[Federal Register Volume 59, Number 143 (Wednesday, July 27, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-17726]


[[Page Unknown]]

[Federal Register: July 27, 1994]


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Part II





Department of Defense





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Department of the Army



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32 CFR Part 516




Litigation; Final Rule
DEPARTMENT OF DEFENSE

Department of the Army

32 CFR Part 516

 
Litigation

AGENCY: Office of the Judge Advocate General, Litigation Division, DOD.

ACTION: Final rule.

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SUMMARY: This final rule revises 32 CFR Part 516, Litigation, Army 
Regulation 27-40, Litigation, previously published in the Federal 
Register as a proposed rule (57 FR 31852). This rule devotes a separate 
subpart to service of process (subpart B). The former ``investigative 
report'' is replaced by ``litigation report'' reflecting current usage 
(subpart C). A separate subpart is devoted to individual liability 
(subpart D). This rule also treats environmental litigation (subpart 
F), deletes coverage of criminal prosecutions in U.S. Magistrate and 
District Courts, delegates more authority to the installation level to 
determine release of information and appearance of witnesses (subpart 
G); and updates procedures to obtain release from local or state jury 
duty (subpart J).

EFFECTIVE DATE: This final rule is effective July 27, 1994.

ADDRESS: Office of the Judge Advocate General, ATTN: Litigation 
Division (DAJA-LT), 901 North Stuart Street, Arlington, VA 22203-1837.

FOR FURTHER INFORMATION CONTACT: MAJ Kelly Wheaton, (703) 696-1638.

SUPPLEMENTARY INFORMATION: This part prescribes policy and procedures 
for litigation in civilian court proceedings, including the following: 
providing representation of the Army and its personnel in Federal and 
state court proceedings; remedies for procurement fraud; environmental 
litigation; bankruptcy; prosecution in Federal court of offenses in 
which the Army has an interest; release of information and appearance 
of witnesses in criminal and civil court actions; procedures to follow 
when soldiers are summoned for jury duty; and, procedures for 
cooperation with the Office of Special Counsel. This part does not 
apply to DA or DOD proceedings such as courts-martial or administrative 
boards.

Executive Order 12291

    This final rule has been classified as nonmajor. The effect of the 
this rule on the economy will be less than $100 million.

Regulatory Flexibility Act

    This final rule has been reviewed with regard to the requirements 
of the Regulatory Flexibility Act of 1980. This final rule does not 
have a significant impact on small entities.

Paperwork Reduction Act

    This final rule does not contain new reporting or recordkeeping 
requirements subject to the approval by the Office of Management and 
Budget under the requirements of the Paperwork Reduction Act of 1980 
(44 U.S.C. 3507).
Kenneth L. Denton,
Army Federal Register Liaison Officer.

    Accordingly, 32 CFR Part 516 is revised as follows:

PART 516--LITIGATION

Subpart A--General

Sec.
Sec. 516.1  Purpose.
Sec. 516.2  References.
Sec. 516.3  Explanation of abbreviations and terms.
Sec. 516.4  Responsibilities.
Sec. 516.5  Restriction on contact with DOJ.
Sec. 516.6  Appearance as counsel.
Sec. 516.7  Mailing addresses.

Subpart B--Service of Process

Sec. 516.8  General.
Sec. 516.9  Service of criminal process within the United States.
Sec. 516.10  Service of civil process within the United States.
Sec. 516.11  Service of criminal process outside the United States.
Sec. 516.12  Service of civil process outside the United States.
Sec. 516.13  Assistance in serving process overseas.
Sec. 516.14  Service of process on DA or Secretary of Army.

Subpart C--Reporting Legal Proceedings to HQDA

Sec. 516.15  General.
Sec. 516.16  Individual and supervisory responsibilities upon 
commencement of legal proceedings.
Sec. 516.17  SJA or legal adviser responsibilities.
Sec. 516.18  Litigation alleging individual liability.
Sec. 516.19  Injunctive relief.
Sec. 516.20  Habeas corpus.
Sec. 516.21  Litigation against government contractors.
Sec. 516.22  Miscellaneous reporting requirements.
Sec. 516.23  Litigation reports.
Sec. 516.24  Preservation of evidence.
Sec. 516.25  DA Form 4.
Sec. 516.26  Unsworn declarations under penalty of perjury.

Subpart D--Individual Liability

Sec. 516.27  Scope.
Sec. 516.28  Policy.
Sec. 516.29  Federal statutes and regulations.
Sec. 516.30  Procedures for obtaining certification and DOJ 
representation.
Sec. 516.31  Private counsel at government expense.
Sec. 516.32  Requests for indemnification.

Subpart E--Legal Proceedings Initiated by the United States Medical 
Care and Property Claims

Sec. 516.33  General.
Sec. 516.34  Referral of medical care and property claims for 
litigation.
Sec. 516.35  Preparation of claims for litigation.

Assertion of Other Claims

Sec. 516.36  Referral to Litigation Division.
Sec. 516.37  Proceedings to repossess government real property or 
quarters or to collect delinquent rent.

Subpart F--Environmental Litigation

Sec. 516.38  Scope.
Sec. 516.39  Duties and procedures.

Subpart G--Release of Information and Appearance of Witness Scope

Sec. 516.40  General.
Sec. 516.41  Policy.
Sec. 516.42  Reference to HQDA.

Release of Records in Connection with litigation

Sec. 516.43  Release of Army and other agency records.
Sec. 516.44  Determination of release authorization.
Sec. 516.45  Records determined to be releasable.
Sec. 516.46  Records determined not to be releasable.

DA Personnel as Witnesses in Private Litigation

Sec. 516.47  Response to subpoenas, orders, or requests for 
witnesses.
Sec. 516.48  Official information.
Sec. 516.49  Expert witnesses.
Sec. 516.50  Interference with mission.

Litigation in Which the United States Has an Interest

Sec. 516.51  Response to subpoenas, orders, or requests for 
witnesses.
Sec. 516.52  Expert witnesses.
Sec. 516.53  News media and other inquiries.

Status, Travel, and Expenses of Witnesses

Sec. 516.54  Witnesses for the United States.
Sec. 516.55  Witnesses for a state or private litigant.
Sec. 516.56  Witnesses before foreign tribunals.

Subpart H--Remedies in Procurement Fraud and Corruption

Sec. 516.57  Purpose.
Sec. 516.58  Policies.
Sec. 516.59  Duties and procedures.
Sec. 516.60  Procurement fraud and irregularities programs at 
MACOMs.
Sec. 516.61  Reporting requirements.
Sec. 516.62  PFD and HQ USACIDC coordination.
Sec. 516.63  Coordination with DOJ.
Sec. 516.64  Comprehensive remedies plan.
Sec. 516.65  Litigation reports in civil recovery cases.
Sec. 516.66  Administrative and contractual actions.
Sec. 516.67  Overseas cases of fraud or corruption.
Sec. 516.68  Program Fraud Civil Remedies Act (PFCRA).

Subpart I--Cooperation With the Office of Special Counsel

Sec. 516.69  Introduction.
Sec. 516.70  Policy.
Sec. 516.71  Duties.
Sec. 516.72  Procedures.
Sec. 516.73  Assistance from HQDA.

Subpart J--Soldiers Summoned to serve on State and Local Juries

Sec. 516.74  General.
Sec. 516.75  Policy.
Sec. 516.76  Exemption determination authority.
Sec. 516.77  Procedures for exemption.
Sec. 516.78  Status, fees, and expenses.
Appendix A to Part 516--References.
Appendix B to Part 516--Mailing Addresses.
Appendix C to Part 516--Department of Defense Directive 5405.2, 
Release of Official Information in Litigation and Testimony by DOD 
Personnel as Witnesses.
Appendix D to Part 516--Department of Defense Directive 7050.5, 
Coordination of Remedies for Fraud and Corruption Related to 
Procurement Activities.
Appendix E to Part 516--Department of Defense Directive 5505.5, 
Implementation of the Program Fraud Civil Remedies Act.
Appendix F to part 516--Glossary.
Appendix G to Part 516--Figures.

    Authority: 5 U.S.C. 552; 10 U.S.C. 218, 1037, 1089, 1552, 1553, 
2036; 18 U.S.C. 219, 3401; 28 U.S.C. 50, 513, 515, 543; 31 U.S.C. 
3729 and 41 U.S.C. 51; 42 U.S.C. 290, 2651; 43 U.S.C. 666

Subpart A--General


Sec. 516.1  Purpose.

    (a) This part prescribes policies and procedures for the following:
    (l) Defensive and affirmative litigation in Federal and state 
civilian courts where the Army or DOD has an interest in the matter.
    (2) Proceedings before Federal or state administrative bodies, such 
as utility rate commissions.
    (3) Release of official information and testimony by DA personnel 
with regard to litigation.
    (4) Remedies for procurement fraud and corruption.
    (5) Environmental civil litigation and administrative proceedings.
    (6) Proceedings before the Office of Special Counsel.
    (b) This regulation does not apply to DA or DOD proceedings such as 
courts-martial or administrative boards.


Sec. 516.2  References.

    Applicable publications and forms are listed in Appendix A to this 
part.


Sec. 516.4  Explanation of abbreviations and terms.

    (a) The Glossary contains explanations of abbreviations and terms.
    (b) The masculine gender has been used throughout this regulation 
for simplicity and consistency. Any reference to the masculine gender 
is intended to include women.


Sec. 516.4  Responsibilities.

    (a) United States Department of Justice (DOJ). DOJ will defend 
litigation in domestic and foreign courts, against the United States, 
its agencies and instrumentalities, and employees whose official 
conduct is involved. The various U.S. Attorney Offices, under the 
oversight of the Attorney General, will conduct much of the 
representation.
    (b) The Judge Advocate General (TJAG). Subject to the ultimate 
control of litigation by DOJ (including the various U.S. Attorney 
Offices), and to the general oversight of litigation by the Army 
General Counsel, TJAG is responsible for litigation in which the Army 
has an interest. Only TJAG (or Chief, Litigation Division) will 
communicate to DOJ the Army's position with regard to settlement of a 
case.
    (c) Assistant Judge Advocate General For Civil Law and Litigation 
(AJAG-CL). Responsible to TJAG for litigation issues; supervises Chief, 
Litigation Division.
    (d) Chief, Litigation Division. Reports to AJAG-CL and is 
responsible for the following:
    (1) Supervising litigation in which the Army has an interest.
    (2) Acting for TJAG and Secretary of the Army on litigation issues, 
including the authority to settle or compromise cases, subject to the 
supervision of TJAG and AJAG-CL.
    (3) Delegating cases if appropriate.
    (4) Serving as primary contact with DOJ on litigation.
    (5) Accepting service of process for DA and for the Secretary of 
the Army in his official capacity. See 32 CFR Sec. 257.5).
    (e) Special Assistant U.S. Attorneys (SAUSAs) and DOJ Special 
Attorneys. Army judge advocates and civilian attorneys, when appointed 
as SAUSAs under 28 U.S.C. 543, will represent the Army's interests in 
either criminal or civil matters in Federal court under the following 
circumstances:
    (1) Felony and misdemeanor prosecutions in Federal court. Army 
attorneys, at the installation level, after being duly appointed (See 
AR 27-10), will prosecute cases, in which the Army has an interest, in 
Federal court. Army attorneys who prosecute criminal cases will not 
represent the United States in civil litigation without authorization 
from Chief, Litigation Division.
    (2) SAUSAs for civil litigation. By assignment of TJAG and upon the 
approval of the U.S. Attorney, Judge Advocates will serve within a U.S. 
Attorney's office to represent the government in litigation in which 
the Army or DOD has an interest. These Judge Advocates have the same 
general authority and responsibility as an Assistant U.S. Attorney.
    (3) Special Attorneys assigned to DOJ. By assignment of TJAG and 
with the concurrence of the appropriate DOJ official, Judge Advocates 
will work as Special Attorneys for DOJ. Special Attorneys are 
authorized to represent the United States in civil litigation in which 
the Army or DOD has an interest.
    (f) Attorneys at Army activities or commands. SJAs or legal 
advisers, or attorneys assigned to them, will represent the United 
States in litigation only if authorized by this regulation or delegated 
authority in individual cases by the Chief, Litigation Division.
    (g) Commander, U.S. Army Claims Service (USARCS). The Commander, 
USARCS, and USARCS attorneys, subject to AR 27-20, Chapter 4, will 
maintain direct liaison with DOJ in regard to administrative settlement 
of claims under the Federal Tort Claims Act.
    (h) Chief, Contract Law Division, OTJAG. The Chief, Contract Law 
Division, attorneys assigned to the Contract Law Division, and other 
attorneys designated by the Chief, Contract Law Division, in litigation 
involving taxation, will represent DA in negotiation, administrative 
proceedings, and litigation, and maintain liaison with DOJ and other 
governmental authorities.
    (i) Legal Representatives of the Chief of Engineers. The Office of 
Chief Counsel, attorneys assigned thereto, and other attorneys 
designated by the Chief Counsel will maintain direct liaison with DOJ 
in litigation and administrative proceedings arising from the 
navigation, civil works, Clean Water Act 404 permit authority, 
environmental response activities, and real property functions of the 
U.S. Army Corps of Engineers.
    (j) Chief Trial Attorney, Contract Appeals Division, USALSA. The 
Chief Trial Attorney, attorneys assigned to the Contract Appeals 
Division, and attorneys designated by the Chief Trial Attorney will 
represent the government before the Armed Services Board of Contract 
Appeals and the General Services Board of Contract Appeals. They will 
maintain direct liaison with DOJ concerning appeals from ASBCA and 
GSBCA decisions. The Chief Trial Attorney has designated COE attorneys 
to act as trial attorneys in connection with COE contract appeals.
    (k) Chief, Regulatory Law Office, USALSA. The Chief, Regulatory Law 
Office, attorneys assigned to the Regulatory Law Office, and other 
attorneys designated by the Chief, will represent DA consumer interests 
in regulatory matters before state and Federal administrative agencies 
and commissions, including but not limited to proceedings involving 
rates and conditions for the purchase of services for communications 
(except long-distance telephone), transportation, and utilities (gas, 
electric, water and sewer). They will maintain direct liaison with DOJ 
for communications, transportation, and utilities litigation.
    (l) Chief, Intellectual Property Law Division, USALSA. The Chief, 
Intellectual Property Law Division, and the attorneys assigned thereto 
will represent DA in matters pertaining to patents, copyrights, and 
trademarks. They will maintain direct liaison with DOJ concerning 
intellectual property issues.
    (m) Chief, Labor and Employment Law Office, OTJAG. The Chief, Labor 
and Employment Law Office, attorneys assigned thereto, and attorneys 
identified as labor counselors will represent DA in matters pertaining 
to labor relations, civilian personnel, and Federal labor standards 
enforcement before the following: Federal Labor Relations Authority; 
Merit Systems Protection Board; Equal Employment Opportunity 
Commission; Department of Labor; National Labor Relations Board; and, 
state workmen's compensation commissions. In the event any individual 
mentioned in this subparagraph intends to make a recommendation to DOJ 
concerning an appeal of any case to a U.S. Court of Appeals, such 
recommendation will first be coordinated with Litigation Division.
    (n) Chief, Procurement Fraud Division, USALSA. The Chief, 
Procurement Fraud Division, attorneys assigned thereto, and other 
attorneys designated by the Chief will represent DA in all procurement 
fraud and corruption matters before the Army suspension and debarment 
authority and before any civil fraud recovery administrative body. They 
will maintain liaison and coordinate remedies with DOJ and other 
agencies in matters of procurement fraud and corruption.
    (o) Chief, Environmental Law Division, USALSA. The Chief, 
Environmental Law Division, attorneys assigned thereto, and other 
attorneys designated by the Chief, ELD, will maintain direct liaison 
with DOJ in all environmental and natural resources civil litigation 
and administrative proceedings involving missions and functions of DA, 
its major and subordinate commands, installations presently or 
previously managed by DA, and other sites or issues in which DA has a 
substantial interest, except as otherwise specifically provided in this 
regulation.
    (p) Chief, Criminal Law Division, OTJAG. The Chief, Criminal Law 
Division, will have general oversight of felony and magistrate court 
prosecutions conducted by Army lawyers acting as Special Assistant U.S. 
Attorneys. (See subpart G of this part). The Chief will coordinate with 
DOJ and other governmental agencies concerning the overall conduct of 
these prosecutions.


Sec. 365.5  Restriction on contact with DOJ.

    (a) General rule. Except as authorized by TJAG, the General 
Counsel, the Chief of Litigation Division, or this regulation, no Army 
personnel will confer or correspond with DOJ concerning legal 
proceedings in which the Army has an interest.
    (b) Exceptions. This prohibition does not preclude contact with DOJ 
required by the Memorandum of Understanding between DOJ and DOD 
relating to the investigation and prosecution of certain crimes. (See 
AR 27-10, para 2-7). In addition, an installation SJA or legal adviser 
is expected to maintain a working relationship with the U.S. Attorney 
in each district within his geographical area. An SJA or legal adviser 
should request the U.S. Attorney to advise him immediately when 
litigation involving DA or its personnel is served on the U.S. 
Attorney.


Sec. 516.6  Appearance as counsel.

    (a) General. Military personnel on active duty and DA civilian 
personnel will not appear as counsel before any civilian court or in 
any preliminary proceeding, for example, deposition, in litigation in 
which the Army has an interest without the prior written approval of 
TJAG, except under the following conditions:
    (1) The appearance is authorized by this regulation.
    (2) The individual is a party to the proceeding.
    (3) The appearance is authorized under an expanded legal assistance 
program (See AR 27-3).
    (4) The individual is a judge advocate assigned or detailed by TJAG 
to DOJ to represent the United States in civil or criminal cases, for 
example, a Special Assistant U.S. Attorney, or an attorney assigned to 
Litigation Division.
    (b) Procedure. All requests for appearance as counsel will be made 
through Litigation Division to the Personnel, Plans and Training 
Office, OTJAG. Requests for DA military or civilian attorneys to appear 
in any civilian court or proceeding on behalf of a soldier who is also 
facing UCMJ action will be delivered to the SJA, legal adviser, or 
Regional Defense Counsel, as appropriate. The SJA or legal adviser will 
forward the request to Litigation Division with an evaluation of the 
case and recommendation. Regional Defense Counsel should send requests 
for USATDS counsel to Chief, USATDS, who will forward the request to 
Litigation Division. Privileged or otherwise sensitive client 
information should only be submitted through USATDS channels.


Sec. 516.7  Mailing addresses.

    Mailing addresses for organizations referenced in this regulation 
are in Appendix B to this part.

Subpart B--Service of Process


Sec. 516.8  General.

    (a) Defined. Process is a legal document that compels a defendant 
in an action to appear in court or to comply with the court's demands, 
for example, in a civil case a summons or subpoena, or in a criminal 
case, a warrant for arrest, indictment, contempt order, subpoena, or 
summons. Service of process is the delivery of the document to a 
defendant to notify him of a claim or charge against him.
    (b) Policy. DA personnel will follow the guidance of this chapter 
when civil officials attempt to serve civil or criminal process on 
individuals on Federal property.
    (c) Procedures. Provost marshals shall ensure that installation law 
enforcement personnel are adequately trained to respond to situations 
which arise with regard to service of civil and criminal process. SJAs 
or legal advisers shall provide guidance to law enforcement personnel 
in these matters.


Sec. 516.9  Service of criminal process within the United States.

    (a) Surrender of personnel. Guidance for surrender of military 
personnel to civilian law enforcement officials is in Chapter 7 of AR 
630-10 and AR l90-9. Army officials will cooperate with civilian law 
enforcement authorities who seek the surrender of a soldier in 
connection with criminal charges. Special rules apply when a bail 
bondsman or other surety seeks custody of a soldier.
    (b) Requests for witnesses or evidence in criminal proceedings. See 
subpart H to this part.


Sec. 516.10  Service of civil process within the United States.

    (a) Policy. DA officials will not prevent or evade the service or 
process in legal actions brought against the United States or against 
themselves in their official capacities. If acceptance of service of 
process would interfere with the performance of military duties, Army 
officials may designate a representative to accept service. DA 
personnel sued in their individual capacity should seek legal counsel 
concerning voluntary acceptance of process.
    (b) Requests for witnesses or evidence in civil proceedings. See 
subpart H to this part.
    (c) Process of Federal courts. Subject to reasonable restrictions 
imposed by the commander, civil officials will be permitted to serve 
Federal process. (See Fed. R. Civ. P. 4, 45).
    (d) Process of state courts.
    (1) In areas of exclusive Federal jurisdiction that are not subject 
to the right to serve state process, the commander or supervisor will 
determine whether the individual to be served wishes to accept service 
voluntarily. A JA or other DA attorney will inform the individual of 
the legal effect of voluntary acceptance. If the individual does not 
desire to accept service, the party requesting service will be notified 
that the nature of the exclusive Federal jurisdiction precludes service 
by state authorities on the military installation.
    (2) On Federal property where the right to serve process is 
reserved by or granted to the state, in areas of concurrent 
jurisdiction, or where the United States has only a proprietary 
interest, Army officials asked to facilitate service of process will 
initially proceed as provided in the preceding subparagraph. If the 
individual declines to accept service, the requesting party will be 
allowed to serve the process in accordance with applicable state law, 
subject to reasonable restrictions imposed by the commander.
    (e) Process of foreign courts. A U.S. District Court may order 
service upon a person who resides in the judicial district of any 
document issued in connection with a proceeding in a foreign or 
international tribunal. (28 U.S.C. 1696). In addition, the U.S. State 
Department has the power to receive a letter rogatory issued by a 
foreign or international tribunal, to transmit it to a tribunal, 
officer or agency in the United States, and to return it after 
execution. (28 U.S.C. 1781). Absent a treaty or agreement to the 
contrary, these provisions will govern.
    (f) Seizure of personal property. State and Federal courts issue 
orders (for example, writ of attachment) authorizing a levy (seizure) 
of property to secure satisfaction of a judgment. DA personnel will 
comply with valid state or Federal court orders commanding or 
authorizing the seizure of private property to the same extent that 
state or Federal process is served.


Sec. 516.11  Service of criminal process outside the United States.

    Army Regulation 630-10 and international treaties, such as status 
of forces agreements, govern the service of criminal process of foreign 
courts and the surrender of soldiers to foreign civilian law 
enforcement officials.


Sec. 516.12   Service of civil process outside the United States.

    (a) Process of foreign courts. In foreign countries service of 
process issued by foreign courts will be made under the law of the 
place of service, as modified by status of forces agreements, treaties 
or other agreements. In foreign areas under exclusive U.S. 
jurisdiction, service of process issued by foreign courts will be made 
under the law specified by appropriate U.S. authority.
    (b) Process of Federal courts. Service of process on U.S. citizens 
or residents may be accomplished under the following provisions: The 
Hague Convention, reprinted in 28 USCA Federal Rules of Civil 
Procedure, following Rule 4; Fed. R. Civ. P. 4(i); 28 USC 1781 and 
1783; and, the rules of the Federal court concerned. If a DA official 
receives a request to serve Federal process on a person overseas, he 
will determine if the individual wishes to accept service voluntarily. 
Individuals will be permitted to seek counsel. If the person will not 
accept service voluntarily, the party requesting service will be 
notified and advised to follow procedures prescribed by the law of the 
foreign country concerned.
    (c) Process of state courts. If a DA official receives a request to 
serve state court process on a person overseas, he will determine if 
the individual wishes to accept service voluntarily. Individuals will 
be permitted to seek counsel. If the person will not accept service 
voluntarily, the party requesting service will be notified and advised 
to follow procedures prescribed by the law of the foreign country 
concerned. (See, for example, The Hague Convention, reprinted in 28 
USCA Federal Rules of Civil Procedure, following Rule 4).
    (d) Suits against the United States. DA personnel served with 
foreign civil process will notify the appropriate SJA or legal adviser, 
who will return the document to the issuing authority explaining the 
lack of authority to accept service for the United States. Service on 
the United States must be made upon DOJ through established diplomatic 
channels.


Sec. 516.13  Assistance in serving process overseas.

    (a) Europe. For information and assistance concerning service of 
process of persons assigned to or accompanying U.S. Forces in Europe, 
contact the Foreign Law Branch, International Law Division, Office of 
The Judge Advocate, Headquarters U.S. Army, Europe, and Seventh Army, 
Unit 29351, (Heidelberg, Germany) APO AE 09014.
    (b) Korea. For information and assistance concerning service of 
process of persons assigned to or accompanying U.S. Forces in Korea, 
contact Staff Judge Advocate, US Forces Korea (Seoul, Republic of 
Korea), APO AP 96205.
    (c) Panama, Central and South America. For information and 
assistance concerning service of process of persons assigned to or 
accompanying forces in the U.S. Army Southern Command, contact Staff 
Judge Advocate, HQ, US Army South, Fort Clayton, Panama, APO AA 34004-
5000.


Sec. 516.14  Service of process on DA or Secretary of Army.

    The Chief, Litigation Division, shall accept service of process for 
Department of the Army or for the Secretary of the Army in his official 
capacity.

Subpart C--Reporting Legal Proceedings to HQDA


Sec. 516.15  General.

    (a) Legal proceedings requiring reporting. Actions must be taken 
upon commencement of litigation or administrative proceedings in which 
the United States has an interest. Typically, the Secretary of the 
Army, DA, the United States, or DA personnel are named as defendant in 
a lawsuit or as respondent in an administrative proceeding. A 
nonexclusive listing of cases in which the United States has an 
interest include the following:
    (1) Suits for damages, injunctive relief, or other action filed 
against the government or against DA personnel in their official 
capacity.
    (2) Suits alleging individual liability arising from performance of 
official duties by DA personnel.
    (3) Actions affecting DA operations or activities or which might 
require official action by DA personnel.
    (4) Actions arising out of DA contracts, subcontracts, or purchase 
orders wherein the government might be required to reimburse a 
contractor for litigation expenses.
    (5) Bankruptcy proceedings in which the United States or its 
instrumentalities may have an interest, including bankruptcies 
involving government contractors.
    (b) Command and agency responsibility. Commanders and supervisors 
of Army units, installations, or organizations will ensure reports 
required by this section are promptly submitted.
    (c) Reports to HQDA. Reports required by this regulation will be 
made telephonically or mailed to the responsible organization at DA. 
Appendix B to this part contains mailing addresses for these offices. 
Except in the situations described below, reports required by this 
chapter will be made to Litigation Division:
    (1) Actual or potential litigation (or administrative infringement 
claims) involving patents, copyrights, or trademarks will be made to 
Intellectual Property Law Division.
    (2) Reports of pending or prospective litigation involving taxation 
will be made to Contract Law Division.
    (3) Communications, transportation, and utility services reports 
will be made to Regulatory Law Office.
    (4) Reports involving environmental and natural resource litigation 
and administrative proceedings will be made to Environmental Law 
Division.
    (5) Potential civil recovery reports in cases of procurement fraud 
and corruption will be made to Procurement Fraud Division.
    (6) Reports involving the felony prosecution program and magistrate 
court prosecutions will be made to Criminal Law Division, OTJAG.
    (7) Cases before the Armed Services Board of Contract Appeals and 
the General Services Board of Contract Appeals will be made to Contract 
Appeals Division.
    (d) Classified information. Information required by this regulation 
will be submitted in an unclassified form if possible. If downgrading 
or declassification is not feasible, the classified material should be 
separated from the report and forwarded under separate cover.
    (e) Other reporting requirements. Reports required by this chapter 
are in addition to and do not satisfy any other reporting requirement, 
such as the following: notifying the FBI of offenses pursuant to AR 27-
10; submitting serious incident reports pursuant to AR 190-40; 
reporting procurement fraud or other irregularities per Defense Federal 
Acquisition Regulation Supplement, section 209.406-3 (48 CFR 209.406-
3); reporting the exercise of criminal jurisdiction by foreign 
tribunals over U.S. personnel pursuant to AR 27-50; or, reporting 
bankruptcies per AR 37-103.
    (f) Reports control exemption. The reports required herein are 
exempt from reports control under AR 335-15, paragraphs 3-3a(5) and 5-
2e(4).


Sec. 516.16  Individual and supervisory procedures upon commencement of 
legal proceedings.

    (a) Individual procedures. DA personnel served with civil or 
criminal process concerning a proceeding in which the United States has 
an interest (Sec. 516.15) will immediately inform their supervisor and 
furnish copies of process and pleadings. There is no requirement to 
notify supervisors of purely private litigation.
    (b) Supervisory procedures. When supervisors learn that legal 
proceedings in which the United States has an interest have commenced, 
the supervisor will forward a copy of all process and pleadings, along 
with other readily available information, to the SJA or legal adviser. 
If no legal officer is available locally, the documents will be 
forwarded to the SJA or legal adviser of the next higher headquarters.


Sec. 516.17  SJA or legal adviser procedures.

    (a) Immediate notice to HQDA. When an SJA or legal adviser learns 
of litigation in which the United States has an interest, and it 
appears that HQDA is not aware of the action, the SJA or legal adviser 
will telephonically notify the responsible HQDA office. (See 
Sec. 516.15(c)). Immediate notice is particularly important when 
litigation involves one of the following: a lawsuit against an employee 
in his individual capacity; a motion for a temporary restraining order 
or preliminary injunction; a habeas corpus proceeding; a judicial or 
administrative proceeding involving less than 60 days to file an 
answer; and, actions with possible Congressional, Secretarial, or Army 
Staff interest. For legal proceedings instituted in foreign tribunals, 
the SJA or legal adviser will also notify the major overseas commander 
concerned and the appropriate U.S. Embassy or Legation. A telephonic 
report to HQDA should include the following:
    (1) Title or style of the proceeding.
    (2) Full names and addresses of the parties.
    (3) Tribunal in which the action is filed, date filed, docket 
number, when and on whom service of process was made, and date by which 
pleading or response is required.
    (4) Nature of the action, amount claimed or relief sought.
    (5) Reasons for immediate action.
    (b) Transmission of process, pleadings, and related papers. Unless 
instructed otherwise by HQDA, the SJA or legal adviser will FAX or mail 
HQDA a copy of all process, pleadings, and related papers. Use of 
express mail or overnight delivery service is authorized.
    (c) Notice to U.S. Attorney. If the legal proceeding is instituted 
in the United States, the SJA or legal adviser, unless instructed 
otherwise by HQDA, will notify the appropriate U.S. Attorney and render 
assistance as required.


Sec. 516.18  Litigation alleging individual liability.

    See Subpart D for procedures to follow when DA personnel, as a 
result of performance of official duties, are either sued in their 
individual capacities or face criminal charges.


Sec. 516.19  Injunctive relief.

    (a) General. Plaintiffs may attempt to force government action or 
restraint in important operational matters or pending personnel actions 
through motions for temporary restraining orders (TRO) or preliminary 
injunctions (PI). Because these actions can quickly impede military 
functions, immediate and decisive action must be taken.
    (b) Notification to HQDA and U.S. Attorney. The SJA or legal 
adviser will immediately notify Litigation Division or other 
appropriate office at HQDA when a motion for TRO or PI has been, or is 
about to be, filed. The SJA or legal adviser will also notify the 
responsible U.S. Attorney.
    (c) Actions by SJA or legal adviser. The SJA or legal adviser will 
assist the DOJ or DA attorney responsible for the litigation. 
Installation attorneys or support personnel should begin accumulating 
relevant documentary evidence and identifying witnesses. If requested, 
installation attorneys will prepare a legal memorandum concerning the 
motion, giving particular attention to the following issues relevant to 
a court granting injunctive relief:
    (1) Plaintiff's likelihood of success on the merits.
    (2) Whether plaintiff will be irreparably harmed if injunctive 
relief is not granted.
    (3) Harm to defendant and other parties if injunctive relief is 
granted.
    (4) The public interest.


Sec. 516.20  Habeas Corpus.

    (a) General. A soldier may file a writ of habeas corpus to 
challenge his continued custody (usually in a post court-martial 
situation) or retention in the Army. As is the case with injunctive 
relief in the preceding paragraph, installation SJAs and legal advisers 
must take immediate action.
    (b) Notification to Litigation Division and U.S. Attorney. The SJA 
or legal adviser will notify Litigation Division and the responsible 
U.S. Attorney's Office immediately upon learning that a petition for 
writ of habeas corpus has been filed. All relevant documentary evidence 
supporting the challenged action should be assembled immediately.
    (c) Procedures in habeas corpus. Upon the filing of a petition for 
a writ of habeas corpus, the court will dismiss the petition, issue the 
writ, or order the respondent to show cause why it should not be 
granted. If a writ or order to show cause is issued, the SJA or legal 
adviser should be prepared to assist the responsible Litigation 
Division or DOJ attorney in preparing a return and answer. If so 
directed, the SJA will also prepare a memorandum of points and 
authorities to accompany the return and answer. The government's 
response should cover the following: whether the Army has custody of 
petitioner; whether respondent and petitioner are within the judicial 
district; and, whether appellate or administrative remedies have been 
exhausted.
    (d) Writs or orders issued by state courts. No state court, after 
being judicially informed that a petitioner is in custody under the 
authority of the United States, should interfere with that custody or 
require that petitioner be brought before the state court. A deserter, 
apprehended by any civil officer having authority to apprehend 
offenders under the laws of the United States or of any state, 
district, territory, or possession of the United States, is in custody 
by authority of the United States. If a writ of habeas corpus is issued 
by a state court, the SJA or legal adviser will seek guidance from 
Litigation Division.
    (e) Foreign court orders. A foreign court should not inquire into 
the legality of restraint of a person held by U.S. military authority. 
If a foreign court issues any process in the nature of a writ of habeas 
corpus, the SJA or legal adviser will immediately report the matter to 
the appropriate U.S. forces commander and to Litigation Division.


Sec. 516.21  Litigation against government contractors.

    (a) General. A contract might require that the government reimburse 
a contractor (or subcontractor) for adverse judgments or litigation 
expenses. Unless a contractor or subcontractor facing a lawsuit 
requests representation by DOJ, the Army presumes the contractor will 
obtain private counsel to defend the case. If the contract so allows, 
however, the contractor may request and HQDA may recommend that DOJ 
represent the contractor if it is in the best interests of the United 
States.
    (b) Actions by SJA or legal adviser. If a contractor or 
subcontractor faces litigation and the underlying contract with the 
government requires reimbursement for adverse judgments or costs of the 
litigation, the SJA or legal adviser, through the contracting officer, 
should determine if the contractor desires representation by DOJ. If 
so, the contractor or authorized agent will sign a request for 
representation. (See Figure D-3, Appendix G, of this part.) The SJA or 
legal adviser will determine whether, in his opinion, representation by 
DOJ should be granted. He will prepare a memorandum to support his 
recommendation, especially concerning any issue regarding the 
government's obligation to reimburse the contractor under the contract. 
The SJA or legal adviser will forward his memorandum, along with the 
contractor's request, to Litigation Division.
    (c) Actions by Litigation Division. The Chief, Litigation Division, 
will evaluate the submission and decide if it is in the Army's best 
interest that the request be granted. He will prepare a memorandum 
supporting his decision and send the packet to DOJ. The Chief's 
decision constitutes the final DA position on the matter. If DOJ grants 
the contractor's request, the Chief, Litigation Division, will ensure 
that the contractor is notified through the SJA or legal adviser and 
the contracting officer.
    (d) Private Counsel. A contractor represented by DOJ may ask that 
private counsel assist the DOJ attorney in the litigation. The DOJ 
attorney will remain in control of the litigation, and the fees for 
private counsel will not be reimbursable except under unusual 
circumstances. The contractor must seek both DOJ and DA approval to 
employ private counsel when DOJ representation has been granted. Even 
if DOJ and DA grant authority to employ private counsel, the 
contracting officer will determine whether a contractor will be 
reimbursed under the contract for private counsel.
    (e) Settlement. The contractor, unless the contract specifies 
otherwise, will ultimately decide whether to compromise a suit. 
Reimbursement under the contract is determined by the contracting 
officer, with the advice of his attorney.


Sec. 516.22  Miscellaneous reporting requirements.

    SJAs or legal advisers will comply with the directives cited below 
concerning actual or prospective litigation involving the following 
types of cases:
    (a) Taxation.
    (1) Contractor transactions. (FAR and DFARS, 48 CFR parts 29 and 
229).
    (2) Army and Air Force Exchange Service (AAFES) activities. (AR 60-
20).
    (3) Purchase or sale of alcoholic beverages. (AR 215-2).
    (4) Nonappropriated fund and related activities. (AR 215-1).
    (b) Tort and contract claims, insurance and litigation involving 
nonappropriated fund activities. (AR 215-1).
    (c) Annexation of Army lands. (AR 405-25).
    (d) Communications, transportation, and utility services 
administrative proceedings. Any contracting officer or other Army 
official responsible for the acquisition of communications, 
transportation, utilities (gas, electric, water and sewer), or military 
mail services, who becomes aware of any action or proceeding of 
interest to the Army, will promptly refer the matter to the SJA or 
legal adviser, who will take the actions prescribed in Sec. 516.17 of 
this part. Examples of actions requiring referral follow: new or 
amended rates, regulations, or conditions of service; applications for 
authority to discontinue or initiate service; changes in 
electromagnetic patterns causing adverse communications interference; 
or, zoning proposals affecting historic or aesthetic preservation. In 
addition, the SJA or legal adviser will transmit the following to 
Regulatory Law Office:
    (1) The names and addresses of any parties intervening and the 
substance of their positions.
    (2) Names of government users affected by any change.
    (3) Copy of any proposed rates, rules, or regulations.
    (4) A recommendation whether the Army should intervene in the 
action or proceeding. If intervention is recommended, provide a 
memorandum to support the recommendation.
    (e) Legal proceedings overseas. Foreign communications, 
transportation, and utility service proceedings need not be reported. 
In other legal proceedings instituted in a foreign country, the SJA or 
legal adviser will take the actions prescribed in Sec. 516.17 of this 
part.
    (f) Maritime claims. Admiralty and maritime claims within the 
purview of Chapter 8, AR 27-20, which have been investigated and 
processed under AR 55-19 or other applicable regulations, will be 
referred to USARCS.
    (g) Army and Air Force Exchange Service litigation. The SJA or 
legal adviser will send a copy of all documents relating to litigation 
against AAFES to General Counsel, AAFES, P.O. Box 660202, Dallas, TX 
75266-0202.
    (h) Bankruptcy. Reports of bankruptcy or insolvency proceedings 
shall be made in accordance with this regulation and AR 37-103.


Sec. 516.23  Litigation reports.

    The SJA or legal adviser will prepare a litigation report when 
directed by HQDA. The report will contain the following sections: 
Statement of Facts; Setoff or Counterclaim; Responses to Pleadings; 
Memorandum of Law; Witness List; and, Exhibits.
    (a) Statement of Facts. Include a complete statement of the facts 
upon which the action and any defense thereto are based. Where 
possible, support facts by reference to documents or witness 
statements. Include details of previous administrative actions, such as 
the filing and results of an administrative claim. If the action is 
predicated on the Federal Tort Claims Act, include a description of the 
plaintiff's relationship to the United States, its instrumentalities, 
or its contractors. Also include a statement whether an insurance 
company or other third party has an interest in the plaintiff's claim 
by subrogation or otherwise and whether there are additional claims 
related to the same incident.
    (b) Setoff or Counterclaim. Discuss whether setoff or counterclaim 
exists. If so, highlight the supportive facts.
    (c) Responses to Pleadings. Prepare a draft answer or other 
appropriate response to the pleadings. (See Figure C-1, to this part). 
Discuss whether allegations of fact are well-founded. Refer to evidence 
that refutes factual allegations.
    (d) Memorandum of Law. Include a brief statement of the applicable 
law with citations to legal authority. Discussions of local law, if 
applicable, should cover relevant issues such as measure of damages, 
scope of employment, effect of contributory negligence, or limitations 
upon death and survival actions. Do not unduly delay submission of a 
litigation report to prepare a comprehensive memorandum of law.
    (e) Potential witness information. List each person having 
information relevant to the case and provide an office address and 
telephone number. If there is no objection, provide the individual's 
social security account number, home address, and telephone number. 
This is ``core information'' required by Executive Order No. 12778 
(Civil Justice Reform). Finally, summarize the information or potential 
testimony that each person listed could provide.
    (f) Exhibits.
    (l) Attach a copy of all relevant documents. This is ``core 
information'' required by Executive Order No. 12778 (Civil Justice 
Reform). Unless otherwise directed by HQDA, each exhibit should be 
tabbed and internally paginated. References to exhibits in the 
litigation report should be to page numbers of particular exhibits.
    (2) Copies of relevant reports of claims officers, investigating 
officers, boards or similar data should be attached, although such 
reports will not obviate the requirement for preparation of a complete 
litigation report.
    (3) Prepare an index of tabs and exhibits.
    (4) Where a relevant document has been released pursuant to a FOIA 
request, provide a copy of the response, or otherwise identify the 
requestor and the records released.
    (g) Distribution and number of copies. Unless HQDA directs 
otherwise, SJAs or legal advisers will mail (first class) an original 
and one copy of the litigation report to the responsible HQDA office 
(See Sec. 516.15 of this part) and one copy to the U.S. Attorney's 
Office handling the case. If possible, record the litigation report 
onto a magnetic diskette, using either WordPerfect, Enable, or ACSII, 
and send it to Litigation Division.


Sec. 516.24  Preservation of evidence.

    Because documents needed for litigation or administrative 
proceedings are subject to routine destruction, the SJA or legal 
adviser will ensure that all relevant documents are preserved.


Sec. 516.25  DA Form 4.

    (a) General. The DA Form 4 (See Figure C-2, Appendix G, of this 
part) is used to authenticate Army records or documents. Documents 
attached to a properly prepared and sealed DA Form 4 are self-
authenticating. (See Fed. R. Evid. 902).
    (b) Preparation at the installation level. A DA Form 4 need not be 
prepared until the trial attorney presenting the government's case 
identifies documents maintained at the installation level which he will 
need at trial. Once documents are identified, the custodian of the 
documents will execute his portion of the DA Form 4. (See Figure C-2, 
Appendix G, of this part). The custodian certifies that the documents 
attached to the DA Form 4 are true copies of official documents. 
Documents attached to each form should be generally identified; each 
document need not be mentioned specifically. Only the upper portion of 
the form should be executed at the local level.
    (c) Actions at HQDA. Upon receipt of the DA Form 4 with documents 
attached thereto, HQDA will affix a ribbon and seal and deliver it to 
the Office of the Administrative Assistant to the Secretary of the 
Army. That office will place the official Army seal on the packet.


Sec. 516.26  Unsworn declarations under penalty of perjury.

    (a) General. Under the provisions of 28 U.S.C. l746, whenever any 
matter is required or permitted to be established or proven by a sworn 
statement, oath or affidavit, such matter may also be established or 
proven by an unsworn written declaration under penalty of perjury. 
Because such declaration does not require a notary or other official to 
administer oaths, individuals preparing statements for use in 
litigation should consider using this format. (See Figure C-3, Appendix 
G, of this part).
    (b) When executed within the United States. Place the following at 
the end of the witness statement:

    I declare under penalty of perjury that the foregoing is true 
and correct. (28 U.S.C. 1746).
Executed on
----------------------------------------------------------------------
(Date)        (Signature)

    (c) When executed outside the United States. Place the following 
at the end of the witness statement:
    I declare under penalty of perjury under the laws of the United 
States of America that the foregoing is true and correct. (28 U.S.C. 
1746).
Executed on
----------------------------------------------------------------------
(Date)        (Signature)

Subpart D--Individual Liability


Sec. 516.27  Scope.

    This subpart guidance when DA personnel, as a result of the 
performance of their official duties, are either sued in their personal 
capacity, or are charged in a criminal proceeding. Examples of civil 
actions alleging individual liability include the following: a medical 
malpractice lawsuit against health care providers; suits resulting from 
motor vehicle accidents; constitutional torts; or, common law torts 
such as assault, libel, or intentional infliction of emotional 
distress. Likewise, state or Federal criminal charges can arise from 
the performance of official duties, including environmental crimes or 
motor vehicle accidents.


Sec. 516.28  Policy.

    (a) General. Commanders, supervisors, and SJAs or legal advisers 
will give highest priority to compliance with the requirements of this 
chapter with regard to current or former DA personnel who face criminal 
charges or civil litigation in their individual capacity as a result of 
performance of their official duties.
    (b) DOJ policy on representation. If in the best interest of the 
United States, upon request of the individual concerned, and upon 
certification by his agency that he was acting within the scope of his 
employment, DOJ may represent present and former DA personnel sued 
individually as a result of actions taken within the scope of their 
employment. Representation can be declined for a variety of reasons, 
including but not limited to the following: the employee was not acting 
within the scope of his office; there is a conflict of interest; or, 
actions were not taken in a good faith effort to conform to law.


Sec. 516.29  Federal statutes and regulations.

    (a) Federal Tort Claims Act (FTCA). (28 U.S.C. 1346(b), 2671-2680). 
A waiver of sovereign immunity which, with certain exceptions, makes 
the United States liable for tort claims in the same manner as a 
private individual.
    (b) Federal Employees Liability Reform and Tort Compensation Act of 
l988 (FELRTCA or the Westfall Act, Pub. L. No. 100-694, 102 Stat. 4563 
(1988) (codified at and amending 28 U.S.C. 2671, 2674, 2679). FELRTCA, 
by amending the Federal Tort Claims Act, makes the FTCA the exclusive 
remedy for common law tort claims arising from actions taken by Federal 
employees acting within the scope of employment. The law was passed to 
eliminate problems caused by Westfall v. Erwin, 484 U.S. 292 (1988).
    (c) 10 U.S.C. 1089 (Defense of certain suits arising out of medical 
malpractice). This provision, commonly referred to as the Gonzales Act, 
makes the FTCA the exclusive remedy for suits alleging medical 
malpractice against a military health care provider.
    (d) 28 CFR 50.15 (Representation of Federal officials and employees 
by Department of Justice attorneys [. . .] in civil, criminal, and 
congressional proceedings in which Federal employees are sued, 
subpoenaed, or charged in their individual capacities). These DOJ 
regulations set out the policy and procedures for requesting 
representation in individual liability cases. See also 28 CFR part 15 
(Defense of Certain Suits Against Federal Employees, etc.).
    (e) 28 CFR 50.16 (Representation of Federal employees by private 
counsel at Federal expense).


Sec. 516.30  Procedures for obtaining certification and DOJ 
representation.

    (a) SJA or legal adviser procedures. When an SJA or legal adviser 
learns of a criminal charge or of a lawsuit alleging individual 
liability against DA personnel as a result of performance of official 
duties, he will take the following actions:
    (1) Immediately notify Litigation Division and the appropriate U.S. 
Attorney and FAX or express deliver copies of process and pleadings to 
each office. Where time for response is limited, request that the U.S. 
Attorney either petition the court for an extension of time, or provide 
temporary counsel and representation pending formal approval.
    (2) Investigate whether the employee was acting within the scope of 
his office or employment. Obtain, if possible, statements from the 
defendant, supervisors, and witnesses.
    (3) Advise the individual defendant of the rights and conditions 
set out in 28 CFR 50.15, which include the following:
    (i) His right to request representation by a DOJ attorney and, in 
appropriate cases, certification that he was acting within the scope of 
employment. (See 28 U.S.C. 2679; 28 CFR 50.15).
    (ii) The right to request private counsel at government expense, 
subject to the availability of funds. (See 28 CFR 50.16).
    (iii) That the United States is not obligated to pay or indemnify 
defendant for any judgment rendered against him in his individual 
capacity.
    (4) If the defendant desires certification or DOJ representation, 
have him sign a request. (See Figure D-1, Appendix G, of this part). 
Obtain a signed scope of employment statement from the defendant's 
supervisor. (Figure D-2, Appendix G, of this part).
    (5) Prepare a report with, at a minimum, the following information: 
facts surrounding the incident for which defendant is being sued and 
those relating to scope of employment; the SJA's or legal adviser's 
conclusions concerning scope of employment; and, a recommendation 
whether certification by the Attorney General or representation by a 
DOJ attorney should be granted.
    (6) In cases involving National Guard personnel, address also the 
following: whether defendant was acting in a state (Title 32 U.S.C.) or 
Federal (Title 10 U.S.C.) capacity during relevant periods (include 
orders); if defendant was acting under state authority, is it 
nevertheless in the interest of the United States to represent the 
individual; any impact on policies or practices of DA, the National 
Guard Bureau, or DOD; whether the relief requested can be granted only 
by a Federal officer or agency; and, whether Federal law or regulation 
required actions by state officials.
    (7) Send the report, request for representation, and scope of 
employment statements to Chief, Litigation Division.
    (b) Chief, Litigation Division, procedures. The Chief, Litigation 
Division, will review the report and evidence regarding representation 
and scope of employment and will determine whether certification and 
representation are appropriate. He will send his recommendation to the 
appropriate U.S. Attorney or office within DOJ. The Chief, Litigation 
Division, will notify the defendant of DOJ's decision.


Sec. 516.31  Private counsel at government expense.

    (a) General. DA personnel, sued in their individual capacity or 
facing criminal charges as a result of performance of official duties, 
have no right to employ a private sector counsel at government expense 
or to expect reimbursement for the same. For proceedings in the United 
States, a request for employment of counsel at government expense may 
be approved by DOJ, contingent among other things upon availability of 
funds and a determination that employment of private counsel at 
government expense is in the best interests of the United States. (See 
28 CFR 50.16). Special rules apply in overseas areas. (See paragraph 
(e) of this section).
    (b) Individual request procedures. The individual will prepare a 
request that private counsel be employed for him at government expense. 
The request must also contain the following statement: ``I understand 
that the United States is not required to employ private counsel on my 
behalf, and that I may be responsible for expenses incurred prior to 
proper authorization by the Department of the Army or the Department of 
Justice.''
    (c) Supervisory and legal adviser procedures. The request will be 
submitted through the individual's supervisors, who will make a 
recommendation and forward the packet to the local SJA or legal 
adviser. The SJA or legal adviser will prepare his own recommendation 
and forward the matter to Litigation Division.
    (d) Chief, Litigation Division, procedures. If the Chief, 
Litigation Division, determines that the request for private counsel is 
meritorious, he will prepare an appropriate recommendation and forward 
the packet to Civil Division, DOJ, for final approval.
    (e) Special actions in foreign countries. Employment of private 
counsel in foreign proceedings is governed by AR 27-50 (Status of 
Forces Policies, Procedures, and Information). Under the authority of 
10 U.S.C. 1037, soldiers, as well as employees or those accompanying 
the armed forces overseas, may be granted individual counsel in civil 
and criminal proceedings, under the criteria of AR 27-50.


Sec. 516.32  Requests for indemnification.

    (a) Policy. An individual liable for a judgment rendered against 
him in his individual capacity has no right to reimbursement from DA. 
DA will consider, however, a request for indemnification from DA 
personnel where conduct within the scope of official duties has 
resulted in personal liability and indemnification is in the best 
interests of the United States. Indemnification is strictly contingent 
upon an appropriation to pay the judgment, as well as availability of 
such funds.
    (b) Individual request procedures. An individual against whom an 
adverse judgment has been rendered may request indemnification. The 
request must include, at a minimum, the following: how the employee was 
acting within the scope of his employment; whether the requestor has 
insurance or any other source of indemnification; and, how 
reimbursement is in the best interests of the United States. The 
request must also contain the following statements: ``I understand that 
acceptance of this request for indemnification for processing by DA 
does not constitute an acceptance of any obligation to make such a 
payment. I also understand that payment is contingent on availability 
of funds and that it will only be made if such is determined to be in 
the best interests of the United States.'' The individual should attach 
a copy of relevant documents, for example, court's opinion, judgment, 
and other allied papers.
    (c) Supervisory and SJA procedures. The request for indemnification 
will be submitted through supervisory channels to the local SJA or 
legal adviser. Each supervisor will make a recommendation on the 
propriety of reimbursement.
    (d) Chief, Litigation Division, procedures. Requests for 
indemnification will be forwarded to Chief, Litigation Division. The 
Chief, Litigation Division, will examine the submission and, after 
consultation with DOJ or other agencies, forward the packet with his 
recommendation to the Army General Counsel. The General Counsel will 
obtain a final decision by the Secretary of the Army or his designee on 
the matter. There is no administrative appeal of the Secretary's (or 
his designee's) decision.

Subpart E--Legal Proceedings Initiated by the United States Medical 
Care and Property Claims


Sec. 516.33  General.

    (a) Authorities.
    (1) Federal Medical Care Recovery Act (42 U.S.C. 2651). The act 
provides for the recovery of medical care expenses incurred because of 
a tortfeasor's actions.
    (2) Federal Claims Collection Act (31 U.S.C. 3711). The act 
provides for the collection of claims for money or property arising 
from the activities of Federal agencies.
    (3) Third-party Collection Program (10 U.S.C. 1095). The statute 
provides for collection of reasonable costs of health-care services, 
provided in facilities of the uniformed services to covered 
beneficiaries, from private insurers or third-party payers. In 
accordance with DOD Instruction 6010.15, ``Third Party Collection (TPC) 
Program,'' 7 March 1991, the authority to settle or waive a DOD claim 
under the act is delegated to TJAG or to his designee.
    (4) Executive Order No. 12778, (56 FR 55195; 3 CFR, 1991 Comp. p. 
359), Civil Justice Reform. This order establishes several requirements 
on Federal agencies involved in litigation or contemplating filing an 
action on behalf of the United States.
    (5) AR 27-20, Claims. Chapter l4 (Affirmative Claims) contains 
comprehensive guidance for Recovery Judge Advocates (RJAs) in the 
administrative determination, assertion, collection, settlement, and 
waiver of claims in favor of the U.S. for property damage and for 
medical care claims.
    (b) Duties and Procedures. In accordance with Chapter 14, AR 27-20, 
Commander, USARCS, has supervisory responsibility over the 
administrative processing of property and medical care claims by RJAs. 
The Commander, U.S. Army Health Services Command (HSC), has supervisory 
responsibility over the Third Party Collection Program (TPCP). The HSC 
TPCP Implementation Plan effects DOD Instruction 6010.15 and 
establishes procedures for processing TPC claims. Litigation Division, 
in conjunction with DOJ and U.S. Attorneys, is responsible for 
pursuing, through litigation, claims not resolved administratively. DOJ 
is ultimately responsible for initiating litigation for the United 
States. (28 U.S.C. 515).
    (c) Assertion of claims on behalf of the United States by private 
attorneys. The Army incurs potentially recoverable expenses when it 
provides medical care to soldiers or dependents injured by tortfeasors 
(for example, a soldier is hospitalized after an automobile accident). 
When injured personnel employ a private attorney to sue the tortfeasor, 
it may be in the Government's best interests to enter into an agreement 
with the private attorney to include the Army's medical care claim.
    (d) Statute of limitations. There is a three year statute of 
limitations for actions in favor of the U.S. for money damages founded 
upon tort. (28 U.S.C. 2415(b)). Limitations periods can vary, however, 
depending upon the theory of liability and the jurisdiction involved. 
RJAs must be alert to the applicable period of limitations. A case 
referred for litigation should arrive at Litigation Division at least 6 
months before the expiration of the limitations period.
    (e) Reporting of recoveries. Amounts recovered through litigation 
will be reported to USARCS by Tort Branch, Litigation Division, or, 
where referred directly to a U.S. Attorney or the Nationwide Central 
Intake Facility (NCIF), by the responsible RJA.


Sec. 516.34  Referral of medical care and property claims for 
litigation.

    (a) Criteria for referral. The RJA will forward the claims file and 
a litigation report (See Sec. 516.35 of this part) through USARCS to 
Litigation Division when the claim has not been resolved 
administratively and any of the following conditions exist:
    (1) The claim exceeds $5,000;
    (2) It involves collection from the injured party or his attorney;
    (3) The claim raises an important question of policy; or,
    (4) There is potential for a significant precedent.
    (b) Alternative methods. When none of the conditions cited in the 
preceding subparagraph are present, the RJA may refer the claim 
directly to the U.S. Attorney for the district in which the prospective 
defendant resides. Similar property claims may be referred through 
USARCS to DOJ's Nationwide Central Intake Facility (NCIF) rather than 
directly to the U.S. Attorney. Notice of all such referrals shall be 
provided through USARCS to Tort Branch, Litigation Division. The RJA 
should be ready to provide support to the U.S. Attorney if requested.
    (c) Closing Files. A file referred directly to the U.S. Attorney 
will be closed if the U.S. Attorney determines further action is 
unwarranted. If the RJA disagrees, the file should be forwarded with 
the RJA's recommendation through USARCS to Litigation Division.


Sec. 516.35  Preparation of claims for litigation.

    (a) General. In preparing a referral for litigation the RJA will 
ensure the file contains at least the following:
    (1) A litigation report (See Sec. 516.23 of this part) that 
demonstrates a factual basis for the claim and a theory of recovery 
under applicable state law. (See Fed. R. Civ. P. 11)
    (2) Copies of all medical records and bills reflecting the 
reasonable value of the medical care furnished to the injured party, 
including DA Form 2631-R (Medical Care-Third Party Liability 
Notification), and DA Form 3154 (MSA Invoice and Receipt). These 
documents should be authenticated as necessary on a DA Form 4.
    (3) Copies of all documents necessary to establish the value of 
lost or damaged property.
    (b) Transmittal letter. The letter of transmittal referring the 
claim for litigation should briefly summarize the facts giving rise to 
the claim and the collection actions previously taken by the Army and 
the injured party.

Assertion of Other Claims


Sec. 516.36  Referral to Litigation Division.

    (a) General. The majority of cases filed on behalf of the United 
States will fall under this subpart E. All other civil cases which 
cannot be resolved administratively or by direct referral to DOJ will 
be forwarded through channels to Litigation Division with a litigation 
report. (See Sec. 516.23 of this part).
    (b) Government contractors. It may be in the Government's best 
interest to authorize a Government contractor, whose contract provides 
for the reimbursement of necessary legal expenses, to employ private 
counsel to initiate legal proceedings against a third party. To obtain 
authorization to employ private counsel in such instances the 
contractor should follow the procedures in Sec. 516.21(c) of this part.


Sec. 516.37  Proceedings to repossess Government real property or 
quarters or to collect delinquent rent.

    (a) General. U.S. Attorneys are authorized to accept a Federal 
agency's request for the following purposes: to initiate an action to 
recover possession of real property from tenants, trespassers, and 
others; to enjoin trespasses on Federal property; and, to collect 
delinquent rentals or damages for use and occupancy of real property 
for amounts less than $200,000.
    (b) Procedures. When eviction or an action to collect delinquent 
rent is necessary, the SJA or legal adviser will notify General 
Litigation Branch, Litigation Division, of the situation. If approved 
by Litigation Division, the SJA or legal adviser may ask the U.S. 
Attorney to file suit. A copy of the complaint will be sent to 
Litigation Division. DOJ can take action to evict the occupants for 
violation of the terms of occupancy and collect delinquent rent or 
other charges. Once the matter has been referred to the U.S. Attorney, 
payments for rent should be sent to the U.S. Attorney. (See AR 210-50, 
chap 2.)

Subpart F--Environmental Litigation


Sec. 516.38  Scope.

    This subpart contains guidance, policies, and procedures applicable 
to all environmental and natural resources civil litigation and 
administrative proceedings involving missions and functions of DA, its 
major and subordinate commands, all installations presently or 
previously managed by DA, and all other sites or issues in which DA has 
a substantial interest. In this chapter, ``litigation'' includes civil 
administrative proceedings.


Sec. 516.39  Duties and procedures.

    (a) Water rights. Environmental Law Division will conduct direct 
liaison with DOJ and will represent DA in State and Federal litigation 
relating to availability and allocation of surface and ground water and 
the establishment and protection of water rights for Army military 
installations and activities. This will include litigation in State 
general adjudications of water rights under the McCarran Amendment, 43 
U.S.C. 666, for Army military installations and activities. Such 
litigation relating solely to COE civil works projects or activities 
will be handled by attorneys under the technical supervision of the 
Chief Counsel, COE. With respect to any general adjudication which 
could affect the civil works or real property functions of COE, The 
Judge Advocate General, acting through the Chief, Environmental Law 
Division, and Chief Counsel, COE, will jointly determine which office 
should maintain primary direct liaison with DOJ and will scope and 
execute appropriate coordination with each other and with the General 
Counsel with respect to that litigation.
    (b) Navigable waters. The Chief Counsel, COE, will conduct direct 
liaison with DOJ and represent DA in civil litigation involving 
activities in or across navigable waters of the United States or other 
activities regulated under the Rivers and Harbors Act of 1899, 33 
U.S.C. 401 et seq.
    (c) Waters of the United States. The Chief Counsel, COE, will 
conduct direct liaison with DOJ and represent DA in civil litigation 
involving The Clean Water Act section 404 (See 33 U.S.C. 1344) permit 
authority of COE over the discharge of dredged or fill material into 
waters of the United States.
    (d) Enforcement. Environmental Law Division will conduct direct 
liaison with DOJ and represent DA in all civil litigation involving 
citizen or State enforcement of applicable State, Federal and local 
requirements respecting the control or abatement of pollution and 
involving the management of hazardous wastes, with respect to the 
missions and functions of, and Federal facilities owned or controlled 
by, DA, except for civil works facilities.
    (e) Environmental response.
    (1) Except as provided in (a)(2) of this section. Environmental Law 
Division will conduct direct liaison with DOJ and represent DA in all 
civil litigation seeking declaratory or injunctive relief or involving 
claims of Army liability for the costs of response at Federal 
facilities currently owned or controlled by DA and at other sites where 
the Army is a potentially responsible party.
    (2) The Chief Counsel, COE, will conduct direct liaison with DOJ 
and represent DA in all civil litigation seeking declaratory or 
injunctive relief or involving claims of Army liability for the costs 
of response at civil works facilities, at former defense sites or at 
other sites where the Army is a potentially responsible party due to 
the response actions of the COE or its contractors.
    (f) Fish and Wildlife, and Plants. Environmental Law Division will 
conduct direct liaison with DOJ and represent DA in civil litigation 
involving citizen or State enforcement of applicable State, Federal, 
and local laws governing conservation of plant, fish, and wildlife 
resources at Federal facilities owned or controlled by DA, except that 
such litigation relating solely to the real estate, civil works, 
navigation and Clean Water Act section 404 (See 33 U.S.C. 1344) permit 
functions and activities of the COE will be handled by attorneys under 
the technical supervision of the Chief Counsel, COE.
    (g) Toxic torts.
    (1) Except as otherwise provided in this part, Environmental Law 
Division will conduct direct liaison with DOJ and represent DA in all 
civil litigation involving claims of tort liability for exposure to 
environmental contamination emanating from Federal facilities owned or 
controlled by DA.
    (2) Litigation Division will conduct liaison with DOJ and represent 
DA in civil litigation involving claims of tort liability for singular 
and discrete incidents of exposure to environmental contamination 
emanating from any Federal facility owned or controlled by DA.
    (3) The Chief Counsel, COE, will conduct direct liaison with DOJ 
and will represent DA in civil litigation involving claims of tort 
liability for exposure to environmental contamination (including 
singular and discrete incidents) emanating from any civil works 
activities under the jurisdiction of the Secretary of the Army.
    (4) The Chief Counsel, COE, and Chief, Environmental Law Division, 
will confer and jointly determine which office will conduct direct 
liaison with DOJ and represent DA in civil litigation involving all 
other claims of toxic tort liability.

Subpart G--Release of Information and Appearance of Witnesses Scope


Sec. 516.40  General.

    (a) Introduction. This subpart implements DOD Directive 5405.2 (See 
Appendix C to this part and 32 CFR part 97). It governs the release of 
official information and the appearance of present and former DA 
personnel as witnesses in response to requests for interviews, notices 
of depositions, subpoenas, and other requests or orders related to 
judicial or quasi-judicial proceedings. Requests for records, if not in 
the nature of legal process, should be processed under AR 25-55 (The 
Department of the Army Freedom of Information Act Program) or AR 340-21 
(The Army Privacy Program). This subpart pertains to any request for 
witnesses, documents, or information for all types of litigation, 
including requests by private litigants, requests by State or U.S. 
attorneys, requests by foreign officials or tribunals, subpoenas for 
records or testimony, notices of depositions, interview requests, civil 
cases, criminal proceedings, private litigation, or litigation in which 
the United States has an interest.
    (b) Definitions. (See Appendix F to this part).


Sec. 516.41  Policy.

    (a) General Rule. Except as authorized by this subpart, present or 
former DA personnel will not disclose official information (See 
Appendix F--Glossary) in response to subpoenas, court orders, or 
requests.
    (b) Exception. Present or former DA personnel may disclose official 
information if they obtain the written approval of the appropriate SJA, 
legal adviser, or Litigation Division.
    (c) Referral to deciding official. If present or former DA 
personnel receive a subpoena, court order, request for attendance at a 
judicial or quasi-judicial proceeding, or request for an interview 
related to actual or potential litigation, and it appears the subpoena, 
order, or request seeks disclosures described in a above, the 
individual should immediately advise the appropriate SJA or legal 
adviser. If the SJA or legal adviser cannot informally satisfy the 
subpoena, order, or request in accordance with Secs. 516.43 through 
516.50 of this subpart, he should consult with Litigation Division.
    (d) Requesters' responsibilities. Individuals seeking official 
information must submit, at least 14 days before the desired date of 
production, a specific written request setting forth the nature and 
relevance of the official information sought. (Requesters can be 
referred to this Subpart G). Subject to Sec. 516.47(a), present and 
former DA personnel may only produce, disclose, release, comment upon, 
or testify concerning those matters specified in writing and properly 
approved by the SJA, legal adviser, or Litigation Division. (See United 
States ex. rel. Touhy v. Ragen, 340 U.S. 462 (1951)).
    (e) Litigation in which the United States has an interest. If a 
subpoena, order, or request relates to litigation in which the United 
States has an interest and for which litigation responsibility has not 
been delegated, the SJA or legal adviser will coordinate with 
Litigation Division under Sec. 516.42.
    (f) Motions to stay or quash subpoenas. A subpoena should never be 
ignored, and an SJA or legal adviser should seek assistance from 
Litigation Division or the U.S. Attorney's office whenever necessary. 
If a response to a subpoena or order is required before a release 
determination can be made or before Litigation Division or the U.S. 
Attorney can be contacted, the SJA or legal adviser will do the 
following:
    (1) Furnish the court or tribunal a copy of this regulation (32 CFR 
part 516, Subpart G) and applicable case law (See United States ex. 
rel. Touhy v. Ragen, 340 U.S. 462 (1951));
    (2) Inform the court or tribunal that the requesting individual has 
not complied with this Chapter, as set out in 32 CFR 97 & 516, or that 
the subpoena or order is being reviewed;
    (3) Seek to stay the subpoena or order pending the requestor's 
compliance with this chapter or final determination by Litigation 
Division; and,
    (4) If the court or other tribunal declines to quash or stay the 
subpoena or order, inform Litigation Division immediately so a decision 
can be made whether to challenge the subpoena or order. If Litigation 
Division decides not to challenge the subpoena or order, the affected 
personnel will comply with the subpoena or order. If Litigation 
Division decides to challenge the subpoena or order, it will direct the 
affected personnel to respectfully decline to comply with the subpoena 
or order. (See United States ex. rel. Touhy v. Ragen, 340 U.S. 462 
(1951)).
    (g) Classified or sensitive information. Only Litigation Division 
may authorize the release of official information or appearance of DA 
personnel as witnesses in litigation involving terrorism, espionage, 
nuclear weapons, or intelligence sources and methods.
    (h) Requests for Inspector General records or testimony. IG 
records, and information obtained through performance of IG duties, are 
official information under the exclusive control of the Secretary of 
the Army. (See AR 20-l, Chapter 3.) IG records frequently contain 
sensitive official information that may be classified or obtained under 
guarantees of confidentiality. When justification exists, DA attorneys 
will seek court protection from disclosure of IG records and 
information. No DA personnel will release IG records or disclose 
information obtained through performance of IG duties without the 
approval of The Secretary of the Army, The Inspector General, TIG Legal 
Advisor, or Chief, Litigation Division. When IG personnel receive a 
subpoena, court order, request for attendance at a judicial or quasi-
judicial proceeding, or a request for an interview which the IG 
reasonably believes is related to actual or potential litigation 
concerning IG records or related information, they should immediately 
notify the Inspector General Legal Adviser or the Chief, Litigation 
Division. IG personnel will follow the guidance of this subpart 
concerning actions to be taken regarding disclosure and testimony.


Sec. 516.42  Reference to HQDA.

    (a) General. If the SJA or legal adviser is unable to resolve the 
matter, it will be referred for approval or action by Litigation 
Division under this chapter, by the most expeditious means, to General 
Litigation Branch, Litigation Division, with the following exceptions:
    (1) Those involving a case assigned to another branch of Litigation 
Division will be submitted to that branch (Appendix B to this part).
    (2) Those involving affirmative litigation (for example, medical 
care recovery or Army property damage or loss cases) under subpart E 
will be submitted to Tort Branch.
    (3) Those involving patents, copyrights, privately developed 
technical information, or trademarks will be submitted to Intellectual 
Property Law Division.
    (4) Those involving taxation will be submitted to Contract Law 
Division.
    (5) Those involving communication, transportation, or utility 
service proceedings will be submitted to the Regulatory Law Office.
    (6) Those involving environmental matters will be submitted to the 
Environmental Law Division.
    (7) Those involving contract appeals cases before the ASBCA will be 
submitted to the Contract Appeals Division.
    (8) Those involving procurement fraud, including Qui Tam cases, 
will be submitted to the Procurement Fraud Division.
    (b) Information to be submitted. When referring matters pursuant to 
paragraph (a) of this section, the following data should be provided:
    (1) Parties (named or prospective) to the proceeding, their 
attorneys, and case number, where appropriate.
    (2) Party making the request (if a subpoena, indicate moving party) 
and his attorney.
    (3) Name of tribunal in which the proceeding is pending.
    (4) Nature of the proceeding.
    (5) Date of receipt of request or date and place of service of 
subpoena.
    (6) Name, grade, position, and organization of person receiving 
request or served with subpoena.
    (7) Date, time, and place designated in request or subpoena for 
production of information or appearance of witness.
    (8) Nature of information sought or document requested, and place 
where document is maintained.
    (9) A copy of each document requested. Contact the appropriate 
office at HQDA if this would be burdensome and unnecessary to a 
decision whether to release, redact, or withhold a particular document.
    (10) Name of requested witness, expected testimony, requested 
appearance time and date, and whether witness is reasonably available.
    (11) Analysis of the problem with recommendations.

Release of Records in Connection With Litigation


Sec. 516.43  Release of Army and other agency records.

    (a) Preservation of originals. To preserve the integrity of DA 
records, DA personnel will submit properly authenticated copies rather 
than originals of documents or records for use in legal proceedings, 
unless directed otherwise by Litigation Division. (See 28 U.S.C. 1733.)
    (b) Authentication of copies. Copies of DA records approved for 
release can be authenticated for introduction in evidence by use of DA 
Form 4. (See Sec. 516.25 for instructions.)
    (1) Records maintained in U.S. Army Engineer Districts and 
Divisions will be forwarded to HQDA(CECC-K), WASH DC 20314-1000.
    (2) All other records will be forwarded to the appropriate office 
at HQDA (See Sec. 516.42).
    (c) Fees and charges. AR 37-60 prescribes the schedule of fees and 
charges for searching, copying, and certifying Army records for release 
in response to litigation-related requests.
    (d) Release of records of other agencies. Normally an individual 
requesting records originating in agencies outside DA (that is, FBI 
reports, local police reports, civilian hospital records) that are also 
included in Army records should be advised to direct his inquiry to the 
originating agency.


Sec. 516.44  Determination of release authorization.

    (a) Policy. DA policy is to make official information reasonably 
available for use in Federal and state courts and by other governmental 
bodies unless the information is classified, privileged, or otherwise 
protected from public disclosure.
    (b) Releasability factors. In deciding whether to authorize release 
of official information, the deciding official should consider the 
following:
    (1) Has the requester complied with DA policy governing the release 
of official documents in Sec. 516.41(d) of this part.
    (2) Is the request unduly burdensome or otherwise inappropriate 
under the applicable court rules?
    (3) Is the disclosure appropriate under the rules of procedure 
governing the matter in which the request arose?
    (4) Would the disclosure violate a statute, executive order, 
regulation, or directive?
    (5) Is the disclosure appropriate under the relevant substantive 
law concerning privilege?
    (6) Would the disclosure reveal information properly classified 
pursuant to the DOD Information Security Program under AR 380-5, 
unclassified technical data withheld from public release pursuant to 32 
CFR Sec. 250, or other matters exempt from unrestricted disclosure?
    (7) Would disclosure interfere with ongoing enforcement 
proceedings, compromise constitutional rights, reveal the identity of 
an intelligence source or confidential informant, disclose trade 
secrets or confidential commercial or financial information, or, 
otherwise be inappropriate under the circumstances?
    (8) Would the disclosure violate any person's expectation of 
confidentiality or privacy?


Sec. 516.45  Records determined to be releasable.

    If the deciding official, after considering the factors set forth 
in Sec. 536.44, determines that all or part of requested official 
records are releasable, copies of the records should be furnished to 
the requester.


Sec. 516.46  Records determined not to be releasable.

    (a) General. If the deciding official, after considering the 
factors in Sec. 516.44, determines that all or part of requested 
official records should not be released, he will promptly communicate 
directly with the attorney or individual who caused the issuance of the 
subpoena, order, or request and seek to resolve the matter informally. 
If the subpoena or order is invalid, he should explain the basis of the 
invalidity. The deciding official should also explain why the records 
requested are privileged from release. The deciding official should 
attempt to obtain the agreement of the requester to withdraw the 
subpoena, order, or request or to modify the subpoena, order, or 
request so that it pertains only to records which may be released. (See 
Figure G-1, Appendix G, of this part.)
    (b) Information protected by the Privacy Act.
    (1) A subpoena duces tecum or other legal process signed by an 
attorney or clerk of court for records protected by the Privacy Act, 5 
U.S.C. 552a, does not justify the release of the protected records. The 
deciding official should explain to the requester that the Privacy Act 
precludes disclosure of records in a system of records without the 
written consent of the subject of the records or ``pursuant to the 
order of a court of competent jurisdiction.'' (See 5 U.S.C. 
552a(b)(11)). An ``order of the court'' for the purpose of subsection 5 
U.S.C. 552a(b)(11) is an order or writ requiring the production of the 
records, signed by a judge or magistrate.
    (2) Unclassified records otherwise privileged from release under 5 
U.S.C. 552a may be released to the court under either of the following 
conditions:
    (i) The subpoena is accompanied by an order signed by a judge or 
magistrate, or such order is separately served, that orders the person 
to whom the records pertain to release the specific records, or that 
orders copies of the records be delivered to the clerk of court, and 
indicates that the court has determined the materiality of the records 
and the nonavailability of a claim of privilege.
    (ii) The clerk of the court is empowered by local statute or 
practice to receive the records under seal subject to request that they 
be withheld from the parties until the court determines whether the 
records are material to the issues and until any question of privilege 
is resolved.
    (iii) Subpoenas for alcohol abuse or drug abuse treatment records 
must be processed under 42 U.S.C. 290dd-3 and 290ee-3, and Public 
Health Service regulations published at 42 CFR 2.1--2.67.
    (iv) Upon request, SJAs and legal advisers may furnish to the 
attorney for the injured party or the tortfeasor's attorney or 
insurance company a copy of the narrative summary of medical care that 
relates to a claim under Subpart E of this part. If additional medical 
records are requested, only those that directly pertain to the pending 
action will be furnished. If furnishing copies of medical records would 
prejudice the cause of action, the matter will be reported to 
Litigation Division.
    (c) Referral to Litigation Division. If the SJA or legal adviser is 
not able to resolve a request for Army records informally, he should 
contact Litigation Division.
    (1) Litigation Division may respond to subpoenas or orders for 
records privileged from release by informing the local U.S. Attorney 
about the subpoena and requesting that office file a motion to quash 
the subpoena or a motion for a protective order. The records privileged 
from release should be retained by the custodian pending the court's 
ruling upon the government's motion.
    (2) When a motion to quash or for a protective order is not filed, 
or the motion is unsuccessful, and the appropriate DA official has 
determined that no further efforts will be made to protect the records, 
copies of the records (authenticated if necessary) will be submitted to 
the court (or to the clerk of court) in response to the subpoena or 
order.
    (d) Classified and privileged materials. Requests from DOJ, U.S. 
Attorneys, or attorneys for other governmental entities for records 
which are classified or otherwise privileged from release will be 
referred to Litigation Division. (See Sec. 516.41(g).

DA Personnel as Witnesses in Private Litigation


Sec. 516.47  Response to subpoenas, orders, or requests for witnesses.

    (a) Policy. The involvement of present or former DA personnel in 
private litigation is solely a personal matter between the witness and 
the requesting party, unless one or more of the following conditions 
apply:
    (1) The testimony involves official information. (See Appendix F--
Glossary to this part).
    (2) The witness is to testify as an expert.
    (3) The absence of the witness from duty will seriously interfere 
with the accomplishment of a military mission.
    (b) Former DA personnel. Former DA personnel may freely respond to 
requests for interviews and subpoenas except in instances involving 
official information (paragraph (a)(1) of this section) or concerning 
expert testimony prohibited by Sec. 516.49. In those instances, the 
subject of the request or subpoena should take the action specified in 
Secs. 516.41(c) and 516.42.
    (c) Present DA personnel. Present DA personnel will refer all 
requests for interviews and subpoenas for testimony in private 
litigation through their supervisor to the appropriate SJA or legal 
adviser.
    (d) Discretion to testify. Any individual not wishing to grant an 
interview or to testify concerning private litigation may seek the 
advice of an Army attorney concerning the consequences, if any, of 
refusal. Any individual not authorized to consult with Army counsel 
should consult with private counsel, at no expense to the government.


Sec. 516.48  Official information.

    (a) In instances involving Sec. 516.47(a)(1), the matter will be 
referred to the SJA or legal adviser serving the organization of the 
individual whose testimony is requested, or to HQDA pursuant to 
Sec. 516.47(a). The deciding official will determine whether to release 
the information sought under the principles established in Sec. 516.44. 
If funding by the United States is requested, see Sec. 516.55(d).
    (b) If the deciding official determines that the information may be 
released, the individual will be permitted to be interviewed, deposed, 
or to appear as a witness in court provided such interview or 
appearance is consistent with the requirements of Secs. 516.49 and 
516.50. (See, for example, Figure G-2, Appendix G, to this part). A JA 
or DA civilian attorney should be present during any interview or 
testimony to act as legal representative of the Army. If a question 
seeks information not previously authorized for release, the legal 
representative will advise the witness not to answer. If necessary to 
avoid release of the information, the legal representative will advise 
the witness to terminate the interview or deposition, or in the case of 
testimony in court, advise the judge that DOD directives and Army 
regulations preclude the witness from answering without HQDA approval. 
Every effort should be made, however, to substitute releasable 
information and to continue the interview or testimony.


Sec. 516.49  Expert witnesses.

    (a) General rule. Present DA personnel will not provide, with or 
without compensation, opinion or expert testimony either in private 
litigation or in litigation in which the United States has an interest 
for a party other than the United States. Former DA personnel will not 
provide, with or without compensation, opinion or expert testimony 
concerning official information, subjects, or activities either in 
private litigation or in litigation in which the United States has an 
interest for a party other than the United States. (See Figure G-3, 
Appendix G of this part). An SJA or legal adviser is authorized to deny 
a request for expert testimony, which decision may be appealed to 
Litigation Division.
    (b) Exception to the general prohibition. If a requester can show 
exceptional need or unique circumstances, and the anticipated testimony 
will not be adverse to the interests of the United States, Litigation 
Division may grant special written authorization for present or former 
DA personnel to testify as expert or opinion witnesses at no expense to 
the United States. In no event may present or former DA personnel 
furnish expert or opinion testimony in a case in which the United 
States has an interest for a party whose interests are adverse to the 
interests of the United States.
    (c) Exception for AMEDD personnel. Members of the Army medical 
department or other qualified specialists may testify in private 
litigation with the following limitations (See Figure G-4, Appendix G, 
of this part):
    (1) The litigation involves patients they have treated, 
investigations they have made, laboratory tests they have conducted, or 
other actions taken in the regular course of their duties.
    (2) They limit their testimony to factual matters such as the 
following: their observations of the patient or other operative facts; 
the treatment prescribed or corrective action taken; course of recovery 
or steps required for repair of damage suffered; and, contemplated 
future treatment.
    (3) Their testimony may not extend to expert or opinion testimony, 
to hypothetical questions, or to a prognosis.
    (d) Court-ordered expert or opinion testimony. If a court or other 
appropriate authority orders expert or opinion testimony, the witness 
will immediately notify Litigation Division. If Litigation Division 
determines it will not challenge the subpoena or order, the witness 
will comply with the subpoena or order. If directed by Litigation 
Division, however, the witness will respectfully decline to comply with 
the subpoena or order. (See United States ex. rel. Touhy v. Ragen, 340 
U.S. 462 (1951)).
    (e) Expert witness fees. All fees tendered to present DA personnel 
as an expert or opinion witness, to the extent they exceed actual 
travel, meals, and lodging expenses of the witness, will be remitted to 
the Treasurer of the United States.


Sec. 516.50  Interference with mission.

    If the absence of a witness from duty will seriously interfere with 
the accomplishment of a military mission, the SJA or legal adviser will 
advise the requesting party and attempt to make alternative 
arrangements. If these efforts fail, the SJA or legal adviser will 
refer the matter to Litigation Division.

Litigation in Which the United States Has an Interest


Sec. 516.51  Response to subpoenas, orders, or requests for witnesses.

    (a) Referral to a deciding official. Requests, subpoenas, or orders 
for official information, interviews or testimony of present or former 
DA personnel in litigation or potential litigation in which the United 
States has an interest, including requests from DOJ, will be resolved 
by the SJA or legal adviser pursuant to the principles of this subpart. 
Litigation Division will be consulted on issues that cannot be resolved 
by the SJA or legal adviser.
    (b) Reassignment of witnesses. When requested by the U.S. Attorney, 
the SJA or legal adviser will ensure that no witnesses are reassigned 
from the judicial district without advising the DOJ attorney. If a 
witness is vital to the government's case and trial is imminent, the 
SJA or legal adviser should make informal arrangements to retain the 
witness in the command until trial. If this is not feasible, or if a 
satisfactory arrangement cannot be reached with the DOJ attorney, the 
SJA or legal adviser should notify Litigation Division.


Sec. 516.52  Expert witnesses.

    Requests for present or former DA personnel as expert or opinion 
witnesses from DOJ or other attorneys representing the United States 
will be referred to Litigation Division unless the request involves a 
matter that has been delegated by Litigation Division to an SJA or 
legal adviser. In no event, may present or former DA personnel furnish 
expert or opinion testimony in a case in which the United States has an 
interest for a party whose interests are adverse to the interests of 
the United States.


Sec. 516.53  News media and other inquiries.

    News media inquiries regarding litigation or potential litigation 
will be referred to the appropriate public affairs office. DA personnel 
will not comment on any matter presently or potentially in litigation 
without proper clearance. Local public affairs officers will refer 
press inquiries to HQDA (SAPA), WASH DC 20310-1500, with appropriate 
recommendations for review and approval by the Office of the Chief of 
Public Affairs. All releases of information regarding actual or 
potential litigation will be coordinated with Litigation Division prior 
to release.

Status, Travel, and Expenses of Witnesses


Sec. 516.54  Witnesses for the United States.

    (a) Status of witness. A military member authorized to appear as a 
witness for the United States, including those authorized to appear 
under Sec. 516.55(d), will be placed on temporary duty. If USAR or NG 
personnel are requested as witnesses for the United States, and if 
their testimony arises from their active duty service, they should be 
placed on active duty to testify. The status of a civilian employee 
will be determined under Federal Personnel Manual 630, subchapter 10. 
DA personnel who appear as necessary witnesses for a party asserting 
the government's claim for medical care expenses are witnesses for the 
United States.
    (b) Travel arrangements. Travel arrangements for witnesses for the 
United States normally are made by DOJ through Litigation Division for 
other than local travel. Litigation Division will issue instructions 
for this travel, including fund citation, to the appropriate commander. 
A U.S. Attorney, or an attorney asserting the government's medical care 
claim under Subpart E, may make arrangements for local travel through 
the SJA or legal adviser for attendance of a witness who is stationed 
at an installation within the same judicial district, or not more than 
100 miles from the place where testifying. Other requests, including 
those under Sec. 516.55(d), will be referred to Litigation Division. 
The instructions from Litigation Division, or the request from the U.S. 
Attorney or the attorney asserting the government's claim, will serve 
as a basis for the issuance of appropriate travel orders by the local 
commander.
    (c) Travel and per diem expenses. The witness' commander or 
supervisor should ensure the witness has sufficient funds to defray 
expenses. The SJA or legal adviser will provide assistance.
    (1) Where local travel is performed at the request of a U.S. 
Attorney and the testimony does not involve information acquired in the 
performance of duties, transportation arrangements and any per diem 
expenses are the responsibility of the U.S. Attorney.
    (2) An attorney asserting the government's medical care or property 
claim may be required to advance local travel expense money to the 
witness requested and to include these in recoverable costs where the 
government's claim is not large enough to justify expenditures of 
government travel funds.
    (3) Other local travel and per diem expense for cases involving 
Army activities or claims are proper expenses of the command issuing 
the orders.
    (4) Litigation Division will furnish travel expense and per diem 
funds for other than local travel and will receive reimbursement from 
DOJ or other government agencies as appropriate.


Sec. 516.55   Witnesses for a state or private litigant.

    (a) Status of witness. If authorized to appear as a witness for a 
state or private litigant, and the testimony to be given relates to 
information obtained in the performance of official duties, a military 
member will attend in a permissive TDY status. If authorized to appear 
as a witness, but the testimony does not relate to information obtained 
in the performance of official duties, a military member may be granted 
a pass or permissive TDY under AR 630-5, or be required to take 
ordinary leave. The status of a civilian employee will be determined 
under 5 CFR Chapter I.
    (b) Travel arrangements. The requesting party or state agency will 
make all travel arrangements for attendance of DA personnel authorized 
to appear as witnesses for a state or private litigant. The local 
commander may issue appropriate orders when necessary.
    (c) Travel expenses. The United States may not pay travel, meals, 
and lodging expenses of the witness, other than normal allowances for 
subsistence pursuant to the DOD Military Pay and Allowances 
Entitlements Manual. These expenses are solely a matter between the 
witness and the party seeking his appearance. Witnesses ordinarily 
should be advised to require advance payment of such expenses. Military 
personnel authorized to appear in a pass or permissive TDY status are 
not entitled to receive witness attendance fees, but may accept travel, 
meals, and lodging expense money from the requesting litigant. All 
witness fees tendered the military member, to the extent they exceed 
such actual expenses of the member, will be remitted to the Treasurer 
of the United States. A civilian employee authorized to appear in his 
or her official capacity will accept the authorized witness fees, in 
addition to the allowance for travel and subsistence, and make 
disposition of the witness fees as instructed by his or her personnel 
office.
    (d) Funding by the United States. Requests for DA personnel to 
appear at government expense as witnesses in state or local proceedings 
for a party other than the United States, including cases involving 
domestic violence or child abuse, will be referred to Litigation 
Division. Litigation Division may authorize travel and per diem 
expenses under Sec. 516.54 when the case is one in which the United 
States has a significant interest.


Sec. 516.56  Witnesses before foreign tribunals.

    (a) Referral to the SJA. Requests or subpoenas from a foreign 
government or tribunal for present DA personnel stationed or employed 
within that country to be interviewed or to appear as witnesses will be 
forwarded to the SJA of the command exercising general court-martial 
jurisdiction over the unit to which the individual is assigned, 
attached, or employed. The SJA will determine the following:
    (1) Whether a consideration listed in Sec. 516.47(a)(1) through 
(a)(3) applies.
    (2) Whether the information requested is releasable under the 
principles established in Sec. 516.43 through Sec. 516.46.
    (3) Whether the approval of the American Embassy should be obtained 
because the person is attached to the Embassy staff or a question of 
diplomatic immunity may be involved.
    (b) United States has an interest in the litigation. If the SJA 
determines that the United States has an interest in the litigation, 
the commander may authorize the interview or order the individual's 
attendance in a temporary duty status. The United States will be deemed 
to have an interest in the litigation if it is bound by treaty or other 
international agreement to ensure the attendance of such personnel.
    (c) United States has no interest in the litigation. If the SJA 
determines that the United States does not have an interest in the 
litigation, the commander may authorize the interview or the appearance 
of the witness under the principles established in Sec. 516.47 through 
Sec. 516.50.
    (d) Witnesses located outside the requester's country. If the 
requested witness is stationed in a country other than the requester's, 
the matter will be referred to Litigation Division.

Subpart H--Remedies in Procurement Fraud and Corruption


Sec. 516.57  Purpose

    This subpart delineates the policies, procedures, and 
responsibilities for reporting and resolving allegations of procurement 
fraud or irregularities (PFI) within DA. It implements DOD Directive 
7050.5. (See Appendix D to this part.)


Sec. 516.58  Policies

    (a) Procurement fraud and irregularities will be promptly and 
thoroughly addressed whenever encountered. Reports will be initiated in 
a timely manner and will be supplemented as appropriate.
    (b) Investigations will be monitored to see that interim corrective 
action is taken and that final action is taken as expeditiously as 
possible.
    (c) This regulation establishes the Procurement Fraud Division 
(PFD), U.S. Army Legal Services Agency, as the single centralized 
organization within the Army to coordinate and monitor criminal, civil, 
contractual, and administrative remedies in significant cases of fraud 
or corruption relating to Army procurement.
    (d) The key elements of the Army's procurement fraud program 
follow: centralized policy making and program direction; fraud remedies 
coordination; decentralized responsibility for operational matters, 
such as reporting and remedial action; continuous case monitorship by 
PFD from the initial report until final disposition; and, command-wide 
fraud awareness training.
    (e) Remedies for PFI will be pursued in a timely manner and 
properly coordinated with other agencies. Every effort will be made to 
support criminal investigation and prosecution of fraudulent activity.
    (f) A specific remedies plan will be formulated for each 
significant case of fraud or corruption involving procurement.
    (g) Coordination on the status and disposition of cases will be 
maintained between PFD, OTJAG, PFI Coordinators at MACOMs, and 
Procurement Fraud Advisers at subordinate commands. Coordination of 
procurement and personnel actions will be accomplished with 
investigative agencies as required by those agencies.
    (h) Training which relates to fraud and corruption in the 
procurement process is a significant element of this program.


Sec. 516.59  Duties and procedures.

    (a) TJAG has overall responsibility for the coordination of 
remedies in procurement fraud and corruption within the Army. This 
responsibility has been delegated to PFD. Functions of PFD will include 
the following:
    (1) Serving as the single centralized organization in the Army to 
monitor the status of, and ensure the coordination of, criminal, civil, 
contractual, and administrative remedies for each significant case of 
fraud or corruption.
    (2) Receiving reports of procurement fraud and corruption from any 
source including, but not limited to the following: DOD criminal 
investigative organizations; audit agencies; contracting officers; 
inspectors general of the executive branch; correspondence from the 
public; and, commanders. This provision does not repeal any other 
reporting requirement but establishes PFD as a recipient of PFI 
information at the earliest possible time.
    (3) Establishing a monitoring system within OTJAG for all cases of 
fraud and corruption that relate to Army procurement.
    (4) Discussing regularly with the U.S. Army Criminal Investigation 
Command (USACIDC) or the assigned DOD criminal investigative 
organization the current status of significant fraud or corruption 
cases and their coordination with prosecutive authorities.
    (5) Ensuring that all criminal, civil, contractual, and 
administrative remedies are considered in each significant fraud or 
corruption case and that timely and applicable remedies are undertaken 
by commanders, contracting officers, and suspension and debarment 
authorities. For example, consideration of suspension or debarment of a 
contractor or individual should normally be initiated within 30 days of 
indictment or conviction.
    (6) Coordinating, as appropriate, with other DOD components 
affected by a significant fraud or corruption case being monitored by 
the Army.
    (7) Developing, with the responsible DOD investigative 
organization, Procurement Fraud Coordinators and Advisers, and other 
involved agencies, a specific comprehensive remedies plan for each 
significant fraud or corruption case.
    (8) Coordinating remedies with DOJ. In the case of ongoing criminal 
investigations, coordinate remedies through, or with the prior 
knowledge of, the DOD criminal investigative organization responsible 
for the case.
    (9) In significant fraud or corruption cases, identifying and 
documenting any known adverse impact on a DOD mission, and including 
the information in any remedies plan.
    (10) Providing the appropriate DOD criminal investigative 
organization with information concerning final remedies as a result of 
an investigation by that organization.
    (11) Receiving notifications from criminal investigative agencies 
concerning substituted, defective, and counterfeit hardware in which a 
serious hazard to health, safety or operational readiness is indicated; 
ensuring that appropriate safety, procurement and program officials are 
informed in accordance with enclosure 3 of DOD Directive 7050.5. PFD 
will specifically ensure that contract reviews (DD 350 reports) and 
adverse impact statements (See Sec. 516.64(c)(2) are prepared, and that 
such information is used to determine if further inquiry is warranted 
to prevent reoccurrence and to detect other possible fraud. Impact 
statements will not be released to prosecutive agencies until reviewed 
by PFD. When appropriate, PFD will coordinate with other DOD agencies 
to establish a lead agency for victim impact statements in multi-DOD 
agency cases.
    (b) The Commanding General, USACIDC, will take the following 
actions:
    (1) Notify PFD of any investigations involving fraud or corruption 
related to procurement activities.
    (2) Notify other DOD component criminal investigative organizations 
when investigations involving fraud or corruption affect that 
component. This includes evidence of fraud by a contractor, 
subcontractor, or employee of either, on current or past contracts 
with, or affecting, that component.
    (3) Notify the Defense Investigative Service of any investigations 
that develop evidence which affects DOD cleared industrial facilities 
or personnel.
    (4) Determine the effect on any ongoing investigations or 
prosecutions of any criminal, civil, contractual, or administrative 
actions being considered by a centralized organization and advise of 
any adverse impact.
    (5) Promptly provide commanders, contracting officers, Procurement 
Fraud Advisers, and suspension and debarment authorities, when needed 
to allow consideration of applicable remedies, any court records, 
documents, or other evidence of fraud or corruption from ongoing or 
completed criminal investigations. In cases of indictment or conviction 
of a contractor or individual, the information will be provided in time 
for initiation, if appropriate, of suspension or debarment action 
within 30 days of the indictment or conviction.
    (6) Provide prosecutive authorities and centralized organizations 
with timely information on the adverse impact on a DOD mission of fraud 
or corruption that relates to DOD procurement activities. This 
information will be obtained from individuals such as the head of the 
contracting agency, appropriate commanders, and staff agencies. Some 
examples of adverse impact on a DOD mission are endangerment of 
personnel or property, monetary loss, compromise of the procurement 
process, or reduction or loss of mission readiness.
    (7) Discuss regularly with Procurement Fraud Advisers the status of 
significant investigations of fraud or corruption and their 
coordination with prosecutive authorities and provide documents and 
reports resulting from the investigations.
    (c) Commanders of service schools conducting procurement or 
procurement-related training (such as The Judge Advocate General's 
School, the U.S. Military Police School, and the U.S. Army Logistics 
Management Center) will ensure the following:
    (1) All procurement and procurement-related training includes a 
period of instruction on fraud and corruption in the procurement 
process. The length of the period of instruction will be appropriate to 
the duration and nature of the training.
    (2) Training materials are developed to support that training.
    (3) Training materials developed will be sent to MACOM PFI 
Coordinators.
    (d) MACOM commanders and heads of contracting activities will 
ensure the following:
    (1) Substantial indications of fraud or corruption relating to Army 
contracts or Army administered contracts are reported promptly to the 
supporting USACIDC element and the Procurement Fraud Division.
    (2) Information provided includes reports by contracting officers 
under DFARS 209.406-3.


Sec. 516.60  Procurement fraud and irregularities programs at MACOMs.

    (a) Command counsel and SJAs at MACOMs will develop a program and 
appoint an attorney as PFI Coordinator for their command. Chief counsel 
and SJAs at commands with procurement advisory responsibility will 
appoint an attorney as a Procurement Fraud Adviser (PFA) to manage the 
PFI program at their installations as well.
    (b) Provision may be made for activities not having sufficient 
attorney assets to obtain assistance from nearby installations that 
have a PFA.
    (c) Reports and recommendations will be transmitted through command 
channels to the PFI coordinator for the affected MACOM.
    (d) Command counsel, chief counsel, and SJAs will exercise 
supervisory authority to ensure effective operation of the fraud 
program and coordination of remedies within their organizations.
    (e) The MACOM PFI Coordinator will have overall responsibility for 
the design and implementation of the MACOM's procurement fraud program.
    (f) PFAs and PFI Coordinators will coordinate with the appropriate 
local CID or Defense Criminal Investigative Service (DCIS) activity to 
assure the prompt notification and coordination of all Procurement 
Fraud cases.


Sec. 516.61  Reporting requirements.

    (a) Typical fraud indicators during the procurement cycle are 
listed in Figure D-1, Appendix G, to this part. The mere presence of 
one or more of these indicators does not, by itself, require reporting 
under paragraph b of this section. Reports should be submitted if there 
is a reasonable suspicion of procurement fraud or irregularity or the 
procuring agency refers the matter for investigation.
    (b) ``Procurement Flash Reports'' will be transmitted by FAX 
directly to PFD whenever a PFI Coordinator or PFA receives notice of a 
PFI involving the Army. To facilitate filing, a separate sheet should 
be used for each case reported. These reports will provide a succinct 
summary of the following available information:
    (1) Name and address of contractor.
    (2) Known subsidiaries of parent firms.
    (3) Contracts involved in potential fraud.
    (4) Nature of potential fraud.
    (5) Summary of pertinent facts.
    (6) Possible damages.
    (7) Investigative agencies involved.
    (8) Local PFAs (name and phone numbers).
    Any of the above categories that cannot be completed will be 
annotated as ``unknown at present.''
    (c) When a report is required by DFARS or is requested by PFD, the 
provisions of DFARS 209.406-3 (48 CFR 209.406-3) will be followed. That 
paragraph provides the basic content and format for PFI reports.
    (d) All personnel will cooperate to ensure that investigations and 
prosecutions of procurement fraud are completed in a timely and 
thorough manner. Requests for assistance from federal prosecutors 
should be processed through the local PFA whenever possible. Requests 
for federal investigators will be processed through the supporting 
USACIDC and the PFA will be notified. When the conduct of criminal 
investigations and prosecutions conflict with the progress of 
procurements, reasonable deference will be given to criminal 
investigators and prosecutors whenever possible. Any serious conflict 
that cannot be resolved at a local level will be immediately reported 
to the PFI Coordinator or PFD for action.
    (e) PFI Coordinators and PFAs may request access to information 
obtained during criminal investigations that is not protected by Fed. 
R. Crim. P. 6(e) and use this information to assist them in taking 
appropriate administrative, contractual, and civil remedies. Requests 
for this information should be made directly to the appropriate federal 
investigative agency. The investigative organization may withhold 
requested information if release would compromise an investigation. 
Difficulties in obtaining information which cannot be resolved locally 
will be referred to PFD for appropriate action.
    (f) USACIDC will notify, in writing, local PFAs as well as PFD 
within 30 days, of initiation of a significant investigation of fraud 
or corruption related to Army procurement activities. Such notification 
will include the following:
    (1) Case title.
    (2) USACIDC Report of Investigation number.
    (3) Responsible investigative agency or agencies.
    (4) Office of primary responsibility.
    (5) Date opened.
    (6) Summary of facts.
    (7) Suspected offense.
    (g) The transmission of the information in f above may be delayed 
if the Commanding General, USACIDC, or the head of another DOD criminal 
investigation organization determines the transmission would compromise 
the success of any case or its prosecution. The prosecutive authorities 
dealing with the case will be consulted, when appropriate, in making 
such determinations.
    (h) USACIDC will obtain the following information at the earliest 
possible point in an investigation of fraud or corruption that relates 
to DOD procurement activities, whenever possible without reliance on 
grand jury subpoenas:
    (1) The individuals suspected to be responsible.
    (2) The suspected firm's organizational structure.
    (3) The firm's financial and contract history.
    (4) The firm's organizational documents and records.
    (5) Statements of witnesses.
    (6) Monetary loss to the government.
    (7) Other relevant information.
    This information will be provided to PFD or other cognizant DOD 
centralized organization.
    (i) PFD will provide written notification to the Defense 
Investigative Service of all suspension or debarment actions taken by 
the Army.


Sec. 516.62  PFD and HQ USACIDC coordination.

    PFD and HQ USACIDC will coordinate as follows:
    (a) Discuss the status of significant procurement fraud or 
corruption investigations being conducted by USACIDC and possible 
remedies. These discussions should take place on a regular basis.
    (b) Discuss the coordination of possible criminal, civil, 
contractual, or administrative remedies with prosecutive authorities.
    (c) PFD will maintain liaison with other DOD centralized 
organizations and will coordinate remedies with those centralized 
organizations affected by a significant investigation of fraud or 
corruption that relates to DOD procurement activities.
    (d) Ascertain the effect on any ongoing investigation of the 
initiation of civil, contractual, or administrative remedies as 
follows:
     (1) PFD will maintain liaison with USACIDC and other DOD criminal 
investigative organizations in order to determine the advisability of 
initiating any civil, contractual, or administrative actions.
     (2) USACIDC will advise PFD of any adverse effect on an 
investigation or prosecution by the initiation of civil, contractual, 
or administrative actions.


Sec. 516.63  Coordination with DOJ.

    (a) PFD will establish and maintain liaison with DOJ and the 
Defense Procurement Fraud Unit on significant fraud and corruption 
cases to accomplish the following:
     (1) Monitor criminal prosecutions.
     (2) Initiate litigation for civil recovery.
     (3) Coordinate administrative or contractual actions while 
criminal or civil proceedings are pending.
     (4) Coordinate settlement agreements or proposed settlements of 
criminal, civil, and administrative actions.
     (5) Respond to DOJ requests for information and assistance.
    (b) In cases where there is an ongoing criminal investigation, 
coordination with DOJ by any member of the Army normally will be 
accomplished by or through USACIDC or the cognizant DOD criminal 
investigative organization, or with the investigative organization's 
advance knowledge. This does not apply to the routine exchange of 
information between government attorneys in the course of civil 
litigation or the routine referral of cases to DOJ for civil recovery.
    (c) Initial contact by any attorney associated with the U.S. Army 
with a U.S. Attorney's office or DOJ, whether initiated by the Army 
attorney or not, will be reported to PFD. Activity after the initial 
contact will only be reported to PFD when the Army attorney feels there 
has been a significant event in the case. If the Army attorney is not a 
PFI Coordinator or a PFA, the matter should be referred to one of these 
two attorneys as soon as possible. Routine exchanges between Army 
attorneys and U.S. Attorney's offices or DOJ do not need to be brought 
to the attention of PFD.


Sec. 516.64  Comprehensive remedies plan.

    (a) A specific, comprehensive remedies plan will be developed in 
each significant investigation involving fraud or corruption that 
relates to Army procurement activities. When possible, these plans 
should be forwarded with the DFARS 209.406-3 reports. In no case, 
however, should the report be delayed an appreciable time pending 
completion of the plan. The format for a remedies plan is at Figure H-
2, Appendix G, to this part.
    (b) The plan will be developed initially by the PFA with the 
participation of the appropriate criminal investigators and other 
relevant personnel such as the contracting officer. In significant 
cases the PFA should also coordinate a remedies plan early with PFD. 
Defective product/product substitution remedies plans must comply with 
the requirements of Appendix D to this part.
    (c) A comprehensive remedies plan will include at a minimum the 
following information and considerations:
    (1) Summary of allegations and investigative results.
    (2) Statement of any adverse impact on a DOD mission. DOD 
investigative organizations, commanders, or procurement officials will 
also provide this information to prosecutive authorities to enhance 
prosecution of offenses or to prepare a victim impact statement 
pursuant to Fed. R. Crim. P. 32(c)(2).
    (3) The impact upon combat readiness and safety.
    (4) Consideration of each criminal, civil, contractual, and 
administrative remedy available, and documentation of those remedies, 
either planned, in progress, or completed.
    (5) Restrictions on the pursuit of any remedies such as grand jury 
information or possible compromise of the investigation.
    (d) When remedies plans are received by PFD they will be 
coordinated with the headquarters of the appropriate DOD criminal 
investigative organization involved.
    (e) Testing necessary to support the investigation and remedies 
plan should comply with Figure H-3, Appendix G, to this part.


Sec. 516.65  Litigation reports in civil recovery cases.

    (a) All substantiated PFI cases will be evaluated by PFAs to 
determine whether it is appropriate to recommend civil recovery 
proceedings.
    (b) Recovery should be considered under both statutory and common 
law theories, including but not limited to the following:
    (1) False Claims Act, 31 USC 3729.
    (2) Anti-Kickback Act, 41 USC 51.
    (3) Sherman Act, 15 USC 1-7.
    (4) Racketeer Influenced and Corrupt Organizations Act, 18 USC 
1961-1968.
    (5) Common law fraud.
    (6) Unjust enrichment.
    (7) Constructive trust.
    (8) Cases where contracts have been procured in violation of the 
conflict of interest statute, 18 USC 218. See K&R Engineering Co. v. 
United States, 616 F.2d 469 (Ct. Cl., 1980).
    (c) When civil recovery appears possible, PFD should be consulted 
to determine if a litigation report is necessary. If requested by PFD, 
the report should summarize the available evidence and applicable 
theories of recovery and be prepared under Sec. 516.23 of this part. To 
avoid unnecessary duplication of effort, recovery reports may include 
and make liberal references to other reports previously prepared on a 
given case such as the DFARS 209.406-3 (48 CFR 209.406-3) report.
    (d) The MACOM PFI coordinator and PFA will monitor all civil fraud 
recovery efforts throughout the command and will provide training and 
technical assistance as required. Status reports of all civil fraud 
recovery efforts will be provided through channels as required by PFD.


Sec. 516.66  Administrative and contractual actions.

    (a) The following remedial options should be considered in response 
to confirmed fraudulent activity:
    (1) Contractual.
    (i) Termination of contract for default.
    (ii) Nonaward of contract based upon a finding of contractor 
nonresponsibility. (If this appears to be a valid option, a DFARS 
209.406-3 (48 CFR 209.406-3) report must be prepared where contractor 
nonresponsibility is based on lack of integrity).
    (iii) Rescission of contract.
    (iv) Revocation of acceptance.
    (v) Use of contract warranties.
    (vi) Withholding of payments to contractor. In the case of 
withholding pursuant to DFARS 2032.173, the Chief, PFD, is the Army 
Remedy Coordinating Official.
    (vii) Offset of payments due to contractor from other contracts.
    (viii) Revocation of facility security clearances.
    (ix) Increased level of quality assurance.
    (x) Refusal to accept nonconforming goods.
    (xi) Denial of claims submitted by contractors.
    (xii) Removal of contract from automated solicitation or payment 
system.
    (2) Administrative.
    (i) Change in contracting forms and procedures.
    (ii) Removal or reassignment of government personnel.
    (iii) Review of contract administration and payment controls.
    (iv) Revocation of warrant of contracting officer.
    (v) Suspension of contractor.
    (vi) Debarment of contractor.
    (b) In cases which are pending review or action by DOJ, PFAs should 
coordinate with the DOJ attorney handling the case prior to initiating 
any contractual or administrative remedy. In the case of ongoing 
criminal investigations, this coordination will be accomplished through 
the appropriate DOD criminal investigation organization.


Sec. 516.67  Overseas cases of fraud or corruption.

    (a) Commanders of overseas major commands will establish 
procedures, similar to this regulation and consistent with the DFARS, 
and regulations and directives of their respective unified commands, 
for reporting and coordination of available remedies in overseas 
procurement fraud and corruption cases involving foreign firms and 
individuals. Overseas major commands will also maintain liaison with 
PFD and provide periodic reports of remedies coordination results.
    (b) Overseas suspension and debarment actions are governed by DFARS 
209.403 (48 CFR 209.403). The names of all firms and individuals 
suspended or debarred will be expeditiously forwarded to PFD for 
inclusion on the List of Parties Excluded From Federal Procurement or 
NonProcurement Programs.
    (c) Overseas cases of fraud or corruption related to the 
procurement process that involve U.S. firms or U.S. citizens may be 
referred to PFD for coordination of remedies under this regulation.


Sec. 516.68  Program Fraud Civil Remedies Act (PFCRA).

    (a) PFCRA was enacted on 21 October 1986 (Public Law 99-509) and 
implemented by DOD on 30 August 1988 (DOD Directive 5505.5). (See 
Appendix E to this part.)
    (b) PFCRA expands the capability of the government to deter and 
recover losses from false, fictitious or fraudulent claims and 
statements. It is also applicable to program fraud and provides an 
administrative remedy in addition to those otherwise available to the 
Army in procurement fraud or pay and entitlements fraud cases.
    (c) As part of the Army implementation, the Secretary of the Army's 
duties and responsibilities under PFCRA as Authority Head are delegated 
to the Army General Counsel. The Chief, Intellectual Property Law 
Division, is the Army's Reviewing Official within the meaning of PFCRA. 
Army implementation also requires DA to follow the policies and 
procedures prescribed in enclosure 2 of DOD Directive 5505.5. (See 
Appendix E to this part.)
    (d) The DOD Inspector General (IG) is the Investigating Official 
within DOD. The duties of this position will be performed by the 
Assistant IG For Investigations. This individual is vested with the 
authority to investigate all allegations of liability under PFCRA. That 
authority includes the power to task subordinate investigative agencies 
to review and report on allegations that are subject to PFCRA. If the 
Investigative Official concludes that an action under PFCRA is 
warranted in an Army case, the official will submit a report containing 
the findings and conclusions of such investigation through PFD to the 
Army Reviewing Official.
    (e) Pursuant to DOD IG guidance, USACIDC will forward appropriate 
cases that appear to qualify for resolution under PFCRA to the 
Investigating Official in a timely manner. Additionally, USACIDC will 
forward current information regarding the status of remedies pending or 
concluded. USACIDC may obtain remedies information by coordinating with 
PFD and the cognizant command.
    (f) In pay and entitlement or transportation operation fraud cases, 
USACIDC will coordinate with the Office of the Secretary of the Army, 
Financial Management, Review and Oversight Directorate (SAFM-RO), to 
determine the status of any pending or proposed action under the Debt 
Collection Act. This information, in addition to information obtained 
under Sec. 517.68(e), will be forwarded with appropriate cases to the 
Investigating Official.
    (g) In those cases where the Investigating Official has submitted a 
report to the Army Reviewing Official for action under PFCRA, PFD will, 
at the direction of the Reviewing Official, prepare all legal memoranda 
as necessary to transmit the Reviewing Official's intention to issue a 
complaint. As part of this responsibility PFD will do the following: 
coordinate with the affected command or agency to ensure that all 
appropriate remedies have been considered; evaluate the overall 
potential benefits to the Army; and, ensure that action under PFCRA is 
not duplicative of other remedies already taken. In order to fully 
supplement the Reviewing Official's file, PFD may request a litigation 
report.
    (h) PFD will coordinate all cases involving transportation 
operations emanating from Military Traffic Management Command (MTMC) 
activity, under the military transportation exception to the FAR, and 
all cases involving pay and entitlements fraud with SAFM-RO, for 
comments and recommendations. These matters will be forwarded with the 
case file to the Reviewing Official.
    (i) If the Attorney General approves the issuance of a complaint, 
PFD, at the direction of the Army Reviewing Official, shall prepare the 
complaint and all necessary memoranda as required. PFD shall also 
designate attorneys to represent the Authority in hearings under PFCRA.

Subpart I--Cooperation With the Office of Special Counsel


Sec. 516.69  Introduction.

    This subpart prescribes procedures for cooperation with the Office 
of Special Counsel (OSC) when OSC is investigating alleged prohibited 
personnel practices or other allegations of improper or illegal conduct 
within DA activities.


Sec. 516.70  Policy.

    (a) DA policy follows:
    (1) Civilian personnel actions taken by management officials, 
civilian and military, will conform to laws and regulations 
implementing established merit system principles and will be free of 
any prohibited personnel practices.
    (2) Management officials will take vigorous corrective action when 
prohibited personnel practices occur. Disciplinary measures under AR 
690-700, Chapter 751, may be initiated after consultation and 
coordination with appropriate civilian personnel office and labor 
counselor.
    (b) DA activities will cooperate with OSC in the following ways:
    (1) Promoting merit system principles in civilian employment 
programs within DA.
    (2) Investigating and reporting allegations of improper or illegal 
conduct forwarded to the activity by HQDA.
    (3) Facilitating orderly investigations by the OSC of alleged 
prohibited personnel practices and other matters assigned for 
investigation to the OSC, such as violations of the Whistleblower 
Protection Act of 1989, the Freedom of Information Act, or the Hatch 
Act.


Sec. 516.71  Duties.

    (a) DA General Counsel. The DA General Counsel is responsible for 
the following:
    (1) Provide overall guidance on all issues concerning cooperation 
with OSC, including the investigation of alleged prohibited personnel 
practices and allegations of improper or illegal conduct.
    (2) Review for adequacy and legal sufficiency each OSC report of 
investigation that must be personally reviewed by the Secretary of the 
Army.
    (3) Ensure compliance with the Civil Service Reform Act of 1978 by 
obtaining a suitable investigation of allegations of improper or 
illegal conduct received from OSC. This includes compliance with time 
limits for reporting results of the investigation and personal review 
of the report by the Secretary of the Army when required.
    (4) Forward to the DOD Inspector General (DODIG) copies of each 
allegation of improper or illegal conduct referred to DA by OSC.
    (5) Delegate to The Judge Advocate General the authority to act on 
behalf of the DA General Counsel in all OSC investigations of 
prohibited personnel practices.
    (6) Act upon requests for counsel from ``accused'' or ``suspected'' 
employees.
    (b) Chief, Labor and Employment Law Office. The Chief, Labor and 
Employment Law Office, OTJAG (DAJA-LE) is responsible for the 
following:
    (1) Act for TJAG as the Senior Management Official in cooperating 
with OSC. As Senior Management Official, the Chief, DAJA-LE, through 
TJAG, will be responsible to the DA General Counsel for administration 
of the policies and procedures contained in this chapter.
    (2) Promptly inform the DA General Counsel of any OSC investigation 
and consult with the DA General Counsel on any legal or policy issue 
arising from an OSC investigation.
    (3) Serve as the HQDA point of contact in providing assistance to 
OSC.
    (4) Act as DA attorney-of-record in administrative matters 
initiated by OSC before the MSPB which arise from an OSC investigation. 
As DA attorney-of-record, the Chief, DAJA-LE, will file necessary 
pleadings and make necessary appearances before the MSPB to represent 
DA interests.
    (5) Monitor ongoing OSC investigations within DA.
    (6) Ensure that appropriate DA personnel are fully apprised of 
their rights, duties and the nature and basis for an OSC investigation.
    (7) Review and prepare recommendations to the General Counsel 
concerning any OSC recommended corrective action referred to DA. Such 
review and recommendations will address whether disciplinary action 
should be taken against DA civilian employees or military members, and 
whether the information warrants referral to appropriate authorities 
for corrective and disciplinary action.
    (8) Seek OSC approval of DA proposed disciplinary action against an 
employee for an alleged prohibited personnel practice or other 
misconduct which is the subject of or related to any OSC investigation.
    (9) Review and prepare recommendations for DA General Counsel 
concerning requests for counsel, to include identifying available DA 
attorneys to act as individual representatives. Upon approval of DA 
General Counsel, appoint DA civilian and military attorneys, to include 
attorneys from the U.S. Army Materiel Command and the Corps of 
Engineers, to represent individual military members or employees.
    (10) Determine, to the extent practicable, whether an investigation 
is being or has been conducted which duplicates, in whole or in part, a 
proposed or incomplete OSC investigation, and convey that information 
to the OSC whenever it might avoid redundant investigative efforts.
    (11) Provide guidance and assistance to activity Labor Counselors 
in fulfilling their duties as Liaison Officers.
    (c) Activity Labor Counselor. The activity Labor Counselor will do 
the following:
    (1) Act as Liaison Officer for OSC investigations arising within 
the command, activity or installation serviced by the Labor Counselor's 
client Employment Office.
    (2) Promptly inform the MACOM labor counselor and the Chief, DAJA-
LE, of any OSC inquiry or investigation.
    (3) Act as the legal representative of the command, activity, or 
installation.
    (4) Assist the OSC investigator with administrative matters related 
to the investigation, such as requests for witnesses and documents.
    (5) Process all OSC requests for documents.
    (6) Make appropriate arrangements for OSC requests to interview 
civilian employees and military members.
    (7) Ensure that personnel involved are advised of the nature and 
basis for an OSC investigation, the authority of the OSC, and their 
rights and duties.
    (8) Consult with the Chief, DAJA-LE, on policy and legal issues 
arising from the OSC investigation.
    (9) Keep the Chief, DAJA-LE, informed of the status of the OSC 
investigation.
    (l0) Act as agency representative before the MSPB in actions 
initiated by employees (individual right of action appeals).


Sec. 516.72  Procedures.

    (a) Witnesses and counsel for consultation.
    (1) DA military and civilian managers, supervisors, and employees 
who are requested by OSC for an interview will be made available in 
accordance with arrangements the Labor Counselor will establish. 
Requests for the testimony of IGs will be coordinated with the 
Inspector General Legal Office, SAIG-ZXL, DSN 227-9734 or Commercial 
(703) 697-9734.
    (2) The Labor Counselor will ensure that witnesses are aware of 
their obligation to answer OSC questions, their potential to be 
considered ``suspects'' in OSC investigations, and their right to the 
assistance of counsel during interviews with OSC representatives. If 
the requested witness is not an ``accused'' or ``suspected'' individual 
and the witness asks for assistance of counsel, a DA attorney will be 
made available for the limited purpose of consultation regarding the 
witness' rights and obligations. An attorney-client relationship will 
not be established. (See Appendix F to this part).
    (3) The Labor Counselor will arrange for individual counsel for 
consultation from local assets. If local assets are not sufficient, 
assistance may be requested from other DOD activities in the area or 
from HQDA, DAJA-LE. DA attorneys tasked to consult with one or more 
witnesses individually will not be tasked to represent the DA activity 
concerned.
    (4) The Labor Counselor, as the legal representative of the 
activity, is precluded from assisting or representing individual 
witnesses during OSC interviews.
    (b) ``Accused'' or ``suspected'' DA personnel and counsel for 
representation.
    (1) If the OSC identifies a DA civilian employee or a military 
member as an ``accused'' or ``suspected'' individual, or if the Labor 
Counselor concludes that an individual is a ``suspect,'' the Labor 
Counselor will inform the individual. The Labor Counselor also will 
advise the individual of the availability of counsel for representation 
upon approval by DA General Counsel. (See Glossary, Counsel for 
Representation).
    (2) If the ``suspected'' individual desires legal representation by 
DA, the individual must request counsel by submitting a written request 
through DAJA-LE to DA General Counsel. (See Figure I-1, Appendix G, to 
this part).
    (3) During the investigation but prior to DA General Counsel 
approval of the request for counsel, an ``accused'' or ``suspected'' 
individual will be provided the assistance of counsel for consultation 
in the same manner as any other OSC requested witness. ``Accused'' or 
``suspected'' individuals who do not request counsel for representation 
will be provided counsel for consultation in the same manner as any 
other OSC requested witness.
    (4) If the DA General Counsel approves the request for counsel, the 
Chief, DAJA-LE, will appoint a DA attorney to represent the individual. 
This appointment may be made telephonically but will be confirmed in 
writing. The Chief, DAJA-LE, will make appropriate coordination with 
MACOM SJAs and command counsel to confirm availability of the attorney.
    (5) An attorney appointed by DA may represent a civilian employee 
in any proceeding initiated by OSC before the MSPB. However, counsel 
provided by DA may not represent the employee in any proceeding 
initiated by DA, in any appeal from a final decision by the MSPB, or in 
any collateral proceeding before any forum other than the MSPB.
    (6) OSC may not bring a disciplinary action before the MSPB against 
a military member. Accordingly, DA counsel will not be required to 
represent the military member in any MSPB disciplinary proceeding. 
However, counsel may represent the member during the OSC investigation 
with the understanding that the evidence obtained by OSC may be 
referred to the member's command for possible disciplinary action under 
the UCMJ or appropriate regulations. If DA initiates action against the 
military member for misconduct disclosed in the OSC investigation, the 
member will obtain counsel as provided under the UCMJ or relevant 
regulations.
    (c) Records.
    (1) OSC requests for records must be in writing. The Labor 
Counselor will assist OSC representatives in identifying the custodian 
of specific records sought during the inquiry.
    (2) Generally, requested records should be furnished to OSC 
representatives if such records would be released under AR 25-55 or AR 
340-21 to other government agencies in the normal course of official 
business. Records constituting attorney work product should not be 
released without approval of the Chief, DAJA-LE. IG records will not be 
released without the approval of the Inspector General. (AR 20-1). The 
Labor Counselor should seek guidance from the Chief, DAJA-LE, if there 
is any doubt concerning the release of records.
    (3) If, after completion of the OSC investigation, the OSC files a 
complaint against DA or a DA employee, release of records and other 
information will be accomplished pursuant to MSPB rules of discovery (5 
CFR part 1201, subpart B).
    (d) Funding. The command, activity, or installation within which 
the allegations of misconduct arose will provide funding for travel, 
per diem and other necessary expenses related to the OSC investigation. 
These expenses may include appropriate funding for witnesses, counsel 
for consultation and DA General Counsel approved counsel for 
representation.


Sec. 516.73  Assistance from HQDA.

    Labor Counselors may seek guidance on questions arising from 
implementation of this chapter by calling the Chief, DAJA-LE, DSN 225-
9476/9481 or Commercial (703) 695-9476/9481.

Subpart J--Soldiers Summoned to Serve on State and Local Juries


Sec. 516.74  General.

    (a) This subpart implements 10 U.S.C. Sec. 982 and DOD Directive 
5525.8. It establishes Army policy concerning soldiers on active duty 
who are summoned to serve on state and local juries.
    (b) This subpart does not apply to Army National Guard soldiers in 
an annual training or full-time AGR (Active Guard Reserve) status under 
Title 32, U.S. Code. Soldiers in a Title 32 status must refer to their 
respective state law for relief from state or local jury duty.


Sec. 516.75  Policy.

    (a) Active duty soldiers should fulfill their civic responsibility 
by serving on state and local juries, so long as it does not interfere 
with military duties.
    (b) The following active duty soldiers are exempt from complying 
with summons to serve on state and local juries:
    (1) General officers.
    (2) Commanders.
    (3) Active duty soldiers stationed outside the United States, 
Puerto Rico, Guam, the Northern Mariana Islands, American Samoa, and 
the Virgin Islands.
    (4) Active duty soldiers in a training status.
    (5) Active duty soldiers assigned to forces engaged in operations.
    (c) Other active duty soldiers may be exempted from serving on 
local juries if compliance with such summons would have either of the 
following effects:
    (1) It would unreasonably interfere with performance of the 
soldier's military duties; or,
    (2) It would adversely affect the readiness of a summoned soldier's 
unit, command, or activity.


Sec. 516.76  Exemption determination authority.

    (a) The commander exercising special court-martial convening 
authority (SPCMCA) over a unit has the authority to determine whether a 
soldier of that unit, who has been served with a summons, is exempt 
from serving on a state or local jury unless that authority has been 
limited or withheld in accordance with paragraph (b) or (c) of this 
section. This authority may not be delegated to a subordinate commander 
who does not exercise SPCMCA.
    (b) A commander superior to the SPCMCA, who also exercises SPCMCA 
or general court-martial convening authority (GCMCA) over a unit, may 
limit or withhold the exemption determination authority of subordinate 
commanders.
    (c) A GCMCA, who orders a unit or soldier assigned to one command 
to be attached or detailed to another command for disciplinary purposes 
(for example, ``for administration'' or ``for administration of 
military justice''), may reserve exemption determination authority to 
the commander exercising SPCMCA in the chain of command to which the 
unit or soldier is assigned rather than the chain of command to which 
the unit or soldier is attached or detailed.


Sec. 516.77  Procedures for exemption.

    (a) Active duty soldiers served with a summons to serve on a state 
or local jury will promptly advise their commander and provide copies 
of pertinent documents.
    (b) Unit commanders will evaluate the summons considering both the 
individual soldier's duties and the unit mission. Coordination with the 
servicing judge advocate or legal adviser and with the appropriate 
state or local official may be necessary to determine any impact on the 
soldier's duties or on unit readiness.
    (1) If the soldier is not exempt under Sec. 516.75 (b) or (c), the 
commander will process the soldier for permissive TDY in accordance 
with AR 630-5, Leaves and Passes.
    (2) If the soldier is exempt under Sec. 516.75 (b) or (c), the 
commander will forward the summons and any related documentation, with 
recommendations, through the chain of command to the commander with 
exemption determination authority over the soldier concerned.
    (c) The commander with exemption determination authority over the 
soldier concerned will determine whether the soldier is exempt. His 
determination is final.
    (d) The exemption determination authority will notify responsible 
state or local officials whenever a soldier summoned for jury duty is 
exempt. The notification will cite 10 U.S.C. 982 as authority.


Sec. 516.78  Status, fees, and expenses.

    (a) Soldiers who are required to comply with summons to serve on 
state or local juries will be placed on permissive TDY under the 
provisions of AR 630-5.
    (b) Jury fees accruing to soldiers for complying with the summons 
to serve on state and local juries must be turned over to the 
appropriate finance office for deposit into the U.S. Treasury. Commands 
will establish procedures with local authorities and their servicing 
finance and accounting activity to ensure that such jury fees are so 
deposited. Soldiers, however, may keep any reimbursement from state or 
local authority for expenses incurred in the performance of jury duty, 
including transportation, meals, and parking.

Appendix A to Part 516--References

    Publications referenced in this part can be obtained at the 
National Technical Information Services, U.S. Department of 
Commerce, 5285 Port Royal Road, Springfield, VA 22161.

Required Publications

AR 25-55, The Department of the Army Freedom of Information Act 
Program. (Cited in Secs. 516.40, 516.72)
AR 27-10, Military Justice. (Cited in Sec. 516.4)
AR 27-20, Claims. (Cited in Secs. 516.4, 516.33, 516.22)
AR 27-60, Patents, Inventions, and Copyrights.
AR 37-60, Pricing for Material and Services. (Cited in Sec. 516.43.)
AR 37-103, Finance and Accounting for Installations: Disbursing 
Operations. (Cited in Sec. 516.22.)
AR 60-20, Operating Policies. (Cited in Sec. 516.22.)
AR 190-9, Absentee Deserter Apprehension Program and Surrender of 
Military Personnel to Civilian Law Enforcement Agencies. (Cited in 
Sec. 516.9)
AR 210-47, State and Local Taxation of Lessee's Interest in Wherry 
Act Housing (Title VIII of the National Housing Act).
AR 215-1, Administration of Army Morale, Welfare, and Recreation 
Activities and Nonappropriated Fund Instrumentalities. (Cited in 
Sec. 516.22.)
AR 215-2, The Management and Operation of Army Morale, Welfare, and 
Recreation Activities and Nonappropriated Fund Instrumentalities. 
(Cited in Sec. 516.22.)
AR 310-1, Publications, Blank Forms, and Printing Management.
AR 340-21, The Army Privacy Program. (Cited in Secs. 516.40, 
516.72.)
AR 380-5, Department of the Army Information Security Program.
AR 405-25, Annexation. (Cited in Sec. 516.22.)
AR 630-5, Leaves and Passes. (Cited in Secs. 516.55, 516.77, 
516.78.)
AR 630-10, Absence Without Leave, Desertion, and Administration of 
Personnel Involved in Civilian Court Proceedings. (Cited in 
Sec. 516.9)

Related Publications

    A related publication is merely a source of additional 
information. The user does not have to read it to understand the 
regulation.
AR 20-1, Inspector General Activities and Procedures. (Cited in 
Secs. 516.41, 516.72.)
AR 27-1, Judge Advocate Legal Service.
AR 27-3, Legal Assistance. (Cited in Sec. 516.6.)
AR 27-10, Military Justice. (Cited in Secs. 516.4, 516.5, 516.15.)
AR 27-50, Status of Forces Policies, Procedures, and Information. 
(Cited in Sec. 516.15.)
AR 37-104-3, Military Pay and Allowances Procedures.
AR 37-105, Finance and Accounting for Installations: Civilian Pay 
Procedures.
AR 55-19, Marine Casualties. (Cited in Sec. 516.22.)
AR 190-29, Misdemeanors and Uniform Violation Notices Referred to 
U.S. Magistrates or District Courts.
AR 190-40, Serious Incident Report. (Cited in Sec. 516.15.)
AR 210-50, Family Housing Management. (Cited in Sec. 516.37.)
AR 335-15, Management Information Control System. (Cited in 
Sec. 516.15.)
AR 600-40, Apprehension, Restraint, and Release to Civil 
Authorities.
AR 600-50, Standards of Conduct for Department of the Army 
Personnel.
AR 690-700, Personnel Relations and Services. (Cited in 
Sec. 516.70.)

Prescribed Form

DA Form 4, Department of the Army Certification for Authentication 
of Records. (Prescribed in Sec. 516.25, 516.35.)

Referenced Forms

DA Form 2631-R, Medical Care-Third Party Liability Notification.
DA Form 3154, MSA Invoice and Receipt.

Appendix B to Part 516--Mailing Addresses

    The following is a list of frequently referred to Department of 
the Army Services/Divisions/Offices and their mailing addresses:

COMMANDER (JACS-Z), U.S. ARMY CLAIMS SERVICE, OTJAG, BUILDING 4411, 
ROOM 206, LLEWELLYN AVENUE, FORT GEORGE G. MEADE, MD 20755-5360
    (1) PERSONNEL CLAIMS AND RECOVERY DIVISION (JACS-PC), U.S. ARMY 
CLAIMS SERVICE, OTJAG, BUILDING 4411, ROOM 206, LLEWELLYN AVENUE, 
FORT GEORGE G. MEADE, MD 20755-5360
    (2) TORT CLAIMS DIVISION (JACS-TC), U.S. ARMY CLAIMS SERVICE, 
OTJAG, BUILDING 4411, ROOM 206, LLEWELLYN AVENUE, FORT GEORGE G. 
MEADE, MD 20755-5360
CONTRACT APPEALS DIVISION, HQDA(DAJA-CA), 901 NORTH STUART STREET, 
ARLINGTON, VA 22203-1837
CONTRACT LAW DIVISION, THE JUDGE ADVOCATE GENERAL, 2200 ARMY 
PENTAGON, WASHINGTON, DC 20310-2200
CRIMINAL LAW DIVISION, THE JUDGE ADVOCATE GENERAL, 2200 ARMY 
PENTAGON, WASHINGTON, DC 20310-2200
ENVIRONMENTAL LAW DIVISION, HQDA(DAJA-EL), 901 NORTH STUART STREET, 
ARLINGTON, VA 22203-1837
LABOR AND EMPLOYMENT LAW DIVISION, THE JUDGE ADVOCATE GENERAL, 2200 
ARMY PENTAGON, WASHINGTON, DC 20310-2200,
LITIGATION DIVISION, HQDA(DAJA-LT), 901 NORTH STUART STREET, 
ARLINGTON, VA 22203-1837
    (1) CIVILIAN PERSONNEL BRANCH, HQDA(DAJA-LTC), 901 NORTH STUART 
STREET, ARLINGTON, VA 22203-1837
    (2) GENERAL LITIGATION BRANCH, HQDA(DAJA-LTG), 901 NORTH STUART 
STREET, ARLINGTON, VA 22203-1837
    (3) MILITARY PERSONNEL BRANCH, HQDA(DAJA-LTM), 901 NORTH STUART 
STREET, ARLINGTON, VA 22203-1837
    (4) TORT BRANCH, HQDA(DAJA-LTT), 901 NORTH STUART STREET, 
ARLINGTON, VA 22203-1837
PERSONNEL, PLANS, AND TRAINING OFFICE, THE JUDGE ADVOCATE GENERAL, 
2200 ARMY PENTAGON, WASHINGTON, DC 20310-2200
PROCUREMENT FRAUD DIVISION, HQDA(DAJA-PF), 901 NORTH STUART STREET, 
ARLINGTON, VA 22203-1837
INTELLECTUAL PROPERTY DIVISION, HQDA(JALS-IP), 901 NORTH STUART 
STREET, ARLINGTON, VA 22203-1837
REGULATORY LAW OFFICE, HQDA(JALS-RL), 901 NORTH STUART STREET, 
ARLINGTON, VA 22203-1837
THE JUDGE ADVOCATE GENERAL, 2200 ARMY PENTAGON, WASHINGTON, DC 
20310-2200
THE AJAG FOR CIVIL LAW & LITIGATION, THE JUDGE ADVOCATE GENERAL, 
2200 ARMY PENTAGON, WASHINGTON, DC 20310-2200
U.S. ARMY TRIAL DEFENSE SERVICE, HQDA(JALS-TD), NASSIF BUILDING, 
FALLS CHURCH, VA 22041-5013

Appendix C to Part 516--Department of Defense Directive 5405.2, Release 
of Official Information in Litigation and Testimony by DoD Personnel as 
Witnesses

Department of Defense Directive

July 23, 1985, Number 5405.2, GC, DOD

Subject: Release of Official Information in Litigation and Testimony 
by DoD Personnel as Witnesses
References:
(a) Title 5, United States Code, Sections 301, 552, and 552a
(b) Title 10, United States Code, Section 133
(c) DoD Directive 5220.6, ``Industrial Personnel Security Clearance 
Program,'' December 20, 1976
(d) DoD Directive 5200.1-R, ``Information Security Program 
Regulation,'' August 1982, authorized by DoD Directive 5200.1, June 
7, 1982
(e) DoD Directive 5230.25, ``Withholding of Unclassified Technical 
Data from Public Disclosure,'' November 6, 1984
(f) DoD Instruction 7230.7, ``User Charges,'' January 29, 1985
(g) DoD Directive 5400.7-R, ``DoD Freedom of Information Act 
Program,'' December 1980, authorized by DoD Directive 5400.7, March 
24, 1980

A. Purpose

    Under Section 301 reference (a) and reference (b), this 
Directive establishes policy, assigns responsibilities, and 
prescribes procedures for the release of official DoD information in 
litigation and for testimony by DoD personnel as witnesses during 
litigation.

B. Applicability and Scope

    1. This Directive applies to the Office of the Secretary of 
Defense (OSD), the Military Departments, the Organization of the 
Joint Chiefs of Staff (OJCS), the Unified and Specified Commands, 
and the Defense Agencies (hereafter referred to as ``DoD 
Components''), and to all personnel of such DoD Components.
    2. This Directive does not apply to the release of official 
information or testimony by DoD personnel in the following 
situations:
    a. Before courts-martial convened by the authority of the 
Military Departments or in administrative proceedings conducted by 
or on behalf of a DoD Component;
    b. Pursuant to administrative proceedings conducted by or on 
behalf of the Equal Employment Opportunity Commission (EEOC) or the 
Merit Systems Protection Board (MSPB), or pursuant to a negotiated 
grievance procedure under a collective bargaining agreement to which 
the Government is a party;
    c. In response to requests by Federal Government counsel in 
litigation conducted on behalf of the United States;
    d. As part of the assistance required in accordance with the 
Defense Industrial Personnel Security Clearance Program under DoD 
Directive 5220.6 (reference (c)); or
    e. Pursuant to disclosure of information to Federal, State, and 
local prosecuting and law enforcement authorities, in conjunction 
with an investigation conducted by a DoD criminal investigative 
organization.
    3. This Directive does not supersede or modify existing laws or 
DoD programs governing the testimony of DoD personnel or the release 
of official DoD information during grand jury proceedings, the 
release of official information not involved in litigation, or the 
release of official information pursuant to the Freedom of 
Information Act, 5 U.S.C. Section 552 (reference (a)) or the Privacy 
Act, 5 U.S.C. Section 552a (reference (a)), nor does this Directive 
preclude treating any written request for agency records that is not 
in the nature of legal process as a request under the Freedom of 
Information or Privacy Acts.
    4. This Directive is not intended to infringe upon or displace 
the responsibilities committed to the Department of Justice in 
conducting litigation on behalf of the United States in appropriate 
cases.
    5. This Directive does not preclude official comment on matters 
in litigation in appropriate cases.
    6. This Directive is intended only to provide guidance for the 
internal operation of the Department of Defense and is not intended 
to, does not, and may not be relied upon to create any right or 
benefit, substantive or procedural, enforceable at law against the 
United States or the Department of Defense.

C. Definitions

    1. Demand. Subpoena, order, or other demand of a court of 
competent jurisdiction, or other specific authority for the 
production, disclosure, or release of official DoD information or 
for the appearance and testimony of DoD personnel as witnesses.
    2. DoD Personnel. Present and former U.S. military personnel; 
Service Academy cadets and midshipmen; and present and former 
civilian employees of any Component of the Department of Defense, 
including nonappropriated fund activity employees; non-U.S. 
nationals who perform services overseas, under the provisions of 
status of forces agreements, for the United States Armed Forces; and 
other specific individuals hired through contractual agreements by 
or on behalf of the Department of Defense.
    3. Litigation. All pretrial, trial, and post-trial stages of all 
existing or reasonably anticipated judicial or administrative 
actions, hearings, investigations, or similar proceedings before 
civilian courts, commissions, boards (including the Armed Services 
Board of Contract Appeals), or other tribunals, foreign and 
domestic. This term includes responses to discovery requests, 
depositions, and other pretrial proceedings, as well as responses to 
formal or informal requests by attorneys or others in situations 
involving litigation.
    4. Official Information. All information of any kind, however 
stored, that is in the custody and control of the Department of 
Defense, relates to information in the custody and control of the 
Department, or was acquired by DoD personnel as part of their 
official duties or because of their official status within the 
Department while such personnel were employed by or on behalf of the 
Department or on active duty with the United States Armed Forces.

D. Policy

    It is DoD policy that official information should generally be 
made reasonably available for use in Federal and state courts and by 
other governmental bodies unless the information is classified, 
privileged, or otherwise protected from public disclosure.

E. Responsibilities

    l. The General Counsel, Department of Defense (GC, DoD), shall 
provide general policy and procedural guidance by the issuance of 
supplemental instructions or specific orders concerning the release 
of official DoD information in litigation and the testimony of DoD 
personnel as witnesses during litigation.
    2. The Heads of DoD Components shall issue appropriate 
regulations to implement this Directive and to identify official 
information that is involved in litigation.

F. Procedures

1. Authority to Act

     a. In response to a litigation request or demand for official 
DoD information or the testimony of DoD personnel as witnesses, the 
General Counsels of DoD, Navy, and the Defense Agencies; the Judge 
Advocates General of the Military Departments; and the Chief Legal 
Advisors to the JCS and the Unified and Specified Commands, with 
regard to their respective Components, are authorized--after 
consulting and coordinating with the appropriate Department of 
Justice litigation attorneys, as required--to determine whether 
official information originated by the Component may be released in 
litigation; whether DoD personnel assigned to or affiliated with the 
Component may be interviewed, contacted, or used as witnesses 
concerning official DoD information or as expert witnesses; and 
what, if any, conditions will be imposed upon such release, 
interview, contact, or testimony. Delegation of this authority, to 
include the authority to invoke appropriate claims of privilege 
before any tribunal, is permitted.
    b. In the event that a DoD Component receives a litigation 
request or demand for official information originated by another 
Component, the receiving Component shall forward the appropriate 
portions of the request or demand to the originating Component for 
action in accordance with this Directive. The receiving Component 
shall also notify the requestor, court, or other authority of its 
transfer of the request or demand.
    c. Notwithstanding the provisions of paragraphs F.1.a. and b., 
the GC, DoD, in litigation involving terrorism, espionage, nuclear 
weapons, intelligence means or sources, or otherwise as deemed 
necessary, may notify Components that GC, DoD, will assume primary 
responsibility for coordinating all litigation requests and demands 
for official DoD information or the testimony of DoD personnel, or 
both; consulting with the Department of Justice, as required; and 
taking final action on such requests and demands.

2. Factors to Consider

    In deciding whether to authorize the release of official DoD 
information or the testimony of DoD personnel concerning official 
information (hereinafter referred to as ``the disclosure'') pursuant 
to paragraph F.1., DoD officials should consider the following types 
of factors:
    a. Whether the request or demand is unduly burdensome or 
otherwise inappropriate under the applicable court rules;
    b. Whether the disclosure, including release in camera, is 
appropriate under the rules of procedure governing the case or 
matter in which the request or demand arose;
    c. Whether the disclosure would violate a statute, executive 
order, regulation, or directive;
    d. Whether the disclosure, including release in camera, is 
appropriate or necessary under the relevant substantive law 
concerning privilege;
    e. Whether the disclosure, except when in camera and necessary 
to assert a claim of privilege, would reveal information properly 
classified pursuant to the DoD Information Security Program under 
DoD 5200.1-R (reference (d)), unclassified technical data withheld 
from public release pursuant to DoD Directive 5230.25 (reference 
(e)), or other matters exempt from unrestricted disclosure; and
    f. Whether disclosure would interfere with ongoing enforcement 
proceedings, compromise constitutional rights, reveal the identity 
of an intelligence source or confidential informant, disclose trade 
secrets or similarly confidential commercial or financial 
information, or otherwise be inappropriate under the circumstances.

3. Decisions on Litigation Requests and Demands

    a. Subject to paragraph F.3.e., DoD personnel shall not, in 
response to a litigation request or demand, produce, disclose, 
release, comment upon, or testify concerning any official DoD 
information without the prior written approval of the appropriate 
DoD official designated in paragraph F.1. Oral approval may be 
granted, but a record of such approval shall be made and retained in 
accordance with the applicable implementing regulations.
    b. If official DoD information is sought, through testimony or 
otherwise, by a litigation request or demand, the individual seeking 
such release or testimony must set forth, in writing and with as 
much specificity as possible, the nature and relevance of the 
official information sought. Subject to paragraph F.3.e., DoD 
personnel may only produce, disclose, release, comment upon, or 
testify concerning those matters that were specified in writing and 
properly approved by the appropriate DoD official designated in 
paragraph F.1. See United States ex rel. Touhy v. Ragen, 340 U.S. 
462 (1951).
    c. Whenever a litigation request or demand is made upon DoD 
personnel for official DoD information or for testimony concerning 
such information, the personnel upon whom the request or demand was 
made shall immediately notify the DoD official designated in 
paragraph F.1. for the Component to which the individual contacted 
is or, for former personnel, was last assigned. In appropriate 
cases, the responsible DoD official shall thereupon notify the 
Department of Justice of the request or demands. After due 
consultation and coordination with the Department of Justice, as 
required, the DoD official shall determine whether the individual is 
required to comply with the request or demand and shall notify the 
requestor or the court or other authority of the determination 
reached.
    d. If, after DoD personnel have received a litigation request or 
demand and have in turn notified the appropriate DoD official in 
accordance with paragraph F.3.c., a response to the request or 
demand is required before instructions from the responsible official 
are received, the responsible official designated in paragraph F.1. 
shall furnish the requestor or the court or other authority with a 
copy of this Directive and applicable implementing regulations, 
inform the requestor or the court or other authority that the 
request or demand is being reviewed, and seek a stay of the request 
or demand pending a final determination by the Component concerned.
    e. If a court of competent jurisdiction or other appropriate 
authority declines to stay the effect of the request or demand in 
response to action taken pursuant to paragraph F.3.d., or if such 
court or other authority orders that the request or demand must be 
complied with notwithstanding the final decision of the appropriate 
DoD official, the DoD personnel upon whom the request or demand was 
made shall notify the responsible DoD official of such ruling or 
order. If the DoD official determines that no further legal review 
of or challenge to the court's ruling or order will be sought, the 
affected DoD personnel shall comply with the request, demand, or 
order. If directed by the appropriate DoD official, however, the 
affected DoD personnel shall respectfully decline to comply with the 
demand. See United States ex rel. Touhy v. Ragen, 340 U.S. 462 
(1951).

4. Fees

    Consistent with the guidelines in DoD Instruction 7230.7 
(reference (f)), the appropriate officials designated in paragraph 
F.1. are authorized to charge reasonable fees, as established by 
regulation and to the extent not prohibited by law, to parties 
seeking, by request or demand, official DoD information not 
otherwise available under the DoD Freedom of Information Act Program 
(reference (g)). Such fees, in amounts calculated to reimburse the 
Government for the expense of providing such information, may 
include the costs of time expended by DoD employees to process and 
respond to the request or demand; attorney time for reviewing the 
request or demand and any information located in response thereto 
and for related legal work in connection with the request or demand; 
and expenses generated by materials and equipment used to search 
for, produce, and copy the responsive information. See Oppenheimer 
Fund, Inc. v. Sanders, 437 U.S. 340 (1978).

5. Expert or Opinion Testimony

    DoD personnel shall not provide, with or without compensation, 
opinion or expert testimony concerning official DoD information, 
subjects, or activities, except on behalf of the United States or a 
party represented by the Department of Justice. Upon a showing by 
the requestor of exceptional need or unique circumstances and that 
the anticipated testimony will not be adverse to the interests of 
the Department of Defense or the United States, the appropriate DoD 
official designated in paragraph F.1. may, in writing, grant special 
authorization for DoD personnel to appear and testify at no expense 
to the United States. If, despite the final determination of the 
responsible DoD official, a court of competent jurisdiction, or 
other appropriate authority, orders the appearance and expert or 
opinion testimony of DoD personnel, the personnel shall notify the 
responsible DoD official of such order. If the DoD official 
determines that no further legal review of or challenge to the 
court's order will be sought, the affected DoD personnel shall 
comply with the order. If directed by the appropriate DoD official, 
however, the affected DoD personnel shall respectfully decline to 
comply with the demand. See United States ex rel. Touhy v. Ragen, 
340 U.S. 462 (1951).

G. Effective Date and Implementation

    This Directive is effective immediately. Forward two copies of 
implementing documents to the General Counsel, DoD, within 120 days.
Signed by William H. Taft, IV
Deputy Secretary of Defense.

Appendix D to Part 516--Department of Defense Directive 7050.5, 
Coordination of Remedies for Fraud and Corruption Related to 
Procurement Activities

Department of Defense Directive

June 7, 1989, Number 7050.5, IG, DOD

Subject: Coordination of Remedies for Fraud and Corruption Related 
to Procurement Activities
References:
(a) DoD Directive 7050.5, subject as above, June 28, 1985 (hereby 
canceled)
(b) Public Law 97-291, ``The Victim and Witness Protection Act of 
1982,'' October 12, 1982
(c) Defense FAR Supplement (DFARS), Subpart 4.6, ``Contract 
Reporting''
(d) DoD Instruction 4105.61, ``DoD Procurement Coding Manual,'' May 
4, 1973
(e) DoD 4105.61-M, ``Procurement Coding Manual'' (Volume I), October 
1988, authorized by DoD Instruction 4105.61 May 4, 1973

A. Reissuance and Purpose

    This Directive reissues reference (a) to update policies, 
procedures, and responsibilities for the coordination of criminal, 
civil, administrative, and contractual remedies stemming from 
investigation of fraud or corruption related to procurement 
activities. More effective and timely communication of information 
developed during such investigations will enable the Department of 
Defense to take the most appropriate of the available measures.

B. Applicability

    This Directive applies to the Office of the Secretary of Defense 
(OSD); the Inspector General, Department of Defense (IG, DoD); the 
Military Departments; the Defense Agencies; and the DoD Field 
Activities (hereafter referred to collectively as ``DoD 
Components'').

C. Definitions

    1. DoD Criminal Investigative Organizations. Refers to the U.S. 
Army Criminal Investigation Command; the Naval Investigative Service 
Command; the U.S. Air Force Office of Special Investigations; and 
the Defense Criminal Investigative Service, Office of the IG, DoD 
(OIG, DoD).
    2. Significant. Refers to all fraud cases involving an alleged 
loss of $100,000, or more; all corruption cases related to 
procurement that involved bribery, gratuities, or conflicts of 
interest; and any investigation into defective products or product 
substitution in which a SERIOUS HAZARD to health, safety, or 
operational readiness is indicated, regardless of loss value.

D. Policy

    It is DoD policy that:
    1. Each of the DoD Components shall monitor, from its inception, 
all significant investigations of fraud or corruption related to 
procurement activities affecting its organizations, for the purpose 
of ensuring that all possible criminal, civil, administrative, and 
contractual remedies in such cases are identified to cognizant 
procurement and command officials and that appropriate remedies are 
pursued expeditiously. This process shall include appropriate 
coordination with all other affected DoD Components.
    2. All investigations of fraud or corruption related to 
procurement activities shall be reviewed to determine and implement 
the appropriate contractual and administrative actions that are 
necessary to recover funds lost through fraud or corruption and to 
ensure the integrity of DoD programs and operations.
    3. Appropriate civil, contractual, and administrative actions, 
including those set forth in enclosure 1, shall be taken 
expeditiously. During an investigation and before prosecution or 
litigation, and when based in whole or in part on evidence developed 
during an investigation, such actions shall be taken with the 
advance knowledge of the responsible DoD criminal investigative 
organization and, when necessary, the appropriate legal counsel in 
the Department of Defense and the Department of Justice (DoJ). When 
appropriate, such actions shall be taken before final resolution of 
the criminal or civil case.

E. Responsibilities

    1. The Heads of DoD Components shall:
    a. Establish a centralized organization (hereafter referred to 
as ``the centralized organization'') to monitor and ensure the 
coordination of criminal, civil, administrative, and contractual 
remedies for each significant investigation of fraud or corruption 
related to procurement activities affecting the DoD Component.
    b. Establish procedures requiring the centralized organization 
to discuss regularly with the assigned DoD criminal investigative 
organization(s) such issues as the current status of significant 
investigations and their coordination with prosecutive authorities.
    c. Establish procedures requiring that all coordination 
involving the DoJ, during the pendency of a criminal investigation, 
is accomplished by or with the advance knowledge of the appropriate 
DoD criminal investigative organization(s).
    d. Establish procedures to ensure appropriate coordination of 
actions between the centralized organizations of any DoD Components 
affected by a significant investigation of fraud or corruption 
related to procurement activities.
    e. Establish procedures to ensure that all proper and effective 
civil, administrative, and contractual remedies available to the 
Department of Defense are, when found applicable and appropriate, 
considered and undertaken promptly by the necessary DoD officials 
(e.g., commanders, programs officials, and contracting officers). 
This includes initiation of any suspension and debarment action 
within 30 days of an indictment or conviction. The centralized 
organization shall ensure that all proposed actions are coordinated 
with appropriate investigative organization.
    f. Establish procedures to ensure that a specific comprehensive 
remedies plan is developed for each significant investigation 
involving fraud or corruption related to procurement activities. 
These procedures shall include the participation of the appropriate 
DoD criminal investigative organization in the development of the 
plan.
    g. Establish procedures to ensure that in those significant 
investigations of fraud or corruption related to procurement 
activities when adverse impact on a DoD mission can be determined, 
such adverse impact is identified and documented by the centralized 
organization. This information is to be used by the centralized 
organization of the DoD Component concerned in development of the 
remedies plan required in paragraph E.1.f., above, and shall be 
furnished to prosecutors as stated in paragraph E.2.e., below. The 
information shall also be used by the centralized organizations in 
development and preparation of ``Victim Impact Statements'' for use 
in sentencing proceedings, as provided for P.L. 97-291 (reference 
(b)). Some examples of adverse impact on a DoD mission are as 
follows:
    (1) Endangerment of personnel or property.
    (2) Monetary loss.
    (3) Denigration of program or personnel integrity.
    (4) Compromise of the procurement process.
    (5) Reduction or loss of mission readiness.
    h. Ensure training materials are developed on fraud and 
corruption in the procurement process, and that all procurement and 
procurement-related training includes a period of such instruction 
appropriate to the duration and nature of the training.
    i. Establish procedures enabling the centralized organization to 
ensure that safety and readiness issues are examined and 
appropriately dealt with for all cases in which a notice is required 
under paragraph E.2.i., below. The minimum procedures to be followed 
by the centralized organization are in enclosure 3.
    j. Ensure that appropriate command, procurement, and 
investigative organizations are provided sufficient information to 
determine if further inquiry is warranted on their part to prevent 
reoccurrence and detect other possible fraud within their activity.
    2. The Secretaries of the Military Departments and the Inspector 
General, Department of Defense (IG, DoD), or their designees, shall 
establish procedures that ensure that their respective criminal 
investigative organizations will:
    a. Notify, in writing, the centralized organization for the 
affected DoD Component of the start of all significant 
investigations involving fraud or corruption that are related to 
procurement activities. Initial notification shall include the 
following elements:
    (1) Case title.
    (2) Case control number.
    (3) Investigative agency and office of primary responsibility.
    (4) Date opened.
    (5) Predication.
    (6) Suspected offense(s).
    b. Notify expeditiously the Defense Investigative Service (DIS) 
of any investigations that develop evidence that would impact on 
DoD-cleared industrial facilities or personnel.
    c. Discuss regularly with the centralized organization such 
issues as the current status of significant investigations and their 
coordination with prosecutive authorities. If the DoD criminal 
investigative organization has prepared any documents summarizing 
the current status of the investigation, such documents shall be 
provided to the centralized organization. Completed reports of 
significant investigations also should be provided to the 
centralized organization.
    d. Provide to the appropriate procurement officials, commanders, 
and suspension and debarment authorities, when needed to allow 
consideration of applicable remedies, any court records, documents, 
or other evidence of fraud or corruption related to procurement 
activities. Such information shall be provided in a timely manner to 
enable the suspension and debarment authority to initiate suspension 
and debarment action within 30 days of an indictment or conviction.
    e. Provide expeditiously to prosecutive authorities the 
information regarding any adverse impact on a DoD mission, that is 
gathered under paragraph E.1.g., above, for the purpose of enhancing 
the prosecutability of a case. Such information also should be used 
in preparing a victim impact statement for use in sentencing 
proceedings as provided for in Public Law 97-291.
    f. Gather, at the earliest practical point in the investigation, 
without reliance on grand jury subpoenas whenever possible, relevant 
information concerning responsible individuals, the organizational 
structure, finances, and contract history of DoD contractors under 
investigation for fraud or corruption related to procurement 
activities, to facilitate the criminal investigation as well as any 
civil, administrative, or contractual actions or remedies that may 
be taken. Some available sources of such information are listed in 
enclosure 2.
    g. Provide timely notice to other cognizant DoD criminal 
investigative organizations of evidence of fraud by a contractor, 
subcontractor, or employees of either, on current or past contracts 
with, or affecting, other DoD Components.
    h. Ascertain the impact upon any ongoing investigation or 
prosecution of civil, contractual, and administrative actions being 
considered and advise the appropriate centralized organization of 
any adverse impact.
    i. Obtain a DD 350 report in every investigation into defective 
products or product substitution in which a SERIOUS HAZARD to 
health, safety, or operational readiness is indicated. Timely 
notification shall be made to the centralized organization of each 
DoD Component that is identified as having contract actions with the 
subject of the investigation.
    j. Obtain a DD 350 report in all significant fraud 
investigations, as defined in subsection C.2. above, whether or not 
the case involved defective products or product substitution. Timely 
notification shall be made to the centralized organization of each 
DoD Component that is identified as having contract actions with the 
subject of the investigation.
    3. The Inspector General, Department of Defense (IG, DoD), 
shall:
    a. Develop training materials relating to fraud and corruption 
in procurement related activities which shall be utilized in all 
procurement related training in conjunction with training materials 
developed by the DoD Components. (See paragraph E.1.h., above.)
    b. Establish procedures for providing to the DoD criminal 
investigative organizations, through the Office of the Assistant 
Inspector General for Auditing (OAIG-AUD), reports of data contained 
in the Individual Procurement Action Report (DD Form 350) System.

F. Procedures

    Transmissions of information by DoD criminal investigative 
organizations required by subsection E.2., above, shall be made as 
expeditiously as possible, consistent with efforts not to compromise 
any ongoing criminal investigation. The transmission of the 
information may be delayed when, in the judgment of the head of the 
DoD criminal investigative organization, failure to delay would 
compromise the success of any investigation or prosecution. The 
prosecutive authorities dealing with the investigation shall be 
consulted, when appropriate, in making such determinations.

G. Effective Date and Implementation

    This Directive is effective immediately. Forward two copies of 
implementing documents to the Inspector General, Department of 
Defense, within 120 days.
Donald J. Atwood,
Deputy Secretary of Defense.

Enclosures--3

    1. Civil Contractual and Administrative Actions That Can Be 
Taken in Response to Evidence of Procurement Fraud
    2. Sources of Information Relating to Government Contractors
    3. Actions to be Taken in Product Substitution Investigations
Civil, Contractual, and Administrative Actions That Can Be Taken in 
Response to Evidence of Procurement Fraud

A. Civil

1. Statutory

    a. False Claims Act (31 USC 3729 et seq.).
    b. Anti-Kickback Act (41 USC 51 et seq.).
    c. Voiding Contracts (18 USC 218).
    d. Truth in Negotiations Act (10 USC 2306(f)).
    e. Fraudulent Claims-Contract Disputes Act (41 USC 604)

2. Nonstatutory

    a. Breach of contract.
    b. Breach of warranty.
    c. Money paid under mistake of fact.
    d. Unjust enrichment.
    e. Fraud and/or Deceit.
    f. Conversion.
    g. Recision and/or Cancellation.
    h. Reformation.
    i. Enforcement of performance bond/guarantee agreement.

3. Contractual

    a. Termination of contract for default.
    b. Termination of contract for convenience of Government.
    c. Termination for default and exemplary damages under the 
gratuities clause.
    d. Recision of contract.
    e. Contract warranties.
    f. Withholding of payments to contractor.
    g. Offset of payments due to contractor from other contracts.
    h. Price reduction.
    i. Correction of defects (or cost of correction).
    j. Refusal to accept nonconforming goods.
    k. Revocation of acceptance.
    l. Denial of claims submitted by contractors.
    m. Disallowance of contract costs.
    n. Removal of the contractor from automated solicitation or 
payment system.

4. Administrative

    a. Change in contracting forms and procedures.
    b. Removal or reassignment of Government personnel.
    c. Review of contract administration and payment controls.
    d. Revocation of warrant contracting officer.
    e. Suspension of contractor and contractor employees.
    f. Debarment of contractor and contractor employees.
    g. Revocation of facility security clearances.
    h. Nonaward of contract based upon a finding of contractor 
nonresponsibility.
    i. Voluntary refunds.

       Sources of Information Relating to Government Contractors        
------------------------------------------------------------------------
        Type of information                    Possible source          
------------------------------------------------------------------------
Location, dollar value, type, and    a. DD Form 350 Report.\1\          
 number of current contracts with    b. Defense Logistics Agency's (DLA)
 the Department of Defense.           ``Contract Administration Defense 
                                      Logistics Agency's (DLA) Contract 
                                      Administration Report (CAR Report)
                                      on contracts DLA administers.     
2. Financial status of corporation,  a. Dunn and Bradstreet Reports.    
 history of corporation, owners,     b. Corporate filings with local    
 and officers.                        secretaries of the State, or      
                                      corporate recorders.              
                                     c. Securities and Exchange         
                                      Commission (public corporations). 
                                     d. Small Business Administration   
                                      (SBA) (small businesses).         
                                     e. General Accounting Office (bid  
                                      protests, and contractors indebted
                                      to the Government).               
                                     f. Armed Services Board of Contract
                                      Appeals (ASBCA) or court          
                                      litigation.                       
                                     g. List of Contractors Indebted to 
                                      the United States (maintained,    
                                      published and distributed by the  
                                      U.S. Army Finance and Accounting  
                                      Center, Indianapolis, Indiana     
                                      46249).                           
3. Security clearance background     a. Defense Investigative Service.  
 information on facility and                                            
 officers.                                                              
4. Performance history of            a. Local contracting officers.     
 contractor.                                                            
                                     b. Defense Contract Administration 
                                      Service preaward surveys.         
                                     c. SBA Certificate of Competency   
                                      records.                          
5. Name, location, offense alleged,  DLA Automated Criminal Case        
 and previous investigative efforts   Management System. (Available     
 involving DLA-awarded or DLA-        through field offices of the DLA  
 administered contracts.              Counsel's office.)                
6. Bid protests, litigation, and     Field offices of the DLA Counsel's 
 bankruptcy involving DLA-awarded     office.                           
 or DLA-administered contracts.                                         
------------------------------------------------------------------------
\1\A determination as to the contract history of any DoD contractor with
  contracts in excess of $25,000 annually can be made through a review  
  of the ``Individual Procurement Action Report'' (DD Form 350) system, 
  as prescribed by Subpart 4.6 of the DoD FAR Supplement, DoD           
  Instruction 4105.61, and DoD 4105.61-M (references (c), (d), and (e)).

Actions to be Taken in Product Substitution Investigations

    A. The centralized organization, in all cases involving 
allegations of product substitution in which a SERIOUS HAZARD to 
health, safety, or operational readiness is indicated shall:
    1. Review the notice of the case immediately after receiving it 
from the Defense criminal investigative organization. Review the 
notice to determine any potential safety or readiness issues 
indicated by the suspected fraud.
    2. Notify all appropriate safety, procurement, and program 
officials of the existence of the case.
    3. Obtain a complete assessment from safety, procurement, and 
program officials of the adverse impact of the fraud on DoD programs 
and operations.
    4. Ensure that the DoD Component provides the Defense criminal 
investigative organization with full testing support to completely 
identify the defective nature of the substituted products. Costs 
associated with the testing shall be assumed by the appropriate 
procurement program.
    5. Prepare a comprehensive impact statement describing the 
adverse impact of the fraud on DoD programs for use in any criminal, 
civil, or contractual action related to the case.
    B. In all cases involving allegations of product substitution 
that affect more than one DoD Component, that centralized 
organizations of the affected DoD Components shall identify a lead 
Agency. The lead centralized organization shall ensure that 
information on the fraud is provided to the centralized organization 
of all other affected DoD Components. The lead centralized 
organization shall ensure compliance with the requirements of 
section A., above. The lead centralized organization shall then be 
responsible for preparing a comprehensive ``Victim Impact 
Statement'' as required by paragraph E.1.g. of this Directive.
    C. In all cases involving allegations of product substitution, 
the Defense Criminal Investigative Organization shall:
    1. Immediately notify the appropriate centralized organization 
of the beginning of the case.
    2. Continue to provide to the centralized organization any 
information developed during the course of the investigation that 
indicates substituted products have been, or might be, provided to 
the Department of Defense.
    3. Ensure that any request for testing of substituted products 
is provided to the centralized organization.

Appendix E to Part 516--Department of Defense Directive 5505.5, 
Implementation of the Program Fraud Civil Remedies Act

    DOD Directive 5505.5 is contained in 32 CFR Part 277.

Appendix F to Part 516--Glossary

Abbreviations

AAFES: Army and Air Force Exchange Service
AMEDD: Army Medical Department
AFARS: Army Federal Acquisition Regulation Supplement
ASBCA: Armed Services Board of Contract Appeals
AUSA: Assistant United States Attorney
CFR: Code of Federal Regulations
COE: United States Army Corps of Engineers
DA: Department of the Army
DFARS: Defense Federal Acquisition Regulation Supplement
DOD: Department of Defense
DOJ: Department of Justice. In this regulation, reference to DOJ 
means either United States Attorneys' Offices or The (main) 
Department of Justice in Washington, DC
DCIS: Defense Criminal Investigative Service
e.g.: An abbreviation for exempli gratia, meaning ``for example''
et seq.: An abbreviation for et sequentes, meaning ``and the 
following''
FAR: Federal Acquisition Regulation
FAX: Facsimile Transmission
FBI: Federal Bureau of Investigation
Fed. R. Civ. P.: Federal Rules of Civil Procedure
Fed. R. Crim. P.: Federal Rules of Criminal Procedure
FOIA: Freedom of Information Act
GAO: General Accounting Office
HQDA: Headquarters, Department of the Army
i.e.: An abbreviation for id est, meaning ``that is''
IG: Inspector General
JA: Judge Advocate
MACOM: Major Command
MSPB: Merit Systems Protection Board
NAF: Nonappropriated Fund
OTJAG: Office of The Judge Advocate General
OSC: Office of Special Counsel
PFA: Procurement Fraud Advisor
PFCRA: Program Fraud Civil Remedies Act
PFD: Procurement Fraud Division
PFI: Procurement Fraud or Irregularities
RJA: Recovery Judge Advocate
SAUSA: Special Assistant U.S. Attorney
SJA: Staff Judge Advocate
TDY: temporary Duty
TJAG: The Judge Advocate General
UCMJ: Uniform Code of Military Justice
USACIDC: U.S. Army Criminal Investigation Command
USALSA: U.S. Army Legal Services Agency
USARCS: U.S. Army Claims Service
USATDS: U.S. Army Trial Defense Service
USMA: United States Military Academy
U.S.C.: United States Code

Terms

Active Duty

    Full-time duty in the active military service of the United 
States. Includes: full-time training duty; annual training duty; 
active duty for training; attendance, while in the active military 
service, at a school designated as a Service School by law or by the 
Secretary of the military department concerned; and, attendance, 
while in the active military service, at advanced civil schooling 
and training with industry. It does not include full-time National 
Guard duty under Title 32, United States Code.

Army Activities

    Activities of or under the control of the Army, one of its 
instrumentalities, or the Army National Guard, including activities 
for which the Army has been designated the administrative agency, 
and those designated activities located in an area in which the Army 
has been assigned single service claims responsibility by DOD 
directive.

Army Property

    Real or personal property of the United States or its 
instrumentalities and, if the United States is responsible 
therefore, real or personal property of a foreign government which 
is in the possession or control of the Army, one of its 
instrumentalities, or the Army National Guard, including property of 
an activity for which the Army has been designated the 
administrative agency, and property located in an area in which the 
Army has been assigned single service claims responsibility.

Centralized Organization

    That organization of a DOD component responsible for 
coordinating and monitoring of criminal, civil, contractual, and 
administrative remedies relating to contract fraud. For DOD 
components other than the Army, the Centralized organizations are as 
follows: the Office of General Counsel, Department of the Air Force; 
the Office of the Inspector General, Department of the Navy; and the 
Office of General Counsel, Defense Logistics Agency.

Claim

    The Government's right to recover money or property from any 
individual, partnership, association, corporation, governmental 
body, or other legal entity (foreign and domestic) except an 
instrumentality of the United States. A claim against several joint 
debtors or tortfeasors arising from a single transaction or incident 
will be considered one claim.

Claims Officer

    A commissioned officer, warrant officer, or qualified civilian 
employee designated by the responsible commander and trained or 
experienced in the conduct of investigations and the processing of 
claims.

Corruption

    Practices that include, but are not limited to, solicitation, 
offer, payment, or acceptance of bribes or gratuities; kickbacks; 
conflicts of interest; or unauthorized disclosure of official 
information related to procurement matters.

Counsel for Consultation

    An attorney, provided by DA at no expense to the military member 
or civilian employee, who will provide legal advice to the witness 
concerning the authority of OSC, the nature of an OSC interview and 
their individual rights and obligations. The counsel may accompany 
the witness to the interview and advise the witness during the 
interview. No attorney-client relationship is established in this 
procedure.

Counsel for Representation

    An attorney, provided by DA at no expense to the military member 
or civilian employee, who will act as the individual's lawyer in all 
contacts with the MSPB and the OSC during the pendancy of the OSC 
investigation and any subsequent OSC initiated action before the 
MSPB. An attorney-client relationship will be established between 
the individual and counsel for representation.

DA Personnel

    DA personnel includes the following:
    a. Military and civilian personnel of the Active Army and The 
U.S. Army Reserve.
    b. Soldiers of the Army National Guard of the United States 
(Title 10, U.S.C.) and, when specified by statute or where a Federal 
interest is involved, soldiers in the Army National Guard (Title 32, 
U.S.C.). It also includes technicians under 32 U.S.C. 709(a)(d).
    c. USMA cadets.
    d. Nonappropriated fund employees.
    e. Foreign nationals who perform services for DA overseas.
    f. Other individuals hired by or for the Army.

Debarment

    Administrative action taken by a debarring authority to exclude 
a contractor from Government contracting and Government-approved 
subcontracting for a specified period.

Deciding Official (Chapter 7)

    SJA, legal adviser, or Litigation Division attorney who makes 
the final determination concerning release of official information.

DOD Criminal Investigation Organizations

    Refers to the USACIDC; the Naval Investigative Service; the U.S. 
Air Force Office of Special Investigations; and the Defense Criminal 
Investigative Service, Office of the Inspector General, DOD.

Fraud

    Any intentional deception of DOD (including attempts and 
conspiracies to effect such deception) for the purpose of inducing 
DOD action or reliance on that deception. Such practices include, 
but are not limited to, the following: bid-rigging; making or 
submitting false statements; submission of false claims; use of 
false weights or measures; submission of false testing certificates; 
adulterating or substituting materials; or conspiring to use any of 
these devices.

Improper or Illegal Conduct

    a. A violation of any law, rule, or regulation in connection 
with Government misconduct; or
    b. Mismanagement, a gross waste of funds, an abuse of authority, 
or a substantial and specific danger to public health or safety.

Information Exempt From Release To The Public

    Those categories of information which may be withheld from the 
public under one or more provisions of law.

Judge Advocate

    An officer so designated (AR 27-1).

Legal Adviser

    A civilian attorney who is the principal legal adviser to the 
commander or operating head of any Army command or agency.

Litigation

    Legal action or process involving civil proceedings, i.e., 
noncriminal.

Litigation in Which The United States Has an Interest

    a. A suit in which the United States or one of its agencies or 
instrumentalities has been, or probably will be, named as a party.
    b. A suit against DA personnel and arises out of the 
individual's performance of official duties.
    c. A suit concerning an Army contract, subcontract, or purchase 
order under the terms of which the United States may be required to 
reimburse the contractor for recoveries, fees, or costs of the 
litigation.
    d. A suit involving administrative proceedings before Federal, 
state, municipal, or foreign tribunals or regulatory bodies that may 
have a financial impact upon the Army.
    e. A suit affecting Army operations or which might require, 
limit, or interfere with official action.
    f. A suit in which the United States has a financial interest in 
the plaintiff's recovery.
    g. Foreign litigation in which the United States is bound by 
treaty or agreement to ensure attendance by military personnel or 
civilian employees.

Medical Care

    Includes hospitalization, outpatient treatment, dental care, 
nursing service, drugs, and other adjuncts such as prostheses and 
medical appliances furnished by or at the expense of the United 
States.

Misdemeanor

    An offense for which the maximum penalty does not exceed 
imprisonment for 1 year. Misdemeanors include those offenses 
categorized as petty offenses (18 USC Sec. 3559).

Official Information

    All information of any kind, however stored, that is in the 
custody and control of the Department of Defense, relates to 
information in the custody and control of the Department, or was 
acquired by DoD personnel as part of their official duties or 
because of their official status within the Department while such 
personnel were employed by or on behalf of the Department or on 
active duty with the United States Armed Forces.

Operating Forces

    Those forces whose primary missions are to participate in combat 
and the integral supporting elements thereof. Within DA, the 
operating forces consist of tactical units organized to conform to 
tables of organization and equipment (TOE).

Personnel Action

    These include--
    a. Appointment.
    b. Promotion.
    c. Adverse action under 5 U.S.C. 7501 et seq. or other 
disciplinary or corrective action.
    d. Detail, transfer, or reassignment.
    e. Reinstatement.
    f. Restoration.
    g. Reemployment.
    h. Performance evaluation under 5 U.S.C. 4301 et seq.
    i. Decision concerning pay, benefits, or awards, or concerning 
education or training if the education or training may reasonably be 
expected to lead to an appointment, promotion, performance 
evaluation, or other personnel action.
    j. Any other significant change in duties or responsibilities 
that is inconsistent with the employee's salary or grade level.

Private Litigation

    Litigation other than that in which the United States has an 
interest.

Process

    The legal document that compels a defendant in an action to 
appear in court; e.g., in a civil case a summons or subpoena, or in 
a criminal case, a warrant for arrest, subpoena or summons.

Prohibited Personnel Practice

    Action taken, or the failure to take action, by a person who has 
authority to take, direct others to take, recommend, or approve any 
personnel action--
    a. That discriminates for or against any employee or applicant 
for employment on the basis of race, color, religion, sex, national 
origin, age, handicapping condition, marital status, or political 
affiliation, as prohibited by certain specified laws.
    b. To solicit or consider any recommendation or statement, oral 
or written, with respect to any individual who requests, or is under 
consideration for, any personnel action, unless the recommendation 
or statement is based on the personal knowledge or records of the 
person furnishing it, and consists of an evaluation of the work 
performance, ability, aptitude, or general qualifications of the 
individual, or an evaluation of the character, loyalty, or 
suitability of such individual.
    c. To coerce the political activity of any person (including the 
providing of any political contribution or service), or take any 
action against any employee or applicant for employment as a 
reprisal for the refusal of any person to engage in such political 
activity.
    d. To deceive or willfully obstruct any person with respect to 
such person's right to compete for employment.
    e. To influence any person to withdraw from competition for any 
position for the purpose of improving or injuring the prospects of 
any other person for employment.
    f. To grant any preference or advantage not authorized by law, 
rule, or regulation to any employee or applicant for employment 
(including defining the scope or manner of competition or the 
requirements for any position) for the purpose of improving or 
injuring the prospects of any particular person for employment.
    g. To appoint, employ, promote, advance, or advocate for 
appointment, employment, promotion, or advancement, in or to a 
civilian position any individual who is a relative (as defined in 5 
U.S.C. 3110) of the employee, if the position is in the agency in 
which the employee is serving as a public official or over which the 
employee exercises jurisdiction or control as an official.
    h. To take or fail to take a personnel action with respect to 
any employee or applicant for employment as a reprisal for being a 
whistleblower, as defined below.
    i. To take or fail to take a personnel action against an 
employee or applicant for employment as a reprisal for the exercise 
of any appeal right granted by law, rule, or regulation.
    j. To discriminate for or against any employee or applicant for 
employment on the basis of conduct that does not adversely affect 
the performance of the employee or applicant or the performance of 
others.
    k. To take or fail to take any other personnel action if the 
taking of, or failure to take, such action violates any law, rule, 
or regulation implementing, or directly concerning, the merit system 
principles contained in 5 U.S.C. 2301.

Prosecutive Authorities

    These include--
    a. A U.S. Attorney;
    b. A prosecuting attorney of a State or other political 
subdivision when the U.S. Attorney has declined to exercise 
jurisdiction over a particular case or class of cases; and
    c. An SJA of a general court-martial convening authority 
considering taking action against a person subject to the UCMJ.

Recovery JA

    A JA or legal adviser responsible for assertion and collection 
of claims in favor of the United States for property claims and 
medical expenses.

Significant Case of Fraud and Corruption

    A procurement fraud case involving an alleged loss of $100,000 
or more; all corruption cases related to procurement that involve 
bribery, gratuities, or conflicts of interest; any defective 
products or product substitution in which a serious hazard to 
health, safety or operational readiness is indicated, regardless of 
loss value; and, any procurement fraud case that has received or is 
expected to receive significant media coverage.

Staff Judge Advocate

    An officer so designated (AR 27-1). The SJA of an installation, 
a command or agency reporting directly to HQDA, or of a major 
subordinate command of the U.S. Army Materiel Command, and the 
senior Army JA assigned to a joint or unified command.

Subpoena

    A process to cause a witness to appear and give testimony, e.g., 
at a trial, hearing, or deposition.

Suspension

    Administrative action taken by a suspending authority to 
temporarily exclude a contractor from Government contracting and 
Government-approved subcontracting.

Suspension and Debarment Authorities

    Officials designated in DFARS, section 9.403, as the authorized 
representative of the Secretary concerned.

Tortfeasor

    A wrongdoer; one who commits a tort.

Appendix G to Part 516--Figures

    This appendix contains figures cited or quoted throughout the 
text of this part.

Figure C-1. Sample Answer to Judicial Complaint, With Attached 
Certificate of Service

    In the United States District Court for the Southern District of 
Texas Corpus Christi Division, No. C-90-100

John Doe, Plaintiff v. Togo D. West, Jr., Secretary of the Army, 
Department of the Army, Defendant.

First Affirmative Defense

    The Complaint is barred by laches.
    Figure C-3. Sample Answer to Judicial Complaint, with attached 
Certificate of Service. This is intended to be used as a guide in 
preparing a draft Answer as part of a Litigation Report.

Answer

    For its answer to the complaint, defendant admits, denies and 
alleges as follows:
    1. Admits.
    2. Denies.
    3. Denies.
    4. The allegations contained in paragraph 4 are conclusions of 
law to which no response is required; to the extent they may be 
deemed allegations of fact, they are denied.
    5. Denies the allegations contained in the first sentence of 
paragraph 5; admits the allegations contained in the second sentence 
of paragraph 5; denies the remainder of the allegations in paragraph 
5.
    6. Denies the allegations in paragraph 6 for lack of knowledge 
or information sufficient to form a belief as to their truth.
    7. Denies each allegation in the complaint not specifically 
admitted or otherwise qualified.

Prayer for Relief

    The remainder of plaintiff's Complaint contains his prayer for 
relief, to which no answer is required. Insofar as an answer is 
required, denies that plaintiff is entitled to any relief 
whatsoever.
    Defendant respectfully prays that the Court dismiss plaintiff's 
Complaint and award to defendant costs and such further relief as 
the Court deems proper.
    Respectfully submitted,
Ronald M. Ford,
United States Attorney.
Roy A. Andersen,
Assistant United States Attorney, 606 N. Carancua, Corpus Christi, 
Texas 78476, (512) 884-3454.
Captain Christopher N. Jones,
Department of the Army, Office of the Judge, Advocate General, 901 N. 
Stuart St., Suite 400, Arlington, Virginia 22203-1837, (703) 696-1666.

Certificate of Service

    I hereby certify that a true and correct copy of Defendant's 
Answer has been placed in the mail, postage prepaid, this ____ day 
of __________, 1991, addressed to plaintiff's counsel as follows: 
Mr. Eugene Henderson, 777 Fourth Street, Corpus Christi, TX 78888.
Roy A. Andersen,
Assistant United States Attorney.

Sample DA Form 4

Figure C-3. Unsworn Declaration Under Penalty of Perjury Executed 
Within the United States

Declaration Under Penalty of Perjury

    I am Private Paul Jones, currently assigned to Company B, 4th 
Battalion, 325th Parachute Infantry Regiment, Fort Bragg, North 
Carolina. I have personal knowledge of the following matters.
    On the evening of 3 June 1970, I was present at the company 
party at Lake Popolopen when the accident occurred. I saw a bright, 
full moon that evening.
    I declare under penalty of perjury that the foregoing is true 
and correct. (28 U.S.C. Sec. 1746).
    Executed on: __________
Paul Jones,
Private, U.S. Army.

Figure D-1. Format for a Request for a Representation Using an 
Unsworn Declaration Under Penalty of Perjury Executed Within the 
United States

Request for Representation

    I request that the Attorney General of the United States, or his 
agent, designate counsel to defend me in my official and individual 
capacities in the case of John Doe v. Private Paul Jones, now 
pending in the U.S. District Court for the Eastern District of North 
Carolina. I have read the complaint filed in this case and I declare 
that all my actions were performed in my official capacity, within 
the scope of my official duties, and in a good faith belief that my 
actions conformed to the law. I am not aware of any pending related 
criminal investigation.
    I understand the following: if my request for representation is 
approved, I will be represented by a U.S. Department of Justice 
attorney; that the United States is not required to pay any final 
adverse money judgment rendered against me personally, although I 
can request indemnification; that I am entitled to retain private 
counsel at my own expense; and, that the Army expresses no opinion 
whether I should or should not retain private counsel.
    I declare under penalty of perjury that the foregoing is true 
and correct. (28 U.S.C. Sec. 1746).
    Executed on: __________
Paul Jones,
Private, U.S. Army.

Figure D-2. Format for Scope of Employment Statement Using an 
Unsworn Declaration Under Penalty of Perjury Executed Outside the 
United States

Declaration

    I am currently the Commander of HHC, 6th Armored Division, Bad 
Vilbel, Germany. I have read the allegations concerning Private Paul 
Jones in the complaint of John Doe v. Private Paul Jones, now 
pending in the U.S. District Court for the Eastern District of North 
Carolina.
    At all times relevant to the complaint, I was Private Jones' 
company commander. His actions relevant to this case were performed 
within the scope of his official duties as Assistant Charge of 
Quarters, Company B, 4th Battalion, 325th Parachute Infantry 
Regiment, Fort Bragg, North Carolina.
    I declare under penalty of perjury under the laws of the United 
States of America that the foregoing is true and correct. (28 U.S.C. 
Sec. 1746).
    Executed on: __________
John Smith,
Captain, Infantry.

Figure D-3. Format for Contractor Request for Representantion

Request for Representation

    I am the President of the XYZ Corporation. I request the 
Attorney General of the United States designate counsel to defend me 
and my company in Doe v. XYZ, Inc., now pending in the U.S. District 
Court for the Eastern District of North Carolina.
    I understand that the assumption by the Attorney General of the 
defense of this case does not alter or increase the obligations of 
the United States under United States Contract No. WP-70-660415.
    I further agree that such representation will not be construed 
as waiver or estoppel to assert any rights which any interested 
party may have under said contract.
    Executed on: __________
D.D. Tango,
President, XYZ, Inc.

Figure G-1. Sample ``Touhy'' Compliance Letter

Department of the Army, Office of the Staff Judge Advocate, Fort Smith, 
North Dakota 84165, 15 April 1993

Mr. T. Hudson Taylor,
Attorney At Law, 105 Hay Street, Whynot, ND 84167
    Dear Mr. Taylor: We have learned that you subpoenaed Captain 
Roberta Selby to testify at a deposition in the case Kramer v. 
Kramer, currently filed in state court, and that you directed her to 
bring her legal assistance file concerning her client, SSG Kramer.
    Under 32 CFR Secs. 97.6(c), 516.35, and 516.40, the Army must 
authorize the appearance of its personnel or the production of 
official documents in private litigation. In this case, the Army 
cannot authorize Captain Selby to appear or produce the requested 
file absent the following:
    You must request in writing her appearance and the production of 
the file in accordance with Department of Defense directives, 32 CFR 
Sec. 97.6(c), and Army regulations, 32 CFR Secs. 516-34--516.40. The 
request must include the nature of the proceeding, 32 CFR 
Sec. 516.34(b), and the nature and relevance of the official 
information sought. Id. Sec. 516.35(d). We cannot act on your 
request until we receive the required information. See, for example, 
United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951); Boron Oil 
Co. v. Downie, 873 F.2d 67 (4th Cir. 1989); United States v. 
Bizzard, 674 F.2d 1382 (11th Cir. 1982); United States v. Marino, 
658 F.2d 1120 (6th Cir. 1981); United States v. Allen, 554 F.2d 398 
(10th Cir. 1977).
    To overcome Federal statutory restrictions on the disclosure of 
the requested file imposed by the Privacy Act, 5 U.S.C. Sec. 552a, 
you must provide either a written release authorization signed by 
the individual to whom the file pertains (that is, SSG Kramer) or a 
court ordered release signed by a judge of a court of competent 
jurisdiction. A subpoena signed by a clerk of court, notary, or 
other official is insufficient. See, for example, Doe v. DiGenova, 
779 F.2d 74 (DC Cir. 1985).
    In this case, because of the attorney-client relationship 
between Captain Selby and SSG Kramer, you must produce a written 
waiver of the attorney-client privilege from SSG Kramer. Because the 
privilege may protect both documents and testimony, Captain Selby 
may not divulge such information without SSG Kramer's consent. See, 
for example, Rule of Professional Conduct for Army Lawyers 1.6(a).
    In addition to the above requirements, Captain Selby's 
supervisor must approve her absence from duty. See 32 CFR 
Sec. 516.43. In this regard, we suggest you take the deposition at 
Fort Smith. In any event, however, you or your client must pay all 
travel expenses, as this is purely private litigation and witness' 
appearance must be at no expense to the United States. See id. 
Sec. 516.48(c).
    Finally, if Captain Selby does appear as a witness, she may only 
give factual testimony. She may not testify as an opinion or expert 
witness. This limitation is based on Department of Defense and Army 
policy that generally prohibits Government employees from appearing 
as expert witnesses in private litigation. See id. Secs. 97.6(e), 
516.42.
    Our sole concern in this matter is to protect the interests of 
the United States Army; the Army will not block access to witnesses 
or documents to which you are lawfully entitled. So that the Army 
can adequately protect its interests in this matter, I request that 
you respond to this letter by 27 April 1993. If you have any 
questions, please call CPT Taylor at 919-882-4500.

        Sincerely,
Robert V. Jackansi,
Major, JA, Chief, Administrative Law.

Figure G-2. Sample Fact Witness Approval Letter

Department of the Army, Office of the Staff Judge Advocate, Fort Smith, 
North Dakota 84165, 15 April 1993

Mr. T. Hudson Taylor,
Attorney At Law, l05 Hay Street, Whynot, ND 84167
    Dear Mr. Taylor: This letter responds to your request to 
interview and depose Captain Buzz Sawyer as a witness in Morgan v. 
Jones. Subject to the following conditions, your request is 
approved.
    This grant of authority is limited to factual testimony only. 
Captain Sawyer may not testify as an expert witness. This limitation 
is based on Army policy prohibiting Government employees from 
appearing as expert witnesses in private litigation. See 32 CFR 
Sec. 516.42. Captain Sawyer may not provide official information 
that is classified, privileged, or otherwise protected from public 
disclosure.
    The decision whether to testify in private litigation is within 
the discretion of the prospective witness. This authorization is 
also subject to the approval of the witness' supervisors to be 
absent during the period involved. Finally, because this is private 
litigation, the witness' participation must be at no expense to the 
United States. See 32 CFR Sec. 516.48.
    If you have any questions, please call CPT Taylor at 919-882-
4500.
        Sincerely,
Robert V. Jackansi,
Major, JA, Chief, Administrative Law

Figure G-3. Sample Expert Witness Denial Letter

Department of the Army, Office of the Staff Judge Advocate, Fort Smith, 
North Dakota 84165, 15 April 1993

Mr. T. Hudson Taylor,
Attorney At Law, l05 Hay Street, Whynot, ND 84167
    Dear Mr. Taylor: This responds to your request for Mr. Charles 
Montrose to appear as an expert witness in private litigation: 
Smithers v. ABC Video. For the following reasons, the request is 
denied.
    Army Regulation 27-40 forbids Army personnel from providing 
expert testimony in private litigation, with or without 
compensation, except under the most extraordinary circumstances. See 
32 CFR Secs. 97.6(e), 516.42. Several reasons support the exercise 
of strict control over such witness appearances.
    The Army policy is one of strict impartiality in litigation in 
which the Army is not a named party, a real party in interest, or in 
which the Army does not have a significant interest. When a witness 
with an official connection with the Army testifies, a natural 
tendency exists to assume that the testimony represents the official 
view of the Army, despite express disclaimers to the contrary.
    The Army is also interested in preventing the unnecessary loss 
of the services of its personnel in connection with matters 
unrelated to their official responsibilities. If Army personnel 
testify as expert witnesses in private litigation, their official 
duties are invariably disrupted, often at the expense of the Army's 
mission and the Federal taxpayer.
    Finally, the Army is concerned about the potential for conflict 
of interest inherent in the unrestricted appearance of its personnel 
as expert witnesses on behalf of parties other than the United 
States. Even the appearance of such conflicts of interest seriously 
undermines the public trust and confidence in the integrity of our 
Government.
    This case does not present the extraordinary circumstances 
necessary to justify the requested witness' expert testimony. You 
have demonstrated no exceptional need or unique circumstances that 
would warrant (his or her) appearance. The expert testimony desired 
can be secured from non-Army sources. Consequently, we are unable to 
grant you an exception to the Army's policy.
    If you have any questions, please call me or CPT Taylor at 919-
882-4500.

        Sincerely,
Robert V. Jackansi,
Major, JA, Chief, Administrative Law.

Figure G-4. Sample of Doctor Approval Letter

Department of the Army, Office of the Staff Judge Advocate, Fort Smith, 
North Dakota 84165, 15 April 1993

Mr. T. Hudson Taylor,
Attorney At Law, 105 Hay Street, Whynot, ND 84167
    Dear Mr. Taylor: This responds to your request to depose Dr. 
(MAJ) J. McDonald, Fort Smith Medical Treatment Facility. Pursuant 
to 32 CFR Secs. 516.33-516.49, you may depose him subject to the 
following conditions:
    He may testify as to his treatment of his patient, Sergeant 
Rock, as to related laboratory tests he may have conducted, or other 
actions he took in the regular course of his duties.
    He must limit his testimony to factual matters such as his 
observations of the patient or other operative facts, the treatment 
prescribed or corrective action taken, course of recovery or steps 
required for treatment of injuries suffered, or contemplated future 
treatment.
    His testimony may not extend to hypothetical questions or to a 
prognosis. He may not testify as an ``expert.'' This limitation is 
based on Department of Defense and Army policy prohibiting present 
or former military personnel and Army civilian employees from 
providing opinion or expert testimony concerning official 
information, subjects, or activities in private litigation. See 32 
CFR Secs. 97.6(e), 516.42.
    The witnesses may not provide official information that is 
classified, privileged, or otherwise protected from public 
disclosure. To protect the Army's interests, CPT Taylor or another 
Army attorney will be present during the depositions.
    To overcome restrictions imposed by the Privacy Act, 5 U.S.C. 
Sec. 552a, Dr. McDonald may not discuss matters derived from the 
patient's medical records absent the patient's written consent or a 
court order signed by a judge. A subpoena issued by someone other 
than a judge or magistrate is insufficient. See Doe v. DiGenova, 779 
F.2d 74 (D.C. Cir. 1985); Stiles v. Atlanta Gas Light Co., 453 F. 
Supp. 798 (N.D. Ga. 1978).
    The decision whether to testify in private litigation is within 
the discretion of the witness, subject to the approval of his 
supervisors to be absent during the period involved.
    Finally, because this is private litigation, the witnesses' 
participation must be at no expense to the United States. See 32 CFR 
Sec. 516.48.
    If you have any questions, please call me or CPT Taylor at 919-
882-4500.

        Sincerely,
Robert V. Jackansi,
Major, JA, Chief, Administrative Law.

Figure H-1. Procurement Fraud Indicators

Procurement Fraud Indicators

    1. During the identification of the government and services.
    a. Need determinations for items currently scheduled for 
disposal or reprocurement, or which have predetermined reorder 
levels.
    b. Excessive purchase of ``expendables'' such as drugs or auto 
parts.
    c. Inadequate or vague need assessment.
    d. Frequent changes in the need assessment or determination.
    e. Mandatory stock levels and inventory requirements appear 
excessive.
    f. Items appear to be unnecessarily declared excess or sold as 
surplus, while same items are being reprocured.
    g. It appears that an item or service is being purchased more as 
a result of aggressive marketing efforts rather than in response to 
a valid requirement.
    h. Need determination appears to be unnecessarily tailored in 
ways that can only be met by certain contractors.
    i. Items and services are continually obtained from the same 
source due to an unwarranted lack of effort to develop second 
sources.
    2. During the development of the statements of work and 
specifications.
    a. Statements of work and specifications appear to be 
intentionally written to fit the products or capabilities of a 
single contractor.
    b. Statements of work, specifications, or sole source 
justifications developed by or in consultation with a preferred 
contractor.
    c. Information concerning requirements and pending contracts is 
released only to preferred contractors.
    d. Allowing companies and industry personnel who participated in 
the preparation of bid packages to perform on subsequent contracts 
in either a prime or subcontractor capacity.
    e. Release of information by firms or personnel participating in 
design or engineering to companies competing for prime contract.
    f. Prequalification standards or specifications appear designed 
to exclude otherwise qualified contractors or their productions.
    g. Requirements appear split up to allow for rotating bids, 
giving each contractor his or her ``fair share.''
    h. Requirements appear split up to meet small purchase 
requirements (that is, $25,000) or to avoid higher levels of 
approval that would be otherwise required.
    i. Bid specifications or statement of work appear inconsistent 
with the items described in the general requirements.
    j. Specifications appear so vague that reasonable comparisons of 
estimate would be difficult.
    k. Specifications appear inconsistent with previous procurements 
of similar items of services.
    3. During the presolicitation phase.
    a. Sole source justifications appear unnecessary or poorly 
supported.
    b. Statements justifying sole source or negotiated procurements 
appear inadequate or incredible.
    c. Solicitation documents appear to contain unnecessary 
requirements which tend to restrict competition.
    d. Contractors or their representatives appear to have received 
advanced information related to the proposed procurement on a 
preferential basis.
    4. During the solicitation phase.
    a. Procurement appears to be processed so as to exclude or 
impede certain contractors.
    b. The time for submission of bids appears to be unnecessarily 
limited so that only those with advance information have adequate 
time to prepare bids or proposals.
    c. It appears that information concerning the procurement has 
been revealed only to certain contractors, without being revealed to 
all prospective competitors.
    d. Bidders conferences are conducted in a way that apparently 
invites bid rigging, price fixing, or other improper collusion 
between contractors.
    e. There is an apparent intentional failure to fairly publish 
notice of the solicitation.
    f. Solicitation appears vague as to the details such as time, 
place and manner, of submitting acceptable bids.
    g. There is evidence of improper communications or social 
contract between contractors and government personnel.
    h. Controls over the number and destination of bid packages sent 
to interested bidders appear inadequate.
    i. Indications that government personnel or their families may 
own stock or have some other financial interest in either a 
contractor or subcontractor.
    j. Indications that government personnel are discussing possible 
employment for themselves or a family member with a contractor or 
subcontractor or indications that a proposal for future employment 
from a contractor or subcontractor to a government employee or his 
or her family members has not been firmly rejected.
    k. Indications that any contractor has received special 
assistance in preparation of his or her bid or proposal.
    l. It appears that a contract is given an expressed or implied 
reference to a specific subcontractor.
    m. Failure to amend solicitation to reflect necessary changes or 
modifications.
    5. During the submission of bids and proposals.
    a. Improper acceptance of a late bid.
     b. Documents, such as receipts, appear falsified to obtain 
acceptance of a late bid.
    c. Improperly attempting to change a bid after other bidders 
prices are known.
    d. Indications that mistakes have been deliberately planted in a 
bid to support correction after bid opening.
    e. Withdrawal by a low bidder who may later become a 
subcontractor to a higher bidder who gets the contract.
    f. Apparent collusion or bid rigging among the bidders.
    g. Bidders apparently revealing their prices to each other.
    h. Required contractor certifications appear falsified.
    i. Information concerning contractor's qualifications, finances, 
and capabilities appears falsified.
    6. During the evaluation of bids and proposals.
    a. Deliberately losing or discarding bids of certain 
contractors.
    b. Improperly disqualifying the bids or proposals of certain 
contractors.
    c. Accepting apparently nonresponsive bids from preferred 
contractors.
    d. Unusual or unnecessary contacts between government personnel 
and contractors during solicitation, evaluation, and negotiation.
    e. Any apparently unauthorized release of procurement 
information to a contractor or to non-government personnel.
    f. Any apparent favoritism in the evaluation of the bid or 
proposal of a particular contractor.
    g. Apparent bias in the evaluation criteria or in the attitude 
or actions of the members of the evaluation panel.
    7. During contract formation and administration.
    a. Defective pricing by the contractor usually associated with 
submitting false cost and pricing data under the Truth in 
Negotiation Act.
    b. Cost/Labor mischarging.
    c. Product substitution.
    d. Progress payment fraud. For more details on these subjects 
see DA PAM 27-153, Contract Law, paragraph 23-5.

Figure H-2. Guide for Preparing Remedies Plan

Guide for Preparing a Remedies Plan

(Date of Plan)

Section I (Administrative Data)

A. Subject of Allegation.
B. Principal Investigative Agency.
C. Investigative Agency File Number.
D. Subject's Location.
E. Location Where Offense Took Place.
F. Responsible Action Commander.
G. Responsible MACOM.
H. Contract Administrative Data (If Applicable):
    1. Contract Number.
    2. Type of Contract.
    3. Dollar Amount of Contract.
    4. Period of Contract.
I. Principal Case Agent (Name and Telephone Number).
J. Civilian Prosecutor (If Applicable) (Name, Address, and Telephone 
Number).
K. Is Grand Jury Investigating This Matter? If So, Where is Grand 
Jury Located?
L. Audit Agency Involved (If Applicable). Name and Telephone Number 
of Principal Auditor.
M. Suspense Date for Update of This Plan.

Section II (Summary of Allegations and Investigative Results to Date)

    (Provide sufficient detail for reviewers of the plan to evaluate 
the appropriateness of the planned remedies. If information is 
``close-hold'' or if grand jury secrecy applies, so state.)

Section III (Adverse Impact Statement)

    (Describe any adverse impact on the DA/DOD mission. Adverse 
impact is described in DOD Directive 7050.5, paragraph E.1.g. 
Identify impact as actual or potential. Describe the impact in terms 
of monetary loss, endangerment to personnel or property, mission 
readiness, etc. This information should be considered in formulating 
your remedies as described below and provided to prosecutors for 
their use in prosecution of the offenses.)

Section IV (Remedies Taken and/or Being Pursued)

    A. Criminal Sanctions. (As a minimum, address the following: Are 
criminal sanctions appropriate? If so, which ones? If not, why not? 
Has the local U.S. Attorney or other civilian prosecutor been 
notified and briefed? What actions have been taken or are intended? 
If and when action is complete, describe action and final results of 
the action. Other pertinent comments should be included.)
    B. Civil Remedies. (As a minimum address the following: Which 
civil remedies are appropriate? Has the local U.S. Attorney or other 
civilian prosecutor been notified and briefed? How, when, where and 
by whom are the appropriate civil remedies implemented? If and when 
action is completed, describe action and final results. Other 
pertinent comments should be included.)
    C. Contractual/Administrative Remedies. (As a minimum, address 
the following: Are contractual and administrative remedies 
appropriate: If so, which ones? If not, Why? If contractual or 
administrative remedies are considered appropriate, describe how, 
when, and by whom the remedies are implemented. If and when action 
is completed, describe action and results of the action. Other 
pertinent comments should be included.)
    D. Restrictions on Remedies Action. (Comment as to why obvious 
remedies are not being pursued. For example, the U.S. Attorney 
requests suspension action held in abeyance pending criminal 
action.)

Section V (Miscellaneous Comments/Information)

Section VI (Remedies Plan Participants)

(Record the name, grade, organization, and telephone number of all 
Remedies Plan participants.)

Section VII (MACOM Coordination Comments)

(Record the name, grade, office symbol, and telephone number of all 
MACOM officials providing coordination comments; record the date 
when comments are submitted and append to the Remedies Plan the 
signed comments provided.)

MACOM Focal Point

(Record the name, grade, office symbol, and telephone number of the 
MACOM focal point.)

Section VIII (Coordination/Comments)

(Record the name, grade, organization, office symbol, and telephone 
number of all officials with whom you have coordinated the Remedies 
Plan or who have provided comments on your plan; append any comments 
provided to the Remedies Plan.)

Figure H-3. Guide for Testing Defective Items Under Criminal or 
Civil Investigation

Testing Defective Items Under Criminal or Civil Investigation

    1. Under no circumstances is testing to proceed unless the 
command has committed sufficient funding to cover the entire cost of 
the projected testing.
    2. No testing will be initiated unless there has been a written 
request for the testing to the appropriate Procurement Fraud Advisor 
from a criminal investigator or Assistant United States Attorney or 
Department of Justice Attorney (AUSA is used in these procedures to 
indicate either an AUSA or Department of Justice attorney). If they 
have not already done so, criminal investigators should be requested 
to coordinate their testing requests with the AUSA overseeing the 
investigation.
    3. Barring extraordinary circumstances, only one test will be 
conducted to support the criminal and civil recovery efforts of a 
procurement fraud/irregularity matter. Early coordination with the 
Civil Division of Department of Justice or the local United States 
Attorneys Office is necessary to ensure that testing funds are not 
wasted.
    4. The request for testing should include a clear, concise 
statement of the purpose of the testing to include a statement of 
the allegations made and the contact number(s) involved. Any test 
plan which requires destructive testing must be approved by the 
AUSA.
    5. No testing will be initiated unless a test plan has been 
developed which states the following:

a. the contract number(s) involved
b. the National Stock Number (NSN) of the item to be tested
c. the purpose of the testing
d. the alleged defect or the contractual requirement violated
e. the CID report of investigation (ROI) number or the DCIS case 
number
f. cost of the test (a cost proposal should be an attachment to the 
test plan)
g. where the test will be conducted
h. how the test will be conducted
i. the name and telephone number of the test team leader
j. the names of all test team members
k. the approximate dates of the testing
l. the date that completion of the test is required
m. a clear statement of the desired product (that is test report, 
raw data, analysis of results, evaluation of test results)
n. the PRON to fund the testing
o. a retention plan.

    6. The test plan shall be coordinated with the concurrence 
received in advance from the appropriate personnel in the 
Procurement Directorate, Product Assurance and Test Directorate, the 
Procurement Fraud Advisor, and the investigator/AUSA requesting the 
test. No testing will be initiated until the criminal investigator/
AUSA who requested the testing has approved the test plan.
    7. If the items tested are to be retained as evidence, the 
criminal investigator should arrange for retention of the evidence. 
While the Command will support evidence retention, this is primarily 
the responsibility of the criminal investigators. Agents should be 
advised that putting items in Code L or similar non-use status is 
insufficient to protect it from being released to the field. A 
decision not to retain the tested items as evidence must have the 
approval of the AUSA.
    8. All items to be tested should be from a statistically valid 
random sample. The sample should conform with the inspection 
requirements of the contract or be in conformance with a random 
sample specifically developed for the instant test plan. It is 
recommended that a statistician be consulted to determine the 
feasibility of a random sample specifically created to support the 
test plan.
    9. Results of testing should be available to Command and DA 
personnel for appropriate contractual and administrative remedies. 
Any request for testing results that indicates that dissemination of 
the testing results will be limited by Rule 6(e) of the Federal 
Rules of Criminal Procedure is to be forwarded through the MACOM or 
AMC Procurement Fraud Coordinator to DA Procurement Fraud Division 
prior to the initiation of any testing.
    10. Resolution of problems associated with testing requests 
should be conducted at the local level. In AMC the authority to 
refuse a testing request resides with the Office of Command Counsel. 
Any disputes which cannot be resolved at the local level will be 
forwarded to the AMC or MACOM Procurement Fraud Coordinator for 
resolution. This includes disputes regarding funding or any time 
sensitive issues.
    11. Second requests for testing of the same item due to a change 
in the investigative plan require coordination by the PFA with the 
investigator and AUSA overseeing the investigation to determine the 
deficiencies in the earlier test. Disputes which cannot be resolved 
between the AUSA, PFA, and investigator regarding testing are to be 
forwarded simultaneously to the MACOM Procurement Fraud Coordinator 
and PFD for resolution. The procedures established in paragraphs 5 
and 6 apply for second requests for testing with the additional 
requirement that the Assistant United States Attorney must be 
requested to approve the test plan.

Figure I-1. Guide for Seeking Legal Advice and Representation 
Before Office of Special Counsel

Guide for Seeking Legal Advice and Representation Before Office of 
Special Counsel

1. Overview

    a. DA employees or military members asked to provide information 
(testimonial or documentary) to OSC may obtain legal advice through 
the Labor Counselor from DA attorneys concerning their rights and 
obligations. This includes assistance at any interviews with OSC 
investigators. However, an attorney-client relationship will not be 
established unless the employee or military member--
    (1) Is suspected or accused by the OSC of committing a 
prohibited personnel practice or other illegal or improper act; and
    (2) Has been assigned counsel by the DA General Counsel.
    b. Any military member or employee who reasonably believes that 
he or she is suspected or has been accused by OSC of committing a 
prohibited personnel practice or other illegal or improper act may 
obtain legal representation from DA. The counsel assigned will be 
from another DOD component whenever a DA attorney is likely to face 
a conflict between the attorney's ethical obligation to the client 
and DA, or when the suspected or accused individual has requested 
representation from another DOD component. Outside legal counsel may 
be retained by DA on behalf of the member or employee under unusual 
circumstances and only with the personal approval of the DOD General 
Counsel.
    c. The DA General Counsel will determine whether a conflict is 
likely to occur if a DA attorney is assigned to represent a military 
member or civilian. If the DA General Counsel determines a conflict 
may occur, or if the suspected or accused employee has requested 
representation from another DOD component, the DA General Counsel 
will seek the assistance of another General Counsel in obtaining 
representation outside DA.
    2. Requests for Representation
    a. To obtain legal representation, military members or civilian 
employees must--
    (1) Submit a written request for legal representation through 
the Labor and Employment Law Office, Office of the Judge Advocate 
General, Department of the Army, to DA General Counsel, explaining 
the circumstances that justify legal representation. Copies of all 
process and pleadings served should accompany the request.
    (2) Indicate whether private counsel, at personal expense, has 
been retained.
    (3) Obtain written certification from their supervisor that--
    (a) They were acting within the scope of official duties; and
    (b) DA has not initiated any adverse or disciplinary action 
against them for the conduct being investigated by the OSC.
    b. Requests for DA legal representation must be approved by the 
DA General Counsel.
    c. The conditions of legal representation must be explained and 
accepted in writing by the member or employee.

3. Limitations on Representation

    a. DA will not provide legal representation with respect to a DA 
initiated disciplinary action against a civilian employee for 
committing or participating in a prohibited personnel practice or 
for engaging in illegal or improper conduct. This prohibition 
applies regardless of whether the participation or conduct is also 
the basis for the disciplinary action proposed by the OSC.
    b. In certain situations, counsel provided by DA may be limited 
to representing the individual only with respect to some of the 
pending matters, if other specific matters of concern to the OSC or 
MSPB do not satisfy the requirements contained in this regulation.

4. Attorney-Client Relationship

    a. An attorney-client relationship will be established and 
continued between the suspected or accused individual and assigned 
DA counsel.
    b. In representing a DA employee or military member, the DA 
attorney designated as counsel will act as a vigorous advocate of 
the individual's legal interests before the OSC or MSPB. The 
attorney's professional responsibility to DA will be satisfied by 
fulfilling this responsibility to the employee or military member. 
Legal representation may be terminated only with the approval of the 
DA General Counsel and normally only on the basis of information not 
available at the time the attorney was assigned.
    c. The attorney-client relationship may be terminated if the 
assigned DA counsel determines, with the approval of the DA General 
Counsel, that--
    (1) The military member or civilian employee was acting outside 
the scope of his or her official duties when engaging in the conduct 
that is the basis for the OSC investigation or charge; and
    (2) Termination is not in violation of the rules of professional 
conduct applicable to the assigned counsel.
    d. The DA attorney designated as counsel may request relief from 
the duties of representation or counseling without being required to 
furnish explanatory information that might compromise confidential 
communications between the client and the attorney.

5. Funding

    This regulation authorizes cognizant DA officials to approve 
requests from military members or civilian employees for travel, per 
diem, witness appearances, or other departmental support necessary 
to ensure effective legal representation by the designated counsel.

6. Status

    A military member's or civilian employee's participation in OSC 
investigations, MSPB hearings, and other related proceedings will be 
considered official departmental business for time and attendance 
requirements and similar purposes.

7. Advice to Witnesses

    The following advice to military members and civilian employees 
questioned during the course of an OSC investigation may be 
appropriate in response to these frequent inquiries:
    a. A witness may decline to provide a ``yes'' or ``no'' answer 
in favor of a more qualified answer when this is necessary to ensure 
accuracy in responding to an OSC interviewer's question.
    b. Requests for clarification of both questions and answers are 
appropriate to avoid misinterpretation.
    c. Means to ensure verifications of an interview by OSC 
investigators are appropriate, whether or not the military member or 
civilian employee is accompanied by counsel. Tape recorders may only 
be used for this purpose when--
    (1) The recorder is used in full view.
    (2) All attendees are informed.
    (3) The OSC investigator agrees to record the proceeding.
    d. Any errors that appear in a written summary of an interview 
prepared by the investigator should be corrected before the member 
or employee signs the statement. The military member or civilian 
employee is not required to sign any written summary that is not 
completely accurate. A military member or civilian employee may 
receive a copy of the summary as a condition of signing.

[FR Doc. 94-17726 Filed 7-26-94; 8:45 am]
BILLING CODE 3710-08-P