[Title 32 CFR V]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[Title 32 - NATIONAL DEFENSE]
[Chapter V - DEPARTMENT OF THE ARMY]
[From the U.S. Government Printing Office]
32NATIONAL DEFENSE32002-07-012002-07-01falseDEPARTMENT OF THE ARMYVCHAPTER VNATIONAL DEFENSE
CHAPTER V--DEPARTMENT OF THE ARMY
(Parts 400 to 629)
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SUBCHAPTER A--AID OF CIVIL AUTHORITIES AND PUBLIC RELATIONS
Part Page
400-500 [Reserved]
501 Employment of troops in aid of civil
authorities............................. 7
502 Relief assistance........................... 9
503 Apprehension and restraint.................. 15
504 Obtaining information from financial
institutions............................ 17
505 The Army Privacy program.................... 26
507 Manufacture and sale of decorations, medals,
badges, insignia, commercial use of
heraldic designs and Heraldic Quality
Control Program......................... 65
508 Competition with civilian bands............. 72
510 Chaplains................................... 72
513 Indebtedness of military personnel.......... 72
516 Litigation.................................. 83
518 The Army Freedom of Information Act Program. 140
519 Publication of rules affecting the public... 201
525 Entry authorization regulation for Kwajalein
Missile Range........................... 206
527 Personal check cashing control and abuse
prevention.............................. 213
SUBCHAPTER B--CLAIMS AND ACCOUNTS
534 Military court fees......................... 231
536 Claims against the United States............ 236
537 Claims on behalf of the United States....... 271
538 Military payment certificates............... 280
SUBCHAPTER C--MILITARY EDUCATION
542 Schools and colleges........................ 283
543-544 [Reserved]
SUBCHAPTER D--MILITARY RESERVATIONS AND NATIONAL CEMETERIES
552 Regulations affecting military reservations. 285
[[Page 6]]
553 Army national cemeteries.................... 346
555 Corps of Engineers, research and
development, laboratory research and
development and tests, work for others.. 358
SUBCHAPTER E--ORGANIZED RESERVES
562 Reserve Officers' Training Corps............ 363
564 National Guard regulations.................. 367
SUBCHAPTER F--PERSONNEL
571 Recruiting and enlistments.................. 374
574 United States Soldiers' and Airmen's Home... 381
575 Admission to the United States Military
Academy................................. 382
578 Decorations, medals, ribbons, and similar
devices................................. 385
581 Personnel review board...................... 435
583
Former personnel [Reserved]
584 Family support, child custody, and paternity 444
589 Compliance with court orders by personnel
and command sponsored family members.... 463
SUBCHAPTER G--PROCUREMENT
619 [Reserved]
SUBCHAPTER H--SUPPLIES AND EQUIPMENT
621 Loan and sale of property................... 466
623 Loan of Army materiel....................... 478
625 Surface transportation--administrative
vehicle management...................... 520
626 Biological Defense Safety Program........... 521
627 The Biological Defense Safety Program,
technical safety requirements (DA
Pamphlet 385-69)........................ 533
Cross Reference: Other regulations issued by the Department of the Army
appear in title 33, chapter II; and title 36, chapter III.
Abbreviations:
The following abbreviations are used in this chapter: AGCT=Army
General Classification Test. AGO=Adjutant General's Office. APP=Army
Procurement Procedure. AR=Army Regulations. ASPR=Armed Services
Procurement Regulations. ATC=Air Transport Command. A. W.=Articles of
War. AWOL=Absent Without Leave. Comp. Gen.=Comptroller General.
OCF=Office, Chief of Finance. ROTC=Reserve Officer's Training Corps.
ZI=Zone of Interior.
[[Page 7]]
SUBCHAPTER A--AID OF CIVIL AUTHORITIES AND PUBLIC RELATIONS
PARTS 400-500 [RESERVED]
PART 501--EMPLOYMENT OF TROOPS IN AID OF CIVIL AUTHORITIES--Table of Contents
Sec.
501.1 Basic policies.
501.2 Emergency.
501.3 Command authority.
501.4 Martial law.
501.5 Protection of Federal property.
501.6 End of commitment.
501.7 Loan of military resources to civil authorities.
Authority: Secs. 331, 332, 333, and 3012, 70A Stat. 15, 157; 10
U.S.C. 331, 332, 333, 3012.
Source: 34 FR 14126, Sept. 6, 1969, unless otherwise noted.
Sec. 501.1 Basic policies.
(a) The protection of life and property and the maintenance of law
and order within the territorial jurisdiction of any State are the
primary responsibility of State and local civil authorities. Generally,
Federal Armed Forces are committed after State and local civil
authorities have utilized all of their own forces and are unable to
control the situation, or when the situation is beyond the capabilities
of State or local civil authorities, or when State and local civil
authorities will not take appropriate action. Commitment of Federal
Armed Forces will take place only--
(1) Under the provisions of this part, and
(2) When the Secretary of the Army, pursuant to the orders and
policies of the Secretary of Defense and the President, has generally or
specifically so ordered, except in cases of emergency (Sec. 501.2).
(b) The Secretary of the Army has been designated as the Executive
Agent for the Department of Defense in all matters pertaining to the
planning for, and deployment and employment of military resources in the
event of civil disturbances. The Department of the Army is responsible
for coordinating the functions of all the Military Services in this
activity for the Executive Agent. The Secretaries of the other Military
Services are responsible for providing such assistance as may be
requested by the Executive Agent.
(c) Persons not normally subject to military law taken into custody
by the military forces incident to the use of Armed Forces, as
contemplated by this part, will be turned over, as soon as possible, to
the civil authorities. The Army will not operate temporary confinement/
detention facilities unless local facilities under the control of city,
county, and State governments and the U.S. Department of Justice cannot
accommodate the number of persons apprehended or detained. Further, this
authority may be exercised only in the event Federal Armed Forces have
been committed under the provisions of this part and only with the prior
approval of the Department of the Army. When the requirement exists for
the Army to operate such facilities, the provisions of Army confinement
regulations will apply to the maximum extent feasible under the
circumstances.
(d) Whenever military aid is requested by civil authorities in the
event of civil disturbances within the States of Alaska, or Hawaii, the
Commonwealth of Puerto Rico, or U.S. possessions and territories, the
commander of the unified command concerned coordinates the provision of
such aid.
(e) Units and members of the Army Reserve on active duty may be
employed in civil disturbance operations in the same manner as active
forces. Units and members of the Army Reserve may be ordered to active
duty for this purpose by the President as provided by law. Members of
the Army Reserve, with their consent, may be ordered to active duty for
civil disturbance operations under the provisions of 10 U.S.C. 672.
Sec. 501.2 Emergency.
(a) In cases of sudden and unexpected invasion or civil disturbance,
including
[[Page 8]]
civil disturbances incident to earthquake, fire, flood, or other public
calamity endangering life or Federal property or disrupting Federal
functions or the normal processes of Government, or other equivalent
emergency so imminent as to make it dangerous to await instructions from
the Department of the Army requested through the speediest means of
communications available, an officer of the Active Army in command of
troops may take such action, before the receipt of instructions, as the
circumstances of the case reasonably justify. However, in view of the
availability of rapid communications capabilities, it is unlikely that
action under this authority would be justified without prior Department
of the Army approval while communications facilities are operating. Such
action, without prior authorization, of necessity may be prompt and
vigorous, but should be designed for the preservation of law and order
and the protection of life and property until such time as instructions
from higher authority have been received, rather than as an assumption
of functions normally performed by the civil authorities.
(b) Emergency firefighting assistance may be provided pursuant to
agreements with local authorities; emergency explosive ordnance disposal
service may be provided in accordance with paragraph 18, AR 75-15.
Sec. 501.3 Command authority.
(a) In the enforcement of the laws, Federal Armed Forces are
employed as a part of the military power of the United States and act
under the orders of the President as Commander in Chief. When commitment
of Federal Armed Forces has taken place, the duly designated military
commander at the objective area will act to the extent necessary to
accomplish his mission. In the accomplishment of his mission, reasonable
necessity is the measure of his authority, subject of course, to
instructions he may receive from his superiors.
(b) Federal Armed Forces committed in aid of the civil authorities
will be under the command of, and directly responsible to, their
military and civilian superiors through the Department of the Army chain
of command. They will not be placed under the command of an officer of
the State Defense Forces or of the National Guard not in the Federal
service, or of any local or State civil official; any unlawful or
unauthorized act on the part of such troops would not be excusable on
the ground that it was the result of an order received from any such
officer or official. As directed by the Army Chief of Staff, military
commanders will be responsive to authorized Federal civil officials.
Sec. 501.4 Martial law.
It is unlikely that situations requiring the commitment of Federal
Armed Forces will necessitate the declaration of martial law. When
Federal Armed Forces are committed in the event of civil disturbances,
their proper role is to support, not supplant, civil authority. Martial
law depends for its justification upon public necessity. Necessity gives
rise to its creation; necessity justifies its exercise; and necessity
limits its duration. The extent of the military force used and the
actual measures taken, consequently, will depend upon the actual threat
to order and public safety which exists at the time. In most instances
the decision to impose martial law is made by the President, who
normally announces his decision by a proclamation, which usually
contains his instructions concerning its exercise and any limitations
thereon. However, the decision to impose martial law may be made by the
local commander on the spot, if the circumstances demand immediate
action, and time and available communications facilities do not permit
obtaining prior approval from higher authority (Sec. 501.2). Whether or
not a proclamation exists, it is incumbent upon commanders concerned to
weigh every proposed action against the threat to public order and
safety it is designed to meet, in order that the necessity therefor may
be ascertained. When Federal Armed Forces have been committed in an
objective area in a martial law situation, the population of the
affected area will be informed of the rules of conduct and other
restrictive measures the military is authorized to enforce. These will
normally be announced by
[[Page 9]]
proclamation or order and will be given the widest possible publicity by
all available media. Federal Armed Forces ordinarily will exercise
police powers previously inoperative in the affected area, restore and
maintain order, insure the essential mechanics of distribution,
transportation, and communication, and initiate necessary relief
measures.
Sec. 501.5 Protection of Federal property.
The right of the United States to protect Federal property or
functions by intervention with Federal Armed Forces is an accepted
principle of our Government. This form of intervention is warranted only
where the need for protection exists and the local civil authorities
cannot or will not give adequate protection. This right is exercised by
executive authority and extends to all Federal property and functions.
Sec. 501.6 End of commitment.
The use of Federal Armed Forces for civil disturbance operations
should end as soon as the necessity therefor ceases and the normal civil
processes can be restored. Determination of the end of the necessity
will be made by the Department of the Army.
Sec. 501.7 Loan of military resources to civil authorities.
(a) The Department of the Army in certain limited situations can
lend military equipment to civil law enforcement authorities in the
event of civil disturbances. Such loans of equipment are limited to
those necessary to meet an urgent need during an actual civil
disturbance (except as provided in paragraph (b) of this section) and
the loans are considered to be a temporary emergency action. Civil law
enforcement authorities are to be encouraged to procure their own
equipment for police use since, even though requests are handled
expeditiously, normally some time will elapse before the military
equipment can be in the hands of the civil law enforcement authorities.
Law enforcement authorities are to be cautioned not to rely on the loan
of military equipment in the event of a civil disturbance in their
locality because the availability of military equipment for civilian use
is contingent upon military requirements for the Department of the Army
resources.
(b) A loan agreement will be executed with the civil authority in
each case. The agreement will indicate that the property may be retained
by the civil authorities only for the duration of the civil disturbance,
but for not more than 15 days; however, should the civil disturbance
exceed 15 days the approving authority may extend the agreement for
another 15-day period. It is recognized that there is often a
substantial leadtime before equipment procured by civil law enforcement
authorities will be delivered to them. For this reason loans of
equipment beyond the 15-day limit are authorized when a request is made
in anticipation of imminent threatened civil disturbance and the civil
authority requesting the loan has initiated procurement action for
equipment substantially similar to the military property requested.
Loans may be approved for terms of up to 90 days pending delivery to the
civil authority of its own equipment and renewed by the approving
authority for another 90-day period if necessary.
(c) Each loan agreement will contain provisions for a cash bond,
performance bond, or the equivalent equal to the value of the loaned
equipment, as a condition to making the loan; waiver of the requirement
to post bond will be approved only by the Department of the Army. With
the prior concurrence of the Department of the Army, the bond will be
forfeited in the event the equipment is not returned at the time
specified. However, the forfeiture of the bond will not constitute a
sale of the equipment, and the borrower will not be relieved of his
obligation to return the loaned equipment. Loan agreements will clearly
state the expenses and obligations assumed by the civil authority.
PART 502--RELIEF ASSISTANCE--Table of Contents
Disaster Relief
Sec.
502.1 Purpose and applicability.
502.2 Definitions.
502.3 Provisions of disaster relief legislation and Executive orders
and other authorities.
[[Page 10]]
502.4 Department of Defense policies and delegation of authority.
502.5 Department of the Army policies and designation of
responsibilities.
Relief Shipments
502.11 Commercial freight shipments of supplies by voluntary non-profit
relief agencies.
Authority: Sec. 3012, 70A Stat. 157; 10 U.S.C. 3012.
Source: 31 FR 7966, June 4, 1966, unless otherwise noted.
Disaster Relief
Sec. 502.1 Purpose and applicability.
(a) Sections 502.1 through 502.5 contain Department of the Army
policy and responsibilities for operations involving participation in
natural disaster relief activities.
(b) Sections 502.1 through 502.5 are applicable in the 48 contiguous
States and the District of Columbia, and where not in conflict with
public law or other proper authority, have equal application to Alaska,
Hawaii, Puerto Rico, the Virgin Islands, Guam, American Samoa, and the
Trust Territory of the Pacific Islands. Within the latter areas, the
commander of the unified command concerned is responsible for emergency
employment of military resources in disaster relief.
(c) Policy and guidance for related type emergencies involving
employment of Army resources are contained in AR 600-50 (Civil
Disturbances), AR 500-70 (Civil Defense), and AR 420-90 (Fire Prevention
and Protection).
(d) The provisions of Secs. 502.1 through 502.5 apply generally
except as otherwise covered in directives of Chief of Engineers
pertinent to the Civil Works Program.
Sec. 502.2 Definitions.
For the purpose of Secs. 502.1 through 502.5 the following
definitions apply:
(a) Natural disaster. All domestic emergencies except those created
as a result of enemy attack or civil disturbance.
(b) Major disaster. Any disaster caused by flood, drought, fire,
earthquake, storm, hurricane, or other catastrophe, which in the
determination of the President, is or threatens to be, of such severity
and magnitude as to warrant disaster assistance by the Federal
Government under the provisions of Pub. L. 875 (see Sec. 502.3(a)) to
supplement the efforts and available resources of State and local
governments in alleviating the damage, hardship or suffering caused
thereby.
(c) Imminent seriousness. An emergency condition of immediate
urgency in which it would be dangerous to delay necessary action by
waiting for instructions from higher authority despite the fact such
instructions are requested through command channels by the most
expeditious means of communication available.
(d) Military resources. Includes personnel, equipment, and supplies
of Department of Defense agencies including the Army, Navy, Air Force,
Marine Corps, and Defense Supply Agency.
(e) State. Includes any State in the United States, the District of
Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa, and the
Trust Territory of the Pacific Islands.
(f) Local government. Includes any county, city, village, town,
district, or other political subdivision of any State, or the District
of Columbia.
(g) Federal agency. Includes any departmental, independent
establishment, government corporation, or other agency of the executive
branch of the Federal Government, excepting, however, the American
National Red Cross.
(h) Office of Emergency Planning (OEP). The Federal Executive agency
in the Executive Office of the President responsible for coordinating
Federal assistance for major disasters in behalf of the President.
(i) Office of Civil Defense (OCD). The office under the Secretary of
the Army responsible for plans and preparations for civil defense.
(j) American National Red Cross (ANRC). The national organization of
the Red Cross organized to undertake activities for the relief of
persons suffering from disaster as stated in section 3 of the Act of
January 5, 1905, chapter 23, as amended (36 U.S.C. 3), entitled ``An Act
To Incorporate the American National Red Cross.''
(k) DOD components. Army, Navy, Air Force, Marine Corps, Defense
Supply
[[Page 11]]
Agency, and other Department of Defense agencies.
Sec. 502.3 Provisions of disaster relief legislation and Executive orders and other authorities.
The following guidelines are pertinent to disaster relief action.
(a) Public Law 875, 81st Congress, as amended, 42 U.S.C. 1855-1855g
(Federal Disaster Act of 30 September 1950), hereinafter referred to as
Pub. L. 875, which provides for supplementary Federal assistance to
State and local governments in major disasters, and for other purposes.
(b) Executive Order 10427 dated January 16, 1953, as amended, which
delegates to the Director, OEP the authority to direct and coordinate
other Federal agencies in rendering assistance to State and local
governments under provisions of Pub. L. 875.
(c) Executive Order 10737, dated October 29, 1957, which amends
Executive Order 10427 to include authority for the reimbursement of any
Federal agency, subject to the concurrence of the Director of the Bureau
of the Budget, for authorized expenditures for funds allocated by the
President for use in assistance to a specific State.
(d) Executive Order 11051 dated September 27, 1962, which
specifically prescribes the responsibility of the Director, OEP as set
forth in Executive Orders 10427 and 10737.
(e) Federal assistance is authorized under provisions of Pub. L. 875
only after the President has declared the specific disaster as defined
in the Act. Such declaration is made after a request for Federal
assistance by the Governor of the State (or the Board of Commissioners
of the District of Columbia), through the appropriate OEP Regional
Office Director.
(f) Section 5 of the Act of August 18, 1941, ch. 377, as amended, 33
U.S.C. 701n; is commonly known and hereinafter referred to as Public Law
99 (Pub. L. 99). It provides basic guidance for the applicable emergency
activities of the Corps of Engineers. The law provides discretionary
authority for expenditures for flood emergency preparation; flood
fighting and rescue operations, and emergency repair or restoration of
flood control works and Federal shore protection or hurricane flood
protection works. Administration of Pub. L. 99 is under the direction of
the Secretary of the Army and the supervision of the Chief of Engineers.
No declaration of a major disaster is required.
(g) Existing statutes and Executive orders do not in any way limit
Federal agencies from taking necessary action in accordance with
existing policy and statutory authority in the event of a disaster which
will not brook delay in the commencement of Federal assistance or other
Federal action and/or pending the designation by the President of a
major disaster.
(h) The American National Red Cross is charged in accordance with
its Charter, with continuing a system of national and international
relief with voluntary service and financing, which in effect supports
official disaster relief action.
Sec. 502.4 Department of Defense policies and delegation of authority.
(a) Responsibility for alleviating disaster conditions rests
primarily with individuals, families, private industry, local and State
governments, the American National Red Cross, and those Federal agencies
having special statutory responsibilities.
(b) DOD components are authorized to assist civilian authorities as
necessary or as directed by competent authority.
(c) Where the disaster is of such imminent seriousness that delay in
awaiting instructions from higher authority is unwarranted, a military
commander will take such action as may be required and justified under
the circumstances to save human life, prevent immediate human suffering,
or mitigate major property damage or destruction. The commander will
immediately report to higher authority the action taken and request
appropriate guidance.
(d) DOD components have been directed to develop, as appropriate,
contingency plans for major disaster operations and insure that these
are coordinated with appropriate civil authorities at State and local
level.
[[Page 12]]
(e) DOD components overseas will participate in foreign disaster
relief operations as directed by unified commanders.
(f) The Department of the Army has been directed to assume
responsibility for military support in disasters within the continental
United States (48 contiguous States and the District of Columbia). This
includes responsibility for effective utilization, coordination, and
control of resources made available by the Department of the Navy, the
Department of the Air Force, and other DOD components as appropriate.
(g) The Department of the Navy has been directed to coordinate with
the Department of the Army in planning and supporting civil authorities
in disaster relief operations.
(h) The Department of the Air Force has been directed to coordinate
with the Department of the Army in planning and supporting civil
authorities in disaster relief operations including activities of the
Civil Air Patrol.
(i) The Joint Chiefs of Staff have been directed to issue
instructions to appropriate unified commanders to insure proper planning
and use of military resources for disaster relief operations in Alaska,
Hawaii, Puerto Rico, the Virgin Islands, American Samoa, Guam, and the
Trust Territory of the Pacific Islands.
Sec. 502.5 Department of the Army policies and designation of responsibilities.
(a) Military commanders will conduct relief operations in the event
of emergency as described in Sec. 502.4(c), or when directed by higher
military authority or by direction of OEP under Pub. L. 875.
(b) Use of military resources and other military participation in
disaster relief will be on a minimum essential basis and terminated at
the earliest practicable time. Military assistance in rehabilitation
following a disaster is not authorized, except as directed by the OEP,
or in support of emergency operations conducted by the Corps of
Engineers as authorized by law.
(c) Federal troops used in disaster relief activities will be under
command of, and directly responsible to, their military superiors.
(d) National Guard forces, if not in active Federal service, will
remain under control of the State governor and will be considered part
of the local resources available to civil authorities. Federally owned
National Guard equipment may accompany a unit when ordered into disaster
relief operations by a governor.
(e) The Commanding General, U.S. Continental Army Command (CG
USCONARC) is delegated responsibility for the conduct of Army support
activities. Specifically he--
(1) Is, under the provisions of Secs. 502.1 through 502.5, assigned
responsibility for the conduct of military disaster relief in the 48
contiguous States and the District of Columbia.
(2) Will be prepared to conduct disaster relief operations as
appropriate in Mexico or Canada upon direction of the Department of the
Army.
(3) Will coordinate and insure establishment of joint control of the
disaster relief efforts of all DOD components. In local disasters not
warranting a declaration of a major disaster, local civil authorities
can be expected to make appeals for assistance direct to installations
or activities other than those operated by the Department of the Army.
(4) Will report to the Deputy Chief of Staff for Military Operations
by the fastest electrical means when resources of DOD components are
committed to disaster relief or when disaster conditions prevail that
make commitment of DOD resources imminent.
(5) Will, as appropriate, furnish available personnel and resources
to District and Division Engineers of the Corps of Engineers prosecuting
a flood fight under provisions of Pub. L. 99, or acting in response to a
disaster relief directive from OEP under provisions of Pub. L. 875.
(6) Will establish and maintain liaison with the Directors of OEP
and OCD, the American National Red Cross, and such other Federal, State,
and local governmental agencies as are necessary to discharge
responsibilities under Secs. 502.1 through 502.5.
[[Page 13]]
(7) Has full authority to approve or disapprove personal requests
for military assistance made by a State governor or a member of
Congress. This authority will not be delegated lower than ZI army
commanders. Information on such requests and action taken will be
furnished to Deputy Chief of Staff for Military Operations, Department
of the Army, Washington, DC, 20310.
(8) Will insure that ZI army commanders have an effective natural
disaster information plan for use in the event of military operations.
The plan should provide for early dispatch of information personnel to
the scene.
(f) ZI army commanders are specifically charged, under the overall
direction of CG USCONARC, with supporting disaster relief operations,
and they--
(1) Will establish and maintain, as appropriate, liaison with
Regional Directors, OEP and OCD, area offices of the American National
Red Cross and other Federal, State, and local governmental agencies.
(2) Will establish and maintain, as necessary, working relationships
with appropriate DOD component headquarters, class II installations and
Division/District Engineers to insure coordination of the overall
military disaster relief effort within the Army area and will secure
necessary information from such installations as required for reports.
(3) Will assume control of resources made available by class II
installations and activities for disaster assistance. If class II
installation or activity resources are required but have not been made
available by the activity commander, the ZI army commander will forward
a request with justification through command channels to the Deputy
Chief of Staff for Military Operations, Department of the Army. In those
cases where commanders are unable to communicate with Headquarters,
Department of the Army, and where in the opinion of the ZI army
commander concerned, the extreme emergency warrants the temporary use of
such resources, he will direct their use and report this action through
command channels to the Deputy Chief of Staff for Military Operations.
(4) Will, upon request, make resources available to District and
Division Engineers performing a flood fight under provisions of Pub. L.
99 and/or support the Corps of Engineers response to directive from OEP
under provisions of Pub. L. 875.
(5) Will coordinate the military relief effort with assistance
provided by the Corps of Engineers under statutory authorities of the
Chief of Engineers or as directed by the OEP under Pub. L. 875.
(g) Class II installation and activity commanders are responsible
for supporting disaster relief efforts under the provisions of
Secs. 502.1 through 502.5, and they--
(1) Will take action in local disasters of imminent seriousness as
appropriate. Such action will be reported concurrently to his
headquarters and to the respective ZI army commander.
(2) Will, upon the request of the ZI army commander, designate those
resources under their control which can be made immediately available
for disaster relief operations. Only such resources will be placed under
the operational control of the ZI army commander or Division/District
Engineer conducting relief operations.
(h) The Chief of Engineers is responsible for the provision of
disaster assistance by applicable Division and District Engineers when
required by disaster of imminent seriousness and as authorized by
statutory authorities or as directed by the OEP under Pub. L. 875. He
will--
(1) Insure that Division and District Engineers establish and
maintain appropriate liaison with ZI army commanders, regional Directors
of OCD and OEP, the American National Red Cross, and other Federal,
State and local governmental agencies as necessary to discharge assigned
responsibilities.
(2) Furnish the ZI army commanders concerned all pertinent
information on floods or other natural disas- ters including activities
undertaken by the Corps of Engineers. Information furnished will be by
the fastest electrical means and consistent with reporting requirements
placed on ZI army commanders.
(3) Insure that Engineers preplanned procedures for disaster
operations are
[[Page 14]]
coordinated among Division/District Engineers and the ZI army
commanders, and include provisions covering flood emergencies.
Relief Shipments
Sec. 502.11 Commercial freight shipments of supplies by voluntary non-profit relief agencies.
(a) Scope of section. Provided in this section are the rules under
which the Department of the Army, in order to further the efficient use
of United States voluntary contributions for relief in the foreign
country hereinafter named, will pay ocean freight charges from United
States ports to designated foreign ports of entry on supplies donated to
or purchased by United States voluntary nonprofit relief agencies
registered with and recommended by the Advisory Committee on Voluntary
Foreign Aid (called ``the Committee'' in this section), for distribution
in the Ryukyu Islands.
(b) Agencies within scope of this section. Any United States
voluntary nonprofit relief agency may make application to the Chief of
Civil Affairs, Department of the Army, Washington, DC 20310, for
reimbursement of ocean freight charges on shipments of supplies donated
to or purchased by it for distribution within the foreign country listed
in paragraph (a) of this section, Provided:
(1) The agency is registered with and recommended by the Committee
to the Department of the Army;
(2) The supplies are within the general program and projects of the
agency as previously submitted to and approved by the Committee, and are
essential in support of such programs and projects;
(3) The agency's representatives to whom the supplies are consigned
for distribution abroad are acceptable to the Committee;
(4) The Committee has notified the Department of the Army that:
(i) The agency is not engaged in commercial or political activities;
(ii) Contributions to the agency are eligible for tax exemption
under income tax laws;
(iii) The agency is directed by an active and responsible board of
American citizens who serve without compensation;
(iv) The accounts of the agency are regularly audited by a certified
public accountant;
(v) The agency currently reports its activities and operations to
the Committee including its budget and reports of income and
expenditures, its transfer of funds, and its exports of commodities and
such other information as the Committee may deem necessary, and such
reports are open for public inspection;
(vi) The general program and projects by countries of operation of
the agency have been approved by the Committee to permit the
coordination of private agency programs with each other and with the
programs of the Department of the Army in the Ryukyu Islands;
(vii) The Government of the country in which the supplies are
distributed affords appropriate facilities for the necessary and
economic operation of the agency's general program and projects;
(viii) The supplies are free of customs duties, other duties, tolls,
and taxes;
(ix) The agency has assumed responsibility for noncommercial
distribution of the supplies free of cost to the person or persons
ultimately receiving them and distribution of the supplies is supervised
by United States citizens, and such operations are appropriately
identified as to their American character.
(c) Manner of payment of ocean freight charges. (1) The Department
of the Army will reimburse agencies qualified under this section, to the
extent of ocean freight charges paid by them for shipments made in
conformity with this section: Provided, That application for such
reimbursement on shipments must be submitted to the Department within
thirty days of date of shipment, together with receipted invoices for
such charges, supported by ocean bills of lading, showing that such
charges are limited to the actual cost of transportation of the supplies
from end of ship's tackle at the United States port of loading to end of
ship's tackle at port of discharge, correctly assessed at the time of
loading by the carrier for freight on a weight, measurement or
[[Page 15]]
unit basis, and free of any other charges.
(2) The voluntary non-profit relief agencies which qualify under
this section may apply to the Office of the Chief of Civil Affairs,
Department of the Army, Washington, DC 20310, for authorization to make
shipments via Military Sea Transportation Service vessels, in conformity
with this section. Upon approval of the request, the Chief of Civil
Affairs will issue a Department of Army Approved Part Program
authorizing shipment from a designated Port of Embarkation to end of
ship's tackle at port of discharge, and including fund citation for
reimbursement of Chief of Transportation. All costs of inland
transportation are to be borne by the voluntary agencies.
(d) Refund by agencies. Any agency reimbursed under this section
will refund promptly to the Department of the Army upon demand the
entire amount reimbursed (or such lessor amount as the Department may
demand) whenever it is determined that the reimbursement was improper as
being in violation of any of the provisions of the Foreign Assistance
Act of 1948, any acts amendatory thereof or supplemental thereto, any
relevant appropriation acts, or any rules, regulations or procedures of
the Department of the Army.
(e) Saving clause. The Secretary of the Army may waive, withdraw, or
amend at any time or from time to time any or all of the provisions of
this section.
(Interpret or apply Title II, sec. 112, 75 Stat. 719, 22 U.S.C. 2366
note)
[27 FR 177, Jan 6, 1962]
PART 503--APPREHENSION AND RESTRAINT--Table of Contents
Sec.
503.1 Persons not subject to military law.
503.2 Delivery to civil authorities.
Sec. 503.1 Persons not subject to military law.
Persons not subject to military law may be apprehended or restrained
by members of the Department of the Army, other than in foreign
countries, as follows:
(a) General. All members of the Department of the Army having the
ordinary right and duty of citizens to assist in the maintenance of the
peace. Where, therefore, a felony or a misdemeanor amounting to a breach
of the peace is being committed in his presence, it is the right and
duty of every member of the military service, as of every civilian, to
apprehend the perpetrator.
(b) Restraint. The restraint imposed under the provisions of
paragraph (a) of this section will not exceed that reasonably necessary,
nor extend beyond such time as may be required to dispose of the case by
orderly transfer of custody to civil authority or otherwise, under the
law.
(c) Ejection. Persons not subject to military law who are found
within the limits of military reservations in the act of committing a
breach of regulations, not amounting to a felony or a breach of the
peace, may be removed therefrom upon orders from the commanding officer
and ordered by him not to reenter. For penalty imposed upon reentrance
after ejection, see title 18, United States Code, section 1382.
(Sec. 3012, 70A Stat. 157; 10 U.S.C. 3012)
[28 FR 2732, Mar. 20, 1963]
Sec. 503.2 Delivery to civil authorities.
(a) Authority. Any commanding officer exercising general court-
martial jurisdiction or commanding officer designated by him may, in
accordance with the Uniform Code of Military Justice, Article 14 (10
U.S.C. 814), authorize the delivery of a member of the Armed Forces
under his command, when such member is accused of a crime or offense
made punishable by the laws of the jurisdiction making the request, to
the civil authorities of the United States, a State of the United
States, or a political subdivision thereof under the conditions
prescribed in this section.
(b) Policy. The policy of the Department of the Army is that
commanding officers will cooperate with civil authorities and, unless
the best interests of the service will be prejudiced thereby, will
deliver a member of the Armed Forces to such authorities upon
presentation of a proper request accompanied
[[Page 16]]
by reliable information showing that there is reasonable cause to
believe that the person requested has committed a crime or offense made
punishable by the laws of the jurisdiction making the request. A person
will not be shielded from a just prosecution by the civil authorities
solely because of his status as a member of the Armed Forces. In
determining whether a member of the Armed Forces should be delivered to
the civil authorities, the commanding officer will exercise his sound
discretion in the light of the facts and circumstances of each
particular case. Among other pertinent matters, he should consider the
seriousness of the offense charged, whether court-martial charges are
pending against the alleged offender, whether he is serving a sentence
imposed by court-martial, and whether, under the existing military
situation, the best interest of the service warrant his retention in the
Armed Forces. With respect to extradition process, military personnel
may be considered to be in the same status as persons not members of the
Armed Forces. It is contrary to the general policy of the Department of
the Army to transfer military personnel from a station within one State
to a station within another State for the purpose of making such
individuals amenable to civilian legal proceedings. Accordingly, if the
delivery of a member of the Army is requested by a State other than the
State in which he is located, the authorities of the requesting State
will be required to complete extradition process according to the
prescribed procedures to obtain custody of an individual from the State
in which he is located and to make arrangements to take him into custody
there.
(c) Requirements for delivery. There ordinarily will be required
with each application by the civil authorities for the surrender of a
member of the Armed Forces a copy of an indictment, presentment,
information, or warrant, together with sufficient information to
identify the person sought as the person who allegedly committed the
offense charged and a statement of the maximum sentence which may be
imposed upon conviction. If the request for delivery is based upon an
indictment, presentment, or information, it will be assumed that there
is reasonable cause to believe that the offense charged was committed by
the person named therein. If the request for delivery is based upon a
warrant, the commanding officer may cause an inquiry to be made to
satisfy himself that reasonable cause exists for the issuance of the
warrant; however, if a warrant is accompanied by the statement of a
United States attorney or the prosecuting officer of a State of the
United States or political subdivision thereof that a preliminary
official investigation of the offense charged shows that there is
reasonable cause to believe that the offense charged was committed by
the person named therein, no further inquiry need be made.
(d) Retaining custody pending request for delivery. If the
commanding officer specified in paragraph (a) of this section is in
receipt of a statement of a United States attorney or the prosecuting
officer of a State of the United States or a political subdivision
thereof that there is reasonable cause to believe that a member of the
Armed Forces under his command has committed an offense punishable by
the laws of the pertinent jurisdiction, the commanding officer may, upon
the request of such civil official, agree to retain the alleged offender
in his command for a reasonable period of time, not extending beyond the
termination of his current enlistment or period of service, pending
presentation of a request for delivery accompanied by the evidence
indicated in paragraph (c) of this section.
(e) Action by commanding officers. Commanding officers, other than
those specified in paragraph (a) of this section, will refer such
requests with their recommendation for disposition to the appropriate
commanding officer, who, after determining the propriety of the request,
will take the action indicated in this paragraph. If the commanding
officer having authority to deliver denies a request for delivery of an
offender to the civil authorities, he will immediately forward the
request direct to The Judge Advocate General, together with his reasons
for denying the request. In cases involving special circumstances, the
commanding officer
[[Page 17]]
having authority to deliver may forward the request with his
recommendation for disposition direct to The Judge Advocate General for
advice before taking his action.
(f) Procedure for executing delivery. When the commanding officer
specified in paragraph (a) of this section authorizes the delivery of a
person to the civil authorities, he will inform the appropriate
requesting agency or official of the time and place of delivery. In
addition, he will advise the requesting agency or official that delivery
of the person will be made at no expense to the Department of the Army
and with the understanding that the civil agency or official will advise
the delivering commander of the outcome of the trial and, if the Army
authorities desire to return the person, will deliver him to the place
of original delivery or to an Army installation nearer the place of
civil detention, as may be designated by the Army authorities, at no
expense to the Department of the Army. A written receipt, in
substantially the following form, should be executed by the official who
takes delivery of the accused:
In consideration of the delivery of ------------ (Grade and name) ------
------, (Service number) ------------, United States Army, to the civil
authorities of the: ------------, (United States) ------------, (State
of) ------------, at ------------, (Place of delivery) for trial upon
the charge of ------------, hereby agree, pursuant to the authority
vested in me as ------------ (Official designation) that the commanding
officer of ------------ (General court-martial jurisdiction) will be
informed of the outcome of the trial and that ------------ will be
returned to the Army authorities at the aforesaid place of delivery or
to an Army installation nearer the place of civil detention, as may be
designated by the authorities of the Department of the Army, without
expense to such Department or to the person delivered, immediately upon
dismissal of the charges or completion of the trial in the event he is
acquitted, or immediately upon satisfying the sentence of the court in
the event he is convicted and a sentence imposed, or upon other
disposition of the case, unless the Army authorities shall have
indicated that return is not desired..
The above agreement is substantially complied with when the civil agency
or official advises the delivering commander of the outcome of the trial
of the alleged offender and of his prospective release to the Army
authorities, and the individual is furnished transportation and
necessary cash to cover his incidental expenses en route to an
installation designated by Army authorities
(g) Return to Army control. Upon being advised of the outcome of the
trial or other disposition of the charges against the alleged offender,
the commanding officer specified in paragraph (a) of this section will,
if return is desired, inform the appropriate civil agency or official of
the name and location of the Army installation to which such person is
to be delivered. Either the place of original delivery or an
installation nearer the place of civil detention of the offender may be
designated in accordance with existing policies governing assignments
and transfers of personnel.
(Sec. 3012, 70A Stat. 157; 10 U.S.C. 3012)
[28 FR 2732, Mar. 20, 1963]
PART 504--OBTAINING INFORMATION FROM FINANCIAL INSTITUTIONS--Table of Contents
Sec.
504.1 General.
504.2 Procedures.
Appendix A to Part 504--Request for Basic Identifying Account Data--
Sample Format
Appendix B to Part 504--Customer Consent and Authorization for Access--
Sample Format
Appendix C to Part 504--Certificate of Compliance With the Right to
Financial Privacy Act of 1978--Sample Format
Appendix D to Part 504--Formal Written Request for Access--Sample Format
Appendix E to Part 504--Customer Notice of Formal Written Request--
Sample Format
Authority: 12 U.S.C. 3401 et seq., Pub. L. 95-630, unless otherwise
noted.
Source: 46 FR 60195, Dec. 9, 1981, unless otherwise noted.
Sec. 504.1 General.
(a) Purpose. This regulation provides DA policies, procedures, and
restrictions governing access to and disclosure of financial records
maintained by
[[Page 18]]
financial institutions during the conduct of Army investigations or
inquiries.
(b) Applicability and scope. (1) This regulation applies to all DA
investigative activities conducted by the Active Army, the Army National
Guard, and the US Army Reserve.
(2) The provisions of 12 U.S.C. 3401 et seq. do not govern obtaining
access to financial records maintained by financial institutions located
outside of the states or territories of the United States, Puerto Rico,
the District of Columbia, Guam, American Samoa, or the Virgin Islands.
The procedures outlined in Sec. 504.2(d)(4) will be followed in seeking
access to financial information from these facilities.
(3) This regulation applies only to financial records maintained by
financial institutions as defined in Sec. 504.1(c)(1).
(c) Explanation of terms. For purposes of this regulation, the
following terms apply:
(1) Financial institution. Any office of a--
(i) Bank.
(ii) Savings bank.
(iii) Credit card issuer as defined in section 103 of the Consumers
Credit Protection Act (15 U.S.C. 1602(n)).
(iv) Industrial loan company.
(v) Trust company.
(vi) Savings and loan association.
(vii) Building and loan association.
(viii) Homestead association (including cooperative banks).
(ix) Credit union.
(x) Consumer finance institution.
This includes only those offices located in any State or territory of
the United States, or in the District of Columbia, Puerto Rico, Guam,
American Samoa, or the Virgin Islands.
(xi) Military banking contractors located outside the States or
territories of the United States or the District of Columbia, Puerto
Rico, Guam, American Samoa, or the Virgin Islands.
(2) Financial record. An original record, its copy, or information
known to have been derived from the original record held by a financial
institution, pertaining to a customer's relationship with the financial
institution.
(3) Person. An individual or partnership of five or fewer
individuals. (Per DODD 5400.12.)
(4) Customer. Any person or authorized representative of that
person--
(i) Who used or is using any service of a financial institution.
(ii) For whom a financial institution is acting or has acted as a
fiduciary for an account maintained in the name of that person.
(5) Law enforcement inquiry. A lawful investigation or official
proceeding that inquires into a violation of, or failure to comply with,
a criminal or civil statute or any enabling regulation, rule, or order
issued pursuant thereto.
(6) Army law enforcement office. Any army element, agency, or unit
authorized to conduct investigations under the Uniform Code of Military
Justice or Army regulations. This broad definition of, Army law
enforcement office includes military police, criminal investigation,
inspector general, and military intelligence activities conducting
investigations of violations of law or regulation.
(7) Personnel security investigation. An investigation required to
determine a person's eligibility for access to classified information,
assignment or retention in sensitive duties, or other designated duties
requiring such investigation. Personnel security investigation includes
investigations of subversive affiliations, suitability information, or
hostage situations conducted to make personnel security determinations.
It also includes investigations of allegations that--
(i) Arise after adjudicative action, and
(ii) Require resolution to determine a person's current eligibility
for access to classified information or assignment or retention in a
sensitive position. Within DA, personnel security investigations are
conducted by the Defense Investigative Service.
(d) Policy--(1) Customer consent. It is DA policy to seek customer
consent to obtain a customer's financial records from a financial
institution unless doing so would compromise or harmfully delay a
legitimate law enforcement inquiry. If the person declines to consent to
disclosure, the alternative
[[Page 19]]
means of obtaining the records authorized by this regulation will be
used. (See Sec. 504.2 (c) through (g).)
(2) Access requests. Except as provided in paragraph (d)(3) of this
section and Secs. 504.1(f)(1), 504.2(g) and 504.2(j), Army investigative
elements may not have access to or obtain copies of the information in
the financial records of any customer from a financial institution
unless the financial records are reasonably described and the--
(i) Customer has authorized such disclosure (Sec. 504.2(b));
(ii) Financial records are disclosed in response to a search warrant
which meets the requirements of Sec. 504.2(d);
(iii) Financial records are disclosed in response to a judicial
subpoena which meets the requirements of Sec. 504.2(e); or
(iv) Financial records are disclosed in response to a formal written
request which meets the requirements of Sec. 504.2(f).
(3) Voluntary information. Nothing in this regulation will preclude
any financial institution, or any officer, employee, or agent of a
financial institution, from notifying an Army investigative element that
such institution, or officer, employee or agent has information which
may be relevant to a possible violation of any statute or regulation.
(e) Authority. (1) Law enforcement offices are authorized to obtain
records of financial institutions per this regulation, except as
provided in Sec. 504.2(e).
(2) The head of a law enforcement office, of field grade rank or
higher (or an equivalent grade civilian official), is authorized to
initiate requests for such records.
(f) Exceptions and waivers. (1) A law enforcement office may issue a
formal written request for basic identifying account information to a
financial institution as part of a legitimate law enforcement inquiry.
The request may be issued for any or all of the following identifying
data:
(i) Name.
(ii) Address.
(iii) Account number.
(iv) Type of account of any customer or ascertainable group of
customers associated with a financial transaction or class of financial
transactions.
(2) A request for disclosure of the above specified basic
identifying data on a customer's account may be issued without complying
with the customer notice, challenge, or transfer procedures described in
Sec. 504.2. However, if access to the financial records themselves is
required, the procedures in Sec. 504.2 must be followed. (A sample
format for requesting basic identifying account data is in app. A.)
(3) No exceptions or waivers will be granted for those portions of
this regulation required by law. Submit requests for exceptions or
waivers of other aspects of this regulation to HQDA(DAPE-HRE), WASH, DC
20310.
Sec. 504.2 Procedures.
(a) General. A law enforcement official seeking access to a person's
financial records will, when feasible, obtain the customer's consent.
This chapter also sets forth other authorized procedures for obtaining
financial records if it is not feasible to obtain the customer's
consent. Authorized procedures for obtaining financial records follow.
All communications with a US Attorney or a US District Court, as
required by this regulation, will be coordinated with the supporting
staff judge advocate before dispatch.
(b) Customer consent. (1) A law enforcement office or personnel
security element may gain access to or a copy of a customer's financial
records by obtaining the customer's consent and authorization in
writing. (See app. B for a sample format.) Any consent obtained under
the provisions of this paragraph must--
(i) Be in writing, signed, and dated.
(ii) Identify the particular financial records being disclosed.
(iii) State that the customer may revoke the consent at any time
before disclosure.
(iv) Specify the purpose of disclosure and to which agency the
records may be disclosed.
(v) Authorize the disclosure for a period not over 3 months.
(vi) Contain a ``Statement of Customer Rights Under the Right to
Financial Privacy Act of 1978'' (app. B).
(2) Any customer's consent not containing all of the elements listed
in
[[Page 20]]
paragraph a of this section will not be valid.
(3) A copy of the customer's consent will be made a part of the law
enforcement inquiry file.
(4) A certification of compliance with 12 U.S.C. 3401 et seq. (app.
C), along with the customer's consent, will be provided to the financial
institution as a prerequisite to obtaining access to the financial
records.
(5) The annual reporting requirements of Sec. 504.2(m) apply to
requests made to a financial institution even with the customer's
consent.
(c) Administrative summons or subpoena. The Army has no authority to
issue an administrative summons or subpoena for access to financial
records.
(d) Search warrant. (1) A law enforcement office may obtain
financial records by using a search warrant obtained under Rule 41 of
the Federal Rules of Criminal Procedure in appropriate cases.
(2) No later than 90 days after the search warrant is served, unless
a delay of notice is obtained under Sec. 504.2(i), a copy of the search
warrant and the following notice must be mailed to the customer's last
known address:
Records or information concerning your transactions held by the
financial institution named in the attached search warrant were obtained
by this (office/agency/unit) on (date) for the following purpose: (state
purpose). You may have rights under the Right to Financial Privacy Act
of 1978.
(3) Search authorization signed by installation commanders or
military judges will not be used to gain access to financial records
from financial institutions in any State or territory of the United
States.
(4) Access to financial records maintained by military banking
contractors in oversea areas or by other financial institutions located
on DOD installations outside the United States, Puerto Rico, the
District of Columbia, Guam, American Samoa, or the Virgin Islands is
preferably obtained by customer consent.
(i) In cases where it would not be appropriate to obtain this
consent or such consent is refused and the financial institution is not
otherwise willing to provide access to its records, the law enforcement
activity may seek access by use of a search authorization. This
authorization must be prepared and issued per AR 27-10, Legal Services.
(ii) Information obtained under this paragraph should be properly
identified as financial information. It should be transferred only where
an official need-to-know exists. Failure to do so, however, does not
render the information inadmissable in courts-martial or other
proceedings.
(iii) Law enforcement activities seeking access to financial records
maintained by all other financial institutions overseas will comply with
local foreign statutes or procedures governing such access.
(e) Judicial subpoena. Judicial subpoenas--
(1) Are those subpoenas issued in connection with a pending judicial
proceeding.
(2) Include subpoenas issued under paragraph 115 of the Manual for
Courts-Martial and Article 46 of the Uniform Code of Military Justice.
The servicing staff judge advocate will be consulted on the availability
and use of judicial subpoenas. The notice and challenge provisions of 12
U.S.C. 3407 and 3410 will be followed.
(f) Formal written request. (1) A law enforcement office may
formally request financial records when the records are relevant to a
legitimate law enforcement inquiry. This request may be issued only if--
(i) The customer has declined to consent to the disclosure of his or
her records, or
(ii) Seeking consent from the customer would compromise or harmfully
delay a legitimate law enforcement inquiry.
(2) A formal written request will be in a format set forth in
appendix D and will--
(i) State that the request is issued under the Right to Financial
Privacy Act of 1978 and this regulation.
(ii) Described the specific records to be examined.
(iii) State that access is sought in connection with a legitimate
law enforcement inquiry.
(iv) Describe the nature of the inquiry.
[[Page 21]]
(v) Be signed by the head of the law enforcement office or a
designee (persons specified in Sec. 504.1(e)(2)).
(3) At the same time or before a formal written request is issued to
a financial institution, a copy of the request will be personally served
upon or mailed to the customer's last known address unless a delay of
customer notice has been obtained under Sec. 504.2(i). The notice to the
customer will be--
(i) In a format similar to appendix E.
(ii) Personally served at least 14 days or mailed at least 18 days
before the date on which access is sought.
(4) The official who signs the customer notice is designated to
receive any challenge from the customer.
(5) The customer will have 14 days to challenge a notice request
when personal service is made, and 18 days when service is by mail.
(6) The head of the law enforcement office initiating the formal
written request will set up procedures to insure that no access to
financial records is attempted before expiration of the above time
periods--
(i) While awaiting receipt of a potential customer challenge, or
(ii) While awaiting the filing of an application for an injunction
by the customer.
(7) Proper preparation of the formal written request and notice to
the customer requires preparation of motion papers and a statement
suitable for court filing by the customer. Accordingly, the law
enforcement office intending to initiate a formal written request will
coordinate preparation of the request, the notice, motion papers, and
sworn statement with the supporting staff judge advocate. These
documents are required by statute; their preparation cannot be waived.
(8) The supporting staff judge advocate is responsible for liaison
with the proper United States Attorney and United States District Court.
The requesting official will coordinate with the supporting staff judge
advocate to determine whether the customer has filed a motion to prevent
disclosure of the financial records within the prescribed time limits.
(9) The head of the law enforcement office (Sec. 504.2(f)(2)) will
certify in writing (see app. C) to the financial institution that such
office has complied with the requirements of 12 U.S.C. 3401 et seq.--
(i) When a customer fails to file a challenge to access to financial
records within the above time periods, or
(ii) When a challenge is adjudicated in favor of the law enforcement
office.
No access to any financial records will be made before such
certification is given.
(g) Emergency access. (1) In some cases, the requesting law
enforcement office may determine that a delay in obtaining access would
create an imminent danger of--
(i) Physical injury to a person,
(ii) Serious property damage, or
(iii) Flight to avoid prosecution.
Section 504.2(g)(2)(3) provides for emergency access in such cases of
imminent danger. (No other procedures in this regulation apply to such
emergency access.)
(2) When emergency access is made to financial records, the
requesting official (Sec. 504.1(e)(2)) will--
(i) Certify in writing (in a format similar to that in app. C) to
the financial institution that the provisions of 12 U.S.C. 3401 et seq.
have been complied with as a prerequisite to obtaining access.
(ii) File with the proper court a signed, sworn statement setting
forth the grounds for the emergency access within 5 days of obtaining
access to financial records.
(3) After filing of the signed, sworn statement, the official who
has obtained access to financial records under this paragraph will--
(i) Personally serve or mail to the customer a copy of the request
to the financial institution and the following notice, unless a delay of
notice has been obtained under Sec. 504.2(i):
Records concerning your transactions held by the financial
institution named in the attached request were obtained by (office/
agency/unit) under the Right to Financial Privacy Act of 1978 on (date)
for the following purpose: (state with reasonable detail the nature of
the law enforcement inquiry). Emergency access to such records was
obtained on the grounds that (state grounds).
[[Page 22]]
(ii) Insure that mailings under this section will be by certified or
registered mail to the last known address of the customer.
(4) The annual reporting requirements of Sec. 504.2(m) apply to any
request for access under this section.
(h) Release of information obtained from financial institutions--(1)
Records notice. Financial records, to include derived information,
obtained under 12 U.S.C. 3401 et seq. will be marked as follows:
This record was obtained pursuant to the Right to Financial Privacy
Act of 1978, 12 U.S.C. 3401 et seq., and may not be transferred to
another Federal agency or department outside DOD without prior
compliance with the transferring requirements of 12 U.S.C. 3412.
(2) Records transfer. (i) Financial records originally obtained
under this regulation will not be transferred to another agency or
department outside the DOD unless the transferring law enforcement
office certifies their relevance in writing. Certification will state
that there is reason to believe that the records are relevant to a
legitimate law enforcement inquiry within the jurisdiction of the
receiving agency or department. To support this certification, the
transferring office may require that the requesting agency submit
adequate justification for its request. File a copy of this
certification with a copy of the released records.
(ii) Unless a delay of customer notice has been obtained
(Sec. 504.2(i)), the transferring law enforcement office will, within 14
days, personally serve or mail the following to the customer at his or
her last known address--
(A) A copy of the certification made according to
Sec. 504.2(h)(2)(i) and
(B) The following notice, which will state the nature of the law
enforcement inquiry with reasonable detail:
Copies of, or information contained in, your financial records
lawfully in possession of the Department of the Army have been furnished
to (state the receiving agency or department) pursuant to the Right to
Financial Privacy Act of 1978 for (state the purpose). If you believe
that this transfer has not been made to further a legitimate law
enforcement inquiry, you may have legal rights under the Financial
Privacy Act of 1978 or the Privacy Act of 1974.
(iii) If a request for release of information is from a Federal
agency authorized to conduct foreign intelligence or foreign
counterintelligence activities (Executive Order 12036) and is for
puposes of conducting such activities by these agencies, the information
will be released without notifying the customer, unless permission to
provide notification is given in writing by the requesting agency.
(iv) Financial information obtained before the effective date of the
Financial Privacy Act of 1978 (10 March 1978) may continue to be
provided to other agencies according to existing procedures, to include
applicable Privacy Act System Notices published in AR 340-21 series.
(3) Precautionary measures. Whenever financial data obtained under
this regulation is incorporated into a report of investigation or other
correspondence, precautions must be taken to insure that--
(i) The report or correspondence is not is not distributed outside
of DOD except in compliance with paragraph (h)(2)(ii)(B) of this
section.
(ii) The report or other correspondence contains the following
warning restriction on the first page or cover:
Some of the information contained herein (cite specific paragraphs)
is financial record information which was obtained pursuant to the Right
to Financial Privacy Act of 1978, 12 U.S.C. 3401 et seq. This
information may not be released to another Federal agency or department
outside the DOD without compliance with the specific requirements of 12
U.S.C. 3412 and AR 190-6.
(i) Delay of customer notice procedures--(1) Length of delay. The
customer notice required by formal written request (Sec. 504.2(f)(3)),
emergency access (Sec. 504.2(g)(3)), and release of information
(Sec. 504.2(h)(2)(iii)) may be delayed for successive periods of 90
days. The notice required for search warrant (Sec. 504.2(d)(2)) may be
delayed for one period of 180 days and successive periods of 90 days.
(2) Conditions for delay. A delay of notice may be granted only by a
court of competent jurisdiction. This will be done only when not
granting a delay in serving the notice would result in--
(i) Endangering the life or physical safety of any person.
[[Page 23]]
(ii) Flight from prosecution.
(iii) Destruction of or tampering with evidence.
(iv) Intimidation of potential witnesses.
(v) Otherwise seriously jeopardizing an investigation or official
proceeding or unduly delaying a trial or ongoing official proceeding to
the same degree as the circumstances in Sec. 504.2(i)(2)(ii) through
(iv).
(3) Coordination. When a delay of notice is appropriate, the law
enforcement office involved will consult with the supporting staff judge
advocate to obtain such a delay. Applications for delays of notice
should contain reasonable detail.
(4) After delay expiration. Upon the expiration of a delay of notice
under above and required by--
(i) Section 504.2(d)(1), the law enforcement office obtaining
financial records will mail to the customer a copy of the search warrant
and the following notice.
Records or information concerning your transactions held by the
financial institution named in the attached search warrant were obtained
by this (agency or office) on (date). Notification was delayed beyond
the statutory 90-day delay period pursuant to a determination by the
court that such notice would seriously jeopardize an investigation
concerning (state with reasonable detail). You may have rights under the
Right to Financial Privacy Act of 1978.
(ii) Section 504.2(f)(3), the law enforcement office obtaining
financial records will serve personally or mail to the customer a copy
of the process or request and the following notice:
Records or information concerning your transactions which are held
by the financial institution named in the attached process or request
were supplied to or requested by the government authority named in the
process or request on (date). Notification was withheld pursuant to a
determination by the (title of the court so ordering) under the Right to
Financial Privacy Act of 1978 that such notice might (state reason). The
purpose of the investigation or official proceeding was (state purpose
with reasonable detail).
(iii) Section 504.2(g)(3), the law enforcement office obtaining
financial records will serve personally or mail to the customer a copy
of the request and the notice required by Sec. 504.2(g)(3).
(iv) Section 504.2(h)(2), the law enforcement office transferring
financial records will serve personally or mail to the customer the
notice required by Sec. 504.2(f)(3). If the law enforcement office was
responsible for obtaining the court order authoriziang the delay, such
office shall also serve personally or by mail to the customer the notice
required in Sec. 504.2(f)(3).
(5) Annual reports. The annual reporting requirements of
Sec. 504.2(m) apply to delays of notice sought or granted under this
paragraph.
(j) Foreign intelligence and foreign counterintelligence activities.
(1) Except as indicated below, nothing in this regulation applies to
requests for financial information in connection with authorized foreign
intelligence and foreign counterintelligence activities as defined in
Executive Order 12036. Appropriate foreign intelligence and
counterintelligence directives should be consulted in these instances.
(2) However, to comply with the Financial Privacy Act of 1978, the
following guidance will be followed for such requests. When a request
for financial records is made--
(i) A military intelligence group commander, the chief of an
investigative control office, or the Commanding General (or Deputy CG),
US Army Intelligence and Security Command, will certify to the financial
institution that the requesting activity has complied with the
provisions of 12 U.S.C. 3403(b).
(ii) The requesting official will notify the financial institution
from which records are sought that 12 U.S.C. 3414(a)(3) prohibits
disclosure to any person by the institution, its agents, or employees
that financial records have been sought or obtained.
(3) The annual reporting requirements shown in Sec. 504.2(m) apply
to any request for access under this section.
(k) Certification. A certificate of compliance with the Right of
Financial Privacy Act of 1978 (app. C) will be provided to the financial
institution as a prequisite to obtaining access to financial records
under the following access procedures:
(1) Customer consent (Sec. 504.2(b)).
(2) Search warrant (Sec. 504.2(d)).
(3) Judicial subpoena (Sec. 504.2(e)).
(4) Formal written request (Sec. 504.2(f)).
[[Page 24]]
(5) Emergency access (Sec. 504.2(g)).
(6) Foreign intelligence and foreign counterintelligence activities
(Sec. 504.2 (j)).
(l) Penalties. Obtaining or disclosing financial records or
financial information on a customer from a financial institution in
violation of the Act or this regulation may subject the Army to payment
of civil penalties, actual damages, punitive damages as the court may
allow, and cost with reasonable attorney fees. Military and civilian
personnel who willfully or intentionally violate the Act or this
regulation may be subject to disciplinary action.
(m) Right to Financial Privacy Act of 1978 Annual Report (RCS DD-
COMP(A)1538). (1) Major Army commanders will submit this report to
HQDA(DAPE-HRE) concerning requests for financial information from
financial institutions. Reports are to include all queries requested or
information obtained under the provisions of this regulation by
subordinate Army law enforcement offices (as defined in
Sec. 504.1(c)(6)). Negative reports will be submitted.
(2) This report is to arrive at HQDA(DAPE-HRE), WASH, DC 20310, not
later than 1 February following the calendar year reported.
(3) The annual report will contain the number of--
(i) Requests for access to financial institutions, specifying the
types of access and any other information deemed relevant or useful.
(ii) Customer challenges to access and whether they were successful.
(iii) Transfers to agencies outside of the DOD of information
obtained under this regulation.
(iv) Customer challenges to the transfer of information and whether
they were successful.
(v) Applications for delay of notice, the number granted, and the
names of the officials requesting such delays.
(vi) Delay of notice extensions sought and the number granted.
(vii) Refusals by financial institutions to grant access, by
category of authorization, such as customer consent or formal written
request.
(4) A consolidated Army report will be submitted by HQDA(DAPE-HRE)
to the Defense Privacy Board, Office of the Deputy Assistant Secretary
of Defense (Administration), by 15 February each year.
Appendix A to Part 504--Request for Basic Identifying Account Data--
Sample Format
(Official Letterhead)
(Date)__________________________________________________________________
Mr./Mrs. ------------,
Chief Teller (as appropriate), First National Bank, Little Rock, AR
72203.
Dear Mr./Mrs. ------------: In connection with a legitimate law
enforcement inquiry and pursuant to section 3414(g) of the Right to
Financial Privacy Act of 1978, section 3401 et seq., Title 12, United
States Code, you are requested to provide the following account
information: (name, address, account number, and type of account of any
customer or ascertainable group of customers associated with a certain
financial transaction or class of financial transactions as set forth in
Sec. 504.1(f)).
I hereby certify, pursuant to section 3403(b) of the Right to
Financial Privacy Act of 1978, that the provisions of the Act have been
complied with as to this request for account information.
(Official Signature Block)______________________________________________
Under section 3417(c) of the Act, good faith reliance upon this
certification relieves your institution and its employees and agents of
any possible liability to the subject in connection with the disclosure
of the requested financial records.
Appendix B to Part 504--Customer Consent and Authorization for Access--
Sample Format
Pursuant to section 3404(a) of the Right to Financial Privacy Act of
1978, I, (name of customer), having read the explanation of my rights on
the reverse side, hereby authorize the (name and address of financial
institution) to disclose these financial records: (list of particular
financial records) to (Army law enforcement office) for the following
purpose(s): (specify the purpose(s)).
I understand that this authorization may be revoked by me in writing
at any time before my records, as described above, are disclosed, and
that this authorization is valid for no more than 3 months from the date
of my signature.
Date:___________________________________________________________________
Signature:______________________________________________________________
(Typed name)
(Mailing address of customer)
[[Page 25]]
Statement of Customer Rights Under the Right to Financial Privacy Act of
1978
Federal law protects the privacy of your financial records. Before
banks, savings and loan associations, credit unions, credit card
issuers, or other financial institutions may give financial information
about you to a Federal agency, certain procedures must be followed.
Consent to Financial Records
You may be asked to consent to the financial institution making your
financial records available to the Government. You may withhold your
consent, and your consent is not required as a condition of doing
business with any financial institution. If you give your consent, it
can be revoked in writing at any time before your records are disclosed.
Futhermore, any consent you give is effective for only 3 months and your
financial institution must keep a record of the instances in which it
discloses your financial information.
Without Your Consent
Without your consent, a Federal agency that wants to see your
financial records may do so ordinarily only by means of a lawful
subpoena, summons, formal written request, or search warrant for that
purpose. Generally, the Federal agency must give you advance notice of
its request for your records explaining why the information is being
sought and telling you how to object in court. The Federal agency must
also send you copies of court documents to be prepared by you with
instructions for filling them out. While these procedures will be kept
as simple as possible, you may want to consult an attorney before making
a challenge to a Federal agency's request.
Exceptions
In some circumstances, a Federal agency may obtain financial
information about you without advance notice or your consent. In most of
these cases, the Federal agency will be required to go to court for
permission to obtain your records without giving you notice beforehand.
In these instances, the court will make the Government show that its
investigation and request for your records are proper. When the reason
for the delay of notice no longer exists, you will usually be notified
that your records were obtained.
Transfer of Information
Generally, a Federal agency that obtains your financial records is
prohibited from transferring them to another Federal agency unless it
certifies in writing the transfer is proper and sends a notice to you
that your records have been sent to another agency.
Penalties
If the Federal agency or financial institution violates the Right to
Financial Privacy Act, you may sue for damages or seek compliance with
the law. If you win, you may be repaid your attorney's fee and costs.
Additional Information
If you have any questions about your rights under this law, or about
how to consent to release your financial records, please call the
official whose name and telephone number appears below:
________________________________________________________________________
(Last Name, First Name, Middle Initial) Title (Area Code) (Telephone
Number)
________________________________________________________________________
(Component activity, address)
Appendix C to Part 504--Certificate of Compliance With the Right to
Financial Privacy Act of 1978--Sample Format
(Official Letterhead)
Mr./Mrs. ------------,
Manager, Army Federal Credit Union, Fort Ord, CA 93941.
Dear Mr./Mrs. ------------: I certify, pursuant to section 3403(b)
of the Right to Financial Privacy Act of 1978, section 3401 et seq.,
Title 12, United States Code, that the applicable provisions of that
statute have been complied with as to the (customer's consent, search
warrant or judicial subpoena, formal written request, emergency access,
as applicable) presented on (date), for the following financial records
of (customer's name):
________________________________________________________________________
(Describe the specific records)
(Official Signature Block)______________________________________________
Pursuant to section 3417(c) of the Right to Financial Privacy Act of
1978, good faith reliance upon this certificate relieves your
institution and its employees and agents of any possible liability to
the customer in connection with the disclosure of these financial
records.
Appendix D to Part 504--Formal Written Request for Access--Sample Format
(Official Letterhead)
(Date)__________________________________________________________________
Mr./Mrs. ------------,
President (as appropriate), City National Bank and Trust Company,
Altoona, PA 16602.
Dear Mr./Mrs. ------------: In connection with a legitimate law
enforcement inquiry and pursuant to section 3402(5) and section 3408 of
the Right to Financial Privacy Act of 1978, section 3401 et seq., Title
12, United States Code, and Army Regulation 190-6, you
[[Page 26]]
are requested to provide the following account information pertaining to
(identify customer);
________________________________________________________________________
(Describe the specific records to be examined)
The Army has no authority to issue an administrative summons or
subpoena for access to these financial records which are required for
(describe the nature or purpose of the inquiry).
A copy of this request was (personally served upon or mailed to) the
subject on (date) who has (10 or 14) days in which to challenge this
request by filing an application in an appropriate United States
district court if the subject desires to do so.
Upon expiration of the above mentioned time period and in the
absence of any filing or challenge by the subject, you will be furnished
a certification certifying in writing that the applicable provisions of
the Act have been complied with prior to obtaining the requested
records. Upon your receipt of a Certificate of Compliance with the Right
to Financial Privacy Act of 1978, you will be relieved of any possible
liability to the subject in connection with the disclosure of the
requested financial records.
(Official Signature Block)______________________________________________
Appendix E to Part 504--Customer Notice of Formal Written Request--
Sample Format
(Official Letterhead)
(Date)__________________________________________________________________
Mr./Ms. ------------,
1500 N. Main Street, Washington, DC 20314.
Dear Mr./Ms. ------------: Information or records concerning your
transactions held by the financial institution named in the attached
request are being sought by the (agency/department) in accordance with
the Right to Financial Privacy Act of 1978, section 3401 et seq., Title
12, United States Code, and Army Regulation 190-6, for the following
purpose(s):
________________________________________________________________________
(List the purpose(s))
If you desire that such records or information not be made
available, you must do the following:
a. Fill out the accompanying motion paper and sworn statement or
write one of your own--
(1) Stating that you are the customer whose records are being
requested by the Government.
(2) Giving the reasons you believe that the records are not relevant
or any other legal basis for objecting to the release of the records.
b. File the motion and statement by mailing or delivering them to
the clerk of any one of the following United States District Courts:
________________________________________________________________________
(List applicable courts)
c. Mail or deliver a copy of your motion and statement to the
requesting authority: (give title and address).
d. Be prepared to come to court and present your position in further
detail.
You do not need to have a lawyer, although you may wish to employ
one to represent you and protect your rights.
If you do not follow the above procedures, upon the expiration of
(10 days from the date of personal service) (14 days from the date of
mailing) of this notice, the records or information requested therein
may be made available.
These records may be transferred to other Government authorities for
legitimate law enforcement inquiries, in which event you will be
notified after the transfer if such transfer is made.
3 Inclosures (see para------)
(Signature)_____________________________________________________________
PART 505--THE ARMY PRIVACY PROGRAM--Table of Contents
Sec.
505.1 General information.
505.2 Individual rights of access and amendment.
505.3 Disclosure of personal information to other agencies and third
parties.
505.4 Record-keeping requirements under the Privacy Act.
505.5 Exemptions.
Appendix A to Part 505--Example of System of Records Notice
Appendix B to Part 505--Example of Report for New System of Records
Appendix C to Part 505--Provisions of the Privacy Act From Which a
General or Specific Exemption May Be Claimed
Appendix D to Part 505--Glossary of Terms
Authority: Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).
Source: 50 FR 42164, Oct. 18, 1985, unless otherwised noted.
Sec. 505.1 General information.
(a) Purpose. This regulation sets forth policies and procedures that
govern personal information kept by the Department of the Army in
systems of records.
(b) References--(1) Required publications. (i) AR 195-2, Criminal
Investigation Activities. (Cited in Sec. 505.2(j))
[[Page 27]]
(ii) AR 340-17, Release of Information and Records from Army Files.
(Cited in Secs. 505.2(h) and 505.4(d))
(iii) AR 430-21-8, The Army Privacy Program; System Notices and
Exemption Rules for Civilian Personnel Functions. (Cited in
Sec. 505.2(i))
(iv) AR 380-380, Automated System Security. (Cited in Sec. 505.4(d)
and (f))
(2) Related publications. (A related publication is merely a source
of additional information. The user does not have to read it to
understand this regulation.)
(i) DOD Directive 5400.11, DOD Privacy Program.
(ii) DOD Regulation 5400.11-R, DOD Privacy Program.
(iii) Treasury Fiscal Requirements Manual. This publication can be
obtained from The Treasury Department, 15th and Pennsylvania Ave., NW,
Washington, DC 20220
(c) Explanation of abbreviations and terms. Abbreviations and
special terms used in this regulation are explained in the glossary.
(d) Responsibilities. (1) The Director of Information Systems for
Command, Control, Communications, and Computers (DISC4) is responsible
for issuing policy and guidance for the Army Privacy Program in
consultation with the Army General Counsel.
(2) The Commander, U.S. Army Information Systems Command is
responsible for developing policy for and executing the Privacy Act
Program under the policy and guidance of the DISC4.
(3) Heads of Joint Service agencies or commands for which the Army
is the Executive Agent, or otherwise has responsibility for providing
fiscal, logistical, or administrative support, will adhere to the
policies and procedures in this regulation.
(4) Commander, Army and Air Force Exchange Service (AAFES), is
responsible for the supervision and execution of the privacy program
within that command pursuant to this regulation.
(e) Policy. Army Policy concerning the privacy rights of individuals
and the Army's responsibilities for compliance with operational
requirements established by the Privacy Act are as follows:
(1) Protect, as required by the Privacy Act of 1974 (5 U.S.C. 552a),
as amended, the privacy of individuals from unwarranted intrusion.
Individuals covered by this protection are living citizens of the United
States and aliens lawfully admitted for permanent residence.
(2) Collect only the personal information about an individual that
is legally authorized and necessary to support Army operations. Disclose
this information only as authorized by the Privacy Act and this
regulation.
(3) Keep only personal information that is timely, accurate,
complete, and relevant to the purpose for which it was collected.
(4) Safeguard personal information to prevent unauthorized use,
access, disclosure, alteration, or destruction.
(5) Let individuals know what records the Army keeps on them and let
them review or get copies of these records, subject to exemptions
authorized by law and approved by the Secretary of the Army. (See
Sec. 505.5.)
(6) Permit individuals to amend records about themselves contained
in Army systems of records, which they can prove are factually in error,
not up-to-date, not complete, or not relevant.
(7) Allow individuals to ask for an administrative review or
decisions that deny them access to or the right to amend their records.
(8) Maintain only information about an individual that is relevant
and necessary for Army purposes required to be accomplished by statute
or Executive Order.
(9) Act on all requests promptly, accurately, and fairly.
(f) Authority. The Privacy Act of 1974 (5 U.S.C. 552a), as amended,
is the statutory basis for the Army Privacy Program. With in the
Department of Defense, the Act is implemented by DOD Directive 5400.11
and DOD 5400.11-R. The Act Assigns--
(1) Overall Government-wide responsibilities for implementation to
the Office of Management and Budget.
(2) Specific responsibilities to the Office of Personnel Management
and the General Services Administration.
(g) Access and Amendment Refusal Authority (AARA). Each Access and
Amendment Refusal Authority (AARA) is responsible for action on requests
for
[[Page 28]]
access to, or amendment of, records referred to them under this part.
The officials listed below are the only AARA for records in their
authority. Authority may be delegated to an officer or subordinate
commander. All delegations must be in writing. If an AARA's delegate
denies access or amendment, the delegate must clearly state that he or
she is acting on behalf of the AARA and identify the AARA by name and
position in the written response to the requester. Denial of access or
amendment by an AARA's delegate must have appropriate legal review.
Delegations will not be made below the colonel (06) or GS/GM-15 level.
Such delegations must not slow Privacy actions. AARAs will send the
names, offices, telephone numbers of heir delegates to the Director of
Information Systems for Command, Control, Communications and Computers,
Headquarters, Department of the Army, ATTN: SAIS-IDP, Washington, DC
20310-0107; and the Department of the Army Privacy Review Board, Crystal
Square 1, Suite 201, 1725 Jefferson Davis Highway, Arlington, VA 22202.
(1) The Administrative Assistant to the Secretary of the Army (AASA)
for records of the Secretariat and its serviced activities, to include
the personnel records maintained by the General Officer Management
Office, personnel records pertaining to Senior Executive Service
personnel serviced by the Office of the Secretary of the Army (OSA), and
Equal Employment Opportunity (EEO) records from offices serviced by the
OSA. The AASA will also serve as AARA for those records requiring the
personal attention of the Secretary of the Army.
(2) The Inspector General (TIG) for TIG investigative records.
(3) The president or executive secretary of boards, councils, and
similar bodies established by the Department of the Army to consider
personnel matters, including the Army Board of Correction of Military
Appeals, for records under their purview.
(4) The Deputy Chief of Staff for Personnel (DCSPER) for records of
active and former non-appropriated fund employees (except those in the
Army and Air Force Exchange Service), alcohol and drug abuse treatment
records, behavioral science records, recruiting, Armed Services
Vocational Aptitude Battery (ASVAB), equal opportunity, Junior Reserve
Officers' Training Corps (ROTC), Senior ROTC Instructor, military
academy cadet, selection, promotion, and reduction boards; special
review boards; professional staff informational records; and entrance
processing records (when records pertain to those not entering active
duty).
(5) The Deputy Chief of Staff for Operations and Plans (DCSOPS) for
military police records and reports and prisoner confinement and
correctional records.
(6) Chief of Engineers (COE) for records pertaining to civil work
(including litigation), military construction, engineer procurement,
other engineering matters not under the purview of another AARA,
ecology, and contractor qualifications.
(7) The Surgeon General (TSG) for medical records, except properly
part of the Official Personnel Folder (OPM/GOVT-1 system of records).
(8) Chief of Chaplains (CCH) for ecclesiastical records.
(9) The Judge Advocate General (TJAG) for legal records under TJAG
responsibility.
(10) Chief, National Guard Bureau (NGB) for personnel records of the
Army National Guard.
(11) Chief, Army Reserve (CAR) for personnel records of Army
retired, separated and reserve military personnel members.
(12) Commander, United States Army Material Command (USAMC) for
records of Army contractor personnel of the Army Material Command.
(13) Commander, United States Army Criminal Investigation Command
(USACIDC) for criminal investigation reports and military police reports
included therein.
(14) Commander, United States Total Army Personnel Command (PERSCOM)
for personnel and personnel related records of Army members on active
duty and current Federal appropriated fund civilian employees. (Requests
from former civilian employees to amend a record in any OPM system of
records such as the Official Personnel Folder should be sent to the
Office of
[[Page 29]]
Personnel Management, Assistant Director for Workforce Information,
Compliance and Investigations Group, 1900 E Street, NW., Washington, DC
20415-0001.
(15) Commander, U.S. Army Community and Family Support Center
(USACFSC) for records relating to morale, welfare and recreation
activities; community life programs; family action programs, retired
activities, club management, Army emergency relief, consumer protection,
retiree survival benefits, and records dealing with Department of the
Army relationships and social security veteran's affairs, United Service
Organizations, U.S. Soldiers' and Airmen's home and American Red Cross.
(16) Commander, U.S. Army Intelligence and Security Command (INSCOM)
for intelligence, investigative and security records; foreign scientific
and technological information; intelligence training, mapping and
geodesy information; ground surveillance records; intelligence threat
assessments; and missile intelligence data relating to tactical land
warfare systems.
(17) Commander, Army and Air Force Exchange Service (AAFES) for
records pertaining to employees, patrons, and other matters which are
the responsibility of the Exchange Service.
(18) Commander, Military Traffic Management Command (MTMC) for
transportation records.
(19) Director of Army Safety for safety records.
(20) Commander, U.S. Army Information Systems Command (USAISC) for
records which do not fall within the functional area of another AARA.
(h) Department of the Army Privacy Review Board. The Department of
the Army Privacy Review Board acts on behalf of the Secretary of the
Army in deciding appeals from refusal of the appropriate AARAs to amend
records. Board membership is comprised of the AASA, the Commander,
USAISC, Pentagon, and TJAG, or their representatives. The AARA may serve
as a nonvoting member when the Board considers matters in the AARA's
area of functional specialization. The Commander, USAISC, Pentagon,
chairs the Board and provides the recording secretary.
(i) Privacy Official. (1) Heads of Army Staff agencies and
commanders of major Army commands and subordinate commands and
activities will designate a privacy official who will serve as a staff
adviser on privacy matters. This function will not be assigned below
battalion level.
(2) The privacy official will ensure that (i) requests are processed
promptly and responsively, (ii) records subject to the Privacy Act in
his/her command/agency are described properly by a published system
notice, (iii) privacy statements are included on forms and
questionnaires that seek personnel information from an individual, and
(iv) procedures are in place to meet reporting requirements.
[50 FR 42164, Oct. 18, 1985, as amended at 58 FR 51012, Sept. 30, 1993]
Sec. 505.2 Individual rights of access and amendment.
(a) Access under the Privacy Act. Upon a written or oral request, an
individual or his/her designated agent or legal guardian will be granted
access to a record pertaining to that individual, maintained in a system
of records, unless the record is subject to an exemption and the system
manager has invoked the exemption (see Sec. 505.5), or the record is
information compiled in reasonable anticipation of a civil action or
proceeding. The requester does not have to state a reason or otherwise
justify the need to gain access. Nor can an individual be denied access
solely because he/she refused to provide his/her Social Security Number
unless the Social Security Number was required for access by statute or
regulation adopted prior to January 1, 1975. The request should be
submitted to the custodian of the record.
(b) Notifying the individual. The custodian of the record will
acknowledge requests for access within 10 work days of receipt. Records
will be provided within 30 days, excluding Saturdays, Sundays, and legal
public holidays.
(c) Relationship between the Privacy Act and the Freedom of
Information Act. A Privacy Act request for access to records should be
processed also as a Freedom of Information Act request. If
[[Page 30]]
all or any portion of the requested material is to be denied, it must be
considered under the substantive provisions of both the Privacy Act and
the Freedom of Information Act. Any withholding of information must be
justified by asserting a legally applicable exemption in each Act.
(d) Functional requests. If an individual asks for his/her record
and does not cite, or reasonably imply, either the Privacy Act or the
Freedom of Information Act, and another prescribing directive authorizes
release, the records should be released under that directive. Examples
of functional requests are military members asking to see their Military
Personnel Records Jacket, or civilian employees asking to see their
Official Personnel Folder.
(e) Medical records. If it is determined that releasing medical
information to the data subject could have an adverse affect on the
mental or physical health of that individual, the requester should be
asked to name a physician to receive the record. The data subject's
failure to designate a physician is not a denial under the Privacy Act
and cannot be appealed.
(f) Third party information. Third party information pertaining to
the data subject may not be deleted from a record when the data subject
requests access to the record unless there is an established exemption
(see Sec. 505.5(d)). However, personal data such as SSN and home address
of third parties in the data subject's record normally do not pertain to
the data subject and therefore may be withheld. Information about the
relationship between the data subject and the third party would normally
be disclosed as pertaining to the data subject.
(g) Referral of records. Requests for access to Army systems of
records containing records that originated with other DOD Components or
Federal agencies which claimed exemptions for them will be coordinated
with or referred to the originator for release determination. The
requester will be notified of the referral.
(h) Fees. Requesters will be charged only for the reproduction of
requested documents. Normally, there will be no charge for the first
copy of a record provided to the individual whose record it is.
Thereafter, fees will be computed as set forth in AR 340-17.
(i) Denial of access. (1) The only officials authorized to deny a
request from a data subject for records in a system of records
pertaining to that individual are the appropriate Access and Amendment
Refusal Authorities (see Sec. 505.1(f)), or the Secretary of the Army,
acting through the General Counsel. Denial is appropriate only if the
record:
(i) Was compiled in reasonable anticipation of a civil action or
proceeding, or
(ii) Is properly exempted by the Secretary of the Army from the
disclosure provisions of the Privacy Act (see Sec. 505.5), there is a
legitimate governmental purpose for invoking the exemption, and it is
not required to be disclosed under the Freedom of Information Act.
(2) Requests for records recommended to be denied will be forwarded
to the appropriate AARA within 5 work days of receipt, together with the
request, disputed records, and justification for withholding. The
requester will be notified of the referral.
(3) Within the 30 work day period (see Sec. 505.2(b)), the AARA will
give the following information to the requester in writing if the
decision is to deny the request for access:
(i) Official's name, position title, and business address;
(ii) Date of the denial;
(iii) Reasons for the denial, including citation of appropriate
section(s) of the Privacy Act and this regulation;
(iv) The opportunity for further review of the denial by the General
Counsel, Office, Secretary of the Army, The Pentagon, Washington, DC
20310, through the AARA within 60 calendar days. (For denials made by
the Army when the record is maintained in one of OPM's government-wide
systems of records, notices for which are described at appendix B, AR
340-21-8, an individual's request for further review must be addressed
to the Assistant Director for Agency Compliance and Evaluation, Office
of Personnel Management, 1900 E Street NW., Washington, DC 20415-0001.)
(j) Amendment of records. (1) Individuals may request the amendment
of
[[Page 31]]
their records, in writing, when such records are believed to be
inaccurate as a matter of fact rather than judgment, irrelevant,
untimely, or incomplete.
(2) The amendment procedures are not intended to permit challenge to
a record that records an event that actually occurred nor are they
designed to permit collateral attack upon that which has been the
subject of a judicial or quasi-judicial action. Consideration of request
for an amendment would be appropriate if it can be shown that
circumstances leading up to the event that is recorded on the document
were challenged through administrative procedures and found to be
inaccurately described, that the document is not identical to the
individual's copy, or that the document was not constructed in
accordance with the applicable recordkeeping requirements prescribed.
For example, the amendment provisions do not allow an individual to
challenge the merits of an adverse action. However, if the form that
documents the adverse action contains an error on the fact of the record
(e.g., the individual's name is misspelled, an improper date of birth or
SSN was recorded), the amendment procedures may be used to request
correction of the record.
(3) US Army Criminal Investigations Command reports of investigation
(records in system notices AO501.08e Informant Register, AO508.11b
Criminal Information Reports and Cross Index Card Files, and AO508.25a
Index to Criminal Investigative Case Files) have been exempted from the
amendment provisions of the Privacy Act. Requests to amend these reports
will be considered under AR 195-2 by the Commander, US Army Criminal
Investigations Command, action by the Commander, US Army Criminal
Investigation Commander will constitute final action on behalf of the
Secretary of the Army under that regulation.
(4) Records accessioned into the National Archives are exempted from
the Privacy Act provision allowing individuals to request amendment of
records. Most provisions of the Privacy Act apply only to those systems
of records which are under the legal control of the originating agency;
e.g., an agency's current operating files or records stored at a Federal
records center.
(k) Procedures. (1) Requests to amend a record should be addressed
to the custodian or system manager of that record. The request must
reasonably describe the record to be amended and the changes sought
(i.e., deletion, addition, amendment). The burden of proof rests with
the requester; therefore, the alteration of evidence presented to
courts, boards, and other official proceedings is not permitted. (An
individual acting for the requester must supply a written consent signed
by the requester.)
(2) The custodian or system manager will acknowledge the request
within 10 work days and make final response within 30 work days.
(3) The record for which amendment is sought must be reviewed by the
proper system manager or custodian for accuracy, relevance, timeliness,
and completeness so as to assure fairness to the individual in any
determination made about that individual on the basis of that record.
(4) If the amendment is proper, the custodian or system manager will
physically amend the record by adding or deleting information, or
destroying the record or a portion of it, and notify the requester of
such action.
(5) If the amendment is not justified, the request and all relevant
documents, including the reasons for not amending, will be forwarded to
the appropriate AARA within 5 work days and the requester so notified.
(6) The AARA, on the basis of the evidence, either will amend the
record and notify the requester and the custodian of that decision, or
will deny the request and inform the requester:
(i) Of reasons for not amending; and
(ii) Of his/her right to seek further review by the DA Privacy
Review Board (through the AARA).
(7) On receipt of an appeal from a denial to amend, the AARA will
append any additional records or background information that
substantiates the refusal or renders the case complete and, within 5
work days of receipt, forward the appeal to the DA Privacy Review Board.
(8) The DA Privacy Review Board, on behalf of the Secretary of the
Army,
[[Page 32]]
will complete action on a request for further review within 30 work days
of its receipt by the AARA. The General Counsel may authorize an
additional 30 days when unusual circumstances and good cause so warrant.
The Board may seek additional information, including the appellant's
official file, if deemed relevant and necessary to deciding the appeal.
(i) If the Board determines that amendment is justified, it will
amend the record and notify the requester, the AARA, the custodian of
the record, and any prior recipients of the record.
(ii) If the Board denies the request, it will obtain the General
Counsel's concurrence. Response to the appellant will include reasons
for denial and the appellant's right to file a statement of disagreement
with the Board's action and to seek judicial review of the Army's
refusal to amend.
(9) Statements of disagreement will be an integral part of the
record to which it pertains so the fact that the record is disputed is
apparent to anyone who may have access to, use of, or need to disclose
from it. The disclosing authority may include a brief summary of the
Board's reasons for not amending the disputed record. The summary will
be limited to the reasons stated to the individual by the Board.
(l) Privacy case files. Whenever an individual submits a Privacy Act
request, a case file will be established; see system notice
AO240.01DAAG. In no instance will the individual's request and Army
actions thereon be included in the individual's personnel file. The case
file will comprise the request for access/amendment, grants, refusals,
coordination action, and related papers. This file will not be used to
make any determinations about the individuals.
Sec. 505.3 Disclosure of personal information to other agencies and third parties.
(a) Disclosure without consent. The Army is prohibited from
disclosing a record from a system of records without obtaining the prior
written consent of the data subject, except when disclosure is:
(1) To those officers and employees of the Department of Defense who
have a need for the record in the performance of their duties;
(2) Required under the Freedom of Information Act (see Sec. 505.3(c)
for information normally releasable);
(3) Permitted by a routine use that has been published in the
Federal Register;
(4) To the Bureau of the Census for purposes of planning or carrying
out a census or survey or related activity pursuant to title 13 of the
United States Code;
(5) To a recipient who has provided the Army with advance adequate
written assurance that the record will be used solely as a statistical
research or reporting record, and the record is to be transferred in a
form that is not individually identifiable;
(6) To the National Archives of the United States as a record that
has sufficient historical or other value to warrant its continued
preservation by the U.S. Government, or for determination of such value
by the Administrator of the General Services Administration (GSA), or
designee. (Records sent to Federal Records Centers for storage remain
under Army control; these transfers are not disclosures and do not
therefore need an accounting.)
(7) To another agency or to an instrumentality of any governmental
jurisdiction within or under the control of the United States for a
civil or criminal law enforcement activity if the activity is authorized
by law, and if the head of the agency or instrumentality has made a
written request to the Army element which maintains the record. The
request must specify the particular portion desired and the law
enforcement activity for which the record is sought;
(8) To a person pursuant to a showing of compelling circumstances
affecting the health and safety of an individual. Upon such disclosure,
notification will be transmitted to the last known address of such
individual;
(9) To either House of Congress, or to a committee or subcommittee
to the extent that the subject matter falls within the jurisdiction of
the committee or subcommittee;
(10) To the Comptroller General, or any authorized representative in
the
[[Page 33]]
course of the performance of the duties of the General Accounting
Office;
(11) Pursuant to the order signed by a judge of a court of competent
jurisidiction. (Reasonable efforts must be made to notify the individual
if the legal process is a matter of public record); or
(12) To a consumer reporting agency in accordance with section 3(d)
of the Federal Claims Collection Act of 1966 (originally codified at 31
U.S.C. 952(d); recodified at 31 U.S.C. 3711(f), the name, address, SSN,
other information identifying the individual; amount, status, and
history of the claim, and the agency or program under which the case
arose may be disclosed in this instance.
(b) Blanket routine use disclosures. In addition to the routine uses
in each system notice, the following blanket routine uses apply to all
records from systems of records maintained by the Army except those
which state othewise.
(1) Law enforcement. Relevant records maintained to carry out Army
functions may be referred to Federal, State, local, or foreign law
enforcement agencies if the record indicates a violation or potential
violation of law. The agency to which the records are referred must be
the appropriate agency charged with the responsibility of investigating
or prosecuting the violation or charges, with enforcing or implementing
the statute, rule, regulation, or order issued pursuant thereto.
(2) Disclosure when requesting information. A record may be
disclosed to a Federal, State, or local agency maintaining civil,
criminal, or other relevant enforcement information or other pertinent
information, such as current licenses, to obtain information relevant to
an Army decision concerning the hiring or retention of an employee, the
issuance of a security clearance, the letting of a contract, or the
issuance of a license, grant, or other benefit.
(3) Disclosure of requested information. If the information is
relevant and necessary to the requesting agency's decision, a record may
be disclosed to a Federal agency, in response to its request, in
connection with the hiring or retention of an employee, the issuance of
a security clearance, the reporting of an investigation of an employee,
the letting of a contract, or the issuance of a license, grant, or other
benefit by the requesting agency, to the extent that the information is
relevant and necessary to the requesting agency's decision on the
matter.
(4) Congressional inquiries. Disclosure from a system of records
maintained by the Army may be made to a Congressional office from the
record of an individual in response to an inquiry from the Congressional
office made at the request of that individual.
(5) Private relief legislation. Relevant information in all systems
of records of the Department of Defense published on or before August
22, 1975, will be disclosed to the Office of Management and Budget (OMB)
review of private relief legislation as set forth in OMB Circular A-19
at any stage of the legislative coordination and clearance process.
(6) Disclosures required by international agreements. A record may
be disclosed to foreign law enforcement, security, investigatory, or
administrative authorities. These disclosures are in compliance with
requirements imposed by, or to claim rights conferred in, international
agreements and arrangements including those regulating the stationing
and status in foreign countries of DOD military and civilian personnel.
(7) Disclosure to State and local taxing authorities. Any
information normally contained in Internal Revenue Service Form W-2
which is maintained in a record from a system of records of the Army may
be disclosed to State and local taxing authorities with which the
Secretary of the Treasury has entered into agreements under 5 U.S.C.,
sections 5516, 5517, and 5520 only to those State and local taxing
authorities for which an employee or military member is or was subject
to tax regardless of whether tax is or was withheld. This routine use
complies with Treasury Fiscal Requirements Manual, Sec. 5060.
(8) Disclosures to the Office of Personnel Management. A record may
be disclosed to the Office of Personnel Management (OPM) concerning
information on pay and leave, benefits, retirement deduction, and any
other information necessary for the OPM to
[[Page 34]]
carry out its legally authorized government-wide personnel management
functions and studies.
(9) Disclosure to National Archives and Records Administration. A
record may be disclosed to the National Archives and Records
Administration in records management inspections conducted under
authority of title 44 U.S.C., sections 2904 and 2906.
(10) Disclosure to the Department of Justice for Litigation. A
record may be disclosed as a routine use to any component of the
Department of Justice, when--
(i) The agency, or any component there of, or
(ii) Any employee of the agency in his or her official capacity, or
(iii) Any employee of the agency in his or her individual capacity
where the Department of Justice has agreed to represent the employee, or
(iv) The United States, where the agency determines that litigation
is likely to affect the agency or any of its components, is a party to
litigation or has an interest in such litigation, and the use of such
records by the Department of Justice is deemed by the agency to be
relevant and necessary to the litigation, provided, however, that in
each case, the agency determines that disclosure of the records to the
Department of Justice is a use of the information contained in the
records that is compatible with the purpose for which it is collected.
(11) Disclosure for Agency use in Litigation. A record may be
disclosed in a proceeding before a court or adjudicative body before
which the agency is authorized to appear, when--
(i) The agency, or any component there of, or
(ii) Any employee of the agency in his or her official capacity, or
(iii) Any employee of the agency in his or her official capacity
where the Department of Justice has agreed to represent the employee, or
(iv) The United States, where the agency determines that litigation
is likely to affect the agency or any of its components, is a party to
litigation or has an interest in such litigation, and the agency
determines that their use of such records is relevant and necessary to
the litigation, provided; however, that in each case, the agency
determines that disclosure of the records to the court or adjudicative
body is a use of the information contained in the records that is
compatible with the purpose for which it is collected.
(c) Disclosure to third parties. Personal information which may be
disclosed under the Freedom of Information Act:
(1) On military personnel: Name, rank, date of rank, gross salary,
present and past duty assignments, future assignments that are
officially established, office or duty telephone number, source of
commission, promotion sequence number, awards and decorations, military
and civilian educational level, duty status at any given time.
(2) On civilian employees: Name, present and past position titles,
grades, salaries, duty stations that include office or duty telephone
numbers. However, disclosure of this information will not be made where
the information requested is a list of present or past position titles,
grades, salaries, and/or duty stations and, as such, is:
(i) Selected to constitute a clearly unwarranted invasion of
personal privacy. For example, the nature of the request calls for a
response that would reveal more about the employee than the five
enumerated items;
(ii) Would be protected from mandatory disclosure under an exemption
of the Freedom of Information Act.
(iii) In addition to the information in Sec. 505.3(c)(2) above, the
following information may be made available to a prospective employer of
a current or former Army employee: Tenure of employment, civil service
status, length of service in the Army and the Government and, date and
reason for separation shown on the Notification of Personnel Action, SF
50.
(d) Accounting of disclosure. (1) An accounting of disclosure is
required whenever a record from an Army system of records is disclosed
to someone other than the data subject, except when that record:
(i) Is disclosed to officials within the Department of Defense who
have a need for it in the performance of official business;
(ii) Is required to be disclosed under the Freedom of Information
Act.
[[Page 35]]
(2) Since the characteristics of records maintained within the Army
vary widely, no uniform method for keeping the disclosure of accounting
is prescribed. For most paper records, the accounting may be affixed to
the record being disclosed. It must be a written record and consist of:
(i) Description of the record disclosed;
(ii) Name, position title, and address of the person to whom
disclosure was made;
(iii) Date, method, and purpose of the disclosure; and
(iv) Name and position title of the person making the disclosure.
(3) Purpose of the accounting of disclosure is to enable an
individual:
(i) To ascertain those persons/agencies that have received
information about the individual, and
(ii) To provide a basis for informing recipients of subsequent
amendments or statements of dispute concerning the record.
(4) When an individual requests such an accounting, the system
manager or designee shall respond within 10 work days and inform the
individual of the items in Sec. 505.3(d)(2) above.
(5) The only basis for not furnishing the data subject an accounting
of disclosures are if disclosure was made for law enforcement purposes
under 5 U.S.C. 552a(b)(7), or the disclosure was from a system of
records for which an exemption from 5 U.S.C. 552a(c)(3) has been claimed
(see appendix C to this part).
[50 FR 42164, Oct. 18, 1985, as amended at 58 FR 51013, Sept. 30, 1993]
Sec. 505.4 Record-keeping requirements under the Privacy Act.
(a) Systems of records. (1) Notices of all Army systems of records
are required by the Act to be published in the Federal Register. An
example is at appendix A to this part. When new systems are established,
or major changes occur in existing systems, which meet the criteria of
OMB Guidelines summarized at Sec. 505.4(f)(2), advance notice is
required to be furnished OMB and the Congress before the system or
proposed changes become operational.
(2) Uncirculated personal notes, papers and records which are
retained at the author's discretion and over which the Army exercises no
control or dominion are not considered Army records within the meaning
of the Privacy Act. Individuals who maintain such notes must restrict
their use of memory aids. Disclosure from personal notes, either
intentional or through carelessness, remove the information from the
category of memory aids and the notes then become subject to the
provisions of the Act.
(3) Only personal information as is relevant and necessary to
accomplish a purpose or mission of the Army, required by Federal statue
or Executive Order of the President, will be maintained in Army systems
of records. Statutory authority, or regulatory authority to establish
and maintain a system of records does not convey unlimited authority to
collect and maintain all information which may be useful or convenient.
The authority is limited to relevant and necessary information.
(4) Except for statistical records, most records could be used to
determine an individual's rights, benefits, or privileges. To ensure
accuracy, personal information to be included in a system of records
will be collected directly from the individual if possible. Collection
of information from third parties should be limited to verifying
information for security or employment suitability or obtaining
performance data or opinion-type evaluations.
(b) Privacy Act Statement. Whenever personal information is
requested from an individual that will become part of system of records
retreived by reference to the individual's names or other personal
identifier, the individual will be furnished a Privacy Act Statement.
This is to ensure that individuals know why the information is collected
so they can make an informed decision on whether or not to furnish it.
As a minimum, the Privacy Act Statement will include the following
information in language that is explicit and easily understood and not
so lengthy as to deter an individual from reading it:
(1) Cite the specific statute or Executive Order, including a brief
title or
[[Page 36]]
subject, that authorizes the Army to collect the personal information
requested. Inform the individual whether or not a response is mandatory
or voluntary, and any possible consequences of failing to respond.
(2) Cite the principal purpose(s) for which the information will be
used; and
(3) Cite the probable routine uses for which the information may be
used.
This may be a summary of information published in the applicable system
notice. The above information normally should be printed on the form
used to record the information. In certain instances, it may be printed
in a public notice in a conspicuous location such as check-cashing
facilities; however, if the individual requests a copy of its contents,
it must be provided.
(c) Social Security Number (SSN). Executive Order 9397 authorizes
the Department of the Army to use the SSN as a system of identifying
Army members and employees. Once a military member or civilian employee
of the Department of the Army has disclosed his/her SSN for purposes of
establishing personnel, financial, or medical records upon entry into
Army service or employment, the SSN becomes his/her identification
number. No other use of this number is authorized. Therefore, whether
the SSN alone is requested from the individual, or the SSN together with
other personal information, the Privacy Act Statement must make clear
that disclosure of the number is voluntary. If the individual refuses to
disclose his/her SSN, the Army activity must be prepared to identify the
individual by alternate means.
(d) Safeguarding personal information. (1) The Privacy Act requires
establishment of appropriate administrative, technical, and physical
safeguards to ensure the security and confidentialty of records and to
protect against any threats or hazards to the subjects security or
integrity which could result in substantial harm, embarrassment,
inconvenience, or unfairness.
(2) At each location, and for each system of records, an official
will be designated to safeguard the information in that system.
Consideration must be given to sensitivity of the data, need for
accuracy and reliability in operations, general security of the area,
cost of safeguards, etc. See AR 380-380.
(3) Ordinarily, personal information must be afforded at least the
protection required for information designated ``For Official Use Only''
(see Chapter IV, AR 340-17). Privacy Act data will be afforded
reasonable safeguards to prevent inadvertent or unauthorized disclosure
of record content during processing, storage, transmission, and
disposal.
(4) No comparisons of Army records systems with systems of other
Federal or commerical agencies (known as ``matching'' or ``computer
matching'' programs) will be accomplished without prior approval of the
Assistant Chief of Staff for Information Managment (DAIM-RMS-S), Alex,
VA 22331-0301.
(e) First Amendment rights. No record describing how an individual
exercises rights guaranteed by the First Amendment will be kept unless
expressly authorized by Federal statue, by the individual about whom the
record pertains, or unless pertinent to and within the scope of an
authorized law enforcement activity. Exercise of these rights includes,
but is not limited to, religious and political beliefs, freedom of
speech and the press, and the right of assembly and to petition.
(f) System notice. (1) The Army publishes in the Federal Register a
notice describing each system of records for which it is responsible. A
notice contains:
(i) Name and location(s) of the records;
(ii) Categories of individuals on whom records are maintained;
(iii) Categories of records in the sytem;
(iv) Authority (statutory or Executive Order) authorizing the
system;
(v) Purpose(s) of the system;
(vi) Routine uses of the records, including the categories of users
and the purposes of such uses;
(vii) Policies and practices for storing, retrieving, accessing,
retaining, and disposing of the records;
(viii) Position title and business address of the responsible
official;
(ix) Procedures an individual must follow to learn if a system of
records contains a record about the individual;
[[Page 37]]
(x) Procedures an individual must follow to gain access to a record
about that individual in a system of records, to contest contents, and
to appeal initial determinations;
(xi) Categories of sources of records in the system;
(xii) Exemptions from the Privacy Act claimed for the system. (See
example notice at appendix A to this part.)
(2) New, or altered, systems which meet the requirements below,
require a report to the Congress and the Office of Management and
Budget. A new system is one for which no system notice is published in
the Federal Register. An altered system is one that:
(i) Increases or changes the number or types of individuals on whom
records are kept so that it significantly alters the character and
purpose of the system of records.
(ii) Expands the types of categories of information maintained.
(iii) Alters the manner in which records are organized, indexed, or
retrieved so as to change the nature or scope of those records.
(iv) Alters the purposes for which the information is used, or adds
a routine use that is not compatible with the purpose for which the
system is maintained.
(v) Changes the equipment configuration on which the system is
operated so as to create potential for either greater or easier access.
(3) Report of a new or altered system must be sent to HQDA (DAIM-
RMS-S) at least 120 days before the system or changes become
operational, and include a narrative statement and supporting
documentation.
(i) The narrative statement must contain the following items:
(A) System identification and name:
(B) Responsible official;
(C) Purpose(s) of the system, or nature of changes proposed (if an
altered system);
(D) Authority for the system;
(E) Number (or estimate) of individuals on whom records will be
kept;
(F) Information of First Amendment activities;
(G) Measure to assure information accuracy;
(H) Other measures to assure system security; (Automated systems
require risk assessment under AR 380-380.)
(I) Relations to State/local government activities. (See example at
appendix B to this part.)
(4) Supporting documentation consists of system notice for the
proposed new or altered system, and proposed exemption rule, if
applicable.
(g) Reporting requirements. (1) The annual report required by the
Act, as amended by Pub. L. 97-375, 96 Stat. 1821, focuses on two primary
areas:
(i) Information describing the exercise of individuals' rights of
access to and amendment of records.
(ii) Changes in, or additions to, systems of records.
(2) Specific reporting requirements will be disseminated each year
by The Assistant Chief of Staff for Information Management (DAIM-RMS-S)
in a letter to reporting elements.
(h) Rules of conduct. System managers will ensure that all
personnel, including government contractors or their employees, who are
involved in the design, development, operation, maintenance, or control
of any system of records, are informed of all requirements to protect
the privacy of individuals who are subjects of the records.
(i) Judicial sanctions. The Privacy Act has both civil remedies and
criminal penalties for violations of its provisions:
(1) Civil remedies: An individual may file a civil suit against the
Army if Army personnel fail to comply with the Privacy Act.
(2) Criminal penalties: A member or employee of the Army may be
guilty of a misdemeanor and fined not more than $5,000 for willfully:
(i) Maintaining a system of records without first meeting the public
notice requirements of publishing in the Federal Register;
(ii) Disclosing individually identifiable personal information to
one not entitled to have it;
(iii) Asking for or getting another's record under false pretense.
Sec. 505.5 Exemptions.
(a) Exempting systems of records. The Secretary of the Army may
exempt Army systems of records from certain
[[Page 38]]
requirements of the Privacy Act. There are two kinds of exemptions:
General and specific. The general exemption relieves systems of records
from most requirements of the Act; the specific exemptions from only a
few. See appendix C to this part.
(b) General exemptions. Only Army activities actually engaged in the
enforcement of criminal laws as their primary function may claim the
general exemption. To qualify for this exemption, a system must consist
of:
(1) Information compiled to identify individual criminals and
alleged criminals, which consists only of identifying data and arrest
records; type and disposition of charges; sentencing, confinement, and
release records; and parole and probation status;
(2) Information compiled for the purpose of criminal investigation
including efforts to prevent, reduce, or control crime and reports of
informants and investigators associated with an identifiable individual;
or
(3) Reports identifiable to an individual, compile at any stage of
the process of enforcement of the criminal laws, from arrest or
indictment through release from supervision.
(c) Specific exemptions. The Secretary of the Army has exempted all
properly classified information and a few systems of records that have
the following kinds of information, from certain parts of the Privacy
Act. The Privacy Act exemption cite appears in parentheses after each
category.
(1) Classified information in every Army system of records. This
exemption is not limited to the systems listed in Sec. 505.5(d). Before
denying as individual access to classified information, the Access and
Amendment Refusal Authority must make sure that it was properly
classified under the standards of Executive Orders 11652, 12065, or
12958 and that it must remain so in the interest of national defense of
foreign policy. (5 U.S.C. 552a(k)(1)).
(2) Investigatory data for law enforcement purposes (other than that
claimed under the general exemption). However, if this information has
been used to deny someone a right, privilege or benefit to which the
individual is entitled by Federal law, it must be released, unless doing
so would reveal the identity of a confidential source. (5 U.S.C.
552a(k)(2)).
(3) Records maintained in connection with providing protective
services to the President of the United States or other individuals
protected pursuant to Title 18 U.S.C., section 3056. (5 U.S.C.
552a(k)(3)).
(4) Statistical data required by statute and used only for
statistical purposes and not to make decisions on the rights, benefits,
or entitlements of individuals, except for census records which may be
disclosed under Title 13 U.S.C., section 8. (5 U.S.C. 552a(k)(4)).
(5) Data compiled to determine suitability, eligibility, or
qualifications for Federal service, Federal contracts, or access to
classified information. This information may be withheld only to the
extent that disclosure would reveal the identify of a confidential
source. (5 U.S.C. 552a(k)(5)).
(6) Testing material used to determine if a person is qualified for
appointment or promotion in the Federal service. This information may be
withheld only if disclosure would compromise the objectivity or fairness
of the examination process. (5 U.S.C. 552a(k)(6)).
(7) Information to determine promotion potential in the Armed
Forces. Information may be withheld, but only to the extent that
disclosure would reveal the identity of a confidential source. (5 U.S.C.
552a(k)(7)).
(d) Procedures. When a system manager seeks an exemption for a
system of records, the following information will be furnished to the
Director of Information Systems for Command, Control, Communications and
Computers, Washington, DC 20310-0107; applicable system notice,
exemptions sought, and justification. After appropriate staffing and
approval by the Secretary of the Army, a proposed rule will be published
in the Federal Register, followed, by a final rule 60 days later. No
exemption may be invoked until these steps have been completed.
(e) Exempt Army records. The following records may be exempt from
certain parts of the Privacy Act:
(1) System identifier: A0020-1a SAIG
(i) System name: Inspector General Records.
[[Page 39]]
(ii) Exemptions: (A) Investigatory material compiled for law
enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2).
However, if an individual is denied any right, privilege, or benefit for
which he would otherwise be entitled by Federal law or for which he
would otherwise be eligible, as a result of the maintenance of such
information, the individual will be provided access to such information
except to the extent that disclosure would reveal the identity of a
confidential source.
(B) Investigatory material compiled solely for the purpose of
determining suitability, eligibility, or qualifications for federal
civilian employment, military service, federal contracts, or access to
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5),
but only to the extent that such material would reveal the identity of a
confidential source.
(C) Therefore, portions of the system of records may be exempt
pursuant to 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), and
(e)(4)(I), and (f).
(iii) Authority: 5 U.S.C. 552a(k)(2) and (k)(5).
(iv) Reason: (A) From subsection (c)(3) because the release of the
disclosure accounting, for disclosures pursuant to the routine uses
published for this system, would permit the subject of a criminal
investigation or matter under investigation to obtain valuable
information concerning the nature of that investigation which will
present a serious impediment to law enforcement.
(B) From subsection (d) because access to the records contained in
this system would inform the subject of a criminal investigation of the
existence of that investigation, provide the subject of the
investigation with information that might enable him to avoid detection
or apprehension, and would present a serious impediment to law
enforcement.
(C) From subsection (e)(1) because in the course of criminal
investigations information is often obtained concerning the violations
of laws or civil obligations of others not relating to an active case or
matter. In the interests of effective law enforcement, it is necessary
that this valuable information is retained since it can aid in
establishing patterns of activity and provide valuable leads for other
agencies and future cases that may be brought.
(D) From subsections (e)(4)(G) and (e)(4)(H) because this system of
records is exempt from individual access pursuant to subsection (k)(2)
of the Privacy Act of 1974.
(E) From subsection (e)(4)(I) because of the identity of specific
sources must be withheld in order to protect the confidentiality of the
sources of criminal and other law enforcement information. This
exemption is further necessary to protect the privacy and physical
safety of witnesses and informants.
(F) From subsection (f) because this system of records has been
exempted from the access provisions of subsection (d).
(G) Consistent with the legislative purpose of the Privacy Act of
1974, the Department of the Army will grant access to nonexempt material
in the records being maintained. Disclosure will be governed by the
Department of the Army's Privacy Regulation, but will be limited to the
extent that the identity of confidential sources will not be
compromised; subjects of an investigation of an actual or potential
criminal violation will not be alerted to the investigation; the
physical safety of witnesses, informants and law enforcement personnel
will not be endangered, the privacy of third parties will not be
violated; and that the disclosure would not otherwise impede effective
law enforcement. Whenever possible, information of this nature will be
deleted from the requested documents and the balance made available. The
controlling principle behind this limited access is to allow disclosures
except those indicated in this paragraph. The decisions to release
information from these systems will be made on a case-by-case basis.
(2) [Reserved]
(3)A0025-55SAIS.
(i) System name: Request for Information Files.
(ii) Exemption: (A) All portions of this system of records which
fall within the scope of 5 U.S.C. 552a(j)(2) may be exempt from the
provisions of 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(1), (e)(2), (e)(3),
(e)(4)(G), (e)(4)(H), (e)(5), (e)(8), (f) and (g).
[[Page 40]]
(B) All portions of the system maintained by offices of Initial
Denying Authorities which do not have a law enforcement mission and
which fall within the scope of 5 U.S.C. 552a(k)(1) through (k)(7) may be
exempt from the provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1),
(e)(4)(G), (e)(4)(H), and (f).
(iii) Authority: 5 U.S.C. 552a(j)(2), and (k)(1) through (k)(7).
(iv) Reasons: This system of records is maintained solely for the
purpose of administering the Freedom of Information Act and processing
routine requests for information. To insure an accurate and complete
file on each case, it is sometimes necessary to include copies of
records which have been the subject of a Freedom of Information Act
request. This situation applies principally to cases in which an
individual has been denied access and/or amendment of personal records
under an exemption authorized by 5 U.S.C. 552. The same justification
for the original denial would apply to denial of access to copies
maintained in the Freedom of Information Act file. It should be
emphasized that the majority of records in this system are available on
request to the individual and that all records are used solely to
process requests. This file is not used to make any other determinations
on the rights, benefits or privileges of individuals.
(4)A0027-1DAJA.
(i) System name: General Legal Files.
(ii) Exemption: All portions of this system of records which fall
within the scope of 5 U.S.C. 552a(k)(1), (k)(2), (k)(5), (k)(6), and
(k)(7) may be exempt from the provisions of 5 U.S.C. 552a(c)(3), (d),
(e)(1), and (f).
(iii) Authority: 5 U.S.C. 552a(k)(1), (k)(2), (k)(5), (k)(6), and
(k)(7).
(iv) Reasons: Various records from other exempted systems of records
are sometimes submitted for legal review or other action. A copy of such
records may be permanently incorporated into the General Legal Files
system of records as evidence of the facts upon which a legal opinion or
review was based. Exemption of the General Legal Files system of records
is necessary in order to ensure that such records continue to receive
the same protection afforded them by exemptions granted to the systems
of records in which they were originally filed.
(5) System identifier: A0027-10a DAJA
(i) System name: Prosecutorial Files.
(ii) Exemptions: Parts of this system may be exempt pursuant to 5
U.S.C. 552a(j)(2) if the information is compiled and maintained by a
component of the agency which performs as its principle function any
activity pertaining to the enforcement of criminal laws. Therefore,
portions of the system of records may be exempt pursuant to 5 U.S.C.
552a(c)(3), (c)(4), (d), (e)(1), (e)(2), (e) (3), (e)(4)(G), (H) and
(I), (e)(5), (e)(8), (f), and (g).
(iii) Authority: 5 U.S.C. 552a(j)(2).
(iv) Reason: (A) From subsection (c)(3) because the release of the
disclosure accounting, for disclosures pursuant to the routine uses
published for this system, would permit the subject of a criminal
investigation or matter under investigation to obtain valuable
information concerning the nature of that investigation which will
present a serious impediment to law enforcement.
(B) From subsection (c)(4) because an exemption is being claimed for
subsection (d), this subsection will not be applicable.
(C) From subsection (d) because access to the records contained in
this system would inform the subject of a criminal investigation of the
existence of that investigation, provide the subject of the
investigation with information that might enable him to avoid detection
or apprehension, and would present a serious impediment to law
enforcement.
(D) From subsection (e)(1) because in the course of criminal
investigations information is often obtained concerning the violation of
laws or civil obligations of others not relating to an active case or
matter. In the interests of effective law enforcement, it is necessary
that this valuable information be retained since it can aid in
establishing patterns of activity and provide valuable leads for other
agencies and future cases that may be brought.
(E) From subsection (e)(2) because in a criminal investigation the
requirement that information be collected to the greatest extent
possible from the
[[Page 41]]
subject individual would present a serious impediment to law enforcement
in that the subject of the investigation would be placed on notice of
the existence of the investigation and would therefore be able to avoid
detection.
(F) From subsection (e)(3) because the requirement that individuals
supplying information be provided with a form stating the requirements
of subsection (e)(3) would constitute a serious impediment to law
enforcement in that it could compromise the existence of a confidential
investigation, reveal the identity of confidential sources of
information and endanger the life and physical safety of confidential
informants.
(G) From subsections (e)(4)(G) and (H) because this system of
records is exempt from individual access pursuant to subsection (j)(2)
of the Privacy Act of 1974.
(H) From subsection (e)(4)(I) because the identity of specific
sources must be withheld in order to protect the confidentiality of the
sources of criminal and other law enforcement information. This
exemption is further necessary to protect the privacy and physical
safety of witnesses and informants.
(I) From subsection (e)(5) because in the collection of information
for law enforcement purposes it is impossible to determine in advance
what information is accurate, relevant, timely, and complete. With the
passage of time, seemingly irrelevant or untimely information may
acquire new significance as further investigation brings new details to
light and the accuracy of such information can only be determined in a
court of law. The restrictions of subsection (e)(5) would restrict the
ability of trained investigators and intelligence analysts to exercise
their judgment reporting on investigations and impede the development of
intelligence necessary for effective law enforcement.
(J) From subsection (e)(8) because the individual notice
requirements of subsection (e)(8) could present a serious impediment to
law enforcement as this could interfere with the ability to issue search
authorizations and could reveal investigative techniques and procedures.
(K) From subsection (f) because this system of records has been
exempted from the access provisions of subsection (d).
(L) From subsection (g) because this system of records is compiled
for law enforcement purposes and has been exempted from the access
provisions of subsections (d) and (f).
(M) Consistent with the legislative purpose of the Privacy Act of
1974, the Department of the Army will grant access to nonexempt material
in the records being maintained. Disclosure will be governed by the
Department of the Army's Privacy Regulation (this part 505), but will be
limited to the extent that the identity of confidential sources will not
be compromised; subjects of an investigation of an actual or potential
criminal violation will not be alerted to the investigation; the
physical safety of witnesses, informants and law enforcement personnel
will not be endangered, the privacy of third parties will not be
violated; and that the disclosure would not otherwise impede effective
law enforcement. Whenever possible, information of this nature will be
deleted from the requested documents and the balance made available. The
controlling principle behind this limited access is to allow disclosures
except those indicated in this paragraph. The decisions to release
information from these systems will be made on a case-by-case basis.
(6) System identifier: A0027-10b DAJA
(i) System name: Courts-Martial Records and Reviews.
(ii) Exemptions: Parts of this system may be exempt pursuant to 5
U.S.C. 552a(j)(2) if the information is compiled and maintained by a
component of the agency which performs as its principle function any
activity pertaining to the enforcement of criminal laws. Therefore,
portions of this system of records may be exempt pursuant to 5 U.S.C.
552a(j)(2) from the following subsection of 5 U.S.C. 552a(c)(3), (c)(4),
(d), (e)(1), (e)(2), (e)(3), (e)(4)(G), (H) and (I), (e)(5), (e)(8),
(f), and (g).
(iii) Authority: 5 U.S.C. 552a(j)(2).
(iv) Reason: (A) From subsection (c)(3) because the release of the
disclosure accounting, for disclosures pursuant to the routine uses
published for this system, would permit the subject
[[Page 42]]
of a criminal investigation or matter under investigation to obtain
valuable information concerning the nature of that investigation which
will present a serious impediment to law enforcement.
(B) From subsection (c)(4) because an exemption is being claimed for
subsection (d), this subsection will not be applicable.
(C) From subsection (d) because access to the records contained in
this system would inform the subject of a criminal investigation of the
existence of that investigation, provide the subject of the
investigation with information that might enable him to avoid detection
or apprehension, and would present a serious impediment to law
enforcement.
(D) From subsection (e)(1) because in the course of criminal
investigations information is often obtained concerning the violation of
laws or civil obligations of others not relating to an active case or
matter. In the interests of effective law enforcement, it is necessary
that this information be retained since it can aid in establishing
patterns of activity and provide valuable leads for other agencies and
future cases that may be brought.
(E) From subsection (e)(2) because in a criminal investigation the
requirement that information be collected to the greatest extent
possible from the subject individual would present a serious impediment
to law enforcement in that the subject of the investigation would be
placed on notice of the existence of the investigation and would
therefore be able to avoid detection.
(F) From subsection (e)(3) because the requirement that individuals
supplying information be provided with a form stating the requirements
of subsection (e)(3) would constitute a serious impediment to law
enforcement in that it could compromise the existence of a confidential
investigation, reveal the identity of confidential sources of
information and endanger the life and physical safety of confidential
informants.
(G) From subsections (e)(4)(G) and (H) because this system of
records is exempt from individual access pursuant to subsection (j)(2)
of the Privacy Act of 1974.
(H) From subsection (e)(4)(I) because the identity of specific
sources must be withheld in order to protect the confidentiality of the
sources of criminal and other law enforcement information. This
exemption is further necessary to protect the privacy and physical
safety of witnesses and informants.
(I) From subsection (e)(5) because in the collection of information
for law enforcement purposes it is impossible to determine in advance
what information is accurate, relevant, timely, and complete. With the
passage of time, seemingly irrelevant or untimely information may
acquire new significance as further investigation brings new details to
light and the accuracy of such information can only be determined in a
court of law. The restrictions of subsection (e)(5) would restrict the
ability of trained investigators and intelligence analysts to exercise
their judgment in reporting on investigations and impede the development
of intelligence necessary for effective law enforcement.
(J) From subsection (e)(8) because the individual notice
requirements of subsection (e)(8) could present a serious impediment to
law enforcement as this could interfere with the ability to issue search
authorizations and could reveal investigative techniques and procedures.
(K) From subsection (f) because this system of records has been
exempted from the access provisions of subsection (d).
(L) From subsection (g) because this system of records is compiled
for law enforcement purposes and has been exempted from the access
provisions of subsections (d) and (f).
(M) Consistent with the legislative purpose of the Privacy Act of
1974, the Department of the Army will grant access to nonexempt material
in the records being maintained. Disclosure will be governed by the
Department of the Army's Privacy Regulation (this part 505), but will be
limited to the extent that the identity of confidential sources will not
be compromised; subjects of an investigation of an actual or potential
criminal violation will not be alerted to the investigation; the
physical safety of witnesses, informants and law enforcement personnel
will not be
[[Page 43]]
endangered, the privacy of third parties will not be violated; and that
the disclosure would not otherwise impede effective law enforcement.
Whenever possible, information of this nature will be deleted from the
requested documents and the balance made available. The controlling
principle behind this limited access is to allow disclosures except
those indicated in this paragraph. The decisions to release information
from these systems will be made on a case-by-case basis.
(7) A0190-5DAMO.
(i) System name: Vehicle Registration System (VRS).
(ii) Exemption: All portions of this system of records which fall
within the scope of 5 U.S.C. 552a(j)(2) may be exempt from the
provisions of 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(2), (e)(3),
(e)(4)(G), (e)(4)(H), (e)(8), (f), and (g).
(iii) Authority: 5 U.S.C. 552a(j)(2).
(iv) Reasons: (A) From subsections (c)(4), (d), (e)(4)(G),
(e)(4)(H), (f) and (g) because granting individuals access to
information collected and maintained by this component relating to the
enforcement of laws could interfere with proper investigations and the
orderly administration of justice. Disclosure of this information could
result in the concealment, alteration or destruction of evidence, the
identification of offenders or alleged offenders, nature and disposition
of charges; and jeopardize the safety and well-being of informants,
witnesses and their families, and law enforcement personnel and their
families. Disclosure of this information could also reveal and render
ineffectual investigative techniques, sources and methods used by this
component, and could result in the invasion of the privacy of
individuals only incidentally related to an investigation. Exemption
from access necessarily includes exemption from other requirements.
(B) From subsection (c)(3) because the release of accounting of
disclosure would place the subject of an investigation on notice that he
is under investigation and provide him with significant information
concerning the nature of the investigation, thus resulting in a serious
impediment to law enforcement investigations.
(C) From subsection (e)(2) because in a criminal or other law
enforcement investigation, the requirement that information be collected
to the greatest extent practicable from the subject individual would
alert the subject as to the nature or existence of the investigation and
thereby present a serious impediment to effective law enforcement.
(D) From subsection (e)(3) because compliance would constitute a
serious impediment to law enforcement in that it could compromise the
existence of a confidential investigation or reveal the identity of
witnesses or confidential informants.
(E) From subsection (e)(8) because compliance with this provision
would provide an impediment to law enforcement by interfering with the
ability to issue warrants or subpoenas and by revealing investigative
techniques, procedures or evidence.
(8) A0190-9DAMO.
(i) System name: Absentee Case Files.
(ii) Exemption: All portions of this system of records which fall
within the scope of 5 U.S.C. 552a(j)(2) may be exempt from the
provisions of 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(2), (e)(3),
(e)(4)(G), (e)(4)(H), (e)(8), (f), and (g).
(iii) Authority: 5 U.S.C. 552a(j)(2).
(iv) Reasons: (A) From subsection (c)(4), (d), (e)(4)(G), (e)(4)(H),
(f) and (g) because granting individuals access to information collected
and maintained by this component relating to the enforcement of laws
could interfere with proper investigations and the orderly
administration of justice. Disclosure of this information could result
in the concealment, alteration or destruction of evidence, the
identification of offenders or alleged offenders, nature and disposition
of charges; and jeopardize the safety and well-being of informants,
witnesses and their families, and law enforcement personnel and their
families. Disclosure of this information could also reveal and render
ineffectual investigative techniques, sources and methods used by this
component, and could result in the invasion of the privacy of
individuals only incidentally related to an investigation. Exemption
from access necessarily includes exemption from other requirements.
(B) From subsection (c)(3) because the release of accounting of
disclosure
[[Page 44]]
would place the subject of an investigation on notice that he is under
investigation and provide him with significant information concerning
the nature of the investigation, thus resulting in a serious impediment
to law enforcement investigations.
(C) From subsection (e)(2) because in a criminal or other law
enforcement investigation, the requirement that information be collected
to the greatest extent practicable from the subject individual would
alert the subject as to the nature or existence of the investigation and
thereby present a serious impediment to effective law enforcement.
(D) From subsection (e)(3) because compliance would constitute a
serious impediment to law enforcement in that it could compromise the
existence of a confidential investigation or reveal the identity of
witnesses or confidential informants.
(E) From subsection (e)(8) because compliance with this provision
would provide an impediment to law enforcement by interfering with the
ability to issue warrants or subpoenas and by revealing investigative
techniques, procedures or evidence.
(9) A0190-14DAMO.
(i) System name: Registration and Permit Files.
(ii) Exemption: All portions of this system of records which fall
within the scope of 5 U.S.C. 552a(k)(2) may be exempt from the
provisions of 5 U.S.C. 552a(c)(3).
(iii) Authority: 5 U.S.C. 552a(k)(2).
(iv) Reasons: From subsection (c)(3) because the release of
accounting of disclosures would place the subject of an investigation on
notice that he or she is under investigation and provide him or her with
significant information concerning the nature of the investigation thus
resulting in a serious impediment to criminal law enforcement
investigations, activities or the compromise of properly classified
material.
(10) A0190-30DAMO.
(i) System name: Military Police Investigator Certification Files.
(ii) Exemption: All portions of this system of records which fall
within the scope of 5 U.S.C. 552a(k)(2), (k)(5), and (k)(7) may be
exempt from the provisions of 5 U.S.C. 552a(d), (e)(4)(G), (e)(4)(H),
and (f).
(iii) Authority: 5 U.S.C. 552a(k)(2), (k)(5) and (k)(7).
(iv) Reasons: From subsections (d), (e)(4)(G), (e)(4)(H), and (f)
because disclosure of portions of the information in this system of
records would seriously impair selection and management of these
uniquely functioning individuals; hamper the inclusion of comments,
reports and evaluations concerning the performance, qualifications,
character, actions, and propensities of the agency; and prematurely
compromise investigations which either concern the conduct of the agent
himself or herself, or investigations wherein he or she is integrally or
only peripherally involved. Additionally, the exemption from access
necessarily includes exemptions from the amendment and the agency
procedures that would otherwise be required to process these types of
requests.
(11) A0190-40DAMO.
(i) System name: Serious Incident Reporting Files.
(ii) Exemption: All portions of this system of records which fall
within the scope of 5 U.S.C. 552a(j)(2) may be exempt from the
provisions of 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(2), (e)(3),
(e)(4)(G), (e)(4)(H), (e)(8), (f), and (g).
(iii) Authority: 5 U.S.C. 552a(j)(2).
(iv) Reasons: (A) From subsection (c)(4), (d), (e)(4)(G), (e)(4)(H),
(f) and (g) because granting individuals access to information collected
and maintained by this component relating to the enforcement of laws
could interfere with proper investigations and the orderly
administration of justice. Disclosure of this information could result
in the concealment, alteration or destruction of evidence, the
identification of offenders or alleged offenders, nature and disposition
of charges, and jeopardize the safety and well-being of informants,
witnesses and their families, and law enforcement personnel and their
families. Disclosure of this information could also reveal and render
ineffectual investigative techniques, sources, and methods used by this
component, and could result in the invasion of the privacy of
individuals only incidentally related to an investigation. Exemption
[[Page 45]]
from access necessarily includes exemption from the other requirements.
(B) From subsection (c)(3) because of the release of accounting of
disclosure would place the subject of an investigation on notice that he
is under investigation and provide him with significant information
concerning the nature of the investigation, thus resulting in a serious
impediment to law enforcement investigations.
(C) From subsection (e)(2) because in a criminal or other law
enforcement investigation, they require that information be collected to
the greatest extent practicable from the subject individual would alert
the subject as to the nature or existence of the investigation and
thereby present a serious impediment to effective law enforcement.
(D) From subsection (e)(3) because compliance would constitute a
serious impediment to law enforcement in that it could compromise the
existence of a confidential investigation or reveal the identity of
witnesses or confidential informants.
(E) From subsection (e)(8) because compliance with this provision
would provide an impediment to law enforcement by interfering with the
ability to issue warrants or subpoenas and be revealing investigative
techniques, procedures or evidence.
(12) System identifier: A0190-45 DAMO
(i) System name: Offense Reporting System (ORS)
(ii) Exemptions: Parts of this system may be exempt pursuant to 5
U.S.C. 552a(j)(2) if the information is compiled and maintained by a
component of the agency which performs as its principle function any
activity pertaining to the enforcement of criminal laws. Therefore,
portions of the system of records may be exempt pursuant to 5 U.S.C.
552a(c)(3), (c)(4), (d), (e)(1), (e)(2), (e)(3), (e)(4)(G), (H) and (I),
(e)(5), (e)(8), (f), and (g).
(iii) Authority: 5 U.S.C. 552a(j)(2).
(iv) Reason: (A) From subsection (c)(3) because the release of the
disclosure accounting, for disclosures pursuant to the routine uses
published for this system, would permit the subject of a criminal
investigation or matter under investigation to obtain valuable
information concerning the nature of that investigation which will
present a serious impediment to law enforcement.
(B) From subsection (c)(4) because an exemption is being claimed for
subsection (d), this subsection will not be applicable.
(C) From subsection (d) because access to the records contained in
this system would inform the subject of a criminal investigation of the
existence of that investigation, provide the subject of the
investigation with information that might enable him to avoid detection
or apprehension, and would present a serious impediment to law
enforcement.
(D) From subsection (e)(1) because in the course of criminal
investigations information is often obtained concerning the violation of
laws or civil obligations of others not relating to an active case or
matter. In the interests of effective law enforcement, it is necessary
that this valuable information be retained since it can aid in
establishing patterns of activity and provide valuable leads for other
agencies and future cases that may be brought.
(E) From subsection (e)(2) because in a criminal investigation the
requirement that information be collected to the greatest extent
possible from the subject individual would present a serious impediment
to law enforcement in that the subject of the investigation would be
placed on notice of the existence of the investigation and would
therefore be able to avoid detection.
(F) From subsection (e)(3) because the requirement that individuals
supplying information be provided with a form stating the requirements
of subsection (e)(3) would constitute a serious impediment to law
enforcement in that it could compromise the existence of a confidential
investigation, reveal the identity of confidential sources of
information and endanger the life and physical safety of confidential
informants.
(G) From subsections (e)(4)(G) and (H) because this system of
records is exempt from individual access pursuant to subsection (j)(2)
of the Privacy Act of 1974.
(H) From subsection (e)(4)(I) because the identity of specific
sources must be withheld in order to protect the confidentiality of the
sources of criminal
[[Page 46]]
and other law enforcement information. This exemption is further
necessary to protect the privacy and physical safety of witnesses and
informants.
(I) From subsection (e)(5) because in the collection of information
for law enforcement purposes it is impossible to determine in advance
what information is accurate, relevant, timely, and complete. With the
passage of time, seemingly irrelevant or untimely information may
acquire new significance as further investigation brings new details to
light and the accuracy of such information can only be determined in a
court of law. The restrictions of subsection (e)(5) would restrict the
ability of trained investigators and intelligence analysts to exercise
their judgment reporting on investigations and impede the development of
intelligence necessary for effective law enforcement.
(J) From subsection (e)(8) because the individual notice
requirements of subsection (e)(8) could present a serious impediment to
law enforcement as this could interfere with the ability to issue search
authorizations and could reveal investigative techniques and procedures.
(K) From subsection (f) because this system of records has been
exempted from the access provisions of subsection (d).
(L) From subsection (g) because this system of records is compiled
for law enforcement purposes and has been exempted from the access
provisions of subsections (d) and (f).
(M) Consistent with the legislative purpose of the Privacy Act of
1974, the Department of the Army will grant access to nonexempt material
in the records being maintained. Disclosure will be governed by the
Department of the Army's Privacy Regulation, but will be limited to the
extent that the identity of confidential sources will not be
compromised; subjects of an investigation of an actual or potential
criminal violation will not be alerted to the investigation; the
physical safety of witnesses, informants and law enforcement personnel
will not be endangered, the privacy of third parties will not be
violated; and that the disclosure would not otherwise impede effective
law enforcement. Whenever possible, information of the above nature will
be deleted from the requested documents and the balance made available.
The controlling principle behind this limited access is to allow
disclosures except those indicated above. The decisions to release
information from these systems will be made on a case-by-case basis.
(13) System identifier: A0190-47 DAMO.
(i) System name: Correctional Reporting System (CRS).
(ii) Exemption. Parts of this system may be exempt pursuant to 5
U.S.C. 552a(j)(2) if the information is compiled and maintained by a
component of the agency which performs as its principle function any
activity pertaining to the enforcement of criminal laws. All portions of
this system of records which fall within the scope of 5 U.S.C.
552a(j)(2) may be exempt from the provisions of 5 U.S.C. 552a(c)(3),
(c)(4), (d), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8),
(f), and (g).
Consistent with the legislative purpose of the Privacy Act of 1974,
the Department of the Army will grant access to nonexempt material in
the records being maintained. Disclosure will be governed by the
Department of the Army's Privacy Regulation, but will be limited to the
extent that the identity of confidential sources will not be
compromised; subjects of an investigation of an actual or potential
criminal violation will not be alerted to the investigation; the
physical safety of witnesses, informants and law enforcement personnel
will not be endangered, the privacy of third parties will not be
violated; and that the disclosure would not otherwise impede effective
law enforcement. Whenever possible, information of the above nature will
be deleted from the requested documents and the balance made available.
The controlling principle behind this limited access is to allow
disclosures except those indicated above. The decisions to release
information from these systems will be made on a case-by-case basis
necessary for effective law enforcement.
(iii) Authority: 5 U.S.C. 552a(j)(2).
(iv) Reasons: (A) From subsection (c)(3) because the release of the
disclosure accounting, or disclosures pursuant to the routine uses
published for
[[Page 47]]
this system, would permit the subject of a criminal investigation or
matter under investigation to obtain valuable information concerning the
nature of that investigation which will present a serious impediment to
law enforcement.
(B) From subsection (c)(4) because an exemption is being claimed for
subsection (d), this subsection will not be applicable.
(C) From subsection (d) because access to the records contained in
this system would inform the subject of a criminal investigation of the
existence of that investigation, provide the subject of the
investigation with information that might enable him to avoid detection
or apprehension, and would present a serious impediment to law
enforcement.
(D) From subsection (e)(3) would constitute a serious impediment to
law enforcement in that it could compromise the existence of a
confidential investigation, reveal the identity of confidential sources
of information and endanger the life and physical safety of confidential
informants.
(E) From subsections (e)(4)(G) and (H) because this system of
records is exempt from individual access pursuant to subsections (j)(2)
of the Privacy Act of 1974.
(F) From subsection (e)(4)(I) because the identity of specific
sources must be withheld in order to protect the confidentiality of the
sources of criminal and other law enforcement information. This
exemption is further necessary to protect the privacy and physical
safety of witnesses and informants.
(G) From subsection (e)(5) because in the collection of information
for law enforcement purposes it is impossible to determine in advance
what information is accurate, relevant, timely, and complete. With the
passage of time, seemingly irrelevant or untimely information may
acquire new significance as further investigation brings new details to
light and the accuracy of such information can only be determined in a
court of law. The restrictions of subsection (e) (5) would restrict the
ability of trained investigators and intelligence analysts to exercise
their judgment reporting on investigations and impede the development of
intelligence necessary for effective law enforcement.
(H) From subsection (e)(8) because the individual notice
requirements of subsection (e)(8) could present a serious impediment to
law enforcement as this could interfere with the ability to issue search
authorizations and could reveal investigative techniques and procedures.
(I) From subsection (f) because this system of records has been
exempted from the access provisions of subsection (d).
(J) From subsection (g) because this system of records compiled for
lawenforcement purposes and has been exempted from the access provisions
of subsections (d) and (f).
(14) A0195-2aUSACIDC.
(i) System name: Source Register.
(ii) Exemption: All portions of this system of records which fall
within the scope of 5 U.S.C. 552a(j)(2) may be exempt from the
provisions of 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(1), (e)(2), (e)(3),
(e)(4)(G), (e)(5), (e)(8), (f), and (g).
(iii) Authority: 5 U.S.C. 552a(j)(2).
(iv) Reasons: (A) From subsection (c)(3) because release of
accounting of disclosures would provide the informant with significant
information concerning the nature of a particular investigation, the
internal methods and techniques involved in criminal investigation, and
the investigative agencies (state, local or foreign) involved in a
particular case resulting in a serious compromise of the criminal law
enforcement processes.
(B) From subsection (c)(4), (d), (e)(4)(G), (e)(4)(H), (f), and (g)
because disclosure of portions of the information in this system of
records would seriously impair the prudent and efficient handling of
these uniquely functioning individuals; hamper the inclusion of comments
and evaluations concerning the performance qualification, character,
identity, and propensities of the informant; and prematurely compromise
criminal investigations which either concern the conduct of the
informant himself or investigations wherein he/she is intergrally or
only peripherally involved. Additionally, the exemption from access
necessarily includes exemption from amendment, certain agency
requirements relating
[[Page 48]]
to access and amendment of records and civil liability predicated upon
agency compliance with specific provisions of the Privacy Act.
(C) From subsection (d), (e)(4)(G), (e)(4)(H), and (f) are also
necessary to protect the security of information properly classified in
the interest of national defense and foreign policy.
(D) From subsection (e)(1) because the nature of the criminal
investigative function creates unique problems in prescribing what
information concerning informants is relevant or necessary. Due to close
liaison and existing relationships with other Federal, state, local and
foreign law enforcement agencies, information about informants may be
received which may relate to a case then under the investigative
jurisdiction of another Government agency but it is necessary to
maintain this information in order to provide leads for appropriate law
enforcement purposes and to establish patterns of activity which may
relate to the jurisdiction of both the USACIDC and other agencies.
Additionally, the failure to maintain all known information about
informants could affect the effective utilization of the individual and
substantially increase the operational hazards incumbent in the
employment of an informant in very compromising and sensitive
situations.
(E) From subsection (e)(2) because collecting information from the
information would potentially thwart both the crminal investigtive
process and the required management control over these individuals by
appraising the informant of investigations or management actions
concerning his involvement in criminal activity or with USACIDC
personnel.
(F) From subsection (e)(3) because supplying an informant with a
form containing the information specified could result in the compromise
of an investigation, tend to inhibit the cooperation of the informant,
and render ineffectual investigative techniques and methods utilized by
USACIDC in the performance of its criminal law enforcement duties.
(G) From subsection (e)(5) because this requirement would unduly
hamper the criminal investigative process due to type of records
maintained an necessity for rapid information retrieval and
dissemination. Also, in the collection of information about informants,
it is impossible to determine what information is then accurate,
relevant, timely and complete. With the passage of time, seemingly
irrevelant or untimely information may acquire new significance as
further investigation or contact brings new details to light. In the
criminal investigative process, accuracy and relevance of information
concerning informants can only be determined in a court of law. The
restrictions imposed by subsection (e)(5) would restrict the ability of
trained investigators to exercise their judgment in reporting
information relating to informant's actions and would impede the
development of criminal intelligence necessary for effective law
enforcement.
(H) From subsection (e)(8) because the notice requirements of this
provision could present a serious impediment to criminal law enforcement
by revealing investigative techniques, procedures, and the existence of
confidential investigations.
(15)A0195-2bUSACIDC.
(i) System name: Criminal Investigation and Crime Laboratory Files.
(ii) Exemption: All portions of this system of records which fall
within the scope of 5 U.S.C. 552a(j)(2) may be exempt from the
provisions of 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(1), (e)(2), (e)(3),
(e)(4)(G), (e)(4)(H), (e)(5), (e)(8), (f), and (g).
(iii) Authority: 5 U.S.C. 552(j)(2).
(iv) Reasons: (A) From subsection (c)(3) because the release of
accounting of disclosures would place the subject of an investigation on
notice that he is under investigation and provide him with significant
information concerning coordinated investigative effort and techniques
and the nature of the investigation, resulting in a serious impediment
to criminal law enforcement activities or the compromise of properly
classified material.
(B) From subsections (c)(4), (d), (e)(4)(G), (e)(4)(H), (f), and (g)
because access might compromise on-going investigations, reveal
classified information, investigatory techniques or the identity of
confidential informants, or
[[Page 49]]
invade the privacy of persons who provide information in connection with
a particular investigation. The exemption from access necessarily
includes exemption from amendment, certain agency requirements relating
to access and amendment of records, and civil liability predicated upon
agency compliance with those specific provisions of the Privacy Act. The
exemption from access necessarily includes exemption from other
requirements.
(C)From subsection (e)(1) because the nature of the investigative
function creates unique problems in prescribed specific perimeters in a
particular case as to what information is relevant or necessary. Also,
due to close liaisons and working relationships with other Federal,
state, local, and foreign law enforcement agencies, information may be
received which may relate to a case then under the investigative
jurisdiction of another Government agency but it is necessary to
maintain this information in order to provide leads for appropriate law
enforcement purposes and to establish patterns of activity which may
relate to the jurisdiction of both the USACIDC and other agencies.
(D) From subsection (e)(2) because collecting information from the
subject of criminal investigations would thwart the investigative
process by placing the subject of the investigation on notice thereof.
(E) From subsection (e)(3) because supplying an individual with a
form containing the information specified could result in the compromise
of an investigation, tend to inhibit the cooperation of the individual
queried, and render ineffectual investigation techniques and methods
utilized by USACIDC in the performance of their criminal law enforcement
duties.
(F) From subsection (e)(5) because this requirment would unduly
hamper the criminal investigative process due to the great volume of
records maintained and the necessity for rapid information retrieval and
dissemination. Also, in the collection of information for law
enforcement purposes, it is impossible to determine what information is
then accurate, relevant, timely, and complete. With the passage of time,
seemingly irrelevant or untimely information may acquire new
significance as further investigation brings new details to light. In
the criminal investigation process, accuracy and relevance of
information can only be determine in a court of law. The restrictions
imposed by subsection (e)(5) would restrict the ability of trained
investigators to exercise their judgment in reporting on investigations
and impede the development of criminal intelligence necessary for
effective law enforcement.
(G) From subsection (e)(8) because the notice requirements of this
provision could present a serious impediment to criminal law enforcement
by revealing investigative techniques, procedures, and the existence of
confidential investigations.
(16) A0195-6USACIDC.
(i) System name: Criminal Investigation Accreditation and Polygraph
Examiner Evaluation Files.
(ii) Exemption: All portions of this system of records which fall
within the scope of 5 U.S.C. 552a(k)(2), (k)(5), or (k)(7) may be exempt
from the provisions of 5 U.S.C. 552a(d), (e)(1), (e)(4)(G), (e)(4)(H),
and (f).
(iii) Authority: 5 U.S.C. 552a(k)(2), (k)(5), and (k)(7).
(iv) Reasons: (A) From subsections (d), (e)(4)(G), (e)(4)(H), and
(f) because disclosure of portions of the information in this system of
records would seriously impair the selection and management of these
uniquely functioning individuals; hamper the inclusion of comments,
reports and evaluations concerning the performance, qualifications,
character, action and propensities of the agent; and prematurely
compromise investigations with either concern the conduct of the agent
himself or investigations wherein he or she is integrally or only
peripherally involved. Additionally, the exemption from access
necessarily includes exemptions from the amendment and the agency
procedures which would otherwise be required to process these types of
requests.
(B) From subsection (e)(1) because the failure to maintain all known
information about agents could affect the effective utilization of the
individual and substantially increase the operational hazards incumbent
in the
[[Page 50]]
employment of agents in very compromising and sensitive situations.
(17) A0210-7DAMO.
(i) System name: Expelled or Barred Person Files.
(ii) Exemption: All portions of this system of records which fall
within the scope of 5 U.S.C. 552a(j)(2) may be exempt from the
provisions of 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(2), (e)(3),
(e)(4)(G), (e)(4)(H), (e)(8), (f), and (g).
(iii) Authority: 5 U.S.C. 552a(j)(2).
(iv) Reasons: (A) From subsection (c)(4), (d), (e)(4)(G), (e)(4)(H),
(f) and (g) because granting individuals access to information collected
and maintained by this component relating to the enforcement of laws
could interfere with proper investigations and the orderly
administration of justice. Disclosure of this information could result
in the concealment, alteration or destruction of evidence, the
identification of offenders or alleged offenders, nature and disposition
of charges, and jeopardize the safety and well-being of informants,
witnesses and their families, and law enforcement personnel and their
families. Disclosure of this information could also reveal and render
ineffectual investigative techniques, sources, and methods used by this
component, and could result in the invasion of the privacy of
individuals only incidentally related to an investigation. Exemption
from access necessarily includes exemption from the other requirements.
(B) From subsection (c)(3) because of the release of accounting of
disclosure would place the subject of an investigation on notice that he
is under investigation and provide him with significant information
concerning the nature of the investigation, thus resulting in a serious
impediment to law enforcement investigations.
(C) From subsection (e)(2) because in a criminal or other law
enforcement investigation, they require that information be collected to
the greatest extent practicable from the subject individual would alert
the subject as to the nature or existence of the investigation and
thereby present a serious impediment to effective law enforcement.
(D) From subsection (e)(3) because compliance would constitute a
serious impediment to law enforcement in that it could compromise the
existence of a confidential investigation or reveal the identity of
witnesses or confidential informants.
(E) From subsection (e)(8) because compliance with this provision
would provide an impediment to law enforcement by interfering with the
ability to issue warrants or subpoenas and be revealing investigative
techniques, procedures or evidence.
(18) System identifier: A0025 JDIM
(i) System name: HQDA Correspondence and Control/Central Files
System.
(ii) Exemptions: Documents within this system of records are
generated by other elements of the Department of the Army or are
received from other agencies and individuals. Because of the broad scope
of the contents of this system of records, and since the introduction of
documents is largely unregulatable, specific portions or documents that
may require an exemption can not be predetermined. Therefore, and to the
extent that such material is received and maintained, selected
individual documents may be exempt.
(A) Information specifically authorized to be classified under E.O.
12958, as implemented by DoD 5200.1-R, may be exempt pursuant to 5
U.S.C. 552a(k)(1).
(B) Investigatory material compiled for law enforcement purposes may
be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual is
denied any right, privilege, or benefit for which he would otherwise be
entitled by Federal law or for which he would otherwise be eligible, as
a result of the maintenance of such information, the individual will be
provided access to such information except to the extent that disclosure
would reveal the identity of a confidential source.
(C) Records maintained in connection with providing protective
services to the President and other individuals under 18 U.S.C. 3506,
may be exempt pursuant to 5 U.S.C. 552a(k)(3).
(D) Records maintained solely for statistical research or program
evaluation purposes and which are not used to make decisions on the
rights, benefits, or entitlement of an individual except for census
records which may be disclosed under 13 U.S.C. 8, may be exempt pursuant
to 5 U.S.C. 552a(k)(4).
(E) Investigatory material compiled solely for the purpose of
determining
[[Page 51]]
suitability, eligibility, or qualifications for federal civilian
employment, military service, federal contracts, or access to classified
information may be exempt pursuant to 5 U.S.C. 552a(k)(5), but only to
the extent that such material would reveal the identity of a
confidential source.
(F) Testing or examination material used solely to determine
individual qualifications for appointment or promotion in the Federal
service may be exempt pursuant to 5 U.S.C. 552a(k)(6), if the disclosure
would compromise the objectivity or fairness of the test or examination
process.
(G) Evaluation material used to determine potential for promotion in
the Military Services may be exempt pursuant to 5 U.S.C. 552a(k)(7), but
only to the extent that the disclosure of such material would reveal the
identity of a confidential source.
(H) Portions of this system of records may be exempt pursuant to 5
U.S.C. 552a (k)(1) through (k)(7) from subsections (c)(3), (d), (e)(1),
(e)(4)(G) and (H), and (f).
(iii) Authority: 5 U.S.C. 552a(k)(1) through (k)(7).
(iv) Reasons: (A) From subsection (c)(3) because the release of the
disclosure accounting could alert the subject of an investigation of an
actual or potential criminal, civil, or regulatory violation to the
existence of the investigation and the fact that they are subjects of
the investigation. It could permit the subject of an investigation or
matter under investigation to obtain valuable information concerning the
nature of that investigation which will present a serious impediment to
law enforcement.
(B) From subsection (d) because access to the records contained in
this system would inform the subject of an investigation of the
existence of that investigation, provide the subject of the
investigation with information that might enable him to avoid detection
of apprehension, and would present a serious impediment to law
enforcement.
(C) From subsection (e)(1) because in the course of criminal
investigations information is often obtained concerning the violation of
laws or civil obligations of others not relating to active case or
matter. In the interest of effective law enforcement, it is necessary
that this information be retained since it can aid in establishing
patterns of activity and provide valuable leads for other agencies and
future cases that may be brought.
(D) From subsections (e)(4)(G) and (H) because this system of
records is exempt from individual access pursuant to subsections (k)(2)
of the Privacy Act of 1974.
(E) From subsection (f) because this system of records has been
exempted from the access provisions of subsection (d).
(19) System identifier: A0340-21 TAPC
(i) System name: Privacy Case Files.
(ii) Exemption: During the processing of a Privacy Act request
(which may include access requests, amendment requests, and requests for
review for initial denials of such requests), exempt materials from
other systems of records may in turn become part of the case record in
this system. To the extent that copies of exempt records from those
`other' systems of records are entered into this system, the Department
of the Army hereby claims the same exemptions for the records from those
`other' systems that are entered into this system, as claimed for the
original primary system of which they are a part.
(iii) Authority: 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), (k)(3),
(k)(4), (k)(5), (k)(6), and (k)(7).
(iv) Records are only exempt from pertinent provisions of 5 U.S.C.
552a to the extent such provisions have been identified and an exemption
claimed for the original record and the purposes underlying the
exemption for the original record still pertain to the record which is
now contained in this system of records. In general, the exemptions were
claimed in order to protect properly classified information relating to
national defense and foreign policy, to avoid interference during the
conduct of criminal, civil, or administrative actions or investigations,
to ensure protective services provided the President and others are not
compromised, to protect the identity of confidential sources incident to
Federal employment, military service, contract, and security clearance
determinations, and
[[Page 52]]
to preserve the confidentiality and integrity of Federal evaluation
materials. The exemption rule for the original records will identify the
specific reasons why the records are exempt from specific provisions of
5 U.S.C. 552a.
(20) [Reserved]
(21) A0351-12DAPE.
(i) System name: Applicants/Students, U.S. Military Academy Prep
School.
(ii) Exemption: All portions of this system of records which fall
within the scope of 5 U.S.C. 552a(k)(5) and (k)(7) may be exempt from
the following provision of 5 U.S.C. 552a(d).
(iii) Authority: 5 U.S.C. 552a(k)(5) and (k)(7).
(iv) Reasons: It is imperative that the confidential nature of
evaluation material on individuals, furnished to the US Military Academy
Preparatory School under an express promise of confidentiality, be
maintained to ensure the candid presentation of information necessary in
determinations involving admission to or retention at the United States
Military Academy and suitability for commissioned military service.
(22) A0351-17aUSMA.
(i) System name: U.S. Military Academy Candidate Files.
(ii) Exemption: All portions of this system of records which fall
within the scope of 5 U.S.C. 552a(k)(5), (k)(6), or (k)(7) may be exempt
from the provisions of 5 U.S.C. 552a(d).
(iii) Authority: 5 U.S.C. 552a(k)(5), (k)(6) and (k)(7).
(iv) Reasons: (A) From subsection (d) because access might reveal
investigatory and testing techniques. The exemption from access
necessarily includes exemption from amendment, certain agency
requirements relating to access and amendment of records, and civil
liability predicated upon agency compliance with those specific
provisions of the Privacy Act.
(B) Exemption is necessary to protect the identity of individuals
who furnished information to the United States Military Academy which is
used in determining suitability, eligibility, or qualifications for
military service and which was provided under an express promise of
confidentiality.
(C) Exemption is needed for the portion of records compiled within
the Academy which pertain to testing or examination material used to
rate individual qualifications, the disclosure of which would compromise
the objectivity or fairness of the testing or examination process.
(D) Exemption is required for evaluation material used by the
Academy in determining potential for promotion in the Armed Services, to
protect the identity of a source who furnished information to the
Academy under an express promise of confidentiality.
(23) A0351-17bUSMA.
(i) System name: U.S. Military Academy Personnel Cadet Records.
(ii) Exemption: All portions of this system of records which fall
within the scope of 5 U.S.C. 552a(k)(5) or (k)(7) may be exempt from the
provisions of 5 U.S.C. 552a(d).
(iii) Authority: 5 U.S.C. 552a(k)(5) and (k)(7).
(iv) Reasons: It is imperative that the confidential nature of
evaluation and investigatory material on candidates, cadets, and
graduates, furnished to the United States Military Academy under promise
of confidentiality be maintained to insure the candid presentation of
information necessary in determinations involving admissions to the
Military Academy and suitability for commissioned service and future
promotion.
(24) A0380-13DAMO.
(i) System name: Local Criminal Intelligence Files.
(ii) Exemption: All portions of this system of records which fall
within the scope of 5 U.S.C. 552a(j)(2) may be exempt from the
provisions of 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(2), (e)(3),
(e)(4)(G), (e)(4)(H), (e)(8), (f), and (g).
(iii) Authority: 5 U.S.C. 552a(j)(2).
(iv) Reasons: (A) From subsections (e)(4)(G), (e)(4)(H), (f), and
(g) because granting individuals access to information collected and
maintained by this component relating to the enforcement of laws could
interfere with proper investigations and the orderly administration of
justice. Disclosure of this information could result in the concealment,
alteration or destruction of evidence, the identification of offenders
or
[[Page 53]]
alleged offenders, nature and disposition of charges; and jeopardize the
safety and well-being of informants, witnesses and their families, and
law enforcement personnel and their families. Disclosure of this
information could also reveal and render ineffectual investigative
techniques, sources and methods used by this component and could result
in the invasion of the privacy of individuals only incidentally related
to an investigation. Exemption from access necessarily includes
exemption from the other requirements.
(B) From subsection (c)(3) because the release of accounting of
disclosure would place the subject of an investigation on notice that he
is under investigation and provide him with significant information
concerning the nature of the investigation, thus resulting in a serious
impediment to law enforcement investigations.
(C) From subsection (e)(2) because, in a criminal or other law
enforcement investigation, the requirement that information be collected
to the greatest extent practicable from the subject individual would
alert the subject as to the nature or existence of the investigation and
thereby present a serious impediment to effective law enforcement.
(D) From subsection (e)(3) because compliance would constitute a
serious impediment to law enforcement in that it could compromise the
existence of a confidential investigation or reveal the identity of
witnesses or confidential informants.
(E) From subsection (e)(8) because compliance with this provision
would provide an impediment to law enforcement by interfering with the
ability to issue warrants or subpoenas and by revealing investigative
techniques, procedures or evidence.
(25) A0380-67DAMI.
(i) System name: Personnel Security Clearance Information Files.
(ii) Exemption: All portions of this system of records which fall
within the scope of 5 U.S.C. 552a(k)(1), (k)(2), or (k)(5) may be exempt
from the provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G),
(e)(4)(H), and (e)(4)(I).
(iii) Authority: 5 U.S.C. 552a(k)(1), (k)(2), or (k)(5).
(iv) Reasons: The material contained in this record system contains
data concerning sensitive sources and operational methods whose
dissemination must be strictly controlled because of national security
intelligence considerations. Disclosure of documents or the disclosure
accounting record may compromise the effectiveness of the operation, and
negate specialized techniques used to support intelligence or criminal
investigative programs, or otherwise interfere with the orderly conduct
of intelligence operations or criminal investigations.
(26) A0381-20bDAMI.
(i) System name: Counterintelligence/Security Files.
(ii) Exemption: All portions of this system of records which fall
within the scope of 5 U.S.C. 552a(k)(1), (k)(2), and (k)(5) may be
exempt from the provisions of 5 U.S.C. 552a(c)(3), (d)(1) through
(d)(5), (e)(1), (e)(4)(G), (e)(4)(H), and (e)(4)(I), and (f).
(iii) Authority: 5 U.S.C. 552a(k)(1), (k)(2), and (k)(5).
(iv) Reasons: (A) From subsection (c)(3) because disclosing the
agencies to which information from this system has been released could
inform the subject of an investigation of an actual or potential
criminal violation, or intelligence operation or investigation; or the
existence of that investigation or operation; of the nature and scope of
the information and evidence obtained as to his/her activities or of the
identify of confidential sources, witnesses, and intelligence personnel
and could provide information to enable the subject to avoid detection
or apprehension. Granting access to such information could seriously
impede or compromise an investigation; endanger the physical safety of
confidential sources, witnesses, intelligence personnel, and their
families; lead to the improper influencing of witnesses; the destruction
of evidence or the fabrication of testimony and disclose investigative
techniques and procedures. In addition, granting access to such
information could disclose classified and sensitive sources,
information, and operational methods and could constitute an unwarranted
invasion of the personal privacy of others.
[[Page 54]]
(B) From subsection (d)(1) through (d)(5) because granting access to
records in this system of records could inform the subject of a
counterintelligence operation or investigation of an actual or potential
criminal violation or the existence of that operation or investigation;
of the nature and scope of the information and evidence obtained as to
his/her activities; or of the identity of confidential sources,
witnesses and intelligence personnel and could provide information to
enable the subject to avoid detection or apprehension. Granting access
to such information could seriously impede or compromise an operation or
investigation; endanger the physical safety of confidential sources,
witnesses, intelligence personnel and their families; lead to the
improper influencing of witnesses; the destruction of evidence or the
fabrication of testimony and disclose investigative techniques and
procedures. In addition, the agency is required to protect the
confidentiality of sources who furnished information to the Government
under an expressed promise of confidentiality or, prior to September 27,
1975, under an implied promise that the identity of the source would be
held in confidence. This confidentiality is needed to maintain the
Government's continued access to information from persons who otherwise
might refuse to give it.
(C) From subsection (e)(1) because it is not always possible to
detect the relevance or necessity of specific information in the early
stages of an investigation or operation. Relevance and necessity are
often questions of judgement and timing, an it is only after the
information is evaluated that the relevance and necessity of such
information can be established. In addition, during the course of the
investigation or operation, the investigator may obtain information
which is incidental to the main purpose of the investigative
jurisdiction of another agency. Such information cannot readily be
segregated. Furthermore, during the course of the investigation or
operation, the investigator may obtain information concerning violations
of laws other than those which are within the scope of his/her
jurisdiction. In the interest of effective intelligence operations and
law enforcement, military intelligence agents should retain information,
since it an aid in establishing patterns of criminal or intelligence
activity and provide valuable leads for other law enforcement or
intelligence agencies.
(D) From subsection (e)(4)(G), (e)(4)(H), and (f) because this
system or records is being exempt from subsections (d) of the Act,
concerning access to records. These requirements are inapplicable to the
extent that this system of records will be exempt from subsections
(d)(1) through (d)(5) of the Act. Although the system would be exempt
from these requirements, the Deputy Chief of Staff for Intelligence has
published information concerning its notification, access, and contest
procedures because under certain circumstances, the Deputy Chief of
Staff for Intelligence could decide it is appropriate for an individual
to have access to all or a portion os his/her records in this system of
records.
(E) From subsection (e)(4)(I) because it is necessary to protect the
confidentiality of the sources of information, to protect the privacy
and physical safety of confidential sources and witnesses and to avoid
the disclosure of investigative techniques and procedures. Although the
system will be exempt from this requirement, the Deputy Chief of Staff
for Intelligence has published such a notice in broad, generic terms.
(27) A0381-100aDAMI.
(i) System name: Intelligence/Counterintelligence Source Files.
(ii) Exemption: All portions of this system of records that fall
within the scope of 5 U.S.C. 552a(k)(1), (k)(2), or (k)(5) may be exempt
from the provisions of 5 U.S.C. 552a(c)(3), (d)(1) through (d)(5),
(e)(1), (e)(4)(G), (e)(4)(H), and (e)(4)(I), and (f).
(iii) Authority: 5 U.S.C. 552a(k)(1), (k)(2), and (k)(5).
(iv) Reasons: (A) From subsection (c)(3)because disclosing the
agencies to which information from this system has been released could
reveal the subject's involvement in a sensitive intelligence or
counterintelligence operation or investigation of an actual or potential
criminal violation, or intelligence operation or investigation; or the
existence of that investigation or
[[Page 55]]
operation. Granting access to such information could seriously impede or
compromise an investigation or operation; endanger the physical safety
of participants and their families, confidential sources, witnesses,
intelligence personnel, and their families; and lead to the improper
influencing of witnesses; the destruction of evidence or the fabrication
of testimony and disclose investigative techniques and procedures.
(B) From subsection (d)(1) through (d)(5) because granting access to
records could inform the subject of an intelligence or
counterintelligence operation or investigation of an actual or potential
criminal violation or the existence of that operation or investigation;
or the nature and scope of the information and evidence obtained, or of
the identity of confidential sources, witnesses and intelligence
personnel. Granting access to such information could seriously impede or
compromise an operation or investigation; endanger the physical safety
of confidential sources, witnesses, intelligence personnel and their
families; lead to the improper influencing of witnesses; the destruction
of evidence or the fabrication of testimony; disclose investigative
techniques and procedures; invade the privacy of those individuals
involved in intelligence programs and their families; compromise and
thus negate specialized techniques used to support intelligence
programs; and interfere with and negate the orderly conduct of
intelligence and counterintelligence operations and investigations. In
addition, the agency is required to protect the confidentiality of
sources who furnished information to the Government under an expressed
promise of confidentiality or, prior to September 27, 1975, under an
implied promise that the identity of the source would be held in
confidence. This confidentiality is needed to maintain the Government's
continued access to information from persons who otherwise might refuse
to give it.
(C) From subsection (e)(1) because it is not always possible to
detect the relevance or necessity of specific information in the early
stages of an investigation or operation. Relevance and necessity are
often questions of judgment and timing, and it is only after the
information is evaluated that the relevance and necessity of such
information can be established. In addition, during the course of the
investigation or operation, the investigator or operative may obtain
information which is incidental to the main purpose of the investigative
jurisdiction of another agency. Such information cannot readily be
segregated. Furthermore, during the course of the investigation or
operation, the investigator may obtain information concerning violations
of law other than those which are within the scope of his/her
jurisdiction. In the interest of effective intelligence operations and
law enforcement, military intelligence agents should retain information,
since it is an aid in establishing patterns of criminal or intelligence
activity and provides valuable leads for other law enforcement or
intelligence agencies.
(D) From subsection (e)(4)(G), (e)(4)(H), and (f) because this
system of records is being exempt from subsection (d) of the Act
concerning access to records. These requirements are inapplicable to the
extent that this system of records will be exempt from subsections
(d)(1) through (d)(5) of the Act. Although the system would be exempt
from these requirements, the Deputy Chief of Staff for Intelligence has
published information concerning its notification, access, and contest
procedures because under certain circumstances, the Deputy Chief of
staff for Intelligence could decide it is appropriate for an individual
to have access to all or a portion of his/her records in this system of
records.
(E) From subsection (e)(4)(I) because it is necessary to protect the
confidentiality of sources of information, to protect the privacy and
physical safety of participants and their families, confidential
sources, and witnesses and to avoid the disclosure of specialized
techniques and procedures. Although the system will be exempt from this
requirement, the Deputy Chief of Staff for Intelligence has published
such a notice in broad generic terms.
(28) A0381-100bDAMI
(i) System name: Technical Surveillance Index.
[[Page 56]]
(ii) Exemption: All portions of this system of records which fall
within the scope of 5 U.S.C. 552a(k)(1), (k)(2), and (k)(5) may be
exempt from the provisions of 5 U.S.C. 552a(c)(3), (d)(1) through
(d)(5), (e)(1), (e)(4)(G), (e)(4)(H), and (e)(4)(I).
(iii) Authority: 5 U.S.C. 552a(k)(1), (k)(2) or (k)(5).
(iv) Reasons: (A) From subsection (c)(3) because disclosing the
identities of agencies to which information from this system has been
released could inform the subject of an investigation of an actual or
potential criminal violation or intelligence operation; of the existence
of that investigation or operation; of the nature and scope of the
information and evidence obtained as to his/her activities or of the
identify of confidential sources, witnesses, and intelligence or law
enforcement personnel and could provide information to enable the
subject to avoid detection or apprehension. Granting access to such
information could seriously impede or compromise an investigation;
endanger the physical safety of confidential sources, witnesses,
intelligence or law enforcement personnel, and their families; lead to
the improper influencing of witnesses; the destruction of evidence or
the fabrication of testimony and disclose investigative techniques and
procedures. In addition, granting access to such information could
disclose classified and sensitive sources and operational methods and
could constitute an unwarranted invasion of the personal privacy of
others.
(B) From subsection (d)(1) through (d)(5) because granting access to
records in this system of records could inform the subject of an
investigation of an actual or potential criminal violation; of the
existence of that investigation; of the nature and scope of the
information and evidence obtained as to his/her activities; or of the
identity of confidential sources, witnesses and intelligence or law
enforcement personnel and could provide information to enable the
subject to avoid detection or apprehension. Granting access to such
information could seriously impede or compromise an investigation;
endanger the physical safety of confidential sources, witnesses,
intelligence or law enforcement personnel and their families; lead to
the improper influencing of witnesses; the destruction of evidence or
the fabrication of testimony and disclose investigative techniques and
procedures. In addition, granting access to such information could
disclose classified, sensitive sources and operational methods and could
constitute an unwarranted invasion of the personal privacy of others.
(C) From subsection (e)(1) because it is not always possible to
detect the relevance or necessity of specific information in the early
stages of an investigation or operation. Relevance and necessity are
often questions of judgment and timing, and it is only after the
information is evaluated that the relevance and necessity of such
information can be established. In addition, during the course of the
investigation or operation, the investigator may obtain information
which is incidental to the main purpose of the investigative
jurisdiction of another agency. Such information cannot readily be
segregated. Furthermore, during the course of the investigation or
operation, the investigator may obtain information concerning violation
of laws other than those which are within the scope of his/her
jurisdiction. In the interest of effective intelligence operations and
law enforcement, criminal law enforcement investigators and military
intelligence agents should retain this information, since it can aid in
establishing patterns of criminal or intelligence activity and can
provide valuable leads for other law enforcement or intelligence
agencies.
(D) From subsections (e)(4)(G) and (e)(4)(H) because this system of
records is being exempt from subsections (d) of the Act, concerning
access to records, these requirements are inapplicable to the extent
that this system of records will be exempt from subsections (d)(1)
through (d)(5) of the Act. Although the system would be exempt from
these requirements, the Deputy Chief of Staff for Intelligence and the
U.S. Army Criminal Investigations Command have published information
concerning its notification, access, and contest procedures for their
respective areas because, under certain circumstances,
[[Page 57]]
the Deputy Chief of Staff for Intelligence or the U.S. Army Criminal
Investigations Command could decide it is appropriate for an individual
to have access to all or a portion of his/her records in this system of
records.
(E) From subsection (e)(4)(I) because it is necessary to protect the
confidentiality of the sources of information, to protect the privacy
and physical safety of confidential sources and witnesses and to avoid
the disclosure of investigative techniques and procedures. Although the
system will be exempt from this requirement, the Deputy Chief of Staff
for Intelligence and the U.S. Army Criminal Investigations Command have
published such a notice in broad, generic terms.
(29) System identifier: A0601-141 DASG.
(i) System name: Applications for Appointment to Army Medical
Department.
(ii) Exemption: Investigatory material compiled solely for the
purpose of determining suitability, eligibility, or qualifications for
federal civilian employment, military service, federal contracts, or
access to classified information may be exempt pursuant to 5 U.S.C.
552a(k)(5), but only to the extent that such material would reveal the
identity of a confidential source. Therefore, portions of the system of
records may be exempt pursuant to 5 U.S.C. 552a(d).
(iii) Authority: 5 U.S.C. 552a(k)(5).
(iv) Reasons: It is imperative that the confidential nature of
evaluations and investigatory material on applicants applying for
enlistment furnished to the US Army Recruiting Command under an express
promise of confidentiality, be maintained to insure the candid
presentation of information necessary in determinations of enlistment
and suitability for enlistment into the United States Army.
(30) A0601-210aUSAREC.
(i) System name: Enlisted Eligibility Files.
(ii) Exemption: All portions of this system of records which fall
within the scope of 5 U.S.C. 552a(k)(5) may be exempt from the
provisions of 5 U.S.C. 552a(d).
(iii) Authority: 5 U.S.C. 552a(k)(5).
(iv) Reasons: It is imperative that the confidential nature of
evaluations and investigatory material on applicants applying for
enlistment furnished to the US Army Recruiting Command under an express
promise of confidentiality, be maintained to insure the candid
presentation of information necessary in determinations of enlistment
and suitability for enlistment into the United States Army.
(31) System identifier: A0601-222 USMEPCOM
(i) System name: Armed Services Military Accession Testing
(ii) Exemption: Testing or examination material used solely to
determine individual qualifications for appointment or promotion in the
Federal service or military service may be exempt pursuant to 5 U.S.C.
552a(k)(6), if the disclosure would compromise the objectivity or
fairness of the test or examination process. Therefore, portions of the
system of records may be exempt pursuant to 5 U.S.C. 552a(d).
(iii) Authority: 5 U.S.C. 552a(k)(6).
(iv) Reasons: An exemption is required for those portions of the
Skill Qualification Test system pertaining to individual item responses
and scoring keys to prelude compromise of the test and to insure
fairness and objectivity of the evaluation system.
(32) System identifier: A0608-18 DASG.
(i) System name: Army Family Advocacy Program (FAP) Files
(ii) Exemptions: (A) Investigatory material compiled for law
enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2).
However, if an individual is denied any right, privilege, or benefit for
which he would otherwise be entitled by Federal law or for which he
would otherwise be eligible, as a result of the maintenance of such
information, the individual will be provided access to such information
except to the extent that disclosure would reveal the identity of a
confidential source.
(B) Investigative material compiled solely for the purpose of
determining suitability, eligibility, or qualifications for federal
civilian employment, military service, federal contracts, or access to
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5),
but only to the extent that such material would reveal the identity of a
confidential source.
[[Page 58]]
(C) Therefore, portions of the system of records may be exempt
pursuant to 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H), and (I)
and (f).
(iii) Authority: 5 U.S.C. 552a(k)(2) and (k)(5).
(iv) Reason: (A) From subsection (c)(3) because the release of the
disclosure accounting, for disclosures pursuant to the routine uses
published for this system, would permit the subject of a criminal
investigation or matter under investigation to obtain valuable
information concerning the nature of that investigation which will
present a serious impediment to law enforcement.
(B) From subsection (d) because access to the records contained in
this system would inform the subject of a criminal investigation of the
existence of that investigation, provide the subject of the
investigation with information that might enable him to avoid detection
or apprehension, and would present a serious impediment to law
enforcement.
(C) From subsection (e)(1) because in the course of criminal
investigations, information is often obtained concerning the violation
of laws or civil obligations of others not relating to an active case or
matter. In the interests of effective law enforcement, it is necessary
that this valuable information be retained since it can aid in
establishing patterns of activity and provide valuable leads for other
agencies and future cases that may be brought.
(D) From subsections (e)(4)(G) and (H) because this system of
records is exempt from individual access pursuant to subsections (k)(2)
and (k)(5) of the Privacy Act of 1974.
(E) From subsection (e)(4)(I) because the identity of specific
sources must be withheld in order to protect the confidentiality of the
sources of criminal and other law enforcement information. This
exemption is further necessary to protect the privacy and physical
safety of witnesses and informants.
(F) From subsection (f) because this system of records has been
exempted from the access provisions of subsection (d).
(G) Consistent with the legislative purpose of the Privacy Act of
1974, the Department of the Army will grant access to nonexempt material
in the records being maintained. Disclosure will be governed by the
Department of the Army's Privacy Regulation, but will be limited to the
extent that the identity of confidential sources will not be
compromised; subjects of an investigation of an actual or potential
criminal violation will not be alerted to the investigation; the
physical safety of witnesses, informants and law enforcement personnel
will not be endangered, the privacy of third parties will not be
violated; and that the disclosure would not otherwise impede effective
law enforcement. Whenever possible, information of the above nature will
be deleted from the requested documents and the balance made available.
The controlling principle behind this limited access is to allow
disclosures except those indicated above. The decisions to release
information from these systems will be made on a case-by-case basis.
(33) A0614-115DAMI.
(i) System name: Department of the Army Operational Support
Activities.
(ii) Exemption: All portions of this system of records that fall
within the scope of 5 U.S.C. 552a(k)(1), (k)(2), or (k)(5) may be exempt
from the provisions of 5 U.S.C. 552a(c)(3), (d)(1) through (d)(5),
(e)(1), (e)(4)(G), (e)(4)(H), and (e)(4)(I), and (f).
(iii) Authority: 5 U.S.C. 552a(k)(1), (k)(2), and (k)(5).
(iv) Reasons: (A) From subsection (c)(3)because disclosing the
agencies to which information from this system has been released could
reveal the subject's involvement in a sensitive intelligence or
counterintelligence operation or investigation of an actual or potential
criminal violation, or intelligence operation or investigation; or the
existence of that investigation or operation. Granting access to such
information could seriously impede or compromise an investigation or
operation; endanger the physical safety of participants and their
families, confidential sources, witnesses, intelligence personnel, and
their families; and lead to the improper influencing of witnesses; the
destruction of evidence or the fabrication of testimony and disclose
investigative techniques and procedures.
[[Page 59]]
(B) From subsection (d)(1) through (d)(5) because granting access to
records could inform the subject of an intelligence or
counterintelligence operation or investigation of an actual or potential
criminal violation or the existence of that operation or investigation;
of the nature and scope of the information and evidence obtained, or of
the identity of confidential sources, witnesses and intelligence
personnel. Granting access to such information could seriously impede or
compromise an operation or investigation; endanger the physical safety
of confidential sources, witnesses, intelligence personnel and their
families; lead to the improper influencing of witnesses; the destruction
of evidence or the fabrication of testimony; disclose investigative
techniques and procedures; invade the privacy of those individuals
involved in intelligence programs and their families; compromise and
thus negate specialized techniques used to support intelligence
programs; and interfere with and negate the orderly conduct of
intelligence and counterintelligence operations and investigations. In
addition, the agency is required to protect the confidentiality of
sources who furnished information to the Government under an expressed
promise of confidentiality or, prior to September 27, 1975, under an
implied promise that the identity of the source would be held in
confidence. This confidentiality is needed to maintain the Government's
continued access to information from persons who otherwise might refuse
to give it.
(C) From subsection (e)(1) because it is not always possible to
detect the relevance of specific information in the early stages of an
investigation or operation. Relevance and necessity are often questions
of judgment and timing, and it is only after the information is
evaluated that the relevance and necessity of such information can be
established. In addition, during the course of the investigation or
operation, the investigator or operative may obtain information which is
incidental to the main purpose of the investigative jurisdiction of
another agency. Such information cannot readily be segregated.
Furthermore, during the course of the investigation or operation, the
investigator may obtain information concerning violations of law other
than those which are within the scope of his/her jurisdiction. In the
interest of effective intelligence operations and law enforcement,
military intelligence agents should retain information, since it is an
aid in establishing patterns of criminal or intelligence activity and
provides valuable leads for other law enforcement or intelligence
agencies.
(D) From subsection (e)(4)(G), (e)(4)(H), and (f) because this
system or records is being exempt from subsections (d) of the Act,
concerning access to records. These requirements are inapplicable to the
extent that this system of records will be exempt from subsections
(d)(1) through (d)(5) of the Act. Although the system would be exempt
from these requirements, the Deputy Chief of Staff for Intelligence has
published information concerning its notification, access, and contest
procedures because under certain circumstances, the Deputy Chief of
Staff for Intelligence could decide it is appropriate for an individual
to have access to all or a portion os his/her records in this system of
records.
(E) From subsection (e)(4)(I) because it is necessary to protect the
confidentiality of sources of information, to protectthe privacy and
physical safety of participants and their families, confidential
sources, and witnesses and to avoid the disclosure of specialized
techniques and procedures. Although the system will be exempt from this
requirement, the Deputy Chief of Staff for Intelligence has published
such a notice in broad, generic terms.
(f) Exempt OPM records. Three Office of Personnel Management
systems of records apply to Army employees, except for nonappropriated
fund employees. These systems, the specific exemptions determined to be
necessary and proper, the records exempted, provisions of the Privacy
Act from which exempt, and justification are set forth below:
(1) Personnel Investigations Records (OPM/CENTRAL-9). All material
and information in these records that meets the criteria stated in 5
U.S.C. 552a(k)(1), (k)(2), (k)(3), (k)(5), and (k)(6) is exempt from the
requirements
[[Page 60]]
of 5 U.S.C. 552a(c)(3) and (d). These provisions of the Privacy Act
relate to making accountings of disclosures available to the data
subject and access to and amendment of records. The specific
applicability of the exemptions to this system and the reasons for the
exemptions are as follows:
(i) Personnel investigations may obtain from another Federal agency
properly classified information which pertains to national defense and
foreign policy. Application of exemption (k)(1) may be necessary to
preclude the data subject's access to and amendment of such classified
information under 5 U.S.C. 552a(d).
(ii) Personnel investigations may contain investigatory material
compiled for law enforcement purposes other than material within the
scope of 5 U.S.C. 552a(j)(2), e.g., investigations into the
administration of the merit system. Application of exemption (k)(2) may
be necessary to preclude the data subject's access to or amendment of
such records, under 552a(c)(3) and (d).
(iii) Personnel investigations may obtain from another Federal
agency information that relates to providing protective services to the
President of the United States or other individuals pursuant to section
3056 of title 18. Application of exemption (k)(3) may be necessary to
preclude the data subject's access to and amendment of such records
under 5 U.S.C. 552a(d).
(iv) All information about individuals in these records that meets
the criteria stated in 5 U.S.C. 552a(k)(5) is exempt from the
requirements of 5 U.S.C. 552a(c)(3) and (4). These provisions of the
Privacy Act relate to making accountings of disclosures available to the
data subject, and access to and amendment of records. These exemptions
are claimed because this system contains investigatory material compiled
solely for the purpose of determining suitability, eligibility, and
qualifications for Federal civilian employment. To the extent that the
disclosure of material would reveal the identity of source who furnished
information to the Government under an express promise that the identity
of the source would held in confidence, or, prior to September 27, 1975,
under an implied promise that the identity of the source would be held
in confidence, the application of exemption (k)(5) will be required to
honor such a promise should the data subject request access to or
amendment of the record, or access to the accounting of disclosures of
the record.
(v) All material and information in the records that meets the
criteria stated in 5 U.S.C. 552a(k)(6) is exempt from the requirements
of 5 U.S.C. 552a(d), relating to access to and amendment of records by
the data subject. This exemption is claimed because portions of this
system relate to testing or examination materials used solely to
determine individual qualifications for appointment or promotion in the
Federal service. Access to or amendment of this information by the data
subject would compromise the objectivity and fairness of the testing or
exemption process.
(2) Recruiting, Examining, and Placement Records (OPM/GOVT-5).
(i) All information about individuals in these records that meets
the criteria stated in 5 U.S.C. 552a(k)(5) is exempt from the
requirements of 5 U.S.C. 552a(c)(3) and (d). These provisions of the
Privacy Act relate to making accountings of disclosures available to the
data subject and access to and amendment of records. These exemptions
are claimed because this system contains investigative material compiled
solely for the purpose of determining the appropriateness of a request
for approval of an objection to an eligible's qualification for
employment in the Federal service. To the extent that the disclosure of
such material would reveal the identity of a source who furnished
information to the Government under an express promise that the identity
of the source would be held in confidence, the application of exemption
(k)(5) will be required to honor such a promise should the data subject
request access to the accounting of disclosures of the record.
(ii) All material and information in these records that meets the
criteria stated in 5 U.S.C. 552a(k)(6) are exempt from the requirements
of 5 U.S.C. 552a(d), relating to access to and amendment of records by
the subject. The exemption is claimed because portions of this system
relate to testing or
[[Page 61]]
examination materials used solely to determine individual qualification
for appointment or promotion in the Federal service and access to or
amendment of this information by the data subject would compromise the
objectivity and fairness of the testing or examining process.
(3) Personnel Research Test Validation Records (OPM/GOVT-6). All
material and information in these records that meets the criteria stated
in 5 U.S.C. 552a(k)(6) is exempt from the requirements of 5 U.S.C.
552a(d), relating to access to and amendment of the records by the data
subject. This exemption is claimed because portions of this system
relate to testing or examination materials used solely to determine
individual qualifications for appointment or promotion in the Federal
service. Access to or amendment of this information by the data subject
would compromise the objectivity and fairness of the testing or
examination process.
[61 FR 43657, Aug. 26, 1996, as amended at 62 FR 48480, Sept. 16, 1997;
64 FR 45877, Aug. 23, 1999; 65 FR 6895, Feb. 11, 2000; 66 FR 55876, Nov.
5, 2001; 67 FR 17618, Apr. 11, 2002]
Appendix A to Part 505--Example of System of Records Notice
A0319.01DACA
System name:
Out-of-Service Accounts Receivables.
System location:
US Army Finance and Accounting Center, Ft Benjamin Harrison, IN
46249.
Categories of individuals covered by the system:
Separated and retired military/civilian personnel and others
indebted to the US Army.
Categories of records in the system:
Records of current and former military members and civilian
employees' pay accounts showing entitlements, deductions, payments made,
and any indebtedness resulting from deductions and payments exceeding
entitlements. These records include, but are not limited to:
a. Individual military pay records, substantiating documents such as
military pay orders, pay adjustment authorizations, military master pay
account printouts from the Joint Uniform Military Pay System (JUMPS),
records of travel payments, financial record data folders, miscellaneous
vouchers, personal financial records, credit reports, promissory notes,
individual financial statements, and correspondence;
b. Application for waiver of erroneous payments or for remission of
indebtedness with supporting documents, including, but not limited to
statements of financial status (personal income and expenses),
statements of commanders and/or accounting and finance officers,
correspondence with members and employees;
c. Claims of individuals requesting additional payments for service
rendered with supporting documents including, but not limited to, time
and attendance reports, leave and earnings statements, travel orders
and/or vouchers, and correspondence with members and employees;
d. Delinquent accounts receivable from field accounting and finance
officers including, but not limited to, returned checks, medical
services billings, collection records, and summaries of the Army
Criminal Investigations Command and/or Federal Bureau of Investigation
reports:
e. Reports from probate courts regarding estates of deceased
debtors;
f. Reports from bankruptcy courts regarding claims of the United
States against debtors.
Authority for maintenance of the system:
31 U.S.C., section 3711; 10 U.S.C., section 2774; and 12 U.S.C.,
section 1715.
Purpose:
To process, monitor, and post-audit accounts receivable, to
administer the Federal Claims Collection Act, and to answer inquiries
pertaining thereto.
Routine users of records maintained in the system, including categories
of users and the purposes of such uses:
Information may be disclosed to:
US Department of Justice/US Attorneys: For legal action and/or final
disposition of the debt claims. The litigation briefs (comprehensive,
written referral recommendations) will restructure the entire scope of
the collection cases.
Internal Revenue Service: To obtain locator status for delinquent
accounts receivables; (Automated controls exist to preclude redisclosure
of solicited IRS address data); and/or to report write-off amounts as
taxable income as pertains to amounts compromised and accounts barred
from litigation due to age.
Private Collection Agencies: For collection action when the Army has
exhausted its internal collection efforts.
[[Page 62]]
Disclosure to Consumer Reporting Agencies:
Disclosures pursuant to 5 U.S.C. 552a(b)(12) may be made to
``consumer reporting agencies'' as defined in the Fair Credit Reporting
Act (15 U.S.C. 1681a(f) or the Federal Claims Collection Act of 1966 (31
U.S.C. 3701(a)(3)) when an individual is responsible for a debt to the
US Army, provided the debt has been validated, is overdue, and the
debtor has been advised of the disclosure and his rights to dispute,
appeal or review the claim; and/or whenever a financial status report is
requested for use in the administration of the Federal Claims Collection
Act. Claims of the United States may be compromised, terminated or
suspended when warranted by information collected.
Policies and practices for storing, retrieving, accessing, retaining,
and disposing of records in the system:
Storage:
Paper records in collection file folders and bulk storage; card
files, computer magnetic tapes and printouts; microfiche.
Retrievability:
By Social Security Number, name, and substantiating document number;
conventional indexing is used to retrieve data.
Safeguards:
The US Army Finance and Accounting Center employs security guards.
An employee badge and visitor registration system is in effect. Hard
copy records are maintained in areas accessible only to authorized
personnel who are properly screened, cleared and trained. Computerized
records are accessed by custodian of the records system and by persons
responsible for servicing the record system in the performance of their
official duties. Certifying finance and accounting officers of debts
have access to debt information to confirm if the debt is valid and
collection action is to be continued. Computer equipment and files are
located in a separate secured area.
Retention and disposal:
Individual military pay records and accounts receivables are
converted to microfiche and retained for 6 years. Destruction is by
shredding. Retention periods for other records vary according to
category, but total retention does not exceed 56 years; these records
are sent to the Federal Records Center, General Services Administration
at Dayton, Ohio; destruction is by burning or salvage as waste paper.
System manager(s) and address:
Commander, US Army Finance and Accounting Center Indianapolis, IN
46249.
Notification procedure:
Individuals desiring to know whether this system of records contains
information about them should contact the System Manager, ATTN: FINCP-F,
furnishing full name, Social Security Number, and military status or
other information verifiable from the record itself.
Record access procedures:
Individuals seeking access to records in this system pertaining to
them should submit a written request as indicated in ``Notification
procedure'' and furnish information required therein.
Contesting record procedures:
The Army's rules for access to records and for contesting and
appealing initial determinations are contained in Army Regulation 340-21
(32 CFR part 505).
Record source categories:
Information is received from Department of Defense staff and field
installations, Social Security Administration, Treasury Department,
financial organizations, and automated system interface.
Systems exempted from certain provisions of the act:
None.
Appendix B to Part 505--Example of Report for New System of Records
Narrative Statement
1. System Identification and Name: A0404.02DAJA, Courts-Martial
Files.
2. Responsible Official: Mr. James D. Kemper, US Army Legal Services
Agency, Office of The Judge Advocate General, Room 204B, Nassif
Building, Falls Church, VA 22041.
3. Purpose of the System: Records of trial by court-martial are
necessary for the purpose of legal review and final action in court-
martial cases. After completion of appellate review, they protect each
accused against a subsequent trial for the same offense(s).
4. Authority for the System: Title 10 U.S.C., Chapter 47, Section
865 states that, in the case of a general court-martial or when sentence
that includes a bad conduct discharge is approved by the convening
authority in a special court-martial, the record will be sent to The
Judge Advocate General. All other special and summary court-martial
records will be reviewed by a Judge Advocate.
5. Number (or estimate) of individuals on whom records will be
maintained: Approximately 7,000,000.
6. Information on First Amendment Activities: The system contains no
information on First Amendment activities per se; however, the system
may include records of trial in which
[[Page 63]]
the charged misconduct was an activity arguably protected by the First
Amendment.
7. Measures to Assure Information Accuracy: In a trial by court-
martial, the accused has a unique opportunity to assure that his record
is accurate, relevant, timely, and complete as it is made. He has the
right to be present at trial, to be represented by counsel in general
and special courts-martial and to consult with counsel prior to a
summary courts-martial to review and challenge all information before it
is introduced into evidence, to cross-examine all witnesses against him,
to present evidence in his behalf, and in general and special courts-
martial, to review and comment upon the record of trial before the
convening authority's action.
8. Other Measures to Assure System Security: As courts-martial
records reflect criminal proceedings ordinarily open to the public,
copies are normally releasable to the public pursuant to the Freedom of
Information Act. However, access to the original records is limited to
authorized individuals. Security measures consist of standard physical
security devices and civilian and military guards.
9. Relationship to State/Local Government Activities: None.
10. Supporting Documentation: Proposed system notice and proposed
exemption rule are at Encl 1 and 2 respectively.
Appendix C to Part 505--Provisions of the Privacy Act From Which a
General or Specific Exemption May Be Claimed
------------------------------------------------------------------------
Exemption
--------------------------------------------- Section of the Privacy Act
(j)(2) (k)(l-7)
------------------------------------------------------------------------
No No (b)(1) Disclosures within
the Department of
Defense.
No No (2) Disclosures to the
public.
No No (3) Disclosures for a
``Routine Use.''
No No (4) Disclosures to the
Bureau of Census.
No No (5) Disclosures for
statistical research
and reporting.
No No (6) Disclosures to the
National Archives.
No No (7) Disclosures for law
enforcement purposes.
No No (8) Disclosures under
emergency
circumstances.
No No (9) Disclosures to the
Congress.
No No (10) Disclosures to the
General Accounting
Office.
No No (11) Disclosures
pursuant to court
orders.
No No (12) Disclosure to
consumer reporting
agencies.
No No (c)(1) Making disclosure
accountings.
No No (2) Retaining disclosure
accountings.
Yes Yes (c)(3) Making disclosure
accounting available to
the individual.
Yes No (c)(4) Informing prior
recipients of
corrections.
Yes Yes (d)(1) Individual access
to records.
Yes Yes (2) Amending records.
Yes Yes (3) Review of the
Component's refusal to
amend a record.
Yes Yes (4) Disclosure of
disputed information.
Yes Yes (5) Access to
information compiled in
anticipation of civil
action.
Yes Yes (e)(1) Restrictions on
collecting information.
Yes No (e)(2) Collecting directly
from the individual.
Yes No (3) Informing
individuals from whom
information is
requested.
No No (e)(4)(A) Describing the
name and location of the
system.
No No (B) Discribing
categories of
individuals.
No No (C) Describing
categories of records.
No No (D) Describing routine
uses.
No No (E) Describing records
management policies and
practices.
No No (F) Identifying
responsible officials.
Yes Yes (e)(4)(G) Procedures for
determining if a system
contains a record on an
individual.
Yes Yes (H) Procedures for
gaining access.
Yes Yes (I) Describing
categories of
information sources.
Yes No (e)(5) Standards of
accuracy.
No No (e)(6) Validating records
before disclosure.
No No (e)(7) Records of First
Amendment activities.
No No (e)(8) Notification of
disclosure under
compulsory legal process.
No No (e)(9) Rules of conduct.
No No (e)(10) Administrative,
technical and physical
safeguards.
No No (11) Notice for new and
revised routine uses.
Yes Yes (f)(1) Rules for
determining if an
individual is subject of
a record.
Yes Yes (f)(2) Rules for handling
access requests.
Yes Yes (f)(3) Rules for granting
access.
Yes Yes (f)(4) Rules for amending
records.
Yes Yes (f)(5) Rules regarding
fees.
Yes No (g)(1) Basis for civil
action.
Yes No (g)(2) Basis for judicial
review and remedies for
refusal to amend.
Yes No (g)(3) Basis for judicial
review and remedies for
denial of access.
Yes No (g)(4) Basis for judicial
review and remedies for
other failure to comply.
Yes No (g)(5) Jurisdiction and
time limits.
Yes No (h) Rights of legal
guardians.
No No (i)(1) Criminal penalties
for unauthorized
disclosure.
No No (2) Criminal penalites
for failure to publish.
No No (3) Criminal penalties
for obtaining records
under false pretenses.
Yes No (j) Rulemaking
requirement.
N/A No (j)(1) General exemption
for the Central
Intelligence Agency.
[[Page 64]]
N/A No (j)(2) General exemption
for criminal law
enforcement records.
Yes N/A (k)(1) Exemption for
classified material.
N/A N/A (k)(2) Exemption for law
enforcement material.
Yes N/A (k)(3) Exemption for
records pertaining to
Presidential protection.
Yes N/A (k)(4) Exemption for
statistical records.
Yes N/A (k)(5) Exemption for
investigatory material
compiled for determining
suitability for
employment or service.
Yes N/A (k)(6) Exemption for
testing or examination
material.
Yes N/A (k)(7) Exemption for
promotion evaluation
materials used by the
Armed Forces.
Yes No (l)(1) Records stored in
GSA records centers.
Yes No (l)(2) Records archived
before September 27,
1975.
Yes No (l)(3) Records archived on
or after September 27,
1975.
Yes No (m) Applicability to
government contractors.
Yes No (n) Mailing lists.
Yes No (o) Reports on new
systems.
Yes No (p) Annual report.
------------------------------------------------------------------------
Appendix D to Part 505--Glossary of Terms
Section I
Abbreviations
AAFES
Army and Air Force Exchange Service
AARA
Access and Amendment Refusal Authority
ACSIM
Assistant Chief of Staff for Information Management
DA
Department of the Army
DOD
Department of Defense
GAO
General Accounting Office
GSA
General Services Administration
JUMPS
Joint uniform military pay system
MACOM
Major Army command
MPMIS
Military Police management information system
NARS
National Archives and Records Service
NGB
National Guard Bureau
OMB
Office of Management and Budget
OPM
Office of Personnel Management
SSN
Social Security Number
TAG
The Adjutant General
TIG
The Inspector General
TJAG
The Judge Advocate General
USACIDC
U.S. Army Criminal Investigation Command
Section II
Terms
Access
The review of a record or obtaining a copy of a record or parts thereof
in a system of records.
Agency
The DOD is a single agency for the purpose of disclosing records subject
to The Privacy Act of 1974. For other purposes, including access,
amendment, appeals from denials of access or amendment, exempting
systems of records, and record-keeping for release to non-DOD agencies,
the DA is an agency.
Access and Amendment Refusal Authority
The Army Staff agency head or major Army commander designated sole
authority by this regulation to deny access to, or refuse amendment of,
records in his or her assigned area or functional specialization.
Confidential source
A person or organization that has furnished information to the Federal
Government under an express promise that its identity would be withheld,
or under an implied promise of such confidentiality if this implied
promise was made before September 27, 1975.
[[Page 65]]
Data subject
The individual about whom the Army is maintaining information in a
system of records.
Disclosure
The furnishing of information about an individual by any means, to an
organization, Government agency, or to an individual who is not the
subject of the record, the subject's designated agent or legal guardian.
Within the context of the Privacy Act and this regulation, this term
applies only to personal information that is a part of a system of
records.
Individual
A living citizen of the United States or an alien admitted for permanent
residence. The Privacy Act rights of an individual may be exercised by
the parent or legal guardian of a minor or an incompetent. (The Privacy
Act confers no rights on deceased persons, nor may their next-of-kin
exercise any rights for them.)
Maintain
Collect, use, maintain, or disseminate.
Official use
Any action by a member or employee of DOD that is prescribed or
authorized by law or a regulation and is intended to perform a mission
or function of the Department.
Personal information
Information about an individual that is intimate or private to the
individual, as distinguished from information related solely to the
individual's official functions or public life.
Privacy Act request
A request from an individual for information about the existence of, or
for access to or amendment of, a record about him or her that is in a
system of records. The request must cite or implicitly refer to the
Privacy Act.
Record
Any item, collection, or grouping of information about an individual
that--
a. Is kept by the Government including, but not limited to, an
individual's home address, home telephone number, SSN, education,
financial transactions, medical history, and criminal or employment
history.
b. Contains an individual's name, identifying number, symbol, or
other individual identifier such as a finger, voice print, or a
photograph.
Routine use
Disclosure of a record outside DOD without the consent of the subject
individual for a use that is compatible with the purpose for which the
information was collected and maintained by DA. The routine use must be
included in the published system notice for the system of records
involved.
Statistical record
A record maintained only for statistical research or reporting purposes
and not used in whole or in part in making determinations about specific
individuals.
System manager
The official responsible for policies and procedures for operating and
safeguarding a system or records. This official is located normally at
Headquarters, DA.
System of records
A group of records under the control of DA from which information is
retrieved by the individual's name or by some identifying number,
symbol, or other identifying particular assigned to the individual.
System notices for all systems of records must be published in the
Federal Register. (A grouping or files series of records arranged
chronologically or subjectively that is not retrieved by individual
identifier is not a system of records, even though individual
information could be retrieved by such an identifier, such as through a
paper-by-paper search.)
PART 507--MANUFACTURE AND SALE OF DECORATIONS, MEDALS, BADGES, INSIGNIA, COMMERCIAL USE OF HERALDIC DESIGNS AND HERALDIC QUALITY CONTROL PROGRAM--Table of Contents
Subpart A--Introduction
Sec.
507.1 Purpose.
507.2 References.
507.3 Explanation of abbreviations and terms.
507.4 Responsibilities.
507.5 Statutory authority.
Subpart B--Manufacture and Sale of Decorations, Medals, Badges, and
Insignia
507.6 Authority to manufacture.
507.7 Authority to sell.
507.8 Articles authorized for manufacture and sale.
507.9 Articles not authorized for manufacture or sale.
[[Page 66]]
Subpart C--Commercial Use of Heraldic Designs
507.10 Incorporation of designs or likenesses of approved designs in
commercial articles.
507.11 Reproduction of designs.
507.12 Possession and wearing.
Subpart D--Heraldic Quality Control Program
507.13 General.
507.14 Controlled heraldic items.
507.15 Certification of heraldic items.
507.16 Violations and penalties.
507.17 Procurement and wear of heraldic items.
507.18 Processing complaints of alleged breach of policies.
Authority: 10 U.S.C. 3012, 18 U.S.C. 701, 18 U.S.C. 702
Source: 63 FR 27208, May 18, 1998, unless otherwise noted.
Subpart A--Introduction
Sec. 507.1 Purpose.
This part prescribes the Department of the Army and the Air Force
policy governing the manufacture, sale, reproduction, possession, and
wearing of military decorations, medals, badges, and insignia. It also
establishes the Heraldic Item Quality Control Program to improve the
appearance of the Army and Air Force by controlling the quality of
heraldic items purchased from commercial sources.
Sec. 507.2 References.
Related publications are listed in paragraphs (a) through (f) of
this section. (A related publication is merely a source of additional
information. The user does not have to read it to understand this part).
Copies of referenced publications may be reviewed at Army and Air Force
Libraries or may be purchased from the National Technical Information
Services, U.S. Department of Commerce, 5285 Port Royal Road,
Springfield, VA 22161.
(a) AFI 36-2903, Dress and Personal Appearance of Air Force
Personnel.
(b) AR 360-5, Public Information.
(c) AR 670-1, Wear and Appearance of Army Uniforms and Insignia.
(d) AR 840-1, Department of the Army Seal, and Department of the
Army Emblem and Branch of Service Plaques.
(e) AR 840-10, Heraldic Activities, Flags, Guidons, Streamers,
Tabards and Automobile Plates.
(f) AFR 900-3, Department of the Air Force Seal, Organizational
Emblems, Use and Display of Flags, Guidons, Streamers, and Automobile
and Aircraft Plates.
Sec. 507.3 Explanation of abbreviations and terms.
(a) Abbreviations.
(1) AFB--Air Force Base.
(2) DA--Department of the Army.
(3) DCSPER--Deputy Chief of Staff for Personnel.
(4) DSCP--Defense Supply Center Philadelphia.
(5) DUI--distinctive unit insignia.
(6) ROTC--Reserve Officers' Training Corps.
(7) SSI--shoulder sleeve insignia.
(8) TIOH--The Institute of Heraldry.
(9) USAF--United States Air Force.
(b) Terms.--(1) Cartoon. A drawing six times actual size, showing
placement of stitches, color and size of yarn and number of stitches.
(2) Certificate of authority to manufacture. A certificate assigning
manufacturers a hallmark and authorizing manufacture of heraldic items.
(3) Hallmark. A distinguishing mark consisting of a letter and
numbers assigned to certified manufacturers for use in identifying
manufacturers of insignia.
(4) Heraldic items. All items worn on the uniform to indicate unit,
skill, branch, award or identification and a design has been established
by TIOH on an official drawing.
(5) Letter of agreement. A form signed by manufacturers before
certification, stating that the manufacturer agrees to produce heraldic
items in accordance with specific requirements
(6) Letter of authorization. A letter issued by TIOH that authorizes
the manufacture of a specific heraldic item after quality assurance
inspection of a preproduction sample.
(7) Tools. Hubs, dies, cartoons, and drawings used in the
manufacture of heraldic items.
Sec. 507.4 Responsibilities.
(a) Deputy Chief of Staff for Personnel (DCSPER), Army. The DCSPER
has
[[Page 67]]
staff responsibility for heraldic activities in the Army.
(b) The Director, The Institute of Heraldry (TIOH). The Director,
TIOH, will--
(1) Monitor the overall operation of the Heraldic Quality Control
Program.
(2) Authorize the use of insignia designs in commercial items.
(3) Certify insignia manufacturers.
(4) Inspect the quality of heraldic items.
(c) The Commander, Air Force Personnel Center, Randolph AFB, TX
78150-4739. The Commander has staff responsibility for heraldic
activities in the Air Force.
(d) The Chief, Air Force Personnel Center Commander's Programs
Branch (HQ AFPC/DPSFC), 550 C Street West, Suite 37, Randolph AFB, TX
78150-4739. The Chief, Commander's Programs Branch is responsible for
granting permission for the incorporation of certain Air Force badges
and rank insignia designs in commercial items.
(e) Commander, Air Force Historical Research Agency (AFHRA/RSO),
Maxwell AFB, AL 36112-6424. The Commander, AFHRA/RSO, is responsible for
granting permission for use of the Air Force seal, coat of arms, and
crest.
(f) Commanders. Commanders are responsible for purchasing heraldic
items that have been produced by manufacturers certified by TIOH.
Commanders will ensure that only those heraldic items that are of
quality and design covered in the specification and that have been
produced by certified manufacturers are worn by personnel under their
command.
Sec. 507.5 Statutory authority.
(a) The wear, manufacture, and sale of military decorations, medals,
badges, their components and appurtenances, or colorable imitations of
them, are governed by section 704, title 18, United States Code (18
U.S.C. 704).
(b) The manufacture, sale, possession, and reproduction of badges,
identification cards, insignia, or other designs, prescribed by the head
of a U.S. department or agency, or colorable imitations of them, are
governed by Title 18, United States Code, Section 701 (18 U.S.C. 701).
(c) This part incorporates the statutory provisions.
Subpart B--Manufacture and Sale of Decorations, Medals, Badges, and
Insignia.
Sec. 507.6 Authority to manufacture.
(a) A certificate of authority to manufacture heraldic articles may
be granted by the Institute of Heraldry.
(1) Certificates of authority will be issued only to companies who
have manufacturing capability and agree to manufacture heraldic items
according to applicable specifications or purchase descriptions.
(2) The certificate of authority is valid only for the individual or
corporation indicated.
(3) A hallmark will be assigned to each certified manufacturer. All
insignia manufactured will bear the manufacturer's hallmark.
(b) A certificate of authority may be revoked or suspended under the
procedures prescribed in subpart D of this part.
(c) Manufacturers will submit a preproduction sample to TIOH of each
item they manufacture for certification under the Heraldic Quality
Control Program. A letter of certification authorizing manufacture of
each specific item will be issued provided the sample meets quality
assurance standards.
(d) A copy of the certified manufactures list will be furnished to
the Army and Air Force Exchange Service and, upon request, to Army and
Air Force commanders.
Sec. 507.7 Authority to sell.
No certificate of authority to manufacture is required to sell
articles listed in Sec. 507.8 of this part; however, sellers are
responsible for insuring that any article they sell is manufactured in
accordance with Government specifications using government furnished
tools, bears a hallmark assigned by TIOH, and that the manufacturer has
received a certification to manufacture that specific item prior to
sale.
[[Page 68]]
Sec. 507.8 Articles authorized for manufacture and sale.
(a) The articles listed in paragraphs (a) (1) through (10) of this
section are authorized for manufacture and sale when made in accordance
with approved specifications, purchase descriptions or drawings.
(1) All authorized insignia (AR 670-1 and AFI 36-2903).
(2) Appurtenances and devices for decorations, medals, and ribbons
such as oak leaf clusters, service stars, arrowheads, V-devices, and
clasps.
(3) Combat, special skill, occupational and qualification badges and
bars.
(4) Identification badges.
(5) Fourrageres and lanyards.
(6) Lapel buttons.
(7) Decorations, service medals, and ribbons, except for the Medal
of Honor.
(8) Replicas of decorations and service medals for grave markers.
Replicas are to be at least twice the size prescribed for decorations
and service medals.
(9) Service ribbons for decorations, service medals, and unit
awards.
(10) Rosettes.
(11) Army emblem and branch of service plaques.
(b) Variations from the prescribed specifications for the items
listed in paragraph (a) of this section are not permitted without prior
approval, in writing, by TIOH.
Sec. 507.9 Articles not authorized for manufacture or sale.
The following articles are not authorized for manufacture and sale,
except under contract with DSCP:
(a) The Medal of Honor.
(b) Service ribbon for the Medal of Honor.
(c) Rosette for the Medal of Honor.
(d) Service flags (prescribed in AR 840-10 or AFR 900-3).
(e) Army seal.
(f) Commercial articles for public sale that incorporate designs or
likenesses of decorations, service medals, and service ribbons.
(g) Commercial articles for public sale that incorporate designs or
likenesses of designs of insignia listed in Sec. 507.8 of this part,
except when authorized by the Service concerned.
Subpart C--Commercial Use of Heraldic Designs
Sec. 507.10 Incorporation of designs or likenesses of approved designs in commercial articles.
The policy of the Department of the Army and the Department of the
Air Force is to restrict the use of military designs for the needs or
the benefit of personnel of their Services.
(a) Except as authorized in writing by the Department of the Army or
the Department of the Air Force, as applicable, the manufacture of
commercial articles incorporating designs or likenesses of official
Army/Air Force heraldic items is prohibited. However, certain designs or
likenesses of insignia such as badges or organizational insignia may be
incorporated in articles manufactured for sale provided that permission
has been granted as specified in paragraphs (a) (1) and (2) of this
section.
(1) Designs approved for use of the Army. The Director, The
Institute of Heraldry, 9325 Gunston Road, Room S-112, Fort Belvoir, VA
22060-5579, is responsible for granting permission for the incorporation
of certain Army insignia designs and the Army emblem in commercial
articles manufactured for sale. Permission for such use will be in
writing. Commanders of units authorized a SSI or DUI may authorize the
reproduction of their SSI or DUI on commercial articles such as shirts,
tie tacks, cups, or plaques. Permission for use of a SSI or DUI will be
submitted in writing to the commander concerned. Authorization for
incorporation of designs or likenesses of designs in commercial items
will be granted only to those manufacturers who agree to offer these
items for sale only to Army and Air Force Exchange Service and outlets
that sell primarily to military personnel and their dependents.
(2) Designs approved for use of the Air Force. Headquarters, Air
Force Personnel Center, Chief, Commander's Programs Branch (HQ AFPC/
DPSFC), 550 C Street West, Suite 37, Randolph AFB, TX 78150-4739, is
responsible for granting permission for the incorporation of certain Air
Force designs for commercial articles manufactured for
[[Page 69]]
sale. The Commander, Air Force Historical Research Agency, AFHRA/RSO,
Maxwell AFB, AL 36112-6678, is responsible for granting permission for
the incorporation of the coat of arms, crest, seal and organizational
emblems. Such permission will be in writing. Authorization for
incorporation of designs or likenesses of designs in commercial items
will be granted only to those manufacturers who agree to offer these
items for sale only to the Army and Air Force Exchange Service, or to
those outlets that sell primarily to military personnel and their
dependents.
(b) In the case of the Honorable Service lapel button, a general
exception is made to permit the incorporation of that design in articles
manufactured for public sale provided that such articles are not
suitable for wear as lapel buttons or pins.
Sec. 507.11 Reproduction of designs.
(a) The photographing, printing, or, in any manner making or
executing any engraving, photograph, print, or impression in the
likeness of any decoration, service medal, service ribbon, badge, lapel
button, insignia, or other device, or the colorable imitation thereof,
of a design prescribed by the Secretary of the Army or the Secretary of
the Air Force for use by members of the Army or the Air Force is
authorized provided that such reproduction does not bring discredit upon
the military service and is not used to defraud or to misrepresent the
identification or status of an individual, organization, society, or
other group of persons.
(b) The use for advertising purposes of any engraving, photograph,
print, or impression of the likeness of any Department of the Army or
Department of the Air Force decoration, service medal, service ribbon,
badge, lapel button, insignia, or other device (except the Honorable
Service lapel button) is prohibited without prior approval, in writing,
by the Secretary of the Army or the Secretary of the Air Force except
when used to illustrate a particular article that is offered for sale.
Request for use of Army insignia in advertisements or promotional
materials will be processed through public affairs channels in
accordance with AR 360-5, paragraph 3-37.
(c) The reproduction in any manner of the likeness of any
identification card prescribed by Department of the Army or Department
of the Air Force is prohibited without prior approval in writing by the
Secretary of the Army or Secretary of the Air Force.
Sec. 507.12 Possession and wearing.
(a) The wearing of any decoration, service medal, badge, service
ribbon, lapel button, or insignia prescribed or authorized by the
Department of the Army and the Department of the Air Force by any person
not properly authorized to wear such device, or the use of any
decoration, service medal, badge, service ribbon, lapel button, or
insignia to misrepresent the identification or status of the person by
whom such is worn is prohibited. Any person who violates the provision
of this section is subject to punishment as prescribed in the statutes
referred to in Sec. 507.5 of this part.
(b) Mere possession by a person of any of the articles prescribed in
Sec. 507.8 of this part is authorized provided that such possession is
not used to defraud or misrepresent the identification or status of the
individual concerned.
(c) Articles specified in Sec. 507.8 of this part, or any
distinctive parts including suspension ribbons and service ribbons) or
colorable imitations thereof, will not be used by any organization,
society, or other group of persons without prior approval in writing by
the Secretary of the Army or the Secretary of the Air Force.
Subpart D--Heraldic Quality Control Program
Sec. 507.13 General.
The heraldic quality control program provides a method of ensuring
that insignia items are manufactured with tools and specifications
provided by TIOH.
Sec. 507.14 Controlled heraldic items.
The articles listed in Sec. 507.8 of this part are controlled
heraldic items and will be manufactured in accordance with Government
specifications using
[[Page 70]]
Government furnished tools or cartoons. Tools and cartoons are not
provided to manufacturers for the items in paragraphs (a) through (e) of
this section. However, manufacture will be in accordance with the
Government furnished drawings.
(a) Shoulder loop insignia, ROTC, U.S. Army.
(b) Institutional SSI, ROTC, U.S. Army.
(c) Background trimming/flashes, U.S. Army.
(d) U.S. Air Force organizational emblems for other than major
commands.
(e) Hand embroidered bullion insignia.
Sec. 507.15 Certification of heraldic items.
A letter of certification to manufacture each heraldic item, except
those listed in Sec. 507.14 (a) through (e) of this part, will be
provided to the manufacturer upon submission of a preproduction sample.
Manufacture and sale of these items is not authorized until the
manufacturer receives a certification letter from TIOH.
Sec. 507.16 Violations and penalties.
A certificate of authority to manufacture will be revoked by TIOH
upon intentional violation by the holder thereof of any of the
provisions of this part, or as a result of not complying with the
agreement signed by the manufacturer in order to receive a certificate.
Such violations are also subject to penalties prescribed in the Acts of
Congress (Sec. 507.5 of this part). A repetition or continuation of
violations after official notice thereof will be deemed prima facie
evidence of intentional violation.
Sec. 507.17 Procurement and wear of heraldic items.
(a) The provisions of this part do not apply to contracts awarded by
the Defense Personnel Support Center for manufacture and sale to the
U.S. Government.
(b) All Army and Air Force service personnel who wear quality
controlled heraldic items that were purchased from commercial sources
will be responsible for ensuring that the items were produced by a
certified manufacturer. Items manufactured by certified manufacturers
will be identified by a hallmark and/or a certificate label certifying
the item was produced in accordance with specifications.
(c) Commanders will ensure that only those heraldic items that are
of the quality and design covered in the specifications and that have
been produced by certified manufacturers are worn by personnel under
their command. Controlled heraldic items will be procured only from
manufacturers certified by TIOH. Commanders procuring controlled
heraldic items, when authorized by local procurement procedures, may
forward a sample insignia to TIOH for quality assurance inspection if
the commander feels the quality does not meet standards.
Sec. 507.18 Processing complaints of alleged breach of policies.
The Institute of Heraldry may revoke or suspend the certificate of
authority to manufacture if there are breaches of quality control
policies by the manufacturer. As used in this paragraph, the term
quality control policies include the obligation of a manufacturer under
his or her ``Agreement to Manufacture,'' the quality control provisions
of this part, and other applicable instructions provided by TIOH.
(a) Initial processing. (1) Complaints and reports of an alleged
breach of quality control policies will be forwarded to the Director,
The Institute of Heraldry, 9325 Gunston Road, Room S-112, Fort Belvoir,
VA 22060-5579 (hereinafter referred to as Director).
(2) The Director may direct that an informal investigation of the
complaint or report be conducted.
(3) If such investigation is initiated, it will be the duty of the
investigator to ascertain the facts in an impartial manner. Upon
conclusion of the investigation, the investigator will submit a report
to the appointing authority containing a summarized record of the
investigation together with such findings and recommendations as may be
appropriate and warranted by the facts.
(4) The report of investigation will be forwarded to the Director
for review. If it is determined that a possible breach of quality
control policies has occurred, the Director will follow the
[[Page 71]]
procedures outlined in paragraphs (b) through (g) of this section.
(b) Voluntary performance. The Director will transmit a registered
letter to the manufacturer advising of the detailed allegations of
breach and requesting assurances of voluntary compliance with quality
control policies. No further action is taken if the manufacturer
voluntarily complies with the quality control policies; however, any
further reoccurrence of the same breach will be considered refusal to
perform.
(c) Refusal to perform. (1) If the manufacturer fails to reply
within a reasonable time to the letter authorized by paragraph (b) of
this section, or refuses to give adequate assurances that future
performance will conform to quality control policies, or indicates by
subsequent conduct that the breach is continuous or repetitive, or
disputes the allegations of breach, the Director will direct that a
public hearing be conducted on the allegations.
(2) A hearing examiner will be appointed by appropriate orders. The
examiner may be either a commissioned officer or a civilian employee
above the grade of GS-7.
(3) The specific written allegations, together with other pertinent
material, will be transmitted to the hearing examiner for introduction
as evidence at the hearing.
(4) Manufacturers may be suspended for failure to return a loaned
tool without referral to a hearing specified in paragraph (c)(1) of this
section; however, the manufacturer will be advised, in writing, that
tools are overdue and suspension will take effect if not returned within
the specified time.
(d) Notification to the manufacturer by examiner. Within a 7 day
period following receipt by the examiner of the allegations and other
pertinent material, the examiner will transmit a registered letter of
notification to the manufacturer informing him or her of the following:
(1) Specific allegations.
(2) Directive of the Director requiring the holding of a public
hearing on the allegations.
(3) Examiner's decision to hold the public hearing at a specific
time, date, and place that will be not earlier than 30 days from the
date of the letter of notification.
(4) Ultimate authority of the Director to suspend or revoke the
certificate of authority should the record developed at the hearing so
warrant.
(5) Right to--
(i) A full and fair public hearing.
(ii) Be represented by counsel at the hearing.
(iii) Request a change in the date, time, or place of the hearing
for purposes of having reasonable time in which to prepare the case.
(iv) Submit evidence and present witnesses in his or her own behalf.
(v) Obtain, upon written request filed before the commencement of
the hearing, at no cost, a verbatim transcript of the proceedings.
(e) Public hearing by examiner. (1) At the time, date, and place
designated in accordance with paragraph (d) (3) of this section, the
examiner will conduct the public hearing.
(i) A verbatim record of the proceeding will be maintained.
(ii) All previous material received by the examiner will be
introduced into evidence and made part of the record.
(iii) The Government may be represented by counsel at the hearing.
(2) Subsequent to the conclusion of the hearing, the examiner will
make specific findings on the record before him or her concerning each
allegation.
(3) The complete record of the case will be forwarded to the
Director.
(f) Action by the Director. (1) The Director will review the record
of the hearing and either approve or disapprove the findings.
(2) Upon arrival of a finding of breach of quality control policies,
the manufacturer will be so advised.
(3) After review of the findings, the certificate of authority may
be revoked or suspended. If the certificate of authority is revoked or
suspended, the Director will--
(i) Notify the manufacturer of the revocation or suspension.
(ii) Remove the manufacturer from the list of certified
manufacturers.
(iii) Inform the Army and Air Force Exchange Service of the action.
(g) Reinstatement of certificate of authority. The Director may,
upon receipt
[[Page 72]]
of adequate assurance that the manufacturer will comply with quality
control policies, reinstate a certificate of authority that has been
suspended or revoked.
PART 508--COMPETITION WITH CIVILIAN BANDS--Table of Contents
Authority: Secs. 3012, 3634, 70A Stat. 157, 207; 10 U.S.C. 3012,
3634.
Sec. 508.1 Utilization of Army bands.
(a) General. Participation of Army bandsmen in performances off
military reservations will not interfere with the customary employment
and regular engagement of local civilians in the respective arts,
trades, or professions. Such participation will not directly or
indirectly benefit or appear to benefit or favor any private individual,
commercial venture, sect, or political or fraternal group, except as may
be specifically authorized by the Secretary of Defense. The authority to
determine whether the use of an Army band at a public gathering is
prohibited by this section is delegated to major commanders.
(b) Suitability. Commanders authorizing participation by Army bands
(except the U.S. Army Band and the U.S. Army Field Band) in their
official capacties and in the performance of official duties will be
guided by the following conditions of suitability:
(1) When participation is an appropriate part of official occasions
attended by the senior officers of the Government or the Department of
Defense in their official capacities and in the performance of official
duties.
(2) For parades and ceremonies which are incident to gatherings of
personnel of the Armed Forces, veterans, and patriotic organizations.
(3) At public rallies and parades intended to stimulate national
interest in the Armed Forces and/or to further the community relation
program.
(4) For fund drives for officially recognized Armed Forces relief
agencies or charitable organizations such as the Red Cross when the
proceeds are donated to such agencies.
(5) For athletic contests in which one or more Armed Forces teams
are participating.
(6) In connection with recruiting activities for the Armed Forces.
(7) At official occasions and free social and entertainment
activities held on or off Armed Forces installations, provided that such
free social entertainment activities are conducted exclusively for the
benefit of personnel of the Armed Forces and their guests.
[25 FR 10700, Nov. 9, 1960]
PART 510--CHAPLAINS--Table of Contents
Authority: R.S. 1125; 10 U.S.C. 238.
Sec. 510.1 Private ministrations, sacraments, and ordinances.
Chaplains will conduct or arrange for appropriate burial services at
the interment of members of the military service, active and retired,
and for members of their families upon request. A chaplain may perform
the marriage rite, provided he complies with the civil law of the place
where the marriage is to be solemnized and provided all parties
concerned have complied with the requirements of the denomination the
chaplain represents and with any directives which may have been issued
by the military command or higher headquarters. The scope of the
chaplains' work will include such ministrations as are held by some
denominations or religious bodies as sacraments and by others as rites
or ordinances. Chaplains will administer or arrange for rites and
sacraments for military personnel and civilians under military
jurisdiction according to the respective beliefs and conscientious
practices of all concerned.
[16 FR 12931, Dec. 27, 1951]
PART 513--INDEBTEDNESS OF MILITARY PERSONNEL--Table of Contents
Sec.
513.1 General.
513.2 Administrative procedures for processing complaints.
513.3 Administrative and punitive actions.
513.4 Conditions creditors must meet before getting help in debt
processing.
[[Page 73]]
513.5 Procedures governing nonactive duty or discharged personnel.
Appendix A to Part 513--References
Appendix B to Part 513--Standards of Fairness
Appendix C to Part 513--Glossary
Authority: 10 U.S.C. 3012.
Source: 51 FR 7268, Mar. 3, 1986, unless otherwise noted.
Sec. 513.1 General.
(a) Purpose. This regulation prescribes Department of the Army (DA)
policy, responsibilities, and procedures in handling debt claims against
soldiers.
(b) References. Required and related publications and prescribed and
referenced forms are listed in appendix A.
(c) Explanation of abbreviations and terms. Abbreviations and
special terms used in this regulation are explained in the glossary.
(d) Responsibilities. (1) The Deputy Chief of Staff for Personnel
will set policy on processing debt claims against soldiers.
(2) The Commanding General, U.S. Army Community and Family Support
Center (CG, USACFSC) will--
(i) Set procedures for processing debt claims against soldiers.
(ii) Process debt claims received at USACFSC regarding soldiers.
(iii) Carry out the objectives of this regulation to protect the
rights of the soldier, his or her family members, and the interests of
the Army.
(iv) Advise and assist the directors of Headquarters, Department of
the Army (HQDA) agencies, commanders of the major Army commands, and
other commanders on matters pertaining to indebtedness of soldiers.
(3) Officers having general court-martial jurisdiction will--
(i) Ensure special emphasis on the indebtedness issue is given in
command information programs. This includes soldiers being informed of
their responsibility to manage their personal affairs satisfactorily and
pay their debts promptly. Also, inform soldiers of the possible
consequences of failure to pay their debts.
(ii) Take action on requests to file unfavorable information in a
soldier's official personnel file. (See Sec. 513.3.)
(4) First level field grade commanders will monitor instances of
soldiers' repeated failure to pay debts that are brought to their
attention. These commanders will take action, when proper.
(5) Immediate commanders will--
(i) Ensure that soldiers are informed of the following:
(A) DA policy on indebtedness.
(B) The possible consequences of failure to pay their debts.
(ii) Manage the processing of debt claims per the terms of this
regulation.
(iii) Answer all correspondence received from CG, USACFSC and other
DA officials.
(iv) Answer all correspondence received directly from claimants and
third parties (for example, Members of Congress). The commander will not
include unreleasable information without the soldier's written consent.
This complies with the Privacy Act of 1974. (See AR 340-21.) Commanders
should ask the Staff Judge Advocate (SJA) for guidance in unusual or
difficult situations.
(v) Inform the first level field grade commander of instances of
soldiers' repeated failure to pay their debts. Also, point out actions
taken or contemplated to correct the situation.
(vi) Refer correspondence or queries received from news media
organizations to the unit, installation, or command public affairs
officer for response.
(6) The unit, installation, or command public affairs officer will--
(i) Answer correspondence and queries received from news media
organizations.
(ii) Coordinate with the SJA before making any response.
(e) Policy. (1) Soldiers are required to manage their personal
affairs satisfactorily and pay their debts promptly. Failure to do so
damages their credit reputation and affects the Army's public image. The
Army, however, has no legal authority to force soldiers to pay their
debts. Also, the Army cannot divert any part of a soldier's pay even
though payment of the debt was decreed by a civil court. Only civil
authorities can enforce payment of private debts.
[[Page 74]]
(2) Debt claims against corporations and organizations to which a
soldier belongs, or of which a soldier is an officer, will not be
processed under this regulation. In this situation, the matter should be
pursued in civil court. If a judgment is received specifically against
the soldier, then this regulation will apply.
(3) Creditors who follow Sec. 513.4 will have their debt complaints
processed.
(4) Requests for help that do not follow Sec. 513.4 will be returned
without action with an explanation as discussed in Sec. 513.4(d).
(5) The Army will revoke debt processing privileges for creditors
who--
(i) Refuse to abide by this regulation.
(ii) Try to use the Army as a debt collection agency. (See
Sec. 513.4(e)).
(6) The Army does not try to judge or settle disputed debts, or
admit or deny whether claims are valid. The Army will not tell claimants
whether any adverse action has been taken against a soldier as a result
of the claim.
(7) If a soldier is not trying to resolve unpaid debts promptly or
complaints of repeated failure to pay debts are received, commanders
will consider the actions shown below. (See Secs. 513.2(a)(3)(xv) and
513.3.)
(i) Making the failure a matter of permanent record.
(ii) Denial of reenlistment (enlisted personnel).
(iii) Administrative separation from the Service.
(iv) Punishment under the Uniform Code of Military Justice (UCMJ).
When proper, such misconduct may be charged under articles 92, 123, 133,
or 134 of the UCMJ.
(8) Checks that are dishonored for any reason remain proof of
indebtedness until--
(i) Made good.
(ii) Proven to be the error of the financial institution on which
drawn, or the error of any other person or institution; such action then
absolves the soldier of fault. (See Sec. 513.2(c).)
(9) When necessary, commanders and soldiers are urged to seek help
from the SJA.
(f) Banks and credit unions. (1) Banks and credit unions located on
military bases must apply Department of Defense (DOD) Standards of
Fairness (app B) before making loans or credit agreements. Banks and
credit unions that do not meet this requirement will be denied help in
processing debt complaints.
(2) If soldiers are referred to off-base branches of an on-post bank
or credit union, the branches also must comply with the Standards of
Fairness before making loans or credit agreements.
(3) Interest rates and service charges for loans made by oversea
military banking facilities are set by DOD.
(g) Fair Debt Collection Practices Act (section 1692, title 15,
United States Code (15 U.S.C. 1692)). (1) A debt collector may not
contact any person other than the soldier, his or her lawyer or legal
counsel, or the creditor about any debt collection. The debt collector,
however, may contact the employer if he or she has a written and signed
consent from the soldier, or a court order permitting contact. The
written consent must include the debt collector's name. It is illegal
for debt collectors to use another name when collecting debts.
(2) Debt collectors who have obtained the needed written consent or
court order and who have followed Sec. 513.4 will have their debt
complaints processed.
(3) Creditors who collect only on their own behalf are exempt from
the Act.
(h) Individual repayment plan of the Bankruptcy Act. Chapter XIII of
the Bankruptcy Act (11 U.S.C. 1301, et seq.) provides for the protection
and relief of individuals with a regular income. It also sets rules for
paying debts under the supervision of U.S. Federal District Courts. Care
must be taken not to confuse ``bankruptcy'' and ``individual repayment
plans'' in order not to infringe on the rights of the soldier.
(i) Locator service. (1) Installations will honor requests for
central locator service by a banking office (AR 210-135) or credit union
(AR 210-24) located on a military installation. This service will be
free when banking offices and credit unions cite AR 37-60. This service
will be used to locate persons for settling accounts, checks that did
not clear, and delinquent loans. The U.S. Army Finance and Accounting
Center (USAFAC), Indianapolis, IN 46249-1016, will assist these banking
offices and
[[Page 75]]
credit unions to locate soldiers who cannot be located locally.
(2) Current military addresses for all soldiers may be obtained by
writing the Commander, U.S. Army Enlisted Records and Evaluation Center,
Fort Benjamin Harrison, IN 46249-5301. All requests must include the
soldier's full name, rank, and social security number (SSN). They should
include the date and place of birth if the SSN is not known. A check or
money order for $3.50 payable to the Treasurer of the United States must
be enclosed with each request. (See AR 37-60.)
(3) A debt collector should not write to the U.S. Army Enlisted
Records and Evaluation Center (USAEREC) if he or she knows the soldier
is represented by a civilian lawyer or military legal counsel. However,
the debt collector may write to USAEREC if he or she--
(i) Does not know or cannot easily find out the name and address of
the lawyer or legal counsel.
(ii) Does not receive a response from the lawyer or legal counsel.
(4) If a debt collector writes to USAEREC, a postcard cannot be
used. Also, the request cannot state that the locator service is being
sought in order to collect a debt. These actions would violate the Fair
Debt Collection Practices Act (Sec. 513.1(g)).
[51 FR 7269, Mar. 3, 1986; 51 FR 8824, Mar. 14, 1986, as amended at 51
FR 17961, May 16, 1986]
Sec. 513.2 Administrative procedures for processing complaints.
(a) Commander's actions. Upon receipt of a debt complaint, the
commander will--
(1) Review the case to ensure that the terms of this regulation have
been met.
(2) Consult the SJA if needed.
(3) Take the following actions:
(i) If any of the terms of Sec. 513.4(c) have not been met by the
creditor, return the complaint. Tell the writer that no action will be
taken until those terms are met.
(ii) Upon receipt of subsequent inquiries from USACFSC, Members of
Congress, or any other source, inform the writer that--
(A) The creditor has been told that his or her request lacked data
or documentation.
(B) The commander regrets that he or she cannot process the
complaint until the creditor supplies the necessary data.
(C) A reply previously has been made to the creditor. Enclose a copy
of the reply.
(iii) If the creditor refuses or repeatedly fails to comply with any
of these requirements, refer the complete case through channels to the
Commander, USACFSC, ATTN: DACF-IS-PA, ALEX VA 22231-0522. If it is
believed the creditor's debt processing privileges should be revoked,
include a recommendation stating the reasons.
(iv) If the soldier was not given full disclosure information when
the debt was incurred, refer him or her to the SJA office. The SJA
office will advise if the soldier has a right to file suit against the
creditor. The soldier may be entitled to twice the amount of the finance
charge, for a minimum of $100 up to a maximum of $1,000, plus court
costs and lawyer fees. This does not apply to debts incurred before 30
June 1969.
(v) If in doubt as to the legality of the contract, consult the SJA.
This action is to ensure that the contract terms do not violate Federal
and State laws.
(vi) Accept as valid proof, claims based on court judgments, orders,
or decrees.
(vii) If the debt or the amount of the debt is disputed or denied by
the soldier, reply directly to the creditor. Tell him or her that Army
policy requires that disputed debts be settled by civil courts. Do not,
in the reply, try to judge or settle any disputed debts, or admit or
deny the validity of the claim.
(viii) If the creditor has met all the requirements discussed in
Sec. 513.4, interview the soldier.
(A) Ensure that the soldier is properly advised of his or her rights
under the Privacy Act of 1974. DA Form 4817-R (Consent/Nonconsent To
Disclose Personal Information) will be completed.
(B) Notify the soldier of the debt complaint.
(C) Explain that the Army requires that soldiers pay their debts
promptly.
[[Page 76]]
Failure to do so damages credit reputations and affects the Army's
public image. Also, explain that the willful failure to resolve unpaid
debts may result in administrative or punitive actions as described in
Sec. 513.3.
(D) Tell the soldier of his or her legal rights and duties. If
appropriate, advise the soldier of his or her rights under article 31,
UCMJ. Also, inform the soldier that counseling service is available
under the Legal Assistance Program (AR 27-3).
(E) Review all available facts including the soldier's defenses,
rights, and counterclaims.
(F) Urge the soldier to seek budget counseling and consumer
protection advice, if proper. These services may be obtained from on-
post credit unions, Army Community Service Program Counselors (AR 608-
1), or through financial management seminars or workshops.
(G) Help the soldier in settling or in liquidating the debt. Give
the soldier a copy of DA Pam 360-520 if proper. Answer any questions
that he or she might have.
(H) Have the soldier sign a statement allowing or forbidding release
of information to the claimant (DA Form 4817-R). AR 340-17 and AR 340-
21, paragraph 3-3 govern this.
(I) Ask the soldier about his or her intentions. Give the soldier
the chance to furnish a voluntarily signed statement admitting or
denying the complaint or declining to do either.
(ix) Advise the claimant promptly that the soldier has been told of
the complaint.
(x) Summarize the soldier's intentions if the soldier allows release
of the information.
(xi) If proper, advise the claimant that indebtedness disputes must
be resolved in a civil court of competent jurisdiction.
(xii) Ask the claimant to write, if necessary, directly to the
soldier or his or her commander.
(xiii) Retain the statement allowing or forbidding release of
information to the claimant with the case file for future reference.
(See Sec. 513.3)
(xiv) Monitor actions closely to ensure promises made to claimants
are being met.
(xv) Consider administrative or punitive action, if proper (See
Secs. 513.1(e)(7) and 513.3.)
(xvi) Inform the first level field grade commander of instances of
soldiers' repeated failure to pay their debts. Also, point out actions
taken or contemplated to correct the situation.
(b) Procedures for routing debt complaints. (1) Send debt complaints
through proper channels to the soldier's commander for action.
(2) If the soldier is a patient attached to a medical holding
detachment (MHD), the complaint will be sent there for action. The
commander of the MHD will take action per this regulation.
(3) The command receiving the complaint will acknowledge the letter
and tell the writer of the referral. DA Form 209 (Delay, Referral, or
Follow-Up Notice) may be used for this purpose.
(4) All correspondence to the President, received from outside of
DOD, will be processed per AR 1-9.
(5) Send complaints to the soldier's new duty station if the soldier
has been reassigned. Advise the claimant of the soldier's reporting date
and the unit address to which correspondence should be sent.
(6) See Sec. 513.5 for procedures governing processing of claims for
nonactive duty or discharged personnel.
(c) Processing debt complaints based on dishonored checks. (1)
Writing checks against an account with no or not enough funds is a
serious matter. It may be a misdemeanor or a felony. This depends on the
amount of the check and the laws or statutes of the jurisdiction where
the check is presented for payment. The soldier is responsible for
making sure that money is in his or her bank account to cover checks
written on that account. Writing bad checks may result in disciplinary
or administrative action. Whether or not such action is taken, a
dishonored check for not enough funds remains proof of an indebtedness
except as provided in Sec. 513.1(e)(8).
(2) Commanders must answer all check complaints, other than those
discussed in Sec. 513.2(c)(3), even if such complaints concerns checks
errors caused by oversight or negligence. (AR 210-60 outlines ways for
handling dishonored
[[Page 77]]
checks written on Army installations and in Army facilities.)
(3) Checks made good within 5 days of notice do not require any
action if the complaint is based on--
(i) Bank or Government error.
(ii) Failure to date the check.
(iii) Inconsistent or not legible amounts shown on the check.
(iv) Lack of legible signature.
(4) Bad checks written by family members are not processed under
this regulation except in the following instance. The SJA finds that
these checks stand for debts for which the soldier may be held
personally liable under Federal or State laws (for example, checks
written for necessities such as rent, utilities, or food).
(d) Inquiries from USACFSC or DA officials. The commander must--
(1) Give USACFSC or DA officials complete data on all inquiries.
(2) Seek the advice of the SJA before replying to a court order if
necessary.
(3) State ``not applicable'' to items that do not apply.
(4) If applicable, advise USACFSC or DA officials--
(i) Whether the soldier acknowledges the debt.
(ii) Of the corrective action taken (to include the amounts and
dates payments will be made).
(iii) Of the method of payment (for example, personal check).
(iv) Whether the soldier allowed or forbade release of the
information given. (See DA Form 4817-R.)
(v) Whether the soldier is following the terms of a court order.
(vi) Whether the soldier's actions follow Army policy as stated in
this regulation.
(vii) In the reply, include your name, unit address, and your
automatic voice network (AUTOVON) number. If no AUTOVON Number is
available, include a commercial or other number where the unit can be
reached.
(5) Return to USACFSC or DA officials inquiries received after the
soldier has been transferred. Include a copy of his or her permanent
change of station orders.
[51 FR 7270, Mar. 3, 1986; 51 FR 8824, Mar. 14, 1986]
Sec. 513.3 Administrative and punitive actions.
(a) Considerations. Commanders will not tolerate irresponsibility,
neglect, dishonesty, or evasiveness. Failure to pay debts promptly and
honorably may require disciplinary or administrative action. If a
soldier is not trying to resolve unpaid debts promptly or complaints of
repeated failure to pay debts are received, commanders will consider--
(1) Making it a matter of permanent record (Sec. 513.3(b)).
(2) Denial of reenlistment (enlisted members) (AR 601-280).
(3) Administrative separation from the Service (AR 635-100 or AR
635-200).
(4) Punishment under the UCMJ. (See Sec. 513.1(e)(7).)
(b) Official personnel files. (1) The Army requires that all-
inclusive information of the qualifications of its soliders be on file.
This prevents selection of soldiers for positions of leadership, trust,
and responsibility whose qualifications are questionable.
(2) Documents/records created or received in connection with debt
complaints will be filed per AR 600-37 and the Army Functional Files
System (AR 340-2 and AR 340-18).
(3) The soldier may show his or her negligence, disregard, or
unwillingness to resolve the matter by repeatedly failing to pay his or
her debts. In these cases, the commander will decide whether to place a
letter of reprimand, admonition, or censure in the soldier's official
personnel files. AR 600-37, chapter 2, governs action taken to file
unfavorable information.
(4) If information does not merit filing in the soldier's official
personnel files, the commander will--
(i) Continue to monitor the situation.
(ii) Furnish further guidance and help.
(iii) Consider later action (Sec. 513.3(b)(3)) if warranted by
further evidence.
Sec. 513.4 Conditions creditors must meet before getting help in debt processing.
(a) Statutory and other regulatory requirements. (1) The Truth-in-
Lending Act, Pub. L. 90-321 (15 U.S.C. 1601), lists the general
disclosure rules that must
[[Page 78]]
be met by creditors. It does not cover private parties who extend credit
only rarely to help a person. (See Sec. 513.4(f)(1)).
(2) Federal Reserve Board Regulation Z (12 CFR part 226) lists
specific disclosure rules for all credit transactions under the Truth-
in-Lending Act.
(3) Certain States have rules that may apply to credit transactions
in lieu of Federal Reserve Board Regulation Z. However, the Federal
Reserve Board must first decide if the State sets largely the same rules
and enforcement measures. States currently exempted from Regulation Z
are Connecticut, Maine, Massachusetts, Oklahoma, and Wyoming.
(4) DOD Standards of Fairness (app B) define fair and just dealings
with soldiers. DA Pam 360-520, chapter 4, contains simplified
explanations of these standards. Note that certain debt complaints are
exempt (Sec. 513.4(f)).
(5) Certificate of Compliance certifies the creditor has complied
with the full disclosure requirements of Federal or State laws and
regulations, State laws regarding contact with the employer of the
debtor, and the application of the Standards of Fairness to the consumer
credit transaction.
(6) Full disclosure information shows what the soldier should know
about contract terms.
(7) The Fair Debt Collection Practices Act contains other conditions
a creditor must meet. (See Sec. 513.1(g)).
(b) State laws. Florida, Louisiana, Maryland, Massachusetts, New
York, North Carolina, and Wisconsin have passed laws that forbid
creditors from contacting employers. This includes commanders, unless
certain conditions are met. These conditions are the reduction of a debt
to court judgment or the written permission of a debtor. The judgment
must conform to the Soldiers' and Sailors' Civil Relief Act of 1940, as
amended (50 U.S.C. app, section 501 et seq., (1970)) if applicable. (See
DA Pam 27-166.) Other States may enact similar laws; if they do, the
same conditions will apply. Creditors wanting to make use of the debt
processing privilege must first certify their compliance with the
relevant State's law about contact with an employer. These laws,
however, do not apply if the debtor is located in a State that has not
passed such a law.
(c) Debt processing. (1) Creditors, other than private parties
described in 513.4(f)(1), must send--
(i) A signed copy of the Certificate of Compliance with DOD
Standards of Fairness (app B) showing compliance with one of the
following:
(A) The Truth-in-Lending Act.
(B) Federal Reserve Board Regulation Z.
(C) State regulations.
(ii) A true copy of the signed contract.
(iii) The general and specific disclosure information given the
soldier before signing the contract.
(iv) A copy of a judgment or written permission from the soldier
allowing the creditor to contact his or her employer about the debt, if
applicable. (See Sec. 513.4(b)).
(v) Photocopies of actual correspondence or documentary proof
showing that every effort has been made to get payment by direct contact
with the soldier. The creditor must give the soldier a chance to answer
each inquiry. (Forty-five days for those in the contiguous 48 States and
the District of Columbia; 60 days for all others.)
(2) Foreign-owned companies having debt complaints must send--
(i) A true copy of the terms of the debt.
(ii) A certification that they have met the DOD Standards of
Fairness.
(iii) An English translation of the above (if not already in
English).
(iv) Documentation as in Secs. 513.4(c)(1) (iv) and (v).
(3) Creditors not subject to Regulation Z, such as public utility
companies, will send a certification with their request. It must state
that no interest, finance charge, or other fee exceeds that permitted by
the laws of the State in which the service was requested.
(4) Creditors not subject to the Truth-in-Lending Act must send--
(i) Legible copies of actual correspondence. (See
Sec. 513.4(c)(1)(v)).
(ii) Documentary proof showing that every effort has been made to
get the payment by direct contact with the soldier.
[[Page 79]]
(5) Creditors who have followed these terms may contact the
soldier's commander for help. If the commander is contacted, the
creditor must give the commander a chance to answer the inquiry. (Forty-
five days for those in the contiguous 48 States and the District of
Columbia; 60 days for all others.) If unsuccessful, after reasonable
efforts to collect the debt, creditors may request help from USACFSC. In
such cases, the information must be the same as that sent the commander.
(See Sec. 513.4(c)(6)). The request should be sent to the Commander,
USACFSC, ATTN: DACF-IS-PA, ALEX VA 22331-0522.
(6) All requests for help must include--
(i) The soldier's full name, rank, and SSN.
(ii) Date and place of birth, if SSN is not known.
(iii) The amount and date of the original debt.
(iv) The terms of payment.
(v) The balance due.
(vi) Documents described in Sec. 513.4(c) (1) through (4) which
apply.
(7) Separate letters should be written on each account for prompt
and efficient processing.
(8) Letters lacking data will be returned for added documents.
(d) Debt complaints returned to creditors without action. Requests
for help in processing debt complaints will be returned without action
with an explanation if--
(1) Creditors did not enclose the following:
(i) Documents showing compliance with the Truth-in-Lending Act,
Federal Reserve Board Regulation Z, or State regulation.
(ii) Signed copies of the Certificate of Compliance with DOD
Standards of Fairness.
(iii) A completed copy of form with the Full Disclosure Information.
(See Sec. 513.4(a)(6).)
(iv) Signed copies of the contract.
(v) Legible copies of actual correspondence or documentary proof
showing that every effort has been made to get the payment by direct
contact with the soldier. (See Sec. 513.4(c)(1)(v).)
(2) The soldier is located in a State whose laws forbid creditors
from contacting employers.
(3) The claim is obviously false or misleading.
(4) The finance charge does not conform to the State law where the
contract is signed.
(5) A U.S. company operating overseas exceeds the lowest interest
rate of the State or States where chartered or doing business in the
United States.
(6) The contract or loan agreement provides that the debtor must pay
the creditor's attorney fees, unless the following limitations in
Sec. 513.4(d)(6) (i) through (iii) are included. No attorney's fee may
be charged for services done by a salaried employee of the creditor.
(i) The fees will have to be paid only in the event of a default by
the soldier.
(ii) The fees will have to be paid only if a lawsuit is filed.
(iii) The fees will not exceed 20 percent of the amount found due.
(7) A penalty for prepayment has been charged.
(8) A charge has been made for an insurance premium without
satisfactory proof of--
(i) A policy or insurance certificate having been issued.
(ii) Delivery of a policy or certificate to the soldier within 30
days of issuance.
(9) The late charge is in excess of 5 percent of the late payment,
or $5, whichever is the lesser amount. Only one late charge may be made
for any late installment. Late charges will not be made where an
allotment has been timely filed, but payment has been delayed.
(10) The creditor has not given the soldier a chance to answer a
previous inquiry. (Forty-five days for those in the contiguous 48 States
and the District of Columbia; 60 days for all others.)
(11) The claimant is a debt collector without a court order or a
signed letter of consent by the soldier. (See Sec. 513.1(g).)
(12) The debt is covered by an order of a bankruptcy court.
(e) Cancellation of debt processing privilege. (1) Creditors who
refuse or fail repeatedly to follow these terms will
[[Page 80]]
be referred through channels to the Commander, USACFSC, Attn: DACF-IS-
PA, Alex, Va 22331-0522, by the commander.
(2) The CG, USACFSC will--
(i) Cancel debt processing privileges if the queries clearly show
that the creditor is--
(A) Not conforming with this regulation.
(B) Trying to make unreasonable use of the debt processing
privilege.
(C) Trying to use the Army as a collection agency.
(ii) Inform commanders worldwide by electrical message that the debt
processing privilege of a specific creditor has been revoked.
(iii) Inform the creditor that his or her debt processing privilege
has been revoked and state the reasons for this action.
(f) Exemptions from Full Disclosure and Standards of Fairness. The
debt complaints discussed below are exempt from the Full Disclosure and
Standards of Fairness. This does not prevent the debtor from questioning
service charges and negotiating a fair and reasonable settlement.
(1) Claims from private parties selling personal items (for example,
car, furniture, appliances) on a one-time basis.
(2) Claims from companies or individuals giving services in which
credit is given only to help the soldier (for example, utilities, milk,
laundry, medical, and related services).
(3) Claims by endorsers, comakers, or lenders who intend only to
help the soldier in getting credit. These claims, however, may not
benefit the above through receipt of interest or otherwise.
(4) Contract for the purchase, sale, or rental of real estate.
(5) Claims in which the total unpaid amount does not exceed $50.
(6) Claims based on a revolving or open-end credit account. The
account must show--
(i) The periodic interest rate and the equivalent annual rate.
(ii) The balance to which the interest is applied to compute the
charge.
(7) Claims as security liens on real property (for example, a
house). This does not include improvements or repairs.
(8) Attorneys representing parties under Sec. 513.4(f) (1) through
(7).
Sec. 513.5 Procedures governing nonactive duty or discharged personnel.
(a) Procedures governing nonactive duty personnel. (1) Debt
complaints against former soldiers or others not on active duty will be
sent to the Commander, U.S. Army Reserve Personnel Center (ARPERCEN),
ATTN: DARP-PSE-VS, 9700 Page Boulevard, St. Louis, MO 63132-5200.
(2) After ARPERCEN verifies the status, the following officials will
act as prescribed below.
(i) Chief, National Guard Bureau, Wash DC 20310-2500, for soldiers
of the Army National Guard.
(ii) The area commander concerned for Ready Reservists assigned to
troop program units under their control. (See AR 140-1, para 1-6.)
(iii) ARPERCEN for nonunit soldiers assigned to Control Groups of
the Ready Reserve, Standby Reserve, and Retired Reserve.
(3) The officials cited in Sec. 513.5(a)(2) will ensure that debt
complaints are delivered to the person concerned, using military
channels. When the complaint cannot be delivered through military
channels, it will be sent to the last known mailing address of the
person by certified mail, using PS Form 3811 (Return Receipt,
Registered, Insured, and Certified Mail). It should be marked Return
Receipt Requested--Deliver to Addressee Only. This form is available at
U.S. post offices.
(4) After delivery of correspondence, the responsible official will
advise the claimant--
(i) Of the date and method of delivery.
(ii) That the military department does not control the personal
affairs of nonactive duty personnel. These personnel usually are in a
civilian status and are not subject to military discipline. Therefore,
the matter has been left to the person's discretion.
(iii) Of the person's mailing address only if the conditions in
Sec. 513.5(c) are met.
[[Page 81]]
(b) Procedures governing discharged personnel. (1) Debt complaints
against persons who have been discharged from the service (that is,
those now holding no military status) will be sent to ARPERCEN.
(2) ARPERCEN will return the correspondence, and all accompanying
documentation, and advise the claimaint--
(i) That the person is no longer a member of the Army or the Reserve
Components.
(ii) Of the date of discharge.
(iii) That the Army no longer has control or authority over the
discharged personnel. Therefore, the Army can take no further action in
this matter.
(iv) Of the person's mailing address only if the conditions in
Sec. 513.5(c) are met.
(c) Conditions for disclosing mailing address. Nonactive duty and
discharged personnel's mailing addresses will not be disclosed unless--
(1) The person consents in writing to the release of his or her
address.
(2) The claimant sends a court order directing the release of the
address.
(3) Any other reason that does not constitute a violation of the
Privacy Act of 1974.
(d) Retired personnel. (1) The claimant may be advised that
correspondence may be sent to the retired person as follows:
(i) Place correspondence in a stamped envelope with the retired
person's name typed or printed on the envelope.
(ii) Place a stamped envelope in a second envelope and mail to
Commander, ARPERCEN, Attn: DARP-PSE-VS, 9700 Page Boulevard, St. Louis,
MO 63131-5200.
(2) ARPERCEN will forward the correspondence to the retired person,
but cannot release the address per provisions of the Privacy Act of
1974.
Appendix A to Part 513--References
Section I
Required Publications.
AR 340-2
Maintenance and Dispostion of Records in TOE Units of the Active
Army, the Army Reserve and the National Guard. (Cited in
Sec. 513.3(b)(2)).
AR 340-17
Release of Information and Records from Army Files. (Cited in
Sec. 513.2(a)(3)(viii)(H)).
AR 340-18
The Army Functional Files System. (Cited in Sec. 513.3(b)(2)).
AR 340-21
The Army Privacy Program. (Cited in Secs. 513.1(d)(5)(iv) and
513.2(a)(3)(viii)(H)).
AR 600-37
Unfavorable Information. (Cited in Sec. 513.3(b) (2) and (3)).
DA Pam 27-166
Soldiers' and Sailors' Civil Relief Act. (Cited in Sec. 513.4(b)).
DA Pam 360-520
Credit: Master or Servant. (Cited in Secs. 513.2(a)(3)(viii)(G) and
513.4(a)(4)).
Uniform Code of Military Justice. (Cited in Secs. 513.1(e)(7)(iv),
513.2(a)(3)(viii)(D) and 513.3(a)(4)).
Section II
Related Publications.
A related publication is merely a source of additional information.
The user does not have to read it to understand this regulation.
AR 1-9
White House Liaison, Communications, and Inspections.
AR 11-2
Internal Control Systems.
AR 27-3
Legal Assistance.
AR 37-60
Pricing for Materiel and Services.
AR 140-1
USAR--Mission, Organization, and Training.
AR 210-24
Credit Unions.
AR 210-60
Control and Prevention of Abuse of Check Cashing Privileges.
AR 210-135
Banking Service on Army Installations.
AR 601-280
Army Reenlistment Program.
[[Page 82]]
AR 608-1
Army Community Service Program.
AR 608-99
Family Support, Child Custody, and Paternity.
AR 635-100
Officer Personnel (Separations).
AR 635-200
Enlisted Personnel (Separations).
DODD 1344.9
Indebtedness of Military Personnel.
Federal Reserve Board Regulation Z Truth in Lending.
Section III
Prescribed Forms.
DA Form 4817-R
Consent/Nonconsent to Disclose Personal Information. (Cited in
Secs. 513.2(a)(3)(viii) (A) and (H), and 513.2(d)(4)(iv)).
Section IV
Referenced Forms.
DA Form 209
Delay, Referral, or Follow-Up Notice.
PS Form 3811
Return Receipt, Registered, Insured, and Certified Mail.
Appendix B to Part 513--Standards of Fairness
B-1. No finance charge contracted for, made, or received under any
contract shall be in excess of the charge which could be made for such
contract under the law of the place in which the contract is signed in
the United States by the military member.
a. In the event a contract is signed with a U.S. company in a
foreign country, the lowest interest rate of the State or States in
which the company is chartered or does business shall apply.
b. However, interest rates and service charges applicable to
overseas military banking facilities will be established by the
Department of Defense.
B-2. No contract or loan agreement shall provide for an attorney's
fee in the event of default unless suit is filed, in which event the fee
provided in the contract shall not exceed 20 percent of the obligation
found due. No attorney fees shall be authorized if the attorney is a
salaried employee of the holder.
B-3. In loan transactions, defenses which the debtor may have
against the original lender or its agent shall be good against any
subsequent holder of the obligation. In credit transactions, defenses
against the seller or its agent shall be good against any subsequent
holder of the obligation, provided that the holder had actual knowledge
of the defense or under conditions where reasonable inquiry would have
apprised the holder of this fact.
B-4. The military member shall have the right to remove any security
for the obligation beyond State or national boundaries if the military
member or family moves beyond such boundaries under military orders and
notifies the creditor, in advance of the removal, of the new address
where the security will be located. Removal of the security shall not
accelerate payment of the obligation.
B-5. No late charge shall be made in excess of 5 percent of the late
payment, or $5 whichever is the lesser amount, or as provided by law or
applicable regulatory agency determination. Only one late charge may be
made for any tardy installment. Late charges will not be levied where an
allotment has been timely filed, but payment of the allotment has been
delayed. Late charges by overseas banking facilities are a matter of
contract with the Department of Defense. Late charges by Federal credit
unions are set at 20 percent of the interest due with a minimum of not
less than 5 cents.
B-6. The obligation may be paid in full at any time or through
accelerated payments of any amount. There shall be no penalty for
prepayment and in the event of prepayment that portion of the finance
charges which has inured to the benefit of the seller of the creditor
shall be prorated on the basis of the charges which would have been
ratably payable had finance charges been calculated and payable as equal
periodic payments over the terms of the contract and only the prorated
amount to the date of prepayment shall be due. As an alternative the
``Rule of 78'' may be applied.
B-7. If a charge is made for loan insurance protection, it must be
evidenced by delivery of a policy or certificate of insurance to the
military member within 30 days.
B-8. If the loan or contract agreement provides for payments in
installments, each payment, other than the down payment, shall be in
equal or substantially equal amounts, and installments shall be
successive and of equal or substantially equal duration.
B-9. If the security for the debt is repossessed and sold in order
to satisfy or reduce the debt, the repossession and resale will be
governed by the laws of the State in which the security is requested.
B-10. A contract for personal goods and services may be terminated
at any time before delivery of the goods or services without charge to
the purchaser. However, if goods
[[Page 83]]
made to the special order of the purchaser result in preproduction
costs, or require preparation for delivery, such additional costs will
be listed in the order form or contract.
a. No termination charge will be made in excess of this amount.
Contracts for delivery at future intervals may be terminated as to the
undelivered portion.
b. The purchaser shall be chargeable only for that proportion of the
total cost which the goods or services delivered bear to the total goods
called for by the contract. (This is in addition to the right to rescind
certain credit transactions involving a security interest in real estate
provided by Pub. L. 90-321, ``Truth-in-Lending Act,'' section 125 (15
U.S.C. 1601 (1976)) and the Federal Reserve Board Regulation Z (12 CFR
part 226 and Secs. 226.3, 226.9 (1978)).
Appendix C to Part 513--Glossary
Section I--Abbreviations
ARNGUS: Army National Guard of the United States
ARPERCEN: U.S. Army Reserve Personnel Center
AUTOVON: automatic voice network
DA: Department of the Army
DOD: Department of Defense
HQDA: Headquarters, Department of the Army
MHD: medical holding detachment
SJA: staff judge advocate
SSN: social security number
UCMJ: Uniform Code of Military Justice
USACFSC: U.S. Army Community and Family Support Center
USAEREC: U.S. Army Enlisted Records and Evaluation Center
USAFAC: U.S. Army Finance and Accounting Center
USAR: U.S. Army Reserve
U.S.C. U.S. Code
Section II--Terms
Check: A written order, usually on a standard printed form, directing a
bank or credit union to pay money.
Creditor: Any person or business that offers or extends credit, or to
whom or to which a debt is owed. This term includes lending institutions
(such as centralized charge systems) which, although not parties to the
original transactions, seek help in collecting debts.
Debt: Any legal debt acknowledged by the soldier, or in which there is
no reasonable dispute as to the facts or law, or which has been reduced
to judgment.
Debt collector: Any person or business that solely collects debts owed
to another person or business. (A debt collector is not a creditor.)
Disputed debt: Any debt, not reduced to a judgment, in which there is a
genuine dispute between the parties as to the facts or law relating to
the debt which would affect the obligation the soldier to pay.
Family member: As used in this regulation, an individual who qualifies
for dependency benefits under certain conditions as set by Army
regulations. (For example, spouse or unmarried child, to include
stepchildren, and adopted or illegitimate children.)
Judgment: Any decision given by a court of justice or other competent
tribunal as a result of proceedings instituted therein. As defined, a
judgment includes any administrative enforcement order
(Vollstreckungsanordnung) issued by the German federal post office
(Deutsche Bundespost) regarding unpaid telephone bills. Such orders come
within the coverage of this regulation regardless of where the soldier
is stationed.
Soldier: Commissioned and warrant officers and enlisted personnel.
[51 FR 7275, Mar. 3, 1986; 51 FR 8824, Mar. 14, 1986]
PART 516--LITIGATION--Table of Contents
Subpart A--General
Sec.
516.1 Purpose.
516.2 References.
516.3 Explanation of abbreviations and terms.
516.4 Responsibilities.
516.5 Restriction on contact with DOJ.
516.6 Appearance as counsel.
516.7 Mailing addresses.
Subpart B--Service of Process
516.8 General.
516.9 Service of criminal process within the United States.
516.10 Service of civil process within the United States.
516.11 Service of criminal process outside the United States.
516.12 Service of civil process outside the United States.
516.13 Assistance in serving process overseas.
516.14 Service of process on DA or Secretary of Army.
Subpart C--Reporting Legal Proceedings to HQDA
516.15 General.
516.16 Individual and supervisory procedures upon commencement of legal
proceedings.
516.17 SJA or legal adviser procedures.
516.18 Litigation alleging individual liability.
516.19 Injunctive relief.
[[Page 84]]
516.20 Habeas Corpus.
516.21 Litigation against government contractors.
516.22 Miscellaneous reporting requirements.
516.23 Litigation reports.
516.24 Preservation of evidence.
516.25 DA Form 4.
516.26 Unsworn declarations under penalty of perjury.
Subpart D--Individual Liability
516.27 Scope.
516.28 Policy.
516.29 Federal statutes and regulations.
516.30 Procedures for obtaining certification and DOJ representation.
516.31 Private counsel at government expense.
516.32 Requests for indemnification.
Subpart E--Legal Proceedings Initiated by the United States Medical Care
and Property Claims
516.33 General.
516.34 Referral of medical care and property claims for litigation.
516.35 Preparation of claims for litigation.
Assertion of Other Claims
516.36 Referral to Litigation Division.
516.37 Proceedings to repossess government real property or quarters or
to collect delinquent rent.
Subpart F--Environmental Litigation
516.38 Scope.
516.39 Duties and procedures.
Subpart G--Release of Information and Appearance of Witnesses Scope
516.40 General.
516.41 Policy.
516.42 Reference to HQDA.
Release of Records in Connection With Litigation
516.43 Release of Army and other agency records.
516.44 Determination of release authorization.
516.45 Records determined to be releasable.
516.46 Records determined not to be releasable.
DA Personnel as Witnesses in Private Litigation
516.47 Response to subpoenas, orders, or requests for witnesses.
516.48 Official information.
516.49 Expert witnesses.
516.50 Interference with mission.
Litigation in Which the United States Has an Interest
516.51 Response to subpoenas, orders, or requests for witnesses.
516.52 Expert witnesses.
516.53 News media and other inquiries.
Status, Travel, and Expenses of Witnesses
516.54 Witnesses for the United States.
516.55 Witnesses for a State or private litigant.
516.56 Witnesses before foreign tribunals.
Subpart H--Remedies in Procurement Fraud and Corruption
516.57 Purpose.
516.58 Policies.
516.59 Duties and procedures.
516.60 Procurement fraud and irregularities programs at MACOMs.
516.61 Reporting requirements.
516.62 PFD and HQ USACIDC coordination.
516.63 Coordination with DOJ.
516.64 Comprehensive remedies plan.
516.65 Litigation reports in civil recovery cases.
516.66 Administrative and contractual actions.
516.67 Overseas cases of fraud or corruption.
516.68 Program Fraud Civil Remedies Act (PFCRA).
Subpart I--Cooperation With the Office of Special Counsel
516.69 Introduction.
516.70 Policy.
516.71 Duties.
516.72 Procedures.
516.73 Assistance from HQDA.
Subpart J--Soldiers Summoned to Serve on State and Local Juries
516.74 General.
516.75 Policy.
516.76 Exemption determination authority.
516.77 Procedures for exemption.
516.78 Status, fees, and expenses.
Appendix A to Part 516--References.
Appendix B to Part 516--Mailing Addresses.
Appendix C to Part 516--Department of Defense Directive 5405.2, Release
of Official Information in Litigation and Testimony by DOD
Personnel as Witnesses.
Appendix D to Part 516--Department of Defense Directive 7050.5,
Coordination of Remedies for Fraud and Corruption Related to
Procurement Activities.
[[Page 85]]
Appendix E to Part 516--Department of Defense Directive 5505.5,
Implementation of the Program Fraud Civil Remedies Act.
Appendix F to Part 516--Glossary.
Appendix G to Part 516--Figures.
Authority: 5 U.S.C. 552; 10 U.S.C. 218, 1037, 1089, 1552, 1553,
2036; 18 U.S.C. 219, 3401; 28 U.S.C. 50, 513, 515, 543; 31 U.S.C. 3729
and 41 U.S.C. 51; 42 U.S.C. 290, 2651; 43 U.S.C. 666
Source: 59 FR 38236, July 27, 1994, unless otherwise noted.
Subpart A--General
Sec. 516.1 Purpose.
(a) This part prescribes policies and procedures for the following:
(1) Defensive and affirmative litigation in Federal and state
civilian courts where the Army or DOD has an interest in the matter.
(2) Proceedings before Federal or state administrative bodies, such
as utility rate commissions.
(3) Release of official information and testimony by DA personnel
with regard to litigation.
(4) Remedies for procurement fraud and corruption.
(5) Environmental civil litigation and administrative proceedings.
(6) Proceedings before the Office of Special Counsel.
(b) This regulation does not apply to DA or DOD proceedings such as
courts-martial or administrative boards.
Sec. 516.2 References.
Applicable publications and forms are listed in appendix A to this
part.
Sec. 516.3 Explanation of abbreviations and terms.
(a) The Glossary contains explanations of abbreviations and terms.
(b) The masculine gender has been used throughout this regulation
for simplicity and consistency. Any reference to the masculine gender is
intended to include women.
Sec. 516.4 Responsibilities.
(a) United States Department of Justice (DOJ). DOJ will defend
litigation in domestic and foreign courts, against the United States,
its agencies and instrumentalities, and employees whose official conduct
is involved. The various U.S. Attorney Offices, under the oversight of
the Attorney General, will conduct much of the representation.
(b) The Judge Advocate General (TJAG). Subject to the ultimate
control of litigation by DOJ (including the various U.S. Attorney
Offices), and to the general oversight of litigation by the Army General
Counsel, TJAG is responsible for litigation in which the Army has an
interest except with respect to proceedings addressed in paragraph (i)
of this section, only TJAG (or Chief, Litigation Division) will
communicate to DOJ the army's position with regard to settlement of a
case.
(c) Assistant Judge Advocate General For Civil Law and Litigation
(AJAG-CL). Responsible to TJAG for litigation issues; supervises Chief,
Litigation Division.
(d) Chief, Litigation Division. Reports to AJAG-CL and is
responsible for the following:
(1) Supervising litigation in which the Army has an interest.
(2) Acting for TJAG and Secretary of the Army on litigation issues,
including the authority to settle or compromise cases, subject to the
supervision of TJAG and AJAG-CL.
(3) Delegating cases if appropriate.
(4) Serving as primary contact with DOJ on litigation.
(5) Accepting service of process for DA and for the Secretary of the
Army in his official capacity. See 32 CFR Sec. 257.5).
(e) Special Assistant U.S. Attorneys (SAUSAs) and DOJ Special
Attorneys. Army judge advocates and civilian attorneys, when appointed
as SAUSAs under 28 U.S.C. 543, will represent the Army's interests in
either criminal or civil matters in Federal court under the following
circumstances:
(1) Felony and misdemeanor prosecutions in Federal court. Army
attorneys, at the installation level, after being duly appointed (See AR
27-10), will prosecute cases, in which the Army has an interest, in
Federal court. Army attorneys who prosecute criminal cases will not
represent the United States in civil litigation without authorization
from Chief, Litigation Division.
[[Page 86]]
(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
and represent DA in litigation and administrative proceedings a rising
from the navigation, civil works, Clean Water Act 404 permit authority,
environmental response activities, and real property functions of the
U.S. Army Corps of Engineers.
(j) Chief Trial Attorney, Contract Appeals Division, USALSA. The
Chief Trial Attorney, attorneys assigned to the Contract Appeals
Division, and attorneys designated by the Chief Trial Attorney will
represent the government before the Armed Services Board of Contract
Appeals and the General Services Board of Contract Appeals. They will
maintain direct liaison with DOJ concerning appeals from ASBCA and GSBCA
decisions. The Chief Trial Attorney has designated COE attorneys to act
as trial attorneys in connection with COE contract appeals.
(k) Chief, Regulatory Law Office, USALSA. The Chief, Regulatory Law
Office, attorneys assigned to the Regulatory Law Office, and other
attorneys designated by the Chief, will represent DA consumer interests
in regulatory matters before state and Federal administrative agencies
and commissions, including but not limited to proceedings involving
rates and conditions for the purchase of services for communications
(except long-distance telephone), transportation, and utilities (gas,
electric, water and sewer). They will maintain direct liaison with DOJ
for communications, transportation, and utilities litigation.
(l) Chief, Intellectual Property Law Division, USALSA. The Chief,
Intellectual Property Law Division, and the attorneys assigned thereto
will represent DA in matters pertaining to patents, copyrights, and
trademarks. They will maintain direct liaison with DOJ concerning
intellectual property issues.
(m) Chief, Labor and Employment Law Office, OTJAG. The Chief, Labor
and Employment Law Office, attorneys assigned thereto, and attorneys
identified as labor counselors will represent DA in matters pertaining
to labor relations, civilian personnel, and Federal labor standards
enforcement before the following: Federal Labor Relations Authority;
Merit Systems Protection Board; Equal Employment Opportunity Commission;
Department of Labor; National Labor Relations Board; and, state
workmen's compensation commissions. In the event any individual
mentioned in this subparagraph intends to make a recommendation to DOJ
concerning an appeal of any case to a U.S. Court of Appeals, such
recommendation will first be coordinated with Litigation Division.
[[Page 87]]
(n) Chief, Procurement Fraud Division, USALSA. The Chief,
Procurement Fraud Division, attorneys assigned thereto, and other
attorneys designated by the Chief will represent DA in all procurement
fraud and corruption matters before the Army suspension and debarment
authority and before any civil fraud recovery administrative body. They
will maintain liaison and coordinate remedies with DOJ and other
agencies in matters of procurement fraud and corruption.
(o) Chief, Environmental Law Division, USALSA. The Chief,
Environmental Law Division, attorneys assigned thereto, and other
attorneys designated by the Chief, ELD, will maintain direct liaison
with DOJ and represent DA in all environmental and natural resources
civil litigation and administrative proceedings involving missions and
functions of DA, its major and subordinate commands, installations
presently or previously managed by DA, and other sites or issues in
which DA has a substantial interest, except as otherwise specifically
provided in this part.
(p) Chief, Criminal Law Division, OTJAG. The Chief, Criminal Law
Division, will have general oversight of felony and magistrate court
prosecutions conducted by Army lawyers acting as Special Assistant U.S.
Attorneys. (See subpart G of this part). The Chief will coordinate with
DOJ and other governmental agencies concerning the overall conduct of
these prosecutions.
[59 FR 38236, July 27, 1994; 59 FR 45974, Sept. 6, 1994]
Sec. 516.5 Restriction on contact with DOJ.
(a) General rule. Except as authorized by TJAG, the General Counsel,
the Chief of Litigation Division, or this regulation, no Army personnel
will confer or correspond with DOJ concerning legal proceedings in which
the Army has an interest.
(b) Exceptions. This prohibition does not preclude contact with DOJ
required by the Memorandum of Understanding between DOJ and DOD relating
to the investigation and prosecution of certain crimes. (See AR 27-10,
para 2-7). In addition, an installation SJA or legal adviser is expected
to maintain a working relationship with the U.S. Attorney in each
district within his geographical area. An SJA or legal adviser should
request the U.S. Attorney to advise him immediately when litigation
involving DA or its personnel is served on the U.S. Attorney.
[59 FR 38236, July 27, 1994; 59 FR 45974, Sept. 6, 1994]
Sec. 516.6 Appearance as counsel.
(a) General. Military personnel on active duty and DA civilian
personnel will not appear as counsel before any civilian court or in any
preliminary proceeding, for example, deposition, in litigation in which
the Army has an interest without the prior written approval of TJAG,
except under the following conditions:
(1) The appearance is authorized by this regulation.
(2) The individual is a party to the proceeding.
(3) The appearance is authorized under an expanded legal assistance
program (See AR 27-3).
(4) The individual is a judge advocate assigned or detailed by TJAG
to DOJ to represent the United States in civil or criminal cases, for
example, a Special Assistant U.S. Attorney, or an attorney assigned to
Litigation Division.
(b) Procedure. All requests for appearance as counsel will be made
through Litigation Division to the Personnel, Plans and Training Office,
OTJAG. Requests for DA military or civilian attorneys to appear in any
civilian court or proceeding on behalf of a soldier who is also facing
UCMJ action will be delivered to the SJA, legal adviser, or Regional
Defense Counsel, as appropriate. The SJA or legal adviser will forward
the request to Litigation Division with an evaluation of the case and
recommendation. Regional Defense Counsel should send requests for USATDS
counsel to Chief, USATDS, who will forward the request to Litigation
Division. Privileged or otherwise sensitive client information should
only be submitted through USATDS channels.
[[Page 88]]
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 G to this part.
[59 FR 38236, July 27, 1994; 59 FR 45975, Sept. 6, 1994]
Sec. 516.10 Service of civil process within the United States.
(a) Policy. DA officials will not prevent or evade the service or
process in legal actions brought against the United States or against
themselves in their official capacities. If acceptance of service of
process would interfere with the performance of military duties, Army
officials may designate a representative to accept service. DA personnel
sued in their individual capacity should seek legal counsel concerning
voluntary acceptance of process.
(b) Request for witnesses or evidence in civil proceedings. See
subpart G to this part.
(c) Process of Federal courts. Subject to reasonable restrictions
imposed by the commander, civil officials will be permitted to serve
Federal process. (See Fed. R. Civ. P. 4, 45).
(d) Process of state courts.
(1) In areas of exclusive Federal jurisdiction that are not subject
to the right to serve state process, the commander or supervisor will
determine whether the individual to be served wishes to accept service
voluntarily. A JA or other DA attorney will inform the individual of the
legal effect of voluntary acceptance. If the individual does not desire
to accept service, the party requesting service will be notified that
the nature of the exclusive Federal jurisdiction precludes service by
state authorities on the military installation.
(2) On Federal property where the right to serve process is reserved
by or granted to the state, in areas of concurrent jurisdiction, or
where the United States has only a proprietary interest, Army officials
asked to facilitate service of process will initially proceed as
provided in the preceding subparagraph. If the individual declines to
accept service, the requesting party will be allowed to serve the
process in accordance with applicable state law, subject to reasonable
restrictions imposed by the commander.
(e) Process of foreign courts. A U.S. District Court may order
service upon a person who resides in the judicial district of any
document issued in connection with a proceeding in a foreign or
international tribunal. (28 U.S.C. 1696). In addition, the U.S. State
Department has the power to receive a letter rogatory issued by a
foreign or international tribunal, to transmit it to a tribunal, officer
or agency in the United States, and to return it after execution. (28
U.S.C. 1781). Absent a
[[Page 89]]
treaty or agreement to the contrary, these provisions will govern.
(f) Seizure of personal property. State and Federal courts issue
orders (for example, writ of attachment) authorizing a levy (seizure) of
property to secure satisfaction of a judgment. DA personnel will comply
with valid state or Federal court orders commanding or authorizing the
seizure of private property to the same extent that state or Federal
process is served.
[59 FR 38236, July 27, 1994; 59 FR 45975, Sept. 6, 1994]
Sec. 516.11 Service of criminal process outside the United States.
Army Regulation 630-10 and international treaties, such as status of
forces agreements, govern the service of criminal process of foreign
courts and the surrender of soldiers to foreign civilian law enforcement
officials.
Sec. 516.12 Service of civil process outside the United States.
(a) Process of foreign courts. In foreign countries service of
process issued by foreign courts will be made under the law of the place
of service, as modified by status of forces agreements, treaties or
other agreements. In foreign areas under exclusive U.S. jurisdiction,
service of process issued by foreign courts will be made under the law
specified by appropriate U.S. authority.
(b) Process of Federal courts. Service of process on U.S. citizens
or residents may be accomplished under the following provisions: The
Hague Convention, reprinted in 28 USCA Federal Rules of Civil Procedure,
following Rule 4; Fed. R. Civ. P. 4(i); 28 USC 1781 and 1783; and, the
rules of the Federal 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.
[[Page 90]]
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
[[Page 91]]
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.
[[Page 92]]
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.
[[Page 93]]
(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
[[Page 94]]
witness statements. Include details of previous administrative actions,
such as the filing and results of an administrative claim. If the action
is predicated on the Federal Tort Claims Act, include a description of
the plaintiff's relationship to the United States, its
instrumentalities, or its contractors. Also include a statement whether
an insurance company or other third party has an interest in the
plaintiff's claim by subrogation or otherwise and whether there are
additional claims related to the same incident.
(b) Setoff or Counterclaim. Discuss whether setoff or counterclaim
exists. If so, highlight the supportive facts.
(c) Responses to Pleadings. Prepare a draft answer or other
appropriate response to the pleadings. (See figure C-1, to this part).
Discuss whether allegations of fact are well-founded. Refer to evidence
that refutes factual allegations.
(d) Memorandum of Law. Include a brief statement of the applicable
law with citations to legal authority. Discussions of local law, if
applicable, should cover relevant issues such as measure of damages,
scope of employment, effect of contributory negligence, or limitations
upon death and survival actions. Do not unduly delay submission of a
litigation report to prepare a comprehensive memorandum of law.
(e) Potential witness information. List each person having
information relevant to the case and provide an office address and
telephone number. If there is no objection, provide the individual's
social security account number, home address, and telephone number. This
is ``core information'' required by Executive Order No. 12778 (Civil
Justice Reform). Finally, summarize the information or potential
testimony that each person listed could provide.
(f) Exhibits.
(1) Attach a copy of all relevant documents. This is ``core
information'' required by Executive Order No. 12778 (Civil Justice
Reform). Unless otherwise directed by HQDA, 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.
[[Page 95]]
(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
[[Page 96]]
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
[[Page 97]]
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.
[[Page 98]]
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
[[Page 99]]
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,
[[Page 100]]
``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.
[[Page 101]]
(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
[[Page 102]]
(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.
[[Page 103]]
(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,
[[Page 104]]
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
[[Page 105]]
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
[[Page 106]]
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
[[Page 107]]
(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
[[Page 108]]
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:
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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
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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
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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.
[[Page 112]]
(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
[[Page 113]]
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.
[[Page 114]]
(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
[[Page 115]]
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.
[[Page 116]]
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-
[[Page 117]]
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
[[Page 118]]
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.
[[Page 119]]
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.)
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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
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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
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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
1. The General Counsel, Department of Defense (GC, DoD), shall
provide general policy and procedural guidance by the issuance of
supplemental instructions or specific orders concerning the release of
official DoD information in litigation and the testimony of DoD
personnel as witnesses during litigation.
2. The Heads of DoD Components shall issue appropriate regulations
to implement this Directive and to identify official information that is
involved in litigation.
F. Procedures
1. Authority to Act
a. In response to a litigation request or demand for official DoD
information or the testimony of DoD personnel as witnesses, the General
Counsels of DoD, Navy, and the Defense Agencies; the Judge Advocates
General of the Military Departments; and the Chief Legal Advisors to the
JCS and the Unified and Specified Commands, with regard to their
respective Components, are authorized--after consulting and coordinating
with the appropriate Department of Justice litigation attorneys, as
required--to determine whether official information originated by the
Component may be released in litigation; whether DoD personnel assigned
to or affiliated with the Component may be interviewed, contacted, or
used as witnesses concerning official DoD information or as expert
witnesses; and what, if any, conditions will be imposed upon such
release, interview, contact, or testimony. Delegation of this authority,
to include the authority to invoke appropriate claims of privilege
before any tribunal, is permitted.
b. In the event that a DoD Component receives a litigation request
or demand for official information originated by another Component, the
receiving Component shall forward the appropriate portions of the
request or demand to the originating Component for action in accordance
with this Directive. The receiving Component shall also notify the
requestor, court, or other authority of its transfer of the request or
demand.
c. Notwithstanding the provisions of paragraphs F.1.a. and b., the
GC, DoD, in litigation involving terrorism, espionage, nuclear weapons,
intelligence means or sources, or otherwise as deemed necessary, may
notify Components that GC, DoD, will assume primary responsibility for
coordinating all litigation requests and demands for official DoD
information or the testimony of DoD personnel, or both; consulting with
the Department of Justice, as required; and taking final action on such
requests and demands.
2. Factors to Consider
In deciding whether to authorize the release of official DoD
information or the testimony of DoD personnel concerning official
information (hereinafter referred to as ``the disclosure'') pursuant to
paragraph F.1., DoD officials should consider the following types of
factors:
a. Whether the request or demand is unduly burdensome or otherwise
inappropriate under the applicable court rules;
b. Whether the disclosure, including release in camera, is
appropriate under the rules of procedure governing the case or matter in
which the request or demand arose;
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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).
[[Page 124]]
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
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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.
[[Page 126]]
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)).
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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 the b. Defense Logistics Agency's
Department of Defense. (DLA) ``Contract
Administration Defense
Logistics Agency's (DLA)
Contract Administration Report
(CAR Report) on contracts DLA
administers.
2. Financial status of corporation, a. Dunn and Bradstreet Reports.
history of corporation, owners, and b. Corporate filings with local
officers. secretaries of the State, or
corporate recorders.
c. Securities and Exchange
Commission (public
corporations).
d. Small Business
Administration (SBA) (small
businesses).
e. General Accounting Office
(bid protests, and contractors
indebted to the Government).
f. Armed Services Board of
Contract Appeals (ASBCA) or
court litigation.
g. List of Contractors Indebted
to the United States
(maintained, published and
distributed by the U.S. Army
Finance and Accounting Center,
Indianapolis, Indiana 46249).
3. Security clearance background a. Defense Investigative
information on facility and officers. Service.
4. Performance history of contractor... a. Local contracting officers.
b. Defense Contract
Administration Service
preaward surveys.
c. SBA Certificate of
Competency records.
5. Name, location, offense alleged, and DLA Automated Criminal Case
previous investigative efforts Management System. (Available
involving DLA-awarded or DLA- through field offices of the
administered contracts. DLA Counsel's office.)
6. Bid protests, litigation, and Field offices of the DLA
bankruptcy involving DLA-awarded or Counsel's office.
DLA-administered contracts.
------------------------------------------------------------------------
\1\ A determination as to the contract history of any DoD contractor
with contracts in excess of $25,000 annually can be made through a
review of the ``Individual Procurement Action Report'' (DD Form 350)
system, as prescribed by Subpart 4.6 of the DoD FAR Supplement, DoD
Instruction 4105.61, and DoD 4105.61-M (references (c), (d), and (e)).
Actions to be Taken in Product Substitution Investigations
A. The centralized organization, in all cases involving allegations
of product substitution in which a SERIOUS HAZARD to health, safety, or
operational readiness is indicated shall:
1. Review the notice of the case immediately after receiving it from
the Defense criminal investigative organization. Review the notice to
determine any potential safety
[[Page 128]]
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
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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
[[Page 130]]
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.
[[Page 131]]
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.
[[Page 132]]
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.
[[Page 133]]
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'
[[Page 134]]
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.
[[Page 135]]
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.
[[Page 136]]
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.
[[Page 137]]
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.
[[Page 138]]
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
[[Page 139]]
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.
[[Page 140]]
c. Means to ensure verifications of an interview by OSC
investigators are appropriate, whether or not the military member or
civilian employee is accompanied by counsel. Tape recorders may only be
used for this purpose when--
(1) The recorder is used in full view.
(2) All attendees are informed.
(3) The OSC investigator agrees to record the proceeding.
d. Any errors that appear in a written summary of an interview
prepared by the investigator should be corrected before the member or
employee signs the statement. The military member or civilian employee
is not required to sign any written summary that is not completely
accurate. A military member or civilian employee may receive a copy of
the summary as a condition of signing.
PART 518--THE ARMY FREEDOM OF INFORMATION ACT PROGRAM--Table of Contents
Subpart A--General Provisions
References
Sec.
518.1 References.
518.2 References (Army).
Purpose and Applicability
518.3 Purpose.
518.4 Applicability.
DoD Public Information
518.5 ODISC4 Authority to approve exceptions.
518.6 Public information.
518.7 Control system.
Definitions
518.8 Definitions and terms.
518.9 FOIA request.
518.10 Agency record.
518.11 DoD component.
518.12 Initial denial authority (IDA).
518.13 Appellate authority.
518.14 Administrative appeal.
518.15 Public interest.
518.16 Electronic data.
518.17 Law enforcement investigation.
Policy
518.18 Compliance with the FOIA.
518.19 Openness with the public.
518.20 Avoidance of procedural obstacles.
518.21 Prompt action on requests.
518.22 Use of exemptions.
518.23 Public domain.
518.24 Creating a record.
518.25 Description of requested record.
518.26 Referrals.
518.27 Authentication.
518.28 Unified and specified commands.
518.29 Relationship between the FOIA and the Privacy Act (PA).
518.30 Records management.
Subpart B--FOIA Reading Rooms
Requirements
518.31 Reading room.
518.32 Material availability.
Indexes
518.33 ``(a)(2)'' materials.
518.34 Other materials.
Subpart C--Exemptions
General Provisions
518.35 General.
518.36 Jeopardy of government interest.
Exemptions
518.37 FOIA exemptions.
Subpart D--For Official Use Only
General Provisions
518.38 General.
518.39 Prior FOUO application.
518.40 Historical papers.
518.41 Time to mark records.
518.42 Distribution statement.
518.43 Location of markings.
Dissemination and Transmission
518.44 Release and transmission procedures.
518.45 Transporting FOUO information.
518.46 Electrically transmitted messages.
518.47 Telephone usage.
Safeguarding FOUO Information
518.48 During duty hours.
518.49 During nonduty hours.
Termination, Disposal and Unauthorized Disclosures
518.50 Termination.
518.51 Disposal.
518.52 Unauthorized disclosure.
Subpart E--Release and Processing Procedures
General Provisions
518.53 Public information.
518.54 Requests from private parties.
518.55 Requests from Government officials.
518.56 Privileged release to officials.
518.57 Required coordination.
Initial Determinations
518.58 Initial denial authority.
518.59 Reasons for not releasing a record.
518.60 Denial tests.
518.61 Reasonably segregable portions.
[[Page 141]]
518.62 Response to requester.
518.63 Extension of time.
518.64 Misdirected requests.
518.65 Records of non-U.S. Government source.
518.66 File of initial denials.
518.67 Special mail services.
518.68 Receipt accounts.
Appeals
518.69 General.
518.70 Time of receipt.
518.71 Time limits.
518.72 Delay in responding to an appeal.
518.73 Response to the requester.
518.74 Consultation.
Judicial Actions
518.75 General.
518.76 Jurisdiction.
518.77 Burden of proof.
518.78 Action by the court.
518.79 Non-United States Government source information.
518.80 Litigation status sheet.
Subpart F--Fee Schedule
General Provisions
518.81 Authorities.
518.82 Application.
518.83 Fee restrictions.
518.84 Fee waivers.
518.85 Fee assessment.
518.86 Aggregating requests.
518.87 Effect of the Debt Collection Act of 1982 (Pub. L. 97-365).
518.88 Computation of fees.
Collection of Fees and Fee Rates
518.89 Collection of fees.
518.90 Search time.
518.91 Duplication.
518.92 Review time (in the case of commercial requesters).
518.93 Audiovisual documentary materials.
518.94 Other records.
518.95 Costs for special services.
Collection of Fees and Fee Rates for Technical Data
518.96 Fees for technical data.
Subpart G--Reports
Reports Control
518.97 General.
Annual Report
518.98 Reporting time.
518.99 Annual report content.
Subpart H--Education and Training
Responsibility and Purpose
518.100 Responsibility.
518.101 Purpose.
518.102 Scope and principles.
518.103 Implementation.
518.104 Uniformity of legal interpretation.
Appendix A to Part 518--Unified Commands--Processing Procedures for FOI
Appeals
Appendix B to Part 518--Addressing FOIA Requests
Appendix C to Part 518--Litigation Status Sheet
Appendix D to Part 518--Other Reason Categories
Appendix E to Part 518--DoD Freedom of Information Act Program
Components
Appendix F to Part 518--DD Form 2564, Annual Report--Freedom of
Information Act
Appendix G to Part 518--Internal Control Review Checklist
Authority: 5 U.S.C. 551, 552, 552a, 5101-5108, 5110-5113, 5115,
5332-5334, 5341-42, 5504-5509, 7154; 10 U.S.C. 130, 1102, 2320-2321,
2328, 18 U.S.C. 798, 3500; 31 U.S.C. 3710; 35 U.S.C. 181-188; 42 U.S.C.
2162; 44 U.S.C. 33; and Executive Order 12600.
Source: 56 FR 48932, Sept. 26, 1991, unless otherwise noted.
Subpart A--General Provisions
References
Sec. 518.1 References.
(a) Title 5, United States Code, section 552.
(b) DoD Directive 5400.7, ``DoD Freedom of Information Act
Program,'' May 13, 1988.
(c) Public Law 86-36, ``National Security Information Exemption.''
(d) DoD Directive 5400.11, ``Department of Defense Privacy
Program,'' June 9, 1982.
(e) DoD 5400.11-R, ``Department of Defense Privacy Program,'' August
1983, authorized by DoD Directive 5400.11, June 9, 1982.
(f) DoD Directive 5100.3, ``Support of the Headquarters of Unified,
Specified and Subordinate Commands,'' November 1, 1988.
(g) Title 5, United States Code, section 551, ``Administrative
Procedures Act.''
[[Page 142]]
(h) DoD 5200.1-R, ``DoD Information Security Program Regulation,''
January 1987, authorized by DoD Directive 5200.1, June 7, 1982.
(i) Title 35, United States Code, section 181-188, ``Patent
Secrecy.''
(j) Title 42, United States Code, section 2162, ``Restricted Data
and Formerly Restricted Data.''
(k) Title 18, United States Code, section 98, ``Communication
Intelligence.''
(l) Title 18, United States Code, section 3500, ``The Jencks Act.''
(m) DoD Directive 5230.24, ``Distribution Statements on Technical
Documents,'' March 18, 1987.
(n) DoD Directive 5400.4, ``Provision of Information to Congress,''
January 30, 1978.
(o) DoD Directive 7650.1, ``General Accounting Office Access to
Records,'' August 26, 1982.
(p) ACP-121 (United States Supplement 1).
(q) Title 44, United States Code, chapter 33, ``Disposal of
Records.''
(r) DoD Instruction 7230.7, ``User Charges,'' January 29, 1985.
(s) DoD Directive 5000.11, ``Data Elements and Data Codes
Standardization Program,'' December 7, 1964.
(t) DoD Directive 7750.5, ``Management and Control of Information
Requirements,'' August 7, 1986.
(u) DoD 7220.9-M, ``Department of Defense Accounting Manual,'' 1983,
authorized by DOD Instruction 7220.9, October 22, 1981.
(v) DoD Directive 5230.25, ``Withholding of Unclassified Technical
Data From Public Disclosure,'' November 6, 1984.
(w) DoD Directive 5230.9, ``Clearance of DoD Information for Public
Release,'' April 2, 1982.
(x) DoD Directive 7650.2, ``General Accounting Office Audits and
Reports,'' July 19, 1985.
(y) Title 10, United States Code, section 2328, ``Release of
Technical Data under Freedom of Information Act: Recovery of Costs''.
(z) Title 10, United States Code, section 130, ``Authority to
Withhold from Public Disclosure Certain Technical Data.''
(aa) Title 10, United States Code, section 2320-2321, ``Rights in
Technical Data.''
(bb) Title 10, United States Code, section 1102, ``Confidentiality
of Medical Quality Records: Qualified Immunity Participants.''
(cc) DoD Federal Acquisition Regulation Supplement (DFARS), subpart
227.4, ``Technical Data, Other Data, Computer Software and Copyrights,''
October 28, 1988.
(dd) Executive Order 12600, ``Predisclosure Procedures for
Confidential Commercial Information,'' June 23, 1987.
(ee) Title 31, United States Code, section 3717, ``Interest and
Penalty on Claims.''
(ff) Title 5, United States Code, section 552a, as amended, ``The
Privacy Act of 1974.''
(gg) DoD 5000.12-M, ``DoD Manual for Standard Data Elements,''
October 1986, authorized by DoD Instruction 5000.12, July 1989.
(hh) DoD Instruction 5400.10, ``OSD Implementation of DoD Freedom of
Information Act Program,'' January 24, 1991.
(ii) Title 32, Code of Federal Regulations, part 518, The Army
Freedom of Information Act Program.
(jj) Title 10, United States Code, section 128, ``Physical
Protection of Special Nuclear Material: Limitation on Dissemination of
Unclassified Information''.
(kk) Public Law 101-189, National Defense Authorization Act,
November 1989, 103 Stat. 1352.
Sec. 518.2 References (Army).
(a) Required publications.\1\
---------------------------------------------------------------------------
\1\ All publications and forms referenced in this section are
available from National Technical Information Services, U.S. Department
of Commerce, 5285 Port Royal Road, Springfield, Virginia 22161.
---------------------------------------------------------------------------
(1) AR 1-20 (Legislative Liaison) (cited in Secs. 518.44 and
518.46).
(2) AR 20-1 (Inspector General Activities and Procedures) (cited in
Secs. 518.4, 518.58 and appendix B).
(3) AR 25-1 (The Army Information Resource Management Program)
(cited in Secs. 518.3 and 518.29).
(4) AR 25-9 (Army Data Management and Standards Program) (cited in
Sec. 518.98).
(5) AR 25-400-2 (The Modern Army Recordkeeping System (MARKS))
[[Page 143]]
(cited in Secs. 518.30, 518.51, 518.66, and appendix B).
(6) AR 27-20 (Claims) (cited in Sec. 518.4 and 518.51).
(7) AR 36-2 (Processing Internal and External Audit Reports and
Follow-up on Findings and Recommendations) (cited in Sec. 518.4).
(8) AR 40-66 (Medical Record and Quality Assurance Administration)
(cited in Sec. 518.17).
(9) AR 40-400 (Patient Administration) (cited in Sec. 518.4).
(10) AR 25-11 (Record Communications) (cited in Sec. 518.46).
(11) AR 195-2 (Criminal Investigation Activities) (cited in
Secs. 519.4-519.56).
(12) AR 340-21 (The Army Privacy Program) (cited in Secs. 518.22,
518.37 and 518.56).
(13) AR 360-5 (Public Information) (cited in Secs. 518.4 and
518.54).
(14) AR 380-5 (Department of the Army Information Security Program)
(cited in Secs. 518.4, 518.37, 518.53 and 518.56).
(15) AR 530-1 (Operations Security (OPSEC)) (cited in Secs. 518.53
and 518.54).
(16) AR 600-85 (Alcohol and Drug Abuse Prevention and Control
Program) (cited in Sec. 518.4 and 518.54).
(b) Related publications. A related publication is merely a source
of additional information. The user does not have to read it to
understand this regulation.
(1) AR 5-13 (Installation Management and Organization).
(2) AR 10-series (Organization and Functions).
(3) AR 25-3 (Army Life Cycle Management of Information Systems).
(4) AR 27-10 (Military Justice).
(5) AR 27-40 (Litigation).
(6) AR 27-60 (Patents, Inventions, and Copyrights).
(7) AR 60-20 (Army and Air Force Exchange Service (AAFES) Operating
Policies) (AFR 147-14).
(8) AR 70-31 (Standards for Technical Reporting).
(9) AR 190-45 (Military Police Law Enforcement Reporting).
(10) AR 380-10 (Department of the Army Policy for Disclosure of
Information, Visits, and Accreditation of Foreign Nationals (U)).
(11) AR 381-45 (Investigative Records Repository (IRR)).
(12) AR 385-40 (Accident Reporting and Records).
(13) AR 640-10 (Individual Military Personnel Records).
(14) DA Pam 25-30 (Consolidated Index of Army Publications and Blank
Forms).
(15) DA Pam 25-51 (The Army Privacy Program-Systems Notices and
Exemption Rules).
(16) DA Pam 385-95 (Aircraft Accident Investigation and Reporting).
(17) DoD 4500.11-PH (Defense Privacy Board Advisory Opinions).
(18) Title 10, United States Code, section 128, ``Physical
Protection of Special Nuclear Material: Limitation on Dissemination of
Unclassified Information''.
(c) Prescribed forms.
(1) DA Form 4948-R (Freedom of Information Act (FOIA/Operations
Security) (OPSEC) Desktop Guide) (prescribed in Secs. 518.50 and
518.49).
(2) DA Label 87 (For Official Use Only Cover Sheet) (prescribed in
Secs. 518.41 and 518.44).
(3) DD Form 2086 (Record of Freedom of Information (FOI) Processing
Cost) (prescribed in Sec. 518.81).
(4) DD Form 2086-1 (Record of Freedom of Information (FOI)
Processing Cost for Technical Data) (prescribed in Sec. 518.92a).
Purpose and Applicability
Sec. 518.3 Purpose.
The purpose of this Regulation is to provide policies and procedures
for the Department of Defense (DoD) implementation of the Freedom of
Information Act and DoD Directive 5400.7 (references (a) and (b)) and to
promote uniformity in the DoD Freedom of Information Act (FOIA) Program.
This Army regulation implements provisions for access and release of
information from all Army information systems (automated and manual) in
support of the Information Resources Management Program (AR 25-1).
Sec. 518.4 Applicability.
(a) This Regulation applies to the Office of the Secretary of
Defense (OSD), which includes for the purpose of this Regulation the
Joint Staff, Unified Commands, the Military Departments,
[[Page 144]]
the Defense Agencies, and the DoD Field Activities (hereafter referred
to as ``DoD Components''), and takes precedence over all Component
regulations that supplement the DoD FOIA Program. A list of DoD
Components is at enclosure 1 (appendix G).
(b) The National Security Agency records are subject to the
provisions of this Regulation, only to the extent the records are not
exempt under Public Law 86-36 (reference (c)).
(c) This part applies to--
(1) Active Army.
(2) Army National Guard.
(3) U.S. Army Reserve.
(4) Organizations for which the Department of the Army (DA) is the
Executive Agent.
(d) This regulation governs written FOIA requests from members of
the public. It does not preclude release of personnel or other records
to agencies or individuals in the Federal Government for use in official
work. Section 518.52(a) gives procedures for release of personnel
information to Government agencies outside DOD.
(e) Soldiers and civilian employees of the Department of the Army
may, as private citizens, request DA or other agencies' records under
the FOIA. They must prepare requests at their own expense and on their
own time. They may not use Government equipment, supplies, or postage to
prepare personal FOIA requests. It is not necessary for soldiers or
civilian employees to go through the chain of command to request
information under the FOIA.
(f) Requests for DA records processed under the FOIA may be denied
only in accordance with the FOIA (5 U.S.C. 552(b)), as implemented by
this regulation. Guidance on the applicability of the FOIA is also found
in the Federal Acquisition Regulation (FAR) and in the Federal Personnel
Manual (FPM).
(g) Release of some records may also be affected by the programs
that created them. They are discussed in the following regulations:
(1) AR 20-1 (Inspector General reports).
(2) AR 27-10 (military justice).
(3) AR 27-20 (claims reports).
(4) AR 27-60 (patents, inventions, and copyrights).
(5) AR 27-40 (litigation: release of information and appearance of
witnesses).
(6) AR 36-2 (GAO audits).
(7) AR 40-66 and AR 40-400 (medical records).
(8) AR 70-31 (technical reports).
(9) AR 20-1, AR 385-40, and DA Pam 385-95 (aircraft accident
investigations).
(10) AR 195-2 (criminal investigation activities).
(11) AR 190-45 (Military Police records and reports).
(12) AR 360-5 (Army public affairs: public information, general
policies on release of information to the public).
(13) AR 380-10 (release of information on foreign nationals).
(14) AR 381-45 (U.S. Army Intelligence and Security Command
investigation files).
(15) AR 385-40 (safety reports and records).
(16) AR 600-85 (alcohol and drug abuse records).
(17) AR 640-10 (military personnel records).
(18) AR 690 series, FPM Supplement 293-31; FPM chapters 293, 294,
and 339 (civilian personnel records).
(19) AR 380-5 and DOD 5200.1-R (national security classified
information).
(20) Federal Acquisition Regulation (FAR), DOD Federal Acquisition
Regulation Supplement (DFARS), and the Army Federal Acquisition
Regulation Supplement (AFARS) (procurement matters).
(21) AR 380-5, paragraph 7-101e (policies and procedures for
allowing persons outside the Executive Branch to do unofficial
historical research in classified Army records.
DoD Public Information
Sec. 518.5 ODISC4 Authority to approve exceptions.
The ODISC4 has the authority to approve exceptions to this part
which are consistent with controlling law and regulation. The ODISC4 may
delegate this authority in writing to a division chief within the
proponent agency who holds the rank of colonel or the civilian
equivalent. The approval authority coordinate all questions regarding
the scope of authority to approve exceptions with Headquarters
Department of
[[Page 145]]
the Army, Office of The Judge Advocate General, ATTN: DAJA-AL,
Washington, DC 20310-2200.
[56 FR 48932, Sept. 26, 1991, as amended at 56 FR 56010, Oct. 31, 1991]
Sec. 518.6 Public information.
The public has a right to information concerning the activities of
its Government. DoD policy is to conduct its activities in an open
manner and provide the public with a maximum amount of accurate and
timely information concerning its activities, consistent always with the
legitimate public and private interests of the American people. A DoD
record requested by a member of the public who follows rules established
by proper authority in the Department of Defense shall be withheld only
when it is exempt from mandatory public disclosure under the FOIA. In
the event a requested record is exempt under the FOIA, it may
nonetheless be released when it is determined that no governmental
interest will be jeopardized by the release of the record. (See
Sec. 518.36 for clarification.) In order that the public may have timely
information concerning DoD activities, records requested through public
information channels by news media representatives that would not be
withheld if requested under the FOIA should be released upon request
unless the requested records are in a Privacy Act system of records;
such records in a Privacy Act system of records will not be released
absent a written request under the FOIA, unless otherwise releasable
under the Privacy Act. Prompt responses to requests for information from
news media representatives should be encouraged to eliminate the need
for these requesters to invoke the provisions of the FOIA and thereby
assist in providing timely information to the public. Similarly,
requests from other members of the public for information should
continue to be honored through appropriate means even though the request
does not qualify under FOIA requirements.
Sec. 518.7 Control system.
A request for records that invokes the FOIA shall enter a formal
control system designed to ensure compliance with the FOIA. A release
determination must be made and the requester informed within the time
limits specified in this Regulation. Any request for DoD records that
either explicitly or implicitly cites the FOIA shall be processed under
the provisions of this Regulation, unless otherwise required by
Sec. 518.31.
Definitions
Sec. 518.8 Definitions and terms.
As used in this regulation, definitions and terms are listed in
appendix F to this part.
Sec. 518.9 FOIA request.
A written request for DoD records, made by any person, including a
member of the public (U.S. or foreign citizen), an organization, or a
business, but not including a Federal agency or a fugitive from the law
that either explicitly or implicitly invokes the FOIA, DoD Directive
5400.7 (reference b), this part, or DoD Component supplementing
regulations or instructions. This part is the Department of the Army's
supplementing regulation.
Sec. 518.10 Agency record.
(a) The products of data compilation, such as all books, papers,
maps, and photographs, machine readable materials or other documentary
materials, regardless of physical form or characteristics, made or
received by an agency of the United States Government under Federal law
in connection with the transaction of public business and in DoD's
possession and control at the time the FOIA request is made.
(b) The following are not included within the definition of the word
``record'':
(1) Objects or articles, such as structures, furniture, vehicles and
equipment, whatever their historical value, or value as evidence.
(2) Administrative tools by which records are created, stored, and
retrieved, if not created or used as sources of information about
organizations, policies, functions, decisions, or procedures of a DoD
Component. Normally, computer software, including source code, object
code, and listings of source and object codes, regardless of
[[Page 146]]
medium are not agency records. (This does not include the underlying
data which is processed and produced by such software and which may in
some instances be stored with the software.) Exceptions to this position
are outlined in paragraph (c) of this section.
(3) Anything that is not a tangible or documentary record, such as
an individual's memory or oral communication.
(4) Personal records of an individual not subject to agency creation
or retention requirements, created and maintained primarily for the
convenience of an agency employee, and not distributed to other agency
employees for their official use.
(5) Information stored within a computer for which there is no
existing computer program for retrieval of the requested information.
(c) In some instances, computer software may have to be treated as
an agency record and processed under the FOIA. These situations are
rare, and shall be treated on a case-by-case basis. Examples of when
computer software may have to be treated as an agency record are:
(1) When the data is embedded within the software and cannot be
extracted without the software. In this situation, both the data and the
software must be reviewed for release or denial under the FOIA.
(2) Where the software itself reveals information about
organizations, policies, functions, decisions, or procedures of a DoD
Component, such as computer models used to forecast budget outlays,
calculate retirement system costs, or optimization models on travel
costs.
(3) See subpart C of this part for guidance on release
determinations of computer software.
(d) A record must exist and be in the possession and control of the
Department of Defense at the time of the request to be considered
subject to this Regulation and the FOIA. There is no obligation to
create, compile, or obtain a record to satisfy an FOIA request.
(e) If unaltered publications and processed documents, such as
regulations, manuals, maps, charts, and related geophysical materials
are available to the public through an established distribution system
with or without charge, the provisions of 5 U.S.C. 552(a)(3) normally do
not apply and they need not be processed under the FOIA. Normally,
documents disclosed to the public by publication in the Federal Register
also require no processing under the FOIA. Components should direct the
requester to the appropriate source to obtain the record.
[56 FR 48932, Sept. 26, 1991, as amended at 56 FR 56010, Oct. 31, 1991]
Sec. 518.11 DoD component.
An element of the Department of Defense, as defined in Sec. 518.4,
authorized to receive and act independently on FOIA requests. A DoD
Component has its own initial denial authority (IDA) or appellate
authority, and general counsel. The Department of the Army is a DOD
Component.
Sec. 518.12 Initial denial authority (IDA).
An official who has been granted authority by the head of a DoD
Component to withhold records requested under the FOIA for one or more
of the nine categories of records exempt from mandatory disclosure. The
Department of the Army's Initial Denial Authorities are designated in
Sec. 518.58(d).
Sec. 518.13 Appellate authority.
The Head of the DoD Component or the Component head's designee
having jurisdiction of this purpose over the record. The Department of
the Army's appellate authority is the Office of General Counsel.
Sec. 518.14 Administrative appeal.
A request by a member of the general public, made under the FOIA,
asking the appellate authority of a DoD Component to reverse an IDA
decision to withhold all or part of a requested record or to deny a
request for waiver or reduction of fees.
Sec. 518.15 Public interest.
Public interest is official information that sheds light on an
agency's performance of its statutory duties because the information
falls within the
[[Page 147]]
statutory purpose of the FOIA in informing citizens about what their
government is doing. That statutory purpose, however, is not fostered by
disclosure of information about private citizens that is accumulated in
various governmental files that reveals little or nothing about an
agency's or official's own conduct.
Sec. 518.16 Electronic data.
Electronic data are those records and information which are created,
stored, and retrievable by electronic means. This does not include
computer software, which is the tool by which to create, store, or
retrieve electronic data. See Sec. 518.10 (b)(2) and (c) for a
discussion of computer software.
Sec. 518.17 Law enforcement investigation.
An investigation conducted by a command or agency for law
enforcement purposes relating to crime, waste, or fraud or for national
security reasons. Such investigations may include gathering evidence for
criminal prosecutions and for civil or regulatory proceedings.
Policy
Sec. 518.18 Compliance with the FOIA.
DoD personnel are expected to comply with the provisions of the FOIA
and this Regulation in both letter and spirit. This strict adherence is
necessary to provide uniformity in the implementation of the DoD FOIA
Program and to create conditions that will promote public trust.
Sec. 518.19 Openness with the public.
The Department of Defense shall conduct its activities in an open
manner consistent with the need for security and adherence to other
requirements of law and regulation. Records not specifically exempt from
disclosure under the Act shall, upon request, be made readily accessible
to the public in accordance with rules promulgated by competent
authority, whether or not the Act is invoked.
(a) Operations Security (OPSEC). DA officials who release records
under the FOIA must also consider OPSEC. The Army implementing directive
is AR 530-1. Section 518.53 of this publication gives the procedure for
FOIA personnel and the IDA to follow when a FOIA request appears to
involve OPSEC.
(b) DA Form 4948-R. This form lists references and information
frequently used for FOIA requests related to OPSEC. Persons who
routinely deal with the public (by telephone or letter) on such requests
should keep the form on their desks as a guide. DA Form 4948-R (Freedom
of Information Act (FOIA)/Operations Security (OPSEC) Desk Top Guide)
will be locally reproduced on 8\1/2\ x 11-inch paper. A copy for
reproduction purposes is located at the back of this regulation. The
name and telephone number of the command FOIA/OPSEC adviser will be
entered on the form.
Sec. 518.20 Avoidance of procedural obstacles.
DoD Components shall ensure that procedural matters do not
unnecessarily impede a requester from obtaining DoD records promptly.
Components shall provide assistance to requesters to help them
understand and comply with procedures established by this regulation and
any supplemental regulations published by the DoD Components.
Sec. 518.21 Prompt action on requests.
When a member of the public complies with the procedures established
in this part for obtaining DoD records, the request shall receive prompt
attention; a reply shall be dispatched within 10 working days, unless a
delay is authorized. When a Component has a significant number of
requests, e.g., 10 or more, the requests shall be processed in order of
receipt. However, this does not preclude a Component from completing
action on a request which can be easily answered, regardless of its
ranking within the order of receipt. A DoD Component may expedite action
on a request regardless of its ranking within the order of receipt upon
a showing of exceptional need or urgency. Exceptional need or urgency is
determined at the discretion of the compliment processing the request.
(a) The 10-day period prescribed for review of initial requests
under the
[[Page 148]]
FOIA (5 U.S.C. 552(a)(6)) starts only when the request--
(1) Is in writing.
(2) Reasonably describes the record requested.
(3) Is received by the proper official designated to answer the
request (see appendix B to this part).
(4) Meets the procedural requirements of this part (see
Sec. 518.85(b)(9)).
(b) All requests shall refer explicitly or implicitly to the Freedom
of Information Act, to ensure their prompt recognition as FOIA actions.
(c) Members of the public who make FOIA requests should carefully
follow the guidance in this part. They should send requests to the
office that has the desired record or to a specific agency FOIA official
for referral. The Army Freedom of Information and Privacy Act Division,
Information Systems Command, Attn: ASQNS-OF-F, room 1146, Hoffman
Building I, Alexandria, VA 22331-0301 can supply correct addresses.
(d) See Army Regulation 340-21 for Privacy Act procedures.
[56 FR 48932, Sept. 26, 1991, as amended at 56 FR 56010, Oct. 31, 1991]
Sec. 518.22 Use of exemptions.
(a) It is the DoD policy to make records publicly available, unless
they qualify for exemption under one or more of the nine exemptions.
Components (IDA) may elect to make a discretionary release, however, a
discretionary release is generally not appropriate for records exempt
under exemptions 1, 3, 4, 6, and 7(c). Exemptions 4, 6, and 7(c) cannot
be claimed when the requester is the submitter of the information.
(b) Parts of a requested record may be exempt from disclosure under
the FOIA. The proper DA official may delete exempt information and
release the remainder to the requester. The proper official also has the
discretion under the FOIA to release exempt information; he or she must
exercise this discretion in a reasonable manner, within regulations. The
excised copies shall reflect the denied information by means of
Blackened areas, which are Sufficiently Blackened as to reveal no
information. The best means to ensure illegibility is to cut out the
information from a copy of the document and reproduce the appropriate
pages. If the document is classified, all classification markings shall
be lined through with a single black line, which still allows the
marking to be read. The document shall then be stamped ``Unclassified''.
[56 FR 48932, Sept. 26, 1991, as amended at 56 FR 56010, Oct. 31, 1991]
Sec. 518.23 Public domain.
Nonexempt records released under the authority of this part are
considered to be in the public domain. Such records may also be made
available in Components' reading rooms to facilitate public access.
Exempt records released pursuant to this part or other statutory or
regulatory authority, however, may be considered to be in the public
domain only when their release constitutes a waiver of the FOIA
exemption. When the release does not constitute such a waiver, such as
when disclosure is made to a properly constituted advisory committee or
to a Congressional Committee, the released records do not lose their
exempt status. Also, while authority may exist to disclose records to
individuals in their official capacity, the provisions of this part
apply if the same individual seeks the records in a private or personal
capacity.
Sec. 518.24 Creating a record.
(a) A record must exist and be in the possession and control of the
Department of Defense at the time of the search to be considered subject
to this part and the FOIA. Mere possession of a record does not presume
departmental control and such records, or identifiable portions thereof,
would be referred to the originating Agency for direct response to the
requester. There is no obligation to create not compile a record to
satisfy an FOIA request. A DoD Component, however, may compile a new
record when so doing would result in a more useful response to the
requester, or be less burdensome to the agency than providing existing
records, and the requester does not object. Cost of creating or
compiling such a record may not be charged to the requester unless the
fee for creating the record is equal to or less than the fee which
[[Page 149]]
would be charged for providing the existing record. Fee assessments
shall be in accordance with subpart F of this part.
(b) With respect to electronic data, the issue of whether records
are actually created or merely extracted from an existing database is
not always readily apparent. Consequently, when responding to FOIA
requests for electronic data where creation of record, programming, or
particular format are questionable, components should apply a standard
of reasonableness. In other words, if the capability exists to respond
to the request, and the effort would be a business as usual approach,
then the request should be processed. However, the request need not be
processed where the capability to respond does not exist without a
significant expenditure of resources, thus not being a normal business
as usual approach.
(c) Requested records, or portions thereof, may be located at
several Army offices. The official receiving the FOIA request will refer
it to those other offices for a direct reply if--
(1) The information must be reviewed for release under the FOIA; and
(2) Assembling the information would interfere materially with DA
operations at the site first receiving the request.
[56 FR 48932, Sept. 26, 1991, as amended at 56 FR 56010, Oct. 31, 1991]
Sec. 518.25 Description of requested record.
(a) Identification of the record desired is the responsibility of
the member of the public who requests a record. The requester must
provide a description of the desired record, that enables the Government
to locate the record with a reasonable amount of effort. The Act does
not authorize ``fishing expeditions.'' When a DoD Component receives a
request that does not ``reasonably describe'' the requested record, it
shall notify the requester of the defect. The defect should be
highlighted in a specificity letter, asking the requester to provide the
type of information outlined below in Sec. 518.61(b) of this
publication. Components are not obligated to act on the request until
the requester responds to the specificity letter. When practicable,
Components shall offer assistance to the requester in identifying the
records sought and in reformulating the request to reduce the burden on
the agency in complying with the Act. DA officials will reply to unclear
requests by letter. The letter will--
(1) Describe the defects in the request.
(2) Explain the types of information in paragraph (b) of this
section, and ask the requester for such information.
(3) Explain that no action will be taken on the request until the
requester replies to the letter.
(b) The following guidelines are provided to deal with ``fishing
expedition'' requests and are based on the principle of reasonable
effort. Descriptive information about a record may be divided into two
broad categories.
(1) Category I is file-related and includes information such as type
of record (for example, memorandum), title, index citation, subject
area, date the record was created, and originator.
(2) Category II is event-related and includes the circumstances that
resulted in the record being created or the date and circumstances
surrounding the event the record covers.
(c) Generally, a record is not reasonably described unless the
description contains sufficient Category I information to permit the
conduct of an organized, nonrandom search based on the Component's
filing arrangements and existing retrieval systems, or unless the record
contains sufficient Category II information to permit inference of the
Category I elements needed to conduct such a search.
(d) The following guidelines deal with requests for personal
records. Ordinarily, when personal identifiers are provided only in
connection with a request for records concerning the requester, only
records retrievable by personal identifiers need be searched. Search for
such records may be conducted under Privacy Act procedures. No record
may be denied that is releasable under the FOIA.
(e) The above guidelines notwithstanding, the decision of the DoD
Component concerning reasonableness of description must be based on
knowledge of its files. If the description enables DoD Component
personnel with
[[Page 150]]
reasonable effort, the description is adequate.
Sec. 518.26 Referrals.
(a) A request received by a DoD Component having no records
responsive to a request shall be referred routinely to another DoD
Component, if the other Component confirms that it has the requested
record, and this belief can be confirmed by the other DoD Component. In
cases where the Component receiving the request has reason to believe
that the existence or nonexistence of the record may in itself be
classified, that Component will consult the DoD Component having
cognizance over the record in question before referring the request. If
the DoD Component that is consulted determines that the existence or
nonexistence of the record is in itself classified, the requester shall
be so notified by the DoD Component originally receiving the request,
and no referral shall take place. Otherwise, the request shall be
referred to the other DoD Component, and the requester shall be notified
of any such referral. Any DoD Component receiving a request that has
been misaddressed shall refer the request to the proper address and
advise the requester. Within the Army, referrals will be made directly
to offices that may have custody of requested records. If the office
receiving the FOIA request does not know where the requested records are
located, the request and an explanatory cover letter will be forwarded
to The Army Freedom of Information and Privacy Act Division, Information
Systems Command, Attn: ASQNS-OP-F, room 1146, Hoffman Building I,
Alexandria, VA 22331-0301.
(b) Whenever a record or a portion of a record is, after prior
consultation, referred to another DoD Component or to a Government
agency outside of the Department of Defense for a release determination
and direct response, the requester shall be informed of the referral.
Referred records shall only be identified to the extent consistent with
security requirements.
(c) A DoD Component shall refer an FOIA request for a classified
record that it holds to another DoD Component or agency outside the
Department of Defense, if the record originated in the other DoD
Component or outside agency or if the classification is derivative. In
this situation, provide the record and a release recommendation on the
record with the referral action.
(d) A DoD Component may also refer a request for a record that it
originated to another DoD Component or agency when the record was
created for the use of the other DoD Component or agency. The DoD
Component or agency for which the record was created may have an equally
valid interest in withholding the record as the DoD Component that
created the record. In such situations, provide the record and a release
recommendation on the record with the referral action. An example of
such a situation is a request for audit reports prepared by the Defense
Contract Audit Agency. These advisory reports are prepared for the use
of contracting officers and their release to the audited contractor
shall be at the discretion of the contracting officer. Any FOIA request
shall be referred to the appropriate contracting officer and the
requester shall be notified of the referral.
(e) Within the Department of Defense, a Component shall ordinarily
refer an FOIA request for a record that it holds, but that was
originated by another DoD Component or that contains substantial
information obtained from another DoD Component, to that Component for
direct response, after direct coordination and obtaining concurrence
from the Component. The requester then shall be notified of such
referral. DoD Components shall not, in any case, release or deny such
records without prior consultation with the other DoD Component.
(f) DoD Components that receive referred requests shall answer them
in accordance with the time limits established by the FOIA and this
Regulation. Those time limits shall begin to run upon receipt of the
referral by the official designated to respond.
(g) Agencies outside the Department of Defense that are subject to
the FOIA:
(1) A Component may refer as FOIA request for any record that
originated in an agency outside the DoD or that is based on information
obtained from an outside agency to the agency for direct
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response to the requester after coordination with the outside agency, if
that agency is subject to FOIA. Otherwise, the Component must respond to
the request.
(2) A DoD Component shall refer to the agency that provided the
record any FOIA request for investigative, intelligence, or any other
type of records that are on loan to the Department of Defense for a
specific purpose, if the records are restricted from further release and
so marked. However, if for investigative or intelligence purposes, the
outside agency desires anonymity, a Component may only respond directly
to the requester after coordination with the outside agency.
(3) Notwithstanding anything to the contrary in Sec. 518.26, a
Component shall notify requesters seeking National Security Council
(NSC) or White House documents that they should write directly to the
NSC or White House for such documents. DoD documents in which the NSC or
White House has a concurrent reviewing interest shall be forwarded to
the Office of the Assistant Secretary of Defense (Public Affairs)
(OASD(PA)), Attn: Directorate For Freedom of Information and Security
Review (DFOISR), which shall effect coordination with the NSC or White
House, and return the documents to the originating agency after NSC
review and determination. NSC or White House documents discovered in
Components' files which are responsive to the FOIA request shall be
forwarded to OASD(PA), Attn: DFOISR, for subsequent coordination with
the NSC or White House, and returned to the Component with a release
determination.
(h) To the extent referrals are consistent with the policies
expressed by this paragraph, referrals between offices of the same DoD
Component are authorized.
(i) On occasion, the Department of Defense receives FOIA requests
for General Accounting Office (GAO) documents containing DoD
information. Even though the GAO is outside the Executive Branch, and
not subject to the FOIA, all FOIA requests for GAO documents containing
DoD information received either from the public, or on referral from the
GAO, will be processed under the provisions of the FOIA. In DA, requests
received for GAO documents that contain classified Army information will
be handled by the Army Inspector General's Office.
Sec. 518.27 Authentication.
Records provided under this part shall be authenticated with an
appropriate seal, whenever necessary, to fulfill an official Government
or other legal function. This service, however, is in addition to that
required under the FOIA and is not included in the FOIA fee schedule.
DoD Components may charge for the service at a rate of $5.20 for each
authentication.
Sec. 518.28 Unified and specified commands.
(a) The Unified Commands are placed under the jurisdiction of the
OSD, instead of the administering Military Department, only for the
purpose of administering the DoD FOIA Program. This policy represents an
exception to the policies directed in DoD Directive 5100.3 (reference
(f)); it authorizes and requires the Unified Commands to process Freedom
of Information (FOI) requests in accordance with DoD Directive 5400.7
(reference (b)) and this Regulation. The Unified Commands shall forward
directly to the OASD(PA), all correspondence associated with the appeal
of an initial denial for records under the provisions of the FOIA.
Procedures to effect this administrative requirement are outlined in
appendix A. For Army components of unified commands, if the requested
records are joint documents, process the FOIA request through unified
command channels. If the requested documents are Army-unique, process
the FOIA request through Army channels.
(b) The Specified Commands remain under the jurisdiction of the
administering Military Department. The Commands shall designate IDAs
within their headquarters; however, the appellate authority shall reside
with the Military Department.
Sec. 518.29 Relationship between the FOIA and the Privacy Act (PA).
Not all requesters are knowledgeable of the appropriate statutory
authority to cite when requesting records. In some instances, they may
cite neither
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Act, but will imply one or both Acts. For these reasons, the following
guidelines are provided to ensure that requesters receive the greatest
amount of access rights under both Acts:
(a) Requesters who seek records about themselves contained in a PA
system of records and who cite or imply the PA, will have their requests
processed under the provisions of the PA.
(b) Requesters who seek records about themselves which are not
contained in a PA system of records and who cite or imply the PA, will
have their requests processed under the provisions of the FOIA, since
they have no access under the PA.
(c) Requesters who seek records about themselves which are contained
in a PA system of records and who cite or imply the FOIA or both Acts
will have their requests processed under the time limits of the FOIA and
the exemptions and fees of the PA. This is appropriate since greater
access will be received under the PA.
(d) Requesters who seek access to agency records and who cite or
imply the PA and FOIA, will have their requests processed under the
FOIA.
(e) Requesters who seek access to agency records and who cite or
imply the FOIA, will have their requests processed under the FOIA.
(f) Requesters should be advised in final responses why their
request was processed under a particular Act.
[56 FR 48932, Sept. 26, 1991, as amended at 56 FR 56010, Oct. 31, 1991]
Sec. 518.30 Records management.
FOIA records shall be maintained and disposed of in accordance with
DoD Component Disposition instructions and schedules. See AR 25-400-2.
AR 25-1 contains Army policy for records management requirements in the
life cycle management of information. Information access and release, to
include potential electronic access by the public, will be considered
during information systems design.
Subpart B--FOIA Reading Rooms
Requirements
Sec. 518.31 Reading room.
Each Component shall provide an appropriate facility or facilities
where the public may inspect and copy or have copied the materials
described below. In addition to the materials described below,
Components may elect to place other documents in their reading room as a
means to provide public access to such documents. DoD Components may
share reading room facilities if the public is not unduly
inconvenienced. When appropriate, the cost of copying may be imposed on
the person requesting the material in accordance with the provisions of
subpart F of this part. The Army FOIA Reading Room is operated by The
Freedom of Information and Privacy Act Division, Information Systems
Command. It is located in room 1146, Hoffman Building I, 2461 Eisenhower
Avenue, Alexandria, VA 22331-0301. It is open from 0800 to 1530 Monday
through Friday, except holidays.
Sec. 518.32 Material availability.
The FOIA requires that so-called ``(a)(2)'' materials shall be made
available in the FOIA reading room for inspection and copying, unless
such materials are published and copies are offered for sale.
Identifying details that, if revealed, would create a clearly
unwarranted invasion of personal privacy may be deleted from ``(a)(2)''
materials made available for inspection and copying. In every case,
justification for the deletion must be fully explained in writing.
However, a DoD Component may publish in the Federal Register a
description of the basis upon which it will delete identifying details
of particular types of documents to avoid clearly unwarranted invasions
of privacy. In appropriate cases, the DoD Component may refer to this
description rather than write a separate justification for each
deletion. So-called ``(a)(2)'' materials are:
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(a) Final opinions, including concurring and dissenting opinions,
and orders made in the adjudication of cases, as defined in 5 U.S.C. 551
(reference (g)), that may be cited, used, or relied upon as precedents
in future adjudications.
(b) Statements of policy and interpretations that have been adopted
by the agency and are not published in the Federal Register.
(c) Administrative staff manuals and instructions, or portions
thereof, that establish DoD policy or interpretations of policy that
affect a member of the public. This provision does not apply to
instructions for employees on tactics and techniques to be used in
performing their duties, or to instructions relating only to the
internal management of the DoD Component. Examples of manuals and
instructions not normally made available are:
(1) Those issued for audit, investigation, and inspection purposes,
or those that prescribe operational tactics, standards of performance,
or criteria for defense, prosecution, or settlement of cases.
(2) Operations and maintenance manuals and technical information
concerning munitions, equipment, systems, and foreign intelligence
operations.
Indexes
Sec. 518.33 ``(a)(2)'' materials.
(a) Each DoD Component shall maintain in each facility prescribed in
Sec. 518.31, an index of materials described in Sec. 518.4, that are
issued, adopted, or promulgated, after July 4, 1967. No ``(a)(2)''
materials issued, promulgated, or adopted after July 4, 1967 that are
not indexed and either made available or published may be relied upon,
used or cited as precedent against any individual unless such individual
has actual and timely notice of the contents of such materials. Such
materials issued, promulgated, or adopted before July 4, 1967, need not
be indexed, but must be made available upon request if not exempted
under this Regulation.
(b) Each DoD Component shall promptly publish quarterly or more
frequently, and distribute, by sale or otherwise, copies of each index
of ``(a)(2)'' materials or supplements thereto unless it publishes in
the Federal Register an order containing a determination that
publication is unnecessary and impracticable. A copy of each index or
supplement not published shall be provided to a requester at a cost not
to exceed the direct cost of duplication as set forth in subpart F.
(c) Each index of ``(a)(2)'' materials or supplement thereto shall
be arranged topically or by descriptive words rather than by case name
or numbering system so that members of the public can readily locate
material. Case name and numbering arrangements, however, may also be
included for DoD Component convenience.
Sec. 518.34 Other materials.
(a) Any available index of DoD Component material published in the
Federal Register, such as material required to be published by section
552(a)(1) of the FOIA, shall be made available in DoD Component FOIA
reading rooms. Army ``(a)(2)'' materials are published in DA Pam 25-30.
(b) Although not required to be made available in response to FOIA
requests or made available in FOIA Reading Rooms, ``(a)(1)'' materials
shall, when feasible, be made available in FOIA reading rooms for
inspection and copying. Examples of ``(a)(1)'' materials are:
descriptions of an agency's central and field organization, and to the
extent they affect the public, rules of procedures, descriptions of
forms available, instruction as to the scope and contents of papers,
reports, or examinations, and any amendment, revision, or report of the
aforementioned.
Subpart C--Exemptions
General Provisions
Sec. 518.35 General.
Records that meet the exemption criteria in the exemption part of
subpart C may be withheld from public disclosure and need not be
published in the Federal Register, made available in a library reading
room, or provided in response to an FOIA request.
[[Page 154]]
Sec. 518.36 Jeopardy of government interest.
An exempted record, other than those being withheld pursuant to
Exemptions 1, 3 or 6, shall be made available upon the request of any
individual when, in the judgment of the releasing DoD Component or
higher authority, no jeopardy to government interest would be served by
release. It is appropriate for DoD Components to use their discretionary
authority on a case-by-case basis in the release of given records. If a
DoD Component determines that a record requested under the FOIA meets
the Exemption 4 withholding criteria set forth in this publication, the
DoD Component shall not ordinarily exercise its discretionary power to
release, absent circumstances in which a compelling public interest will
be served by release of that record. Further guidance on this issue may
be found in Sec. 518.37, Number 4. and Sec. 518.65.
Exemptions
Sec. 518.37 FOIA exemptions.
The following types of records may be withheld by the IDA in whole
or in part from public disclosure under the FOIA, unless otherwise
prescribed by law. A discretionary release (also see Sec. 518.23) to one
requester may preclude the withholding of the same record under a FOIA
exemption if the record is subsequently requested by someone else. In
applying exemptions, the identity of the requester and the purpose for
which the record is sought are irrelevant with the exception that an
exemption may not be invoked where the particular interest to be
protected is the requester's privacy interest.
(a) Number 1. Those properly and currently classified in the
interest of national defense or foreign policy, as specifically
authorized under the criteria established by executive order and
implemented by regulations, such as DoD 5200.1-R (reference h). Although
material is not classified at the time of the FOIA request, a
classification review may be undertaken to determine whether the
information should be classified. The procedures in Sec. 518.53(c)(4)
apply. In addition, this exemption shall be invoked when the following
situations are apparent:
(1) The fact of the existence or nonexistence of a record would
itself reveal classified information. In this situation, Components
shall neither confirm nor deny the existence or nonexistence of the
record being requested. A ``refusal to confirm or deny'' response must
be used consistently, not only when a record exists, but also when a
record does not exist. Otherwise, the pattern of using a ``no record''
response when a record does not exist, and a ``refusal to confirm or
deny'' when a record does exist will itself disclose national security
information.
(2) Information that concerns one or more of the classification
categories established by executive order and DoD 5200.1-R (reference
(h)) shall be classified if its unauthorized disclosure, either by
itself or in the context of other information, reasonably could be
expected to cause damage to the national security.
(b) Number 2. Those related solely to the internal personnel rules
and practices of DoD or any of its Components. This exemption has two
profiles, high b2 and low b2.
(1) Records qualifying under high b2 are those containing or
constituting statitutes, rules, regulations, orders, manuals,
directives, and instructions the release of which would allow
circumvention of these records thereby substantially hindering the
effective performance of a significant function of the DoD. Examples
include:
(i) Those operating rules, guidelines, and manuals for DoD
investigators, inspectors, auditors, or examiners that must remain
privileged in order for the DoD Component to fulfill a legal
requirement.
(ii) Personnel and other administrative matters, such as examination
questions and answers used in training courses or in the determination
of the qualification of candidates for employment, entrance on duty,
advancement, or promotion.
(iii) Computer software meeting the standards of Sec. 518.10(c), the
release of which would allow circumvention of statute or DoD rules,
regulations, orders, directives, or instructions. In this situation, the
use of the software must
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be closely examined to ensure a circumvention possibility exists.
(2) Records qualifying under the low b2 profile are those that are
trivial and housekeeping in nature for which there is no legitimate
public interest or benefit to be gained by release, and it would
constitute an administrative burden to process the request in order to
disclose these records. Examples include: Rules of personnel's use of
parking facilities or regulation of lunch hours, statements of policy as
to sick leave, and trivial administrative data such as file numbers,
mail routing stamps, initials, data processing notations, brief
references to previous communications, and other like administrative
markings.
(3) Negotiation and bargaining techniques, practices, and
limitations.
(c) Number 3. Those concerning matters that a statute specifically
exempts from disclosure by terms that permit no discretion on the issue,
or in accordance with criteria established by that statute for
withholding or referring to particular types of matters to be withheld.
Examples of statutes are:
(1) National Security Agency Information Exemption, Pub. L. 86-36,
Section 6 (reference (c)).
(2) Patent Secrecy, 35 U.S.C. 181-188 (reference (i)). Any records
containing information relating to inventions that are the subject of
patent applications on which Patent Secrecy Orders have been issued.
(3) Restricted Data and Formerly Restricted Data, 42 U.S.C. 2162
(reference (j)).
(4) Communication Intelligence, 18 U.S.C. 798 (reference (k)).
(5) Authority to Withhold From Public Disclosure Certain Technical
Data, 10 U.S.C. 130 and DoD Directive 5230.25 (reference (w) and (aa)).
(6) Confidentiality of Medical Quality Records: Qualified Immunity
Participants, 10 U.S.C. 1102 (reference (cc)).
(7) Physical Protection of Special Nuclear Material: Limitation on
Dissemination of Unclassified Information, 10 U.S.C. 128 (reference ii).
(8) Protection of Intelligence Sources and Methods, 50 U.S.C.
403(d)(3).
(d) Number 4. Those containing trade secrets or commercial or
financial information that a DoD Component receives from a person or
organization outside the Government with the understanding that the
information or record will be retained on a privileged or confidential
basis in accordance with the customary handling of such records. Records
within the exemption must contain trade secrets, or commercial or
financial records, the disclosure of which is likely to cause
substantial harm to the competitive position of the source providing the
information; impair the Government's ability to obtain necessary
information in the future; or impair some other legitimate government
interest. Examples include records that contain:
(1) Commercial or financial information received in confidence in
connection with loans, bids, contracts, or proposals, as well as other
information received in confidence or privileged, such as trade secrets,
inventions, discoveries, or other proprietary data. See Public Law 101-
189, National Defense Authorization Act, November 1989, 103 Stat. 1352
(Sec. 518.1(k)).
(2) Statistical data and commercial or financial information
concerning contract performance, income, profits, losses, and
expenditures, if offered and received in confidence from a contractor or
potential contractor.
(3) Personal statements given in the course of inspections,
investigations, or audits, when such statements are received in
confidence from the individual and retained in confidence because they
reveal trade secrets or commercial or financial information normally
considered confidential or privileged.
(4) Financial data provided in confidence by private employers in
connection with locality wage surveys that are used to fix and adjust
pay schedules applicable to the prevailing wage rate of employees within
the Department of Defense.
(5) Scientific and manufacturing processes or developments
concerning technical or scientific data or other information submitted
with an application for a research grant, or with a report while
research is in progress.
(6) Technical or scientific data developed by a contractor or
subcontractor exclusively at private expense, and technical or
scientific data developed
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in part with Federal funds and in part at private expense, wherein the
contractor or subcontractor has retained legitimate proprietary
interests in such data in accordance with 10 U.S.C. 2320-2321 and DoD
Federal Acquisition Regulation Supplement (DFARS), subpart 227.4
(references (aa) and (cc)). Technical data developed exclusively with
Federal funds may be withheld under Exemption Number 3 if it meets the
criteria of 10 U.S.C. 130 and DoD Directive 5230.25 (reference (v)) (see
Sec. 518.37(e)).
(7) Computer software meeting the conditions of section 518.10(c),
which is copyrighted under the Copyright Act of 1976 (17 U.S.C. 106),
the disclosure of which would have an adverse impact on the potential
market value of a copyrighted work.
(e) Number 5. Except as provided in paragraphs (e)(2) through (5) of
this section, internal advice, recommendations, and subjective
evaluations, as contrasted with factual matters, that are reflected in
records pertaining to the decision-making process of an agency, whether
within or among agencies (as defined in 5 U.S.C. 552(e) (reference (a)),
or within or among DoD Components. Also exempted are records pertaining
to the attorney-client privilege and the attorney work-product
privilege.
(1) Examples include:
(i) The nonfactual portions of staff papers, to include after-action
reports and situation reports containing staff evaluations, advice,
opinions or suggestions.
(ii) Advice, suggestions, or evaluations prepared on behalf of the
Department of Defense by individual consultants or by boards,
committees, councils, groups, panels, conferences, commissions, task
forces, or other similar groups that are formed for the purpose of
obtaining advice and recommendations.
(iii) Those nonfactual portions of evaluations by DoD Component
personnel of contractors and their products.
(iv) Information of a speculative, tentative, or evaluative nature
or such matters as proposed plans to procure, lease or otherwise acquire
and dispose of materials, real estate, facilities or functions, when
such information would provide undue or unfair competitive advantage to
private personal interests or would impede legitimate Government
functions.
(v) Trade secret or other confidential research development, or
commercial information owned by the Government, where premature release
is likely to affect the Government's negotiating position or other
commercial interests.
(vi) Records that are exchanged among agency personnel and within
and among DoD Components or agencies as part of the preparation for
anticipated administrative proceeding by an agency or litigation before
any Federal, State, or military court, as well as records that qualify
for the attorney-client privilege.
(vii) Those portions of official reports of inspection, reports of
the Inspector Generals, audits, investigations, or surveys pertaining to
safety, security, or the internal management, administration, or
operation of one or more DoD Components, when these records have
traditionally been treated by the courts as privileged against
disclosure in litigation.
(viii) Computer software meeting the standards of Sec. 518.10(c),
which is deliberative in nature, the disclosure of which would inhibit
or chill the decision making process. In this situation, the use of
software must be closely examined to ensure its deliberative nature.
(ix) Planning, programming, and budgetary information which is
involved in the defense planning and resource allocation process (see
reference (kk)).
(2) If any such intra or interagency record or reasonably segregable
portion of such record hypothetically would be made available routinely
through the ``discovery process'' in the course of litigation with the
agency, i.e., the process by which litigants obtain information from
each other that is relevant to the issues in a trial or hearing, then it
should not be withheld from the general public even though discovery has
not been sought in actual litigation. If, however, the information
hypothetically would only be made available through the discovery
process by special order of the court based on
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the particular needs of a litigant, balanced against the interest of the
agency in maintaining its confidentiality, then the record or document
need not be made available under this Regulation. Consult with legal
counsel to determine whether exemption 5 material would be routinely
made available through the discovery process.
(3) Intra or interagency memoranda or letters that are factual, or
those reasonably segregable portions that are factual, are routinely
made available through ``discovery,'' and shall be made available to a
requester, unless the factual material is otherwise exempt from release,
inextricably intertwined with the exempt information, so fragmented as
to be uninformative, or so redundant of information already available to
the requester as to provide no new substantive information.
(4) A direction or order from a superior to a subordinate, though
contained in an internal communication, generally cannot be withheld
from a requester if it constitutes policy guidance or a decision, as
distinguished from a discussion of preliminary matters or a request for
information or advice that would compromise the decision-making process.
(5) An internal communication concerning a decision that
subsequently has been made a matter of public record must be made
available to a requester when the rationale for the decision is
expressly adopted or referenced in the record containing the decision.
(f) Number 6. Information in personnel and medical files, as well as
similar personal information in other files, that, if disclosed to the
requester would result in a clearly unwarranted invasion of personal
privacy. Release of information about an individual contained in a
Privacy Act System of records that would constitute a clearly
unwarranted invasion of privacy is prohibited, and could subject the
releaser to civil and criminal penalties.
(1) Examples of other files containing personal information similar
to that contained in personnel and medical files include:
(i) Those compiled to evaluate or adjudicate the suitability of
candidates for civilian employment or membership in the Armed Forces,
and the eligibility of individuals (civilian, military, or contractor
employees) for security clearances, or for access to particularly
sensitive classified information.
(ii) Files containing reports, records, and other material
pertaining to personnel matters in which administratve action, including
disciplinary action, may be taken.
(2) Home addresses are normally not releasable without the consent
of the individuals concerned. In addition, the release of lists of DoD
military and civilian personnel's names and duty addresses who are
assigned to units that are sensitive, routinely deployable, or stationed
in foreign territories can constitute a clearly unwarranted invasion of
personal privacy.
(i) A privacy interest may exist in personal information even though
the information has been disclosed at some place and time. If personal
information is not freely available from sources other than the Federal
Government a privacy interest exists in its nondisclosure. The fact that
the Government expended funds to prepare, index and maintain records on
personal information, and the fact that a requester invokes FOIA to
obtain these records indicated the information is not freely available.
(ii) Published telephone directories, organizational charts, rosters
and similar materials for personnel assigned to units that are
sensitive, routinely deployable, or stationed in foreign territories are
withholdable under this exemption.
(3) This exemption shall not be used in an attempt to protect the
privacy of a deceased person, but it may be used to protect the privacy
of the deceased person's family.
(4) Individuals' personnel, medical, or similar file may be withheld
from them or their designated legal representative only to the extent
consistent with DoD Directive 5400.11 (reference (d)).
(5) A clearly unwarranted invasion of the privacy of the persons
indentified in a personnel, medical or similar record may constitute a
basis for deleting those reasonably segregable portions of that record,
even when providing it to the subject of the record.
[[Page 158]]
When withholding personal information from the subject record, legal
counsel should first be consulted.
(6) Requests for access to or release of records, before appellate
review, of courts-martial or special courts-martial involving a bad
conduct discharge should be addressed as in appendix B, paragraph 5.
This guidance does not preclude furnishing records of a trial to an
accused.
(g) Number 7. Records or information compiled for law enforcement
purposes; i.e., civil, criminal, or military law, including the
implementation of executive orders or regulations issued pursuant to
law. This exemption also applies to law enforcement investigations such
as Inspector General investigations. This exemption may be invoked to
prevent disclosure of documents not originally created for, but later
gathered for law enforcement purposes.
(1) This exemption applies, however, only to the extent that
production of such law enforcement records or information could result
in the following:
(i) Could reasonably be expected to interfere with enforcement
proceedings.
(ii) Would deprive a person of the right to a fair trial or to an
impartial adjudication.
(iii) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy of a living person, including surviving
family members of an individual identified in such a record.
(A) This exemption also applies when the fact of the existence or
nonexistence of a responsive record would itself reveal personally
private information, and the public interest in disclosure is not
sufficient to outweigh the privacy interest. In this situation,
Components shall neither confirm nor deny the existence or nonexistence
of the record being requested.
(B) A ``refusal to confirm or deny'' response must be used
consistently, not only when a record exists, but also when a record does
not exist. Otherwise, the pattern of using a ``no records'' response
when a record does not exist and a ``refusal to confirm or deny'' when a
record does exist will itself disclose personally private information.
(C) Refusal to confirm or deny should not be used when (1) the
person whose personal privacy is in jeopardy has provided the requester
with a waiver of his or her privacy rights; or (2) the person whose
personal privacy is in jeopardy is decreased, and the agency is aware of
the fact.
(iv) Could reasonably be expected to disclose the identity of a
confidential source, including a source within the Department of
Defense, a State, local, or foreign agency or authority, or any private
institution which furnishes the information on a confidential basis.
(v) Could disclose information furnished from a confidential source
and obtained by a criminal law enforcement authority in a criminal
investigation or by an agency conducting a lawful national security
intelligence investigation.
(vi) Would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law.
(vii) Could reasonably be expected to endanger the life or physical
safety of any individual.
(2) Examples include:
(i) Statements of witnesses and other material developed during the
course of the investigation and all materials prepared in connection
with related government litigation or adjudicative proceedings.
(ii) The identity of firms or individuals being investigated for
alleged irregularities involving contracting with the Department of
Defense (Army) when no indictment has been obtained nor any civil action
filed against them by the United States.
(iii) Information obtained in confidence, expressed or implied, in
the course of a criminal investigation by a criminal law enforcement
agency or office within a DoD Component, or a lawful national security
intelligence investigation conducted by an authorized
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agency or office within a DoD Component. National security intelligence
investigations include background security investigations and those
investigations conducted for the purpose of obtaining affirmative or
counterintelligence information.
(3) The right of individual litigants to investigative records
currently available by law (such as, the Jencks Act, 18 U.S.C. 3500,
reference (l)) is not diminished.
(4) When the subject of an investigative record is the requester of
the record, it may be withheld only as authorized by DoD Directive
5400.11 (reference (d)). The Army implementing directive is AR 340-21.
(5) Exclusions. Excluded from the above exemption are the following
two situations applicable to the Department of Defense:
(i) Whenever a request is made which involves access to records or
information compiled for law enforcement purposes, and the investigation
or proceeding involves a possible violation of criminal law where there
is reason to believe that the subject of the investigation or proceeding
is unaware of its pendency, and the disclosure of the existence of the
records could reasonably be expected to interfere with enforcement
proceedings, Components may, during only such times as that circumstance
continues, treat the records or information as not subject to the FOIA.
In such situation, the response to the requester will state that no
records were found.
(ii) Whenever informant records maintained by a criminal law
enforcement organization within a DoD Component under the informant's
name or personal identifier are requested by a third party using the
informant's name or personal identifier, the Component may treat the
records as not subject to the FOIA, unless the informant's status as an
informant has been officially confirmed. If it is determined that the
records are not subject to the FOIA, the response to the requester will
state that no records were found.
(h) Number 8. Those contained in or related to examination,
operation or condition reports prepared by, on behalf of, or for the use
of any agency responsible for the regulation or supervision of financial
institutions.
(i) Number 9. Those containing geological and geophysical
information and data (including maps) concerning wells.
[56 FR 48932, Sept. 26, 1991, as amended at 56 FR 56010, Oct. 31, 1991]
Subpart D--For Official Use Only
General Provisions
Sec. 518.38 General.
Information that has not been given a security classification
pursuant to the criteria of an Executive Order, but which may be
withheld from the public for one or more of the reasons cited in FOIA
exemptions 2 through 9 shall be considered as being for official use
only. No other material shall be considered or marked ``For Official Use
Only'' (FOUO), and FOUO is not authorized as an anemic form of
classification to protect national security interests.
Sec. 518.39 Prior FOUO application.
The prior application of FOUO markings is not a conclusive basis for
withholding a record that is requested under the FOIA. When such a
record is requested, the information in it shall be evaluated to
determine whether, under current circumstances, FOIA exemptions apply in
withholding the record or portions of it. If any exemption or exemptions
apply or applies, it may nonetheless be released when it is determined
that no governmental interest will be jeopardized by its release.
Sec. 518.40 Historical papers.
Records such as notes, working papers, and drafts retained as
historical evidence of DoD Component actions enjoy no special status
apart from the exemptions under the FOIA (reference (a)).
Sec. 518.41 Time to mark records.
The marking of records at the time of their creation provides notice
of FOUO content and facilitates review when a record is requested under
the FOIA. Records requested under the
[[Page 160]]
FOIA that do not bear such markings, shall not be assumed to be
releasable without examination for the presence of information that
requires continued protection and qualifies as exempt from public
release.
Sec. 518.42 Distribution statement.
Information in a technical document that requires a distribution
statement pursuant to DoD Directive 5230.24 (reference (m)), shall bear
that statement and may be marked FOUO as appropriate.
Sec. 518.43 Location of markings.
(a) An unclassified document containing FOUO information shall be
marked ``For Official Use Only'' in bold letters at least \3/16\ of an
inch high at the bottom on the outside of the front cover (if any), one
each page containing FOUO information, and on the outside of the back
cover (if any).
(b) Within a classified document, an individual page that contains
both FOUO and classified information shall be marked at the top and
bottom with the highest security classification of information appearing
on the page.
(c) Within a classified document, an individual page that contains
FOUO information but no classified information shall be marked ``For
Official Use Only'' at the bottom of the page. The paragraphs containing
the ``For Official Use Only'' information should also be marked with the
initials FOUO.
(d) Other records, such as, photographs, films, tapes, or slides,
shall be marked ``For Official Use Only'' or ``FOUO'' in a manner that
ensures that a recipient or viewer is aware of the status of the
information therein. Markings on microform will conform to the
requirements of paragraphs (b) and (c) of this section. As a minimum,
each frame of a microform containing FOUO information will be marked
``FOR OFFICIAL USE ONLY'' at the bottom center of the appropriate page
or frame. Classified or protective markings placed by a software program
at both top and bottom of a page or frame of a computer-generated report
are acceptable. Storage media (disk packs or magnetic tapes) containing
personal information subject to the Privacy Act will be labeled ``FOR
OFFICIAL USE ONLY-Privacy Act Information.''
(e) FOUO material transmitted outside the Department of Defense
requires application of an expanded marking to explain the significance
of the FOUO marking. This may be accomplished by typing or stamping the
following statement on the record prior to transfer: ``This document
contains information EXEMPT FROM MANDATORY DISCLOSURE under the FOIA.
Exemptions * * * apply.''
(f) Permanently bound volumes need to be marked only on the outside
of the front and back covers, title page, and first and last pages.
Volumes stapled by office-type hand or electric staples are not
considered permanently bound.
Dissemination and Transmission
Sec. 518.44 Release and transmission procedures.
Until FOUO status is terminated, the release and transmission
instructions that follow apply:
(a) FOUO information may be disseminated within DoD Components and
between officials of DoD Components and DoD contractors, consultants,
and grantees to conduct official business for the Department of Defense.
Recipients shall be made aware of the status of such information, and
transmission shall be by means that preclude unauthorized public
disclosure. Transmittal documents shall call attention to the presence
of FOUO attachments.
(b) DoD holders of FOUO information are authorized to convey such
information to officials in other departments and agencies of the
executive and judicial branches to fulfill a government function, except
to the extent prohibited by the Privacy Act. Records thus transmitted
shall be marked ``For Official Use Only,'' and the recipient shall be
advised that the information has been exempted from public disclosure,
pursuant to the FOIA, and that special handling instructions do or do
not apply.
(c) Release of FOUO information to Members of Congress is governed
by DoD Directive 5400.4 (reference (n)). Army implementing instructions
are in Sec. 518.52 and in AR 1-20. Release to the GAO is governed by DoD
Directive
[[Page 161]]
7650.1 (reference (o)). Records released to the Congress or GAO should
be reviewed to determine whether the information warrants FOUO status.
If not, prior FOUO markings shall be removed or effaced. If withholding
criteria are met, the records shall be marked FOUO and the recipient
provided an explanation for such exemption and marking. Alternatively,
the recipient may be requested, without marking the record, to protect
against its public disclosure for reasons that are explained.
Sec. 518.45 Transporting FOUO information.
Records containing FOUO information shall be transported in a manner
that precludes disclosure of the contents. When not commingled with
classified information, FOUO information may be sent via first-class
mail or parcel post. Bulky shipments, such as distributions of FOUO
Directives or testing materials, that otherwise qualify under postal
regulations may be sent by fourth-class mail. When material marked FOUO
is removed from storage, attach DA Label 87 (For Official Use Only Cover
Sheet).
Sec. 518.46 Electrically transmitted messages.
Each part of electrically transmitted messages containing FOUO
information shall be marked appropriately. Unclassified messages
containing FOUO information shall contain the abbreviation ``FOUO''
before the beginning of the text. Such messages shall be transmitted in
accordance with communications security procedures in ACP[EN]121 (U.S.
Supp 1) (reference (p)) for FOUO information. Army follows the
procedures in AR 25-11.
Sec. 518.47 Telephone usage.
(a) FOUO information may be discussed over the telephone lines with
DoD, other Government agencies, and Government support contractors for
official purposes.
(b) Facsimile communications marked FOUO may be transmitted by
nonsecure terminals with the FOUO markings intact between U.S. DoD,
other U.S. Government agencies, and U.S. Government support contractors
for official purposes.
Safeguarding FOUO Information
Sec. 518.48 During duty hours.
During normal working hours, records determined to be FOUO shall be
placed in an out-of-sight location if the work area is accessible to
non-governmental personnel. When material marked FOUO is removed from
storage, attach DA Label 87.
Sec. 518.49 During nonduty hours.
At the close of business, FOUO records shall be stored so as to
preclude unauthorized access. Filing such material with other
unclassified records in unlocked files or desks, etc., is adequate when
normal U.S. Government or government-contractor internal building
security is provided during nonduty hours. When such internal security
control is not exercised, locked buildings or rooms normally provide
adequate after-hours protection. If such protection is not considered
adequate, FOUO material shall be stored in locked receptacles such as
file cabinets, desks, or bookcases. FOUO records that are subject to the
provisions of Public Law 86-36 (reference (c)) shall meet the safeguards
outlined for that group of records. Army personnel handling National
Security Agency (NSA) records will follow NSA instructions on storing
and safeguarding those records.
Termination, Disposal and Unauthorized Disclosures
Sec. 518.50 Termination.
The originator or other competent authority, e.g., initial denial
and appellate authorities, shall terminate ``For Official Use Only''
markings or status when circumstances indicate that the information no
longer requires protection from public disclosure. When FOUO status is
terminated, all known holders shall be notified, to the extent
practical. Upon notification, holders shall efface or remove the ``For
Official Use Only'' markings, but records in file
[[Page 162]]
or storage need not be retrieved solely for that purpose.
[56 FR 48932, Sept. 26, 1991; 56 FR 56010, Oct. 31, 1991]
Sec. 518.51 Disposal.
(a) Nonrecord copies of FOUO materials may be destroyed by tearing
each copy into pieces to preclude reconstructing, and placing them in
regular trash containers. When local circumstances or experience
indicates that this destruction method is not sufficiently protective of
FOUO information, local authorities may direct other methods but must
give due consideration to the additional expense balanced against the
degree of sensitivity of the type of FOUO information contained in the
records.
(b) Record copies of FOUO documents shall be disposed of in
accordance with the disposal standards established under 44 U.S.C.
chapter 33 (reference (q)), as implemented by DoD Component instructions
concerning records disposal. Army implementing disposition instructions
are in AR 5-400-2.
Sec. 518.52 Unauthorized disclosure.
The unauthorized disclosure of FOUO records does not constitute an
unauthorized disclosure of DoD information classified for security
purposes. Appropriate administrative action shall be taken, however, to
fix responsibility for unauthorized disclosure whenever feasible, and
appropriate disciplinary action shall be taken against those
responsible. Unauthorized disclosure of FOUO information that is
protected by the Privacy Act (reference (gg)) may also result in civil
and criminal sanctions against responsible persons. The DoD Component
that originated the FOUO information shall be informed of its
unauthorized disclosure.
Subpart E--Release and Processing Procedures
General Provisions
Sec. 518.53 Public information.
(a) Since the policy of the Department of Defense is to make the
maximum amount of information available to the public consistent with
its other responsibilities, written requests for a DoD or Department of
the Army record made under the FOIA may be denied only when:
(1) The record is subject to one or more of the exemptions in
subpart C of this part.
(2) The record has not been described well enough to enable the DoD
Component to locate it with a reasonable amount of effort by an employee
familiar with the files.
(3) The requester has failed to comply with the procedural
requirements, including the written agreement to pay or payment of any
required fee imposed by the instructions of the DoD Component concerned.
When personally identifiable information in a record is requested by the
subject of the record or his attorney, notarization of the request may
be required.
(b) Individuals seeking DoD information should address their FOIA
requests to one of the addresses listed in appendix B.
(c) Release of information under the FOIA can have an adverse impact
on OPSEC. The Army implementing directive for OPSEC is AR 530-1. It
requires that OPSEC points of contact be named for all HQDA staff
agencies and for all commands down to battalion level. The FOIA official
for the staff agency or command will use DA Form 4948-R to announce the
OPSEC/FOIA advisor for the command. Persons named as OPSEC points of
contact will be OPSEC/FOIA advisors. Command OPSEC/FOIA advisors should
implement the policies and procedures in AR 530-1, consistent with this
regulation and with the following considerations:
(1) Documents or parts of documents properly classified in the
interest of national security must be protected. Classified documents
may be released in response to a FOIA request only under AR 380-5,
chapter III. AR 380-5 provides that if parts of a document are not
classified and can be segregated with reasonable ease, they may be
released, but parts requiring continued protection must be clearly
identified.
(2) The release of unclassified documents could violate national
security. When this appears possible, OPSEC-FOIA advisors should request
a classification evaluation of the document by
[[Page 163]]
its proponent under AR 380-5, paragraphs 2-204, 2-600, 2-800, and 2-801.
In such cases, other FOIA exemptions (para 3-200) may also apply.
(3) A combination of unclassified documents, or parts of them, could
combine to supply information that might violate national security if
released. When this appears possible, OPSEC/FOIA advisors should
consider classifying the combined information per AR 380-5, paragraph 2-
211.
(4) A document or information may not be properly or currently
classified when a FOIA request for it is received. In this case, the
request may not be denied on the grounds that the document or
information is classified except in accordance with Executive Order
12356, Sec. 1.6(d), and AR 380-5, paragraph 2-204, and with approval of
the Army General Counsel.
(d) OPSEC/FOIA advisors will--
(1) Advise persons processing FOIA requests on related OPSEC
requirements.
(2) Help custodians of requested documents prepare requests for
classification evaluations.
(3) Help custodians of requested documents identify the parts of
documents that must remain classified under this paragraph and AR 380-5.
(e) OPSEC/FOIA advisors do not, by their actions, relieve FOIA
personnel and custodians processing FOIA requests of their
responsibility to protect classified or exempted information.
Sec. 518.54 Requests from private parties.
The provisions of the FOIA are reserved for persons with private
interests as opposed to federal or foreign governments seeking official
information. Requests from private persons will be made in writing, and
will clearly show all other addresses within the Federal Government to
whom the request was sent. This procedure will reduce processing time
requirements, and ensure better inter and intra-agency coordination.
Components are under no obligation to establish procedures to receive
hand delivered requests. Foreign governments seeking information from
DoD Components should use established official channels for obtaining
information. Release of records to individuals under the FOIA is
considered public release of information, except as provided for in
Secs. 518.24 and 518.32. DA officials will release the following
records, upon request, to the persons specified below, even though these
records are exempt from release to the general public. The 10-day limit
(Sec. 518.22) applies.
(a) Medical records. Commanders or chiefs of medical treatment
facilities will release information.
(1) On the condition of sick or injured patients to the patient's
relatives.
(2) That a patient's condition has become critical to the nearest
known relative or to the person the patient has named to be informed in
an emergency.
(3) That a diagnosis of psychosis has been made to the nearest known
relative or to the person named by the patient.
(4) On births, deaths, and cases of communicable diseases to local
officials (if required by local laws).
(5) Copies of records of present or former soldiers, dependents,
civilian employees, or patients in DA medical facilities will be
released to the patient or to the patient's representative on written
request. The attending physician can withhold records if he or she
thinks that release may injure the patient's mental or physical health;
in that case, copies of records will be released to the patient's next
of kin or legal representative or to the doctor assuming the patient's
treatment. If the patient is adjudged insane, or is dead, the copies
will be released, on written request, to the patient's next of kin or
legal representative.
(6) Copies of records may be given to a Federal or State hospital or
penal institution if the person concerned is an inmate or patient there.
(7) Copies of records or information from them may be given to
authorized representatives of certain agencies. The National Academy of
Sciences, the National Research Council, and other accredited agencies
are eligible to receive such information when they are engaged in
cooperative studies, with the approval of The Surgeon General of the
Army. However, certain information on drug and alcohol use cannot be
released. AR 600-85 covers the Army's alcohol and drug abuse prevention
and control program.
[[Page 164]]
(8) Copies of pertinent parts of a patient's records can be
furnished to the staff judge advocate or legal officer of the command in
connection with the Government's collection of a claim. If proper, the
legal officer can release this information to the tortfeasor's insurer
without the patient's consent.
Note: Information released to third parties under paragraphs (a)
(5), (6), and (7) of this section must be accompanied by a statement of
the conditions of release. The statement will specify that the
information not be disclosed to other persons except as privileged
communication between doctor and patient.
(b) Military personnel records. Military personnel records will be
released under these conditions:
(1) DA must provide specific information about a person's military
service (statement of military service) in response to a request by that
person or with that person's written consent to his or her legal
representative.
(2) Papers relating to applications for, designation of
beneficiaries under, and allotments to pay premiums for, National
Service Life Insurance or Serviceman's Group Life Insurance will be
released to the applicant or to the insured. If the insured is adjudged
insane (evidence of an insanity judgment must be included) or dies, the
records will be released, on request, to designated beneficiaries or to
the next of kin.
(3) Copies of DA documents that record the death of a soldier, a
dependent, or a civilian employee will be released, on request, to that
person's next of kin, life insurance carrier, and legal representative.
A person acting on behalf of someone else concerned with the death
(e.g., the executor of a will) may also obtain copies by submitting a
written request that includes evidence of his or her representative
capacity. That representative may give written consent for release to
others.
(4) Papers relating to the pay and allowances or allotments of a
present or former soldier will be released to the soldier or his or her
authorized representative. If the soldier is deceased, these papers will
be released to the next of kin or legal representatives.
(c) Civilian personnel records. Civilian Personnel Officers (CPOs)
with custody of papers relating to the pay and allowances or allotments
of current or former civilian employees will release them to the
employee or his or her authorized representative. If the employee is
dead, these records will be released to the next of kin or legal
representative. However, a CPO cannot release statements of witnesses,
medical records, or other reports or documents pertaining to
compensation for injuries or death of a DA civilian employee (Federal
Personnel Manual, chap 294). Only officials listed in Sec. 518.58(d)
(18) can release such information.
(d) Release of information to the public concerning accused persons
before determination of the case. Such release may prejudice the
accused's opportunity for a fair and impartial determination of the
case. The following procedures apply:
(1) Information that can be released. Subject to paragraph (d)(2) of
this section, the following information concerning persons accused of an
offense may be released by the convening authority to public news
agencies or media.
(i) The accused's name, grade or rank, unit, regular assigned
duties, and other information as allowed by AR 340-21, paragraph 3-3a.
(ii) The substance or text of the offense of which the person is
accused.
(iii) The identity of the apprehending or investigating agency and
the length or scope of the investigation before apprehension. The
factual circumstances immediately surrounding the apprehension,
including the time and place of apprehension, resistance, or pursuit.
(iv) The type and place of custody, if any.
(2) Information that will not be released. Before evidence has been
presented in open court, subjective observations or any information not
incontrovertibly factual will not be released. Background information or
information relating to the circumstances of an apprehension may be
prejudicial to the best interests of the accused, and will not be
released except under paragraph (d) of this section, unless it serves a
law enforcement function. The following kinds of information will not be
released:
[[Page 165]]
(i) Observations or comments on an accused's character and demeanor,
including those at the time of apprehension and arrest or during
pretrial custody.
(ii) Statements, admissions, confessions, or alibis attributable to
an accused, or the fact of refusal or failure of the accused to make a
statement.
(iii) Reference to confidential sources, investigative techniques
and procedures, investigator notes, and activity files. This includes
reference to fingerprint tests, polygraph examinations, blood tests,
firearms identification tests, or similar laboratory tests or
examinations.
(iv) Statements as to the identity, credibility, or testimony of
prospective witnesses.
(v) Statements concerning evidence or argument in the case, whether
or not that evidence or argument may be used at the trial.
(vi) Any opinion on the accused's guilt.
(vii) Any opinion on the possibility of a plea of guilty to the
offense charged, or of a plea to a lesser offense.
(3) Other considerations.
(i) Photographing or televising the accused. DA personnel should not
encourage or volunteer assistance to news media in photographing or
televising an accused or suspected person being held or transported in
military custody. DA representatives should not make photographs of an
accused or suspect available unless a law enforcement function is
served. Requests from news media to take photographs during courts-
martial are governed by AR 360-5.
(ii) Fugitives from justice. This paragraph does not restrict the
release of information to enlist public aid in apprehending a fugitive
from justice.
(iii) Exceptional cases. Permission to release information from
military personnel records other than as outlined in paragraph (b) of
this section to public news agencies or media may be requested from The
Judge Advocate General (TJAG). Requests for information from military
personnel records other than as outlined in paragraph (b) of this
section above will be processed according to this regulation.
(e) Litigation, tort claims, and contract disputes. Release of
information or records under this paragraph is subject to the time
limitations prescribed in Sec. 518.62. The requester must be advised of
the reasons for nonrelease or referral.
(1) Litigation. (i) Each request for a record related to pending
litigation involving the United States will be referred to the staff
judge advocate or legal officer of the command. He or she will promptly
inform the Litigation Division, Office of the Judge Advocate General
(OTJAG), of the substance of the request and the content of the record
requested. (Mailing address: HQDA (DAJA-LT), WASH DC 20310-2210;
telephone, AUTOVON 227-3462 or commercial (202) 697-3462.)
(ii) If information is released for use in litigation involving the
United States, the official responsible for investigative reports (AR
27-40, para 2-4) must be advised of the release. He or she will note the
release in such investigative reports.
(iii) Information or records normally exempted from release (i.e.,
personnel and medical records) may be releasable to the judge or court
concerned, for use in litigation to which the United States is not a
party. Refer such requests to the local staff judge advocate or legal
officer, who will coordinate it with the Litigation Division, OTJAG
paragraph ((a)of this section).
(2) Tort claims. (i) A claimant or a claimant's attorney may request
a record that relates to a pending administrative tort claim filed
against the DA. Refer such requests promptly to the claims approving or
settlement authority that has monetary jurisdiction over the pending
claim. These authorities will follow AR 27-20. The request may concern
an incident in which the pending claim is not as large as a potential
claim; in such a case, refer the request to the authority that has
monetary jurisdiction over the potential claim.
(ii) A potential claimant or his or her attorney may request
information under circumstances clearly indicating that it will be used
to file a tort claim, though none has yet been filed. Refer such
requests to the staff judge advocate or legal officer of the command.
[[Page 166]]
That authority, when subordinate, will promptly inform the Chief, U.S.
Army Claims Service, of the substance of the request and the content of
the record. (Mailing address: U.S. Army Claims Service, Attn: JACS-TCC,
Fort George G. Meade, MD 20755-5360; telephone, AUTOVON 923-7860 or
commercial (301) 677-7860.)
(iii) DA officials listed in Sec. 518.54(d) who receive requests
under (a) or (b) of this section will refer them directly to the Chief,
U.S. Army Claims Service. They will also advise the requesters of the
referral and the basis for it.
(iv) The Chief, U.S. Army Claims Service, will process requests
according to this regulation and AR 27-20, paragraph 1-10.
(3) Contract disputes. Each request for a record that relates to a
potential contract dispute or a dispute that has not reached final
decision by the contracting officer will be treated as a request for
procurement records and not as litigation. However, the officials listed
in Secs. 518.50(a) and 518.54(d) will consider the effect of release on
the potential dispute. Those officials may consult with the U.S. Army
Legal Services Agency. (Mailing address: U.S. Army Legal Services
Agency, Attn: JALS-CA, Nassif Building, 5611 Columbia Pike, Falls
Church, VA 22041-5013; telephone, AUTOVON 289-2023 or commercial (703)
756-2023.) If the request is for a record that relates to a pending
contract appeal to the Armed Services Board of Contract Appeals or to a
final decision that is still subject to appeal (i.e., 90 days have not
lapsed after receipt of the final decision by the contractor), then the
request will be--
(i) Treated as involving a contract dispute; and
(ii) Referred to the U.S. Army Legal Services Agency. (For address
and phone number, see paragraph (e)(3) of this section.)
(f) Dissemination of unclassified information concerning physical
protection of special nuclear material. (1) Unauthorized dissemination
of unclassified information pertaining to security measures, including
security plans, procedures, and equipment for the physical protection of
special nuclear material, is prohibited under 10 U.S.C. 128 and para
3[EN]200, exemption number 3.
(2) This prohibition shall be applied by the Deputy Chief of Staff
for Operations and Plans as the IDA, to prohibit the dissemination of
any such information only if and to the extent that it is determined
that the unauthorized dissemination of such information could reasonably
be expected to have a significant adverse effect on the health and
safety of the public or the common defense and security by significantly
increasing the likelihood of--
(i) Illegal production of nuclear weapons; or
(ii) Theft, diversion, or sabotage of special nuclear materials,
equipment, or facilities.
(3) In making such a determination, DOD personnel may consider what
the likelihood of an illegal production, theft, diversion, or sabotage
would be if the information proposed to be prohibited from dissemination
were at no time available for dissemination.
(4) DOD personnel shall exercise the foregoing authority to prohibit
the dissemination of any information described:
(i) So as to apply the minimum restrictions needed to protect the
health and safety of the public or the common defense and security; and
(ii) Upon a determination that the unauthorized dissemination of
such information could reasonably be expected to result in a significant
adverse effect on the health and safety of the public or the common
defense and security by significantly increasing the likelihood of--
(A) Illegal production of nuclear weapons; or
(B) Theft, diversion, or sabotage of special nuclear materials,
equipment, or facilities.
(5) DOD employees shall not use this authority to withhold
information from the appropriate committees of Congress.
(g) Release of names and duty addresses. (1) Telephone directories,
organizational charts, and/or staff directories published by
installations or activities in CONUS and U.S. Territories will be
released when requested under FOIA. In all such directories or charts,
names of personnel assigned to sensitive units, routinely deployable
units, or
[[Page 167]]
units stationed in foreign territories will be redacted and denied under
Exemption 6 of the FOIA. By DoD policy, the names of general officers
(or civilian equivalent) or public affairs officers may be released at
any time. The sanitized copy will be redacted by cutting out or masking
the names and reproducing the document. The IDA is the U.S. Army
Information Systems Command-Pentagon, Freedom of Information and Privacy
Act Division, Attn: ASQNS-OP-F, room 1146, Hoffman Building I,
Alexandria, VA 22331-0301.
(2) Public Affairs Offices may release information determined to
have legitimate news value, such as notices of personnel reassignments
to new units or installations within the continental United States,
results of selection/promotion boards, school graduations/completions,
and awards and similar personal achievements. They may release the names
and duty addresses of key officials, if such release is determined to be
in the interests of advancing official community relations functions.
[56 FR 48932, Sept. 26, 1991, as amended at 56 FR 56010, Oct. 31, 1991]
Sec. 518.55 Requests from Government officials.
Requests from officials of State, or local Governments for DoD
Component records shall be considered the same as any other requester.
Requests from members of Congress not seeking records on behalf of a
Congressional Committee, Subcommittee, either House sitting as a whole,
or made on behalf of their constituents shall be considered the same as
any other requester (see Secs. 518.24 and 518.56). Requests from
officials of foreign governments shall be considered the same as any
other requester. Requests from officials of foreign governments that do
not invoke the FOIA shall be referred to appropriate foreign disclosure
channels and the requester so notified.
Sec. 518.56 Privileged release to officials.
(a) Subject to DoD 5200.1-R (reference (h)), and AR 380-5 applicable
to classified information, DoD Directive 5400.11 (reference (d)), and AR
340-21 applicable to personal privacy, or other applicable law, records
exempt from release under subpart C, Exemptions, of this part may be
authenticated and released, without requiring release to other FOIA
requesters, in accordance with DoD Component regulations to U.S.
Government officials requesting them on behalf of Federal government
bodies, whether legislative, executive, administrative, or judicial, as
follows:
(1) To a Committee or Subcommittee of Congress, or to either House
sitting as a whole in accordance with DoD Directive 5400.4 (reference
(n)). The Army implementing directive is AR 1-20. Commanders or chiefs
will notify the Chief of Legislative Liaison of all releases of
information to members of Congress or staffs of congressional
committees. Organizations that in the normal course of business are
required to provide information to Congress may be excepted. Handle
requests by members of Congress (or staffs of congressional committees)
for inspection of copies of official records as follows:
(i) National security classified records. Follow AR 380-5.
(ii) Civilian personnel records. Members of Congress may examine
offical personnel folders as permitted by 5 CFR 297.503(i).
(iii) Information related to disciplinary action. This subparagraph
refers to records of trial by courts-martial; nonjudicial punishment of
military personnel under the Uniform Code of Military Justice, Article
15; nonpunitive measures such as administrative reprimands and
admonitions; suspensions of civilian employees; and similar documents.
If the Department of the Army has not issued specific instructions on
the request, the following instructions will apply. Subordinate
commanders will not release any information without securing the consent
of the proper installation commander. The installation commander may
release the information unless the request is for a classified or ``For
Official Use Only'' document. In that case the commander will refer the
request promptly to the Chief of Legislative Liaison (see paragraph (d)
of this section for action, including the recommendations of the
transmitting agency and copies of the requested records with the
referral.
[[Page 168]]
(iv) Military personnel records. Only HQDA can release information
from these records. Custodians will refer all requests from Congress
directly and promptly to the Chief of Legislative Liaison, Department of
the Army, HQDA (SALL) WASH DC 20310-1600.
(v) Criminal investigation records. Only the Commanding General,
U.S. Army Criminal Investigation Command (USACIDC), can release any
USACIDC-originated criminal investigation file. For further information,
see AR 195-2, Criminal Investigation Activities.
(vi) Other exempt records. Commanders or chiefs will refer requests
for all other categories of exempt information under Sec. 518.33
directly to the Chief of Legislative Liaison per paragraph (d) of this
section. They will include a copy of the material requested and, as
appropriate, recommendations concerning release or denial.
(vii) All other records. The commander or chief with custody of the
records will furnish all other information promptly.
(2) To the Federal courts, whenever ordered by officers of the court
as necessary for the proper administration of justice.
(3) To other Federal Agencies, both executive and administrative, as
determined by the head of a DoD Component or designee.
(i) Disciplinary actions and criminal investigations. Requests for
access to, or information from, the records of disciplinary actions or
criminal investigations will be honored if proper credentials are
presented. Representatives of the Office of Personnel Management may be
given information from personnel files of employees actually employed at
organizations or activities. Each such request will be considered on its
merits. The information released will be the minimum required in
connection with the investigation being conducted.
(ii) Other types of requests. All other official requests received
by DA elements from agencies of the executive branch (including other
military departments) will be honored, if there are no compelling
reasons to the contrary. If there are reasons to withhold the records,
the requests will be submitted for determination of the propriety of
release to the appropriate addresses shown in appendix B.
(4) To State and local officials, as determined by the head of a DoD
Component or designee.
(b) DoD Components shall inform officials receiving records under
the provisions of Sec. 518.56(a), that those records are exempt from
public release under the FOIA and are privileged. DOD Components shall
also advise officials of any special handling instructions.
Sec. 518.57 Required coordination.
Before forwarding a FOIA request to an IDA for action, records
custodians will obtain an opinion from their servicing judge advocate
concerning the releasability of the requested records. A copy of that
legal review, the original FOIA request, two copies of the requested
information (with one copy clearly indicating which portions are
recommended for withholding, which FOIA exemptions support such
withholding, and which portions, if any, have already been released), a
copy of the interim response acknowledging receipt and notifying the
requester of the referral to the IDA, and a cover letter containing a
telephone point of contact will be forwarded to the IDA with the
command's recommendation to deny a request in whole or in part.
Initial Determinations
Sec. 518.58 Initial denial authority.
(a) Components shall limit the number of IDAs appointed. In
designating its IDAs, a DoD Component shall balance the goals of
centralization of authority to promote uniform decisions and
decentralization to facilitate responding to each request within the
time limitations of the FOIA. The DA officials in paragraph (d) of this
section are designated as the Army's only IDAs. Only an IDA, his or her
delegate, or the Secretary of the Army can deny FOIA requests for DA
records. Each IDA will act on direct and referred requests for records
within his or her area of functional responsibility. (See the proper AR
in the 10-series for full discussions of these areas; they are outlined
in paragraph (d) of this section.) Included are records created or
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kept within the IDA's area of responsibility; records retired by, or
referred to, the IDA's headquarters or office; and records of
predecessor organizations. If a request involves the areas of more than
one IDA, the IDA to whom the request was originally addressed will
normally respond to it; however, the affected IDAs may consult on such
requests and agree on responsibility for them. IDAs will complete all
required coordination at initial denial level. This includes classified
records retired to the National Archives and Records Administration when
a mandatory declassification review is necessary.
(b) The initial determination of whether to make a record available
or grant a fee waiver upon request may be made by any suitable official
designated by the DoD Component in published regulations. The presence
of the marking ``For Official Use Only'' does not relieve the designated
official of the responsibility to review the requested record for the
purpose of determining whether an exemption under this Regulation is
applicable and should be invoked. DAs may delegate all or part of their
authority to an office chief or subordinate commander. Such delegations
must not slow FOIA actions. If an IDA's delegate denies a FOIA or fee
waiver request, the delegate must clearly state that he or she is acting
for the IDA and identify the IDA by name and position in the written
response to the requester. IDAs will send the names, offices, and
telephone numbers of their delegates to the Director of Information
Systems for Command, Control, Communications, and Computers. IDAs will
keep this information current. (The mailing address is HQDA (SAIS-PS),
WASH DC 20310-0107.
(c) The officials designated by DoD Components to make initial
determinations should consult with public affairs officers (PAOs) to
become familiar with subject matter that is considered to be newsworthy,
and advise PAOs of all requests from news media representatives. In
addition, the officials should inform PAOs in advance when they intend
to withhold or partially withhold a record, if it appears that the
withholding action may be challenged in the media. A FOIA release or
denial action, appeal, or court review may generate public or press
interest. In such case, the IDA (or delegate) should consult the Chief
of Public Affairs or the command or organization PAO. The IDA should
inform the PAO contacted of the issue and obtain advice and
recommendations on handling its public affairs aspect. Any advice or
recommendations requested or obtained should be limited to this aspect.
Coordination must be completed within the 10-day FOIA response limit.
(The point of contact for the Army Chief of Public Affairs is HQDA
(SAPA-OSR), WASH DC 20310-1500; telephone, AUTOVON 227-4122 or
commercial (202) 697-4122.) If the request involves actual or potential
litigation against the United States, release must be coordinated with
The Judge Advocate General. (See Sec. 518.54(e).)
(d) The following officials are designated IDAs for the areas of
responsibility outlined below:
(1) The Administrative Assistant to the Secretary of the Army is
authorized to act for the Secretary of the Army on requests for all
records maintained by the Office of the Secretary of the Army and its
serviced activities, except those specified in paragraphs (d)(2) through
(d)(6) of this section, as well as requests requiring the personal
attention of the Secretary of the Army.
(2) The Assistant Secretary of the Army (Financial Management) is
authorized to act on requests for finance and accounting records.
(3) The Assistant Secretary of the Army (Research, Development, and
Acquisition) is authorized to act on requests for procurement records
other than those under the purview of the Chief of Engineers and the
Commander, U.S. Army Materiel Command.
(4) The Director of Information Systems for Command, Control,
Communications, and Computers (DISC4) is authorized to act on requests
for records pertaining to the Army Information Resources Management
Program (automation, telecommunications, visual information, records
management, publications and printing, and libraries).
[[Page 170]]
(5) The Inspector General is authorized to act on requests for all
Inspector General records under AR 20-1.
(6) The Auditor General is authorized to act on requests for records
relating to audits done by the U.S. Army Audit Agency under AR 10-2.
This includes requests for related records developed by the Audit
agency.
(7) The Deputy Chief of Staff for Operations and Plans is authorized
to act on requests for records relating to strategy formulation; force
development; individual and unit training policy; strategic and tactical
command and control systems; nuclear and chemical matters; use of DA
forces; and military police records and reports, prisoner confinement,
and correctional records.
(8) The Deputy Chief of Staff for Personnel is authorized to act on
requests for case summaries, letters of instruction to boards,
behavioral science records, general education records, and alcohol and
drug prevention and control records. Excluded are individual treatment/
test records, which are a responsibility of The Surgeon General.
(9) The Deputy Chief of Staff for Logistics is authorized to act on
requests for records relating to DA logistical requirements and
determinations, policy concerning materiel maintenance and use,
equipment standards, and logistical readiness.
(10) The Chief of Engineers is authorized to act on requests for
records involving civil works, military construction, engineer
procurement, and ecology; and the records of the U.S. Army Engineer
divisions, districts, laboratories, and field operating agencies.
(11) The Surgeon General is authorized to act on requests for
medical research and development records, and the medical records of
active duty military personnel, dependents, and persons given physical
examination or treatment at DA medical facilities, to include alcohol
and drug treatment/test records.
(12) The Chief of Chaplains is authorized to act on requests for
records involving ecclesiastical relationships, rites performed by DA
chaplains, and nonprivileged communications relating to clergy and
active duty chaplains' military personnel files.
(13) The Judge Advocate General (TJAG) is authorized to act on
requests for records relating to claims, courts-martial, legal services,
and similar legal records. TJAG is also authorized to act on requests
for records described elsewhere in this regulation, if those records
relate to litigation in which the United States has an interest. In
addition, TJAG is authorized to act on requests for records that are not
within the functional areas of responsibility of any other IDA.
(14) The Chief, National Guard Bureau, is authorized to act on
requests for all personnel and medical records of retired, separated,
discharged, deceased, and active Army National Guard military personnel,
including technician personnel, unless such records clearly fall within
another IDA's responsibility. This authority includes, but is not
limited to, National Guard organization and training files; plans,
operations, and readiness files; policy files; historical files; files
relating to National Guard military support, drug interdiction, and
civil disturbances; construction, civil works, and ecology records
dealing with armories, facilities within the States, ranges, etc.; Equal
Opportunity investigative records; aviation program records and
financial records dealing with personnel, operation and maintenance, and
equipment budgets.
(15) The Chief of Army Reserve is authorized to act on requests for
all personnel and medical records of retired, separated, discharged,
deceased, and reserve component military personnel, and all U.S. Army
Reserve (USAR) records, unless such records clearly fall within another
IDA's responsibility. Records under the responsibility of the Chief of
Army Reserve include records relating to USAR plans, policies, and
operations; changes in the organizational status of USAR units;
mobilization and demobilization policies; active duty tours; and the
Individual Mobilization Augmentation program.
(16) The Commander, United States Army Materiel Command (AMC) is
authorized to act on requests for the records of AMC headquarters and
its
[[Page 171]]
subordinate commands, units, and activities that relate to procurement,
logistics, research and development, and supply and maintenance
operations.
(17) The Commander, USACIDC, is authorized to act on requests for
criminal investigative records of USACIDC headquarters and its
subordinate activities. This includes criminal investigation records,
investigation-in-progress records, and military police reports that
result in criminal investigation reports.
(18) The Commander, United States Total Army Personnel Command, is
authorized to act on requests for military personnel files relating to
active duty (other than those of reserve and retired personnel) military
personnel matters, personnel locator, physical disability
determinations, and other military personnel administration records;
records relating to military casualty and memorialization activities;
heraldic activities; voting; records relating to identification cards;
naturalization and citizenship; commercial solicitation; Military Postal
Service Agency and Army postal and unofficial mail service; civilian
personnel records and other civilian personnel matters; and personnel
administration records.
(19) The Commander, United States Army Community and Family Support
Center, is authorized to act on requests for records relating to morale,
welfare, and recreation activities; nonappropriated funds; child
development centers, community life programs, and family action
programs; retired activities; club management; Army emergency relief;
consumer protection; retiree survival benefits; and records dealing with
DA relationships with Social Security, Veterans' Affairs, United Service
Organization, U.S. Soldiers' and Airmen's Home, and American Red Cross.
(20) The Commander, United States Army Intelligence and Security
Command, is authorized to act on requests for intelligence investigation
and security records, foreign scientific and technological information,
intelligence training, mapping and geodesy information, ground
surveillance records, intelligence threat assessment, and missile
intelligence data relating to tactical land warfare systems.
(21) The Commander, U.S. Army Safety Center, is authorized to act on
requests for Army safety records.
(22) The General Counsel, Army and Air Force Exchange Service
(AAFES), is authorized to act on requests for AAFES records, under AR
60-20/AFR 147-14.
(23) The Commander, Forces Command (FORSCOM), as a specified
commander, is authorized to act on requests for specified command
records that are unique to FORSCOM under Sec. 518.29.
(24) Special IDA authority for time-event related records may be
designated on a case-by-case basis. These will be published in the
Federal Register. Current information on special delegations may be
obtained from the Office of the Director of Information Systems for
Command, Control, Communications, and Computers, Attn: SAIS-PSP, WASH DC
20310-0107.
Sec. 518.59 Reasons for not releasing a record.
There are seven reasons for not complying with a request for a
record:
(a) The request is transferred to another DoD Component, or to
another federal agency.
(b) The DoD Component determines through knowledge of its files and
reasonable search efforts that it neither controls nor otherwise
possesses the requested record.
(c) A record has not been described with sufficient particularity to
enable the DoD Component to locate it by conducting a reasonable search.
(d) The requester has failed unreasonably to comply with procedural
requirements, including payment of fees imposed by this part or DoD
Component supplementing regulations.
(e) The request is withdrawn by the requester.
(f) The information requested is not a record within the meaning of
the FOIA and this Regulation.
(g) The record is denied in accordance with procedures set forth in
the FOIA and this part.
Sec. 518.60 Denial tests.
To deny a requested record that is in the possession and control of
a DoD Component, it must be determined that
[[Page 172]]
the record is included in one or more of the nine categories of records
exempt from mandatory disclosure as provided by the FOIA and outlined in
subpart C of this part.
[56 FR 56010, Oct. 31, 1991]
Sec. 518.61 Reasonably segregable portions.
Although portions of some records may be denied, the remaining
reasonably segregable portions must be released to the requester when it
reasonably can be assumed that a skillful and knowledgeable person could
not reconstruct the excised information. When a record is denied in
whole, the response advising the requester of that determination will
specifically state that it is not too reasonable to segregate portions
of the records for release. The excised copies shall reflect the denied
information by means of Blackened areas, which are Sufficiently
Blackened as to reveal no information. The best means to ensure
illegibility is to cut out the information from a copy of the document
and reproduce the appropriate pages. If the document is classified, all
classification markings shall be lined through with a single black line,
which still allows the marking to be read. The document shall then be
stamped ``Unclassified''.
[56 FR 56010, Oct. 31, 1991]
Sec. 518.62 Response to requester.
(a) Initial determinations to release or deny a record normally
shall be made and the decision reported to the requester within 10
working days after receipt of the request by the official designated to
respond. The action command or office holding the records will date- and
time-stamp each request on receipt. The 10-day limit will start from the
date stamped.
(b) When a decision is made to release a record, a copy should be
made available promptly to the requester once he has complied with
preliminary procedural requirements.
(c) When a request for a record is denied in whole or in part, the
official designated to respond shall inform the requester in writing of
the name and title or position of the official who made the
determination, and shall explain to the requester the basis for the
determination in sufficient detail to permit the requester to make a
decision concerning appeal. The requester specifically shall be informed
of the exemptions on which the denial is based. When the initial denial
is based in whole or in part on a security classification, the
explanation should include a summary of the applicable criteria for
classification, as well as an explanation, to the extent reasonably
feasible, of how those criteria apply to the particular record in
question. The requester shall also be advised of the opportunity and
procedures for appealing an unfavorable determination to a higher final
authority within the DoD Component. The IDA will inform the requester of
his or her right to appeal, in whole or part, the denial of the FOIA or
fee waiver request and that the appeal must be sent through the IDA to
the Secretary of the Army (Attn: General Counsel). (See Sec. 518.69).
(d) The response to the requester should contain information
concerning the fee status of the request, consistent with the provisions
of subpart F, this regulation. Generally, the information shall reflect
one or more of the following conditions:
(1) All fees due have been received.
(2) Fees have been waived because they fall below the automatic fee
waiver threshold.
(3) Fees have been waived or reduced from a specified amount to
another specified amount because the rationale provided in support of a
request for waiver was accepted.
(4) A request for waiver has been denied.
(5) Fees due in a specified amount have not been received.
(e) The explanation of the substantive basis for a denial shall
include specific citation of the statutory exemption applied under
provisions of this Regulation. Merely referring to a classification or
to a ``For Official Use Only'' marking on the requested record does not
constitute a proper citation or explanation of the basis for invoking an
exemption.
(f) When the time for response becomes an issue, the official
responsible for replying shall acknowledge to the
[[Page 173]]
requester the date of the receipt of the request.
Sec. 518.63 Extension of time.
(a) In unusual circumstances, when additional time is needed to
respond, the DoD Component shall acknowledge the request in writing
within the 10-day period, describe the circumstances requiring the
delay, and indicate the anticipated date for substantive response that
may not exceed 10 additional working days. Unusual circumstances that
may justify delay are:
(1) The requested record is located in whole or in part at places
other than the office processing the request.
(2) The request requires the collection and evaluation of a
substantial number of records.
(3) Consultation is required with other DoD Components or agencies
having substantial interest in the subject matter to determine whether
the records requested are exempt from disclosure in whole or in part
under provisions of this Regulation or should be released as a matter of
discretion.
(b) The statutory extension of time for responding to an initial
request must be approved on a case-by-case basis by the final appellate
authority for the DoD Component, or in accordance with regulations of
the DoD Component, or in accordance with regulations of the DoD
Component that establish guidance governing the circumstances in which
such extensions may be granted. The time may be extended only once
during the initial consideration period. Only the responsible IDA can
extend it, and the IDA must first coordinate with the Office of the Army
General Counsel.
(c) In these unusual cases where the statutory time limits cannot be
met and no informal extension of time has been agreed to, the inability
to process any part of the request within the specified time should be
explained to the requester with notification that he or she may treat
the delay as an initial denial with a right to appeal, or with a request
that he agree to await a substantive response by an anticipated date. It
should be made clear that any such agreement does not prejudice the
right of the requester to appeal the initial decision after it is made.
Components are reminded that the requester still retains the right to
treat this delay as a de facto denial with full administrative remedies.
(d) As an alternative to the taking of formal extensions of time as
described in Sec. 518.63 (a), (b), and (c), the negotiation by the
cognizant FOIA coordinating office of informal extensions in time with
requesters is encouraged where appropriate.
Sec. 518.64 Misdirected requests.
Misdirected requests shall be forwarded promptly to the DoD
Component with the responsibility for the records requested. The period
allowed for responding to the request misdirected by the requester shall
not begin until the request is received by the DoD Component that
manages the records requested.
Sec. 518.65 Records of non-U.S. Government source.
(a) When a request is received for a record that was obtained from a
non-U.S. Government source, or for a record containing information
clearly identified as having been provided by a non-U.S. Government
source, the source of the record or information (also known as ``the
submitter'' for matters pertaining to proprietary data under 5 U.S.C.
552 (reference (a) Exemption (b)(4) subpart C, exemptions, Sec. 518.37,
paragraph (d) and reference (dd), this part) will be notified promptly
of that request and afforded reasonable time (e.g., 30 calendar days) to
present any objections concerning the release, unless it is clear that
there can be no valid basis for objection. This practice is required for
those FOIA requests for data not deemed clearly exempt from disclosure
under Exemption (b)(4). If, for example, the record or information was
provided with actual or presumptive knowledge of the non-U.S. Government
source and estalished that it would be made available to the public upon
request, there is no obligation to notify the source. Any objections
shall be evaluated. The final decision to disclose information claimed
to be exempt under Exemption (b)(4) shall be made by an official
equivalent in rank to the official who would make the decision to
withhold that information
[[Page 174]]
under the FOIA. When a substantial issue has been raised, the DoD
Component may seek additional information from the source of the
information and afford the source and requester reasonable opportunities
to present their arguments on the legal and substantive issues involved
prior to making an agency determination. When the source advises it will
seek a restraining order to take court action to prevent release of the
record or information, the requester shall be notified, and action on
the request normally shall not be taken until after the outcome of that
court action is known. When the requester brings court action to compel
disclosure, the submitter shall be promptly notified of this action.
(b) The coordination provisions of this paragraph also apply to any
non-U.S. Government record in the possession and control of the
Department of Defense from multi-national organizations, such as the
North American Treaty Organization (NATO) and North American Aerospace
Defense Command (NORAD), or foreign governments. Coordination with
foreign governments under the provisions of this paragraph shall be made
through Department of State.
Sec. 518.66 File of initial denials.
Copies of all initial denials shall be maintained by each DoD
Component in a form suitable for rapid retrieval, periodic statistical
compilation, and management evaluation. Records will be maintained in
accordance with AR 25-400-2.
Sec. 518.67 Special mail services.
DoD Components are authorized to use registered mail, certified
mail, certificates of mailing and return receipts. However, their use
should be limited to instances where it appears advisable to establish
proof of dispatch or receipt of FOIA correspondence.
Sec. 518.68 Receipt accounts.
The Treasurer of the United States has established two accounts for
FOIA receipts. These accounts, which are described below, shall be used
for depositing all FOIA receipts, except receipts for industrially-
funded and non-appropriated funded activities. Components are reminded
that the below account numbers must be preceded by the appropriate
disbursing office two digit prefix. Industrially-funded and
nonappropriated funded activity FOIA receipts shall be deposited to the
applicable fund.
(a) Receipt Account 3210 Sale of Publications and Reproductions,
Freedom of Information Act. This account shall be used when depositing
funds received from providing existing publications and forms that meet
the Receipt Account Series description found in Federal Account Symbols
and Titles. Deliver collections within 30 calendar days to the servicing
finance and accounting office.
(b) Receipt Account 3210 Fees and Other Charges for Services,
Freedom of Information Act. This account is used to deposit search fees,
fees for duplicating and reviewing (in the case of commercial
requesters) records to satisfy requests that could not be filled with
existing publications or forms.
Appeals
Sec. 518.69 General.
(a) If the official designated by the DoD Component to make initial
determinations on requests for records (IDA) declines to provide a
record because the official considers it exempt, that decision may be
appealed by the requester, in writing, to a designated appellate
authority. The appeal should be accompanied by a copy of the letter
denying the initial request. Such appeals should contain the basis for
disagreement with the initial refusal. Appeal procedures also apply to
the disapproval of a request for a waiver or reduction of fees, and for
no record determinations when the requester considers such a response
adverse in nature. Appeals of denials of Office of the Secretary of
Defense and Joint Staff documents or fee waivers may be sent to the
address in appendix B, paragraph 2a to this part.
(b) Appeals of adverse determinations made by Army IDAs must be made
through the denying IDA to the Secretary of the Army (Attn: General
Counsel). On receipt of an appeal, the IDA will--
[[Page 175]]
(1) Send the appeal to the Office of the Secretary of the Army,
Office of the General Counsel, together with a copy of the documents
that are the subject of the appeal, marked to show the portions
withheld; the initial denial letter; and any other relevant material.
(2) Assist the General Counsel as requested during his or her
consideration of the appeal.
(c) Appeals of denial of records made by the General Counsel, AAFES,
shall be made to the Secretary of the Army when the Commander, AAFES, is
an Army officer.
Sec. 518.70 Time of receipt.
An FOIA appeal has been received by a DoD Component when it reaches
the office of an appellate authority having jurisdiction. Misdirected
appeals should be referred expeditiously to the proper appellate
authority.
Sec. 518.71 Time limits.
(a) The requester shall be advised to file an appeal so that it
reaches the appellate authority no later than 60 calendar days after the
date of the initial denial letter. At the conclusion of this period, the
case may be considered closed; however, such closure does not preclude
the requester from filing litigation. In cases where the requester is
provided several incremental determinations for a single request, the
time for the appeal shall not begin until the requester receives the
last such notification. Records which are denied shall be retained for a
period of six years to meet the statute of limitations of claims
requirement.
(b) Final determinations on appeals normally shall be made within 20
working days after receipt.
Sec. 518.72 Delay in responding to an appeal.
(a) If additional time is needed due to the unusual circumstances
described in Sec. 518.63, of this part, the final decision may be
delayed for the number of working days (not to exceed 10), that were not
used as additional time for responding to the initial request.
(b) If a determination cannot be made and the requester notified
within 20 working days, the appellate authority shall acknowledge to the
requester, in writing, the date of receipt of the appeal, the
circumstances surrounding the delay, and the anticipated date for
substantive response. Requests shall be advised that, if the delay
exceeds the statutory extension provision or is for reasons other than
the unusual circumstances identified in Sec. 518.63, they may consider
their administrative remedies exhausted. They may, however, without
prejudicing their right of judicial remedy, await a substantive
response. The DoD Component shall continue to process the case
expeditiously, whether or not the requester seeks a court order for
release of the records, but a copy of any response provided subsequent
to filing of a complaint shall be forwarded to the Department of
Justice.
Sec. 518.73 Response to the requester.
(a) When an appellate authority makes a determination to release all
or a portion of records withheld by an IDA, a copy of the records so
released should be forwarded promptly to the requester after compliance
with any preliminary procedural requirements, such as payment of fees.
(b) Final refusal to provide a requested record or to approve a
request for waiver or reduction of fees must be made in writing by the
head of the DoD Component or by a designated representative. The
response, at a minimum, shall include the following:
(1) The basis for the refusal shall be explained to the requester,
in writing, both with regard to the applicable statutory exemptions or
exemption invoked under provisions of this regulation.
(2) When the final refusal is based in whole or in part on a
security classification, the explanation shall include a determination
that the record meets the cited criteria and rationale of the governing
Executive Order, and that this determination is based on a
declassification review, with the explanation of how that review
confirmed the continuing validity of the security classification.
(3) The final denial shall include the name and title or position of
the official responsible for the denial.
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(4) The response shall advise the requester that the material being
denied does not contain meaningful portions that are reasonably
segregable.
(5) The response shall advise the requester of the right to judicial
review.
Sec. 518.74 Consultation.
(a) Final refusal, involving issues not previously resolved or that
the DoD Component knows to be inconsistent with rulings of other DoD
Components, ordinarily should not be made before consultation with the
Office of the General Counsel of the Department of Defense.
(b) Tentative decisions to deny records that raise new or
significant legal issues of potential significance to other agencies of
the government shall be provided to the Department of Justice, ATTN:
Office of Legal Policy, Office of Information and Policy, Washington, DC
20530.
Judicial Actions
Sec. 518.75 General.
(a) This section states current legal and procedural rules for the
convenience of the reader. The statements of rules do not create rights
or remedies not otherwise available, nor do they bind the Department of
Defense to particular judicial interpretations or procedures.
(b) A requester may seek an order from a United States District
Court to compel release of a record after administrative remedies have
been exhausted; i.e., when refused a record by the head of a Component
or an appellate designee or when the DoD Component has failed to respond
within the time limits prescribed by the FOIA and in this Regulation.
Sec. 518.76 Jurisdiction.
The requester may bring suit in the United States District Court in
the district in which the requester resides or is the requester's place
of business, in the district in which the record is located, or in the
District of Columbia.
Sec. 518.77 Burden of proof.
The burden of proof is on the DoD Component to justify its refusal
to provide a record. The court shall evaluate the case de novo (anew)
and may elect to examine any requested record in camera (in private) to
determine whether the denial was justified.
Sec. 518.78 Action by the court.
(a) When a DoD Component has failed to make a determination within
the statutory time limits but can demonstrate due diligence in
exceptional circumstances, the court may retain jurisdiction and allow
the Component additional time to complete its review of the records.
(b) If the court determines that the requester's complaint is
substantially correct, it may require the United States to pay
reasonable attorney fees and other litigation costs.
(c) When the court orders the release of denied records, it may also
issue a written finding that the circumstances surrounding the
withholding raise questions whether DoD Component personnel acted
arbitrarily and capriciously. In these cases, the special counsel of the
Merit Systems Protection Board shall conduct an investigation to
determine whether or not disciplinary action is warranted. The DoD
Component is obligated to take the action recommended by the special
counsel.
(d) The court may punish the responsible official for contempt when
a DoD Component fails to comply with the court order to produce records
that it determines have been withheld improperly.
Sec. 518.79 Non-United States Government source information.
A requester may bring suit in a U.S. District Court to compel the
release of records obtained from a nongovernment source or records based
on information obtained from a nongovernment source. Such source shall
be notified promptly of the court action. When the source advises that
it is seeking court action to prevent release, the DoD Component shall
defer answering or otherwise pleading to the complainant as long as
permitted by the Court or until a decision is rendered in the court
action of the source, whichever is sooner.
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Sec. 518.80 Litigation status sheet.
FOIA managers at DoD Component level shall be aware of litigation
under the FOIA. Such information will provide management insights into
the use of the nine exemptions by Component personnel. The Litigation
Status Sheet at appendix C provides a standard format for recording
information concerning FOIA litigation and forwarding that information
to the Office of the Secretary of Defense. Whenever a complaint under
the FOIA is filed in a U.S. District Court, the DoD Component named in
the complaint shall forward a Ligitation Status Sheet, with items 1
through 6 completed, and a copy of the complaint to the OASD(PA), Attn:
DFOISR, with an information copy to the General Counsel, Department of
Defense, Attn: Office of Legal Counsel. A revised Litigation Status
Sheet shall be provided at each stage of the litigation. In the
Department of the Army, HQDA TJAG (DAJA-LT), WASH DC 20310-2210 is
responsible for preparing this report.
Subpart F--Fee Schedule
General Provisions
Sec. 518.81 Authorities.
The Freedom of Information Act (5 U.S.C. 552), as amended; by the
Freedom of Information Reform Act of 1986; the Paperwork Reduction Act
(44 U.S.C. 35); the Privacy Act of 1974 (5 U.S.C. 552a); the Budget and
Accounting Act of 1921 (31 U.S.C. 1 et seq.); the Budget and Accounting
Procedures Act (31 U.S.C. 67 et seq.); the Defense Authorization Act for
FY 87, Section 954, (Pub. L. 99-661); as amended by the Defense
Technical Corrections Act of 1987 (Pub. L. 100-26).