[Title 32 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2021 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
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[[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]]
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 32 CFR 700.101
refers to title 32, part
700, section 101.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
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To determine whether a Code volume has been amended since its
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Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
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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
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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
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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
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not dropped in error.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
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This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed as
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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
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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.
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the daily Federal Register.
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the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
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INQUIRIES
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The e-CFR is a regularly updated, unofficial editorial compilation
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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)
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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
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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.
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\1\ Copies may be obtained if needed, from the Commanding Officer,
Naval Publication and Forms Center, 5801 Tabor Avenue, Philadelphia, PA
19120.
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(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\
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\2\ See footnote 1 of Sec. 720.5(b).
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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\
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\3\ See footnote 1 of Sec. 720.5(b).
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(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.
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\5\ See footnote 1 to Sec. 725.1.
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(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.
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\6\ See footnote 1 to Sec. 725.1.
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(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;
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\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.
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\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.
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\10\ See footnote 1 to Sec. 725.1.
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(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\
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\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.
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\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\
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\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.