[Federal Register Volume 64, Number 104 (Tuesday, June 1, 1999)]
[Proposed Rules]
[Pages 29252-29255]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-12738]
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DEPARTMENT OF DEFENSE
Department of the Air Force
32 CFR Part 884
RIN 0701-AA59
Delivery of Personnel to United States Civilian Authorities for
Trial
AGENCY: Department of the Air Force, DoD.
ACTION: Proposed rule.
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SUMMARY: The Department of the Air Force is revising 32 CFR Part 884,
Delivery of Personnel to United States Civilian Authorities for Trial
of the Code of Federal Regulations to reflect current policies. Part
884 is the Air Force Instruction establishing procedures for making Air
Force members, civilian personnel, and family members available to U.S.
civilian authorities for trial or specified court appearances. It
updates the process for delivery of personnel to civilian authorities
for trial.
DATES: Written comments must be received by August 2, 1999.
ADDRESSES: Send written comments to: Lt. Col. Tom Jaster, AFLSA/JAJM,
112 Luke Avenue, Suite 343, Bolling Air Force Base, DC 20332-8000, 202-
767-1539.
FOR FURTHER INFORMATION CONTACT: Lt. Col. Tom Jaster, AFLSA/JAJM, 202-
767-1539.
SUPPLEMENTARY INFORMATION: Part 884 implements Department of Defense
(DoD) Directive 5525.9, Compliance of DoD Members, Employees, and
Family Members Outside the United States With Court Orders, December
27, 1988 and AFPD 51-10, Making Military Personnel, Employees, and
Dependents Available to Civilian Authorities.
(Authority: 10 U.S.C. 814, 10 U.S.C. 8013; Sec. 721(a) Pub. L. 100-
456, 102 Stat. 2001)
List of Subjects in 32 CFR Part 884
Courts, Government employees, Law enforcement, Military personnel.
For the reasons set forth in the preamble, the Department of the
Air Force proposes to revise 32 CFR Part 884 as follows:
PART 884--DELIVERY OF PERSONNEL TO UNITED STATES CIVILIAN
AUTHORITIES FOR TRIAL
Sec.
884.0 Purpose.
884.1 Authority.
884.2 Assigned responsibilities.
884.3 Placing member under restraint pending delivery.
884.4 Release on bail or recognizance.
884.5 Requests under the interstate agreement on Detainer's Act.
884.6 Requests by Federal authorities for military personnel
stationed within the United States and its possessions.
884.7 Requests by state and local authorities when the requested
member is located in that state.
884.8 Request for delivery by state authorities when the member is
located in a different state.
884.9 Requests for custody of members stationed outside the United
States.
884.10 Returning members, employees, and family members from
overseas.
884.11 Procedures for return of an Air Force member to the United
States.
884.12 Delays in returning members to the United States.
884.13 Denials of a request for return of a member to the United
States.
884.14 Compliance with court orders by civilian employees and
family members.
884.15 Procedures involving a request by Federal or state
authorities for custody of an overseas civilian employee or a
command-sponsored family member.
884.16 Reporting requests for assistance and action.
884.17 Commander's instruction letter to member.
884.18 Civilian authority's acknowledgment of transfer of custody
and agreement to notify member's commander.
Authority: 10 U.S.C. 814; 10 U.S.C. 8013; Sec. 721(a), Pub. L.
100-456, 102 Stat. 2001.
Sec. 884.01 Purpose.
This part establishes procedures for making Air Force members,
civilian personnel, and family members available to U.S. civilian
authorities for trial or specified court appearances. It implements 32
CFR part 146. This part does not confer any rights, benefits,
privileges, or form of due process procedure upon any individuals.
Sec. 884.1 Authority.
A general court-martial convening authority (GCMCA) may authorize
delivery of a member of that command to Federal or state civil
authorities. The GCMCA may delegate this authority to an installation
or equivalent commander. See AFPD 51-10, Making Military Personnel,
Employees, and Dependents Available to Civilian Authorities,\1\
paragraphs 8 and 9, for sources of authority.
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\1\ Air Force publications may be obtained through NTIS, 5285
Port Royal Road, Springfield, VA 22161, if not available online at
http://afpubs.hq.af.mil.
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Sec. 884.2 Assigned responsibilities.
(a) The Under Secretary of Defense (USD), Personnel & Readiness
(P&R), is the denial authority for all requests for return of members
to the United States for delivery to civilian authorities when the
request falls under Sec. 884.9(e).
(b) The Air Force Judge Advocate General (TJAG) may approve
requests that fall under Sec. 884.9(e) or recommend denial of such
requests. TJAG or a designee may approve or deny:
(1) Requests for return of members to the United States for
delivery to civilian authorities when the request falls under
Sec. 884.9(f).
(2) Requests for delays of up to 90 days in completing action on
requests for return of members to the United States for delivery to
civilian authorities.
(c) The Air Force Legal Services Agency's Military Justice Division
(HQ AFLSA/JAJM), 172 Luke Avenue, Suite 343, Bolling AFB, DC 20332-
5113, processes requests for return of members to the United States for
delivery to civilian authorities and notifies requesting authorities of
decisions on requests. HQ AFLSA/JAJM completes action on requests
within 30 days after receipt of the request, unless a delay is granted;
they send all reports and notifications to USD/P&R and to the DoD
General Counsel (DoD/GC), as required by this part; and they handle all
communications with requesters.
[[Page 29253]]
Sec. 884.3 Placing member under restraint pending delivery.
Continue restraint only as long as is reasonably necessary to
deliver the member to civilian authorities. See AFPD 51-10, paragraph
5. To determine whether probable cause exists and whether a reasonable
belief exists that restraint is necessary, the commander should refer
to the Manual for Courts-Martial (MCM), 1984, specifically, Rules for
Courts-Martial (RCM) 305(h)(2)(B), and the discussion following it. The
requirement for the formal review of restraint found in MCM 1984, RCM
305, and AFI 51-201, Military Justice Guide,\2\ does not apply.
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\2\ See footnote 1 in Sec. 884.1.
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Sec. 884.4 Release on bail or recognizance.
(a) Before delivering an Air Force member to a civilian authority,
the commander or designee directs the member in writing to report to a
designated Air Force unit, activity, or recruiting office for further
instructions in the event the civilian authority releases the member
(see Sec. 884.17). The commander designates the member's unit, if the
civilian authority is in the immediate vicinity of the member's base.
The commander advises the designated Air Force unit, activity, or
recruiting office of the situation. Once the member has been released
and has reported to the designated authority, it immediately sends the
member's name, rank, Social Security number (SSN), organization, and
other pertinent information to the member's commander, who then
provides further instructions.
(b) The member's commander notifies the military personnel flight
(MPF) of the situation. In turn, the MPF provides an information copy
to the Air Force Personnel Center (AFPC) assignment office responsible
for the member's Air Force specialty code (AFSC), as listed in AFMAN
36-2105, Officer Classification,\3\ or AFMAN 36-2108, Airman
Classification.\3\ If contact cannot be made with the member's
commander, the Air Force unit, activity, or recruiting office
previously designated by the commander obtains instructions from HQ
AFPC/DPMARS or DPMRPP2.
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\3\ See footnote 1 in Sec. 884.1.
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Sec. 884.5 Requests under the interstate agreement on Detainer's Act.
When either the prisoner or state authorities make a request under
the Detainer's Act, follow the procedures in Title 18 U.S.C. App.
Section 1, et seq. The Act applies only to a person who has entered
upon a term of imprisonment in a penal or correctional institution and
is, therefore, inapplicable to members in pretrial confinement.
Sec. 884.6 Request by Federal authorities for military personnel
stationed within the United States and its possessions.
(a) When Federal authorities request the delivery of service
members, the Air Force will normally deliver service members when the
request is accompanied by a warrant issued pursuant to the Federal
Rules of Criminal Procedure, rule 4, or when a properly identified
Federal officer represents that such a warrant has been issued.
(b) A U.S. marshal, deputy marshal, or other officer authorized by
law will call for and take into custody persons desired by Federal
authorities for trial. The officer taking custody must execute a
statement in substantially the form set out in Sec. 884.18.
Sec. 884.7 Requests by state and local authorities when the requested
member is located in that state.
(a) The Air Force normally will turn over to the civilian
authorities of the state, upon their request, Air Force members charged
with an offense against state or local law. Each request by such
civilian authorities for the surrender of a member of the Air Force
should normally be accompanied by a copy of an indictment, information,
or other document used in the state to prefer charges, or a warrant
that reflects the charges and is issued by a court of competent
jurisdiction.
(b) Before making delivery to civilian authorities of a state, the
commander having authority to deliver will obtain a written agreement,
substantially in the form of Sec. 884.18, from a duly authorized
officer of the state.
(c) Where the state authority cannot agree to one or more of the
conditions set out in the form, the commander may authorize
modification. The requirements of the agreement are substantially met
when the state authority informs the accused's commander of the
accused's prospective release for return to military authorities and
when the state furnishes the accused transportation back to his or her
station, together with necessary funds to cover incidental expenses en
route. The accused's commander provides copies of the statement or
agreement of this section and in Sec. 884.6(b) to the civilian
authority to whom the member was delivered and to the Air Force unit,
activity, or recruiting office nearest to the place of trial designated
in the agreement as the point of contact in the event of release on
bail or on recognizance (see Sec. 884.4). The accused's commander
immediately notifies the civilian authority if the member has been
discharged from the Air Force.
Sec. 884.8 Request for delivery by state authorities when the member
is located in a different state.
(a) This part applies to members who are located in the United
States. With respect to the extradition process, Air Force personnel
have the same status as persons not in the Armed Forces. Accordingly,
if a state other than the state in which the member is located requests
the delivery of a military member, in the absence of a waiver of
extradition process by the member concerned, that state must use its
normal extradition procedures to make arrangements to take the
individual into custody in the state where he or she is located.
(b) The Air Force will not transfer a military member from a base
within one state to a base within another state for the purpose of
making the member amenable to prosecution by civilian authorities.
Sec. 884.9 Request for custody of members stationed Outside the United
States.
(a) Authority. This section implements Pub. L. 100-456, section
721(a), and DoD Directive 5525.9, December 27, 1988.
(b) The Air Force expects members to comply with orders issued by
Federal or state court of competent jurisdiction, unless noncompliance
is legally justified. Air Force members who persist in noncompliance
are subject to adverse administrative action, including separation for
cause under AFI 36-3206, Administrative Discharge Procedures, and AFI
36-3208, Administrative Separation of Airmen.
(c) Air Force officials will ensure that members do not use
assignments or officially sponsored residence outside the United States
to avoid compliance with valid orders of Federal or state court of
competent jurisdiction.
(d) Noncompliance with a court order may be legally justified when
the individual can adequately demonstrate that the conduct, which is
the subject of the complaint or request, was sanctioned by supplemental
court orders, equally valid court orders of other jurisdictions, good
faith legal efforts to resist the request, or other reasons. HQ USAF/
JAG, HQ AFLSA/JACA, and Air Force legal offices in the jurisdiction
concerned will provide legal support to servicing staff judge advocates
who request assistance in reviewing these issues.
[[Page 29254]]
(e) When Federal, state, or local authorities request delivery of
an Air Force member stationed outside the United States who is
convicted of or charged with a felony or other serious offense or who
is sought by such authorities in connection with the unlawful or
contemptuous taking of a child from the jurisdiction of a court or from
the lawful custody of another person, the member's commander will
normally expeditiously return the member to the United States for
delivery to the requesting authorities.
(1) A serious offense is defined as one punishable by confinement
for more than 1 year under the laws of the requesting jurisdiction.
(2) Delivery of the member is not required if the controversy can
be resolved without returning the member to the United States or if the
request for delivery of the member is denied in accordance with this
instruction.
(f) Ordinarily, do not return an Air Force member stationed outside
the United States to the United States for delivery to civilian
authorities if the offense is not specified in paragraph (e) of this
section. TJAG may direct return when deemed appropriate under the facts
and circumstances of the particular case.
(g) Before taking action under this section, give the member the
opportunity to provide evidence of legal efforts to resist the court
order or process sought to be enforced or otherwise to show legitimate
cause for noncompliance.\4\
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\4\ See footnote in Sec. 884.1
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Sec. 884.10 Returning members, employees, and family members from
overseas.
The Air Force expects persons overseas wanted by Federal or state
authorities to make themselves available to those authorities for
disposition. If they do not, DoD Directive 5525.9, Compliance of DoD
Members, Employees, and Family Members Outside the United States With
Court Orders, 10 U.S.C 814, and Pub. L. 100-456 721(a), authorize and
require commanders to respond promptly to requests from civilian
authorities for assistance in returning members, civilian employees,
and family members from overseas.
Sec. 884.11 Procedures for return of an Air Force member to the United
States.
(a) Include the following information in a request for return of an
Air Force member to the United States for delivery to civilian
authorities:
(1) Fully identify the member sought by providing the member's
name, grade, SSN, and unit of assignment, to the extent the information
is known.
(2) Specify the offense for which the member is sought. If the
member is charged with a crime, specify the maximum punishment under
the laws of the requesting jurisdiction. Specify whether the member is
sought in connection with the unlawful or contemptuous taking of a
child from the jurisdiction of a court or the lawful custody of
another.
(3) Include copies of all relevant requests for assistance,
indictments, information, or other instruments used to bring charges,
all relevant court orders or decrees, and all arrest warrants, writs of
attachment or capias (writs authorizing arrests), or other process
directing or authorizing the requesting authorities to take the member
into custody. Also, include reports of investigation and other
materials concerning the background of the case if reasonably
available.
(4) Indicate whether the requesting authorities will secure the
member's lawful delivery or extradition from the port of entry to the
requesting jurisdiction, whether they will do so at their own expense,
and whether they will notify HQ AFLSA/JAJM of the member's release from
custody and of the ultimate disposition of the matter.
(5) Any U.S. attorney or assistant U.S. attorney, governor or other
duly authorized officer of a requesting state or local jurisdiction, or
the judge, magistrate, or clerk of a court of competent jurisdiction
must sign the request.
(b) Civilian authorities making requests for return of members to
the United States for delivery to them should direct their request to
HQ AFLSA/JAJM. If another Air Force agency or official receives the
request, immediately send it to HQ AFLSA/JAJM.
(c) Upon receipt of a request, HQ AFLSA/JAJM promptly notifies the
member's commander, who consults with the servicing staff judge
advocate. The commander provides a report of relevant facts and
circumstances and recommended disposition of the request through
command channels to HQ AFLSA/JAJM. If the commander recommends denial
of the request or a delay in processing or approving it, the commander
provides the information specified in Sec. 884.12(a)(1) through (a)(4)
or Sec. 884.13(a)(1) through (a)(4).
(d) After proper authority has approved a request for return of a
member to the United States for delivery to civilian authorities, HQ
AFLSA/JAJM notifies AFPC of the decision to return the member to the
United States. AFPC issues permanent change of station (PCS) orders,
assigning the member to an installation as close to the requesting
jurisdiction as possible, considering the needs of the Air Force for
personnel in the member's rank and AFSC.
(e) HQ AFLSA/JAJM notifies requesting authorities of the member's
new assignment, port of entry into the United States, and estimated
time of arrival. Except during unusual circumstances, HQ AFLSA/JAJM
notifies requesting authorities at least 10 days before the member's
return.
Sec. 884.12 Delays in returning members to the United States.
(a) On a request to return a member to the United States for
delivery to civilian authorities, TJAG may grant a delay of not more
than 90 days in completing action when one or more of the following are
present:
(1) Efforts are in progress to resolve the controversy to the
satisfaction of the requesting authorities without the member's return
to the United States.
(2) Additional time is required to permit the member to provide
satisfactory evidence of legal efforts to resist the request or to show
legitimate cause for noncompliance.
(3) Additional time is required to permit the commander to
determine the specific effect of the loss of the member on command
mission and readiness or to determine pertinent facts and circumstances
relating to any international agreement, foreign judicial proceeding,
DoD, Air Force, or other military department investigation or court-
martial affecting the member.
(4) Other unusual facts or circumstances warrant delay.
(b) AFLSA/JAJM promptly reports all delays in cases falling under
AFPD 51-10,5 paragraph 3, through SAF/GC and SAF/MI to USD/
P&R and to DoD/GC
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\5\ See footnote 1 in Sec. 884.1.
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(c) Delays in excess of 90 days are not authorized in cases falling
under AFPD 51-10, paragraph 3, unless approved by USD/P&R.
Sec. 884.13 Denials of a request for return of a member to the United
States.
(a) A request for return of a member to the United States for
delivery to civilian authorities may be denied when:
(1) The member's return would have an adverse impact on operational
readiness or mission requirements.
(2) An international agreement precludes the member's return.
(3) The member is the subject of foreign judicial proceedings,
court-martial, or a DoD, Air Force, or other military department
investigation.
[[Page 29255]]
(4) The member showed satisfactory evidence of legal efforts to
resist the request or other legitimate cause for noncompliance or when
other unusual facts or circumstances warrant a denial.
(b) Commanders promptly send to HQ AFLSA/JAJM information
supporting a determination that denial may be appropriate. In cases
warranting denial, TJAG promptly sends a recommendation and supporting
documentation, through SAF/GC and SAF/MI, to USD/P&R for decision.
(c) The fact that a recommendation for denial is pending does not
by itself authorize noncompliance or a delay in compliance with any
provision of this section, but TJAG may consider a pending request for
denial in determining whether to grant a delay.
Sec. 884.14 Compliance with court orders by civilian employees and
family members.
(a) The Air Force expects civilian employees and family members to
comply with orders issued by Federal or state court of competent
jurisdiction, unless noncompliance is legally justified. Air Force
civilian employees who persist in noncompliance are subject to adverse
administrative action, including separation for cause as provided in
AFI 36-704, Discipline and Adverse Actions (PA).6
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\6\ See footnote 1 in Sec. 884.1.
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(b) Air Force officials ensure that civilian personnel and family
members do not use assignments or officially sponsored residence
outside the United States to avoid compliance with valid orders of
Federal or state court of competent jurisdiction.
Sec. 884.15 Procedures involving a request by Federal or state
authorities for custody of an overseas civilian employee or a command-
sponsored family member.
(a) The procedures of this section apply to civilian employees,
including nonappropriated fund instrumentality (NAFI) employees, who
are assigned outside the United States, and to command-sponsored family
members residing outside the United States.
(b) This section applies only when Air Force authorities receive a
request for assistance from Federal, state, or local authorities
involving noncompliance with a court order and when noncompliance is
the subject of any of the following: an arrest warrant; indictment,
information, or other document used in the jurisdiction to prefer
charges; or a contempt citation involving the unlawful or contemptuous
removal of a child from the jurisdiction of the court or the lawful
custody of a parent or third party.
(c) To the maximum extent possible, consistent with provisions of
international agreements and foreign court orders, DoD and military
department investigations, and judicial proceedings, commanders comply
with requests for assistance. After exhausting all reasonable efforts
to resolve the matter without the employee or family member returning
to the United States, the commander shall strongly encourage the
individual to comply. The commander shall consider imposing
disciplinary action (including removal) against the employee or
withdrawing command sponsorship of the family member, as appropriate,
for failure to comply.
Sec. 884.16 Reporting requests for assistance and action.
The commander or designee promptly reports each request for
assistance and intended action by message. Send reports to HQ AFLSA/
JAJM, which submits required reports, through channels, to USD/P&R. HQ
AFLSA/JAJM conducts all communications with requesters.
Sec. 884.17 Commander's instruction letter to member.
Subject: Instructions in Case of Release on Bail or Personal
Recognizance
1. You are being delivered to the custody of civilian
authorities, pursuant to the provisions of AFI 51-1001. This action
does not constitute a discharge from the Air Force. In the event
that you are released from civilian custody on bail or on your own
recognizance, report immediately in person or by telephone to the
(Air Force unit, activity, or recruiting office) for further
instructions. Advise the commander of your name, rank, SSN,
organization, the circumstances of your release from custody, and
the contents of this letter.
2. Certain restrictions may be placed upon you by civilian
authorities in connection with your temporary release from custody.
Be certain to include in your report what these limitations are.
3. AFI 51-1001, paragraph 4 provides that the authority to whom
you report will notify your commander. If that is not possible,
request the nearest Air Force base military personnel flight to
contact HQ AFPC/DPMARS or DPMRPP2 by the fastest means available.
Provide your name, rank, SSN, organization, and the circumstances of
your release; further instructions will then be given to you.
(SIGNATURE ELEMENT)
Sec. 884.18 Civilian Authority's acknowledgment of Transfer of Custody
and Agreement to Notify Member's Commander.
1. A warrant for the arrest of (name, rank, and SSN),
hereinafter referred to as the ``member,'' and who is charged with
(offenses) has been issued by (civilian authority) and in execution,
thereof, I accept his or her custody.
2. In consideration of the delivery of member at (location) to
me for trial upon the above charge, pursuant to the authority vested
in me as (position), I hereby agree to the following:
a. The commander (name, rank, unit, telephone), will be advised
of the disposition of the charges.
b. The member will be immediately returned to the custody of the
military upon completion of the trial, if acquitted; or upon
satisfying the sentence imposed, if convicted; or upon other
disposition of the case.
c. The member's return will be to (location) or to such other
place as may be designated by the Department of the Air Force.
3. The member's return will not be required if the member's
commander has indicated that return is not appropriate. Instead of
actual delivery, transportation for the member may be arranged so
long as it is without expense to the United States or to the member.
4. Pending disposition of the charges, the member will remain in
the custody of (name of agency and location), unless released on
bail or the member's own recognizance, in which event (Air Force
unit, activity, or recruiting office nearest place of trial) will be
notified.
(SIGNATURE ELEMENT)
Janet A. Long,
Air Force Federal Register Liaison Officer.
[FR Doc. 99-12738 Filed 5-28-99; 8:45 am]
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