall 
evaluate and either approve or disapprove all claims within its 
authority, except where the payment of multiple Federal Torts Claims Act 
claims arising from the same incident will exceed $200,000.00 in the 
aggregate and thereby require approval of DoJ. In this latter instance, 
the Torts Claims Unit Norfolk shall contact the Office of the Judge 
Advocate General, Claims and Tort Litigation Division (OJAG Code 15).
    (2) The Tort Claims Unit Norfolk shall evaluate and, where liability 
is established, attempt to settle claims for amounts within its 
adjudicating authority. Negotiation at settlement figures above the Tort 
Claims Unit Norfolk's payment limits may be attempted if the claimant is 
informed that the final decision on the claim will be made at a higher 
level.
    (3) If a substantiated claim cannot be approved, settled, or 
compromised within the settlement authority limits of the Tort Claims 
Unit Norfolk, the Tort Claims Unit Norfolk shall contact OJAG Code 15 to 
seek additional settlement authority. To obtain the additional 
settlement authority, the following materials shall be forwarded to OJAG 
Code 15:
    (i) A letter of transmittal containing a recommendation on 
resolution of the claim.
    (ii) A memorandum of law containing a review of applicable law, an 
evaluation of liability, and a recommendation on the settlement value of 
the case. This memorandum should concentrate on the unusual aspects of 
applicable law, chronicle the attempts to resolve the case, provide 
information about the availability of witnesses, and outline any other 
information material to a resolution of the claim, i.e., prior dealings 
with the claimant's attorney, local procedural rules, or peculiarities 
that may make trial difficult. The memorandum should be tailored to the 
complexity of the issues presented and provide any expert opinions that 
have been obtained in the case by the Navy or the claimant.
    (d) Preparing litigation reports. The Tort Claims Unit Norfolk will 
prepare

[[Page 146]]

a litigation report when a lawsuit is filed and the complaint is 
received. The report is sent directly to the DoJ official or the U.S. 
Attorney having cognizance of the matter. The report is a narrative 
summary of the facts upon which the suit is based and has as enclosures 
the claims file and a memorandum of law on the issues presented. A copy 
of the report and all enclosures should be sent to the Judge Advocate 
General (OJAG Code 15).

[72 FR 53419, Sept. 19, 2007]



Sec.  750.9  Claims: Payments.

    Claims approved for payment shall be expeditiously forwarded to the 
disbursing office or the General Accounting Office depending on the 
claims act involved and the amount of the requested payment. Generally, 
payment of a Federal tort claim above $2,500.00 requires submission of 
the payment voucher to the General Accounting Office. All other field 
authorized payment vouchers are submitted directly to the servicing 
disbursing office for payment.



Sec.  750.10  Claims: Settlement and release.

    (a) Fully and partially approved claims. When a claim is approved 
for payment in the amount claimed, settlement agreement may not be 
necessary. When a federal tort, military, or non-scope claim is approved 
for payment in a lesser amount than that claimed, the claimant must 
indicate in writing a willingness to accept the offered amount in full 
settlement and final satisfaction of the claim. In the latter instance, 
no payment will be made until a signed settlement agreement has been 
received.
    (b) Release. (1) Acceptance by the claimant of an award or 
settlement made by the Secretary of the Navy or designees, or the 
Attorney General or designees, is final upon acceptance by the claimant. 
Acceptance is a complete release by claimant of any claim against the 
United States by reason of the same subject manner. Claimant's 
acceptance of an advance payment does not have the same effect.
    (2) The claimant's acceptance of an award or settlement made under 
the provisions governing the administrative settlement of Federal tort 
claims or the civil action provisions of 28 U.S.C. 1346(b) also 
constitutes a complete release of any claim against any employee of the 
Government whose act or omission gave rise to the claim.

[57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53419, Sept. 19, 2007]



Sec.  750.11  Claims: Denial.

    A final denial of any claim within this chapter shall be in writing 
and sent to the claimant, his attorney, or legal representative by 
certified or registered mail with return receipt requested. The denial 
notification shall include a statement of the reason or reasons for the 
denial. The notification shall include a statement that the claimant 
may:
    (a) If the claim is cognizable under the Federal Tort Claims Act, 
file suit in the appropriate United States District Court within 6 
months of the date of the denial notification.
    (b) If the claim is cognizable under the Military Claims Act, appeal 
in writing to the Office of the Judge Advocate General, Claims and Tort 
Litigation Division within 30 days of the receipt of the denial 
notification. The notice of denial shall inform the claimant or his 
representative that is suit is not possible under the act.

[57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53419, Sept. 19, 2007]



Sec.  750.12  Claims: Action when suit filed.

    (a) Action required of any Navy official receiving notice of suit. 
The commencement, under the civil action provisions of the Federal Tort 
Claims Act (28 U.S.C. 1346(b)), of any action against the United States 
and involving the Navy, that comes to the attention of any official in 
connection with his official duties, shall be reported immediately to 
the Tort Claims Unit Norfolk to take any necessary action and provide 
prompt notification to the Judge Advocate General. The commencement of a 
civil action against an employee of the Navy for actions arising from 
the performance of official duties shall be reported in the same manner.

[[Page 147]]

    (b) Steps upon commencement of civil action. Upon receipt by the 
Judge Advocate General or Tort Claims Unit Norfolk of notice from the 
DoJ or other source that a civil action involving the Navy has been 
initiated under the civil action provisions of the Federal Tort Claims 
Act, and there being no investigative report available at the 
headquarters, a request shall be made to the commanding officer of the 
appropriate Naval Legal Service Command activity for an investigative 
report into the incident. If there is not a completed investigation, the 
request shall be forwarded to the appropriate naval activity to convene 
and complete such a report. The commanding officer of the Naval Legal 
Service Command activity shall contact the Tort Claims Unit Norfolk to 
determine whether an administrative claim had been filed and, if 
available information indicates none had, the Tort Claims Unit Norfolk 
shall advise the Office of the Judge Advocate General (Claims and Tort 
Litigation Division) immediately.

[57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53419, Sept. 19, 2007]



Sec.  750.13  Claims: Single service responsibility.

    (a) The Department of Defense has assigned single-service 
responsibility for processing claims in foreign countries under the 
following acts. The service and country assignments are in DODDIR 5515.8 
of 9 June 1990.
    (1) Foreign Claims Act (10 U.S.C. 2734);
    (2) Military Claims Act (10 U.S.C. 2733);
    (3) International Agreements Claims Act (10 U.S.C. 2734a and b), on 
the pro-rata cost sharing of claims pursuant to international agreement;
    (4) NATO Status of Forces Agreement (4 UST 1792, TIAS 2846) and 
other similar agreements;
    (5) Medical Care Recovery Act (42 U.S.C. 2651-2653) claims for 
reimbursement for medical care furnished by the United States;
    (6) Nonscope Claims Act (10 U.S.C. 2737), claims not cognizable 
under any other provision of law;
    (7) Federal Claims Collection Act (31 U.S.C. Sections 3701, 3702, 
and 3711), claims and demands by the United States Government; and
    (8) Public Law 87-212 (10 U.S.C. 2736), advance or emergency 
payments.
    (b) Single service assignments for processing claims mentioned above 
are as follows:
    (1) Department of the Army: Austria, Belgium, El Salvador, the 
Federal Republic of Germany, Grenada, Honduras, Hungary, Korea, Iraq, 
Kuwait, Latvia, Lithuania, the Marshall Islands, the Netherlands, 
Poland, Romania, Slovakia, Slovenia and Switzerland, and as the 
Receiving State Office in the United States under 10 U.S.C. Sections 
2734a--2734b and the NATO Status of Forces Agreement, and other Status 
of Forces Agreements with countries not covered by the NATO agreement. 
Claims arising from Operation Joint Endeavor, including the former 
Yugoslavia, Hungary, Slovakia and the Czech Republic, as well as the 
Rwanda Refugee Crisis Area are also assigned to the Army.
    (2) Department of the Navy: Bahrain, Greece, Iceland, Israel, Italy, 
Spain and the United Arab Emirates.
    (3) Department of the Air Force: Australia, Azores, Canada, Cyprus, 
Denmark, India, Japan, Luxembourg, Morocco, Nepal, Norway, Pakistan, 
Saudi Arabia, Tunisia, Turkey, the United Kingdom, Egypt, Oman, and 
claims involving, or generated by, the United States Central Command 
(CENTCOM) and the United States Special Operations Command (SOCOM), that 
arise in countries not specifically assigned to the Departments of the 
Army and the Navy.
    (c) U.S. forces afloat cases under $2,500.00. Notwithstanding the 
single service assignments above, the Navy may settle claims under 
$2,500.00 caused by personnel not acting within the scope of employment 
and arising in foreign ports visited by U.S. forces afloat and may, 
subject to the concurrence of the authorities of the receiving state 
concerned, process such claims.

[57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53420, Sept. 19, 2007]

[[Page 148]]



Sec. Sec.  750.14-750.20  [Reserved]



                    Subpart B_Federal Tort Claims Act



Sec.  750.21  Scope of subpart B.

    This subpart provides information regarding the administrative 
processing and consideration of claims against the United States under 
the FTCA. The FTCA is a limited waiver of sovereign immunity. Under the 
FTCA, an individual can seek money damages for personal injury, death, 
or property damage caused by the negligent or wrongful act or omission 
of a Federal employee acting within the scope of employment. The FTCA 
also provides for compensation for injuries caused by certain 
intentional, wrongful conduct. The liability of the United States is 
determined in accordance with the law of the State where the act or 
omission occured.



Sec.  750.22  Exclusiveness of remedy.

    (a) The Federal Employees Liability Reform and Tort Compensation Act 
of 1988, Public Law 100-694 (amending 28 U.S.C. 2679(b) and 2679(d)), 
provides that the exclusive remedy for damage or loss of property, or 
personal injury or death arising from the negligent or wrongful acts or 
omissions of all Federal employees, acting within the scope of their 
employment, will be against the United States. This immunity from 
personal liability does not extend to allegations of constitutional 
torts, nor to allegations of violations of statutes specifically 
authorizing suits against individuals.
    (b) Other statutory provisions create immunity from personal 
liability for specific categories of Federal employees whose conduct, 
within the scope of their employment, gives rise to claims against the 
Government. Department of Defense health care providers are specifically 
protected by 10 U.S.C. 1089, the Gonzalez Act. DOD attorneys are 
specifically protected by 10 U.S.C. 1054.



Sec.  750.23  Definitions.

    (a) Negligent conduct. Generally, negligence is the failure to 
exercise that degree of care, skill, or diligence a reasonable person 
would exercise under similar circumstances. Negligent conduct can result 
from either an act or a failure to act. The law of the place where the 
conduct occurred will determine whether a cause of action lies against 
the Government. 28 U.S.C. 1346(b) and 2674.
    (b) Intentional torts. Although any employee who commits an 
intentional tort is normally considered to be acting outside the scope 
of employment, the FTCA does allow claimants to seek compensation for 
injuries arising out of the intentional torts of assault, battery, false 
imprisonment, false arrest, abuse of process, and malicious prosecution, 
if committed by a Federal investigative or law enforcement officer. An 
``investigative or law enforcement officer'' is any officer of the 
United States empowered by law to execute searches, to seize evidence, 
or to make arrests for violations of Federal law. 28 U.S.C. 2680(h).
    (c) Government employees--(1) General. ``Employee of the 
Government,'' defined at 28 U.S.C. 2671, includes officers or employees 
of any Federal agency, members of the U.S. military or naval forces, and 
persons acting on behalf of a Federal agency in an official capacity.
    (2) Government contractors. Government (also referred to as 
independent) contractors, are those individuals or businesses who enter 
into contracts with the United States to provide goods or services. 
Because the definition of ``Federal agency,'' found at 28 U.S.C. 2671, 
specifically excludes ``any contractor with the United States,'' the 
United States is generally not liable for the negligence of Government 
contractors. There are, however, three limited exceptions to the general 
rule, under which a cause of action against the United States has been 
found to exist in some jurisdictions. They are:
    (i) Where the thing or service contracted for is deemed to be an 
``inherently dangerous activity'';
    (ii) where a nondelegable duty in the employer has been created by 
law; or,
    (iii) where the employer retains control over certain aspects of the 
contract and fails to discharge that control in a reasonable manner.

[[Page 149]]

    (3) Employees of nonappropriated-fund activities. Nonappropriated-
fund activities are entities established and operated for the benefit of 
military members and their dependents, and have been judicially 
determined to be ``arms'' of the Federal government. These entities 
operate from self-generated funds, rather than from funds appropriated 
by Congress. Examples include Navy and Marine Corps Exchanges, officer 
or enlisted clubs, and recreational services activities. A claim arising 
out of the act or omission of an employee of a nonappropriated-fund 
activity not located in a foreign country, acting within the scope of 
employment, is an act or omission committed by a Federal employee and 
will be handled in accordance with the FTCA.
    (d) Scope of employment. ``Scope of employment'' is defined by the 
law of respondeat superior (master and servant) of the place where the 
act or omission occurred. Although 28 U.S.C. 2671 states that acting 
within the scope of employment means acting in the line of duty, the 
converse is not always true. For administrative purposes, a Government 
employee may be found ``in the line of duty,'' yet not meet the criteria 
for a finding of ``within the scope of employment'' under the law of the 
place where the act or omission occurred.



Sec.  750.24  Statutory/regulatory authority.

    The statutory provisions of the Federal Tort Claims Act (FTCA) are 
at 28 U.S.C. 1346(b), 2671-2672, and 2674-2680. The Attorney General of 
the United States has issued regulations on administrative claims filed 
under the FTCA at 28 CFR part 14. If the provisions of this section and 
the Attorney General's regulations conflict, the Attorney General's 
regulations prevail.



Sec.  750.25  Scope of liability.

    (a) Territorial limitations. The FTCA does not apply to any claim 
arising in a foreign country. 28 U.S.C. 2680(k) and Beattie v. United 
States, 756 F.2d 91 (D.C. Cir. 1984).
    (b) Exclusions from liability. Statutes and case law have 
established categories of exclusions from FTCA liability.
    (1) Statutory exclusions. Section 2680 of Title 28 lists claims not 
cognizable under the FTCA. They include:
    (i) Claims based on the exercise or performance of, or the failure 
to exercise or perform, a discretionary Government function;
    (ii) Admiralty claims under 46 U.S.C. 741-752 or 781-790. Claims 
under the Death on the High Seas Act (46 U.S.C. 761), however, are 
cognizable under the FTCA. All admiralty claims will be referred to the 
Judge Advocate General for adjudication. Admiralty claims against the 
Navy shall be processed under part 752 of this Chapter;
    (iii) Claims arising from intentional torts, except those referred 
to in Sec.  750.23(b);
    (iv) Claims arising from the combat activities of the military or 
naval forces, or the Coast Guard, during time of war.
    (2) Additional claims not payable. Although not expressly 
statutorily excepted, the following types of claims shall not be paid 
under the FTCA:
    (i) A claim for personal injury or death of a member of the armed 
forces of the United States incurred incident to military service or 
duty. Compare United States v. Johnson, 481 U.S. 681 (1987); Feres v. 
United States, 340 U.S. 135 (1950) with Brooks v. United States, 337 
U.S. 49 (1949);
    (ii) Any claim by military personnel or civilian employees of the 
Navy, paid from appropriated funds, for personal property damage 
occurring incident to service or Federal employment, cognizable under 31 
U.S.C. 3721 and the applicable Personnel Claims Regulations, 32 CFR part 
751;
    (iii) Any claim by employees of nonappropriated-fund activities for 
personal property damage occurring incident to Federal employment. These 
claims will be processed as indicated in 32 CFR part 756;
    (iv) Any claim for personal injury or death covered by the Federal 
Employees' Compensation Act (5 U.S.C. 8116c);
    (v) Any claim for personal injury or death covered by the Longshore 
and Harbor Workers' Compensation Act (33 U.S.C. 905 and 5 U.S.C. 8171);

[[Page 150]]

    (vi) That portion of any claim for personal injury or property 
damage, caused by the negligence or fault of a Government contractor, to 
the extent such contractor may have assumed liability under the terms of 
the contract (see United States v. Seckinger, 397 U.S. 203 (1969) and 
Sec.  750.23(c)(2);
    (vii) Any claim against the Department of the Navy by another 
Federal agency. Property belonging to the Government is not owned by any 
one department of the Government. The Government does not reimburse 
itself for the loss of its own property except where specifically 
provided for by law; and
    (viii) Any claim for damage to a vehicle rented pursuant to travel 
orders.



Sec.  750.26  The administrative claim.

    (a) Proper claimant. See Sec.  750.5 of this part.
    (b) Claim presented by agent or legal representative. A claim filed 
by an agent or legal representative will be filed in the name of the 
claimant; be signed by the agent or legal representative; show the title 
or legal capacity of the person signing; and be accompanied by evidence 
of the individual's authority to file a claim on behalf of the claimant.
    (c) Proper claim. A claim is a notice in writing to the appropriate 
Federal agency of an incident giving rise to Government liability under 
the FTCA. It must include a demand for money damages in a definite sum 
for property damage, personal injury, or death alleged to have occurred 
by reason of the incident. The Attorney General's regulations specify 
that the claim be filed on a Standard Form 95 or other written 
notification of the incident. If a letter or other written notification 
is used, it is essential that it set forth the same basic information 
required by Standard Form 95. Failure to do so may result in a 
determination that the administrative claim is incomplete. A suit may be 
dismissed on the ground of lack of subject matter jurisdiction based on 
claimant's failure to present a proper claim as required by 28 U.S.C. 
2675(a).
    (d) Presentment. A claim is deemed presented when received by the 
Navy in proper form. A claim against another agency, mistakenly 
addressed to or filed with the Navy shall be transferred to the 
appropriate agency, if ascertainable, or returned to the claimant. A 
claimant presenting identical claims with more than one agency should 
identify every agency to which the claim is submitted on every claim 
form presented. Claims officers shall coordinate with all other affected 
agencies and ensure a lead agency is designated. 28 CFR 14.2.



Sec.  750.27  Information and supporting documentation.

    (a) Proper documentation. Depending on the type of claim, claimants 
may be required to submit information, as follows:
    (1) Death. (i) An authenticated death certificate or other competent 
evidence showing cause of death, date of death, and age of the decedent;
    (ii) Decedent's employment or occupation at time of death, including 
monthly or yearly earnings and the duration of last employment;
    (iii) Full names, addresses, birth dates, relationship, and marital 
status of the decedent's survivors, including identification of 
survivors dependent for support upon decedent at the time of death;
    (iv) Degree of support provided by decedent to each survivor at time 
of death;
    (v) Decedent's general physical and mental condition before death;
    (vi) Itemized bills for medical and burial expenses;
    (vii) If damages for pain and suffering are claimed, a physician's 
detailed statement specifying the injuries suffered, duration of pain 
and suffering, any drugs administered for pain, and the decedent's 
physical condition during the interval between injury and death; and,
    (viii) Any other evidence or information which may affect the 
liability of the United States.
    (2) Personal injury. (i) A written report by attending physician or 
dentist on the nature and extent of the injury, nature and extent of 
treatment, any degree of temporary or permanent disability, the 
prognosis, period of hospitalization, any diminished earning capacity. 
In addition, the claimant

[[Page 151]]

may be required to submit to a physical or mental examination by a 
physician employed by any Federal agency. Upon written request, a copy 
of the report of the examining physician shall be provided;
    (ii) Itemized bills for medical, dental, and hospital expenses 
incurred, or itemized receipts of payments of such expenses;
    (iii) A statement of expected expenses for future treatment;
    (iv) If a claim is made for lost wages, a written statement from the 
employer itemizing actual time and wages lost;
    (v) If a claim is made for lost self-employed income, documentary 
evidence showing the amount of earnings actually lost; and
    (vi) Any other evidence or information which may affect the 
liability of the United States for the personal injury or the damages 
claimed.
    (3) Property damage. (i) Proof of ownership;
    (ii) A detailed statement of the amount claimed for each item of 
property;
    (iii) An itemized receipt of payment for necessary repairs or 
itemized written estimates of the cost of repairs;
    (iv) A statement listing date of purchase, purchase price, and 
salvage value where repair is not economical; and
    (v) Any other evidence or information which may affect the liability 
of the United States for the property damage claimed.
    (b) Failure to submit necessary documentation. If claimant fails to 
provide sufficient supporting documentation, claimant should be notified 
of the deficiency. If after notice of the deficiency, including 
reference to 28 CFR 14.4, the information is still not supplied, two 
follow-up requests should be sent by certified mail, return receipt 
requested. If after a reasonable period of time the information is still 
not provided, the appropriate adjudicating authority should deny the 
claim.

[57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53420, Sept. 19, 2007]



Sec.  750.28  Amendment of the claim.

    A proper claim may be amended at any time prior to settlement, 
denial, or the filing of suit. An amendment must be submitted in writing 
and must be signed by the claimant or duly authorized agent or legal 
representative. No finally denied claim for which reconsideration has 
not been requested under Sec.  750.31 may be amended.



Sec.  750.29  Investigation and examination.

    Subpart A of this part requires an investigation for every incident 
that may result in a claim against or in favor of the United States. 
Where a previously unanticipated claim is filed against the Government 
and an investigation has not already been conducted, the appropriate 
claims officer shall immediately request an investigation. See subpart A 
of this part for specific action required by an adjudicating authority.



Sec.  750.30  Denial of the claim.

    Final denial of an administrative claim shall be in writing and 
shall be sent to the claimant, his duly authorized agent or legal 
representative by certified or registered mail, with return receipt 
requested. The notification of final denial shall include the reasons 
for the denial. The notification shall include a statement informing the 
claimant of his right to file suit in the appropriate Federal district 
court not later than 6 months after the date of the mailing of the 
notification. 28 CFR 14.9(a).



Sec.  750.31  Reconsideration.

    (a) Request. Prior to the commencement of suit and prior to the 
expiration of the 6-month period for filing suit, a claimant or his duly 
authorized agent or legal representative may present a request for 
reconsideration to the authority who denied the claim. The request shall 
be in writing and shall state the reasons for the requested 
reconsideration. A request for reconsideration is presented on the date 
it is received by the DON. 28 CFR 14.9(b).
    (b) Proper basis. A request for reconsideration shall set forth 
claimant's reasons for the request, and shall include any supplemental 
supporting evidence or information. Any writing communicating a desire 
for reconsideration that reasonably appears to have been presented 
solely for the purpose of

[[Page 152]]

extending the statutory period for filing suit, shall not be treated as 
a request for reconsideration. Claimant or claimant's authorized 
representative shall be notified promptly that the writing is not 
considered a proper request for reconsideration.
    (c) Effect of presentment of request. The presentment of a proper 
request for reconsideration starts a new 6-month period for the DON to 
act on the request to reconsider. The claimant may not file suit until 
the expiration of the new 6-month period, or until after the date of 
mailing of the final denial of the request. Final denial of a request 
for reconsideration shall be accomplished in the manner prescribed in 
Sec.  750.30. 28 CFR 14.9(b).



Sec.  750.32  Suits under the Federal Tort Claims Act (FTCA).

    (a) Venue. Venue is proper only in the judicial district where the 
plaintiff resides or where the act or omission complained of occurred. 
28 U.S.C. 1402.
    (b) Jury trial. There is no right to trial by jury in suits brought 
under the FTCA. 28 U.S.C. 2402.
    (c) Settlement. The Attorney General of the United States, or 
designee, may arbitrate, compromise, or settle any action filed under 
the FTCA. 28 U.S.C. 2677.
    (d) Litigation support--(1) Who provides. The adjudicating authority 
holding a claim at the time suit is filed shall be responsible for 
providing necessary assistance to the Department of Justice official or 
U.S. Attorney responsible for defending the Government's interests.
    (2) Litigation report. A litigation report, including a legal 
memorandum emphasizing anticipated issues during litigation, shall be 
furnished to the appropriate Department of Justice official or U.S. 
Attorney.
    (3) Pretrial discovery. Complete and timely responses to discovery 
requests are vital to the effective defense of tort litigation. Subject 
to existing personnel and resources available, appropriate assistance 
shall be provided. The Judge Advocate General should be notified 
promptly when special problems are encountered in providing the 
requested assistance.
    (4) Preservation of evidence. Tort litigation is often accomplished 
over an extended period of time. Every effort shall be made to preserve 
files, documents, and other tangible evidence that may bear on 
litigation. Destruction of such evidence, even in accordance with 
routine operating procedures, undermines defense of a case.



Sec.  750.33  Damages.

    (a) Generally. The measure of damages is determined by the law of 
the place where the act or omission occurred. When there is a conflict 
between local and applicable Federal law, the latter governs. 28 U.S.C. 
1346(b).
    (b) Limitations on liability. The United States is not liable for 
interest prior to judgment or for punitive damages. In a death case, if 
the place where the act or omission complained of occurred provides for 
only punitive damages, the United States will be liable in lieu thereof, 
for actual or compensatory damages. 28 U.S.C. 2674.
    (c) Setoff. The United States is not obligated to pay twice for the 
same injury. Claimants under the FTCA may have received Government 
benefits or services as the result of the alleged tort. The cost of 
these services or benefits shall be considered in arriving at any award 
of damages. For example, the cost of medical or hospital services 
furnished at Government expense, including TRICARE payments, shall be 
considered. Additionally, benefits or services received under the 
Veterans Act (38 U.S.C. 101-800) must be considered. Brooks v. United 
States, 337 U.S. 49 (1949).
    (d) Suit. Any damage award in a suit brought under the FTCA is 
limited to the amount claimed administratively unless based on newly 
discovered evidence. 28 U.S.C. 2675(b). Plaintiff must prove the 
increased demand is based on facts not reasonably discoverable at the 
time of the presentment of the claim or on intervening facts relating to 
the amount of the claim.

[57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53420, Sept. 19, 2007]



Sec.  750.34  Settlement and payment.

    (a) Settlement agreement--(1) When required. A settlement agreement, 
signed by the claimant, must be received prior

[[Page 153]]

to payment in every case in which the claim is either:
    (i) Settled for less than the full amount claimed, or
    (ii) The claim was not presented on a Standard Form 95.
    (2) Contents. Every settlement agreement must contain language 
indicating payment is in full and final settlement of the applicable 
claim. Each settlement agreement shall contain language indicating 
acceptance of the settlement amount by the claimant, or his agent or 
legal representative, shall be final and conclusive on the claimant, or 
his agent or legal representative, and any other person on whose behalf 
or for whose benefit the claim has been presented, and shall constitute 
a complete release of any claim against the United States and against 
any employee of the Government whose conduct gave rise to the claim, by 
reason of the same subject matter. 28 CFR 14.10(b). In cases where 
partial payment will benefit both claimant and the Government, such as 
payment for property damage to an automobile, the settlement agreement 
shall be tailored to reflect the terms of the partial settlement. All 
settlement agreements shall contain a recitation of the applicable 
statutory limitation of attorneys fees. 28 U.S.C. 2678.
    (b) DON role in settlement negotiations involving the U.S. Attorney 
or DOJ. Agency concurrence is generally sought by the Department of 
Justice or U.S. Attorney's office prior to settlement of suits involving 
the DON. Requests for concurrence in settlement proposals shall be 
referred to the appropriate DON adjudicating authority with primary 
responsibility for monitoring the claim. Adjudicating authorities shall 
consult with the Judge Advocate General concerning proposed settlements 
beyond their adjudicating authority.
    (c) Payment of the claim--(1) Statutory authority. Pursuant to 28 
U.S.C. 2672 and in accordance with 28 CFR 14.6(a), the Secretary of the 
Navy or designee, acting on behalf of the United States may compromise 
or settle any claim filed against the Navy under the FTCA, provided any 
award, compromise, or settlement by the Navy in excess of $200,000.00 
may be effected only with the prior written approval of the Attorney 
General or designee. Title 28 CFR 14.6 requires consultation with the 
Department of Justice prior to compromise or settlement of a claim in 
any amount when:
    (i) A new precedent or a new point of law is involved;
    (ii) A question of policy is or may be involved;
    (iii) The United States is or may be entitled to indemnity or 
contribution from a third party and the agency is unable to adjust the 
third party claim;
    (iv) The compromise of a particular claim, as a practical matter, 
will or may control the disposition of a related claim in which the 
amount to be paid may exceed $100,000.00; or
    (v) The DON is informed or is otherwise aware that the United States 
or an employee, agent, or cost-plus contractor of the United States is 
involved in litigation based on a claim arising out of the same incident 
or transaction.
    (2) Specific delegation and designation--(i) Payment authority.

       Delegated and Designated Authority Federal Tort Claims Act

Judge Advocate General--$200,000.00
Deputy Judge Advocate General--$200,000.00
Assistant Judge Advocate General (General Law)--$200,000.00
Deputy Assistant Judge Advocate General (Claims and Tort Litigation) and 
Deputy Division Director--$200,000.00
Head, Tort Claims Branch (Claims and Tort Litigation)--$200,000.00


Any payment of over $200,000.00 must be approved by DoJ. The Judge 
Advocate General, the Deputy Judge Advocate General, the Assistant Judge 
Advocate General (General Law), Deputy Assistant Judge Advocate General 
(Claims and Tort Litigation), and the Head, Tort Claims Branch (Claims 
and Tort Litigation) may deny Federal Tort Claims in any amount.
    (ii) Adjudicating authority. The Department of the Navy's tort 
claims adjudication function is consolidated as the Tort Claims Unit 
Norfolk (TCU) located at Naval Station, Norfolk, VA. The address is as 
follows: Department

[[Page 154]]

of the Navy, Office of the Judge Advocate General, Tort Claims Unit 
Norfolk, 9620 Maryland Avenue Suite 100, Norfolk, VA 23511-2989.
    (3) Funding. Claims approved for $2,500.00 or less are paid from DON 
appropriations. Claims approved in excess of $2,500.00 are paid from the 
judgment fund and must be forwarded to the United States General 
Accounting Office (GAO) for payment. 28 CFR 14.10(a). Claims arising out 
of the operation of nonappropriated-fund activities and approved for 
payment shall be forwarded to the appropriate nonappropriated-fund 
activity for payment.

[57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53420, Sept. 19, 2007]



Sec.  750.35  Attorney's fees.

    Attorney's fees are limited to 20 percent of any compromise or 
settlement of an administrative claim, and are limited to 25 percent of 
any judgment rendered in favor of a plaintiff, or of any settlement 
accomplished after suit is filed. These amounts are to be paid out of 
the amount awarded and not in addition to the award. 28 U.S.C. 2678.



Sec.  750.36  Time limitations.

    (a) Administrative claim. Every claim filed against the United 
States under the FTCA must be presented in writing within 2 years after 
the claim accrues. 28 U.S.C. 2401(b). Federal law determines the date of 
accrual. A claim accrues when the claimant discovers or reasonably 
should have discovered the existence of the act giving rise to the 
claim. In computing the statutory time period, the day of the incident 
is excluded and the day the claim was presented included.
    (b) Amendments. Upon timely filing of an amendment to a pending 
claim, the DON shall have 6 months to make a final disposition of the 
claim as amended, and the claimant's option to file suit under 28 U.S.C. 
2675(a) shall not accrue until 6 months after the presentment of an 
amendment. 28 CFR 14.2(c).
    (c) Suits. A civil action is barred unless suit is filed against the 
United States not later than 6 months after the date of mailing of 
notice of final denial of the claim. 28 U.S.C. 2401(b). The failure of 
the DON to make final disposition of a claim within 6 months after it is 
presented shall, at the option of the claimant any time thereafter, be 
deemed a final denial of the claim. 28 U.S.C. 2675(a).



Sec. Sec.  750.37-750.40  [Reserved]



                      Subpart C_Military Claims Act



Sec.  750.41  Scope of subpart C.

    This section prescribes the substantive bases and special procedural 
requirements for the settlement of claims against the United States for 
death, personal injury, or damage, loss, or destruction of property:
    (a) Caused by military personnel or civilian employees of the 
Department of the Navy (DON) (hereinafter DON personnel). For the 
purposes of this section, DON personnel include all military personnel 
of the Navy and Marine Corps, volunteer workers, and others serving as 
employees of the DON with or without compensation, and members of the 
National Oceanic and Atmospheric Administration or of the Public Health 
Service when serving with the DON. DON personnel does not include DON 
contractors or their employees.
    (b) Incident to noncombat activities of the DON. Claims for personal 
injury or death of a member of the Armed Forces or Coast Guard, or 
civilian officer or employee of the U.S. Government whose injury or 
death is incident to service, however, are not payable.
    (c) Territorial limitation. There is no geographical limitation on 
the application of the MCA, but if a claim arising in a foreign country 
is cognizable under the Foreign Claims Act (10 U.S.C. 2734), the claim 
shall be processed under that statute. See 10 U.S.C. 2733(b)(2).
    (d) Suit. The MCA authorizes the administrative settlement and 
payment of certain claims. The United States has not consented to be 
sued.



Sec.  750.42  Statutory authority.

    10 U.S.C. 2733, as amended, commonly referred to as the Military 
Claims Act (MCA).

[[Page 155]]



Sec.  750.43  Claims payable.

    (a) General. Unless otherwise prescribed, a claim for personal 
injury, death, or damage or loss of real or personal property is payable 
under this provision when:
    (1) Caused by an act or omission determined to be negligent, 
wrongful, or otherwise involving fault of DON personnel acting within 
the scope of their employment; or
    (2) Incident to noncombat activities of the DON. A claim may be 
settled under this provision if it arises from authorized activities 
essentially military in nature, having little parallel in civilian 
pursuits, and in which the U.S. Government has historically assumed a 
broad liability, even if not shown to have been caused by any particular 
act or omission by DON personnel while acting within the scope of their 
employment. Examples include practice firing of missiles and weapons, 
sonic booms, training and field exercises, and maneuvers that include 
operation of aircraft and vehicles, use and occupancy of real estate, 
and movement of combat or other vehicles designed especially for 
military use. Activities incident to combat, whether or not in time of 
war, and use of DON personnel during civil disturbances are excluded.
    (b) Specific claims payable. Claims payable by the DON under Sec.  
750.43(a) (1) and (2) shall include, but not be limited to:
    (1) Registered or insured mail. Claims for damage to, loss, or 
destruction, even if by criminal acts, of registered or insured mail 
while in the possession of DON authorities are payable under the MCA. 
This provision is an exception to the general requirement that 
compensable damage, loss, or destruction of personal property be caused 
by DON personnel while acting within the scope of their employment or 
otherwise incident to noncombat activities of the DON. The maximum award 
to a claimant under this section is limited to that to which the 
claimant would be entitled from the Postal Service under the registry or 
insurance fee paid. The award shall not exceed the cost of the item to 
the claimant regardless of the fees paid. Claimant may be reimbursed for 
the postage and registry or insurance fees.
    (2) Property bailed to the DON. Claims for damage to or loss of 
personal property bailed to the DON, under an express or implied 
agreement are payable under the MCA, even though legally enforceable 
against the U.S. Government as contract claims, unless by express 
agreement the bailor has assumed the risk of damage, loss, or 
destruction. Claims filed under this paragraph may, if in the best 
interest of the U.S. Government, be referred to and processed by the 
Office of the General Counsel, DON, as contract claims.
    (3) Real property. Claims for damage to real property incident to 
the use and occupancy by the DON, whether under an express or implied 
lease or otherwise, are payable under the MCA even though legally 
enforceable against the DON as contract claims. Claims filed under this 
paragraph may, if in the best interest of the U.S. Government, be 
referred to and processed by the Office of the General Counsel, DON, as 
contract claims.
    (4) Property of U.S. military personnel. Claims of U.S. military 
personnel for property lost, damaged, or destroyed under conditions in 
Sec.  750.43(a) (1) and (2) occurring on a military installation, not 
payable under the Military Personnel and Civilian Employees' Claims Act, 
are payable under the MCA.
    (5) Health care and Legal Assistance Providers. Claims arising from 
the personal liability of DON health care and legal assistance personnel 
for costs, settlements, or judgments for negligent acts or omissions 
while acting within the scope of assigned duties or employment are 
payable under the MCA. See Sec.  750.54.



Sec.  750.44  Claims not payable.

    (a) Any claim for damage, loss, destruction, injury, or death which 
was proximately caused, in whole or in part, by any negligence or 
wrongful act on the part of the claimant, or his agent or employee, 
unless the law of the place where the act or omission complained of 
occurred would permit recovery from a private individual under like 
circumstances, and then only to the extent permitted by the law.
    (b) Any claim resulting from action by the enemy or resulting 
directly or

[[Page 156]]

indirectly from any act by armed forces engaged in combat.
    (c) Any claim for reimbursement of medical, hospital, or burial 
expenses to the extent already paid by the U.S. Government.
    (d) Any claim cognizable under:
    (1) Military Personnel and Civilian Employees' Claims Act, as 
amended. 31 U.S.C. 3721.
    (2) Foreign Claims Act. 10 U.S.C. 2734.
    (3) 10 U.S.C. 7622, relating to admiralty claims. See part 752 of 
this Chapter.
    (4) Federal Tort Claims Act. 28 U.S.C. 2671, 2672, and 2674-2680.
    (5) International Agreements Claims Act. 10 U.S.C. 2734a and 2734b.
    (6) Federal Employees' Compensation Act. 5 U.S.C. 8101-8150.
    (7) Longshore and Harbor Workers' Compensation Act. 33 U.S.C. 901-
950.
    (e) Any claim for damage to or loss or destruction of real or 
personal property founded in written contract [except as provided in 
Sec.  750.43(b) (2) and (3)].
    (f) Any claim for rent of real or personal property [except as 
provided in Sec.  750.43(b) (2) and (3)].
    (g) Any claim involving infringement of patents.
    (h) Any claim for damage, loss, or destruction of mail prior to 
delivery by the Postal Service to authorized DON personnel or occurring 
due to the fault of, or while in the hands of, bonded personnel.
    (i) Any claim by a national, or corporation controlled by a 
national, of a country in armed conflict with the United States, or an 
ally of such country, unless the claimant is determined to be friendly 
to the United States.
    (j) Any claim for personal injury or death of a member of the Armed 
Forces or civilian employee incident to his service. 10 U.S.C. 
2733(b)(3).
    (k) Any claim for damage to or loss of bailed property when bailor 
specifically assumes such risk.
    (l) Any claim for taking private real property by a continuing 
trespass or by technical trespass such as overflights of aircraft.
    (m) Any claim based solely on compassionate grounds.
    (n) Any claim to which the exceptions in 28 U.S.C. 2680 apply.

[57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53420, Sept. 19, 2007]



Sec.  750.45  Filing claim.

    (a) Who may file. Under the MCA, specifically, the following are 
proper claimants:
    (1) U.S. citizens and inhabitants.
    (2) U.S. military personnel and civilian employees, except not for 
personal injury or death incident to service.
    (3) Persons in foreign countries who are not inhabitants.
    (4) States and their political subdivisions (including agencies).
    (5) Prisoners of war for personal property, but not personal injury.
    (6) Subrogees, to the extent they paid the claim.
    (b) Who may not file. (1) Inhabitants of foreign nations for loss or 
injury occurring in the country they inhabit.
    (2) U.S. Government agencies and departments.
    (c) When to file/statute of limitations. Claims against the DON must 
be presented in writing within 2 years after they accrue. In computing 
the 2 year period, the day the claim accrues is excluded and the day the 
claim is presented is included. If the incident occurs in time of war or 
armed conflict, however, or if war or armed conflict intervenes within 2 
years after its occurrence, an MCA claim, on good cause shown, may be 
presented within 2 years after the war or armed conflict is terminated. 
For the purposes of the MCA, the date of termination of the war or armed 
conflict is the date established by concurrent resolution of Congress or 
by the President. See 10 U.S.C. 2733(b)(1).
    (d) Where to file. The claim shall be submitted by the claimant to 
the commanding officer of the naval activity involved, if it is known. 
Otherwise, it shall be submitted to the commanding officer of any naval 
activity, preferably the one within which, or nearest to which, the 
incident occurred, or to the Office of the Judge Advocate General of the 
Navy, (Claims and Tort Litigation), 1322 Patterson Avenue, SE., Suite 
3000, Washington Navy Yard, DC 20375-5066.

[[Page 157]]

    (e) Claim form. A claim is correct in form if it constitutes written 
notification of an incident, signed by the claimant or a duly authorized 
agent or legal representative, with a claim for money damages in a sum 
certain. A Standard Form 95 is preferred. A claim should be 
substantiated as discussed in section 750.27 of this part. A claim must 
be substantiated as required by this part in order to be paid. See 10 
U.S.C. 2733(b)(5).
    (f) Amendment of claim. A proper claim may be amended by the 
claimant at any time prior to final denial or payment of the claim. An 
amendment shall be submitted in writing and signed by the claimant or a 
duly authorized agent or legal representative.
    (g) Payment. Claims approved for payment shall be forwarded to such 
disbursing officer as may be designated by the Comptroller of the Navy 
for payment from appropriations designated for that purpose. If the 
Secretary of the Navy considers that a claim in excess of $100,000.00 is 
meritorious and would otherwise be covered by 10 U.S.C. 2733 and Sec.  
750.43, he may make a partial payment of $100,000.00 and refer the 
excess to the General Accounting Office for payment from appropriations 
provided therefore.

[57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53420, Sept. 19, 2007]



Sec.  750.46  Applicable law.

    (a) Claims arising within the United States, Territories, 
Commonwealth, and Possessions. The law of the place where the act or 
omission occurred will be applied in determining liability and the 
effect of contributory or comparative negligence on claimant's right of 
recovery.
    (b) Claims within foreign countries. (1) Where the claim is for 
personal injury, death, or damage to or loss or destruction of real or 
personal property caused by an act or omission determined to be 
negligent, wrongful, or otherwise involving fault of DON personnel 
acting within the scope of their employment, liability of the United 
States will be assessed under general principles of tort law common to 
the majority of American jurisdictions.
    (2) Apply the law of the foreign country governing the legal effect 
of contributory or comparative negligence by the claimant to determine 
the relative merits of the claim. If there is no foreign law on 
contributory or comparative negligence, apply traditional rules of 
contributory negligence. Apply foreign rules and regulations on 
operation of motor vehicles (rules of the road) to the extent those 
rules are not specifically superseded or preempted by U.S. Armed Forces 
traffic regulations.
    (c) Principles applicable to all MCA claims. (1) ``Scope of 
employment'' is determined in accordance with Federal law. Reported FTCA 
cases provide guidance on this determination;
    (2) Claims for emotional distress will be considered only from the 
injured person or members of the injured person's immediate family. 
Claims from the injured person's immediate ``zone of danger'' (i.e., 
immediate vicinity of the incident) and the claimant substantiates the 
claim with proof of the physical manifestation(s) of the emotional 
distress; and
    (3) Claims under the MCA do not include the principles of absolute 
liability and punitive damages.
    (d) Clarification of terms. Federal law determines the meaning and 
construction of the MCA.

[57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53420, Sept. 19, 2007]



Sec.  750.47  Measure of damages for property claims.

    Determine the measure of damages in property claims arising in the 
United States or its territories, commonwealth, or possessions under the 
law of the place where the incident occurred. Determine the measure of 
damages in property claims arising overseas under general principles of 
American tort law, stated as follows:
    (a) If the property has been or can be economically repaired, the 
measure of damages shall be the actual or estimated net cost of the 
repairs necessary to substantially restore the property to the condition 
that existed immediately prior to the incident. Damages shall not exceed 
the value of the property immediately prior to the incident less the 
value thereof immediately after the incident. To determine the actual or 
estimated net cost of repairs, the

[[Page 158]]

value of any salvaged parts or materials and the amount of any net 
appreciation in value effected through the repair shall be deducted from 
the actual or estimated gross cost of repairs. The amount of any net 
depreciation in the value of the property shall be added to such gross 
cost of repairs, if such adjustments are sufficiently substantial in 
amount to warrant consideration. Estimates of the cost of repairs shall 
be based upon the lower or lowest of two or more competitive bids, or 
upon statements or estimates by one or more competent and disinterested 
persons, preferably reputable dealers or officials familiar with the 
type of property damaged, lost, or destroyed.
    (b) If the property cannot be economically repaired, the measure of 
damages shall be the value of the property immediately prior to the 
incident less the value immediately after the incident. Estimates of 
value shall be made, if possible, by one or more competent and 
disinterested persons, preferably reputable dealers or officials 
familiar with the type of property damaged, lost, or destroyed.
    (c) Loss of use of damaged property which is economically repairable 
may, if claimed, be included as an additional element of damage to the 
extent of the reasonable expense actually incurred for appropriate 
substitute property, for such period reasonably necessary for repairs, 
as long as idle property of the claimant was not employed as a 
substitute. When substitute property is not obtainable, other competent 
evidence such as rental value, if not speculative or remote, may be 
considered. When substitute property is reasonably available but not 
obtained and used by the claimant, loss of use is normally not payable.



Sec.  750.48  Measure of damages in injury or death cases.

    (a) Where an injury or death arises within the United States or its 
territories, commonwealth, or possessions, determine the measure of 
damages under the law of the location where the injury arises.
    (b) Where an injury or death arises in a foreign country and is 
otherwise cognizable and meritorious under this provision, damages will 
be determined in accordance with general principles of American tort 
law. The following is provided as guidance.
    (1) Measure of damages for overseas personal injury claims. 
Allowable compensation includes reasonable medical and hospital expenses 
necessarily incurred, compensation for lost earnings and services, 
diminution of earning capacity, anticipated medical expenses, physical 
disfigurement, and pain and suffering.
    (2) Wrongful death claims arising in foreign countries. (i) 
Allowable compensation includes that in paragraph (b)(1) of this 
section, burial expenses, loss of support and services, loss of 
companionship, comfort, society, protection, and consortium, and loss of 
training, guidance, education, and nurturing, as applicable.
    (ii) The claim may be presented by or on behalf of the decedent's 
spouse, parent, child, or dependent relative. Claims may be consolidated 
for joint presentation by a representative of some or all of the 
beneficiaries or may be filed by a proper beneficiary individually.



Sec.  750.49  Delegations of adjudicating authority.

    (a) Settlement authority. (1) The Secretary of the Navy may settle 
or deny claims in any amount. The Secretary may pay the first 
$100,000.00 and report the excess to the Comptroller General for payment 
under 31 U.S.C. 1304. See 10 U.S.C. 2733(d).
    (2) The Judge Advocate General has delegated authority to settle 
claims for $100,000.00 or less.
    (3) The Deputy Judge Advocate General, the Assistant Judge Advocate 
General (General Law), the Deputy Assistant Judge Advocate General 
(Claims and Tort Litigation), and Head, Tort Claims Branch (Claims and 
Tort Litigation), have delegated authority to settle claims for 
$25,000.00 or less, and have denial authority in any amount.
    (4) Individuals with settlement authority under paragraph (a)(3) of 
this section may delegate all or part of their settlement authority. 
Such delegation must be in writing.
    (b) Appellate authority. Adjudicating authorities have the same 
authority as

[[Page 159]]

delegated in paragraph (a) of this section to act upon appeals. No 
appellate authority below the Secretary of the Navy may deny an appeal 
of a claim it had previously denied.

[57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53420, Sept. 19, 2007]



Sec.  750.50  Advance payments.

    (a) Scope. This paragraph applies exclusively to the payment of 
amounts not to exceed $100,000.00 under 10 U.S.C. 2736 in advance of 
submission of a claim.
    (b) Statutory authority. Title 10 U.S.C. 2736 authorizes the 
Secretary of the Navy or designee to pay an amount not in excess of 
$100,000.00 in advance of the submission of a claim to or for any 
person, or the legal representative of any person, who was injured or 
killed, or whose property was damaged or lost, as the result of an 
accident for which allowance of a claim is authorized by law. Payment 
under this law is limited to that which would be payable under the MCA 
(10 U.S.C. 2733). Payment of an amount under this law is not an 
admission by the United States of liability for the accident concerned. 
Any amount so paid shall be deducted from any amount that may be allowed 
under any other provision of law to the person or his legal 
representative for injury, death, damage, or loss attributable to the 
accident concerned.
    (c) Officials with authority to make advance payments. (1) The 
Secretary of the Navy has authority to make advance payments up to 
$100,000.00
    (2) The Judge Advocate General has delegated authority to make 
advance payments up to $100,000.00.
    (3) The Deputy Assistant Judge Advocate General (Claims and Tort 
Litigation) and the Head, Tort Claims Branch (Claims and Tort 
Litigation) have delegated authority to make advance payments up to 
$25,000.00.
    (4) Naval Legal Service Office commanding officers and the Officer 
in Charge, U.S. Sending State Office for Italy have delegated authority 
to make advance payments up to $5,000.00.
    (5) Officers in Charge of Naval Legal Service Office Detachments, 
when specifically designated by cognizant Commanding Officers of Naval 
Legal Service Offices; and the Staff Judge Advo-cate at the U.S. Naval 
Station, Panama Canal have delegated authority to make advance payments 
up to $3,000.00.
    (6) Overseas commands with a Judge Advocate General's Corps officer 
or a judge advocate of the Marine Corps attached, have delegated 
authority to make advance payments up to $3,000.00.
    (d) Conditions for advance payments. Prior to making an advance 
payment under 10 U.S.C. 2736, the adjudicating authority shall ascertain 
that:
    (1) The injury, death, damage, or loss would be payable under the 
MCA (10 U.S.C. 2733);
    (2) The payee, insofar as can be determined, would be a proper 
claimant, or is the spouse or next of kin of a proper claimant who is 
incapacitated;
    (3) The provable damages are estimated to exceed the amount to be 
paid;
    (4) There exists an immediate need of the person who suffered the 
injury, damage, or loss, or of his family, or of the family of a person 
who was killed, for food, clothing, shelter, medical, or burial 
expenses, or other necessities, and other resources for such expenses 
are not reasonably available;
    (5) The prospective payee has signed a statement that it is 
understood that payment is not an admission by the Navy or the United 
States of liability for the accident concerned, and that the amount paid 
is not a gratuity but shall constitute an advance against and shall be 
deducted from any amount that may be allowed under any other provision 
of law to the person or his legal representative for injury, death, 
damage, or loss attributable to the accident concerned; and
    (6) No payment under 10 U.S.C. 2736 may be made if the accident 
occurred in a foreign country in which the NATO Status of Forces 
Agreement (4 U.S.T. 1792, TIAS 2846) or other similar agreement is in 
effect and the injury, death, damage, or loss
    (i) Was caused by a member or employee of the DON acting within the 
scope of employment or
    (ii) Occurred ``incident to noncombat activities'' of the DON as 
defined in Sec.  750.43.

[57 FR 4722, Feb. 7, 1992, as amended at 72 FR 53421, Sept. 19, 2007]

[[Page 160]]



Sec.  750.51  Final disposition.

    (a) Claimant to be notified. The adjudicating authority shall notify 
the claimant, in writing, of the action taken on the claim.
    (b) Final denial. A final denial, in whole or in part, of any MCA 
claim shall be in writing and sent to the claimant, or his attorney or 
legal representative, by certified or registered mail, return receipt 
requested. The notification of denial shall include a statement of the 
reason or reasons for denial and that the claimant may appeal. The 
notification shall also inform the claimant:
    (1) The title of the appellate authority who will act on the appeal 
and that the appeal will be addressed to the adjudicating authority who 
last acted on the claim.
    (2) No form is prescribed for the appeal, but the grounds for appeal 
should be set forth fully.
    (3) The appeal must be submitted within 30 days of receipt by the 
claimant of notice of action on the claim.



Sec.  750.52  Appeal.

    (a) A claim which is disapproved in whole or in part may be appealed 
by the claimant at any time within 30 days after receipt of notification 
of disapproval. An appeal shall be in writing and state the grounds 
relied upon. An appeal is not an adversary proceeding and a hearing is 
not authorized; however, the claimant may obtain and submit any 
additional evidence or written argument for consideration by the 
appellate authority.
    (b) Upon receipt, the adjudicating authority examines the appeal, 
determines whether the appeal complies with this regulation, and reviews 
the claims investigative file to ensure it is complete. The claim, with 
the complete investigative file and a memorandum of law, will be 
forwarded to the appellate authority for action. If the evidence in the 
file, including information submitted by the claimant with the appeal, 
indicates the appeal should be approved, the adjudicating authority may 
treat the appeal as a request for reconsideration.
    (c) Processing of the appeal may be delayed pending further efforts 
by the adjudicating authority to settle the claim. Where the 
adjudicating authority does not reach a final agreement on an appealed 
claim, it shall send the entire claim file to the next higher settlement 
authority, who is the appellate authority for that claim.
    (d) The appellate authority shall notify the claimant in writing of 
the determination on appeal; that such determination constitutes the 
final administrative action on the claim; and there is no right to sue 
under the MCA.



Sec.  750.53  Cross-servicing.

    (a) See Sec.  750.13 or information about single-service claims 
responsibility under DODDIR 5515.8 of 9 June 1990.
    (b) Claims settlement procedures. Where a single service has been 
assigned a country or area claims responsibility, that service will 
settle claims cognizable under the MCA under the regulations of that 
service. The forwarding command shall afford any assistance necessary to 
the appropriate service in the investigation and adjudication of such 
claims.



Sec.  750.54  Payment of costs, settlements, and judgments related
to certain medical or legal malpractice claims.

    (a) General. Requests for reimbursement/indemnification of costs, 
settlements, and judgments cognizable under 10 U.S.C. 1089(f) [for 
personal injury or death caused by any physician, dentist, nurse, 
pharmacist, paramedic, or other supporting personnel (including medical 
and dental technicians, nurse assistants, and therapists)] or 10 U.S.C. 
1054(f) (for damages for injury or loss of property caused by any 
attorney, paralegal, or other member of a legal staff) while acting as 
DON personnel will be paid if:
    (1) The alleged negligent or wrongful actions or omissions arose in 
connection with either providing health care functions or legal services 
and within the scope of employment; and
    (2) Such personnel furnish prompt notification and delivery of all 
process served or received, and other documents, information, and 
assistance as requested; and cooperate in defending the action on the 
merits.
    (b) Requests for Indemnification. All requests for indemnification 
for personal liability of DON personnel for

[[Page 161]]

acts or omissions arising out of assigned duties shall be forwarded to 
the Judge Advocate General for action.



Sec.  750.55  Attorney's fees.

    Attorney's fees not in excess of 20 percent of any settlement may be 
allowed. Attorney's fees so determined are to be paid out of the amount 
awarded and not in addition to the award. These fee limitations shall be 
incorporated in any settlement agreement secured from a claimant.



Sec. Sec.  750.56-750.60  [Reserved]



    Subpart D_Claims Not Cognizable Under Any Other Provision of Law



Sec.  750.61  Scope of subpart D.

    This section provides information on payment of claims against the 
United States, not payable under any other statute, caused by the act or 
omission, negligent, wrongful, or otherwise involving fault, of 
Department of the Navy (DON) military and civilian personnel 
(hereinafter DON personnel) acting outside the scope of their 
employment.



Sec.  750.62  Statutory authority.

    Section 2737 of title 10, United States Code, provides authority for 
the administrative settlement in an amount not to exceed $1,000.00 of 
any claim against the United States not cognizable under any other 
provision of law for damage, loss, or destruction of property or for 
personal injury or death caused by military personnel or a civilian 
official or employee of a military department incident to the use of a 
vehicle of the United States at any place, or any other property of the 
United States on a Government installation. There is no right to sue. 
There are no territorial limitations and the Act has worldwide 
application.



Sec.  750.63  Definitions.

    (a) Civilian official or employee. Any civilian employee of the DON 
paid from appropriated funds at the time of the incident.
    (b) Vehicle. Includes every description of carriage or other 
artificial contrivance used, or capable of being used, as a means of 
transportation on land. See 1 U.S.C. 4.
    (c) Government installation. Any Federal facility having fixed 
boundaries and owned or controlled by the U.S. Government. It includes 
both military bases and nonmilitary installations.



Sec.  750.64  Claim procedures.

    (a) The general provisions of subpart A of this part shall apply in 
determining what is a proper claim, who is a proper claimant, and how a 
claim is to be investigated and processed under 10 U.S.C. 2737 and this 
section.
    (b) A claim is presented when the DON receives from a claimant or 
the claimant's duly authorized agent, written notification of a nonscope 
claim incident accompanied by a demand for money damages in a sum 
certain.
    (c) A claimant may amend a claim at any time prior to final action. 
Amendments will be submitted in writing and signed by the claimant or 
the claimant's duly authorized agent.
    (d) Claims submitted under the provisions of the Federal Tort Claims 
Act (FTCA) or Military Claims Act (MCA) shall be considered 
automatically for an award under this section when payment would 
otherwise be barred because the DON personnel were not in the scope of 
their employment at the time of the incident. If a tender of payment 
under this section is not accepted by the claimant in full satisfaction 
of the claim, no award will be made, and the claim will be denied 
pursuant to the rules applicable to the statute under which it was 
submitted.
    (e) Damages caused by latent defects of ordinary, commercial type, 
Government equipment that were not payable under the MCA, Foreign Claims 
Act, or FTCA are payable under this section.
    (f) Nonscope claims for damages caused by local national DON 
employees overseas are also payable under this section if the injury was 
caused by the use of Government equipment.
    (g) Payment may not be made on a nonscope claim unless the claimant 
accepts the amount offered in full satisfaction of the claim and signs a 
settlement agreement.
    (h) Payment for nonscope claims adjudicated by field commands will 
be affected through their local disbursing

[[Page 162]]

office by use of funds obtained from the Judge Advocate General.
    (i) Claims submitted solely under 10 U.S.C. 2737 shall be promptly 
considered. If a nonscope claim is denied, the claimant shall be 
informed of reasons in writing and advised he may appeal in writing to 
the Secretary of the Navy (Judge Advocate General) provided the appeal 
is received within 30 days of the notice of denial. The provisions of 
Sec.  750.51(b) of subpart C also apply to denials of nonscope claims.



Sec.  750.65  Statute of limitations.

    (a) A claim must be presented in writing within 2 years after it 
accrues. It accrues at the time the claimant discovers, or in the 
exercise of reasonable care should have discovered, the existence of the 
act or omission for which the claim is filed.
    (b) In computing time to determine whether the period of limitation 
has expired, exclude the incident date and include the date the claim 
was presented.



Sec.  750.66  Officials with authority to settle.

    Judge Advocate General; Deputy Judge Advocate General; Assistant 
Judge Advocate General (General Law); Deputy Assistant Judge Advocate 
General (Claims and Tort Litigation); and Head, Tort Claims Branch 
(Claims and Tort Litigation) may settle a nonscope claim.

[72 FR 53421, Sept. 19, 2007]



Sec.  750.67  Scope of liability.

    (a) Subject to the exceptions in Sec.  750.68 of specific claims not 
payable, the United States shall not pay more than $1,000.00 for a claim 
against the United States, not cognizable under any other provision of 
law, except Article 139, UCMJ.
    (b) Article 139, UCMJ, 10 U.S.C. 939, is not preemptive. The 
prohibition in 10 U.S.C. 2737 on paying claims ``not cognizable under 
any other provisions of law'' applies only to law authorizing claims 
against the United States. Article 139 authorizes claims against 
servicemembers. See part 755 of this chapter.



Sec.  750.68  Claims not payable.

    (a) A claim for damage, loss, or destruction of property or the 
personal injury or death caused wholly or partly by a negligent or 
wrongful act of the claimant or his agent or employee.
    (b) A claim, or any part thereof, that is legally recoverable by the 
claimant under an indemnifying law or indemnity contract.
    (c) A subrogated claim.



Sec.  750.69  Measure of damages.

    Generally, the measure-of-damage provisions under the MCA are used 
to determine the extent of recovery for nonscope claims. Compensation is 
computed in accordance with Sec. Sec.  750.47 and 750.48 of subpart C, 
except damages for personal injury or death under this section shall not 
be for more than the cost of reasonable medical, hospital, and burial 
expenses actually incurred and not otherwise furnished or paid for by 
the United States.



PART 751_PERSONNEL CLAIMS REGULATIONS--Table of Contents



               Subpart A_Claims Against the United States

Sec.
751.1 Scope.
751.2 Claims against the United States: In general.
751.3 Authority.
751.4 Construction.
751.5 Definitions.
751.6 Claims payable.
751.7 Claims not payable.
751.8 Adjudicating authorities.
751.9 Presentment of claim.
751.10 Form of claim.
751.11 Investigation of claim.
751.12 Payments.
751.13 Partial payments.
751.14 Reconsideration and appeal.
751.15-751.20 [Reserved]

Subpart B [Reserved]

    Authority: 5 U.S.C. 301, 10 U.S.C. 5013 and 5148; E.O. 12473, 3 CFR, 
1984 Comp., p. 201.

    Source: 57 FR 5055, Feb. 12, 1992, unless otherwise noted.

[[Page 163]]



               Subpart A_Claims Against the United States



Sec.  751.1  Scope.

    This part prescribes procedures and substantive bases for 
administrative settlement of claims against the United States submitted 
by Department of Navy (DoN) personnel and civilian employees of the 
naval establishment.

[72 FR 53422, Sept. 19, 2007]



Sec.  751.2  Claims against the United States: In general.

    (a) Maximum amount payable. The Military and Civilian Employees' 
Personnel Claims Act (Personnel Claims Act, 31 U.S.C. 3701, 3702, and 
3721 (2004)), provides that the maximum amount payable for any loss or 
damage arising from a single incident is limited to $40,000.00. Where 
the loss of or damage to personal property arose from emergency 
evacuations or other extraordinary circumstances, the maximum is 
$100,000.00.
    (b) Additional instructions. The Judge Advocate General of the Navy 
may issue additional instructions or guidance as necessary to give full 
force and effect to this section.
    (c) Preemption. The provisions of this section and the Personnel 
Claims Act are preemptive of other claims regulations. Claims not 
allowable under the Personnel Claims Act may, however, be allowable 
under another claims act.
    (d) Other claims. Claims arising from the operation of a ship's 
store, laundry, dry cleaning facility, tailor shop, or cobbler shop 
should be processed in accordance with NAVSUP P487.

[57 FR 5055, Feb. 12, 1992, as amended at 72 FR 53422, Sept. 19, 2007]



Sec.  751.3  Authority.

    The Personnel Claims Act provides the authority for maximum payment 
up to $40,000, $100,000 in extraordinary circumstances for loss, damage, 
or destruction of personal property of military personnel or civilian 
employees incident to their service. No claim may be paid unless it is 
presented in writing within 2 years of the incident that gave rise to 
the claim.

[72 FR 53422, Sept. 19, 2007]



Sec.  751.4  Construction.

    The provisions of this section and the Personnel Claims Act provide 
limited compensation to service members and civilian employees of the 
DON for loss and damage to personal property incurred incident to 
service. This limited compensation is not a substitute for private 
insurance. Although not every loss may be compensated under the 
Personnel Claims Act, its provisions shall be broadly construed to 
provide reasonable compensation on meritorious claims. Adjudications 
must be based on common sense and the reasoned judgment of the claims 
examiner giving the benefit of realistic doubt to the claimant.



Sec.  751.5  Definitions.

    (a) Proper claimants--(1) Members of the DON. All Navy and Marine 
Corps active duty members and reservists on active duty for training 
under Federal law whether commissioned, enrolled, appointed, or 
enlisted. A retired member may only claim under this Act if loss or 
damage occurred while the claimant was on active duty or in connection 
with the claimant's last movement of personal property incident to 
service.
    (2) Civilian employees of the Navy. Federal employees of the naval 
establishment paid from appropriated funds. This term does not include 
Red Cross employees, USO personnel, and employees of Government 
contractors (including technical representatives).
    (3) Claims by non-appropriated fund employees. Claims by employees 
of Navy and Marine Corps non-appropriated fund activities for loss, 
damage, or destruction of personal property incident to their employment 
will be processed and adjudicated in accordance with this part and 
forwarded to the appropriate local non-appropriated fund activity that 
employs the claimant for payment from non-appropriated funds.
    (4) Separation from service. Separation from the service or 
termination of employment shall not bar former military personnel or 
civilian employees from

[[Page 164]]

filing claims or bar designated personnel from considering, 
ascertaining, adjusting, determining, and authorizing payment of claims 
otherwise falling within the provision of these regulations when such 
claim accrued prior to separation or termination.
    (5) Agent or legal representative. The authorized agent or legal 
representative of a proper claimant may file on behalf of the claimant 
if the agent provides a power of attorney that complies with local law. 
Certain relatives of a deceased proper claimant may file any claim the 
claimant could have filed. The PCA identifies these relatives in order 
of priority. If multiple persons who the statute lists as equals in 
priority file separate claims, the first claim settled extinguishes the 
rights of the other claimants. The estate of a deceased proper party 
claimant is not a proper claimant, nor is an executor or personal 
representative who cannot file as a survivor. The PCA ranks surviving 
relatives in the following order of priority:
    (i) Spouse;
    (ii) Child or children;
    (iii) Father, mother, or both;
    (iv) Brother, sister, or both.
    (b) Improper claimants. Insurers, assignees, subrogees, vendors, 
lienholders, contractors, subcontractors and their employees, and other 
persons not specifically mentioned as proper claimants.
    (c) Unusual occurrence. Serious events and natural disaster not 
expected to take place in the normal course of events and hazards 
outside the normal risks of day-to-day living and working. Two different 
types of incidents may be considered unusual occurrences: those of an 
unusual nature and those of a common nature that occur to an unexpected 
degree of severity. Examples of unusual occurrences include structural 
defects in quarters, faulty plumbing maintenance, termite or rodent 
damage, unusually large size hail, and hazardous health conditions due 
to Government use of toxic chemicals. Examples of occurrences that are 
not unusual include potholes or foreign objects in the road, ice and 
snow sliding off a roof onto a vehicle, and tears, rips, snags, or 
stains on clothing. Claims that electrical or electronic devices were 
damaged by a power surge may be paid when lightning has actually struck 
the claimant's residence or objects outside the residence, such as a 
transformer box, or when power company records or similar evidence shows 
that a particular residence or group of residences was subjected to a 
power surge of unusual intensity. In areas subject to frequent 
thunderstorms or power fluctuations, claimants are expected to use surge 
suppressors, if available, to protect delicate items such as computers 
or videocassette recorders.
    (d) Personal property. Property including but not limited to 
household goods, unaccompanied baggage, privately owned vehicles 
(POV's), mobile homes, and boats.
    (e) Intangible property. Property that has no intrinsic marketable 
value such as bankbooks, checks, promissory notes, non-negotiable stock 
certificates, bonds, baggage checks, insurance policies, money orders, 
and travelers checks.
    (f) Vehicles. Include automobiles, motorcycles, mopeds, jet skis, 
utility trailers, camping trailers, trucks, mounted camper bodies, motor 
homes, boats, boat trailers, bicycles, and aircraft. Mobile homes and 
other property used as dwelling places are not considered vehicles.

[57 FR 5055, Feb. 12, 1992, as amended at 72 FR 53422, Sept. 19, 2007]



Sec.  751.6  Claims payable.

    Claims for loss, damage, or destruction of property may be 
considered as set out below if possession of the property was reasonable 
and useful under the circumstances and the loss did not result from the 
negligence of the claimant. The following are examples of more common 
claims. Not all situations that may result in a claim are covered, but 
the processes described in the examples on how to approach, investigate, 
and adjudicate claims are applicable to all claims filed.
    (a) Transportation and storage losses. (1) Incurred during 
transportation under orders, whether in possession of the Government, 
carrier, storage warehouse, or other Government contractor.

[[Page 165]]

    (2) Incurred during travel under orders, including temporary duty.
    (3) Incurred during travel on a space available basis on a military 
aircraft, vessel, or vehicle.
    (4) Do-it-yourself (DITY) moves. In certain circumstances, loss of 
or damage to property during a DITY move is compensable. Claimants, 
however, are required to substantiate the fact of loss or damage in 
shipment. Claimants who do not prepare inventories have difficulty 
substantiating thefts. In addition, unless evidence shows that something 
outside the claimant's control caused the damage, breakage is presumed 
to be the result of improper packing by the claimant. For example, if a 
claimant's truck is rear-ended by a drunk driver during a DITY move, it 
is out of claimant's control. If the claimant can substantiate that he 
was free from negligence, he can file a claim for damages to his 
household goods.
    (5) Shipment or storage at the claimant's expense. The Government 
will not compensate a claimant for loss or damage that occurs while 
property is being shipped or stored at the claimant's expense, even if 
the Government reimburses the claimant for the shipment or storage fees. 
The reason for this is that there is no contract, called a Government 
Bill of Lading, between the Government and the carrier. In such cases, 
the claimant must claim against the carrier.
    (b) Losses at assigned quarters or other authorized places. Damage 
or loss caused by fire, explosion, theft, vandalism, lightning, flood, 
earthquake, and unusual occurrences is cognizable. Losses due to theft 
may only be paid if the claimant took reasonable measures to safeguard 
the property and theft occurred as a result of a forced entry. Claimants 
are expected to secure windows and doors of their barracks, quarters, 
wall lockers, and other storage areas so that the thief must force an 
entry. If a police report states that there were no signs of forced 
entry and the claimant asserts with absolute certainty that the area was 
in fact secure, the claims examiner must consider whether forced entry 
would have left visible signs. Claimants are also expected to take extra 
measures to protect cash, valuable jewelry, and similar small, easily 
pilferable items. Normally, such items should be kept in a locked 
container within a secured room. It is also advisable that the locked 
container be large enough that it is not convenient for a thief to carry 
off. Bicycles located at quarters or on base must be secured to a fixed 
object. Overseas housing is considered assigned quarters for claimants 
who are not local inhabitants.
    (c) Vehicle losses. (1) Losses incurred while a vehicle is used in 
the performance of a military duty, if such use was authorized or 
directed for the convenience of the Government, provided the travel did 
not include commuting to or from a permanent place of duty, and did not 
arise from mechanical or structural defect of the vehicle. There is no 
requirement that the loss be due to fire, flood, hurricane, or other 
unusual occurrence, or to theft or vandalism. As a general rule, 
however, travel is not considered to be for the convenience of the 
Government unless it was pursuant to written orders authorizing use for 
which the claimant is entitled to reimbursement. The claimant must be 
free from negligence in order to be paid for a collision loss. Travel by 
the claimant to other buildings on the installation is not loss. Travel 
by the claimant to other buildings on the installation is not considered 
to be under orders for the convenience of the Government. Travel off the 
installation without written orders may only be deemed to be for the 
convenience of the Government if the claimant was authorized mileage 
reimbursement for the travel. The issuance of written orders after the 
fact raises the presumption that travel was not authorized for the 
convenience of the Government. The maximum payment authorized by the 
Allowance List-Depreciation Guide (ALDG) still applies to loss of or 
damage to vehicles and contents. This maximum does not apply to DITY 
moves.
    (2) Losses incurred while a vehicle is shipped at Government expense 
are compensable provided the loss or damage did not arise from 
mechanical or structural defect of the vehicle during such shipment. 
Damage caused during shipment at the claimant's expense or while the 
vehicle is being moved to or

[[Page 166]]

from the port by an agent of the claimant is not compensable.
    (3) Losses incurred while a vehicle is located at quarters or other 
authorized place of lodging, including garages, carports, driveways, 
assigned parking spaces, if the loss or damage is caused by fire, flood, 
hurricane, theft, or vandalism, or other unusual occurrence. Vandalism 
is damage intentionally caused. Stray marks caused by children playing, 
falling branches, gravel thrown by other vehicles, or similar 
occurrences are not vandalism. The amount payable on vandalism claims is 
limited to the maximum payment authorized by the ALDG.
    (4) Incurred while a vehicle is located at places other than 
quarters but on a military installation, if the loss or damage is caused 
by fire, flood, hurricane, theft, or vandalism, or other unusual 
occurrence. ``Military installation'' is used broadly to describe any 
fixed land area, wherever situated, controlled, and used by military 
activities or the Department of Defense (DOD). A vehicle properly on the 
installation should be presumed to be used incident to the claimant's 
service. A vehicle that is not properly insured or registered in 
accordance with local regulations is not properly on the installation. A 
vehicle left in a remote area of the installation that is not a 
designated long-term parking area for an undue length of time is 
presumed not to be on the installation incident to service.
    (5) Theft of property stored inside a vehicle. A loss resulting from 
theft of property stored inside a vehicle is compensable if it was 
reasonable for the claimant to have the property in the vehicle and 
neither the claimant nor the claimant's agents were negligent in 
protecting the property. Neither the passenger compartment nor the trunk 
of a vehicle is a proper place for the long-term storage of property 
unconnected with the use of the vehicle. The passenger compartment of a 
vehicle does not provide adequate security, except for very short 
periods of time for articles that are not of high value or easily 
pilferable. Car covers and bras are payable if bolted or secured to the 
vehicle with a wire locking device.
    (6) Rental vehicles. Damage to rental vehicles is considered under 
paragraphs of the Joint Federal Travel Regulations (JFTR), rather than 
as a loss incident to service.
    (d) Mobile homes and contents in shipment. Claims for damage to 
mobile homes and contents in shipment are payable unless the damage was 
caused by structural or mechanical defects or by the claimant's 
negligence in securing the mobile home or packing its contents.
    (e) Borrowed property (including vehicles). Loss or damage to 
borrowed property is compensable if it was borrowed for claimant's or 
dependent's own use. A statement will be provided by the owner of the 
property attesting to the use of the property by the claimant.
    (f) Clothing and articles being worn. Repairs/replacement of 
clothing and articles being worn while on a military installation or in 
the performance of official duty may be paid if loss is caused by fire, 
flood, hurricane, theft, or vandalism, or other unusual occurrence. This 
paragraph shall be broadly construed in favor of compensation, but see 
Sec.  751.5(c) for the definition of unusual occurrence. Articles being 
worn include hearing aids, eyeglasses, and items the claimant is 
carrying, such as a briefcase.
    (g) Personal property held as evidence or confiscated property. If 
property belonging to the victim of a crime is to be held as evidence 
for an extended period of time (in excess of 2 months) and the temporary 
loss of the property will work a grave hardship on the claimant, a claim 
for the loss may be considered for payment. This provision will not be 
used unless every effort has been made to determine whether secondary 
evidence, such as photographs, may be substituted for the item. No 
compensation is allowed to a person suspected of an offense for property 
seized from that same person in the investigation of that offense. This 
also applies to property a foreign government unjustly confiscates or an 
unjust change in a foreign law that forces surrender or abandonment of 
property.
    (h) Theft from possession of claimant. Theft from the person of the 
claimant is reimbursable if the theft occurred by use of force, 
violence, or threat to do

[[Page 167]]

bodily harm, or by snatching or pickpocketing, and at the time of theft 
the claimant was either on a military installation, utilizing a 
recreation facility operated or sponsored by the Department of Defense 
or any agency thereof, or in the performance of official duty. The theft 
must have been reported to appropriate police authorities as soon as 
practicable, and it must have been reasonable for the claimant to have 
had on his person the quality and the quantity of the property allegedly 
stolen.
    (i) Property used for the benefit of the Government. Compensation is 
authorized where property is damaged or lost while being used in the 
performance of Government business at the direction or request of 
superior authority or by reason of military necessity.
    (j) Money deposited for safekeeping, transmittal, or other 
authorized disposition. Compensation is authorized for personal funds 
delivered to and accepted by military and civilian personnel authorized 
by the commanding officer to receive these funds for safekeeping, 
deposit, transmittal, or other authorized disposition, if the funds were 
neither applied as directed by the owner nor returned to the owner.
    (k) Fees--(1) For obtaining certain documents. The fees for 
replacing birth certificates, marriage certificates, college diplomas, 
passports, or similar documents may be allowed if the original or a 
certified copy is lost or destroyed incident to service. In general, 
compensation will only be allowed for replacing documents with a raised 
seal that are official in nature. No compensation will be allowed for 
documents that are representative of value, such as stock certificates, 
or for personal letters or records.
    (2) Estimate fees. An estimate fee is a fixed cost charged by a 
person in the business of repairing property to provide an estimate of 
what it would cost to repair property. An estimate fee in excess of 
$75.00 should be examined with great care to determine whether it is 
reasonable. A person becomes obligated to pay an estimated fee when the 
estimate is prepared. An estimate fee should not be confused with an 
appraisal fee, which is not compensable (see Sec.  751.7(m)). A 
reasonable estimate fee is compensable if it is not going to be credited 
toward the cost of repair. If it is to be credited toward the cost of 
repair, it is not compensable regardless of whether the claimant chooses 
to have the work done. When an estimate fee is claimed, the file must 
reflect whether the fee is to be credited.

[57 FR 5055, Feb. 12, 1992, as amended at 72 FR 53422, Sept. 19, 2007]



Sec.  751.7  Claims not payable.

    (a) Losses in unassigned quarters in the United States. Claims for 
property damaged or lost at quarters occupied by the claimant within the 
United States that are not assigned or otherwise provided by the 
Government.
    (b) Currency or jewelry shipped or stored in baggage. Claims for 
lost currency, shipped or stored in baggage are not payable. Small, 
valuable, highly pilferable items should normally be hand-carried rather 
than shipped, however, if expensive or valuable jewelry or coin 
collections are shipped, a full description of each item of expensive 
jewelry and of any coin or money collection must be listed and described 
on the inventory for its loss to be payable. Each item must also be 
listed as missing at the time of delivery. If not noted at the time of 
delivery, the claimant must satisfactorily explain why.
    (c) Enemy property or war trophies. This includes only property that 
was originally enemy property or a war trophy that passed into the hands 
of a collector and was then purchased by a claimant.
    (d) Unserviceable or Worn-Out Property.
    (e) Loss or damage to property to the extent of any available 
insurance coverage. Except for claims for loss or damage to household 
goods or privately-owned vehicles (POVS) while shipped or stored at 
Government expense, when the property lost, damaged, or destroyed is 
insured, the claimant must make a demand for payment against the 
insurance company under the terms of the policy.
    (f) Inconvenience or loss of use. Expenses arising from late 
delivery of personal property, including but not limited to the expenses 
for food, lodging, and furniture rental, loss of use, interest, carrying 
charges, attorney's

[[Page 168]]

fees, telephone calls, additional costs of transporting claimant or 
family members, time spent in preparation of claim, or cost of insurance 
are not compensable. While such claims do not lie against the 
Government, members should be referred to the Personal Property Office 
for assistance in filing their inconvenience claims against the 
commercial carriers.
    (g) Items of speculative value. Theses, manuscripts, unsold 
paintings, or a similar creative or artistic work done by the claimant, 
friend, or a relative is limited to the cost of materials only. The 
value of such items is speculative. Compensation for a utilitarian 
object made by the claimant, such as a quilt or bookcase, is limited to 
the value of an item of similar quality.
    (h) Loss or damage to property due to negligence of the claimant. 
Negligence is a failure to exercise the degree of care expected under 
the circumstances that is the proximate cause of the loss. Losses due, 
in whole or in part, to the negligence of the claimant, the claimant's 
spouse, child, houseguest, employee, or agent are not compensable.
    (i) Business property. Losses of items acquired for resale or use in 
a private business are not compensable. If property is acquired for both 
business and personal use, compensation will not be allowed if business 
use is substantial, or is the primary purpose for which the item was 
purchased, or if the item is designed for professional use and is not 
normally intended for personal use.
    (j) Motor vehicles. Collision damage is not payable unless it meets 
the criteria for payment as property used for the benefit of the 
Government as established in Sec.  751.6(c)(1).
    (k) Violation of law or directives. Property acquired, possessed, or 
transported unlawfully or in violation of competent regulations or 
directives. This includes vehicles, weapons, or property shipped to 
accommodate another person, as well as property used to transport 
contraband.
    (l) Sales tax. Sales taxes associated with repair or replacement 
costs will not be considered unless the claimant provides proof that the 
sales tax was actually paid.
    (m) Appraisal fees. An appraisal, as distinguished from an estimate 
of replacement or repair, is defined as a valuation of an item provided 
by a person who is not in the business of selling or repairing that type 
of property. Normally, claimants are expected to obtain appraisals on 
expensive items at their own expense.
    (n) Quantities of property not reasonable or useful under the 
circumstances are not compensable. Factors to be considered are 
claimant's living conditions, family size, social obligations, and any 
particular need to have more than average quantities, as well as the 
actual circumstances surrounding the acquisition and loss.
    (o) Intangible Property, such as Bankbooks, Checks, Promissory 
Notes, Stock Certificates, Bonds, Bills of Lading, Warehouse Receipts, 
Baggage Checks, Insurance Policies, Money Orders, and Traveler's Checks 
are not Compensable.
    (p) Property Owned by the United States, Except where the Claimant 
is Responsible to an Agency of the Government other than the DON.
    (q) Contractual coverage. Losses, or any portion thereof, that have 
been recovered or are recoverable pursuant to contract are not 
compensable.

[57 FR 5055, Feb. 12, 1992, as amended at 72 FR 53423, Sept. 19, 2007]



Sec.  751.8  Adjudicating authorities.

    (a) Claims by Navy personnel. (l) The following officials are 
authorized to adjudicate and authorize payment of PCA claims up to 
$100,000:
    (i) The Judge Advocate General;
    (ii) The Deputy Judge Advocate General;
    (iii) Any Assistant Judge Advocate General; and
    (iv) The Deputy Assistant Judge Advocate General (Claims and Tort 
Litigation).
    (2) Any individual, when designated by the Deputy Assistant Judge 
Advocate General (Claims and Tort Litigation Division), may adjudicate 
and authorize payment of PCA claims up to any designated amount.
    (b) Claims by Marine Corps personnel. (1) The following officials 
are authorized to adjudicate and authorize payment of PCA claims up to 
$40,000:
    (i) Commandant of the Marine Corps;

[[Page 169]]

    (ii) Deputy Commandant, Manpower and Reserve Affairs Department;
    (iii) Director, Personal and Family Readiness Division;
    (iv) Head, Military Personnel Services Branch;
    (v) Head, Personal Property Claims Section; and
    (vi) Any individual personally designated by the Commandant of the 
Marine Corps may adjudicate and authorize payment of PCA claims up to 
any delegated amount not to exceed $40,000.
    (2) The Assistant Head, Personal Property Claims Section is 
authorized to adjudicate and authorize payment of PCA claims up to 
$25,000.
    (3) Any individual at Marine Corps Field Transportation Management 
Office/Claims Activities, when personally designated by the Director, 
Personal and Family Readiness Division, may be authorized to adjudicate 
and authorize payment of PCA claims up to any delegated amount not to 
exceed $40,000.

[72 FR 53423, Sept. 19, 2007]



Sec.  751.9  Presentment of claim.

    (a) General. A claim shall be submitted in writing and, if 
practicable, be presented to the Personnel Claims Unit or Marine Corps 
claims office serving the area where the claim accrued, such as where 
the House Hold Goods were delivered. If submission in accordance with 
the foregoing is impractical under the circumstance, the claim may be 
submitted in writing to any installation or establishment of the Armed 
Forces which will forward the claim to the appropriate Navy or Marine 
Corps claims office for processing. To constitute a filing, a claim must 
be presented in writing to one of the military departments.
    (b) Statute of limitations. A claim must be presented in writing to 
a military installation within 2 years after it accrues. This 
requirement is statutory and may only be waived if a claim accrues 
during armed conflict, or armed conflict intervenes before the 2 years 
have run, and good cause is shown. In this situation, a claim may be 
presented not later than 2 years after the end of the armed conflict. A 
claim accrues on the day the claimant knows or should know of the loss. 
For losses that occur in shipment of personal property, normally the day 
of delivery or the day the claimant loses entitlement to storage at 
Government expense (whichever occurs first) is the day the claim 
accrues. If a claimant's entitlement to Government storage terminates, 
but the property is later delivered at Government expense, the claim 
accrues on delivery. In computing the 2 years, exclude the first day 
(day of delivery or incident) and include the last day. If the last day 
falls on a non-workday, extend the 2 years to the next workday.
    (c) Substantiation. The claimant is responsible for substantiating 
ownership or possession, the fact of loss or damage, and the value of 
property. Claimants are expected to report losses promptly. The greater 
the delay in reporting a loss, the more substantiation the claimant is 
expected to provide.
    (1) Obviously damaged or missing inventory items that are not 
reported at delivery. Claimants are expected to list missing inventory 
items and obvious damage at time of delivery. Claimants who do not 
should be questioned. Obviously some claimants will simply not notice 
readily apparent damage. If, however, the claimant cannot provide an 
explanation or lacks credibility, payment should be denied based on lack 
of evidence that the item was lost or damaged in shipment.
    (2) Later-discovered shipment loss or damage. A claimant has 70 days 
to unpack, discover, and report loss and damage that is not obvious at 
delivery. In most cases, loss and damage that is discovered later and 
reported in a timely manner should be deemed to have been incurred in 
shipment.
    (3) Damage to POVs in shipment. Persons shipping POVs are expected 
to list damage on DD Form 788 (Private Vehicle Shipping Document for 
Automobile) when they pick up the vehicle. Obvious external damage that 
is not listed is not payable. Damage the claimant could reasonably be 
expected not to notice at the pickup point should be considered if the 
claimant reports the damage to claims or transportation office personnel 
within a short time, normally a few days after arriving at the 
installation.
    (4) Credibility. Factors that indicate a claimant's credibility is 
questionable

[[Page 170]]

include amounts claimed that are exaggerated in comparison with the cost 
of similar items, insignificant or almost undetectable damage, very 
recent purchase dates for most items claimed, and statements that appear 
incredible. Such claimants should be required to provide more evidence 
than is normally expected.
    (5) Inspections. Whenever a question arises about damage to 
property, the best way to determine a proper award is to examine the 
items closely to determine the nature of the damage. For furniture, 
undersurfaces and the edges of drawers and doors should be examined to 
determine whether the material is solid hardwood, fine quality veneer 
over hardwood, veneer over pressed wood, or other types of material. If 
the inspection is conducted at the claimant's quarters, the general 
quality of property should be determined. Observations by repairmen and 
transportation inspectors are very valuable, but on occasion, claims 
examiners may request an inspection. Such inspections are necessary to 
reduce the number of reconsiderations and fraudulent claims and are 
invaluable in enabling claims personnel to understand the facts in many 
situations.

[57 FR 5055, Feb. 12, 1992, as amended at 72 FR 53423, Sept. 19, 2007]



Sec.  751.10  Form of claim.

    The claim should be submitted on DD Form 1842 (Claim for Personal 
Property) accompanied by DD Form 1844 (List of Property). If DD Forms 
1842 and 1844 \1\ are not available, any writing will be accepted and 
considered if it asserts a demand for a specific sum and substantially 
describes the facts necessary to support a claim cognizable under these 
regulations. The claim must be signed by a proper claimant (see Sec.  
751.5) or by a person with a power of attorney for a proper claimant. A 
copy of the power of attorney must be included with the claim.
---------------------------------------------------------------------------

    \1\ Copies of these forms may be obtained by contacting the legal 
office or personal property office serving the installation where the 
claimant is stationed, or nearest to the point where the loss or damage 
occurred or on the Internet at http://www.jag.navy.mil.

[57 FR 5055, Feb. 12, 1992, as amended at 72 FR 53424, Sept. 19, 2007]



Sec.  751.11  Investigation of claim.

    Upon receipt of a claim, the claim shall be stamped with the date 
and receiving office, forwarded to the cognizant PCU and be referred to 
a claims examiner. The examiner shall consider all information and 
evidence submitted with the claim and shall conduct such further 
investigation as may be necessary and appropriate.

[72 FR 53424, Sept. 19, 2007]



Sec.  751.12  Payments.

    Payment of approved personnel claims will be made by the Navy or 
Marine Corps disbursing officer serving the adjudicating authority. 
Payments will be charged to funds made available to the adjudicating 
authority for this purpose.

[72 FR 53424, Sept. 19, 2007]



Sec.  751.13  Partial payments.

    (a) Partial payments when hardship exists. When claimants suffer a 
significant, compensable loss of items that are needed for daily living, 
and can demonstrate a need for immediate funds to replace some of those 
items (e.g., food, clothes, baby items, etc.) the adjudicating authority 
may authorize a partial payment of an appropriate amount, normally one-
half of the estimated total payment. When a partial payment is made a 
copy of the payment voucher and all other information related to the 
partial payment shall be placed in the claim file. Action shall be taken 
to ensure the amount of the partial payment is deducted from the 
adjudicated value of the claim when final payment is made.
    (b) Marine hardship payments. The Marine claimant's Transportation 
Management Office shall ensure compliance with all requirements of Sec.  
751.14(a), and may request authority for payment by message from the 
Commandant of the Marine Corps (MRP-2).
    (c) Effect of partial payment. Partial payments are to be subtracted 
from the adjudicated value of the claim before

[[Page 171]]

payment of the balance due. Overpayments are to be properly recouped.

[72 FR 53424, Sept. 19, 2007]



Sec.  751.14  Reconsideration and appeal.

    (a) General. When a claim is denied either in whole or in part, the 
claimant shall be given written notification of the initial adjudication 
and of the right to submit a written request for reconsideration to the 
original adjudicating authority within 6 months from the date the 
claimant receives notice of the initial adjudication of the claim. If a 
claimant requests reconsideration and if it is determined that the 
original action was erroneous or incorrect, it shall be modified and, 
when appropriate, a supplemental payment shall be approved. If full 
additional payment is not granted, the file shall be forwarded for 
reconsideration to the next higher adjudicating authority. For claims 
originally adjudicated by the Head, Personnel Claims Unit Norfolk, the 
files will be forwarded to the Judge Advocate General (Claims and Tort 
Litigation)(Code 15) for final action. The claimant shall be notified of 
this action either by letter or by copy of the letter forwarding the 
file to higher adjudicating authority. The forwarding letter shall 
include a synopsis of action taken on the file and reasons for the 
action or denial, as well as a recommendation of further action or 
denial.
    (b) Files forwarded to JAG. For files forwarded to JAG in accordance 
with Sec.  751.14(a), the forwarding endorsement shall include the 
specific reasons why the requested relief was not granted and shall 
address the specific points or complaints raised by the claimant's 
request for reconsideration.
    (c) Appeals procedure for claims submitted by Marine Corps 
personnel. Where any of the Marine Corps adjudication authorities listed 
in Sec.  751.8(b) fail to grant the relief requested, or otherwise 
resolve the claim to the satisfaction of the claimant, the request for 
reconsideration shall be forwarded together with the entire original 
file and the adjudicating authority's recommendation, to the Judge 
Advocate General.

[72 FR 53424, Sept. 19, 2007]



Sec. Sec.  751.15-751.20  [Reserved]

Subpart B [Reserved]



PART 752_ADMIRALTY CLAIMS--Table of Contents



Sec.
752.1 Scope.
752.2 Organization.
752.3 Claims against the Navy.
752.4 Affirmative claims.
752.5 Salvage.

    Authority: 5 U.S.C. 301; 10 U.S.C. 5013, 5148 and 7621-7623; 32 CFR 
700.105 and 700.331.



Sec.  752.1  Scope.

    This part applies to admiralty-tort claims. These include claims 
against the United States for damage caused by a vessel in the naval 
service or by other property under the jurisdiction of the Navy, or 
damage caused by a maritime tort committed by an agent or employee of 
the Navy for which the Navy has assumed an obligation to respond for 
damage. Affirmative claims by the United States for damage caused by a 
vessel or floating object to Navy property are covered under this part.

[72 FR 56268, Oct. 3, 2007]



Sec.  752.2  Organization.

    (a) Administrative authority of the Secretary of the Navy. The 
Secretary of the Navy has administrative authority for settlement and 
direct payment where the amount paid does not exceed $15,000,000 and 
where the matter is not in litigation, of claims for damage caused by 
naval vessels or by other property under the jurisdiction of the Navy, 
or damage caused by a maritime tort committed by an agent or employee of 
the Navy, and for towage or salvage services rendered to naval vessels 
(10 U.S.C. 7622). The Secretary also has authority to settle affirmative 
admiralty claims for damage caused by a vessel or floating object to 
property under the jurisdiction of the Navy (10 U.S.C. 7623).
    (b) Admiralty and Maritime Law Division of the Office of the Judge 
Advocate General. The Navy's admiralty-tort claims are processed and 
adjudicated in

[[Page 172]]

the Admiralty and Maritime Law Division of the Office of the Judge 
Advocate General. All correspondence with the Admiralty and Maritime Law 
Division should be addressed to the Office of the Judge Advocate General 
(Code 11), 1322 Patterson Avenue SE, Suite 3000, Washington Navy Yard, 
DC 20374-5066.
    (c) Mission and policy. The primary mission of the Admiralty and 
Maritime Law Division is to effect prompt and equitable settlements of 
admiralty claims, both against and in favor of the United States. The 
settlement procedure has evolved to eliminate the expenses and delays 
arising out of litigation and to obtain results advantageous to the 
financial interests of the United States. Where settlements cannot be 
made, litigation ensues in the Federal Courts. The final test of whether 
a settlement is justified is the probable result of litigation. 
Settlements are therefore considered and determined by the probable 
results of litigation. The policy of the Navy is to effect fair and 
prompt settlements of admiralty claims wherever legal liability exists.
    (d) Admiralty-tort claims. As indicated above, the Admiralty and 
Maritime Law Division primarily handles admiralty-tort claims. These are 
claims for damage caused by vessels in the naval service or by other 
property under the jurisdiction of the Navy, or damage caused by a 
maritime tort committed by an agent or employee of the Navy, and claims 
for damage caused by a privately owned vessel to a vessel or property of 
the Navy (affirmative claims). The Admiralty and Maritime Law Division 
also handles claims for towage and salvage services rendered to a vessel 
in the naval service.
    (e) Admiralty-contract claims. Admiralty-contract claims arising out 
of the operations of the Military Sealift Command (MSC) are handled by 
its Office of Counsel. MSC is responsible for the procurement of vessels 
and space for the commercial ocean transportation of Department of 
Defense cargo, mail, and personnel. It is also responsible for the 
maintenance, repair, and alteration of Government-owned vessels assigned 
to it. The Office of Counsel, MSC, deals with the various claims of a 
contract nature which arise out of these operations. These include 
claims for cargo damage, charter hire, redelivery, general average, and 
claims arising under MSC ship-repair contracts.
    (f) Damage caused by Navy contract stevedores. Office of Counsel, 
Naval Supply Systems Command, has cognizance of admiralty claims for 
damage caused by Navy contract stevedores. Under these stevedore 
contracts, the stevedoring companies are responsible for negligent acts 
of their employees which result in vessel damage. It is important that 
the extent of any such damage be accurately determined and promptly 
reported to the contracting officer having cognizance of the particular 
stevedore contract involved.
    (g) Resolving conflicts. Admiralty-tort claims, such as collision, 
personal-injury, and death claims, are dealt with by the Admiralty and 
Maritime Law Division, irrespective of whether an MSC vessel or other 
naval vessel is involved. Whether any particular claim is to be handled 
by JAG or by MSC, therefore, is determined by the nature of the claim. 
Cases may arise which could be handled by either office. If doubt 
exists, such matters should be reported both to JAG and to MSC. An 
agreement will then be reached between the Admiralty and Maritime Law 
Division and the Office of Counsel, MSC, as to how the incident should 
be handled.

[39 FR 9962, Mar. 15, 1974, as amended at 55 FR 12173, Apr. 2, 1990; 65 
FR 60861, 60862, Oct. 13, 2000; 69 FR 20542, Apr. 16, 2004; 72 FR 56268, 
Oct. 3, 2007]



Sec.  752.3  Claims against the Navy.

    (a) Settlement authority. 10 U.S.C. 7622 provides settlement 
authority for damage caused by a vessel in the naval service or by other 
property under the jurisdiction of the Department of the Navy; 
compensation for towage or salvage service, including contract salvage, 
rendered to a vessel in the naval service or to other property of the 
Navy; or damage caused by a maritime tort committed by any agent or 
employee of the Department of the Navy or by property under the 
jurisdiction of the Department of the Navy. The limit on the Secretary's 
settlement authority is payment of $15,000,000. A claim

[[Page 173]]

which is settled for an amount over $15,000,000 is certified to Congress 
for payment. Section 7622 provides that the Secretary may delegate his 
settlement authority in matters where the amount to be paid is not over 
$1,000,000. Under the Secretary's delegation, settlements not exceeding 
$500,000 may be effected by the Judge Advocate General. Under the 
Secretary's delegation, settlements not exceeding $250,000 may be 
effected by the Deputy Assistant Judge Advocate General (Admiralty and 
Maritime Law).
    (b) Settlement is final. The legislation specifically authorizes the 
Secretary to settle, compromise, and pay claims. The settlement, upon 
acceptance of payment by the claimant, is final and conclusive for all 
purposes.
    (c) Settlement procedures. Where the amount paid is over $500,000, 
after agreement is reached with counsel or claimants, the procedure is 
to prepare a settlement recommendation for the approval of the Secretary 
of the Navy. When settlement has been approved, the voucher required for 
effecting payment is prepared. The settlement check is then exchanged, 
in keeping with the commercial practice, for an executed release. In 
some situations, where the exchange of documents is impracticable, a 
claimant is requested to forward the executed release by mail, on the 
understanding that the release does not become effective until the check 
is received in payment. Claims settled under 10 U.S.C. 7622 are paid out 
of annual Department of Defense appropriations.
    (d) Limitation period. The Secretary's settlement authorization is 
subject to a two-year limitation. This limitation is not extended by the 
filing of claim nor by negotiations or correspondence. A settlement 
agreement must be reached before the end of the two-year period. If 
settlement is not accomplished, then the claimant must file suit under 
the appropriate statute to avoid the limitation bar. The agreement 
reached in negotiations must receive the approval of the Secretary of 
the Navy or his designee, depending on the amount involved, prior to the 
expiration of the two-year period.
    (e) Matters in litigation. When suit is filed, the matter comes 
within the cognizance of the Department of Justice, and the Secretary of 
the Navy is no longer able to entertain a claim or to make 
administrative settlement.

[39 FR 9962, Mar. 15, 1974, as amended at 55 FR 12173, Apr. 2, 1990; 65 
FR 60861, 60862, Oct. 13, 2000; 69 FR 20542, Apr. 16, 2004; 72 FR 56268, 
Oct. 3, 2007]



Sec.  752.4  Affirmative claims.

    (a) Settlement authority. The Navy has the same authority to settle 
affirmative admiralty claims as it does claims against the Navy. The 
statute conferring this authorization is codified in 10 U.S.C. 7623, and 
is the reciprocal of 10 U.S.C. 7622 referred to in Sec.  752.3.
    (b) Scope. 10 U.S.C. 7623 is a tort claims-settlement statute. It is 
not limited to affirmative claims arising out of collision, but embraces 
all instances of damage caused by a vessel or floating object to 
property of the United States under the jurisdiction of the Department 
of the Navy or for which the Department of the Navy has assumed an 
obligation to respond. Perhaps the most frequent instance is where a 
privately owned vessel damages a Navy pier or shore structure. To 
eliminate any issue of whether the damaging instrumentality was a 
vessel, the words ``or floating object'' were included.
    (c) Statute of limitation. The United States is subject to a three-
year statute of limitation when it asserts an affirmative claim for 
money damages grounded in tort. This limitation is subject to the usual 
exclusions, such as inability to prosecute due to war, unavailability of 
the ``res'' or defendant, and certain exemptions from legal process (28 
U.S.C. 2415, 2416).
    (d) Litigation. 10 U.S.C. 7623 does not apply to any claim where 
suit is filed. If the Admiralty and Maritime Law Division is unable to 
effect settlement, the matter is referred to the Department of Justice 
for the filing of a complaint against the offending party. Thereafter, 
as in the case of adverse litigated claims, the Navy has no further 
authority to effect settlement.

[39 FR 9962, Mar. 15, 1974, as amended at 55 FR 12174, Apr. 2, 1990; 65 
FR 60861, Oct. 13, 2000; 69 FR 20542, Apr. 16, 2004; 72 FR 56268, Oct. 
3, 2007]

[[Page 174]]



Sec.  752.5  Salvage.

    (a) Scope. This section relates to salvage claims against or by the 
Navy for compensation for towage and salvage services, including 
contract salvage, rendered to a vessel in the naval service or to other 
property under the jurisdiction of the Department of the Navy, or for 
salvage services rendered by the Department of the Navy. Suits for 
salvage may be maintained under the Public Vessels Act, and salvage 
claims are within the Secretary of the Navy's administrative-settlement 
authority under 10 U.S.C. 7622. Salvage claims against the Navy are 
reported to and processed by the Judge Advocate General (Admiralty and 
Maritime Law Division). Both claims and suits for salvage against the 
United States are subject to the two-year limitation of the Public 
Vessels Act and the Navy's settlement authority.
    (b) Affirmative claims. Authorization for the settlement of 
affirmative salvage claims is contained in 10 U.S.C. 7365. Assertion of 
such claims is handled in the first instance by the Assistant Supervisor 
of Salvage (Admiralty), USN, Naval Sea Systems Command (SEA OOCL), 2531 
Jefferson Davis Highway, NC/3 Room 11E54, Arlington, VA 22242-5160. 
Salvage claims are referred to the Admiralty Division only if the 
Assistant Supervisor of Salvage (Admiralty) is unsuccessful in making 
collection. Any money received in settlement of affirmative salvage 
claims is credited to appropriations for maintaining salvage facilities 
by the Navy, pursuant to 10 U.S.C. 7367.

[39 FR 9962, Mar. 15, 1974, as amended at 41 FR 26866, June 30, 1976; 55 
FR 12174, Apr. 2, 1990; 65 FR 60861, 60862, Oct. 13, 2000; 69 FR 20542, 
Apr. 16, 2004]



PART 755_CLAIMS FOR INJURIES TO PROPERTY UNDER ARTICLE 139 OF THE
UNIFORM CODE OF MILITARY JUSTICE--Table of Contents



Sec.
755.1 Statutory authority.
755.2 Scope.
755.3 Claims not cognizable.
755.4 Limitation on claims.
755.5 Complaint by the injured party and investigation.
755.6 Action where offenders are members of one command.
755.7 Action where offenders are members of different commands.
755.8 Reconsideration and appeal.
755.9 Effect of court-martial proceedings.

    Authority: 5 U.S.C. 301; 10 U.S.C. 939, 5013, and5148; E.O. 11476, 
as reported in 3 CFR, 1969 Comp., p. 132; 32 CFR 700.206 and 700.1202.

    Source: 56 FR 42232, Aug. 27, 1991, unless otherwise noted.
    Note 1: This part 755 is chapter IV of the Manual of the Judge 
Advocate General of the Navy.
    Note 2: The Uniform Code of Military Justice (10 U.S.C. 801-940) is 
referred to in this part 755 as the ``UCMJ''. The Manual for Courts-
Martial, United States, 1984 (E.O. 12473 of August 1, 1984) is referred 
to in this part 755 as ``MCM 1984''.



Sec.  755.1  Statutory authority.

    Article 139, UCMJ, redress of injuries to property, is the basis for 
this chapter.



Sec.  755.2  Scope.

    This chapter provides for assessments against the pay of members of 
the naval service in satisfaction of claims for property damage caused 
under certain circumstances. Claims for damage, loss, or destruction of 
privately owned property caused by a person or persons in the naval 
service, are payable under Article 139, UCMJ, only if such damage, loss, 
or destruction is caused by riotous conduct, willful conduct, or acts 
showing such reckless or wanton disregard of the property rights of 
others that willful damage or destruction is implied. Acts of the type 
punishable under Article 109, UCMJ, are cognizable under Article 139, 
UCMJ. Charges against pay under these regulations shall be made only 
against the pay of persons shown to have been principal offenders or 
accessories.



Sec.  755.3  Claims not cognizable.

    The following claims are not cognizable under this chapter.
    (a) Claims resulting from simple negligence.
    (b) Claims of subrogees.
    (c) Claims for personal injury or death.

[[Page 175]]

    (d) Claims arising from acts or omissions within the scope of 
employment of the offender.
    (e) Claims for reimbursement for damage, loss, or destruction of 
Government property.



Sec.  755.4  Limitation on claims.

    (a) Time limitations. A claim must be submitted within 90 days of 
the incident giving rise to it.
    (b) Acts of property owner. When the acts or omissions of the 
property owner, his lessee, or agent were a proximate contributing 
factor to the loss or damage of the property, assessments will not be 
made against members of the naval service in excess of the amount for 
which they are found to be directly responsible, i.e., comparative 
responsibility for the loss will be the standard for determining 
financial responsibility.
    (c) Only direct damages considered. Assessment will be made only for 
direct physical damages to the property. Indirect, remote, or 
inconsequential damage will not be considered.



Sec.  755.5  Complaint by the injured party and investigation.

    (a) A claim shall contain a statement setting forth the amount of 
the claim, the facts and circumstances surrounding the claim and any 
other information that will assist in the investigation and resolution 
of the matter. When there is more than one complaint resulting from a 
single incident, each claimant must file a claim separately and 
individually. The claim shall be personally signed by the claimant or 
his duly authorized representative or agent.
    (b) Where the claim alleges misconduct by members of the command, a 
commanding officer to whom the claim is submitted shall convene an 
investigation under this Manual to inquire into the matter. Where a 
complaint is received by a commanding officer to whose command the 
alleged offenders do not report, he shall forward the claim and other 
pertinent information about the matter to the member's commanding 
officer who will convene an investigation into the incident. Where the 
command of the alleged offenders cannot be determined, the claim and 
supporting materials shall be forwarded to the Chief of Naval Personnel 
or the Commandant of the Marine Corps, as appropriate, for action.
    (c) The investigation shall inquire into the circumstances 
surrounding the claim, gather all relevant information about the matter 
(answering the who, what, where, when, why, and how questions) and make 
findings and opinions, as appropriate, about the validity of the claim 
under Article 139, UCMJ, and these regulations. The investigation shall 
determine the amount of damage suffered by the property owner.
    (d) The investigation shall make recommendations about the amount to 
be assessed against the pay of the responsible parties. If more than one 
person is found responsible, recommendations shall be made about the 
assessments against all individuals.



Sec.  755.6  Action where offenders are members of one command.

    (a) Action by commanding officer. The commanding officer shall 
ensure the alleged offenders are shown the investigative report and are 
advised they have 20 days within which to submit a statement or 
additional information on the incident. If the member declines to submit 
information, he shall so state in writing within the 20 day period. The 
commanding officer shall review the investigation and determine whether 
the claim is properly within the provisions of Article 139, UCMJ, and 
these regulations, and whether the facts indicate responsibility for the 
damage on members of the command. If the commanding officer finds the 
claim payable under these regulations, he shall fix the amount to be 
assessed against the offenders.
    (b) Review. If the commanding officer has authority to convene a 
general court-martial, no further review of the investigation is 
required as to the redress of injuries to property. If the commanding 
officer does not have general court-martial convening authority, the 
investigation and the commanding officer's action thereon shall be 
forwarded to the officer exercising general court-martial jurisdiction 
(OEGCM) over the command for review and action on the claim. That 
officer's

[[Page 176]]

action on the claim shall be communicated to the commanding officer who 
will take action consistent with the determination.
    (c) Charge against pay. Where the amount does not exceed $5,000.00, 
the amount ordered by the commanding officer shall, as provided in the 
Navy Comptroller Manual, be charged against the pay of the offenders and 
the amounts so collected will be paid to the claimant. Where the amount 
exceeds $5,000.00, the claim, the investigation, and the commanding 
officer's recommendation shall be forwarded for review prior to checkage 
to Headquarters, U.S. Marine Corps (Code JAR) or the Judge Advocate 
General, as appropriate. The amount charged in any single month against 
the pay of offenders shall not exceed one-half of basic pay, as defined 
in paragraph 126h(2), Manual for Courts-Martial. The action of the 
commanding officer in ordering the assessment shall be conclusive on any 
disbursing officer for payment to the claimant of the damages assessed, 
approved, charged, and collected.



Sec.  755.7  Action where offenders are members of different commands.

    (a) Action by common superior. The investigative report shall be 
forwarded to the common superior exercising general court-martial 
jurisdiction over the commands to which the alleged offenders are 
assigned. That officer shall ensure the alleged offenders are shown the 
investigative report and permitted to comment on it, should they desire, 
before action is taken on the claim. That officer shall review the 
investigation and determine whether the claim is properly within the 
provisions of Article 139, UCMJ, and these regulations, and whether the 
facts indicate responsibility for the damage on members of his command. 
If the claim is found payable under these regulations, he shall fix the 
amount to be assessed against the offenders and direct the appropriate 
commanding officers to take action accordingly.
    (b) Forwarding to SECNAV (JAG). Where it is not practical or 
possible to carry out the procedure in Sec.  755.7(a) of this section, 
the investigation or investigations shall be forwarded to the Secretary 
of the Navy (Judge Advocate General) who will take action in the matter. 
Commanding officers, in such a situation, are not to make charges 
against the pay of their members until directed by the Secretary of the 
Navy (Judge Advocate General).



Sec.  755.8  Reconsideration and appeal.

    (a) Reconsideration. The OEGCM may, upon a receipt of a request for 
reconsideration by either the claimant or a member who has been assessed 
pecuniary liability, reopen the investigation or take any other action 
he believes is necessary in the interests of justice. If the OEGCM 
contemplates acting favorably on the request, he will provide all 
individuals interested in the claim with notice and an opportunity to 
respond. The basis for any change will be noted in the OEGCM's decision.
    (b) Appeal. In claims involving $5,000.00 or less, a claimant or 
member who has been assessed pecuniary liability may appeal the decision 
to the OEGCM. An appeal must be submitted within 5 days of the receipt 
of the OEGCM's decision. Appeals will be forwarded, via the OEGCM, to 
the Judge Advocate General for review and final action. In the event of 
an appeal, the imposition of the OEGCM's decision will be held in 
abeyance pending the final action by JAG. If it appears that good cause 
exists that would make it impracticable for an appeal to be submitted 
within 5 days, the OEGCM may, in his discretion, grant an extension of 
time, as appropriate. His decision on extensions is final and 
nonappealable.



Sec.  755.9  Effect of court-martial proceedings.

    Administrative action under these regulations is separate and 
distinct from and is not affected by any disciplinary action against the 
offender. The two proceedings are independent. Acquittal or conviction 
of the alleged offender by court-martial is evidence for the 
administrative action, but is not determinative on the issue of 
responsibility for damages under these regulations.

[[Page 177]]



PART 756_PROCEDURES FOR PROCESSING CLAIMS INVOLVING NON-APPROPRIATED
FUND ACTIVITIES AND THEIR EMPLOYEES--Table of Contents



Sec.
756.1 Scope.
756.2 Definitions.
756.3 Notification.
756.4 Responsibility.
756.5 Investigation.
756.6 Negotiation.
756.7 Payment.
756.8 Denial.
756.9 Claims by employees.

    Authority: 5 U.S.C. 301, 10 U.S.C. 5013 and 5148.

    Source: 57 FR 4736, Feb. 7, 1992, unless otherwise noted.



Sec.  756.1  Scope.

    This part explains how to settle claims for and against the United 
States for property damage, personal injury, or death arising out of the 
operation of non-appropriated fund activities (NAFI). \1\
---------------------------------------------------------------------------

    \1\ DoD Directive 5515.6 establishes policy governing the 
administrative processing of claims arising out of the operation of non-
appropriated fund activities.

[72 FR 53425, Sept. 19, 2007]



Sec.  756.2  Definitions.

    (a) Nonappropriated-fund instrumentality (NAFI). An instrumentality 
of the Federal Government established to generate and administer 
nonappropriated-funds for programs and services contributing to the 
mental and physical well-being of Department of Defense personnel and 
their dependents. A NAFI is not incorporated under the laws of any State 
and enjoys the privileges and immunities of the Federal Government.
    (b) Nonappropriated-funds. Funds generated through the use and 
patronage of NAFI's, not including funds appropriated by Congress.
    (c) Employees of NAFIs. Personnel employed by NAFIs whose salaries 
are paid from non-appropriated funds.

[57 FR 4736, Feb. 7, 1992, as amended at 72 FR 53425, Sept. 19, 2007]



Sec.  756.3  Notification.

    (a) Some NAFI's, such as flying clubs, carry private commercial 
insurance to protect them from claims for property damage and personal 
injury attributable to their operations. The Commandant of the Marine 
Corps, the Chief of Naval Personnel, and the Commander, Naval Supply 
Systems Command determine whether NAFI's within their cognizance shall 
carry liability insurance or become self-insurers, in whole or in part.
    (b) The Marine Corps requires mandatory participation in the Morale, 
Welfare and Recreation (MWR) Composite Insurance Program by the 
following operations: MWR operations and retail services, food and 
hospitality, recreation; and special NAFI activities including flying 
clubs, rod and gun clubs, Interservice Rifle Fund, Marine Corps Marathon 
and Dependent Cafeteria Fund. The following organizations may also 
participate in the MWR Composite Insurance Program, if desired: Child 
welfare centers, billeting funds, chapel funds, and civilian welfare 
funds.
    (c) When the operations of NAFI's result in property damage or 
personal injury, the insurance carrier, if any, should be given 
immediate written notification. Notification should not be postponed 
until a claim is filed. When the activity is self-insured, the self-
insurance fund shall be notified of the potential liability by the 
activity.



Sec.  756.4  Responsibility.

    (a) All claims resulting from NAFIs should be submitted to the 
command having cognizance over the NAFI involved. The claim will then be 
forwarded to the Tort Claims Unit (TCU) Norfolk located at the following 
address: Department of the Navy, Office of the Judge Advocate General, 
Tort Claims Unit Norfolk, 9620 Maryland Avenue, Suite 100, Norfolk, VA 
23511-2989.
    (b) The TCU Norfolk has cognizance over all DoN claims. Normally, 
the TCU Norfolk has primary responsibility for the negotiation and 
settlement of NAFI claims. This is because NAFIs are Federal agencies 
within the meaning of the Federal Tort Claims Act (FTCA) if the NAFI is 
charged with an essential function of the DoN and if

[[Page 178]]

the degree of control and supervision by the Navy is more than casual or 
perfunctory. Compare United States v. Holcombe, 277 F.2d 143 (4th Cir. 
1960) and Scott v. United States, 226 F. Supp. 846, (D. Ga. 1963). 
Consequently, to the extent sovereign immunity is waived by the FTCA, 28 
U.S.C. 1346(b), 2671-2672, 2674-2680, the United States remains 
ultimately liable for payment of NAFI claims.

[72 FR 53425, Sept. 19, 2007]



Sec.  756.5  Investigation.

    Claims arising out of the operation of NAFIs, in and outside the 
United States, shall be investigated in accordance with the procedures 
for investigating similar claims against appropriated fund activities. 
The Manual of the Judge Advocate General (JAGMAN), Chapter II \2\ 
provides guidance in conducting an investigation of an incident or event 
likely to result in claims or civil litigation against or for DoN or the 
United States.
---------------------------------------------------------------------------

    \2\ JAGMAN Chapter II (JAG Instruction 5800.7E) is available at the 
Web site of the Navy Judge Advocate General's Corps at http://
www.jag.navy.mil.

[72 FR 53425, Sept. 19, 2007]



Sec.  756.6  Negotiation.

    (a) General. Claims from NAFIs should be processed primarily through 
procedures, regulations, and statutes applicable to similar appropriated 
fund activity claims.
    (b) When the NAFI is insured. When a NAFI is insured, the insurer or 
the contracted third-party claims administrator (TPA) will normally 
conduct negotiations with claimants. The TCU Norfolk shall monitor the 
negotiations conducted by the insurer or TPA. Monitoring is normally 
limited to ascertaining that someone has been assigned to negotiate, to 
obtain periodic status reports, and to close files on settled claims. 
Any dissatisfaction with the insurer's or TPA's handling of the 
negotiations should be referred directly to the Judge Advocate General 
(Claims and Tort Litigation) for appropriate action. If requested by the 
insurer or TPA, the TCU Norfolk may conduct negotiations. If TCU Norfolk 
negotiates a final settlement, however, request for payment will be 
forwarded to the insurer or TPA for payment. Concurrence by the insurer 
or TPA in the amount of the settlement is not necessary.
    (c) When the NAFI is not insured. When there is no private 
commercial insurer and the NAFI has made no independent arrangements for 
negotiations, the TCU Norfolk is responsible for conducting 
negotiations. When an appropriate settlement is negotiated by the Navy, 
the recommended award will be forwarded to the NAFI for payment from 
non-appropriated funds.

[72 FR 53425, Sept. 19, 2007]



Sec.  756.7  Payment.

    (a) Claims that can be settled for less than 1,500.00. A claim not 
covered by insurance (or not paid by the insurer), that can be settled 
for $1,500.00 or less, may be adjudicated by the TCU Norfolk or single-
service authority and forwarded to the commanding officer of the 
activity concerned or designee for payment out of funds available to the 
commanding officer. The TCU Norfolk or single-service authority will 
obtain the required release from the claimant.
    (b) Claims that cannot be settled for less than $1,500.00. A claim 
negotiated by the Navy, not covered by insurance, that is for more than 
$1,500.00 will be forwarded to the appropriate non-appropriated fund 
headquarters command for payment from its non-appropriated funds.
    (c) When payment is possible under another statute. In some cases, 
neither the NAFI nor its insurer may be legally responsible. In those 
instances when there is no negligence, and payment is authorized under 
some other statute, such as the Foreign Claims Act, 10 U.S.C. 2734-2736, 
the claim may be considered for payment from appropriated funds or may 
be referred to the TCU Norfolk for appropriate action.
    (d) Other claims. A NAFI's private insurance policy is usually not 
available to cover losses that result from some act or omission of a 
mere participant in a non-appropriated fund activity. In the event the 
NAFI declines to pay the

[[Page 179]]

claim, the file shall be forwarded to the TCU Norfolk for determination.

[72 FR 53426, Sept. 19, 2007]



Sec.  756.8  Denial.

    Claims resulting from non-appropriated fund activities may be denied 
only by the TCU Norfolk. The denial will begin the six-month limitation 
on filing suit against the United States for claims filed under the 
FTCA. Denial of a claim shall be in writing and in accordance with 
subparts A and B of part 750 of this chapter, as appropriate. The TCU 
Norfolk should not deny claims that have initially been processed and 
negotiated by a non-appropriated fund activity, its insurer, or TPA, 
until the activity or its insurer has clearly stated in writing that it 
does not intend to pay the claim and has elected to defend the claim in 
court.

[72 FR 53426, Sept. 19, 2007]



Sec.  756.9  Claims by employees.

    (a) Property. Claims by employees of NAFIs for loss, damage, or 
destruction of personal property incident to their employment shall be 
processed and adjudicated in accordance with subparts A or B of part 751 
of this chapter, as appropriate. The claims will then be forwarded to 
the appropriate NAFI for payment from non-appropriated funds.
    (b) Personal injury or death--(1) Personal injury or death of 
citizens or permanent residents of the United States employed anywhere, 
or foreign nationals employed within the United States. Compensation is 
provided by the Longshore and Harbor Workers' Compensation Act (33 
U.S.C. 901-950) for employees of NAFIs who have suffered injury or death 
arising out of, and in the course of, their employment (5 U.S.C. 8171). 
That Act is the exclusive basis for Government liability for such 
injuries or deaths that are covered (5 U.S.C. 8173). A claim should 
first be made under that Act if there is a substantial possibility the 
injury or death is covered under the Act's provisions.
    (2) Personal injury or death of foreign nationals employed outside 
of the continental United States. Employees who are not citizens or 
permanent residents, and who are employed outside the continental United 
States, may be protected by private insurance of the NAFI or by other 
arrangements. When a non-appropriated fund activity has elected not to 
obtain insurance coverage or to make other arrangements, compensation is 
separately provided by Federal statute, military regulations, and 
agreements with foreign countries. See 5 U.S.C. 8172, DoD 1401.1-M, 
Personnel Policy Manual for Non-appropriated Fund Instrumentalities and 
BUPERINST 5300.10A, NAF Personnel Manual.

[72 FR 53426, Sept. 19, 2007]



PART 757_AFFIRMATIVE CLAIMS REGULATIONS--Table of Contents



                    Subpart A_Property Damage Claims

Sec.
757.1 Scope of subpart A.
757.2 Statutory authority.
757.3 Regulatory authority.
757.4 Claims that may be collected.
757.5 Assertion of claims and collection procedures.
757.6 Waiver, compromise, and referral of claims.
757.7-757.10 [Reserved]

 Subpart B_Medical Care Recovery Act (MCRA) Claims and Claims Asserted 
                       Pursuant to 10 U.S.C. 1095

757.11 Scope of Subpart B.
757.12 Statutory authorities.
757.13 Responsibility for MCRA actions.
757.14 Claims asserted.
757.15 Claims not asserted.
757.16 Claims asserted only with OJAG approval.
757.17 Statute of limitations.
757.18 Asserting the claim.
757.19 Waiver and compromise.
757.20 Receipt and release.

    Authority: 5 U.S.C. 301; 10 U.S.C. 939, 5013, and 5148; E.O. 11476, 
3 CFR, 1969 Comp., p. 132; 32 CFR 700.206 and 700.1202.

    Source: 57 FR 5072, Feb. 12, 1992, unless otherwise noted.



                    Subpart A_Property Damage Claims



Sec.  757.1  Scope of subpart A.

    Subpart A describes how to assert, administer, and collect claims 
for damage to or loss or destruction of Government property through 
negligence or wrongful acts.

[[Page 180]]



Sec.  757.2  Statutory authority.

    (a) General. All affirmative claims for damage to or loss of 
Government property in favor of the United States are processed in 
accordance with the Federal Collections Claims Act (31 U.S.C. 3711), as 
amended by the Debt Collection Act of 1982, PL 97-365, 96 Stat. 1749 (25 
October 1982), PL 101-552, 104 Stat. 2736 (15 November 1990) and the 
Debt Collection Improvement Act of 1996, PL 104-134, 110 Stat. 1321, 
1358 (26 April 1996). Department of Defense Directive designees, the 
authority granted to the Secretary of Defense under the Federal Claims 
Collection Act.
    (b) Statute of limitations. Subject to specific provisions in other 
statutes, there is a general 3-year statute of limitations on 
affirmative Government tort claims pursuant to 28 U.S.C. 2415(b).

[72 FR 53427, Sept. 19, 2007]



Sec.  757.3  Regulatory authority.

    The regulations published in 31 CFR Chapter IX control the 
collection and settlement of affirmative claims. This section 
supplements the material contained in those regulations. Where this 
section conflicts with the materials and procedure published in 31 CFR 
Chapter IX, the latter controls.

[57 FR 5072, Feb. 12, 1992, as amended at 72 FR 53427, Sept. 19, 2007]



Sec.  757.4  Claims that may be collected.

    (a) Against responsible third parties for damage to Government 
property, or the property of non-appropriated fund activities. It should 
be noted, however, that as a general rule, the Government does not seek 
payment from service members and Government employees for damages caused 
by their simple negligence while acting within the scope of their 
employment. Exceptions to this general policy will be made when the 
incident involves aggravating circumstances.
    (b) For money paid or reimbursed by the government for damage to a 
rental car in accordance with the Joint Federal Travel regulations 
(volume 1, paragraph U 3415-C and volume 2, paragraph C 2101-2). 
Collection action shall be taken against third parties liable in tort. 
Collection action shall not be taken against Government personnel who 
rented the vehicle.
    (c) Other claims. Any other claim for money or property in favor of 
the United States cognizable under the Federal Claims Collections Act 
not specifically listed above.

[72 FR 53427, Sept. 19, 2007]



Sec.  757.5  Assertion of claims and collection procedures.

    (a) General. The controlling procedures for administrative 
collection of claims are established in 31 CFR part 901.
    (b) Officials authorized to pursue claims. The Judge Advocate 
General; the Deputy Judge Advocate General; any Assistant Judge Advocate 
General; the Deputy Assistant Judge Advocate General (Claims and Tort 
Litigation) are authorized to pursue and collect all affirmative claims 
in favor of the United States, except in countries where another service 
has single service responsibility in accordance with DoD Directive 
5515.8.
    (c) Dollar limitations. All of the officers listed in Sec.  757.5(b) 
are authorized to compromise and terminate collection action on 
affirmative claims of $100,000.00 or less.
    (d) Determining liability. Liability must be determined in 
accordance with the law of the place in which the damage occurred, 
including the applicable traffic laws, elements of tort, and possible 
defenses.
    (e) Assertion of a claim. (1) Assertion of the claim is accomplished 
by mailing to the tortfeasor a ``Notice of Claim.'' The notice is to be 
mailed certified mail, return receipt requested, and should include the 
following information:
    (i) Reference to the statutory right to collect;
    (ii) A demand for payment or restoration;
    (iii) A description of damage and estimate of repair;
    (iv) A description of the incident, including date and place; and
    (v) The name, phone number, and office address of the claims 
personnel to contact.
    (2) See also 31 CFR part 901.
    (f) Full payment. When a responsible party or insurer tenders full 
payment

[[Page 181]]

or a compromise settlement on a claim, the payment should be in the form 
of a check or money order made payable to ``United States Treasury.'' 
The check or money order shall then be forwarded to the disbursing 
officer serving the collecting activity for deposit in accordance with 
the provisions of the Navy Comptroller Manual. For collections for 
damages to real property, the collection is credited to the account 
available for the repair or replacement of the real property at the time 
of recovery. (10 U.S.C. 2782.) For damages to personal property, the 
money is returned to the general treasury.
    (g) Installment payments. See 31 CFR 901.8 for specific procedures. 
In general, if the debtor is financially unable to pay the debt in one 
lump sum, an installment payment plan may be arranged. Installment 
payments will be required on a monthly basis and the size of payment 
must bear a reasonable relation to the size of the debt and the debtor's 
ability to pay. The installment agreements should specify payments of 
such size and frequency to liquidate the Government's claim in not more 
than 3 years. Installment payments of less than $50.00 per month should 
be accepted only if justified on the grounds of financial hardship or 
for some other reasonable cause. In all installment arrangements, a 
confession of judgment note setting out a repayment schedule should be 
executed.
    (h) Damage to nonappropriated-fund instrumentality (NAFI) property. 
Any amount collected for loss or damage to property of a NAFI shall be 
forwarded to the headquarters of the nonappropriated-fund activity for 
deposit with that activity. In those situations where the recovery 
involves damage to both NAFI-owned property and other Government 
property, e.g., destruction of an exchange building resulting in damage 
to both the building and the exchange-owned property inside, recovery 
for the exchange-owned property shall be forwarded to the NAFI. Recovery 
for building damage shall be deposited in accordance with Sec.  757.5(f) 
above.
    (i) Damage to industrial-commercial property. When a loss or cost of 
repair has been borne by an industrial-commercial activity, payment 
shall be deposited in the Navy Industrial Fund of the activity in 
accordance with the provisions of the Navy Comptroller Manual. When a 
claim is based on a loss or damage sustained by such an activity, a 
notation to this effect shall be included in any claim file forwarded to 
the Judge Advocate General.
    (j) Replacement in kind or repair. The responsible party, or 
insurer, may want to repair or replace in kind damaged property. The 
commanding officer or officer in charge of the activity sustaining the 
loss is authorized to accept repair or replacement if, in his 
discretion, it is considered to be in the best interests of the United 
States.
    (k) Release. The Supervisory Attorney, Tort Claims Unit, Norfolk is 
authorized to execute a release of the claim when all repairs have been 
completed to the Government's satisfaction, and when all repair bills 
have been paid. No prior approval from the Judge Advocate General is 
required for this procedure. If repair or replacement is made, a 
notation shall be made in any investigation or claims file.

[57 FR 5072, Feb. 12, 1992, as amended at 72 FR 53427, Sept. 19, 2007]



Sec.  757.6  Waiver, compromise, and referral of claims.

    (a) Officials authorized to compromise claims. The officers 
identified in Sec.  757.5(b) may collect the full amount on all claims, 
and may compromise, execute releases or terminate collection action on 
all claims of $20,000.00 or less. Collection action may be terminated 
for the convenience of the Government if the tortfeasor cannot be 
located, is found to be judgment-proof, has denied liability, or has 
refused to respond to repeated correspondence concerning legal liability 
involving a small claim. A termination for the convenience of the 
Government is made after it is determined that the case does not warrant 
litigation or that it is not cost-effective to pursue recovery efforts.
    (b) Claims over $100,000.00. Claims in excess of $100,000.00 may not 
be compromised for less than the full amount or collection action 
terminated without approval from the Department of Justice (DOJ).

[[Page 182]]

    (c) Notification. The Judge Advocate General shall be notified prior 
to all requests made to the DOJ to compromise, terminate collection, or 
referral for further collection action or litigation.
    (d) Litigation reports. Litigation reports prepared in accordance 
with 31 CFR part 904 shall be forwarded through the Judge Advocate 
General (Claims and Tort Litigation) to the Department of Justice along 
with any case file for further collection action or litigation as 
required by the Federal Claims Collections Standards.

[57 FR 5072, Feb. 12, 1992, as amended at 72 FR 53428, Sept. 19, 2007]



Sec. Sec.  757.7-757.10  [Reserved]



 Subpart B_Medical Care Recovery Act (MCRA) Claims and Claims Asserted 
                       Pursuant to 10 U.S.C. 1095



Sec.  757.11  Scope of Subpart B.

    Subpart B describes the assertion and collection of claims for 
medical care under the MCRA and 10 U.S.C. 1095. The MCRA states that 
when the Federal government provides treatment or pays for treatment of 
an individual who is injured or suffers a disease, the Government is 
authorized to recover the reasonable value of that treatment from any 
third party who is legally liable for the injury or disease. Title 10 
U.S.C. 1095 provides for the collection from third-party payers for the 
value of health care services incurred by the Government on behalf of 
covered beneficiaries.

[72 FR 53428, Sept. 19, 2007]



Sec.  757.12  Statutory authorities.

    (a) Medical Care Recovery Act, 42 U.S.C. 2651-2653 (2005).
    (b) Title 10 U.S.C. 1095 (Health Care Services Incurred on Behalf of 
Covered Beneficiaries: Collection from Third-Party Payers).
    (c) Title 10 U.S.C. 1079a (CHAMPUS: Treatment of Refunds and Other 
Amounts Collected).

[72 FR 53428, Sept. 19, 2007]



Sec.  757.13  Responsibility for MCRA actions.

    (a) JAG designees. (1) Primary responsibility for investigating, 
asserting, and collecting Department of the Navy (DON) MCRA claims and 
properly forwarding MCRA claims to other Federal departments or agencies 
rests with the following personnel:
    (i) Deputy Assistant Judge Advocate General (Claims and Tort 
Litigation Division) (Code 15); and the
    (ii) Commanding Officer, Naval Legal Service Command Europe and 
Southwest Asia (NLSC EURSWA), Naples, Italy, in its area of geographic 
responsibility.
    (2) JAG designee may assert and receive full payment on any MCRA 
claim. Code 15 may agree to compromise or waive claims for $100,000 or 
less. NLSC EURSWA may agree to compromise or waive claims for $40,000.00 
or less. NLSC EURSWA claims in excess of $40,000.00 may be compromised 
or waived only with Code 15 approval. See Sec. 757.19 for further 
discussion of waiver and compromise.
    (b) Navy Medical Treatment Facility (MTF). (1) Naval MTFs are 
responsible for ensuring potential MCRA/10 U.S.C. 1095 claims are 
brought to the attention of the appropriate JAG designee.
    (2) The MTF reports all potential MCRA/10 U.S.C. 1095 cases by 
forwarding a copy of the daily injury log entries and admission records 
to the cognizant JAG designee within 7 days of treatment for which a 
third party may be liable. The JAG designee makes the determination of 
liability. Recovery for the costs of MTF care is based on Diagnostic 
Related Group rates or a Relative Value Unit. Rates are established by 
the Office of Management and Budget and/or the DoD, and published 
annually in the Federal Register.
    (c) TRICARE Fiscal Intermediary. The TRICARE fiscal intermediary is 
required to identify and promptly mail claims involving certain 
diagnostic codes to the cognizant JAG designee. Claims are asserted for 
the actual amount that TRICARE paid.
    (d) Department of Justice (DoJ). Only the DoJ may authorize 
compromise or waiver of an MCRA/10 U.S.C. 1095 claim in excess of 
$100,000.00 or settle an MCRA/10 U.S.C. 1095 claim in which the

[[Page 183]]

third party has filed a suit against the United States as a result of 
the incident which caused the injury and upon which the claim is based.

[72 FR 53428, Sept. 19, 2007]



Sec.  757.14  Claims asserted.

    (a) General. The DoN asserts MCRA and 10 U.S.C. 1095 claims when 
medical care is furnished to Navy and Marine Corps active duty 
personnel, retirees, or their dependents, or any other person when 
appropriate, and third-party tort or contract liability exists for 
payment of medical expenses resulting from an injury or disease. Claims 
are asserted when the injured party is treated in a MTF or when the DoN 
is responsible for reimbursing a non-Federal care provider.
    (b) Independent cause of action. The MCRA creates an independent 
cause of action for the United States. The Government can 
administratively assert and litigate MCRA claims in its own name and for 
its own benefit. Procedural defenses, such as a failure of the injured 
person to properly file and/or serve a complaint on the third party, 
that may prevent the injured person from recovering, do not prevent the 
United States from pursuing its own action to recover the value of 
medical treatment provided to the injured person. The right arises 
directly from the statute; the statutory reference to subrogation 
pertain only to one mode of enforcement. In creating an independent 
right in the Government, the Act prevents a release given by the injured 
person to a third party from affecting the Government's claim.
    (c) Liable parties. MCRA and 10 U.S.C 1095 claims may be asserted 
against individuals, corporations, associations and non-Federal 
Government agencies subject to the limitation described in Sec.  757.15.
    (d) Reasonable value of medical care. The reasonable value of 
medical care provided to an injured person is determined:
    (1) By using the rate set as described in Sec.  757.13 (b)(2) in 
bills issued by the MTF; or
    (2) By the actual amount paid by the Federal Government to non-
Federal medical care providers.
    (e) Alternate theories of recovery. (1) Often, recovery under the 
MCRA is not possible because no third-party tort liability exists. For 
example, if a member, retiree, or dependent is driving a vehicle and is 
injured in single-car accident, there is no tortfeasor. Title 10 U.S.C. 
1095 provides the Government alternate means for recovery as a third-
party beneficiary of an insurance contract of the injured party.
    (2) Recovery may also be possible under State workers' compensation 
laws. Case law in this area is still emerging, but in most 
jurisdictions, the United States stands in the position of a lien 
claimant for services rendered.

[57 FR 5072, Feb. 12, 1992, as amended at 72 FR 53428, Sept. 19, 2007]



Sec.  757.15  Claims not asserted.

    In some cases, public policy considerations limit the DoN's 
assertion of claims against apparent third-party tortfeasors or a 
contract where the Government would be a third party beneficiary. Claims 
are not asserted against:
    (a) Federal Government agencies. Claims are not asserted against any 
department, agency or instrumentality of the United States. ``Agency or 
instrumentality'' includes self-insured, non-appropriated-fund 
activities but does not include private associations.
    (b) Injured service members, dependents, and employees of the United 
States. Claims are not asserted directly against a servicemember, the 
dependent of a servicemember, or an employee of the United States who is 
injured as a result of his own willful or negligent acts. The United 
States does assert, however, against policies that cover the injury.
    (c) Employers of merchant seamen. Claims are not asserted against 
the employer of a merchant seaman who receives Federal medical care 
under 42 U.S.C. 249.
    (d) Department of Veterans' Affairs care for service-connected 
disability. Claims are not asserted for care provided to a veteran by 
the Department of Veterans' Affairs when the care is for a service-
connected disability. The United States will, however, claim for the 
reasonable value of care provided

[[Page 184]]

an individual before he is transferred to a Department of Veterans' 
Affairs hospital. This policy does not apply in cases where the MTF 
referred the patient to the Veterans' Affairs hospital and then paid for 
the care.

[57 FR 5072, Feb. 12, 1992, as amended at 72 FR 53428, Sept. 19, 2007]



Sec.  757.16  Claims asserted only with OJAG approval.

    (a) Certain Government contractors. JAG approval is required before 
asserting a claim against a Federal government contractor when the 
contract provides that the contractor will be indemnified or held 
harmless by the Federal government for tort liability.
    (b) U.S. personnel. JAG approval is required before asserting MCRA 
claims directly against servicemembers, their dependents and federal 
employees and their dependents for injury to another person. No approval 
is necessary to assert claims against their insurance policies, however, 
except for injuries caused by servicemembers and federal employees 
acting ``within the scope of their employment.'' Intra-familial tort 
immunity would not preclude the Government from asserting any claims for 
care furnished to a tortfeasor's family members.

[72 FR 53429, Sept. 19, 2007]



Sec.  757.17  Statute of limitations.

    (a) Federal. Claims asserted under the MCRA or against an automobile 
liability insurer through 10 U.S.C. 1095 are founded in tort and must be 
brought within 3 years after the action ``first accrues'' (28 U.S.C. 
2415b). Normally, a medical care claim ``first accrues'' on the initial 
date of treatment.
    (b) Claims asserted under 10 U.S.C. 1095. Although legal arguments 
can be made that claims asserted under 10 U.S.C. 1095 against a no-fault 
or personal injury protection insurer are founded in contract and can be 
brought within 6 years (28 U.S.C. 2415a), all claims should be asserted 
within 3 years of the date when the claim accrued. However, some states 
require notice of such claims to be filed within a shorter period of 
time.

[72 FR 53429, Sept. 19, 2007]



Sec.  757.18  Asserting the claim.

    (a) Initial action by the JAG designee. When advised of a potential 
claim, the JAG designee will determine the Federal agency or department 
responsible for investigating and asserting the claim.
    (1) When DoN has reimbursed a non-Federal provider for health care, 
or when TRICARE has made payment for a Navy health care beneficiary, the 
JAG designee will assert any resulting claim.
    (2) When care is provided in a Federal treatment facility, the 
status of the injured person will determine the agency that will assert 
a resulting claim. Cost of treatment provided or paid for by an MTF is 
deposited in that MTF's account, regardless of which service is making 
the collection.
    (i) Where DoN members, retirees, or their dependents receive medical 
treatment from another Federal agency or department, the DoN will assert 
any claim on behalf of the United States based on information provided 
by the treating agency or department.
    (ii) Similarly, where a DoN MTF provides care to personnel of 
another Federal agency or department, that other agency or department 
will assert any claim on behalf of the United States.
    (3) If the claim is one which the DoN should assert, the JAG 
designee will forward all available information to the appropriate 
department or agency.
    (4) If the claim is one which the DoN should assert, the JAG 
designee will ensure an appropriate investigation into the circumstances 
underlying the claim is initiated and will provide notice to the injured 
party and all third parties who may be liable to the injured person and 
the United States under the MCRA or 10 U.S.C. 1095.
    (b) Investigating the claim. While there is no prescribed form or 
content for investigating these claims, the claims file will contain 
sufficient information on which to base valuation, assertion, 
settlement, waiver, and/or compromise decisions.
    (c) Notice of claim. (1) The JAG designee will assert claims by 
mailing a notice of claim to identified third-party tortfeasors and 
their insurers or insurers for third-party beneficiary coverage. Many 
insured tortfeasors fail

[[Page 185]]

to notify their insurance companies of incidents. This failure may be a 
breach of the cooperation clause in the policy and may be grounds for 
the insurer to refuse to defend the insured or be responsible for any 
liability. The United States, as a claimant, may preclude such an 
invocation by giving the requisite notification itself. The purpose of 
the insurance clause is satisfied if the insurer receives actual notice 
of the incident, regardless of the informant. This notice should be 
mailed as soon as it appears an identified third party may be liable for 
the injuries. The prompt assertion of the claim will ensure that the 
government is named on the settlement draft. If the United States is not 
so named, and the claim has been asserted, the insurer settles at its 
own risk.
    (2) The JAG designee will also notify the injured person or his 
legal representative of the Government's interest in the value of the 
medical care provided by the United States. This notice will advise 
that:
    (i) The United States may be entitled to recover the reasonable 
value of medical care furnished or paid by the Federal government;
    (ii) The injured person is required to cooperate in the efforts of 
the United States to recover the reasonable value of medical care 
furnished or paid for by the Federal government;
    (d) Administering the claim. (1) After investigating and asserting 
the claim, the JAG designee will maintain contact with all parties, 
their legal representatives, and insurers.
    (2) An effort should be made to coordinate collection of the Federal 
government's interest with the injured person's action to collect on a 
claim for damages.
    (i) Attorneys representing an injured person may be authorized to 
include the Federal government's claim as an item of special damages 
with the injured person's claim or suit.
    (ii) An agreement that the Government's claim will be made a party 
of the injured person's action should be in writing and state the 
counsel fees will not be paid by the Government or computed on the basis 
of the Government's portion of recovery.
    (3) If the injured person is not bringing an action for damages or 
is refusing to include the Federal Government's interest, the JAG 
designee will pursue independent collection. The United States is 
specifically allowed to intervene or join in any action at law brought 
by or through the injured person against the liable third person or 
brings an original suit in its own name or in the name of the injured 
person. The JAG designee will ensure all parties are aware that the 
United States must be a party to all subsequent collection negotiation.
    (4) When the Government's interests are not being represented by the 
injured person or his/her attorney, and independent collection efforts 
have failed, the JAG designee will refer the claims to the DoJ for 
possible suit.
    (e) Access to DoN records and information. (1) Copies of medical 
records in cases that have potential claims will be sent by the MTFs to 
the cognizant JAG designee. It is considered a routine use of the 
records for the JAG designee to release them to an insurance company, if 
requested, in order to substantiate the claim. However, only the MTF as 
``keepers of the records'' has the authority to make official releases 
of medical records to anyone else. Records will be protected in 
accordance with the provisions of the Privacy Act, 5 U.S.C. 552a, and 
confidentiality of quality assurance medical records, 10 U.S.C. 1102. 
Non-routine release requires the authorization from the injured 
individual or legal representative or an order from a court of competent 
jurisdiction. A clerk or attorney signed subpoena is not ``an order from 
a court of competent jurisdiction.'' Subpoenas are processed in 
accordance with 32 CFR part 725.
    (2) Requests for testimony of any Navy employees will be processed 
in accordance with DoD Directive 5405.2, 32 CFR part 725, and SECNAVINST 
5820.8A. If the injured person, or his or her attorney has signed an 
agreement to protect the Government's interest and is requesting the 
testimony of a locally available physician who treated the injured 
person, however, this request falls within an exception to the 
regulations. See 32 CFR 725.5(g)(3). In this situation, the injured 
person or

[[Page 186]]

the attorney need only ask the JAG designee for assistance in scheduling 
the testimony of the treating physician and the JAG designee will 
coordinate with the physician's command to determine availability. Such 
testimony is limited to factual issues. The definition of factual issues 
is slightly different under the regulations than it is in civil 
litigation. Opinions that are formed prior to, or contemporaneously 
with, the treatment at issue and are routinely required in the course of 
the proper performance of professional duties constitute essentially 
factual matters. For example, the physician will have opined at the time 
of treatment if further treatment will be necessary. The physician may 
testify to that as factual, not opinion, testimony. Opinions that are 
formed after treatment and are not required for continuing treatment, 
especially those that respond to hypothetical questions, are not factual 
and are considered to be expert testimony. This expert testimony, 
regardless of who requests it, will be processed in accordance with 32 
CFR part 725, and must be forwarded to OJAG Code 14, General Litigation 
Division. Requests for expert testimony are rarely granted.

[72 FR 53429, Sept. 19, 2007]



Sec.  757.19  Waiver and compromise.

    (a) General. OJAG Code 15 (Claims and Tort Litigation) may authorize 
waiver or compromise of any claim that does not exceed $100,000.00. NLSO 
EURSWA may agree to compromise or waive claims for $40,000.00 or less. 
NLSO EURSWA claims in excess of $40,000.00 may be compromised or waived 
only with Code 15 approval.
    (b) Waiver and compromise. The JAG designee may waive the Federal 
government's MCRA interest when a responsible third-party tortfeasor 
cannot be located, is judgment proof, or has refused to pay and 
litigation is not feasible. Waiver or compromise is also appropriate 
when, upon written request by the injured person or legal 
representative, it is determined that collection of the full amount of 
the claim would result in undue hardship to the injured person. In 
assessing undue hardship, the following should be considered:
    (1) Permanent disability or disfigurement;
    (2) Lost earning capacity;
    (3) Out-of-pocket expenses;
    (4) Financial status;
    (5) Disability, pension and similar benefits available;
    (6) Amount of settlement or award from third-party tortfeasor or 
contract insurer; and
    (7) Any other factors which objectively indicate fairness requires 
waiver.

[57 FR 5072, Feb. 12, 1992, as amended at 72 FR 53430, Sept. 19, 2007]



Sec.  757.20  Receipt and release.

    The JAG designee will execute and deliver appropriate releases to 
third parties who have made full or agreed upon compromised payments. A 
copy of the release will be kept in the claims file.

[72 FR 53430, Sept. 19, 2007]

[[Page 187]]



              SUBCHAPTER F_ISLANDS UNDER NAVY JURISDICTION





PART 761_NAVAL DEFENSIVE SEA AREAS; NAVAL AIRSPACE RESERVATIONS, AREAS UNDER NAVY ADMINISTRATION, AND THE TRUST TERRITORY OF THE PACIFIC ISLANDS--Table of Contents



                         Subpart A_Introduction

Sec.
761.1 Scope.
761.2 Background and general policy.
761.3 Authority.
761.4 Special provisions.
761.5 Definitions.

                  Subpart B_Criteria and Basic Controls

761.6 Criteria.
761.7 Basic controls.

                      Subpart C_Entry Authorization

761.8 General.
761.9 Entry Control Commanders.
761.10 Persons: Group authorizations.
761.11 Persons: Individual authorizations.
761.12 Ships: Group authorizations.
761.13 Ships: Individual authorizations.
761.14 Aircraft: Group authorizations.
761.15 Aircraft: Individual authorizations.
761.16 Notice of action.
761.17 Revocation.
761.18 Appeals.
761.19 Forms.

                    Subpart D_Additional Instructions

761.20 Additional regulations governing persons and vessels in Naval 
          Defensive Sea Areas.

    Authority: 5 U.S.C. 301, 10 U.S.C. 5031, 6011, 18 U.S.C. 2152. The 
text of part 761 contains additional references, including Executive 
Orders.

    Source: 28 FR 13778, Dec. 18, 1963, unless otherwise noted.



                         Subpart A_Introduction



Sec.  761.1  Scope.

    (a) This part provides regulations governing the entry of persons, 
ships, and aircraft into:
    (1) Naval Defensive Sea Areas and Naval Airspace Reservations 
established by Executive order of the President (see Sec.  761.3(a)).
    (2) Areas placed under the Secretary of the Navy for administrative 
purposes by Executive order of the President (see Sec.  761.3(b)).
    (3) The Trust Territory of the Pacific Islands (see Sec.  761.3(c)).
    (b) The entry authorizations issued under the authority of this part 
do not supersede or eliminate the need for visas or other clearances or 
permits required by other law or regulation.

[28 FR 13778, Dec. 18, 1963, as amended at 35 FR 10008, June 18, 1970]



Sec.  761.2  Background and general policy.

    (a) Certain areas, due to their strategic nature or for purposes of 
defense, have been subjected to restrictions regarding the free entry of 
persons, ships, and aircraft. Free entry into the areas listed and 
defined in this part, and military installations contiguous to or within 
the boundaries of defense areas, is subject to control as provided for 
by Executive order or other regulation. The object of controls over 
entry into naval defensive sea areas, naval airspace reservations, 
administrative areas, and the Trust Territory of the Pacific Islands, is 
to provide for the protection of military installations as well as other 
facilities, including the personnel, property, and equipment assigned to 
or located therein. Persons, ships, and aircraft are excluded unless and 
until they qualify for admission under the applicable Executive order or 
regulation.
    (b) The control of entry into or movement within defense areas by 
persons, ships, or aircraft will be exercised so as to fully protect the 
physical security of, and insure the full effectiveness of, bases, 
stations, facilities and other installations within or contiguous to 
defense areas. However, unnecessary interference with the free movement 
of persons, ships, and aircraft is to be avoided.
    (c) This part will be administered so as to provide for the prompt 
processing of all applications and to insure uniformity of 
interpretation and application, insofar as changing conditions permit.

[[Page 188]]

    (d) In cases of doubt, the determination will be made in favor of 
the course of action which will best serve the interests of the United 
States and national defense as distinguished from the private interests 
of an individual or group.

[28 FR 13778, Dec. 18, 1963, as amended at 35 FR 10008, June 18, 1970]



Sec.  761.3  Authority.

    (a) Naval Defensive Sea Areas and Naval Airspace Reservations. By 
Executive orders, as amended, the President has reserved, set aside, and 
established the following Naval Defensive Sea Areas and Naval Airspace 
Reservations under the control of the Secretary of the Navy. 
Incorporated therein are provisions for the exercise of control by the 
Secretary over the entry of persons, ships, and aircraft into the areas 
so described. (See Sec.  761.4(b) for delineation of areas where entry 
controls are suspended.)
    (1) Atlantic areas. Guantanamo Bay Naval Defensive Sea Area; 
Guantanamo Bay Naval Airspace Reservation: Executive Order 8749 of May 
1, 1941 (6 FR 2252; 3 CFR, 1943 Cum. Supp., p. 931).
    (2) Pacific areas. (i) Honolulu Defensive Sea Area: Executive Order 
8987 of December 20, 1941 (6 FR 6675; 3 CFR, 1943 Cum. Supp., p. 1048).
    (ii) Kaneohe Bay Naval Defensive Sea Area; Kaneohe Bay Naval 
Airspace Reservation: Executive Order 8681 of February 14, 1941 (6 FR 
1014; 3 CFR, 1943 Cum. Supp., p. 893).
    (iii) Pearl Harbor Defensive Sea Area: Executive Order 8143 of May 
26, 1939 (4 FR 2179; 3 CFR, 1943 Cum. Supp., p. 504).
    (iv) Johnston Island Naval Defensive Sea Area; Johnston Island Naval 
Airspace Reservation: Executive Order 8682 of February 14, 1941 (6 FR 
1015; 3 CFR, 1943 Cum. Supp., p. 894) as amended by Executive Order 8729 
of April 2, 1941 (6 FR 1791; 3 CFR, 1943 Cum. Supp., p. 919) and 
Executive Order 9881 of August 4, 1947 (12 FR 5325; 3 CFR, 1943-1948 
Comp., p. 662).
    (v) Kingman Reef Naval Defensive Sea Area; Kingman Reef Naval 
Airspace Reservation: Executive Order 8682 of February 14, 1941 (6 FR 
1015; 3 CFR, 1943 Cum. Supp., p. 894) as amended by Executive Order 8729 
of April 2, 1941 (6 FR 1791; 3 CFR, 1943 Cum. Supp., p. 919) and 
Executive Order 9881 of August 4, 1947 (12 FR 5325; 3 CFR, 1943-1948 
Comp., p. 662).
    (vi) Midway Island Naval Defensive Sea Area; Midway Island Naval 
Airspace Reservation: Executive Order 8682 of February 14, 1941 (6 FR 
1015; 3 CFR, 1943 Cum. Supp., p. 894) as amended by Executive Order 8729 
of April 2, 1941 (6 FR 1791; 3 CFR, 1943 Cum. Supp., p. 919) and 
Executive Order 9881 of August 4, 1947 (12 FR 5325; 3 CFR, 1943-1948 
Comp., p. 662).
    (vii) Wake Island Naval Defensive Sea Area; Wake Island Naval 
Airspace Reservation: Executive Order 8682 of February 14, 1941 (6 FR 
1015; 3 CFR, 1943 Cum. Supp., p. 894) as amended by Executive Order 8729 
of April 2, 1941 (6 FR 1791; 3 CFR, 1943 Cum. Supp., p. 919) and 
Executive Order 9881 of August 4, 1917 (12 FR 5325; 3 CFR, 1943-1948 
Comp., p. 662).
    (viii) Kiska Island Naval Defensive Sea Area; Kiska Island Naval 
Airspace Reservation: Executive Order 8680 of February 14, 1941 (6 FR 
1014; 3 CFR 1943 Cum. Supp., p. 892) as amended by Executive Order 8729 
of April 2, 1941 (6 FR 1791; 3 CFR, 1943 Cum. Supp., p. 919).
    (ix) Kodiak Naval Defensive Sea Area: Executive Order 8717 of March 
22, 1941 (6 FR 1621; 3 CFR, 1943 Cum. Supp., p. 915). Kodiak Naval 
Airspace Reservation: Executive Order 8597 of November 18, 1940 (5 FR 
4559; 3 CFR, 1943 Cum. Supp., p. 837) as amended by Executive Order 9720 
of May 8, 1946 (11 FR 5105; 3 CFR, 1943-1948 Comp., p. 527).
    (x) Unalaska Island Naval Defensive Sea Area, Unalaska Island Naval 
Air-space Reservation: Executive Order 8680 of February 14, 1941 (6 FR 
1014; 3 CFR, 1943 Cum. Supp., p. 892) as amended by Executive Order 8729 
of April 2, 1941 (6 FR 1791; 3 CFR, 1943 Cum. Supp., p. 919). See Sec.  
761.4(d) for delineation of areas where entry controls are suspended.
    (b) Administrative areas. By Executive orders, as amended, the 
President has reserved, set aside, and placed under the control and 
jurisdiction of the Secretary of the Navy for administrative purposes 
the following named areas including their appurtenant reefs and 
territorial waters:

[[Page 189]]

    (1) Johnston Island--Executive Order 6935 of December 29, 1934 as 
amended by Executive Order 11048 of September 4, 1962 (27 FR 8851; 3 
CFR, 1962 Supp., p. 241).
    (2) Kingman Reef--Executive Order 6935 of December 29, 1934 as 
amended by Executive Order 11048 of September 4, 1962 (27 FR 8851; 3 
CFR, 1962 Supp., p. 241).
    (3) Midway Island--Executive Order 11048 of September 4, 1962 (27 FR 
8851; 3 CFR, 1962 Supp., p. 241).
    (4) Sand Island--Executive Order 6935 of December 29, 1934 as 
amended by Executive Order 11048 of September 4, 1962 (27 FR 8851; 3 
CFR, 1962 Supp., p. 241).
    (c) Trust Territory of the Pacific Islands. The Trust Territory of 
the Pacific Islands is a strategic area administered by the United 
States under the provisions of a trusteeship agreement with the United 
Nations. Under Executive Order 11021 of May 7, 1962 (27 FR 4409; 3 CFR, 
1959-1963 Comp., p. 600), the Secretary of the Interior is charged with 
responsibility for administration of the civil government of the Trust 
Territory of the Pacific Islands. Under July 1, 1963 amendment two 
agreements effective July 1, 1951 and July 1, 1962 between the 
Department of the Navy and the Department of the Interior concerning 
responsibility for administration of the Government of the Trust 
Territory, the entry of individuals, ships and aircraft into the Trust 
Territory (other than areas under the control of the Department of the 
Army (Kwajalein Atoll) and of the Defense Nuclear Agency (Eniwetok 
Atoll) see Sec.  761.4) is controlled by the High Commissioner of the 
Trust Territory and the Department of the Navy as follows:
    (1) Entry of U.S. citizens and nationals and citizens of the Trust 
Territory, into areas of the Trust Territory other than those areas 
under control of the Department of the Army and the Defense Nuclear 
Agency as outlined above, shall be controlled by the High Commissioner.
    (2) All other persons: Applications for entry into the Trust 
Territory except for those areas under control of the Department of the 
Army or of the Defense Nuclear Agency, of all persons who are not U.S. 
citizens, U.S. nationals, or who are not citizens of the Trust 
Territory, shall be made to the High Commissioner for processing in 
accordance with the laws and regulations of the Trust Territory: 
Provided, That prior to the issuance of an authorization to enter the 
Trust Territory, the High Commissioner shall provide the Department of 
the Navy in all cases (with the exception of alien individuals who 
possess a valid U.S. visa and seek admission to the Trust Territory for 
a period of 30 days or less for the purpose of tourism) information on 
the applicants for its consideration and comment, granting thereby the 
Department of the Navy the right to object to the issuance of an 
authorization.
    (3) Ships and aircraft: (i) The entry of ships and aircraft, other 
than U.S. public ships and aircraft, documented under either the laws of 
the United States or the laws of the Trust Territory into areas of the 
Trust Territory, excepting those areas where entry is controlled by the 
Department of the Army (Kwajalein Atoll) and the Defense Nuclear Agency 
(Eniwetok Atoll), shall be controlled solely by the High Commissioner.
    (ii) Applications for entry into the Trust Territory, except for 
those areas under military control, of ships and aircraft not documented 
under the laws of the United States or the laws of the Trust Territory, 
shall be made to the High Commissioner for processing in accordance with 
the laws and regulations of the Trust Territory: Provided, That prior to 
the issuance of an authorization to enter the Trust Territory, the High 
Commissioner shall provide the Department of the Navy in all cases with 
information on the applicants for its consideration and comment, 
granting thereby the right of the Department of the Navy to object to 
the issuance of an authorization.
    (d) [Reserved]
    (e) Exercise of authority. The authority of the Secretary of the 
Navy to control entry of ships, planes, and persons into the areas 
listed is exercised through the Chief of Naval Operations and certain of 
his subordinates as prescribed in this part.
    (f) Penalties. Penalties are provided by law: (1) For violations of 
orders or regulations governing persons or ships within the limits of 
defensive sea areas

[[Page 190]]

(62 Stat. 799; 18 U.S.C. 2152); (2) for entering military, naval or 
Coast Guard property for prohibited purposes or after removal or 
exclusion therefrom by proper authority (62 Stat. 765; 18 U.S.C. 1382); 
(3) for violation of regulations imposed for the protection or security 
of military or naval aircraft, airports, air facilities, vessels, 
harbors, ports, piers, waterfront facilities, bases, forts, posts, 
laboratories, stations, vehicles, equipment, explosives, or other 
property or places subject to the jurisdiction, administration, or in 
the custody of the Department of Defense, any department or agency of 
which said department or agency consists, or any officer of employee of 
said department or agency (sec. 21 of the Internal Security Act of 1950 
(50 U.S.C. 797) and Department of Defense Directive 5200.8 of 20 August 
1954 (19 FR 5446)); and (4) for knowingly and willfully making a false 
or misleading statement or representation in any matter within the 
jurisdiction of any department or agency of the United States (18 U.S.C. 
1001).

[28 FR 13778, Dec. 18, 1963, as amended at 35 FR 10008, June 18, 1970; 
36 FR 21889, Nov. 17, 1971; 41 FR 28957, July 14, 1976]



Sec.  761.4  Special provisions.

    (a) Entry into islands in the Kwajalein Atoll under military 
jurisdiction is controlled by the Department of the Army. Inquiries 
concerning entries into islands under military control in the Kwajalein 
Atoll should be directed to: National Range Commander, U.S. Army 
Safeguard System Command, ATTN: SSC-R, P.O. Box 1500, Huntsville, AL 
35807.
    (b) Entry into Eniwetok Atoll is controlled by the Defense Nuclear 
Agency. Inquiries concerning entries into Eniwetok Atoll should be 
directed to: Commander, Field Command, Defense Nuclear Agency, Kirtland 
Air Force Base, NM 87115.
    (c) Entry into Johnston Atoll is controlled by the Defense Nuclear 
Agency. Inquiries concerning entries into Johnston Atoll should be 
directed to: Commander, Johnston Atoll (FCDNA), APO San Francisco, CA 
96305.
    (d) Suspension of restrictions. Restrictions imposed under the 
authority of the above cited Executive Orders on entry into the 
following Naval Defensive Sea Areas and Naval Airspace Reservations and 
Administrative Areas have been suspended subject to reinstatement 
without notice at any time when the purposes of national defense may 
require.
    (1) All Naval Airspace Reservations, except the Guantanamo Bay Naval 
Airspace Reservation
    (2) Honolulu Defensive Sea Area.
    (3) Kiska Island Naval Defensive Sea Area.
    (4) Kodiak Island Naval Defensive Sea Area.
    (5) Unalaska Island Naval Defensive Sea Area.
    (6) Wake Island Naval Defensive Sea Area except for entry of foreign 
flag ships and foreign nationals.
    (7) The portion of Kaneohe Defensive Sea Area lying beyond a 500 
yard buffer zone around the perimeter of the Kaneohe Marine Corps Air 
Station (Mokapu Peninsula) and eastward therefrom to Kapoho Point, Oahu.
    (e) Suspension of restrictions on entry into a naval airspace 
reservation, naval defensive sea area, or naval administrative area, 
does not affect the authority of a commanding officer or other 
appropriate commander to control entry into or passage through any base, 
station, or other installation or area, including port or harbor 
facilities under Navy control.

[41 FR 28957, July 14, 1976]



Sec.  761.5  Definitions.

    (a) Defense area. A naval defensive sea area, naval airspace 
reservation, or naval administrative area established by Executive order 
of the President.
    (b) Department of Defense. The Department of Defense, including the 
Departments of the Army, Navy, and Air Force.
    (c) Entry authorization. A document which authorizes a ship, 
aircraft, or person to enter a defense area.
    (d) Entry Control Commander. A commander empowered to issue entry 
authorizations for one or more defense areas (see Sec.  761.9).
    (e) Excluded person. A person who does not hold a currently valid 
entry authorization for the area concerned and who has been notified by 
an Entry Control Commander that authority for

[[Page 191]]

him to enter any defense area has been denied, suspended or revoked.
    (f) Foreign nationals. Persons who are not citizens or nationals of 
the United States.
    (g) Military installation. A military (Army, Navy, Air Force, Marine 
Corps, and/or Coast Guard) activity ashore, having a commanding officer, 
and located in an area having fixed boundaries, within which all persons 
are subject to military control and to the immediate authority of a 
commanding officer.
    (h) Public vessel or aircraft. A ship or aircraft owned by or 
belonging to a government and not engaged in commercial activity.
    (i) Territorial sea--(1) Trust Territory. In accordance with title 
19, section 101(3), of the Trust Territory Code ``* * * that part of the 
sea comprehended within the envelope of all arcs of circles having a 
radius of three marine miles drawn from all points of the barrier reef, 
fringing reef, or other reef system of the Trust Territory, measured 
from the low water line, or, in the absence of such reef system, the 
distance to be measured from the low water line of any island, islet, 
atoll, reef, or rocks within the jurisdiction of the Trust Territory.''
    (2) Other areas. That part of the sea included within the envelope 
of all arcs of circles having a radius of three marine miles with 
centers on the low water line of the coast. For the purpose of this 
definition, the term ``coast'' includes the coasts of islands, islets, 
rocks, atolls, reefs and other areas of land permanently above the high 
water mark.
    (j) Trust Territory Registry. Registration of a ship or aircraft in 
accordance with the laws of the Trust Territory.
    (k) U.S. Registry. Registration of a ship or aircraft in accordance 
with the laws and regulations of the United States.
    (l) U.S. Armed Forces. Military personnel of the Department of 
Defense, the Departments of the Army, Navy, Air Force, and the United 
States Coast Guard.

[28 FR 13778, Dec. 18, 1963, as amended at 35 FR 10009, June 18, 1970; 
41 FR 28958, July 14, 1976]



                  Subpart B_Criteria and Basic Controls



Sec.  761.6  Criteria.

    (a) General. (1) Entry authorizations may be issued only after an 
Entry Control Commander, or a duly authorized subordinate acting in his 
behalf, has determined that the presence of the person, ship, or 
aircraft will not, under existing or reasonably foreseeable future 
conditions, endanger, place an undue burden upon, or otherwise 
jeopardize the efficiency, capability, or effectiveness of any military 
installation located within or contiguous to a defense area. Factors to 
be considered shall include, but not be limited to, the true purpose of 
the entry, the personal history, character and present or past 
associates of the individuals involved, the possible burdens or threats 
to the defense facilities which the presence of the ship, aircraft or 
the individual or individuals involved impose or might reasonably be 
expected to impose on the related base complex.
    (2) Requests for entry authorizations will be evaluated and adjudged 
as to whether the entry at the time and for the purpose stated will or 
will not be inimical to the purposes of national defense.
    (b) Adverse. Substantial evidence of any of the following shall 
preclude the granting of entry authorization except with the specific 
approval of the Chief of Naval Operations in each case:
    (1) Prior noncompliance with entry control regulations or failure to 
observe terms under which any entry authorization may have been granted; 
\1\
---------------------------------------------------------------------------

    \1\ The criteria so marked are applicable only to those applications 
concerning entry into areas under military cognizance.
---------------------------------------------------------------------------

    (2) Willfully furnishing false, incomplete, or misleading 
information in an application for an entry authorization;\1\
    (3) Advocacy of the overthrow or alteration of the Government of the 
United States by unconstitutional means;
    (4) Commission of, or attempt or preparation to commit, an act of 
espionage, sabotage, sedition, or treason, or conspiring with or aiding 
or abetting another to commit such an act;

[[Page 192]]

    (5) Performing, or attempting to perform, duties, or otherwise 
acting so as to serve the interest of another government to the 
detriment of the United States;
    (6) Deliberate unauthorized disclosure of classified defense 
information;
    (7) Knowing membership with the specific intent of furthering the 
aims of, or adherence to and active participation in, any foreign or 
domestic organization, association, movement, group, or combination of 
persons (hereinafter referred to as organizations) which unlawfully 
advocates or practices the commission of acts of force or violence to 
prevent others from exercising their rights under the Constitution or 
laws of the United States or of any State, or which seeks to overthrow 
the Government of the United States or any State or subdivision thereof 
by unlawful means;
    (8) Serious mental irresponsibility evidenced by having been 
adjudged insane, or mentally irresponsible, or an incompetent, or a 
chronic alcoholic, or treated for serious mental or neurological 
disorders or for chronic alcoholism, without evidence of cure; \1\
---------------------------------------------------------------------------

    \1\ The criteria so marked are applicable only to those applications 
concerning entry into areas under military cognizance.
---------------------------------------------------------------------------

    (9) Conviction of any of the following offenses under circumstances 
indicative of a criminal tendency potentially dangerous to the security 
of a strategic area containing military establishments; arson, unlawful 
trafficking in drugs, murder, kidnaping, blackmail, or sex offenses 
involving minors or perversion.
    (10) Chronic alcoholism or addiction to the use of narcotic drugs 
without adequate evidence of rehabilitation; \1\
    (11) Illegal presence in the United States, its territories or 
possessions, having been finally subject to deportation order, or 
voluntary departure in lieu of deportation order, by the United States 
Immigration and Naturalization Service; \1\
    (12) Being the subject of proceedings for deportation or voluntary 
departure in lieu of deportation for any reasons which have not been 
determined in the applicant's favor; \1\
    (13) Conviction of larceny of property of the United States, willful 
injury to or destruction of property of the United States, fraudulent 
enlistment, impersonation of a commissioned officer of the United States 
or any state or territory thereof, or any offense involving moral 
turpitude, except offenses, which, in the jurisdiction within which the 
conviction was obtained, are punishable by imprisonment for not more 
than one year or a fine of not more than one thousand dollars. \1\
    (c) Aliens. (1) Entry of aliens for employment or residence in an 
area entirely within the borders of a defense area is not authorized 
except when such entry would serve the interests of National Defense, 
and then only for specified periods and under prescribed conditions.
    (2) Entry of aliens for any purpose into areas over which the United 
States exercises sovereignty is further subject to requirements imposed 
by law for the obtaining of a United States visa. Naval authorization 
for entry into areas covered by this part will not be issued to foreign 
nationals for purposes, places, or periods of time in excess of those 
stipulated in the visa.
    (3) Alien spouses and bona fide dependents of U.S. citizen employees 
of the United States may, if otherwise qualified, be granted entry 
authorization so long as the U.S. citizen sponsor or principal remains 
on duty or resident within the defense area.
    (d) Renewals. Entry authorizations having been granted and utilized 
may be extended or renewed upon request at the expiration of the period 
for which the entry was originally authorized or extended, provided the 
justification for remaining in the area or for making a reentry meets 
the criteria set forth in this part. It shall be the responsibility of 
every applicant to depart the defense area for which entry was 
authorized upon expiration of the time prescribed in the authorization, 
unless such authorization has been extended or renewed. Failure to 
comply herewith will be considered as evidence of violation

[[Page 193]]

of this part and may result in denial of future authorizations.

[28 FR 13778, Dec. 18, 1963, as amended at 36 FR 21890, Nov. 17, 1971; 
41 FR 28958, July 14, 1976]



Sec.  761.7  Basic controls.

    (a) General. Except for such persons, ship, or aircraft as are 
issued an authorization to enter by an Entry Control Commander:
    (1) No person, except persons aboard public vessels or aircraft of 
the United States, shall enter any defense area.
    (2) No vessel or other craft, except public vessels of the United 
States shall enter any naval defensive sea area or other defense area.
    (3) No aircraft, except public aircraft of the United States, shall 
be navigated within any naval airspace reservation of the airspace over 
other defense areas.
    (b) Excluded persons--(1) Entry prohibited. Excluded persons, as 
defined in Sec.  761.5(e), are prohibited from entering any defense 
area. In a bona fide emergency which requires an excluded person's 
presence in or transit through a military installation which is also a 
defense area, the commanding officer of the installation may grant 
permission to enter or transit subject to such restrictions as may be 
imposed by regulation or which may, in his discretion, be required.
    (2) Carrying prohibited. Except in a bona fide emergency and after 
being authorized by the appropriate local authority, no vessel or 
aircraft, except public vessels and aircraft of the United States, shall 
enter into or be navigated within any defense area while carrying any 
excluded person, as defined in this part, as passenger, officer or crew 
member.
    (c) Control of violators. No commanding officer of a military 
installation shall permit any ship or aircraft which has entered the 
limits of his command by passing through a defense area without 
authorization to land, except in emergency, or, if permitted to land, to 
disembark passengers or cargo except as authorized by the appropriate 
Entry Control Commander. Commanding officers will take appropriate 
action to apprehend violators who come within their jurisdiction and 
request disposition instructions from the appropriate Entry Control 
Commander.
    (d) Trust Territory. An authorization from the High Commissioner is 
required for all persons desiring to enter the Trust Territory, except 
for those areas under military jurisdiction where entry is controlled by 
the Department of the Army (Kwajalein Atoll) and the Defense Nuclear 
Agency (Eniwetok Atoll).
    (e) Military areas. Entries authorized under this Instruction do not 
affect the authority of a commanding officer or other appropriate 
commander to impose and enforce proper regulations pertaining to 
movement into or within naval stations or other military installations.
    (f) Waiver prohibited. No officer of the U.S. Armed Forces, except 
as authorized in writing by the Chief of Naval Operations, has authority 
to waive the requirements of this part, and any waiver must be in 
writing and signed by an authorized person.

[28 FR 13778, Dec. 18, 1963, as amended at 36 FR 21890, Nov. 17, 1971; 
41 FR 28958, July 14, 1976]



                      Subpart C_Entry Authorization



Sec.  761.8  General.

    (a) As indicated in Sec.  761.7(a), certain persons, ships, and 
aircraft must be specifically authorized under the provisions of this 
part to enter defense areas.
    (b) When entering or transiting a defense area each person, ship, or 
aircraft must have a valid authorization or satisfactory evidence 
thereof.



Sec.  761.9  Entry Control Commanders.

    The following commanders are designated Entry Control Commanders 
with authority to approve or disapprove individual entry authorizations 
for persons, ships, or aircraft as indicated (Commander Seventeenth 
Coast Guard District has been designated an Entry Control Commander by 
the authority of the Commandant, U.S. Coast Guard and Commander, Western 
Area, U.S. Coast Guard);
    (a) Chief of Naval Operations. Authorization for all persons, ships, 
or aircraft to enter all defense areas.

[[Page 194]]

    (b) Commander in Chief, U.S. Atlantic Fleet. Authorization for all 
persons, ships, or aircraft to enter defense areas in the Atlantic.
    (c) Commander in Chief, U.S. Pacific Fleet. Authorization for all 
persons, ships, or aircraft to enter defense areas in the Pacific.
    (d) Commander U.S. Naval Forces Caribbean. Authorization for all 
persons, ships, and aircraft to enter the Guantanamo Bay Naval Defensive 
Sea Area and the Guantanamo Naval Airspace Reservation. (This authority 
delegated to Commander U.S. Naval Base, Guantanamo Bay.)
    (e) Commander U.S. Naval Base, Guantanamo Bay. Authorization for all 
persons, ships, and aircraft to enter the Guantanamo Bay Naval Defensive 
Sea Area and the Guantanamo Naval Airspace Reservation.
    (f) Commander Third Fleet. Authorization for U.S. citizens and U.S. 
registered private vessels to enter Midway Island, Kingman Reef, Kaneohe 
Bay Naval Defensive Sea Area, Pearl Harbor Defensive Sea Area and 
Filipino workers employed by U.S. contractors to enter Wake Island.
    (g) Commander U.S. Naval Forces, Marianas. Authorization in 
conjunction with the High Commissioner, for non-U.S. citizens, ships, or 
aircraft documented under laws other than those of the United States or 
the Trust Territory to enter those portions of the Trust Territory where 
entry is not controlled by the Department of the Army or the Defense 
Nuclear Agency.
    (h) Senior naval commander in defense area. Emergency authorization 
for persons, ships, or aircraft in cases of emergency or distress. In 
all cases the Chief of Naval Operations, and as appropriate, the 
Commander in Chief, U.S. Atlantic Fleet or the Commander in Chief, U.S. 
Pacific Fleet, and other interested commands, shall be informed 
immediately of the nature of the emergency, and action taken.
    (i) U.S. Coast Guard. The U.S. Coast Guard regulates the movement of 
shipping within the Honolulu Harbor under the authority of Executive 
Orders 10173 and 10289; such shipping is considered to be under U.S. 
authorized supervision within the meaning of Executive Order 8987. The 
Commandant, Fourteenth Naval District, as representative of the 
Secretary of the Navy, retains responsibility for security of the 
Honolulu Defensive Sea Area, as required by naval interest, and, as 
such, issues amplifying instructions relating to the Honolulu Defensive 
Sea Area.

[41 FR 28958, July 14, 1976]



Sec.  761.10  Persons: Group authorizations.

    Persons in the following categories, except those persons who have 
been denied individual authorization or have had a prior authorization 
revoked, may enter the defense areas indicated without individual 
authorization:
    (a) Persons aboard U.S. public vessels or aircraft entering a Naval 
Defensive Sea Area or a Naval Airspace Reservation.
    (b) Military members of the U.S. Armed Forces or U.S. civil service 
employees of the Department of Defense when traveling on official 
orders.
    (c) U.S. ambassadors, cabinet members, elected U.S. Government 
officers and U.S. citizen civil service employees of the U.S. Government 
traveling on official orders on U.S. Government business may enter 
defense areas as required by their orders.
    (d) Dependents of military members of the U.S. Armed Forces and U.S. 
citizen dependents of U.S. civil service employees traveling on official 
orders and entering for purposes of joining a principal permanently 
stationed in an area covered by this part.
    (e) U.S. Navy Technicians, U.S. Army Contract Technicians, or U.S. 
Air Force Contract Technicians, who are traveling on official (does not 
include invitational) travel orders on U.S. Government business, may 
enter defense areas as specifically required by such orders.
    (f) [Reserved]
    (g) Individuals on board any foreign public vessel or aircraft which 
has been granted diplomatic or other official U.S. Government 
authorization to enter an area covered by this part.
    (h) Through passengers and bona fide regularly employed crew 
members, unless otherwise excluded, on nonpublic vessels authorized to 
enter areas covered by this part. This does not include an authorization 
to disembark at a

[[Page 195]]

port contiguous to or within the areas covered in this part. Application 
for authorization to disembark may be submitted to an Entry Control 
Commander having jurisdiction over the particular port.
    (i) Through passengers and bona fide regularly employed crew 
members, unless otherwise excluded, on nonpublic aircraft authorized to 
enter areas covered by this part. Such persons are subject to local 
regulations governing entry into or movement within military air 
stations or facilities. Application for authorization to disembark may 
be submitted to an Entry Control Commander having jurisdiction over the 
air facility.
    (j) U.S. citizen news correspondents and photographers when properly 
accredited by the Department of Defense to enter areas covered by this 
part except that special authorization is required to enter the 
restricted areas listed in Sec.  761.4(a).

[28 FR 13778, Dec. 18, 1963, as amended at 36 FR 21890, Nov. 17, 1971]



Sec.  761.11  Persons: Individual authorizations.

    (a) Application; filing. Applications for authorization to enter 
defense areas shall be filed with one of the following:
    (1) Chief of Naval Operations.
    (2) Commander in Chief, U.S. Atlantic Fleet.
    (3) Commander in Chief, U.S. Pacific Fleet.
    (4) Any Naval Sea Frontier Commander.
    (5) Any Naval Fleet or Force Commander.
    (6) Any Naval District Commandant.
    (7) Any Naval Attache. The Commander or Attache with whom the 
application is filed is responsible for taking such action on the 
application as he may be empowered to do or for forwarding the 
application to the nearest Entry Control Commander authorized by this 
part to take action thereon. Applications received in the United States 
and those received indicating that the applicant has resided in the 
United States for the major portion of ten years immediately prior to 
date of request will normally be forwarded to the Chief of Naval 
Operations for action. In all cases where the forwarding activity has 
information regarding the applicant or his employer, appropriate comment 
and/or recommendation for disposition will be included in the forwarding 
letter.
    (b) Form. (1) Applications for entry authorizations will be made on 
the standard form Statement of Personal History, DD 398, which is 
available at most military installations. In addition to the information 
required by the form, an entry application shall include the following 
additional information under Item 20, ``Remarks'':

    21. Purpose of proposed visit: (Detailed statement including names 
of principal persons, firms, or establishments to be visited)
    22. Proposed duration of visit:
    23. Estimated date of arrival:
    24. Address to which authorization should be mailed:


In the event that a DD 398 form is not available, a locally produced 
form containing identical information including the certification and 
signature of applicant and witness may be utilized.
    (2) Incomplete forms will be returned for completion.
    (3) When time is of the essence, emergency applications may be 
forwarded by message to the appropriate Entry Control Commander. Such 
messages shall include the following:
    (i) Name of applicant.
    (ii) Date and place of birth.
    (iii) Citizenship.
    (iv) Residence for last ten (10) years.
    (v) Employers and their addresses for last ten (10) years.
    (vi) Results of Local Agency Check, if pertinent.
    (vii) Place to be entered and date of entry.
    (viii) Purpose of entry and duration of stay.
    (ix) Comments and/or recommendations of forwarding officer as 
appropriate.
    (x) A statement that a completed DD 398 or appropriate substitute 
has been mailed prior to the sending of the message.
    (c) Processing. The Entry Control Commander empowered to issue entry 
authorizations shall upon receipt of an application take the following 
action:
    (1) Initiate or conduct such investigation as may be required to 
establish

[[Page 196]]

facts upon which to make a determination that the entry of the applicant 
at the time and for the purpose indicated is or is not in accordance 
with the criteria set forth in Sec.  761.6.
    (2) Request additional information from the applicant if required, 
or
    (3) Issue an entry authorization as requested or modified as 
circumstances require, or
    (4) Deny the request and advise the applicant of his right to 
appeal, or,
    (5) Forward the application to the next superior in command together 
with a statement of the investigation conducted and the reason for 
forwarding and comments or recommendations as appropriate.
    (d) Authorizations. Entry authorizations will state the purpose for 
which the entry is authorized and such other information and conditions 
as are pertinent to the particular authorization. Authorizations to 
enter and re-enter may be issued to resident U.S. citizens and be valid 
for a specified time not to exceed two years. Authorizations may be 
issued to U.S. citizens residing abroad and to aliens to enter and re-
enter for a specified period of time required to accomplish the purpose 
for which the authorization was issued not to exceed one year.

[28 FR 13778, Dec. 18, 1963, as amended at 41 FR 28958, July 14, 1976]



Sec.  761.12  Ships: Group authorizations.

    Ships or other craft in the following categories, except those ships 
which have been denied individual authorization or have had a prior 
authorization revoked, may enter the defense areas indicated without 
individual authorizations:
    (a) U.S. Public vessels, to enter all defense areas.
    (b) U.S. private vessels which are: (1) Under charter to the 
Department of Defense (including the Military Sealift Command), or (2) 
operating under a contract or charter with the Department of Defense 
providing for the employment of such vessels, or (3) routed by a Naval 
Control of Shipping Office, or (4) employed exclusively in support of 
and in connection with a Department of Defense construction, 
maintenance, or repair contract and whose crews carry individual entry 
clearances, to enter defense areas as authorized by controlling Defense 
Department agency.
    (c) [Reserved]
    (d) Privately owned local craft, registered with and licensed by 
appropriate local U.S. Government authorities, and owned and operated by 
local inhabitants who have been granted an authorization to enter the 
local defense area at the discretion of the local commanders.
    (e) Foreign flag ships traveling on diplomatic or other special 
clearance or for which special arrangements have been made under 
international agreements or treaties.
    (f) Ships operating under a group authorization issued by the Chief 
of Naval Operations.
    (g) Ships in distress, subject to local clearances and control by 
senior officer present.

[28 FR 13778, Dec. 18, 1963, as amended at 36 FR 21890, Nov. 17, 1971]



Sec.  761.13  Ships: Individual authorizations.

    (a) Applications; form; filing. Applications for authorization to 
navigate ships within the limits of defense areas shall be filed with 
the cognizant Entry Control Commander by letter or telegram including 
the following information and any additional information that may be 
relative to the proposed operation:
    (1) Name of ship.
    (2) Place of registry and registry number.
    (3) Name, nationality and address of operator.
    (4) Name, nationality and address of owner.
    (5) Gross tonnage of ship.
    (6) Nationality and numbers of officers and crew (include crewlist 
when practicable).
    (7) Number of passengers (include list when practicable).
    (8) Last port of call prior to entry into area for which clearance 
is requested.
    (9) Purpose of visit.
    (10) Proposed date of entry and estimated duration of stay.
    (b) Processing. Authorization for single entries or for multiple 
entries for a period not to exceed one year may be

[[Page 197]]

granted or denied by an Entry Control Commander. Authorizations for 
multiple entries for a period to exceed one year or for special group 
entries must be forwarded to the Chief of Naval Operations with 
appropriate comments and recommendations.



Sec.  761.14  Aircraft: Group authorizations.

    Aircraft in the following categories, except those aircraft which 
have been denied individual authorization or have had a prior 
authorization revoked, may enter the defense areas indicated without 
individual authorization:
    (a) U.S. public aircraft to enter all defense areas.
    (b) U.S. private aircraft which are under charter to the Department 
of Defense (including the Military Airlift Command), or operating under 
a contract with the Department of Defense providing for the employment 
of such aircraft to overfly U.S. island positions to enter defense areas 
as authorized by controlling Defense Department agency. If landing at 
U.S. military facilities is required, see Sec.  761.15(a).
    (c) Foreign flag aircraft for which special arrangements have been 
made under international agreements or treaties.
    (d) Aircraft operated by companies authorized to utilize naval 
facilities in defense areas for regular commercial activity, to enter 
defense areas associated therewith. For landing clearance at U.S. 
military facilities, see Sec.  761.15(a).
    (e) Any aircraft in distress, subject to local clearance and control 
by senior officer present.

[41 FR 28958, July 14, 1976]



Sec.  761.15  Aircraft: Individual authorizations.

    (a) Special procedures. In addition to the entry authorization to 
enter or navigate within the defense area concerned, certain special 
procedures must be followed by aircraft:
    (1) If landing at U.S. naval aviation facilities, an Aviation 
Facility License must be obtained, in accordance with Secretary of the 
Navy Instruction 3770.1B, Use of Department of the Navy aviation 
facilities by other than United States Department of Defense aircraft.
    (2) If landing at U.S. Air Force aviation facilities, a Civil 
Aircraft Landing Permit must be obtained, in accordance with Department 
of the Airforce Regulation 55-20, Use of United States Air Force 
installations by other than United States Department of Defense 
aircraft.
    (3) Foreign public aircraft must obtain diplomatic clearance or 
clearance under applicable special agreements or treaties.
    (b) Application; Form; Filing. Applications for authorization to 
navigate aircraft within the limits of defense areas shall be made by 
letter or telegram addressed to the appropriate entry control commander 
as indicated in Sec.  761.9 with information copies to the Chief of 
Naval Operations, Commander in Chief, U.S. Atlantic (or Pacific) Fleet, 
as appropriate, and other local commanders who are known to be 
concerned. Applications shall include the following:
    (1) Type and serial number of aircraft (the number of aircraft in 
flight if a mass movement is involved), nationality and name of 
registered owner.
    (2) Name and rank of senior pilot.
    *(3) Number in crew.
---------------------------------------------------------------------------

    *See ``Note'' to this paragraph.
---------------------------------------------------------------------------

    *(4) Number of passengers and whether military or civilian; include 
name (and rank) of distinguished passengers.
    (5) Purpose of flight.
    (6) Plan of flight route, including:
    (i) Point of origin of flight and its destination.
    (ii) Estimated date and times of arrival and departure at all 
airspaces covered by this part 761 including stops within the Trust 
Territory, when pertinent.
    (7) Radio call signs of aircraft and radio frequencies available.
    (8) Whether cameras are to be carried and whether they will be used.
    *(9) Whether arms are to be carried.
    *(10) Whether authorization to land as indicated in Sec.  761.15(a) 
has been obtained.
    Note: Information on those items marked with an asterisk (*) need 
not be reported when the aircraft will only overfly the areas covered by 
this part.
    (c) Processing. Authorization for individual entries or for multiple 
entries for a period not to exceed three months may be granted by an 
Entry Control

[[Page 198]]

Commander. Authorizations for multiple entries over a period to exceed 
three months and applications for group authorizations must be forwarded 
to the Chief of Naval Operations with appropriate comments and 
recommendations.

[41 FR 28958, July 14, 1976]



Sec.  761.16  Notice of action.

    All applicants will be kept advised of action being taken relative 
to the processing of applications. Individuals whose applications cannot 
be processed promptly (usually within ten working days) or whose 
applications must be forwarded to another office for processing will be 
notified of the anticipated delay and advised of the approximate time 
when action may be expected to be taken. Under no circumstances will a 
notice of disapproval include a statement of the reason therefor. Copies 
of all notices will be distributed to commands and Entry Control 
Commanders concerned. Copies of all notices of disapproval will be 
mailed to the Chief of Naval Operations concurrently with the mailing to 
the applicant.



Sec.  761.17  Revocation.

    Entry authorizations will be revoked only by an Entry Control 
Commander upon being advised of the discovery of information which would 
have been ground for denial of the initial request. Such a revocation 
will be confirmed in writing to the holder of an entry authorization. No 
reason for revocation of the entry authorization will be given. When an 
entry authorization is revoked, a one-way permit will be issued as 
appropriate, to permit the ship, aircraft, or person to transit the 
defense area in order to depart from a contiguous area.



Sec.  761.18  Appeals.

    (a) Appeals may be filed with the Entry Control Commander who issued 
the denial or revocation. It shall contain a complete statement of the 
purpose of the proposed entry and a statement of reasons why the entry 
should be authorized, including a showing that the entry will be 
consistent with the purposes of national defense.
    (b) Appeal letters shall be forwarded promptly to the next superior 
Entry Control Commander with an endorsement setting forth the reasons 
for the denial or revocation and a recommendation as to the action to be 
taken by the superior.
    (c) The superior may act on the appeal and notify the applicant of 
the decision, or he may forward the appeal to the next superior and 
notify the applicant of this referral.

[28 FR 13778, Dec. 18, 1963, as amended at 41 FR 28959, July 14, 1976]



Sec.  761.19  Forms.

    The following forms shall be used in connection with the processing 
of applications for authorization to enter defense areas and for 
revocation of authorizations as indicated:
    (a) Application. Statement of Personal History (Form DD 398, Stock 
Number 0102-004-220) may be obtained from NAVPUBFORMCEN, Building 26, 
5801 Tabor Ave., Philadelphia, PA 19120.
    (b) Entry authorization. (1) Defense Area Entry Authorization 
(OPNAVForm 4600-2 (Rev. 5-59) may be obtained from Office of the Chief 
of Naval Operations (OP-09B33), Navy Department, Washington, DC 20350.
    (2) Letter or message authorization.
    (c) Disapproval of request for entry authorization.

    My Dear ______: Your application of ___ has been reviewed and we 
regret to advise you that the requested authorization for ________ to 
enter ________ is not granted as the entry at this time for the purpose 
stated is not considered to be in the interest of national defense.
    The application may be resubmitted again in six months at which time 
it will be reconsidered in the light of then existing circumstances.
    If you desire to appeal this decision, you may do so by submitting a 
letter to this office setting forth in full why you consider that the 
granting of the application would be in the interest of national defense 
and any other information that you believe will be of value of this 
person considering the appeal. Your letter will be forwarded to the 
appropriate authority for review and you will be advised in due course 
of his determination.

Sincerely yours,

    (d) Revocation of entry authorization.

    My Dear ______: This is to notify you that entry authorization to 
enter

[[Page 199]]

________ granted by (issuing activity) on ____ is hereby revoked 
effective this date.

Sincerely yours,

[41 FR 28959, July 14, 1976]



                    Subpart D_Additional Instructions



Sec.  761.20  Additional regulations governing persons and vessels
in Naval Defensive Sea Areas.

    (a) By virtue of the authority vested in the President by section 44 
of the United States Criminal Code, as amended and reenacted in 18 
U.S.C. 2152, the President has prescribed the following additional 
regulations in Executive Order 9275 of November 23, 1942 (7 FR 9767; 
1943 Cum. Supp. p. 1227) to govern persons and vessels within the limits 
of defensive sea areas theretofore or thereafter established.
    (1) No person shall have in his possession within the limits of any 
defensive sea area, any camera or other device for taking pictures, or 
any film, plate or other device upon or out of which a photographic 
imprint, negative or positive, can be made, except in the performance of 
official duty or employment in connection with the national defense, or 
when authorized pursuant to the provisions of the Act approved June 25, 
1942 (Pub. L. 627, 77th Congress), as amended (50 U.S.C. App. 781-785), 
and the regulations promulgated thereunder (7 FR 7307; 32 CFR 
765.19(b)).
    (2) It shall be the duty of the master or officer in charge of any 
vessel to take custody of and safeguard all cameras or other devices for 
taking pictures, or film, plate or other device upon or out of which a 
photographic imprint, positive or negative, can be made, the possession 
of which is prohibited by Executive Order 9275, from any person, prior 
to the time any vessel enters any defensive sea area or upon the 
boarding by any person of any vessel while within a defensive sea area, 
and to retain custody thereof until such vessel is outside the defensive 
sea area or the person is about to disembark.
    (3) There shall be prominently displayed on board all vessels, 
except public war vessels of the United States manned by personnel in 
the naval service, a printed notice containing the regulations 
prescribed in Executive Order 9275.
    (4) Any person violating section 1 of Executive Order 9275 (restated 
in paragraph (a)(1) of this section) shall be liable to prosecution as 
provided in section 44 of the Criminal Code as amended and reenacted in 
18 U.S.C. 2152.
    (b) The regulations stated in paragraph (a) of this section are not 
a limitation on prosecution under any other statute that may have been 
violated by acts or omissions prohibited by Executive Order 9275.

                           PART 762 [RESERVED]

[[Page 200]]



                    SUBCHAPTER G_MISCELLANEOUS RULES





PART 765_RULES APPLICABLE TO THE PUBLIC--Table of Contents



Sec.
765.1-765.5 [Reserved]
765.6 Regulations for Pearl Harbor, Hawaii.
765.9-765.11 [Reserved]
765.12 Navy and Marine Corps absentees; rewards.
765.13 Insignia to be worn on uniform by persons not in the service.
765.14 Unofficial use of the seal, emblem, names, or initials of the 
          Marine Corps.

    Authority: Secs. 5031, 6011, 70A Stat. 278, 375, as amended; sec. 
133, 76 Stat. 517; sec. 301, 80 Stat. 379; 5 U.S.C. 301, 10 U.S.C. 133, 
956, 5031, 6011, 7881; DOD 7000.14-R, Financial Management Regulation, 
Vol. 10.



Sec. Sec.  765.1-765.5  [Reserved]



Sec.  765.6  Regulations for Pearl Harbor, Hawaii.

    The Commander, U.S. Naval Base, Pearl Harbor, Hawaii, is responsible 
for prescribing and enforcing such rules and regulations as may be 
necessary for insuring security and for governing the navigation, 
movements, and anchorage of vessels in the waters of Pearl Harbor and in 
the entrance channel thereto.

(Sec. 1, 37 Stat. 341, 62 Stat. 799; 18 U.S.C. 2152, 33 U.S.C. 475; E.O. 
8143, 4 FR 2179, 3 CFR 1943 Cum. Supp. 504)

[31 FR 16620, Dec. 29, 1966]



Sec. Sec.  765.9-765.11  [Reserved]



Sec.  765.12  Navy and Marine Corps absentees; rewards.

    The following is set forth as it applies to Navy and Marine Corps 
absentees. The term ``absentee,'' as used in this section, refers to a 
service member who commits the offense of absence without leave. Cf. 
article 86 of the Uniform Code of Military Justice (10 U.S.C. 886).
    (a) Payment of rewards--(1) Authority. When authorized by military 
officials of the Armed Forces, any civil officer having authority to 
arrest offenders may apprehend an individual absent without leave from 
the military service of the United States and deliver him into custody 
of the military authorities. The receipt of Absentee Wanted by the Armed 
Forces (DD Form 553) or oral or written notification from military 
officials or Federal law enforcement officials that the person is absent 
and that his return to military control is desired is authority for 
apprehension and will be considered as an offer of a reward. When such a 
reward has been offered, persons or agency representatives (except 
salaried officers or employees of the Federal Government, or service 
members) apprehending or delivering absentees or deserters to military 
control will be entitled to a payment of
    (i) $50 for the apprehension and detention until military 
authorities assume control, or
    (ii) $75 for the apprehension and delivery to military control.

Payment of reward will be made to the person or agency representative 
actually making the arrest and the turnover or delivery to military 
control. If two or more persons or agencies join in performing these 
services, payment may be made jointly or severally but the total payment 
or payments will not exceed $50 or $75 as applicable. Payment of a 
reward is authorized whether the absentee or deserter voluntarily 
surrenders to civil authorities or is apprehended. Payment is not 
authorized for information merely leading to the apprehension of an 
absentee or deserter.
    (2) Payment procedure. The disbursing officer, special disbursing 
agent or agent officer of the military activity to which an absentee or 
deserter is first delivered will be responsible for payment of the 
reward. Payment of rewards will be made on SF 1034 or NAVCOMPT Form 2277 
supported by a copy of DD Form 553 or other form or notification that an 
individual is absent and that his return to military control is desired, 
and a statement signed by the claimant specifying that he apprehended 
(or accepted voluntary surrender) and detained the absentee or deserter 
until military authorities assumed control, or that he apprehended (or 
accepted voluntary surrender) and delivered the absentee or deserter to

[[Page 201]]

military control. If oral notification was made in lieu of written 
notification, the claimant will so certify and provide the date of 
notification and the name, rank or rate, title, and organization of the 
person who made the authorized notice of reward for apprehension of the 
absentee or deserter.
    (b) Reimbursement for actual expenses--(1) Authority. When a reward 
has not been offered or when conditions for payment of a reward 
otherwise cannot be met, reimbursement, not to exceed $75, may be made 
to any person or agency for actual expenses incurred in the apprehension 
and detention or delivery to military control of an absentee or 
deserter. If two or more persons or agencies join in performing these 
services, payment may be made jointly or severally, but the total 
payment or payments may not exceed $25. Reimbursement may not be made 
for the same apprehension and detention or delivery for which a reward 
has been paid. Actual expenses for which reimbursement may be made 
include:
    (i) Transportation costs, including mileage at the rate established 
by the Joint Travel Regulation for travel by privately owned vehicle, 
for a round trip from either the place of apprehension or civil police 
headquarters to place of return to military control;
    (ii) Meals furnished the service member for which the cost was 
assumed by the apprehending person or agency representative;
    (iii) Telephone or telegraph communication costs;
    (iv) Damages to property of the apprehending person or agency if 
caused directly by the service member during the apprehension, 
detention, or delivery;
    (v) Such other reasonable and necessary expenses incurred in the 
actual apprehension, detention, or delivery as may be considered 
justifiable and reimbursable by the commanding officer. Reimbursement 
will not be made for:
    (a) Lodging at nonmilitary confinement facilities;
    (b) Transportation performed by the use of official Federal, State, 
county, or municipal vehicles;
    (c) Personal services of the apprehending, detaining, or delivering 
person or agency.
    (2) Payment procedure. The disbursing officer or special disbursing 
agent of the military activity to which an absentee or deserter is first 
delivered will be responsible for making reimbursement for actual 
expenses. Reimbursement will be effected on SF 1034 or NAVCOMPT Form 
2277 supported by an itemized statement in triplicate signed by the 
claimant and approved by the commanding officer.
    (c) Reimbursement for subsistence furnished--(1) Authority. Civil 
authorities may be reimbursed for the cost of subsistence furnished 
absentees or deserters placed in their custody for safekeeping at the 
request of military authorities. Such reimbursement will be in addition 
to rewards and reimbursement for actual expenses authorized in 
paragraphs (a) and (b) of this section.
    (2) Payment procedure. The disbursing officer or special disbursing 
agent of the military activity requesting the safekeeping confinement 
will be responsible for making reimbursement for subsistence furnished 
by civil authorities. Reimbursement will be effected on SF 1034 or 
NAVCOMPT Form 2277 supported by an itemized statement signed by the 
claimant and approved by the officer who requested the confinement.
    (d) Nothing said in this section shall be construed to restrict or 
exclude authority to apprehend an offender in accordance with law.

(Sec. 807, 70A Stat. 39; 10 U.S.C. 807. Interpret or apply secs. 808, 
7214, 70A Stat. 40, 445; 10 U.S.C. 808, 7214)

[25 FR 1075, Feb. 6, 1960, as amended at 51 FR 22283, June 19, 1986; 65 
FR 53172, Sept. 1, 2000]



Sec.  765.13  Insignia to be worn on uniform by persons not in
the service.

    (a) Under title 10 U.S.C., section 773, members of military 
societies composed of persons discharged honorably or under honorable 
conditions from the United States Army, Navy, Air Force or Marine Corps, 
regular or reserve, may, when authorized by regulations prescribed by 
the President, wear the uniform duly prescribed by such societies to be 
worn by the members thereof.

[[Page 202]]

    (b) The law cited in paragraph (a) of this section further provides 
that instructors and members of duly organized cadet corps at certain 
institutions of learning may wear the uniform duly prescribed by the 
authorities of such institutions.
    (c) The law cited in paragraph (a) of this section further provides 
that the uniform worn by members of the military societies or by members 
and instructors of the cadet corps referred to in paragraph (a) of this 
section shall include some distinctive mark or insignia prescribed by 
the Secretary of the military department concerned to distinguish such 
uniforms from the uniforms of the Army, Navy, Air Force, or Marine 
Corps.
    (d) Accordingly, except as otherwise provided in this paragraph, the 
following mark is hereby designated to be worn by all persons wearing 
the Navy or Marine Corps uniform as provided in paragraphs (a), (b), and 
(c) of this section: A diamond, 3\1/2\ inches long in the vertical axis, 
and 2 inches wide in the horizontal axis, of any cloth material, white 
on blue clothing, forestry green on khaki clothing, and blue on white 
clothing. The figure shall be worn on all outer clothing on the right 
sleeve, at the point of the shoulder, the upper tip of the diamond to be 
one-fourth inch below the shoulder seam. For persons who are 
participating in United States Marine Corps Junior ROTC programs, the 
following mark is designated to be worn: A round patch, three inches in 
diameter, which contains a gold Marine Corps emblem centered on a 
scarlet field. The scarlet field is surrounded with a blue border 
containing the words ``United States Marine Corps Junior ROTC'' in white 
lettering. Surrounding the blue field will be a gold border. Unless 
otherwise directed, the patch will be worn in the manner described above 
in connection with the ``diamond'' insignia.
    (e) Within the meaning of paragraph (a) of this section, the 
occasions when members of the military societies may wear the uniform of 
their respective society are official functions which such a member 
attends in his capacity as a war veteran or as a member of such military 
society.
    (f) Marine Corps Uniform Regulations may be examined and individual 
copies of pertinent provisions thereof may be purchased in accordance 
with Sec.  701.1 of this chapter.

(Sec. 773, 70A Stat. 35; 10 U.S.C. 773)

[13 FR 8971, Dec. 28, 1948, as amended at 26 FR 11794, Dec. 12, 1961; 37 
FR 6472, Mar. 30, 1972; 44 FR 37610, June 28, 1979]



Sec.  765.14  Unofficial use of the seal, emblem, names, or initials
of the Marine Corps.

    (a) Purpose. To establish procedures to determine whether to grant 
permission to use or imitate the seal, emblem, names, or initials of the 
Marine Corps in connection with commercial and certain noncommercial 
activities pursuant to 10 U.S.C. 7881. The Secretary of the Navy, in 
Secretary of the Navy Instruction 5030.7, has provided the policy and 
delegated to the Commandant of the Marine Corps (CMC), power to 
subdelegate to certain subordinate officers in writing, the authority to 
grant permission required by section 7881(b) of 10 U.S.C. for such use 
or imitation.
    (b) Scope. The provisions of this Order requiring prior approval of 
the Secretary of the Navy, CMC, or the designee apply only to the use or 
imitation of the seal, emblem, names, or initials of the Marine Corps 
that suggest official approval, endorsement, or authorization is in 
connection with a promotion, goods, services, or commercial activity.
    (c) Standards--(1) No unofficial use or imitation of the Marine 
Corps seal. Reproduction and use of the Marine Corps seal, as designated 
in Executive Order No. 10538 of June 22, 1954, is restricted to 
materials emanating from Headquarters Marine Corps. Except for 
manufacture of official letterhead stationery and related items of 
official Marine Corps use, reproduction and use of the Marine Corps seal 
is prohibited.
    (2) Unofficial use or imitation of the Marine Corps emblem, names, 
or initials. Requests from civilian enterprises to use or imitate the 
Marine Corps emblem, names, or initials will ordinarily be approved 
where use or imitation merely provides a Marine Corps accent or flavor 
to otherwise fungible goods. Disapproval, however, usually may be

[[Page 203]]

expected where such use or imitation reasonably would:
    (i) Imply any official or unofficial connection between the Marine 
Corps and the user;
    (ii) Tend to create the impression that the Marine Corps or the 
United States is in any way responsible for any financial or legal 
obligation of the user;
    (iii) Give the impression that the Marine Corps selectively benefits 
the particular manufacturer, commercial entity, or other user, as in 
displaying the Marine Corps emblem, names, or initials on musical 
instruments, weapons, or the like, and in using the emblem, names, or 
initials in connection with advertising, naming, or describing products 
and services such as insurance, real estate, or financial services; or
    (iv) Tend to subject the Marine Corps to discredit or would be 
inimical to the health, safety, welfare, or morale of the members of the 
Marine Corps.
    (3) Acceptable use of imitation of the Marine Corps insignia. No 
request for permission is required when a use or imitation of the Marine 
Corps emblem, names, or initials includes prominent display of the 
disclaimer, ``Neither the United States Marine Corps nor any other 
component of the Department of Defense has approved, endorsed, or 
authorized this product (or promotion, or service, or activity)'' as an 
integral part of the use of imitation. A ``prominent display'' is one 
located on the same page as the first use of the insignia, prominent in 
that use, and printed in letters at least one half the size and density 
of the insignia.
    (d) Action--(1) When permission required. Commercial or 
noncommercial use or imitation of the Marine Corps emblem, names, or 
initials is prohibited unless permission is first obtained in writing 
from the CMC, except when such use does not suggest that the use or 
imitation is approved, endorsed, or authorized by the Marine Corps or 
any other component of the Department of Defense.
    (2) Redelegation of authority. The CMC hereby redelegates, pursuant 
to the authorization in paragraph 4 of the Secretary of the Navy 5030.7, 
authority to grant written permission to use the Marine Corps emblem, 
names, or initials to the Director, Administration Resource Management 
(ARDE). Prior to granting approval for commercial usage of the Marine 
Corps insignia, the CMC (ARDE) shall forward such requests to the Head, 
Marine Corps Exchange Service Branch, Facilities and Services Division, 
Installations and Logistics Department (CMC) (LFE)) and to the Counsel 
for the Commandant (CMC (CL)) for comment and concurrence. All other 
requests shall be routed to the Director, Judge Advocate Division (CMC 
(JAR)) for comment and concurrence.
    (3) Procedures for obtaining written permission. Requests for 
written permission to use or imitate the Marine Corps emblem, names, or 
initials shall be in writing and shall be directed to the CMC (ARDE). 
The request should, at a minimum, contain the following information:
    (i) Name and address of the requester.
    (ii) A description of the type of activity in which the requester is 
engaged or proposes to engage.
    (iii) A statement of whether the requester considers the proposed 
use or imitation to be commercial or noncommercial, and why.
    (iv) A brief description and illustration or sample of the proposed 
use or imitation, as well as a description of the product or service in 
connection with which it will be used. This description will provide 
sufficient detail to enable the Marine Corps to determine whether there 
is a reasonable tendency to suggest such use or imitation is approved, 
endorsed, or authorized by the Marine Corps or any other component of 
the Department of Defense.
    (v) In the case of a noncommercial use of imitation, a copy of the 
charter, constitution, bylaws, and similar organizational documents of 
the requester, together with a detailed description of its function or 
purpose. Insufficiently specific requests will be returned for 
additional information.
    (e) Reserve applicability. This Order is applicable to the Marine 
Corps Reserve.

[51 FR 45467, Dec. 19, 1986, as amended at 65 FR 62619, Oct. 19, 2000]

[[Page 204]]



PART 766_USE OF DEPARTMENT OF THE NAVY AVIATION FACILITIES BY CIVIL
AIRCRAFT--Table of Contents



Sec.
766.1 Purpose.
766.2 Definition of terms.
766.3 Authority.
766.4 Policy.
766.5 Conditions governing use of aviation facilities by civil aircraft.
766.6 Approving authority for landings at Navy/Marine Corps aviation 
          facilities.
766.7 How to request use of naval aviation facilities.
766.8 Procedure for review, approval, execution and distribution of 
          aviation facility licenses.
766.9 Insurance requirements.
766.10 Cancellation or suspension of the aviation facility license 
          (OPNAV Form 3770/1).
766.11 Fees for landing, parking and storage.
766.12 Unauthorized landings.
766.13 Sale of aviation fuel, oil, services and supplies.

    Authority: 49 U.S.C. 1507.

    Source: 35 FR 14451, Sept. 15, 1970, unless otherwise noted.
    Note: The provisions of this part 766 are SECNAV Instruction 3770.1B 
of 30 June 1970.



Sec.  766.1  Purpose.

    This part establishes the policy and procedures for the use of Navy 
and Marine Corps aviation facilities by aircraft other than U.S. 
Department of Defense aircraft.



Sec.  766.2  Definition of terms.

    For the purpose of this part certain terms are defined as follows:
    (a) Alternate use. Use of the aviation facility, specified in the 
flight plan, to which an aircraft may divert when a landing at the point 
of first intended landing becomes impractical because of weather. 
(Aircraft may not be dispatched, prior to takeoff from the airport of 
origin, to a facility licensed for alternate use.)
    (b) Civil aircraft. Domestic or foreign aircraft operated by private 
individuals or corporations, or foreign government-owned aircraft 
operated for commercial purposes. This includes:
    (1) Contract aircraft. Civil aircraft operated under charter or 
other contract to any U.S. Government department or agency.
    (2) Leased aircraft. U.S. Government-owned aircraft delivered by the 
Government to a lessee subject to terms prescribed in an agreement which 
does not limit the lessee's use of the aircraft to Government business.
    (c) Civil aviation. All flying activity by civil aircraft including:
    (1) Commercial aviation. Transportation by aircraft of passengers or 
cargo for hire and the ferrying of aircraft as a commercial venture.
    (2) General aviation. All types of civil aviation other than 
commercial aviation as defined above.
    (d) Facility. A separately located and officially defined area of 
real property in which the Navy exercises a real property interest and 
which has been designated as a Navy or Marine Corps aviation facility by 
cognizant authority; or where the Department of the Navy has 
jurisdiction over real property agreements, expressed or implied, with 
foreign governments, or by rights of occupation. (This definition does 
not include aircraft carriers nor any other type of naval vessel with a 
landing area for aircraft.)
    (e) Government aircraft. Aircraft owned or operated by any 
department or agency of either the United States or a foreign government 
(except a foreign government-owned aircraft operated for commercial 
purposes). Also aircraft owned by any department, agency, or political 
subdivision of a State, territory, or possession of the United States 
when such local government has sole responsibility for operating the 
aircraft. Government aircraft includes:
    (1) Military aircraft. Aircraft used in the military services of any 
government.
    (2) Bailed aircraft. U.S. Government-owned aircraft delivered by the 
Government to a Government contractor for a specific purpose directly 
related to a Government contract.
    (3) Loaned aircraft. U.S. Government-owned aircraft delivered 
gratuitously by any Department of Defense agency to another Government 
agency, to a U.S. Navy or Marine Corps Flying Club, or to a U.S. Army or 
Air Force Aero Club.

[[Page 205]]

    (f) Joint-use facility. A Navy or Marine Corps facility where a 
specific agreement between the Department of the Navy and a civilian 
community, or between the U.S. Government and a foreign government, 
provides for civil aircraft use of the runways and taxiways. Civil 
aircraft terminal, parking, and servicing facilities are established and 
controlled by civil authorities in an area separate from those of the 
Navy or Marine Corps.
    (g) Official business. Business, in the interest of the U.S. 
Government, which personnel aboard an aircraft must transact with U.S. 
Government organizations or personnel at or near the naval aviation 
facility concerned. Use of a facility to solicit U.S. Government 
business is not ``official business.''
    (h) Provisional use. Use of a naval aviation facility for the 
purpose of providing adequate service to a community where, because of 
repair, construction or the performance of other work, the regular civil 
airport servicing the community is not available for an extended period. 
(An aircraft may be dispatched prior to takeoff from the airport of 
origin to a naval aviation facility authorized for provisional use.)
    (i) Scheduled use. Use of a facility on a scheduled or regularly 
recurring basis by an air carrier certified by the Civil Aeronautics 
Board to provide passenger and cargo service to a community or area.
    (j) Services in connection with Government contracts. This type of 
operation, cited on the Aviation Facility License, indicates the use of 
a facility for transporting the contractor's supplies and personnel for 
the performance of work at the facility under the terms of a specific 
U.S. Government contract.
    (k) Technical stop. An en route landing for the purpose of obtaining 
fuel, oil, minor repairs, or crew rest. This does not include passenger 
accommodations nor passenger/cargo enplaning or deplaning privileges 
unless specifically authorized by the Chief of Naval Operations.
    (l) User. An individual, corporation, or company named in the 
Aviation Facility License and the Certificate of Insurance.



Sec.  766.3  Authority.

    Section 1107(a) of the Federal Aviation Act of 1958 (49 U.S.C. 1507, 
1508) states that ``Air navigation facilities owned or operated by the 
United States may be made available for public use under such conditions 
and to such extent as the head of the department or other agency having 
jurisdiction thereof deems advisable and may by regulation prescribe.'' 
(See Sec.  766.13 for restrictions imposed by the Federal Aviation Act 
of 1958.)



Sec.  766.4  Policy.

    Navy and Marine Corps aviation facilities are established to support 
the operation of Navy and Marine Corps aircraft. Equipment, personnel 
and material are maintained only at a level necessitated by these 
requirements and shall not be used to support the operation or 
maintenance of civil aircraft or non U.S. Government aircraft, except as 
noted below. (Nothing in this part, however, should be interpreted to 
prohibit any aircraft from landing at any suitable Navy or Marine Corps 
aviation facility in case of a bona fide emergency.) (See Sec.  
766.5(i).)
    (a) General. Subject to the procedures established elsewhere in this 
part, civil aircraft and government aircraft, other than those belonging 
to the U.S. Government may use Navy or Marine Corps facilities, if 
necessary, Provided, That:
    (1) They do not interfere with military requirements, and the 
security of military operations, facilities, or equipment is not 
compromised.
    (2) No adequate civil airport is available. (Exception to this 
provision may be made when the aircraft is operated in connection with 
official business as defined in this part.)
    (3) Pilots comply with regulations promulgated by the cognizant 
military agency and the commanding officer of the facility.
    (4) Civil aircraft users assume the risk in accordance with the 
provisions of the Aviation Facility License.
    (5) Each aircraft is equipped with two-way radio which provides a 
capability for voice communications with the control tower on standard 
Navy/Marine Corps frequencies.

[[Page 206]]

    (6) The user, or requesting government, has obtained permission 
through diplomatic channels from the host country wherein the facility 
of intended landing is located, if applicable.
    (b) Civil Aircraft owned and operated by--(1) Military personnel. 
Private aircraft owned and operated by active duty U.S. military 
personnel or by Navy/Marine Corps Reservists on inactive duty may be 
authorized to land at a facility, provided such aircraft is not engaging 
in air commerce, and such landing is for official business required by 
written orders. Under no conditions shall such aircraft be allowed to 
base or operate from a facility for personal convenience nor base at a 
facility under the guise of official business.
    (2) Civil employees of the U.S. Government. Private aircraft owned 
and operated by civil employees of the U.S. Government may be authorized 
to land at a facility, provided such aircraft is not engaging in air 
commerce, and such landing is for official business required by written 
orders. Such aircraft shall not be allowed to base or operate from a 
facility for personal convenience. (Employees of U.S. Government 
contractors are not considered civil employees of the U.S. Government.)
    (3) Non-U.S. Government personnel. An individual or corporation 
owned and/or operated aircraft may be authorized to land at a facility 
for:
    (i) Sales or service representation to authorized military agents 
(e.g. the exchange, commissary, or contracting officer).
    (ii) Services in connection with U.S. Government contracts. 
Contracting agency and contract number(s) must be cited in the 
application for an Aviation Facility License.
    (c) Department of defense charter or contract. Aircraft operating 
under a Military Traffic Management and Terminal Service (MTMTS), 
Military Airlift Command (MAC), or Navy charter or contract for the 
movement of DOD passengers or cargo may be authorized to use Navy or 
Marine Corps aviation facilities when required for loading, en route or 
terminal stops.
    (d) Test and experimental use. Aircraft being produced for a 
military agency under contract may use Navy/Marine Corps facilities for 
testing and experimental purposes, if the contract so provides, or if it 
is determined to be in the best interests of the U.S. Government to do 
so. Unless otherwise provided in the contract, an Aviation Facility 
License is required, and the user shall furnish a Certificate of 
Insurance as provided in this part.
    (e) Aircraft demonstrations. Manufacturers of aircraft or installed 
equipment may be authorized to use Navy/Marine Corps facilities in 
demonstrating and/or showing aircraft or installed equipment to 
officials of the U.S. Government when:
    (1) It is determined to be in the best interest of the U.S. 
Government.
    (2) The aircraft was produced in accordance with U.S. Government 
specifications either with or without the aid of Federal funds.
    (3) There is an expressed interest on the part of the U.S. 
Government officials responsible for procurement, approval, or 
certification of the aircraft.
    (f) Joint use. When a specific agreement is entered into by the 
Department of the Navy pertaining to joint civil/military use of a Navy 
or Marine Corps facility, the terms of that agreement shall take 
precedence over the provisions of this part.
    (g) Diplomatic agreements. For diplomatic agreements and clearances 
to use U.S. Navy and Marine Corps aviation facilities in foreign 
countries, the provisions of this part are subject to the provisions of 
status of forces agreements, treaties of mutual cooperation or other 
international agreements. This part shall be used as a guide in 
negotiating agreements at the local level with representatives of a 
foreign military service, the U.S. Embassy, and the host government 
concerning the use of naval facilities by other than U.S. military 
aircraft. Approval shall be obtained from the Chief of Naval Operations 
for proposed terms which are in conflict with this part.



Sec.  766.5  Conditions governing use of aviation facilities by
civil aircraft.

    (a) Risk. The use of Navy or Marine Corps aviation facilities by 
civil aircraft shall be at the risk of the operator. Except as 
hereinafter provided for U.S. Government contractors, the Department of 
the Navy shall assume no

[[Page 207]]

liability or responsibility by reason of the condition of the landing 
area, taxiways, radio and navigational aids, or other equipment or for 
notification of such condition; or by the acts of its agents in 
connection with the granting of the right to use such naval facility. No 
responsibility is assumed for the security of or damage to aircraft 
while on property owned or controlled by the U.S. Government.
    (b) Military rules. Operators of civil aircraft utilizing a Navy or 
Marine Corps aviation facility shall be required to comply with the air 
and ground rules promulgated by the Department of the Navy and the 
commanding officer of the aviation facility. Such compliance shall 
pertain specifically to clearance authorization for the entry, 
departure, or movement of aircraft within the confines of the terminal 
area normally controlled by the commanding officer of the aviation 
facility.
    (c) Federal aviation regulations. Operators of civil aircraft shall 
be required to comply with all Federal Aviation Administration (FAA) 
rules and regulations including filing of flight plans. When such flight 
plans are required, they shall be filed with the commanding officer or 
his authorized representative prior to the departure of the aircraft. 
When such a flight plan is not required, a list of passengers and crew 
members, the airport of first intended landing, the alternate airport, 
and fuel supply in hours shall be placed on file prior to takeoff, with 
the commanding officer or with the local company representative as 
appropriate.
    (d) Hours of operation. The use of a Navy/Marine Corps aviation 
facility by civil aircraft shall be limited to the hours when the 
facility is normally in operation.
    (e) Weather minimums. Civil aircraft shall comply with weather 
minimums as follows:
    (1) Visual Flight Operations shall be conducted in accordance with 
Federal Aviation Regulations (FAR), Sec.  91.105 of this title. If more 
stringent visual flight rules minimums have been established for the 
point of departure or destination, as noted in the aerodrome remarks 
section of the Department of Defense Flight Information Publication (en 
Route) Instrument Flight Rules--Supplement, then the ceiling and 
visibility must be at or above these minimums in the applicable control 
zone.
    (2) Instrument flight operations shall be conducted in accordance 
with FAR, Sec.  91.116 of this title.
    (f) Inspection. The commanding officer may conduct such inspection 
of a transiting civil aircraft and its crew, passengers and cargo as he 
may consider appropriate or necessary to the carrying out of his duties 
and responsibilities.
    (g) Customs, immigration, agriculture, and public health inspection. 
(1) The civil aircraft commander shall be responsible for compliance 
with all applicable customs, immigration, agriculture, and public health 
laws and regulations. He shall also be responsible for paying fees, 
charges for overtime services, and for all other costs connected with 
the administration of such laws and regulations.
    (2) The commanding officer of the Navy/Marine Corps aviation 
facility will inform the appropriate public officials of the arrival of 
civil aircraft subject to such laws and regulations. He will not issue 
clearances for a civil aircraft to takeoff until such laws and 
regulations have been complied with. Procedures for insuring compliance 
with such laws and regulations shall be as mutually agreed to by the 
commanding officer of the aviation facility and the local public 
officials.
    (h) Weather alternate. If a Navy/Marine Corps aviation facility has 
been approved for use as an alternate airport, radio clearance must be 
obtained from such facility as soon as the decision is made en route for 
such use.
    (i) Emergency landings. Any aircraft may land at a Navy/Marine Corps 
aviation facility when necessary as a result of a bona fide emergency. 
However, whenever the nature of the emergency permits the pilot to 
select the time and place of landing, it is preferred that the pilot 
land his aircraft at a civil field.
    (1) The commanding officer of the aviation facility will require 
that the pilot of the aircraft pay all fees and charges and execute the 
Aviation Facility License. A statement explaining the circumstances of 
the emergency

[[Page 208]]

landing must be noted in Sec.  766.5 of the license application. If a 
narrative report from the pilot is available, it may be attached to the 
application.
    (2) Clearance of runway. The Department of the Navy reserves the 
right to use any method to clear a runway of aircraft or wreckage 
consistent with operational requirements. Care will be exercised to 
preclude unnecessary damage in removing wrecked aircraft; however, the 
Navy assumes no liability as a result of such removal.
    (3) Repairs. (i) Aircraft requiring major repairs may be stored 
temporarily in damaged condition. If repairs cannot be completed within 
a reasonable time, the aircraft must be removed from the facility by the 
owner or operator of the aircraft without delay.
    (ii) No aircraft will be given a major or minor overhaul.
    (iii) Engine or air frame minor components may be furnished, when 
not available through commercial sources, provided such supplies can be 
spared and are not known to be in short supply. The issuance of such 
supplies must be approved by the commanding officer.
    (iv) Minor components in short supply or major components for which 
there is a repeated demand can be furnished only on message authority 
obtained from the Aviation Supply Office, Philadelphia, PA (for 
continental facilities) or local fleet air command or major aviation 
supply depot (for extracontinental facilities). Complete engines, 
airplane wings, or other major items of equipment shall not be furnished 
under this authority.
    (v) If the commanding officer believes it is desirable to furnish 
requested material or services in excess of the restrictions stated 
herein, he shall request instructions from the Chief of Naval 
Operations, giving a brief description of the material or services 
requested together with his recommendations.
    (4) Reimbursement for costs. (i) The civil user making an emergency 
landing will be billed in accordance with paragraphs 032500-032503 of 
the NAVCOMPT Manual and paragraphs 25345-25363 of the NAVSUP Manual for 
payment of all costs incurred by the Government as a direct result of 
the emergency landing. Such costs will include those associated with 
labor, material, rental of equipment, vehicles or tools, etc., for:
    (a) Spreading foam on runway before the aircraft attempts emergency 
landing.
    (b) Fire and crash control and rescue.
    (c) Movement and storage of aircraft or wreckage.
    (d) Damage to runway, lights, navigation aids, etc.
    (ii) There will be no charge for naval meteorological services and 
naval communications facilities for the handling of arrival and 
departure reports, air traffic control messages, position reports and 
safety messages.
    (iii) The determination as to whether landing fees shall be charged 
pursuant to an emergency landing for maintenance or repair shall be the 
prerogative of the commanding officer of the facility.

[35 FR 14451, Sept. 15, 1970, as amended at 51 FR 22804, June 23, 1986]



Sec.  766.6  Approving authority for landings at Navy/Marine Corps
aviation facilities.

    (a) Except as indicated in paragraphs (b) and (c) of this section, 
the commanding officer of an active Navy/Marine Corps aviation facility 
may approve or disapprove landings of civil aircraft at his facility 
when such landing is:
    (1) Directly connected with or in support of U.S. Government 
business (except those listed in paragraph (c) of this section).
    (2) In connection with U.S. Government or community interests on an 
infrequent basis when no adequate civil airport is reasonably available.
    (3) By aircraft owned and operated by Navy/Marine Corps Flying Clubs 
or U.S. Army or Air Force Aero Clubs which are operated as 
instrumentalities of the U.S. Government.
    (4) By aircraft owned and operated by U.S. Government personnel when 
such use is in accordance with Sec.  766.4(b) (1) and (2).
    (5) By civil aircraft either owned or personally chartered by:

[[Page 209]]

    (i) The President or Vice President of the United States or a past 
President of the United States.
    (ii) The head of any Federal department or agency.
    (iii) A Member of Congress.
    (6) By a bailed, leased, or loaned aircraft (as defined in Sec.  
766.2) when operated in connection with official business only.
    (7) By aircraft owned and operated by States, counties, or 
municipalities of the United States when used for official business of 
the owner.
    (b) Except as limited by paragraph (c) of this section, the 
Commander in Chief, U.S. Naval Forces, Europe; Chief of Naval Material; 
Commander in Chief, U.S. Atlantic Fleet; Commander in Chief, U.S. 
Pacific Fleet; Chief of Naval Air Training; Commander, Pacific Missile 
Range; Commander, Marine Corps Air Bases, Eastern Area; Commander, 
Marine Corps Air Bases, Western Area; and Commanding General, Fleet 
Marine Force, Pacific may approve civil aircraft use of any active 
aviation facility under their control. (At overseas locations, aircraft 
landing authorizations must be in consonance with the provisions of 
applicable international agreements.)
    (c) The Chief of Naval Operations may approve any of the above 
requests, and is the only agency empowered to approve all other requests 
for use of naval facilities by civil and government aircraft, for 
example:
    (1) Applications for use of more than one facility when the 
facilities are not under the control of one major command.
    (2) Application for use of naval aviation facilities when 
participating in U.S. Government or Department of Defense single-manager 
contract and charter airlift operations; i.e., Military Airlift Command 
(MAC) or Military Traffic Management and Terminal Service (MTMTS).
    (3) Application for a facility to be used as a regular civil 
airfield for a community, by either commercial or general aviation.
    (4) Requests for use of a facility by foreign civil or government 
aircraft when:
    (i) Such use is not covered by an agreement between the U.S. 
Government and the government of the aircraft's registry, or
    (ii) The facility is located in a country other than that in which 
the foreign aircraft is registered.



Sec.  766.7  How to request use of naval aviation facilities.

    (a) Forms required. Each applicant desiring use of a Navy/Marine 
Corps aviation facility will be required to:
    (1) Execute an application for an Aviation Facility License (OPNAV 
Form 3770/1 (Rev. 7-70)).
    (2) Submit a Certificate of Insurance (NAVFAC 7-11011/36) showing 
coverage as provided by Sec.  766.9 of this part.
    (b) Exceptions. Exceptions to the foregoing requirements are:
    (1) Aircraft owned and operated by departments or agencies of the 
U.S. Government for official business.
    (2) Aircraft owned and operated or noncommercial purposes by 
agencies of a foreign government, except in cases where the foreign 
government charges fees for U.S. Government aircraft.
    (3) Aircraft owned and operated by States, possessions, and 
territories of the United States and political subdivisions, thereof, 
when used for official business of the owner.
    (4) Aircraft owned and operated by either Navy/Marine Corps Flying 
Clubs or Aero Clubs of other military services which are operated as 
instrumentalities of the U.S. Government.
    (5) Bailed aircraft, provided the bailment contract specifies that 
the U.S. Government is the insurer for liability.
    (c) Obtaining forms. The applicant may obtain the required forms 
listed in paragraph (a) of this section, from the commanding officer of 
any Navy or Marine Corps aviation facility or from the Chief of Naval 
Operations (OP-53C). Navy units may obtain the forms through regular 
supply channels as a Cog ``I'' item.
    (d) Preparation of forms. (1) The license application will be 
completed in quadruplicate by the applicant in accordance with detailed 
instructions set forth in Aviation Facility License (OPNAV Form 3770/1 
(REV. 7-70)).
    (2) The Certificate of Insurance will be completed by the insurer. 
Only the signed original certificate and one copy are required to be 
submitted.

[[Page 210]]

    (e) Submission of forms. (1) The forms executed by the applicant 
shall be submitted to the commanding officer of the aviation facility 
concerned, except that applications requiring approval by higher 
authority shall be submitted to the appropriate approving authority, as 
indicated in paragraph (b) or (c) of this section at least 30 days prior 
to the first intended landing.
    (2) Once the NAVFAC 7-11011/36, Certificate of Insurance, is on file 
with an executing authority, it is valid until insurance expiration date 
and may be used by that executing authority as a basis for his action on 
any subsequent OPNAV Forms 3770/1 submitted for approval.
    (f) Security deposit. All applications, other than those listed in 
Sec.  766.11(a) contemplating more than one landing per month, will be 
accompanied by a security deposit in the form of a certified check 
payable to the ``Treasurer of the United States'' in payment of the 
estimated costs of landing, hangar and outside parking fees, for 3 
months in advance, calculated as provided in Sec.  766.11 (c) and (d). 
Security deposits will be handled as set forth in paragraph 032102 of 
the NAVCOMPT Manual.
    (g) Nonexclusive use airports. When either the Chief of Naval 
Operations or Commandant of the U.S. Marine Corps does not have 
exclusive operational control over a landing area, the aircraft operator 
will obtain permission to land from the appropriate civil or military 
authority.



Sec.  766.8  Procedure for review, approval, execution and distribution
of aviation facility licenses.

    (a) Review of application by the commanding officer. The commanding 
officer will review each application for Aviation Facility License and 
Certificate of Insurance received and determine whether such forms have 
been completed by the applicant in accordance with the instructions for 
their preparation as indicated in the Aviation Facility License (OPNAV 
Form 3770/1 (REV. 7-70)) and the Certificate of Insurance (NAVFAC 7-
11011/36(7-70)). As appropriate, the commanding officer will require 
each applicant to furnish a security deposit as stipulated in Sec.  
766.7(f).
    (b) Processing application. The commanding officer will approve/
disapprove the application or forward it to higher authority for 
approval as required by Sec.  766.6(b) or (c). If the application is 
approved, the approving authority will then forward all copies of the 
license and Certificate of Insurance to the Commander, Naval Facilities 
Engineering Command or his designated representative for review and 
execution of the license.
    (c) Action by the Commander, Naval Facilities Engineering Command or 
his designated representative. (1) Upon receipt, the Commander, Naval 
Facilities Engineering Command, or his designated representative, will 
review the license and Certificate of Insurance. He shall determine 
whether the insurance coverage conforms to the requirements prescribed 
by Sec.  766.9 of this part or to such requirements as may be 
promulgated from time to time by the Chief of Naval Material.
    (2) Upon approval, he will then execute the license in triplicate, 
conform all additional copies, and make distribution as provided in 
paragraph (d) of this section. Applications which are not approved will 
be returned to the applicant with an explanation of deficiencies which 
must be corrected prior to execution.
    (d) Distribution. (1) After execution of a license, distribution 
will be made as follows:

Original--To the licensee.
Executed copy--To the commanding officer.
Executed copy--To the Commander, Naval Facilities Engineering Command or 
his designated representative.
Conformed copy--To the Chief of Naval Operations (OP-53).
Conformed copy--To the cognizant commander under Sec.  766.6(b).
Conformed copy--To the disbursing officer serving the performing 
activity in the case of local deposits, and to the Office of the Navy 
Comptroller (NAFC3) in the case of central deposits held at the 
Washington, DC level.
Conformed copy--To the Military Airlift Command (MAC) for DOD contract 
or charter airlift operations.
Conformed copy--To the Military Traffic Management and Terminal Service 
(MTMTS) for DOD contract or charter airlift operations.


[[Page 211]]


    (2) Licenses issued under this authority are to be disposed of under 
provisions of paragraph 4280 of SECNAVINST 5212.5B, Disposal of Navy and 
Marine Corps Records. In accordance therewith, official executed copies 
of licenses are to be retained for a period of 6 years after completion 
or termination of the agreement. They may be transferred to the nearest 
Federal records center when superseded, revoked, canceled, or expired 
for retention by the center until expiration of the 6-year retention 
period.



Sec.  766.9  Insurance requirements.

    (a) Control of insurance. The Commander, Naval Facilities 
Engineering Command, or his designee, shall be responsible for requiring 
aircraft owners or operators to procure and maintain liability insurance 
conforming to the standards prescribed by the Chief of Naval Material. 
The insurance policy must be obtained at the expense of the civil 
aircraft owner or operator and with a company acceptable to the U.S. 
Navy.
    (b) Insurance coverage. Except for those aircraft exempted by 
paragraph (c) below, each civil aircraft is required to be covered by 
insurance of the types and minimum limits established by the Chief of 
Naval Material. The Certificate of Insurance, must state all coverages 
in U.S. dollars. Current minimums are:
    (1) Privately owned commercially-operated aircraft used for cargo 
carrying only and aircraft being flight-tested or ferried without 
passengers will be insured for:
    (i) Bodily injury liability. At least $100,000 for each person in 
any one accident with at least $1 million for each accident.
    (ii) Property damage liability. At least $1 million for each 
accident.
    (2) Privately owned commercially-operated aircraft used for 
passenger carrying and privately owned noncommercially-operated aircraft 
of 12,500 pounds or more certified maximum gross takeoff weight will be 
insured for:
    (i) Bodily injury liability (excluding passengers). At least 
$100,000 for each person in any one accident with at least $1 million 
for each accident.
    (ii) Property damage liability. At least $1 million for each 
accident.
    (iii) Passenger liability. At least $100,000 for each passenger, 
with a minimum for each accident determined as follows: multiply the 
minimum for each passenger, $100,000 by the next highest whole number 
resulting from taking 75 percent of the total number of passenger seats 
(exclusive of crew seats). For example: The minimum passenger coverage 
for each accident for an aircraft with 94 passenger seats is computed: 
94 x 0.75 = 70.5--next highest whole number resulting in 71. Therefore, 
71 x $100,000 = $7,100,000.
    (3) Privately owned noncommercially-operated aircraft of less than 
12,500 pounds will be insured for:
    (i) Bodily injury liability (excluding passengers). At least 
$100,000 for each person in any one accident with at least $500,000 for 
each accident.
    (ii) Property damage liability. At least $500,000 for each accident.
    (iii) Passenger liability. At least $100,000 for each passenger, 
with a minimum for each accident determined by multiplying the minimum 
for each passenger, $100,000 by the total number of passenger seats 
(exclusive of crew seats).
    (4) Aircraft insured for a single limit of liability must have 
coverage equal to or greater than the combined required minimums for 
bodily injury, property damage, and passenger liability for the type of 
use requested and for the passenger capacity and gross takeoff weight of 
the aircraft being operated. For example: the minimum single limit of 
liability acceptable for an aircraft operating as described in paragraph 
(b)(2) of this section is $1,000,000 + $1,000,000 + $7,100,000 = 
$9,100,000.
    (5) Aircraft insured by a combination of primary and excess policies 
must have combined coverage equal to or greater than the required 
minimums for bodily injury, property damage, and passenger liability, 
for the type of use, and for the passenger capacity and gross takeoff 
weight of the aircraft.
    (6) Each policy must specifically provide that:
    (i) The insurer waives any right to subrogation the insurer may have 
against the United States by reason of

[[Page 212]]

any payment under the policy for damage or injury which might arise out 
of or in connection with the insured's use of any Navy installation or 
facility.
    (ii) The insurance afforded by the policy applies to the liability 
assumed by the insured under OPNAV Form 3770/1, Aviation Facility 
License.
    (iii) If the insurer cancels or reduces the amount of insurance 
afforded under the listed policy, the insurer shall send written notice 
of the cancellation or reduction to Commander, Naval Facilities 
Engineering Command, Department of the Navy, Washington, DC 20390 by 
registered mail at least 30 days in advance of the effective date of the 
cancellation; the policy must state that any cancellation or reduction 
will not be effective until at least 30 days after such notice is sent, 
regardless of the effective date specified therein.
    (iv) If the insured requests cancellation or reduction, the insurer 
shall notify the Commander, Naval Facilities Engineering Command, 
Department of the Navy, Washington, DC 20390 immediately upon receipt of 
such request.
    (c) Exemption. Government aircraft, as defined in Sec.  766.2(e) are 
exempt from the insurance requirements specified above. However, this 
exemption applies to bailed aircraft only if the contract under which 
the aircraft is bailed specifies that insurance is not required.



Sec.  766.10  Cancellation or suspension of the aviation facility
license (OPNAV Form 3770/1).

    (a) Cancellation. (1) If the user fails to comply with the terms of 
the Aviation Facility License (OPNAV Form 3770/1) or of any applicable 
regulations, all current Aviation Facility Licenses for that user will 
be canceled. A canceled Aviation Facility License cannot be reinstated; 
a new application must be submitted for approval as explained in Sec.  
766.7.
    (2) If the commanding officer of a naval aviation facility has 
reason to believe that the use of an Aviation Facility License is not in 
accordance with the terms of the license he should immediately notify 
the Chief of Naval Operations, giving the name of the user, the Aviation 
Facility License number, and citing the circumstances of the misuse.
    (b) Suspension. The approving authority, or the commanding officer 
of the facility, may suspend an approved Aviation Facility License when 
such licensed use would be inconsistent with Navy/Marine Corps or 
national defense interests. Whenever possible, the Department of the 
Navy will avoid suspension of licenses which have been issued for 
official business or scheduled air carrier use. In all cases, 
suspensions will be lifted as quickly as possible. A suspension will not 
have the effect of extending the expiration date of an approved Aviation 
Facility License.



Sec.  766.11  Fees for landing, parking and storage.

    (a) The commanding officer of a facility will collect landing, 
parking, and storage fees, as applicable, from all users required to 
have an Aviation Facility License by Sec.  766.7 except for the 
following:
    (1) Government aircraft (see definition Sec.  766.2(g)) except that 
foreign government aircraft will be charged fees if their government 
charges similar fees for U.S. Government aircraft.
    (2) Aircraft being produced under a contract of the U.S. Government.
    (3) Any contract aircraft (see definition Sec.  766.2(b)(1)) or 
other civil aircraft which is authorized to use the facility on official 
business.
    (4) Aircraft employed to train operators in the use of precision 
approach systems (GCA, ILS, et al.) provided full-stop or touch-and-go 
landings are not performed.
    (5) Aircraft owned and operated by either Navy/Marine Corps Flying 
Clubs or Aero Clubs or other military services which are operated as 
instrumentalities of the U.S. Government.
    (6) Aircraft owned and operated by military personnel on active duty 
(Regular and Reserve) or retired, provided the aircraft is not used for 
commercial purposes.
    (7) Landing fees incident to emergency landings for which the 
landing fee has been waived by the commanding officer in accordance with 
Sec.  766.5(i)(5)(i).
    (b) Fee for unauthorized landing. If an aircraft lands at a Navy/
Marine Corps aviation facility without obtaining prior permission 
(except for a bona fide

[[Page 213]]

emergency landing), a landing fee in excess of the normal landing fee 
will be charged to cover the additional expenses incurred due to special 
handling and processing. The fee for an unauthorized landing will be as 
follows:
    (1) For aircraft weighing less than 12,500 pounds: $100.
    (2) For aircraft weighing 12,500 pounds but less than 40,000 pounds: 
$250.
    (3) For aircraft weighing 40,000 pounds but less than 100,000 
pounds: $500.
    (4) For aircraft weighing above 100,000 pounds: $600.
    (c) Normal landing fee. The normal landing fee is based on the 
aircraft maximum authorized gross takeoff weight, to the nearest 1,000 
pounds. The maximum gross takeoff weight may be determined either from 
item 7F of OPNAV Form 3770/1 or from the ``Airplane Flight Manual'' 
carried aboard each aircraft. If the weight cannot be determined, it 
should be estimated.

                           Charge Per Landing

Inside CONUS--0.20/1,000 pounds or any portion thereof with a minimum of 
$5.
Outside CONUS--0.30/1,000 pounds or any portion thereof with a minimum 
of $7.50.

    (d) Parking and storage fees. Fixed and rotary wing aircraft parking 
and storage fees are based upon the gross takeoff weight of the aircraft 
as follows:
    (1) Outside a hangar. Charges begin 6 hours after the aircraft 
lands. The rate is 10 cents per thousand pounds for each 24-hour period 
or fraction thereof, with a minimum charge of $1.50 per aircraft.
    (2) Inside a hangar. Charges begin as soon as the aircraft is placed 
inside the hangar. The rate is 20 cents per 1,000 pounds for each 24-
hour period or fraction thereof, with a minimum charge of $5 per 
aircraft.
    (e) Reimbursement. Collections incident to direct (out of pocket) 
costs will be credited to local operating and maintenance funds. All 
other collections, such as for landing, parking, and storage fees will 
be credited to Navy General Fund Receipt Account 172426. Accumulation of 
costs and preparation of billing documents are prescribed in paragraphs 
032500-032503 of the NAVCOMPT Manual.



Sec.  766.12  Unauthorized landings.

    An aircraft that lands at a Navy/Marine Corps aviation facility 
without obtaining prior permission from an approving authority, except 
in a bona fide emergency, is in violation of this part. Civil aircraft 
landing in violation of this regulation will have to pay the fee 
prescribed in Sec.  766.11(b). In those cases where an unauthorized 
landing is made at a facility within a Naval Defense Area, proclaimed as 
such by Executive order of the President, civil aircraft may be 
impounded and the operator prosecuted as indicated in OPNAVINST 5500.11C 
of November 12, 1963. In any event, before the aircraft is authorized to 
depart, the commanding officer of the facility will:
    (a) Inform the aircraft operator of the provisions of this part and 
the OP NAVINST 5500.11C of November 12, 1963, if applicable.
    (b) Require the aircraft operator (or owner), before takeoff, to pay 
all fees and charges and to comply with the following procedure:
    (1) Execute OPNAV Form 3770/1, explaining in item 6 of that form the 
reason for the landing.
    (2) In lieu of submitting a Certificate of Insurance (NAVFAC 7-
11011/36), the insurer must furnish evidence of sufficient insurance to 
include waiver of any right of subrogation against the United States, 
and that such insurance applies to the liability assumed by the insured 
under OPNAV Form 3770/1.
    (3) When it appears that the violation may have been deliberate, or 
is a repeated violation, departure authorization must be obtained from 
the Chief of Naval Operations.
    (4) Waiver of the requirements in paragraphs (b)(1) and (2) of this 
section may be obtained from the Chief of Naval Operations to expedite 
removal of these aircraft when such waiver is considered appropriate.

[35 FR 14451, Sept. 15, 1970, as amended at 51 FR 22804, June 23, 1986]



Sec.  766.13  Sale of aviation fuel, oil, services and supplies.

    (a) General policy. In accordance with sections 1107 and 1108 of the 
Federal Aviation Act of 1958 (72 Stat. 798 as amended, 49 U.S.C. 1507, 
1508), Navy/

[[Page 214]]

Marine Corps Aviation fuel, oil, services, and supplies are not sold to 
civil aircraft in competition with private enterprise. Sections 1107 and 
1108 of Federal Aviation Act of 1958 (72 Stat. 798 as amended, 49 U.S.C. 
1507, 1508), however, does authorize the sales of fuel, oil, equipment, 
supplies, mechanical service, and other assistance by reason of an 
emergency. Such sales will be made only where there is no commercial 
source and only in the amount necessary for the aircraft to continue on 
its course to the nearest airport operated by private enterprise.
    (b) Contract aircraft. The sale of aviation fuel, oil, supplies, 
etc. to aircraft under U.S. Government contract or charter is permitted 
at, and limited to, points where passengers or cargo are loaded into or 
discharged from the aircraft under terms of the contract or charter. 
Sales are not authorized at naval aviation facilities where commercial 
supplies and service are available.



PART 767_GUIDELINES FOR PERMITTING ARCHAEOLOGICAL INVESTIGATIONS AND
OTHER ACTIVITIES DIRECTED AT SUNKEN MILITARY CRAFT AND TERRESTRIAL
MILITARY CRAFT UNDER THE JURISDICTION OF THE DEPARTMENT OF THE NAVY-
-Table of Contents



                  Subpart A_Regulations and Obligations

Sec.
767.1 Purpose.
767.2 [Reserved]
767.3 Definitions.
767.4 Prohibited acts.
767.5 Policy.

                      Subpart B_Permit Requirements

767.6 Historic sunken military craft and terrestrial military craft 
          permit application.
767.7 Evaluation of permit application.
767.8 Credentials of principal investigator.
767.9 Conditions of permits.
767.10 Requests for amendments or extensions of active permits.
767.11 Content of permit holder's final report.
767.12 Special use permit application.
767.13 Monitoring of performance.
767.14 Amendment, suspension, or revocation of permits.
767.15 Application to foreign sunken military craft and U.S. sunken 
          military craft not under the jurisdiction of the Navy.

 Subpart C_Enforcement Provisions for Violations of the Sunken Military 
               Craft Act and Associated Permit Conditions

767.16 Civil penalties for violations of Act or permit conditions.
767.17 Liability for damages.
767.18 Notice of Violation and Assessment (NOVA).
767.19 Procedures regarding service.
767.20 Requirements of respondent or permit holder upon service of a 
          NOVA.
767.21 Hearings.
767.22 Final administrative decision.
767.23 Payment of final assessment.
767.24 Compromise of civil penalty, enforcement costs and/or liability 
          for damages.
767.25 Factors considered in assessing penalties.
767.26 Criminal law.
767.27 References.

    Authority: 10 U.S.C. 113 note; Pub. L. 108-375, Title XIV, sections 
1401 to 1408, Oct. 28, 2004, 118 Stat. 2094; 5 U.S.C. 301; 16 U.S.C. 
470.

    Source: 80 FR 52594, Aug. 31, 2015, unless otherwise noted.



                  Subpart A_Regulations and Obligations



Sec.  767.1  Purpose.

    The purpose of this part is:
    (a) To assist the Secretary in managing sunken military craft under 
the jurisdiction of the Department of the Navy (DON) pursuant to the 
Sunken Military Craft Act (SMCA), 10 U.S.C. 113 note; Public Law 108-
375, Title XIV, sections 1401 to 1408, Oct. 28, 2004, 118 Stat. 2094.
    (b) To establish the procedural rules for the issuance of permits 
authorizing persons to engage in activities directed at sunken military 
craft and terrestrial military craft under the jurisdiction of the DON 
for archaeological, historical, or educational purposes, when the 
proposed activities may disturb, remove, or injure the sunken military 
craft or terrestrial military craft.
    (c) To set forth the procedures governing administrative proceedings 
for assessment of civil penalties or liability damages in the case of a 
sunken military craft permit violation or violation of section 1402 of 
the SMCA.

[[Page 215]]



Sec.  767.2  [Reserved]



Sec.  767.3  Definitions.

    Agency means the Department of the Navy.
    Artifact means any portion of a sunken military craft or terrestrial 
military craft that by itself or through its relationship to another 
object or assemblage of objects, regardless of age, whether in situ or 
not, may carry archaeological or historical data that yields or is 
likely to yield information that contributes to the understanding of 
culture or human history.
    Associated Contents means:
    (1) The equipment, cargo, and contents of a sunken military craft or 
terrestrial military craft that are within its debris field; and
    (2) The remains and personal effects of the crew and passengers of a 
sunken military craft or terrestrial military craft that are within its 
debris field.
    Debris field means an area, whether contiguous or non-contiguous, 
that consists of portions of one or more sunken military craft or 
terrestrial military craft and associated artifacts distributed due to, 
or as a consequence of, a wrecking event and post-depositional site 
formation processes.
    Directed at means an intentional or negligent act that disturbs, 
removes, or injures a craft that the person knew or should have known to 
be a sunken military craft.
    Disturb or disturbance means to affect the physical condition of any 
portion of a sunken military craft or terrestrial military craft, alter 
the position or arrangement of any portion of a sunken military craft or 
terrestrial military craft, or influence the wrecksite or its immediate 
environment in such a way that any portion of a craft's physical 
condition is affected or its position or arrangement is altered.
    Historic in the case of a sunken military craft or a terrestrial 
military craft means fifty (50) years have elapsed since the date of its 
loss and/or the craft is listed on, eligible for, or potentially 
eligible for listing on the National Register of Historic Places.
    Injure or injury means to inflict physical damage on or impair the 
soundness of any portion of a sunken military craft or terrestrial 
military craft.
    Permit holder means any person authorized and given the right by the 
Naval History and Heritage Command (NHHC) to conduct activities 
authorized under these regulations.
    Permitted activity means any activity that is authorized by the NHHC 
under the regulations in this part.
    Person means an individual, corporation, partnership, trust, 
institution, association; or any other private entity, or any officer, 
employee, agent, instrumentality, or political subdivision of the United 
States.
    Possession or in possession of means having physical custody or 
control over any portion of a sunken military craft or terrestrial 
military craft.
    Remove or removal means to move or relocate any portion of a sunken 
military craft or terrestrial military craft by lifting, pulling, 
pushing, detaching, extracting, or taking away or off.
    Respondent means a vessel or person subject to a civil penalty, 
enforcement costs and/or liability for damages based on an alleged 
violation of this part or a permit issued under this part.
    Secretary means the Secretary of the Navy or his or her designee. 
The Director of the NHHC is the Secretary's designee for DON sunken 
military craft and terrestrial military craft management and policy; the 
permitting of activities that disturb, remove, or injure DON sunken 
military craft and terrestrial military craft; the permitting of 
activities that disturb, remove, or injure sunken military craft of 
other departments, agencies or sovereigns incorporated into the DON 
permitting program; the initiation of enforcement actions; and, 
assessment of civil penalties or liability for damages. The Secretary's 
designee for appeals of Notices of Violations is the Defense Office of 
Hearings and Appeals (DOHA).
    Secretary concerned means:
    (1) The Secretary of a military department;
    (2) In the case of a Coast Guard sunken military craft, the 
Secretary of the Department in which the Coast Guard is operating.
    Sunken military craft means all or any portion of:

[[Page 216]]

    (1) Any sunken warship, naval auxiliary, or other vessel that was 
owned or operated by a government on military noncommercial service when 
it sank;
    (2) Any sunken military aircraft or military spacecraft that was 
owned or operated by a government when it sank;
    (3) The associated contents of a craft referred to in paragraph (1) 
or (2) of this definition;
    (4) Any craft referred to in paragraph (1) or (2) of this definition 
which may now be on land or in water, if title thereto has not been 
abandoned or transferred by the government concerned.
    Sunken Military Craft Act refers to the provisions of 10 U.S.C. 113 
note; Public Law 108-375, Title XIV, sections 1401 to 1408, Oct. 28, 
2004, 118 Stat. 2094.
    Terrestrial military craft means the physical remains of all or any 
portion of a historic ship, aircraft, spacecraft, or other craft, intact 
or otherwise, manned or unmanned, along with all associated contents, 
located on land and under the jurisdiction of the DON. Terrestrial 
military craft sites are distinguished from sunken military craft by 
never having sunk in a body of water.
    United States Contiguous Zone means the contiguous zone of the 
United States declared by Presidential Proclamation 7219, dated 
September 2, 1999. Accordingly, the contiguous zone of the United States 
extends to 24 nautical miles from the baselines of the United States 
determined in accordance with international law, but in no case within 
the territorial sea of another nation.
    United States internal waters means all waters of the United States 
on the landward side of the baseline from which the breadth of the 
United States territorial sea is measured.
    United States sunken military craft means all or any portion of a 
sunken military craft owned or operated by the United States.
    United States territorial sea means the waters of the United States 
territorial sea claimed by and described in Presidential Proclamation 
5928, dated December 27, 1988. Accordingly, the territorial sea of the 
United States extends to 12 nautical miles from the baselines of the 
United States determined in accordance with international law.
    United States waters means United States internal waters, the United 
States territorial sea, and the United States contiguous zone.
    Wrecksite means the location of a sunken military craft or 
terrestrial military craft. The craft may be intact, scattered or 
completely deteriorated, and may presently be on land or in water. The 
wrecksite includes any physical remains of the craft and all associated 
contents.



Sec.  767.4  Prohibited acts.

    (a) Unauthorized activities directed at sunken military craft or 
terrestrial military craft. No person shall engage in or attempt to 
engage in any activity directed at a sunken military craft or 
terrestrial military craft that disturbs, removes, or injures any sunken 
military craft or terrestrial military craft, except:
    (1) As authorized by a permit issued pursuant to these regulations;
    (2) As otherwise authorized by these regulations; or
    (3) As otherwise authorized by law.
    (b) Possession of sunken military craft or terrestrial military 
craft. No person may possess, disturb, remove, or injure any sunken 
military craft or terrestrial military craft in violation, where 
applicable, of:
    (1) Section 1402 of the SMCA; or
    (2) Any regulation set forth in this part or any permit issued under 
it; or
    (3) Any prohibition, rule, regulation, ordinance, or permit that 
applies under any other applicable law.
    (c) Limitations on application. Prohibitions in section 1402 of the 
SMCA shall not apply to:
    (1) Actions taken by, or at the direction of, the United States.
    (2) Any action by a person who is not a citizen, national, or 
resident alien of the United States, except in accordance with:
    (i) Generally recognized principles of international law;
    (ii) An agreement between the United States and the foreign country 
of which the person is a citizen;
    (iii) In the case of an individual who is a crew member or other 
individual on a foreign vessel or foreign aircraft,

[[Page 217]]

an agreement between the United States and the flag State of the foreign 
vessel or aircraft that applies to the individual.



Sec.  767.5  Policy.

    (a) As stewards of the DON's sunken military craft and terrestrial 
military craft, the NHHC is responsible for managing these irreplaceable 
resources for the continued education and appreciation of present and 
future generations. To ensure consistent and effective stewardship, the 
NHHC has developed a comprehensive program that encompasses the 
following aspects: Preservation planning; wrecksite management; 
archaeological research; conservation and curation; and public 
information, interpretation, and education. The NHHC strongly encourages 
cooperation with other Department of Defense commands, Federal and State 
agencies, educational institutions, and individuals interested in 
preserving DON's maritime and aviation heritage.
    (b) Subject to operational requirements, sunken military craft and 
terrestrial military craft will generally be managed in place unless 
wrecksite disturbance, recovery, or injury is justified and necessary to 
protect the craft or the environment, to address matters pertaining to 
human remains or public safety, to mitigate adverse effects, to conduct 
research, or to provide for public education. While the NHHC prefers 
non-intrusive in situ research on sunken military craft and terrestrial 
military craft, it recognizes that wrecksite disturbance, removal, or 
injury may become necessary or appropriate. At such times, wrecksite 
disturbance, removal, or injury may be permitted by the NHHC with 
respect to DON sunken military craft for archaeological, historical, or 
educational purposes, subject to conditions set forth in accordance with 
these regulations. Historic shipwrecks under the jurisdiction of the DON 
that do not qualify as sunken military craft are to be provided the same 
consideration and treatment as terrestrial military craft.
    (c) In addition to managing historic sunken military craft and 
terrestrial military craft, the NHHC will serve as the permitting 
authority for the disturbance of non-historic DON sunken military craft. 
Permit applications will only be issued in instances where there is a 
clear demonstrable benefit to the DON, and only special use permits can 
be issued in the case of non-historic sunken military craft. In such 
instances, prior to issuing a special use permit, the NHHC will consult 
with appropriate DON offices within affected commands or offices, 
including, but not limited to, the Naval Sea Systems Command, Naval Air 
Systems Command, Space and Naval Warfare Systems Command, Naval Supply 
Systems Command, Naval Facilities Engineering Command, Navy Personnel 
Command, Military Sealift Command, Supervisor of Salvage and Diving, 
Office of the Judge Advocate General of the Navy, the Office of the 
Chief of Naval Operations, or other interested offices.
    (d) The NHHC will serve as the permitting authority for disturbance 
of those foreign state sunken military craft located in U.S. waters 
addressed in Sec.  767.15. The NHHC, in consultation with the Department 
of State as appropriate, will make a reasonable effort to inform the 
applicable agency of a foreign state of the discovery or significant 
changes to the condition of its sunken military craft upon becoming 
aware of such information. The NHHC will also serve as the permitting 
authority for disturbance of those sunken military craft of another 
military department, or the Department in which the Coast Guard is 
operating, that have been incorporated into the DON permitting program 
in accordance with Sec.  767.15(e).
    (e) The DON recognizes that, in accordance with section 1402(a)(3) 
of the Act and other statutes, certain federal agencies have statutory 
authority to conduct and permit specific activities directed at DON 
sunken military craft and terrestrial military craft. The NHHC will 
coordinate, consult, and enter into interagency agreements with those 
federal agencies to ensure effective management of DON sunken military 
craft and terrestrial military craft and compliance with applicable law.
    (f) Where appropriate, the NHHC will coordinate, consult, and enter 
into agreements with the appropriate State Historic Preservation Office 
(SHPO), or

[[Page 218]]

state land or resource manager, to ensure effective management of DON 
sunken military craft and terrestrial military craft and compliance with 
applicable law.
    (g) Notwithstanding any other section of this part, no act by the 
owner of a vessel, or authorized agent of the owner of a vessel, under a 
time charter, voyage charter, or demise charter to the DON and operated 
on military service at the time of its sinking, provided that the sunken 
military craft is not considered historic as determined by the NHHC, 
shall be prohibited by, nor require a permit under, the SMCA or these 
regulations. This paragraph (g) shall not be construed to otherwise 
affect any right or remedy of the United States existing at law, in 
equity, or otherwise, in regard to any such sunken military craft, in 
regard to cargo owned by the United States on board or associated with 
any such craft, or in regard to other property or contents owned by the 
United States on board or associated with any such sunken military 
craft.
    (h) The NHHC reserves the right to deny an applicant a permit if the 
proposed activity does not meet the permit application requirements; is 
inconsistent with DON policy or interests; does not serve the best 
interests of the sunken military craft or terrestrial military craft in 
question; in the case of foreign sunken military craft, is inconsistent 
with the desires of a foreign sovereign; is inconsistent with an 
existing resource management plan; is directed towards a sunken military 
craft or terrestrial military craft upon which other activities are 
being considered or have been authorized; will be undertaken in such a 
manner as will not permit the applicant to meet final report 
requirements; raises professional ethical conduct concerns or concerns 
over commercial exploitation; raises concerns over national security, 
foreign policy, environmental or ordnance issues; or out of respect for 
any human remains that may be associated with a wrecksite. The NHHC also 
reserves the right to deny an applicant a permit if the applicant has 
not fulfilled requirements of permits previously issued by the NHHC to 
the applicant.



                      Subpart B_Permit Requirements



Sec.  767.6  Historic sunken military craft and terrestrial military
craft permit application.

    (a) Any person seeking to engage in an activity otherwise prohibited 
by section 1402 of the SMCA with respect to a historic sunken military 
craft or any activity that might affect a terrestrial military craft 
under the jurisdiction of the DON shall apply for a permit for the 
proposed activity and shall not begin the proposed activity until a 
permit has been issued. The Secretary or his designee may issue a permit 
to any qualified person, in accordance with these regulations, subject 
to appropriate terms and conditions.
    (b) To request a permit application form, please write to: 
Department of the Navy, U.S. Naval History and Heritage Command, 
Underwater Archaeology Branch, 805 Kidder Breese St. SE., Washington 
Navy Yard, Washington, DC 20374-5060. Application forms and guidelines 
can also be found on the NHHC's Web site at: www.history.navy.mil.
    (c) Each applicant must submit a digital (electronic) and two 
printed copies of their complete application at least 120 days in 
advance of the requested effective date to allow sufficient time for 
evaluation and processing. Completed applications should be sent to the 
Department of the Navy, U.S. Naval History and Heritage Command, 
Underwater Archaeology Branch, 805 Kidder Breese St. SE., Washington 
Navy Yard, Washington, DC 20374-5060.
    (d) Each permit application shall include:
    (1) A statement of research objectives, scientific methods, and 
significance of the proposed work to the U.S. Navy or the nation's 
maritime cultural heritage. This should include discussion articulating 
clearly the archaeological, historical, or educational purposes of the 
proposed activity;
    (2) A summary of significant previous work in the area of interest;
    (3) A discussion of how the proposed activity could disturb, remove, 
or injure the sunken military craft or the terrestrial military craft 
and the related physical environment;

[[Page 219]]

    (4) A discussion of the methodology planned to accomplish the 
project's objectives. This should include a map showing the study 
location(s) and a description of the wrecksite(s) of particular 
interest;
    (5) An analysis of the extent and nature of potential environmental 
impacts from permitted activities and feasible mitigation measures that 
could reduce, avoid, or reverse environmental impacts, as well as any 
associated permits or authorizations required by foreign, federal, 
state, or local law;
    (6) A detailed plan for wrecksite restoration and remediation with 
recommendations on wrecksite preservation and protection of the 
wrecksite location;
    (7) In addition to identification and qualifications of the 
principal investigator, required by Sec.  767.8, identification of all 
other members of the research team and their qualifications. Changes to 
the primary research team subsequent to the issuance of a permit must be 
authorized via a permit amendment request in accordance with Sec.  
767.10(a);
    (8) A proposed budget, identification of funding source, and 
sufficient data to substantiate, to the satisfaction of the NHHC, the 
applicant's financial capability to complete the proposed research and, 
if applicable, any conservation and curation costs associated with or 
resulting from that activity;
    (9) A proposed plan for the public interpretation and professional 
dissemination of the proposed activity's results;
    (10) Where the application is for the excavation and/or removal of 
artifacts from a sunken military craft or terrestrial military craft, or 
for the excavation and/or removal of a sunken military craft or 
terrestrial military craft in its entirety, the following must be 
included:
    (i) A conservation plan, estimated cost, and the name of the 
university, museum, laboratory, or other scientific or educational 
institution in which the material will be conserved, including written 
certification, signed by an authorized official of the institution, of 
willingness to assume conservation responsibilities.
    (ii) A plan for applicable post-fieldwork artifact analysis, 
including an associated timetable.
    (iii) The name of the facility in which the recovered materials and 
copies of associated records derived from the work will be curated. This 
will include written certification, signed by an authorized official of 
the institution, of willingness to assume curatorial responsibilities 
for the collection. The named repository must, at a minimum, meet the 
standards set forth in 36 CFR part 79, Curation of Federally-Owned and 
Administered Archaeological Collections, in accordance with Sec.  
767.9(h).
    (iv) Acknowledgement that the applicant is responsible for all 
conservation-related and long-term curation costs, unless otherwise 
agreed upon by NHHC.
    (11) A proposed project timetable to incorporate all phases of the 
project through to the final report and/or any other project-related 
activities.
    (e) If the applicant believes that compliance with one or more of 
the factors, criteria, or procedures in the regulations contained in 
this part is not practicable, the applicant should set forth why and 
explain how the purposes of the SMCA (if applicable), these regulations, 
and the policies of the DON are better served without compliance with 
the specified requirements. If the NHHC believes that the policies of 
the DON are better served without compliance with one or more of the 
factors, criteria, or procedures in the regulations, or determines that 
there is merit in an applicant's request and that full compliance is not 
required to meet these priorities, the NHHC will provide a written 
waiver to the applicant stipulating which factors, criteria, or 
procedures may be foregone or amended. In exceptional circumstances, 
verbal permission may be obtained in cases of unexpected or emergent 
finds that may require immediate unanticipated disturbance, removal, or 
injury of a sunken or terrestrial military craft or its associated 
contents. However, the NHHC will not waive statutory procedures or 
requirements.
    (f) Persons carrying out official NHHC duties under the direction of 
the NHHC Director, or his/her designee, or conducting activities at the 
direction

[[Page 220]]

of or in coordination with the NHHC as recognized through express 
written permission by the NHHC Director, or his/her designee, need not 
follow the permit application procedures set forth in this section and 
Sec. Sec.  767.7 and 767.9 to 767.12 if those duties or activities are 
associated with the management of sunken military craft or terrestrial 
military craft. Where appropriate, such persons will coordinate with 
Federal Land Managers, the Bureau of Ocean Energy Management, State 
Historic Preservation Offices, or state land or resource managers, as 
applicable, prior to engaging in the aforementioned activities. The NHHC 
Director, or his/her designee, shall ensure that the provisions of 
paragraph (d) of this section and Sec. Sec.  767.8 and 767.11 have been 
met by other documented means and that such documents and all resulting 
data will be archived within the NHHC.
    (g) Federal agencies carrying out activities that disturb, remove, 
or injure sunken military craft or terrestrial military craft need not 
follow the permit application procedures set forth in this section and 
Sec. Sec.  767.7 and 767.9 to 767.12 if those activities are associated 
with the management of sunken military craft or terrestrial military 
craft within their areas of responsibility. Where appropriate, Federal 
agencies will coordinate with the NHHC prior to engaging in the 
aforementioned activities.



Sec.  767.7  Evaluation of permit application.

    (a) Permit applications are reviewed for completeness, compliance 
with program policies, and adherence to the regulations of this subpart. 
Incomplete applications will be returned to the applicant for 
clarification. Complete applications are reviewed by NHHC personnel who, 
when appropriate, may seek outside guidance or peer reviews. In addition 
to the criteria set forth in Sec. Sec.  767.6(d) and 767.8, applications 
are also judged on the basis of: Project objectives being consistent 
with DON policy and the near- and long-term interests of the DON; 
relevance or importance of the proposed project; archaeological, 
historical, or educational purposes achieved; appropriateness and 
environmental consequences of technical approach; conservation and long-
term management plan; qualifications of the applicants relative to the 
type and scope of the work proposed; and funding to carry out proposed 
activities. The NHHC will also take into consideration the historic, 
cultural, or other concerns of a foreign state when considering an 
application to disturb a foreign sunken military craft of that state 
located within U.S. waters, subsequent to an understanding or agreement 
with the foreign state in accordance with Sec.  767.15. The same 
consideration may be applied to U.S. sunken military craft that are 
brought under the jurisdiction of the DON for permitting purposes 
following an agreement with the Secretary of any military department, or 
in the case of the Coast Guard, the Secretary of the Department in which 
the Coast Guard is operating, as set forth in Sec.  767.15(e).
    (b) Prior to issuing a permit, the NHHC will consult with the 
appropriate federal resource manager when it receives applications for 
research at wrecksites located in areas that include units of the 
National Park System, National Wildlife Refuge System, National Marine 
Sanctuary System, Marine National Monuments, within lease blocks managed 
by the Bureau of Ocean Energy Management, or within areas of 
responsibility of other Federal Land Managers.
    (c) Prior to issuing a permit, the NHHC will consult with the 
appropriate SHPO, state land or resource manager or Tribal Historic 
Preservation Office (THPO) when it receives applications for research at 
wrecksites located on state lands, including lands beneath navigable 
waters as defined in the Submerged Lands Act, 43 U.S.C. 1301-1315, or 
tribal lands.
    (d) The applicant is responsible for obtaining any and all 
additional permits or authorizations, such as but not limited to those 
issued by another federal or state agency, or foreign government. In the 
case of U.S. sunken military craft or terrestrial military craft located 
within foreign jurisdictions, the NHHC may review and issue a 
conditional permit authorizing activities upon receipt of the 
appropriate permits and authorizations of the applicable foreign 
government by the applicant.

[[Page 221]]

The applicant must file a copy of the foreign government authorization 
with the NHHC when submitting the preliminary report stipulated in Sec.  
767.9(d) and final report stipulated in Sec.  767.9(f). Failure to do so 
will be considered a permit violation.
    (e) Based on the findings of the NHHC evaluation, NHHC personnel 
will recommend an appropriate action to the NHHC Deputy Director. If 
approved, the NHHC Deputy Director, or his or her designee, will issue 
the permit; if denied, applicants are notified of the reason for denial 
and may request reconsideration within 30 days of receipt of the denial. 
Requests for reconsideration must be submitted in writing to: Director 
of Naval History, Naval History and Heritage Command, 805 Kidder Breese 
St. SE., Washington Navy Yard, Washington, DC 20374-5060.



Sec.  767.8  Credentials of principal investigator.

    The principal investigator shall be suitably qualified as evidenced 
by training, education, and/or experience, and possess demonstrable 
competence in archaeological theory and method, and in collecting, 
handling, analyzing, evaluating, and reporting archaeological data, 
relative to the type and scope of the work proposed. A resume or 
curriculum vitae detailing the professional qualifications of the 
principal investigator must be submitted with the permit application. 
Additionally, the principal investigator will be required to attest that 
all persons on the project team shall be qualified and have demonstrated 
competence appropriate to their roles in the proposed activity. The 
principal investigator must, at a minimum, meet the following 
requirements:
    (a) The minimum professional qualification standards for archaeology 
as determined by the Secretary of the Interior's Standards and 
Guidelines for Archeology and Historic Preservation.
    (b) At least one year of full-time professional supervisory 
experience in the archaeological study of historic maritime resources or 
historic aviation resources. This experience requirement may 
concurrently account for certain stipulations of paragraph (a) of this 
section.
    (c) The demonstrated ability to plan, equip, fund, staff, organize, 
and supervise the type and scope of activity proposed.
    (d) If applicable, the demonstrated ability to submit post-
operational archaeological or other technical reports in a timely 
manner.



Sec.  767.9  Conditions of permits.

    (a) Permits are valid for one year from the date of issue.
    (b) Upon receipt of a permit, permit holders shall counter-sign the 
permit and return copies to the NHHC and the appropriate SHPO, state 
land or resource manager, THPO, or foreign government official, if 
applicable, prior to conducting permitted activities on the wrecksite. 
When the sunken military craft or terrestrial military craft is located 
within federal areas such as a unit of the National Park System, the 
National Wildlife Refuge System, the National Marine Sanctuary System, 
or Marine National Monuments, the permit holder shall provide copies of 
countersigned permits to the applicable federal resource manager. Upon 
the NHHC confirming receipt of the counter-signed permit, the permitted 
activities may commence, provided that any other federal or state 
regulatory and permitting requirements that apply are met.
    (c) Permits shall be carried on-site and made available upon request 
for inspection by federal or state law enforcement officials. Permits 
are non-transferable. The permit holder, or the activity's authorized 
principal investigator in the case where a permit holder is not 
concurrently the authorized principal investigator, is expected to 
remain on-site for the duration of operations prescribed in the permit. 
In the event a permit holder or the authorized principal investigator is 
unable to directly oversee operations, the permit holder must nominate a 
suitable qualified representative who may only serve in that function 
upon written approval by the NHHC.
    (d) Permit holders must abide by all provisions set forth in the 
permit as well as applicable state or federal regulations. Permit 
holders must abide by applicable regulations of a foreign government for 
activities directed at a

[[Page 222]]

sunken military craft when the sunken military craft is located in the 
internal waters, territorial sea, contiguous zone, or continental shelf 
of a foreign State, as defined by customary international law reflected 
in the United Nations Convention on the Law of the Sea. If the physical 
environment is to be impacted by the permitted activity, the permit 
holder will be expected to meet any associated permit or authorization 
stipulations required by foreign, federal, state, or local law, as well 
as apply mitigation measures to limit such impacts and where feasible 
return the physical environment to the condition that existed before the 
activity occurred.
    (e) At least 30 days prior to the expiration of the original permit, 
the permit holder shall submit to the NHHC a preliminary report that 
includes a working log and, where applicable, a diving log, listing days 
spent conducting field research, activities pursued, working area 
locations including precise coordinates, an inventory of artifacts 
observed or recovered, and preliminary results and conclusions. The NHHC 
shall review preliminary reports for thoroughness, accuracy, and quality 
and shall inform the permit holder of their formal acceptance in 
writing.
    (f) In the case of one or more permit extensions received through 
the process identified in Sec.  767.10(b), a preliminary report that 
includes all the information stated in paragraph (e) of this section is 
to be submitted by the permit holder annually at least 30 days prior to 
the renewed permit's expiration date.
    (g) The permit holder shall prepare and submit a final report as 
detailed in Sec.  767.11, summarizing the results of the permitted 
activity to the NHHC, and any applicable SHPO, THPO, federal or state 
land or resource manager, or foreign government official within an 
appropriate time frame as specified in the permit. Failure to submit a 
final report within the specified time-frame will be considered a permit 
violation. If the final report is not due to be submitted within two 
years of commencement of a permitted activity, interim reports must be 
filed biennially, with the first interim report submitted within two 
years of commencement of the activity. The interim report must include 
information required by Sec.  767.11 to the maximum extent possible, and 
an account of both the progress that has been achieved and the 
objectives remaining to be accomplished. The NHHC shall review interim 
and final reports for thoroughness, accuracy, and quality and shall 
inform the permit holder of their formal acceptance in writing.
    (h) The permit holder shall agree to protect all sensitive 
information regarding the location and character of a wrecksite that 
could potentially expose it to non-professional recovery techniques, 
looters, or unauthorized salvage. Sensitive information includes 
specific location data and information about the cargo of a sunken 
military craft or terrestrial military craft, the existence of 
armaments, munitions and other hazardous materials, or the presence of, 
or potential presence of, human remains.
    (i) All recovered DON sunken military craft, terrestrial military 
craft, and their associated contents, remain the property of the United 
States. These resources and copies of associated archaeological records 
and data must be preserved by a suitable university, museum, or other 
scientific or educational institution that, at a minimum, meets the 
standards set forth in 36 CFR part 79, Curation of Federally-Owned and 
Administered Archaeological Collections, at the expense of the applicant 
or facility, unless otherwise agreed upon in writing by the NHHC. The 
curatorial facility must establish a loan of resources agreement with 
the NHHC and maintain it in good standing. If a loan of resources 
agreement is not established, or at the discretion of the NHHC, 
resources are to be managed, conserved and curated directly by the NHHC 
at the expense of the applicant, unless otherwise agreed upon in writing 
by the NHHC. Copies of associated archaeological and conservation 
records and data will be made available to the NHHC, and to the 
applicable SHPO, THPO, the federal or state land or resource manager, or 
foreign government official upon request.
    (j) The disposition of foreign sunken military craft or associated 
contents shall be determined on a case-by-case

[[Page 223]]

basis in coordination with the respective foreign state prior to the 
issuance of a NHHC permit.
    (k) In the event that credible evidence for or actual human remains, 
unexploded ordnance, hazardous materials or environmental pollutants 
such as oil are discovered during the course of research, the permit 
holder shall cease all work and immediately notify the NHHC. Permitted 
work may not resume until authorized by the NHHC.
    (l) The permittee shall purchase and maintain sufficient 
comprehensive general liability, and such other types of insurance, in 
an amount consistent with generally accepted industry standards 
throughout the period covered by the permit, or post an equivalent bond. 
Such insurance shall cover against any third party claims arising out of 
activities conducted under the permit. The permittee must further agree 
to hold the United States harmless against such claims.



Sec.  767.10  Requests for amendments or extensions of active permits.

    (a) Requests for amendments to active permits (e.g., a change in 
study design or research personnel) must conform to the regulations in 
this part. All information deemed necessary by the NHHC to make an 
objective evaluation of the amendment must be included as well as 
reference to the original application. Requests for amendments must be 
sent to the Deputy Director, Naval History and Heritage Command, 805 
Kidder Breese St. SE., Washington Navy Yard, Washington DC 20374-5060. A 
pending amendment request does not guarantee approval and proposed 
activities cannot commence until approval is granted. All requests for 
permit amendments must be submitted during the period within which an 
existing permit is active and at least 30 days prior to the desired 
effect date of the amendment. Time-sensitive or non-substantive 
amendments must be submitted in writing to the point of contact included 
in the permit and will be considered and expedited on a case-by-case 
basis.
    (b) Permit holders desiring to continue research activities beyond 
the original permit expiration date must apply for an extension of a 
valid permit prior to its expiration. A pending extension request does 
not guarantee an extension of the original permit. All requests for a 
permit extension must be sent to the Deputy Director, Naval History and 
Heritage Command, 805 Kidder Breese St. SE., Washington Navy Yard, 
Washington, DC 20374-5060, at least 30 days prior to the original 
permit's expiration date. Reference to the original application may be 
given in lieu of a new application, provided the scope of work does not 
change significantly. Applicants may apply for one-year extensions 
subject to annual review.
    (c) Permit holders may appeal denied requests for amendments or 
extensions to the appeal authority listed in Sec.  767.7(e).



Sec.  767.11  Content of permit holder's final report.

    The permit holder's final report shall at minimum include the 
following:
    (a) A wrecksite history and a contextual history relating the 
wrecksite to the general history of the region;
    (b) A master wrecksite map;
    (c) Feature map(s) of any recovered artifacts showing their 
positions within the wrecksite;
    (d) Where environmental conditions allow, photographs of significant 
wrecksite features and significant artifacts both in situ and after 
removal;
    (e) If applicable, a section that includes an inventory of recovered 
artifacts, description of conserved artifacts, laboratory conservation 
records, documentation of analyses undertaken, photographs of recovered 
artifacts before and after conservation treatment, and recommended 
curation conditions;
    (f) A written report describing the wrecksite's discovery, 
environment, past and current archaeological fieldwork, results, and 
analysis;
    (g) A summary of the survey and/or excavation process including 
methods and techniques employed, an account of operational phases, 
copies of applicable logs, as well as thorough analysis of the recovered 
data;
    (h) An evaluation of the completed permitted activity that includes 
an assessment of the project's degree of success compared to the goals 
specified in the permit application;

[[Page 224]]

    (i) Recommendations for future activities, if applicable;
    (j) An account of how the public interpretation or dissemination 
plan described in the permit application has been or is being carried 
out. Additionally, identification of any sensitive information as 
detailed in Sec.  767.9(g).



Sec.  767.12  Special use permit application.

    (a) Any person proposing to engage in an activity to document a 
sunken military craft utilizing diving methods or remotely-operated or 
autonomously-operated equipment, or collect data or samples from a 
wrecksite, whether a sunken military craft or terrestrial military 
craft, that would result in the wrecksite's disturbance but otherwise be 
minimally intrusive, may apply for a special use permit. Any person 
proposing to engage in an activity that would disturb, remove, or injure 
a non-historic sunken military craft must apply for a special use 
permit.
    (b) To request a special use permit application form, please refer 
to Sec.  767.6(b) and (c). Special use permit applications must be sent 
to the Department of the Navy, U.S. Naval History and Heritage Command, 
Underwater Archaeology Branch, 805 Kidder Breese St. SE., Washington 
Navy Yard, Washington, DC 20374-5060.
    (c) Each special use permit application shall include:
    (1) A statement of the project's objectives and an explanation on 
how they would serve the NHHC's objectives stated in Sec.  767.5;
    (2) A discussion of the methodology planned to accomplish the 
project's objectives. This should include a map showing the study 
location(s) and a description of the wrecksite(s) of particular 
interest;
    (3) An analysis of the extent and nature of potential direct or 
indirect impacts on the resources and their surrounding environment from 
permitted activities, as well as any proposed mitigation measures;
    (4) Where appropriate, a plan for wrecksite restoration and 
remediation with recommendations on wrecksite preservation and 
protection of the wrecksite location;
    (d) The NHHC Deputy Director, or his or her designee, may authorize 
a special use permit under the following conditions:
    (1) The proposed activity is compatible with the NHHC policies and 
in the case of non-historic sunken military craft is not opposed by 
consulted DON parties;
    (2) The activities carried out under the permit are conducted in a 
manner that is minimally intrusive and does not purposefully 
significantly disturb, remove or injure the sunken military craft or 
wrecksite;
    (3) When applicable, the pilot(s) of remotely-operated equipment 
holds a certificate of operation from a nationally-recognized 
organization;
    (4) The principal investigator must hold a graduate degree in 
archaeology, anthropology, maritime history, oceanography, marine 
biology, marine geology, other marine science, closely related field, or 
possess equivalent training and experience. This requirement may be 
waived by the NHHC on a case by case basis depending on the activity 
stipulated in the application.
    (e) The permittee shall submit the following information subsequent 
to the conclusion of the permitted activity within an appropriate time 
frame as specified in the special use permit:
    (1) A summary of the activities undertaken that includes an 
assessment of the goals specified in the permit application;
    (2) Identification of any sensitive information as detailed in Sec.  
767.9(h);
    (3) Complete and unedited copies of any and all documentation and 
data collected (photographs, video, remote sensing data, etc.) during 
the permitted activity and results of any subsequent analyses.
    (f) The following additional sections of this subpart shall apply to 
special use permits: Sec. Sec.  767.7(e); 767.9(a), (b), (c), (e), (f), 
(g), (h), (k), and (l); 767.10; 767.13; 767.14; and 767.15(c).
    (g) All sections of subpart A of this part shall apply to all 
special use permits, and all sections of subpart C of this part shall 
apply to special use permits pertaining to sunken military craft.
    (h) Unless stipulated in the special use permit, the recovery of 
artifacts

[[Page 225]]

associated with any wrecksite is prohibited.



Sec.  767.13  Monitoring of performance.

    Permitted activities will be monitored to ensure compliance with the 
conditions of the permit. In addition to remotely monitoring operations, 
NHHC personnel, or other designated authorities, may periodically assess 
work in progress through on-site monitoring at the location of the 
permitted activity. The discovery of any potential irregularities in 
performance under the permit by NHHC on-site personnel, other designated 
authorities, or the permit holder, must be promptly reported to the NHHC 
for appropriate action. Adverse action may ensue in accordance with 
Sec.  767.14. Findings of unauthorized activities will be taken into 
consideration when evaluating future permit applications.



Sec.  767.14  Amendment, suspension, or revocation of permits.

    The NHHC Deputy Director, or his/her designee may amend, suspend, or 
revoke a permit in whole or in part, temporarily or indefinitely, if in 
his/her view the permit holder has acted in violation of the terms of 
the permit or of other applicable regulations, or for other good cause 
shown. Any such action will be communicated in writing to the permit 
holder or the permit holder's representative and will set forth the 
reason for the action taken. The permit holder may request the Director 
of the NHHC reconsider the action in accordance with Sec.  767.7(e).



Sec.  767.15  Application to foreign sunken military craft and
U.S. sunken military craft not under the jurisdiction of the Navy.

    (a) Sunken military craft are generally entitled to sovereign 
immunity regardless of where they are located or when they sank. Foreign 
governments may request, via the Department of State, that the Secretary 
of the Navy administer a permitting program for a specific or a group of 
its sunken military craft in U.S. waters. The request must include the 
following:
    (1) The foreign government must assert the sovereign immunity of or 
ownership over a specified sunken military craft or group of sunken 
military craft;
    (2) The foreign government must request assistance from the United 
States government;
    (3) The foreign government must acknowledge that subparts B and C of 
this part will apply to the specified sunken military craft or group of 
sunken military craft for which the request is submitted.
    (b) Upon receipt and favorable review of a request from a foreign 
government, the Secretary of the Navy, or his or her designee, in 
consultation with the Department of State, will proceed to accept the 
specified sunken military craft or group of sunken military craft into 
the present permitting program. The Secretary of the Navy, or his or her 
designee, in consultation with the Department of State, reserves the 
right to decline a request by the foreign government. Should there be a 
need to formalize an understanding with the foreign government in 
response to a submitted request stipulating conditions such as 
responsibilities, requirements, procedures, and length of effect, the 
Secretary of State, or his or her designee, in consultation with the 
Secretary of Defense, or his or her designee, will proceed to formalize 
an understanding with the foreign government. Any views on such a 
foreign government request or understanding expressed by applicable 
federal, tribal, and state agencies will be taken into account.
    (c) Persons may seek a permit to disturb foreign sunken military 
craft located in U.S. waters that have been accepted into the present 
permitting program or are covered under a formalized understanding as 
per paragraph (b) of this section, by submitting a permit application or 
special use permit application, as appropriate, for consideration by the 
NHHC in accordance with subparts B and C of this part.
    (d) In the case where there is reasonable dispute over the sovereign 
immunity or ownership status of a foreign sunken military craft, the 
Secretary of the Navy, or his or her designee, maintains the right to 
postpone action on Sec. Sec.  767.6 and 767.12, as well as requests 
under paragraph (a) of this section, until the dispute over the 
sovereign

[[Page 226]]

immunity or ownership status is resolved.
    (e) The Secretary of any military department, or in the case of the 
Coast Guard the Secretary of the Department in which the Coast Guard is 
operating, may request that the Secretary of the Navy administer the DON 
permitting program with regard to sunken military craft under the 
cognizance of the Secretary concerned. Upon the agreement of the 
Secretary of the Navy, or his or her designee, subparts A, B, and C of 
this part shall apply to those agreed upon craft.



 Subpart C_Enforcement Provisions for Violations of the Sunken Military 
               Craft Act and Associated Permit Conditions



Sec.  767.16  Civil penalties for violations of Act or permit conditions.

    (a) In general. Any person who violates the SMCA, or any regulation 
or permit issued thereunder, shall be liable to the United States for a 
civil penalty.
    (b) Assessment and amount. The Secretary may assess a civil penalty 
under this section of not more than $100,000 for each violation.
    (c) Continuing violations. Each day of a continuing violation of the 
SMCA or these regulations or any permit issued hereunder constitutes a 
separate violation.
    (d) In rem liability. A vessel used to violate the SMCA shall be 
liable in rem for a penalty for such violation.



Sec.  767.17  Liability for damages.

    (a) Any person who engages in an activity in violation of section 
1402 or any regulation or permit issued under the Act that disturbs, 
removes, or injures any U.S. sunken military craft shall pay the United 
States enforcement costs and damages resulting from such disturbance, 
removal, or injury.
    (b) Damages referred to in paragraph (a) of this section may 
include:
    (1) The reasonable costs incurred in storage, restoration, care, 
maintenance, conservation, and curation of any sunken military craft 
that is disturbed, removed, or injured in violation of section 1402 or 
any regulation or permit issued under the Act; and
    (2) The cost of retrieving, from the site where the sunken military 
craft was disturbed, removed, or injured, any information of an 
archaeological, historical, or cultural nature.



Sec.  767.18  Notice of Violation and Assessment (NOVA).

    (a) A NOVA will be issued by the Director of the NHHC and served in 
person or by registered, certified, return receipt requested, or express 
mail, or by commercial express package service, upon the respondent, or 
in the case of a vessel respondent, the owner of the vessel. A copy of 
the NOVA will be similarly served upon the permit holder, if the holder 
is not the respondent. The NOVA will contain:
    (1) A concise statement of the facts believed to show a violation;
    (2) A specific reference to the provision(s) of the SMCA, 
regulation, or permit violated;
    (3) The findings and conclusions upon which the Director of the NHHC 
bases the assessment;
    (4) The amount of civil penalty, enforcement costs and/or liability 
for damages assessed; and
    (5) An advisement of the respondent's rights upon receipt of the 
NOVA, including a citation to the regulations governing the proceedings.
    (b) The NOVA may also contain a proposal for compromise or 
settlement of the case.
    (c) Prior to assessing a civil penalty or liability for damages, the 
Director of the NHHC will take into account information available to the 
Agency concerning any factor to be considered under the SMCA and any 
other information required by law or in the interests of justice. The 
respondent will have the opportunity to review information considered 
and present information, in writing, to the Director of the NHHC. At the 
discretion of the Director of the NHHC, a respondent will be allowed to 
present information in person.



Sec.  767.19  Procedures regarding service.

    (a) Whenever this part requires service of a document, such service 
may effectively be made either in person or

[[Page 227]]

by registered or certified mail (with return receipt requested) on the 
respondent, the respondent's agent for service of process or on a 
representative designated by that agent for receipt of service. Refusal 
by the respondent, the respondent's agent, or other designated 
representative to be served, or refusal by his or her designated 
representative of service of a document will be considered effective 
service of the document as of the date of such refusal. Service will be 
considered effective on the date the document is mailed to an 
addressee's last known address.
    (b) A document will be considered served and/or filed as of the date 
of the postmark; or (if not mailed) as of the date actually delivered in 
person; or as shown by electronic mail transmission.
    (c) Time periods begin to run on the day following service of the 
document or date of the event. Saturdays, Sundays, and Federal holidays 
will be included in computing such time, except that when such time 
expires on a Saturday, Sunday, or Federal holiday, such period will be 
extended to include the next business day. This method of computing time 
periods also applies to any act, such as paying a civil penalty or 
liability for damages, required by this part to take place within a 
specified period of time.



Sec.  767.20  Requirements of respondent or permit holder upon service
of a NOVA.

    (a) The respondent or permit holder has 45 days from service receipt 
of the NOVA in which to reply. During this time the respondent or permit 
holder may:
    (1) Accept the penalty or compromise penalty, if any, by taking the 
actions specified in the NOVA;
    (2) Seek to have the NOVA amended, modified, or rescinded under 
paragraph (b) of this section;
    (3) Request a hearing before a DOHA Administrative Judge under 
paragraph (f) of this section;
    (4) Request an extension of time to respond under paragraph (c) of 
this section; or
    (5) Take no action, in which case the NOVA becomes final in 
accordance with Sec.  767.22(a).
    (b) The respondent or permit holder may seek amendment, 
modification, or rescindment of the NOVA to conform to the facts or law 
as that person sees them by notifying the Director of the NHHC in 
writing at the address specified in the NOVA. If amendment or 
modification is sought, the Director of the NHHC will either amend the 
NOVA or decline to amend it, and so notify the respondent, permit 
holder, or vessel owner, as appropriate.
    (c) The respondent or permit holder may, within the 45-day period 
specified in paragraph (a) of this section, request in writing an 
extension of time to respond. The Director of the NHHC may grant an 
extension in writing of up to 30 days unless he or she determines that 
the requester could, exercising reasonable diligence, respond within the 
45-day period.
    (d) The Director of the NHHC may, for good cause, grant an 
additional extension beyond the 30-day period specified in paragraph (c) 
of this section.
    (e) Any denial, in whole or in part, of any request under this 
section that is based upon untimeliness will be in writing.
    (f) If the respondent or permit holder desires a hearing, the 
request must be in writing, dated and signed, and must be sent by mail 
to the Director, Defense Office of Hearings and Appeals, 875 North 
Randolph St., Suite 8000, Arlington, VA 22203. The Director, Defense 
Office of Hearings and Appeals may, at his or her discretion, treat any 
communication from a respondent or a permit holder as a proper request 
for a hearing. The requester must attach a copy of the NOVA. A single 
hearing will be held for all parties named in a NOVA and who timely 
request a hearing.



Sec.  767.21  Hearings.

    (a) Hearings before a DOHA Administrative Judge are de novo reviews 
of the circumstances alleged in the NOVA and penalties assessed. 
Hearings are governed by procedures established by the Defense Office of 
Hearings and Appeals. Hearing procedures will be provided in writing to 
the parties and may be accessed on-line at http://www.dod.mil/dodgc/
doha/. Hearings shall be held at

[[Page 228]]

the Defense Office of Hearings and Appeals, Arlington VA, either in 
person or by video teleconference. Each party shall bear their own 
costs.
    (b) In any DOHA hearing held in response to a request under Sec.  
767.20(f), the Administrative Judge will render a final written Decision 
which is binding on all parties.



Sec.  767.22  Final administrative decision.

    If no request for a hearing is timely filed as provided in Sec.  
767.20(f), the NOVA becomes effective as the final administrative 
decision and order of the Agency on the 45th day after service of the 
NOVA or on the last day of any delay period granted.



Sec.  767.23  Payment of final assessment.

    (a) Respondent must make full payment of the civil penalty, 
enforcement costs and/or liability for damages assessed within 30 days 
of the date upon which the assessment becomes effective as the final 
administrative decision and order of the Agency. Payment must be made by 
mailing or delivering to the Agency at the address specified in the NOVA 
a check or money order made payable in U.S. currency in the amount of 
the assessment to the ``Treasurer of the United States'', or as 
otherwise directed.
    (b) Upon any failure to pay the civil penalty, enforcement costs 
and/or liability for damages assessed, the Agency may request the 
Department of Justice to recover the amount assessed in any appropriate 
district court of the United States, or may act under any law or statute 
that permits any type of recovery, including but not limited to arrest, 
attachment, seizure, or garnishment, of property and/or funds to satisfy 
a debt owed to the United States.



Sec.  767.24  Compromise of civil penalty, enforcement costs and/or
liability for damages.

    (a) The Director of the NHHC, in his/her sole discretion, may 
compromise, modify, remit, or mitigate, with or without conditions, any 
civil penalty or liability for damages imposed, or which is subject to 
imposition, except as provided in this subpart.
    (b) The compromise authority of the Director of the NHHC under this 
section is in addition to any similar authority provided in any 
applicable statute or regulation, and may be exercised either upon the 
initiative of the Director of the NHHC or in response to a request by 
the respondent or other interested person. Any such request should be 
sent to the Director of the NHHC at the address specified in the NOVA.
    (c) Neither the existence of the compromise authority of the 
Director of the NHHC under this section nor the Director's exercise 
thereof at any time changes the date upon which an assessment is final 
or payable.



Sec.  767.25  Factors considered in assessing penalties.

    (a) Factors to be taken into account in assessing a penalty may 
include the nature, circumstances, extent, and gravity of the alleged 
violation; the respondent's degree of culpability; any history of prior 
offenses; ability to pay; and such other matters as justice may require.
    (b) The Director of the NHHC may, in consideration of a respondent's 
ability to pay, increase or decrease a penalty from an amount that would 
otherwise be warranted by other relevant factors. A penalty may be 
increased if a respondent's ability to pay is such that a higher penalty 
is necessary to deter future violations, or for commercial violators, to 
make a penalty more than the profits received from acting in violation 
of the SMCA, or any regulation or permit issued thereunder. A penalty 
may be decreased if the respondent establishes that he or she is unable 
to pay an otherwise appropriate penalty amount.
    (c) If a respondent asserts that a penalty should be reduced because 
of an inability to pay, the respondent has the burden of proving such 
inability by providing verifiable, complete, and accurate financial 
information to the Director of the NHHC. The Director of the NHHC will 
not consider a respondent's inability to pay unless the respondent, upon 
request, submits such financial information as the Director of the NHHC 
determines is adequate to evaluate the respondent's financial condition. 
Depending on the circumstances of the case, the Director of the NHHC may 
require the respondent

[[Page 229]]

to complete a financial information request form, answer written 
interrogatories, or submit independent verification of his or her 
financial information. If the respondent does not submit the requested 
financial information, he or she will be presumed to have the ability to 
pay the penalty.
    (1) Financial information relevant to a respondent's ability to pay 
includes, but is not limited to, the value of respondent's cash and 
liquid assets and non-liquid assets, ability to borrow, net worth, 
liabilities, income, prior and anticipated profits, expected cash flow, 
and the respondent's ability to pay in installments over time. A 
respondent will be considered able to pay a penalty even if he or she 
must take such actions as pay in installments over time, borrow money, 
liquidate assets, or reorganize his or her business. The Director of the 
NHHC's consideration of a respondent's ability to pay does not preclude 
an assessment of a penalty in an amount that would cause or contribute 
to the bankruptcy or other discontinuation of the respondent's business.
    (2) Financial information regarding respondent's ability to pay 
should be submitted to the Director of the NHHC as soon after receipt of 
the NOVA as possible. In deciding whether to submit such information, 
the respondent should keep in mind that the Director of the NHHC may 
assess de novo a civil penalty, enforcement costs and/or liability for 
damages either greater or smaller than that assessed in the NOVA.



Sec.  767.26  Criminal law.

    Nothing in these regulations is intended to prevent the United 
States from pursuing criminal sanctions for plundering of wrecks, 
larceny of Government property, or violation of applicable criminal law, 
whether the infringement pertains to a sunken military craft, a 
terrestrial military craft or other craft under the jurisdiction of the 
DON.



Sec.  767.27  References.

    References for submission of permit application, including but not 
limited to, and as may be further amended:
    (a) National Historic Preservation Act (NHPA) of 1966, as amended, 
54 U.S.C. 300101 et seq. (2014), and Protection of Historic Properties, 
36 CFR part 800. This statute and its implementing regulations govern 
the section 106 review process established by the NHPA.
    (b) National Environmental Policy Act of 1969, as amended, 42 U.S.C. 
4321 et seq., and Protection of the Environment, 40 CFR parts 1500 
through 1508. This statute and its implementing regulations require 
agencies to consider the effects of their actions on the human 
environment.
    (c) Secretary of the Interior's Standards and Guidelines for 
Archeology and Historic Preservation available at http://www.cr.nps.gov/
local-law/arch_stnds_0.htm. These guidelines establish standards for the 
preservation planning process with guidelines on implementation.
    (d) Archaeological Resources Protection Act of 1979, as amended, 16 
U.S.C. 470aa-mm, and the Uniform Regulations, 43 CFR part 7, subpart A. 
This statute and its implementing regulations establish basic 
government-wide standards for the issuance of permits for archaeological 
research, including the authorized excavation and/or removal of 
archaeological resources on public lands or Indian lands.
    (e) Secretary of the Interior's regulations, Curation of Federally-
Owned and Administered Archaeological Collections, 36 CFR part 79. These 
regulations establish standards for the curation and display of 
federally-owned artifact collections.
    (f) Antiquities Act of 1906, Public Law 59-209, 34 Stat. 225 
(codified at 16 U.S.C. 431 et seq. (1999)).
    (g) Executive Order 11593, 36 FR 8291, 3 CFR, 1971-1975 Comp., p. 
559 (Protection and Enhancement of the Cultural Environment).
    (h) Department of Defense Instruction 4140.21M (DoDI 4140.21M, 
August 1998). Subject: Defense Disposal Manual.
    (i) Secretary of the Navy Instruction 4000.35A (SECNAVINST 4000.35A, 
9 April 2001). Subject: Department of the Navy Cultural Resources 
Program.

                        PARTS 768	769 [RESERVED]

[[Page 230]]



PART 770_RULES LIMITING PUBLIC ACCESS TO PARTICULAR INSTALLATIONS-
-Table of Contents



 Subpart A_Hunting and Fishing at Marine Corps Base, Quantico, Virginia

Sec.
770.1 Purpose.
770.2 Licenses.
770.3 Fishing regulations.
770.4 Hunting regulations.
770.5 Safety regulations.
770.6 Restrictions.
770.7 Violations and environmental regulations.
770.8 Reports.
770.9 Miscellaneous.

   Subpart B_Base Entry Regulations for Naval Submarine Base, Bangor, 
                         Silverdale, Washington

770.15 Purpose.
770.16 Definition.
770.17 Background.
770.18 Entry restrictions.
770.19 Entry procedures.
770.20 Violations.

Subpart C_Base Entry Regulations for Naval Installations in the State of 
                                 Hawaii

770.25 Purpose.
770.26 Definitions.
770.27 Background.
770.28 Entry restrictions.
770.29 Entry procedures.
770.30 Violations.
770.31 List of major naval installations in the State of Hawaii and 
          cognizant commanders authorized to grant access under these 
          regulations.

  Subpart D_Entry Regulations for Naval Installations and Property in 
                               Puerto Rico

770.35 Purpose.
770.36 Definitions.
770.37 Background.
770.38 Entry restrictions.
770.39 Entry procedures.
770.40 Violations.

 Subpart E_Base Entry Regulations for Naval Submarine Base New London, 
                           Groton, Connecticut

770.41 Purpose.
770.42 Background.
770.43 Responsibility.
770.44 Entry restrictions.
770.45 Entry procedures.
770.46 Violations.

    Subpart F_Base Entry Regulations for Puget Sound Naval Shipyard, 
                          Bremerton, Washington

770.47 Purpose.
770.48 Definition.
770.49 Background.
770.50 Entry restrictions.
770.51 Entry procedures.
770.52 Violations.

 Subpart G_Entry Regulations for Portsmouth Naval Shipyard, Portsmouth, 
                              New Hampshire

770.53 Purpose.
770.54 Background.
770.55 Responsibility.
770.56 Entry restrictions.
770.57 Entry procedures.
770.58 Violations.

    Authority: 5 U.S.C. 301; 10 U.S.C. 6011; 32 CFR 700.702; 32 CFR 
700.714, unless otherwise noted.



 Subpart A_Hunting and Fishing at Marine Corps Base, Quantico, Virginia

    Source: 41 FR 22345, June 3, 1976, unless otherwise noted.



Sec.  770.1  Purpose.

    This subpart provides regulations and related information governing 
hunting and fishing on the Marine Corps Base Reservation, Quantico, VA.



Sec.  770.2  Licenses.

    (a) Every person who hunts or fishes on Marine Corps Base, Quantico, 
VA, must possess appropriate valid licenses in compliance with the Laws 
of the United States and the State of Virginia.
    (b) In addition, hunting and fishing privilege cards, issued by the 
authorities at Marine Corps Base, Quantico, VA, are required for all 
persons between the ages sixteen and sixty-four, inclusive.
    (1) The privilege card may be purchased from the Natural Resources 
and Environmental Affairs Branch, Building 5-9, Marine Corps Base, 
Quantico, VA.
    (2) The privilege cards are effective for the same period as the 
Virginia hunting and fishing licenses.

[[Page 231]]

    (c) All hunters must obtain a Base hunting permit, and a parking 
permit, if applicable, from the Game Check Station, Building 5-9 Station 
(located at the intersection of Russell Road and MCB-1) for each day of 
hunting. The hunting permit must be carried by the hunter and the 
parking permit must be displayed on the left dashboard of parked 
vehicles. The hunting and parking permits must be returned within one 
hour after either sunset or the hour hunting is secured on holidays or 
during special season.
    (d) Eligibility for a Base hunting permit is predicated on:
    (1) Possession of required Federal and State licenses for the game 
to be hunted including Marine Corps Base hunting privilege card;
    (2) Attendance at a safety lecture given daily except Sunday during 
the hunting season given at the Game Check Station. The lectures 
commence at the times posted in the Annual Hunting Bulletin and are 
posted on all base bulletin boards;
    (3) Understanding of Federal, State and Base hunting regulations;
    (4) And, if civilian, an executed release of U.S. Government 
responsibility in case of accident or injury.

[41 FR 22345, June 3, 1976, as amended at 48 FR 23205, May 24, 1983; 65 
FR 53591, Sept. 5, 2000]



Sec.  770.3  Fishing regulations.

    (a) All persons possessing the proper state license and Base permit 
are permitted to fish in the areas designated by the Annual Fishing 
Regulations on Marine Corps Base, Quantico, VA, on any authorized 
fishing day. A Base Fishing Privilege Card is required for all persons 
aged 16 to 65.
    (b) Fishing is permitted on all waters within the boundaries of 
Marine Corps Base, Quantico, VA, unless otherwise posted, under the 
conditions and restrictions and during the periods provided by Marine 
Corps Base, Quantico, VA. Information regarding specific regulations for 
each fishing area must be obtained from the Natural Resources and 
Environmental Affairs Branch, Building 5-9 prior to use of Base fishing 
facilities.
    (c) In addition to the requirements of the Laws of Virginia, the 
following additional prohibitions and requirements are in effect at 
Marine Corps Base, Quantico, VA.
    (1) No trout lines are permitted in Marine Corps Base waters;
    (2) No Large Mouth Bass will be taken, creeled or possessed in a 
slot limit of 12-15 inches in length. All Large Mouth Bass within this 
slot will be immediately returned to the water;
    (3) No Striped Bass will be taken, creeled or possessed under the 
size of twenty (20) inches in length. All Striped Bass under this size 
will be immediately returned to the water.

[41 FR 22345, June 3, 1976, as amended at 48 FR 23205, May 24, 1983; 65 
FR 53591, Sept. 5, 2000]



Sec.  770.4  Hunting regulations.

    All persons possessing the proper State, Federal and Base licenses 
and permits are permitted to hunt in the areas designated daily by the 
Annual Hunting Bulletin on Marine Corps Base, Quantico, VA, on any 
authorized hunting day. In addition, a minimum of fifteen percent of the 
daily hunting spaces will be reserved to civilians on a first come, 
first served basis until 0600 on each hunting day, at which time, the 
Game Check Station may fill vacancies from any authorized persons 
waiting to hunt.

[65 FR 53591, Sept. 5, 2000]



Sec.  770.5  Safety regulations.

    (a) Hunting is not permitted within 200 yards of the following: 
Ammunition dumps, built-up areas, rifle or pistol ranges, dwelling or 
other occupied structures, and areas designated by the Annual Hunting 
Bulletin as recreation areas.
    (b) From the end of the special archery season until the end of the 
regular firearms winter hunting season, except for duck hunters in 
approved blinds, hunters will wear an outer garment with at least two 
square foot of blaze orange visible both front and back above the waist 
and a blaze orange cap while hunting, or while in the woods for any 
reason, during the hours that hunting is authorized. Any person 
traveling on foot in or adjacent to an area open for hunting will comply 
with this requirement.

[[Page 232]]

    (c) Weapons will be unloaded while being transported in vehicles, 
and will be left in vehicles by personnel checking in or out at the Game 
Check Station. Weapons will not be discharged from vehicles, or within 
200 yards of hard surfaced roads.
    (d) Certain hunting areas contain numerous unexploded munitions 
(duds) which are dangerous and must not be removed or disturbed. Hunters 
should mark such duds with stakes or other means and report their 
location to the Game Warden.
    (e) Hunters must stay in their assigned areas when hunting.

[41 FR 22345, June 3, 1976, as amended at 65 FR 53592, Sept. 5, 2000]



Sec.  770.6  Restrictions.

    (a) There will be no hunting on Christmas Eve, Christmas Day, New 
Years Day, or after 1200 on Thanksgiving Day.
    (b) Hunters under 18 years of age must be accompanied by an adult 
(21 years of age or older) while hunting or in a hunting area. The adult 
is limited to a maximum of two underage hunters, and must stay within 
sight and voice contact and no more than 100 yards away from the 
underage hunters.
    (c) The following practices or actions are expressly forbidden: Use 
of rifles, except muzzleloaders of .40 caliber or larger as specified 
below, revolvers or pistols; use of shotguns larger than 10 gauge or 
crossbows (this prohibition extends to carrying such weapons on the 
person or in a vehicle while hunting), use of buckshot to hunt any game; 
use of a light, attached to a vehicle or otherwise, for the purpose of 
spotting game; use of dogs for hunting or tracking deer; training deer 
dogs on the Reservation; training or running dogs in hunting areas 
between 1 March and 1 September; driving deer; baiting or salting traps 
or blinds; hunting on Sunday; molesting wildlife. Those personnel who 
are authorized to hunt on Base, desiring to train or exercise dogs other 
than deer dogs between 2 September and 28 February, may do so by 
obtaining Walking Pass to enter training areas at the Range Control 
Office. This Walking Pass is not permission to hunt, and carrying 
weapons under these conditions is prohibited.
    (d) Hunting will not commence before one half hour before sunrise, 
and will end not later than sunset. The hours of sunrise and sunset are 
posted daily at the Game Checking Station.
    (e) Weapons will not be loaded outside of hunting hours.
    (f) There will be no use of a muzzleloader or slug shotgun after 
obtaining the daily or yearly game bag limits.
    (g) There will be no possession or use of drugs or alcohol while 
checked out to hunt.

[41 FR 22345, June 3, 1976, as amended at 48 FR 23205, May 24, 1983; 65 
FR 53592, Sept. 5, 2000]



Sec.  770.7  Violations and environmental regulations.

    Violations of hunting regulations, fishing regulations, safety 
regulations, or principles of good sportsmanship are subject to 
administrative restriction of hunting or fishing privileges and possible 
judicial proceedings in State or Federal courts.
    (a) The Marine Corps Base Game Wardens are Federal Game Wardens. 
They have authority to issue summons to appear in Federal court for game 
violations.
    (b) Offenders in violation of a Federal or State hunting or fishing 
laws will be referred to a Federal court.
    (c) Offenders in violation of a Federal, State or Base hunting or 
fishing law or regulation will receive the following administrative 
actions.
    (1) The Base Game Warden shall have the authority to temporarily 
suspend hunting and fishing privileges.
    (2) Suspensions of hunting and fishing privileges will be outlined 
in the Annual Fish and Wildlife Procedures Manual.
    (d) Civilians found in violation of a hunting or fishing regulation 
or law may be permanently restricted from entering the base.
    (e) Serious hunting and fishing offenses include, but are not 
limited to: spotlighting, false statement on a license, hunting under 
the influence, employment of a light in an area that deer frequent, and 
taking game or fish during closed seasons.

[41 FR 22345, June 3, 1976, as amended at 65 FR 53592, Sept. 5, 2000]

[[Page 233]]



Sec.  770.8  Reports.

    Upon killing a deer or turkey, a hunter must attach the appropriate 
tab from his big game license to the carcass before moving the game from 
the place of kill. The game will then be taken to the Game Checking 
Station where the tab will be exchanged for an official game tag. All 
other game, not requiring a tag, killed on the Reservation will be 
immediately reported to the Game Warden when checking out at the end of 
a hunt.

[41 FR 22345, June 3, 1976, as amended at 48 FR 23206, May 24, 1983; 65 
FR 53592, Sept. 5, 2000]



Sec.  770.9  Miscellaneous.

    Refer to the Annual Fishing and Hunting Bulletins that will cover 
any annual miscellaneous changes.

[65 FR 53592, Sept. 5, 2000]



   Subpart B_Base Entry Regulations for Naval Submarine Base, Bangor, 
                         Silverdale, Washington

    Authority: 50 U.S.C. 797; DoDDir. 5200.8 of April 25, 1991; 5 U.S.C. 
301; 10 U.S.C. 6011; 32 CFR 700.702; 32 CFR 700.714.

    Source: 44 FR 32368, June 6, 1979, unless otherwise noted.



Sec.  770.15  Purpose.

    The purpose of this subpart is to promulgate regulations governing 
entry upon Naval Submarine Base (SUBASE), Bangor.



Sec.  770.16  Definition.

    For the purpose of this subpart, SUBASE Bangor shall include that 
area of land in Kitsap and Jefferson Counties, State of Washington which 
has been set aside for use of the Federal Government by an Act of the 
legislature of the State of Washington, approved March 15, 1939 (Session 
laws of 1939, chapter 126).



Sec.  770.17  Background.

    (a) SUBASE Bangor has been designated as the West Coast home port of 
the Trident Submarine. Facilities for the repair or overhaul of naval 
vessels are located at SUBASE Bangor. It is vital to national defense 
that the operation and use of SUBASE Bangor be continued without undue 
and unnecessary interruption. Many areas of SUBASE Bangor are of an 
industrial nature, including construction sites, where inherently 
dangerous conditions exist.
    (b) For prevention of the interruption of the stated use of the base 
by the presence of any unauthorized person within the boundaries of 
SUBASE Bangor, and prevention of injury to any such person as a 
consequence of the dangerous conditions which exist, as well as for 
other reasons, it is essential to restrict entry upon SUBASE Bangor to 
authorized persons only.



Sec.  770.18  Entry restrictions.

    Except for military personnel and civilian employees of the United 
States in the performance of their official duties, entry upon Naval 
Submarine Base, Bangor, or remaining thereon by any person whatsoever 
for any purpose without the advance consent of the Commanding Officer, 
SUBASE Bangor or his authorized representative is prohibited. See, 18 
U.S.C. 1382; the Internal Security Act of 1950, Section 21 (50 U.S.C. 
797); Department of Defense Directive 5200.8 of 25 April 1991; Secretary 
of the Navy Instruction 5511.36A of 21 July 1992.

[44 FR 32368, June 6, 1979, as amended at 65 FR 53592, Sept. 5, 2000]



Sec.  770.19  Entry procedures.

    (a) Any person or group of persons desiring the advance consent of 
the Commanding Officer, SUBASE Bangor or his authorized representative 
shall, in writing, submit a request to the Commanding Officer, Naval 
Submarine Base, Bangor, 1100 Hunley Road, Silverdale, WA 98315.
    (b) Each request for entry will be considered on an individual basis 
weighing the operational, security, and safety requirements of SUBASE 
Bangor with the purpose, size of party, duration of visit, destination, 
and military resources which would be required by the granting of the 
request.

[44 FR 32368, June 6, 1979, as amended at 65 FR 53592, Sept. 5, 2000]

[[Page 234]]



Sec.  770.20  Violations.

    (a) Any person entering or remaining on SUBASE Bangor, without the 
consent of the Commanding Officer, SUBASE Bangor or his authorized 
representative, shall be subject to the penalties prescribed by 18 
U.S.C. 1382, which provides in pertinent part:

    Whoever, within the jurisdiction of the United States, goes upon any 
military, naval * * * reservation, post, fort, arsenal, yard, station, 
or installation, for any purpose prohibited by law or lawful regulation 
* * * shall be fined not more than $5,000 or imprisoned not more than 
six months or both.

    (b) Moreover, any person who willfully violates this subpart is 
subject to a fine not to exceed $5,000 or imprisonment for not more than 
one (1) year or both as provided in 50 U.S.C. 797.

[44 FR 32368, June 6, 1979, as amended at 65 FR 53592, Sept. 5, 2000]



Subpart C_Base Entry Regulations for Naval Installations in the State of 
                                 Hawaii

    Authority: 50 U.S.C. 797; DoD Dir. 5200.8 of Aug. 20, 1954; 5 U.S.C 
301; 10 U.S.C. 6011; 32 CFR 700.702, 770.714.

    Source: 44 FR 76279, Dec. 26, 1979, unless otherwise noted.



Sec.  770.25  Purpose.

    The purpose of this subpart is to promulgate regulations governing 
entry to naval installations in the State of Hawaii.



Sec.  770.26  Definitions.

    For the purpose of this subpart the following definitions apply:
    (a) Naval installations. A naval installation is a shore activity 
and is any area of land, whether or not fenced or covered by water, that 
is administered by the Department of the Navy or by any subordinate 
naval command. The term ``naval installation'' applies to all such areas 
regardless of whether the areas are being used for purely military 
purposes, for housing, for support purposes, or for any other purpose by 
a naval command. Section 770.31 contains a list of the major naval 
installations in Hawaii. This list is not considered to be all inclusive 
and is included only as a representative guide. For the purposes of this 
subpart the area of water within Pearl Harbor is considered to be within 
a naval installation.
    (b) Outleased areas. Certain portions of naval installations in 
Hawaii which are not for the time needed for public use or for which a 
dual use is feasible have been outleased to private interests. Examples 
of such outleased areas are the Moanalua Shopping Center and lands such 
as Waipio Peninsula, which has been outleased for agricultural purposes. 
For the purpose of this Subpart, outleased areas which are not within 
fenced portions of naval installations are not considered to be a part 
of naval installations. Rules for entry onto the outleased areas are 
made by the lessees, except in the case of Waipio Peninsula where the 
lessee (Oahu Sugar Company) is not authorized to allow anyone to enter 
Waipio Peninsula for any purpose not connected with sugar cane 
production.



Sec.  770.27  Background.

    (a) Naval installations in Hawaii constitute a significant element 
of the national defense establishment. It is vital to the national 
defense that the use of such areas be at all times under the positive 
control of the Department of the Navy. Strict control must be exercised 
over access to naval installations in order to preclude damage 
accidental and intentional to Government property, injury to military 
personnel, and interference in the orderly accomplishment of the mission 
of command.
    (b) There are several industrial areas within naval installations in 
Hawaii wherein construction activities and the use of heavy machinery 
pose grave risk of danger to visitors.
    (c) Various types of flammable or incendiary materials and ordnance 
are stored at a number of locations within naval installations in 
Hawaii.
    (d) Classified documents and equipment requiring protection from 
unauthorized disclosure by Executive order 12065 for reasons of national 
security are located at various locations within naval installations in 
Hawaii.
    (e) In order to effect the positive control of the Navy over its 
installations in Hawaii, it is essential that entry

[[Page 235]]

onto those installations be restricted to authorized persons only.
    (f) These entry regulations are being promulgated under the 
authority of Commander, Naval Base, Pearl Harbor, who has been assigned 
as immediate area coordinator for all naval installations in the State 
of Hawaii by Commander-in-Chief, U.S. Pacific Fleet.



Sec.  770.28  Entry restrictions.

    Each commander is responsible for the security of his/her command. 
Therefore, entry onto a command or into part of a command may be 
controlled by the commander through the imposition of such restrictions 
as may be required by attendant circumstances. Within the State of 
Hawaii, entry into a naval installation is not permitted without the 
permission of the responsible commander.



Sec.  770.29  Entry procedures.

    (a) Operational, security, and safety considerations take priority 
over requests by individuals to visit a naval installation. Consistent 
with such considerations, visits by members of the general public may be 
authorized at the discretion of the commander. The commitment of 
resources which would be required to safeguard the persons and property 
of visitors as well as military property and personnel must of necessity 
preclude or severely restrict such visiting. The purpose and duration of 
the visit and the size of the party and areas to be visited are other 
considerations which may affect the commander's decision whether to 
permit visiting by members of the public.
    (b) Any person or group desiring to enter a particular naval 
installation or portion thereof, shall submit a written request to the 
commander of the installation well enough in advance to allow a 
reasonable time for reply by mail. Mailing addresses for commanders of 
major installations covered by this subpart are listed in Sec.  770.31. 
Full compliance with a naval installation's local visitor registration 
and entry control procedures shall be deemed the equivalent of obtaining 
the advance consent of the commander for entrance upon the installation 
for the purpose of this subpart. Authorization to enter one naval 
installation or a portion of one installation does not necessarily 
include the authorization to enter any other naval installation or all 
portions of an installation.



Sec.  770.30  Violations.

    (a) Any person entering or remaining on a naval installation in the 
State of Hawaii, without consent of the commander or his authorized 
representative, shall be subject to the penalties of a fine of not more 
than $500 or imprisonment for not more than six months, or both. See 18 
U.S.C. 1382.
    (b) Moreover, any person who willfully violates this regulation is 
subject to a fine not to exceed $5,000 or imprisonment for one year, or 
both. See 50 U.S.C. 797.



Sec.  770.31  List of major naval installations in the State of Hawaii
and cognizant commanders authorized to grant access under these
regulations.

    (a) On Oahu. (1) Naval Base, Pearl Harbor (including the Naval 
Station, Naval Submarine Base, Naval Shipyard, Naval Supply Center, 
Naval Public Works Center, Marine Barracks, Ford Island, Bishop Point 
Dock Area, Commander-in-Chief Pacific Fleet and Commander Naval 
Logistics Command Headquarters Areas, Johnson Circle Navy Exchange/
Commissary Store Area, Navy-Marine Golf Course, miscellaneous other 
commands, and areas within the Naval Base, Pearl Harbor complex, and the 
waters of Pearl Harbor). Contact:

Commander, Naval Base, Pearl Harbor, HI 96860.

    (2) Naval Western Oceanography Center, Pearl Harbor. Contact:

Commanding Officer, Naval Western Oceanography Center, Box 113, Pearl 
Harbor, HI 96860.

    (3) Naval Air Station, Barbers Point. Contact:

Commanding Officer, Naval Air Station, Barbers Point, HI 96862.

    (4) Naval Communication Area Master Station, Eastern Pacific, 
Wahiawa. Contact:

Commanding Officer, Naval Communication Area Master Station, Eastern 
Pacific, Wahiawa, HI 96786.


[[Page 236]]


    (5) Naval Magazine (Lualualei, Waikele, and West Loch). Contact:

Commanding Officer, Naval Magazine, Lualualei, HI 96792.

    (6) Naval Radio Transmitting Facility, Lualualei. Contact:

Commanding Officer, Naval Base, Pearl Harbor, HI 96860.

    (7) Naval and Marine Corps Reserve Training Center, Honolulu. 
Contact:

Commanding Officer, Naval and Marine Corps Reserve Training Center, 
Honolulu, 530 Peltier Avenue, Honolulu, HI 96818.

    (8) Military Sealift Command Office. Contact:

Commander, Naval Base, Pearl Harbor, HI 96860.

    (9) Mauna Kapu (Pacific Missile Range Facility). Contact:

Commanding Officer, Pacific Missile Range Facility, Hawaiian Area, 
Barking Sands, Kekaha, Kauai, HI 96752.

    (10) Kunia Facility; FORACS III Sites; Degaussing Station, Waipio 
Peninsula; Damon Tract (Remanant) Opana Communciations Site. Contact:

Commander, Naval Base, Pearl Harbor, HI 96860.

    (11) Outlying areas of the Naval Supply Center, Pearl Harbor 
(including the Ewa Junction Storage Area, Ewa Drum Storage Area, Manana 
Supply Area, Pearl City Supply Area, and the Red Hill Fuel Storage 
Area). Contact:

Commander, Naval Base, Pearl Harbor, HI 96860.

    (12) Pump Stations (Halawa, Waiawa, Red Hill, and Barbers Point). 
Contact:

Commander, Naval Base, Pearl Harbor, HI 96860.

    (13) Halawa Water Storage Area; Barbers Point, Independent Water 
Supply Reservoir Site; Sewage Treatment Plant; Fort Kam (tri-service); 
Utility Corridors, Lynch Park (Ohana Nui). Contact:

Commander, Naval Base, Pearl Harbor, HI 96860.

    (14) Navy housing areas (including Moanalua Terrace, Radford 
Terrace, Makalapa, Maloelap, Halsey Terrace, Catlin Park, Hale Moku, 
Pearl Harbor, Naval Shipyard, McGrew Point, Halawa, Hokulani, Manana, 
Pearl City Peninsula, Red Hill, Iroquois Point, Puuloa, and Camp 
Stover). Contact:

Commander, Naval Base, Pearl Harbor, HI 96860.

    (b) On Kauai. (1) Pacific Missile Range Facility, Barking Sands, 
Kekaha.

Contact: Commanding Officer, Pacific Missile Range Facility, Hawaiian 
Area, Barking Sands, Kekaha, HI 96752.

    (c) Other areas. (1) Kaho'olawe Island. Contact:

Commander Naval Base, Pearl Harbor, HI 96860. Also see 32 CFR part 763.

    (2) Kaula. Contact:

Commander Naval Base, Pearl Harbor, HI 96860.

[44 FR 76279, Dec. 26, 1979, as amended at 52 FR 20074, May 29, 1987]



  Subpart D_Entry Regulations for Naval Installations and Property in 
                               Puerto Rico

    Source: 46 FR 22756, Apr. 21, 1981, unless otherwise noted.



Sec.  770.35  Purpose.

    The purpose of this subpart is to promulgate standard regulations 
and procedures governing entry upon U.S. Naval installations and 
properties in Puerto Rico.



Sec.  770.36  Definitions.

    For purposes of these regulations, U.S. Naval installations and 
properties in Puerto Rico include, but are not limited to, the U.S. 
Naval Station, Roosevelt Roads (including the Vieques Island Eastern 
Annexes, consisting of Camp Garcia, the Eastern Maneuver Area, and the 
Inner Range); the Naval Ammunition Facility, Vieques Island; and the 
Naval Security Group Activity, Sabana Seca.



Sec.  770.37  Background.

    In accordance with 32 CFR 765.4, Naval installations and properties 
in Puerto Rico are not open to the general public, i.e., they are 
``closed'' military bases. Therefore admission to the

[[Page 237]]

general public is only by the permission of the respective Commanding 
Officers in accordance with their respective installation instructions.



Sec.  770.38  Entry restrictions.

    Except for duly authorized military personnel and civilian 
employees, including contract employees, of the United States in the 
performance of their official duties, entry upon any U.S. Navy 
installation or property in Puerto Rico at anytime, by any person for 
any purpose whatsoever without the advance consent of the Commanding 
Officer of the installation or property concerned, or an authorized 
representative of that Commanding Officer, is prohibited.



Sec.  770.39  Entry procedures.

    (a) Any person or group of persons desiring to obtain advance 
consent for entry upon any U.S. Naval installation or property in Puerto 
Rico from the Commanding Officer of the Naval installation or property, 
or an authorized representative of that Commanding Officer, shall 
present themselves at an authorized entry gate at the installation or 
property concerned or, in the alternative, submit a request in writing 
to the following respective addresses:
    (1) Commanding Officer, U.S. Naval Station, Roosevelt Roads, Box 
3001, Ceiba, PR 00635.
    (2) Officer in Charge, Naval Ammunition Facility, Box 3027, Ceiba, 
PR 00635.
    (3) Commanding Officer, U.S. Naval Security Group Activity, Sabana 
Seca, PR 00749.
    (b) The above Commanding Officers are authorized to provide advance 
consent only for installations and properties under their command. 
Requests for entry authorization to any other facility or property shall 
be addressed to the following:

Commander, U.S. Naval Forces, Caribbean, Box 3037, Ceiba, PR 00635.
    (c) Each request for entry will be considered on an individual basis 
and consent will be determined by applicable installation entry 
instructions. Factors that will be considered include the purpose of 
visit, the size of party, duration of visit, destination, security 
safeguards, safety aspects, and the military resources necessary if the 
request is granted.



Sec.  770.40  Violations.

    Any person entering or remaining on U.S. Naval installations and 
properties in Puerto Rico, without the advance consent of those 
officials hereinabove enumerated, or their authorized representatives, 
shall be considered to be in violation of these regulations and 
therefore subject to the penalties prescribed by 18 U.S.C. 1382, which 
provides in pertinent part: ``Whoever, within the jurisdiction of the 
United States, goes upon any military, naval * * * reservation, post, 
fort, arsenal, yard, station, or installation, for any purpose 
prohibited by law or lawful regulation * * * shall be fined not more 
than $500.00 or imprisoned not more than six months, or both,'' or any 
other applicable laws or regulations.



 Subpart E_Base Entry Regulations for Naval Submarine Base New London, 
                           Groton, Connecticut

    Authority: 50 U.S.C. 797; DoD Directive 5200.8 of July 29, 1980; 
SECNAVINST 5511.36 of December 20, 1980; OPNAVINST 5510.45 of April 19, 
1971; 5 U.S.C. 301; 10 U.S.C. 6011; 32 CFR 700.702; 32 CFR 700.714.

    Source: 48 FR 5555, Feb. 7, 1983, unless otherwise noted.



Sec.  770.41  Purpose.

    The purpose of this subpart is to promulgate regulations and 
procedures governing entry upon Naval Submarine Base New London, and to 
prevent the interruption of the stated functions and operations of Naval 
Submarine Base New London, by the presence of any unauthorized person 
within the boundaries of Naval Submarine Base New London.



Sec.  770.42  Background.

    Naval Submarine Base New London maintains and operates facilities to 
support training and experimental operations of the submarine force 
including providing support to submarines, submarine rescue vessels, and 
assigned

[[Page 238]]

service and small craft; within capabilities, to provide support to 
other activities of the Navy and other governmental activities in the 
area; and to perform such other functions as may be directed by 
competent authority.



Sec.  770.43  Responsibility.

    The responsibility for proper identification and control of 
personnel and vehicle movement on the Naval Submarine Base New London is 
vested with the Security Officer.



Sec.  770.44  Entry restrictions.

    Except for military personnel, their authorized dependents, or 
guests, and employees of the United States in the performance of their 
official duties, entry upon Naval Submarine Base New London, or 
remaining thereon by any person for any purpose without the advance 
consent of the Commanding Officer, Naval Submarine Base New London, or 
his authorized representative is prohibited. See 18 U.S.C. 1382j, the 
Internal Security Act of 1950 (50 U.S.C. 797); Chief of Naval Operations 
Instruction 5510.45B of April 19, 1971; and Secretary of the Navy 
Instruction 5511.36 of December 20, 1980.



Sec.  770.45  Entry procedures.

    (a) Any individual person or group of persons desiring the advance 
consent of the Commanding Officer, Naval Submarine Base New London, or 
his authorized representative shall, in writing, submit a request to the 
Commanding Officer, Naval Submarine Base New London, at the following 
address: Commanding Officer (Attn: Security Officer), Box 38, Naval 
Submarine Base New London, Groton, CT 06349.
    (b) Each request for entry will be considered on an individual basis 
weighing the operational, security, and safety requirements of Naval 
Submarine Base New London with the purpose, size of party, duration of 
visit, destination, and military resources which would be required by 
the granting of the request.



Sec.  770.46  Violations.

    (a) Any person entering or remaining on Naval Submarine Base New 
London, without the consent of the Commanding Officer, Naval Submarine 
Base New London or his authorized representative, shall be subject to 
the penalties prescribed in 18 U.S.C. 1382, which provides in pertinent 
part:

    Whoever, within the jurisdiction of the United States, goes upon any 
military, naval . . . reservation, post, fort, arsenal, yard, station, 
or installation, for any purpose prohibited by law or lawful regulation 
. . . shall be fined not more than $500 or imprisoned not more than six 
months or both.

    (b) Moreover, any person who willfully violates this subpart is 
subject to a fine not to exceed $5000 or imprisonment for not more than 
one (1) year or both as provided in 50 U.S.C. 797.



    Subpart F_Base Entry Regulations for Puget Sound Naval Shipyard, 
                          Bremerton, Washington

    Authority: 5 U.S.C. 301; 10 U.S.C. 6011; 50 U.S.C. 797; DoD 
Directive 5200.8 of April 25, 1991; SECNAVINST 5511.36A of July 21, 
1992; OPNAVINST 5530.14C of December 10, 1998; 32 CFR 700.702; 32 CFR 
700.714.

    Source: 65 FR 53592, Sept. 5, 2000, unless otherwise noted.



Sec.  770.47  Purpose.

    To promulgate regulations and procedures governing entry upon Puget 
Sound Naval Shipyard, and to prevent the interruption of the functions 
and operations of Puget Sound Naval Shipyard by the presence of any 
unauthorized person within the boundaries of the Puget Sound Naval 
Shipyard.



Sec.  770.48  Definition.

    For the purpose of this subpart, Puget Sound Shipyard shall include 
that area of land, whether or not fenced or covered by water, in Kitsap 
County in the State of Washington under the operational control of the 
Commander, Puget Sound Naval Shipyard or any tenant command. This 
includes all such areas regardless of whether the areas are being used 
for purely military purposes, for housing, for support purposes, or for 
any other purpose by a naval command or other Federal agency.

[[Page 239]]



Sec.  770.49  Background.

    (a) Puget Sound Naval Shipyard is a major naval ship repair 
facility, with operational requirements to complete repairs and overhaul 
of conventionally powered and nuclear powered naval vessels. It is vital 
to national defense that the operation and use of the shipyard be 
continued without interruption. Additionally, most of Puget Sound Naval 
Shipyard is dedicated to heavy industrial activity where potentially 
hazardous conditions exist.
    (b) For prevention of the interruption of the stated use of Puget 
Sound Naval Shipyard and prevention of injury to any unsupervised or 
unauthorized person as a consequence of the hazardous conditions that 
exist, as well as for other reasons, it is essential to restrict entry 
upon Puget Sound Naval Shipyard to authorized persons only.



Sec.  770.50  Entry restrictions.

    Except for military personnel and civilian employees of the United 
States in the performance of their official duties, entry upon Puget 
Sound Naval Shipyard, or remaining thereon by any person for any purpose 
without advance consent of the Commander, Puget Sound Naval Shipyard or 
his/her authorized representative, is prohibited.



Sec.  770.51  Entry procedures.

    (a) Any person or group of persons desiring the advance consent of 
the Commander, Puget Sound Naval Shipyard, or his authorized 
representative, shall, in writing, submit a request to the Commander, 
Puget Sound Naval Shipyard, at the following address: Commander, Puget 
Sound Naval Shipyard, 1400 Farragut Avenue, Bremerton, WA 98314-5001.



Sec.  770.52  Violations.

    (a) Any person entering or remaining on Puget Sound Naval Shipyard, 
without the consent of the Commander, Puget Sound Naval Shipyard, or an 
authorized representative, shall be subject to the penalties prescribed 
by 18 U.S.C. 1382, which provides in pertinent part:

    Whoever, within the jurisdiction of the United States, goes upon any 
military, naval * * * reservation, post, fort, arsenal, yard, station or 
installation, for any purpose prohibited by law or lawful regulation * * 
* shall be fined not more than $500.00 or imprisoned not more than six 
months or both.

    (b) Moreover, any person who willfully violates this subpart is 
subject to a fine not to exceed $5000.00 or imprisonment for not more 
than one year or both as provided in 50 U.S.C. 797.



 Subpart G_Entry Regulations for Portsmouth Naval Shipyard, Portsmouth, 
                              New Hampshire

    Authority: 5 U.S.C. 301; 10 U.S.C. 6011; 50 U.S.C. 797; DoD 
Directive 5200.8 of April 25, 1991; SECNAVINST 5511.36A of July 21, 
1992; NAVCOMSYSCOMINST 5510.2B of April 18, 1990; 32 CFR 700.702; 32 CFR 
700.714.

    Source: 49 FR 34003, Aug. 28, 1984, unless otherwise noted.



Sec.  770.53  Purpose.

    To promulgate regulations and procedures governing entry upon 
Portsmouth Naval Shipyard, and to prevent the interruption of the 
functions and operations of Portsmouth Naval Shipyard by the presence of 
any unauthorized person within the boundaries of Portsmouth Naval 
Shipyard.



Sec.  770.54  Background.

    (a) Portsmouth Naval Shipyard maintains and operates facilities ``to 
provide logistic support for assigned ships and service craft; to 
perform authorized work in connection with construction, conversion, 
overhaul, repair, alteration, drydocking, and outfitting of ships and 
craft, as assigned; to perform manufacturing, research, development, and 
test work, as assigned; and to provide services and material to other 
activities and units, as directed by competent authority.''
    (b) Portsmouth Naval Shipyard is a major naval ship repair facility, 
with operational requirements to complete repairs and overhaul of 
conventionally powered and nuclear-powered naval vessels. It is vital to 
national defense that the operation and use of the shipyard be continued 
without undue or unnecessary interruptions. Additionally, most of 
Portsmouth Naval Shipyard is dedicated to heavy industrial

[[Page 240]]

activity where potentially hazardous conditions exist.
    (c) For prevention of interruption of the stated use of the base by 
the presence of any unauthorized person within the boundaries of 
Portsmouth Naval Shipyard, and prevention of injury to any such 
unsupervised person as a consequence of the dangerous conditions which 
exist, as well as for other reasons, it is essential to restrict entry 
upon Portsmouth Naval Shipyard to authorized persons only.



Sec.  770.55  Responsibility.

    The responsibility for proper identification and control of 
personnel and vehicle movement on the Portsmouth Naval Shipyard is 
vested with the Shipyard Security Manager (Code 1700).

[49 FR 34003, Aug. 28, 1984, as amended at 65 FR 53593, Sept. 5, 2000]



Sec.  770.56  Entry restrictions.

    Except for military personnel, their authorized dependents, or 
guests, and civilian employees of the United States in the performance 
of their official duties, entry upon Portsmouth Naval Shipyard, or 
remaining thereon by any person for any purpose without the advance 
consent of the Commander, Portsmouth Naval Shipyard, or his authorized 
representative, is prohibited. In many instances, Commander, Naval Sea 
Systems Command, approval is required.



Sec.  770.57  Entry procedures.

    (a) Any person or group desiring the advance consent of the 
Commander, Portsmouth Naval Shipyard, or his authorized representative, 
shall, in writing, submit a request to the Commander, Portsmouth Naval 
Shipyard, at the following address: Commander, Portsmouth Naval 
Shipyard, Portsmouth, NH 03801, Attention: Security Manager (Code 1700). 
For groups, foreign citizens, and news media, the request must be 
forwarded to the Commander, Naval Sea Systems Command, for approval.
    (b) Each request for entry will be considered on an individual 
basis, weighing the operational, security, and safety requirements of 
Portsmouth Naval Shipyard, with the purpose, size of party, duration of 
visit, destination, and military resources which would be required by 
the granting of the request.

[49 FR 34003, Aug. 28, 1984, as amended at 65 FR 53593, Sept. 5, 2000]



Sec.  770.58  Violations.

    (a) Any person entering or remaining on Portsmouth Naval Shipyard 
without the consent of the Commander, Portsmouth Naval Shipyard, or his 
authorized representative, shall be subject to the penalties prescribed 
in 18 U.S.C. 1382, which provides in pertinent part:

    Whoever, within the jurisdiction of the United States, goes upon any 
military, naval . . . reservation, post, fort, arsenal, yard, station, 
or installation, for any purpose prohibited by law or lawful regulation 
. . . Shall be fined not more than $500 or imprisoned not more than six 
months, or both.

    (b) Moreover, any person who willfully violates this instruction is 
subject to a fine not to exceed $5000 or imprisonment for not more than 
one (1) year, or both, as provided by 50 U.S.C. 797.

                        PARTS 771	774 [RESERVED]



PART 775_POLICIES AND RESPONSIBILITIES FOR IMPLEMENTATION OF THE
NATIONAL ENVIRONMENTAL POLICY ACT WITHIN THE DEPARTMENT OF THE NAVY-
-Table of Contents



Sec.
775.1 Purpose and scope.
775.2 Definitions.
775.3 Policy.
775.4 Responsibilities.
775.5 Classified actions.
775.6 Planning considerations.
775.7 Time limits for environmental documents.
775.8 Scoping.
775.9 Documentation and analysis.
775.10 Relations with state, local and regional agencies.
775.11 Public participation.
775.12 Delegation of authority.

    Authority: 5 U.S.C. 301; 42 U.S.C. 4321-4361; 40 CFR parts 1500-
1508.

    Source: 55 FR 33899, Aug. 20, 1990, unless otherwise noted.



Sec.  775.1  Purpose and scope.

    (a) To implement the provisions of the National Environmental Policy 
Act

[[Page 241]]

(NEPA), 42 U.S.C. 4321 et seq., the Council on Environmental Quality 
Regulations for Implementing the Procedural Provisions of NEPA, 40 CFR 
1500-1508, and the Department of Defense Instruction on Environmental 
Planning and Analysis, DODINST 4715.9, and to assign responsibilities 
within the Department of the Navy (DON) for preparation, review, and 
approval of environmental documents prepared under NEPA.
    (b) The policies and responsibilities set out in this part apply to 
the DON, including the Office of the Secretary of the Navy, and Navy and 
Marine Corps commands, operating forces, shore establishments, and 
reserve components. This part is limited to the actions of these 
elements with environmental effects in the United States, its 
territories, and possessions.

[69 FR 8109, Feb. 23, 2004]



Sec.  775.2  Definitions.

    (a) Action proponent. The commander, commanding officer, or civilian 
director of a unit, activity, or organization who initiates a proposal 
for action, as defined in 40 CFR 1508.23, and who has command and 
control authority over the action once it is authorized. For some 
actions, the action proponent will also serve as the decision-making 
authority for that action. In specific circumstances, the action 
proponent and decision maker may be identified in Navy Regulations, 
other SECNAV Instructions, operational instructions and orders, 
acquisition instructions, and other sources which set out authority and 
responsibility within the DON.
    (b) Environmental Impact Statement (EIS). An environmental document 
prepared according to the requirements of Council on Environmental 
Quality (CEQ) regulations (40 CFR parts 1500-1508) for a major action 
that will have a significant effect on the quality of the human 
environment.
    (c) Environmental Assessment (EA). A concise document prepared 
according to the requirements of 40 CFR parts 1500-1508 that briefly 
provides sufficient evidence and analysis for determining whether to 
prepare an EIS. An EA aids compliance with NEPA when no EIS is necessary 
and facilitates preparation of an EIS when one is necessary.
    (d) Categorical Exclusion (CATEX). A published category of actions 
that do not individually or cumulatively have a significant impact on 
the human environment under normal circumstances, and, therefore, do not 
require either an environmental assessment or an environmental impact 
statement.
    (e) Record of Decision (ROD). An environmental document signed by an 
appropriate official of the DON. A ROD sets out a concise summary of the 
final decision and selected measures for mitigation (if any) of adverse 
environmental impacts of the alternative chosen from those considered in 
an EIS.
    (f) Finding of No Significant Impact (FONSI). A document that sets 
out the reasons why an action not otherwise categorically excluded will 
not have a significant impact on the human environment, and for which an 
EIS will not therefore be prepared. A FONSI will include the EA or a 
summary of it and shall note any other environmental documents related 
to it. A FONSI may be one result of review of an EA.

[69 FR 8109, Feb. 23, 2004]



Sec.  775.3  Policy.

    (a) It is the DON policy regarding NEPA, consistent with its mission 
and regulations and the environmental laws and regulations of the United 
States, to:
    (1) Initiate the NEPA processes at the earliest possible time to be 
an effective decision making tool in the course of identifying a 
proposed action.
    (2) Develop and carefully consider a reasonable range of 
alternatives for achieving the purpose(s) of proposed actions.
    (3) Assign responsibility for preparation of action specific 
environmental analysis under NEPA to the action proponent. The action 
proponent should understand the plans, analyses, and environmental 
documents related to that action.
    (b) NEPA is intended to ensure that environmental issues are fully 
considered and incorporated into the Federal decision making process. 
Consequently, actions for which the DON has no decision-making authority 
and

[[Page 242]]

no discretion in implementing the action, such as those carried out 
under a non discretionary mandate from Congress (e.g., congressional 
direction to transfer Federal property to a particular entity for a 
particular purpose that leaves DON no discretion in how the transfer 
will be implemented) or as an operation of law (e.g., reversionary 
interests in land recorded at the time the property was obtained and 
that provide no discretion in whether to trigger the reversion or how 
the reversion will be implemented), require no analysis or documentation 
under NEPA or its implementing regulations.

[69 FR 8109, Feb. 23, 2004]



Sec.  775.4  Responsibilities.

    (a) The Assistant Secretary of the Navy (Installations and 
Environment) (ASN (I&E)) shall:
    (1) Act as principal liaison with the Office of the Secretary of 
Defense, the Council on Environmental Quality, the Environmental 
Protection Agency, other Federal agencies, Congress, state governments, 
and the public with respect to significant NEPA matters.
    (2) Direct the preparation of appropriate environmental analysis and 
documentation and, with respect to those matters governed by SECNAV 
Instruction 5000.2 series, advise the Assistant Secretary of the Navy 
(Research Development and Acquisition) (ASN (RD&A)) concerning 
environmental issues and the appropriate level of environmental analysis 
and NEPA documentation needed in any particular circumstance.
    (3) Except for proposed acquisition-related actions addressed in 
paragraph (b)(2) of this section, review, sign, and approve for 
publication, as appropriate, documents prepared under NEPA.
    (4) Establish and publish a list of categorical exclusions for the 
DON.
    (b) The Assistant Secretary of the Navy (Research, Development and 
Acquisition (ASN (RD&A)) shall, in accordance with SECNAV Instruction 
5000.2 series:
    (1) Ensure that DON acquisition programs, research programs, and 
procurements comply with NEPA.
    (2) Review, sign, and approve for publication, as appropriate, 
environmental documents prepared under NEPA for proposed acquisition or 
research and development related actions.
    (c) The General Counsel of the Navy and the Judge Advocate General 
of the Navy shall:
    (1) Ensure that legal advice for compliance with environmental 
planning requirements is available to all decision-makers.
    (2) Advise the Secretary of the Navy, the Chief of Naval Operations, 
and the Commandant of the Marine Corps as to the legal requirements that 
must be met, and the conduct and disposition of all legal matters 
arising in the context of environmental planning.
    (d) The Chief of Naval Operations (CNO) and the Commandant of the 
Marine Corps (CMC) shall:
    (1) Implement effective environmental planning throughout their 
respective services.
    (2) Prepare and issue instructions or orders to implement 
environmental planning policies of the DON. Forward proposed CNO/CMC 
environmental planning instructions or orders to ASN (I&E) and, when 
appropriate, ASN (RD&A) for review and comment prior to issuance.
    (3) Make decisions on environmental assessments as to whether a 
Finding of No Significant Impact is appropriate or preparation of an 
environmental impact statement is required.
    (4) Ensure that subordinate commands establish procedures for 
implementing mitigation measures described in NEPA documents.
    (5) Provide coordination as required for the preparation of NEPA 
documents for actions initiated by non-DON/DOD entities, state or local 
agencies and/or private individuals for which service involvement may be 
reasonably foreseen.
    (6) Bring environmental planning matters that involve controversial 
issues or which may affect environmental planning policies or their 
implementation to the attention of ASN (I&E) and, where appropriate, ASN 
(RD&A) for coordination and determination.
    (7) Notify ASN (I&E), and when appropriate, ASN (RD&A) of any 
proposed EIS, and of any EA that may involve potentially sensitive 
public interest issues. EIS notification shall

[[Page 243]]

occur prior to commencing NEPA document preparation or receiving any 
public or regulatory agency involvement. EA notification shall be made 
as soon as it becomes apparent that potentially sensitive public issues 
are involved.

[69 FR 8109, Feb. 23, 2004]



Sec.  775.5  Classified actions.

    (a) The fact that a proposed action is of a classified nature does 
not relieve the proponent of the action from complying with NEPA and the 
CEQ regulations. Therefore, environmental documents shall be prepared, 
safeguarded and disseminated in accordance with the requirements 
applicable to classified information. When feasible, these documents 
shall be organized in such a manner that classified portions are 
included as appendices so that unclassified portions can be made 
available to the public. Review of classified NEPA documentation will be 
coordinated with the Environmental Protection Agency (EPA) to fulfill 
requirements of section 309 of the Clean Air Act (42 U.S.C. 7609 et 
seq.).
    (b) It should be noted that a classified EA/EIS serves the same 
``informed decisionmaking'' purpose as does a published unclassified EA/
EIS. Even though the classified EA/EIS does not undergo general public 
review and comment, it must still be part of the information package to 
be considered by the decisionmaker for the proposed action. The content 
of a classified EA/EIS (or the classified portion of a public EA/EIS) 
will therefore meet the same content requirements applicable to a 
published unclassified EA/EIS.



Sec.  775.6  Planning considerations.

    (a) An EIS must be prepared for proposed major Federal actions that 
will have significant impacts on the human environment. The agency 
decision in the case of an EIS is reflected in a ROD.
    (b) Where a proposed major Federal action has the potential for 
significantly affecting the human environment, but it is not clear 
whether the impacts of that particular action will in fact be 
significant, or where the nature of an action precludes use of a 
categorical exclusion, an EA may be used to assist the agency in 
determining whether to prepare an EIS. If the agency determination in 
the case of an EA is that there is no significant impact on the 
environment, the findings will be reflected in a FONSI. If the EA 
determines that the proposed action is likely to significantly affect 
the environment (even after mitigation), then an EIS will be prepared. 
An EA also may be used where it otherwise will aid compliance with NEPA.
    (c) CEQ regulations (40 CFR 1508.18(a)) define major federal actions 
subject to evaluation under NEPA to include, among other things, ``new 
and continuing activities''. The term new activities is intended to 
encompass future actions, i.e., those which are not ongoing at the time 
of the proposal. The term continuing activities which may necessitate 
the preparation of a NEPA document will be applied by the Department of 
Navy to include activities which are presently being carried out in 
fulfillment of the Navy mission and function, including existing 
training functions, where:
    (1) The currently occurring environmental effects of which have not 
been previously evaluated in a NEPA document, and there is a discovery 
that substantial environmental degradation is occurring, or is likely to 
occur, as a result of ongoing operations (e.g., a discovery that 
significant beach erosion is occurring as a result of continuing 
amphibious exercises, new designation of wetland habitat, or discovery 
of an endangered species residing in the area of the activity), or
    (2) There is a discovery that the environmental effects of an 
ongoing activity are significantly and qualitatively different or more 
severe than predicted in a NEPA document prepared in connection with the 
commencement of the activity.

A substantial change in a continuing activity (such as a substantial 
change in operational tempo, area of use, or in methodology/equipment) 
which has the potential for significant environmental impacts should be 
considered a proposal for a new action and be documented accordingly. 
Preparation of a NEPA document is not a necessary prerequisite, nor a 
substitute, for compliance with other environmental laws.

[[Page 244]]

    (d) Where emergency circumstances require immediate action, for the 
protection of lives and for public health and safety, which could result 
in significant harm to the environment, the activity Commanding Officer 
or his designee shall report the emergency action to CNO (OP-44E)/CMC 
(LFL) who will facilitate the appropriate consultation with CEQ as soon 
as practicable.
    (e) A categorical exclusion (CATEX), as defined and listed in this 
part and 40 CFR 1508.4, may be used to satisfy NEPA, eliminating the 
need for an EA or an EIS. Extraordinary circumstances are those 
circumstances for which the DON has determined that further 
environmental analysis may be required because an action normally 
eligible for a CATEX may have significant environmental effects. The 
presence of one or more of the extraordinary circumstances listed in 
paragraph (e)(1) of this section does not automatically preclude the 
application of a CATEX. A determination of whether a CATEX is 
appropriate for an action, even if one or more extraordinary 
circumstances are present, should focus on the action's potential 
effects and consider the environmental significance of those effects in 
terms of both context (consideration of the affected region, interests, 
and resources) and intensity (severity of impacts).
    (1) Before applying a CATEX, the decision maker must consider 
whether the proposed action would individually or cumulatively:
    (i) Adversely affect public health or safety;
    (ii) Involve effects on the human environment that are highly 
uncertain, involve unique or unknown risks, or which are scientifically 
controversial;
    (iii) Establish precedents or make decisions in principle for future 
actions that have the potential for significant impacts;
    (iv) Threaten a violation of Federal, State, or local environmental 
laws applicable to the DON; or
    (v) Involve an action that may:
    (A) Have more than an insignificant or discountable effect on 
federally protected species under the Endangered Species Act or have 
impacts that would rise to the level of requiring an Incidental Take 
Authorization under the Marine Mammal Protection Act irrespective of 
whether one is procured;
    (B) Have an adverse effect on coral reefs or on federally designated 
wilderness areas, wildlife refuges, marine sanctuaries and monuments, or 
parklands;
    (C) Adversely affect the size, function, or biological value of 
wetlands and is not covered by a general (nationwide, regional, or 
state) permit;
    (D) Have an adverse effect on archaeological resources or resources 
listed or determined to be eligible for listing on the National Register 
of Historic Places (including, but not limited to, ships, aircraft, 
vessels, and equipment) where compliance with Section 106 of the 
National Historic Preservation Act has not been resolved through an 
agreement executed between the DON and the appropriate historic 
preservation office and other appropriate consulting parties; or
    (E) Result in an uncontrolled or unpermitted release of hazardous 
substances or require a conformity determination under standards in 40 
CFR part 93, subpart B (the Clean Air Act General Conformity Rule).
    (2) If a decision is made to apply a CATEX to a proposed action that 
is more than administrative in nature, the decision must be formally 
documented per existing Navy and Marine Corps policy. For actions with a 
documented CATEX where one or more extraordinary circumstances are 
present, a copy of the executed CATEX decision document (e.g., Record of 
CATEX or Decision Memorandum) must be forwarded for review to Navy 
Headquarters or Marine Corps Headquarters, as appropriate, before the 
action is implemented. With the exception of actions that fall under 
paragraph (e)(1)(v)(A) of this section, the requirement to send the 
documented CATEX to headquarters for review will end on January 6, 2022.
    (f) Subject to the criteria in paragraph (e) of this section, the 
following categories of actions are excluded from further analysis under 
NEPA. The CNO and CMC shall determine whether a decision to forego 
preparation of an EA

[[Page 245]]

or EIS on the basis of one or more categorical exclusions must be 
documented in an administrative record and the format for such record.
    (1) Routine fiscal and administrative activities, including 
administration of contracts;
    (2) Routine law and order activities performed by military 
personnel, military police, or other security personnel, including 
physical plant protection and security;
    (3) Routine use and operation of existing facilities, laboratories, 
and equipment;
    (4) Administrative studies, surveys, and data collection;
    (5) Issuance or modification of administrative procedures, 
regulations, directives, manuals, or policy;
    (6) Military ceremonies;
    (7) Routine procurement of goods and services conducted in 
accordance with applicable procurement regulations, executive orders, 
and policies;
    (8) Routine repair and maintenance of buildings, facilities, 
vessels, aircraft, ranges, and equipment associated with existing 
operations and activities (e.g., localized pest management activities, 
minor erosion control measures, painting, refitting, general building/
structural repair, landscaping, or grounds maintenance);
    (9) Training of an administrative or classroom nature;
    (10) Routine personnel actions;
    (11) Routine movement of mobile assets (such as ships, submarines, 
aircraft, and ground assets for repair, overhaul, dismantling, disposal, 
homeporting, home basing, temporary reassignments; and training, 
testing, or scientific research) where no new support facilities are 
required;
    (12) Routine procurement, management, storage, handling, 
installation, and disposal of commercial items, where the items are used 
and handled in accordance with applicable regulations (e.g., 
consumables, electronic components, computer equipment, pumps);
    (13) Routine recreational and welfare activities;
    (14) Alterations of and additions to existing buildings, facilities, 
and systems (e.g., structures, roads, runways, vessels, aircraft, or 
equipment) when the environmental effects will remain substantially the 
same and the use is consistent with applicable regulations;
    (15) Routine movement, handling, and distribution of materials, 
including hazardous materials and wastes that are moved, handled, or 
distributed in accordance with applicable regulations;
    (16) New activities conducted at established laboratories and plants 
(including contractor-operated laboratories and plants) where all 
airborne emissions, waterborne effluent, external ionizing and non-
ionizing radiation levels, outdoor noise, and solid and bulk waste 
disposal practices are in compliance with existing applicable Federal, 
state, and local laws and regulations;
    (17) Studies, data, and information gathering that involve no 
permanent physical change to the environment (e.g., topographic surveys, 
wetlands mapping, surveys for evaluating environmental damage, and 
engineering efforts to support environmental analyses);
    (18) Temporary placement and use of simulated target fields (e.g., 
inert mines, simulated mines, or passive hydrophones) in fresh, 
estuarine, and marine waters for the purpose of non-explosive military 
training exercises or research, development, test, and evaluation;
    (19) Installation and operation of passive scientific measurement 
devices (e.g., antennae, tide gauges, weighted hydrophones, salinity 
measurement devices, and water quality measurement devices) where use 
will not result in changes in operations tempo and is consistent with 
applicable regulations;
    (20) Short-term increases in air operations up to 50 percent of the 
typical operation rate, or increases of 50 operations per day, whichever 
is greater. Frequent use of this CATEX at an installation requires 
further analysis to determine there are no cumulative impacts;
    (21) Decommissioning, disposal, or transfer of naval vessels, 
aircraft, vehicles, and equipment when conducted in accordance with 
applicable regulations, including those regulations applying to removal 
of hazardous materials;

[[Page 246]]

    (22) Non-routine repair and renovation, and donation or other 
transfer of structures, vessels, aircraft, vehicles, landscapes, or 
other contributing elements of facilities listed or eligible for listing 
on the National Register of Historic Places;
    (23) Hosting or participating in public events (e.g., air shows, 
open houses, Earth Day events, and athletic events) where no permanent 
changes to existing infrastructure (e.g., road systems, parking, and 
sanitation systems) are required to accommodate all aspects of the 
event;
    (24) Military training conducted on or over nonmilitary land or 
water areas, where such training is consistent with the type and tempo 
of existing non-military airspace, land, and water use (e.g., night 
compass training, forced marches along trails, roads, and highways, use 
of permanently established ranges, use of public waterways, or use of 
civilian airfields);
    (25) Transfer of real property from the DON to another military 
department or to another Federal agency;
    (26) Receipt of property from another Federal agency when there is 
no anticipated or proposed substantial change in land use;
    (27) Minor land acquisitions or disposals where anticipated or 
proposed land use is similar to existing land use and zoning, both in 
type and intensity;
    (28) Disposal of excess easement interests to the underlying fee 
owner;
    (29) Initial real estate in grants and out grants involving existing 
facilities or land with no significant change in use (e.g., leasing of 
federally owned or privately owned housing or office space, and 
agricultural out leases);
    (30) Renewals and minor amendments of existing real estate grants 
for use of Government-owned real property where no significant change in 
land use is anticipated;
    (31) Land withdrawal continuances or extensions that establish time 
periods with no significant change in land use;
    (32) Grants of license, easement, or similar arrangements for the 
use of existing rights-of-way or incidental easements complementing the 
use of existing rights-of-way for use by vehicles (not to include 
significant increases in vehicle loading); electrical, telephone, and 
other transmission and communication lines; water, wastewater, storm 
water, and irrigation pipelines, pumping stations, and facilities; and 
for similar utility and transportation uses;
    (33) New construction that is similar to or compatible with existing 
land use (i.e., site and scale of construction are consistent with those 
of existing adjacent or nearby facilities) and, when completed, the use 
or operation of which complies with existing regulatory requirements 
(e.g., a building within a cantonment area with associated discharges 
and runoff within existing handling capacities). The test for whether 
this CATEX can be applied should focus on whether the proposed action 
generally fits within the designated land use of the proposed site;
    (34) Demolition, disposal, or improvements involving buildings or 
structures when done in accordance with applicable regulations including 
those regulations applying to removal of asbestos, PCBs, and other 
hazardous materials;
    (35) Acquisition, installation, modernization, repair, or operation 
of utility (including, but not limited to, water, sewer, and electrical) 
and communication systems (including, but not limited to, data 
processing cable and similar electronic equipment) that use existing 
rights of way, easements, distribution systems, and facilities;
    (36) Decisions to close facilities, decommission equipment, or 
temporarily discontinue use of facilities or equipment, where the 
facility or equipment is not used to prevent or control environmental 
impacts;
    (37) Maintenance dredging and debris disposal where no new depths 
are required, applicable permits are secured, and disposal will be at an 
approved disposal site;
    (38) Relocation of personnel into existing federally owned or 
commercially leased space that does not involve a substantial change 
affecting the supporting infrastructure (e.g., no increase in vehicular 
traffic beyond the capacity of the supporting road network to 
accommodate such an increase);
    (39) Pre-lease upland exploration activities for oil, gas, or 
geothermal reserves, (e.g., geophysical surveys);

[[Page 247]]

    (40) Installation of devices to protect human or animal life (e.g., 
raptor electrocution prevention devices, fencing to restrict wildlife 
movement onto airfields, and fencing and grating to prevent accidental 
entry to hazardous areas);
    (41) Reintroduction of endemic or native species (other than 
endangered or threatened species) into their historic habitat when no 
substantial site preparation is involved;
    (42) Temporary closure of public access to DON property to protect 
human or animal life;
    (43) Routine testing and evaluation of military equipment on a 
military reservation or an established range, restricted area, or 
operating area; similar in type, intensity, and setting, including 
physical location and time of year, to other actions for which it has 
been determined, through NEPA analysis where the DON was a lead or 
cooperating agency, that there are no significant impacts; and conducted 
in accordance with all applicable standard operating procedures 
protective of the environment;
    (44) Routine military training associated with transits, 
maneuvering, safety and engineering drills, replenishments, flight 
operations, and weapons systems conducted at the unit or minor exercise 
level; similar in type, intensity, and setting, including physical 
location and time of year, to other actions for which it has been 
determined, through NEPA analysis where the DON was a lead or 
cooperating agency, that there are no significant impacts; and conducted 
in accordance with all applicable standard operating procedures 
protective of the environment;
    (45) Natural resources management actions undertaken or permitted 
pursuant to agreement with or subject to regulation by Federal, state, 
or local organizations having management responsibility and authority 
over the natural resources in question, including, but not limited to, 
prescribed burning, invasive species actions, timber harvesting, and 
hunting and fishing during seasons established by state authorities 
pursuant to their state fish and game management laws. The natural 
resources management actions must be consistent with the overall 
management approach of the property as documented in an Integrated 
Natural Resources Management Plan (INRMP) or other applicable natural 
resources management plan;
    (46) Minor repairs in response to wildfires, floods, earthquakes, 
landslides, or severe weather events that threaten public health or 
safety, security, property, or natural and cultural resources, and that 
are necessary to repair or improve lands unlikely to recover to a 
management-approved condition (i.e., the previous state) without 
intervention. Covered activities must be completed within one year 
following the event and cannot include the construction of new permanent 
roads or other new permanent infrastructure. Such activities include, 
but are not limited to: Repair of existing essential erosion control 
structures or installation of temporary erosion controls; repair of 
electric power transmission infrastructure; replacement or repair of 
storm water conveyance structures, roads, trails, fences, and minor 
facilities; revegetation; construction of protection fences; and removal 
of hazard trees, rocks, soil, and other mobile debris from, on, or along 
roads, trails, or streams;
    (47) Modernization (upgrade) of range and training areas, systems, 
and associated components (including, but not limited to, targets, 
lifters, and range control systems) that support current testing and 
training levels and requirements. Covered actions do not include those 
involving a substantial change in the type or tempo of operation, or the 
nature of the range (i.e., creating an impact area in an area where 
munitions had not been previously used);
    (48) Revisions or updates to INRMPs that do not involve 
substantially new or different land use or natural resources management 
activities and for which an EA or EIS was previously prepared that does 
not require supplementation pursuant to 40 CFR 1502.9(c)(1); and
    (49) DON actions that occur on another Military Service's property 
where the action qualifies for a CATEX of that Service, or for actions 
on property designated as a Joint Base or Joint Region that would 
qualify for a CATEX of any of the Services included

[[Page 248]]

as part of the Joint Base or Joint Region. If the DON action proponent 
chooses to use another Service's CATEX to cover a proposed action, the 
DON must obtain written confirmation the other Service does not object 
to using its CATEX to cover the DON action. The DON official making the 
CATEX determination must ensure the application of the CATEX is 
appropriate and that the DON's proposed action was of a type 
contemplated when the CATEX was established by the other Service. Use of 
this CATEX requires preparation of a Record of CATEX or Decision 
Memorandum.

[55 FR 33899, Aug. 20, 1990, as amended at 55 FR 39960, Oct. 1, 1990; 69 
FR 8110, Feb. 23, 2004; 84 FR 66589, Dec. 5, 2019]



Sec.  775.7  Time limits for environmental documents.

    (a) The timing of the preparation, circulation, submission and 
public availability of environmental documents is important in achieving 
the purposes of NEPA. Therefore, the NEPA process shall begin as early 
as possible in the decisionmaking process.
    (b) The EPA publishes a weekly notice in the Federal Register of 
environmental impact statements filed during the preceding week. The 
minimum time periods set forth below shall be calculated from the date 
of publication of notices in the Federal Register. No decision on the 
proposed action may take place until the later of the following dates:
    (1) Ninety days after publication of the notice of availability for 
a draft environmental impact statement (DEIS). Draft statements shall be 
available to the public for 15 days prior to any public hearing on the 
DEIS (40 CFR 1506.6(c)(2)).
    (2) Thirty days after publication of the notice of availability for 
a final environmental impact statement (FEIS). If the FEIS is available 
to the public within ninety days from the availability of the DEIS, the 
minimum thirty day period and the minimum nintey day period may run 
concurrently. However, not less than 45 days from publication of notice 
of filing shall be allowed for public comment on draft statements prior 
to filing of the FEIS (40 CFR 1506.10(c)).



Sec.  775.8  Scoping.

    As soon as practicable after the decision to prepare an EIS is made, 
an early and open process called ``scoping'' shall be used to determine 
the scope of issues to be addressed and to identify the significant 
issues to be analyzed in depth related to the proposed action (40 CFR 
1501.7). This process also serves to deemphasize insignificant issues, 
narrowing the scope of the EIS process accordingly (40 CFR 1500.4(g)). 
Scoping results in the identification by the proponent of the range of 
actions, alternatives, and impacts to be considered in the EIS (40 CFR 
1508.25). For any action, this scope may depend on the relationship of 
the proposed action to other existing environmental documentation.



Sec.  775.9  Documentation and analysis.

    (a) Environmental documentation and analyses required by this rule 
should be integrated as much as practicable with any environmental 
studies, surveys and impact analyses required by other environmental 
review laws and executive orders (40 CFR 1502.25). When a cost-benefit 
analysis has been prepared in conjunction with an action which also 
requires a NEPA analysis, the cost-benefit analysis shall be integrated 
into the environmental documentation.
    (b) CEQ regulations encourage the use of tiering whenever 
appropriate to eliminate repetitive discussions of the same issues and 
to focus on the actual issues ripe for discussion at each level of 
environmental review (40 CFR 1502.20). Tiering is accomplished through 
the preparation of a broad programmatic environmental impact statement 
discussing the impacts of a wide ranging or long term stepped program 
followed by narrower statements or environmental assessments 
concentrating solely on issues specific to the analysis subsequently 
prepared (40 CFR 1508.28).
    (1) Appropriate use of tiering: Tiering is appropriate when it helps 
the lead agency to focus on issues which are ripe for decision and 
exclude from consideration issues already decided or not yet ripe. (40 
CFR 1508.28(b).) The sequence of statements or analyses is:

[[Page 249]]

    (i) From a broad program, plan, or policy environmental impact 
statement (not necessarily site specific) to a subordinate/smaller scope 
program, plan, or policy statement or analysis (usually site specific) 
(40 CFR 1508.28 (a)).
    (ii) From an environmental impact statement on a specific action at 
an early stage (such as need and site selection) to a supplement (which 
is preferred) or a subsequent statement or analysis at a later stage 
(such as environmental mitigation) (40 CFR 1508.28(b)).
    (iii) In addition to the discussion required by these regulations 
for inclusion in environmental impact statements, the programmatic 
environmental impact statement shall also discuss:
    (A) A description of the subsequent stages or sites that may 
ultimately be proposed in as much detail as presently possible;
    (B) All of the implementing factors of the program that can be 
ascertained at the time of impact statement preparation;
    (C) All of the environmental impacts that will result from 
establishment of the overall program itself that will be similar for 
subsequent stages or sites as further implementation plans are proposed; 
and
    (D) All of the appropriate mitigation measures that will be 
similarly proposed for subsequent stages or sites.
    (iv) The analytical document used for stage or site specific 
analysis subsequent to the programmatic environmental impact statement 
shall also be an environmental impact statement when the subsequent tier 
itself may have a significant impact on the quality of the human 
environment or when an impact statement is otherwise required. 
Otherwise, it is appropriate to document the tiered analysis with an 
environmental assessment to fully assess the need for further 
documentation or whether a FONSI would be appropriate.
    (2) [Reserved]



Sec.  775.10  Relations with state, local and regional agencies.

    Close and harmonious planning relations with local and regional 
agencies and planning commissions of adjacent cities, counties, and 
states, for cooperation and resolution of mutual land use and 
environment-related problems should be established. Additional 
coordination may be obtained from state and area-wide planning and 
development ``clearinghouses''. These are agencies which have been 
established pursuant to Executive Order 12372 of July 14, 1982 (3 CFR, 
1982 Comp., p. 197). The clearinghouses serve a review and coordination 
function for Federal activities and the proponent may gain insights on 
other agencies' approaches to environmental assessments, surveys, and 
studies in relation to any current proposal. The clearinghouses would 
also be able to assist in identifying possible participants in scoping 
procedures for projects requiring an EIS.



Sec.  775.11  Public participation.

    The importance of public participation (40 CFR 1501.4(b)) in 
preparing environmental assessments is clearly recognized and it is 
recommended that commands proposing an action develop a plan to ensure 
appropriate communication with affected and interested parties. The 
command Public Affairs Office can provide assistance with developing and 
implementing this plan. In determining the extent to which public 
participation is practicable, the following are among the factors to be 
weighed by the command:
    (a) The magnitude of the environmental considerations associated 
with the proposed action;
    (b) The extent of anticipated public interest; and
    (c) Any relevant questions of national security and classification.



Sec.  775.12  Delegation of authority.

    (a) The ASN (I&E) may delegate his/her responsibilities under this 
instruction for review, approval and/or signature of EISs and RODs to 
appropriate Executive Schedule/Senior Executive Service civilians or 
flag/general officers. ASN (I&E), CNO, and CMC may delegate all other 
responsibilities assigned in this instruction as deemed appropriate.
    (b) The ASN (RD&A) delegation of authority for approval and 
signature of documents under NEPA is contained in

[[Page 250]]

SECNAV Instruction 5000.2 series, which sets out policies and procedures 
for acquisition programs.
    (c) Previously authorized delegations of authority are continued 
until revised or withdrawn.

[69 FR 8112, Feb. 23, 2004]



PART 776_PROFESSIONAL CONDUCT OF ATTORNEYS PRACTICING UNDER 
THE COGNIZANCE AND SUPERVISION OF THE JUDGE ADVOCATE GENERAL-
-Table of Contents



                            Subpart A_General

Sec.
776.1 Purpose.
776.2 Applicability.
776.3 Policy.
776.4 Attorney-client relationships.
776.5 Judicial conduct.
776.6 Conflict.
776.7 Reporting requirements.
776.8 Professional Responsibility Committee.
776.9 Rules Counsel.
776.10 Informal ethics advice.
776.11 Outside practice of law.
776.12 Maintenance of files.
776.13-776.17 [Reserved]

                 Subpart B_Rules of Professional Conduct

776.18 Preamble.
776.19 Principles.
776.20 Competence.
776.21 Establishment and scope of representation.
776.22 Diligence.
776.23 Communication.
776.24 Fees.
776.25 Confidentiality of information.
776.26 Conflict of interest: General rule.
776.27 Conflict of interests: Prohibited transactions.
776.28 Conflict of interest: Former client.
776.29 Imputed disqualification: General rule.
776.30 Successive Government and private employment.
776.31 Former judge or arbitrator.
776.32 Department of the Navy as client.
776.33 Client with diminished capacity.
776.34 Safekeeping property.
776.35 Declining or terminating representation.
776.36 Prohibited sexual relations.
776.37 Advisor.
776.38 Mediation.
776.39 Evaluation for use by third persons.
776.40 Meritorious claims and contentions.
776.41 Expediting litigation.
776.42 Candor and obligations toward the tribunal.
776.43 Fairness to opposing party and counsel.
776.44 Impartiality and decorum of the tribunal.
776.45 Extra-tribunal statements.
776.46 Attorney as witness.
776.47 Special responsibilities of a trial counsel and other government 
          counsel.
776.48 Advocate in nonadjudicative proceedings.
776.49 Truthfulness in statements to others.
776.50 Communication with person represented by counsel.
776.51 Dealing with an unrepresented person.
776.52 Respect for rights of third persons.
776.53 Responsibilities of the Judge Advocate General and supervisory 
          attorneys.
776.54 Responsibilities of a subordinate attorney.
776.55 Responsibilities regarding non-attorney assistants.
776.56 Professional independence of a covered USG attorney.
776.57 Unauthorized practice of law.
776.58-776.65 [Reserved]
776.66 Bar admission and disciplinary matters.
776.67 Judicial and legal officers.
776.68 Reporting professional misconduct.
776.69 Misconduct.
776.70 Jurisdiction.
776.71 Requirement to remain in good standing with licensing 
          authorities.
776.72-776.75 [Reserved]

                Subpart C_Complaint Processing Procedures

776.76 Policy.
776.77 Related investigations and actions.
776.78 Informal complaints.
776.79 The formal complaint.
776.80 Initial screening.
776.81 Forwarding the complaint.
776.82 Interim suspension.
776.83 Preliminary inquiry.
776.84 Ethics investigation.
776.85 Effect of separate proceeding.
776.86 Action by the Judge Advocate General.
776.87 Finality.
776.88 Report to licensing authorities.

       Subpart D_Outside Practice of Law by Covered USG Attorneys

776.89 Background.
776.90 Definition.
776.91 Policy.
776.92 Action.
776.93 Revalidation.

Appendix to Subpart D of Part 776--Outside Law Practice Questionnaire 
          and Request

[[Page 251]]

                Subpart E_Relations with Non-USG Counsel

776.94 Relations with Non-USG Counsel.

Subpart F [Reserved]

    Authority: 10 U.S.C. 806, 806a, 826, 827, 1044; Manual for Courts-
Martial, United States, 2012; U.S. Navy Regulations, 1990; Department of 
Defense Instruction 1442.02 (series); Secretary of the Navy Instruction 
5430.27 (series), Responsibility of the Judge Advocate General of the 
Navy and the Staff Judge Advocate to the Commandant of the Marine Corps 
for Supervision and Provision of Certain Legal Services.

    Source: 80 FR 68389, Nov. 4, 2015; 80 FR 73991, Nov. 27, 2015, 
unless otherwise noted.



                            Subpart A_General



Sec.  776.1  Purpose.

    In furtherance of the authority citations (which, if not found in 
local libraries, are available from the Office of the Judge Advocate 
General, 1322 Patterson Avenue SE., Suite 3000, Washington Navy Yard DC 
20374-5066), which require the Judge Advocate General of the Navy (JAG) 
to supervise the performance of legal services under JAG cognizance 
throughout the Department of the Navy (DoN), this part is promulgated:
    (a) To establish Rules of Professional Conduct (subpart B of this 
part) for attorneys subject to this part;
    (b) To establish procedures for receiving, processing, and taking 
action on complaints of professional misconduct made against attorneys 
practicing under the supervision of the JAG, whether arising from 
professional legal activities in DoN proceedings and matters, or arising 
from other, non-U.S. Government related professional legal activities or 
personal misconduct that suggests the attorney is ethically, 
professionally, or morally unqualified to perform legal services within 
the DoN;
    (c) To prescribe limitations on and procedures for processing 
requests to engage in the outside practice of law by those DoN attorneys 
practicing under the supervision of the JAG; and
    (d) To ensure quality legal services at all proceedings under the 
cognizance and supervision of the JAG.



Sec.  776.2  Applicability.

    (a) This part applies to all ``covered attorneys'' as defined 
herein.''
    (b) ``Covered attorneys'' include:
    (1) The following U.S. Government (USG) attorneys, referred to 
collectively as ``covered USG attorneys'' throughout this part:
    (i) All active-duty Navy judge advocates (designator 2500 or 2505) 
or Marine Corps judge advocates (Military Occupational Specialty (MOS) 
4402 or 9914).
    (ii) All active-duty judge advocates of other U.S. armed forces who 
practice law or provide legal services under the cognizance and 
supervision of the JAG.
    (iii) All civil service and contracted civilian attorneys who 
practice law or perform legal services under the cognizance and 
supervision of the JAG. This includes civilian attorneys employed by the 
DoN as Executive Agent for Combatant Commands, and for whom the JAG 
serves as the ``qualifying authority'' under the authority citations.
    (iv) All Reserve or Retired judge advocates of the Navy or Marine 
Corps (and any other U.S. armed force), who, while performing official 
DoN duties, practice law, provide legal services under the cognizance 
and supervision of the JAG or are serving in non-legal MOS billets.
    (v) All other attorneys appointed by the JAG (or the Staff Judge 
Advocate to the Commandant of the Marine Corps (SJA to CMC) in Marine 
Corps matters) to serve in billets or to provide legal services normally 
provided by Navy or Marine Corps judge advocates. This policy applies to 
officer and enlisted Reservists, active-duty personnel, and any other 
personnel who are licensed to practice law by any Federal or state 
authority but who are not members of the Judge Advocate General's Corps 
or who do not hold the 4402 or 9914 MOS designation in the Marine Corps.
    (vi) All qualified volunteer attorneys that have been certified as 
legal assistance attorneys by the JAG, or his designee, pursuant to the 
authority citations.

[[Page 252]]

    (2) The following non-U.S. Government attorneys, referred to 
collectively as ``covered non-USG attorneys'' throughout this part:
    (i) All civilian attorneys representing individuals in any matter 
for which the JAG is charged with supervising the provision of legal 
services. These matters include, but are not limited to, courts-martial, 
administrative separation boards or hearings, boards of inquiry, and 
disability evaluation proceedings.
    (3) The term ``covered attorney'' does not include those civil 
service or civilian attorneys who practice law or perform legal services 
under the cognizance and supervision of the General Counsel of the Navy.
    (c) Professional or personal misconduct unrelated to a covered 
attorney's DoN activities, while normally outside the ambit of Subpart B 
of this part, may be reviewed under procedures established herein and 
may provide the basis for decisions by the JAG regarding the covered 
attorney's continued qualification to provide legal services in DoN 
matters.
    (d) Although subpart B of this part do not apply to non-attorneys, 
they do define the type of ethical conduct that the public and the 
military community have a right to expect from DoN legal personnel. 
Accordingly, Subpart B of this part shall serve as the model of ethical 
conduct for the following personnel when involved with the delivery of 
legal services under the supervision of the JAG:
    (1) Navy Legalmen and Marine Corps legal administrative officers, 
legal service specialists, and legal services reporters;
    (2) Limited duty officers (LAW);
    (3) Legal interns; and
    (4) civilian support personnel including paralegals, legal 
secretaries, legal technicians, secretaries, court reporters, and other 
personnel holding similar positions. Covered USG attorneys who supervise 
non-attorney DON employees are responsible for their ethical conduct to 
the extent provided for in Sec.  776.55 of this part.



Sec.  776.3  Policy.

    (a) Covered attorneys shall maintain the highest standards of 
professional ethical conduct. Loyalty and fidelity to the United States, 
the law, clients, both institutional and individual, and the rules and 
principles of professional ethical conduct set forth in subpart B of 
this part must come before private gain or personal interest.
    (b) Subpart B of this part and related procedures set forth herein 
concern matters solely under the purview of the JAG. Whether conduct or 
failure to act constitutes a violation of the professional duties 
imposed by this part is a matter within the sole discretion of the JAG 
or officials authorized to act for the JAG. Subpart B of this part are 
not substitutes for, and do not take the place of, other rules and 
standards governing DoN personnel, such as the Department of Defense 
Joint Ethics Regulation, the Code of Conduct for members of the Armed 
Forces, the Uniform Code of Military Justice (UCMJ), and the general 
precepts of ethical conduct to which all DoN service members and 
employees are expected to adhere. Similarly, action taken per this part 
is not supplanted or barred by, and does not, even if the underlying 
misconduct is the same, supplant or bar the following action from being 
taken by authorized officials:
    (1) Punitive or disciplinary action under the UCMJ; or
    (2) Administrative action under the Manual for Courts-Martial (MCM), 
U.S. Navy Regulations, or under other applicable authority.
    (c) Inquiries into allegations of professional misconduct will 
normally be held in abeyance until any related criminal investigation or 
proceeding is complete. However, a pending criminal investigation or 
proceeding does not bar the initiation or completion of a professional 
misconduct investigation stemming from the same or related conduct or 
prevent the JAG from imposing professional disciplinary sanctions as 
provided for in this part.



Sec.  776.4  Attorney-client relationships.

    (a) The executive agency to which the covered USG attorney is 
assigned (DoN in most cases) is the client served by the covered USG 
attorney unless detailed to represent another client by

[[Page 253]]

competent authority. Specific guidelines are contained in Sec.  776.32 
of this part.
    (b) Covered USG attorneys will not establish attorney-client 
relationships with any individual unless detailed, assigned, or 
otherwise authorized to do so by competent authority. Wrongfully 
establishing an attorney-client relationship may subject the attorney to 
discipline administered per this part. See Sec.  776.21 of this part.
    (c) Employment of a non-USG attorney by an individual client does 
not alter the professional responsibilities of a covered USG attorney 
detailed or otherwise assigned by competent authority to represent that 
client. Specific guidance is set forth in subpart E.



Sec.  776.5  Judicial conduct.

    To the extent that it does not conflict with statutes, regulations, 
or this part, the current version of the American Bar Association Model 
Code of Judicial Conduct (as amended), hereafter referred to as the 
`Code of Judicial Conduct,' applies to all military and appellate judges 
and to all other covered USG attorneys performing judicial functions 
under the JAG's supervision within the DoN.



Sec.  776.6  Conflict.

    (a) To the extent that a conflict exists between this part and the 
rules of other jurisdictions that regulate the professional conduct of 
attorneys, this part will govern the conduct of covered attorneys 
engaged in legal functions under JAG cognizance and supervision. 
Specific and significant instances of conflict between the rules 
contained in subpart B of this part and the rules of other jurisdictions 
shall be reported promptly to the Rules Counsel (see Sec.  776.9 of this 
part), via the supervisory attorney. See Sec.  776.53 of this part.
    (b) In the case of Navy and Marine Corps personnel engaged in legal 
functions under Department of Defense (DoD) vice JAG cognizance and 
supervision (e.g., DoD Office of Military Commissions), this part and 
the applicable DoD professional responsibility rules apply. In such a 
case, to the extent that a conflict exists between Subpart B of this 
part and applicable DoD professional responsibility rules, the DoD rules 
shall take precedence.



Sec.  776.7  Reporting requirements.

    Covered USG attorneys shall report promptly to the Rules Counsel 
(see Sec.  776.9 of this part) any disciplinary or administrative 
action, including initiation of investigation, by any licensing 
authority or Federal, State, or local bar, possessing the power to 
revoke, suspend, or in any way limit the authority to practice law in 
that jurisdiction, upon himself, herself, or another covered attorney. 
Failure to report such discipline or administrative action may subject 
the covered USG attorney to discipline administered per this part. See 
Sec.  776.71 of this part.



Sec.  776.8  Professional Responsibility Committee.

    (a) Composition. This standing committee will consist of the 
Assistant Judge Advocate General (AJAG) for Military Justice; the Deputy 
Chiefs of Staff for Naval Legal Service Offices (or Defense Services 
Offices, effective 1 October 2012), and Region Legal Service Offices; 
the Chief Judge, Navy-Marine Corps Trial Judiciary; and in cases 
involving Marine Corps judge advocates, the Deputy Staff Judge Advocate 
to the Commandant of the Marine Corps (DSJA to CMC); and such other 
personnel as the JAG from time-to-time may appoint. A majority of the 
members constitutes a quorum. The Chairman of the Committee shall be the 
AJAG for Military Justice. The Chairman may excuse members disqualified 
for cause, illness, or exigencies of military service, and may appoint 
additional or alternate members on a permanent basis.
    (b) Purpose. (1) When requested by the JAG, the SJA to CMC, or the 
Rules Counsel, the Committee will provide formal advisory opinions to 
the JAG regarding application of subpart B of this part to individual or 
hypothetical cases.
    (2) On its own motion, the Committee may also issue formal advisory 
opinions on ethical issues of importance to the DoN legal community.
    (3) Upon written request, the Committee may also provide formal 
advisory opinions to covered attorneys

[[Page 254]]

about the propriety of proposed courses of action under subpart B of 
this part. If such requests are predicated upon full disclosure of all 
relevant facts, and if the Committee advises that the proposed course of 
conduct does not violate subpart B of this part, then no adverse action 
under this rule may be taken against a covered attorney who acts 
consistently with the Committee's advice. Such requests must be made via 
the Rules Counsel.
    (4) The Chairman will forward copies of all opinions issued by the 
Committee to the Rules Counsel.
    (c) Limitation. The Committee will not normally provide ethics 
advice or opinions concerning professional responsibility matters that 
are then the subject of litigation.



Sec.  776.9  Rules Counsel.

    Appointed by JAG to act as special assistants for the administration 
of subpart B of this part, the Rules Counsel derive authority from JAG 
and, as detailed in this part, have ``by direction'' authority. The 
Rules Counsel shall cause opinions issued by the Professional 
Responsibility Committee of general interest to the DoN legal community 
to be published in summarized, non-personal form in suitable 
publications. Unless another officer is appointed by JAG to act in 
individual cases, the following officers shall act as Rules Counsel:
    (a) The SJA to CMC, for cases involving Marine Corps judge 
advocates, or civil service and contracted civilian attorneys who 
perform legal services under his cognizance;
    (b) Assistant Judge Advocate General, Chief Judge, DoN (AJAG-CJ) for 
cases involving Navy and Marine Corps trial and appellate judges; and
    (c) AJAG (Civil Law), in all other cases.



Sec.  776.10  Informal ethics advice.

    (a) Advisors. Covered attorneys may seek informal ethics advice 
either from the officers named below or from supervisory attorneys in 
the field. Within the Office of the Judge Advocate General (OJAG) and 
the Office of the SJA to CMC, the following officials are designated to 
respond, either orally or in writing, to informal inquiries concerning 
this rule in the areas of practice indicated:
    (1) Director, Criminal Law Division (OJAG Code 20): Military justice 
matters;
    (2) Director, Trial Counsel Assistance Program (TCAP): Trial counsel 
matters;
    (3) Director, Defense Counsel Assistance Program (DCAP): Defense 
counsel matters;
    (4) Director, Legal Assistance Division (OJAG Code 16): Legal 
assistance matters;
    (5) The DSJA to CMC and Head, Research and Civil Law Branch (JAR), 
Judge Advocate (JA) Division, Headquarters United States Marine Corps 
(HQMC): Cases involving Marine Corps judge advocates, or civil service 
and contracted civilian attorneys who perform legal services under the 
cognizance and supervision of SJA to CMC;
    (6) Deputy Chief Judge, Navy-Marine Corps Trial Judiciary: Judicial 
matters; and
    (7) Professional Responsibility Coordinator, Administrative Law 
Division (OJAG Code 13): All other matters.
    (b) Limitation. Informal ethics advice will not normally be provided 
by JAG/HQMC advisors concerning professional responsibility matters that 
are then the subject of litigation.
    (c) Written advice. A request for informal advice does not relieve 
the requester of the obligation to comply with subpart B of this part. 
Although covered attorneys are encouraged to seek advice when in doubt 
as to their responsibilities, they remain personally accountable for 
their professional conduct. If, however, an attorney receives written 
advice on an ethical matter after full disclosure of all relevant facts 
and reasonably relies on such advice, no adverse action under this part 
will be taken against the attorney. Written advice may be sought from 
either a supervisory attorney or the appropriate advisor in paragraph 
(a) of this section. The JAG is not bound by unwritten advice or by 
advice provided by personnel who are not supervisory attorneys or 
advisors. See Sec. Sec.  776.8(b)(3) and 776.54(c) of this part.

[[Page 255]]



Sec.  776.11  Outside practice of law.

    A covered USG attorney's primary professional responsibility is to 
the client, as defined by Sec.  776.4 of this part, and he or she is 
expected to ensure that representation of such client is free from 
conflicts of interest and otherwise conforms to the requirements of 
Subpart B of this part and other regulations concerning the provision of 
legal services within the DoN. The outside practice of law, therefore, 
must be carefully monitored. Covered USG attorneys who wish to engage in 
the outside practice of law, including while on terminal leave, must 
first obtain permission from the JAG. Failure to obtain permission 
before engaging in the outside practice of law may subject the covered 
USG attorney to administrative or disciplinary action, including 
professional sanctions administered per subpart C of this part. Further 
details are contained in Sec.  776.57 and subpart D of this part.



Sec.  776.12  Maintenance of files.

    Pursuant to SECNAVINST 5211.5 (series) and SECNAVINST 5212.5 
(series) ethics complaint records and outside practice of law request 
files shall be maintained by the Office of the Chief Judge, DoN (Code 
05) for judicial conduct matters; the Research and Civil Law Branch, JA 
Division, HQMC (JAR) for Marine matters; and the Office of the JAG, 
Administrative Law Division (Code 13) for all other matters.
    (a) Requests for access to such records should be referred to the 
Office of the Chief Judge, Washington Navy Yard, 1254 Charles Morris 
Street SE., Suite 320 Washington, DC, 20374-5124; Deputy Assistant Judge 
Advocate General (Administrative Law), Office of the Judge Advocate 
General (Code 13), 1322 Patterson Avenue SE Suite 3000, Washington Navy 
Yard, DC, 20374-5066; or to Head, Research and Civil Law Branch, Office 
of the Staff Judge Advocate to the Commandant of the Marine Corps, 
Headquarters United States Marine Corps, 3000 Marine Corps Pentagon 
(Room 4D556), Washington DC, 20350-3000, as appropriate.
    (b) Local command files regarding professional responsibility 
complaints will not be maintained. Commanding officers and other 
supervisory attorneys may, however, maintain personal files but must not 
share their contents with others.
    (c) All records maintained under this part shall be maintained in 
accordance with the following procedures established by JAGINST 5801.2 
(series) and DON Privacy Act Notice N05813-1:
    (1) Records shall be maintained for a minimum of two years;
    (2) Records shall be maintained for as long as an attorney remains 
subject to JAG-imposed limitations on practice; and
    (3) Records pertaining to unsubstantiated complaints, or to 
attorneys who are no longer subject to limitation on practice, shall be 
destroyed after 10 years.



Sec. Sec.  776.13-776.17  [Reserved]



                 Subpart B_Rules of Professional Conduct



Sec.  776.18  Preamble.

    (a) A covered attorney is a representative of clients, an officer of 
the legal system, an officer of the Federal Government, and a public 
citizen who has a special responsibility for the quality of justice and 
legal services provided to the DoN and to individual clients. These 
Rules of Professional Conduct (Subpart B of this part) govern the 
ethical conduct of covered attorneys practicing under the Uniform Code 
of Military Justice, the MCM, 10 U.S.C. 1044 (Legal Assistance), other 
laws of the United States, and regulations of the DoN.
    (b) Subpart B of this part not only address the professional conduct 
of judge advocates, but also apply to all other covered attorneys who 
practice under the cognizance and supervision of the Navy JAG.
    (c) All covered attorneys are subject to professional disciplinary 
action, as outlined in this part, for violation of subpart B of this 
part. Action on allegations of professional or personal misconduct 
undertaken per subpart B of this part does not prevent other Federal, 
state, or local bar associations, or other licensing authorities, from 
taking professional disciplinary or other administrative action for the 
same or similar conduct.

[[Page 256]]



Sec.  776.19  Principles.

    Subpart B of this part is based on the following principles. 
Interpretation of subpart B of this part should flow from their common 
meaning. To the extent that any ambiguity or conflict exists, subpart B 
of this part should be interpreted consistent with these general 
principles.
    (a) Covered attorneys shall:
    (1) Obey the law and applicable military regulations, and counsel 
clients to do so.
    (2) Follow all applicable ethics rules.
    (3) Protect the legal rights and interests of clients, 
organizational and individual.
    (4) Be honest and truthful in all dealings.
    (5) Not derive personal gain, except as authorized, for the 
performance of legal services.
    (6) Maintain the integrity of the legal profession.
    (b) Ethical rules should be consistent with law. If law and ethics 
conflict, the law prevails unless an ethical rule is constitutionally 
based.
    (c) The military criminal justice system is a truth-finding process 
consistent with constitutional law.



Sec.  776.20  Competence.

    (a) A covered attorney shall provide competent, diligent, and prompt 
representation to a client. Competent representation requires the legal 
knowledge, skill, access to evidence, thoroughness, and expeditious 
preparation reasonably necessary for representation. Initial 
determinations as to competence of a covered USG attorney for a 
particular assignment shall be made by a supervising attorney before 
case or issue assignments; however, assigned attorneys may consult with 
supervisors concerning competence in a particular case.
    (b) [Reserved]



Sec.  776.21  Establishment and scope of representation.

    (a) Formation of attorney-client relationships by covered USG 
attorneys with, and representation of, clients is permissible only when 
the attorney is authorized to do so by competent authority. For purposes 
of this part, Military Rules of Evidence 502, the Manual of the Judge 
Advocate General (JAGINST 5800.7 series), and the Naval Legal Service 
Command Manual (COMNAVLEGSVCCOMINST 5800.1 series), generally define 
when an attorney-client relationship is formed between a covered USG 
attorney and a client servicemember, dependent, or employee.
    (b) Generally, the subject matter scope of a covered attorney's 
representation will be consistent with the terms of the assignment to 
perform specific representational or advisory duties. A covered attorney 
shall inform clients at the earliest opportunity of any limitations on 
representation and professional responsibilities of the attorney towards 
the client.
    (c) A covered attorney shall follow the client's well-informed and 
lawful decisions concerning case objectives, choice of counsel, forum, 
pleas, whether to testify, and settlements.
    (d) A covered attorney's representation of a client does not 
constitute an endorsement of the client's political, economic, social, 
or moral views or activities.
    (e) A covered attorney shall not counsel or assist a client to 
engage in conduct that the attorney knows is criminal or fraudulent, but 
a covered attorney may discuss the legal and moral consequences of any 
proposed course of conduct with a client, and may counsel or assist a 
client in making a good faith effort to determine the validity, scope, 
meaning, or application of the law.
    (f) [Reserved]



Sec.  776.22  Diligence.

    (a) A covered attorney shall act with reasonable diligence and 
promptness in representing a client, and shall consult with a client as 
soon as practicable and as often as necessary upon being assigned to the 
case or issue.
    (b) [Reserved]



Sec.  776.23  Communication.

    (a) A covered attorney shall keep a client reasonably informed about 
the status of a matter and promptly comply with reasonable requests for 
information.

[[Page 257]]

    (b) A covered attorney shall explain a matter to the extent 
reasonably necessary to permit the client to make informed decisions 
regarding the representation.
    (c) [Reserved]



Sec.  776.24  Fees.

    (a) A covered USG attorney shall not accept any salary, fee, 
compensation, or other payments or benefits, directly or indirectly, 
other than Government compensation, for services provided in the course 
of the covered USG attorney's official duties or employment.
    (b) A covered USG attorney shall not accept any salary or other 
payments as compensation for legal services rendered, by that covered 
USG attorney in a private capacity, to a client who is eligible for 
assistance under the DoN Legal Assistance Program, unless so authorized 
by the JAG. This rule does not apply to Reserve or Retired judge 
advocates not then serving on extended active-duty.
    (c) A Reserve or Retired judge advocate, whether or not serving on 
extended active-duty, who has initially represented or interviewed a 
client or prospective client concerning a matter as part of the 
attorney's official Navy or Marine Corps duties, shall not accept any 
salary or other payments as compensation for services rendered to that 
client in a private capacity concerning the same general matter for 
which the client was seen in an official capacity, unless so authorized 
by the JAG.
    (d) Covered non-USG attorneys may charge fees. Fees shall be 
reasonable. Factors considered in determining the reasonableness of a 
fee include the following:
    (1) The time and labor required, the novelty and difficulty of the 
questions involved, and the skill requisite to perform the legal service 
properly;
    (2) The likelihood, if apparent to the client, that the acceptance 
of the particular employment will preclude other employment by the 
attorney;
    (3) The fee customarily charged in the locality for similar legal 
services;
    (4) The amount involved and the results obtained;
    (5) The time limitations imposed by the client or by the 
circumstances;
    (6) The nature and length of the professional relationship with the 
client;
    (7) The experience, reputation, and ability of the attorney or 
attorneys performing the services; and
    (8) Whether the fee is fixed or contingent.
    (e) When the covered non-USG attorney has not regularly represented 
the client, the basis or rate of the fee shall be communicated to the 
client, preferably in writing, before or within a reasonable time after 
commencing the representation.
    (f) A fee may be contingent on the outcome of the matter for which 
the service is rendered, except in a matter in which a contingent fee is 
prohibited by paragraph (a)(7) of this section or other law. A 
contingent fee agreement shall be in writing and shall state the method 
by which the fee is to be determined, including the percentage or 
percentages that shall accrue to the covered non-USG attorney in the 
event of settlement, trial or appeal, litigation and other expenses to 
be deducted from the recovery, and whether such expenses are to be 
deducted before or after the contingent fee is calculated. Upon 
conclusion of a contingent fee matter, the covered non-USG attorney 
shall provide the client with a written statement stating the outcome of 
the matter and, if there is a recovery, showing the remittance to the 
client and the method of its determination.
    (g) A covered non-USG attorney shall not enter into an arrangement 
for, charge, or collect a contingent fee for representing an accused in 
a criminal case.
    (h) A division of fees between covered non-USG attorneys who are not 
in the same firm may be made only if:
    (1) The division is in proportion to the services performed by each 
attorney or, by written agreement with the client, each attorney assumes 
joint responsibility for the representation;
    (2) The client is advised of and does not object to the 
participation of all the attorneys involved; and
    (3) The total fee is reasonable.

[[Page 258]]

    (i) Covered Non-USG Attorneys. Paragraphs (d) through (h) of this 
section apply only to private civilian attorneys practicing in 
proceedings conducted under the cognizance and supervision of the JAG. 
The primary purposes of paragraphs (d) through (h) of this section are 
not to permit the JAG to regulate fee arrangements between civilian 
attorneys and their clients but to provide guidance to covered USG 
attorneys practicing with non-USG attorneys and to supervisory attorneys 
who may be asked to inquire into alleged fee irregularities. Absent 
paragraphs (d) through (h) of this section, such supervisory attorneys 
have no readily available standard against which to compare allegedly 
questionable conduct of a civilian attorney.



Sec.  776.25  Confidentiality of information.

    (a) A covered attorney shall not reveal information relating to 
representation of a client unless the client gives informed consent, the 
disclosure is impliedly authorized in order to carry out the 
representation, or the disclosure is permitted by paragraph (b) of this 
section.
    (b) A covered attorney shall reveal information relating to the 
representation of a client to the extent the covered attorney reasonably 
believes necessary:
    (1) To prevent reasonably certain death or substantial bodily harm; 
or
    (2) To prevent the client from committing a criminal act that the 
covered attorney reasonably believes is likely to result in the 
significant impairment of national security or the readiness or 
capability of a military unit, vessel, aircraft, or weapon system.
    (c) A covered attorney may reveal such information to the extent the 
covered attorney reasonably believes necessary:
    (1) To secure legal advice about the covered attorney's compliance 
with subpart B of this part;
    (2) To establish a claim or defense on behalf of the covered 
attorney in a controversy between the covered attorney and the client, 
to establish a defense to a criminal charge or civil claim against the 
covered attorney based upon conduct in which the client was involved, or 
to respond to allegations in any proceeding concerning the attorney's 
representation of the client; and/or
    (3) To comply with other law or a court order.
    (d) Examples of conduct likely to result in the significant 
impairment of national security or the readiness or capability of a 
military unit, vessel, aircraft, or weapon system include: Divulging the 
classified location of a special operations unit such that the lives of 
members of the unit are placed in immediate danger; sabotaging a vessel 
or aircraft to the extent that the vessel or aircraft could not conduct 
an assigned mission, or that the vessel or aircraft and crew could be 
lost; and compromising the security of a weapons site such that the 
weapons are likely to be stolen or detonated. Paragraph (b) of this 
section is not intended to and does not mandate the disclosure of 
conduct that may have a slight impact on the readiness or capability of 
a unit, vessel, aircraft, or weapon system. Examples of such conduct 
are: Absence without authority from a peacetime training exercise; 
intentional damage to an individually assigned weapon; and intentional 
minor damage to military property.



Sec.  776.26  Conflict of interest: General rule.

    (a) Except as provided by paragraph (b) of this section, a covered 
attorney shall not represent a client if the representation of that 
client involves a concurrent conflict of interest. A concurrent conflict 
of interest exists if:
    (1) The representation of one client will be directly adverse to 
another client; or
    (2) There is a significant risk that the representation of one or 
more clients will be materially limited by the covered attorney's 
responsibilities to another client, a former client or a third person or 
by a personal interest of the covered attorney.
    (b) Notwithstanding the existence of a concurrent conflict of 
interest under paragraph (a) of this section, a covered attorney may 
represent a client if:
    (1) The covered attorney reasonably believes that the covered 
attorney will

[[Page 259]]

be able to provide competent and diligent representation to each 
affected client;
    (2) The representation is not prohibited by law or regulation;
    (3) The representation does not involve the assertion of a claim by 
one client against another client represented by the covered attorney in 
the same litigation or other proceeding before a tribunal; and
    (4) Each affected client gives informed consent, confirmed in 
writing.
    (c) These conflict-of-interest rules apply to Reservists only while 
they are actually drilling or on active-duty-for-training, or, as is the 
case with Retirees, on extended active-duty or when performing other 
duties subject to JAG supervision. Therefore, unless otherwise 
prohibited by criminal conflict-of-interest statutes, Reserve or Retired 
attorneys providing legal services in their civilian capacity may 
represent clients, or work in firms whose attorneys represent clients, 
with interests adverse to the United States. Reserve judge advocates 
who, in their civilian capacities, represent persons whose interests are 
adverse to the DoN will provide written notification to their 
supervisory attorney and commanding officer, detailing their involvement 
in the matter. Reserve judge advocates shall refrain from undertaking 
any official action or representation of the DoN with respect to any 
particular matter in which they are providing representation or services 
to other clients.



Sec.  776.27  Conflict of interests: Prohibited transactions.

    (a) Covered USG attorneys shall strictly adhere to current DoD 
Ethics Regulations and shall not:
    (1) Knowingly enter into any business transactions on behalf of, or 
adverse to, a client's interest that directly or indirectly relate to or 
result from the attorney-client relationship; or
    (2) Provide any financial assistance to a client or otherwise serve 
in a financial or proprietorial fiduciary or bailment relationship, 
unless otherwise specifically authorized by competent authority.
    (b) No covered attorney shall:
    (1) Use information relating to representation of a client to the 
disadvantage of the client unless the client consents after 
consultation, except as permitted or required by subpart B of this part;
    (2) Prepare an instrument giving the covered attorney or a person 
related to the covered attorney as parent, child, sibling, or spouse any 
gift from a client, including a testamentary gift, except where the 
client is related to the donee;
    (3) In the case of covered non-USG attorneys, accept compensation 
for representing a client from one other than the client unless the 
client consents after consultation, there is no interference with the 
covered attorney's independence of professional judgment or with the 
attorney-client relationship, and information relating to representation 
of a client is protected as required by Sec.  776.25 of this part;
    (4) Negotiate any settlement on behalf of multiple clients in a 
single matter unless each client provides fully informed consent;
    (5) Prior to the conclusion of representation of the client, make or 
negotiate an agreement giving a covered attorney literary or media 
rights for a portrayal or account based in substantial part on 
information relating to representation of a client;
    (6) Represent a client in a matter directly adverse to a person whom 
the covered attorney knows is represented by another attorney who is 
related as parent, child, sibling, or spouse to the covered attorney, 
except upon consent by the client after consultation regarding the 
relationship; or
    (7) Acquire a proprietary interest in the cause of action or subject 
matter of litigation the covered attorney is conducting for a client.
    (c) [Reserved]



Sec.  776.28  Conflict of interest: Former client.

    (a) A covered attorney who has formerly represented a client in a 
matter shall not thereafter represent another person in the same or a 
substantially related matter in which that person's interests are 
materially adverse to the interests of the former client, unless

[[Page 260]]

the former client gives informed consent, confirmed in writing.
    (b) A covered attorney who has formerly represented a client in a 
matter shall not thereafter:
    (1) Use information relating to the representation to the 
disadvantage of the former client or to the covered attorney's own 
advantage, except as Subpart B of this part would permit or require with 
respect to a client, or when the information has become generally known; 
or
    (2) Reveal information relating to the representation except as 
subpart B of this part would permit or require with respect to a client.
    (c) [Reserved]



Sec.  776.29  Imputed disqualification: General rule.

    (a) Imputed disqualification: General rule. Covered USG attorneys 
working in the same military law office are not automatically 
disqualified from representing a client because any of them practicing 
alone would be prohibited from doing so by Sec.  776.26, Sec.  776.27, 
Sec.  776.28, or Sec.  776.38 of this part. Covered non-USG attorneys 
must consult their federal, state, and local bar rules governing the 
representation of multiple or adverse clients within the same office 
before such representation is initiated, as such representation may 
expose them to disciplinary action under the rules established by their 
licensing authorities.
    (b) Comment. (1) The circumstances of military (or Government) 
service may require representation of opposing sides by covered USG 
attorneys working in the same law office. Such representation is 
permissible so long as conflicts of interests are avoided and 
independent judgment, zealous representation, and protection of 
confidences are not compromised. Thus, the principle of imputed 
disqualification is not automatically controlling for covered USG 
attorneys. The knowledge, actions, and conflicts of interests of one 
covered USG attorney are not imputed to another simply because they 
operate from the same office. For example, the fact that a number of 
defense attorneys operate from one office and normally share clerical 
assistance would not prohibit them from representing co-accused at trial 
by court-martial. Imputed disqualification rules for non-USG attorneys 
are established by their individual licensing authorities and may well 
proscribe all attorneys from one law office from representing a co-
accused, or a party with an adverse interest to an existing client, if 
any attorney in the same office were so prohibited.
    (2) Whether a covered USG attorney is disqualified requires a 
functional analysis of the facts in a specific situation. The analysis 
should include consideration of whether the following will be 
compromised: Preserving attorney-client confidentiality; maintaining 
independence of judgment; and avoiding positions adverse to a client. 
See, e.g., U.S. v. Stubbs, 23 M.J. 188 (CMA 1987).
    (3) Preserving confidentiality is a question of access to 
information. Access to information, in turn, is essentially a question 
of fact in a particular circumstance, aided by inferences, deductions, 
or working presumptions that reasonably may be made about the way in 
which covered USG attorneys work together. A covered USG attorney may 
have general access to files of all clients of a military law office 
(e.g., legal assistance attorney) and may regularly participate in 
discussions of their affairs; it may be inferred that such a covered USG 
attorney in fact is privy to all information about all the office's 
clients. In contrast, another covered USG attorney (e.g., military 
defense counsel) may have access to the files of only a limited number 
of clients and participate in discussion of the affairs of no other 
clients; in the absence of information to the contrary, it should be 
inferred that such a covered USG attorney in fact is privy to 
information about the clients actually served but not to information of 
other clients. Additionally, a covered USG attorney changing duty 
stations or changing assignments within a military office has a 
continuing duty to preserve confidentiality of information about a 
client formerly represented. See Sec.  776.25 and Sec.  776.28 of this 
part.
    (4) In military practice, where covered USG attorneys representing 
adverse interests are sometimes required to share common spaces, 
equipment,

[[Page 261]]

and clerical assistance, inadvertent disclosure of confidential or 
privileged material may occur. A covered attorney who mistakenly 
receives any such confidential or privileged materials should refrain 
from reviewing them (except for the limited purpose of ascertaining 
ownership or proper routing), notify the attorney to whom the material 
belongs that he or she has such material, and either follow instructions 
of the attorney with respect to the disposition of the materials or 
refrain from further reviewing or using the materials until a definitive 
resolution of the proper disposition of the materials is obtained from a 
court. A covered attorney's duty to provide his or her client zealous 
representation does not justify a rule allowing the receiving attorney 
to take advantage of inadvertent disclosures of privileged and/or 
confidential materials. This policy recognizes and reinforces the 
principles of: Confidentiality and the attorney-client privilege; 
analogous principles governing the inadvertent waiver of the attorney-
client privilege; the law governing bailments and missent property; and 
considerations of common sense, reciprocity, and professional courtesy.
    (5) Maintaining independent judgment allows a covered USG attorney 
to consider, recommend, and carry out any appropriate course of action 
for a client without regard to the covered USG attorney's personal 
interests or the interests of another. When such independence is lacking 
or unlikely, representation cannot be zealous.
    (6) Another aspect of loyalty to a client is the general obligation 
of any attorney to decline subsequent representations involving 
positions adverse to a former client in substantially related matters. 
This obligation normally requires abstention from adverse representation 
by the individual covered attorney involved, but, in the military legal 
office, abstention is not required by other covered USG attorneys 
through imputed disqualification.



Sec.  776.30  Successive Government and private employment.

    (a) Except as the law or regulations may otherwise expressly permit, 
a former covered USG attorney, who has information known to be 
confidential Government information about a person that was acquired 
while a covered USG attorney, may not represent a private client whose 
interests are adverse to that person in a matter in which the 
information could be used to the material disadvantage of that person. 
The former covered USG attorney may continue association with a firm, 
partnership, or association representing any such client only if the 
disqualified covered USG attorney is screened from any participation in 
the matter and is apportioned no part of the fee or any other benefit 
therefrom.
    (1) The disqualified former covered USG attorney must ensure that he 
or she is screened from any participation in the matter and is 
apportioned no part of the fee or any other benefit therefrom; and,
    (2) Must provide written notice promptly to the appropriate 
Government agency to enable it to ascertain compliance with the 
provisions of applicable law and regulations.
    (b) Except as the law or regulations may otherwise expressly permit, 
a former covered USG attorney, who has information known to be 
confidential Government information about a person which was acquired 
while a covered USG attorney, may not represent a private client whose 
interests are adverse to that person in a matter in which the 
information could be used to the material disadvantage of that person. 
The former covered USG attorney may continue association with a firm, 
partnership, or association representing any such client only if the 
disqualified covered USG attorney is screened from any participation in 
the matter and is apportioned no part of the fee or any other benefit 
therefrom.
    (c) Except as the law or regulations may otherwise expressly permit, 
a covered USG attorney shall not:
    (1) Participate in a matter in which the covered USG attorney 
participated personally and substantially while in private practice or 
nongovernmental employment, unless under applicable law no one is, or by 
lawful delegation may be, authorized to act in the covered USG 
attorney's stead in the matter; or,

[[Page 262]]

    (2) Negotiate for private employment with any person who is involved 
as a party or as attorney for a party in a matter in which the covered 
USG attorney is participating personally and substantially.
    (d) As used in this paragraph (d), the term ``matter'' includes:
    (1) Any judicial or other proceeding, application, request for a 
ruling or other determination, contract, claim, controversy, 
investigation, charge, accusation, arrest, or other particular matter 
involving a specific party or parties, and
    (2) Any other matter covered by the conflict-of-interest rules of 
the DoD, DoN, or other appropriate Government agency.
    (e) As used in the rule, the term ``confidential Governmental 
information'' means information that has been obtained under 
Governmental authority and that, at the time this Rule is applied, the 
Government is prohibited by law or regulations from disclosing to the 
public or has a legal privilege not to disclose, and that is not 
otherwise available to the public.
    (f) [Reserved]



Sec.  776.31  Former judge or arbitrator.

    (a) Except as stated in paragraph (c) of this section, a covered USG 
attorney shall not represent anyone in connection with a matter in which 
the covered USG attorney participated personally and substantially as a 
judge or other adjudicative officer, arbitrator, or law clerk to such a 
person, unless all parties to the proceeding give informed consent, 
confirmed in writing.
    (b) A covered USG attorney shall not negotiate for employment with 
any person who is involved as a party or as attorney for a party in a 
matter in which the covered USG attorney is participating personally and 
substantially as a judge or other adjudicative officer. A covered USG 
attorney serving as law clerk to a judge, other adjudicative officer, or 
arbitrator may negotiate for employment with a party or attorney 
involved in a matter in which the clerk is participating personally and 
substantially, but only after the covered USG attorney has notified the 
judge, other adjudicative officer, or arbitrator, and been disqualified 
from further involvement in the matter.
    (c) An arbitrator selected as a partisan of a party in a multi-
member arbitration panel is not prohibited from subsequently 
representing that party.
    (d) [Reserved]



Sec.  776.32  Department of the Navy as client.

    (a) Except when representing an individual client pursuant to 
paragraph (f) of this section, a covered USG attorney represents the DoN 
(or the Executive agency to which assigned) acting through its 
authorized officials. These officials include the heads of 
organizational elements within the naval service, such as the commanders 
of fleets, divisions, ships and other heads of activities. When a 
covered USG attorney is assigned to such an organizational element and 
designated to provide legal services to the head of the organization, an 
attorney-client relationship exists between the covered attorney and the 
DoN as represented by the head of the organization as to matters within 
the scope of the official business of the organization. The head of the 
organization may not invoke the attorney-client privilege or the rule of 
confidentiality for the head of the organization's own benefit but may 
invoke either for the benefit of the DoN. In invoking either the 
attorney-client privilege or attorney-client confidentiality on behalf 
of the DoN, the head of the organization is subject to being overruled 
by higher authority.
    (b) If a covered USG attorney knows that an officer, employee, or 
other member associated with the organizational client is engaged in 
action, intends to act or refuses to act in a matter related to the 
representation that is either adverse to the legal interests or 
obligations of the DoN or a violation of law that reasonably might be 
imputed to the DoN, the covered USG attorney shall proceed as is 
reasonably necessary in the best interest of the naval service. In 
determining how to proceed, the covered USG attorney shall give due 
consideration to the seriousness of the violation and its consequences, 
the scope and nature of the covered USG attorney's representation, the 
responsibility in the naval service

[[Page 263]]

and the apparent motivation of the person involved, the policies of the 
naval service concerning such matters, and any other relevant 
considerations. Any measures taken shall be designed to minimize 
prejudice to the interests of the naval service and the risk of 
revealing information relating to the representation to persons outside 
the service. Such measures shall include:
    (1) Asking for reconsideration of the matter by the acting official;
    (2) Advising that a separate legal opinion on the matter be sought 
for presentation to appropriate authority in the naval service;
    (3) Referring the matter to, or seeking guidance from, higher 
authority in the chain of command including, if warranted by the 
seriousness of the matter, referral to the supervisory attorney assigned 
to the staff of the acting official's next superior in the chain of 
command; or
    (4) Advising the acting official that his or her personal legal 
interests are at risk and that he or she should consult counsel as there 
may exist a conflict of interest for the covered USG attorney, and the 
covered USG attorney's responsibility is to the organization.
    (c) If, despite the covered USG attorney's efforts per paragraph (b) 
of this section, the highest authority that can act concerning the 
matter insists upon action or refuses to act, in clear violation of law, 
the covered USG attorney shall terminate representation with respect to 
the matter in question. In no event shall the attorney participate or 
assist in the illegal activity. In this case, a covered USG attorney 
shall report such termination of representation to the attorney's 
supervisory attorney or attorney representing the next superior in the 
chain of command.
    (d) In dealing with the officers, employees, or members of the naval 
service a covered USG attorney shall explain the identity of the client 
when it is apparent that the naval service's interests are adverse to 
those of the officer, employee, or member.
    (e) A covered USG attorney representing the naval service may also 
represent any of its officers, employees, or members, subject to the 
provisions of Sec.  776.26 of this part and other applicable authority. 
If the DoN's consent to dual representation is required by Sec.  776.26 
of this part, the consent shall be given by an appropriate official of 
the DoN other than the individual who is to be represented.
    (f) A covered USG attorney who has been duly assigned to represent 
an individual who is subject to criminal or disciplinary action or 
administrative proceedings, or to provide legal assistance to an 
individual, has, for those purposes, an attorney-client relationship 
with that individual.
    (g) [Reserved]



Sec.  776.33  Client with diminished capacity.

    (a) When a client's capacity to make adequately considered decisions 
in connection with the representation is diminished, whether because of 
minority, mental impairment, or for some other reason, the covered 
attorney shall, as far as reasonably possible, maintain a normal 
attorney-client relationship with the client.
    (b) When the covered attorney reasonably believes that the client 
has diminished capacity, is at risk of substantial physical, financial, 
or other harm unless action is taken and cannot adequately act in the 
client's own interest, the covered attorney may take reasonably 
necessary protective action, including consulting with individuals or 
entities that have the ability to take action to protect the client.
    (c) Information relating to the representation of a client with 
diminished capacity is protected by Sec.  776.25 of this part. When 
taking protective action pursuant to paragraph (b) of this section, the 
covered attorney is impliedly authorized under Sec.  776.25(a) of this 
part to reveal information about the client, but only to the extent 
reasonably necessary to protect the client's interests.
    (d) [Reserved]



Sec.  776.34  Safekeeping property.

    (a) Covered USG attorneys shall not normally hold or safeguard 
property of a client or third persons in connection with 
representational duties. See Sec.  776.27 of this part.
    (b) [Reserved]

[[Page 264]]



Sec.  776.35  Declining or terminating representation.

    (a) Except as stated in paragraph (c) of this section, a covered 
attorney shall not represent a client or, when representation has 
commenced, shall seek to withdraw from the representation of a client 
if:
    (1) The representation will result in violation of subpart B of this 
part or other law or regulation;
    (2) The covered attorney's physical or mental condition materially 
impairs his or her ability to represent the client; or
    (3) The covered attorney is dismissed by the client.
    (b) Except as stated in paragraph (c) of this section, a covered 
attorney may seek to withdraw from representing a client if withdrawal 
can be accomplished without material adverse effect on the interests of 
the client, or if:
    (1) The client persists in a course of action involving the covered 
attorney's services that the covered attorney reasonably believes is 
criminal or fraudulent;
    (2) The client has used the covered attorney's services to 
perpetrate a crime or fraud;
    (3) The client insists upon pursuing an objective that the covered 
attorney considers repugnant or imprudent;
    (4) In the case of covered non-USG attorneys, the representation 
will result in an unreasonable financial burden on the attorney or has 
been rendered unreasonably difficult by the client; or
    (5) Other good cause for withdrawal exists.
    (c) A covered attorney must comply with applicable law requiring 
notice to or permission of a tribunal when terminating a representation. 
When ordered to do so by a tribunal or other competent authority, a 
covered attorney shall continue representation notwithstanding good 
cause for terminating the representation.
    (d) Upon termination of representation, a covered attorney shall 
take steps to the extent reasonably practicable to protect a client's 
interests, such as giving reasonable notice to the client, allowing time 
for assignment or employment of other counsel, and surrendering papers 
and property to which the client is entitled and, where a non-USG 
attorney provided representation, refunding any advance payment of fee 
that has not been earned. The covered attorney may retain papers 
relating to the client to the extent permitted by law.
    (e) [Reserved]



Sec.  776.36  Prohibited sexual relations.

    (a) A covered attorney shall not have sexual relations with a 
current client. A covered attorney shall not require, demand, or solicit 
sexual relations with a client incident to any professional 
representation.
    (b) A covered attorney shall not engage in sexual relations with 
another attorney currently representing a party whose interests are 
adverse to those of a client currently represented by the covered 
attorney.
    (c) A covered attorney shall not engage in sexual relations with a 
judge who is presiding or who is likely to preside over any proceeding 
in which the covered attorney will appear in a representative capacity.
    (d) A covered attorney shall not engage in sexual relations with 
other persons involved in the particular case, judicial or 
administrative proceeding, or other matter for which representation has 
been established, including but not limited to witnesses, victims, co-
accused, and court-martial or board members.
    (e) For purposes of this paragraph (e), ``sexual relations'' means:
    (1) Sexual intercourse; or
    (2) Any touching of the sexual or other intimate parts of a person 
or causing such person to touch the sexual or other intimate parts of 
the covered attorney for the purpose of arousing or gratifying the 
sexual desire of either party.
    (f) [Reserved]



Sec.  776.37  Advisor.

    (a) In representing a client, a covered attorney shall exercise 
independent professional judgment and render candid advice. In rendering 
advice, a covered attorney may refer not only to law but to other 
considerations such as moral, economic, social, and political factors 
that may be relevant to the client's situation.
    (b) [Reserved]

[[Page 265]]



Sec.  776.38  Mediation.

    (a) A covered attorney may act as a mediator between individuals if:
    (1) The covered attorney consults with each individual concerning 
the implications of the mediation, including the advantages and risks 
involved, and the effect on the attorney-client confidentiality, and 
obtains each individual's consent to the mediation;
    (2) The covered attorney reasonably believes that the matter can be 
resolved on terms compatible with each individual's best interests, that 
each individual will be able to make adequately informed decisions in 
the matter, and that there is little risk of material prejudice to the 
interests of any of the individuals if the contemplated resolution is 
unsuccessful; and,
    (3) The covered attorney reasonably believes that the mediation can 
be undertaken impartially and without improper effect on other 
responsibilities the covered attorney has to any of the individuals.
    (b) While acting as a mediator, the covered attorney shall consult 
with each individual concerning the decisions to be made and the 
considerations relevant in making them, so that each individual can make 
adequately informed decisions.
    (c) A covered attorney shall withdraw as a mediator if any of the 
individuals so requests, or if any of the conditions stated in paragraph 
(a)(1) of this section is no longer satisfied. Upon withdrawal, the 
covered attorney shall not represent any of the individuals in the 
matter that was the subject of the mediation unless each individual 
consents.
    (d) [Reserved]



Sec.  776.39  Evaluation for use by third persons.

    (a) A covered attorney may provide an evaluation of a matter 
affecting a client for the use of someone other than the client if:
    (1) The covered attorney reasonably believes that making the 
evaluation is compatible with other aspects of the covered attorney's 
relationship with the client; and
    (2) The client provides informed consent, confirmed in writing.
    (b) Except as disclosure is required in connection with a report of 
an evaluation, information relating to the evaluation is otherwise 
protected by Sec.  776.25 of this part.
    (c) [Reserved]



Sec.  776.40  Meritorious claims and contentions.

    (a) A covered attorney shall not bring or defend a proceeding, or 
assert or controvert an issue therein, unless there is a basis for doing 
so that is not frivolous, which includes a good faith argument for an 
extension, modification, or reversal of existing law. A covered attorney 
representing an accused in a criminal proceeding or the respondent in an 
administrative proceeding, that could result in incarceration, discharge 
from the Naval service, or other adverse personnel action, may 
nevertheless defend the client at the proceeding as to require that 
every element of the case is established.
    (b) [Reserved]



Sec.  776.41  Expediting litigation.

    (a) A covered attorney shall make reasonable efforts to expedite 
litigation or other proceedings consistent with the interests of the 
client.
    (b) [Reserved]



Sec.  776.42  Candor and obligations toward the tribunal.

    (a) A covered attorney shall not knowingly:
    (1) Make a false statement of material fact or law to a tribunal or 
fail to correct a false statement of material fact or law previously 
made to the tribunal by the covered attorney;
    (2) Fail to disclose to the tribunal legal authority in the 
controlling jurisdiction known to the covered attorney to be directly 
adverse to the position of the client and not disclosed by opposing 
counsel;
    (3) Offer evidence that the covered attorney knows to be false. If a 
covered attorney, the attorney's client, or a witness called by the 
covered attorney, has offered material evidence and the covered attorney 
comes to know of its falsity, the covered attorney shall take reasonable 
remedial measures, including, if necessary, disclosure to the tribunal. 
A covered attorney may refuse

[[Page 266]]

to offer evidence, other than the testimony of an accused in a criminal 
matter, that the covered attorney reasonably believes is false; or
    (4) Disobey an order imposed by a tribunal unless done openly before 
the tribunal in a good faith assertion that no valid order should exist.
    (b) A covered attorney who represents a client in an adjudicative 
proceeding and who knows that a person intends to engage, is engaging or 
has engaged in criminal or fraudulent conduct related to the proceeding 
shall take reasonable remedial measures, including, if necessary, 
disclosure to the tribunal.
    (c) The duties stated in paragraph (a) of this section continue to 
the conclusion of the proceedings, and apply even if compliance requires 
disclosure of information otherwise protected by Sec.  776.25 of this 
part.
    (d) In an ex parte proceeding, a covered attorney shall inform the 
tribunal of all material facts known to the covered attorney that will 
enable the tribunal to make an informed decision, whether or not the 
facts are adverse.
    (e) [Reserved]



Sec.  776.43  Fairness to opposing party and counsel.

    (a) A covered attorney shall not:
    (1) Unlawfully obstruct a party's access to evidence or unlawfully 
alter, destroy, or conceal a document or other material having potential 
evidentiary value. A covered attorney shall not counsel or assist 
another person to do any such act;
    (2) Falsify evidence, counsel or assist a witness to testify 
falsely, or offer an inducement to a witness that is prohibited by law;
    (3) Knowingly disobey an order of the tribunal except for an open 
refusal based on an assertion that no valid obligation exists;
    (4) In pretrial procedure, make a frivolous discovery request or 
fail to make reasonably diligent effort to comply with a legally proper 
discovery request by a party;
    (5) In trial, allude to any matter that the covered attorney does 
not reasonably believe is relevant or that will not be supported by 
admissible evidence, assert personal knowledge of facts in issue except 
when testifying as a witness, or state a personal opinion as to the 
justness of a cause, the credibility of a witness, the culpability of a 
civil litigant, or the guilt or innocence of an accused; or
    (6) Request a person other than a client to refrain from voluntarily 
giving relevant information to another party unless:
    (i) The person is a relative, an employee, or other agent of a 
client; and
    (ii) The covered attorney reasonably believes that the person's 
interests will not be adversely affected by refraining from giving such 
information.
    (b) [Reserved]



Sec.  776.44  Impartiality and decorum of the tribunal.

    (a) A covered attorney shall not:
    (1) Seek to influence a judge, court member, member of a tribunal, 
prospective court member or member of a tribunal, or other official by 
means prohibited by law or regulation;
    (2) Communicate ex parte with such a person except as permitted by 
law or regulation; or
    (3) Engage in conduct intended to disrupt a tribunal.
    (b) [Reserved]



Sec.  776.45  Extra-tribunal statements.

    (a) A covered attorney shall not make an extrajudicial statement 
about any person or case pending investigation or adverse administrative 
or disciplinary proceedings that a reasonable person would expect to be 
disseminated by means of public communication if the covered attorney 
knows or reasonably should know that it will have a substantial 
likelihood of materially prejudicing an adjudicative proceeding or an 
official review process thereof.
    (b) A statement referred to in paragraph (a) of this section 
ordinarily is likely to have such an effect when it refers to a civil 
matter triable to a jury, a criminal matter (including before a military 
tribunal or commission), or any other proceeding that could result in 
incarceration, discharge from the naval service, or other adverse 
personnel action, and the statement relates to:

[[Page 267]]

    (1) The character, credibility, reputation, or criminal record of a 
party, suspect in a criminal investigation, victim, or witness, or the 
identity of a victim or witness, or the expected testimony of a party, 
suspect, victim, or witness;
    (2) The possibility of a plea of guilty to the offense or the 
existence or contents of any confession, admission, or statement given 
by an accused or suspect or that person's refusal or failure to make a 
statement;
    (3) The performance or results of any forensic examination or test 
or the refusal or failure of a person to submit to an examination or 
test, or the identity or nature of physical evidence expected to be 
presented;
    (4) Any opinion as to the guilt or innocence of an accused or 
suspect in a criminal case or other proceeding that could result in 
incarceration, discharge from the naval service, or other adverse 
personnel action;
    (5) Information the covered attorney knows or reasonably should know 
is likely to be inadmissible as evidence before a tribunal and would, if 
disclosed, create a substantial risk of materially prejudicing an 
impartial proceeding;
    (6) The fact that an accused has been charged with a crime, unless 
there is included therein a statement explaining that the charge is 
merely an accusation and that the accused is presumed innocent until and 
unless proven guilty; or
    (7) The credibility, reputation, motives, or character of civilian 
or military officials of the DoD.
    (c) Notwithstanding paragraphs (a) and (b)(1) through (7) of this 
section, a covered attorney involved in the investigation or litigation 
of a matter may state without elaboration:
    (1) The general nature of the claim, offense, or defense;
    (2) The information contained in a public record;
    (3) That an investigation of the matter is in progress, including 
the general scope of the investigation, the offense or claim or defense 
involved and, except when prohibited by law or regulation, the identity 
of the persons involved;
    (4) The scheduling or result of any step in litigation;
    (5) A request for assistance in obtaining evidence and information 
necessary thereto;
    (6) A warning of danger concerning the behavior of the person 
involved, when there is reason to believe that there exists the 
likelihood of substantial harm to an individual or to the public 
interest; and
    (7) In a criminal case, in addition to paragraphs (c)(1) through (6) 
of this section:
    (i) The identity, duty station, occupation, and family status of the 
accused;
    (ii) If the accused has not been apprehended, information necessary 
to aid in apprehension of that person;
    (iii) The fact, time, and place of apprehension; and
    (iv) The identity of investigating and apprehending officers or 
agencies and the length of the investigation.
    (d) Notwithstanding paragraphs (a) and (b)(1) through (7) of this 
section, a covered attorney may make a statement that a reasonable 
covered attorney would believe is required to protect a client from the 
substantial undue prejudicial effect of recent publicity not initiated 
by the covered attorney or the attorney's client. A statement made 
pursuant to this paragraph shall be limited to such information as is 
necessary to mitigate the recent adverse publicity.
    (e) The protection and release of information in matters pertaining 
to the DoN is governed by such statutes as the Freedom of Information 
Act and the Privacy Act, in addition to those governing protection of 
national defense information. In addition, other laws and regulations 
may further restrict the information that can be released or the source 
from which it is to be released (e.g., the Manual of the Judge Advocate 
General).
    (f) [Reserved]



Sec.  776.46  Attorney as witness.

    (a) A covered attorney shall not act as advocate at a trial in which 
the covered attorney is likely to be a necessary witness except when:
    (1) The testimony relates to an uncontested issue;

[[Page 268]]

    (2) The testimony relates to the nature and quality of legal 
services rendered in the case; or
    (3) Disqualification of the covered attorney would work substantial 
hardship on the client.
    (b) A covered attorney may act as advocate in a trial in which 
another attorney in the covered attorney's office is likely to be called 
as a witness, unless precluded from doing so by Sec.  776.26 or Sec.  
776.28 of this part.
    (c) [Reserved]



Sec.  776.47  Special responsibilities of a trial counsel and other
government counsel.

    (a) A trial counsel in a criminal case shall:
    (1) Recommend to the convening authority that any charge or 
specification not supported by probable cause be withdrawn;
    (2) Make reasonable efforts to assure that the accused has been 
advised of the right to, and the procedure for obtaining, counsel and 
has been given reasonable opportunity to obtain counsel;
    (3) Not seek to obtain from an unrepresented accused a waiver of 
important pretrial rights;
    (4) Make timely disclosure to the defense of all evidence or 
information known to the trial counsel that tends to negate the guilt of 
the accused or mitigates the offense, and, in connection with 
sentencing, disclose to the defense all unprivileged mitigating 
information known to the trial counsel, except when the trial counsel is 
relieved of this responsibility by a protective order or regulation;
    (5) Exercise reasonable care to prevent investigators, law 
enforcement personnel, employees, or other persons assisting or 
associated with the trial counsel from making an extrajudicial statement 
that the trial counsel would be prohibited from making under Sec.  
776.45 of this part; and
    (6) Except for statements that are necessary to inform the public of 
the nature and extent of the trial counsel's actions and that serve a 
legitimate law enforcement purpose, refrain from making extrajudicial 
comments that have a substantial likelihood of heightening public 
condemnation of the accused.
    (b) Trial counsel and other government counsel shall exercise 
reasonable care to avoid intercepting, seizing, copying, viewing, or 
listening to communications protected by the attorney-client privilege 
during investigation of a suspected offense (particularly when 
conducting government-sanctioned searches where attorney-client 
privileged communications may be present), as well as in the preparation 
or prosecution of a case. Such communications expressly include, but are 
not limited to, land-line telephone conversations, facsimile 
transmissions, U.S. mail, and Email. Trial counsel and other government 
counsel must not infringe upon the confidential nature of attorney-
client privileged communications and are responsible for the actions of 
their agents or representatives when they induce or assist them in 
intercepting, seizing, copying, viewing, or listening to such privileged 
communications.
    (c)(1) The trial counsel represents the United States in the 
prosecution of special and general courts-martial. See Article 38(a), 
UCMJ; see also R.C.M. 103(16), 405(d)(3)(A), and 502(d)(5). Accordingly, 
a trial counsel has the responsibility of administering justice and is 
not simply an advocate. This responsibility carries with it specific 
obligations to see that the accused is accorded procedural justice and 
that guilt is decided upon the basis of sufficient evidence. Paragraph 
(a)(1) of this section recognizes that the trial counsel does not have 
all the authority vested in modern civilian prosecutors. The authority 
to convene courts-martial, and to refer and withdraw specific charges, 
is vested in convening authorities. Trial counsel may have the duty, in 
certain circumstances, to bring to the court's attention any charge that 
lacks sufficient evidence to support a conviction. See United States v. 
Howe, 37 M.J. 1062 (NMCMR 1993). Such action should be undertaken only 
after consultation with a supervisory attorney and the convening 
authority. See also Sec.  776.42(d) of this part (governing ex parte 
proceedings). Applicable law may require other measures by the trial 
counsel.

[[Page 269]]

Knowing disregard of those obligations or a systematic abuse of 
prosecutorial discretion could constitute a violation of Sec.  776.69 of 
this part.
    (2) Paragraph (a)(3) of this section does not apply to an accused 
appearing pro se with the approval of the tribunal. Nor does it forbid 
the lawful questioning of a suspect who has knowingly waived the rights 
to counsel and to remain silent.
    (3) The exception in paragraph (a)(4) of this section recognizes 
that a trial counsel may seek an appropriate protective order from the 
tribunal if disclosure of information to the defense could result in 
substantial harm to an individual or organization or to the public 
interest. This exception also recognizes that applicable statutes and 
regulations may proscribe the disclosure of certain information without 
proper authorization.
    (4) A trial counsel may comply with paragraph (a)(5) of this section 
in a number of ways. These include personally informing others of the 
trial counsel's obligations under Sec.  776.46 of this part, conducting 
training of law enforcement personnel, and appropriately supervising the 
activities of personnel assisting the trial counsel.
    (5) Paragraph (a)(6) of this section supplements Sec.  776.45 of 
this part, which prohibits extrajudicial statements that have a 
substantial likelihood of prejudicing an adjudicatory proceeding. A 
trial counsel can, and should, avoid comments that have no legitimate 
law enforcement purpose and have a substantial likelihood of increasing 
public opprobrium of the accused. Nothing in this Comment is intended to 
restrict the statements that a trial counsel may make that comply with 
Sec.  776.45 of this part.
    (6) The ``ABA Standards for Criminal Justice: The Prosecution 
Function,'' (3d ed. 1993), has been used by appellate courts in 
analyzing issues concerning trial counsel conduct. To the extent 
consistent with these Rules, the ABA standards may be used to guide 
trial counsel in the prosecution of criminal cases. See United States v. 
Howe, 37 M.J. 1062 (NMCRS 1993); United States v. Dancy, 38 M.J. 1 (CMA 
1993); United States v. Hamilton, 41 M.J. 22 (CMA 1994); United States 
v. Meek, 44 M.J. 1 (CMA 1996).
    (d) [Reserved]



Sec.  776.48  Advocate in nonadjudicative proceedings.

    (a) A covered attorney representing a client before a legislative or 
administrative tribunal in a nonadjudicative proceeding shall disclose 
that the appearance is in a representative capacity and shall conform to 
the provisions of Sec. Sec.  776.42 (a) through (d), 776.43, and 776.44 
of this part.
    (b) [Reserved]



Sec.  776.49  Truthfulness in statements to others.

    (a) In the course of representing a client a covered attorney shall 
not knowingly;
    (1) Make a false statement of material fact or law to a third 
person; or
    (2) Fail to disclose a material fact to a third person when 
disclosure is necessary to avoid assisting a criminal or fraudulent act 
by a client, unless disclosure is prohibited by Sec.  776.25 of this 
part.
    (b) [Reserved]



Sec.  776.50  Communication with person represented by counsel.

    (a) In representing a client, a covered attorney shall not 
communicate about the subject of the representation with a party the 
covered attorney knows to be represented by another attorney in the 
matter, unless the covered attorney has the consent of the other 
attorney or is authorized by law to do so.
    (b) [Reserved]



Sec.  776.51  Dealing with an unrepresented person.

    (a) When dealing on behalf of a client with a person who is not 
represented by counsel, a covered attorney shall not state or imply that 
the covered attorney is disinterested. When the covered attorney knows 
or reasonably should know that the unrepresented person misunderstands 
the covered attorney's role in the matter, the covered attorney shall 
make reasonable efforts to correct the misunderstanding.
    (b) [Reserved]

[[Page 270]]



Sec.  776.52  Respect for rights of third persons.

    (a) In representing a client, a covered attorney shall not use means 
that have no substantial purpose other than to embarrass, delay, or 
burden a third person, or use methods of obtaining evidence that violate 
the legal rights of such a person.
    (b) [Reserved]



Sec.  776.53  Responsibilities of the Judge Advocate General and 
supervisory attorneys.

    (a) The JAG and supervisory attorneys shall make reasonable efforts 
to ensure that all covered attorneys conform to subpart B of this part.
    (b) A covered attorney having direct supervisory authority over 
another covered attorney shall make reasonable efforts to ensure that 
the other attorney conforms to subpart B of this part.
    (c) A supervisory attorney shall be responsible for another 
subordinate covered attorney's violation of subpart B of this part if:
    (1) The supervisory attorney orders or, with knowledge of the 
specific conduct, ratifies the conduct involved; or
    (2) The supervisory attorney has direct supervisory authority over 
the other attorney and knows of the conduct at a time when its 
consequences can be avoided or mitigated but fails to take reasonable 
remedial action.
    (d) A supervisory attorney is responsible for ensuring that the 
subordinate covered attorney is properly trained and is competent to 
perform the duties to which the subordinate covered attorney is 
assigned.
    (e) [Reserved]



Sec.  776.54  Responsibilities of a subordinate attorney.

    (a) A covered attorney is bound by this part notwithstanding that 
the covered attorney acted at the direction of another person.
    (b) In recognition of the judge advocate's unique dual role as a 
commissioned officer and attorney, subordinate judge advocates shall 
obey lawful directives and regulations of supervisory attorneys when not 
inconsistent with this part or the duty of a judge advocate to exercise 
independent professional judgment as to the best interest of an 
individual client.
    (c) A subordinate covered attorney does not violate this part if 
that covered attorney acts in accordance with a supervisory attorney's 
written and reasonable resolution of an arguable question of 
professional duty.
    (d) [Reserved]



Sec.  776.55  Responsibilities regarding non-attorney assistants.

    (a) With respect to a non-attorney acting under the authority, 
supervision, or direction of a covered attorney:
    (1) The senior supervisory attorney in an office shall make 
reasonable efforts to ensure that the person's conduct is compatible 
with the professional obligations of a covered attorney;
    (2) A covered attorney having direct supervisory authority over the 
non-attorney shall make reasonable efforts to ensure that the person's 
conduct is compatible with the professional obligations of a covered 
attorney; and
    (3) A covered attorney shall be responsible for conduct of such a 
person that would be a violation of this part if engaged in by a covered 
attorney if:
    (i) The covered attorney orders or, with the knowledge of the 
specific conduct, explicitly or impliedly ratifies the conduct involved; 
or
    (ii) The covered attorney has direct supervisory authority over the 
person, and knows of the conduct at a time when its consequences can be 
avoided or mitigated but fails to take reasonable remedial action.
    (b) [Reserved]



Sec.  776.56  Professional independence of a covered USG attorney.

    (a) Notwithstanding a judge advocate's status as a commissioned 
officer subject, generally, to the authority of superiors, a judge 
advocate detailed or assigned to represent an individual member or 
employee of the DoN is expected to exercise unfettered loyalty and 
professional independence during the representation consistent with 
subpart B of this part and remains ultimately responsible for acting in 
the best interest of the individual client.

[[Page 271]]

    (b) Notwithstanding a civilian USG attorney's status as a Federal 
employee subject, generally, to the authority of superiors, a civilian 
USG attorney detailed or assigned to represent an individual member or 
employee of the DoN is expected to exercise unfettered loyalty and 
professional independence during the representation consistent with this 
part and remains ultimately responsible for acting in the best interest 
of the individual client.
    (c) The exercise of professional judgment in accordance with 
paragraph (a) or (b) of this section shall not, standing alone, be a 
basis for an adverse evaluation or other prejudicial action.
    (1) Subpart B of this part recognizes that a judge advocate is a 
military officer required by law to obey the lawful orders of superior 
officers. It also recognizes the similar status of a civilian USG 
attorney. Nevertheless, the practice of law requires the exercise of 
judgment solely for the benefit of the client and free of compromising 
influences and loyalties. Thus, when a covered USG attorney is assigned 
to represent an individual client, neither the attorney's personal 
interests, the interests of other clients, nor the interests of third 
persons should affect loyalty to the individual client.
    (2) Not all direction given to a subordinate covered attorney is an 
attempt to influence improperly the covered attorney's professional 
judgment. Each situation must be evaluated by the facts and 
circumstances, giving due consideration to the subordinate's training, 
experience, and skill. A covered attorney subjected to outside pressures 
should make full disclosure of them to the client. If the covered 
attorney or the client believes the effectiveness of the representation 
has been or will be impaired thereby, the covered attorney should take 
proper steps to withdraw from representation of the client.
    (3) Additionally, a judge advocate has a responsibility to report 
any instances of unlawful command influence. See R.C.M. 104, MCM, 1998.



Sec.  776.57  Unauthorized practice of law.

    (a) A covered USG attorney shall not:
    (1) Except as authorized by an appropriate military department, 
practice law in a jurisdiction where doing so is prohibited by the 
regulations of the legal profession in that jurisdiction; or
    (2) Assist a person who is not a member of the bar in the 
performance of activity that constitutes the unauthorized practice of 
law.
    (3) Engage in the outside practice of law without receiving proper 
authorization from the JAG.
    (b) Limiting the practice of law to members of the bar protects the 
public against rendition of legal services by unqualified persons. A 
covered USG attorney's performance of legal duties pursuant to a 
military department's authorization, however, is considered a Federal 
function and not subject to regulation by the states. Thus, a covered 
USG attorney may perform legal assistance duties even though the covered 
attorney is not licensed to practice in the jurisdiction within which 
the covered attorney's duty station is located. Paragraph (a)(2) of this 
section does not prohibit a covered USG attorney from using the services 
of non-attorneys and delegating functions to them, so long as the 
covered attorney supervises the delegated work and retains 
responsibility for it. See Sec.  776.55 of this part. Likewise, it does 
not prohibit covered USG attorneys from providing professional advice 
and instruction to non-attorneys whose employment requires knowledge of 
law; for example, claims adjusters, social workers, accountants and 
persons employed in Government agencies. In addition, a covered USG 
attorney may counsel individuals who wish to proceed pro se or non-
attorneys authorized by law or regulation to appear and represent 
themselves or others before military proceedings.



Sec. Sec.  776.58-776.65  [Reserved]



Sec.  776.66  Bar admission and disciplinary matters.

    (a) A covered attorney, in connection with any application for bar 
admission, appointment as a judge advocate, employment as a civilian USG 
attorney, certification by the JAG or his designee, or in connection 
with any disciplinary matter, shall not:
    (1) Knowingly make a false statement of fact; or

[[Page 272]]

    (2) Fail to disclose a fact necessary to correct a misapprehension 
known by the person to have arisen in the matter, or knowingly fail to 
respond to a lawful demand for information from an admissions or 
disciplinary authority, except that this part does not require 
disclosure of information otherwise protected by Sec.  776.25 of this 
part.
    (b) The duty imposed by subpart B of this part extends to covered 
attorneys and other attorneys seeking admission to a bar, application 
for appointment as a covered USG attorney (military or civilian) or 
certification by the JAG or his designee. Hence, if a person makes a 
false statement in connection with an application for admission or 
certification (e.g., misstatement by a civilian attorney before a 
military judge regarding qualifications under R.C.M. 502), it may be the 
basis for subsequent disciplinary action if the person is admitted, and 
in any event may be relevant in a subsequent admission application. The 
duty imposed by subpart B of this part applies to a covered attorney's 
own admission or discipline as well as that of others. Thus, it is a 
separate professional offense for a covered attorney to make a knowing 
misrepresentation or omission in connection with a disciplinary 
investigation of the covered attorney's own conduct. Subpart B of this 
part also requires affirmative clarification of any misunderstanding on 
the part of the admissions, certification, or disciplinary authority of 
which the person involved becomes aware.



Sec.  776.67  Judicial and legal officers.

    (a) A covered attorney shall not make a statement that the covered 
attorney knows to be false or with reckless disregard as to its truth or 
falsity concerning the qualifications or integrity of a judge, 
investigating officer, hearing officer, adjudicatory officer, or public 
legal officer, or of a candidate for election or appointment to judicial 
or legal office.
    (b) [Reserved]



Sec.  776.68  Reporting professional misconduct.

    (a) A covered attorney having knowledge that another covered 
attorney has committed a violation of subpart B of this part that raises 
a substantial question as to that covered attorney's honesty, 
trustworthiness, or fitness as a covered attorney in other respects, 
shall report such violation in accordance with the procedures set forth 
in this part.
    (b) A covered attorney having knowledge that a judge has committed a 
violation of applicable rules of judicial conduct that raises a 
substantial question as to the judge's fitness for office shall report 
such violation in accordance with the procedures set forth in this part.
    (c) This part does not require disclosure of information otherwise 
protected by Sec.  776.25 of this part.
    (d) [Reserved]



Sec.  776.69  Misconduct.

    (a) It is professional misconduct for a covered attorney to:
    (1) Violate or attempt to violate subpart B of this part, knowingly 
assist or induce another to do so, or do so through the acts of another;
    (2) Commit a criminal act that reflects adversely on the covered 
attorney's honesty, trustworthiness, or fitness as an attorney in other 
respects;
    (3) Engage in conduct involving dishonesty, fraud, deceit, or 
misrepresentation;
    (4) Engage in conduct that is prejudicial to the administration of 
justice;
    (5) State or imply an ability to influence improperly a government 
agency or official; or
    (6) Knowingly assist a judge or judicial officer in conduct that is 
a violation of applicable rules of judicial conduct or other law.
    (b)(1) Judge advocates hold a commission as an officer in the Navy 
or Marine Corps and assume legal responsibilities going beyond those of 
other citizens. A judge advocate's abuse of such commission can suggest 
an inability to fulfill the professional role of judge advocate and 
attorney. This concept has similar application to civilian USG 
attorneys.
    (2) Covered non-USG attorneys, Reservists, and Retirees (acting in 
their civilian capacity), like their active-duty counterparts, are 
expected to demonstrate model behavior and exemplary integrity at all 
times. The JAG

[[Page 273]]

may consider any and all derogatory or beneficial information about a 
covered attorney, for purposes of determining the attorney's 
qualification, professional competence, or fitness to practice law in 
DoN matters, or to administer discipline under this rule. Such 
consideration shall be made, except in emergency situations 
necessitating immediate action, according to the procedures established 
in this rule.



Sec.  776.70  Jurisdiction.

    (a) All covered attorneys shall be governed by this part.
    (b)(1) Many covered USG attorneys practice outside the territorial 
limits of the jurisdiction in which they are licensed. While covered 
attorneys remain subject to the governing authority of the jurisdiction 
in which they are licensed to practice, they are also subject to subpart 
B of this part.
    (2) When covered USG attorneys are engaged in the conduct of Navy or 
Marine Corps legal functions, whether serving the Navy or Marine Corps 
as a client or serving an individual client as authorized by the Navy or 
Marine Corps, the provisions contained in subpart B of this part 
supersede any conflicting rules applicable in jurisdictions in which the 
covered attorney may be licensed. However, covered attorneys practicing 
in State or Federal civilian court proceedings will abide by the rules 
adopted by that State or Federal civilian court during the proceedings. 
As for covered non-USG attorneys practicing under the supervision of the 
JAG, violation of the provisions contained in subpart B of this part may 
result in suspension from practice in DoN proceedings.
    (3) Covered non-USG attorneys, Reservists, or Retirees (acting in 
their civilian capacity) who seek to provide legal services in any DoN 
matter under JAG cognizance and supervision, may be precluded from such 
practice of law if, in the opinion of the JAG (as exercised through this 
rule) the attorney's conduct in any venue renders that attorney unable 
or unqualified to practice in DoN programs or proceedings.



Sec.  776.71  Requirement to remain in good standing with licensing
authorities.

    (a) Each officer of the Navy appointed as a member of the JAG Corps, 
each officer of the Marine Corps designated a judge advocate, and each 
civil service and contracted civilian attorney who practices law under 
the cognizance and supervision of the JAG shall maintain a status 
considered ``in good standing'' at all times with the licensing 
authority admitting the individual to the practice of law before the 
highest court of at least one State, Territory, Commonwealth, or the 
District of Columbia.
    (b) The JAG, the Staff Judge Advocate to the Commandant of the 
Marine Corps, or any other supervisory attorney may require any covered 
USG attorney over whom they exercise authority to establish that the 
attorney continues to be in good standing with his or her licensing 
authority. Representatives of the JAG or of the Staff Judge Advocate to 
the Commandant of the Marine Corps may also inquire directly of any such 
covered USG attorney's licensing authority to establish whether he or 
she continues to be in good standing and has no disciplinary action 
pending.
    (c) Each covered USG attorney shall immediately report to the JAG if 
any jurisdiction in which the covered USG attorney is or has been a 
member in good standing commences disciplinary investigation or action 
against him or her or if the covered USG attorney is disciplined, 
suspended, or disbarred from the practice of law in any jurisdiction.
    (d) Each covered non-USG attorney representing an accused in any 
court-martial or administrative separation proceeding shall be a member 
in good standing with, and authorized to practice law by, the bar of a 
Federal court or of the bar of the highest court of a State, or a lawyer 
otherwise authorized by a recognized licensing authority to practice law 
and found by the military judge to be qualified to represent the 
accused.
    (e)(1) Generally, the JAG relies on the licensing authority granting 
the certification or privilege to practice

[[Page 274]]

law to define the phrase ``good standing.'' However, as circumstances 
require, the JAG may, instead, use separate criteria to determine 
compliance. At a minimum, ``good standing'' means the individual:
    (i) Is subject to the jurisdiction's disciplinary review process;
    (ii) Has not been suspended or disbarred from the practice of law 
within the jurisdiction;
    (iii) Is current in the payment of all required fees;
    (iv) Has met applicable continuing legal education requirements that 
the jurisdiction has imposed (or the cognizant authority has waived); 
and
    (v) Has met such other requirements as the cognizant authority has 
set for eligibility to practice law. So long as these conditions are 
met, a covered USG attorney may be ``inactive'' as to the practice of 
law within a particular jurisdiction and still be ``in good standing'' 
for purposes of subpart B of this part.
    (2) Rule for Court-Martial 502(d)(3)(A) requires that any civilian 
defense counsel representing an accused in a court-martial be a member 
of the bar of a Federal court or of the bar of the highest court of a 
State. This civilian defense counsel qualification only has meaning if 
the attorney is a member ``in good standing,'' and is then authorized to 
practice law within that jurisdiction. See United States v. Waggoner, 22 
M.J. 692 (AFCMR 1986). It is appropriate for the military judge, in each 
and every case, to ensure that a civilian defense counsel is qualified 
to represent the accused.
    (3) Failure of a judge advocate to comply with the requirements of 
subpart B of this part may result in professional disciplinary action as 
provided for in this rule, loss of certification under Articles 26 and/
or 27(b), UCMJ, adverse entries in military service records, and 
administrative separation under SECNAVINST 1920.6 (series) based on the 
officer's failure to maintain professional qualifications. In the case 
of civil service and contracted civilian attorneys practicing under the 
JAG's cognizance and supervision, failure to maintain good standing or 
otherwise to comply with the requirements of subpart B of this part may 
result in adverse administrative action under applicable personnel 
regulations, including termination of employment.
    (4) A covered USG attorney need only remain in good standing in one 
jurisdiction. If admitted to the practice of law in more than one 
jurisdiction, however, and any jurisdiction commences disciplinary 
action against or disciplines, suspends or disbars the covered USG 
attorney from the practice of law, the covered USG attorney must so 
advise the JAG.
    (5) An essential time to verify that a judge advocate is currently 
in good standing is upon accession. Other appropriate times for 
verification are before a judge advocate is promoted to a higher grade, 
detailed to a new command, or assigned to duties where there is a 
statutory requirement to be a member of the bar, such as a military 
judge per 10 U.S.C. 826(b). The JAG, the SJA to CMC, or any other 
supervisory attorney may need to verify the professional qualifications 
of a judge advocate, either periodically or on an occasional basis. 
JAGINST 5803.2 (series) establishes a biennial requirement for all 
covered attorneys to provide proof of good standing.
    (6) Certification by the United States Court of Appeals for the 
Armed Forces that a judge advocate is in good standing with that court 
will not satisfy the requirement of this section, since such status is 
normally dependent on Article 27, UCMJ, certification.



Sec. Sec.  776.72-776.75  [Reserved]



                Subpart C_Complaint Processing Procedures



Sec.  776.76  Policy.

    (a) It is JAG's policy to investigate and resolve, expeditiously and 
fairly, all allegations of professional impropriety lodged against 
covered attorneys under JAG supervision.
    (b) Rules Counsel approval will be obtained before conducting any 
preliminary inquiry or formal investigation into an alleged violation of 
the Rules of Professional Conduct (subpart B of this part) or the ABA 
Model Code of Judicial Conduct (Code of Judicial Conduct). The Rules 
Counsel will notify the JAG prior to the commencement of

[[Page 275]]

any preliminary inquiry or investigation. The preliminary inquiry and 
any subsequent investigation will be conducted according to the 
procedures set forth in this subpart.



Sec.  776.77  Related investigations and actions.

    Acts or omissions by covered attorneys may constitute professional 
misconduct, criminal misconduct, poor performance of duty, or a 
combination of all three. Care must be taken to characterize 
appropriately the nature of a covered attorney's conduct to determine 
who may and properly should take official action.
    (a) Questions of legal ethics and professional misconduct by covered 
attorneys are within the exclusive province of the JAG. Ethical or 
professional misconduct will not be attributed to any covered attorney 
in any official record without a final JAG determination, made in 
accordance with this part that such misconduct has occurred.
    (b) Criminal misconduct is properly addressed by the covered USG 
attorney's commander through the disciplinary process provided under the 
UCMJ and implementing regulations, or through referral to appropriate 
civil authority.
    (c) Poor performance of duty is properly addressed by the covered 
USG attorney's reporting senior through a variety of administrative 
actions, including documentation in fitness reports or employee 
appraisals.
    (d) Prior JAG approval is not required to investigate allegations of 
criminal conduct or poor performance of duty involving covered 
attorneys. When, however, investigations into criminal conduct or poor 
performance reveal conduct that constitutes a violation of this part or 
of the Code of Judicial Conduct in the case of judges, such conduct 
shall be reported to the Rules Counsel immediately.
    (e) Generally, professional responsibility complaints will be 
processed in accordance with this part upon receipt. Rules Counsel may, 
however, on a case-by-case basis, delay such processing to await the 
outcome of pending related criminal, administrative, or investigative 
proceedings.
    (f) Nothing in this part prevents a military judge or other 
appropriate official from removing a covered attorney from acting in a 
particular court-martial or prevents the JAG, the SJA to CMC, or the 
appropriate official from reassigning a covered attorney to different 
duties prior to, during, or subsequent to proceedings conducted under 
the provision of this part.



Sec.  776.78  Informal complaints.

    Informal, anonymous, or ``hot line'' type complaints alleging 
professional misconduct must be referred to the appropriate authority 
(such as the JAG Inspector General or the concerned supervisory 
attorney) for inquiry. Such complaints are not, by themselves, 
cognizable under this subpart but may, if reasonably confirmed, be the 
basis of a formal complaint described in Sec.  776.79 of this part.



Sec.  776.79  The formal complaint.

    (a) The formal complaint shall:
    (1) Be in writing and be signed by the complainant;
    (2) State that the complainant has personal knowledge, or has 
otherwise received reliable information indicating, that:
    (i) The covered attorney concerned is, or has been, engaged in 
misconduct that demonstrates a lack of integrity, that constitutes a 
violation of this part or the Code of Judicial Conduct or a failure to 
meet the ethical standards of the profession; or
    (ii) The covered attorney concerned is ethically, professionally, or 
morally unqualified to perform his or her duties; and
    (3) Contain a complete, factual statement of the acts or omissions 
constituting the substance of the complaint, as well as a description of 
any attempted resolution with the covered attorney concerned. Supporting 
statements, if any, should be attached to the complaint.
    (b) A complaint may be initiated by any person, including the 
Administrative Law Division of the Office of the Judge Advocate General 
(OJAG) Administrative Law Division (Code 13) or the Judge Advocate 
Research and Civil Law Branch, Office of the SJA to CMC, HQMC (JAR).

[[Page 276]]



Sec.  776.80  Initial screening.

    (a) Complaints involving conduct of a Navy or Marine Corps trial or 
appellate judge shall be forwarded to OJAG (Code 05). All other 
complaints shall be forwarded to OJAG (Code 13) or, in cases involving 
Marine Corps judge advocates or civil service and contracted civilian 
attorneys who perform legal services under the cognizance and 
supervision of the SJA to CMC, to JAR. In cases involving Marine judge 
advocates, including trial and appellate judges, where the SJA to CMC is 
not the Rules Counsel, the cognizant Rules Counsel will notify the SJA 
to CMC when a complaint is received.
    (b) OJAG (Code 05), OJAG (Code 13), and JAR shall log all formal 
complaints received and will ensure a copy of the complaint and allied 
papers is provided to the covered attorney who is the subject of the 
complaint. Service of the formal complaint and other materials on the 
covered attorney must be accomplished through personal service or 
registered/certified mail sent to the covered attorney's last known 
address reflected in official Navy and Marine Corps records or in the 
records of the state bar(s) that licensed the attorney to practice law. 
The covered attorney's supervisory attorney must also be provided notice 
of the complaint.
    (c) The covered attorney concerned may elect to provide an initial 
statement, normally within ten calendar days from receipt, regarding the 
complaint for the Rules Counsel's consideration. The covered attorney 
will promptly inform OJAG (Code 05), OJAG (Code 13), or JAR if he or she 
intends to submit any such statement. At this screening stage, 
forwarding of the complaint to the Rules Counsel will not be unduly 
delayed to await the covered attorney's submission.
    (d) The cognizant Rules Counsel shall initially review the 
complaint, and any statement submitted by the covered attorney 
complained of, to determine whether it complies with the requirements 
set forth in paragraph (4) of this section. The Rules Counsel is not 
required to delay the initial review of the complaint awaiting the 
covered attorney's submission.
    (1) Complaints that do not comply with the requirements may be 
returned to the complainant for correction or completion, and 
resubmission to OJAG (Code 05), OJAG (Code 13), or JAR. If the complaint 
is not corrected or completed and resubmitted within 30 days of the date 
of its return, the Rules Counsel may close the file without further 
action. OJAG (Code 05), OJAG (Code 13), and JAR will maintain copies of 
all correspondence relating to the return and resubmission of a 
complaint, and shall notify the covered attorney concerned, as well as 
the supervisory attorney, if and when the Rules Counsel takes action to 
close the file.
    (2) Complaints that comply with the requirements shall be further 
reviewed by the cognizant Rules Counsel to determine whether the 
complaint establishes probable cause to believe that a violation of 
subpart B of this part or Code of Judicial Conduct has occurred.
    (e) The cognizant Rules Counsel shall close the file without further 
action if the complaint does not establish probable cause to believe a 
violation has occurred. The Rules Counsel shall notify the complainant, 
the covered attorney concerned, and the supervisory attorney, that the 
file has been closed. OJAG (Code 05), OJAG (Code 13), and JAR will 
maintain copies of all correspondence related to the closing of the 
file.
    (f) The cognizant Rules Counsel may close the file if there is a 
determination that the complaint establishes probable cause but the 
violation is of a minor or technical nature appropriately addressed 
through corrective counseling. The Rules Counsel shall report any such 
decision, to include a brief summary of the case, to the JAG. (In cases 
relating to Marine judge advocates, including trial and appellate 
judges, in which the SJA to CMC is not the cognizant Rules Counsel, an 
information copy shall be forwarded to the SJA to CMC.) The Rules 
Counsel shall ensure the covered attorney concerned receives appropriate 
counseling and shall notify the complainant, the covered attorney 
concerned, and the supervisory attorney that the file has been closed. 
OJAG (Code 05), OJAG (Code 13), and JAR will maintain copies of all 
correspondence related to the closing of the file. The covered attorney 
concerned is responsible, under

[[Page 277]]

these circumstances, to determine if his or her Federal, state, or local 
licensing authority requires reporting of such action.



Sec.  776.81  Forwarding the complaint.

    (a) If the Rules Counsel determines there is probable cause to 
believe that a violation of subpart B of this part or of the Code of 
Judicial Conduct has occurred, and the violation is not of a minor or 
technical nature, the Rules Counsel shall notify the JAG. (In cases 
relating to Marine Corps judge advocates, including trial and appellate 
judges, in which the SJA to CMC is not the cognizant Rules Counsel, the 
SJA to CMC shall also be notified.) The Rules Counsel shall forward the 
complaint and any allied papers, as follows:
    (1) In cases involving a military trial judge, if practicable, to a 
covered attorney with experience as a military trial judge (normally 
senior to and of the same Service (Navy or Marine Corps) as the covered 
attorney complained of and not previously involved in the case) and 
assign the officer to conduct a preliminary inquiry into the matter;
    (2) In cases involving a military appellate judge, if practicable, 
to a covered attorney with experience as a military appellate judge 
(normally senior to and of the same Service (Navy or Marine Corps) as 
the covered attorney complained of and not previously involved in the 
case) and assign the officer to conduct a preliminary inquiry into the 
matter;
    (3) In all other cases, to such covered attorney as the cognizant 
Rules Counsel may designate (normally senior to the covered attorney 
complained of and not previously involved in the case), and assign the 
officer to conduct a preliminary inquiry into the matter.
    (b) The Rules Counsel shall provide notice of the complaint (if not 
previously informed) as well as notice of the preliminary inquiry:
    (1) To the covered attorney against whom the complaint is made as 
well as the supervisory attorney;
    (2) In cases involving a covered USG attorney on active duty or in 
civilian Federal service, to the commanding officer, or equivalent, of 
the covered USG attorney concerned;
    (3) In cases involving Navy or Marine Corps judge advocates serving 
in Naval Legal Service Command (NLSC) units, to Commander, NLSC;
    (4) In cases involving Navy attorneys serving in Marine Corps units, 
involving Marine Corps attorneys serving in Navy units, or involving 
Marine Corps trial and appellate judges, to the SJA to CMC (Attn: JAR);
    (5) In cases involving trial or appellate court judges, to either 
the Chief Judge, Navy-Marine Corps Trial Judiciary or Chief Judge, Navy-
Marine Corps Court of Criminal Appeals, as appropriate; and
    (6) In cases involving covered attorneys certified by the Judge 
Advocates General/Chief Counsel of the other uniformed services, to the 
appropriate military service attorney discipline section.



Sec.  776.82  Interim suspension.

    (a) Where the Rules Counsel determines there is probable cause to 
believe that a covered attorney has committed misconduct and poses a 
substantial threat of irreparable harm to his or her clients or the 
orderly administration of military justice, the Rules Counsel shall so 
advise the JAG. Examples of when a covered attorney may pose a 
``substantial threat of irreparable harm'' include, but are not limited 
to:
    (1) When charged with the commission of a crime which involves moral 
turpitude or reflects adversely upon the covered attorney's fitness to 
practice law, and where substantial evidence exists to support the 
charge;
    (2) When engaged in the unauthorized practice of law (e.g., failure 
to maintain good standing in accordance with Sec.  776.71 of this part); 
or
    (3) Where unable to represent client interests competently.
    (b) Upon receipt of information from the Rules Counsel, JAG may 
order the covered attorney to show cause why he or she should not face 
interim suspension, pending completion of a professional responsibility 
investigation. The covered attorney shall have 10 calendar days in which 
to respond. Notice of the show cause order shall be provided as outlined 
in Sec.  776.81(b) of this part.

[[Page 278]]

    (c) If an order to show cause has been issued under paragraph (b) of 
this section, and the period for response has passed without a response, 
or after consideration of any response and finding sufficient evidence 
demonstrating probable cause to believe that the covered attorney is 
guilty of misconduct and poses a substantial threat of irreparable harm 
to his or her client or the orderly administration of military justice, 
the JAG may direct an interim suspension of the covered attorney's 
certification under Articles 26(b) or 27(b), UCMJ, or R.C.M. 502(d)(3), 
or the authority to provide legal assistance, pending the results of the 
investigation and final action under this part. Notice of such action 
shall be provided as outlined in Sec.  776.81(b) of this part.
    (d) Within 10 days of the JAG's decision to impose an interim 
suspension, the covered attorney may request an opportunity to be heard 
before an impartial officer designated by the JAG. Where so requested, 
that opportunity will be scheduled within 10 calendar days of the 
request. The designated officer shall receive any information that the 
covered attorney chooses to submit on the limited issue of whether to 
continue the interim suspension. The designated officer shall submit a 
recommendation to the JAG within 5 calendar days of conclusion.
    (e) A covered attorney may, based upon a claim of changed 
circumstances or newly discovered evidence, petition for dissolution or 
amendment of the JAG's imposition of interim suspension.
    (f) Any professional responsibility investigation involving a 
covered attorney who has been suspended pursuant to subpart B of this 
part shall proceed and be concluded without appreciable delay. However, 
the JAG may determine it necessary to await completion of a related 
criminal investigation or proceeding, or completion of a professional 
responsibility action initiated by other licensing authorities. In such 
cases, the JAG shall cause the Rules Counsel to so notify the covered 
attorney under interim suspension as well as those officials outlined in 
Sec.  776.81(b) of this part. Where necessary, continuation of the 
interim suspension shall be reviewed by the JAG every 6 months.



Sec.  776.83  Preliminary inquiry.

    (a) The purpose of the preliminary inquiry is to determine whether, 
in the opinion of the officer appointed to conduct the preliminary 
inquiry (PIO), the questioned conduct occurred and, if so, whether the 
preponderance of the evidence demonstrates that such conduct constitutes 
a violation of subpart B of this part or the Code of Judicial Conduct. 
The PIO is to recommend appropriate action in cases of substantiated 
violations.
    (b) Upon receipt of the complaint, the PIO shall promptly 
investigate the allegations, generally following the format and 
procedures set forth in the Manual of the Judge Advocate General 
(JAGMAN) for the conduct of command investigations. Reports of relevant 
investigations by other authorities including, but not limited to, the 
command, the Inspector General, and State licensing authorities should 
be used. The PIO should also:
    (1) Identify and obtain sworn affidavits or statements from all 
relevant and material witnesses to the extent practicable;
    (2) Identify, gather, and preserve all other relevant and material 
evidence; and
    (3) Provide the covered attorney concerned an opportunity to review 
all evidence, affidavits, and statements collected and a reasonable 
period of time (normally not exceeding 10 calendar days) to submit a 
written statement or any other written material that the covered 
attorney wishes considered.
    (c) The PIO may appoint and use such assistants as may be necessary 
to conduct the preliminary inquiry.
    (d) The PIO shall personally review the results of the preliminary 
inquiry to determine whether, by a preponderance of the evidence, a 
violation of subpart B of this part or of the Code of Judicial Conduct 
has occurred.
    (1) If the PIO determines that no violation has occurred or that the 
violation is minor or technical in nature and warrants only corrective 
counseling, then he or she may recommend that the file be closed.

[[Page 279]]

    (2) If the PIO determines by a preponderance of the evidence that a 
violation did occur, and that corrective action greater than counseling 
may be warranted, he or she shall:
    (i) Draft a list of substantiated violations of these Rules of 
Professional Conduct or the Code of Judicial Conduct;
    (ii) Recommend appropriate action; and
    (iii) Forward the preliminary inquiry to the Rules Counsel, 
providing copies to the covered attorney concerned and the supervisory 
attorney.
    (e) The Rules Counsel shall review all preliminary inquiries. If the 
report is determined by the Rules Counsel to be incomplete, the Rules 
Counsel shall return it to the PIO, or to another inquiry officer, for 
further or supplemental inquiry. If the report is complete, then:
    (1) If the Rules Counsel determines, either consistent with the PIO 
recommendation or through the Rules Counsel's own review of the report, 
that a violation of this part has not occurred and that further action 
is not warranted, the Rules Counsel shall close the file and notify the 
complainant, the covered attorney concerned, and all officials 
previously provided notice of the complaint. OJAG (Code 05), OJAG (Code 
13), and/or JAR, as appropriate, will maintain copies of all 
correspondence related to the closing of the file.
    (2) If the Rules Counsel determines, either consistent with a PIO 
recommendation or through the Rules Counsel's own review of the report, 
that a violation of subpart B of this part has occurred but that the 
violation is of a minor or technical nature, then the Rules Counsel may 
determine that corrective counseling is appropriate and close the file. 
The Rules Counsel shall report any such decision, to include a brief 
summary of the case, to the JAG. The Rules Counsel shall ensure that the 
covered attorney concerned receives appropriate counseling and shall 
notify the complainant, the covered attorney concerned, and all 
officials previously provided notice of the complaint that the file has 
been closed. OJAG (Code 05), OJAG (Code 13), and/or JAR, as appropriate, 
will maintain copies of all correspondence related to the closing of the 
file. The covered attorney concerned is responsible, under these 
circumstances, to determine if his or her Federal, state, or local 
licensing authority requires reporting such action.
    (3) If the Rules Counsel determines, either consistent with a PIO 
recommendation or through the Rules Counsel's own review of the report, 
that further professional discipline or corrective action may be 
warranted, the Rules Counsel shall notify the JAG and take the following 
action:
    (i) In cases involving a military trial judge, if practicable, 
forward the recommendation to a covered attorney with experience as a 
military trial judge (normally senior to and of the same Service (Navy 
or Marine Corps) as the covered attorney complained of and not 
previously involved in the case) and assign the officer to conduct an 
ethics investigation into the matter (see R.C.M. 109 of the Manual for 
Courts-Martial);
    (ii) In cases involving a military appellate judge, forward the 
recommendation to a covered attorney with experience as a military 
appellate judge (normally senior to and of the same Service (Navy or 
Marine Corps) as the covered attorney complained of and not previously 
involved in the case) and assign the officer to conduct an ethics 
investigation into the matter (see R.C.M. 109 of the Manual for Courts-
Martial); or
    (iii) In all other cases, assign a covered attorney (normally senior 
to the covered attorney complained of and not previously involved in the 
case) to conduct an ethics investigation.



Sec.  776.84  Ethics investigation.

    (a) When an ethics investigation is initiated, the covered attorney 
concerned shall be so notified, in writing, by the Rules Counsel. Notice 
of such action shall also be provided as outlined in Sec.  776.81(b) of 
this part.
    (b) The covered attorney concerned will be provided written notice 
of the following rights in connection with the ethics investigation:
    (1) To request a hearing before the investigating officer (IO);
    (2) To inspect all evidence gathered;

[[Page 280]]

    (3) To present written or oral statements or materials for 
consideration;
    (4) To call witnesses at his or her own expense (local military 
witnesses should be made available at no cost);
    (5) To be assisted by counsel (see paragraph (c) of this section);
    (6) To challenge the IO for cause (such challenges must be made in 
writing and sent to the Rules Counsel via the challenged officer); and
    (7) To waive any or all of these rights. Failure to affirmatively 
elect any of the rights included in this section shall be deemed a 
waiver by the covered attorney.
    (c) If a hearing is requested, the covered attorney may be 
represented by counsel at the hearing. Such counsel may be:
    (1) A civilian attorney retained at no expense to the Government; 
or,
    (2) In the case of a covered USG attorney, another USG attorney:
    (i) Detailed by the cognizant Naval Legal Service Office (NLSO), (or 
Defense Services Office (DSO), effective October 1, 2012), Law Center, 
or Legal Service Support Section (LSSS); or
    (ii) Requested by the covered attorney concerned, if such counsel is 
deemed reasonably available in accordance with the provisions regarding 
individual military counsel set forth in Chapter I of the JAGMAN. There 
is no right to detailed counsel if requested counsel is made available.
    (d) If a hearing is requested, the IO will conduct the hearing after 
reasonable notice to the covered attorney concerned. The hearing will 
not be unreasonably delayed. The hearing is not adversarial in nature 
and there is no right to subpoena witnesses. Rules of evidence do not 
apply. The covered attorney concerned or his or her counsel may question 
witnesses that appear. The proceedings shall be recorded but no 
transcript of the hearing need be made. Evidence gathered during, or 
subsequent to, the preliminary inquiry and such additional evidence as 
may be offered by the covered attorney shall be considered.
    (e) The IO may appoint and use such assistants as may be necessary 
to conduct the ethics investigation.
    (f) The IO shall prepare a report which summarizes the evidence, to 
include information presented at any hearing.
    (1) If the IO believes that no violation has occurred or, by clear 
and convincing evidence, that the violation has occurred but the 
violation is minor or technical in nature and warrants only corrective 
counseling, then he or she may recommend that the file be closed.
    (2) If the IO believes by clear and convincing evidence that a 
violation did occur, and that corrective action greater than counseling 
is warranted, he or she shall:
    (i) Modify, as necessary, the list of substantiated violations of 
this part or, in the case of a military trial or appellate judge, the 
Code of Judicial Conduct;
    (ii) Recommend appropriate action; and
    (iii) Forward the ethics investigation to the Rules Counsel with a 
copy to the attorney investigated.
    (g) The Rules Counsel shall review all ethics investigations. If the 
report is determined by the Rules Counsel to be incomplete, the Rules 
Counsel shall return it to the IO, or to another inquiry officer, for 
further or supplemental inquiry. If the report is complete, then:
    (1) If the Rules Counsel determines, either consistent with the IO 
recommendation or through the Rules Counsel's own review of the 
investigation, that a violation of subpart B of this part or Code of 
Judicial Conduct has not occurred and that further action is not 
warranted, the Rules Counsel shall close the file and notify the 
complainant, the covered attorney concerned, and all officials 
previously notified of the complaint. OJAG (Code 05), OJAG (Code 13) 
and/or JAR, as appropriate, will maintain copies of all correspondence 
related to the closing of the file.
    (2) If the Rules Counsel determines, either consistent with the IO 
recommendation or through the Rules Counsel's own review of the 
investigation, that a violation of this part or Code of Judicial Conduct 
has occurred but that the violation is of a minor or technical nature, 
then the Rules Counsel may determine that corrective counseling is 
appropriate and close the file. The Rules Counsel shall report any

[[Page 281]]

such decision, to include a brief summary of the case, to the JAG. (In 
cases relating to Marine judge advocates, including trial and appellate 
judges, in which the SJA to CMC is not the cognizant Rules Counsel, an 
information copy shall be forwarded to the SJA to CMC.) The Rules 
Counsel shall ensure that the covered attorney concerned receives 
appropriate counseling and shall notify the complainant, the covered 
attorney concerned, and all officials previously notified of the 
complaint that the file has been closed. OJAG (Code 05), OJAG (Code 13), 
and/or JAR, as appropriate, will maintain copies of all correspondence 
related to the closing of the file. The covered attorney concerned is 
responsible, under these circumstances, to determine if his or her 
Federal, state, or local licensing authority requires reporting such 
action.
    (3) If the Rules Counsel believes, either consistent with the IO 
recommendation or through the Rules Counsel's own review of the inquiry 
report, that professional disciplinary action greater than corrective 
counseling is warranted, the Rules Counsel shall forward the 
investigation, with recommendations as to appropriate disposition, to 
the JAG. (In cases relating to Marine judge advocates, including trial 
and appellate judges, in which the SJA to CMC is not the cognizant Rules 
Counsel, an information copy shall be forwarded to the SJA to CMC.)



Sec.  776.85  Effect of separate proceeding.

    (a) For purposes of this section, the term ``separate proceeding'' 
includes, but is not limited to, court-martial, non-judicial punishment, 
administrative board, or similar civilian or military proceeding.
    (b) In cases in which a covered attorney is determined, at a 
separate proceeding determined by the Rules Counsel to afford procedural 
protection equal to that provided by a preliminary inquiry under this 
part, to have committed misconduct that forms the basis for ethics 
charges under this part, the Rules Counsel may dispense with the 
preliminary inquiry and proceed directly with an ethics investigation.
    (c) In those cases in which a covered attorney is determined to have 
committed misconduct at a separate proceeding which the Rules Counsel 
determines has afforded procedural protection equal to that provided by 
an ethics investigation under this part, the previous determination 
regarding the underlying misconduct is res judicata with respect to that 
issue during an ethics investigation. A subsequent ethics investigation 
based on such misconduct shall afford the covered attorney a hearing 
into whether the underlying misconduct constitutes a violation of 
subpart B of this part, whether the violation affects his or her fitness 
to practice law, and what sanctions, if any, are appropriate.
    (d) Notwithstanding paragraphs (b) and (c) in this section, the 
Rules Counsel may dispense with the preliminary inquiry and ethics 
investigation and, after affording the covered attorney concerned 
written notice and an opportunity to be heard in writing, recommend to 
the JAG that the covered attorney concerned be disciplined under this 
part when the covered attorney has been:
    (1) Decertified or suspended from the practice of law or otherwise 
subjected to professional responsibility discipline by the JAG or Chief 
Counsel of another Military Department;
    (2) Disbarred or suspended from the practice of law or otherwise 
subjected to professional responsibility discipline by the Court of 
Appeals for the Armed Forces or by any Federal, State, or local bar; or
    (3) Convicted of a felony (or any offense punishable by one year or 
more of imprisonment) in a civilian or military court that, in the 
opinion of the Rules Counsel, renders the attorney unqualified or 
incapable of properly or ethically representing the DoN or a client when 
the Rules Counsel has determined that the attorney was afforded 
procedural protection equal to that provided by an ethics investigation 
under this part.



Sec.  776.86  Action by the Judge Advocate General.

    (a) The JAG is not bound by the recommendation rendered by the Rules 
Counsel, IO, PIO, or any other interested party, but will base any 
action on the record as a whole. Nothing in this

[[Page 282]]

part limits the JAG's authority to suspend from the practice of law in 
DoN matters any covered attorney alleged or found to have committed 
professional misconduct or violated subpart B of this part, either in 
DoN or civilian proceedings, as detailed in this part.
    (b) The JAG may, but is not required to, refer any case to the 
Professional Responsibility Committee for an advisory opinion on 
interpretation of subpart B of this part or its application to the facts 
of a particular case.
    (c) Upon receipt of the ethics investigation, and any requested 
advisory opinion, the JAG will take such action as the JAG considers 
appropriate in the JAG's sole discretion. The JAG may, for example:
    (1) Direct further inquiry into specified areas.
    (2) Determine the allegations are unfounded, or that no further 
action is warranted, and direct the Rules Counsel to make appropriate 
file entries and notify the complainant, covered attorney concerned, and 
all officials previously notified of the complaint.
    (3) Determine the allegations are supported by clear and convincing 
evidence, and take appropriate corrective action including, but not 
limited to:
    (i) Limiting the covered attorney to practice under direct 
supervision of a supervisory attorney;
    (ii) Limiting the covered attorney to practice in certain areas or 
forbidding him or her from practice in certain areas;
    (iii) Suspending or revoking, for a specified or indefinite period, 
the covered attorney's authority to provide legal assistance;
    (iv) Finding that the misconduct so adversely affects the covered 
attorney's ability to practice law in the naval service or so prejudices 
the reputation of the DoN legal community, the administration of 
military justice, the practice of law under the cognizance of the JAG, 
or the armed services as a whole, that certification under Article 
27(b), UCMJ, or R.C.M. 502(d)(3), should be suspended or is no longer 
appropriate, and directing such certification to be suspended for a 
prescribed or indefinite period or permanently revoked;
    (v) In the case of a judge, finding that the misconduct so 
prejudices the reputation of military trial and/or appellate judges that 
certification under Article 26(b), UCMJ (10 U.S.C. 826(b)), should be 
suspended or is no longer appropriate, and directing such certification 
to be suspended for a prescribed or indefinite period or to be 
permanently revoked; and
    (vi) Directing the Rules Counsel to contact appropriate authorities 
such as the Chief of Naval Personnel or the Commandant of the Marine 
Corps so that pertinent entries in appropriate DoN records may be made; 
notifying the complainant, covered attorney concerned, and any officials 
previously provided copies of the complaint; and notifying appropriate 
tribunals and authorities of any action taken to suspend, decertify, or 
limit the practice of a covered attorney as counsel before courts-
martial or the U.S. Navy-Marine Corps Court of Criminal Appeals, 
administrative boards, as a legal assistance attorney, or in any other 
legal proceeding or matter conducted under JAG cognizance and 
supervision.



Sec.  776.87  Finality.

    Any action taken by the JAG is final.



Sec.  776.88  Report to licensing authorities.

    Upon determination by the JAG that a violation of subpart B of this 
part or the Code of Judicial Conduct has occurred, the JAG may cause the 
Rules Counsel to report that fact to the Federal, State, or local bar or 
other licensing authority of the covered attorney concerned. If so 
reported, notice to the covered attorney shall be provided by the Rules 
Counsel. This decision in no way diminishes a covered attorney's 
responsibility to report adverse professional disciplinary action as 
required by the attorney's Federal, State, and local bar or other 
licensing authority.



       Subpart D_Outside Practice of Law by Covered USG Attorneys



Sec.  776.89  Background.

    (a) A covered USG attorney's primary professional responsibility is 
to the DoN, and he or she is expected to devote the required level of 
time and

[[Page 283]]

effort to satisfactorily accomplish assigned duties. Covered USG 
attorneys engaged in the outside practice of law, including while on 
terminal leave, must comply with local bar rules governing professional 
responsibility and conduct and obtain proper authorization from the JAG 
as required by Sec. Sec.  776.57 and 776.88 of this part.
    (b) Outside employment of DoN personnel, both military and civilian, 
is limited by the UCMJ, MCM, and 10 U.S.C. 1044. A covered USG attorney 
may not provide compensated legal services, while working in a private 
capacity, to persons who are eligible for legal assistance, unless 
specifically authorized by the JAG. See Sec.  776.24. Because of the 
appearance of misuse of public office for private gain, this prohibition 
is based upon the status of the proposed client and applies whether or 
not the services provided are actually available in a DoN/DoD legal 
assistance office.
    (c) Additionally, DoN officers and employees are prohibited by 18 
U.S.C. 209 from receiving pay or allowances from any source other than 
the United States for the performance of any official service or duty 
unless specifically authorized by law. Furthermore, 18 U.S.C. 203 and 
205 prohibit Federal officers and employees from personally representing 
or receiving, directly or indirectly, compensation for representing any 
other person before any Federal agency or court on matters in which the 
United States is a party or has an interest.
    (d) These limitations are particularly significant when applied to 
covered USG attorneys who intend to engage concurrently in a civilian 
law practice. In such a situation, the potential is high for actual or 
apparent conflict arising from the mere opportunity to obtain clients 
through contacts in the course of official business. Unique conflicts or 
adverse appearances may also develop because of a covered USG attorney's 
special ethical responsibilities and loyalties.



Sec.  776.90  Definition.

    (a) Outside practice of law is defined as any provision of legal 
advice, counsel, assistance or representation, with or without 
compensation, that is not performed pursuant or incident to duties as a 
covered USG attorney (including while on terminal leave). Occasional 
uncompensated assistance rendered to relatives or friends is excluded 
from this definition (unless otherwise limited by statute or 
regulation). Teaching a law course as part of a program of education or 
training offered by an institution of higher education is not practicing 
law for purposes of this rule.
    (b) The requirement to seek permission prior to engaging in the 
outside practice of law does not apply to non-USG attorneys, or to 
Reserve or Retired judge advocates unless serving on active duty for 
more than 30 consecutive days.



Sec.  776.91  Policy.

    (a) As a general rule, the JAG will not approve requests by covered 
USG attorneys to practice law in association with attorneys or firms 
which represent clients with interests adverse to the DoN.
    (b) The JAG's approval of a particular request does not constitute 
DoN certification of the requesting attorney's qualifications to engage 
in the proposed practice or DoN endorsement of activities undertaken 
after such practice begins. Moreover, because any outside law practice 
is necessarily beyond the scope of a covered USG attorney's official 
duties, the requesting attorney should consider obtaining personal 
malpractice insurance coverage.



Sec.  776.92  Action.

    (a) Covered USG attorneys, who contemplate engaging in the outside 
practice of law, including while on terminal leave, must first obtain 
approval from the JAG. Requests should be forwarded in the form 
prescribed in appendix to subpart D of part 776 to OJAG (Code 05), JAG 
(Code 13), or JAR, as appropriate, via the attorney's chain of command.
    (b) The requesting attorney's commanding officer may:
    (1) Disapprove and return the request if he or she perceives actual 
or apparent conflicts of interests;
    (2) Recommend disapproval of the request and forward it, along with 
his or

[[Page 284]]

her rationale for such a recommendation; or
    (3) Forward the request recommending approval and providing such 
other information as may be relevant.
    (c) The JAG will review the request and advise applicants in writing 
of the decision, and of any conditions and limitations under which a 
particular practice may be undertaken. Until permission is granted, 
applicants will not commence any outside law practice.



Sec.  776.93  Revalidation.

    (a) Covered USG attorneys to whom permission is given to engage in 
the outside practice of law will notify the JAG in writing, via their 
chain of command, within 30 days of any material change in:
    (1) The nature or scope of the outside practice described in their 
requests, including termination, or
    (2) Their DoN assignment or responsibilities.
    (b) Covered USG attorneys to whom permission is given to engage in 
the outside practice of law will annually resubmit an application to 
continue the practice, with current information, by October 1 each year.



      Sec. Appendix to Subpart D of Part 776--Outside Law Practice 
                       Questionnaire and Request.

DATE
From: (Attorney Requesting Outside Practice of Law)
To: Deputy Chief Judge, Navy-Marine Corps Trial Judiciary/Deputy 
          Assistant Judge Advocate General (Administrative Law)/Head, 
          Judge Advocate Research and Civil Law Branch, Judge Advocate 
          Division
Via: (Chain of Command)
Subj: OUTSIDE PRACTICE OF LAW REQUEST ICO (Name of attorney)

                           1. Background Data

    a. Name, rank/pay grade:
    b. Current command and position:
    c. Description of duties and responsibilities (including collateral 
duty assignments):
    d. Describe any DoN responsibilities that require you to act 
officially in any way with respect to any matters in which your 
anticipated outside employer or clients have interests:
    e. Normal DoN working hours:

             2. Proposed Outside Practice of Law Information

    a. Mailing address and phone number:
    b. Working hours:
    c. Number of hours per month:
    d. Description of proposed practice (indicate the type of clientele 
you anticipate serving, as well as the type of work that you will 
perform):
    e. Describe whether you will be a sole practitioner, or collocated, 
renting from, or otherwise affiliated or associated in any matter with 
other attorneys:
    f. Describe, in detail, any anticipated representation of any client 
before the United States or in any matter in which the United States has 
an interest:
    g. Describe the manner in which you will be compensated (hourly, by 
case, fixed salary, and how much of your fees will be related in any way 
to any representational services before the Federal Government by 
yourself or by another):
    h. Provide a description of any military-related work to which your 
proposed practice may be applied including, but not limited to, courts-
martial, administrative discharge boards, claims against the Department 
of the Navy, and so forth:

     3. Attorneys With Whom Outside Practice Is/Will Be Affiliated, 
                   Collocated, or Otherwise Associated

    a. Identify the type of organization with which you will be 
affiliated (sole practitioner, partnership, and so forth), the number of 
attorneys in the firm, and the names of the attorneys with whom you will 
be working:
    b. Identify the attorneys in the firm who are associated in any way 
with the military legal community (e.g., active, Reserve, or retired 
judge advocate), and specify their relationship to any of the military 
services:
    c. Identify the nature of your affiliation with the organization 
with which you intend to be associated (staff attorney, partner, 
associate, space-sharing, rental arrangement, other):
    d. Provide a brief description of the type of legal practice engaged 
in by the organization with which you intend to affiliate, including a 
general description of the practice, as well as the clientele:
    e. Describe the clientele who are military personnel or their 
dependents, and the number and type of cases handled:
    f. Describe whether your affiliates will refer clients to you, and 
the anticipated frequency of referral:
    g. Describe
    (1) Whether your associates will assist or represent clients with 
interests adverse to the United States or in matters in which the United 
States has an interest:

[[Page 285]]

    (2) Those clients, matters, and interests in detail:
    (3) What support will you provide in such cases:
    (4) What compensation, in any form, you will receive related to such 
cases:

           4. Desired Date of Commencement of Outside Practice

    a. Identify if this is your first request or an annual submission 
for re-approval:
    b. If this is an annual submission, indicate when your outside 
practice began:
    c. If this is your first request, indicate when you wish to begin 
your practice:

5. Conflicts of Interest and Professional Conduct (Include the following 
                       statement in your request)

    ``I certify that I have read and understand my obligations under 
enclosure (3) to JAGINST 5803.1 (series), DOD 5500.7-R, Joint Ethics 
Regulation, JAGMAN Chapter VII, the Legal Assistance Manual, and Title 
18, U.S.C. 203, 205, and 209. I certify that no apparent or actual 
conflict of interests or professional improprieties are presented by my 
proposed initiation/continuation of an outside law practice. I also 
certify that if an apparent conflict of interest or impropriety arises 
during such outside practice, I will report the circumstances to my 
supervisory attorney immediately.''
    6. Privacy Act Statement. I understand that the preceding 
information is gathered per the Privacy Act as follows:
    Authority: Information is solicited per Executive Order 12731 and 
DOD 5500.7-R.
    Primary purpose: To determine whether outside employment presents 
conflicts of interest with official duties.
    Routine use: Information will be treated as sensitive and used to 
determine propriety of outside employment.
    Disclosure: Disclosure is voluntary. Failure to provide the 
requested information will preclude the Judge Advocate General from 
approving your outside practice of law request.

                                Signature



                Subpart E_Relations With Non-USG Counsel



Sec.  776.94  Relations with Non-USG Counsel.

    (a) This part applies to non-USG attorneys representing individuals 
in any matter for which the JAG is charged with supervising the 
provision of legal services, including but not limited to, courts-
martial, administrative separation boards or hearings, boards of 
inquiry, and disability evaluation proceedings. Employment of a non-USG 
attorney by an individual client does not alter the responsibilities of 
a covered USG attorney to that client. Although a non-USG attorney is 
individually responsible for adhering to the contents of this part, the 
covered USG attorney detailed or otherwise assigned to that client shall 
take reasonable steps to inform the non-USG attorney:
    (1) Of the contents of this part;
    (2) That subpart B of this part apply to civilian counsel practicing 
before military tribunals, courts, boards, or in any legal matter under 
the supervision of the JAG as a condition of such practice; and
    (3) That subpart B of this part take precedence over other rules of 
professional conduct that might otherwise apply, but that the attorney 
may still be subject to rules and discipline established by the 
attorney's Federal, state, or local bar association or other licensing 
authority.
    (b) If an individual client designates a non-USG attorney as chief 
counsel, the detailed USG attorney must defer to civilian counsel in any 
conflict over trial tactics. If, however, the attorneys have ``co-
counsel'' status, then conflict in proposed trial tactics requires the 
client to be consulted to resolve the conflict.
    (c) If the non-USG attorney has, in the opinion of the involved 
covered USG attorney, acted or failed to act in a manner which is 
contrary to subpart B of this part, the matter should be brought to the 
attention of the civilian attorney. If the matter is not resolved with 
the civilian counsel, the covered USG attorney should discuss the 
situation with the supervisory attorney. If not resolved between 
counsel, the client must be informed of the matter by the covered USG 
attorney. If, after being apprised of possible misconduct, the client 
approves of the questioned conduct, the covered USG attorney shall 
attempt to withdraw from the case in accordance with Sec.  776.35 of 
this part. The client shall be informed of such intent to withdraw prior 
to action by the covered USG attorney.

Subpart F [Reserved]

[[Page 286]]

                        PARTS 777	799 [RESERVED]

[[Page 287]]



                              FINDING AIDS




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

  A list of CFR titles, subtitles, chapters, subchapters and parts and 
an alphabetical list of agencies publishing in the CFR are included in 
the CFR Index and Finding Aids volume to the Code of Federal Regulations 
which is published separately and revised annually.

  Table of CFR Titles and Chapters
  Alphabetical List of Agencies Appearing in the CFR
  List of CFR Sections Affected

[[Page 289]]



                    Table of CFR Titles and Chapters




                      (Revised as of July 1, 2020)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
       III  Administrative Conference of the United States (Parts 
                300--399)
        IV  Miscellaneous Agencies (Parts 400--599)
        VI  National Capital Planning Commission (Parts 600--699)

                    Title 2--Grants and Agreements

            Subtitle A--Office of Management and Budget Guidance 
                for Grants and Agreements
         I  Office of Management and Budget Governmentwide 
                Guidance for Grants and Agreements (Parts 2--199)
        II  Office of Management and Budget Guidance (Parts 200--
                299)
            Subtitle B--Federal Agency Regulations for Grants and 
                Agreements
       III  Department of Health and Human Services (Parts 300--
                399)
        IV  Department of Agriculture (Parts 400--499)
        VI  Department of State (Parts 600--699)
       VII  Agency for International Development (Parts 700--799)
      VIII  Department of Veterans Affairs (Parts 800--899)
        IX  Department of Energy (Parts 900--999)
         X  Department of the Treasury (Parts 1000--1099)
        XI  Department of Defense (Parts 1100--1199)
       XII  Department of Transportation (Parts 1200--1299)
      XIII  Department of Commerce (Parts 1300--1399)
       XIV  Department of the Interior (Parts 1400--1499)
        XV  Environmental Protection Agency (Parts 1500--1599)
     XVIII  National Aeronautics and Space Administration (Parts 
                1800--1899)
        XX  United States Nuclear Regulatory Commission (Parts 
                2000--2099)
      XXII  Corporation for National and Community Service (Parts 
                2200--2299)
     XXIII  Social Security Administration (Parts 2300--2399)
      XXIV  Department of Housing and Urban Development (Parts 
                2400--2499)
       XXV  National Science Foundation (Parts 2500--2599)
      XXVI  National Archives and Records Administration (Parts 
                2600--2699)

[[Page 290]]

     XXVII  Small Business Administration (Parts 2700--2799)
    XXVIII  Department of Justice (Parts 2800--2899)
      XXIX  Department of Labor (Parts 2900--2999)
       XXX  Department of Homeland Security (Parts 3000--3099)
      XXXI  Institute of Museum and Library Services (Parts 3100--
                3199)
     XXXII  National Endowment for the Arts (Parts 3200--3299)
    XXXIII  National Endowment for the Humanities (Parts 3300--
                3399)
     XXXIV  Department of Education (Parts 3400--3499)
      XXXV  Export-Import Bank of the United States (Parts 3500--
                3599)
     XXXVI  Office of National Drug Control Policy, Executive 
                Office of the President (Parts 3600--3699)
    XXXVII  Peace Corps (Parts 3700--3799)
     LVIII  Election Assistance Commission (Parts 5800--5899)
       LIX  Gulf Coast Ecosystem Restoration Council (Parts 5900--
                5999)

                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  Government Accountability Office (Parts 1--199)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
        IV  Office of Personnel Management and Office of the 
                Director of National Intelligence (Parts 1400--
                1499)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Parts 2100--2199)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Parts 3200--
                3299)
     XXIII  Department of Energy (Parts 3300--3399)
      XXIV  Federal Energy Regulatory Commission (Parts 3400--
                3499)
       XXV  Department of the Interior (Parts 3500--3599)
      XXVI  Department of Defense (Parts 3600--3699)

[[Page 291]]

    XXVIII  Department of Justice (Parts 3800--3899)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  U.S. International Development Finance Corporation 
                (Parts 4300--4399)
     XXXIV  Securities and Exchange Commission (Parts 4400--4499)
      XXXV  Office of Personnel Management (Parts 4500--4599)
     XXXVI  Department of Homeland Security (Parts 4600--4699)
    XXXVII  Federal Election Commission (Parts 4700--4799)
        XL  Interstate Commerce Commission (Parts 5000--5099)
       XLI  Commodity Futures Trading Commission (Parts 5100--
                5199)
      XLII  Department of Labor (Parts 5200--5299)
     XLIII  National Science Foundation (Parts 5300--5399)
       XLV  Department of Health and Human Services (Parts 5500--
                5599)
      XLVI  Postal Rate Commission (Parts 5600--5699)
     XLVII  Federal Trade Commission (Parts 5700--5799)
    XLVIII  Nuclear Regulatory Commission (Parts 5800--5899)
      XLIX  Federal Labor Relations Authority (Parts 5900--5999)
         L  Department of Transportation (Parts 6000--6099)
       LII  Export-Import Bank of the United States (Parts 6200--
                6299)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Parts 6400--6499)
        LV  National Endowment for the Arts (Parts 6500--6599)
       LVI  National Endowment for the Humanities (Parts 6600--
                6699)
      LVII  General Services Administration (Parts 6700--6799)
     LVIII  Board of Governors of the Federal Reserve System 
                (Parts 6800--6899)
       LIX  National Aeronautics and Space Administration (Parts 
                6900--6999)
        LX  United States Postal Service (Parts 7000--7099)
       LXI  National Labor Relations Board (Parts 7100--7199)
      LXII  Equal Employment Opportunity Commission (Parts 7200--
                7299)
     LXIII  Inter-American Foundation (Parts 7300--7399)
      LXIV  Merit Systems Protection Board (Parts 7400--7499)
       LXV  Department of Housing and Urban Development (Parts 
                7500--7599)
      LXVI  National Archives and Records Administration (Parts 
                7600--7699)
     LXVII  Institute of Museum and Library Services (Parts 7700--
                7799)
    LXVIII  Commission on Civil Rights (Parts 7800--7899)
      LXIX  Tennessee Valley Authority (Parts 7900--7999)
       LXX  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 8000--8099)
      LXXI  Consumer Product Safety Commission (Parts 8100--8199)
    LXXIII  Department of Agriculture (Parts 8300--8399)

[[Page 292]]

     LXXIV  Federal Mine Safety and Health Review Commission 
                (Parts 8400--8499)
     LXXVI  Federal Retirement Thrift Investment Board (Parts 
                8600--8699)
    LXXVII  Office of Management and Budget (Parts 8700--8799)
      LXXX  Federal Housing Finance Agency (Parts 9000--9099)
   LXXXIII  Special Inspector General for Afghanistan 
                Reconstruction (Parts 9300--9399)
    LXXXIV  Bureau of Consumer Financial Protection (Parts 9400--
                9499)
    LXXXVI  National Credit Union Administration (Parts 9600--
                9699)
     XCVII  Department of Homeland Security Human Resources 
                Management System (Department of Homeland 
                Security--Office of Personnel Management) (Parts 
                9700--9799)
    XCVIII  Council of the Inspectors General on Integrity and 
                Efficiency (Parts 9800--9899)
      XCIX  Military Compensation and Retirement Modernization 
                Commission (Parts 9900--9999)
         C  National Council on Disability (Parts 10000--10049)
        CI  National Mediation Board (Part 10101)

                      Title 6--Domestic Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 1--199)
         X  Privacy and Civil Liberties Oversight Board (Parts 
                1000--1099)

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Nutrition Service, Department of Agriculture 
                (Parts 210--299)
       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Agricultural Marketing Service (Federal Grain 
                Inspection Service, Fair Trade Practices Program), 
                Department of Agriculture (Parts 800--899)

[[Page 293]]

        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  [Reserved]
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
        XX  [Reserved]
       XXV  Office of Advocacy and Outreach, Department of 
                Agriculture (Parts 2500--2599)
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy Policy and New Uses, Department of 
                Agriculture (Parts 2900--2999)
       XXX  Office of the Chief Financial Officer, Department of 
                Agriculture (Parts 3000--3099)
      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  National Institute of Food and Agriculture (Parts 
                3400--3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)

[[Page 294]]

                    Title 8--Aliens and Nationality

         I  Department of Homeland Security (Parts 1--499)
         V  Executive Office for Immigration Review, Department of 
                Justice (Parts 1000--1399)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)
        II  Agricultural Marketing Service (Federal Grain 
                Inspection Service, Fair Trade Practices Program), 
                Department of Agriculture (Parts 200--299)
       III  Food Safety and Inspection Service, Department of 
                Agriculture (Parts 300--599)

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
      XIII  Nuclear Waste Technical Review Board (Parts 1300--
                1399)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Parts 1800--1899)

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)
        II  Election Assistance Commission (Parts 9400--9499)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  (Parts 500--599) [Reserved]
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  (Parts 900--999)[Reserved]
         X  Bureau of Consumer Financial Protection (Parts 1000--
                1099)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XII  Federal Housing Finance Agency (Parts 1200--1299)
      XIII  Financial Stability Oversight Council (Parts 1300--
                1399)

[[Page 295]]

       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Department of the Treasury (Parts 1500--1599)
       XVI  Office of Financial Research (Parts 1600--1699)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700--1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)
        IV  Emergency Steel Guarantee Loan Board (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board (Parts 
                500--599)

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)
        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--1199)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Industry and Security, Department of 
                Commerce (Parts 700--799)
      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  National Technical Information Service, Department of 
                Commerce (Parts 1100--1199)

[[Page 296]]

      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399) [Reserved]

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)
      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  U.S. Customs and Border Protection, Department of 
                Homeland Security; Department of the Treasury 
                (Parts 0--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  U.S. Immigration and Customs Enforcement, Department 
                of Homeland Security (Parts 400--599) [Reserved]

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)

[[Page 297]]

        IV  Employees' Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 1000--1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  Broadcasting Board of Governors (Parts 500--599)
       VII  Overseas Private Investment Corporation (Parts 700--
                799)
        IX  Foreign Service Grievance Board (Parts 900--999)
         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
      XIII  Millennium Challenge Corporation (Parts 1300--1399)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)

[[Page 298]]

        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
        IV  Office of Housing and Office of Multifamily Housing 
                Assistance Restructuring, Department of Housing 
                and Urban Development (Parts 400--499)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)
        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)
      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--1699)
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XV  Emergency Mortgage Insurance and Loan Programs, 
                Department of Housing and Urban Development (Parts 
                2700--2799) [Reserved]
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
      XXIV  Board of Directors of the HOPE for Homeowners Program 
                (Parts 4000--4099) [Reserved]
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

[[Page 299]]

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--899)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900--999)
        VI  Office of the Assistant Secretary, Indian Affairs, 
                Department of the Interior (Parts 1000--1199)
       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Parts 1200--1299)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--End)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Alcohol and Tobacco Tax and Trade Bureau, Department 
                of the Treasury (Parts 1--399)
        II  Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
                Department of Justice (Parts 400--799)

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--299)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)
      VIII  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 800--899)
        IX  National Crime Prevention and Privacy Compact Council 
                (Parts 900--999)
        XI  Department of Justice and Department of State (Parts 
                1100--1199)

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)

[[Page 300]]

        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Employee Benefits Security Administration, Department 
                of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Bureau of Safety and Environmental Enforcement, 
                Department of the Interior (Parts 200--299)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
         V  Bureau of Ocean Energy Management, Department of the 
                Interior (Parts 500--599)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)
       XII  Office of Natural Resources Revenue, Department of the 
                Interior (Parts 1200--1299)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)

[[Page 301]]

      VIII  Office of Investment Security, Department of the 
                Treasury (Parts 800--899)
        IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)
         X  Financial Crimes Enforcement Network, Department of 
                the Treasury (Parts 1000--1099)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)
         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)
       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Department of Defense, Defense Logistics Agency (Parts 
                1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
      XVII  Office of the Director of National Intelligence (Parts 
                1700--1799)
     XVIII  National Counterintelligence Center (Parts 1800--1899)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)
    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Corps of Engineers, Department of the Army, Department 
                of Defense (Parts 200--399)
        IV  Saint Lawrence Seaway Development Corporation, 
                Department of Transportation (Parts 400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)

[[Page 302]]

       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Career, Technical, and Adult Education, 
                Department of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599) 
                [Reserved]
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
       VII  Office of Educational Research and Improvement, 
                Department of Education (Parts 700--799) 
                [Reserved]
            Subtitle C--Regulations Relating to Education
        XI  (Parts 1100--1199) [Reserved]
       XII  National Council on Disability (Parts 1200--1299)

                          Title 35 [Reserved]

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
        VI  [Reserved]
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
         X  Presidio Trust (Parts 1000--1099)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
        XV  Oklahoma City National Memorial Trust (Parts 1500--
                1599)
       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

             Title 37--Patents, Trademarks, and Copyrights

         I  United States Patent and Trademark Office, Department 
                of Commerce (Parts 1--199)
        II  U.S. Copyright Office, Library of Congress (Parts 
                200--299)
       III  Copyright Royalty Board, Library of Congress (Parts 
                300--399)
        IV  National Institute of Standards and Technology, 
                Department of Commerce (Parts 400--599)

[[Page 303]]

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--199)
        II  Armed Forces Retirement Home (Parts 200--299)

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Regulatory Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--1099)
        IV  Environmental Protection Agency and Department of 
                Justice (Parts 1400--1499)
         V  Council on Environmental Quality (Parts 1500--1599)
        VI  Chemical Safety and Hazard Investigation Board (Parts 
                1600--1699)
       VII  Environmental Protection Agency and Department of 
                Defense; Uniform National Discharge Standards for 
                Vessels of the Armed Forces (Parts 1700--1799)
      VIII  Gulf Coast Ecosystem Restoration Council (Parts 1800--
                1899)

          Title 41--Public Contracts and Property Management

            Subtitle A--Federal Procurement Regulations System 
                [Note]
            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
        61  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 61-1--61-999)
   62--100  [Reserved]
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       102  Federal Management Regulation (Parts 102-1--102-299)
  103--104  [Reserved]
       105  General Services Administration (Parts 105-1--105-999)
       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)
  129--200  [Reserved]
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]

[[Page 304]]

            Subtitle E--Federal Information Resources Management 
                Regulations System [Reserved]
            Subtitle F--Federal Travel Regulation System
       300  General (Parts 300-1--300-99)
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Part 303-1--303-99)
       304  Payment of Travel Expenses from a Non-Federal Source 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
   II--III  [Reserved]
        IV  Centers for Medicare & Medicaid Services, Department 
                of Health and Human Services (Parts 400--699)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1099)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 400--999)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10099)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency, Department of 
                Homeland Security (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare
        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)

[[Page 305]]

       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899)
        IX  Denali Commission (Parts 900--999)
         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       XII  Corporation for National and Community Service (Parts 
                1200--1299)
      XIII  Administration for Children and Families, Department 
                of Health and Human Services (Parts 1300--1399)
       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission of Fine Arts (Parts 2100--2199)
     XXIII  Arctic Research Commission (Parts 2300--2399)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Homeland Security (Parts 400--499)
        IV  Federal Maritime Commission (Parts 500--599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)
        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)
       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)

[[Page 306]]

        IV  National Telecommunications and Information 
                Administration, Department of Commerce, and 
                National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 400--499)
         V  The First Responder Network Authority (Parts 500--599)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Defense Acquisition Regulations System, Department of 
                Defense (Parts 200--299)
         3  Department of Health and Human Services (Parts 300--
                399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  Agency for International Development (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)
        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management, Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  Broadcasting Board of Governors (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)
        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        30  Department of Homeland Security, Homeland Security 
                Acquisition Regulation (HSAR) (Parts 3000--3099)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199) [Reserved]
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement (Parts 5300--5399) 
                [Reserved]

[[Page 307]]

        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)
        57  African Development Foundation (Parts 5700--5799)
        61  Civilian Board of Contract Appeals, General Services 
                Administration (Parts 6100--6199)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Pipeline and Hazardous Materials Safety 
                Administration, Department of Transportation 
                (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300--399)
        IV  Coast Guard, Department of Homeland Security (Parts 
                400--499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board (Parts 1000--1399)
        XI  Research and Innovative Technology Administration, 
                Department of Transportation (Parts 1400--1499) 
                [Reserved]
       XII  Transportation Security Administration, Department of 
                Homeland Security (Parts 1500--1699)

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--399)
        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)
         V  Marine Mammal Commission (Parts 500--599)

[[Page 308]]

        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

[[Page 309]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of July 1, 2020)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Conference of the United States    1, III
Advisory Council on Historic Preservation         36, VIII
Advocacy and Outreach, Office of                  7, XXV
Afghanistan Reconstruction, Special Inspector     5, LXXXIII
     General for
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development              2, VII; 22, II
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, VIII, IX, X, XI; 9, 
                                                  II
Agricultural Research Service                     7, V
Agriculture, Department of                        2, IV; 5, LXXIII
  Advocacy and Outreach, Office of                7, XXV
  Agricultural Marketing Service                  7, I, VIII, IX, X, XI; 9, 
                                                  II
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Chief Financial Officer, Office of              7, XXX
  Commodity Credit Corporation                    7, XIV
  Economic Research Service                       7, XXXVII
  Energy Policy and New Uses, Office of           2, IX; 7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Food and Nutrition Service                      7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  National Institute of Food and Agriculture      7, XXXIV
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Procurement and Property Management, Office of  7, XXXII
  Rural Business-Cooperative Service              7, XVIII, XLII
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV
  Rural Utilities Service                         7, XVII, XVIII, XLII
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force, Department of                          32, VII
  Federal Acquisition Regulation Supplement       48, 53
Air Transportation Stabilization Board            14, VI
Alcohol and Tobacco Tax and Trade Bureau          27, I
Alcohol, Tobacco, Firearms, and Explosives,       27, II
     Bureau of
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
American Indians, Office of the Special Trustee   25, VII
Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX
Architectural and Transportation Barriers         36, XI
   Compliance Board
[[Page 310]]

Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI; 38, II
Army, Department of                               32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase from People Who Are
Broadcasting Board of Governors                   22, V
  Federal Acquisition Regulation                  48, 19
Career, Technical, and Adult Education, Office    34, IV
     of
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chemical Safety and Hazard Investigation Board    40, VI
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X, XIII
Civil Rights, Commission on                       5, LXVIII; 45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce, Department of                           2, XIII; 44, IV; 50, VI
  Census Bureau                                   15, I
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 13
  Foreign-Trade Zones Board                       15, IV
  Industry and Security, Bureau of                15, VII
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II; 37, IV
  National Marine Fisheries Service               50, II, IV
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Technical Information Service          15, XI
  National Telecommunications and Information     15, XXIII; 47, III, IV
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office, United States      37, I
  Secretary of Commerce, Office of                15, Subtitle A
Commercial Space Transportation                   14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretary for
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Financial Protection Bureau              5, LXXXIV; 12, X
Consumer Product Safety Commission                5, LXXI; 16, II
Copyright Royalty Board                           37, III
Corporation for National and Community Service    2, XXII; 45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council of the Inspectors General on Integrity    5, XCVIII
     and Efficiency
Council on Environmental Quality                  40, V
Court Services and Offender Supervision Agency    5, LXX; 28, VIII
     for the District of Columbia
Customs and Border Protection                     19, I
Defense, Department of                            2, XI; 5, XXVI; 32, 
                                                  Subtitle A; 40, VII
  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  Army Department                                 32, V; 33, II; 36, III; 
                                                  48, 51
  Defense Acquisition Regulations System          48, 2
  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54

[[Page 311]]

  Engineers, Corps of                             33, II; 36, III
  National Imagery and Mapping Agency             32, I
  Navy, Department of                             32, VI; 48, 52
  Secretary of Defense, Office of                 2, XI; 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
Denali Commission                                 45, IX
Disability, National Council on                   5, C; 34, XII
District of Columbia, Court Services and          5, LXX; 28, VIII
     Offender Supervision Agency for the
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          2, XXXIV; 5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Career, Technical, and Adult Education, Office  34, IV
       of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
Educational Research and Improvement, Office of   34, VII
Election Assistance Commission                    2, LVIII; 11, II
Elementary and Secondary Education, Office of     34, II
Emergency Oil and Gas Guaranteed Loan Board       13, V
Emergency Steel Guarantee Loan Board              13, IV
Employee Benefits Security Administration         29, XXV
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Policy, National Commission for        1, IV
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             2, IX; 5, XXIII; 10, II, 
                                                  III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Environmental Protection Agency                   2, XV; 5, LIV; 40, I, IV, 
                                                  VII
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                2, Subtitle A; 5, III, 
                                                  LXXVII; 14, VI; 48, 99
  National Drug Control Policy, Office of         2, XXXVI; 21, III
  National Security Council                       32, XXI; 47, II
  Presidential Documents                          3
  Science and Technology Policy, Office of        32, XXIV; 47, II
  Trade Representative, Office of the United      15, XX
       States
Export-Import Bank of the United States           2, XXXV; 5, LII; 12, IV
Family Assistance, Office of                      45, II

[[Page 312]]

Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               31, IX
Federal Communications Commission                 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       5, XXXVII; 11, I
Federal Emergency Management Agency               44, I
Federal Employees Group Life Insurance Federal    48, 21
     Acquisition Regulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Agency                    5, LXXX; 12, XII
Federal Labor Relations Authority                 5, XIV, XLIX; 22, XIV
Federal Law Enforcement Training Center           31, VII
Federal Management Regulation                     41, 102
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration       49, III
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Financial Crimes Enforcement Network              31, X
Financial Research Office                         12, XVI
Financial Stability Oversight Council             12, XIII
Fine Arts, Commission of                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Food and Drug Administration                      21, I
Food and Nutrition Service                        7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV
Forest Service                                    36, II
General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  Federal Acquisition Regulation                  48, 5
  Federal Management Regulation                   41, 102
  Federal Property Management Regulations         41, 101
  Federal Travel Regulation System                41, Subtitle F
  General                                         41, 300

[[Page 313]]

  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302
  Temporary Duty (TDY) Travel Allowances          41, 301
Geological Survey                                 30, IV
Government Accountability Office                  4, I
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Gulf Coast Ecosystem Restoration Council          2, LIX; 40, VIII
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          2, III; 5, XLV; 45, 
                                                  Subtitle A
  Centers for Medicare & Medicaid Services        42, IV
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X, XIII
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Indian Health Service                           25, V
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Homeland Security, Department of                  2, XXX; 5, XXXVI; 6, I; 8, 
                                                  I
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection                   19, I
  Federal Emergency Management Agency             44, I
  Human Resources Management and Labor Relations  5, XCVII
       Systems
  Immigration and Customs Enforcement Bureau      19, IV
  Transportation Security Administration          49, XII
HOPE for Homeowners Program, Board of Directors   24, XXIV
     of
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Housing and Urban Development, Department of      2, XXIV; 5, LXV; 24, 
                                                  Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Housing, Office of, and Multifamily Housing     24, IV
       Assistance Restructuring, Office of
  Inspector General, Office of                    24, XII
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Immigration and Customs Enforcement Bureau        19, IV
Immigration Review, Executive Office for          8, V
Independent Counsel, Office of                    28, VII
Independent Counsel, Offices of                   28, VI
Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
     Secretary
Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V
Industry and Security, Bureau of                  15, VII
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
   Archives and Records Administration
[[Page 314]]

Inspector General
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII, XV
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior, Department of                           2, XIV
  American Indians, Office of the Special         25, VII
       Trustee
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Natural Resource Revenue, Office of             30, XII
  Ocean Energy Management, Bureau of              30, V
  Reclamation, Bureau of                          43, I
  Safety and Enforcement Bureau, Bureau of        30, II
  Secretary of the Interior, Office of            2, XIV; 43, Subtitle A
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, United States Agency   22, II
     for
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
International Development Finance Corporation,    5, XXXIII; 22, VII
     U.S.
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
Investment Security, Office of                    31, VIII
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice, Department of                            2, XXVIII; 5, XXVIII; 28, 
                                                  I, XI; 40, IV
  Alcohol, Tobacco, Firearms, and Explosives,     27, II
       Bureau of
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             31, IX
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration Review, Executive Office for        8, V
  Independent Counsel, Offices of                 28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor, Department of                              2, XXIX; 5, XLII
  Employee Benefits Security Administration       29, XXV
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Employment Standards Administration             20, VI
  Federal Acquisition Regulation                  48, 29
  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Standards, Office of           29, II, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Public Contracts                                41, 50

[[Page 315]]

  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training Service,      41, 61; 20, IX
       Office of the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I, VII
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Libraries and Information Science, National       45, XVII
     Commission on
Library of Congress                               36, VII
  Copyright Royalty Board                         37, III
  U.S. Copyright Office                           37, II
Management and Budget, Office of                  5, III, LXXVII; 14, VI; 
                                                  48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II, LXIV
Micronesian Status Negotiations, Office for       32, XXVII
Military Compensation and Retirement              5, XCIX
     Modernization Commission
Millennium Challenge Corporation                  22, XIII
Mine Safety and Health Administration             30, I
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Morris K. Udall Scholarship and Excellence in     36, XVI
     National Environmental Policy Foundation
Museum and Library Services, Institute of         2, XXXI
National Aeronautics and Space Administration     2, XVIII; 5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National and Community Service, Corporation for   2, XXII; 45, XII, XXV
National Archives and Records Administration      2, XXVI; 5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Capital Planning Commission              1, IV, VI
National Counterintelligence Center               32, XVIII
National Credit Union Administration              5, LXXXVI; 12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
National Drug Control Policy, Office of           2, XXXVI; 21, III
National Endowment for the Arts                   2, XXXII
National Endowment for the Humanities             2, XXXIII
National Foundation on the Arts and the           45, XI
     Humanities
National Geospatial-Intelligence Agency           32, I
National Highway Traffic Safety Administration    23, II, III; 47, VI; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute of Food and Agriculture        7, XXXIV
National Institute of Standards and Technology    15, II; 37, IV
National Intelligence, Office of Director of      5, IV; 32, XVII
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV
National Mediation Board                          5, CI; 29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       2, XXV; 5, XLIII; 45, VI
  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI
National Security Council and Office of Science   47, II
     and Technology Policy
National Technical Information Service            15, XI
National Telecommunications and Information       15, XXIII; 47, III, IV, V
     Administration
National Transportation Safety Board              49, VIII

[[Page 316]]

Natural Resource Revenue, Office of               30, XII
Natural Resources Conservation Service            7, VI
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy, Department of                               32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Northeast Interstate Low-Level Radioactive Waste  10, XVIII
     Commission
Nuclear Regulatory Commission                     2, XX; 5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Ocean Energy Management, Bureau of                30, V
Oklahoma City National Memorial Trust             36, XV
Operations Office                                 7, XXVIII
Patent and Trademark Office, United States        37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
     Certain Employees
Peace Corps                                       2, XXXVII; 22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, IV, XXXV; 45, VIII
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
  Human Resources Management and Labor Relations  5, XCVII
       Systems, Department of Homeland Security
Pipeline and Hazardous Materials Safety           49, I
     Administration
Postal Regulatory Commission                      5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI
President's Commission on White House             1, IV
     Fellowships
Presidential Documents                            3
Presidio Trust                                    36, X
Prisons, Bureau of                                28, V
Privacy and Civil Liberties Oversight Board       6, X
Procurement and Property Management, Office of    7, XXXII
Public Contracts, Department of Labor             41, 50
Public Health Service                             42, I
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Refugee Resettlement, Office of                   45, IV
Relocation Allowances                             41, 302
Research and Innovative Technology                49, XI
     Administration
Rural Business-Cooperative Service                7, XVIII, XLII
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV
Rural Utilities Service                           7, XVII, XVIII, XLII
Safety and Environmental Enforcement, Bureau of   30, II
Saint Lawrence Seaway Development Corporation     33, IV
Science and Technology Policy, Office of          32, XXIV
Science and Technology Policy, Office of, and     47, II
     National Security Council
Secret Service                                    31, IV
Securities and Exchange Commission                5, XXXIV; 17, II
Selective Service System                          32, XVI
Small Business Administration                     2, XXVII; 13, I
Smithsonian Institution                           36, V
Social Security Administration                    2, XXIII; 20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
     Office of
State, Department of                              2, VI; 22, I; 28, XI
  Federal Acquisition Regulation                  48, 6

[[Page 317]]

Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Tennessee Valley Authority                        5, LXIX; 18, XIII
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     2, XII; 5, L
  Commercial Space Transportation                 14, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II
  Federal Motor Carrier Safety Administration     49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 47, IV; 49, V
  Pipeline and Hazardous Materials Safety         49, I
       Administration
  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Transportation Statistics Bureau                49, XI
Transportation, Office of                         7, XXXIII
Transportation Security Administration            49, XII
Transportation Statistics Bureau                  49, XI
Travel Allowances, Temporary Duty (TDY)           41, 301
Treasury, Department of the                       2, X; 5, XXI; 12, XV; 17, 
                                                  IV; 31, IX
  Alcohol and Tobacco Tax and Trade Bureau        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs and Border Protection                   19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Claims Collection Standards             31, IX
  Federal Law Enforcement Training Center         31, VII
  Financial Crimes Enforcement Network            31, X
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  Investment Security, Office of                  31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
Truman, Harry S. Scholarship Foundation           45, XVIII
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
U.S. Copyright Office                             37, II
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs, Department of                   2, VIII; 38, I
  Federal Acquisition Regulation                  48, 8
Veterans' Employment and Training Service,        41, 61; 20, IX
     Office of the Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I, VII
World Agricultural Outlook Board                  7, XXXVIII

[[Page 319]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations (CFR) that 
were made by documents published in the Federal Register since January 
1, 2015 are enumerated in the following list. Entries indicate the 
nature of the changes effected. Page numbers refer to Federal Register 
pages. The user should consult the entries for chapters, parts and 
subparts as well as sections for revisions.
For changes to this volume of the CFR prior to this listing, consult the 
annual edition of the monthly List of CFR Sections Affected (LSA). The 
LSA is available at www.govinfo.gov. For changes to this volume of the 
CFR prior to 2001, see the ``List of CFR Sections Affected, 1949-1963, 
1964-1972, 1973-1985, and 1986-2000'' published in 11 separate volumes. 
The ``List of CFR Sections Affected 1986-2000'' is available at 
www.govinfo.gov.

                                  2015

32 CFR
                                                                   80 FR
                                                                    Page
Chapter VI
706.2 Table One amended.....................................15166, 32002
    Table Three amended............................................15166
    Table Four amended...............................15166, 19534, 28555
    Table Five amended......................................28832, 32002
767 Revised........................................................52594
776 Revised........................................................68389

                                  2016

32 CFR
                                                                   81 FR
                                                                    Page
Chapter VI
706.2 Table One amended..............9, 3718, 43078, 47707, 54738, 69678
    Table Two amended..............................................36464
    Table Three amended...........................9, 11117, 36464, 43078
    Table Four amended........9, 3718, 11117, 43078, 47706, 54738, 62009
    Table Five amended.......9, 3718, 11117, 36464, 47706, 47707, 54738, 
                                                            62009, 69678

                                  2017

32 CFR
                                                                   82 FR
                                                                    Page
Chapter VI
706.2 Table One amended..........3624, 31718, 35898, 48415, 48764, 60868
    Table Three amended.......................14606, 31718, 48415, 48764
    Table Four amended...3624, 14606, 30967, 31718, 35898, 48415, 48764, 
                                                                   60868
    Table Five amended...........3624, 14606, 30967, 35898, 48415, 60868

                                  2018

32 CFR
                                                                   83 FR
                                                                    Page
Chapter VI
701.1--701.12 (Subpart A) Removed..................................37433
701.13--701.39 (Subpart B) Removed.................................37433
701.40--701.55 (Subpart C) Removed.................................37433
701.56--701.59 (Subpart D) Removed.................................37433
701.61--701.67 (Subpart E) Removed.................................62249
706.2 Table Four amended...5537, 6458, 23809, 26211, 28375, 31047, 54674
    Table Five amended...........5537, 16199, 26211, 31047, 52769, 54674
    Table One amended...........16199, 23809, 26211, 28375, 52769, 54674
    Table Two amended..............................................23809
    Table Three amended............................................28375
733 Removed........................................................22852
734 Removed........................................................16200
736 Removed........................................................29001

[[Page 320]]

763 Removed........................................................31452

                                  2019

32 CFR
                                                                   84 FR
                                                                    Page
Subtitle A
Chapter VI
700 Removed........................................................11413
701.100--701.125 (Subpart F) Removed...............................43043
701.126--701.129 (Subpart G) Removed...............................43043
706 Removed..........................................................530
707 Removed..........................................................530
718 Removed........................................................11225
726 Removed........................................................17083
727 Removed........................................................37770
728 Removed........................................................11225
732 Removed........................................................11225
775 Heading revised................................................66589
775.6 (e) and (f) revised..........................................66589

                                  2020

   (Regulations published from January 1, 2020, through July 1, 2020)

32 CFR
                                                                   85 FR
                                                                    Page
Chapter VI
716 Removed........................................................18126


                                  [all]