32 CFR 68.7 Effective date and implementation.
This part is effective October 16, 1987. The Secretary of each
Military Department shall forward two copies of the Military
Department's implementing documents to the ASD(FM&P) within 120 days.
32 CFR 68.7 PART 70 -- DISCHARGE REVIEW BOARD (DRB) PROCEDURES AND
STANDARDS
Sec.
70.1 Reissuance and purpose.
70.2 Applicability.
70.3 Definitions.
70.4 Responsibilities.
70.5 Procedures.
70.6 Information requirements.
70.7 Effective date and implementation.
70.8 Discharge review procedures.
70.9 Discharge review standards.
70.10 Complaints concerning decisional documents and index entries.
70.11 DoD semiannual report.
Authority: 10 U.S.C. 1553 and 38 U.S.C. 101 and 3103, as amended.
Source: 47 FR 37785, Aug. 26, 1982, unless otherwise noted.
32 CFR 70.1 Reissuance and purpose.
This part is reissued and:
(a) Establishes uniform policies, procedures, and standards for the
review of discharges or dismissals under 10 U.S.C. 1553.
(b) Provides guidelines for discharge review by application or on
motion of a DRB, and the conduct of discharge reviews and standards to
be applied in such reviews which are designed to ensure historically
consistent uniformity in execution of this function, as required under
Pub. L. 95-126.
(c) Assigns responsibility for administering the program.
(d) Makes provisions for public inspection, copying, and distribution
of DRB documents through the Armed Forces Discharge Review/Correction
Board Reading Room.
(e) Establishes procedures for the preparation of decisional
documents and index entries.
(f) Provides guidance for processing complaints concerning decisional
documents and index entries.
32 CFR 70.2 Applicability.
The provisions of this Part 70 apply to the Office of the Secretary
of Defense (OSD) and the Military Departments. The terms, ''Military
Services,'' and ''Armed Forces,'' as used herein, refer to the Army,
Navy, Air Force and Marine Corps.
32 CFR 70.3 Definitions.
(a) Applicant. A former member of the Armed Forces who has been
discharged or dismissed administratively in accordance with Military
Department regulations or by sentence of a court-martial (other than a
general court-martial) and under statutory regulatory provisions whose
application is accepted by the DRB concerned or whose case is heard on
the DRB's own motion. If the former member is deceased or incompetent,
the term ''applicant'' includes the surviving spouse, next-of-kin, or
legal representative who is acting on behalf of the former member. When
the term ''applicant'' is used in 70.8 through 70.10, it includes the
applicant's counsel or representative, except that the counsel or
representative may not submit an application for review, waive the
applicant's right to be present at a hearing, or terminate a review
without providing the DRB an appropriate power of attorney or other
written consent of the applicant.
(b) Complainant. A former member of the Armed Forces (or the former
member's counsel) who submits a complaint under 70.10 with respect to
the decisional document issued in the former member's own case; or a
former member of the Armed Forces (or the former member's counsel) who
submits a complaint under 70.10 stating that correction of the
decisional document will assist the former member in preparing for an
administrative or judicial proceeding in which the former member's own
discharge will be at issue.
(c) Counsel or Representative. An individual or agency designated by
the applicant who agrees to represent the applicant in a case before the
DRB. It includes, but is not limited to: a lawyer who is a member of
the bar of a federal court or of the highest court of a state; an
accredited representative designated by an organization recognized by
the Administrator of Veterans Affairs; a representative from a state
agency concerned with veterans affairs; and representatives from
private organizations or local government agencies.
(d) Discharge. A general term used in this Directive that includes
dismissal and separation or release from active or inactive military
status, and actions that accomplish a complete severance of all military
status. This term also includes the assignment of a reason for such
discharge and characterization of service (32 CFR Part 41).
(e) Discharge Review. The process by which the reason for
separation, the procedures followed in accomplishing separation, and the
characterization of service are evaluated. This includes determinations
made under the provisions of 38 U.S.C. 3103(e)(2).
(f) Discharge Review Board (DRB). An administrative board
constituted by the Secretary of the Military Department concerned and
vested with discretionary authority to review discharges and dismissals
under the provisions of 10 U.S.C. 1553. It may be configured as one main
element or two or more elements as designated by the Secretary
concerned.
(g) DRB Panel. An element of a DRB, consisting of five members,
authorized by the Secretary concerned to review discharges and
dismissals.
(h) DRB Traveling or Regional Panel. A DRB panel that conducts
discharge reviews in a location outside the National Capital Region
(NCR).
(i) Hearing. A review involving an appearance before the DRB by the
applicant or on the applicant's behalf by a counsel or representative.
(j) Hearing Examination. The process by which a designated officer
of a DRB prepares a presentation for consideration by a DRB in
accordance with regulations prescribed by the Secretary concerned.
(k) National Capital Region (NCR). The District of Columbia; Prince
Georges and Montgomery Counties in Maryland; Arlington, Fairfax,
Loudoun, and Prince William Counties in Virginia; and all cities and
towns included within the outer boundaries of the foregoing counties.
(l) President, DRB. A person designated by the Secretary concerned
and responsible for the supervision of the discharge review function and
other duties as assigned.
32 CFR 70.4 Responsibilities.
(a) The Secretaries of the Military Departments have the authority
for final decision and the responsibility for the operation for their
respective discharge review programs under 10 U.S.C. 1553.
(b) The Assistant Secretary of Defense (Manpower, Reserve Affairs,
and Logistics) (ASD(MRA&L)) shall:
(1) Resolve all issues concerning DRBs that cannot be resolved among
the Military Departments.
(2) Ensure uniformity among the Military Departments in the rights
afforded applicants in discharge reviews.
(3) Modify or supplement the enclosures to this part.
(4) Maintain the index of decisions and provide for timely
modification of index categories to reflect changes in discharge review
policies, procedures, and standards issued by the OSD and the Military
Departments.
(c) The Secretary of the Army, as the designated administrative focal
point for DRB matters, shall:
(1) Effect necessary coordination with other governmental agencies
regarding continuing applicability of this part and resolve
administrative procedures relating thereto.
(2) Review suggested modifications to this part, including
implementing documents; monitor the implementing documents of the
Military Departments; resolve differences, when practicable; recommend
specific changes; provide supporting rationale to the ASD(MRA&L) for
decision; and include appropriate documentation through the Office of
the ASD(MRA&L) and the OSD Federal Register liaison officer to effect
publication in the Federal Register.
(3) Maintain the DD Form 293, ''Application for Review of Discharge
or Separation from the Armed Forces of the United States,'' and
republish as necessary with appropriate coordination of the other
Military Departments and the Office of Management and Budget.
(4) Respond to all inquiries from private individuals, organizations,
or public officials with regard to DRB matters. When the specific
Military Service can be identified, refer such correspondence to the
appropriate DRB for response or designate an appropriate activity to
perform this task.
(5) Provide overall guidance and supervision to the Armed Forces
Discharge Review/Correction Board Reading Room with staff augmentation,
as required, by the Departments of the Navy and Air Force.
(6) Ensure that notice of the location, hours of operation, and
similar types of information regarding the Reading Room is published in
the Federal Register.
32 CFR 70.5 Procedures.
(a) Discharge review procedures are prescribed in 70.8.
(b) Discharge Review Standards are prescribed in 70.9 and constitute
the basic guidelines for the determination whether to grant or deny
relief in a discharge review.
(c) Complaint Procedures about decisional documents are prescribed in
70.10.
32 CFR 70.6 Information requirements.
(a) Reporting requirements. (1) The reporting requirement prescribed
in 70.8(n) is assigned Report Control Symbol DD-M(SA)1489.
(2) All reports must be consistent with DoD Directive 5000.11, ''Data
Elements and Data Codes Standardization Program,'' December 7, 1964.
(b) Use of standard data elements. The data requirements prescribed
by this Part shall be consistent with DoD 5000.12-M, ''DoD Manual for
Standard Data Elements,'' December 1981. Any reference to a date should
appear as (YYMMDD), while any name entry should appear as (Last name,
first name, middle initial).
32 CFR 70.7 Effective date and implementation.
This part is effective immediately for the purpose of preparing
implementing documents. DoD Directive 1332.28, March 29, 1978, is
officially canceled, effective November 27, 1982. This part applies to
all discharge review proceedings conducted on or after November 27,
1982. 70.10 applies to all complaint proceedings conducted on or after
September 28, 1982. Final action on complaints shall not be taken until
September 28, 1982, unless earlier corrective action is requested
expressly by the applicant (or the applicant's counsel) whose case is
the subject of the decisional document. If earlier corrective action is
requested, it shall be taken in accordance with 70.10.
32 CFR 70.8 Discharge review procedures.
(a) Application for review -- (1) General. Applications shall be
submitted to the appropriate DRB on DD Form 293, ''Application for
Review of Discharge or Separation from the Armed Forces of the United
States,'' with such other statements, affidavits, or documentation as
desired. It is to the applicant's advantage to submit such documents
with the application or within 60 days thereafter in order to permit a
thorough screening of the case. The DD Form 293 is available at most
DoD installations and regional offices of the Veterans Administration,
or by writing to: DA Military Review Boards Agency, Attention: SFBA
(Reading Room), Room 1E520, The Pentagon, Washington, DC 20310.
(2) Timing. A motion or request for review must be made within 15
years after the date of discharge or dismissal.
(3) Applicant's responsibilities. An applicant may request a change
in the character of or reason for discharge (or both).
(i) Character of discharge. Block 7 of DD Form 293 provides an
applicant an opportunity to request a specific change in character of
discharge (for example, General Discharge to Honorable Discharge; Other
than Honorable Discharge to General or Honorable Discharge). Only a
person separated on or after 1 October 1982 while in an entry level
status may request a change from Other than Honorable Discharge to Entry
Level Separation. A request for review from an applicant who does not
have an Honorable Discharge shall be treated as a request for a change
to an Honorable Discharge unless the applicant requests a specific
change to another character of discharge.
(ii) Reason for discharge. Block 7 of DD Form 293 provides an
applicant an opportunity to request a specific change in the reason for
discharge. If an applicant does not request a specific change in the
reason for discharge, the DRB shall presume that the request for review
does not involve a request for change in the reason for discharge.
Under its responsibility to examine the propriety and equity of an
applicant's discharge, the DRB shall change the reason for discharge if
such a change is warranted.
(iii) The applicant must ensure that issues submitted to the DRB are
consistent with the request for change in discharge set forth in block 7
of the DD Form 293. If an ambiguity is created by a difference between
an applicant's issue and the request in block 7, the DRB shall respond
to the issue in the context of the action requested in block 7. In the
case of a hearing, the DRB shall attempt to resolve the ambiguity under
paragraph (a)(5) of this section.
(4) Request for consideration of specific issues. An applicant may
request the DRB to consider specific issues which, in the opinion of the
applicant, form a basis for changing the character of or reason for
discharge, or both. In addition to the guidance set forth in this
section, applicants should consult the other sections in this part
(particularly paragraphs (c), (d), and (e) of this section and 70.9
and 70.10 before submitting issues for consideration by the DRB.
(i) Submission of issues on DD Form 293. Issues must be provided to
the DRB on DD Form 293 before the DRB closes the review process for
deliberation.
(A) Issues must be clear and specific. An issue must be stated
clearly and specifically in order to enable the DRB to understand the
nature of the issue and its relationship to the applicant's discharge.
(B) Separate listing of issues. Each issue submitted by an applicant
should be listed separately. Submission of a separate statement for
each issue provides the best means of ensuring that the full import of
the issue is conveyed to the DRB.
(C) Use of DD Form 293. DD Form 293 provides applicants with a
standard format for submitting issues to the DRB, and its use:
(1) Provides a means for an applicant to set forth clearly and
specifically those matters that, in the opinion of the applicant,
provide a basis for changing the discharge;
(2) Assists the DRB in focusing on those matters considered to be
important by an applicant;
(3) Assists the DRB in distinguishing between a matter submitted by
an applicant in the expectation that it will be treated as a decisional
issue under paragraph (e) of this section, and those matters submitted
simply as background or supporting materials;
(4) Provides the applicant with greater rights in the event that the
applicant later submits a complaint under 70.10(d)(1)(iii) concerning
the decisional document;
(5) Reduces the potential for disagreement as to the content of an
applicant's issue.
(D) Incorporation by reference. If the applicant makes an additional
written submission, such as a brief, in support of the application, the
applicant may incorporate by reference specific issues set forth in the
written submission in accordance with the guidance on DD Form 293. The
reference shall be specific enough for the DRB to identify clearly the
matter being submitted as an issue. At a minimum, it shall identify the
page, paragraph, and sentence incorporated. Because it is to the
applicant's benefit to bring such issues to the DRB's attention as early
as possible in the review, applicants who submit a brief are strongly
urged to set forth all such issues as a separate item at the beginning
of the brief. If it reasonably appears that the applicant inadvertently
has failed expressly to incorporate an issue which the applicant clearly
identifies as an issue to be addressed by the DRB, the DRB shall respond
to such an issue under paragraphs (d) and (e) of this section.
(E) Effective date of the new Form DD 293. With respect to
applications received before November 27, 1982, the DRB shall consider
issues clearly and specifically stated in accordance with the rules in
effect at the time of submission. With respect to applications received
on or after November 27, 1982, if the applicant submits an obsolete DD
Form 293, the DRB shall accept the application, but shall provide the
applicant with a copy of the new form and advise the applicant that it
will only respond to issues submitted on the new form in accordance with
this Part.
(ii) Relationship of issues to character of or reason for discharge.
If the application applies to both character of and reason for
discharge, the applicant is encouraged, but not required, to identify
the issue as applying to the character of or reason for discharge (or
both). Unless the issue is directed at the reason for discharge
expressly or by necessary implication, the DRB will presume that it
applies solely to the character of discharge.
(iii) Relationship of issues to the standards for discharge review.
The DRB reviews discharges on the basis of issues of propriety and
equity. The standards used by the DRB are set forth in 70.9. The
applicant is encouraged to review those standards before submitting any
issue upon which the applicant believes a change in discharge should be
based.
(A) Issues concerning the equity of the discharge. An issue of
equity is a matter that involves a determination whether a discharge
should by changed under the equity standards of 70.9. This includes any
issue, submitted by the applicant in accordance with paragraph (a)(4)(i)
of this section, that is addressed to the discretionary authority of the
DRB.
(B) Issues concerning the propriety of a discharge. An issue of
propriety is a matter that involves a determination whether a discharge
should be changed under the propriety standards of 70.9. This includes
an applicant's issue, submitted in accordance with paragraph (a)(4)(i)
of this section, in which the applicant's position is that the discharge
must be changed because of an error in the discharge pertaining to a
regulation, statute, constitutional provision, or other source of law
(including a matter that requires a determination whether, under the
circumstances of the case, action by military authorities was arbitrary,
capricious, or an abuse of discretion). Although a numerical reference
to the regulation or other sources of law alleged to have been violated
is not necessarily required, the context of the regulation or a
description of the procedures alleged to have been violated normally
must be set forth in order to inform the DRB adequately of the basis for
the applicant's position.
(C) The applicant's identification of an issue. The applicant is
encouraged, but not required, to identify an issue as pertaining to the
propriety or the equity to the discharge. This will assist the DRB in
assessing the relationship of the issue to propriety or equity under
paragraph (e)(1)(iii) of this section.
(iv) Citation of matter from decisions. The primary function of the
DRB involves the exercise of dicretion on a case-by-case basis. See
70.9(b)(3). Applicants are not required to cite prior decisions as the
basis for a change in discharge. If the applicant wishes to bring the
DRB's attention to a prior decision as background or illustrative
material, the citation should be placed in a brief or other supporting
documents. If, however, it is the applicant's intention to submit an
issue that sets forth specific principles and facts from a specific
cited decision, the following requirements apply with respect to
applications received on or after November 27, 1982.
(A) The issue must be set forth or expressly incorporated in the
''Applicant's Issue'' portion of DD Form 293.
(B) If an applicant's issue cites a prior decision (of the DRB,
another Board, an agency, or a court), the applicant shall describe the
specific principles and facts that are contained in the prior decision
and explain the relevance of cited matter to the applicant's case.
(C) To ensure timely consideration of principles cited from
unpublished opinions (including decisions maintained by the Armed Forces
Discharge Review Board/Corrective Board Reading Room), applicants must
provide the DRB with copies of such decisions or of the relevant portion
of the treatise, manual, or similar source in which the principles were
discussed. At the applicant's request, such materials will be returned.
(D) If the applicant fails to comply with the requirements in
paragraphs (a)(4)(iv) (A), (B), and (C), the decisional document shall
note the defect, and shall respond to the issue without regard to the
citation.
(5) Identification by the DRB of issues submitted by an applicant.
The applicant's issues shall be identified in accordance with this
section after a review of the materials noted under paragraph (c)(4), is
made.
(i) Issues on DD Form 293. The DRB shall consider all items
submitted as issues by an applicant on DD Form 293 (or incorporated
therein) in accordance with paragraph (a)(4)(i). With respect to
applications submitted before November 27, 1982, the DRB shall consider
all issues clearly and specifically stated in accordance with the rules
in effect at the time of the submission.
(ii) Amendment of issues. The DRB shall not request or instruct an
applicant to amend or withdraw any matter submitted by the applicant.
Any amendment or withdrawal of an issue by an applicant shall be
confirmed in writing by the applicant. Nothing in this provision:
(A) Limits the DRB's authority to question an applicant as to the
meaning of such matter;
(B) Precludes the DRB from developing decisional issues based upon
such questions;
(C) Prevents the applicant from amending or withdrawing such matter
any time before the DRB closes the review process for deliberation; or
(D) Prevents the DRB from presenting an applicant with a list of
proposed decisional issues and written information concerning the right
of the applicant to add to, amend, or withdraw the applicant's
submission. The written information will state that the applicant's
decision to take such action (or decline to do so) will not be used
against the applicant in the consideration of the case.
(iii) Additional issues identified during a hearing. The following
additional procedure shall be used during a hearing in order to promote
the DRB's understanding of an applicant's presentation. If, before
closing the case for deliberation, the DRB believes that an applicant
has presented an issue not listed on DD Form 293, the DRB may so inform
the applicant, and the applicant may submit the issue in writing or add
additional written issues at that time. This does not preclude the DRB
from developing its own decisional issues.
(6) Notification of possible bar to benefits. Written notification
shall be made to each applicant whose record indicates a reason for
discharge that bars receipt of benefits under 38 U.S.C. 3103(a). This
notification will advise the applicant that separate action by the Board
for Correction of Military or Naval Records or the Veterans
Administration may confer eligibility for VA benefits. Regarding the
bar to benefits based upon the 180 days consecutive unauthorized
absence, the following applies:
(i) Such absence must have been included as part of the basis for the
applicant's discharge under other than honorable conditions.
(ii) Such absence is computed without regard to the applicant's
normal or adjusted expiration of term of service.
(b) Conduct of reviews. (1) Members. As designated by the Secretary
concerned, the DRB and its panels, if any, shall consist of five
members. One member of the DRB shall be designated as the president and
may serve as a presiding officer. Other officers may be designated to
serve as presiding officers for DRB panels under regulations prescribed
by the Secretary concerned.
(2) Locations. Reviews by a DRB will be conducted in the NCR and
such other locations as designated by the Secretary concerned.
(3) Types of review. An applicant, upon request, is entitled to:
(i) Record review. A review of the application, available service
records, and additional documents (if any) submitted by the applicant.
(ii) Hearing. A review involving an appearance before the DRB by the
applicant or counsel or representative (or both).
(4) Applicant's expenses. Unless otherwise specified by law or
regulation, expenses incurred by the applicant, witnesses, counsel or
representative will not be paid by the Department of Defense.
(5) Withdrawal of application. An applicant shall be permitted to
withdraw an application without prejudice at any time before the
scheduled review.
(6) Failure to appear at a hearing or respond to a scheduling notice.
(i) Except as otherwise authorized by the Secretary concerned, further
opportunity for a hearing shall not be made available in the following
circumstances to an applicant who has requested a hearing:
(A) When the applicant has been sent a letter containing the month
and location of a proposed hearing and fails to make a timely response;
or
(B) When the applicant, after being notified by letter of the time
and place of the hearing, fails to appear at the appointed time, either
in person or by representative, without having made a prior, timely
request for a continuation, postponement, or withdrawal.
(ii) In such cases, the applicant shall be deemed to have waived the
right to a hearing, and the DRB shall complete its review of the
discharge. Further request for a hearing shall not be granted unless
the applicant can demonstrate that the failure to appear or respond was
due to circumstances beyond the applicant's control.
(7) Continuance and postponements. (i) A continuance of a discharge
review hearing may be authorized by the president of the DRB or
presiding officer of the panel concerned, provided that such continuance
is of reasonable duration and is essential to achieving a full and fair
hearing. When a proposal for continuance is indefinite, the pending
application shall be returned to the applicant with the option to
resubmit when the case is fully ready for review.
(ii) Postponements of scheduled reviews normally shall not be
permitted other than for demonstrated good and sufficient reason set
forth by the applicant in a timely manner, or for the convenience of the
government.
(8) Reconsideration. A discharge review shall not be subject to
reconsideration except:
(i) When the only previous consideration of the case was on the
motion of the DRB;
(ii) When the original discharge review did not involve a hearing and
a hearing is now desired, and the provisions of paragraph (b)(6) of this
section do not apply;
(iii) When changes in discharge policy are announced after an earlier
review of an applicant's discharge, and the new policy is made expressly
retroactive;
(iv) When the DRB determines that policies and procedures under which
the applicant was discharged differ in material respects from policies
and procedures currently applicable on a Service-wide basis to
discharges of the type under consideration, provided that such changes
in policies or procedures represent a substantial enhancement of the
rights afforded a respondent in such proceedings;
(v) When an individual is to be represented by a counsel or
representative, and was not so represented in any previous consideration
of the case by the DRB;
(vi) When the case was not previously considered under uniform
standards published pursuant to Pub. L. 95-126 and such application is
made within 15 years after the date of discharge; or
(vii) On the basis of presentation of new, substantial, relevant
evidence not available to the applicant at the time of the original
review. The decision whether evidence offered by an applicant in
support of a request for reconsideration is in fact new, substantial,
relevant, and was not available to the applicant at the time of the
original review will be based on a comparison of such evidence with the
evidence considered in the previous discharge review. If this
comparison shows that the evidence submitted would have had a probable
effect on matters concerning the propriety or equity of the discharge,
the request for reconsideration shall be granted.
(9) Availability of records and documents. (i) Before applying for
discharge review, potential applicants or their designated
representatives may obtain copies of their military personnel records by
submitting a General Services Administration Standard Form 180,
''Request Pertaining to Military Records,'' to the National Personnel
Records Center (NPRC), 9700 Page Boulevard, St. Louis, MO 62132. Once
the application for discharge review (DD Form 293) is submitted, an
applicant's military records are forwarded to the DRBs where they cannot
be reproduced. Submission of a request for an applicant's military
records, including a request under the Freedom of Information Act (32
CFR Part 286) or Privacy Act (32 CFR Part 286a) after the DD Form 293
has been submitted, shall result automatically in the temporary
suspension of processing of the application for discharge review until
the requested records are sent to an appropriate location for copying,
are copied, and are returned to the headquarters of the DRB. Processing
of the application shall then be resumed at whatever stage of the
discharge review process is practicable. Applicants are encouraged to
submit any request for their military records before applying for
discharge review rather than after submitting DD Form 293, to avoid
delays in processing of applications and scheduling of reviews.
Applicants and their counsel also may examine their military personnel
records at the site of their scheduled review before the hearing. DRBs
shall notify applicants of the dates the records are available for
examination in their standard scheduling information.
(ii) If the DRB is not authorized to provide copies of documents that
are under the cognizance of another government department, office, or
activity, applications for such information must be made by the
applicant to the cognizant authority. The DRB shall advise the
applicant of the mailing address of the government department, office,
or activity to which the request should be submitted.
(iii) If the official records relevant to the discharge review are
not available at the agency having custody of the records, the applicant
shall be so notified and requested to provide such information and
documents as may be desired in support of the request for discharge
review. A period of not less than 30 days shall be allowed for such
documents to be submitted. At the expiration of this period, the review
may be conducted with information available to the DRB.
(iv) A DRB may take steps to obtain additional evidence that is
relevant to the discharge under consideration beyond that found in the
official military records or submitted by the applicant, if a review of
available evidence suggests that it would be incomplete without the
additional information, or when the applicant presents testimony or
documents that require additional information to evaluate properly.
Such information shall be made available to the applicant, upon request,
with appropriate modifications regarding classified material.
(A) In any case heard on request of an applicant, the DRB shall
provide the applicant and counsel or representative, if any, at a
reasonable time before initiating the decision process, a notice of the
availability of all regulations and documents to be considered in the
discharge review, except for documents in the official personnel or
medical records and any documents submitted by the applicant. The DRB
shall also notify the applicant or counsel or representative:
(1) Of the right to examine such documents or to be provided with
copies of the documents upon request;
(2) Of the date by which such requests must be received; and
(3) Of the opportunity to respond within a reasonable period of time
to be set by the DRB.
(B) When necessary to acquaint the applicant with the substance of a
classified document, the classifying authority, on the request of the
DRB, shall prepare a summary of or an extract from the document,
deleting all references to sources of information and other matters, the
disclosure of which, in the opinion of the classifying authority, would
be detrimental to the national security interests of the United States.
Should preparation of such summary be deemed impracticable by the
classifying authority, information from the classified sources shall not
be considered by the DRB in its review of the case.
(v) Regulations of a Military Department may be obtained at many
installations under the jurisdiction of the Military Department
concerned or by writing to the following address: DA Military Review
Boards Agency, Attention: SFBA (Reading Room), Room 1E520, Washington,
DC 20310.
(10) Recorder/Secretary or Assistant. Such a person shall be
designated to assist in the functioning of each DRB in accordance with
the procedures prescribed by the Secretary of the Military Department
concerned.
(11) Hearings. Hearings (including hearing examinations) that are
conducted shall recognize the rights of the individual to privacy.
Accordingly, presence at hearings of individuals other than those
required shall be limited to persons authorized by the Secretary
concerned or expressly requested by the applicant, subject to reasonable
limitations based upon available space. If, in the opinion of the
presiding officer, the presence of other individuals could be
prejudicial to the interests of the applicant or the government,
hearings may be held in closed session.
(12) Evidence and testimony. (i) The DRB may consider any evidence
obtained in accordance with this part.
(ii) Formal rules of evidence shall not be applied in DRB
proceedings. The presiding officer shall rule on matters of procedure
and shall ensure that reasonable bounds of relevancy and materiality are
maintained in the taking of evidence and presentation of witnesses.
(iii) Applicants undergoing hearings shall be permitted to make sworn
or unsworn statements, if they so desire, or to introduce witnesses,
documents, or other information on their behalf, at no expense to the
Department of Defense.
(iv) Applicants may also make oral or written arguments personally or
through counsel or representatives.
(v) Applicants who present sworn or unsworn statements and witnesses
may be questioned by the DRB. All testimony shall be taken under oath
or affirmation unless the applicant specifically requests to make an
unsworn statement.
(vi) There is a presumption of regularity in the conduct of
governmental affairs. This presumption can be applied in any review
unless there is substantial credible evidence to rebut the presumption.
(c) Decision process. (1) The DRB or the DRB panel, as appropriate,
shall meet in plenary session to review discharges and exercise its
discretion on a case-by-case basis in applying the standards set forth
in 70.9.
(2) The presiding officer is responsible for the conduct of the
discharge review. The presiding officer shall convene, recess, and
adjourn the DRB panel as appropriate and shall maintain an atmosphere of
dignity and decorum at all times.
(3) Each DRB member shall act under oath or affirmation requiring
careful, objective consideration of the application. DRB members are
responsible for eliciting all facts necessary for a full and fair
hearing. They shall consider all information presented to them by the
applicant. In addition, they shall consider available Military Service
and health records, together with other records that may be in the files
of the Military Department concerned and relevant to the issues before
the DRB, and any other evidence obtained in accordance with this part.
(4) The DRB shall identify and address issues after a review of the
following material obtained and presented in accordance with this part
and the implementing instructions of the DRB: Available official
records, documentary evidence submitted by or on behalf of an applicant,
presentation of a hearing examination, testimony by or on behalf of an
applicant, oral or written arguments presented by or on behalf of an
applicant, and any other relevant evidence.
(5) If an applicant who has requested a hearing does not respond to a
notification letter or does not appear for a scheduled hearing, the DRB
may complete the review on the basis of material previously submitted.
(6) Application of standards. (i) When a DRB determines that an
applicant's discharge was improper ( 70.9(b)), the DRB will determine
which reason for discharge should have been assigned based upon the
facts and circumstances before the discharge authority, including the
Service regulations governing reasons for discharge at the time the
applicant was discharged. Unless it is also determined that the
discharge was inequitable ( 70.9(c)), the provisions as to
characterization in the regulation under which the applicant should have
been discharged will be considered in determining whether further relief
is warranted.
(ii) When the DRB determines that an applicant's discharge was
inequitable (see 70.9(c)), any change will be based on the evaluation
of the applicant's overall record of service and relevant regulations of
the Military Service of which the applicant was a member.
(7) Voting shall be conducted in closed session, a majority of the
five members' votes constituting the DRB decision. Voting procedures
shall be prescribed by the Secretary of the Military Department
concerned.
(8) Details of closed session deliberations of a DRB are privileged
information and shall not be divulged.
(9) There is no requirement for a statement of minority views in the
event of a split vote. The minority, however, may submit a brief
statement of its views under procedures established by the Secretary
concerned.
(10) DRBs may request advisory opinions from staff officers of their
Military Departments. These opinions are advisory in nature and are not
binding on the DRB in its decision-making process.
(11) The preliminary determinations required by 38 U.S.C. 3103(e)
shall be made upon majority vote of the DRB concerned on an expedited
basis. Such determination shall be based upon the standards set forth
in 70.9 of this part.
(12) The DRB shall: (i) Address items submitted as issues by the
applicant under paragraph (d) of this section;
(ii) Address decisional issues under paragraph (e) of this section;
and
(iii) Prepare a decisional document in accordance with paragraph (h)
of this section.
(d) Response to items submitted as issues by the applicant -- (1)
General guidance. (i) If an issue submitted by an applicant contains
two or more clearly separate issues, the DRB should respond to each
issue under the guidance of this paragraph as if it had been set forth
separately by the applicant.
(ii) If an applicant uses a ''building block'' approach (that is,
setting forth a series of conclusions on issues that lead to a single
conclusion purportedly warranting a change in the applicant's
discharge), normally there should be a separate response to each issue.
(iii) Nothing in this paragraph precludes the DRB from making a
single response to multiple issues when such action would enhance the
clarity of the decisional document, but such response must reflect an
adequate response to each separate issue.
(2) Decisional issues. An item submitted as an issue by an applicant
in accordance with this part shall be addressed as a decisional issue
under paragraph (e), in the following circumstances:
(i) When the DRB decides that a change in discharge should be
granted, and the DRB bases its decision in whole or in part on the
applicant's issue; or
(ii) When the DRB does not provide the applicant with the full change
in discharge requested, and the decision is based in whole or in part on
the DRB's disagreement on the merits with an issue submitted by the
applicant.
(3) Response to items not addressed as decisional issues. (i) If the
applicant receives the full change in discharge requested (or a more
favorable change), that fact shall be noted and the basis shall be
addressed as a decisional issue. No further response is required to
other issues submitted by the applicant.
(ii) If the applicant does not receive the full change in discharge
requested with respect to either the character of or reason for
discharge (or both), the DRB shall address the items submitted by the
applicant under paragraph (e) of this section (decisional issues) unless
one of the following responses is applicable:
(A) Duplicate issues. The DRB may state that there is a full
response to the issue submitted by the applicant under a specified
decisional issue. This response may be used only when one issue clearly
duplicates another or the issue clearly requires discussion in
conjunction with another issue.
(B) Citations without principles and facts. The DRB may state that
the applicant's issue, which consists of a citation to a decision
without setting forth any principles and facts from the decision that
the applicant states are relevant to the applicant's case, does not
comply with the requirements of paragraph (a)(4)(iv)(A).
(C) Unclear issues. The DRB may state that it cannot respond to an
item submitted by the applicant as an issue because the meaning of the
item is unclear. An issue is unclear if it cannot be understood by a
reasonable person familiar with the discharge review process after a
review of the materials considered under paragraph (c)(4) of this
section.
(D) Nonspecific issues. The DRB may state that it cannot respond to
an item submitted by the applicant as an issue because it is not
specific. A submission is considered not specific if a reasonable
person familiar with the discharge review process after a review of the
materials considered under paragraph (c)(4) of this section, cannot
determine the relationship between the applicant's submission and the
particular circumstances of the case. This response may be used only if
the submission is expressed in such general terms that no other response
is applicable. For example, if the DRB disagrees with the applicant as
to the relevance of matters set forth in the submission, the DRB
normally will set forth the nature of the disagreement under the
guidance in paragraph (e) of this section, with respect to decisional
issues, or it will reject the applicant's position on the basis of
paragraphs (d)(3)(ii)(A) or (d)(3)(ii)(B) of this section. If the
applicant's submission is so general that none of those provisions is
applicable, then the DRB may state that it cannot respond because the
item is not specific.
(e) Decisional issues. (1) General. Under the guidance in this
section, the decisional document shall discuss the issues that provide a
basis for the decision whether there should be a change in the character
of or reason for discharge. In order to enhance clarity, the DRB should
not address matters other than issues relied upon in the decision or
raised by the applicant.
(i) Partial change. When the decision changes a discharge, but does
not provide the applicant with the full change in discharge requested,
the decisional document shall address both the issues upon which change
is granted and the issues upon which the DRB denies the full change
requested.
(ii) Relationship of issue to character of or reason for discharge.
Generally, the decisional document should specify whether a decisional
issue applies to the character of or reason for discharge (or both), but
it is not required to do so.
(iii) Relationship of an issue to propriety or equity. (A) If an
applicant identifies an issue as pertaining to both propriety and
equity, the DRB will consider it under both standards.
(B) If an applicant identifies an issue as pertaining to the
propriety of the discharge (for example, by citing a propriety standard
or otherwise claiming that a change in discharge is required as a matter
of law), the DRB shall consider the issue solely as a matter of
propriety. Except as provided in paragraph (e)(1)(iii)(D) of this
section, the DRB is not required to consider such an issue under the
equity standards.
(C) If the applicant's issue contends that the DRB is required as a
matter of law to follow a prior decision by setting forth an issue of
propriety from the prior decision and describing its relationship to the
applicant's case, the issue shall be considered under the propriety
standards and addressed under paragraph (e)(2) or (e)(3) of this
section.
(D) If the applicant's issue sets forth principles of equity
contained in a prior DRB decision, describes the relationship to the
applicant's case, and contends that the DRB is required as a matter of
law to follow the prior case, the decisional document shall note that
the DRB is not bound by its discretionary decisions in prior cases under
the standards in 70.9. However, the principles cited by the applicant,
and the description of the relationship of the principles to the
applicant's case, shall be considered under the equity standards and
addressed under paragraph (e)(5) or (e)(6) of this section.
(E) If the applicant's issue cannot be identified as a matter of
propriety or equity, the DRB shall address it as an issue of equity.
(2) Change of discharge: issues of propriety. If a change in the
discharge is warranted under the propriety standards in 70.9 the
decisional document shall state that conclusion and list the errors of
expressly retroactive changes in policy that provide a basis for the
conclusion. The decisional document shall cite the facts in the record
that demonstrate the relevance of the error or change in policy to the
applicant's case. If the change in discharge does not constitute the
full change requested by the applicant, the reasons for not granting the
full change shall be addressed under the guidance in paragraph (e)((3)
or (e)(6) of this section.
(3) Denial of the full change requested: issues of propriety. (i)
If the decision rejects the applicant's position on an issue of
propriety, or if it is otherwise decided on the basis of an issue of
propriety that the full change in discharge requested by the applicant
is not warranted, the decisional document shall note that conclusion.
(ii) The decisional document shall list reasons for its conclusion on
each issue of propriety under the following guidance:
(A) If a reason is based in whole or in part upon a regulation,
statute, constitutional provision, judicial determination, or other
source of law, the DRB shall cite the pertinent source of law and the
facts in the record that demonstrate the relevance of the source of law
to the particular circumstances in the case.
(B) If a reason is based in whole or in part on a determination as to
the occurrence or nonoccurrence of an event or circumstance, including a
factor required by applicable Service regulations to be considered for
determination of the character of and reason for the applicant's
discharge, the DRB shall make a finding of fact for each such event or
circumstance.
(1) For each such finding, the decisional document shall list the
specific source of the information relied upon. This may include the
presumption of regularity in appropriate cases. If the information is
listed in the service record section of the decisional document, a
citation is not required.
(2) If a finding of fact is made after consideration of contradictory
evidence in the record (including information cited by the applicant or
otherwise identified by members of the DRB), the decisional document
shall set forth the conflicting evidence and explain why the information
relied upon was more persuasive than the information that was rejected.
If the presumption of regularity is cited as the basis for rejecting
such information, the decisional document shall set forth the basis for
relying on the presumption of regularity and explain why the
contradictory evidence was insufficient to overcome the presumption. In
an appropriate case, the explanation as to why the contradictory
evidence was insufficient to overcome the presumption of regularity may
consist of a statement that the applicant failed to provide sufficient
corroborating evidence, or that the DRB did not find the applicant's
testimony to be sufficiently credible to overcome the presumption.
(C) If the DRB disagrees with the position of the applicant on an
issue of propriety, the following guidance applies in addition to the
guidance in paragraphs (e)(3)(ii) (A) and (B) of this section:
(1) The DRB may reject the applicant's position by explaining why it
disagrees with the principles set forth in the applicant's issue
(including principles derived from cases cited by the applicant in
accordance with paragraph (e)(4)(iv) of this section).
(2) The DRB may reject the applicant's position by explaining why the
principles set forth in the applicant's issue (including principles
derived from cases cited by the applicant in accordance with paragraph
(a)(4)(iv) of this section) are not relevant to the applicant's case.
(3) The DRB may reject an applicant's position by stating that the
applicant's issue of propriety is not a matter upon which the DRB grants
a change in discharge, and by providing an explanation for this
position. When the applicant indicates that the issue is to be
considered in conjunction with one or more other specified issues, the
explanation will address all such specified issues.
(4) The DRB may reject the applicant's position on the grounds that
other specified factors in the case preclude granting relief, regardless
of whether the DRB agreed with the applicant's position.
(5) If the applicant takes the position that the discharge must be
changed because of an alleged error in a record associated with the
discharge, and the record has not been corrected by the organization
with primary responsibility for corrective action, the DRB may respond
that it will presume the validity of the record in the absence of such
corrective action. If the organization empowered to correct the record
is within the Department of Defense, the DRB should provide the
applicant with a brief description of the procedures for requesting
correction of the record. If the DRB on its own motion cites this issue
as a decisional issue on the basis of equity, it shall address the issue
under paragraph (d)(5) or (d)(6) of this section.
(6) When an applicant's issue contains a general allegation that a
certain course of action violated his or her constitutional rights, the
DRB may respond in appropriate cases by noting that the action was
consistent with statutory or regulatory authority, and by citing the
presumption of constitutionality that attaches to statutes and
regulations. If, on the other hand, the applicant makes a specific
challenge to the constitutionality of the action by challenging the
application of a statute or regulation in a particular set of
circumstances, it is not sufficient to respond solely by citing the
presumption of constitutionality of the statute or regulation when the
applicant is not challenging the constitutionality of the statute or
regulation. Instead, the response must address the specific
circumstances of the case.
(4) Denial of the full change in discharge requested when propriety
is not at issue. If the applicant has not submitted an issue of
propriety and the DRB has not otherwise relied upon an issue of
propriety to change the discharge, the decisional document shall contain
a statement to that effect. The DRB is not required to provide any
further discussion as to the propriety of the discharge.
(5) Change of discharge: issues of equity. If the DRB concludes
that a change in the discharge is warranted under the equity standards
in 70.9 the decisional document shall list each issue of equity upon
which this conclusion is based. The DRB shall cite the facts in the
record that demonstrate the relevance of the issue to the applicant's
case. If the change in discharge does not constitute the full change
requested by the applicant, the reasons for not giving the full change
requested shall be discussed under the guidance in paragraph (e)(6) of
this section.
(6) Denial of the full change in discharge requested: issues of
equity. (i) If the DRB rejects the applicant's position on an issue of
equity, or if the decision otherwise provides less than the full change
in discharge requested by the applicant, the decisional document shall
note that conclusion.
(ii) The DRB shall list reasons for its conclusion on each issue of
equity under the following guidance:
(A) If a reason is based in whole or in part upon a regulation,
statute, constitutional provision, judicial determination, or other
source of law, the DRB shall cite the pertinent source of law and the
facts in the record that demonstrate the relevance of the source of law
to the exercise of discretion on the issue of equity in the applicant's
case.
(B) If a reason is based in whole or in part on a determination as to
the occurrence or nonoccurrence of an event or circumstance, including a
factor required by applicable Service regulations to be considered for
determination of the character of and reason for the applicant's
discharge, the DRB shall make a finding of fact for each such event or
circumstance.
(1) For each such finding, the decisional document shall list the
specific source of the information relied upon. This may include the
presumption of regularity in appropriate cases. If the information is
listed in the service record section of the decisional document, a
citation is not required.
(2) If a finding of fact is made after consideration of contradictory
evidence in the record (including information cited by the applicant or
otherwise identified by members of the DRB), the decisional document
shall set forth the conflicting evidence and explain why the information
relied upon was more persuasive than the information that was rejected.
If the presumption of regularity is cited as the basis for rejecting
such information, the decisional document shall set forth the basis for
relying on the presumption of regularity and explain why the
contradictory evidence was insufficient to overcome the presumption. In
an appropriate case, the explanation as to why the contradictory
evidence was insufficient to overcome the presumption of regularity may
consist of a statement that the applicant failed to provide sufficient
corroborating evidence, or that the DRB did not find the applicant's
testimony to be sufficiently credible to overcome the presumption.
(C) If the DRB disagrees with the position of the applicant on an
issue of equity, the following guidance applies in addition to the
guidance in paragraphs (e)(6)(ii) (A) and (B) of this section:
(1) The DRB may reject the applicant's position by explaining why it
disagrees with the principles set forth in the applicant's issue
(including principles derived from cases cited by the applicant in
accordance with paragraph (a)(4)(iv) of this section).
(2) The DRB may reject the applicant's position by explaining why the
principles set forth in the applicant's issue (including principles
derived from cases cited by the applicant) are not relevant to the
applicant's case.
(3) The DRB may reject an applicant's position by explaining why the
applicant's issue is not a matter upon which the DRB grants a change in
discharge as a matter of equity. When the applicant indicates that the
issue is to be considered in conjunction with other specified issues,
the explanation will address all such specified issues.
(4) The DRB may reject the applicant's position on the grounds that
other specified factors in the case preclude granting relief, regardless
of whether the DRB agreed with the applicant's position.
(5) If the applicant takes the position that the discharge should be
changed as a matter of equity because of an alleged error in a record
associated with the discharge, and the record has not been corrected by
the organization with primary responsibility for corrective action, the
DRB may respond that it will presume the validity of the record in the
absence of such corrective action. However, the DRB will consider
whether it should exercise its equitable powers to change the discharge
on the basis of the alleged error. If it declines to do so, it shall
explain why the applicant's position did not provide a sufficient basis
for the change in the discharge requested by the applicant.
(D) When the DRB concludes that aggravating factors outweigh
mitigating factors, the DRB must set forth reasons such as the
seriousness of the offense, specific circumstances surrounding the
offense, number of offenses, lack of mitigating circumstances, or
similar factors. The DRB is not required, however, to explain why it
relied on any such factors unless the applicability or weight of such a
factor is expressly raised as an issue by the applicant.
(E) If the applicant has not submitted any issues and the DRB has not
otherwise relied upon an issue of equity for a change in discharge, the
decisional document shall contain a statement to that effect, and shall
note that the major factors upon which the discharge was based are set
forth in the service record portion of the decisional document.
(f) The recommendation of the DRB President -- (1) General. The
president of the DRB may forward cases for consideration by the
Secretarial Reviewing Authority (SRA) under rules established by the
Secretary concerned. There is no requirement that the President submit
a recommendation when a case is forwarded to the SRA. If the president
makes a recommendation with respect to the character of or reason for
discharge, however, the recommendation shall be prepared under the
guidance in paragraph (f)(2) of this section.
(2) Format for recommendation. If a recommendation is provided, it
shall contain the president's views whether there should be a change in
the character of or reason for discharge (or both). If the president
recommends such a change, the particular change to be made shall be
specified. The recommendation shall set forth the president's position
on decisional issues and issues submitted by the applicant under the
following guidance:
(i) Adoption of the DRB's decisional document. The recommendation
may state that the president has adopted the decisional document
prepared by the majority. The president shall ensure that the
decisional document meets the requirements of this section.
(ii) Adoption of the specific statements from the majority. If the
President adopts the views of the majority only in part, the
recommendation shall cite the specific matter adopted from the majority.
If the president modifies a statement submitted by the majority, the
recommendation shall set forth the modification.
(iii) Response to issues not included in matter adopted from the
majority. The recommendation shall set forth the following if not
adopted in whole or in part from the majority:
(A) The issues on which the president's recommendation is based.
Each such decisional issue shall be addressed by the president under
paragraph (e) of this section,
(B) The president's response to items submitted as issues by the
applicant under paragraph (d) of this section.
(C) Reasons for rejecting the conclusions of the majority with
respect to decisional issues which, if resolved in the applicant's
favor, would have resulted in greater relief for the applicant than that
afforded by the president's recommendation. Suh issues shall be
addressed under the principles in paragraph (e) of this section.
(g) Secretarial reviewing authority (SRA) -- (1) Review by the SRA.
The Secretarial Reviewing Authority (SRA) is the Secretary concerned or
the official to whom Secretary's discharge review authority has been
delegated.
(i) The SRA may review the following types of cases before issuance
of the final notification of a decision:
(A) Any specific case in which the SRA has an interest.
(B) Any specific case that the president of the DRB believes is of
significant interest to the SRA.
(ii) Cases reviewed by the SRA shall be considered under the
standards set forth in 70.9.
(2) Processing the decisional document. (i) The decisional document
shall be transmitted by the DRB president under paragraph (e) of this
section.
(ii) The following guidance applies to cases that have been forwarded
to the SRA except for cases reviewed on the DRB's own motion without the
participation of the applicant or the applicant's counsel:
(A) The applicant and counsel or representative, if any, shall be
provided with a copy of the proposed decisional document, including the
DRB president's recommendation to the SRA, if any. Classified
information shall be summarized.
(B) The applicant shall be provided with a reasonable period of time,
but not less than 25 days, to submit to the SRA a rebuttal. An issue in
rebuttal consists of a clear and specific statement by the applicant in
support of or in opposition to the statements of the DRB or DRB
president on decisional issues and other clear and specific issues that
were submitted by the applicant in accordance with paragraph (a)(4)(i)
of this section. The rebuttal shall be based solely on matters in the
record before when the DRB closed the case for deliberation or in the
president's recommendation.
(3) Review of the decisional document. If corrections in the
decisional document are required, the decisional document shall be
returned to the DRB for corrective action. The corrected decisional
document shall be sent to the applicant (and counsel, if any), but a
further opportunity for rebuttal is not required unless the correction
produces a different result or includes a substantial change in the
discussion by the DRB (or DRB president) of the issues raised by the
majority or the applicant.
(4) The Addendum of the SRA. The decision of the SRA shall be in
writing and shall be appended as an addendum to the decisional document
under the guidance in this subsection.
(i) The SRA's decision. The addendum shall set forth the SRA's
decision whether there will be a change in the character of or reason
for discharge (or both); if the SRA concludes that a change is
warranted, the particular change to be made shall be specified. If the
SRA adopts the decision recommended by the DRB or the DRB president, the
decisional document shall contain a reference to the matter adopted.
(ii) Discussion of issues. In support of the SRA's decision, the
addendum shall set forth the SRA's position on decisional issues, items
submitted as issues by an applicant in accordance with paragraph
(a)(4)(i) of this section, and issues raised by the DRB and the DRB
president in accordance with the following guidance:
(A) Adoption of the DRB president's recommendation. The addendum may
state that the SRA has adopted the DRB president's recommendation.
(B) Adoption of the DRB's proposed decisional document. The addendum
may state that the SRA has adopted the proposed decisional document
prepared by the DRB.
(C) Adoption of specific statements from the majority or the DRB
president. If the SRA adopts the views of the DRB or the DRB president
only in part, the addendum shall cite the specific statements adopted.
If the SRA modifies a statement submitted by the DRB or the DRB
president, the addendum shall set forth the modification.
(D) Response to issues not included in matter adopted from the DRB or
the DRB president. The addendum shall set forth the following if not
adopted in whole or in part from the DRB or the DRB president:
(1) A list of the issues on which the SRA's decision is based. Each
such decisional issue shall be addressed by the SRA under paragraph (e)
of this section. This includes reasons for rejecting the conclusion of
the DRB or the DRB president with respect to decisional issues which, if
resolved in the applicant's favor, would have resulted in change to the
discharge more favorable to the applicant than that afforded by the
SRA's decision. Such issues shall be addressed under the principles in
paragraph (e) of this section.
(2) The SRA's response to items submitted as issues by the applicant
under paragraph (d) of this section.
(iii) Response to the rebuttal. (A) If the SRA grants the full
change in discharge requested by the applicant (or a more favorable
change), that fact shall be noted, the decisional issues shall be
addressed under paragraph (e) of this section, and no further response
to the rebuttal is required.
(B) If the SRA does not grant the full change in discharge requested
by the applicant (or a more favorable change), the addendum shall list
each issue in rebuttal submitted by an applicant in accordance with this
section, and shall set forth the response of the SRA under the following
guidance:
(1) If the SRA rejects an issue in rebuttal, the SRA may respond in
accordance with the principles in paragraph (e) of this section.
(2) If the matter adopted by the SRA provides a basis for the SRA's
rejection of the rebuttal material, the SRA may note that fact and cite
the specific matter adopted that responds to the issue in rebuttal.
(3) If the matter submitted by the applicant does not meet the
requirements for rebuttal material in paragraph (b)(2)(ii)(B) of this
section.
(iv) Index entries. Appropriate index entries shall be prepared for
the SRA's actions for matters that are not adopted from the DRB's
proposed decisional document.
(h) The decisional document. A decisional document shall be prepared
for each review. At a minimum, this document shall contain:
(1) The circumstances and character of the applicant's service as
extracted from available service records, including health records, and
information provided by other Government authorities or the applicant,
such as, but not limited to:
(i) Information concerning the discharge at issue in the review,
including:
(A) Date (YYMMDD) of discharge.
(B) Character of discharge.
(C) Reason for discharge.
(D) The specific regulatory authority under which the discharge was
issued.
(ii) Date (YYMMDD) of enlistment.
(iii) Period of enlistment.
(iv) Age at enlistment.
(v) Length of service.
(vi) Periods of unauthorized absence.
(vii) Conduct and efficiency ratings (numerical or narrative).
(viii) Highest rank received.
(ix) Awards and decorations.
(x) Educational level.
(xi) Aptitude test scores.
(xii) Incidents of punishment pursuant to Article 15, Uniform Code of
Military Justice (including nature and date (YYMMDD) of offense or
punishment).
(xiii) Convictions by court-martial.
(xiv) Prior military service and type of discharge received.
(2) A list of the type of documents submitted by or on behalf of the
applicant (including a written brief, letters of recommendation,
affidavits concerning the circumstances of the discharge, or other
documentary evidence), if any.
(3) A statement whether the applicant testified, and a list of the
type of witnesses, if any, who testified on behalf of the applicant.
(4) A notation whether the application pertained to the character of
discharge, the reason for discharge, or both.
(5) The DRB's conclusions on the following:
(i) Whether the character of or reason for discharge should be
changed.
(ii) The specific changes to be made, if any.
(6) A list of the items submitted as issues on DD Form 293 or
expressly incorporated therein and such other items submitted as issues
by the applicant that are identified as inadvertently omitted under
paragraph (a)(4)(i)(D) of this section. If the issues are listed
verbatim on DD Form 293, a copy of the relevant portion of the Form may
be attached. Issues that have been withdrawn or modified with the
consent of the applicant need not be listed.
(7) The response to the items submitted as issues by the applicant
under the guidance in paragraph (d) of this section.
(8) A list of decisional issues and a discussion of such issues under
the guidance in paragraph (e) of this section.
(9) Minority views, if any, when authorized under rules of the
Military Department concerned.
(10) The recommendation of the DRB president when required by
paragraph (f) of this section.
(11) The addendum of the SRA when required by paragraph (g) of this
section.
(12) Advisory opinions, including those containing factual
information, when such opinions have been relied upon for final decision
or have been accepted as a basis for rejecting any of the applicant's
issues. Such advisory opinions or relevant portions thereof that are
not fully set forth in the discussion of decisional issues or otherwise
in response to items submitted as issues by the application shall be
incorporated by reference. A copy of opinions incorporated by reference
shall be appended to the decision and included in the record of
proceedings.
(13) A record of the voting, including:
(i) The number of votes for the DRB's decision and the number of
votes in the minority, if any.
(ii) The DRB member's names (last name, first name, M.I.) and votes.
The copy provided to the applicant may substitute a statement that the
names and votes will be made available to the applicant at the
applicant's request.
(14) Index entries for each decisional issue under appropriate
categories listed in the index of decisions.
(15) An authentication of the document by an appropriate official.
(i) Issuance of decisions following discharge review. The applicant
and counsel or representative, if any, shall be provided with a copy of
the decisional document and of any further action in review. The
applicant (and counsel, if any) shall be notified of the availability of
the complaint process under 70.10. Final notification of decisions
shall be issued to the applicant with a copy to the counsel or
representative, if any, and to the Military Service concerned.
(1) Notification to applicants, with copies to counsel or
representatives, shall normally be made through the U.S. Postal Service.
Such notification shall consist of a notification of decision, together
with a copy of the decisional document.
(2) Notification to the Military Services shall be for the purpose of
appropriate action and inclusion of review matter in personnel records.
Such notification shall bear appropriate certification of completeness
and accuracy.
(3) Actions on review by superior authority, when occurring, shall be
provided to the applicant and counsel or representative in the same
manner as the notification of the review decision.
(j) Record of DRB proceedings. (1) When the proceedings in any
review have been concluded, a record thereof will be prepared. Records
may include written records, electromagnetic records, videotape
recordings, or a combination thereof.
(2) At a minimum, the record will include the following:
(i) The application for review;
(ii) A record of the testimony in verbatim, summarized, or recorded
form at the option of the DRB concerned;
(iii) Documentary evidence or copies thereof, considered by the DRB
other than the Military Service record;
(iv) Briefs and arguments submitted by or on behalf of the applicant;
(v) Advisory opinions considered by the DRB, if any;
(vi) The findings, conclusions, and reasons developed by the DRB;
(vii) Notification of the DRB's decision to the cognizant custodian
of the applicant's records, or reference to the notification document;
(viii) Minority reports, if any;
(ix) A copy of the decisional document.
(k) Final disposition of the Record of Proceedings. The original
record of proceedings and all appendices thereto shall in all cases be
incorporated in the Military Service record of the applicant and the
Military Service record shall be returned to the custody of the
appropriate records holding facility. If a portion of the original
record of the proceedings cannot be stored with the Military Service
record, the Military Service record shall contain a notation as to the
place where the record is stored. Other copies shall be filed and
disposed of in accordance with appropriate Military Service regulations.
(l) Availability of Discharge Review Board documents for inspection
and copying. (1) A copy of the decisional document prepared in
accordance with paragraph (d) of this section shall be made available
for public inspection and copying promptly after a notice of final
decision is sent to the applicant.
(2) To prevent a clearly unwarranted invasion of personal privacy,
identifying details of the applicant and other persons will be deleted
from documents made available for public inspection and copying.
(i) Names, addresses, social security numbers, and Military Service
numbers must be deleted. Written justification shall be made for all
other deletions and shall be available for public inspection.
(ii) Each DRB shall ensure that there is a means for relating a
decisional document number to the name of the applicant to permit
retrieval of the applicant's records when required in processing a
complaint under 70.10.
(3) Any other privileged or classified material contained in or
appended to any documents required by this Part to be furnished the
applicant and counsel or representative or made available for public
inspection and copying may be deleted therefrom only if a written
statement of the basis for the deletions is provided the applicant and
counsel or representative and made available for public inspection. It
is not intended that the statement be so detailed as to reveal the
nature of the withheld material.
(4) DRB documents made available for public inspection and copying
shall be located in the Armed Forces Discharge Review/Correction Board
Reading Room. The documents shall be indexed in a usable and concise
form so as to enable the public, and those who represent applicants
before the DRBs, to isolate from all these decisions that are indexed,
those cases that may be similar to an applicant's case and that indicate
the circumstances under or reasons for (or both) which the DRB or the
Secretary concerned granted or denied relief.
(i) The reading file index shall include, in addition to any other
items determined by the DRB, the case number, the date, character of,
reason and authority for the discharge. It shall also include the
decisions of the DRB and reviewing authority, if any, and the issues
addressed in the statement of findings, conclusions, and reasons.
(ii) The index shall be maintained at selected permanent locations
throughout the United States. This ensures reasonable availability to
applicants at least 30 days before a traveling panel review. A list of
these locations shall be published in the Federal Register by the
Department of the Army. The index shall also be made available at sites
selected for traveling panels or hearing examinations for such periods
as the DRB or a hearing examiner is present and in operation. An
applicant who has requested a traveling panel review or a hearing
examination shall be advised in the notice of such review of the
permanent index locations.
(iii) The Armed Forces Discharge Review/Correction Board Reading Room
shall publish indexes quarterly for all DRBs. All DRBs shall be
responsible for timely submission to the Reading Room of individual case
information required for update of the indexes. In addition, all DRBs
shall be responsible for submission of new index categories based upon
published changes in policy, procedures, or standards. These indexes
shall be available for public inspection or purchase (or both) at the
Reading Room. When the DRB has accepted an application, information
concerning the availability of the index shall be provided in the DRB's
response to the application.
(iv) Copies of decisional documents will be provided to individuals
or organizations outside the NCR in response to written requests for
such documents. Although the Reading Room shall try to make timely
responses to such requests, certain factors such as the length of a
request, the volume of other pending requests, and the impact of other
responsibilities of the staff assigned to such duties may cause some
delays. A fee may be charged for such documents under appropriate DoD
and Department of the Army directives and regulations. The manual that
accompanies the index of decisions shall notify the public that if an
applicant indicates that a review is scheduled for a specific date, an
effort will be made to provide requested decisional documents before
that date. The individual or organization will be advised if that
cannot be accomplished.
(v) Correspondence relating to matters under the cognizance of the
Reading Room (including requests for purchase of indexes) shall be
addressed to: DA Military Review Boards Agency, Attention: SFBA
(Reading Room), Room 1E520, The Pentagon, Washington, DC 20310.
(m) Privacy Act information. Information protected under the Privacy
Act is involved in the discharge review functions. The provisions of
Part 286a of this title shall be observed throughout the processing of a
request for review of discharge or dismissal.
(n) Information requirement. Each Military Department shall provide
the Deputy Assistant Secretary of Defense (Military Personnel and Force
Management) DASD (MP&FM), Office of the ASD (MRA&L), with a semiannual
report of discharge review actions in accordance with 70.11.
(47 FR 37785, Aug. 26, 1982, as amended at 48 FR 9855, Mar. 9, 1983;
48 FR 35644, Aug. 5, 1983)
32 CFR 70.9 Discharge review standards.
(a) Objective of review. The objective of a discharge review is to
examine the propriety and equity of the applicant's discharge and to
effect changes, if necessary. The standards of review and the
underlying factors that aid in determining whether the standards are met
shall be historically consistent with criteria for determining honorable
service. No factors shall be established that require automatic change
or denial of a change in discharge. Neither a DRB nor the Secretary of
the Military Department concerned shall be bound by any methodology of
weighting of the factors in reaching a determination. In each case, the
DRB or the Secretary of the Military Department concerned shall give
full, fair, and impartial considerations to all applicable factors
before reaching a decision. An applicant may not rceive a less
favorable discharge than that issued at the time of separation. This
does not preclude correction of clerical errors.
(b) Propriety. (1) A discharge shall be deemed proper unless, in the
course of discharge review, it is determined that:
(i) There exists an error of fact, law, procedure, or discretion
associated with the discharge at the time of issuance; and that the
rights of the applicant were prejudiced thereby (such error shall
constitute prejudicial error if there is substantial doubt that the
discharge would have remained the same if the error had not been made);
or
(ii) A change in policy by the Military Service of which the
applicant was a member, made expressly retroactive to the type of
discharge under consideration, requires a change in the discharge.
(2) When a record associated with the discharge at the time of
issuance involves a matter in which the primary responsibility for
corrective action rests with another organization (for example, another
Board, agency, or court), the DRB will recognize an error only to the
extent that the error has been corrected by the organization with
primary responsibility for correcting the record.
(3) The primary function of the DRB is to exercise its discretion on
issues of equity by reviewing the individual merits of each application
on a case-by-case basis. Prior decisions in which the DRB exercised its
discretion to change a discharge based on issues of equity (including
the factors cited in such decisions or the weight given to factors in
such decisions) do not bind the DRB in its review of subsequent cases
because no two cases present the same issues of equity.
(4) The following applies to applicants who received less than fully
Honorable administrative discharges because of their civilian misconduct
while in an inactive reserve component and who were discharged or had
their discharge reviewed on or after April 20, 1971: the DRB shall
either recharacterize the discharge to Honorable without any additional
proceedings or additional proceedings shall be conducted in accordance
with the Court's Order of December 3, 1981, in Wood v. Secretary of
Defense to determine whether proper grounds exist for the issuance of a
less than Honorable discharge, taking into account that;
(i) An Other than Honorable (formerly undesirable) Discharge for an
inactive reservist can only be based upon civilian misconduct found to
have affected directly the performance of military duties;
(ii) A General Discharge for an inactive reservist can only be based
upon civilian misconduct found to have had an adverse impact on the
overall effectiveness of the military, including military morale and
efficiency.
(c) Equity. A discharge shall be deemed to be equitable unless:
(1) In the course of a discharge review, it is determined that the
policies and procedures under which the applicant was discharged differ
in material respects from policies and procedures currently applicable
on a Service-wide basis to discharges of the type under consideration
provided that:
(i) Current policies or procedures represent a substantial
enhancement of the rights afforded a respondent in such proceedings;
and
(ii) There is substantial doubt that the applicant would have
received the same discharge if relevant current policies and procedures
had been available to the applicant at the time of the discharge
proceedings under consideration.
(2) At the time of issuance, the discharge was inconsistent with
standards of discipline in the Military Service of which the applicant
was a member.
(3) In the course of a discharge review, it is determined that relief
is warranted based upon consideration of the applicant's service record
and other evidence presented to the DRB viewed in conjunction with the
factors listed in this section and the regulations under which the
applicant was discharged, even though the discharge was determined to
have been otherwise equitable and proper at the time of issuance. Areas
of consideration include, but are not limited to:
(i) Quality of service, as evidenced by factors such as:
(A) Service history, including date of enlistment, period of
enlistment, highest rank achieved, conduct or efficiency ratings
(numerical or narrative);
(B) Awards and decorations;
(C) Letters of commendation or reprimand;
(D) Combat service;
(E) Wounds received in action;
(F) Records of promotions and demotions;
(G) Level of responsibility at which the applicant served;
(H) Other acts of merit that may not have resulted in a formal
recognition through an award or commendation;
(I) Length of service during the service period which is the subject
of the discharge review;
(J) Prior military service and type of discharge received or
outstanding postservice conduct to the extent that such matters provide
a basis for a more thorough understanding of the performance of the
applicant during the period of service which is the subject of the
discharge review;
(K) Convictions by court-martial;
(L) Records of nonjudicial punishment;
(M) Convictions by civil authorities while a member of the Service,
reflected in the discharge proceedings or otherwise noted in military
service records;
(N) Records of periods of unauthorized absence;
(O) Records relating to a discharge instead of court-martial.
(ii) Capability to serve, as evidenced by factors such as:
(A) Total capabilities. This includes an evaluation of matters, such
as age, educational level, and aptitude scores. Consideration may also
be given whether the individual met normal military standards of
acceptability for military service and similar indicators of an
individual's ability to serve satisfactorily, as well as ability to
adjust to military service.
(B) Family and Personal Problems. This includes matters in
extenuation or mitigation of the reason for discharge that may have
affected the applicant's ability to serve satisfactorily.
(C) Arbitrary or capricious action. This includes actions by
individuals in authority that constitute a clear abuse of such authority
and that, although not amounting to prejudicial error, may have
contributed to the decision to discharge or to the characterization of
service.
(D) Discrimination. This includes unauthorized acts as documented by
records or other evidence.
32 CFR 70.10 Complaints concerning decisional documents and index
entries.
(a) General. (1) The procedures in this section -- are established
for the sole purpose of ensuring that decisional documents and index
entries issued by the DRBs of the Military Departments comply with the
decisional document and index entry principles of this Part.
(2) This section may be modified or supplemented by the DASD(MP&FM).
(3) The following persons may submit complaints:
(i) A former member of the Armed Forces (or the former member's
counsel) with respect to the decisional document issued in the former
member's own case; and
(ii) A former member of the Armed Forces (or the former member's
counsel) who states that correction of the decisional document will
assist the former member in preparing for an administrative or judicial
proceeding in which the former member's own discharge will be at issue.
(4) The Department of Defense is committed to processing of
complaints within the priorities and processing goals set forth in
paragraph (d)(1)(iii) of this section. This commitment, however, is
conditioned upon reasonable use of the complaint process under the
following considerations. The DRBs were established for the benefit of
former members of the Armed Forces. The complaint process can aid such
persons most effectively if it is used by former members of the Armed
Forces when necessary to obtain correction of their own decisional
documents or to prepare for discharge reviews. If a substantial number
of complaints submitted by others interferes with the ability of the
DRBs to process applications for discharge review in a timely fashion,
the Department of Defense will adjust the processing goals to ensure
that the system operates to the primary advantage of applicants.
(5) The DASD(MP&FM) is the final authority with respect to action on
such correspondence.
(b) The Joint Service Review Activity (JSRA). A three member JSRA
consisting of one judge advocate from each Military Department shall
advise the DASD(MP&FM). The operations of the JSRA shall be coordinated
by a full-time administrative director, who shall serve as recorder
during meetings of the JSRA. The members and the administrative
director shall serve at the direction of the DASD(MP&FM).
(c) Classification and control of correspondence -- (1) Address of
the JSRA. Correspondence with the OSD concerning decisional documents
or index entries issued by the DRBs shall be addressed as follows:
Joint Service Review Activity, OASD(MRA&L) (MP&FM), Washington, DC
20301.
(2) Docketing. All such correspondence shall be controlled by the
administrative director through the use of a uniform docketing
procedure.
(3) Classification. Correspondence shall be reviewed by the
administrative director and categorized either as a complaint or an
inquiry in accordance with the following:
(i) Complaints. A complaint is any correspondence in which it is
alleged that a decisional document issued by a DRB or SRA contains a
specifically identified violation of the Stipulation of Dismissal,
Settlement Agreement, or related Orders in the Urban Law case or the
decisional document or index entry principles of this Directive. A
complainant who alleges error with respect to a decisional document
issued to another person is encouraged to set forth specifically the
grounds for determining that a reasonable person familiar with the
discharge review process cannot understand the basis for the decision.
See paragraph (d)(1)(i)(B) of this section.
(ii) Inquiries. An inquiry is any correspondence other than a
complaint.
(d) Review of complaints. (1) Guidance. The following guidance
applies to review of complaints:
(i) Standards. Complaints shall be considered under the following
standards:
(A) The applicant's case. A complaint by an applicant with respect
to the decisional document issued in the applicant's own discharge
review shall be considered under the Stipulation of Dismissal in the
Urban Law case and other decisional document requirements applicable at
the time the document was issued, including those contained in the
Settlement Agreement and related Orders, subject to any limitations set
forth therein with respect to dates of applicability. If the authority
empowered to take corrective action has a reasonable doubt whether a
decisional document meets applicable requirements of the Urban Law case
or other applicable rules, the complaint shall be resolved in the
applicant's favor.
(B) Other cases. With respect to all other complaints, the standard
shall be whether a reasonable person familiar with the discharge review
process can understand the basis for the decision, including the
disposition of issues raised by the applicant. This standard is
designed to ensure that the complaint process is not burdened with the
need to correct minor errors in the preparation of decisional documents.
(ii) Use of DD Form 293. With respect to any decisional document
issued on or after November 27, 1982, a complaint alleging failure of
the DRB to address adequately matter not submitted on DD Form 293 or
expressly incorporated therein will be resolved in the complainant's
favor only if the failure to address the issue was arbitrary,
capricious, or an abuse of discretion.
(iii) Scope of review. When a complaint concerns a specific issue in
the applicant's own discharge review, the complaint review process shall
involve a review of all the evidence that was before the DRB or SRA,
including the testimony and written submissions of the applicant, to
determine whether the issue was submitted, and if so, whether it was
addressed adequately with respect to the Stipulation of Dismissal,
Settlement Agreement, or related Orders in the Urban Law case and other
applicable provisions of this Directive. With respect to all other
complaints about specific issues, the complaint review process may be
based solely on the decisional document, except when the complainant
demonstrates that facts present in the review in question raise a
reasonable likelihood of a violation of applicable provisions of the
Stipulation of Dismissal and a reasonable person, familiar with the
discharge review process, could resolve the complaint only after a
review of the evidence that was before the DRB.
(iv) Allegations pertaining to an applicant's submission. The
following additional requirements apply to complaints about modification
of an applicant's issue or the failure to list or address an applicant's
issue:
(A) When the complaint is submitted by the applicant, and the record
of the hearing is ambiguous on the question whether there was a meeting
of minds between the applicant and the DRB as to modification or
omission of the issue, the ambiguity will be resolved in favor of the
applicant.
(B) When the complaint is submitted by a person other than the
applicant, it must set forth facts (other than the mere omission or
modification of an issue) demonstrating a reasonable likelihood that the
issue was omitted or modified without the applicant's consent.
(C) When the complaint is rejected on the basis of the presumption of
regularity, the response to the complaint must be set forth the reasons
why the evidence submitted by the complainant was not sufficient to
overcome the presumption.
(D) With respect to decisional documents issued on or after the
effective date of the amendments to 70.8, any change in wording of an
applicant's issue which is effected in violation of the principles set
forth in 70.8(a)(5)(iii) constitutes an error requiring corrective
action. With respect to a decisional document issued before that date,
corrective action will be taken only when there has been a complaint by
the applicant or counsel with respect to the applicant's own decisional
document and it is determined that the wording was changed or the issue
was omitted without the applicant's consent.
(E) If there are references in the decisional document to matters not
raised by the applicant and not otherwise relied upon in the decision,
there is no requirement under the Urban Law case that such matters be
accompanied by a statement of findings, conclusions, or reasons. For
example, when the DRB discusses an aspect of the service record not
raised as an issue by the applicant, and the issue is not a basis for
the DRB's decision, the DRB is not required to discuss the reasons for
declining to list that aspect of the service record as an issue.
(v) Guidance as to other types of complaints. The following guidance
governs other specified types of complaints:
(A) The Stipulation of Dismissal requires only that those facts that
are essential to the decision be listed in the decisional document. The
requirement for listing specified facts from the military record was not
established until March 29, 1978, in 32 CFR Part 70 Decisional documents
issued prior to that date are sufficient if they meet the requirements
of the Stipulation.
(B) When an applicant submits a brief that contains material in
support of a proposed conclusion on an issue, the DRB is not required to
address each aspect of the supporting material in the brief. However,
the decisional document should permit the applicant to understand the
DRB's position on the issue and provide reviewing authorities with an
explanation that is sufficient to permit review of the DRB's decision.
When an applicant submits specific issues and later makes a statement
before the DRB that contains matter in support of that issue, it is not
necessary to list such supporting matter as a separate issue.
(C) For all decisional documents issued before November 27, 1982,
failure to respond to an issue raised by an applicant constitutes error
unless it reasonably may be inferred from the record that the DRB
response relied on one of the exceptions listed in 70.8(d)(3)(ii);
(e)(3)(ii)(C) (3) through (4) and (e)(6)(ii)(C) (3) through (4). If the
decisional document supports a basis for not addressing an issue raised
by the applicant (for example, if it is apparent that resolving the
issue in the applicant's favor would not warrant an upgrade), there is
no requirement in the Stipulation of Dismissal that the decisional
document explain why the DRB did not address the issue. With respect to
decisional documents issued on or after November 27, 1982, a response
shall be prepared in accordance with the decisional document principles
set forth in 70.8.
(D) When a case is reviewed upon request of an applicant, and the DRB
upgrades the discharge to ''General,'' the DRB must provide reasons why
it did not upgrade to ''Honorable'' unless the applicant expressly
requests lesser relief. This requirement applies to all requests for
corrective action submitted by an applicant with respect to his or her
decisional document. In all other cases, this requirement applies to
decisional documents issued on or after November 9, 1978. When the DRB
upgrades to General, its explanation for not upgrading to Honorable may
consist of reference to adverse matter from the applicant's military
record. When a discharge is upgraded to General in a review on the
DRB's own motion, there is no requirement to explain why the discharge
was not upgraded to Honorable.
(E) There is no requirement under the Stipulation of Dismissal to
provide reasons for uncontested findings. The foregoing applies to
decisional documents issued before November 27, 1982. With respect to
decisional documents issued on or after that date, the following
guidance applies with respect to an uncontested issue of fact that forms
the basis for a grant or denial of a change in discharge: the
decisional document shall list the specific source of information relied
upon in reaching the conclusion, except when the information is listed
in the portion of the decisional document that summarizes the service
record.
(F) The requirements of 70.8(e)(3) (ii)(B)(2) and (e)(6) (ii)(B)(2)
with respect to explaining use of the presumption of regularity apply
only to decisional documents issued on or after November 27, 1982. When
a complaint concerning a decisional document issued before that date
addresses the adequacy of the DRB's use of the presumption of
regularity, or words having a similar import, corrective action will be
required only if a reasonable person familiar with the discharge review
process can not understand the basis for relying on the presumption.
(G) When the DRB balances mitigrating factors against aggravating
factors as the reason for a conclusion, the Stipulation of Dismissal
does not require the statement of reasons to set forth the specific
factors that were balanced if such factors are otherwise apparent on the
fact of the decisional document. The foregoing applies to decisional
documents prepared before November 27, 1982. With respect to decisional
documents prepared after that date, the statements addressing decisional
issues in such a case will list or refer to the factors supporting the
conclusion in accordance with 70.8(e)(6)(ii).
(vi) Documents that were the subject of a prior complaint. The
following applies to a complaint concerning a decisional document that
has been the subject of prior complaints:
(A) If the complaint concerns a decisional document that was the
subject of a prior complaint in which action was completed, the
complainant will be informed of the substance and disposition of the
prior complaint, and will be further informed that no additional action
will be taken unless the complainant within 30 days demonstrates that
the prior disposition did not produce a decisional document that
comports with the requirements of paragraph (d)(1)(i)(A) of this
section.
(B) If the complaint concerns a decisional document that is the
subject of a pending complaint, the complainant will be informed that he
or she will be provided with the results of the pending complaint.
(C) These limitations do not apply to the initial complaint submitted
on or after the effective date of the amendments to this section by an
applicant with respect to his or her own decisional document.
(2) Duties of the administrative director. The administrative
director shall take the following actions:
(i) Acknowledge receipt of the complaint;
(ii) Assign a docket number and note the date of receipt; and
(iii) Forward the complaint to the Military Department concerned,
except that the case may be forwarded directly to the DASD (MP&FM) when
the administrative director makes an initial determination that
corrective action is not required.
(3) Administrative processing. The following guidance applies to
administrative processing of complaints:
(i) Complaints normally shall be processed on a first-in/first-out
basis, subject to the availability of records, pending discharge review
actions, and the following priorities:
(A) The first priority category consists of cases in which (1) there
is a pending discharge review and the complainant is the applicant; and
(2) the complainant sets forth the relevance of the complaint to the
complainant's pending discharge review application.
(B) The second priority category consists of requests for correction
of the decisional document in the complainant's own discharge review
case.
(C) The third priority category consists of complaints submitted by
former members of the Armed Forces (or their counsel) who state that the
complaint is submitted to assist the former member's submission of an
application for review.
(D) The fourth priority category consists of other complaints in
which the complainant demonstrates that correction of the decisional
document will substantially enhance the ability of applicants to present
a significant issue to the DRBs.
(E) The fifth priority category consists of all other cases.
(ii) Complainants who request consideration in a priority category
shall set forth in the complaint the facts that give rise to the claim
of placement in the requested category. If the complaint is relevent to
a pending discharge review in which the complainant is applicant or
counsel, the scheduled date of the review should be specified.
(iii) The administrative director is responsible for monitoring
compliance with the following processing goals:
(A) The administrative director normally shall forward correspondence
to the Military Department concerned within 3 days after the date of
receipt specified in the docket number. Correspondence forwarded
directly to the DASD(MP&FM) under paragraph (d)(2)(iii) of this section,
normally shall be transmitted within 7 days after the date of receipt.
(B) The Military Department normally shall request the necessary
records within 5 working days after the date of receipt from the
administrative director. The Military Department normally shall
complete action under paragraph (d)(4) of this section within 45 days
after receipt of all necessary records. If action by the Military
Department is required under paragraph (d)(9) of this section, normally
it shall be completed within 45 days after action is taken by the
DASD(MP&FM).
(C) The JSRA normally shall complete action under paragraph (d)(7) of
this section at the first monthly meeting held during any period
commencing 10 days after the administrative director receives the action
of the Military Department under paragraph (d)(5) of this section.
(D) The DASD(MP&FM) normally shall complete action under paragraph
(d)(8) of this section within 30 days after action is taken by the JSRA
under paragraph (d)(7) of this section or by the administrative director
under paragraph (d)(2)(iii) of this section.
(E) If action is not completed within the overall processing goals
specified in this paragraph, the complainant shall be notified of the
reason for the delay by the administrative director and shall be
provided with an approximate date for completion of the action.
(iv) If the complaints are submitted in any 30 day period with
respect to more than 50 decisional documents, the administrative
director shall adjust the processing goals in light of the number of
complaints and discharge review applications pending before the DRBs.
(v) At the end of each month, the administrative director shall send
each Military Department a list of complaints, if any, in which action
has not been completed within 60 days of the docket date. The Military
Department shall inform the administrative director of the status of
each case.
(4) Review of complaints by the Military Departments. The Military
Department shall review the complaint under the following guidance:
(i) Rejection of complaint. If the Military Department determines
that all the allegations contained in the complaint are not specific or
have no merit, it shall address the allegations using the format at
attachment 1 (Review of Complaint).
(ii) Partial agreement. If the Military Department determines that
some of the allegations contained in the complaint are not specific or
have no merit and that some of the allegations contained in the
complaint have merit, it shall address the allegations using the format
at attachment 1 and its DRB shall take appropriate corrective action in
accordance with paragraph (d)(4)(v) of this section.
(iii) Full agreement. If the Military Department determines that all
of the allegations contained in the complaint have merit, its DRB shall
take appropriate corrective action in accordance with paragraph
(d)(4)(v) of this section.
(iv) Other defects. If, during the course of its review, the
Military Department notes any other defects in the decisional document
or index entries (under the applicable requirements of the Urban Law
case or under this part) the DRB shall take appropriate corrective
action under paragraph (d)(4)(v) of this section. This does not
establish a requirement for the Military Department to review a
complaint for any purpose other than to determine whether the
allegations contained in the complaint are specific and have merit;
rather, it simply provides a format for the Military Department to
address other defects noted during the course of processing the
complaint.
(v) Appropriate corrective action. The following procedures govern
appropriate corrective action:
(A) If a complaint concerns the decisional document in the
complainant's own discharge review case, appropriate corrective action
consists of amending the decisional document or providing the
complainant with an opportunity for a new discharge review. An amended
decisional document will be provided if the applicant requests that form
of corrective action.
(B) If a complaint concerns a decisional document involving an
initial record review under the Special Discharge Review Program or the
Pub. L. 95-126 rereview program, appropriate corrective action consists
of (1) amending the decisional document; or (2) notifying the applicant
and counsel, if any, of the opportunity to obtain a priority review
using the letter providing at attachment 6. When the DRB takes
corrective action under this provision by amending a decisional
document, it shall notify the applicant and counsel, if any, of the
opportunity to request a de novo review under the Special Discharge
Review Program or under Pub. L. 95-126 rereview program, as
appropriate.
(C) When corrective action is taken with respect to a decisional
document in cases prepared under Pub. L. 95-126 the DRB must address
issues previously raised by the DRB or the applicant during review of
the same case during the SDRP only insofar as required by the following
guidance:
(1) When the DRB bases its decision upon issues previously considered
during the SDRP, the new decisional document under Pub. L. 95-126 must
address those issues;
(2) If, during consideration of the case under Pub. L. 95-126 the
applicant presents issues previously considered during the SDRP, the new
decisional document must address those issues; and
(3) If a decisional document concerning an initial record review
under Pub. L. 95-126 is otherwise defective and corrective action is
taken after a request by the applicant for a priority review in response
to the letter at attachment 6, the new decisional document shall address
all issues previously raised by the applicant during the SDRP.
(D) Except for cases falling under paragraph (d)(4)(v)(B) of this
section, if a complaint concerns a decisional document in which the
applicant received an Honorable Discharge and the full relief requested,
if any, with respect to the reason for discharge, appropriate corrective
action consists of amending the decisional document.
(E) In all other cases, appropriate corrective action consists of
amending the decisional document or providing the applicant with the
opportunity for a new review, except that an amended decisional document
will be provided when the complainant expressly requests that form of
corrective action.
(vi) Amended decisional documents. One that reflects a determination
by a DRB panel (or the SRA) as to what the DRB panel (or SRA) that
prepared the defective decisional document would have entered on the
decisional document to support its decision in this case.
(A) The action of the amending authority does not necessarily reflect
substantive agreement with the decision of the original DRB panel (or
SRA) on the merits of the case.
(B) A corrected decisional document created by amending a decisional
document in response to a complaint will be based upon the complete
record before the DRB (or the SRA) at the time of the original defective
statement was issued, including, if available, a transcript, tape
recording, videotape or other record of a hearing, if any. The new
decisional document will be indexed under categories relevant to the new
statements.
(C) When an amended decisional document is required under paragraphs
(d)(4)(v)(A) and (d)(4)(v)(D) of this section and the necessary records
cannot be located, a notation to that effect will be made on the
decisional document, and the applicant and counsel, if any, will be
afforded an opportunity for a new review, and the complainant will be
informed of the action.
(D) When an amended decisional document is requested under paragraph
(d)(4)(v)(C) and the necessary records cannot be located, a notation to
that effect will be made on the decisional document, and the complainant
will be informed that the situation precludes further action.
(vii) Time limit for requesting a new review. An applicant who is
afforded an opportunity to request a new review may do so within 45
days.
(viii) Interim notification. When the Military Department determines
that some or all of the allegations contained in the complaint are not
specific or have no merit but its DRB takes corrective action under
paragraph (d)(4)(ii) or (d)(4)(iv) of this section, the DRB's
notification to the applicant and counsel, if any, and to the
complainant, if other than the applicant or counsel, should include the
following or similar wording: ''This is in partial response to
(your)/(a) complaint to the Office of the Assistant Secretary of Defense
(Manpower, Reserve Affairs, and Logistics) dated -------- concerning
-------- Discharge Review Board decisional document -------- . A final
response to (your)/(the) complaint, which has been returned to the
Office of the Assistant Secretary of Defense (Manpower, Reserve Affairs,
and Logistics) for further review, will be provided to you in the near
future.''
(ix) Final notification. When the Discharge Review Board takes
corrective action under paragraphs (d)(4)(iii) and (d)(9) of this
section -------- its notification to the applicant and counsel, if any,
and to the complainant, if other than the applicant or counsel, should
include the following or similar wording: ''This is in response to
(your)/(a) complaint to the Office of the Assistant Secretary of Defense
(Manpower, Reserve Affairs, and Logistics) dated -------- concerning
-------- Discharge Review Board decisional document -------- .
(5) Transmittal to the administrative director. The Military
Department shall return the complaint to the administrative Director
with a copy of the decisional document and, when applicable, any of the
following documents:
(i) The ''Review of Complaint.''
(ii) A copy of the amendment to the decisional document and the
accompanying transmittal letter or letters to the applicant and counsel,
if any, and to the complainant, if other than the applicant or counsel.
(iii) A copy of the notification to the applicant and counsel, if
any, of the opportunity to request a new review, and a copy of the
notification to the complainant, if other than the applicant or counsel,
that the applicant has been authorized a new review.
(6) Review by the administrative director. The administrative
director shall review the complaint and accompanying documents to ensure
the following:
(i) If the Military Department determined that any of the allegations
contained in the complaint are not specific or have no merit, the JSRA
shall review the complaint and accompanying documents. The JSRA shall
address the allegations using the format at attachment 2 (Review of and
Recommended Action on Complaint) and shall note any other defects in the
decisional document or index entries not previously noted by the
Military Department. This does not establish a requirement for the JSRA
to review such complaints for any purpose other than to address the
allegations contained in the complaint; rather, it simply provides a
format for the JSRA to address other defects noted in the course of
processing the complaint.
(ii) If the Military Department determined that all of the
allegations contained in the complaint have merit and its DRB amended
the decisional document, the amended decisional document shall be
subject to review by the JSRA on a sample basis each quarter using the
format at attachment 3 (Review of any Recommendation on Amended
Decisional Document).
(iii) If the Military Department determined that all of the
allegations contained in the complaint have merit and its DRB notified
the applicant and counsel, if any, of the opportunity to request a new
review, review of such corrective action is not required.
(7) Review by the JSRA. The JSRA shall meet for the purpose of
conducting the reviews required in paragraphs (d)(6)(i), (d)(6)(ii), and
(d)(9)(iii)(A) of this section. The Administrative director shall call
meetings once a month, if necessary, or more frequently depending upon
the number of matters before the JSRA. Matters before the JSRA shall be
presented to the members by the recorder. Each member shall have one
vote in determining matters before the JSRA, a majority vote of the
members determining all matters. Determinations of the JSRA shall be
reported to the DASD(MP&FM) as JSRA recommendations using the prescribed
format. If a JSRA recommendation is not unanimous, the minority member
may prepare a separate recommendation for consideration by the
DASD(MP&FM) using the same format. Alternatively, the minority member
may indicate ''dissent'' next to his signature on the JSRA
recommendation.
(8) Review by the DASD(MP&FM). The DASD(MP&FM) shall review all
recommendations of the JSRA and the administrative director as follows:
(i) The DASD(MP&FM) shall review complaints using the format at
Attachment 4 (Review of and Action on Complaint). The DASD(MP&FM) is
the final authority in determining whether the allegations contained in
a complaint are specific and have merit. If the DASD(MP&FM) determines
that no further action by the Military Department is warranted, the
complainant and the Military Department shall be so informed. If the
DASD(MP&FM) determines that further action by the Military Department is
required, the Military Department shall be directed to ensure that
appropriate corrective action is taken by its DRB and the complainant
shall be provided an appropriate interim response.
(ii) The DASD(MP&FM) shall review amended decisional documents using
the format at attachment 5 (Review of and Action on Amended Decisional
Document). The DASD(MP&FM) is the final authority in determining
whether an amended decisional document complies with applicable
requirements of the Urban Law case and, when applicable, this Directive.
If the DASD(MP&FM) determines that no further corrective action by the
Military Department is warranted, the Military Department shall be so
informed. If the DASD(MP&FM) determines that further corrective action
by the Military Department is required, the Military Department shall be
directed to ensure that appropriate corrective action is taken by its
DRB.
(iii) It is noted that any violation of applicable requirements of
the Urban Law case is also a violation of this part. However, certain
requirements under this part are not requirements under the Urban Law
case. If the allegations contained in a complaint are determined to
have merit or if an amended decisional document is determined to be
defective on the basis of one of these additional requirements under
this part the DASD(MP&FM) determination shall reflect this fact.
(9) Further action by the Military Department. (i) With respect to a
determination by the DASD (MP&FM) that further action by the Military
Department is required, its DRB shall take appropriate corrective action
in accordance with paragraph (d)(4) of this section.
(ii) The Military Department shall provide the administrative
director with the following documents when relevant to corrective action
taken in accordance with paragraph (d)(4) of this section:
(A) A copy of the amendment to the decisional document and the
accompanying transmittal letter or letters to the applicant and counsel,
if any, and to the complainant, if other than the applicant or counsel.
(B) A copy of the notification to the applicant and counsel, if any,
of the opportunity to request a new review, and a copy of the
notification to the complainant, if other than the applicant or counsel,
that the applicant has been authorized a new review.
(iii) The administrative director shall review the documents relevant
to corrective action taken in accordance with paragraph (d)(4) of this
section, and ensure the following:
(A) If the DRB amended the decisional document, the amended
decisional document shall be subject to review by the JSRA on a sample
basis each quarter using the format at attachment 3 (Review of and
Recommended Action on Amended Decisional Document).
(B) If the DRB notified the applicant and counsel, if any, of the
opportunity to request a new review, review of such corrective action is
not required.
(10) Documents required by the JSRA or DASD (MP&FM). Upon request,
the Military Department shall provide the administrative director with
other documents required by the JSRA or the DASD (MP&FM) in the conduct
of their reviews.
(e) Responses to inquiries. The following procedures shall be used
in processing inquiries:
(1) The administrative director shall assign a docket number to the
inquiry.
(2) The administrative director shall forward the inquiry to the
Military Department concerned.
(3) The Military Department shall prepare a response to the inquiry
and provide the administrative director with a copy of the response.
(4) The Military Department's response shall include the following or
similar wording: ''This is in response to your inquiry to the Office of
the Assistant Secretary of Defense (Manpower, Reserve Affairs, and
Logistics) dated -------- concerning -------- .
(f) Indexing. The DRB concerned shall reindex all amended decisional
documents and shall provide copies of the amendments to the decisional
documents to the Armed Forces Discharge Review/Correction Board Reading
Room.
(g) Disposition of documents. The administrative director is
responsible for the disposition of all Military Department, DRB, JSRA,
and DASD (MP&FM) documents relevant to processing complaints and
inquiries.
(h) Referral by the General Counsel, Department of Defense. The
Stipulation of Dismissal permits Urban Law plaintiffs to submit
complaints to the General Counsel, DoD, for comment. The General
Counsel, DoD, may refer such complaints to the Military Department
concerned or to the JSRA for initial comment.
(i) Decisional document and index entry principles. The DASD (MP&FM)
shall identify significant principles concerning the preparation of
decisional documents and index entries as derived from decisions under
this section and other opinions of the Office of General Counsel, DoD.
This review shall be completed not later than October 1 and April 1 of
each year, or more frequently if deemed appropriate by the DASD (MP&FM).
The significant principles identified in the review shall be
coordinated as proposed as amendments to the sections of this part.
(j) Implementation of amendments. The following governs the
processing of any correspondence that is docketed prior to the effective
date of amendments to this section except as otherwise provided in such
amendments:
(1) Any further action on the correspondence shall be taken in
accordance with the amendments; and
(2) No revision of any action taken prior to the effective date of
such amendments is required.
1. Specific allegation(s) noted:
2. With respect in support of the conclusion, enter the following
information:
a. Conclusion whether corrective action is required.
b. Reasons in support of the conclusion, including findings of fact
upon which the conclusion is based.
3. Other defects noted in the decisional document or index entries:
(Authentication)
1. The Military Department's ''Review of Complaint'' is attached as
enclosure 1.
2. Specific Allegations: See Part 1 of Military Department's
''Review of Complaint'' (enclosure 1).
3. Specific allegation(s) not noted by the Military Department:
4. With respect to each allegation, enter the following information:
a. Conclusion as to whether corrective action is required.
b. Reasons in support of the conclusion, including findings of fact
upon which conclusion is based.
Note. -- If JSRA agrees with the Military Departments, the JSRA may
respond by entering a statement of adoption.
5. Other defects in the decisional document or index entries not
noted by the Military Departments:
6. Recommendation:
( ) The complainant and the Military Department should be informed
that no further action on the complaint is warranted.
( ) The Military Department should be directed to take corrective
action consistent with the above comments.
Army Member, JSRA
Air Force Member, JSRA
Navy Member, JSRA
Recorder, JSRA
( ) The amended decisional document complies with the requirements of
the Stipulation of Dismissal and, when applicable, DoD Directive
1332.28. The Military Department should be informed that no further
corrective action is warranted.
( ) The amended decisional document does not comply with the
Stipulation of Dismissal or DoD Directive 1332.28 as noted herein. The
Military Department should be directed to ensure that corrective action
consistent with the defects noted is taken by its Discharge Review
Board.
Army Member, JSRA
Air Force Member, JSRA
Navy Member, JSRA
Recorder, JSRA
1. Each allegation is addressed as follows:
a. Allegation.
b. Conclusion whether corrective action is required.
c. Reasons in support of the conclusion, including findngs of fact
upon which the conclusion is based.
Note: If the DASD(MP&FM) agrees with the JSRA, he may respond by
entering a statement of adoption.
2. Other defects noted in the decisional document or index entries:
3. Determinations:
( ) No further action on the complaint is warranted.
( ) Corrective action consistent with the above comments is required.
Deputy Assistant Secretary of Defense
(Military Personnel & Force Management)
( ) The amended decisional document complies with the requirements of
the Stipulation of Dismissal and, when applicable, DoD Directive
1332.28. No further corrective action is warranted.
( ) The amended decisional document does not comply with the
Stipulation of Dismissal or DoD Directive 1332.28 as noted herein.
Further corrective action is required consistent with the defects noted
in the attachment.
Deputy Assistant Secretary of Defense
(Military Personnel & Force Management)
Remarks:
Dear ------ :
It has been determined that the decisional document issued in your
case by the (Army) (Navy) (Air Force) Discharge Review Board during the
(Special Discharge Review Program) (rereview program under Pub. L. No.
95-126) should be reissued to improve the clarity of the statement of
findings, conclusions, and reasons for the decision in your case.
In order to obtain a new decisional document you may elect one of the
following options to receive a new review under the (Special Discharge
Review Program) (rereview program mandated by Pub. L. No. 95-126):
1. You may request a new review, including a personal appearance
hearing if you so desire, by responding on or before the suspense date
noted at the top of this letter. Taking this action will provide you
with a priority review before all other classes of cases.
2. You may request correction of the original decisional document
issued to you by responding on or before the suspense date noted at the
top of this letter. After you receive a corrected decisional document,
you will be entitled to request a new review, including a personal
appearance hearing if you so desire. If you request correction of the
original decisional document, you will not receive priority processing
in terms of correcting your decisional document or providing you with a
new review; instead, your case will be handled in accordance with
standard processing procedures, which may mean a delay of several months
or more.
If you do not respond by the suspense date noted at the top of this
letter, no action will be taken. If you subsequently submit a complaint
about this decisional document, it will be processed in accordance with
standard procedures.
To ensure prompt and accurate processing of your request, please fill
out the form below, cut it off at the dotted line, and return it to the
Discharge Review Board of the Military Department in which you served at
the address listed at the top of this letter.
Check only one:
( ) I request a new review of my case on a priority basis. I am
requesting this priority review rather than requesting correction of the
decisional document previously issued to me. I have enclosed DD Form
293 as an application for my new review.
( ) I request correction of the decisional document previously issued
to me. I understand that this does not entitle me to priority action in
correcting my decisional document. I also understand that I will be
able to obtain a further review of my case upon my request after
receiving the corrected decisional document, but that such a review will
not be held on a priority basis.
Dates
Signatures
Printed Name and Address
--
(47 FR 37785, Aug. 26, 1982, as amended at 48 FR 9856, Mar. 9, 1983)
32 CFR 70.11 DoD semiannual report.
(a) Semiannual reports will be submitted by the 20th of April and
October for the preceding 6-month reporting period (October 1 through
March 31 and April 1 through September 30).
(b) The reporting period will be inclusive from the first through the
last days of each reporting period.
(c) The report will contain four parts:
(1) Part 1. Regular Cases.
(2) Part 2. Reconsideration of President Ford's Memorandum of
January 19, 1977, and Special Discharge Review Program Cases.
(3) Part 3. Cases Heard under Pub. L. 95-126 by waiver of 10 U.S.C.
1553, with regard to the statute of limitations.
(4) Part 4. Total Cases Heard.
Statistics for Discharge Review Board (FY )
32 CFR 70.11 -- PART 71 -- ELIGIBILITY REQUIREMENTS FOR EDUCATION OF
MINOR DEPENDENTS IN OVERSEAS AREAS
Sec.
71.1 Purpose.
71.2 Applicability.
71.3 Definitions.
71.4 Policy.
71.5 Eligibility Requirements.
71.6 Responsibilities.
71.7 Eligibility requirements for education of minor dependents and
other persons in the Republic of Panama.
Authority: 10 U.S.C. 921-932 (Supp. IV 1980).
Source: 47 FR 52701, Nov. 23, 1982, unless otherwise noted.
32 CFR 71.1 Purpose.
This part replaces DoD Instruction 1342.10 and DoD Instruction
1342.4, and implements 20 U.S.C. 921-932, to:
(a) Update the policy and eligibility requirements for education of
DoD dependent students in overseas areas.
(b) Authorize the enrollment of other minor dependents in DoD
dependents schools conditioned upon available space and payment of
tuition.
32 CFR 71.2 Applicability.
This part applies to the Office of the Secretary of Defense, the
Military Departments, the Organization of the Joint Chiefs of Staff, the
Unified and Specified Commands, and the Defense Agencies (hereafter
referred to collectively as ''DoD Components''). The term ''Military
Services,'' as used herein, refers to the Army, Navy, Air Force, and
Marine Corps.
32 CFR 71.3 Definitions.
The terms used in this part are defined below.
(a) Approved non-DoD dependents schools. Schools, including
dormitory facilities, other than DoD dependents schools, that provide
suitable educational programs, usually on a tuition basis. The term
includes residence facilities operated by approved non-DoD dependents
schools to provide room and board for eligible handicapped dependents
when DoD dependents schools cannot provide an appropriate education.
(b) Commuting area. A designated geographical area surrounding a DoD
dependents school within which pupil transportation at U.S. Government
expense is provided for DoD dependent students, except for those living
within walking distance of the school (See DoD 4500.36-R).
(c) Correspondence courses. Home or supplemental instruction courses
for DoD dependent students who live in areas where there are no suitable
facilities, for handicapped DoD dependent students who cannot attend
school, and for the supplementation of course offerings at DoD
dependents schools or approved non-DoD dependents schools.
(d) DoD dependents schools. Schools established by the Department of
Defense in overseas areas to provide primary and secondary education for
minor dependents of DoD sponsors.
(e) DoD dependents schools with Dormitories. Residence facilities
operated at certain DoDDS schools, usually at the high school level and
primarily but not exclusively to provide room and board for DoD
dependent students who are authorized to accompany their DoD sponsors to
locations where there are no appropriate educational facilities
available locally.
(f) DoD dependent student. A minor dependent who:
(1) Is the child, stepchild, adopted child, ward, or spouse of a DoD
sponsor, or who is a resident in the household of a DoD sponsor who
stands in loco parentis to such individual and who receives one-half or
more of his or her support from such sponsor; and
(2) Has not completed secondary school and who will reach his or her
5th but not 21st birthday by December 31 of the current school year; or
(3) Is handicapped, and is between 3 and 5 years of age by December
31 of the current school year, provided that the Director, DoDDS, or
designee, in his or her sole discretion, determines that adequate staff
and facilities are available to serve such a handicapped child.
(g) DoD sponsor. A Military Service member serving on active duty
and stationed overseas or a civilian employee of the Department of
Defense who is employed on a full-time basis, paid from appropriated
funds, and stationed overseas, and who is either a U.S. citizen or a
person lawfully accorded the privilege of residing permanently in the
United States as an immigrant in accordance with the United States
immigration laws (8 U.S.C. ''Aliens and Nationality'').
(h) Full-time students. Panama Canal College students enrolled in
courses for 12 or more credit hours during the fall and spring semesters
of one school year.
(i) Overseas area. Any area situated outside the United States (the
states, the District of Columbia, the Commonwealth of Puerto Rico, and
the possessions of the United States (excluding the Trust Territory of
the Pacific Islands and Midway Island))
(j) Part-time students. Panama Canal College students enrolled in
courses for 11 or fewer credit hours during the fall and spring
semesters of one school year, and all students enrolled during the
summer session.
(k) Space-required. Pupil accommodations that must be provided by
the DoD dependents schools.
(l) Space-available. Pupil accommodations that may be made available
in DoD dependents schools if the Director, DoDDS, or designee,
determines that a school operated by DoDDS has adequate staff and other
resources to permit the enrollment of nonspace-required students.
32 CFR 71.4 Policy.
(a) It is the policy of the Department of Defense:
(1) That, while overseas, DoD dependent students may be enrolled in
DoD dependents schools or approved non-DoD dependents schools, or may
take correspondence courses at U.S. Government expenses, under the
conditions prescribed in 71.5.
(2) To allow the enrollment of other minor dependents in DoD
dependents schools, provided that space is available and that tuition is
paid.
(b) Section 57 of this title provides guidance concerning the
education of handicapped children.
32 CFR 71.5 Eligibility requirements.
Students may be enrolled in the DoD dependents schools pursuant to
paragraphs (a) through (d) of this section, and in that priority, and
pursuant to paragraph (e) of this section.
(a) Space-required, tuition-free. (1) Command-sponsored DoD
dependent students shall, upon the request of their DoD sponsor, be
enrolled in DoD dependents schools on a space-required, tuition-free
basis. However, costs for the education of minor dependents of DoD
sponsors working for the DoD Security Assistance Program shall be paid
from DoD Security Assistance Program funds.
(2) If, as determined by the Director, DoD Dependents Schools
(DoDDS), or designee, no DoD dependents school is available within the
commuting area, command-sponsored DoD dependent students are eligible
for education in approved non-DoD dependents schools at U.S. Government
expense, usually in that same foreign country, or in DoD dependents
schools with dormitories, or through correspondence courses at U.S.
Government expense.
(3) DoD dependent students may be provided education in approved
non-DoD dependents schools or may receive correspondence courses at U.S.
Government expense only at locations where DoD dependents schools are
not available or are operating at maximum capacity. Only those non-DoD
dependents schools with programs considered satisfactory by the
Director, DoDDS, or designee, shall be approved to provide education at
U.S. Government expense to DoD dependent students. In all cases, the
payment of tuition in approved non-DoD dependents schools by the U.S.
Government is limited to those DoD dependent students who are authorized
transportation at U.S. Government expense to or from an overseas area,
if their DoD sponsor is military, and to those DoD dependent students
whose DoD sponsor, if civilian, is eligible for a living quarters
allowance, as authorized by the Department of State Standardized
Regulations and DoD 1400.25-M.
(4) If adequate housing is available within the commuting area of a
DoD dependents school and an appropriate educational program is
available at that school, tuition will not be authorized for the
attendance of DoD dependent students in an approved non-DoD dependents
school in that same locality, except as authorized in paragraph (a)(3)
of this section. DoD dependent students who currently are enrolled in
an approved non-DoD dependents school and who would be adversely
affected by this limitation may, at the discretion of the Director,
DoDDS, or designee, be authorized to continue in attendance in that
approved non-DoD dependents school through the 1984-85 school year, or
until the rotation of the DoD sponsor out of the command, whichever is
earlier.
(5) Approved non-DoD dependents schools that are available free of
charge and that offer instructional programs in English should be used,
if feasible, before contracting for education in approved non-DoD
dependents schools that charge tuition.
(6) If no DoD dependents school within the commuting area of a
handicapped DoD dependent student is able to provide an appropriate
education to that student, DoDDS may place the student in another DoD
dependents school. If no appropriate DoD dependents school is
reasonably available, DoDDS then may place the student at U.S.
Government expense in an approved non-DoD dependents school overseas.
DoDDS may place a handicapped DoD dependent student in an approved
non-DoD dependents school in the United States only if no appropriate
school is reasonably available overseas. DoDDS may not place a non-DoD
dependent student in a non-DoD dependents school at U.S. Government
expense.
(7) DoD dependent students who are the dependents of a DoD sponsor
who is detained by a foreign power or is declared missing in action or
otherwise unlawfully detained may remain in a DoD dependents school, or
in an approved non-DoD dependents school, at U.S. Government expense for
as long as the detention or missing status exists, subject to the
approval of the Director, DoDDS, or designee.
(8) DoD dependent students who are authorized attendance in a DoD
dependents school or an approved non-DoD dependents school may complete
the current school year if the DoD sponsor is transferred, dies, or
retires during the school year, but subsequently shall lose their
eligibility to attend, except on a space-available, tutition-free basis
in a DoD dependents school as prescribed in paragraph (c)(2) of this
section.
(9) If DoD dependent students are authorized to accompany their DoD
sponsor to the country of the sponsor's assignment, such dependent
students ordinarily will not be entitled to space-required, tuition-free
education in a DoD dependents school in a different overseas country or
to education in a non-DoD dependents school at U.S. Government expense
in that different country. Any exceptions to this policy must be
approved by the Director, DoDDS, or designee.
(b) Space-available, tuition-paying (federally connected). Under
section 1404(c) of the ''Defense Dependents' Education Act of 1978'', if
the Director, DoDDS, or designee, determines that space is available,
consistent with the local military commander's policy concerning access
to the installation and agreements with the host nation, other minor
dependents in the categories specified in this subsection may be
enrolled in a DoD dependents school upon payment of tuition. The amount
of tuition shall be determined by the Director, DoDDS, or designee, and
may not be less than the rate necessary to cover the average cost of
enrollment of children in the DoD dependents schools. Clarification on
how tuition rates are determined is contained in DoD Directive 4000.19
and DoD Instruction 7230.7. Minor dependents in this category may be
enrolled in the following priority:
(1) Minor dependents of other U.S. Government agency employees
stationed overseas.
(2) Minor dependents of U.S. citizens who have executed contracts or
who are employed by parent organizations that have executed contracts or
other agreements with the Department of Defense when the applicable
contract or agreement authorizes dependent education on a tuition basis
in the DoD dependents schools. A copy of the document authorizing
attendance shall be presented to the appropriate DoD dependents school
official at the time of enrollment. Examples of individuals whose minor
dependents are covered by this paragraph include:
(i) Nonappropriated fund instrumentalities (universal annual)
employees.
(ii) Defense contractor personnel.
(iii) United Services Organizations, Inc., personnel.
(iv) American Red Cross personnel.
(3) Minor dependents of host-nation or third-country national
military or civilian personnel accompanying or serving with the Military
Services overseas, when recommended by the major overseas commander and
when approved by the Director, DoDDS, or designee.
(4) Minor dependents of other sponsors who are serving the national
defense interest, as determined by the Director, DoDDS, or designee.
(c) Space-available, tuition-free. Under section 1404(c) of the
''Defense Dependents' Education Act of 1978'', the following classes of
DoD dependent students may be enrolled, in the priority given below, in
DoD dependents schools on a space-available, tuition-free basis:
(1) Minor dependents of military DoD sponsors who are stationed in
overseas areas to which their dependents are not authorized
transportation at U.S. Government expense or minor dependents of
civilian DoD sponsors who are not entitled to a living quarters
allowance as authorized by the Department of State Standardized
Regulations and DoD 1400.25-M, when the sponsors elect to transport
these dependents at their own expense to overseas areas in which the
sponsors are stationed (noncommand-sponsored dependents). If at any
time during a DoD sponsor's overseas assignment that sponsor's minor
noncommand-sponsored dependents become command-sponsored or the sponsor
acquires minor, command-sponsored dependents, those dependents shall be
authorized ''space-required, tuition-free'' status.
(2) DoD dependent students who are dependents of DoD sponsors who die
while intitled to compensation or active duty pay at the time of the
sponsor's death, provided that the surviving spouse either was residing
in an overseas area when the sponsor died or has been a citizen of a
foreign country and returns to that country. The DoD dependent student
must be enrolled in a DoD dependents school either within 1 year of the
DoD sponsor's death or, if the dependent is below school age when the
sponsor dies, within 1 year of the dependent's becoming eligible to
enroll.
(3) Noncommand-sponsored DoD dependents who are enrolled in a DoD
dependents school may remain in a DoD dependents school if their sponsor
is declared missing in action or otherwise unlawfully detained for as
long as the detention or missing status exists, subject to the approval
of the Director, DoDDS, or designee.
(d) Space-available, tuition-paying (nonfederally connected). Under
section 1404(c) of the ''Defense Dependents' Education Act of 1978'',
the following minor dependents may be enrolled in a DoD dependents
school upon payment of tuition if the Director, DoDDS, or designee,
determines that space is available:
(1) Dependents of U.S. citizens residing in overseas areas, including
dependents of retired personnel, or of deceased personnel not covered in
paragraph (c)(2) of this section.
(2) Dependents of foreign nationals, when there is no objection from
the host nation and when such inclusion does not displace or prevent
inclusion of U.S. citizen-sponsored minor dependents seeking admission
on the same basis at the same time.
(e) Education in the Republic of Panama. Eligibility requirements
for education in the Republic of Panama are prescribed in 71.7.
32 CFR 71.6 Responsibilities.
(a) The Assistant Secretary of Defense (Manpower, Reserve Affairs,
and Logistics) shall monitor compliance with this part.
(b) The Heads of DoD Components shall comply with this part.
(c) The Director, DoD Dependents Schools, or designee, shall:
(1) Authorize the attendance of DoD dependent students in DoD
dependents schools or approved non-DoD dependents schools, or provide
correspondence courses at U.S. Government expense, in accordance with
this part.
(2) Authorize the enrollment of other minor dependents in DoD
dependents schools, in accordance with this part, and establish
priorities among those dependents within an eligibility category.
(3) Provide information and guidance to DoD sponsor regarding
enrollment in DoD dependents schools, residence in DoD dependents school
dormitories or approved non-DoD dependents schools dormitories,
enrollment in approved non-DoD dependents schools, and receipt of
correspondence courses.
(4) Establish, in coordination with the supporting installation or
community commander, commuting areas around DoD dependents schools for
the purpose of determining eligibility for transportation of DoD
dependent students. (See DoD 4500.36-R.)
(5) Periodically review the educational programs in approved non-DoD
dependents schools that are used to educate DoD dependent students to
ensure that these programs are satisfactory.
(d) Commanders of overseas installations, military communities, or
activities shall:
(1) Advise incoming and newly assigned personnel about the DoD
dependent schools' commuting areas and the extent of pupil
transportation service supporting the local DoD dependents schools.
(2) Assist incoming and newly assigned personnel in obtaining housing
within the commuting area of the local DoD dependents school, if
feasible.
(3) Advise incoming and newly assigned personnel that, if adequate
housing is available within the commuting area of a DoD dependents
school and if the DoD sponsor's place of employment is also reasonably
accessible from that commuting area, tuition assistance will not be
available to provide education in approved non-DoD dependents schools
for minor dependents of DoD sponsors who elect to reside beyond the
commuting area of a DoD dependents school. (see DoD 4500.36)
(4) Inform incoming and newly assigned personnel that they will not
be reimbursed for unauthorized enrollments in non-DoD dependents
schools.
32 CFR 71.7 Eligibility requirements for education of minor dependents
and other persons in the Republic of Panama.
(a) The ''Panama Canal Act of 1979'' authorizes the extension of
primary, secondary, and postsecondary educational services to DoD
dependent students and other categories of dependents. Basic
eligibility policy is described in 71.5 of this part. Exceptional
eligibility requirements for education for dependents in the Republic of
Panama are addressed below.
(b) Minor dependents may be enrolled in DoD dependents schools or
approved non-DoD dependents schools in the Republic of Panama or may
receive correspondence courses at U.S. Government expense under the
conditions and in the priority indicated below.
(1) Space required, tuition-free education and education in approved
non-DoD dependents schools. In addition to DoD dependent students
entitled to receive space-required, tuition-free education from DoDDS
under 71.5 of this part, the following minor dependents in the Republic
of Panama are authorized ''space-required tuition-free'' status:
(i) Minor dependents of host-nation or third-country citizens
employed by the Department of Defense and paid from appropriated funds,
provided that such dependents were enrolled on a tuition-free basis in
schools operated by the former Canal Zone Government on September 30,
1979, as then authorized for residents of the former Canal Zone. This
provision applies only for uninterrupted enrollments.
(ii) Minor dependents of host-nation or third-country citizen
employees transferred to the Department of Defense on October 1, 1979,
and paid from appropriated funds may attend approved non-DoD dependents
schools in the Republic of Panama at U.S. Government expense when such
dependents were enrolled in a non-DoD dependents school under the
authority and at the expense of the former Canal Zone Government/Panama
Canal Company on September 30, 1979. This provision applies only for
uninterrupted enrollments.
(2) Space-required, tuition-paying education. Dependents not
specifically authorized tuition-free education in paragraph (b)(1) of
this section, or in 71.5 of this part, when such dependents were
enrolled in schools operated by the former Canal Zone Government on
September 30, 1979, regardless of affiliation or citizenship of
sponsors. This provision applies only for uninterrupted enrollments.
(c) Persons may be enrolled in the Panama Canal College under the
conditions and in the priority listed below:
(1) Tuition-paying, DoD-sponsored education. All students at the
Panama Canal College attend on a tuition-paying basis. The Department
of Defense may assume a portion of the tuition cost for full-time
students who are minor dependents of:
(i) Military DoD sponsors who are on active duty and stationed in the
Republic of Panama.
(ii) Civilian DoD sponsors stationed in the Republic of Panama who
are paid from appropriated funds and who have been lawfully accorded the
privilege of residing permanently in the United States as immigrants in
accordance with the United States immigration laws (8 U.S.C. ''Aliens
and Nationality'').
(iii) Members of the Military Services who are detained by a foreign
power or declared missing in action or otherwise unlawfully detained for
as long as the detention or missing status continues to exist. Under
these circumstances, authorization for the dependents to remain in the
College with DoD tuition assistance must be obtained from DoDDS
officials and the local military commander.
(iv) If a sponsor discussed in paragraph (c)(1) (i), (ii), or (iii)
of this section, is transferred, retires, or dies during the college
semester, the sponsor's dependents may complete the current semester,
but subsequently shall lose their eligibility to attend the Panama Canal
College.
(2) Tuition-paying -- other. At the discretion of the Director,
DoDDS, or designee, and when consistent with the local military
commander's policy concerning access to the area of military
coordination and agreements with the Republic of Panama, the following
categories of persons may be enrolled at the Panama Canal College on a
full- or part-time basis, in the priority given below provided the
applicant meets academic admissions requirements.
(i) Active duty members of the Military Services who are stationed in
Panama and family members living with them (unless authorized
DoD-sponsored education under paragraph (c)(1) of this section.
(ii) U.S.-citizens employees of the Department of Defense and other
U.S. Government agencies, including the Panama Canal Commission, and
family members living with them (unless authorized DoD-sponsored
education under paragraph (c)(1) of this section).
(iii) Host-nation or third-country citizen employees of the Panama
Canal Commission or other U.S. Government agency, district dentists,
religious workers, and family members living with them, when such
persons were enrolled in a Canal Zone school on a tuition-free basis or
under the sponsorship of the former Canal Zone Government/Panama Canal
Company on September 30, 1979, as was then authorized for residents of
the former Canal Zone.
(iv) Minor dependents of Canal Zone Government/Panama Canal Company
host-nation or third-country citizen employees separated through
reduction in force action and not reemployed by another U.S. Government
agency, when such dependents were enrolled in the former Canal Zone
school system on September 30, 1979.
(v) U.S. citizens not specifically addressed above who reside in the
Republic of Panama.
(vi) Host-nation and third-country citizens not specifically
addressed above who reside in the Republic of Panama when there is no
objection from the government of Panama and when such inclusion does not
displace or prevent inclusion of U.S. citizens seeking admission on the
same basis at the same time.
32 CFR 71.7 PART 72 -- VOLUNTARY EDUCATION PROGRAMS IN OVERSEAS AREAS
Sec.
72.1 Purpose.
72.2 Applicability and scope.
72.3 Responsibilities.
72.4 Procedures.
72.5 Effective date and implementation.
Authority: Pub. L. 99-145, section 1212.
Source: 53 FR 22648, June 17, 1988, unless otherwise noted.
32 CFR 72.1 Purpose.
This part:
(a) Prescribes uniform procedures and assigns responsibilities for
the Military Services to avoid the unnecessary duplication of
postsecondary education offerings in overseas areas under Pub. L.
99-145, section 1212 and DoD Directive 1322.8. /1/
(b) Under Pub. L. 145, section 1212:
(1) Reflects the statutory requirement, subject to the exceptions in
72.1(b)(2) that no solicitation, contract, or agreement for off-duty
postsecondary education services for military members, DoD civilian
employees, or the dependents of such military members or employees,
other than for services at the graduate or postgraduate level, may limit
the offering of such services or any group, category, or level of
courses to a single academic institution.
(2) Prescribes criteria for avoiding the unnecessary duplication of
educational services by exercising the authority in Pub. L. 99-145 to
grant exceptions, when required, to 72.1(b)(1).
/1/ Copies may be obtained, if needed, from the U.S. Naval
Publication and Forms Center, Attn: Code 1052, 5801 Tabor Avenue,
Philadelphia, PA 19120.
32 CFR 72.2 Applicability and scope.
This part:
(a) Applies to the Office of the Secretary of Defense (OSD) and the
Military Departments.
(b) Shall be extended to all persons seeking or receiving off-duty
postsecondary education services, as described in 72.1(b)(1).
32 CFR 72.3 Responsibilities.
(a) Each Overseas Theater Commander shall implement this part and
may:
(1) When necessary to avoid unnecessary duplication of offerings of
postsecondary education services, authorize the issuance of
solicitations and the execution of contracts and agreements that limit
the provision of such offerings at one or more installations to one
institution or a prescribed maximum number of institutions.
(2) Delegate the authority in 72.3(a)(1) but not below the level of
a general or flag officer, or a civilian equivalent.
32 CFR 72.4 Procedures.
(a) Under this part, ''unnecessary duplication'' means the provision
of education services by two or more potential offerers which, because
of such duplication, is determined to have an adverse effect on the
provision of the education services provided in the theater concerned,
consistent with ensuring the maximum availability of alternative
offerers of such services.
(b) One or more of the following criteria must be satisfied to limit
the number of providers of postsecondary education services:
(1) The demographic distribution of the potential student population
prevents the effective delivery of postsecondary education services by
multiple offerers.
(2) Adequate classroom and administrative space to meet education
program needs is not available to multiple providers.
(3) DoD educational staff needed to manage education programs at the
installation level are not available.
(4) The theater commander cannot provide reasonable logistic support
to installations and persons employed in providing education programs if
there are multiple providers. Logistic support includes supplies,
services, facilities, transportation, privileges and other benefits
provided to nongovernmental entities or individuals.
(c) Where necessary, the enrollments generated at large installations
may be used to balance the enrollments at small or remote locations to
provide for economies of scale and to ensure availability of the widest
range of education services possible at reasonable tuition rates,
consistent with 72.4(a) of this part.
32 CFR 72.5 Effective date and implementation.
This part is effective May 9, 1988. Forward one copy of implementing
documents to the Assistant Secretary of Defense (Force Management and
Personnel) within 120 days.
32 CFR 72.5 PART 73 -- TRAINING SIMULATORS AND DEVICES
32 CFR 72.5 Pt. 73
Sec.
73.1 Purpose.
73.2 Applicability and scope.
73.3 Definitions.
73.4 Policy.
73.5 Responsibilities.
73.6 Procedures.
73.7 Effective date and implementation.
Authority: 5 U.S.C. 301 and 10 U.S.C. 133.
Source: 51 FR 35512, Oct. 6, 1986, unless otherwise noted.
32 CFR 73.1 Purpose.
This part: (a) Establishes training simulator and device
development, acquisition, and utilization policy implementing Assistant
Secretary of Defense memorandum dated October 5, 1984 in accordance with
DoD Directive 5000.1, /1/ DoD Instruction 500.2, /1/ DoD Directive
5000.3, /1/ DoD Directive 5000.39, /1/ DoD Directive 5000.19, /1/ DoD
Instruction 7041.3, /1/ DoD 7110.1-M, and Executive Order 12344.
(b) Provides guidance for establishing Service policy for training
simulators and devices.
(c) Authorizes the Department of Defense to use training simulators
and devices to make training systems more effective and to help maintain
military readiness. Emphasizes the relationship between the system(s)
supported and the training system and supports the requirements for
coincident development and concurrency between the system(s) supported
and the training system. A systematically developed training system
with appropriate training simulators, devices, and embedded training
capability cost-effectively provides training for any given weapon or
support system. Properly used, such training simulators and devices
facilitate: training that might be impractical or unsafe if done with
actual systems or equipment; concentrated practice in selected normal
and emergency actions; the training of operators and maintainers to
diagnose and address possible equipment faults; enhanced proficiency
despite shortages of equipment, space, ranges, or time; control of
life-cycle training costs; and reducing systems required in maintenance
training.
(d) Emphasizes that training simulators and devices are integral
parts of an overall training system. Those training systems without
training simulators or devices specifically are excluded from this part.
/1/ Copies may be obtained, if needed, from the U.S. Naval
Publications and Forms Center, ATTN: Code 301, 5801 Tabor Avenue,
Philadelphia, PA 19120.
32 CFR 73.2 Applicability and scope.
(a) This part applies to the Office of the Secretary of Defense (OSD)
and the Military Departments, including their National Guard and Reserve
components. The term ''Military Services,'' as used herein, refers to
the Army, Navy, Air Force, Marine Corps, and the National Guard and
Reserve components.
(b) This part shall not be construed to usurp management prerogatives
or responsibilities of the Military Departments or their Guard or
Reserve Components.
(c) For reporting purposes supporting acquisition review for training
simulators or devices supporting a major system or comprising nonsystem
training equipment, the dollar thresholds shall be those established in
DoD 7110.1-M, part II.
(d) When the Secretary of Defense designates any training simulator
or device as being of significant interest based on criteria other than
cost, the Military Service concerned shall provide the documentation
required by this part.
(e) The policies of this part shall be followed regardless of the
cost of the training simulators or devices.
(f) In accordance with the responsibilities in E.O. 12344, the
Department of Energy (DoE) has cognizance over the development of
training systems and devices used in the training of naval nuclear
propulsion plant operators. Such systems and devices are not covered by
this Directive, but are coordinated separately with DoE.
32 CFR 73.3 Definitions.
Embedded training. Training using operational equipment that
involves simulating or stimulating of equipment performance.
Non-system training device. A training simulator or device not
supporting a single, specific, parent defense system.
Training simulator and/or device. Hardware and software designed or
modified exclusively for training purposes involving simulation or
stimulation in its construction or operation to demonstrate or
illustrate a concept or simulate an operational circumstance or
environment. Under this part, training simulators and devices are
considered part of an overall training system that may or may not be
identified as part of a parent defense system. Under this part, the
term training device shall apply to training simulators and devices.
Training system. A systematically developed curriculum including,
but not necessarily limited to, courseware; classroom aids; training
simulators and devices; operational equipment; embedded training
capability; and personnel to operate, maintain, or employ a system.
The training system includes all necessary elements of logistic support.
32 CFR 73.4 Policy.
(a) General. (1) It is DoD policy to optimize the operational
readiness of the total forces by effecting the development and
acquisition of training devices, in accordance with DoD Directive
5000.1. The requirement for development and acquisition of training
devices shall be based on a Military Service's training requirements
analysis process. The analysis shall define the training need,
determine whether existing training devices shall satisfy the training
requirement, and evaluate the benefits and tradeoffs of potential
alternative training solutions. This process shall consider how
recommended training devices shall function in the National Guard and
Reserve environment and how they shall meet any unique National Guard
and Reserve training needs.
(2) All training devices supporting and unique to a major system
acquisition should be documented and reviewed with the parent major
system. Major system training devices shall be identified in the
acquisition process in the Integrated Program Summary (IPS), in
accordance with DoD Instruction 5000.2. Those training devices that are
not included in a major system acquisition should be identified and
justified in relation to a specific training program or course. The
Military Services shall ensure that all development, procurement,
operation, and support costs are programmed and funded.
(3) These policies do not imply that a training system, simulator, or
device must be procured from the prime contractor for the defense system
being supported.
(4) The acquisition of a training system that supports a new defense
system or equipment shall be assigned the same priority as that of the
parent system or equipment.
(5) Those training devices dedicated to defense systems or equipment
should be available in time for the fielding of the parent system.
(6) These policies and the guidelines to implement them apply to
acquisition funds from advanced development through procurement.
(7) Joint-Services acquisition of common training devices should be
fully considered in each Military Service's training analysis and
planning.
(b) Development planning guidelines. (1) Once a training device
requirement has been established, the training device program must be
described and documented in a Military Service's approved development
plan (DP) or equivalent before development of the training device may
proceed.
(2) The DP, which documents the Military Service's training
requirement, must integrate the proposed, specific training device
hardware or software system being developed and acquired with the
training system for which it is intended.
(3) The DP shall address the following items as data become
available:
(i) Assessment of Training need and expected benefit from the
training device(s).
(ii) Description of the training device(s).
(iii) Acquisition and modification schedule.
(iv) Ability of the training devices to maintain or improve safety.
(v) Course and training estimates including projected student flows
and loads, requirements for instructors and other staff, location of
training facilities, and other training requirements.
(c) Acquisition guidelines. (1) Training device alternatives
including, but not limited to, trainers, general versus specific
devices, real equipment versus simulated equipment, and embedded
training capability should be evaluated by the Military Service
concerned. Where applicable, economic analyses of alternatives should
be conducted in accordance with the methods and assumptions in DoD
Instruction 7041.3. The evaluation of each alternative should consider
as appropriate:
(i) Life-cycle use versus costs.
(ii) Trade-off with requirements for munitions, if applicable.
(iii) Capability of the training device(s) to accommodate changes
made to the parent defense systems based on data on minimum and maximum
changes made over the life cycle of similar defense systems.
(iv) Student load and curriculum changes or field application
training changes anticipated during the life cycle.
(2) When military specification equipment is not required to meet
performance needs, commercial practices and equipment should be used to
contain initial procurement and follow-on support costs. Commercially
available training programs also deserve serious consideration.
(3) Specifications should cover training functions, performance
levels, and required proficiency.
(d) Training effectiveness evaluation guidelines. Analysis of
training capability and potential should focus on data based on actual
experience.
32 CFR 73.5 Responsibilities.
(a) The Assistant Secretary of Defense for Force Management and
Personnel (ASD(FM&P)) shall:
(1) Monitor the Military Services' compliance with this part.
(2) Designate action officers for training devices associated with
major system acquisitions' constituting major systems in themselves, and
non-system training devices meeting the documentation threshold. These
action officers shall:
(i) Monitor the status of training devices, as assigned.
(ii) Review Military Service-provided DPs.
(iii) Obtain such reports and information as may be necessary in
performing assigned functions, in accordance with DoD Directive 5000.19.
(3) Review the Military Service's Regulations, Manuals, or
Instructions implementing this part.
(4) Review the Military Service's acquisition documentation to
identify areas of potential joint applicability.
(5) Respond to Congressional inquiries on implementation of this part
and results achieved.
(6) Administer a continuing review of policy on training devices,
updating this part as necessary.
(b) The head of each DoD component shall:
(1) Ensure development of the Military Service's documents
implementing this part.
(2) Ensure that the Military Service's charters for program managers
of all major defense system acquisitions adequately address their
training device responsibilities, and that program managers are
supported by training system managers.
32 CFR 73.6 Procedures.
(a) OSD oversight for training devices that support a major system or
constitute major systems in themselves, shall be accomplished during the
system acquisition review process. Military Service-approved DPs, which
will evolve as data from detailed training analyses become available,
shall be forwarded to OSD not later than the Program Objectives
Memorandum (POM) submission in which budget year funds are requested for
manufacture of the initial or prototype device(s), but in no case before
the milestone listed in paragraph (1) or (2) of this section. Service
charges to the DP shall be submitted to OSD as changes occur.
(1) DPs for training devices integral to a major system acquisition
shall be submitted to support the Decision Coordinating Paper/Integrated
Program summary of the parent defense system by Milestone II.
(2) For training devices designated major systems acquisitions, DPs
shall be submitted with, or incorporated into, the System Concept Paper
prepared for Milestone I.
(3) For non-system training devices, DPs, shall be submitted not
later than the POM submission in which budget year funds are requested
for manufacture of the prototype or the first device.
(b) Training Effectiveness Evaluation Plan (TEEP). (1) The Training
Effectiveness Evaluation Plan shall be developed as applicable with
regard to DoD Directive 5000.3 to ensure that acquired training devices
meet the Military Service's training requirements and effectiveness
levels. The TEEP shall describe the Service's plan to accomplish
training effectiveness evaluations, to the extent the Services deem
appropriate, for training devices associated with each major defense
system acquisition, training devices constituting major systems in
themselves or non-system training devices that meet the threshold
described in 73.2 of this section.
(2) The TEEP should document the planned evaluation of the training
functions, performance levels, and proficiency requirements incorporated
in the specifications. The TEEP should be approved by the sponsoring
Service at least 6 months before the planned commencement of training
effectiveness evaluation.
(3) For training devices not meeting thresholds described in 73.2 of
this part, the Military Servcies are encouraged to prepare, approve, and
support a TEEP at least 6 months before the planned commencement of
training effectiveness evaluation.
32 CFR 73.7 Effective date and implementation.
This part is effective August 22, 1986. Forward one copy of each
implementing document to the Assistant Secretary of Defense (Force
Management and Personnel). Management reports and information specified
herein shall be submitted for training devices reaching the stated
milestones beginning with FY 87 as required by the ASD memorandum.
Requirements shall be waived on a case-by-case basis for training
devices for which this implementation date shall cause inordinate cost
of manpower expenditures.
32 CFR 73.7 PART 74 -- APPOINTMENT OF DOCTORS OF OSTEOPATHY AS MEDICAL
OFFICERS
Sec.
74.1 Purpose.
74.2 Policy.
Authority: 10 U.S.C. 3294, 5574, 8294.
Source: 25 FR 14370, Dec. 31, 1960, unless otherwise noted.
32 CFR 74.1 Purpose.
The purpose of this part is to implement the provisions of Pub. L.
763, 84th Congress (70 Stat. 608), relating to the appointment of
doctors of osteopathy as medical officers.
32 CFR 74.2 Policy.
In the interest of obtaining maximum uniformity, the following
criteria are established for the appointment of doctors of osteopathy as
medical officers:
(a) To be eligible for appointment as Medical Corps officers in the
Army and Navy or designated as medical officers in the Air Force, a
doctor of osteopathy must:
(1) Be a citizen of the United States;
(2) Be a graduate of a college of osteopathy whose graduates are
eligible for licensure to practice medicine or surgery in a majority of
the States, and be licensed to practice medicine, surgery, or osteopathy
in one of the States or Territories of the United States or in the
District of Columbia;
(3) Possess such qualifications as the Secretary concerned may
prescribe for his service, after considering the recommendations for
such appointment by the Surgeon General of the Army or the Air Force or
the Chief of the Bureau of Medicine and Surgery of the Navy;
(4) Have completed a minimum of three years college work prior to
entrance into a college of osteopathy;
(5) Have completed a four-year course with a degree of Doctor of
Osteopathy from a school of osteopathy approved by the American
Osteopathic Association; and
(6) Have had subsequent to graduation from an approved school of
osteopathy 12 months or more of intern or residency training approved by
the American Osteopathic Association.
32 CFR 74.2 PART 75 -- CONSCIENTIOUS OBJECTORS
Sec.
75.1 Purpose.
75.2 Applicability and scope.
75.3 Definitions.
75.4 Policy.
75.5 Criteria.
75.6 Procedure.
75.7 Action after decision.
75.8 Claims of erroneous induction.
75.9 Required information to be supplied by applicants for discharge
or noncombatant service.
75.10 Statement (counseling concerning Veterans Administration
benefits).
75.11 Statement (counseling concerning designation as conscientious
objector).
Authority: Sec. 552 of Title 5, United States Code.
Source: 36 FR 22231, Nov. 23, 1971, unless otherwise noted.
32 CFR 75.1 Purpose.
This part updates uniform Department of Defense procedures governing
conscientious objectors and processing requests for discharge based on
conscientious objection.
32 CFR 75.2 Applicability and scope.
The provisions of this part apply to the military departments and
govern the personnel of the Army, Navy, Air Force, and Marine Corps and
all Reserve components thereof.
32 CFR 75.3 Definitions.
(a) Conscientious objection -- General. A firm, fixed and sincere
objection to participation in war in any form or the bearing of arms, by
reason of religious training and belief.
(1) Class 1-O conscientious objector. A member, who, by reason of
conscientious objection, sincerely objects to participation of any kind
in war in any form.
(2) Class 1-A-O conscientious objector. A member who, by reason of
conscientious objection, sincerely objects to participation as a
combatant in war in any form, but whose convictions are such as to
permit military service in a noncombatant status.
Unless otherwise specified, the term ''conscientious objector''
includes both 1-O and 1-A-O conscientious objectors.
(b) Religious training and belief. Belief in an external power or
being or deeply held moral or ethical belief, to which all else is
subordinate or upon which all else is ultimately dependent, and which
has the power or force to affect moral well-being. The external power
or being need not be of an orthodox deity, but may be a sincere and
meaningful belief which occupies in the life of its possessor a place
parallel to that filled by the God of another, or, in the case of deeply
held moral or ethical beliefs, a belief held with the strength and
devotion of traditional religious conviction. The term ''religious
training and belief'' may include solely moral or ethical beliefs even
though the applicant himself may not characterize these beliefs as
''religious'' in the traditional sense, or may expressly characterize
them as not religious. The term ''religious training and belief'' does
not include a belief which rests solely upon considerations of policy,
pragmatism, expediency, or political views.
(c) Noncombatant service or noncombatant duties (1-A-O) (used
interchangeably herein). (1) Service in any unit of the Armed Forces
which is unarmed at all times.
(2) Service in the medical department of any of the Armed Forces,
wherever performed.
(3) Any other assignment the primary function of which does not
require the use of arms in combat provided that such other assignment is
acceptable to the individual concerned and does not require him to bear
arms or to be trained in their use.
(4) Service aboard an armed ship or aircraft or in a combat zone
shall not be considered to be combatant duty unless the individual
concerned is personally and directly involved in the operation of
weapons.
(d) Noncombatant training. Any training which is not concerned with
the study, use or handling of arms or weapons.
32 CFR 75.4 Policy.
(a) Administrative discharge prior to the completion of an obligated
term of service is discretionary with the military service concerned,
based on a judgment of the facts and circumstances in the case.
However, insofar as may be consistent with the effectiveness and
efficiency of the military services, a request for classification as a
conscientious objector and relief from or restriction of military duties
in consequence thereof will be approved to the extent practicable and
equitable within the following limitations:
(1) Except as provided in paragraph (a)(2) of this section, no member
of the Armed Forces who possessed conscientious objection beliefs before
entering military service is eligible for classification as a
conscientious objector if
(i) (a) Such beliefs satisfied the requirements for classification as
a conscientious objector pursuant to section 6(j) of the Universal
Military Training and Service Act, as amended (50 U.S.C. App. 456(j))
and other provisions of law, and (b) he failed to request classification
as a conscientious objector by the Selective Service System; or
(ii) (a) He requested classification as a conscientious objector
before entering military service, and (b) such request was denied on the
merits by the Selective Service System, and (c) his request for
classification as a conscientious objector is based upon essentially the
same grounds, or supported by essentially the same evidence, as the
request which was denied by the Selective Service System.
(2) Nothing contained in this part renders ineligible for
classification as a conscientious objector a member of the Armed Forces
who possessed conscientious objector beliefs before entering military
service if (i) such beliefs crystalized after receipt of an induction
notice; and (ii) he could not request classification as a conscientious
objector by the Selective Service System because of Selective Service
System regulations prohibiting the submission of such requests after
receipt of induction notice.
(b) Because of the personal and subjective nature of conscientious
objection, the existence, honesty, and sincerity of asserted
conscientious objection beliefs cannot be routinely ascertained by
applying inflexible objective standards and measurements on an
''across-the-board'' basis. Requests for discharge or assignment to
noncombatant training or service based on conscientious objection will,
therefore, be handled on an individual basis with final determination
made at the headquarters of the military service concerned in accordance
with the facts and circumstances in the particular case and the policy
and procedures set forth herein.
32 CFR 75.5 Criteria.
General. The criteria set forth herein provide policy and guidance in
considering applications for separation or for assignment to
noncombatant training and service based on conscientious objection.
(a) Consistent with the national policy to recognize the claims of
bona fide conscientious objectors in the military service, an
application for classification as a conscientious objector may be
approved (subject to the limitations of 75.4(a)) for any individual:
(1) Who is conscientiously opposed to participation in war in any
form;
(2) Whose opposition is founded on religious training and beliefs;
and
(3) Whose position is sincere and deeply held.
(b) War in any form: The clause ''war in any form'' should be
interpreted in the following manner:
(1) An individual who desires to choose the war in which he will
participate is not a conscientious objector under the law. His
objection must be to all wars rather than a specific war;
(2) A belief in a theocratic or spiritual war between the powers of
good and evil does not constitute a willingness to participate in
''war'' within the meaning of this part.
(c) Religious training and belief: (1) In order to find that an
applicant's moral and ethical beliefs are against participation in war
in any form and are held with the strength of traditional religious
convictions, the applicant must show that these moral and ethical
convictions, once acquired, have directed his life in the way
traditional religious convictions of equal strength, depth and duration
have directed the lives of those whose beliefs are clearly found in
traditional religious convictions. In other words, the belief upon
which conscientious objection is based must be the primary controlling
force in the applicant's life.
(2) A primary factor to be considered is the sincerity with which the
belief is held. Great care must be exercised in seeking to determine
whether asserted beliefs are honestly and genuinely held. Sincerity is
determined by an impartial evaluation of the applicant's thinking and
living in its totality, past and present. Care must be exercised in
determining the integrity of belief and the consistency of application.
Information presented by the claimant should be sufficient to convince
that the claimant's personal history reveals views and actions strong
enough to demonstrate that expediency or avoidance of military service
is not the basis of his claim.
(i) Therefore, in evaluating applications the conduct of applicants,
in particular their outward manifestation of the beliefs asserted, will
be carefully examined and given substantial weight.
(ii) Relevant factors that should be considered in determining an
applicant's claim of conscientious objection include: Training in the
home and church; general demeanor and pattern of conduct;
participation in religious activities; whether ethical or moral
convictions were gained through training, study, contemplation, or other
activity comparable in rigor and dedication to the processes by which
traditional religious convictions are formulated; credibility of the
applicant; and credibility of persons supporting the claim.
(iii) Particular care must be exercised not to deny the existence of
bona fide beliefs simply because those beliefs are incompatible with
one's own.
(a) Church membership or adherence to particular theological tenets
are not required to warrant separation or assignment to noncombatant
training and service for conscientious objectors.
(b) Mere affiliation with a church or other group which advocates
conscientious objection as a tenet of its creed is not necessarily
determinative of an applicant's position or belief.
(c) Conversely, affiliation with a church or group which does not
teach conscientious objection does not necessarily rule out adherence to
conscientious objection beliefs in any given case.
(d) Where an applicant is or has been a member of a church, religious
organization, or religious sect, and where his claim of conscientious
objection is related to such membership, inquiry may properly be made as
to the fact of membership, and the teaching of the church, religious
organization, or religious sect, as well as the applicant's religious
activity. However, the fact that the applicant may disagree with, or
not subscribe to, some of the tenets of his church does not necessarily
discredit his claim. The personal convictions of each individual will
be controlling so long as they derive from his moral, ethical or
religious beliefs.
(e) Moreover, an applicant who is otherwise eligible for
conscientious objector status may not be denied that status simply
because his conscientious objection influences his views concerning the
Nation's domestic or foreign policies. The task is to decide whether
the beliefs professed are sincerely held, and whether they govern the
claimant's actions in both word and deed.
(d) The burden of establishing a claim of conscientious objection as
a ground for separation or assignment to noncombatant training and
service is on the applicant. To this end, he must establish by clear
and convincing evidence: (1) That the nature or basis of his claim
comes within the definition of and criteria prescribed herein for
conscientious objection, and (2) that his belief in connection therewith
is honest, sincere and deeply held. The claimant has the burden of
determining and setting forth the exact nature of his request, i.e.,
whether for separation based on conscientious objection (1-O) or for
assignment to noncombatant training and service based on conscientious
objection (1-A-O).
(e) An applicant claiming 1-O status shall not be granted 1-A-O
status as a compromise.
(f) Persons who were classified 1-A-O by Selective Service prior to
induction shall upon induction be transferred to a training center, or
station, for recruit training, and shall be subject to noncombatant
service or training. They will be required to sign and date a statement
as set forth in the form in 75.11. Thereafter, upon completion of
recruit training, they shall be assigned to noncombatant duty. They may
be transferred to the medical corps, or a medical department or unit for
further training, provided they meet the requirements therefor. Such
persons when assigned to medical units will not be allowed to avoid the
important or hazardous duties which are part of the responsibility of
all members of the medical organization. Any person who does not meet
the requirements for this training, who fails to complete the prescribed
course of instruction, or who otherwise cannot be assigned to this duty
will be assigned to other noncombatant duties.
(g) Commanders at levels directed by the service headquarters are
authorized to return to an applicant, without action, any second or
subsequent application that is based upon essentially the same grounds,
or supported by essentially the same evidence, as a previous application
disapproved by the military service concerned.
(h) The provisions of this part will not be used to effect the
administrative separation of individuals who do not qualify as
conscientious objectors, or in lieu of administrative separation
procedures such as those provided for unsuitability or unfitness or as
otherwise set forth in Part 41 of this title. Individuals determined
not qualified for conscientious objector status, but the separation of
whom would otherwise appear to be in the best interest of the Armed
Forces, should be considered for administrative separation under the
provisions of Part 41 of this title. Under no circumstances will
administrative separation of these individuals be effected pursuant to
this part.
(i) Nothing in this part prevents the administrative elimination,
pursuant to law and regulations of the military department concerned, of
any officer whose classification as a 1-A-O conscientious objector
results in substandard performance of duty or other cause for
elimination.
32 CFR 75.6 Procedure.
(a) A member of the Armed Forces who seeks either separation or
assignment to noncombatant duties by reason of conscientious objection
will submit an application therefor. The applicant will indicate
whether he is seeking a discharge or assignment to noncombatant duties
and will include the following terms:
(1) The personal information required by 75.9.
(2) Any other items which the applicant desires to submit in support
of his case.
(b) Prior to processing the application of the individual, he will be
(1) advised of the specific provisions of section 3103 of title 38,
United States Code1027 regarding the possible effects of discharge as a
conscientious objector who refuses to perform military duty or refused
to wear the uniform or otherwise to comply with lawful orders of
competent military authority, and (2) required to execute the statement
in 75.10.
(c) The applicant shall be personally interviewed by a chaplain who
shall submit a written opinion as to the nature and basis of the
applicant's claim, and as to the applicant's sincerity and depth of
conviction. The chaplain's report shall include the reasons for his
conclusions. In addition, the applicant will be interviewed by a
psychiatrist (or by a medical officer if a psychiatrist is not
reasonably available) who shall submit a written report of psychiatric
evaluation indicating the presence or absence of any psychiatric
disorder which would warrant treatment or disposition through medical
channels, or such character or personality disorder as to warrant
recommendation for appropriate administrative action. This opinion and
report will become part of the case file. If the applicant refuses to
participate or is uncooperative or unresponsive in the course of the
interview, this fact will be included in the statement and report filed
by the chaplain and psychiatrist or medical officer.
(d) Commanders at levels directed by the Service Headquarters will
appoint an officer in the grade of O-3 or higher to investigate the
applicant's claim. The officer so appointed will not be an individual
in the chain of command of the applicant. If the applicant is a
commissioned officer, the investigating officer must be senior in both
temporary and permanent grades to the applicant.
(1) Upon appointment, the investigating officer will review the
applicable service regulations which implement this part. During the
course of his investigation, the investigating officer will obtain all
necessary legal advice from the local Staff Judge Advocate or legal
officer.
(2) The investigating officer will conduct a hearing on the
application. The purpose of the hearing is: To afford the applicant an
opportunity to present evidence he desires in support of his
application; to enable the investigating officer to ascertain and
assemble all relevant facts; to create a comprehensive record; and to
facilitate an informed recommendation by the investigating officer and
an informed decision on the merits by higher authority. In this regard,
any failure or refusal of the applicant to submit to questioning under
oath or affirmation before the investigating officer may be considered
by the officer making his recommendation and evaluation of the
applicant's claim. If the applicant fails to appear at the hearing
without good cause, the investigating officer may proceed in his absence
and the applicant will be deemed to have waived his appearance.
(i) If the applicant desires, he shall be entitled to be represented
by counsel, at his own expense, who shall be permitted to be present at
the hearings, assist the applicant in the presentation of his case, and
examine all items in the file.
(ii) The hearing will be informal in character and will not be
governed by the rules of evidence employed by courts-martial except that
all oral testimony presented shall be under oath or affirmation. Any
relevant evidence may be received. Statements obtained from persons not
present at the hearing need not be made under oath or affirmation. The
hearing is not an adversary proceeding.
(iii) The applicant may submit any additional evidence that he
desires (including sworn or unsworn statements) and present any
witnesses in his own behalf, but he shall be responsible for securing
their attendance. The installation or local commander will render all
reasonable assistance in making available military members of his
command requested by the applicant as witnesses. Further, the applicant
will be permitted to question any other witnesses who appear and to
examine all items in the file.
(iv) A verbatim record of the hearing is not required. If the
applicant desires such a record and agrees to provide it at his own
expense, he may do so. If he elects to provide such a record, he shall
make a copy thereof available to the investigating officer, at no
expense to the Government, at the conclusion of the hearing. In the
absence of a verbatim record, the investigating officer will summarize
the testimony of witnesses and permit the applicant or his counsel to
examine the summaries and note for the record their differences with the
investigating officer's summary. Copies of statements and other
documents received in evidence will be made a part of the hearing
record.
(3) At the conclusion of the investigation, the investigating officer
will prepare a written report which will contain the following:
(i) A statement as to whether the applicant appeared, whether he was
accompanied by counsel, and, if so, the latter's identity, and whether
the nature and purpose of the hearing were explained to the applicant
and understood by him.
(ii) Any documents, statements and other material received during the
investigation.
(iii) Summaries of the testimony of the witnesses presented (or a
verbatim record of the testimony if such record was made).
(iv) A statement of the investigating officer's conclusions as to the
underlying basis of the applicant's conscientious objection and the
sincerity of the applicant's beliefs, including his reasons for such
conclusions.
(v) Subject to 75.5(e), the investigating officer's recommendations
for disposition of the case, including his reasons therefor. The
actions recommended will be limited to the following:
(a) Denial of any classification as a conscientious objector; or
(b) Classification as 1-A-O conscientious objector; or
(c) Classification as 1-O conscientious objector.
(vi) The investigating officer's report, along with the individual's
application, all interviews with chaplains or doctors, evidence received
as a result of the investigating officer's hearing, and any other items
submitted by the applicant in support of his case will constitute the
record. The investigating officer's conclusions and recommended
disposition will be based on the entire record and not merely on the
evidence produced at the hearings. A copy of the record will be
furnished to the applicant at the time it is forwarded to the commander
who appointed the investigating officer, and the applicant will be
informed that he has the right to submit a rebuttal to the report within
the time prescribed by the military service concerned.
(e) The record of the case will be forwarded to the headquarters of
the officer who appointed the investigating officer where it shall be
reviewed for completeness and legal sufficiency. If necessary, the case
may be returned to the investigating office for further investigation.
When the record is complete, the authority who appointed the
investigating officer shall forward it with his personal recommendation
for disposition, and the reasons therefor, through the appropriate chain
of command to headquarters of the military service concerned.
(f) The headquarters of the military service concerned will make a
final decision based on the entire record. Any additional information
other than the official service record of the applicant considered by
the headquarters of the military service concerned which is adverse to
the applicant, and which the applicant has not had an opportunity to
comment upon or refute, will be made a part of the record and the
applicant shall be given an opportunity to comment upon or refute the
material before a final decision is made. The reasons for an adverse
decision will be made a part of the record and will be provided to the
individual.
(g) Processing of applications need not be abated by the unauthorized
absence of the applicant subsequent to the initiation of the
application, or by the institution of disciplinary action or
administrative separation proceedings against him. However, an
applicant whose request for classification as a conscientious objector
has been approved will not be discharged until all disciplinary action
has been resolved.
(h) To the extent practicable under the circumstances, during the
period applications are being processed and until a decision is made by
the headquarters of the service concerned, every effort will be made to
assign applicants to duties within the command to which they are
assigned which will conflict as little as possible with their asserted
beliefs. However, members desiring to file application who are on
orders for reassignment may be required by the military service
concerned to submit applications at their next permanent duty station.
During the period applications are being processed, applicants will be
expected to conform to the normal requirements of military service and
to perform satisfactorily such duties to which they are assigned.
Applicants may be disciplined for violations of the Uniform Code of
Military Justice while awaiting action on their applications.
027138 U.S.C. 3103 provides, in pertinent part, that the discharge of
any person on the grounds that he was a conscientious objector who
refused to perform military duty or refused to wear the uniform or
otherwise to comply with lawful orders of competent military authority,
shall bar all rights (except government insurance) of such persons under
law administered by the Veterans' Administration based upon the period
of service from which discharged or dismissed. The only exception is in
cases in which it is established, to the satisfaction of the
Administrator, that the member was insane.
32 CFR 75.7 Action after decision.
(a) Applicants requesting discharge who are determined to be 1-O
conscientious objectors by the headquarters of the service concerned
will be discharged for the convenience of the Government with entry in
personnel records and discharge papers that the reason for separation is
conscientious objection. The type of discharge issued will be governed
by the applicant's general military record and the pertinent provisions
of Part 41 of this title. The Director of the Selective Service System
will be promptly notified of the discharge of those who have served less
than one hundred and eighty (180) days in the Armed Forces. Pending
separation, the applicant will continue to be assigned duties providing
the minimum practicable conflict with his professed beliefs and will be
expected to conform to the normal requirements of military service and
to perform satisfactorily such duties to which he is assigned.
Applicants may be disciplined for violations under the Uniform Code of
Military Justice while awaiting discharge.
(b) Applicants requesting assignment to noncombatant duties who are
determined to be class 1-A-O conscientious objectors by the military
department shall be (1) assigned to noncombatant duty as defined in
75.3, or (2) discharged from military service or released from active
duty, at the discretion of the military department. Each applicant will
be required to execute the statement in 75.11.
(c) Persons who are assigned to noncombatant duties, and persons who
are assigned to normal military duties by reason of disapproval of their
applications, will be expected to conform to the normal requirements of
military service and to perform satisfactorily such duties to which they
are assigned. Violations of the Uniform Code of Military Justice by
these members will be treated as in any other situation.
32 CFR 75.8 Claims of erroneous induction.
(a) This section applies to any individual who claims that he is a
conscientious objector and was either erroneously inducted, or
erroneously assigned to combatant training or duty, for any of the
following reasons:
(1) Although determined to be a conscientious objector by a local
board or appellate agency of the Selective Service System, his records
failed to reflect classification as such.
(2) He was denied a significant procedural right in the
classification process by the Selective Service System.
(3) Despite actual classification as a conscientious objector
properly reflected in his records, he was nevertheless erroneously
inducted, or assigned to combatant training or duty.
Claims based on alleged erroneous determinations made on the merits
of the case by the Selective Service System are not covered by this
section. (See 75.4.)
(b) Claims covered by paragraph (a) of this section will be referred
to the Selective Service System without delay for investigation and
ascertainment of the facts. Communication will be transmitted to the
National Headquarters, Selective Service System, Washington, DC 20435.
(1) If the Selective Service System advises that induction was in
fact erroneous under paragraph (a)(1) or (a)(3) of this section, the
claimant will be separated or assigned to noncombatant duties depending
upon whether he was classified 1-O or 1-A-O.
(2) If the Selective Service System advises that there was in fact a
denial of a right or a significant procedural error in the evaluation of
a claim under paragraph (a)(2) of this section, the induction will be
considered erroneous and the individual discharged.
(3) If the Selective Service System advises that any claim under
paragraph (a) of this section is unfounded or makes a final
determination adverse to any claim, the claimant will be so informed and
returned to general duty.
(c) Pending investigation and resolution of all claims covered by
this section, a claimant will be assigned to duties which conflict as
little as practicable with his asserted beliefs, insofar as is
consistent with the effectiveness and efficiency of the military forces.
32 CFR 75.9 Required information to be supplied by applicants for
discharge or noncombatant service.
Each person seeking release from active service from the Armed
Forces, or assignment to noncombatant duties, as a conscientious
objector, will provide the information indicated below as the minimum
required for consideration of his request. This in no way bars the
military departments from requiring such additional information as they
desire. The individual may submit such other information as desired.
(a) General information concerning applicant. (1) Full name.
(2) Military serial number; and social security account number.
(3) Selective service number.
(4) Service address.
(5) Permanent home address.
(6) Name and address of each school and college attended (after age
16) together with the dates of attendance, and the type of school
(public, church, military, commercial, etc.).
(7) A chronological list of all occupations, positions, jobs, or
types of work, other than as a student in school or college (after age
16) whether for monetary compensation or not. Include the type of work,
name of employer, address of employer and the from/to date for each
position or job held.
(8) All former addresses (after age 16) and dates of residence at
those addresses.
(9) Parents' names and addresses. Indicate whether they are living
or deceased.
(10) The religious denomination or sect of both parents.
(11) Was application made to the Selective Service System (local
board) for classification as a conscientious objector prior to entry
into the Armed Forces? To which local board? What decision was made by
the Board, if known?
(12) When the applicant has served less than one hundred and eighty
(180) days in the military service, a statement by him as to whether he
is willing to perform work under the selective service civilian work
program for conscientious objectors, if discharged as a conscientious
objector. Also, a statement of the applicant as to whether he consents
to the issuance of an order for such work by his local Selective Service
Board.
(b) Training and belief. (1) A description of the nature of the
belief which requires the applicant to seek separation from the military
service or assignment to noncombatant training and duty for reasons of
conscience.
(2) An explanation as to how his beliefs changed or developed, to
include an explanation as to what factors (how, when and from whom or
from what source training received and belief acquired) caused the
change in or development of conscientious objection beliefs.
(3) An explanation as to when these beliefs became incompatible with
military service, and why.
(4) An explanation as to the circumstances, if any, under which the
applicant believes in the use of force, and to what extent, under any
foreseeable circumstances.
(5) An explanation as to how the applicant's daily lifestyle has
changed as a result of his beliefs and what future actions he plans to
continue to support his beliefs.
(6) An explanation as to what in applicant's opinion most
conspicuously demonstrates the consistency and depth of his beliefs
which gave rise to his claim.
(c) Participation in organizations. (1) Information as to whether
applicant has ever been a member of any military organization or
establishment before entering upon his present term of service. If so,
the name and address of such organization will be given together with
reasons why he became a member.
(2) A statement as to whether applicant is a member of a religious
sect or organization. If so, the statement will show the following:
(i) The name of the sect, and the name and location of its governing
body or head, if known.
(ii) When, where, and how the applicant became a member of said sect
or organization.
(iii) The name and location of any church, congregation or meeting
which the applicant customarily attends, and the extent of the
applicant's active participation therein.
(iv) The name, title, and present address of the pastor or leader of
such church, congregation or meeting.
(v) A description of the creed or official statements, if any, and if
they are known to him, of said religious sect or organization in
relation to participation in war.
(3) A description of applicant's relationships with and activities in
all organizations with which he is or has been affiliated, other than
military, political, or labor organizations.
(d) References. Any additional information, such as letters of
reference or official statements of organizations to which the applicant
belongs or refers in his application, that the applicant desires to be
considered by the authority reviewing his application. The burden is on
the applicant to obtain and forward such information.
32 CFR 75.10 Statement (counseling concerning Veterans Administration
benefits).
I have been advised of the provisions of 38 U.S.C. 3103 concerning
possible nonentitlement to benefits administered by the Veterans
Administration due to discharge from the military service as a
conscientious objector under certain conditions. I understand that a
discharge as a conscientious objector, who refused to perform military
duty or otherwise to comply with lawful orders of competent military
authority, shall bar all rights, based upon the period of service from
which discharged, under any laws administered by the Veterans
Administration except my legal entitlement (if any) to any war risks,
government (converted) or National Service Life Insurance.
32 CFR 75.11 Statement (counseling concerning designation as
conscientious objector).
I have been counseled concerning designation as a conscientious
objector. Based on my religious training and belief, I consider myself
to be a conscientious objector within the meaning of the statute and
regulations governing conscientious objectors and am conscientiously
opposed to participation in combatant training and service. I request
assignment to noncombatant duties for the remainder of my term of
service. I fully understand that on expiration of my current term of
service I am not eligible for voluntary enlistment, reenlistment, or
active service in the Armed Forces.
32 CFR 75.11 PART 76 -- MOBILIZATION OF THE READY RESERVE
Sec.
76.1 Reissuance and purpose.
76.2 Applicability and scope.
76.3 Definitions.
76.4 Legal authority.
76.5 Policy.
76.6 Mobilization procedures.
76.7 Responsibilities.
Authority: Sec. 280, 70A Stat. 14; 10 U.S.C. 280.
Source: 51 FR 44462, Dec. 10, 1986, unless otherwise noted.
32 CFR 76.1 Reissuance and purpose.
This part reissues 32 CFR Part 76 and establishes DoD policy for
planning and procedures for executing mobilization of the Ready Reserve,
in compliance with DoD Master Mobilization Plan (MMP), June 26, 1982.
32 CFR 76.2 Applicability and scope.
This part:
(a) Applies to the Office of the Secretary of Defense (OSD); the
Military Departments and the Coast Guard (by agreement with the
Department of Transportation) including the National Guard and Reserve
Components; the Organization of the Joint Chiefs of Staff (OJCS); and
the Defense Agencies.
(b) Applies to all mobilization of the Ready Reserve. The Ready
Reserve comprises units and individuals liable for involuntary order to
active duty under sections 672 and 673.
(c) Does not cover the ordering or calling of National Guard units or
individuals to duty while under control of State Governments.
(d) Does not cover the involuntary ordering of Coast Guard Reserve
units or individuals to active duty in response to domestic emergencies
while under the Secretary of Transportation.
32 CFR 76.3 Definitions.
Activation. Order to active duty (other than for training) in the
Federal service.
Active Guard/Reserve (AGR) Personnel. National Guard and Reserve
members on full-time duty for the purpose of organizing, administering,
recruiting, instructing, or training the National Guard and Reserve
Components and who are paid from the reserve personnel appropriations of
the Military Departments.
F-hour. The effective time of an announcement by the Secretary
concerned of a decision to mobilize reserve units.
M-day. The day on which mobilization commences or is due to commence.
Military technicians. Dual status Federal civilian employees of a
Military Department who are assigned to provide support to the National
Guard or Reserve Components and are concurrently members in the Selected
Reserve of the organization they support.
Mobilization. The process by which the Armed Forces or part of them
are brought to a state of readiness for war or other national emergency.
This includes activating all or part of the Reserve Components as well
as assembling and organizing personnel, supplies, and material.
Mobilization of the Armed Forces includes but is not limited to the
following categories.
(1) Full mobilization. Expansion of the active Armed Forces
resulting from action by Congress and the President to mobilize all
Reserve Component units in the existing approved force structure, all
individual reservists, retired military personnel, and the resources
needed for their support to meet the requirements of a war or other
national emergency involving an external threat to the national
security.
(2) Partial mobilization. Expansion of the active Armed Forces
resulting from action by Congress (up to full mobilization) or by the
President (not more than 1,000,000) to mobilize Ready Reserve Component
units, Individual Ready Reservists, and the resources needed for their
support to meet the requirements of a war or other national emergency
involving an external threat to the national security.
(3) Selective mobilization. Expansion of the active Armed Forces
resulting from action by Congress and/or the President to mobilize
Reserve Component units, Individual Ready Reservists, and the resources
needed for their support to meet the requirements of a domestic
emergency that is not the result of an enemy attack.
(4) Total mobilization. Expansion of the active Armed Forces
resulting from action by Congress and the President to organize and/or
generate additional units or personnel, beyond the existing force
structure, and the resources needed for their support, to meet the total
requirement of a war or other national emergency involving an external
threat to the national security.
Ready Reserve. Organized in units or as individuals, members of the
Ready Reserve are liable for order to active duty to augment the active
forces in time of war or national emergency. The Ready Reserve consists
of the Selected Reserve, the Individual Ready Reserve and the Inactive
National Guard.
(1) Inactive National Guard (ING). The ING consists of personnel of
the Army National Guard Ready Reserve who are in an inactive status.
The term is not applicable to the Air National Guard. ING members are
attached to National Guard units, but do not participate in training
activities. Upon mobilization, they would mobilize with their units.
To remain members of the ING, such personnel must muster once a year
with the assigned unit. In accordance with 32 CFR Part 4, ING personnel
are in reserve training category II.
(2) Individual Ready Reserve (IRR). The IRR is a manpower pool
principally consisting of individuals who have had training and have
previously served in the active forces or in the Selected Reserve. The
IRR consists of obligors and non-obligors who have fulfilled their
military service obligation. IRR members are liable for involuntary
active duty for training and fulfillment of mobilization requirements in
accordance with title 10, U.S. Code, section 673. In addition, the IRR
also includes some personnel who are participating in officer training
programs or in the Armed Forces Health Scholarship Program. All IRR
members are in an active status. In accordance with Part 4 of this
title, IRR members include reserve training categories RE, RH, RJ, and
RK.
Selected Reserve. The Selected Reserve consists of those units and
individuals within the Ready Reserve designated by their respective
services and approved by the Joint Chiefs of Staff as so essential to
initial wartime missions that they have priority over all other
reserves. The Selected Reserve consists of subcategories defined as
follows:
(1) Individual Mobilization Augmentees (IMAs). Individual members of
the Selected Reserve not assigned to a Reserve Component unit. These
reservists are trained and preassigned to an active force organization,
Selective Service, or Federal Emergency Management Agency billet that
must be filled on or shortly after mobilization. IMAs participate in
training activities on a part-time basis in preparation for
mobilization. In accordance with 32 CFR Part 4 trained individuals
include reserve training categories TB, TR, and TW.
(2) Selected Reserve units. Units manned and equipped to serve
and/or train as operational or augmentation units. Operational units
train and serve as units. Augmentation units train as a unit but lose
their unit identity when mobilized, being subsumed into an active unit
or activity. Selected Reserve units include trained unit members who
participate in unit training activities, and Full-Time Support (FTS)
personnel in the Active Guard/Reserve and Military Technicians. In
accordance with 32 CFR Part 4 members of Selected Reserve units include
reserve training categories SA, SG, SH, and ST.
(3) Training pipeline. Selected Reserve personnel who have not yet
completed initial active duty training or are awaiting initial active
duty training. In accordance with 32 CFR Part 4 those in the training
pipeline include reserve training categories UF, UP, UQ, and UX.
32 CFR 76.4 Legal authority.
Title 10 U.S. Code 672 and 673 provide authority for mobilization of
the Ready Reserve. Specific authorities are vested in the President,
Congress, the Secretary of Defense, the Secretary of Transportation, and
the Secretaries of the Military Departments. Appropriate authority must
be obtained from the President, Congress, or Secretary concerned before
mobilization actions may be started.
32 CFR 76.5 Policy.
DoD policy directs an increasing reliance on the Ready Reserve to
meet wartime requirements. In certain contingencies, plans call for the
deployment of some Selected Reserve units and individuals before active
units. The Selected Reserve, as a subset of the Ready Reserve, shall
receive priority in manning, training, and equipment programs when
Selected Reserve units and individuals deploy before active units. DoD
policy for mobilization of the Ready Reserve is organized under the
three major categories of manpower, training, and equipment.
(a) Manpower. Achieving manpower goals for both active and Reserve
Components is essential for an effective mobilization process.
Personnel shortages and military skill imbalances affect wartime
capabilities of the total force, not just the DoD Component possessing
such deficiencies. DoD manpower policy is as follows:
(1) Achieve and maintain a pretrained manpower pool adequate to staff
all shortfalls in active and Reserve Component units to wartime levels
of programmed manning within the time specified in mobilization and
deployment plans.
(2) Have members of the Individual Ready Reserve (IRR) affiliated or
preassigned with units of the active or reserve forces, when
practicable, insofar as it would enhance refresher training, rapid
deployment, and effective utilization in a war or national emergency.
(3) Achieve an annual aggregate operating strength population in the
Reserve Components that possesses skill, grade, and experience
qualifications represented in the programmed manning requirements.
(4) Program resources for maximizing the effectiveness and for
improving the management of the pretrained manpower pool, including the
IRR and the Inactive National Guard (ING).
(b) Training. Effective utilization of the total force requires the
rapid assimilation of Reserve Component units and individuals into
active service in a mobilization. This may be accomplished only if
requisite training has occurred before the event. DoD policy is as
follows:
(1) Ensure that early deploying Reserve Component units are trained
fully in their wartime taskings and are capable of attaining requisite
readiness status before the deployment time specified by contingency
plans.
(2) Ensure that Reserve Component individuals and units are trained
appropriately for augmenting active forces on mobilization.
(3) Determine IRR skill proficiency degradation and conduct skill
refresher training.
(4) Ensure that Ready Reserve training and evaluating procedures are
consistent with standards established for the active force.
(5) Ensure that training cadres are equipped and prepared for
mobilization training base programs supporting the total force after
M-Day.
(c) Equipment. Equipment compatibility among total force components
is a battlefield imperative. Active and Reserve Component units
deploying at the same time shall have equal claim on equipment
inventories; i.e., the first units scheduled to become operational in
theater shall be equipped first regardless whether active or Reserve
Component. Equipment policy applies equally to tools, technical
documentation, spares and repair parts, and all items of supply that are
prescribed for unit issue. DoD policy is to ensure the following:
(1) Procuring and distributing new and/or combat serviceable
equipment is consistent with DoD policy guidance in DoD Directive
1225.6. /1/
(2) Equipment interoperability among reserve and active units serving
together on the battlefield when interoperability of the respective
equipment is essential for effective military operations.
(3) Equipment on hand is adequate for enabling reserve units to
conduct effective training before mobilization.
(4) Plans are developed to redistribute those assets left in the
Continental United States (CONUS) by units deploying to prepositioned
stocks on mobilization, to procure and distribute sufficient assets for
not-fully-equipped units before the deployment time specified in
contingency plans.
/1/ Copies may be obtained, if needed, from the U.S. Naval
Publications and Forms Center, Attn: Code 301, 5801 Tabor Avenue,
Philadelphia, PA 19120.
32 CFR 76.6 Mobilization procedures.
(a) Planning. Use of the Ready Reserve must consider the entire
crisis spectrum. Plans for mobilizing the Ready Reserve must be
flexible, consistent, responsive, and sufficiently comprehensive for
meeting all contingencies and employment options. Mobilization plans
and procedures must:
(1) Provide for fully developed plans of Ready Reserve mobilization
including each reserve category in the Ready Reserve; i.e., Selected
Reserve, IRR, and ING.
(2) Enhance the readiness of Ready Reserve units and individuals so
they may respond rapidly and effectively.
(3) Encompass all actions necessary for warning, alerting, and
mobilizing Ready Reserve units and individuals and for bringing them
rapidly to full combat capability.
(4) Specify authorizations, responsibilities, and coordination of
decisions required for alerting, mobilizing, deploying, and employing
Ready Reserve units and individuals.
(5) Provide sufficient flexibility in the mobilization decision and
execution process for accommodating rapid changes.
(6) Include appropriate provisions for using National Guard and Ready
Reserve members on a voluntary basis during the early stages of
increasing tensions.
(7) Include appropriate provisions to facilitate employing mobilized
National Guard and other Reserve Component force in support of civil
protection where authorized by Federal Statute and directed by the
National Command Authority.
(b) Screening. 32 CFR Part 44 provides guidance on screening members
of the Ready Reserve. The screening system is a continuous peacetime
process and the primary means for ensuring that reserve members receive
fair treatment and are evaluated on their mobilization responsibilities.
The screening process shall be used to identify members not meeting
mobilization requirements and to eliminate them from the Ready Reserve
before mobilization. On mobilization, all members remaining in the
Ready Reserve shall be considered immediately available for active duty
service.
(c) Alert notification. An official action informing commands,
staffs, members of Selected Reserve units, and individual reservists
that mobilization is imminent or seems imminent. Each Military Service
shall publish procedures for alerting any or all of its Ready Reserve
and for systematically executing the mobilization order. Based on a
decision by the President and/or the Congress, the Secretary of Defense
shall direct the Military Departments to mobilize all or any specified
number of reservists (F-Hour) and shall determine the day that
mobilization is to begin (M-Day). The Secretary of Transportation shall
perform this function for the Coast Guard when the Coast Guard is not
operating as a Service in the Navy.
(d) Ordering. An official notification directing members of a
Reserve Component to report for active duty is a legal order whether
written or oral. Each Military Service shall establish procedures for
notifying Ready Reserve members by the simplest and fastest means
consistent with military and security requirements. When ordered, a
member shall report for active duty at the location and time specified
in the notification order. Under title 10, U.S. Code, section 892,
persons lawfully notified of the requirement to report for active duty
are subject to military jurisdiction from the date and time they are
required to report.
(e) Reporting. When mobilization is ordered, all members of the
Ready Reserve shall report to their respective units or initial
reporting assignment unless it is physically impossible. Members shall
be available to report for active duty in the times specified below,
unless a different reporting time is specified by the Military Service
concerned. Military Services shall develop policy and procedures to
deal with members who fail to report or fail to contact their units
within specified reporting times.
(1) Selected Reserve. Report within 24 hours of notification.
(2) Individual Ready Reserve/Inactive National Guard. Report within
5 to 15 days of notification as determined by the different Military
Service procedures.
(f) Execution of Orders. All Ready Reserve members shall be prepared
to execute mobilization orders when ordered to active duty. To ensure
reporting times are met, members shall arrange in advance the handling
of family, personal, business and other responsibilities. While
circumstances may hinder an individual from reporting as directed, no
member of the Ready Reserve shall be exempt from mobilization. Military
Services shall develop specific procedures to deal with members having
difficulty in mobilizing. Those persons having difficulty in executing
mobilization orders due to unusual circumstances shall be guided by the
following:
(1) Deferments. Members physically unable to report for active duty
or who cannot qualify for active duty service because of temporary
health disorders may be granted a deferment. This category includes
Ready Reserve members who are hospitalized, unqualified temporarily for
active duty for medical reasons, or incarcerated temporarily. When a
deferment is granted, it shall contain written authorization and shall
specify a reporting date. Members authorized a deferment shall remain
obligated to enter active duty while the mobilization order remains in
effect. Deferments shall not be authorized for civilian employment,
civilian occupation, or for exempting members from active duty. No
categories or groups shall be granted an automatic deferment except
non-prior Service members with a reporting date for initial active duty.
(2) Emergency leave. Members with temporary personal emergencies
such as death of a family member may be granted a short period of
emergency leave, but only after physically reporting for active duty and
receiving proper authorization.
(3) Separation. Continuous screening in peacetime ensures the
transfer or discharge of Ready Reserve members who may not mobilize. On
mobilization all members shall report for active duty as ordered. Once
on active duty, a member with an unexpected hardship may request
release, separation, or discharge. Services shall evaluate each request
utilizing the policies established for evaluating active duty members.
(g) Integrity of units. Title 10, U.S. Code, section 672(c) provides
that,''so far as practicable, during any expansion of the active Armed
Forces that requires that units and members of the Reserve Components be
ordered to active duty (other than for training), members of units
organized and trained to serve as units, who are ordered to that duty
without their consent, shall be so ordered with their units.'' Members
of those units may be reassigned after being ordered to active duty
(other than for training) to meet requirements of the Military Service
concerned.
(h) Extension of service. (1) Title 10 U.S. Code sections 511(a) and
511(c) provide for extending the terms of reserve enlistments or the
terms of service in Reserve Components in time of war or national
emergency declared by Congress for a maximum of 6 months after the end
of the war or emergency unless terminated sooner by the Secretary
concerned.
(2) Section 671a of title 10 U.S. Code provides that the period of
active service of a Service member is extended for the duration of any
war in which the United States is engaged and for 6 months thereafter.
(3) Section 671b of title 10 U.S. Code allows the President to
authorize the Secretary of Defense to extend maximally for 6 months the
enlistments, appointments, and periods of active duty, periods of active
duty for training, periods of obligated service or other Military
Service when Congress is not is session, with a provision for
Congressional review when reconvening.
(4) Section 673c of title 10 U.S. Code empowers the President to
suspend any law on promoting, retiring, or separating any member of the
Armed Force, whom the President finds to be essential to U.S. security.
32 CFR 76.7 Responsibilities.
(a) The Under Secretary of Defense (Policy) (USD(P)) shall provide
overall mobilization policy and planning guidance for DoD programs with
other DoD Directives.
(b) The Assistant Secretary of Defense (Reserve Affairs) (ASD(RA))
shall provide policy, programs, and guidance for the management and
mobilization of the Ready Reserve, in accordance with 32 CFR Part 379.
(c) The Assistant Secretary of Defense (Force Management and
Personnel (ASD(FM&P)) shall provide policy and planning guidance for
military and civilian defense manpower, in accordance with the DoD
Master Mobilization Plan.
(d) The Assistant Secretary of Defense (Health Affairs) (ASD(HA))
shall provide policy, programs, and guidance for the management and
mobilization of reserve health personnel and medical assets, in
coordination with ASD(RA).
(e) The Assistant Secretary of Defense (Acquisition and Logistics)
(ASD(A&L)) shall provide policy, programs, and guidance for the
management of Reserve Component logistical resources, installations, and
associated functions, in accordance with DoD Directive 5128.1. /1/
(f) The Assistant Secretary of Defense (Public Affairs) (ASD(PA))
shall ensure a free flow of news and information to the media, other
appropriate forums, and the American people, limited only by U.S.
security constraints and statutory mandates.
(g) The Assistant Secretary of Defense (Legislative Affairs)
(ASD(LA)) shall provide specific information on mobilization activities
to the jurisdictional Congressional Committee members and staff.
(h) The Joint Chiefs of Staff shall:
(1) Ensure that the Joint Deployment Agency (JDA), Military
Transportation Management Command, and other Agencies responsible for
ensuring that logistics, transportation, and other requirements for
Ready Reserve mobilization may be met promptly.
(2) Ensure that JCS-sponsored mobilization exercises include
realistic scenarios that facilitate Military Service testing and
assessing of management and mobilization of the Ready Reserve.
(i) The Secretaries of Military Departments shall:
(1) Prepare mobilization plans in accordance with this part and with
supplementary guidance issued by OJCS.
(2) Ensure that mobilization plans and procedures provide for all
exigencies so that Ready Reserve units and members execute their
responsibilities effectively and the active DoD Components support and
effectively assimilate mobilized reserve units and individuals.
(3) Conduct comprehensive assessments for ensuring that a balanced
capability exists to mobilize reserve forces. The following areas
should be in this assessment:
(i) Intra-CONUS transportation requirements.
(ii) Training base equipment, manpower, and facilities requirements.
(iii) Units training, equipping, and manning requirements.
(iv) Deficiencies in any of these areas should be identified and both
short term and long term solutions developed.
(4) Conduct periodic mobilization and readiness tests of Selected
Reserve units.
(5) Order IRR members to active duty at least 1 day each year for
annual screening.
(6) Order IRR members to active duty, as necessary, for refresher
skill proficiency training.
(j) The Commandant of the Coast Guard, with respect to the Coast
Guard when it is not operating as a Service in the Navy, shall fulfill
the same responsibilities with which the Secretaries of the Military
Departments are charged in this part, but within the policy and fiscal
parameters also established by the Secretary of Transportation.
/1/ See 376.5(c)(1).
32 CFR 76.7 PART 77 -- MORTGAGE INSURANCE FOR SERVICEMEN TO AID IN
CONSTRUCTION OR PURCHASE OF HOMES
Sec.
77.1 Purpose and applicability.
77.2 Definitions.
77.3 Policy and authorities.
77.4 Delegation of authority.
77.5 Forms.
Authority: Sec. 222, National Housing Act, as amended (12 U.S.C.
1715m).
Source: 36 FR 22741, Nov. 30, 1971, unless otherwise noted.
32 CFR 77.1 Purpose and applicability.
(a) This part provides policy guidance to the Military Departments in
implementation of section 222, National Housing Act, as amended (12
U.S.C. 1715m), and delegates authority conferred upon the Secretary of
Defense by section 222, National Housing Act, as amended (12 U.S.C.
1715m) to issue certificates of eligibility and to prescribe other
necessary instructions.
32 CFR 77.2 Definitions.
As used in this part:
(a) Eligible serviceman means a person to whom the Secretary of
Defense or his designee has issued a certificate of eligibility
indicating that such person is serving on active duty in the Armed
Forces of the United States and has so served for a period of more than
2 years and requires housing. A person ordered to active duty for
training purposes only is not an eligible serviceman.
(b) Period of ownership by serviceman as defined by the Federal
Housing Administration (FHA) means that period of eligibility during
which the Military Department concerned is required to pay the mortgage
insurance premiums to the FHA. For purposes of administration by the
Department of Defense, this period shall commence with the date the FHA
endorses a loan for mortgage insurance hereunder and shall terminate
when the Secretary of Defense or his designee furnishes the Commissioner
of the FHA with certification that the Military Service concerned will
no longer be liable for the mortgage insurance premiums by reason of the
serviceman's:
(1) Death, with no surviving widow as owner of the property;
(2) Discharge or separation from active duty (except when reenlisted
the next day);
(3) Termination of ownership of the property covered by such loan or
other termination of eligibility; or
(4) Specific request.
(c) Housing means a dwelling unit designed for a one family residence
or a one family unit in a condominium for occupancy by the serviceman as
his home.
(d) FHA means the Federal Housing Administration, Department of
Housing and Urban Development.
32 CFR 77.3 Policy and authorities.
(a) Home loans as provided in the National Housing Act, as amended,
shall be made available to eligible members of the Armed Forces.
(b) The respective Military Departments will issue a certificate of
eligibility to any member of the Armed Forces currently serving on
active duty who has more than 2 years of active service, and who
certifies that he requires housing. A further certificate may be issued
when:
(1) The period of ownership has terminated,
(2) A serviceman surrenders an expired certificate of eligibility or
(3) He certifies an unused or expired certificate has been lost or
destroyed.
(c) An eligible serviceman may be issued a certificate of eligibility
if he assumed/assumes a mortgage indebtedness (transferred from another
person) either prior or subsequent to the date of this part.
(1) However, payments for mortgage insurance premiums prior to August
1, 1968, will not be made by the Military Department concerned.
(2) Where mortgage insurance premiums are currently being paid by a
military service on a serviceman's loan, an additional certificate will
not be issued.
(d) Only one certificate of eligibility may be issued to a serviceman
under the terms of this part unless the Secretary of a Military
Department determines that due to military orders or an emergency the
denial of an additional certificate would cause hardship or an inequity
to the serviceman. Any additional certificates issued will be subject
to the provisions of paragraph (c)(2) of this section.
(e) Payments for all mortgage insurance premiums on a loan of a
deceased serviceman, who leaves a surviving widow as owner of the
property, will be made by the military department concerned for 2 years
beyond the date of the serviceman's death, or until the date the widow
disposes of the property, dies, or remarries, whichever date occurs
first.
(1) The benefit of this section shall be extended to a surviving
widow whose serviceman husband died not more than 2 years prior to
August 1, 1968, except that payments of mortgage insurance premiums
prior to August 1, 1968, in these cases will not be made by the military
department concerned.
(2) Payments for all mortgage insurance premiums on loans will be
made by a designated activity of the military departments following
receipt of vouchers forwarded directly to it by the FHA. Additionally,
a designated activity of the military departments will notify a
surviving widow of the cost of mortgage insurance premiums when payments
of the premiums are to be discontinued by the military departments.
(f) Mortgage insurance on property purchased by a serviceman
receiving a certificate of eligibility under this part will be governed
by applicable FHA regulations.
32 CFR 77.4 Delegation of authority.
The authority to issue certificates of eligibility and terminate
eligibility is hereby delegated to the Secretaries of the Army, Navy,
and Air Force for their respective Departments, subject to the
provisions of this part. The authority may be redelegated to Commanders
of echelons within each of the Military Services where personnel records
are maintained.
32 CFR 77.5 Forms.
(a) DD Form 802, Request for and Certificate of Eligibility /1/ will
be used to make a request for Certificate of Eligibility, Certification
by the Military Service, and to record the FHA action as to endorsement
or rejection.
(b) DD Form 803, Certificate of Termination /1/ will be used by the
Military Services for the purpose of notifying FHA of termination of
ownership.
/1/ Filed as part of original document. Copies are available through
administrative channels of each of the Military Services.
32 CFR 77.5 PART 78 -- VOLUNTARY STATE TAX WITHHOLDING FROM RETIRED PAY
Sec.
78.1 Purpose.
78.2 Applicability and scope.
78.3 Definitions.
78.4 Policy.
78.5 Procedures.
78.6 Responsibilities.
78.7 Standard agreement.
Authority: 10 U.S.C. 1045.
Source:50 FR 47220, Nov. 15, 1985, unless otherwise noted.
32 CFR 78.1 Purpose.
Under 10 U.S.C. 1045, this part provides implementing guidance for
voluntary State tax withholding from the retired pay of uniformed
Service members.
32 CFR 78.2 Applicability and scope.
(a) This part applies to the Office of the Secretary of Defense, the
Military Departments, the Coast Guard (under agreement with the
Department of Transportation), the Public Health Service (PHS) (under
agreement with the Department of Health and Human Services and the
National Oceanic and Atmospheric Administration (NOAA) (under agreement
with the Department of Commerce). The term ''Uniformed Services,'' as
used herein, refers to the Army, Navy, Air Force, Marine Corps, Coast
Guard, commissioned corps of the PHS, and the Commissioned corps of the
NOAA.
(b) It covers members retired from the regular and reserve components
of the Uniformed Services who are receiving retired pay.
32 CFR 78.3 Definitions.
(a) Income tax. Any form of tax under a State statute where the
collection of that tax either imposes on employers generally the duty of
withholding sums from the compensation of employees and making returns
of such sums to the State, or grants employers generally the authority
to withhold sums from the compensation of employees if any employee
voluntarily elects to have such sum withheld. And, the duty to withhold
generally is imposed, or the authority to withhold generally is granted,
with respect to the compensation of employees who are residents of such
State.
(b) Member. A person originally appointed or enlisted in, or
conscripted into, a Uniformed Service who has retired from the regular
or reserve component of the Uniformed Service concerned.
(c) Retired pay. Pay and benefits received by a member based on
conditions of the retirement law, pay grade, years of service, date of
retirement, transfer to the Fleet Reserve or Fleet Marine Corps Reserve,
or disability. It also is known as retainer pay.
(d) State. Any State, the District of Columbia, the Commonwealth of
Puerto Rico, and any territory or possession of the United States.
32 CFR 78.4 Policy.
(a) It is the policy of the Uniformed Services to accept written
requests from members for voluntary income tax withholding from retired
pay when the Department of Defense has an agreement for such withholding
with the State named in the request.
(b) The Department of Defense shall enter into an agreement for the
voluntary withholding of State income taxes from retired pay with any
State within 120 days of a request for agreement from the proper State
official. The agreement shall provide that the Uniformed Services shall
withhold State income tax from the monthly retired pay of any member who
voluntarily requests such withholding in writing.
32 CFR 78.5 Procedures.
(a) The amounts withheld during any calendar quarter shall be
retained by the Uniformed Service and disbursed to the States during the
month following that calendar quarter. Payment procedures shall
conform, to the extent practicable, to the usual fiscal practices of the
Uniformed Services.
(b) A member may request that the State designated for withholding be
changed and that the subsequent withholdings be remitted as amended. A
member may revoke his or her request for withholding at any time. Any
request for a change in the State designated or any revocation is
effective on the first day of the month after the month in which the
request or revocation is processed by the Uniformed Service concerned,
but in no event later than on the first day of the second month
beginning after the day on which the request or revocation is received
by the Uniformed Service concerned.
(c) A member may have in effect at any time only one request for
withholding under this part. A member may not have more than two such
requests in effect during any one calendar year.
(d) The agreements with States may not impose more burdensome
requirements on the United States than on employers generally or subject
the United States, or any member, to a penalty or liability because of
such agreements.
(e) The Uniformed Services shall perform the services under this part
without accepting payment from States for such services.
(f) The Uniformed Services may honor a retiree's request for refund
until a payment has been made to the State. After that, the retiree may
seek a refund of any State tax overpayment by filing the appropriate
State tax form with the State that received the voluntary withholding
payments. The Uniformed Services may honor a retiree's request for
refund until a payment has been made to the State. State refunds will
be in accordance with State income tax policy and procedures.
(g) A member may request voluntary tax withholding by writing the
retired pay office of his or her Uniformed Service. The request shall
include: The member's full name, social security number, the fixed
amount to be withheld monthly from retired pay, the State designated to
receive the withholding, and the member's current residence address.
The request shall be signed by the member, or in the case of
incompetence, his or her guardian or trustee. The amount of the request
for State tax withholding must be an even dollar amount, not less than
$10 or less than the State's minimum withholding amount, if higher. The
Uniformed Services' retired pay office addresses are given as follows:
(1) Army -- Commanding Officer, Army Finance and Accounting Center
(Dept. 90), Indianapolis, IN 46249, (800) 428-2290.
(2) Navy -- Commanding Officer, Navy Finance Center (Code 301),
Anthony J. Celebrezze Federal Building, Cleveland, OH 44199, (800)
321-1080.
(3) Air Force -- Commander, Air Force Accounting and Finance Center,
Attn: RP, Denver, CO 80279, (800) 525-0104.
(4) Marine Corps -- Commanding Officer (CPR), Marine Corps Finance
Center, Kansas City, MO 64197, (816) 926-7130.
(5) Coast Guard -- Commanding Officer (Retired), U.S. Coast Guard Pay
and Personnel Center, 444 S.E. Quincy Street, Topeka, KS 66683, (913)
295-2657.
(6) PHS -- U.S. Public Health Service, Compensation Branch, 5600
Fisher Lane, Room 4-50, Rockville, MD 20857, (800) 638-8744 (except AK &
MD), (301) 443-6132 (AK & MD).
(7) NOAA -- Commanding Officer, Navy Finance Center (Code 301),
Anthony J. Celebrezze Federal Building, Cleveland, OH 44199, (800)
321-1080.
(h) If a member's retired pay is not sufficient to satisfy a member's
request for a voluntary State tax, then the withholding will cease. A
member may initiate a new request when such member's retired pay is
restored in an amount sufficient to satisfy the withholding request.
(i) A State requesting an agreement for the voluntary withholding of
State tax from the retired pay of members of the Uniformed Services
shall indicate, in writing, its agreement to be bound by the provisions
of this part. If the State proposes an agreement that varies from the
Standard Agreement, the State shall indicate which provisions of the
Standard Agreement are not acceptable and propose substitute provisions.
The letter shall be addressed to the Assistant Secretary of Defense
(Comptroller), the Pentagon, Washington, DC 20301. To be effective, the
letter must be signed by a State official authorized to bind the State
under an agreement for tax withholding. Copies of applicable State laws
that authorize employers to withhold State income tax and authorize the
official to bind the State under an agreement for tax withholding shall
be enclosed with the letter. The letter also shall indicate the title
and address of the official whom the Uniformed Services may contact to
obtain information necessary for implementing withholding.
(j) Within 120 days of the receipt of a letter from a State, the
Assistant Secretary of Defense (Comptroller), or designee, will notify
the State, in writing, that DoD has either entered into the Standard
Agreement or that an agreement cannot be entered into with the State and
the reasons for that determination.
(50 FR 47220, Nov. 15, 1985, as amended at 50 FR 49930, Dec. 6, 1985)
32 CFR 78.6 Responsibilities.
(a) The Assistant Secretary of Defense (Comptroller) shall provide
guidance, monitor compliance with this part, and have the authority to
change or modify the procedures set forth.
(b) The Secretaries of the Military Departments and Heads of the
other Uniformed Services shall comply with this part.
32 CFR 78.7 Standard agreement.
Standard Agreement For Voluntary State Tax Withholding From The
Retired Pay Of Uniformed Service Members
This agreement, hereafter referred to as the ''Standard Agreement,''
establishes administrative procedures and assigns responsibilities for
voluntary State tax withholding from the retired pay of Uniformed
Service members consistent with section 654 of the Department of Defense
Authorization Act for Fiscal Year 1985 (Pub. L. 98-525), codified as 10
U.S.C. 1045.
The parties to this agreement are the Department of Defense on behalf
of the Uniformed Services and the State that has entered into this
agreement pursuant to 10 U.S.C. 1045.
The parties to the Standard Agreement are bound by the provisions in
Title 32, Code of Federal Regulations, part 78. The Secretary of
Defense may amend, modify, supplement, or change the procedures for
voluntary State tax withholding from retired pay of Uniformed Service
members after giving notice in the Federal Register. In the event of
any such changes, the State will be given 45 days to terminate this
agreement.
Copies of Internal Revenue Service Form W-2P, ''Statement for
Recipients of Annuities, Pensions, Retired Pay or IRA Payments,'' may be
used for reporting withheld taxes to the State. The media for reporting
(paper copy, magnetic tape, etc.) will comply with State reporting
standards that apply to employers in general.
A. This agreement shall be subject to any amendment of 10 U.S.C.
1045 and any regulations issued pursuant to such statutory change.
B. In addition to the provisions of Article III, the agreement may be
terminated by a party to the Standard Agreement by providing the other
party with written notice to that effect at least 90 days before the
proposed termination.
C. Nothing in this agreement shall be deemed to:
1. Require the collection of delinquent tax liabilities of retired
members of the Uniformed Services;
2. Consent to the application of any provision of State law that has
the effect of imposing more burdensome requirements upon the United
States than the State imposes on other employers, or subjecting the
United States or any member to any penalty or liability;
3. Consent to procedures for withholding, filing of returns, and
payment of the withheld taxes to States that do not conform to the usual
fiscal practices of the Uniformed Services;
4. Allow the Uniformed Services to accept payment from a State for
any services performed with regard to State income tax withholding from
the retired pay of Uniformed Service members.
32 CFR 78.7 PART 79 -- CONTRIBUTIONS TO STATE RETIREMENT PROGRAMS FOR
NATIONAL GUARD TECHNICIANS
Sec.
79.1 Reissuance and purpose.
79.2 Applicability and scope.
79.3 Definitions.
79.4 Policy.
79.5 Procedures.
79.6 Responsibilities.
79.7 Standards for Contribution Agreements with State Retirement
Programs for National Guard Technicians.
Authority: E.O. 10996, 5 U.S.C. 5518, 8331-8348, and 32 U.S.C. 709.
Source: 47 FR 34982, Aug. 12, 1982, unless otherwise noted.
32 CFR 79.1 Reissuance and purpose.
This part is reissued to update the policies that implement title 5
U.S.C. sections 5518 and 8331 -- 8348, E.O. 10996, and title 32 U.S.C.
709 for employer and employee contributions to state-sponsored
retirement programs for National Guard technicians who have elected
participation.
32 CFR 79.2 Applicability and scope.
(a) This part applies to the Office of the Secretary of Defense and
the Departments of the Army and the Air Force.
(b) Its provisions establish terms and conditions governing federal
and employee contributions for National Guard technicians who have
elected participation in a state-sponsored employee retirement program
not later than January 1, 1969. An eligible state employee retirement
program may extend to disability and survivor benefits.
32 CFR 79.3 Definitions.
(a) National Guard. The Army and Air National Guard of a state.
(b) State. A state or territory of the United States, including the
Commonwealth of Puerto Rico.
(c) Technician. A federal employee of the National Guard, consistent
with Title 26, U.S.C. Section 3111, exclusive of National Guard Bureau
employees.
32 CFR 79.4 Policy.
It is the policy of the Department of Defense to: (a) Negotiate
agreements with states for federal employees' contributions to a state
or state-sponsored contributory retirement program; and (b) cooperate
and process agreements with each state requesting a withholding
agreement covering technicians of the National Guard for a
state-sponsored retirement program.
32 CFR 79.5 Procedures.
(a) Section 6(a) of Pub. L. 90-486 requires technicians who elected
to continue coverage under a state retirement plan to make such an
election by January 1, 1969. If a technician filed a valid election to
remain covered by an employee retirement system sponsored by a state,
the U.S. Government may pay the amount of the employer's contribution
and withhold the employee's designated share for deposit to the state
program that becomes due for the period beginning on or after January 1,
1969.
(b) The federal share of payments, including employer's taxes imposed
by 26 U.S.C. 3111, may not exceed the amount that the employing agency
otherwise would contribute on behalf of the technician to the Civil
Service Retirement and Disability Fund under 5 U.S.C. 8334.
(c) A person covered under a state-sponsored program shall not
concurrently earn credits toward retirement or receive an annuity under
5 U.S.C. 8334.
(d) A person who retires under a state retirement program shall not
be eligible for any rights, benefits, or privileges to which retired
civilian employees of the United States may be entitled.
(e) Agreements with states shall comply with the standards contained
in 79.7.
32 CFR 79.6 Responsibilities.
(a) The Assistant Secretary of Defense (Comptroller) shall establish
policy and procedures regarding state retirement programs for National
Guard technicians and shall update agreements with authorized state
officials for the Secretary of Defense.
(b) The Secretary of the Army shall (1) implement the provisions of
this Directive; (2) coordinate actions with the Secretary of the Air
Force; and (3) designate the National Guard Bureau as the responsible
agent for maintaining existing agreements with states and for
coordinating administrative actions, to include preparing updated
agreements.
32 CFR 79.7 Standards for contribution agreements with state retirement
programs for National Guard Technicians.
Each agreement between the Secretary of Defense and the Governor, or
other authorized state official, for employer and employee contributions
to a state retirement program for National Guard technicians shall be
completed within 120 days of receipt of a state request, Provided, that
--
(a) State law provides for payment of employee contributions to a
state-sponsored employee retirement system by withholding sums from the
employee's compensation and making payment to the official designated to
receive sums withheld.
(b) The program is limited to technicians of the National Guard.
(c) Each agreement is consistent with this Directive and contains a
clause that subjects the agreement to any statutory amendments occurring
after the effective date of the agreement.
(d) The agreement shall comply with the requirements of state law
that specify who is eligible for such state-sponsored retirement
programs.
(e) The commencement date for contributions must be specified.
(f) Contribution procedures, filing requirements, and payment
instructions conform, when practicable, to the usual fiscal practices of
the Department of the Army and the Department of the Air Force.
(g) The agreement does not impose requirements on the Department of
Defense that are more burdensome than those requirements imposed on
departments, agencies, or subdivisions of the state concerned.
(h) Except to the extent that an agreement may be inconsistent with
this Directive, it shall continue in full force and effect until
amended, modified, or terminated by appropriate authority.
32 CFR 79.7 PART 80 -- CHILD DEVELOPMENT PROGRAMS
Sec.
80.1 Purpose.
80.2 Applicability.
80.3 Definitions.
80.4 Policy.
80.5 Responsibilities.
Appendix A to Part 80 -- DoD Standards for the Establishment and
Operation of Child Development Programs
Appendix B to Part 80 -- DoD Standards for the Establishment and
Operation of Family Child Care/Family Day Care Homes
Authority: 10 U.S.C. 2809 and 40 U.S.C. 490b.
Source: 54 FR 13369, Apr. 3, 1989, unless otherwise noted.
32 CFR 80.1 Purpose.
This document: (a) Establishes policies, assigns responsibilities,
and prescribes standards and operational requirements for child
development services for eligible minor children of DoD military and
civilian personnel in accordance with references in DoD Directives
1342.17, /1/ 4001.1, /2/ and 5124.2. /3/
(b) Authorizes the publication of child development service manuals
under DoD 6060.1-M, consistent with DoD 5025.1-M.
/1/ Copies may be obtained, if needed, from the U.S. Naval
Publications and Forms Center, Attn: Code 1053, 5801 Tabor Avenue,
Philadelphia, PA 19120.
/2/ See footnote 1 to 80.1(a).
/3/ See footnote 1 to 80.1(a).
32 CFR 80.2 Applicability.
This part applies to the Office of the Secretary of Defense (OSD),
the Military Departments, the Joint Chiefs of Staff, the Unified and
Specified Commands, the Defense Agencies, and the DoD Field Activities
(hereafter referred to collectively as ''DoD Components''). The term
''Military Service,'' as used herein, refers to the Army, Navy, Air
Force, Marine Corps, and the Coast Guard when it is operating as a
Service of the Navy, or when it is operating as a Service of the
Department of Transportation (DoT) by agreement with the DoT.
32 CFR 80.3 Definitions.
Certification Process. See Appendix A, section F.
Child Development Services. Child care services for DoD personnel
provided in child development centers, family child care/family day care
homes, and alternative child care options. The care provided is on a
full-day, part-day, or hourly basis. Care is designed to protect the
health and safety of children and promote their physical, social,
emotional, and intellectual development.
(a) Full-day care. This care meets the needs of parents requiring
child care services 5 hours or more per day on a regular basis.
(b) Part-day care. This care meets the needs of parents requiring
child care services on a seasonal or regularly scheduled part-day basis.
(c) Hourly care. This care meets the needs of parents requiring
short-term child care services on an intermittent basis.
(d) Alternative care. On- and off-post child care programs and
services that augment and support child development centers and family
day care/family child care home programs to increase the availability of
child care for military and civilian DoD employees. These may include,
but are not limited to, resource and referral services, parent co-ops,
off-post consortiums and interagency initiatives.
Child Development Center. An installation facility or part of a
facility used for child care.
Developmental Program. A planned program of developmentally
appropriate activities which promotes the social, emotional, physical,
and intellectual development of children in each age group. Activities
shall include child-initiated and staff-directed activities.
DoD Facilities. All or any portion of buildings occupied by DoD
personnel.
DoD Installation. A group of DoD facilities located in the same
vicinity that supports particular functions. A local geographical area
under the jurisdiction of a military commander.
Family Advocacy Program. As defined in DoD Directive 6400.1 /4/ .
Family Child Care/Family Day Care. Quarters-based child care
provided in Government quarters, owned or leased, in which care is
provided on a regular basis for compensation, usually for more than 10
hours a week, to one or more (up to six) children, including the
provider's own children under 8 years of age.
Family Child Care/Family Day Care Coordinator. The individual
responsible for administering the family day care program. This
individual shall be either the child development center director or an
employee of the child development program and shall have professional
expertise in family day care. In large family child care/family day
care programs, additional program monitors shall be supervised by the
coordinator.
Family Child Care/Family Day Care Provider. An individual who
provides care in his or her Government quarters with the approval and
certification of the Commanding Officer on a reimbursable basis and has
responsibility for planning and carrying out a program that meets the
children's needs at the various stages of development and growth.
Handicapped Person. As defined in DoD Instruction 1020.1 /5/ .
Staff-Per-Child Ratio. The number of children for whom one caregiver
or provider will be responsible. Staff-per-child ratio varies according
to different age groups (Appendices A and B).
Support Staff. Person(s) responsible for providing services that are
not directly related to caregiver services, such as, but not limited to,
janitorial, food service, clerical, and administrative duties.
/4/ See footnote 1 to 80.1(a)
/5/ See footnote 1 to 80.1(a)
32 CFR 80.4 Policy.
It is DoD policy that on military installations and in their DoD
facilities and for the benefit of military and civilian dependents:
(a) Child development services shall be provided as needed for
effective operation and for accomplishment of assigned mission and
tasks.
(b) Child development services shall promote the intellectual,
social, emotional, and physical development of children.
(c) Child development services shall be provided by competent and
trained personnel under safe and sanitary conditions.
(d) Child development services that are staffed and operated by DoD
personnel shall comply with DoD Directive 6400.1 and DoD 6060.1-M-18.
This is consistent with DoD policy to provide comprehensive and
coordinated programs to prevent child abuse and promote early
identification and intervention in case of alleged child abuse.
(e) The need for child development services for military members and
DoD civilian employees shall be determined by local needs and such
factors as:
(1) The number of military and civilian personnel needing child care
services.
(2) The need to support readiness by addressing military child care
needs during deployments, mobilization, and other missions of the
military installation.
(3) Problems in recruitment or retention of military and civilian
personnel resulting from a lack of child care services.
(4) Absenteeism or productivity problems that could be alleviated by
reliable child care services.
(5) Availability of comparable services at comparable rates in the
private sector.
(f) The primary sources for DoD-sponsored child development services
shall be child development centers and family child care/family day care
homes. Alternative child care options should be encouraged and may
include, but are not limited to, resource and referral services
regarding availability of care, before and after school programs, and
parent cooperatives.
(g) Programs and activities conducted under this Instruction shall
comply with DoD Directive 1020.1. No handicapped person who meets the
essential eligibility requirements for receiving services under DoD
Directive 1020.1 may, solely on the basis of handicap, be excluded from
participation in, be denied the benefits of, or otherwise be subjected
to, discrimination with regard to such services when such programs and
activities can reasonably accommodate the special needs of the child.
(h) Child development centers that are staffed and operated by DoD
personnel are Category B, ''Morale, Welfare, and Recreation
Activities,'' in accordance with DoD Directive 1015.6, /6/ and shall be
operated, maintained, and funded by a substantial amount of appropriated
fund support, but shall retain the ability to generate nonappropriated
fund revenues from parent user-fees. Appropriated funds shall be used
for child development center construction; renovation; meeting such
operating costs as equipment, supplies, utilities, custodial and
maintenance services, administrative and supervisory personnel;
training and travel; and other authorized uses.
(i) Under 10 U.S.C., section 2809 DoD Components may consider, apply
for, or, as appropriate, contract for the construction, management, and
operation of child development centers in response to the need for child
care facilities for personnel at DoD installations and facilities.
Appropriated fund support of such child development centers may include,
but not be limited to, provision of the building and those services
permitted under 40 U.S.C. 490b.
(j) Components, except for those in the National Capital Region
(NCR), shall be authorized, in accordance with 40 U.S.C., Section 490b,
to apply to the General Services Administration (GSA) for building space
for use in providing child care for DoD personnel when such activities
are housed in GSA facilities. The GSA is authorized, in accordance with
40 U.S.C., Section 490b, to provide space within GSA-leased or -managed
facilities for use in supporting child care operations for DoD personnel
when at least 50 percent of those receiving services are DoD personnel
or other Federal employees. Space, furnishings, and accompanying
services such as maintenance, lighting, heating, cooling, and
electricity may be made without charge to the center. Likewise, space
in DoD buildings may be made available to support child care services
under this same authority. DoD Components in the NCR shall utilize the
space acquisition procedures contained in DoD Instruction 5305.5 /7/ to
gain the assignment of space, either Government-owned and/or leased,
from the GSA.
(k) Service Secretaries, Agency Directors, or their duly delegated
representatives shall be responsible for approving and funding all child
development centers located in non-DoD-owned facilities. In such
locations, the necessary space allocations for these centers may, with
the approval of the appropriate level space manager, safety officer,
building manager, and lessor, be located within existing space
allocations. If additional leased space is necessary to accommodate
such facilities, this requirement shall be managed, processed, and
acquired in accordance with the lease acquisition procedures of the
local area.
(l) All child development services provided in GSA facilities or
DoD-leased buildings shall comply with the standards and operational
requirements prescribed in this part and, when required, with all the
applicable State and local standards and operational requirements.
(m) All child development services provided on DoD installations or
in DoD facilities receiving DoD funding or oversight shall comply with
the standards and operational requirements prescribed in Appendix A and
those of the Service with responsibility for the installation or
facility where the child care services are provided. Service military
design construction criteria or acceptable state and local standards
shall be used when child development centers are constructed under the
authority of 10 U.S.C., section 2809 or 40 U.S.C., Section 490b. Child
development centers, provided and operated by service contract under the
authority of 10 U.S.C., section 2809 or 40 U.S.C., section 490b, shall
comply with the standards and operational requirements prescribed in
this part and, when required, with all the applicable State and local
standards and operational requirements.
/6/ See footnote l to 80.1(a).
/7/ See footnote 1 to 80.1(a).
32 CFR 80.5 Responsibilities.
(a) The Assistant Secretary of Defense (Force Management and
Personnel) (ASD(FM&P)), or designee, shall prescribe policies and
guidelines for child development services on DoD installations, monitor
compliance with child development standards, and ensure that all DoD
manuals are published in accordance with this part and DoD 5025.1-M.
(b) The Heads of DoD Components, except the Joint Staff and the
Unified and Specified Commands, shall ensure that:
(1) Child development services are operated in accordance with this
part and shall periodically monitor local compliance with DoD and
Service standards and guidelines.
(2) DoD Manuals issued pursuant to this part are distributed or
otherwise made available to all child development personnel on military
installations and in DoD facilities and that these manuals are used in
the conduct of periodical regional and inter-Service workshops,
seminars, and training sessions.
32 CFR 80.5 Appendix A to Part 80 -- DoD Standards for the Establishment and Operation of Child Development Programs
32 CFR 80.5 Pt. 80, App. A
1. Capacity
a. Child development centers may be established to provide child
development and care for children 6 weeks to 12 years of age for
full-day, part-day, and hourly care. Each facility shall accommodate no
fewer than 25 children and no more than 305. Centers' programs may
provide room/space for infants, toddlers, preschool-age, and school-age
children; isolation/toilet; lobby/reception; food service/kitchen,
offices, children's toilets, staff/public toilet; laundry; janitorial
service; storage (indoor/outdoor); and mechanical/electrical.
b. Facility capacity shall be validated through a needs assessment
that includes a survey of installation population and an examination of
installation demographics, to include historical data; i.e., waiting
list, unset demand, projected installation population, alternative care
available, changes in mission, and planned requirement based on the
mobilization role of the installation.
c. There shall be 35 square feet (SF) of usable space per child in
activity rooms used for care. A minimum of 75 square feet of outdoor
play area shall be provided per child using the playground during any
period. This area shall be capable of supporting a minimum of 50
percent of the children in a center with a capacity of 100 or more
children and all the children in smaller centers.
d. Additional SF may be added to accommodate administrative
requirements for family child care/family day care, alternative care,
program oversight, and/or consolidation of installation child
development services.
2. Fire, Safety, and Health
All child development facilities must be in compliance with
applicable Service fire, safety, and health standards or when required
with all applicable State and local standards.
Each child development center shall establish a planned program of
developmentally appropriate activities that promote the intellectual,
social, emotional, and physical development of the children it serves.
The planned program shall be in writing and shall be made available to
parents. The plan shall contain a description of activities children
engage in and an explanation of how these activities meet their
developmental needs. Implementing documents shall include, but not be
limited to, requirements for equipment and supplies, staffing plans that
provide for continuity of staff, parental involvement plans, facilities,
child guidance techniques, and daily activities schedules that promote
the intellectual, social, emotional, and physical development of the
children.
1. Staff-Per-Child Ratios
a. In child development centers the number of children assigned to
each caregiver shall be limited. The following staffing requirements
apply to all child development centers:
b. Child development centers shall meet the staffing requirement for
each age group of children, except during rest time. During rest time,
the child-per-staff ratio may be doubled except for infants aged 6 weeks
to 12 months if the staff required for the above ratios are involved in
staff or program development in the building in which children are
sleeping or resting. Volunteers and student help under 18 years of age
may not be counted in determining compliance with staff-per-child
ratios.
c. Child development centers shall meet the staffing requirements for
the age of the youngest child in the group if children in the youngest
age category make up 20 percent or more of the group. If children in
the youngest age category make up less than 20 percent of the group, the
staff-per-child ratio requirement for the next higher category shall be
used. At least two caregivers must be present with each group of
children at all times. When this is not possible, due to limited room
capacity, children must be supervised through closed circuit television
or other comparable observation measures taken to ensure oversight by
more than one adult. This does not alter the required staff-per-child
ratio.
2. Group Size
a. The number of children assigned to a group shall be limited. The
following group size requirements shall be met at all times of the day,
except during arrival and departure times, rest time, and special
activities (such as field trips and playground activities).
b. For mixed age groups, a child development center shall meet the
group size requirement for the age of the youngest child in the group if
the children in the youngest age category make up 20 percent or more of
the group. If children in the youngest age category make up less than
20 percent of the group, the group size requirement for the next higher
age category shall be used. If more than one group occupies a single
room, each group must have its own clearly defined physical space.
3. Qualifications of Staff
a. Staff shall be selected on their demonstrated ability to work with
children in a group and their understanding of children's needs. All
personnel shall be screened to ensure that they are suitable to provide
services under this Instruction. Personal, professional, and
educational references for all staff members shall be checked prior to
employment. Police and other pertinent records shall be examined for
conviction of crimes reflecting upon the applicant's suitability.
b. Caregivers shall be at least 18 years of age; hold a high school
diploma or equivalent; and have the ability to speak, read, and write
English. Caregivers shall be able and willing to undergo prescribed
training. It is DoD policy that training, education, and experience
shall influence progression from entry level to positions of greater
responsibility.
c. All newly hired center directors shall have at a minimum a
baccalaureate degree from an accredited college in child development,
early childhood education, or a related field including, but not limited
to, education, social work, home economics, or psychology, or with 3
years' equivalent experience. Each Military Department shall implement
a plan for ensuring that all newly hired center directors meet the above
requirement within 2 years from the date of this Instruction. Military
Departments shall implement plans to provide training to center
directors on the unique requirements of the military environment.
4. Staff Training
a. Caregivers providing child development services in DoD-operated
child development centers shall receive training and periodic updates on
the latest child care techniques and procedures for providing safe
developmental care.
b. Each Military Department shall ensure that a training program is
developed for all center staff. The program must specify the nature and
extent of the training required for caregiving personnel and address, at
a minimum, the subjects listed below and alternatives for delivery of
the training. DoD Components shall direct center directors to encourage
regular volunteers to undergo prescribed caregiving staff training.
Each DoD Component shall biennially assess its training program to
ensure it includes:
(1) Applicable regulations
(2) Child growth and development
(3) Child care programming and activities
(4) Health practices, first aid, and cardiopulmonary resuscitation
(5) Nutrition and meal service
(6) Design and use of physical space
(7) Working with parents
(8) Safety and emergency procedures
(9) Child guidance techniques
(10) Child abuse and/or neglect prevention, detection, and reporting
c. Each caregiver shall regularly participate in specialized training
related to child care. All newly hired caregivers shall receive an
orientation covering the subjects listed in paragraph C.4.b, above,
before working with children.
d. Center directors and supervisors shall participate in training
related to the latest techniques and procedures in child care, to
include family advocacy programs and center administration/management.
Child development centers shall provide adequate and nutritious meals
that follow United States Department of Agriculture (USDA) guidelines,
prepared in a safe and sanitary manner. When cost-effective, each
military installation shall participate in the USDA child care food
program. Each Military Department must ensure that the nutritional and
health needs of children are met and that the food service program
contributes to the development of good eating habits.
1. Child development programs are Category B, ''Morale, Welfare, and
Recreation (MWR) activities,'' and, when operated and staffed by DoD
personnel, shall be constructed and funded in accordance with DoD
Directive 1015.6.
2. Fees and Charges. Quality care shall be provided in child
development centers for reasonable fees and shall be made affordable to
lower ranking personnel and hardship cases. In child development
centers that are staffed and operated by DoD personnel, fees shall not
be established to earn a profit (i.e., net income) or to provide for
capital requirements (buildings and equipment). Fees and charges shall
be set to cover nonappropriated fund operational costs. Nonappropriated
funds generated outside child development centers (e.g., military
exchange dividends or dividends from civilian recreation and/or welfare
funds) and contributions or donations from individuals or private
organizations may be used to provide supplementary funding or for
special equipment or supplies.
3. Funding of child development centers, operated in accordance with
10 U.S.C. 2809, shall be the responsibility of the installation
commander and/or the major command. The installation commander may,
subject to availability of appropriations and consistent with DoD policy
and Federal statutes and regulations, use operations and maintenance
funds for such contracts, which term may not exceed 32 years. When
computing the contract term, contracting officers should review
applicable depreciation schedules to determine the most advantageous
situation for the Government.
4. The Secretaries of the Military Departments may provide support
for child development centers for the children of civilian employees by
authorizing the allotment of space under their control in Government
buildings and may do so without charge. The support provided may
include the cost of making the space suitable for child care facilities,
including the cost of renovations, modification, or expansion of
existing Government-owned or -leased space and may include payment for
utilities and maintenance. Further, this authority extends to the
expansion of existing space in military child development centers in
Government buildings to accommodate the children of civilian employees.
Installation commanders are encouraged, within the constraints of
efficient fiscal management and appropriate utilization levels, to
provide services during inactive duty training to members of the Guard
and Reserve. Any and all lease charges or fees incurred in the
acquisition, design, and construction of child development facilities in
non-Government owned space shall be the responsibility of the requesting
DoD Component or as designated by the Secretary of Defense.
Secretaries of the Military Departments shall establish procedures
for inspection of Child Development Programs and certify compliance with
the standards established in this Instruction. Initial inspections and
certifications shall take place within 2 years of the date of this
Instruction and be repeated thereafter on a biennial basis. These
initial and subsequent biennial certifications and inspections shall be
unannounced on-site visits by higher headquarters staff. Results of
inspection and certification visits shall be forwarded within 90 days of
completion to ASD(FM&P) for review. In addition, installation
commanders shall, on an annual basis, forward a confirmation of
compliance with standards to Service Headquarters. If at any time it is
determined that a program is not in compliance with this Instruction,
the Services shall notify the ASD(FM&P) or designee and advise the
installation that it must meet the standards in the time specified by
the Service. DoD shall periodically, but at least twice annually, make
unannounced visits to selected installations to review compliance with
this part. ASD(FM&P) may use other means in addition to the procedures
in this section to monitor child development programs and ensure
compliance with standards.
Each DoD child development program shall establish an advisory group
that includes parents who have children using the program on a regular
basis. A majority of the members must be parents. One parent shall be
selected as chairperson. The center director, family advocacy program
manager, installation commander or designee, and other representatives
of installation offices may be included. The group shall act only in an
advisory capacity, providing recommendations for improving services and
operations and input on the center's operations. The group's
recommendations shall be forwarded through the program director to the
installation commander for review and disposition. Parent advisory
groups are not advisory committees under the Federal Advisory Committee
Act (reference (n)), pursuant to section 805 of the Military Family Act
of 1985, as amended, (10 U.S.C. 113 note).
32 CFR 80.5 Appendix B to Part 80 -- DoD Standards for the Establishment and Operation of Family Child Care/Family Day Care Homes
32 CFR 80.5 Pt. 80, App. B
A. DOD Components shall regulate family child care/family day care to
include, but not be limited to, the following:
1. Screening of all potential providers and their family members to
ascertain suitability for providing care. This screening shall include
at a minimum a review of mental health and criminal records and a
determination of any history of drug or alcohol abuse.
2. Training of potential providers on child development and guidance,
health and safety, nutrition, child abuse identification and reporting,
first aid, and cardiopulmonary resuscitation. Training of providers
should be updated at least annually. Training of those responsible for
program management on program administration, observation, and
interviewing of potential providers, adult education, communication,
nutrition, health and safety, and child growth and development.
3. Establishing fire, safety, structural, and other requirements for
quarters to be utilized for family child care/family day care and
procedures for unannounced and annual inspections of all approved homes.
4. Providing operational oversight of family child care/family day
care homes including conducting unannounced inspections and periodic
recertification. In order to ensure adequate supervision, the number of
homes assigned per family child care/family day care staff member may
not exceed 40. Ensuring headquarters oversight of installation family
child care/family day care programs including periodic on-site and
unannounced inspections of the conduct of the programs.
5. Requiring providers to be at least 18 years of age; have the
ability to speak, read, and write English; be physically and mentally
capable of providing care for children; and be free of communicable
diseases. Services must establish procedures for ensuring that only the
best qualified among those who meet the minimum standards are certified
as providers. Providing child care in military quarters is a privilege
which may be extended to family members of military members at the
discretion of the local commander.
6. Requiring that providers serve meals and snacks that meet the
United States Department of Agriculture Child Care Food Program
standards and facilitate their participation in food subsidy programs,
where they are available.
B. Appropriated fund support for family child care/family day care is
authorized for provider training, toys, resource library, miscellaneous
expenses, and for operational oversight provided by a coordinator or
program monitor.
32 CFR 80.5 PART 81 -- PATERNITY CLAIMS AND ADOPTION PROCEEDINGS
INVOLVING MEMBERS AND FORMER MEMBERS OF THE ARMED FORCES
Sec.
81.1 Reissuance and purpose.
81.2 Applicability.
81.3 Policy.
Authority: Sec. 301, 80 Stat. 379; (5 U.S.C. 301).
Source: 43 FR 15149, Apr. 11, 1978, unless otherwise noted.
32 CFR 81.1 Reissuance and purpose.
This part reissued DoD Directive 1344.3, ''Paternity Claims and
Adoption Proceedings Involving Members and Former Members of the Armed
Forces,'' to standardize procedures for the handling of:
(a) Paternity claims against members and former members of the Armed
Forces, and
(b) Requests from civilian courts concerning the availability of
members and former members of the Armed Forces to appear at an adoption
hearing where it is alleged that such member is the father of an
illegitimate child.
32 CFR 81.2 Applicability.
The provisions of this part apply to the Military Departments.
32 CFR 81.3 Policy.
(a) Members on active duty. (1) Allegations of paternity against
members of the Armed Forces who are on active duty will be transmitted
to the individual concerned by the appropriate military authorities.
(2) If there exists a judicial order or decree of paternity or child
support duly rendered by a United States or foreign court of competent
jurisdiction against such a member, the commanding officer in the
appropriate Military Departments will advise the member of his moral and
legal obligations as well as his legal rights in the matter. See 42
U.S.C. 659. The member will be encouraged to render the necessary
financial support to the child and take any other action considered
proper under the circumstances.
(3) Communications from a judge of a civilian court, including a
court summons or a judical order, concerning the availability of
personnel to appear at an adoption hearing, where it is alleged that an
active duty member is the father of an illegitimate child, shall receive
a reply that:
(i) Due to military requirements, the member cannot be granted leave
to attend any court hearing until (date), or
(ii) A request by the member for leave to attend an adoption court
hearing on (date), if made, would be approved, or
(iii) The member has stated in a sworn written statement (forward a
copy with response) that he is not the natural parent of the child, or
(iv) Due to the member's unavaila-bility caused by a specific reason,
a completely responsive answer cannnot be made.
(4) The member should be informed of the inquiry and the response and
urged to obtain legal assistance for guidance (including an explanation
of sections of the Soldiers' and Sailors' Civil Relief Act, 50 U.S.C.
Appendix, Section 501 et seq., if appropriate).
(b) Members not on active duty. (1) Allegations of paternity against
members of the Armed Forces who are not on active duty shall be
forwarded to the individual concerned in such manner as to ensure that
the allegations are delivered to the addressee only. Military channels
will be used when practicable.
(2) Communications from a judge of a civilian court, including a
court summons or judicial order, concerning the availability of
personnel to appear at an adoption hearing, where it is alleged that the
member not on active duty is the father of an illegitimate child shall
receive a reply that such person is not on active duty. A copy of the
communication and the reply will be forwarded to the named individual.
(3) When requested by a court, the last known address of inactive
members may be furnished under the same conditions as set forth for
former members under paragraph (c)(2) (i) and (ii) of this section.
(c) Former members. (1) In all cases of allegations of paternity
against former members of the Armed Forces or communication from a judge
of a civilian court, including a judicial summons or court order,
concerning the adoption of an illegitimate child of former members of
the Armed Forces who have been separated from the Military Services,
i.e., those members now holding no military status whatsoever, the
claimant or requester will be (i) informed of the date of discharge, and
(ii) advised that the individual concerned is no longer a member of the
Armed Forces in any capacity, and that the Military Departments assume
no responsibility for the whereabouts of individuals no longer under
their jurisdiction. The correspondence and all accompanying
documentation shall be returned to the claimant or requester.
(2) In addition, the last known address of the former member will be
furnished to the requester:
(i) If the request is supported by a certified copy of either:
(A) A judicial order or decree of paternity or support duly rendered
against a former member by a United States or foreign court of competent
jurisdiction; or
(B) A document which establishes that the former member has made an
official admission or statement acknowledging paternity or
responsibility for support of a child before a court of competent
jurisdiction, administrative or executive agency, or official authorized
to receive it; or
(C) A court summons, judicial order, or similar document of a court
within the United States in a case concerning the adoption of an
illegitimate child; wherein the former serviceman is alleged to be the
father.
(ii) If the claimant, with the corroboration of a physician's
affidavit, alleges and explains an unusual medical situation which makes
it essential to obtain information from the alleged father to protect
the physical health of either the prospective mother or the unborn
child.
32 CFR 81.3 PART 82 -- MILITARY STAND-BY AUTHORIZATION FOR COMMERCIAL
AIR TRAVEL (DD FORM 1580)
Sec.
82.1 Purpose.
82.2 Applicability.
82.3 Procedures.
Authority: 5 U.S.C. 301.
32 CFR 82.1 Purpose.
This part standardizes DD Form 1580 for issuance to active duty
members of the Armed Forces (referred to in this part as ''member'') for
the purpose of affording:
(a) The member -- proper identification as an individual who
qualifies for certain reduced fares and travel privileges prescribed in
air carrier tariffs; and
(b) The commercial air carrier concerned -- a facilitated means of
determining the leave status of the individual, and as applicable,
eligibility for priority considerations as specified in air carrier
tariffs.
(32 FR 12845, Sept. 8, 1967)
32 CFR 82.2 Applicability.
The provisions of this part apply to all component agencies of the
Department of Defense.
(31 FR 16495, Dec. 24, 1966)
32 CFR 82.3 Procedures.
(a) Issuance. DD Form 1580 will be issued to the member upon his
request, contingent upon official authorization to be absent from duty
as the result of: Leave; delay en route; pass or liberty; and
discharge. As used in this part and in air carrier tariffs, the term
''Discharged'' includes members who have been ''separated''.
(1) The certifying officer may be a commissioned officer,
noncommissioned officer, warrant officer, or civilian employee of the
Military Services who (i) may authorize official orders, passes, or
liberty, or (ii) has been delegated authority to screen orders, leave,
pass, or discharge papers to determine a member's status.
(2) Five or more certified copies of DD Form 1580 will be furnished
to the member for use as follows: One copy for the ticket issuing
agency, and one for each commercial flight on which the member intends
to travel.
(3) The issuance of DD Form 1580 will not substitute for official
authorization for the member to be absent from duty. Air carriers have
reserved the right to inspect leave, pass, or furlough papers and
identification of the member.
(b) Preparation of DD Form 1580. (1) Items 1 through 7 refer to the
member authorized to be absent from duty:
(i) Use item 4 to show the member's present duty organization and
station, or his next duty station if authorized a delay en route in
connection with a change in duty stations.
(ii) Use item 5 to show the date on which travel will actually begin.
This date will be
(a) Within 5 days prior or 5 days following the effective date on
leave orders or travel orders which authorize a delay en route or
(b) The date on which pass or liberty is granted or
(c) Date of discharge.
(iii) The period of authorization (the number of days between the
beginning date in item 5 and the ending date in item 6) will not exceed
1 day in excess of:
(a) The days of absence authorized by leave orders, a pass, or
liberty; or
(b) The travel time between duty stations plus the amount of leave
authorized for delay en route; or
(c) Six days following the date of honorable discharge.
(iv) Check item 7A if the member is authorized leave in connection
with a family emergency. If 7A is checked, the airport city and state
nearest the emergency leave destination of the member must be shown in
the space following the heading marked destination.
(v) Check item 7B if the member is authorized leave to or from an
overseas combat area, or is granted convalescent leave for injury or
illness resulting from duty in the combat area as defined in Executive
Order 11255, dated November 1, 1965.
(vi) Check item 7C in the appropriate box for any other leave
authorized by official orders not described in the preceding: For
members having a pass; for members granted liberty; and for members
who have been honorably discharged from military service.
(2) Items 8 through 12 are for the identification of the officer
making the certification (see paragraph (a)(1) of this section).
(3) Items 13 and 14 are reserved for the use of the airline
concerned, and will be left blank at the time of issue to the member.
(31 FR 16495, Dec. 24, 1966, as amended at 32 FR 12845, Sept. 8,
1967)
32 CFR 82.3 PART 85 -- HEALTH PROMOTION
Sec.
85.1 Purpose.
85.2 Applicability and scope.
85.3 Definitions.
85.4 Policy.
85.5 Responsibilities.
85.6 Procedures.
Authority: 5 U.S.C. 301.
Source: 53 FR 33123, Aug. 30, 1988, unless otherwise noted.
32 CFR 85.1 Purpose.
(a) This Part establishes a health promotion policy within the
Department of Defense to improve and maintain military readiness and the
quality of life of DoD personnel and other beneficiaries.
(b) This Part replaces 32 CFR Part 203 and establishes policy on
smoking in DoD occupied buildings and facilities.
32 CFR 85.2 Applicability and scope.
(a) This Part applies to the Office of the Secretary of Defense
(OSD), the Military Departments, and the Defense Agencies.
(b) It is directed to all military personnel and retirees, their
families, and, where specified, to civilian employees.
32 CFR 85.3 Definitions.
Health Promotion. Any combination of health education and related
organizational, social, economic or health care interventions designed
to facilitate behavioral and environmental alterations that will improve
or protect health. It includes those activities intended to support and
influence individuals in managing their own health through lifestyle
decisions and selfcare. Operationally, health promotion includes
smoking prevention and cessation, physical fitness, nutrition, stress
management, alcohol and drug abuse prevention, and early identification
of hypertension.
Lifestyle. The aggregated habits and behaviors of individuals.
Military Personnel. Includes all U.S. military personnel on active
duty, U.S. National Guard or Reserve personnel on active duty, and
Military Service Academy cadets and midshipmen.
Self-Care. Includes acceptance of responsibility for maintaining
personal health, and decisions concerning medical care that are
appropriate for the individual to make.
Target Populations. Military personnel, retirees, their families,
and civilian employees.
32 CFR 85.4 Policy.
It is DoD policy to:
(a) Encourage military personnel, retirees, their families and
civilian employees to live healthy lives through an integrated,
coordinated and comprehensive health promotion program.
(b) Foster an environment that enhances the development of healthful
lifestyles and high unit performance.
(c) Recognize the right of individuals working or visiting in DoD
occupied buildings to an environment reasonably free of contaminants.
(d) Disallow DoD Components' participation with manufacturers or
distributors of alcohol or tobacco products in promotional programs,
activities, or contests aimed primarily at DoD personnel. This does not
prevent accepting support from these manufacturers or distributors for
worthwhile programs benefiting military personnel when no advertised
cooperation between the Departmment of Defense and the manufacturer or
distributor directly or indirectly identifying an alcohol or tobacco
product with the program is required. Neither does it prevent the
participation of military personnel in programs, activities, or contests
approved by the manufacturers or distributors of such products when that
participation is incidental to general public participation.
32 CFR 85.5 Responsibilities.
(a) The Assistant Secretary of Defense (Health Affairs) (ASD(HA))
shall coordinate and monitor the DoD health promotion program in
accordance with this Part, executing this responsibility in cooperation
with the Assistant Secretary of Defense (Force Management and Personnel)
and the Assistant Secretary of Defense (Reserve Affairs). The Office of
the Assistant Secretary of Defense (Health Affairs) (ASD(HA)) shall:
(1) Establish and chair the Health Promotion Coordinating Committee
comprised of representatives of the Office of the Assistant Secretary of
Defense (Force Management and Personnel) (OASD(FM&P)), Office of the
Assistant Secretary of Defense (Acquisition and Logistics) (OASD(A&L)),
the Office of the Assistant Secretary of Defense (Reserve Affairs)
(OASD(RA)), each Military Service, and such other advisors as the
OASD(HA) considers appropriate.
(2) Facilitate exchanges of technical information and problem solving
within and among Military Services and Defense Agencies.
(3) Provide technical assistant, guidance and consultation.
(4) Coordinate health data collection efforts to ensure
standardization and facilitate joint studies across DoD components.
(5) Review dietary standards for DoD dining facilities as specified
in DoD Directive 3235.2 /1/
(b) The Assistant Secretary of Defense (Force Management and
Personnel) (ASD(FM&P)) shall, in collaboration with the ASD(HA),
coordinate and monitor relevant aspects of the health promotion program.
These include:
(1) Use of tobacco products in DoD occupied facilities.
(2) Operation of health promotion and screening programs at the
worksite and in Professional Military Education, DoD Dependents Schools,
and Section 6 schools.
(3) Dietary regulation of DoD snack concessions, and vending
machines.
(4) Reduction of stress in work setting.
(5) Designate two representatives to the Health Promotion
Coordinating Committee.
(c) The Assistant Secretary of Defense (Reserve Affairs) (OASD(RA))
shall:
(1) Coordinate and monitor relevant aspects of the health promotion
program as it pertains to National Guard and Reserve Personnel.
(2) Designate a representative to the Health Promotion Coordinating
Committee.
(d) The Secretaries of the Military Departments shall:
(1) Develop a comprehensive health promotion program plan for their
respective Service(s).
(2) Establish and operate an integrated, coordinated and
comprehensive health promotion program as prescribed by this Directive.
(3) Designate from their respective Service(s) a health promotion
coordinator who shall also serve as representative to the Health
Promotion Coordinating Committee.
(4) Evaluate the effectiveness of their respective health promotion
program(s).
(e) The Directors of Defense Agencies shall develop and implement
health promotion plans and programs for their civilian employees in
accordance with this part.
(f) The Assistant Secretary of Defense (Comptroller) (ASD(C)) shall
develop and implement a health program promotion for OSD civilian
employees.
/1/ Copies may be obtained, if needed, from the U.S. Naval
Publications and Forms Center, Attn: Code 1062, 5801 Tabor Avenue,
Philadelphia, PA 19120.
32 CFR 85.6 Procedures.
(a) Each Military Service shall establish a health promotion program
coordinator to serve as the focal point for all health promotion program
issues and to integrate the activities of the medical and personnel
departments.
(b) A Health Promotion Coordinating Committee shall be established to
enhance communication among the Military Services, recommend joint
policy and program actions, review program implementation, and recommend
methodologies and procedures for program evaluation. The Committee
shall be chaired by the Assistant Secretary of Defense (Health Affairs)
(ASD(HA)) or designee. Additional members shall include two
representatives from the Office of the Assistant Secretary of Defense
(Force Management and Personnel); one representative from the Office of
the Assistant Secretary of Defense (Reserve Affairs); one
representative from the office of the Assistant Secretary of Defense
(Acquisition & Logistics); and the health promotion coordinator from
each Military Service.
(c) Each Component shall prepare a plan for the implementation of a
comprehensive health promotion program that includes specific objectives
(planned accomplishments) with measurable action steps. The plan shall
address all of the program elements identified in the definition of
health promotion for each group in the target populations. The plan
shall consider workload, systems support, and training needs of
individuals charged with responsibility at all organizational levels.
(d) Health promotion plans and programs shall address smoking
prevention and cessation, physical fitness, nutrition, stress
management, alcohol and drug abuse, and early identification of
hypertension.
(1) Smoking prevention and cessation programs shall aim to create a
social environment that supports abstinence and discourage use of
tobacco products, create a healthy working environment, and provide
smokers with encouragement and professional assistance in quitting. In
addition to these aims, smoking prevention and cessation programs shall
include the following elements.
(i) Smoking shall be permitted in buildings only to the extent that
it does not endanger the life or property, or risk impairing nonsmokers'
health.
(ii) The smoking of tobacco products within DoD occupied space shall
be controlled in accordance with the following guidelines:
(A) Smoking shall be prohibited in auditoriums, conference rooms and
classrooms. No Smoking signs shall be prominently displayed, and
ashtrays shall not be permitted. Receptacles may be placed at entrances
so that visitors may dispose of lighted smoking material when entering a
nonsmoking area.
(B) Nonsmoking areas shall be designated and posted in all eating
facilities in DoD occupied buildings. Smoking areas shall be permitted
only if adequate space is available for nonsmoking patrons and
ventilation is adequate to provide them a healthy environment.
(C) Elevators shall be designated as nonsmoking areas.
(D) Smoking shall be prohibited in official buses and vans.
(E) Within the confines of medical treatment facilities, smoking
shall be restricted to private offices and specially designated areas.
Smoking by patients shall be limited to specially designated areas, and
health care providers shall not smoke in the presence of patients while
performing their duties. Smoking is permitted in visitor waiting areas
only where space and ventilation capacities permit division into smoking
and nonsmoking sections.
(F) Smoking shall not be permitted in common work areas shared by
smokers and nonsmokers unless adequate space is available for nonsmokers
and ventilation is adequate to provide them a healthy environment.
Where feasible, smoking preference should be considered when planning
individual work stations so that smoking and nonsmoking areas may be
established.
(G) When individual living quarters are not available and two or more
individuals are assigned to one room, smoking and nonsmoking preferences
shall be considered in the assignment of rooms.
(H) Smoking by students attending DoD Dependents Schools or Section 6
schools shall not be permitted on school grounds except as provided by
policy regulations promulgated by the Director, DoDDS. Faculty and
staff shall smoke only in specifically designated areas and shall not
smoke in the presence of students.
(iii) Installations shall assess the current resources, referral
mechanisms, and need for additional smoking cessation programs.
Occupational health clinics shall consider the feasibility of smoking
cessation programs for civilian employees or, at a minimum, be able to
refer employees to such programs. While smoking cessation should be
encouraged, care shall be taken to avoid coercion or pressure on
employees to enter smoking cessation programs against their will.
Smoking prevention programs shall be made available in DoD Dependents
Schools and Section 6 schools.
(iv) Information on the health consequences of smoking shall be
incorporated with the information on alcohol and drug abuse provided to
military personnel at initial entry and at permanent change of station
as specified in 32 CFR Part 62a. At initial entry, nonsmokers shall be
encouraged to refrain from smoking. Smokers shall be encouraged to quit
and be offered assistance in quitting.
(v) As part of routine physical and dental examinations and at other
appropriate times, health care providers should be encouraged to inquire
about the patient's tobacco use, including use of smokeless tobacco
products; to advise him or her of the risks associated with use, the
health benefits of abstinence, and of where to obtain help to quit.
(vi) Appropriate DoD health care providers should advise all pregnant
smokers of the risks to the fetus.
(vii) The Military Services shall conduct public education programs
appropriate to various target audiences on the negative health
consequences of smoking.
(2) Physical fitness programs shall aim to encourage and assist all
target populations to establish and maintain the physical stamina and
cardiorespiratory endurance necessary for better health and a more
productive lifestyle. In addition to the provisions of DoD Directive
1308.1 /2/ and Secretary of Defense Memorandum physical fitness programs
shall include the following elements.
(i) Health professionals shall consider exercise programs conducive
to improved health, and encourage appropriate use by patients. For
military personnel, recommendations shall accord with military readiness
requirements.
(ii) Commanders and managers should assess the availability of
fitness programs at or near work sites and should consider integrating
fitness regimens into normal work routines for military personnel as
operational commitments allow.
(iii) The chain of command should encourage and support community
activities that develop and promote fitness among all target
populations. Activities should be designed to encourage the active
participation of many people rather than competition among a highly
motivated few.
(3) Nutrition programs shall aim to encourage and assist all target
populations to establish and maintain dietary habits contributing to
good health, disease prevention, and weight control. Weight control
involves both nutrition and exercise, and is addressed in part in DoD
Directive 1308.1. Nutrition programs include efforts not only to help
individuals develop appropriate dietary habits, but also to modify the
environment so that it encourages and supports appropriate habits.
Additionally, nutrition programs shall include the following elements.
(i) Nutritional advice and assistance shall be provided by
appropriate DoD health care professionals to military personnel,
retirees, and family members.
(ii) In military and civilian dining facilities, where feasible,
calorie information and meals with reduced amounts of fat, salt, and
calories shall be made readily available.
(iii) Snack concessions and vending machines, when feasible, shall
offer nutritious alternatives, such as fresh fruit, fruit juices, and
whole grain products.
(iv) Public information campaigns shall be conducted by the Military
Services to alert all target populations about the relationship between
diet and risk of chronic diseases.
(4) Stress management programs shall aim to reduce environmental
stressors and help target populations cope with stress. Additionally,
stress management programs shall include the following elements.
(i) Commanders should develop leadership practices, work policies and
procedures, and physical settings that promote productivity and health
for military personnel and civilian employees.
(ii) Health and fitness professionals are encouraged to advise target
groups on scientifically supported stress management techniques.
(iii) The topic of stress management should be considered for
integration into the curricula at appropriate Professional Military
Education programs and in the DoD Dependents Schools and Section 6
schools to familiarize students with scientifically supported concepts
of stress management for day-to-day problems, life transitions, and life
crises.
(5) Alcohol and drug abuse prevention programs shall aim to prevent
the misuse of alcohol and other drugs, eliminate the illegal use of such
substances, and provide counseling or rehabilitation to abusers who
desire assistance in accordance with the provisions of 32 CFR Parts 62a
and 62 and DoD Instruction 1010.6 /3/ Additionally, alcohol and drug
abuse prevention programs shall include the following elements.
(i) Appropriate DoD health care professionals shall advise all
pregnant patients and patients contemplating pregnancy about the risks
associated with the use of alcohol and other drugs during pregnancy.
(ii) The Military Services shall conduct public education programs
appropriate to various target audiences. Programs should include such
topics as alcohol and drug use and pregnancy, driving while intoxicated,
and adolescent alcohol and drug abuse.
(6) Hypertension prevention programs shall aim to identify
hypertension early, provide information regarding control and lifestyle
factors, and provide treatment referral where indicated. Early
identification of hypertension programs shall include the following
elements.
(i) Hypertension screening shall be provided as part of all medical
examinations and the annual dental examination for active duty service
members. Screening shall also be provided to other beneficiaries,
excluding those in the Children's Preventive Dentistry Program, at the
time of their original request for care. Patients with abnormal
screening results shall receive appropriate medical referrals.
(ii) Each DoD medical facility should periodically offer mass
hypertension screening to encourage beneficiaries to monitor their blood
pressure regularly.
(iii) Occupational health clinics shall make hypertension screening
readily available to civilian employees, and shall encourage employees
to use this service.
(iv) Public information campaigns emphasizing the dangers of
hypertension and the importance of periodic hypertension screening and
dietary regulation shall be conducted.
/2/ See footnote 1 to 85.5(a)(5).
/3/ See footnote 1 to 85.5(a)(5).
32 CFR 85.6 PART 89 -- CIVILIAN PAY ALLOTMENTS
Sec.
89.1 Reissuance and purpose.
89.2 Applicability and scope.
89.3 Definitions.
89.4 Criteria and standards.
Enclosure 1
Authority: 5 U.S.C. 5525.
Source: 44 FR 24548, Apr. 26, 1979, unless otherwise noted.
32 CFR 89.1 Reissuance and purpose.
This part updates the uniform policies established in implementation
of Office of Personnel Management (OPM) Regulation, ''Allotments and
Assignments from Federal Employees (5 CFR 550.301) and Treasury Fiscal
Requirements Manual for Guidance of Departments and Agencies (Volume 1,
Part 3, ''Payrolls, Deductions and Withholdings'') and to provide for
allotments to professional and other organizations as authorized by
Federal Personnel Manual (Chapter 252, Professional and other
Associations).
32 CFR 89.2 Applicability and scope.
The provisions of this part apply to the Office of the Secretary of
Defense, the Military Departments, and the Defense Agencies and govern
the policy under which civilian employees may make allotments of their
pay.
32 CFR 89.3 Definitions.
Selected Terms used are defined below:
(a) Allotment. A recurring, specified deduction from pay authorized
by a civilian employee to be paid to an allottee.
(b) Allottee. The person or institution to whom an allotment is made
payable.
(c) Allotter. The employee from whose civilian pay the allotment is
made.
(d) Pay. The net pay due an employee after all deductions authorized
by law (such as retirement, social security, Federal and State
withholding tax, health benefits, and group life insurance) have been
made.
(e) Continental United States. The several States and the District
of Columbia, but excluding Alaska and Hawaii.
32 CFR 89.4 Criteria and standards.
(a) Authorized allotments. Allotments may be made for the following
purposes:
(1) Support of relatives or dependents of the allotter.
(2) Savings.
(i) Unrestricted as to allottee. Two such allotments may be
authorized an eligible employee at any one time. The eligibility
criteria are specified in paragraph (b)(1) of this section.
(ii) Allotted to a financial organization for credit to a savings
account of the allotter as authorized by the Treasury Fiscal
Requirements Manual. Only two such allotments, in whole dollars, under
this provision shall be allowed an eligible employee. Eligibility
criteria are specified in paragraph (b)(2) of this section. Monies thus
credited to the allotter's savings account may be used for any purpose
in accordance with the desires and direction of the allotter as long as
that purpose does not circumvent any statute, executive order or other
applicable regulation.
(3) Payment of commercial insurance premiums on the life of the
allotter.
(4) Payments of U.S. Government Life Insurance or National Service
Life Insurance premiums.
(5) Voluntary liquidation of indebtedness to the U.S. Government.
(6) Repayment of loans obtained for the purchase of a home.
(7) Payment of certain State and District of Columbia income taxes as
authorized by OPM Regulation and the Treasury Fiscal Requirements
Manual.
(8) Payment of certain city income taxes as authorized by OPM
Regulation and the Treasury Fiscal Requirements Manual.
(9) Payment of labor organization dues as authorized by DoD Directive
1426.1, /1/ ''Labor-Management Relations in the Department of Defense''.
(10) Charitable contributions to a Combined Federal Campaign as
authorized by DoD Directive 5035.1, /1/ ''Fund-Raising within the
Department of Defense'' and DoD Instruction 5035.5, /1/ ''DoD Combined
Federal Campaign -- Overseas Area (CFC-OA)''.
(11) Purchase of U.S. savings bonds. Employees normally will be
permitted only two such allotments at any one time. Additional
allotments for amounts of $18.75 or more in approved increments may be
authorized to the extent the pay system can accommodate such allotments.
(12) Payment of dues to a professional or other association. One
allotment in a calendar year may be made by an employee to an
association when the association:
(i) Provides some worthwhile function or service that would
contribute to the agency's mission and programs or to the morale and
welfare of the agency's employees. (See also DoD Instruction 5010.30,1
''Intramanagement Communication and Consultation''.)
(ii) Has a sufficient number of members who request dues withholding
to justify the administrative arrangements required; that is, a minimum
of either 50 participants, or 1 percent of the total number, paid by the
payroll office. This criterion may be waived by the Assistant Secretary
of Defense (Manpower, Reserve Affairs, and Logistics) for associations
of supervisors when circumstances warrant.
(iii) Is not a labor organization eligible for recognition under DoD
Directive 1426.1 /1/ does not have the characteristics or purposes of a
labor organization, and is not affiliated with a labor organization or
federation of labor organizations.
(iv) Is a lawful nonprofit organization. The organization's
constitution and bylaws must indicate that the organization subscribes
to certain minimum standards of fiscal responsibility and that it
employs democratic principles in the nomination and election of
officers.
(v) Does not discriminate in regard to the terms or conditions of
membership because of race, color, creed, sex, age, or national origin.
(vi) Does not advocate and has not assisted or participated in a
strike, work stoppage, or slowdown against the Government of the United
States or any agency thereof, nor does it impose a duty or obligation on
its members to conduct, assist, or participate in such a strike.
(vii) Does not advocate the overthrow of the constitutional form of
Government in the United States.
(viii) Agrees to reimburse the United States for the full cost of
establishing the allotment and making payment to the organization. Such
costs will not be passed on to the employee by any special charge or
assessment in excess of that paid by other members. This reimbursement
may be waived, in whole or in part, by the ASD (MRA&L) for associations
of supervisors when warranted.
(ix) Meets any additional criteria imposed by the Military
Departments or Defense Agencies, or by the individual payroll offices.
(b) Eligibility rules. Eligibility for the making of an allotment is
dependent on such factors as residents of employee, place of employment
and type of allotment desired. The specific rules listed below are
summarized in the table ''Allotments of Pay,'' enclosure 1. The table
is in general terms and is for general guidance only. The specific
rules are listed below:
(1) An employee may make an allotment of pay as provided in
paragraphs (a) (1), (2)(i), (3) through (6), (11), and (12) of this
section when the employee is:
(i) Assigned to a post of duty outside the continental United States;
(ii) Working on an assignment away from his regular post of duty when
the assignment is expected to continue for 3 months or more;
(iii) Serving as an officer or member of a crew of a vessel under the
control of the Federal Government.
(2) An employee whose place of employment is within the continental
United States may authorize an allotment of pay as provided in paragraph
(a) (2)(ii) and (5), (11), and (12) of this section.
(3) An employee, who is employed outside of, but is a resident in, a
State or the District of Columbia with which the Department of the
Treasury has entered into an agreement to withhold income taxes from the
pay of employees in accordance with the procedures prescribed in the
Treasury Fiscal Requirements Manual, may make an allotment of pay for
the purpose specified in paragraph (a)(7).
(4) An employee, who is employed in, or a resident of, a city with
which the Department of the Treasury has entered into an agreement to
withhold city income taxes in accordance with the procedures prescribed
in the Treasury Fiscal Requirements Manual, may make an allotment of pay
for the purpose specified in paragraph (a)(8).
(5) An employee who meets the eligibility requirements prescribed in
DoD Directive 1426.1, /1/ may make an allotment of pay for the purpose
specified in paragraph (a)(9) of this section.
(6) An employee who meets the eligibility requirements prescribed in
DoD Directive 5035.11 may make an allotment of pay for the purpose
specified in 89.4(a)(10).
(c) Emergency allotments. Allotments may be authorized to become
effective during an emergency evacuation in accordance with provisions
of the OPM Regulation, such allotments will not become effective until
an evacuation order has been issued.
(d) Allotments for foreign nationals. Foreign nationals employed by
the Department of Defense (DoD) and working outside their own country on
assignments of three or more months duration may be permitted to make
allotments for any of the purposes authorized in paragraph (a) of this
section, providing all other provisions of this part are observed.
(1) Foreign nationals employed by the DoD to work in their own
countries or in the Canal Zone may be permitted to make allotments for
the purposes shown in paragraph (a) (9) and (10) of this section, and to
pay premiums on group health benefits and group life insurance.
(2) Foreign nationals may be permitted to make other allotments from
pay when such allotments are based on local customs and practices or are
pursuant to treaties or country-to-country agreements.
(e) Allotment limitations. (1) A power of attorney will not be
accepted to establish, change, or discontinue an allotment.
(2) Allotment payments shall be made in accordance with the schedule
established by the particular department or agency of the DoD, provided
such allotment checks are not issued until the related earnings have
accrued. This shall be stipulated as a requirement for the allotment.
(3) Except as provided by paragraph (a)(2) and (11), a DoD employee
shall not have more than one allotment payable to the same allottee at
the same time.
(4) Allotments will not exceed the pay due the allotter.
(f) Discontinuance of allotments. Allotments will be discontinued:
(1) Upon receipt of: (i) Notice of retirement, separation, or death
of the allotter;
(ii) Notice that the allotter has been placed in an extended leave
without pay status;
(iii) Written notice from the allotter unless this right is otherwise
restricted by law;
(iv) Notice of death of the allottee; or
(v) Notice that the whereabouts of the allottee is unknown.
(2) When the conditions under which an allotment was permitted no
longer exist.
/1/ Copies may be obtained, if needed, from the U.S. Naval
Publications and Forms Center, 5801 Tabor Avenue, Philadelphia, PA.
19120. Attention: Code: 301.
1See footnote 1 to this section.
32 CFR 89.4 PART 90 -- COLLECTION OF INDEBTEDNESS DUE THE UNITED STATES
Sec.
90.1 Purpose.
90.2 Applicability and scope.
90.3 Definitions.
90.4 Policy.
90.5 Responsibilities.
90.6 Procedures.
Authority: 5 U.S.C. 5514.
Source: 50 FR 15735, Apr. 22, 1985, unless otherwise noted.
32 CFR 90.1 Purpose.
Under the provisions of DoD Directive 7045.13 this part provides
policy, prescribes procedures, and establishes responsibilities with
respect to collection of debts due the Department of Defense (DoD) and
debts due to other Federal departments and agencies that may be referred
to DoD for collection. It provides for the implementation of the salary
offset provisions of the title 5 U.S.C. 5514, the administrative offset
provisions of title 31, U.S.C. 3711 and 3716-3718 and the provisions of
The Federal Claims Collection Standards (FCCS).
32 CFR 90.2 Applicability and scope.
(a) This part applies to the Office of the Secretary of Defense, the
Military Departments, the Organization of the Joint Chiefs of Staff, and
the Defense Agencies (hereafter referred to collectively as ''DoD
Components'').
(b) It includes all civil and military functions under the direct
supervision of a DoD Component.
(c) It applies to personnel rather than contract debts. Guidance
regarding contract debts is contained in the Federal Acquisition
Regulations.
32 CFR 90.3 Definitions
In addition to the definitions below, other definitions, concepts,
and terminology used herein may be found in the FCCS.
(a) Administrative offset. The withholding of money payable by the
U.S, Government to, or held by the United States for, a person to
satisfy a debt the person owes the U.S. Government.
(b) Creditor component means the agency or DoD Component to which the
debt is owed.
(c) Debt. An amount of money or property owed to the United States
from any person, organization, or entity, except those owned by another
Federal agency. Fines and forfeitures arising under the Uniform Code of
Military Justice are not included in the definition of debt for the
purpose of this instruction. Debts due a nonappropriated fund
instrumentality are not debts due the United States except where
specifically indicated in this instruction.
(d) Delinquent debt. A debt that has not been paid by the date
specified in the DoD Component's initial written notification or as
specified in 4 CFR 101.2(b).
(e) Disposable pay. That part of current basic pay, special pay,
incentive pay, retired pay, retainer pay, or in the case of an employee
not entitled to basic pay, other authorized payments remaining after the
deduction of any amount required by law to be withheld. It is the
amount of pay remaining after the deduction of amounts which:
(1) Are required by law to be deducted from the remuneration or other
payment involved, including, but not limited to:
(i) Amounts withheld from benefits payable under Title II of the
Social Security Act where the withholding is required by law;
(ii) Federal employment taxes;
(iii) Amounts mandatorily withheld for the U.S. Soldiers' and
Airmen's Home; and
(iv) Fines and forfeitures ordered by a court-martial or by a
commanding officer;
(2) Are properly withheld for Federal, State, or local income tax
purposes, if the withholding of the amounts is authorized or required by
law and if amounts withheld are not greater than would be the case if
the individual claimed all dependents to which he/she were entitled.
Under the provisions of 26 U.S.C. 3402(i)(2), additional amounts
withheld pursuant to 26 U.S.C. 3402(i) are considered to be amounts
required by law to be withheld for all purposes.
(3) Are deducted as health insurance premiums, including, but not
limited to, amounts deducted from civil service annuities for Medicare
where such deductions are requested by the Health Care Financing
Administration;
(4) Are deducted as normal retirement contributions, not including
amounts deducted for supplementary coverage. Amounts withheld as
Survivor Benefit Plan, or Retired Servicemen's Family Protection Plan
payments are considered to be normal retirement contributions. Amounts
voluntarily contributed toward additional civil service annuity benefits
are considered to be supplementary; and
(5) Are deducted as normal life insurance premiums from salary or
other remuneration for employment, not including amounts deducted for
supplementary coverage. Both Serviceman's Group Life Insurance and
Basic Life Federal Employees' Group Life Insurance premiums are
considered to be normal life insurance premiums; all optional Federal
Employees' Group Life Insurance premiums and life insurance premiums
paid for by allotment, such as National Service Life Insurance, are
considered to be supplementary.
(f) Employee. A current or retired civilian employee paid from
appropriated funds; a member of the Armed Forces including members of
the Reserve Components of the United States and retirees; an employee
of the U.S. Postal Service or a member of the Postal Rate Commission.
(g) Out of service debtor. A former civilian employee or member of
the Armed forces who no longer receives any compensation from the
Federal Government.
(h) Pay. Basic pay, special pay, incentive pay, retired pay,
retainer pay, or, in case of employees not entitled to basic pay, other
authorized payments. Allowance are not ''pay.''
(i) Pay period in the Department of Defense. Normally biweekly for
civilians; monthly for active duty military and all retirees;
periodically, based on completion of inactive duty for training or
active duty for training for reserve personnel and weekly for piecework
employees at the Defense Personnel Support Center's clothing factory.
(j) Paying agency means the agency or DoD Component employing the
individual and authorizing the payment of his or her current pay.
(k) Salary offset. The collection of a debt due the government by
lump sum or installment deduction from the pay account of an employee.
(50 FR 15735, Apr. 22, 1985, as amended at 51 FR 28092, Aug. 5, 1986)
32 CFR 90.4 Policy.
It is DoD policy that each DoD Component shall manage credit properly
and pursue vigorously timely and economical debt collection. Credit
management and debt collection programs shall be established to comply
with collection standards provided in title 5 U.S.C. 5514; title 31
U.S.C. 3711 and 3716-3718; FCCS, Chapter 11; Federal Acquisition
Regulations; title 5 U.S.C. 5705; title 10 U.S.C. 2775; title 37
U.S.C. 1007; title 28 U.S.C. 2415; title 10 U.S.C. 6161; title 5
U.S.C. 5584; title 10 U.S.C. 2774; title 32 U.S.C. 716; DoD
5400.11-R; title 15 U.S.C. 1682; and Office of Management and Budget
(OMB) Bulletin No. 83-21. It is the policy of the Department of Defense
that when specific statutory authority exists authorizing the collection
of indebtedness, the provisions of that statute and its implementing
regulations shall be used in determining the standards to be applied in
collecting the indebtedness. When neither the specific statute nor its
implementing regulations establish such standards, then the general
collection authority of either section 5514 of title 5 U.S. Code or
section 3716 of title 31 U.S. Code as appropriate, shall be used to
collect indebtedness.
32 CFR 90.5 Responsibilities.
(a) The Assistant Secretary of Defense (Comptroller) (ASD(C)) under
DoD Directive 7045.13 and DoD Directive 5118.3 shall oversee the
administration of the debt collection and credit management program in
the Department of Defense.
(b) The Head of DoD Components shall:
(1) Develop and implement procedures to comply with this part and the
GAO Federal Claims Collection Standards (FFCS).
(2) Carry out involuntary salary and administrative offsets and
transfer resultant funds to appropriate Federal agencies, as required.
(3) Report to the Defense Manpower Data Center (DMDC) (which operates
under the policy guidance of the Assistant Secretary of Defense
(Manpower, Installations, and Logistics) (ASD(MI&L)) activities on
internal matching and salary and administrative offsets for other
Federal agencies.
(4) Participate in the internal DoD data exchange program for
delinquent debtors. The National Security Agency (NSA) will work with
the DMDC but accomplish matches at the NSA Fort Meade Complex.
(c) The Director, Defense Logistics Agency (DLA), through the DMDC,
shall coordinate the data exchange, salary and administrative offset
programs for debt collection, that shall include:
(1) Conducting computer matching programs within the Department of
Defense and with other Federal agencies for the purpose of identifying
current or former employees in default or in debt either to DoD
Components or other Federal agencies.
(2) Ensuring that Federal agencies requesting salary and
administrative offsets of DoD employees include certification of due
process with their requests.
(3) Providing appropriate offices within DoD Components with requests
for offsets that have been certified by other Federal agencies.
(4) Ensuring that appropriate steps are taken to safeguard all
information and systems of records within DLA's authority as required by
the Privacy Act, such as notification in the Federal Register, or the
preparation and submission of any required reports, or both.
(5) Providing necessary guidance to DoD Components on reporting
formats and data elements to be considered to ensure uniformity.
(6) Identifying all Federal agencies involved in performing the
matches and the roles to be performed by each agency.
(7) Providing periodic progress and summary reports to the ASD(C),
the ASD(MI&L), and other DoD Components on activities under the Debt
Collection Act such as the number of employees entering into voluntary
repayments as a result of DoD efforts and assistance to other Federal
agencies, amounts withheld involuntarily from DoD employees, and the
amounts recovered by DoD Components.
32 CFR 90.6 Procedures.
(a) All DoD Components shall follow the procedures prescribed in
Enclosure 1 and the standards prescribed by DoD Directive 7045.13, Title
5, U.S.C. 5514, Title 31, U.S.C. 3711 and 3716-3718, and FCCS.
(b) Claims based in whole or in part on conduct in which there is any
indication of fraud, a false claim or misrepresentation shall be
referred to the Department of Justice in accordance with 4 CFR 101.3(a).
(c) Referrals to the Department of Justice will be accomplished
through each DoD Component's centralized point for coordination of
criminal, civil, and adminstrative remedies.
A. The following statutes provide authority for the Collection of
indebtedness:
1. The statutes providing specific authority include, but are not
limited to:
a. 5 U.S.C. 5705, Advancements and deductions.
b. 10 U.S.C. 2775, Liability of Member for Damages to Family Housing,
Equipment, and Furnishings.
c. 37 U.S.C. 1007, Deductions from Pay.
2. The statutes providing general authority are:
a. 5 U.S.C. 5514, Installment deduction of indebtedness to the United
States.
b. 31 U.S.C. 3716, Administrative Offset.
B. Collections under 5 U.S.C. 5705.
1. Under this statute an employee entitled to per diem or mileage
allowances may receive a travel advance. An advance that is not used
for allowable travel expenses is recoverable from the employee or the
employee's estate by:
a. Offset against accrued pay, retirement credit, or other amount due
the employee;
b. Deduction from an amount due from the United States; and
c. Such other methods as provided by law.
2. Debtor Entitlement. In making collections under this statute, the
debtor may be given an opportunity to repay the amount due voluntarily
or the amount may be deducted automatically from the next pay due the
debtor. If the offset is initiated automatically, notice will be given
the debtor of the intent to make such a deduction and of when the amount
is to be deducted. DoD Components may elect to explain the procedure to
the debtor before disbursing the advance. In lieu of the foregoing, DoD
Components may provide the employee the opportunity of repaying the
excess travel advance at the time of filing a travel voucher or upon
final settlement of that voucher.
3. Formal Notification Process. DoD Components are free to choose
the method by which a debtor shall be advised of the debt or
implementation of the procedures described in subsection B.2. above.
C. Collections under 37 U.S.C. 1007.
1. Under subsection (c) of this statute, under regulations prescribed
by the Secretary concerned, an amount that a member of the Armed Forces
is administratively determined to owe the United States (including
nonappropriated fund instrumentalities) may be deducted from the pay of
the member in monthly installments.
2. In addition to the authority to make collections under subsection
(c) from all members of the Armed Forces, subsections (a) and (b) and
(d) through (f) provide authority for the collection of indebtedness in
specific cases from the members of the Armed Forces specified in those
subsections.
3. Debtor Entitlements. Specific procedure for the collection of
indebtedness under 37 U.S.C. 1008(c) shall be prescribed under
regulations issued by the Secretary concerned; however, these
regulations shall provide that debtors shall be notified in writing when
collections are made under this authority. That notification shall
include information concerning the amount to be collected, the amount of
monthly deductions, and the debtor shall be given an opportunity to
enter into a voluntary agreement to repay the debt. The debtor shall be
given an opportunity to inspect and copy records related to the debt and
for review of the decision related to the debt.
D. Collections under 10 U.S.C. 2775
1. Under this statute, under regulations prescribed by the Secretary
of Defense, a member of the Armed Forces may be held liable for damage
to any family housing unit, unaccompanied personnel housing unit or for
damage to, or loss of, any equipment or furnishings of such units, if
the damage or loss was caused by the negligence of the member or a
dependent or guest of such a member or member's dependent.
2. Debtor Entitlements. The Secretary concerned may provide that
amounts due may be deducted from a member's pay or that amounts may be
collected by any other authorized means.
E. Collections under 5 U.S.C. 5514.
1. Exclusions. The provisions of this statute provide general
authority for the collection of indebtedness from employees and members
of the Armed Forces. Both the Federal Claims Collection Standards and
the regulations of the Office of Personnel Management prescribing
standards for the evaluation of agency regulations issued under this
statute effectively provide that the provisions of this statute shall be
used only if there is no other statute specifically permitting salary
offset. In addition, subsection (c) of this statute provides that it
does not modify existing statutes which provide for forfeiture of pay
and allowances, including specifically subsections (b) and (c) of 37
U.S.C. 1007. Accordingly, the provisions of 5 U.S.C. 5514, and the
procedures prescribed in that statute, shall apply only to those
collections which are not governed by the provisions of a specific
statute authorizing the collection of indebtedness. In addition, the
requirement to notice, a hearing, written responses, and written
decisions do not apply to any adjustment to pay arising out of an
employee's election of coverage or a change in coverage under a Federal
benefits program requiring periodic deductions from pay, if the amount
to be recovered was accumulated over four pay periods or less.
2. General Provisions. The salary offset provisions of Title 5,
U.S.C. 5514 generally provide that when the Secretary of Defense, a
designee, or the head of another Federal agency determines that an
employee is indebted to the United States, the amount of the
indebtedness may be collected by deduction (offset) from the current pay
of the employee. The offset will be made either in the total amount of
the debt or, if the total debt exceeds 15 percent of disposable pay, in
increments not to exceed 15 percent of disposable pay, except that a
greater amount may be deducted upon written consent of the individual
involved.
a. Collections In Installments.
(1) The amount deducted involuntarily for any period may not exceed
15 percent of the disposable pay from which the deduction is made.
Deductions shall be reasonable in terms of the employee's ability to pay
after considering necessary living expenses, deductions required by law,
and other deductions being made from disposable pay at the time the debt
is discovered. If possible, the installment payments should be
sufficient in size and frequency to liquidate the government's claim in
not more than 3 years. If the repayment extends over a period of years,
provisions should be made for increasing the deduction when conditions
so warrant.
(a) Should a multiple debt situation arise where there is no problem
with a statute of limitations, these debts may be collected
simultaneously (e.g., by applying 7 1/2% of the deduction to each of two
debts or some other combination not to exceed the 15% limitation).
However, since indebtedness to the United States is not excluded when
arriving at the amount of disposable pay subject to offset, Components
shall normally give first priority to the collection of debts due to DoD
Components and second priority to debts due other agencies unless a
statute of limitations will expire with respect to the debt due to
another agency, in which case that debt shall be given first priority.
(b) While the amount deducted involuntarily for any pay period may
not exceed 15 percent of disposable pay, a greater amount may be
deducted upon the written consent of the employee involved. The
employee should be encouraged to consent to payment of more than 15
percent in order to liquidate the indebtedness as soon as possible.
Installment payments of less than $50 per month should be accepted only
if justified on the grounds of financial hardship or some other
reasonable cause including the 15 percent limitation imposed by 5 U.S.C.
5514.
(2) If the employee retires or resigns, or if his or her employment
or period of active duty ends before collection of the debt is
completed, offset from subsequent payments of any nature (such as, final
salary payment, lump-sum leave, and bonuses), may be effected by
administrative offset under 31 U.S.C. 3716, without additional
notification.
(3) Payroll deductions shall begin on the next expedient payday after
expiration of the time provided in the notification, unless action has
been taken by the employee such as a request for a hearing, that delays
the commencement of collection action.
b. Refunds.
(1) The DoD Creditor Component shall refund promptly to the employee
amounts (including interest) paid or deducted when one of the following
occurs:
(a) A debt is waived or otherwise found not owing to the Department
of Defense (unless expressly prohibited by statute or regulation).
(b) The employee's paying office is directed by an administrative or
judicial order to refund amounts deducted from his or her current pay.
(2) Unless there are statutory, regulatory, judicial, or contractual
provisions to the contrary, an employee is not entitled to interest on
the amounts refunded to the employee.
3. Debtor's Entitlement.
a. A minimum of 30 days written notification informing the debtor of
the circumstances under which the debt occurred, the amount owed, the
intent to collect by deduction from pay if the amount owed is not paid
in full, and an explanation of other rights of the employee under the
Act.
b. An opportunity to inspect and copy the records of the DoD Creditor
Component related to the debt. The debtor should be advised that
requests for copies of the records relating to the debt shall be made no
later than 10 days from the receipt by the debtor of the notice of
indebtedness.
c. An opportunity to enter into a written agreement to establish a
schedule for repayment of the debt under terms agreeable to the head of
the Creditor Component or his designee.
d. An opportunity for a hearing on the determination of the DoD
Creditor Component concerning the existence or the amount of the debt,
or when a repayment schedule is established other than by written
agreement, concerning the terms of the repayment schedule. The debtor
shall be advised that a challenge to either the existence of the debt,
the amount of the debt, or the repayment schedule, must be made within
30 days of the receipt by the debtor of the notice of indebtedness or
within 45 days after receipt of the records relating to the debt, if
such records are requested by the debtor.
e. If a hearing is given, the opportunity to receive a written
decision from the official holding the hearing.
4. Exceptions to Entitlements.
a. Exceptions to the provisions of subsection E.3., above, are
limited to any intraagency adjustments in pay arising out of an
employee's election of coverage or of a change in coverage under a DoD
benefit program that requires periodic deductions from pay, if the
amount to be recovered was accumulated over four pay periods or less.
b. In the above case, the DoD Creditor Component shall issue,
concurrent with or in advance of the actual collection, a notice that,
because of the employee's election, future salary will be reduced to
cover the period between the effective date of the election and the
first regular withholding, and the employee may dispute the amount of
the retroactive collection by notifying an official (to be specified by
each DoD Component) responsible for resolving the dispute. This
requirement can be met by an appropriate notice on the leave and earning
statements.
c. If processing delays exceed four pay periods, the full procedures
prescribed under 5 U.S.C. 5514 and subsection E.2., above, shall be
extended to the employee.
5. Notification Process.
a. Appropriate written demand for voluntary lump-sum payment shall be
made promptly upon a debtor in terms that inform the debtor of the
agency's intention to offset the debtor's pay if voluntary payment is
not made within 30 days. Only one written demand is required. DoD
Creditor Components must be able to demonstrate that the debtor has
received the demand letter. Accordingly, while DoD Components may
exercise discretion in this matter, it is suggested that, if hand
delivery and execution of a receipt of notice to the debtor is not
possible, a certified or registered notice with return receipt requested
be used. In addition to notification of the rights specified in
paragraph 3, the notification letter shall advise the debtor of the
following:
(1) The date by which payment is to be made, which normally should be
no more than 30 calendar days from the date that the demand letter is
mailed or hand-delivered. DoD Creditor Components shall exercise care
to ensure that demand letters are mailed or hand-delivered on the same
day that they are dated.
(2) The amount (maximum of 15 percent) frequency, approxiate
beginning date, and duration of the intended deduction should voluntary
payment not be received by the due date.
(3) The DoD Creditor Component's requirements concerning interest,
penalties, and administrative costs, including a statement that such
assessments must be made unless excused by the Creditor Component in
accordance with the FCCS.
(4) The method and time period for requesting a hearing unless there
is no right to a hearing as provided in paragraph F.4. If there is a
right to a hearing, the debtor shall be advised that the right to an
oral hearing may be waived and that the debtor may rely on written
submissions instead.
(5) The fact that the timely filing of a petition for the hearing
will stay the commencement of collection proceedings, and that interest
and penalty charges will be applied retroactively should a debtor lose
an appeal to a hearing official.
(6) The fact that a final decision on the hearing (if one is
requested) will be issued at the earliest practical date, but not later
than 60 days after the filing of the petition requesting the hearing
unless the employee requests, and the hearing official grants, a delay
in the proceedings.
(7) Any other rights and remedies available to the employee such as
the possibility of a waiver under provisions of statutes or regulations
governing the claim for which the collection is being made, or the
possibility of an appeal if the eventual hearing decision is not in the
employee's favor.
(8) The fact that amounts paid or deducted for the debt that are
later waived or found not owed to the United States will be refunded
promptly to the employee, unless there are applicable statutes or
regulations to the contrary.
(9) The specific address to which all correspondence shall be
directed regarding the debt.
(10) The fact that any knowingly false or frivolous statements,
representations, or evidence may subject the employee to:
(a) Disciplinary procedures appropriate under chapter 75 of Title 5,
United States Code, Part 752 of Title 5, Code of Federal Regulations, or
any other applicable statutes or regulations;
(b) Penalties under the False Claims Act, sections 3729-3731 of Title
31, United States Code, or any other applicable statutory authority; or
(c) Criminal penalties under sections 286, 287, 1001, and 1002 of
Title 18, United States Code or any other applicable statutory
authority.
b. DoD Creditor Components should respond promptly, within 30 days
when feasible, to communications from the debtor, and should advise
those who dispute the debt to furnish evidence supporting their
contentions.
6. Agency Reconsideration.
a. Upon timely receipt of the appropriate statements and documents,
the DoD Creditor Component will reconsider whether the employee is
indebted to the Department of Defense, the amount of the indebtedness,
or the appropriateness of the offset schedule.
b. If the review of statements and documents provided so warrants,
the DoD Creditor Component will notify the employee that:
(1) The employee is not indebted to the Department of Defense, or
(2) The employee's proposed alternative offset schedule is approved.
c. If, after considering the statement and supporting documents, the
DoD Creditor Component reaffirms the employee's indebtedness to the
Department of Defense, the Creditor Component will send the employee the
following:
(1) A statement indicating the reasons for the decision regarding the
indebtedness, including, if applicable, the reasons for reducing the
amount of the indebtedness.
(2) The formal notice that collection action will begin if payment is
not made within 30 days.
d. If, after considering the statement and supporting documents, the
DoD Creditor Component determines that the original offset schedule, or
a modification to that schedule, will not impose an extreme financial
hardship for the employee, the Creditor Component will send the employee
a statement indicating the reason it concluded that the original or
modified offset schedule will not impose an extreme financial hardship.
The statement shall indicate that collection action will begin if
payment is not received within 30 days.
7. Hearings and Written Submissions.
a. Petitions. Debtors are entitled to petition for hearings under
this section within the following guidelines:
(1) If a debtor petitions for a hearing under this section, the DoD
Creditor Component must determine whether the debtor is entitled to an
oral hearing or whether a ''paper hearing'' comprised of written
submissions is adequate. Unless specifically waived by the debtor, an
oral hearing must be provided when: (a) An applicable statute
authorizes or requires the agency to consider waiver of the indebtedness
involved, the debtor requests waiver of the indebtedness and the waiver
determination turns on an issue of credibility or veracity, or (b) the
debtor requests reconsideration of the debt and the DoD Creditor
Component decides that the question of the indebtedness cannot be
resolved solely on review of the documentary evidence.
(2) An oral hearing is not required if the particular indebtedness or
waiver request is of the type that rarely involves issues of credibility
or veracity. In addition, the DoD Creditor Component must determine
that a review of the written record is generally adequate in such cases,
i.e., the DoD Creditor Component is not required to sift through each
request to determine if it involves an issue of credibility or veracity.
(3) A debtor who has petitioned for a hearing but, under the above
criteria, is not entitled to an oral hearing, shall be provided a
''paper hearing'' by which the determinations regarding the existence or
amount of the debt or the terms of the offset schedule will be made
based on written submissions by the debtor and the Creditor Component.
(4) The following general rules apply to any hearing:
(a) If an employee wants a hearing concerning the existence amount of
the debt or the proposed DoD Creditor Component's offset schedule, the
employee must file a petition with the DoD Creditor Component concerned
not later than 30 days from the date the employee receives the
notification of the intent to collect by salary offset of within 45 days
after receipt of records, of such records were requested by the debtor.
(b) The employee's petition or statement shall identify and explain
with reasonable specificity and brevity the facts, evidence, and
witnesses that the employee believes support his or her position.
(c) If an employee requests an oral hearing, the request may be
changed to a paper hearing only if a written request is received by the
Creditor Component at least three work days before the original hearing
date.
(d) If an employee files a petition for a hearing, the DoD Creditor
Component shall:
1. Determine the type of hearing and notify the employee. For oral
hearings, the notice shall include the time, date, and location of the
hearing. To the extent feasible, a location convenient for the employee
shall be selected.
2. Provide the employee and the hearing official with a copy of the
records in the DoD Creditor Component's possession relating to the
employee's debt.
(e) Any appeal of the determination of the existence or amount of the
debt must be filed with the DoD Creditor Component and hearing officer:
1. Not later than 25 days from the date the debtor receives the
records from the Creditor Component, if such records were not previously
furnished, or
2. Not later than 10 days after receipt of notification, of such
records were previously furnished the debtor.
a. To contest the DoD Creditor Component's determination of the
existence or amount of the debt the employee must submit the reasons why
the employee believes the Creditor Component's determination is
erroneous. The submission shall include: (1) A list of witnesses, if
applicable, including a summary of their anticipated testimony; (2) a
copy of any records not previously introduced; and (3) the name of any
representative the employee expects to be present.
b. To contest the DoD Creditor Component's offset schedule the
employee must submit: (1) A proposed alternative offset schedule with
supporting documents showing why the Creditor Component's schedule would
reduce an extreme financial hardship for the employee; (2) a list of
witnesses the employee intends to call at the hearing and a summary of
their anticipated testimony; and (3) a copy of the records the employee
intends to introduce at the hearing if they differ from the ones
provided by the DoD Creditor Component. The supporting documents should
include specific details concerning income and expenses of the employee,
his or her spouse, and dependents for one year preceding the Creditor
Component's notice and projected income and expenses during the
repayment period proposed by the Creditor Component.
(f) Standards for Determining Extreme Financial Hardship. 1. A
proposed offset schedule produces extreme financial hardship if it
prevents the employee and his or her spouse and dependents from meeting
the costs necessarily incurred for essential subsistence expenses.
These essential subsistence expenses include only costs incurred for
food, housing, necessary public utilities, clothing, transportation, and
medical care.
2. In determining whether the offset schedule produces extreme
financial hardship, the DoD Component and the hearing official shall
consider the following:
a. The income from all sources of the employee, his or her spouse,
and dependents.
b. The extent to which the assets of the employee or his or her
spouse and dependents are available to meet the offset and the essential
subsistence expenses.
c. Whether essential subsistence expenses have been minimized to the
greatest extent possible.
b. The extent to which the employee or his or her spouse can borrow
money to meet the offset and other essential expenses.
e. The extent to which the employee and his or her spouse and
dependents have other exceptional expenses that should be taken into
account and whether these expenses have been minimized.
(g) Within 15 days after receipt of the materials submitted under
subparagraph (e) above, the DoD Creditor Component shall either accept
the employee's contentions concerning the existence of the debt, the
amount of the debt or the employee's alternative offset schedule or
provide the employee and the hearing official with the following:
1. A statement supporting the DoD Creditor Component's determination
regarding the existence and amount of the debt.
2. A statement setting forth the reasons why the DoD Creditor
Component's proposed offset schedule does not produce an extreme
financial hardship for the employee.
3. A list of witnesses that the DoD Creditor Component intends to
call at the hearing and a summary of their anticipated testimony.
b. Waiver of Rights to Hearing. (1) An employee forfeits or waives
his or her right to an administrative review or hearing and will have
his or her pay offset in accordance with the DoD Creditor Component's
offset schedule, if the employee:
(a) Fails to file a petition for an administrative review or hearing
before the deadline date prescribed in paragraph E.7.a., above.
(b) Fails to file the required submissions under paragraphs 78.a.(4)
(b) and (e), above.
(c) Is scheduled to appear and fails to appear at an oral hearing.
(2) The hearing official may find that the employee has not waived
his or her right to a hearing if the employee petitions the hearing
official for a determination that the employee had good cause for
failing to comply with the established deadline date or for failing to
appear at the hearing.
c. Procedures. (1) An administrative review or the hearing shall be
conducted by a hearing official who is not an employee of the DoD
Creditor Component to which the debt is owed and is not otherwise under
the supervision or control of the Creditor Component. For instance,
when collection action is being taken by the Department of the Army (DA)
and a hearing is granted to a DA employee, the hearing offical cannot be
employed or supervised by the DA. When collection action is being taken
by Washington Headquaters Services for OSD Staff and field activities or
by DoD Defense Agencies, i.e., DLA, DCA, DSAA, etc., the hearing
official shall be selected from the Department of the Army, Navy or Air
Force.
(2) Administrative reviews or hearings should be conducted by DoD
personnel. While the Creditor Component may select the Component to
conduct the review or administrative hearing, assignment of a hearing
official to a particular administrative review or hearing shall be made
by the Component selected to conduct the administrative review or
hearing. Each Component will identify a reasonable number of employees
qualified to serve as hearing officers for other DoD Creditor
Components. Eligible persons include grievance or appeals examiners,
attorney advisors, staff judge advocates, and other individuals who have
been trained in or performed hearing officer duties or who are
considered to be qualified to perform hearing officer duties by reason
of training or experience. Arrangements for the temporary assignment of
hearing officers between Components should reflect any agreed upon
reimbursement of expenses. Implementing procedures shall identify a
central point of coatact with regard to hearing officials who have been
identified by each Component. If necessary, individuals not employed by
the Department of Defense may be employed on a temporary or intermittent
basis to act as hearing officials. Employment of such individuals
should occur only where it is clearly impractical to use Department of
Defense Personnel.
(3) An oral hearing normally will consist of informal conferences
before a hearing official in which the employee and Creditor Components
will be given a full opportunity to present evidence, witnesses, and
arguments. The employee may represent him or herself or be represented
by a person of his or her choice. The hearing official will permit only
the introduction of such evidence as described in the prehearing
submissions under paragraphs 7.a.(4) (b) and (e)., above and the
employee may not raise any issue that he or she has not raised
previously concerning the existence or amount of the debt or the
Creditor Component's proposed offset schedule.
(4) For oral hearings, the Creditor Component shall provide for
maintaining a summary record of the hearing.
(5) The Creditor Component or the agency that will conduct the oral
hearing shall select a hearing site as close as possible to the debtor's
work station.
(6) The hearing official shall provide a written decision on the
merits of the administrative review or oral hearing that discusses the
basic facts offered to document the nature and origin of the debt and
the hearing official's findings and conclusions concerning the existence
and amount of the debt and, where applicable, the repayment schedule.
(7) Expenses incident to a debtor or employee inspecting and copying
government records or transportation of a debtor or his representative
to attend oral hearings shall be born by the employee or debtor
requesting the hearing. The Component providing the hearing shall bear
expenses for the hearing official. To assist employees in deciding
whether necessary expenses incident to travel are warrented, DoD
Components shall publish the locations at which hearings will be
conducted.
d. Non-waiver of rights by Payments. Department of Defense Creditor
Components shall prescribe in implementing regulations that an
employee's involuntary payment of all or any portion of a debt being
collected under 5 U.S.C. 5514 must not be construed as a waiver of any
rights which the employee may have under 5 U.S.C. 5514 or any other
provision of contract or law, unless there are statutory or contractual
provisions to the contrary.
F. Collections under 31 U.S.C. 3716.
1. General. This statute provides for collection by administrative
offset. It is applicable to all persons, including employees. It is
the basis for collecting debts from out of service debtors. Unlike
salary offset, all money payable to a person by the government is
subject to administrative offset. With respect to employees,
administrative offset shall not be used to collect pay subject to salary
offset. If collection is not made from pay subject to salary offset,
such as from allowances only or from other amounts due an employee, the
procedures for salary offset are not applicable.
2. Exclusions. Administrative offset under this statute may not be
used to collect debts due from state and local governments or debts
arising or relating to payments made under the Social Security Act, the
Internal Revenue Code, or the tariff laws of the United States. Also
excluded is the collection of debts where administrative offset is
explicitly prohibited by another statute. DoD Components may not
initiate administrative offset to collect a debt under this statute more
than 10 years after the government's right to collect the debt first
accrued, unless facts material to the government's right to collect the
debt were not known and could not reasonably have been known by the
officials of the Department of Defense who were charged with the
responsibility to discover and collect the debt. The date the debt
first accrued is to be determined according to existing law regarding
the accrual of debts, such as 28 U.S.C. 2415.
3. Use of Administrative Offset. A DoD Creditor Component shall make
a determination to collect a debt by administrative offset on a
case-by-case basis using sound judgment. A Component shall consider
whether administrative offset is feasible from a practical and legal
standpoint and whether such offset is in the best interest of the
Department of Defense and the United States. Debts that are not subject
to administrative offset may still be collected by administrative offset
under some other statute or common law.
4. Debtor's Entitlement. A debtor is not entitled to a hearing in
cases of collection by administrative offset. A debtor is entitled to
written notice of the type and amount of the claim, the intention to
collect the claim by administrative offset and an explanation of the
following rights:
a. An opportunity to inspect and copy the records related to the
claim;
b. An opportunity for a review of the decision related to the claim;
and
c. An opportunity to make a written agreement to repay the amount of
the claim.
5. Formal Notification Process.
a. After one written demand has been made upon a debtor of the
Department of Defense a total of two progressively stronger letters
shall be sent to the debtor at no more than 30-day intervals unless a
response to the first or second letter indicates that further
correspondence would be futile and the debtor's response does not
require rebuttal. In determining the timing of the demand letters, DoD
Components shall give due regard to the need to act promptly so that, if
necessary to refer the debt to the Department of Justice for litigation,
such referral can be made within 1 year of the Component's final
determination of the existence and amount of the debt. When necessary
to protect the government's interest (for example, to prevent the
statute of limitations, 28 U.S.C. 2415 from expiring) written demand may
be preceded by other appropriate actions including immediate referral
for litigation. In addition, administrative offset may be made against
a payment to be made to a debtor before completion of the notification
process if the time before the payment is to be made does not reasonably
permit the completion of those procedures and failure to take the offset
would prejudice substantially the Department of Defense's ability to
collect the debt. If an offset is made under such circumstances the
debtor shall be notified promptly of the reasons for the offset and
shall be granted the right listed in paragraph 4. Amounts recovered by
offset which are later found not to be owed the Department of Defense
shall be refunded promptly. If, either prior to the initiation of, at
any time during, or after completion of the demand cycle, a Component
determines to pursue offset, then the Component is immediately relieved
of the responsibility to send three letters.
b. In addition to the notification requirements provided above, any
notification letters may be used to advise the debtor of (a) the
possible notification of Commercial Credit Bureaus if payment is not
made on time; (b) the possible use of Commercial Collection Agencies;
and (c) the possible referral of the claim to the Department of Justice
for prosecution.
6. Creditor Component Review. Oral hearings are not required in most
cases involving administrative offset. Creditor Components shall,
however, establish procedures for review of decisions related to claims
based upon Component records and any submissions by the debtor. In
addition, Components shall provide a debtor with a reasonable
opportunity for an oral hearing when:
a. An applicable statute authorizes or requires the Department of
Defense to consider waiver of the indebtedness involved, the debtor
requests waiver of the indebtedness, and the waiver determination turns
on an issue of credibility or veracity; or
b. The debtor requests reconsideration of the debt and the Component
determines that the question of the indebtedness cannot be resolved by
review of the documentary evidence; for example, when the validity of
the debt turns on an issue of credibility or veracity. Unless otherwise
required by law, an oral hearing is not required to be a formal
evidentiary-type hearing, although the Component always shall document
carefully all significant matters discussed at the hearing.
c. An oral hearing is not required in cases involving debt collection
systems in which collections of indebtedness or waiver rarely involve
issues of credibility or veracity. A Creditor Component may make a
blanket determination with respect to which of its debt Collection
systems meet the foregoing criterion and is not required to review
requests by debtors with respect to such systems in order to grant
hearings in those few cases which may involve issues of credibility or
veracity.
7. Collections Of Out Of Service Debts. The collection of amounts
under this section shall be in accordance with the standards promulgated
pursuant to 31 U.S.C. 3711 and 3716-3718 and implemented by the FCCS.
G. Requests for Collection to or From Other Agencies.
1. Requests To Other Federal Agencies.
a. If a determination has been made that the debtor is employed by
another DoD Component or another Federal agency, a request for salary or
administrative offset shall be forwarded to the employing agency. Such
request shall include the following:
(1) A statement that the due process provisions of 5 U.S.C. 5514 or
31 U.S.C. 3716 have been completed.
(2) A certified DoD debt claim form.
(3) Details of the debt including the amount and reason for the debt;
the payment due date; the date the DoD Creditor Component determined
the debt was due; and, in the case of requests to other agencies, a
statement that the DoD regulations have been approved by OPM.
b. Department of Defense Creditor Components shall submit requests
for offset directly to DoD paying Components and other non-DoD Federal
agency paying offices. When the request for offset involves a DoD
paying Component, a copy of the request including the names of the
debtors, shall be forwarded to the Defense Manpower Data Center.
2. Requests From Other Agencies. If a determination has been made by
a non-DoD Federal agency that a debtor is employed by the Department of
Defense, a request for salary or administrative offset shall be
addressed to the Secretary of Defense and a copy of all documentation
shall be forwarded to the Defense Manpower Data Center, 550 Camino El
Estero, Monterey, CA 93940. It is expected that all requests shall be
consolidated on magnetic tape and that a blanket certification be
provided for the tape file. Such request shall include the following:
a. A written certification that the due process provisions of 5
U.S.C. 5514, 31 U.S.C. 3716 or other applicable law have been completed.
b. A certified debt claim from (if used by the Creditor Agency).
c. Details of the debt, including the amount and reason for the debt,
the payment due date, the date the federal agency determined the debt
was incurred, and a statement that the agency's regulations have been
approved by the Office of Personnel Management (OPM).
3. DoD Components may not honor requests to collect a debt under
Title 5, U.S.C. 5514 and Title 31, U.S.C. 3711 and 3716-3718 or other
applicable law more than 10 years after the government's right to
collect the debt first accrued except as provided in the FCCS.
H. Waiver of Indebtedness.
1. An employee may address a written request for waiver or remission
of indebtedness as appropriate under 5 U.S.C. 5584, 10 U.S.C. 2774, 10
U.S.C. 6161, and 32 U.S.C. 716 to the official designated in the
notification letter. The request should state the reasons that a waiver
or remission under the standards cited in the notice should be made. To
delay further collection action, a debtor's request for waiver or
remission must be received within 30 calendar days of the date of the
notification letter if the debtor is in the United States, or 45
calendar days if the debtor is in a foreign country. While the request
for waiver is pending, interest on the amount due shall not accrue.
2. The DoD Creditor Component shall notify the debtor in writing of
the designated official's final decision. This decision shall be final
and conclusive as far as the Creditor Component is concerned. If waiver
or remission is not granted, further collection actions shall be
initiated unless the debtor pays the amount due within 30 days following
the date of the Component's notification to the debtor. If waiver or
remission is granted, the Creditor Component's accounts shall be
adjusted as appropriate.
I. Compromise of Claims. The compromise of claims within the
Department of Defense is governed by the provisions of Chapter II, Part
103, FCCS, Standards for Compromise of Claims. DoD Components shall
incorporate these standards in policies and procedures that are
developed for the compromise of claims.
J. Data Exchange Program.
1. DoD Components are expected to cooperate with one another and with
other Federal agencies in their debt collection activities.
Accordingly, DoD Components shall establish necessary procedures to
ensure that the establishment and maintenance or debtor records are
compatible for matching and referral programs.
2. Within the Department of Defense, the DMDC is the central source
for DoD Component exchange of records. Before using a matching or
referral program to collect debts, a determination shall be made by the
DoD Creditor Component that all other alternatives either are less
effective, more expensive, or would present a greater threat to personal
privacy.
K. Use of Private Collection Agencies.
1. General. All DoD Components may use commercial collection agencies
for collection services to supplement their collection programs.
Normally, however, debts due from individuals who are employed by the
government will not be referred to collection agencies.
2. DoD Component's Responsibilities. When a Component uses
commercial collection services the following conditions must be met:
a. All actions required by FCCS shall be accomplished before release
to the commercial collection agency.
b. Procedures shall be established covering the transfer of accounts,
the review and approval of formats of letters and bills and a system for
repayment processing.
c. Ultimate responsibility for collections must be retained.
Accordingly, Components must retain the authority to resolve disputes,
compromise claims, suspend or terminate collection action, and refer the
matter for litigation.
3. Contractual Procedure. Contracts for commercial collection
services must meet the following conditions:
a. The contract will be in compliance with the Federal Acquisition
Regulations (FAR).
b. The contract will provide a mechanism to ensure that any
substantive issues relating to the underlying merits of the claims are
referred to the originating DoD Component for resolution, at which time
the contractor shall relinquish to the Component its complete file of
information on an account.
c. The Contract will list the minimum collection activities to be
performed and the minimum documentation to be obtained for various
categories of accounts such as:
(1) Locating and contacting debtor.
(2) Repayment schedules.
(3) Suspension of collection activity.
(4) Resolution of complaints.
(5) Unlocatable accounts.
(6) Inability to pay.
(7) Refusal to pay.
d. The contract will require the contractor to record all collection
actions taken on each account and provide a report of such actions to
the Department of Defense monthly, or as requested.
e. The contract will require the contractor to calculate up-to-date
accrued interest, penalty and administrative charges using the rate
tables supplied by the Department of Defense.
f. The contract will define clearly the procedures for billing
debtors, receiving and processing repayments.
g. The contractor shall be subject to the Privacy Act of 1974, 5
U.S.C. 552a and, when applicable, to Federal, State, and local laws and
regulations pertaining to debt collection practices, such as the Fair
Debt Collection Practices Act.
4. Contract Funding. Appropriated funds are available to fund
contracts for collection services to the extent provided in
Appropriation Acts. Normally, however, contracts shall be funded by
payments from amounts collected by the contractor and commission rates
shall be negotiated as part of the terms of the contract.
L. Reporting Debts to Commercial Credit Bureaus.
1. General. As a means of further enhancing the debt collection
program of the Department of Defense, Components authroized to terminate
or write-off individual debts shall report to commercial credit bureaus
delinquent debts which are not feasible to collect or have been referred
to the GAO or the Department of Justice for further collection effort.
2. Component Responsibility. Each DoD Component that is authorized
to terminate or write-off individual debts shall be responsible for
reporting debts in compliance with title 31, U.S.C. 3711 and 3716-3718
and the OMB Bulletin No. 83-21; Before reporting an employee's debt to
a commercial credit bureau, a Component must provide public notice in
the Federal Register identifying those systems of records from which it
intends to disclose information. Chapter 4, Subsection B.13. of DoD
5400.11-R authorizes such disclosure. Each DoD Component also shall
ensure that an individual debtor is afforded the due process protection
prescribed by Title 31 U.S.C. 3711 and 3716-3718 before any disclosure
of information is made on that debtor.
3. Reporting of Referrals. Each DoD Component shall maintain an
accurate account of all names reported to credit bureaus. After a debt
is referred to a commercial credit bureau, Components have a continuing
responsibility to immediately notify the credit bureau when substantial
changes in the condition and amount of the referred claim occur.
Procedures must be established to promptly disclose correct information
about the claim upon request from commercial credit bureaus to which
claims were referred. Records should be maintained on commercial
debtors for a period of 13 months after the date reported to a
commercial credit bureau and for seven years for consumer debtors.
M. Write-Off and Close-Out Procedures.
1. DoD Components shall develop write-off procedures that identify
and remove uncollectible accounts from receivables, and close-out
procedures that discontinue collection activity. These procedures will
improve accounting for the cost of credit programs and will allow
management to focus efforts on accounts most likely to be collected.
a. When appropriate, the allowance for uncollectible debts account
shall be adjusted, written-off accounts closed, and the debtor's account
ledgers removed from active Component files. DoD Components shall write
off accounts when:
(1) Estimated collection costs exceed the amount recoverable.
(2) A claim is without legal merit or it cannot be substantiated by
evidence.
(3) A legal judgment, once obtained, has failed to accomplish full or
partial collection.
(4) A debtor cannot be located and either (a) there is no security
remaining to be liquidated, or (b) the applicable statute of limitations
has run and the prospects of collecting by offset, notwithstanding the
bar of the statute of limitations, are too remote to justify retaining
the claim.
(5) A collection agency has returned with documentation effectively
showing that the debt is uncollectible.
b. DoD Components shall close out written-off delinquent accounts and
remove the accounts from other active receivables.
(1) DoD Components may find it appropriate to maintain subsidiary
records of individual accounts that may subsequently be collected by
offset against future benefit claims.
(2) An IRS referral log shall be maintained by calendar year which
contains a record of amounts written-off and debtor-identifying
information.
(3) DoD Components may reinstitute collection action on closed-out
accounts if subsequent evidence shows a debtor's new ability to repay.
N. Reporting Delinquent Debts to the Internal Revenue Service for
Offset.
1. General. Section 3720A of subchapter II of Chapter 37 of Title 31,
U.S.C. authorizes Federal agencies who are owed past-due legally
enforceable debts to notify the Secretary of the Treasury of the amount
of such debts. Upon receiving notice from any Federal agency that a
named person owes to such agency a past-due legally enforceable debt,
the Secretary of the Treasury shall determine whether any tax refunds of
Federal Taxes paid, are payable to such person. If the Secretary
determines that an amount is payable, he shall reduce such refunds by an
amount equal to the amount of such debt, pay the amount of such
reduction to such agency and notify such agency of the individual's home
address.
2. Treasury Regulations. The Secretary of the Treasury has issued
regulations prescribing the time or times at which agencies must submit
notices of past-due legally enforceable debt, the manner in which such
notices must be submitted, and the necessary information that must be
maintained in or accompany the notices.
3. Memorandum of Understanding (MOU). The Department of Defense will
participate in the Internal Revenue Service's Income Tax Refund Offset
Program beginning in Calendar Year 1987. This participation is pursuant
to a signed MOU between DoD and the Department of the Treasury,
hereinafter referred to as IRS. The MOU prescribes the specific
conditions DoD must meet before the IRS will accept requests for offset.
It also prescribes other responsibilities of the DoD and the IRS
including procedures for reimbursement to IRS for the cost of services
rendered.
4. Applicability of The Income Tax Refund Offset Program. For
purposes of this section, a past-due legally enforceable debt referable
to the IRS is a debt which:
(1) Except in the case of a judgment debt, has been delinquent for at
least three months but has not been delinquent more than 10 years at the
time the offset is made;
(2) Cannot be currently collected pursuant to the salary offset
provision of 5 U.S.C. 5514(a)(1);
(3) Is ineligible for administrative offset under 31 U.S.C. 3716(a)
by reason of 31 U.S.C. 3716(c)(2), or cannot be collected by
administrative offset under 31 U.S.C. 3716(a) by the DoD Creditor
Component against amounts payable to the debtor by the Creditor
Component;
(4) The DoD Component gave the taxpayer at least 60 days to present
evidence that all or part of the debt is not past-due or legally
enforceable, considered the evidence presented by such taxpayer, and
determined that a debt amount is past-due and legally enforceable;
(5) Has been disclosed by such DoD Component to a consumer reporting
agency as authorized by 31 U.S.C. 3711(f);
(6) The Component has notified or has made a reasonable attempt to
notify, the taxpayer that:
(a) The debt is past due, and
(b) Unless repaid within 60 days thereafter, will be referred to the
IRS for offset against any overpayment of tax; and
(7) Is at least $25.
5. Procedures. a. The Office of the Deputy Assistant Secretary of
Defense (Management Systems) (ODASD(MS)) shall be the sole IRS point of
contact for administrative matter, regarding the offset program.
However, there shall be a single point of contact in each Military
Service, the Army and Air Force Exchange Service (AAFES), and the
participating Defense Agencies for ADP systems matters regarding the
offset program. These points of contact shall be designated in writing
and forwarded to ODASD(MS).
b. Only those DoD Creditor Components who are specifically designated
to participate in the IRS offset program shall refer past due debts to
the IRS. DoD Components which are not specifically designated shall
refer past due debts to the IRS through a Component which has been so
designated.
c. DoD Creditor Components who have been specifically designated to
participate shall ensure that only those past-due legally enforceable
debts described in paragraph N.4. above are forwarded to the IRS for
offset. DoD Creditor Components shall also ensure that the procedures
prescribed in the MOU between DoD and the IRS are followed in developing
past-due debt information and submitting the debts to the IRS.
d. Applicable DoD Creditor Components shall submit a notification of
a taxpayer's liability for past-due legally enforceable debt to the IRS
on magnetic tape by January 2, of each year or such other date as may be
determined by the IRS. Such notification shall contain:
(1) The name and identifying number of the taxpayer who is
responsible for the debt;
(2) The amount of such past-due and legally enforceable debt;
(3) The date of which the debt became past-due;
(4) The designation of the DoD Creditor Component or subcomponent
submitting the notification of liability and identification of the DoD
Creditor Component program under which the debt was incurred;
(5) A statement accompanying each magnetic tape by the DoD Creditor
Component certifying that, with respect to each debt reported on the
tape, all of the requirements of paragraph N.4. above have been
satisfied.
e. A DoD Component shall promptly notify the IRS to correct DoD data
submitted pursuant to paragraph d. above when the DoD Creditor
Component:
(1) Determines that an error has been made;
(2) Receives or Credits a payment on such debt. However, a DoD
Component shall not notify IRS about subsequent increases in such debts.
f. When advising debtors of an intent to refer a debt to the IRS for
offset, DoD Creditor Components shall also advise the debtors of all
remedial actions available to defer or prevent the offset process.
(50 FR 15735, Apr. 22, 1985, as amended at 51 FR 28092, Aug. 5, 1986;
51 FR 32308, Sept. 11, 1986)
32 CFR 90.6 PART 91 -- POLICIES GOVERNING PARTICIPATION OF DoD
COMPONENTS AND PERSONNEL IN ACTIVITIES OF PRIVATE ASSOCIATIONS
Sec.
91.1 Purpose and reissuance.
91.2 Policies.
Authority: 5 U.S.C. 301.
32 CFR 91.1 Purpose and reissuance.
(a) This part establishes policies governing membership and
participation of Department of Defense Components (Office of the
Secretary of Defense, the Military Departments, Defense Agencies,
Organization of the Joint Chiefs of Staff and Unified and Specified
Commands) and personnel in the activities of private or nongovernmental
organizations, societies, or associations (hereinafter referred to as
associations), including technical and professional societies.
(b) This revised Part 91 incorporates a new 91.2(d), which relates
to honorary office or membership in trade or professional associations.
There are no other substantive changes.
(37 FR 16674, Aug. 18, 1972)
32 CFR 91.2 Policies.
(a) Department of Defense Components are authorized to participate in
activities of scientific, technical, professional, and other
organizations, societies, and associations in the discussions of matters
of mutual interest, otherwise consistent with law, including antitrust
laws, and laws relating to security and subject to Part 40 of this
subchapter.
(b) Participation by Department of Defense Components in the
activities of private or nongovernmental associations or societies shall
be limited to the extent of the Department of Defense interest involved
and shall be upon such basis as will avoid
(1) The favoring of one association or organization over another;
(2) The unauthorized acceptance of legal membership by the United
States in private organization;
(3) The use of the name of the U.S. Government by a private
organization, voluntary association, or corporation, implying the
sponsorship of such organization by the Government, without authority of
Congress;
(4) Participation in the management and control of such organization
without Congressional authorization; and
(5) Participation in the determinations or conclusions of private
organizations or associations, in such manner as to suggest compliance
therewith by the Government without subsequent responsible
administrative authority or Congressional authorization.
(c) Subject to the above limitations, liaison representatives of
Department of Defense components while participating in the activities
of scientific, technical, professional, and other organizations,
societies, and associations, including technical committees and
standards, committees thereof, may give free and complete expression of
their views on the subject matter under discussion and may vote verbally
or in writing on issues presented for a vote, providing it is made clear
to the private organizations, societies, and associations that such vote
indicates no more than the opinion on that issue of the liaison
representative of the DoD component voting. No vote so cast shall be
considered to bind the Department of Defense or any component thereof in
any way to any particular present or future course of action.
(d) DoD personnel shall not accept an honorary office or honorary
membership in any trade or professional association which includes in
its membership business entities which are engaged or are endeavoring to
engage in providing goods and/or services to a component of the
Department of Defense, including nonappropriated fund activities of the
Department of Defense. An honorary office includes any office, whether
termed honorary or not, when the selection for that office is on the
basis of an official Department of Defense position or assignment.
(e) These policies shall not apply to membership or participation by
officers or employees of the Department of Defense, as individuals, in
private organizations or associations, including technical and
professional societies, and military or veterans organizations,
otherwise consistent with law, including the Hatch Act, and Anti-Lobby
Act, and other laws which prohibit Government officers and employees
from engaging in activities inconsistent with their government
employment.
(37 FR 16674, Aug. 18, 1972)
32 CFR 91.2 PART 92 -- SENIOR RESERVE OFFICERS TRAINING CORPS PROGRAM
Sec.
92.1 Reissuance and purpose.
92.2 Applicability.
92.3 Definitions.
92.4 Policy.
92.5 Procedures.
92.6 Responsibilities.
92.7 Procedures regarding oaths and security requirements, medical
examination, deferment, commissioning and assignment of graduates.
Authority: 5 U.S.C. 301, 10 U.S.C. 511, 672(d); 2102(b) (1), (2),
and (3), and 2109; 11 U.S.C. 1-151326.
Source: 47 FR 19323, May 5, 1982, unless otherwise noted.
32 CFR 92.1 Reissuance and purpose.
This part is reissued, outlines the policy of the Senior Reserve
Officers Training Corps (ROTC) program, assigns responsibilities, and
establishes guidance for conducting and administering the ROTC.
32 CFR 92.2 Applicability.
The provisions of this part apply to the Office of the Secretary of
Defense and the Military Departments. The term ''Military Services,''
as used herein, refers to the Army, Navy, Air Force, and Marine Corps.
32 CFR 92.3 Definitions.
(a) Field training. (1) Summer camp training prescribed by Section
2109, U.S.C. Title 10.
(2) Additional training, authorized by the Secretary of the Military
Department concerned, as practical field training designed for the
further instruction and leadership development of members of the
program.
(b) Education. Any course or program of instruction in an
institution of postsecondary education.
(c) ROTC scholarship. The payment in whole or in part by the
Secretary of the Military Department concerned for any course or program
of education provided by any public or private educational institution.
This includes payment for tuition, fees, books, and supplies essential
for a course of postsecondary study, and authorized pay and allowances
for room, board, uniforms, travel, and military training.
(d) ROTC scholarship, educational costs. The portion of the
scholarship that pays for an ROTC member's tuition, fees, books, and
supplies essential for a course of postsecondary study and other
educational expenses paid by the ROTC scholarship. It excludes the
portion of the scholarship that provides for pay and allowances for
room, board, uniforms, travel and military training.
32 CFR 92.4 Policy.
(a) The purpose of the Senior ROTC is to provide a permanent and
stable program of military education at designated college-level
institutions to prepare selected students for service as Regular or
Reserve commissioned officers in the Army, Navy, Air Force, or Marine
Corps.
(b) Senior ROTC educational programs qualify students for
commissioning and establish a sound basis for their future professional
growth and effective performance in the Military Service of their
choice. The primary objectives of the Senior ROTC program are to
provide ROTC students with:
(1) An understanding of the fundamental concepts and principles of
military, naval science, or aerospace studies.
(2) A basic understanding of associated professional knowledge.
(3) A strong sense of personal integrity, honor, and individual
responsibility.
(4) An appreciation of the requirements for national security.
32 CFR 92.5 Procedures.
(a) Establishment and continuation of ROTC units at educational
institutions. (1) To receive consideration for establishment of an ROTC
unit, an educational institution must:
(i) Apply in writing to Military Departments.
(ii) Be fully accredited by the appropriate regional accrediting
association, recognized by the Council on Postsecondary Accreditation
and the Department of Education.
(iii) Agree to provide adequate physical facilities as specified by
the respective Military Department.
(iv) Certify that it does not discriminate with respect to admission
or subsequent treatment of students on the basis of race, religion,
color, national origin, or sex, unless the institution is a single sex
institution in its overall admissions policy.
(2) ROTC units may not be established or maintained at an educational
institution unless:
(i) The senior commissioned officer of the Military Department
concerned is given the academic rank of professor (10 U.S.C.
2102(b)(1)).
(ii) The institution fulfills the terms of its agreement with the
Secretary of the Military Department concerned (10 U.S.C. 2101(b)(2)).
(iii) The institution adopts as a part of its curriculum a 4-year
course of military instruction or a 2-year course of advanced training
of military instruction, or both, which the Secretary of the Military
Department concerned prescribes and conducts (10 U.S.C. 2102(b)(3)).
Student enrollment shall be elective or compulsory as provided by state
law or the authorities of the institution.
(3) Two or more Military Departments may operate ROTC units on the
same campus. Decisions to collocate additional units shall be based on
the school's ability to accommodate the additional unit without
affecting the ability of the original unit to remain productive. Before
final selection of an educational institution to receive a new ROTC
unit, a Military Service shall:
(i) Furnish lists of proposed new units to the other Military
Services.
(ii) Consult with any Military Service that already has a unit at the
school under consideration or is actively considering the school for
establishment of a new unit.
(iii) Negotiate with such Military Service when problems may arise
from collocation of two or more ROTC units on the same campus.
(iv) Refer matters of conflict to the Office of the Assistant
Secretary of Defense (Manpower, Reserve Affairs, and Logistics
(ASD(MRA&L))) if the difficulties cannot be resolved among the Military
Services.
(4) Before releasing information on the location of proposed ROTC
units, the Military Department shall provide this information to the
Office of the ASD(MRA&L) and the other Military Services.
(b) Disestablishment of ROTC Units. Officer production from each
ROTC unit shall be adequate to justify the investment of DoD resources.
(1) Officer production indices from an ROTC unit shall be based on
viability standards that take into account the following factors.
(i) The quality of the officer produced.
(ii) The cost of maintaining the unit.
(iii) The kinds of officers produced.
(iv) The number of officers produced by the unit.
(2) The methodology used to compute the four factors in the formula
shall be left to the discretion of the Military Department Secretaries.
The ASD(MRA&L) in coordination with the Assistant Secretary of Defense
(Comptroller) shall approve the methodology used and any proposed
changes.
(3) The Secretary of the Military Department concerned may set the
minimum enrollment standards at the Military Science 3-level and above.
(4) Each year the Military Departments shall advise ROTC institutions
whose units fall below the prescribed minimum viability standards that
the units have been placed in an evaluation status for a period of up to
4 years. During this period, the Military Services shall work closely
with the institutions to seek measures that will make the ROTC units
fully viable.
(5) Units shall be released from evaluation status as soon as they
meet or exceed the minimum viability index.
(6) At the end of the evaluation period, the Military Departments
shall initiate disestablishment procedures. Units shall be phased out
with sufficient time to permit enrolled ROTC students to complete the
program or offer the students a practical alternative for obtaining
commissions.
(7) OASD(MRA&L) shall be advised when ROTC units are placed in an
evaluation status and of the final disposition of each case.
(8) The decision to disestablish an ROTC unit is the prerogative of
the Secretary of the Military Department concerned.
(c) Operation of ROTC units -- (1) Academic credit for ROTC courses
taught by military instructors. Credit for ROTC courses shall be
reviewed by host institutions on the same basis as other institutional
courses. If credit is questioned, the institution shall recommend
adjustments that would make the courses credit-worthy. Regardless of
the amount of credit, ROTC course grades must appear on student
transcripts. Denial of degree credit for ROTC courses would not
necessarily mean withdrawal of the unit, but the Military Departments
shall stress preference for degree credit ROTC courses when writing
contracts with institutions.
(2) Student eligibility for ROTC based on undergraduate major courses
of study. Undergraduate students may not be denied the opportunity to
enroll in ROTC solely because of their major course of study.
(3) Active duty commitment and reimbursement requirements for
scholarship students. (i) The Secretary of the Military Department
concerned shall require, as a condition of providing an ROTC scholarship
to any person, that he or she enter into a written contract in which the
recipient agrees:
(A) To complete the educational requirements specified in the
agreement and to serve on active duty for the period specified in the
agreement;
(B) That if that person fails to complete the education requirements
specified in the agreement, that person will serve on active duty for a
period specified in the agreement;
(C) That if he or she voluntarily or because of misconduct fails to
complete the period of active duty specified in the agreement, he or she
shall reimburse the United States in an amount that bears the same ratio
to the total cost of education provided that person as the unserved
portion of active duty bears to the total period of active duty the
person agreed to serve; and
(D) To such other terms and conditions as the Secretary of the
Military Department concerned may prescribe to protect the interests of
the United States.
(ii) The Secretary concerned shall determine the period of active
duty to be served by any ROTC scholarship recipient.
(iii) The Military Department Secretary concerned shall (A) prescribe
the conditions for repayment of an individual's outstanding loan
obligation such that the interest rate, if applicable, the monthly
repayment, term, and method of payment reasonably replicate the
repayment schedule of the Guaranteed Student Loan (GSL) sponsored by the
Department of Education, and (B) establish procedures for proper
accounting and timely collection of loan repayment funds due to the
Treasury on behalf of the Military Service concerned.
(iv) The obligation to reimburse the United States is, for all
purposes, a debt owing the United States. A discharge in bankruptcy
under Title 11 U.S.C. may not release a person from an obligation to
reimburse the United States under the terms of an agreement defined in
this Directive if the final decree of the discharge in bankruptcy was
issued within a period of 5 years after the last day of a period which
such person had agreed to serve on active duty. This applies to a
discharge in bankruptcy in any proceeding that began after September 30,
1978.
(4) Procedures when advanced course students drop ROTC. When
advanced course students drop ROTC in breach of their contractual
agreements, the senior officer commanding the ROTC unit shall appoint a
board of officers or an investigating officer to determine the reasons
of such action. At least one university official (an administrator or
faculty member appointed by the institution) shall be permitted to
observe the hearing or investigation.
(i) The student concerned has the right to appear personally before
the board or the officer conducting the hearing. Disenrollees shall
normally be ordered to active enlisted service. Each case shall be
considered on its own merits.
(ii) This does not preclude the Military Department from considering
medical disqualification, humanitarian reasons, needs of the Military
Service, or other mitigating circumstances in waiving active enlisted
service for the disenrolled ROTC cadet. Such considerations shall be
carefully documented in the board's or investigating officer's report
and by the Military Service. The final decision concerning active
enlisted service shall be made by the Military Department concerned.
(5) Ordering disenrolled ROTC students to active duty enlisted
service. The Military Departments shall delay ordering students who
have breached their contracts to active duty until they complete their
undergraduate degree requirement or disenroll from the institution,
whichever occurs first. Graduate students may not be ordered to active
duty until they would normally complete the academic year in which they
are enrolled or disenrolled from the institution, whichever occurs
first. Scholarship students who complete their junior and senior years,
but who refuse to accept their commissions, will be required to serve
for 4 years. Scholarship students who were active duty enlisted
personnel when selected for ROTC scholarship and were discharged early
for the purpose of accepting the scholarship shall normally be ordered
to active duty at the end of the school term in which they were
disenrolled. Their service commitment shall be determined as follows:
(i) If they were members of the basic course when disenrollment
occurred, their service commitment shall be equivalent to the time not
served on their original enlistment contract when they were discharged
or separated to accept an ROTC scholarship. Those individuals with less
than 1 year remaining shall be discharged upon approval of the
disenrollment by the Military Department concerned.
(ii) If they were members of the advanced course when disenrollment
occurred, their service commitment shall be the same as other contract
violators cited above.
(6) Appropriate titles for military officers assigned to ROTC. In
accordance with 10 U.S.C. 2102(b)(1) the senior officer of each ROTC
unit must receive the academic rank of professor, including appropriate
prerogatives and perquisites associated with the position of a professor
(excluding tenure) as head of a department or program at the
institution. As an alternative to the title of professor, the most
complimentary title for the ROTC unit commander is the military title of
the officer. Other titles, such as Visiting Professor, are acceptable
provided the prerogatives and prerequisites of professional rank
(excluding tenure) accompany the position, and the title is not
demeaning or indicative of some lesser status. Other ROTC officers
shall be evaluated by the host institution for appropriate academic
rank, using procedures comparable to those used for their civilian
faculty colleagues.
(7) Titles of ROTC unit on campus. The term ''Program'' instead of
''Department'' is acceptable as a descriptive term for the ROTC
educational activity, provided no extracurricular connotation is
involved. In this sense, ''Program'' would be applied to ROTC in the
same manner as other academic programs within the institution.
(8) Unit discretion on uniforms and amount of drill. The Military
Department shall prescribe the specific standards of performance cadets
and midshipmen shall achieve in drill. The specific amount of drill to
obtain this standard shall be prescribed by the Professors of Military
Science, Naval Science, and Aerospace Studies. Uniforms shall be worn
for drill and as otherwise prescribed by the commanding officer of the
unit.
(9) Institutional standing committees on ROTC. The Military
Department shall cooperate with institutional standing committees on
ROTC to develop mutually a program of instruction consistent with the
goals of both parties. When the university poses changes that are
inconsistent with the law or military policies, the Military Departments
shall reject the proposals.
(10) Course substitution. The Military Departments may use
institutionally taught courses or courses taught jointly by both
civilian and military faculties, when these courses satisfy the
objective contained in the ROTC curriculum and exist or can be developed
by the university. Guest lecturers may provide specific hours of
instruction in areas where they are academically qualified, provided the
institution approves of this practice. This provision may not be used
to reduce the required minimum military contact hours as specified by
the Military Departments.
(11) Language training requirement for ROTC scholarship students.
(i) The Secretary of the Military Department concerned shall require, as
a condition of providing an ROTC scholarship to any person, that he or
she must agree to complete at least one quarter or semester of college
instruction in a major Indo-European or Asian language prior to
commissioning.
(ii) The Military Departments shall provide guidance that allows
exceptions to this requirement only if the student's academic advisor or
other institutional official provides a written statement to the campus
ROTC Commanding Officer that (A) the institution does not offer such
instruction; or (B) the language requirement will result in a
significant course work overload in the student's schedule.
(d) Acceptance by ROTC staff members of payments or other benefits
offered by educational institutions. An ROTC staff member may accept
only the following payments or other benefits from an institution.
(1) Reasonable compensation or other benefits for services that are
rendered the institution other than during the duty hours of the
military staff members of the ROTC unit (such as coach for an athletic
team, parking lot attendant, assistant military property custodian,
commandant of cadets, assistant commandant of cadets), provided the
services are not part of the member's regularly assigned military
duties, do not interfere with the full and effective performance of his
or her official military duties, do not bring discredit upon the
government, and do not interfere with the customary or regular
employment of local civilians in their art, trade, or profession. Duty
hours for individual staff members of an ROTC unit may not vary from the
duty hours of the unit simply to permit them to qualify for compensation
for services rendered to an institution during the duty hours of the
ROTC unit.
(2) Housing, if a reasonable rental is paid therefore. If housing is
accepted by a member from an institution at other than a reasonable
rental, as for example, without charge, the housing shall be considered
as furnished on behalf of the United States and the member may not be
entitled to a basic allowance for quarters.
(3) Reimbursement by the institution for expenses incurred by the
member for services that the member performed at the request of the
institution and, although clearly beyond the scope of the member's
regularly assigned military duties, that he or she might have been
expected to perform by virtue of the member's position, such as hosting
a social function for visiting dignitaries or conducting an off-campus
workshop for faculty or students. Itemized bills for these expenses
must be presented to the institution. When practicable, arrangements
shall be made for the institution to be billed for these expenses so
they may be paid directly by the institution. Under no circumstances
may a commuted or fixed allowance be accepted from the institution for
the purpose of meeting these expenses.
(4) Enrollment in courses by the member or any member of his or her
immediate family; tickets to school or school-sponsored activities;
parking privileges; books and other supplies and materials from the
institution's book store; and library privileges, either without charge
or at a reduced rate if offered on the same basis to civilian members of
the staff or faculty of the institution.
(e) Procedures regarding oaths and security requirements, physical
examination, deferment, commissioning and assignment of graduates. See
92.7.
(f) ROTC Scholarship Program. The minimum age for award of ROTC
scholarship is 17. At least 50 percent of each Military Department's
ROTC scholarship recipients must qualify for in-state tuition rates at
their respective institutions and shall receive tuition benefits at that
rate. The limitation is applied on a departmental basis.
(g) Conduct of field training. Training under 92.3(a) is prescribed
by 10 U.S.C. 2109 and requires successful completion by members of the
program as a prerequisite to commissioning. Additional practical field
training under 92.3(a) may be authorized by the Secretary of the
Military Department concerned when determined that such training serves
the best interest of the Military Service. The Secretary of the
Military Department concerned may authorize such expenditures as
considered necessary to ensure successful participation in practical
field training programs.
32 CFR 92.6 Responsibilities.
(a) The Assistant Secretary of Defense (Manpower, Reserve Affairs,
and Logistics) shall: (1) Establish overall DoD policy and provide
guidance for the conduct and administration of the ROTC program.
(2) Resolve matters of conflict that may arise among the Military
Services operating ROTC units. ( 92.5(a)(3)(iv)).
(3) Approve, in coordination with the Assistant Secretary of Defense
(Comptroller), the methodology used to disestablish ROTC units proposed
by the Military Department Secretaries ( 92.5(c)).
(b) The Secretaries of the Military Departments shall: (1) Establish
and operate ROTC units upon requests from accredited educational
institutions meeting the requirements outlined in 92.5(b).
(2) Advise the ASD(MRA&L) and other Military Services on the location
of proposed ROTC units before releasing such information 92.5(b)(4).
(3) Initiate disestablishment procedures of ROTC units in accordance
with 92.5(c).
(4) Enter into a written contract as a condition of providing an ROTC
scholarship to persons who agree to conditions stipulated in 92.5(c)
(3) and (11), and are otherwise qualified.
(5) Determine the period of active duty to be served by an ROTC
scholarship recipient ( 92.5(c)(3)(ii)).
(6) Authorize additional practical field training under when
determined that such training serves the best interest of the Military
Service, and authorize resultant expenditures ( 92.5(g)).
32 CFR 92.7 Procedures regarding oaths and security requirements,
medical examination, deferment, commissioning and assignment of
graduates.
(a) Oaths and security requirements -- (1) Basic course enrollment.
(i) With the exception of foreign students enrolled under 10 U.S.C.
2103(b) each applicant for formal enrollment in the basic course, Senior
ROTC, shall execute the following oath or affirmation:
I do solemnly swear (or affirm) that I will support and defend the
Constitution of the United States against all enemies, foreign or
domestic; that I will bear true faith and allegiance to the same; and
that I take this obligation freely, without any mental reservation or
purpose of evasion.
(ii) Students who are required or permitted by educational
institutions to undergo military training and who are not accepted for
formal enrollment may receive basic course instruction with the approval
of the Military Department concerned.
(2) Financial assistance programs and advanced course enrollment.
Each applicant for appointment or enrollment in any of the financial
assistance programs of the Military Services and each applicant for
appointment or enrollment in the advanced course, Senior ROTC, must
satisfy the loyalty and security requirements for enlistment in the
Reserve Components of the appropriate Military Service.
(b) Medical examination. (1) To reduce to an absolute minimum the
loss, at graduation, of persons found medically disqualified for
appointment as commissioned officers, thorough and complete medical
examinations shall be conducted before enrollment in the scholarship
program or at the time of or immediately before enrollment in the
advanced courses of Army, Navy, and Air Force ROTC programs.
(2) Such examinations shall, in all respects, be equal to the
examination conducted to determine medical qualifications for
appointment as a commissioned officer.
(3) Medically disqualified persons may participate in a nonenrolled
status with the approval of the Military Department concerned.
(c) Cross-enrollment. In order to increase the number of quality
students in their host institution's ROTC programs, ROTC units may
enroll qualified students from nearby nonhost institutions.
Cross-enrollment is permitted when a host and nonhost institution are
directly linked by a cross-town or consortium agreement. A cross-town
agreement is a written agreement among a host institution, a nonhost
institution, and Army, Navy, or Air Force ROTC permitting students from
the nonhost institution to enroll in the appropriate ROTC program. A
consortium agreement is an agreement made by two or more institutions
for their mutual benefit to permit cross-enrollment of their students.
As a department of the host institution, the ROTC unit shares as a
beneficiary of the consortium agreement.
(d) Commissioning of graduates. Upon the successful completion of
the required course of instruction, a graduate of a program referred to
herein shall, if otherwise qualified, be appointed a regular or reserve
officer in the appropriate Military Service.
(e) Assignment of graduates. (1) Graduates shall be called to active
duty or active duty for training as soon as possible within a 12-month
period following their appointment as commissioned officers.
(2) Graduates who have fulfilled their active military training and
service obligation, or who have enlisted reserve status and have
performed 6 months of active duty for training under 10 U.S.C. 511 or
672(d) following their appointment as commissioned officers and in
accordance with Military Service requirements, may either be ordered to
active duty or active duty for training under conditions contained in
agreements with the Military Departments, or be given appropriate Ready
Reserve assignments, preferably in the Selected Reserve, when unit
location and skill requirements are compatible with the residence of the
assignee and with his or her military skill.
(3) A graduate may be delayed from being ordered to active duty or
active duty for training under regulations issued by the Secretary of
the Military Department concerned if he or she (i) is the recipient of a
fellowship or scholarship; (ii) has been accepted by a recognized
institution of higher education for graduate studies; (iii) would
suffer undue personal hardship; or (iv) is otherwise precluded from
reporting as ordered for cogent and acceptable reasons. If delayed, the
graduate shall remain subject to the assignment criteria prescribed in
92.7(e) (1) and (2), and shall be assigned to active duty or active duty
for training, as appropriate, at such time as the cause of his or her
delay ceases to exist.
32 CFR 92.7 PART 93 -- ACCEPTANCE OF SERVICE OF PROCESS; RELEASE OF
OFFICIAL INFORMATION IN LITIGATION; AND TESTIMONY BY NSA PERSONNEL AS
WITNESSES
Sec.
93.1 References.
93.2 Purpose and applicability.
93.3 Definitions.
93.4 Policy.
93.5 Procedures.
93.6 Fees.
93.7 Responsibilities.
Authority: E.O. 12333, 3 CFR, 1981 Comp., p. 200, 50 U.S.C. app.
401; 50 U.S.C. app. 402.
Source: 56 FR 51328, Oct. 11, 1991, unless otherwise noted.
32 CFR 93.1 References.
(a) DoD Directive 5405.2, /1/ ''Release of Official Information in
Litigation and Testimony by DoD Personnel as Witnesses,'' July 23, 1985,
reprinted in 32 CFR part 97.
(b) E.O. 12333, United States Intelligence Activities, 3 CFR, 1981
Comp., p. 200, reprinted in 50 U.S.C. app. 401.
(c) The National Security Agency Act of 1959, Public Law No. 86-36,
as amended, 50 U.S.C. app. 402.
(d) Rule 4, Federal Rules of Civil Procedure.
(e) DoD Instruction 7230.7, /2/ ''User Charges'', January 29, 1985.
(f) 28 CFR 50.15.
/1/ Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
/2/ See footnote 1 to 93.1(a).
32 CFR 93.2 Purpose and applicability.
(a) This part implements 93.1(a) in the National Security
Agency/Central Security Service including all field sites (hereinafter
referred to collectively as NSA). The procedures herein are also
promulgated pursuant to the NSA's independent authority, under
1.12(b)(10) of E.O. 12333 referenced under 93.1(b), to protect the
security of its activities, information and employees. This part
establishes policy, assigns responsibilities, and prescribes mandatory
procedures for service of process at NSA and for the release of official
information in litigation by NSA personnel, through testimony or
otherwise.
(b) This part is intended only to provide guidance for the internal
operation of the NSA and does not create any right or benefit,
substantive or procedural, enforceable at law against the United States,
the Department of Defense, or NSA. This part does not override the
statutory privilege against the disclosure of the organization or any
function of the NSA, of any information with respect to the activities
thereof, or of the names, titles, salaries, or numbers of the persons
employed by the NSA. See section 6(a) of the DoD Directive referenced
under 93.1(a).
32 CFR 93.3 Definitions.
(a) Service of process. Refers to the delivery of a summons and
complaint, or other document the purpose of which is to give notice of a
proceeding or to establish the jurisdiction of a court or administrative
proceeding, in the manner prescribed by 93.1(d), to an officer or
agency of the United States named in court or administrative
proceedings.
(b) Demand. Refers to the delivery of a subpoena, order, or other
directive of a court of competent jurisdiction, or other specific
authority, for the production, disclosure, or release of official
information, or for the appearance and testimony of NSA personnel as
witnesses.
(c) NSA personnel. (or NSA person) Includes present and former
civilian employees of NSA (including non-appropriated fund activity
employees), and present and former military personnel assigned to NSA.
NSA personnel also includes non-U.S. nationals who perform services
overseas for NSA under the provisions of status of forces or other
agreements, and specific individuals hired through contractual
agreements by or on behalf of NSA.
(d) Litigation. Refers to 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, or other tribunals, foreign and
domestic. It 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.
(e) Official information. Is information of any kind, in any storage
medium, whether or not classified or protected from disclosure by
93.l(c) that:
(1) Is in the custody and control of NSA; or
(2) Relates to information in the custody and control of NSA; or
(3) Was acquired by NSA personnel as part of their official duties or
because of their official status within NSA.
(f) General Counsel. Refers to the NSA General Counsel (GC), or in
the GC's absence, the NSA Deputy GC, or in both of their absences, the
NSA Assistant GC (Administration/Litigation).
(g) NSA attorney. Refers to an attorney in the NSA Office of General
Counsel (OGC).
32 CFR 93.4 Policy.
Official information that is not classified, privileged, or otherwise
protected from public disclosure, should generally be made reasonably
available for use in federal and state courts and by other governmental
bodies.
32 CFR 93.5 Procedures.
(a) Release of official information in litigation. NSA personnel
shall not produce, disclose, release, comment upon, or testify
concerning any official information during litigation without the prior
written approval of the GC. In exigent circumstances, the GC may issue
oral approval, but a record of such approval will be made and retained
in the OGC. NSA personnel shall not provide, with or without
compensation, opinion or expert testimony concerning official NSA
information, subjects, or activities, except on behalf of the United
States or a party represented by the Department of Justice (DoJ). Upon
a showing by the requester of exceptional need or unique circumstances
and that the anticipated testimony will not be adverse to the interests
of the NSA or the United States, the GC may, in writing, grant special
authorization for NSA personnel to appear and testify at no expense to
the United States. Official information may be released in litigation
only in compliance with the following procedures.
(1) If official information is sought, through testimony or
otherwise, by a litigation 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 (a)(5) of this section, NSA personnel may only
produce, disclose, release, comment upon or testify concerning those
matters that were specified in writing and approved by the GC.
(2) Whenever a litigation demand is made upon NSA personnel for
official information or for testimony concerning such information, the
person upon whom the demand was made shall immediately notify the OGC.
After consultation and coordination with the DoJ, if required, the GC
shall determine whether the individual is required to comply with the
demand and shall notify the requester or the court or other authority of
that determination.
(3) If a litigation demand requires a response before instructions
from the GC are received, the GC shall furnish the requester or the
court or other authority with a copy of 93.1(a) and this part 93. The
GC shall also inform the requester or the court or other authority that
the demand is being reviewed, and seek a stay of the demand pending a
final determination.
(4) If a court or other authority declines to stay the demand in
response to action taken pursuant to paragraph 3 of this section, or if
such court or other authority orders that the demand must be complied
with notwithstanding the final decision of the GC, the NSA personnel
upon whom the demand was made shall notify the GC of such ruling or
order. If the GC determines that no further legal review of or
challenge to the ruling or order will be sought, the affected NSA
personnel shall comply with the demand or order. If directed by the GC,
however, the affected NSA personnel must decline to provide the
information. /3/ The NSA personnel shall state the following to the
Court:
''I must respectfully advise the Court that under instructions given
to me by the General Counsel of the National Security Agency, in
accordance with Department of Defense Directive 5405.2 and NSA
Regulation 10-62, I must respectfully decline to (produce/disclose) that
information.''
(5) In the event NSA personnel receive a litigation demand for
official information originated by another U.S. Government component,
the GC shall forward the appropriate portions of the request to the
other component. The GC shall notify the requester, court, or other
authority of the transfer, unless such notice would itself disclose
classified information.
(b) Acceptance of service of process. The following are mandatory
procedures for accepting service of process for NSA personnel sued or
summoned in their official capacities, and for attempting service of
process on NSA premises.
(1) Service on NSA or on NSA personnel in their official capacities.
93.1(d) requires service of process on the NSA or NSA personnel sued or
summoned in their official capacity to be made by serving the United
States Attorney for the district in which the action is brought, and by
sending copies of the summons and complaint by registered or certified
mail to the Attorney General of the United States and to the NSA or such
NSA personnel. Only the GC or an NSA attorney is authorized to accept
the copies of the summons and complaint sent to the NSA or NSA personnel
pursuant to 93.1(d). Acceptance of the copies of the summons and
complaint by the GC or an NSA attorney does not constitute an admission
or waiver with respect to the validity of the service of process or of
the jurisdiction of the court or other body. Such copies shall be sent
by registered or certified mail to: General Counsel, National Security
Agency, 9800 Savage Road, Fort George G. Meade, MD 20755-6000. The
envelope shall be conspicuously marked ''Copy of Summons and Complaint
Enclosed.'' Except as provided in paragraph (b)(3) of this section, no
other person may accept the copies of the summons and complaint for NSA
or NSA personnel sued or summoned in their official capacities,
including the sued or summoned NSA personnel, without the prior express
authorization of the GC.
(i) Parties who wish to deliver, instead of sending by registered or
certified mail, the copies of the service of process to NSA or to NSA
personnel sued or summoned in their official capacities, will comply
with the procedures for service of process on NSA premises in paragraph
(b) of this section.
(ii) Litigants may attempt to serve process upon NSA personnel in
their official capacities at their residences or other places. Because
NSA personnel are not authorized to accept such service of process, such
service is not effective under 93.1(d). NSA personnel should refuse to
accept service. However, NSA personnel may find it difficult to
determine whether they are being sued or summoned in their private or
official capacity. Therefore, NSA personnel shall notify the OGC as
soon as possible if they receive any summons or complaint that appears
to relate to actions in connection with their official duties so that
the GC can determine the scope of service.
(2) Service upon NSA personnel in their individual capacities on NSA
premises. Service of process is not a function of NSA. An NSA attorney
will not accept service of process for NSA personnel sued or summoned in
their individual capacities, nor will NSA personnel be required to
accept service of process on NSA premises. Acceptance of such service
of process in a person's individual capacity is the individual's
responsibility. NSA does, however, encourage cooperation with the
courts and with judicial officials.
(i) When the NSA person works at NSA Headquarters at Fort George G.
Meade, Maryland, the process server should first telephone the OGC on
(301) 688-6054, and attempt to schedule a time for the NSA person to
accept process. If the NSA person's affiliation with NSA is not
classified, the NSA attorney will communicate with the NSA person and
serve as the contact point for the person and the process server. If
the person consents to accept service of process, the NSA attorney will
arrange a convenient time for the process server to come to NSA, and
will notify the Security Duty Officer of the arrangement.
(ii) A process server who arrives at NSA during duty hours without
first having contacted the OGC, will be referred to the Visitor Control
Center (VCC) at Operations Building 2A. The VCC will contact the OGC.
If an NSA attorney is not available, the process server will be referred
to the Security Duty Officer, who will act in accordance with Office of
Security (M5) procedures approved by the GC. Service of process will
not be accepted during non-duty hours unless prior arrangements have
been made by the OGC. For purposes of this part, duty hours at NSA
Headquarters are 0800 to 1700, Monday through Friday, excluding legal
holidays. A process server who arrives at NSA during non-duty hours
without having made arrangements through the OGC to do so will be told
to call the OGC during duty hours to arrange to serve process.
(iii) Upon being notified that a process server is at the VCC, an NSA
attorney will review the service of process and determine whether the
NSA person is being sued or summoned in his official or individual
capacity. (If the person is being sued or summoned in his or her
official capacity, the NSA attorney will accept service of process by
noting on the return of service form that ''service is accepted in
official capacity only.'') If the person is being sued or summoned in
his or her individual capacity, the NSA attorney will contact that
person to see if that person will consent to accept service.
(3) Procedures at field activities. Chiefs of NSA field activities
may accept copies of service of process for themselves or NSA personnel
assigned to their field component who are sued or summoned in their
official capacities. Field Chiefs or their designees will accept by
noting on the return of service form that ''service is accepted in
official capacity only.'' The matter will then immediately be referred
to the GC. Additionally, Field Chiefs will establish procedures at the
field site, including a provision for liaison with local judge
advocates, to ensure that service of process on persons in their
individual capacities is accomplished in accordance with local law,
relevant treaties, and Status of Forces Agreements. Such procedures
must be approved by the GC. Field Chiefs will designate a point of
contact to conduct liaison with the OGC.
(4) No individual will confirm or deny that the person sued or
summoned is affiliated with NSA until a NSA attorney or the Field Chief
has ascertained that the individual's relationship with NSA is not
classified. If the NSA person's association with NSA is classified,
service of process will not be accepted. In such a case, the GC must be
immediately informed. The GC will then contact the DoJ for guidance.
(5) Suits in Foreign Courts. If any NSA person is sued or summoned
in a foreign court, that person, or the cognizant Field Chief, will
immediately telefax a copy of the service of process to the OGC. Such
person will not complete any return of service forms unless advised
otherwise by an NSA attorney. OGC will coordinate with the DoJ to
determine whether service is effective and whether the NSA person is
entitled to be represented at Government expense pursuant to 93.1(f).
/3/ See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951)
wherein the Supreme Court held that a government employee could not be
held in contempt for following an agency regulation requiring agency
approval before producing government information in response to a court
order.
32 CFR 93.6 Fees.
Consistent with the guidelines in 93.1(e), NSA may charge reasonable
fees to parties seeking, by request or demand, official information not
otherwise available under the Freedom of Information Act, 5 U.S.C. 552.
Such fees are calculated to reimburse the Government for the expense of
providing such information, and may include:
(a) The costs of time expended by NSA employees to process and
respond to the request or demand;
(b) 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
(c) Expenses generated by materials and equipment used to search for,
produce, and copy the responsive information.
32 CFR 93.7 Responsibilities.
(a) The General Counsel. The GC is responsible for overseeing NSA
compliance with 93.1(a) and this part 93, and for consulting with DoJ
when appropriate. In response to a litigation demand requesting
official information or the testimony of NSA personnel as witnesses, the
GC will coordinate NSA action to determine whether official information
may be released and whether NSA personnel may be interviewed, contacted,
or used as witnesses. The GC will determine what, if any, conditions
will be imposed upon such release, interview, contact, or testimony. In
most cases, an NSA attorney will be present when NSA personnel are
interviewed or testify concerning official information. The GC may
delegate these authorities.
(b) The Deputy Director for Plans and Policy (DDPP). The DDPP will
assit the GC, upon request, in identifying and coordinating with NSA
components that have cognizance over official information requested in a
litigation demand. Additionally, the DDPP will advise the GC on the
classified status of official information, and, when necessary, assist
in declassifying, redacting, substituting, or summarizing official
information for use in litigation. The DDPP may require the assistance
of other Key Component Chiefs.
(c) Chiefs of Key Components and Field Activities. Chiefs of Key
Components and Field Activities shall ensure that their personnel are
informed of the contents of this part 93, particularly of the
requirements to consult with the OGC prior to responding to any
litigation demand, and to inform the OGC whenever they receive service
of process that is not clearly in their individual capacities. Field
Chiefs will notify the OGC of the persons they designate under
93.5(b)(3).
(d) The Deputy Director for Administration (DDA). Within 60 days of
the date of this part, the DDA shall submit to the GC for approval
procedures for the attempted delivery of service of process during duty
hours when an attorney of the OGC is not available.
32 CFR 93.7 PART 94 -- NATURALIZATION OF ALIENS SERVING IN THE ARMED
FORCES OF THE UNITED STATES AND OF ALIEN SPOUSES AND/OR ALIEN ADOPTED
CHILDREN OF MILITARY AND CIVILIAN PERSONNEL ORDERED OVERSEAS
Sec.
94.1 Purpose.
94.2 Applicability.
94.3 Definitions.
94.4 Policy and procedures.
94.5 Forms required.
Authority: Sec. 301, 80 Stat. 379; 5 U.S.C. 301.
Source: 35 FR 17540, Nov. 14, 1970, unless otherwise noted.
32 CFR 94.1 Purpose.
This part prescribes uniform procedures acceptable to the Immigration
and Naturalization Service of the Department of Justice, to (a)
facilitate the naturalization of aliens who have served honorably in the
Armed Forces of the United States and to (b) militarily certify alien
dependents seeking naturalization under the provisions of Immigration
and Nationality Act of 1952, as amended, sections 319(b) and 323(c) (8
U.S.C. 1430(b) and 1434(c)); and furnishes policy guidance to the
Secretaries of the Military Departments governing discharge or release
from active duty in the Armed Forces of the United States of
permanent-residence aliens who desire to be naturalized as U.S. citizens
under the provisions of Act of June 27, 1952, section 328 (66 Stat.
249); 8 U.S.C. 1439.
32 CFR 94.2 Applicability.
The provisions of this part apply to the Military Departments.
32 CFR 94.3 Definitions.
(a) ''Permanent-residence alien'' is an alien admitted into the
United States under an immigration visa for permanent residence; or an
alien, who, after admission without an immigrant visa, has had his
status adjusted to that of an alien lawfully admitted for permanent
residence.
(b) ''Armed Forces of the United States'' denotes collectively all
components of the Army, Navy, Air Force, Marine Corps, and Coast Guard.
32 CFR 94.4 Policy and procedures.
(a) Naturalization of an alien who has served honorably in the Armed
Forces of the United States at any time. (1) Under the provisions of
Act of June 27, 1952, section 328 (66 Stat. 249); 8 U.S.C. 1439, an
alien who has served in the Armed Forces of the United States for a
period(s) totaling three (3) years may be naturalized if he:
(i) Has been lawfully admitted to the United States for permanent
residence;
(ii) Was separated from the military service under honorable
conditions;
(iii) Files a petition while still in the military service, or within
six (6) months after the termination of such service; and
(iv) Can comply in all other respects with the Immigration and
Nationality Act of 1952, except that (a) no period of residence or
specified period of physical presence in the United States or the State
in which the petition for naturalization is filed is required, and (b)
residence within the jurisdiction of the court is not required.
(2) The prescribed 3-year period may be satisfied by a combination of
active duty and inactive duty in a reserve status.
(3) An alien member desiring to fulfill naturalization requirements
through military service shall not be separated prior to completion of
three (3) full years of active duty unless:
(i) His performance or conduct does not justify retention, in which
case he shall be separated in accordance with the provisions of Part 41
of this subchapter and chapter 47, Title 10, United States Code (Uniform
Code of Military Justice), as appropriate; or
(ii) He is to be transferred to inactive duty in a reserve component
in order to:
(a) Complete a reserve obligation under the provisions of Part 50 of
this subchapter, or
(b) Attend a recognized institution of learning under the early
release program, as provided in DoD Instruction 1332.15, ''Early Release
of Military Enlisted Personnel for College or Vocational/Technical
School Enrollment,'' January 26, 1970. /1/
(4) Caution shall be exercised to ensure that an alien's affiliation
with the Armed Forces of the United States, whether on active duty or on
inactive duty in a reserve status, is not terminated even for a few days
short of the 3-year statutory period, since failure to comply with the
exact 3-year requirement of Act of June 27, 1952, section 328 (66 Stat.
249); 8 U.S.C. 1439 will automatically preclude a favorable
determination by the Immigration and Naturalization Service on any
petition for naturalization based on an alien's military service.
(5) During a period of hostilities, as designated by the President of
the United States, the expeditious naturalization provisions outlined in
paragraph (b) of this section, will take precedence over the foregoing.
(b) Naturalization of an alien who has served in the Armed Forces of
the United States during a period of hostilities as designated by the
President of the United States. (1) Under the provisions of Immigration
and Nationality Act of 1952, as amended, section 329 (8 U.S.C. 1440), an
alien who serves honorably on active duty in the Armed Forces of the
United States during the period beginning February 28, 1961, and ending
on a date designated by the President, by Executive order, as the date
of termination of the Vietnam hostilities, or during any future period
which President, by Executive order, shall designate as a period in
which the Armed Forces of the United States are or were engaged in
military operations involving armed conflict with a hostile foreign
force, and who is otherwise eligible, may be naturalized whether or not
he has been lawfully admitted to the United States for permanent
residence, if the member was inducted, enlisted, or reenlisted in the
United States (inclusive of Puerto Rico, Guam, Virgin Islands, Canal
Zone, American Samoa, or Swains Island).
(i) The induction, enlistment, or reenlistment in the United States
or its stated possessions must actually be in these land areas, in
ports, harbors, bays, enclosed sea areas along their routes, or within a
marginal belt of the sea extending from the coastline outward three (3)
geographical miles.
(ii) Enlistment or reenlistment aboard a ship on the high seas or in
foreign waters does not meet the requirements of Immigration and
Nationality Act of 1952, as amended, section 329 (8 U.S.C. 1440). In
such instances, the provisions of paragraph (a) of this section may
apply.
(2) Each Military Department will establish procedures containing the
provisions outlined in paragraphs (b)(2) (i) and (ii) of this section.
In addition, each qualifying alien shall be advised of the liberalized
naturalization provisions of the Immigration and Nationality Act of
1952, as amended, section 329 (8 U.S.C. 1440), i.e., that the usual
naturalization requirements concerning age, residence, physical
presence, court jurisdiction and waiting periods are not applicable, and
will be given appropriate assistance in processing his naturalization
application in consonance with procedures contained in ''Naturalization
Requirements and General Information,'' published by the U.S. Department
of Justice (Form N-17).
(i) Military basic training and orientation programs will include
advice and assistance to interested aliens in completing and submitting
the application and other forms required to initiate naturalization
proceedings.
(ii) In addition, applicants should be advised that:
(a) Under the laws of certain foreign countries, military service in
the Armed Forces of the United States may result in the loss of their
native country citizenship but this same service may make them eligible
for U.S. citizenship.
(b) Their eligibility for naturalization, based upon the honorable
service in an active duty status prescribed in the Immigration and
Nationality Act of 1952, as amended, section 329 (8 U.S.C. 1440) will be
retained, even though they apply for naturalization after their return
to the United States following the termination or completion of their
overseas assignment, or after their honorable discharge from the Armed
Forces of the United States.
(c) If they are stationed at a base in the continental United States,
Alaska, Hawaii, Puerto Rico, Guam, or the Virgin Islands, they should
apply for citizenship only if they expect to be stationed at the base
for at least 60 days following application. Unless the Immigration and
Naturalization Service has at least 60 days in which to complete the
case, there is no assurance that it can be completed before the
applicant is transferred, since the processing procedures outlined below
take time and are not entirely within the control of the Immigration and
Naturalization Service.
(1) Every naturalization application must be processed when received
by the Immigration and Naturalization Service. Special arrangements
have been made to expedite the processing of petitions of alien members
of the Armed Forces.
(2) After processing, the alien applicant and two citizen witnesses
must personally appear for examination by an officer of the Immigration
and Naturalization Service in connection with the filing of a petition
for naturalization in court.
(3) Finally, the applicant must appear in person before the
naturalization court on a date set by the court so that he may be
admitted to citizenship.
(d) If the alien member is scheduled for overseas assignment where
naturalization courts are not available, he should apply for
naturalization on the earliest possible date but no later than 60 days
before departure for overseas assignment. No assurance that processing
will be completed before the applicant's departure for overseas will be
given by the Immigration and Naturalization Service unless it has 60
days to complete the matter.
(1) An alien serviceman who is serving overseas and has submitted or
submits the required naturalization application and forms to the
Immigration and Naturalization Service may not be granted ordinary
leave, or Rest and Recuperation (R&R) leave (where authorized in
overseas areas) for naturalization purposes, unless a written
notification from the Immigration and Naturalization Service has been
received by the serviceman informing him that the processing of his
application has been completed, and requesting him to appear with two
U.S. citizen witnesses before a representative of the Immigration and
Naturalization Service at a designated location for the purpose of
completing the naturalization.
(2) If possible, an applicant granted leave for such purposes should
advise the Immigration and Naturalization Service when he expects to
arrive in the leave area and, in any event, should contact the
Immigration and Naturalization Service office immediately upon arrival
in the area. Every effort will be made to complete the naturalization
within the leave period.
(c) Naturalization of alien spouses and/or alien adopted children of
military and civilian personnel ordered overseas. Alien spouses and/or
alien adopted children of military and civilian personnel of the
Department of Defense who are authorized to accompany or join their
sponsors overseas and who wish to obtain U.S. citizenship prior to
departure will be given maximum assistance by commanders of military
installations.
(1) DD Form 1278, ''Certificate of Overseas Assignment to Support
Application to File Petition for Naturalization,'' /2/ will be issued to
alien dependents by military commanders at the times indicated below in
order that the alien may file such certificate with the nearest
Immigration and Naturalization Service Office to initiate naturalization
proceedings. Only DD Form 1278 will be accepted by the Immigration and
Naturalization Service. Military commanders will not issue memoranda or
letters of any kind in lieu thereof.
(i) When dependents are authorized automatic concurrent travel, DD
Form 1278 will be issued not earlier than 90 days prior to the
dependents' schedule date of travel.
(ii) When advance application for concurrent travel is required, DD
Form 1278 will be issued after approval is received and not earlier than
90 days prior to the dependents' scheduled date of departure.
(iii) When concurrent travel is not authorized, DD Form 1278 will be
issued after authorization for dependents' movement is received and not
earlier than 90 days prior to the dependents' scheduled date of travel.
(2) Upon receipt of DD Form 1278, the alien will file this form,
together with the application for petition for naturalization,
Immigration and Naturalization Form N-400 (adult) or N-402 (child) as
appropriate, if not previously filed, with the nearest office of the
Immigration and Naturalization Service. The application must be
accompanied by:
(i) Three identical photographs.
(ii) Form FD-358, Applicant Fingerprint Card, and
(iii) Form G-325, Biographic Information.
(3) Further processing of the application for citizenship is as
prescribed by the Immigration and Naturalization Service.
(4) Upon completion of the naturalization process, immediate
application for passport should be made, in order that it can be issued
prior to scheduled departure of the dependent for overseas.
/1/ Filed as part of original. Copies available from the U.S. Naval
Publications and Forms Center, 5801 Tabor Avenue, Philadelphia, Pa.
19120, Attention: Code 300.
/2/ Filed as part of original. Copies may be obtained from
Departments of the Army, Navy, and Air Force.
32 CFR 94.5 Forms required.
The following forms required for naturalization purposes may be
obtained from any office of the Immigration and Naturalization Service:
(a) N-400 Application to File a Petition for Naturalization (Adult)
(Submit original form only).
(b) N-402 Application to File a Petition for Naturalization (Child)
(Submit original form only).
(c) G-325 Biographic Information (Submit original and duplicate of
multileaf form).
(d) G-325B Biographic Information (Submit original form only).
(e) FD-258 Applicant Fingerprint Card (Submit one completed card).
(f) N-426 Certificate of Military or Naval Service (Submit in
triplicate). (Should be handled on a priority basis so as to avoid
prejudicing the early completion of the naturalization process,
particularly for an alien who may receive an overseas assignment.)
(g) ''Naturalization Requirements and General Information,''
published by the U.S. Department of Justice (Form N-17) describes the
naturalization requirements and lists Immigration and Naturalization
offices which process applications.
32 CFR 94.5 PART 95 -- GIFTS FROM FOREIGN GOVERNMENTS
Sec.
95.1 Purpose.
95.2 Applicability.
95.3 Definitions.
95.4 Policy.
95.5 Responsibilities.
95.6 Procedures.
95.7 Information requirements.
Appendix A to Part 95 -- Procedures for the Receipt and Disposition
of Gifts
Authority: 10 U.S.C. 113.
Source: 53 FR 45085, Nov. 8, 1988, unless otherwise noted.
32 CFR 95.1 Purpose.
This Part:
(a) Updates policy governing the acceptance and retention of gifts
from foreign governments.
(b) Implements DoD Directive 1005.13 and 5 U.S.C. 2105, 3109, and
7342 that allow Federal employees to accept certain gifts from foreign
governments.
(c) Assigns responsibilities and prescribes procedures.
32 CFR 95.2 Applicability.
This Part applies to:
(a) The Office of the Secretary of Defense (OSD); the Military
Departments; the Joint Chiefs of Staff (JCS); the Joint Staff; the
Unified and Specified Commands; and the Defense Agencies (hereafter
referred to collectively as ''DoD Components''). The term ''Military
Services,'' as used herein, refers to the Army, Navy, Air Force, and
Marine Corps.
(b) All DoD military and civilain personnel, their spouses (unless
legally separated), and their dependents as defined in 26 U.S.C. 152
(hereafter called ''employees'').
32 CFR 95.3 Definitions.
Employee. An employee of a DoD Component, as defined in 5 U.S.C.
2105; an expert or consultant under contract with a DoD Component,
including any individual performing services for a DoD Component under 5
U.S.C. 3109 and members of the Military Services (including retired
members and Reservists) regardless of duty status; the spouses of all
such individuals (unless legally separated) and their dependents as
defined in 26 U.S.C. 152.
Employing Component. The DoD Component in which the recipient is
appointed, employed, or enlisted. If a recipient is a spouse or
dependent of a serving individual, then the following Component is that
in which the serving individual is appointed, employed, or enlisted.
(a) The Military Departments are considered the employing Components
for all military and civilian personnel assigned to them. The Military
Department also act as the employing Component for all personnel,
military and civilian, either directly employed or assigned to the
headquarters of Unified Commands.
(b) The OSD is considered the employing Component for its military
and civilian personnel, the Joint Staff, the Defense Advanced Research
Projects Agency (DARPA), the Defense Security Assistance Agency (DSAA),
Strategic Defense Initiative Organization (SDIO), the DoD Field
Activities, and other DoD activities not specifically designated an
employing Component.
(c) The Defense Agencies (except DARPA, DSAA, and SDIO) are
considered the employing Components for their civilian employees and for
military members assigned to duty with them.
Foreign Government. Includes any unit of a foreign governmental
authority, including any foreign national, state, local, and municipal
government; any international or multinational organization whose
membership is composed of any unit of foreign government; and any agent
or representatives of any such unit or organization while acting as
such.
Gift. Any tangible or intangible present by or received from a
foreign government.
Minimal Value. A retail value in the United States at the time of
acceptance not in excess of $180 or such amount specified by the
Administrator of General Services under 5 U.S.C. 7342.
Responsible Accountable Official. The official designated by the
employing Component to approve the annual report of foreign gifts.
Travel Expenses. Costs of transportation, food, and lodging incurred
during the travel period.
32 CFR 95.4 Policy.
No DoD employee may accept, request, or otherwise encourage the offer
of a gift from a foreign government. Whenever possible, employees shall
refuse accepance of gifts of any type or nature.
32 CFR 95.5 Responsibilities.
(a) The Director of Administration and Management, Office of the
Secretary of Defense (DA&M, OSD), shall:
(1) Develop policy and provide guidance to DoD employees regarding
the acceptance and retention of gifts offered by foreign governments.
(2) Implement this Part for all OSD personnel as defined in paragraph
(b) of definition Employing Component, 95.3.
(b) The Heads of DoD Components shall designate an official who shall
be responsbile for monitoring compliance with this Part and who shall:
(1) Establish procedures to ensure that employees are familiar with
the requirements and restrictions governing acceptance of gifts from
foreign governments under 5 U.S.C. 7342.
(2) Review cases in which there exists evidence of failure of any
employee to comply with requirements, and establish disciplinary
procedures.
(3) Report to the Attorney General, through the General Counsel of
the Department of Defense (GC, DoD), when it is determined
administratively that an employee who is the donee of a gift, or is the
recipient of travel or travel expenses, has failed to comply with the
procedures established by 5 U.S.C. 2105, 3109 and 7342 through actions
or circumstances within the donee's control.
(4) Obtain appraisals of the value of gifts, as required by 5 U.S.C.
7342 and GSA Regulation.
32 CFR 95.6 Procedures.
(a) Gifts of Minimal Value. Table favors, mementos, remembrances, or
other tokens bestowed at official functions, and other gifts of minimal
value received as souvenirs or marks of courtesy from a foreign
government may be accepted and retained by the recipient. The burden of
proof is upon the recipient to establish that the gift is of minimal
value as Minimal Value defined in 95.3.
(b) Gifts of More Than Minimal Value. (1) When a gift of more than
minimal value is tendered, the donor shall be advised that statutory
provisions and DoD policy prohibit employees from accepting such gifts,
unless the gift is in the nature of an educational scholarship or
medical treatment. If it appears that refusal of a gift, other than
medical or educational, may offend or embarrass the donor or could
affect adversely the foreign relations of the United States, it may be
accepted. (See paragraph 1.c., Appendix of this Part.) The gift then
becomes the property of the United States and shall be deposited with
the employing DoD Component, in accordance with 41 CFR Part 101-49 and
Appendix of this Part, within 60 days for return to the donor, for use
within the Component, or for disposition by the GSA.
(2) When more than one tangible gift is included in a single
presentation from the same donor to an employee, or jointly to an
employee and spouse, the aggregate value of the gifts received at that
time must not exceed the minimal value.
(c) An employing Component may, in its implementing documents:
(1) Provide that all gifts shall be appraised, and that the appraisal
shall be conclusive as to the value of the gift.
(2) Define minimal value to be less than the figure set in definition
Minimal Value of 95.3.
(3) Require that acceptance and retention of any gift, regardless of
value, be subject to approval of the DoD Component concerned.
(d) An employing Component is not required to report travel or travel
expenses of more than minimal value that were authorized by that
Component under conditions stipulated in item 5., Appendix to this Part.
(e) Any gifts not approved for acceptance by the employing DoD
Component shall become the property of the United States and shall be
reported as a gift to be disposed of in accordance with the procedures
outlined in enclosure 2.
(f) The Attorney General may bring a civil action in any U.S.
district court against any employee who knowingly violates 5 U.S.C.
7342. The court in which such action is brought may assess a penalty
against that employee in an amount not to exceed the retail value of the
gift improperly solicited or received, plus $5,000, in accordance with 5
U.S.C. 7342.
(g) Receipt and Disposition of Gifts. Procedures are provided in
Appendix of this Part.
32 CFR 95.7 Information requirements.
Interagency reporting requirements on gifts from foreign governments
are licensed under IRCN 0216-DOS-AN.
32 CFR 95.7 Appendix A to Part 95 -- Procedures for the Receipt and Disposition of Gifts
32 CFR 95.7 Pt. 95, App. A
1. Use or Disposal of Gifts that Become the Property of the United
States
a. Any gift that becomes the property of the United States under 5
U.S.C. 7342 may be retained for official use by the employing Component
that is responsible for the security of gifts in its custody. DoD
Component regulations shall:
(1) Avoid to the maximum extent possible arbitrary action in
approving or retaining gifts for official use.
(2) Ensure that all employees are provided the opportunity to receive
the indirect benefit of gifts retained for official use. Gifts may not
be used for the benefit of any individual. Gifts retained for official
use shall be reported to the GSA under 41 CFR 101-49, subpart 2, within
30 calendar days after termination of the official use.
b. Gifts that the employing Component does not wish to retain or that
are not approved for retention should be reported to the GSA within 30
calendar days after depositing the gift with the employing Component.
In this case, the following actions apply:
(1) Complete Standard Form (SF) 120, ''Report of Excess Personal
Property,'' and forward to GSA, Property Management Division,
Washington, DC 20406. A sample form and instructions are attached to
this enclosure.
(2) The employing Component is responsible for the custody and
security of gifts and shall hold them until instructions are received
from GSA regarding their disposition.
(3) The employing Component shall be responsible for and bear the
cost of care and handling of gifts in its custody and for delivery of
the gifts to the physical custody of GSA after the screening period.
(4) Gifts for which there are no Federal requirements as determined
by GSA may be offered for sale to recipients before donation when so
requested by recipients.
(5) When a recipient indicates an interest in purchasing a gift, the
gift is to be reported to GSA on SF 120, Report of Excess Personal
Property (attachment 1), for utilization screening before sale to the
recipient. GSA shall notify the employing agency if the gift will be
offered for negotiated sale to the recipient. The employing agency
shall obtain a commercial appraisal and forward a copy of it, attached
to a copy of the original SF 120, to GSA. GSA shall notify the
employing agency when action is completed. The sales price, to be paid
to GSA, shall be the appraised value of the gift plus the cost of the
appraisal.
c. If returning the gift to the original donor will adversely affect
U.S. foreign relations, the disposing Component shall consult with
appropriate officials in the Department of State (DoS) before taking any
action.
d. GSA normally shall not take custody of gifts for which recipients
have expressed an interest in purchasing. Such gifts shall remain in
the physical custody and be the responsibility of the employing agency
until recipients either purchase or decline to purchase them. GSA shall
accept physical custody of gifts that recipients decline to purchase and
that are not retained for official use or returned to the donors.
e. Disposal of Firearms. Firearms received as foreign gifts may be
offered for transfer to Federal Agencies including law enforcement
activities. Firearms not required for Federal use may be sold to
interested recipients at the discretion of GSA. A certification that
the recipient shall comply with all State and local laws regarding
purchase and possession of firearms must be received by GSA prior to
release of such firearms to the purchaser. Those firearms not
transferred to a Federal activity or sold to recipients shall be
destroyed in accordance with 41 CFR Part 101-45.
2. Recording of Gifts of More Than Minimal Value. Each employing
Component shall maintain records of gifts of more than minimal value
received by their employees from foreign governments. A compilation
shall be made each year and transmitted to the Secretary of State no
later than January 31. This compilation shall include the following
information:
a. Name and title of recipient.
b. Brief description of the gift, date of acceptance, estimated
value, and current disposition or location.
c. Identity of foreign donor and government.
d. Circumstances justifying acceptance.
3. Donations or Transfer of Gifts. a. A gift may be recommended for
donation or transfer by the recipient to an eligible public agency or
nonprofit tax-exempt institution for public display, reference, or use.
(1) The employee recipient may indicate a recommendation for donation
with a statement on the SF 120 citing the specific donee. Justification
for the request must be supported by a letter from the recipient
outlining any special significance of the gift to the proposed donee.
The mailing address and telephone number of both the recipient and donee
shall be included in the letter.
(2) The employee recipient may indicate a recommendation for transfer
of a gift to an eligible public agency for public display or other
authorized agency use. This request shall be indicated on the SF 120
citing the specific donee, and shall include a brief justification of
the display or official use of the gift.
4. Sale or Destruction of Tangible Gifts Valued at $180 or Less.
Employing Components are authorized to sell or destroy tangible gifts
valued at $180 or less not retained by the recipient.
5. Travel Expenses. Employing Components shall include in their
implementing documents criteria to be applied in determining the
propriety of accepting travel expenses of more than minimal value, such
as:
a. The travel shall begin and end outside the United States, except
when travel across the continental United States (CONUS) is the
shortest, least costly, or only available route to destination.
b. The travel shall be in the best interests of the Component and the
U.S. Government considering all the circumstances.
c. The travel does not contravene any other Component regulation.
insert issustration 0-726
32 CFR 95.7 Attachment 2 to Appendix
32 CFR 95.7 Instructions for Completion of Standard Form 120 ''Report
of Excess Personal Property''
Block 1 -- Enter the DoD Activity address code (six digits)
identifying the reporting activity, and the Julian data (four digits) on
which the report is prepared. If the report is a correction or
withdrawal of a prior report, enter the original report number in block
1 and mark the appropriate type of report in block 4.
Block 2-17 -- Self-explanatory.
Block 18(a) -- Enter a unique four-digit number for each item. Any
combination of alpha and/or numeric characters may be used except the
alpha characters I and O.
18(b) -- Include the name and position of the employee recipient, to
include address and telephone number if purchase or donation is desired.
Also include a full description of the gift and the identity of the
foreign government and the name and position of the individual who
presented the gift (include date). Provide the estimate retail value of
the gift in the United States at the time of acceptance or the appraised
value, if known. If the employee recipient is interested in purchasing
the gift, so indicate. A commercial appraisal plus cost of appraisal
shall be annotated and a copy of the appraisal attached. If the
recipient is interested in having the gift donated to an eligible public
agency or nonprofit tax-exempt institution, that should be indicated
here.
18(e) -- The quantity for each line item should always be one. For
example: three pairs of cuff links will be reported as three separate
line items, 0001 thru 0003, each reflecting a quantity of one pair.
32 CFR 95.7 PART 96 -- ACQUISITION AND USE OF CRIMINAL HISTORY RECORD
INFORMATION BY THE MILITARY SERVICES
Sec.
96.1 Purpose.
96.2 Applicability.
96.3 Definitions.
96.4 Policy.
96.5 Responsibilities.
96.6 Procedures.
Authority: 10 U.S.C. 503, 504, 505, and 520a.
Source: 49 FR 23042, June 4, 1984, unless otherwise noted.
32 CFR 96.1 Purpose.
Under title 10 U.S. Code, sections 503, 504, 505 and 520a, this part
establishes policy guidance concerning the acquisition of criminal
history record information for use in determining an enlistment
applicant's suitability for entry and for participation in special
programs that require a determination of trustworthiness (Part 156 of
this title), assigns responsibilities, and prescribes procedures.
32 CFR 96.2 Applicability.
This part applies to the Office of the Secretary of Defense, the
Military Departments, and the Defense Investigative Service (DIS). The
term ''Military Services,'' as used herein, refers to the Army, Navy,
Air Force, and Marine Corps.
32 CFR 96.3 Definitions.
(a) Criminal history record information (with respect to any juvenile
or adult arrest, citation, or conviction). The offense involved; age
of the person involved; dates of arrest, citation, or conviction, if
any; place of the alleged offense; place of arrest and assigned court;
and disposition of the case.
(b) Criminal justice system. State, county, and local government law
enforcement agencies; courts and clerks of courts; and other
government agencies authorized to collect, maintain, and disseminate
criminal history record information.
(c) Special programs. Military Services' programs that, because of
their sensitivity or access to classified information, require the DIS
to perform the investigations specified in Chapter III of DoD 5200.2-R.
32 CFR 96.4 Policy.
Section 503 of title 10 U.S. Code requires the Secretaries of the
Military Departments to conduct intensive recruiting campaigns to obtain
enlistments. It is the policy of the Department of Defense that the
Military Services review the background of applicants for enlistment and
for participation in special programs to identify:
(a) Those whose backgrounds pose serious questions as to fitness for
service (10 U.S.C. 504 and 505) or suitability for participation in
special programs (Part 156 of this title).
(b) Those who may not be enlisted in the Military Services unless a
waiver is granted (section 504 of title 10, United States Code).
(c) Those who may try to enlist fraudulently.
32 CFR 96.5 Responsibilities.
(a) The Assistant Secretary of Defense (Manpower, Installations, and
Logistics) shall submit the implementing Military Service regulations to
the Senate and House Committees on Armed Services, in accordance with
section 520a of title 10 U.S. Code.
(b) The Secretaries of the Military Departments shall develop and
prepare uniform implementing regulations concerning acquisition, review,
and safeguarding of criminal history record information by recruiting
elements to conform with section 520a of title 10 U.S. Code, policies
stated herein and shall include in the regulations procedures on
obtaining and reviewing criminal history record information for
recruitment purposes and for assignment of personnel to special
programs.
(c) The Director, Defense Investigative Service, shall ensure that
the acquisition of all available criminal history record information, or
criminal history record information provided to the DIS by other
government agencies, is safeguarded in accordance with existing laws or
DoD regulatory documents to ensure protection of the privacy of the
enlistment applicant on whom the record exists.
32 CFR 96.6 Procedures.
(a) Under section 520a of title 10 U.S. Code, recruiters are
authorized to request and receive criminal history record information
from the criminal justice system.
(b) The Military Services shall obtain criminal history record
information on enlistment applicants from the criminal justice system
and from the DIS and shall review this information to determine whether
applicants are acceptable for enlistment and for assignment to special
programs. Recruiters shall request such information in each instance by
addressing their requests to the criminal justice system not later than
90 days after each application for enlistment is made.
(c) The Military Services shall ensure the confidentiality of
criminal history record information obtained for recruiting purposes.
Personnel who have access to this information may not disclose it except
for the purposes for which obtained (10 U.S.C. 520a).
(d) The DIS shall provide additional background information to the
Military Services as needed to determine the suitability of applicants
for enlistment and for participation in special programs. This
additional background information shall be provided by Entrance National
Agency Checks (ENTNACs) and other investigations as directed by DoD
5200.2-R.
32 CFR 96.6 PART 97 -- RELEASE OF OFFICIAL INFORMATION IN LITIGATION
AND TESTIMONY BY DoD PERSONNEL AS WITNESSES
Sec.
97.1 Purpose.
97.2 Applicability and scope.
97.3 Definitions.
97.4 Policy.
97.5 Responsibilities.
97.6 Procedures.
Authority: 5 U.S.C. 301; 10 U.S.C. 133.
Source: 50 FR 32056, Aug. 8, 1985, unless otherwise noted.
32 CFR 97.1 Purpose.
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.
32 CFR 97.2 Applicability and scope.
(a) 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.
(b) This directive does not apply to the release of official
information or testimony by DoD personnel in the following situations:
(1) Before courts-martial convened by the authority of the Military
Departments or in administrative proceedings conducted by or on behalf
of a DoD Component;
(2) 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;
(3) In response to requests by Federal Government counsel in
litigation conducted on behalf of the United States;
(4) As part of the assistance required pursuant to DoD Directive
5220.6, ''Industrial Personnel Security Clearance Program,'' December 20
1976; or,
(5) 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.
(c) This Directive does not supersede or modify existing laws or DoD
program 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. 552, or the Privacy Act, 5 U.S.C. 552a, 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.
(d) 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.
(e) This Directive does not preclude official comment on matters in
litigation in appropriate cases.
(f) 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.
32 CFR 97.3 Definitions.
(a) Demand. Subpoena, order, or other demand of a court of competent
jurisdiction, or other specific authority, for the production,
disclosure, or release of official DoD information or for the appearance
and testimony of DoD personnel as witnesses.
(b) 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 U.S. Armed Forces; and other specific individuals hired through
contractual agreements by or on behalf of the Department of Defense.
(c) 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.
(d) 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 U.S. Armed Forces.
32 CFR 97.4 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.
32 CFR 97.5 Responsibilities.
(a) The General Counsel, Department of Defense, 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.
(b) The Heads of DoD Components shall issue appropriate regulations
to implement this Directive and to identify official information that is
involved in litigation.
32 CFR 97.6 Procedures.
(a) Authority to act. (1) 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 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.
(2) 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.
(3) Notwithstanding the provisions of paragraph (a) (1) and (2) of
this section, the General Counsel, DoD, in litigation involving
terrorism, espionage, nuclear weapons, intelligence means or sources, or
otherwise as deemed necessary, may notify Components that General
Counsel, DoD, will assume primary responsibility for coordinating all
litigation requests and demands for official DoD information or
testimony of DoD personnel, or both; consulting with the Department of
Justice, as required; and taking final action on such requests and
demands.
(b) Factors to consider. In deciding whether to authorize the
release of official DoD information or the testimony of DoD personnel
concerning official information (hereafter referred to as ''the
disclosure'') pursuant to paragraph (a), DoD officials should consider
the following types of factors:
(1) Whether the request or demand is unduly burdensome or otherwise
inappropriate under the applicable court rules;
(2) 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;
(3) Whether the disclosure would violate a statute, executive order,
regulation, or directive;
(4) Whether the disclosure, including release in camera, is
appropriate or necessary under the relevant substantive law concerning
privilege;
(5) Whether the disclosure, except when in camera and necessary to
assert a claim of privilege, would reveal information properly
classified pursuant to DoD 5200.1-R, ''Information Security Program
Regulation,'' August 1982; unclassified technical data withheld from
public release pursuant to DoD Directive 5230.25, ''Withholding of
Unclassified Technical Data from Public Disclosure,'' November 6, 1984;
or other matters exempt from unrestricted disclosure; and,
(6) 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.
(c) Decisions on litigation requests and demands. (1) Subject to
paragraph (c)(5) of this section, 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
97.6(a). Oral approval may be granted, but a record of such approval
will be made and retained in accordance with the applicable implementing
regulations.
(2) 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 (c)(5), 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 (a) of this section.
See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
(3) 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 appropriate DoD official designated in
97.6(a) 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 demand. 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.
(4) If, after DoD personnel have received a litigation request or
demand and have in turn notified the appropriate DoD official in
accordance with paragraph (c)(3) of this section , a response to the
request or demand is required before instructions from the responsible
official are received, the responsible official designated in paragraph
(a) 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.
(5) 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 97.6(c)(4), 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
order or ruling 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).
(d) Fees. Consistent with the guidelines in DoD Instruction 7230.7,
''User Charges,'' January 29, 1985, the appropriate officials designated
in 97.6(a) 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 DoD 5400.7-R, ''DoD Freedom of Information Act Program,'' March
24, 1980. 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 requst 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).
(e) 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 (a) of this section
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).
32 CFR 97.6 PART 98 -- DEFENSE HOTLINE PROGRAM
Sec.
98.1 Purpose.
98.2 Applicability.
98.3 Definitions.
98.4 Policy.
98.5 Responsibilities.
98.6 Procedures.
98.7 Information requirements.
98.8 Effective date and implementation.
Appendix A to Part 98 -- Inspector General, Department of Defense,
Defense Hotline: Record of Call
Appendix B to Part 98 -- Inspector General, Department of Defense,
Defense Hotline: Decision Memorandum
Appendix C to Part 98 -- Defense Hotline Progress Report as of:
(applicable date)
Appendix D to Part 98 -- Defense Hotline Completion Report as of:
(applicable date)
Authority: 5 U.S.C. 301 and 552.
Source: 52 FR 44883, Nov. 23, 1987, unless otherwise noted.
32 CFR 98.1 Purpose.
Under Secretary of Defense memorandum dated June 5, 1981 and 32 CFR
Part 373, this part clarifies terminology, updates responsibilities and
specific requirements to be met in conducting the examination of Defense
Hotline allegations, and updates managing and operating procedures for
the Defense Hotline Program.
32 CFR 98.2 Applicability.
This part applies to the Office of the Secretary of Defense (OSD) and
its field activities; the Military Departments, including the National
Guard and Reserve components; the Organization of the Joint Chiefs of
Staff (OJCS); the Unified and Specified Commands; the Inspector
General of the Department of Defense (IG, DoD); and the Defense
Agencies (hereafter referred to collectively as ''DoD Components'').
32 CFR 98.3 Definitions.
''Abuse'' Intentional or improper use of Government resources.
Examples include misuse of rank, position, or authority or misuse of
resources such as tools, vehicles, or copying machines.
''Examination'' The act of examining, inspecting, inquiry, and
investigation. For the purposes of the part, the term applies to audit,
inspection, and investigative activity and encompasses the preliminary
analysis, inquiry, audit, inspection, and investigation.
(a) Audit. An independent, objective analysis, review, or evaluation
of financial records, procedures, and activities to report conditions
found, and recommend changes or other actions for management and
operating officials to consider. The term audit includes, in addition
to the auditor's examinations of financial statements, work performed in
reviewing compliance with applicable laws and regulations, economy and
efficiency of operations, and effectiveness in achieving program
results. All audit work is accomplished in accordance with audit
standards set forth in ''Standards for Audit in Governmental
Organizations, Programs, Activities, and Functions,'' issued by the
Comptroller General of the United States.
(b) Inquiry. An informal administrative investigation or gathering
of information through interview or interrogation rather than by
inspection or study of available evidence. An inquiry does not preclude
the gathering of available documentary evidence.
(c) Inspection. A method of assessing the efficiency of management,
the effectiveness and economy of operations, and compliance with laws
and directives, with particular emphasis on the detection and prevention
of fraud and waste.
(d) Investigation. A systematic, minute, and thorough attempt to
learn the facts about something complex or hidden. It is often formal
and official.
(e) Preliminary Analysis. The activity necessary to determine if the
allegation or information received warrants further examination, or
lacks the credibility to merit additional action. The preliminary
inquiry effort may be limited to interview of the source of the
complaint and/or a reference provided in the allegation, or review of
any readily available documentation or records relative to the
complaint.
''Fraud'' Any intentional deception designed to deprive the United
States unlawfully of something of value or to secure from the United
States for an individual a benefit, privilege, allowance, or
consideration to which he or she is not entitled. Such practices
include: making false statements; submitting false claims; using
false weights or measures; evading or corrupting inspectors or other
officials; deceit either by suppressing the truth or misrepresenting
material fact; adulterating or substituting materials; falsifying
records and books of accounts; arranging for secret profits, kickbacks,
or commissions; and conspiring to use any of these devices. The term
also includes conflict of interest cases, criminal irregularities, and
the unauthorized disclosure of official information relating to
procurement and disposal matters.
''Independence'' The state or quality of being free from subjection
or from the influence, control, or guidance of individuals, things, or
situations. As applied to examining officials and their respective
organizations, there is a responsibility for maintaining neutrality and
exercising objectivity so that opinions, judgments, conclusions, and
recommendations on examined allegations are impartial and shall be
viewed as impartial by disinterested third parties.
''Mismanagement'' A collective term covering acts of waste and abuse.
Extravagant, careless, or needless expenditure of Government funds or
the consumption or misuse of Government property or resources, resulting
from deficient practices, systems, controls, or decisions. Abuse of
authority or similar actions that do not involve criminal fraud.
''Waste'' The extravagant, careless, or needless expenditure of
Government funds, or the consumption of Government property that results
from deficient practices, systems, controls, or decisions. The term
also includes improper practices not involving prosecutable fraud.
32 CFR 98.4 Policy.
(a) It is DoD policy to combat fraud and mismanagement in DoD
programs and operations. To strengthen and focus departmental efforts
in support of this policy, the Defense Hotline Program, under the
direction and control of the IG, DoD, shall ensure that allegations of
fraud and mismanagement are properly evaluated; substantive allegations
are examined; appropriate administrative, remedial, or prosecutive
actions are taken; and systems of records for the control of the
Defense Hotline are established and maintained.
(b) All DoD Component hotlines shall comply with the guidelines
prescribed by this part.
32 CFR 98.5 Responsibilities.
(a) The Inspector General, Department of Defense, as the principal
advisor to the Secretary of Defense on all matters relating to the
prevention and detection of fraud and mismanagement, shall:
(1) Oversee the development of the Defense Hotline Program.
(2) Provide guidance to DoD Components for implementing DoD policies.
(3) Direct, manage, and control the operation of the Defense Hotline
Program.
(4) Establish procedures to ensure that full and proper consideration
is given to all cases of alleged fraud and mismanagement in the
Department of Defense that are reported through the Defense Hotline
Program.
(5) Ensure that audits, inspections, and investigations initiated as
an integral part of the Defense Hotline Program are conducted under
applicable laws, including the Uniform Code of Military Justice, court
decisions, and DoD regulatory documents and policies.
(6) Conduct periodic quality assurance reviews of the DoD Component
field investigative files to ensure that investigations of the Hotline
allegations have been handled properly and that the findings and
conclusions of the examiners are fully supported by the documentation
contained in the official files.
(7) Periodically review and evaluate the operations of the Defense
Hotline Program.
(8) Establish a Defense Hotline Advisory Group to:
(i) Review Defense Hotline allegations that have been referred in
accordance with paragraph (b)(6) of this section and provide appropriate
processing and referral instructions to the staff.
(ii) Review, upon request of the Defense Hotline staff, selected
audit, inspection, and investigative Defense Hotline completion reports.
Weaknesses and deficiencies identified by the examinations shall be
referred to the IG, DoD, for appropriate action and resolution.
(iii) Review, or cause to be reviewed on an annual basis, those
complaints that were received by the Defense Hotline staff and
determined to be matters that did not warrant examination due to
insufficient information, age of the allegation, nature of the complaint
(i.e., personal grievance, suggestions, etc.), or because of the
nonspecific nature of the allegation. The group shall also provide
guidance to the staff based on the results of the review, as necessary.
(9) Direct that the applicable IG, DoD, element conduct an audit,
inspection, or investigation of any allegation where it is determined
that conduct of the inquiry by the involved agency or organization might
result in a lack or perceived lack of objectivity or independence on the
part of the examining officials. Coordination with the heads of the
concerned DoD Components may be done before conducting the examination,
if such action is considered appropriate.
(10) Ensure that any allegation made against a staff member of the
IG, DoD, the Defense Hotline, or DoD personnel involved in conducting
the audit, inspection, or investigative activity is examined in an
impartial, independent, and objective manner.
(b) The Inspector General shall select, from nominees provided by the
Assistant Inspectors General, the necessary professional and
administrative personnel to staff the Defense Hotline. The staff shall:
(1) Operate the Defense Hotline, recording the pertinent information
of those allegations received by telephone, mail, or other means of
communication that appear to merit examination; and maintain
statistical data on all contacts (letters, telephone calls, personal
interviews) that are received by the Defense Hotline.
(2) Establish controls to provide maximum protection for the identity
of all persons using the Defense Hotline.
(3) Establish and maintain the required procedural controls, files,
and records necessary for tracking the allegations from receipt through
the phases of examination, closeout, and storage.
(4) Obtain from the complainant the specific information necessary to
ascertain the substance of each allegation and complete a Defense
Hotline Record of Call (Appendix A) to record and document those
allegations determined to have sufficient merit to warrant referral to
the appropriate DoD Component for action or as information matters.
(5) Advise the IG, DoD, or Deputy IG, DoD, of serious allegations or
significant trends disclosed while operating the Defense Hotline.
(6) Prepare a Defense Hotline Decision Memorandum (Appendix B) for
each valid letter allegation received, and indicate on the memorandum to
which DoD Component the allegation is to be referred for either action
or information purposes. The memorandum shall be a means for tracking
and maintaining control of the complaint. The staff shall also provide
any comments and guidance considered pertinent to the conduct of the
examination.
(7) Refer items preliminarily determined to be sensitive,
controversial, or involving flag or general officers or DoD civilian
officials of GS/GM-15 equivalent or higher grades to the Defense Hotline
Advisory Group for review and determination by the examining agency.
Refer all other allegations directly to the DoD Component concerned.
(8) Coordinate with the General Accounting Office (GAO) Hotline on
Defense Hotline Program-related matters. They shall also process all
DoD-related allegations that are received from the GAO Hotline in the
same manner as Defense Hotline Program allegations, and advise the
Defense Hotline Advisory Group of any problems encountered in performing
this function.
(9) Promptly process and refer to the appropriate DoD Component those
allegations that warrant inquiry, and expedite the processing and
referral of those allegations that are time-sensitive. The referral of
time-sensitive allegations by telephone is permitted when any delay
might adversely affect the efforts of the examining officials.
(10) Review and analyze all interim and final reports of examination
to ensure that all aspects of the Defense Hotline complaint were
addressed fully, the examinations were conducted properly, and
appropriate corrective or punitive measures were taken based on the
examination findings.
(11) Notify the appropriate DoD Component Hotline coordinator, by
written memorandum, of discrepancies noted in individual reports or
apparent deficiencies in the related examination, so that the DoD
Component may review and, if necessary, reconduct an audit, inspection,
or investigation of the complaint and submit a revised or corrected
closing report.
(12) Notify the Defense Hotline Advisory Group of any significant
instance when a report of completed examination indicates that the work
performed did not meet prescribed audit, inspection, or investigative
standards, or was defective in depth, scope, independence, or some other
respect, or any instance when examination verifies the complaint of
wrongdoing and the DoD Component declines to initiate corrective or
punitive measures.
(13) Evaluate all allegations of criminal activity that involve the
OSD, the OJCS, or DoD Components and, when warranted, initiate
investigation. Conduct investigations of any other allegations, as
directed by the IG, DoD.
(14) Investigate or participate in the investigation of Defense
Hotline allegations of criminal activity that involve more than one DoD
Component or involve other special circumstances.
(15) Ensure that professionalism and organizational independence are
observed at all times and that investigations of allegations are
conducted impartially and objectively.
(16) Retain all Defense Hotline Program case files for at least 2
years after the Defense Hotline staff has closed the inquiry, then
retire the files in accordance with the appropriate DoD administrative
Directives and Instructions.
(17) Develop and implement a follow-up system to ensure that
recommended administrative or judicial corrective measures, tendered by
the examining officials, have been implemented by the responsible
authorities. The system should reflect the results of criminal
prosecutions, sentences imposed, monetary recoveries, and administrative
and other actions taken. When it has been determined that such
corrective action has not been taken by the proper authorities, the
staff should initiate action to bring the matter to the attention of the
next higher command organization.
(18) Inform Defense Hotline agency and organization Hotline
coordinators of substantive allegations passed directly to the IG, DoD,
for action, if appropriate.
(19) Maintain liaison and communication with DoD Component Hotline
coordinators, other Government Agencies and organizations, and external
investigative agencies.
(20) Prepare periodic summary analyses of all Defense Hotline
operations, including regular reports to the IG, DoD, for each 6-month
period ending on March 31 and September 30, and to the Deputy Inspector
General for Program Planning, Review and Management for use in the DoD,
Office of the Inspector General ''Semiannual Report to the Congress.''
Include in the semiannual report an accounting for all allegations
received by the Defense Hotline office from all sources, and prepare
them in accordance with the format required by DoD, Office of the
Inspector General, ''Semiannual Report to the Congress.''
(21) Maintain the widest dissemination of information concerning the
Defense Hotline Program by using such mechanisms as news releases, items
in internal publications (including telephone directories), official
notices, posters, and other media. Develop educational material for use
in encouraging DoD employees to report fraud and mismanagement in DoD
programs and operations.
(c) Heads of DoD Components shall establish and implement policies to
ensure that the Defense Hotline Program is fully effective. To achieve
that aim, they shall:
(1) Establish a single coordinator to manage, monitor, and report to
the Defense Hotline the actions of audit, inspection, and investigative
groups on allegations referred by the Defense Hotline to the DoD
Component for action.
(2) Establish and implement operational procedures in accordance with
the guidance in 98.6.
(3) Have cognizant audit, inspection, and investigative organizations
examine Defense Hotline complaints. The audit, inspection, and
investigative organizations shall:
(i) Audit, inspect, or investigate Defense Hotline referrals in
accordance with DoD standards and procedures, and under the implementing
guidance of the concerned agency or organization. Examination of
Defense Hotline allegations by the Military Departments shall be
conducted using the regulatory procedures of the concerned Service
element.
(ii) Maintain appropriate records to ensure accountability of all
Defense Hotline referrals until final disposition of the case.
(iii) Establish the administrative and operational controls and
procedures necessary to provide maximum protection for the identity of
any Defense Hotline Program source who requests anonymity or
confidentiality.
(iv) Ensure that professionalism and organizational independence are
observed and that audits, inspections, and investigations are conducted
in an impartial and objective manner.
(v) Promptly process all allegations that have been referred by the
Defense Hotline for action and expedite the examination of allegations
that are time-sensitive.
(vi) Process and examine all allegations that have been referred as
''information'' matters to determine if an inquiry is warranted. Report
any action taken as the result of the referral as outlined in paragraph
(c)(3)(vii) of this section.
(vii) Submit a final report of the results of the inquiry through the
Component Hotline coordinator to the Defense Hotline within 90 days from
the date the complaint was transmitted by the Hotline for action. The
report shall conform with the format prescribed in the Defense Hotline
Completion Report (Appendix D). When an examination cannot be completed
in 90 days, submit a Defense Hotline Progress Report (Appendix C) to the
Defense Hotline stating the reason for the delay and the expected date
of submission of the final report.
(viii) Submit to the Defense Hotline a Defense Hotline Progress
Report on each open case on the 6-month anniversary date of the
beginning of the investigation, using the format in Appendix C.
(ix) Submit progress reports to the Defense Hotline on the status of
all audit actions or criminal investigations that have been open 6
months or more as of March 31 and September 30 to facilitate semiannual
reporting under Pub. L. 95-452. Submit the cited status information 15
calendar days before the end of the 6-month period.
(x) Provide information or documentation on pending or closed
examinations to the IG, DoD.
(xi) Ensure that documentation contained in the official examination
file fully supports the findings and conclusions reflected in the
Defense Hotline Completion Report. As a minimum, the file shall contain
a copy of the Hotline Completion Report and a memorandum that reflects
the actions taken by the examining official to determine the findings,
complete identity of all witnesses, the date and information related
during the interview, and specific details and location of all documents
reviewed. The extent of the file documentation shall be dictated by the
type of examination conducted.
(xii) Retain all working papers and files for 2 years from the date
the matter was formally closed by the Defense Hotline. At the end of
the 2-year period, retire the files in accordance with the pertinent
administrative procedures of the DoD Component.
(4) Cooperate with the auditors, inspectors, and investigators by
granting immediate and unrestricted access -- except as is provided for
by section F. of DoD Directive 5106.1 /1/ -- to personnel, documents,
and records; and provide suitable working facilities and arrangements.
(5) Ensure, under reporting requirements outlined in paragraphs
(c)(3) (vii), (viii), and (ix) that reports are promptly submitted to
the referring audit, inspection, or investigative organization. Also,
completion reports should reflect administrative, corrective, punitive,
or other type action taken on cases referred to them for resolution.
(6) Maintain an active Defense Hotline publicity campaign, using
local newspapers, official notices, posters, telephone directories, and
other media. Implement education programs to encourage employees to
identify and report fraud and mismanagement in DoD programs and
operations.
/1/ Copies may be obtained, if needed, from the U.S. Naval
Publications and Forms Center, 5801 Tabor Avenue, ATTN: Code 1052,
Philadelphia PA 19120.
32 CFR 98.6 Procedures.
(a) Methods for processing and controlling the receipt, examination,
and reporting of all allegations referred to DoD Components for audit,
inspection, and investigation through the Defense Hotline Program are
addressed in this section and 98.5 and include procedures to track,
monitor, and follow up on allegations referred to the Defense Hotline,
regardless of source. Sources of allegations include The White House,
Members of Congress, the GAO Hotline, Office of Management and Budget
(OMB), other executive agency hotlines, DoD staff activities, and
individuals communicating directly with the IG, DoD.
(b) Necessary controls shall be established to provide maximum
protection for the identity of users of the Defense Hotline.
Individuals shall be ensured that they can report instances of fraud and
mismanagement without fear of reprisal or unauthorized disclosure of
identity, as provided in Pub. L. 95-452 and DoD Instruction 7050.3.
/2/ However, individuals reporting alleged fraud and mismanagement
should be encouraged to identify themselves to the Defense Hotline so
that the Defense Hotline staff can recontact the source if additional
information is needed.
(c) All substantive allegations received by the Defense Hotline shall
be examined. The examination shall normally be conducted by
disinterested and qualified auditors, inspectors, or investigators.
When necessary, DoD Components may use individuals or groups with other
professional or technical skills to assist in conducting examinations
under the direct supervision of the responsible audit, inspection, or
investigative officials.
(d) The procedures used must ensure that due professional care and
organizational independence are observed, and that examinations are
impartial and objective. Allegations must be examined by officials
independent of the specific unit, office, staff element, operation,
etc., in which the complaint is alleged to have occurred.
(e) DoD Components shall encourage personnel to register complaints
and grievances through appropriate management and grievance channels,
and submit suggestions for management improvements through the proper
DoD Incentive Awards Program. There shall be no requirement for any
individual who makes complaints or provides information to the IG, DoD,
Defense Hotline representatives to discuss such complaints or
information with the individual's supervisor or the head of the
activity. DoD Components shall encourage the reporting of suspected
fraud and mismanagement to the Defense Hotline either through the
toll-free 800-424-9098 commercial, FTS 202-693-5080, or AUTOVON 223-5080
telephone system or by mail to the Defense Hotline, The Pentagon,
Washington, DC 20301-1900.
/2/ See footnote 1 to 98.5(c)(4).
32 CFR 98.7 Information requirements.
The reporting requirements in 98.5 are exempt from formal approval
and licensing under subsection VII.F. of enclosure 3 to DoD Directive
5000.19. /3/
/3/ See footnote 1 to 98.5(c)(4)
32 CFR 98.8 Effective date and implementation.
This part is effective March 20, 1987. The Military Departments
shall forward two copies of implementing documents to the Inspector
General, Department of Defense, within 60 days. This part is the
implementing guidance for all other DoD Components.
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32 CFR 98.8 PART 98a -- MILITARY WHISTLEBLOWER
Sec.
98a.1 Purpose.
98a.2 Applicability.
98a.3 Definitions.
98a.4 Policy.
98a.5 Responsibilities.
98a.6 Authority.
Appendix to Part 98a -- Operating Procedures
Authority: 10 U.S.C. 1034, Pub. L. 100-456.
Source: 55 FR 4999, Feb. 13, 1990, unless otherwise noted.
32 CFR 98a.1 Purpose.
This part:
(a) Establishes policy and implements Public Law 100-456 to provide
protection against reprisal for military members of the Armed Forces for
making a lawful communication to a Member of Congress or an Inspector
General (IG) in which the military member makes a complaint or discloses
information that he or she reasonably believes evidences a violation of
law or regulation, mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specific danger to public safety.
(b) Assigns responsibilities and delegates authorities for such
protection and prescribes operating procedures (Appendix).
32 CFR 98a.2 Applicability.
This part applies to all DoD personnel and to the Office of the
Secretary of Defense (OSD), the Military Departments (including their
National Guard and Reserve components), the Joint Staff, the Unified and
Specified Commands, the Inspector General of the Department of Defense
(IG, DoD), and the Defense Agencies, including nonappropriated fund
activities (hereafter referred to collectively as ''DoD Components'').
32 CFR 98a.3 Definitions.
Board for the Correction of Military Records (BCMR). Any board
empowered under 10 U.S.C. 1552 to recommend correction of military
records to the Secretary of the Military Department concerned.
Communication. Any lawful communication to a Member of Congress or an
IG.
Corrective Action. Any action deemed necessary to make the
complainant whole; changes in Agency regulations or practices;
administrative or disciplinary action against offending personnel; or
referral to the U.S. Attorney General or court-martial convening
authority of any evidence of criminal violation.
Inspector General (IG). An IG appointed under the ''Inspector
General Act of 1978'' (Public Law 95-452, and an officer of the Armed
Forces assigned or detailed under regulations of the Secretary concerned
to serve as an IG at any command level in one of the Armed Forces.
Member of Congress. In addition to a Representative or Senator,
includes any Delegate or Resident Commissioner to Congress.
Member of the Armed Forces. All Regular and Reserve component
officers (commissioned and warrant) and enlisted members of the Army,
Navy, Air Force, Marine Corps, and the Coast Guard (when operating as
part of the Navy) on active duty (AD), and Reserve component officers
(commissioned and warrant) and enlisted members whether on AD, on
inactive duty for training, or not in a training status. This
definition includes professors and cadets of the Military Service
academies and officers and enlisted members of the National Guard.
Personnel Action. Any action taken regarding a member of the Armed
Forces that affects or has the potential to affect the military member's
current position or his or her career. Such actions include a
promotion; a disciplinary or other corrective action; a transfer or
reassignment; a performance evaluation; a decision concerning pay,
benefits, awards, or training; and any other significant change in
duties or responsibilties inconsistent with the military member's rank.
Reprisal. Taking or threatening to take an unfavorable personnel
action or withholding or threatening to withhold a favorable personnel
action against a military member for making or preparing to make a
communication to a Member of Congress or an IG.
32 CFR 98a.4 Policy.
It is DoD policy that:
(a) No person shall restrict a member of the Armed Forces from
lawfully communicating with a Member of Congress or an IG.
(b) Members of the Armed Forces shall be free from reprisal for
making or preparing to make lawful communications to Members of Congress
and IGs.
(c) Any employee or member of the Armed Forces who has the authority
to take, direct others to take, or recommend or approve any personnel
action shall not, under such authority, take, withhold, threaten to
take, or threaten to withhold a personnel action regarding any member of
the Armed Forces in reprisal for making or preparing to make a lawful
communication to a Member of Congress or an IG.
32 CFR 98a.5 Responsibilities.
(a) The Inspector General, Department of Defense (IG, DoD), shall:
(1) Expeditiously initiate an investigation of any allegation
submitted to the IG, DoD, under this part by a member of the Armed
Forces that a personnel action has been taken (or threatened) in
reprisal for making or preparing to make a lawful communication to a
Member of Congress or an IG in which the military member makes a
complaint or discloses information that the military member reasonably
believes evidences a violation of law or regulation, mismanagement, a
gross waste of funds, an abuse of authority, or a substantial and
specific danger to public health or safety. The IG, DoD, may request
the appropriate DoD Component IG to conduct the investigation. No
investigation is required when such allegation is submitted more than 60
days after the military member became aware of the personnel action that
is the subject of the allegation.
(2) Initiate a separate investigation of the information the military
member believes evidences wrongdoing if such investigation has not
already been initiated. No investigation is required if the information
that the military member believes evidences wrongdoing relates to
actions that took place during combat.
(3) Complete the investigation of the allegation of reprisal and
issue a report within 90 days of the receipt of the allegation. If a
determination is made that the report cannot be issued within 90 days of
receipt of the allegation, notify the Assistant Secretary of Defense
(Force Management and Personnel) (ASD(FM&P)) and the military member or
former military member making the allegation of the reasons why the
report will not be submitted within that time and when the report will
be submitted.
(4) Prepare a report of the results of the investigation. The report
shall include a thorough review of the facts and circumstances relevant
to the allegation, the relevant documents acquired during the
investigation, and summaries of interviews conducted.
(5) Submit a copy of the investigation report to the ASD(FM&P) and to
the military member or former military member making the allegation not
later than 30 days after the completion of the investigation. The copy
of the report issued to the military member may exclude any information
not otherwise available to him and/or her under 32 CFR part 285.
(6) At the request of a Board for the Correction of Military Records
(BCMR), submit a copy of the investigative report to the Board.
(7) At the request of a BCMR, gather further evidence and issue a
further report to the Board.
(8) After the final action in any allegation filed under this part,
whenever possible, interview the person who made the allegation to
determine the views of that person on the disposition of the matter.
(9) Review and determine the adequacy of any DoD Component IG
investigation of allegations of reprisal for making or preparing to make
a lawful communication to a Member of Congress or an IG conducted under
P.L. 100-456 and at the request of the IG, DoD. If such inquiry is
found inadequate, start an investigation to correct the inadequacies or
ensure that the DoD Component corrects the inadequacies.
(b) The Inspectors General (IGs) of DoD Components shall:
(1) Upon receipt of a military member's allegation of reprisal for
making or preparing to make a lawful communication to a Member of
Congress or an IG, expeditiously investigate the allegation and notify
the IG, DoD, of the initiation and the expected date of completion of
such investigation. No investigation is required when such allegation
is submitted more than 60 days after the military member became aware of
the personnel action that is the subject of the allegation.
(2) Upon completion of an investigation into an allegation that a
military member or former military member suffered reprisal, forward a
copy of the investigative report to the Head of the DoD Component and
the military member. The copy of the report issued to the military
member may exclude any information not otherwise available to him and/or
her under 32 CFR 285.
(3) For those investigations done at the request of the IG, DoD,
within 90 days of the receipt of the allegation, provide the IG, DoD,
with an investigative report containing a thorough review of the facts
and circumstances relevant to the allegation, the relevant documents
acquired during the investigation, and summaries of interviews
conducted.
(4) At the request of a BCMR, submit a copy of the investigative
report to the Board.
(5) At the request of a BCMR, gather further evidence and issue a
further report to the Board.
(c) The Boards for the Correction of Military Records (BCMRs) shall:
(1) Determine whether to resolve an application for the correction of
records made by a member or former member of the Armed Forces who has
filed a timely complaint with the IG, DoD, alleging a personnel action
was taken in reprisal for making or preparing to make a lawful
communication to a Member of Congress or an IG, in accordance with 10
U.S.C. 1552. This may include the receipt of oral argument, examining
and cross-examining witnesses, taking depositions, and conducting an
evidentiary hearing at the Board's discretion.
(2) Review the report of any investigation into the military member's
allegation of reprisal conducted by the IG, DoD, or the IG of a DoD
Component.
(3) As deemed necessary, request that the IG, DoD, or the IG of the
DoD Component originally investigating the allegation gather further
evidence.
(4) If the Board elects to hold an administrative hearing, the
military member may be represented by a judge advocate (JA) if:
(i) The IG, DoD, report of investigation finds there is probable
cause to believe that a personnel action was taken, withheld, or
threatened in reprisal for the military member making or preparing to
make a lawful communication to a Member of Congress or an IG.
(ii) The Judge Advocate General concerned determines that the case is
unusually complex or otherwise requires JA assistance to ensure proper
presentation of the legal issues in the case.
(iii) The military member is not represented by outside counsel
chosen by the military member.
(5) If the Board elects to hold an administrative hearing, ensure
that the military member may examine witnesses through deposition, serve
interrogatories, and request the production of evidence, including
evidence in an IG investigatory record, but not included in the report
released to the member.
(6) If the Board determines that a personnel action was taken in
reprisal for a military member or former military member making or
preparing to make a lawful communication to a Member of Congress or an
IG, the Board may forward its recommendation to the Secretary concerned
for appropriate administrative or disciplinary action against the
individual or individuals who committed the action.
(d) The Assistant Secretary of Defense (Force Management and
Personnel) (ASD (FM&P)) shall:
(1) Review and process, under the standards and procedures in section
5. of Appendix of this part, requests from members or former members of
the Armed Forces for review of final decisions of a Secretary of a
Military Department on applications for correction of military records
decided under this part.
(2) Notify the IG, DoD, of decisions made on requests for review of a
final decision of a Secretary of a Military Department on an application
for correction of military records submitted under this part.
(e) The Secretaries of Military Departments, or their designees,
under 10 U.S.C. 1552, shall:
(1) Within 180 days of its receipt, issue a final decision on an
application for the correction of military records from a military
member or former military member alleging reprisal for making or
preparing to make a lawful communication to Members of Congress or an
IG. When the final decision does not grant the full relief requested by
the military member, advise the member that within 90 days he and/or she
may request the Secretary of Defense to reconsider the decision.
(2) When reprisal is found, take appropriate corrective action,
including the correction of the records of the military member in
accordance with 10 U.S.C. 1552 and 1553.
(3) Ensure that administrative or disciplinary action, if
appropriate, is taken against individuals found to have taken reprisal
against a military member for making or preparing to make a
communication to a Member of Congress or an IG.
(4) Notify the IG, DoD, of a decision on an application for the
correction of military records received from a military member or former
military member alleging reprisal for making or preparing to make a
lawful communication to a Member of Congress or an IG, and of any
disciplinary action taken.
(f) The DoD Components shall:
(1) Based on an IG investigative report, take appropriate corrective
action.
(2) Publicize the content of this part to ensure that military and
other DoD personnel fully understand the scope and application of the
part. The publicity should include the definition of ''communication''
(see 98a.3) and the procedures for filing a complaint (Appendix to this
part).
32 CFR 98a.6 Authority.
(a) The Assistant Secretary of Defense (Force Management and
Personnel) (ASD (FM&P)) is hereby delegated authority to:
(1) Have access to all research, reports, investigations, audits,
reviews, documents, papers, or any other material necessary to carry out
the responsibilities of 98a.5(d).
(2) Request the Secretaries of the Military Departments to comment on
and make available for review, if necessary, evidence considered by a
BCMR in cases in which the Secretary is requested to reconsider the
final decision of the Secretary concerned.
(3) Issue instructions to amplify or amend the procedures in section
5. of the Appendix to this part, as may be necessary, to implement the
responsibilities of 98a.5(d).
(b) The Secretary of Defense shall, upon receipt of a timely request
from a military member or former military member in accordance with the
Operating Procedures annexed to this Directive, make a decision to
uphold or reverse the decision of a Secretary of a Military Department
in an application for the correction of military records alleging
reprisal for making or preparing to make a communication to a Member of
Congress or an IG.
32 CFR 98a.6 Appendix to Part 98a -- Operating Procedures
1. Any member of the Armed Forces who reasonably believes a personnel
action (including the withholding of an action) was taken or threatened
in reprisal for making or preparing to make a lawful communication to a
Member of Congress or an IG may file a complaint with the DoD Hotline
under 32 CFR part 98. Such a complaint may be filed by telephone (800)
424-9098, (202) 693-5080, or Autovon 223-5080 or by letter addressed to
Department of Defense Hotline, The Pentagon, Washington, DC 20301-1900.
2. Complaints should include the name, address, and telephone number
of the complainant; the name and location of the activity where the
alleged violation occurred; the personnel action taken that is alleged
to be motivated by reprisal; the DoD Component; and the individual(s)
believed to be responsible for the personnel action, when the alleged
reprisal occurred, and what information suggests or evidences a
connection between the communication and retaliatory action. The
complaint should also include a description of the communication to a
Member of Congress or an IG including a copy of any written
communication and a brief summary of any oral communication showing date
of communication, subject matter, and the name of the person or officer
to whom the communication was made.
3. The IG, DoD, may refer complaints to the appropriate DoD Component
for investigation. DoD Components conducting investigations shall
provide the IG, DoD, with an investigative report containing a thorough
review of the facts and circumstances relevant to the allegation, the
relevant documents acquired during the investigation, and summaries of
interviews conducted. The report shall be issued within 90 days of the
receipt of the allegation.
4. A member of the Armed Forces who is alleging reprisal for making
or preparing to make a lawful communication to a Member of Congress or
an IG may file an application for the correction of military records
with the appropriate BCMR using the procedures established by the Board.
5. A member or former member of the Armed Forces who has filed an
application for the correction on military records under section 4.,
above, alleging reprisal for making or preparing to make a lawful
communication to a Member of Congress or an IG, may request review by
the Secretary of Defense of the final decision of the Secretary of a
Military Department concerned on such application. The following
procedures apply to requests for review by the Secretary of Defense:
a. Content of Request. The request for review must be in writing and
include the military member's name, address, telephone number, copies of
the application to the BCMR and the final decision of the Secretary
concerned on such application, and a statement of the specific reasons
why the military member is not satisfied with the decision of the
Secretary concerned. Requests based on factual allegations or evidence
not previously presented to the cognizant BCMR shall not be considered.
New allegations or evidence must be submitted directly to the Board for
reconsideration under procedures established by the Board.
b. Standard of Review. The Secretary of Defense shall review the
allegations submitted by the military member or former military member
requesting review and other records deemed appropriate and necessary by
the Secretary of Defense for deciding, in his or her sole discretion,
whether to uphold or reverse the decision of the Secretary concerned.
The decision of the Secretary of Defense is final.
c. Time Limits. The request for review of the final decision of the
Secretary concerned must be filed within 90 days of receipt by the
military member of former military member.
d. Address. Requests for review by the Secretary of Defense must be
submitted to:
Assistant Secretary of Defense (Force Management and Personnel)
(Attention: Director, Legislation and Legal Policy, ODASD (MM&PP)),
Room 3E764, The Pentagon, Washington, DC 20301-4000
32 CFR 98a.6 PART 99 -- PROCEDURES FOR STATES AND LOCALITIES TO REQUEST
INDEMNIFICATION
Sec.
99.1 Scope and purpose.
99.3 General definitions.
99.5 Eligibility for indemnification.
99.7 Procedures for requesting an indemnification agreement.
99.9 Terms of indemnification.
Appendix to Part 99 -- Addresses of Relevant U.S. Government Agencies
Authority: Access to Criminal History Records for National Security
Purposes, of The Intelligence Authorization Act for Fiscal Year 1986,
Pub. L. No. 99-169, secs. 801-803, 99 Stat. 1002, 1008-1011 (1985)
(codified in part at 5 U.S.C. 9101).
Source: 51 FR 42555, Nov. 25, 1986, unless otherwise noted.
32 CFR 99.1 Scope and purpose.
(a) The Department of Defense (DoD), Office of Personnel Management
(OPM), or Central Intelligence Agency (CIA) has the right to criminal
history information of States and local criminal justice agencies in
order to determine whether a person may:
(1) Be eligible for access to classified information;
(2) Be assigned to sensitive national security duties; or
(3) Continue to be assigned to national security duties.
(b) This part sets out the conditions under which the DoD, OPM, or
CIA may sign an agreement to indemnify and hold harmless a State or
locality against claims for damages, costs, and other monetary loss
caused by disclosure or use of criminal history record information by
one of these agencies.
(c) The procedures set forth in this part do not apply to situations
where a Federal agency seeks access to the criminal history records of
another Federal agency.
(d) By law these provisions implementing 5 U.S.C. 9101 (b)(3) shall
expire December 4, 1988, unless the duration of said section is extended
or limited by Congress.
32 CFR 99.3 General definitions.
For the purposes of 99.1 through 99.9 of this part:
Criminal history record information: information collected by
criminal justice agencies on individuals consisting of identifiable
descriptions and notations of arrests, indictments, information, or
other formal criminal charges and any disposition arising therefrom,
sentencing, correction supervision, and release. The term does not
include identification information such as fingerprint records to the
extent that such information does not indicate involvement of the
individual in the criminal justice system. The term does not include
those records of a State or locality sealed pursuant to law from access
by State and local criminal justice agencies of that State or locality.
Criminal justice agency: Federal, State, and local agencies
including (a) courts, or (b) a government agency or any subunit thereof
which performs the administration of criminal justice pursuant to a
statute or executive order, and which allocates a substantial part of
its annual budget to the administration of criminal justice.
Department of Defense: the Defense Investigative Service, National
Security Agency, Naval Investigative Service, Air Force Office of
Special Investigations, and Army Intelligence and Security Command.
Federal agency: the Department of Defense, the Office of Personnel
Management, or the Central Intelligence Agency, or any other Federal
agency subsequently authorized by Congress to obtain access to criminal
history records information.
Locality: any local government authority or agency or component
thereof within a State having jurisdiction over matters at a county,
municipal or other local government level.
State: any of the several States, the District of Columbia, the
Commonwealth of Puerto Rico, the Northern Mariana Islands, Guam, the
Virgin Islands, American Samoa, the Trust Territory of Pacific Islands,
and any other territory or possession of the United States.
32 CFR 99.5 Eligibility for indemnification.
As provided for under 5 U.S.C. 9101(b)(3), a State or locality may
request an indemnification agreement.
(a) To be eligible for an indemnification agreement a State or
locality must have had a law in effect on December 4, 1985 that
prohibited or had the effect of prohibiting the disclosure of criminal
history record information to the DoD, OPM, or CIA.
(b) A State or locality is also eligible for an indemnification
agreement if it meets the conditions of paragraph (a) of this section,
but nevertheless provided criminal history record information to the
DoD, OPM, or CIA on or before December 4, 1985.
32 CFR 99.7 Procedures for requesting an indemnification agreement.
When requesting an indemnification agreement, the State or locality
must notify each Federal agency as appropriate, at the address listed in
the appendix to this part, of its eligibility of an indemnification
agreement. It must also:
(a) Certify that on December 4, 1985, the State or locality had in
effect a law which prohibited or had the effect of prohibiting the
disclosure of criminal history record information to the DoD, OPM, or
CIA; and
(b) Append to the request for an indemnification agreement a copy of
such law.
32 CFR 99.9 Terms of indemnification.
The terms of the Uniform Federal Agency Indemnification Agreement
(UFAIA), must conform to the following provisions:
(a) Eligibility: The State or locality must certify that its law
prohibits or has the effect of prohibiting the disclosure of criminal
history record information to the DoD, OPM, or CIA for the purposes
described in section 910.101(a) and that such law was in effect on
December 4, 1985.
(b) Liability: (1) The Federal agency agrees to indemnify and hold
harmless the State or locality from any claim for damages, costs and
other monetary loss arising from the disclosure or negligent use by the
DoD, OPM, or CIA of criminal history record information obtained from
that State or locality pursuant to 5 U.S.C. 9101(b). The indemnification
will include the officers, employees, and agents of the State or
locality.
(2) The indemnification agreement will not extend to any act or
omission prior to the transmittal of the criminal history record
information to the Federal agency.
(3) The indemnification agreement will not extend to any negligent
acts on the part of the State or locality in compiling, transcribing or
failing to delete or purge any of the information transmitted.
(c) Consent and access requirements:
(1) The Federal agency when requesting criminal history record
information from the State or locality for the release of such
information will attest that it has obtained the written consent of the
individual under investigation after advising him or her of the purposes
for which that information is intended to be used.
(2) The Federal agency will attest that it has advised that
individual of the right to access that information.
(d) Purpose requirements: The Federal agency will use the criminal
history record information only for the purposes stated in 910.101(a).
(e) Notice, litigation and settlement procedures: (1) The state or
locality must give notice of any claim against it on or before the 10th
day after the day on which claim against it is received, or it has
notice of such a claim.
(2) The notice must be given to the Attorney General and to the U.S.
Attorney of the district embracing the place wherein the claim is made.
(3) The Attorney General shall make all determinations regarding the
settlement or defense of such claims.
32 CFR 99.9 Appendix to Part 99 -- Addresses of Relevant U.S. Government Agencies
32 CFR 99.9 Pt. 99, App.
Department of Defense, Office of the General Counsel, Room 3E988,
Washington, DC 20301-1600
Office of Personnel Management, Office of Federal Investigations,
P.O. Box 886, Washington, DC 20044
Central Intelligence Agency, Attention: Office of General Counsel,
Washington, DC 20505
32 CFR 99.9 PART 100 -- UNSATISFACTORY PERFORMANCE OF READY RESERVE
OBLIGATION
Sec.
100.1 Reissuance and purpose.
100.2 Applicability.
100.3 Policy.
100.4 Responsibility.
100.5 Procedures.
100.6 Definitions.
Enclosure -- Suggested Format, Affidavit of Service by Mail
Authority: 10 U.S.C. 510, 511, 593, 597, or 651, and 32 U.S.C. 302.
Source: 44 FR 51568, Sept. 4, 1979, unless otherwise noted.
32 CFR 100.1 Reissuance and purpose.
This part is reissued to update DoD policy on actions to be taken in
regard to members of the Ready Reserve whose performance of duty or
participation in Reserve training is unsatisfactory; and provides
greater flexibility to the Military Departments when dealing with
unsatisfactory performance.
32 CFR 100.2 Applicability.
The provisions of this part apply to the Office of the Secretary of
Defense and the Military Departments.
32 CFR 100.3 Policy.
Persons who are enlisted or appointed in, or transferred to a Reserve
component of the Armed Forces of the United States, under the provisions
of 10 U.S.C. 510, 511, 593, 597, or 651 and 32 U.S.C. 302 are expected
to participate and perform satisfactorily as members of the Ready
Reserve to fulfill their obligation or service agreement. This policy
is also in accordance with the standards prescribed by 32 CFR Parts 102
and 101 and the Military Departments concerned.
32 CFR 100.4 Responsibility.
The Secretaries of the Military Departments shall ensure that:
(a) Ready Reserve applicants understand their obligations for
satisfactory participation in the Ready Reserve before their enlistment
or appointment.
(b) Members of the Ready Reserve continue to understand their
obligations for satisfactory participation in the Ready Reserve after
their enlistment or appointment in accordance with 32 CFR Part 44.
32 CFR 100.5 Procedures.
(a) Unsatisfactory participation in the Ready Reserve. (1) Members
of the Selected Reserve who have not fulfilled their statutory military
service obligation under 10 U.S.C. 651 and whose participation has not
been satisfactory may be:
(i) Ordered to active duty, if they have not served on active duty or
active duty for training for a total period of 24 months, for such
period of time as may be deemed necessary by the Secretary of the
Military Department concerned under the provisions of 10 U.S.C. 673a
(such individuals may be required to serve on active duty until their
total service on active duty or active duty for training equals 24
months); or
(ii) Ordered to active duty for training, regardless of the length of
prior active duty or active duty for training, for a period of not more
than 45 days under provisions of 10 U.S.C. 270; or
(iii) Transferred to the Individual Ready Reserve (IRR) for the
balance of their statutory military service obligation with a tentative
characterization of service, normally under other than honorable
conditions, when the Military Department concerned has determined that
the individuals still possesses the potential for useful service under
conditions of full mobilization; or
(iv) Discharged for unsatisfactory participation under the provisions
of 32 CFR Part 41, when the Military Department concerned has determined
that the individual has no potential for useful service under conditions
of full mobilization.
(2) Members of the Selected Reserve who have fulfilled their
statutory military service obligation under 10 U.S.C. 651 or who did not
incur such obligation,2 and whose participation has not been
satisfactory may be:
(i) Transferred to the IRR for the balance of their current
enlistment contract or service agreement with a tentative
characterization of service, normally under other than honorable
conditions, when the Military Department concerned has determined that
the individual still has a potential for useful service under conditions
of full mobilization; or
(ii) Discharged for unsatisfactory performance under 32 CFR Part 41
when the Military Department concerned has determined that the
individual has no further potential for useful service under conditions
of full mobilization.
(3) When a member of the Selected Reserve is identified as an
unsatisfactory participant and considered a possible candidate for
involuntary transfer to the IRR or for discharge, a board of officers
shall be convened, as required by 10 U.S.C. 1163 to consider the
circumstances and recommend appropriate action.
(4) When an individual is transferred to the IRR as a result of an
approved board recommendation, no further board action shall be required
before discharge if the individual fails to take affirmative action in
an effort to upgrade the tentative characterization of service.
(5) Members of the IRR who have not fulfilled their statutory
military service obligation under 10 U.S.C. 651 were enlisted or
appointed under any program that provided that the obligation could be
fulfilled by service in the IRR only, and whose participation in such a
program has not been satisfactory may be:
(i) Retained in the IRR for the duration of their statutory military
service obligation with a tentative characterization of service,
normally under other than honorable conditions, when the Military
Department concerned has determined that the individual still possesses
the potential for useful service under conditions of full mobilization;
or
(ii) Discharged for unsatisfactory performance under 32 CFR Part 41,
when the Military Department concerned has determined that the
individual has no potential for useful service under conditions of full
mobilization.
(6) When a member of the IRR, whose enlistment or appointment
provided that the service concerned could be performed entirely in the
IRR (as opposed to the Selected Reserve), is identified as an
unsatisfactory participant, a board of officers shall be convened as
required by 10 U.S.C. 1163 to consider the circumstances and recommend
appropriate action. When an individual is retained as a result of an
approved board action, no further board action shall be required before
discharge if the individual fails to take affirmative action in an
effort to upgrade the tentative characterization of service.
(7) Individuals assigned to the Selected Reserve who are ordered to
active duty under 10 U.S.C. 673a or to active duty for training under
the provisions of 10 U.S.C. 270 may be returned to their previous unit
of assignment or transferred to the IRR upon the completion of the
active duty or active duty for training. When necessary, the
individual's term of enlistment or service agreement may be extended to
permit completion of the designated period of active duty or active duty
for training in accordance with 10 U.S.C. 270(b) and 673(b).
(8) Individuals who are transferred or assigned to the IRR who have a
tentative characterization of service of less than honorable because of
unsatisfactory participation in the Ready Reserve shall be discharged at
the end of their statutory military service obligation or their period
of enlistment or service agreement, whichever is later with such
characterization unless the individuals have taken affirmative action to
upgrade the tentative characterization of service. Affirmative actions
may include, but are not limited to, rejoining a unit of the Selected
Reserve and participating satisfactorily for a period of 12 months, or
volunteering for and completing a tour of active duty for training of
not less than 45 days. When necessary, the individual's term of
enlistment or service agreement may be extended to complete the
affirmative action and qualify for a more favorable characterization of
service.
(9) When members of the Selected Reserve are ordered to active duty,
active duty for training, or transferred to the IRR because of
unsatisfactory participation, copies of their orders should be furnished
to the individuals through personal contact by a member of the command
and a written acknowledgment of receipt obtained. When such efforts are
unsuccessful, the orders shall be mailed to the individual.
(i) Orders mailed to such members shall be sent by Certified Mail
(Return Receipt Requested), and a Receipt for Certified Mail (PS Form
3800) obtained. In addition, the individual who mails the orders shall
prepare a Sworn Affidavit of Service by Mail (format at enclosure) that
shall be inserted, together with the PS Form 3800, in the member's
personnel file.
(ii) Notification shall be made through the mailing of orders to the
member's most recent mailing address.
(iii) Provided the orders were properly mailed to the most recent
address furnished by the member, absence of proof of delivery does not
change the fact that the member was properly ordered to report for
active duty, active duty for training, or transferred to the IRR, as
appropriate.
(iv) Individuals ordered to active duty who fail to report shall have
their names entered into the National Crime Information Center of the
Federal Bureau of Investigation within 30 days following their reporting
date and appropriate screening by the Deserter Information Point
concerned.
(10) Orders affecting members of the IRR that involve active duty for
training required by the terms of their enlistment or service agreement
may be handled by mail in the manner prescribed in paragraph (a)(9)(i)
of this section.
(11) Each member of the IRR must keep the organization of assignment
informed of:
(i) His/her accurate and current mailing address;
(ii) Any change of address, marital status, number of dependents, and
civilian employment; and
(iii) Any change in physical condition that would prevent the member
from meeting the physical or mental standards prescribed by 10 U.S.C.
652 and Part 44 of this title.
(12) Individuals involuntarily ordered to active duty or active duty
for training under provisions of this part may be delayed as prescribed
by the Secretary of the Military Department concerned.
(13) Individuals whose involuntary order to active duty would result
in extreme community or personal hardship may, upon their request, be
transferred to the Standby Reserve, the Retired Reserve, or discharged,
as appropriate, in accordance with 10 U.S.C. 673a(c) and Part 44 of this
title.
(b) Exceptions. As exceptions to the criteria in paragraph (a) of
this section, members of the Ready Reserve who do not or are unable to
participate for any of the following reasons shall be processed as
indicated:
(1) Members of the Selected Reserve who are unable to participate in
a unit of the Selected Reserve by reason of an action taken by the
Military Department concerned, such as unit inactivation or relocation,
to the effect that they now reside beyond a reasonable commuting
distance (as defined in 100.6(e)) of a Reserve unit, shall be assigned
to the IRR until they are able to join or be assigned to another unit,
or complete their statutory military service obligation.
(2) Members of the Selected Reserve who change their residence:
(i) May lose their unit position. However, they will be transferred
to another paid-drill unit with the same Reserve component if possible
or be given 90 days after departing from their original unit to locate
and join another unit. At the new unit, they will fill an existing
vacancy or be assigned as a temporary overstrength within the
congressionally authorized standard-years (defined in 100.6(f)) or
funds under paragraph (b)(2)(iii) (A) and (B) of this section.
(ii) May locate position vacancies that require different specialties
than the ones they now possess. Therefore, the Secretary of the
Military Department concerned may provide for the retaining of these
individuals (with their consent) by ordering them to active duty for
training to acquire the necessary specialties.
(iii) Must be accepted in a Reserve unit by their parent Military
Department regardless of vacancies, subject to the following conditions:
(A) The losing unit certifies that the reservist's performance of
service has been satisfactory.
(B) The reservist's specialty is usable in the unit, the member can
be retrained by on-the-job training, or the member is willing to be
retrained as outlined in paragraph (b)(2)(ii) of this section.
(iv) Are authorized to transfer to another Reserve component under
the provisions of DoD Directive 1205.51, ''Transfer of Persons Between
Reserve Components of the Armed Forces,'' June 25, 1959, when the
conditions outlined in paragraph (b)(2)(iii) apply.
(3) If members of the Selected Reserve who change their residents
fail to join another unit within a period of 90 days, and at least 1
unit of their component is within a reasonable commuting distance, as
such distance is defined in 100.6(e) they shall be processed in
accordance with 100.5(a) unless they are considered eligible to be
handled as ''exceptions'' under policies outlined in paragraph (b) (5)
through (8) of this section.
(4) If members of the Selected Reserve who change their residences
locate in an area where they reside beyond a reasonable commuting
distance, as such distance is defined in 100.6(e) of a paid-drill unit
of the same Reserve component, they shall be assigned to the IRR of
their service until they are able to transfer to a paid-drill unit of
another Reserve component; or complete their statutory military service
obligation.
(5) Members of the Ready Reserve who are preparing for, or are
engaged in, critical civilian occupations will be screened in accordance
with 32 CFR Part 44.
(6) Individuals who are preparing for the ministry in a recognized
theological or divinity school may participate voluntarily in the Ready
Reserve. However, under 10 U.S.C. 685, such individuals may not be
required to do so. Members who do not wish to participate shall be
transferred to the Standby Reserve. If such training is terminated
before graduation, the member may be transferred back to the Ready
Reserve. A member eligible for assignment to the Standby Reserve under
the provisions of 10 U.S.C. 268(b), 270, 510, 511, 593, 597, 651, 652,
672, 673, 673a, 673b, 685, and 1163 who voluntarily remains assigned to
the Selected Reserve and participates in the training required, waives
any right to request delay to exemption from any later mobilization on
the basis of preparation for the ministry.
(7) Individuals who are enrolled in a course of graduate study in one
of the health professions shall be screened in accordance with DoD
Directive 1200.141, ''Reservists Who Are Engaged in Graduate Study or
Training in Certain Health Progressions,'' July 30, 1969.
(8) Individuals who incur a bona fide, temporary nonmilitary
obligation requiring overseas residency outside the United States, or
religious missionary obligation shall be processed in accordance with 32
CFR Part 103.
(9) Nothing in this part shall be construed as limiting the right of
the individual to voluntarily request transfer to the Standby Reserve or
to the Retired Reserve, or discharge from the Reserve components when
such action is authorized by regulations of the Military Department
concerned.
(10) Nothing in this part shall be construed as precluding action
against a member of the Ready Reserve, either by court-martial or review
by a board of officers convened by an authority designated by the
Secretary of the Military Department concerned, when such action might
otherwise be warranted under 10 U.S.C. 268(b), 270, 510, 511, 593, 597,
651, 652, 672, 673, 673a, 673b, 685, and 1163 and the regulations of the
Military Department concerned.
2This includes women whose current enlistment or appointment was
effected before February 1, 1978.
32 CFR 100.6 Definitions.
(a) Ready Reserve. Consists of the Selected Reserve and the
Individual Ready Reserve. Members of both are subject to active duty as
outlined in 10 U.S.C. 672 and 673.
(b) Selected Reserve. Members of the Ready Reserve in training/pay
categories A, B, C, F, M and P. These reservists are either members of
units who participate regularly in drills and annual active duty for
training, in annual field training in the case of the National Guard, or
are on initial active duty for training; or they are individuals who
participate in regular drills and annual active duty on the same basis
as members of Reserve component units. Excluded from the Selected
Reserve are Reserve component members who are:
(1) Participating in annual active duty for training and not paid for
attendance at regular drills (pay categories D and E), or awaiting, in a
nonpay status, their initial active duty for training (pay category L).
(2) Enrolled in officer training program (pay category J) members of
the Individual Ready Reserve pool (pay category H), and reservists on
extended active duty. (See 10 U.S.C. 268(b) 32 CFR part 102.)
(3) Members of the Inactive Army National Guard.
(c) Individual Ready Reserve (IRR). Members of the Ready Reserve not
assigned to the Selected Reserve and not on active duty.
(d) Unsatisfactory participation. A member of the Ready Reserve who
fails to fulfill his/her obligation or agreement as a member of a unit
of the Ready Reserve described in 10 U.S.C. 268(b), 270, 510, 511, 593,
597, 651, 652, 672, 673, 673a, 673b, 685, and 1163. Or a member who
fails to meet the standards as prescribed by the Military Departments
concerned for attendance at training drills, attendance at active duty
for training, training advancement, or performance of duty.
(e) Reasonable commuting distance. The maximum distance a member of
a Reserve component may travel involuntarily between residence and drill
training site, in accordance with 100.5(b)(1). This distance may be
within:
(1) A 100-mile radius of the drill site that does not exceed a
distance that can be traveled by automobile under average conditions of
traffic, weather, and roads within 3 hours. This applies only to those
units that normally conduct four drills on 2 consecutive days during the
training year, if Government meals and quarters are provided at the base
where the unit drills. (The provisions of this paragraph shall apply
only to those individuals enlisting, reenlisting, or extending their
enlistments after November 1, 1972.)
(2) A 50-mile radius of the drill site that does not exceed a
distance that can be traveled by automobile under average conditions of
traffic, weather, and roads within a period of 1 1/2 hours.
(f) Standard-year. Personnel authorizations that describe the amount
of work expected of one individual during a calendar or fiscal year.
(g) Tentative characterization of service. An interim description of
the quality of performance during a period which is less than the time
required to earn an administrative discharge. The quality of
performance shall be described as honorable, under honorable conditions,
or under other than honorable conditions. If the quality is described
as under honorable conditions a General Discharge certificate shall be
provided upon discharge. If the quality is described as under other
than honorable conditions a Discharge Under Other Than Honorable
Conditions certificate shall be provided upon discharge.
(44 FR 51568, Sept. 4, 1979, as amended at 45 FR 48618, July 21,
1980)
32 CFR 100.6 Enclosure -- Suggested Format, Affidavit of Service by Mail
32 CFR 100.6 Pt. 100, Encl.
State of ------------
County of ------------
------------ (Name of individuals who mailed orders), being duly
sworn, deposes and says:
I am the ------------ (Job Title, e.g., Personnel Officer) of
------------ (Unit) on the ------ day of ---------- 19 -- , I mailed the
original orders, a true copy of which is attached hereto, by Certified
Mail (Return Receipt Requested) to ------------ (Name and address of
member of orders) that being the last known address given to
------------ (Unit) as the one at which official mail would be received
by or forwarded to the Reserve component member by depositing same in an
official depository of the U.S. Postal Service at ------------ (Location
of Postal Facility) in a securely wrapped and sealed U.S. Government
official postal envelope with a Return Receipt Card (PS Form 3811)
attached and the envelope addressed to the member at the address
provided. A Receipt for Certified Mail (PS Form 3800) attesting to such
action is attached.
------------ (Signature and Rank of Affiant)
Sworn and subscribed before me this ------ day of ---------- 19 -- .
------------ (Signature and Rank of Officer Administering Oath)
32 CFR 100.6 PART 101 -- PARTICIPATION IN RESERVE TRAINING PROGRAMS
Sec.
101.1 Reissuance and purpose.
101.2 Applicability.
101.3 Definitions.
101.4 Responsibilities.
101.5 Requirements.
101.6 Criteria for satisfactory performance.
101.7 Compliance measures.
101.8 Reserve training in sovereign foreign nations.
Authority: 10 U.S.C. 270 (a), (b), (c), 511 (b), (d), and 673a, and
32 U.S.C. 502(a).
Source: 44 FR 53160, Sept. 13, 1979, unless otherwise noted.
32 CFR 101.1 Reissuance and purpose.
This part establishes: (a) The criteria and training requirements
for satisfactory participation by members of the Reserve components of
the U.S. Armed Forces who are subject to the provisions of 10 U.S.C.
and 32 U.S.C., and (b) uniform DoD policy for training members of such
Reserve components who may be temporarily residing in sovereign foreign
nations.
32 CFR 101.2 Applicability.
The provisions of this part apply to the Office of the Secretary of
Defense and the Military Departments.
32 CFR 101.3 Definitions.
For the purposes of administering 10 U.S.C. 270(a), the terms
''enlisted'' and ''appointed'' refer to initial entry into an armed
force through enlistment or appointment.
32 CFR 101.4 Responsibilities.
The Secretaries of the Military Departments will issue regulations
prescribing criteria and training requirements for satisfactory
participation in Reserve training programs by members of Reserve
components of the U.S. Armed Forces and exceptions thereto, consistent
with 101.5.
32 CFR 101.5 Requirements.
(a) Reserve participation -- (1) Training requirements under 10
U.S.C. 270(a). (i) Each individual inducted, enlisted, or appointed in
the U.S. Armed Forces after August 9, 1955, who becomes a member of the
Ready Reserve (by means other than through membership in the Army
National Guard of the United States (see 101.5(a)(2)) during the
required statutory period in the Ready Reserve, participate or serve as
follows, except as provided in 32 CFR part 102.
(A) In at least 48 scheduled drills or training periods and not less
than 14 days (exclusive of travel time) of active duty training during
each year; or
(B) On active duty for training for no more than 30 days each year,
unless otherwise specifically prescribed by the Secretary of Defense.
(ii) The provisions of 101.5(a)(1) do not apply to graduates of the
Federal and State Maritime Academies who are commissioned in the Naval
Reserve.
(2) Training requirements under 32 U.S.C. 502(a) apply to the
Secretaries of the Army and Air Force only. Members of the Army and Air
National Guard shall:
(i) Assemble for drill and instruction at least 48 times a year, and
(ii) Participate in training encampments, maneuvers, or other
exercises at least 15 days a year, unless excused by the Secretaries of
the Army or Air Force.
(3) Active duty. Enlisted members who have served 2 years on active
duty or who, under the policy and regulations of the Military Services
concerned, were credited with having served 2 years of active duty will
not be required to perform duty as described in paragraph (a)(1)(i) (A)
and (B) of this section unless such members:
(i) Enlisted under the provisions of 10 U.S.C. 511(b) or (d) thereby
incurring a statutory obligation to participate in the Ready Reserve in
an active training status for a specified period of time after the 2
years of active duty described above.
(ii) Performed part or all of their 2 years of active duty as a
result of being ordered to active duty under 10 U.S.C. 673a for not
participating satisfactorily in a unit of the Ready Reserve. However,
the Secretary concerned, or designee, may waive this requirement in
those cases where involuntary retention would not be in the best
interest of the Service.
(iii) Filled a vacancy in the Selected Reserve that otherwise cannot
be filled, following a diligent recruiting effort by the Secretary
concerned.
(iv) Executed a separate written agreement incurring an obligation to
participate in the Selected Reserve.
(4) Active duty served in a combat zone. (i) Except as specified in
paragraph (a)(4)(ii), enlisted members who (A) have served on active
duty in a combat zone for hostile fire pay (or other areas as prescribed
by the Secretary of Defense) for a total of 30 days or more, or (B) are
wounded while on active duty in hostile areas, will not be required to
perform duty involuntarily (as described paragraph (a) (1)(i)(A) and (2)
of this section. However, these members may be required to participate
or serve on active duty for no more than 30 days each year, unless
otherwise specifically prescribed by the Secretary of Defense.
(ii) Members, who enlisted under the provisions of 10 U.S.C. 511(b)
or (d) and serve on active duty described in paragraph (a)(4)(i) are
obligated to participate in the Ready Reserve in an active duty training
status during the statutory period of service in the Ready Reserve.
(5) Exclusion. Notwithstanding the exclusion of the member enlisted
under the provisions of 10 U.S.C. 511(b) or (d), from the policies set
forth in paragraph (a) (3) and (4) of this section, the Secretaries of
the Military Departments may, with the approval of the Secretary of
Defense, establish criteria which may excuse certain enlistees from
performing the duty described in 101.5(a), depending upon the
particular needs of the Military Department concerned.
32 CFR 101.6 Criteria for satisfactory performance.
Within the general policy outlined in 101.5(a), the minimum amount
of annual training prescribed by the Secretaries of the Military
Departments concerned will be no less than the training required to
maintain the proficiency of the unit and the skill of the individual.
In establishing annual training requirements under this policy, the
Secretaries:
(a) May grant exceptions under circumstances outlined below for
individuals who are subject to the training requirements set forth in
101.5(a)(1) and (2):
(1) To the degree that it is consistent with military requirements,
the personal circumstances of an individual may be considered in
assigning him/her to a training category prescribed in 32 CFR part 102,
except as otherwise provided by 32 CFR Part 100.
(2) Members who have performed a minimum initial tour of extended
active duty, as prescribed by the Military Departments concerned may be
placed in Category I (no training) as defined in 32 CFR part 102, when
the Secretary of the Military Department concerned determines that no
training for mobilization requirement exists because of
(i) Changes in military skills required;
(ii) The degree of military skill held; or
(iii) Compatibility of the member's civilian occupation with his/her
military skill.
(b) May grant exceptions regarding absences after considering the
member's manner of performance of prescribed training duty under the
provisions of 101.5(a)(1) and provided that the absences not so
excepted do not exceed 10% of scheduled drills or training periods.
(c) Shall require members to: (1) Meet the standards of satisfactory
performance of training duty set forth in 101.6(b); or (2) participate
satisfactorily in an officer training program. The placement of such
members in the Standby Reserve as a result of the screening process
prescribed in 32 CFR Part 44, will continue to constitute satisfactory
performance of service.
32 CFR 101.7 Compliance measures.
Under the provisions of 32 CFR Part 100, members of the Ready Reserve
who fail to meet the criteria for satisfactory performance, as set forth
in 101.6, may be:
(a) Ordered to active duty; or
(b) Ordered to active duty for training; or
(c) Transferred to, or retained in the Individual Ready Reserve with
a tentative characterization of service, normally under other than
honorable conditions; or
(d) Discharged for unsatisfactory participation under the provisions
of 32 CFR Part 41, when the Military Department concerned has determined
that the individual has no potential for useful service under conditions
of full mobilization.
32 CFR 101.8 Reserve training in sovereign foreign nations.
(a) The Secretaries of the Military Departments may authorize the
conduct of scheduled drills or training periods, correspondence courses,
and such other active or inactive duty training as they consider
appropriate for members of the Reserve components who may be temporarily
residing in sovereign foreign nations which permit the United States to
maintain troops of the Active Forces (other than Military Advisory
Assistance Group or attached personnel) within their boundaries.
(b) Prior to authorizing such training, the Secretaries of the
Military Departments will instruct the attaches representing their
respective Departments to inform the U.S. Ambassador and the appropriate
officials of the foreign government of the intent to conduct such
training. If the foreign government objects, the Secretaries of the
Military Departments will furnish all the facts and their
recommendations to the Secretary of Defense.
(c) This policy does not prohibit the conduct of inactive duty
training, such as correspondence courses, in those sovereign foreign
countries in which the United States does not maintain Active Forces and
where an agreement exists between the United States and the sovereign
foreign nation concerned for the conduct of such training.
(d) This policy does not prohibit for a limited duration the
augmentation of Defense Attache Offices by attache reservists
(mobilization augmentees or mobilization designees) during periods of
local emergencies or for short-term (less than 30 days) training
periods, provided the provisions of paragraph (b) of this section are
respected. Attache reservists who are available, possess the expertise
required, and reside temporarily in foreign countries, shall be utilized
to the maximum extent to augment Defense Attache Offices before the
continental United States-based attache reservists are utilized.
32 CFR 101.8 PART 102 -- UNIFORM RESERVE, TRAINING AND RETIREMENT
CATEGORIES
Sec.
102.1 Purpose.
102.2 Applicability.
102.3 Definitions.
102.4 Policy.
102.5 Responsibilities.
102.6 Procedures.
Appendix A to Part 102 -- Uniform Reserve, Training and Retirement
Categories
Appendix B to Part 102 -- Members Participating in Approved Programs
Outside the Department of Defense
Appendix C to Part 102 -- Definitions Explained
Appendix D to Part 102 -- Authorized Reserve, Training and Retirement
Categories.
Authority: 10 U.S.C. 136.
Source: 57 FR 3541, Jan. 30, 1992, unless otherwise noted.
32 CFR 102.1 Purpose.
This revises 32 CFR part 102 to:
(a) Update DoD policy and assign responsibilities for implementing
recent changes in law.
(b) Establish DoD policy guidance for maintaining and reporting
personnel data in accordance with (IAW) DoD Directive 1205.17 /1/ and
DoD Instruction 7730.54. /2/
(c) Designate uniform Reserve component (RC) categories (RCCs) and
training and retired categories (TRCs) for the Ready Reserve, Standby
Reserve, and Retired Reserve of the Armed Forces under 10 U.S.C. 268,
270, 271, 273, 274, 1376, 2001, and 6017.
(d) Establish minimal training criteria for each category of the RCs.
(e) Provide DoD uniform planning policies and procedures on training.
(f) Establish DoD Policy guidance for participation in Selective
Service System (SSS) activities, civil defense activities, and
continental United States (CONUS) Defense programs by members of the
Ready and Standby Reserve.
/1/ Copies may be obtained at cost from the National Technical
information Service, 5285 Port Royal Road, Springfield, VA 22161.
/2/ See footnote 1 to 102.1(a).
32 CFR 102.2 Applicability.
This part applies to the Office of the Secretary of Defense (OSD);
the Military Departments and their Reserve components (RCs); the
Chairman, Joint Chiefs of Staff and Joint Staff; the U.S. Coast Guard
(USCG) and its Reserve Component (RC) with the concurrence of the
Department of Transportation (DoT); and the Defense Agencies (hereafter
referred to collectively as ''DoD Components'').
32 CFR 102.3 Definitions.
Uniform Reserve, training and retirement categories used in this part
are defined in appendix A to this part. Other terms used in this part
are defined in appendices B and C to this part.
32 CFR 102.4 Policy.
It is DoD policy to:
(a) Establish Authorized RCCs and TRCs. Appendix D to this part
establishes authorized RCCs and TRCs in the RCs for training and
accountability purposes. Each unit and member of the RCs not counted in
active duty (AD) end strengths, IAW 10 U.S.C. 115(b)(1)(B), shall be
placed in one of the RCCs and TRCs so identified.
(b) Establish Criteria. To ensure that trained and qualified RC
units and individuals are available for AD in time of war or national
emergency, and that funds appropriated annually for RC training are
adequate for meeting mobilization requirements, the Secretary concerned
shall establish necessary criteria and procedures to do the following:
(1) Place all RC members in an RCC and TRC IAW the uniform Reserve,
training and retirement categories described in appendices A and D of
this part. Individuals shall be assigned to RCCs and TRCs based on
their mobilization obligations and training requirements.
(2) Ensure that all RC members receive training IAW mobilization
assignments and required readiness levels. All members of the Ready
Reserve, except members of the Army National Guard (ARNG) of the United
States and the Air National Guard (ANG) of the United States, may be
required to serve on AD training (ADT) up to 30 days a year (section
270(a)(2) of title 10, U.S.C.) There is no statutory maximum annual
limit on required training for members of the National Guard. Training
for the Individual Ready Reserve (IRR), Standby Reserve, and Retired
Reserve may be accomplished voluntarily IAW DoD procedures in 102.6.
(3) Approve any additional inactive duty training (IDT), as necessary
and consistent with law. Authorizing and utilizing additional training
is subject to the categories, limitations, and controls in 102.4(c).
(c) Provide Consideration for Establishing Criteria. (1) Training
programs shall provide for the minimal number of IDT periods, annual
training (AT), and ADT required for attaining the prescribed unit
readiness status and maintaining individual proficiency.
(2) Paid IDT periods shall not be less than 4 hours. No more than
two IDT periods may be performed in any calendar day. Service
Secretaries shall prescribe minimum standards for IDT, IAW 37 U.S.C.
206.
(3) IDT periods for points only (without pay) shall not be less than
2-hours duration with a maximum of two points authorized in any 1
calendar day (one point in any 1 calendar day for attendance at
professional or trade conventions) (DoD Instruction 1215.7. /3/ )
(4) Where practical, multiple IDT periods (MIDTPs) shall be used to
maximize training effectiveness.
(d) Provide Additional IDT Periods. Additional IDT periods are
intended to improve readiness by providing for individuals and units to
receive required and necessary training for attaining and maintaining
designated readiness levels. The Secretary concerned shall establish
guidance for and approve use of additional IDT periods IAW limits in
paragraphs (d)(1) through (d)(3) of this section.
(1) Those training periods are intended for the principal use of
non-technician drilling Reservists. The RC shall identify additional
IDT periods separately from normal unit or individual training periods
in budget documents and in internal records so that training period
costs and training support costs for each type of additional training
clearly may be identified, justified, and audited. Those additional IDT
periods used by technicians shall be identified separately in budget
documents to monitor compliance with DoD policy.
(2) Three categories of additional IDT periods are, as follows:
(i) Additional training periods (ATPs) for units, subunits, and
individuals are for accomplishing additional required training, as
defined by a unit's postmobilization mission. The number of those
training periods shall not exceed 12 each fiscal year (FY) for any
member.
(ii) Additional flying and flight training periods (AFTPs) are
authorized for primary aircrew members for conducting aircrew training
and combat crew qualification training to attain and maintain aircrew
flying proficiency and sustain mobilization readiness. AFTPs shall not
be in addition to the ATPs in paragraph (d)(2)(i) of this section. The
number of those training periods shall not exceed 48 each FY for any
aircrew member, unless specifically authorized by the Secretary
concerned.
(iii) Readiness management periods (RMPs) are used to support the
ongoing day-to-day operation of the unit, accomplishing unit
administration, training preparation, support activities, and
maintenance functions. The number of RMPs shall not exceed 24 each FY
for any member. Those training periods shall be used only where
sufficient full-time support (FTS) personnel are not available to
accomplish those duties. RMPs shall not be performed on the same day
another training period (IDT, ATP, or AFTP) is being performed and not
more than one RMP shall be performed by an individual in 1 calendar day.
(3) Notwithstanding the limitations in paragraphs (d)(2)(i) and
(d)(2)(iii) of this section, the Service Secretary may authorize ATPs or
RMPs in excess of those specified on an exception basis. Exception
shall be strictly limited to specific skills and missions requiring
training in excess of that authorized in paragraphs (d)(2)(i) and
(d)(2)(iii) of this section. In no case shall ATPs or RMPs exceed 30
each year for each person. Those training periods shall not be used for
augmenting missions or functions, but must provide bona fide training
opportunities required to meet readiness levels. That authority may not
be delegated below the Service Secretary.
(e) Provide AD. At any time, an authority designated by the
Secretary concerned may order a member of the RC under his or her
jurisdiction to AD or retain him or her on AD with the consent of the
member under the authority of 10 U.S.C. 672(d). However, a member of the
ARNG of the United States or the ANG of the United States may not be
ordered to AD under that authority without the consent of the governor
or other appropriate authority of the State or territory, the
Commonwealth of Puerto Rico, or the District of Columbia. Five
categories of AD for RC members serving with RC are, as follows:
(1) Initial AD training (IADT), which includes basic military
training and technical skill training, is required for all enlisted
accessions. For nonprior service (NPS) male enlistees who are between
the ages of 18 1/2 and 26 years, that IADT shall be for a period of not
less than 12 weeks to commence, insofar as practical, within 270 days
after the date of enlistment. For all other enlistees, the period of
IADT shall be as prescribed by the Secretary concerned to commence,
insofar as practical, within 360 days after entry into Service, except
that in time of war or national emergency declared by Congress or the
President basic training (or its equivalent) shall be for a period of
not less than 12 weeks. Enlisted members receiving stipends under the
Armed Forces Health Professions (AFHP) Stipend Program for Reserve
Service (the Stipend Program) are not required to participate in Ready
Reserve training until they have completed their educational training
(10 U.S.C. 511(b), 511(d), 671(b), and 2128).
(2) AT may be required for all members of the Ready Reserve. By DoD
policy, members of the Selected Reserve shall perform AT. For all
members of Selected Reserve units, except for those in the National
Guard, that training shall be for not less than 14 days (exclusive of
travel time) each year (10 U.S.C. 270(a)(1)). National Guard units are
required to perform full-time military training (in AD or full-time
National Guard duty status) for at least 15 days each year including
travel time (32 U.S.C. 502).
(3) ADT is authorized to provide for full-time attendance at
organized and planned specialized skill training, flight training,
combat crew training, unit conversion training, refresher and
proficiency training, officer acquisition training, professional
development education programs, etc., for providing RC members with
necessary skills and disciplines supporting RC missions. Authorized ADT
must provide a primary training content to the recipient. Authorization
for ADT shall be managed IAW DoD Directives established by the
Secretaries concerned. Nontechnician personnel shall receive priority
consideration for such training.
(4) AD for special work (ADSW) is authorized for personnel from
applicable military or Reserve personnel appropriations for projects
supporting active or RC programs, such as annual screening, operation of
training camps, training ships, and unit conversions to new weapons
systems, when such duties are essential to the organization. Projects
supporting study groups, training site and exercises, short-term mission
projects, and administrative support functions also are included.
Authorization of ADSW shall be managed IAW DoD Directives established by
the Secretary concerned. ADSW tours exceeding 180 days are accountable
against AD strengths (regular, or RC AD end strengths, consistent with
pay appropriations) IAW 10 U.S.C. 115(b)(1)(B). By DoD policy, those
tours normally are limited to 139 days, or less, in 1 FY. Exceptions to
the 139-day limit may be granted on an individual basis for specific
mission requirements. Nontechnician personnel shall receive priority
consideration for those tours. Short breaks in tours; i.e., 30 days or
less, to circumvent that requirement, are not authorized.
(5) AD, other than for training or ADSW, including full-time National
Guard duty, is authorized in support of RC missions, under 10 U.S.C.
265, 672(d), 678, 715, 3019, 3033, 3496, 8019, 8033, and 8496 and 32
U.S.C. 708. Personnel performing such duty are included in the FTS
numbers for each RC under the collective title of Active Guard or
Reserve (AGR), including Navy training and administration of Reserves
(TARs) and all statutory tour personnel.
(f) Provide for Muster Duty (MD). (1) To meet the annual screening
requirement established by 102.6(b)(1), an authority designated by the
Secretary concerned may order a member of the IRR to MD (established by
10 U.S.C. 687). MD shall include a minimum of 2 hours at the muster site
and may not include more than 1 day, including travel, each calendar
year. An allowance for MD shall be paid IAW 37 U.S.C. 433 and DoD
Instruction 1215.7 at the rate determined by the DoD Per Diem Committee
and included in the ''DoD Military Pay and Allowances Entitlement
Manual.''
(2) In cases where a total of more than 1 day is required to meet the
annual screening requirement, or in other specific circumstances
approved under regulations issued by the Secretary concerned, ADT may be
used instead of MD.
(g) Restrict Assignment Outside United States. A member of the RCs
may not be assigned to AD on land outside the United States, its
territories and possessions, until the member has completed the basic
training requirements of the member's Armed Forces (10 U.S.C. 671(a)).
(h) Require Training Participation. The Secretaries concerned shall
establish minimal standards for satisfactory participation at required
training periods, which shall include the number and percentages of
training periods for meeting the minimal standards. Individuals
attending IDT periods are required to meet those minimal training
standards. Those standards shall contain procedures for accounting for
absences and excused drills, as necessary. Individuals voluntarily may
attend extra IDT periods for points, IAW DoD Directive 1215.13. /4/
/3/ See footnote 1 to 102.1(a).
/4/ See footnote 1 to 102.1(a).
32 CFR 102.5 Responsibilities.
(a) The Assistant Secretary of Defense (Reserve Affairs) (ASD(RA))
shall:
(1) Establish DoD policy and provide guidance for RC training and
retirement categories.
(2) Establish policy guidance for the minimal training criteria and
the AD requirements associated with each category.
(b) The Secretaries of the Military Departments and the Commandant of
the United States Coast Guard (USCG) shall:
(1) Place all RC members in a RCC and TRC IAW criteria established in
appendices A and D of this part.
(2) Ensure that plans and policies for the management of RCCs are
consistent with this part.
(3) Ensure that RC members receive training and serve on AD IAW the
minimum criteria established for each RCC in 102.4(c).
32 CFR 102.6 Procedures.
(a) Selected Reserve -- (1) IDT. Except as specifically provided in
paragraph (b) of this section, members of the Ready Reserve shall
participate in 48 scheduled training periods each year. By DoD policy,
that requirement applies to all members of Selected Reserve units (10
U.S.C. 270(a)(1) and 32 U.S.C. 502).
(2) AT. Except as specifically provided in paragraph (b) of this
section, AT is required for all members of the Ready Reserve. By DoD
policy, that requirement is limited to members of the Selected Reserve.
For members of the Reserves, that training shall be for not less than 14
days (exclusive of travel time) each year except, as in paragraph (a)(2)
of this section. Units of the National Guard are required to perform
full-time military training for at least 15 days each year, including
travel time.
(i) AT tours for individual mobilization augmentees (IMAs) or other
Reservists assigned as an individual to any training categories ordered
to AT at Headquarters, support organizations, or to activities not
operating on Saturday, Sunday, or Federal holidays, normally are limited
by DoD policy to 12 days excluding travel time; i.e., from Monday of
the first week through Friday of the second week.
(ii) When required, members may be ordered to AT for longer periods
than 12 days (excluding travel time), up to a maximum of 30 days each
FY, for activities that enhance readiness, such as participating in
mobilization exercises. Training may begin on days other than Monday,
when special activities begin during the week.
(iii) AT normally is performed during one consecutive period. Split
tours may be authorized for selected units or individuals, if required
to meet training missions. Any additional costs must be justified
fully. Authorization for variations in AT lengths shall be managed IAW
DoD Directives established by the Secretaries concerned.
(3) Short Periods of AD Performed by Members of the Selected Reserve.
Under 10 U.S.C. 672(d), 673, 673b, 3500, or 8500, that AD may not be
substituted for training required by 10 U.S.C. 270 and by paragraph
(a)(2) of this section, unless in the judgement of the Secretary
concerned:
(i) AD service performed under 10 U.S.C. 672(d), 673, 673b, 3500, or
8500 is equivalent to the training that might have been performed under
the authority of 10 U.S.C. 270 and paragraph (a)(2) of this section.
(ii) AD service under 10 U.S.C. 672(d), 673, 673b, 3500, or 8500,
when combined with training required by 10 U.S.C. 270 and paragraph
(a)(2) of this section constitutes an undue personal hardship.
(4) NPS Personnel. (i) Those personnel enlisted directly into an
Armed Force who have not completed the basic training (IADT)
requirements of that Armed Force. During war, the period of required
basic training (or its equivalent) may not be less than 12 weeks.
Exceptions for personnel with civilian-acquired skills may be
authorized, as specified in the implementing regulations of the Military
Departments.
(ii) The Secretaries concerned may require members enlisted for
service in the Selected Reserve to participate in IDT periods before
completing IADT. Those training periods may be with or without pay.
(iii) IADT, which includes basic military training and technical
skill training, is required for all enlisted accessions. For NPS male
enlistees who are between ages of 18 1/2 and 26 years, that IADT shall
be for a period of not less than 12 weeks to commence, insofar as
practical, within 270 days after the date of enlistment. For all other
enlistees and inductees, IADT shall be for a period prescribed by the
Secretary concerned to commence, insofar as practical, within 360 days
after entry into Service, except that, during war or national emergency
declared by Congress or the President, the period of basic training (or
its equivalent) shall be for a period of not less than 12 weeks.
Individuals receiving stipends under the AFHP Stipend Program for
Reserve Service are not required to participate in Ready Reserve
training, until they have completed their educational training (10
U.S.C. 511(b), 511(d), 671(b), and 2128).
(iv) Individual Reservists are exempt from participating in AT or ADT
during the last 120 days before completing their Military Service
obligation (MSO) if they have served on AD for 1 year, or longer. (See
10 U.S.C. 270(a)).
(b) IRR -- (1) IRR Screening. Members of the IRR, not scheduled for
mandatory or voluntary training, are required to serve at least 1 day of
MD or AD each year to accomplish annual screening requirements IAW 10
U.S.C. 271(a), 275(a), 652, and 1004. Exemptions from IRR screening
during 1 FY are authorized for members who served on AD during the FY;
who are scheduled for discharge from the Military Service during the FY;
who reside outside geographical limitations established by the
Secretaries of the Military Departments; who are in the grade of O-4,
or higher, and have no remaining MSO; or, who were successfully
screened in the preceding FY. Under no circumstances should a member
serve an initial period in the IRR of more than 18 months without
participating in a screening either during an annual muster or during a
period of training. The Services are required to maintain the current
status of each member's physical condition, dependency status, military
qualification, civilian occupational skills, availability for service,
to include current address, and other information, as prescribed.
(2) IRR Members. Those members, including individuals enlisting
directly into the IRR, may participate voluntarily in IDT for points
only IAW the regulations of the Military Services.
(c) Standby Reserve. The Standby Reserve consists of personnel who
maintain their military affiliation without being in the Ready Reserve
IAW 10 U.S.C. 267, 272, and 273 and DoD Directive 1235.9. /5/
(1) Active Status Listing. The following members of the Standby
Reserve are in an active status. By DoD policy, members of the Standby
Reserve in an active status may participate voluntarily without pay in
RC training for retirement points only. Those following members may
receive promotion credit, be considered for promotion, and if selected,
be promoted:
(i) Personnel who have not fulfilled their statutory MSO.
(ii) Personnel temporarily assigned for hardship, or other cogent
reason, who intend returning to the Ready Reserve.
(iii) Personnel retained in an active RC status under 10 U.S.C.
1006.
(iv) Members transferred from the Ready Reserve to the Standby
Reserve, after being designated as ''key personnel'' by their employers,
may volunteer for assignment to the Standby Reserve Active Status List
for the period they remain designated as key personnel. Individuals
desiring to be transferred shall apply directly to the RC concerned.
(2) Inactive Status List. The following members of the Standby
Reserve are in an inactive status (they may not participate for points,
pay, or promotion credit and may not be considered for promotion, or
promoted):
(i) Members transferred to the Inactive Status List instead of
separating IAW 10 U.S.C. 1209.
(ii) All other members transferred to the Inactive Status List IAW
DoD Directive 1235.9. Personnel enrolled in a military school course,
including correspondence courses, when transferred from the Ready
Reserve to the Standby Reserve Inactive Status List may continue
voluntarily participating in the course until completion. Those
personnel shall not be entitled to pay and allowances, travel and
transportation, or to earn promotion and retirement points for that
training.
(d) Retired Reserve. Consists of all personnel transferred to the
Retired Reserve and subject to mobilization IAW DoD Directive 1352.1.
/6/ Retired Reservists voluntarily may train (with or without pay) with
a unit where they have premobilization orders. Suitable arrangements
with the unit are required. The Retired Reserve consists of the
following categories:
(1) Reserve members in receipt of retired pay under 10 U.S.C.
chapter 67.
(2) Reserve members who have transferred to the Retired Reserve after
completing 20 qualifying years creditable for retired pay under 10
U.S.C. chapter 67, but who are not yet 60 years of age, or are age 60
and have not applied for retired pay.
(3) Reserve members retired for physical disability under 10 U.S.C.
1201, 1202, 1204, or 1205. Members have completed 20 years of Military
Service creditable for retired pay, under 10 U.S.C. chapter 67 or are
more than 30-percent disabled.
(4) Reserve officers and enlisted members who have retired after
completion of 20, or more, years of active Military Service. That does
not include Regular enlisted members of the Army, the Navy, the Air
Force, or the Marine Corps, with 20 to 30 years of Military Service who
are assigned to the Retired Reserve or transferred to the Fleet Reserve
(Navy) or the Fleet Marine Corps Reserve.
(5) Reserve personnel drawing retired pay based on retirement for
reasons other than age, Service requirements, or physical disability.
That category is restricted to those who are retired under special
conditions, as authorized by the ASD(RA) under legislation.
(e) Voluntary Training. Members of the RCs, not subject to mandatory
training, shall be encouraged to participate in order to maintain their
mobilization readiness. The opportunity to participate voluntarily
without pay in training shall be limited by the manpower and resources
authorized by the Secretary.
(f) Funds. Funds for personnel in uniform Reserve, training and
retirement categories shall be IAW DoD 7110.1-M. /7/ The Secretary
concerned is authorized to include in the budget for the active
component (AC) funds providing AD tours for Reserves on temporary duty
(TDY) in support of AC and RC programs.
/5/ See footnote 1 to 102.1(a).
/6/ See footnote 1 to 102.1(a).
/7/ Distribution is maintained by the Office of the Comptroller, DoD,
room 3A862, The Pentagon, Washington, DC 20301-1100.
32 CFR 102.6 Pt. 102, App. A
32 CFR 102.6 Appendix A to Part 102 -- Uniform Reserve, Training and
Retirement Categories
There are three RCCs. They are the Ready Reserve, The Standby
Reserve, and the Retired Reserve. Each member of the National Guard and
Reserve is assigned within one of those categories. (All National Guard
members, including those in the Inactive National Guard (ING), are in
the Ready Reserve.)
The Ready Reserve is comprised of military members of the Reserve and
National Guard, organized in units or as individuals, and liable for
order to AD in time of war or national emergency under 10 U.S.C. 672
and 673 (reference (d)). The Ready Reserve consists of three
subcategories: the Selected Reserve, the IRR, and the ING.
1. Selected Reserve. The Selected Reserve consists of those units
and individuals in the Ready Reserve designated by their respective
Services and approved by the Chairman, Joint Chiefs of Staff (CJCS), as
so essential to initial wartime missions that they have priority over
all other Reserves. All Selected Reservists are in an active status.
The Selected Reserve includes the following:
a. Selected Reserve Units. Units manned and equipped to serve and/or
train either as operational or as augmentation units. Operational units
train and serve as units. Augmentation units train together, but when
mobilized, lose their unit identity and become part of AC unit or
activity. Selected Reserve units include:
(1) Drilling Unit Reservists. Trained unit members participating in
unit training activities on a part-time basis shall have the RCC and TRC
designator of ''SA''.
(2) Unit FTS Personnel -- (a) AGR. Guard or Reserve members of the
Selected Reserve serving on AD or full-time National Guard duty
(includes Navy TAR personnel for organizing, administering, recruiting,
instructing, or training RC units. All unit AGR members must be assigned
against or attached to an authorized mobilization position in the unit
they support. They shall have the RCC and TRC designator of ''SG.''
(b) Military Technicians (MTs). Drilling Reservists who are also
Federal civilian employees providing FTS for administration, training,
and maintenance in a Selected Reserve unit. MTS must maintain their
status as drilling Reservists in the same unit they support as civilian
employees. All dual status MTs must be in mobilizable positions. They
are dual status in that they are both civilian employees and drilling
Reservists of a Guard or Reserve unit, and are accountable under the TRC
designator of ''SA.''
(c) AC. AD members paid from military personnel appropriations
assigned or attached to National Guard or Reserve units to provide
advice, liaison, management, administration, training, and/or
maintenance support in the category of FTS. Those members are not part
of the Selected Reserve, but shall deploy with their assigned unit,
should it mobilize. AC members performing FTS are counted as part of
trained strength in units, but not in the Selected Reserve strengths.
(d) Civil Service Employees (CIV). Those personnel are hired under 5
U.S.C. 3101 and 32 U.S.C. 709 to provide administrative support to the
RCs. They are in the category of FTS to the RCs, but are not part of
the Selected Reserve.
b. Selected Reserve IMAs. Individual members of the Selected Reserve
assigned to an AC organization. Trained individuals preassigned to an
AC, a SSS, or a FEMA billet that must be filled on, or shortly after,
mobilization. IMAs participate in training activities on a part-time
basis with an AC unit preparing for active service in a mobilization.
The amount of training required is determined by DoD policy and may vary
from 0 to 48 IDT periods a year. All IMAs must perform a minimum of 12
days of AT each year and have the RCC and TRC designator of ''TB.''
c. Training Pipeline. Selected Reserve enlisted members who have not
yet completed IADT and officers who are in training for professional
categories or in undergraduate flying training. IAW 10 U.S.C. 671, all
Ready Reservists shall receive training commensurate with their intended
wartime assignments, and must complete the basic training requirements
of the member's Service before assignment on land outside the United
States. The training pipeline is synonymous with the term
''nondeployable account.'' Personnel in the training pipeline may be
mobilized, but may not always be available for deployment with their
units. It is DoD policy that, if otherwise eligible for mobilization
and deployment, they shall be considered as mobilizable assets.
Training pipeline personnel are accounted for separately in the
following training categories:
(1) Enlisted Members Currently on IADT. Includes the second part of
split IADT, which has the RCC and TRC designator of ''TF.''
(2) Enlisted Members Awaiting Second Part of Split IADT. Those
members shall have the RCC and TRC designator of ''UQ.''
(3) Enlisted Members Awaiting IADT. Includes members in the Selected
Reserve serving with or without pay. NPS males between the ages of 18
1/2 and 26 years enlisting under 10 U.S.C. 511(d) shall enter IADT,
insofar as practicable, within 270 days after the date of that
enlistment. All other enlisted members shall perform IADT, insofar as
practicable, within 360 days of their enlistment.
(a) Members Not Authorized To Perform IDT. Service performed by
members while in that status is not creditable toward computation of
basic pay and shall have the RCC TRC designator ''UL.''
(b) Members Authorized To Perform IDT. Service performed by members
while in that status is creditable toward computation of basic pay and
shall have the RCC TRC designator of ''UP.''
(4) Other Selected Reserve Untrained Personnel in Training Programs.
Includes chaplain candidates, health profession students, and early
commissioning program participants with the RCC and TRC designator of
''UX.''
(5) AGR Enlisted Members Currently on, or Awaiting, IADT. Includes
NPS AGR personnel (Navy TARs and ADSW) and has the RCC and TRC
designator of ''US.''
(6) Individuals in a Simultaneous Membership Program. Senior Reserve
Officer Training Corps (ROTC) Cadets, Selected Reserve enlisted members
in officer candidate programs, and Marine Corps Platoon Leader Class
students who are also permitted to be members of a Selected Reserve unit
and have the RCC and TRC designator of ''UT.''
2. IRR and ING. The IRR (together with the ING) consists of those
Ready Reservists not in the Selected Reserve. The IRR consists of
Reservists in the following categories:
a. IRR is a manpower pool comprised principally of individuals having
had training, having served previously in the AC or in the Selected
Reserve, and having some period of their MSO remaining. There are some
voluntary individuals in the IRR for hardship or special nonpay programs
providing a variety of professional assignments and opportunities for
earning retirement points and military benefits. Those personnel all
have an obligation to complete either MSO or another contractual
commitment. Members voluntarily may participate in training for
retirement points and promotion with or without pay. IRR members may be
(but are not presently) required to meet the same training requirements
as Selected Reservists. Required training (involuntary) may not exceed
30 days a year under 10 U.S.C. 270(a)(2).
b. The IRR also includes some personnel participating in officer
training programs or in the AFHP Stipend Program. Members in that
stipend program are required to perform 45 days of AD for training a
year IAW 10 U.S.C. 2121(c). The RCC and TRC designator ''PJ'' is used
for officers not in the Selected Reserve participating in officer
training programs, or the RCC and TRC designator ''PK'' is used for
officers not in the Selected Reserve participating in the Stipend
Program.)
c. The IRR also includes members of the Delayed Entry Program (DEP)
enlisted under 10 U.S.C. 513. (Currently, there is no requirement to
account for those untrained members of the IRR in the RCCPDS.)
d. The ING consists of National Guard personnel in an inactive status
in the Ready Reserve, not in the Selected Reserve, attached to a
specific National Guard unit. To remain ING members, members must
muster once a year with their assigned unit, but they do not participate
in training activities. On mobilization, ING members mobilize with
their units. Similar to other IRR, some ING members have legal and
contractual obiligations. ING members may not train for points or pay
and are not eligible for promotion. Currently, the ING category is used
only by the ARNG and has the RCC and TRC designator of ''II''.
The Standby Reserve consists of personnel maintaining their military
affiliation without being in the Ready Reserve, having been designated
key civilian employees, or who have a temporary hardship or disability.
Those individuals are not required to perform training and are not part
of units. The Standby Reserve is a pool of trained individuals who may
be mobilized as needed to fill manpower needs in specific skills. The
Standby Reserve consists of the following training categories:
1. Active Status List. The following members of the Standby Reserve
are in an active status:
a. Members designated as key employees IAW DoD Directive 1200.7, /1/
and transferred from the Ready Reserve to the Standby Reserve Active
Status List for the period they remain designated as key personnel.
Individuals desiring to be transferred shall apply directly to the DoD
Component concerned. Key employees may participate voluntarily without
pay in RC training for retirement points only and may be considered for
promotion. While there is no statutory prohibition against paying
active status Standby Reservists for IDT or AD, by DoD policy members of
the Standby Reserve who have been screened out of the Ready Reserve as
key employees may not be paid for training. They have the RCC and TRC
designator of ''YC.''
b. Personnel not having fulfilled their statutory MSO, or temporarily
assigned for hardship reason intending to return to the Ready Reserve,
or retained by an RC in an active status under 10 U.S.C. 1006. Those
members may participate voluntarily with or without pay and may receive
credit for, and be considered for, promotion. They have the RCC and TRC
designator of ''YD.''
2. Inactive Status List. The following members of the Standby
Reserve are in an inactive status. They may not participate for points
or pay and may not receive credit for or be considered for promotion:
a. Members transferred to the Standby Reserve Inactive Status List
under 10 U.S.C. 1209 instead of separating. They have the RCC TRC
designator of ''YL.''
b. All other members transferred to the Standby Reserve Inactive
Status List IAW DoD Directive 1235.9. They have the RCC TRC designator
of ''YN.''
1. Consists of all personnel transferred to the Retired Reserve.
Retired Reservists voluntarily may train, with or without pay, with a
unit where they have premobilization orders. Suitable arrangements with
the unit are required. The Retired Reserve consists of the following
retired categories:
a. Reserve members who have completed 20 qualifying years creditable
for retired pay and are in receipt of retired pay (at, or after, age 60)
under 10 U.S.C. chapter 67. Those members shall be assigned the RCC and
TRC designator of ''V1.''
b. Reserve members who have completed 20 qualifying years creditable
for retired pay and are not yet 60 years of age, or are age 60 and have
not applied for retirement pay. Those members shall be assigned the RCC
and TRC designator of ''V2.''
c. Reserve members retired for physical disability under 10 U.S.C.
1201, 1202, 1204, or 1205. Members have completed 20 years of service
creditable for retired pay or are more than 30-percent disabled. Those
members shall be assigned the RCC and TRC designator of ''V3.''
d. Reserve enlisted members who have completed 20, or more, years of
active service and are receiving retired or retainer pay. Regular
enlisted personnel of the Army, the Navy, the Air Force, and the Marine
Corps with 20 to 30 years of active Military Service who are transferred
to the Reserve or the Fleet Naval Reserve on retirement until they have
completed 30 years of total active and retired or retainer service, are
NOT included in that category. That includes Regular (but not Reserve)
Navy and Marine Corps retirees who are transferred to the Fleet Reserve
and the Fleet Mairne Corps Reserve, respectively. Those personnel shall
be assigned the RCC and TRC designator of ''V4''.
e. Reserve personnel drawing retired pay under other than age,
service requirements, or physical disability. That category is
restricted for retirement under special conditions, as authorized by the
Office of the ASD(RA) (OASD(RA)) under legislation. Those personnel
shall be assigned the RCC and TRC designator of ''V5.''
2. All members retired having completed at least 20 years of active
service (Regular or Reserve), regardless of the retired list where
assigned, may be ordered to AD when required by the Secretary of the
Military Department concerned, IAW 10 U.S.C. 688.
3. Retired Reserve members may be ordered to AD in their status as
Retired Reserve members. It is not necessary to place the member in the
Ready Reserve for that purpose.
4. Former members having completed 20 satisfactory years service
creditable for retirement, but electing to be discharged from the RCs,
are not a part of the Retired Reserve nor Military Service members.
/1/ See footnote 1 to 102.1(a).
32 CFR 102.6 Appendix B to Part 102 -- Members Participating in
Approved Programs Outside The Department of Defense
The SSS administers the Military Selective Service Act (MSSA), which
authorizes the Director of Selective Service, by delegation from the
President, ''* * * to order to active duty with their consent and to
assign to the Selective Service System such officers of the
selective-service section of the State headquarters and headquarters
detachments and such other officers of the federally recognized National
Guard of the United States or other armed forces personnel (including
personnel of the reserve components thereof), as may be necessary for
the administration of the national and of the several State headquarters
of the Selective Service System.''
1. AD. Requests for assignment to the SSS and an AD status must be
approved IAW DoD Directive 1000.17. /1/ Costs for those members shall
be reimbursed to the Department of Defense. Members shall not be
assigned to a RCC or TRC, shall not be counted against RC strengths, and
shall not be included in the RCCPDS files.
2. Inactive Duty. The Department of Defense and the Office of the
Director of Selective Service shall agree annually on the number of RC
members assigned as IMAs to the SSS. The SSS shall reimburse the
Department of Defense for IDT and AT for those members.
1. The U.S. civil defense and CONUS defense program are an integral
part of U.S. national security. Support of civil defense may be
provided through RC members participating with Federal, State, and local
civil agencies only when clearly furthering specifically identifiable
DoD interest. Participation shall be in an IDT or ADT status and on a
reimbursable basis, except when the primary basis for participating is
to meet a DoD program requirement. Subject to priorities and guidance
in DoD Directive 3025.10, /2/ military support of those activities is a
proper mission for DoD Components. Military planning and liaison may be
provided by RC members at selected civil government and military
headquarters and includes such tasks and responsibilities as mutual
support to civil authorities for civil defense, CONUS defense, physical
security of key assets, and disaster relief operations.
2. Programs involving RC members in civil defense activities directly
supporting the FEMA or State and local government under a FEMA program
must be approved jointly by the FEMA and the Department of Defense.
Assigning members in an AD (other than for training) status supporting
of civil defense outside the Department of Defense must be approved IAW
DoD Directive 1000.17. The following programs are approved for such
participation:
a. Federal Liaison Officers. Those are Reserve officers serving as
IMAs performing planning and liaison responsibilities between DoD
Components and Federal regional Headquarters, including interface with
the civil sector, as directed by their DoD Component through the
Military Service planning agent. Federal liaison officers function
primarily in support of DoD missions. All costs are paid by the DoD
Components. Each Military Department is authorized to assign one or
more Federal liaison officers (other than flag or general officer rank)
at each FEMA region and at FEMA national Headquarters.
b. State Liaison Officers. Those are reserve officers serving as
IMAs performing planning and liaison responsibilities betwen their DoD
Components and State or U.S. Territory Civil Defense or Emergency
Service Headquarters for interfacing with the civil sector, as directed
by their DoD Component through the Military Service planning agent.
State liaison officers function primarily in support of DoD missions.
All costs are paid by the DoD Component. Each Military Department is
authorized to assign one or more State liaison officers (other than flag
or general officer rank) at each State or U.S. territorial Headquarters
and shall assign or attach such officers to functions supervised by the
State Area Command (STARC).
c. Regional Military Emergency Coordinators (RMECs). Those are
Reserve officers serving as IMAs and performing resource claimancy tasks
for their DoD Components while participating in resource management of
emergency preparedness and crisis operations under DoD Directive
5030.45. /3/ RMEC officers function primarily in support of DoD
missions. All costs are paid by the DoD Component. Each Military
Department is authorized to assign one or more officers (other than flag
or general officer rank) to the DoD RMEC team.
d. Civil Preparedness Support Detachments (CPSD). Those are Selected
Reserve units of the U.S. Army Reserve (USAR), whose missions are to
augment the communications and security capabilities of FEMA emergency
operations centers.
e. FEMA IMAs. Those are IMAs assigned to responsibilities supporting
civil defense planning at FEMA Headquarters and regions, and at State
and local civil defense activities. FEMA IMAs perform 2 weeks of annual
ADT, and the FEMA reimburses the Department of Defense for those
training costs.
3. Members of the IRR and Standby Reserve Active Status List,
voluntarily participating in approved civil defense activities, may
receive retirement points IAW DoD Instruction 1215.7.
4. IRR members participating in civil defense activities may request
ADT to attend civil defense courses. If so ordered, those Reservists
shall be entitled to pay and allowance including travel allowances for
such training.
/1/ See footnote 1 to 102.1(a).
/2/ See footnote 1 to 102.1(a).
/3/ See footnote 1 to 102.1(a).
32 CFR 102.6 Appendix C to Part 102 -- Definitions Explained
1. Active Duty (AD). Full-time duty in the active Military Service
of the United States. A general term applied to all active Military
Service, but not including full-time National Guard duty.
2. Active Guard Reserve (AGR). RC members of the Selected Reserve
ordered to AD or full-time National Guard duty with their consent and
consent of the Governor for the purpose of organizing, administering,
recruiting, instructing, or training RC units. The two major categories
are statutory tour officer and/or enlisted members and unit personnel.
3. Active Status. Status of all Reserves, except those on an
inactive status list or in the Retired Reserve. Reservists in an active
status may train with or without pay, earn retirement points, and may
earn credit for and be considered for promotion.
4. AD for Special Work (ADSW). A tour of AD for Reserve personnel
authorized from military or Reserve personnel appropriations for work on
AC or RC programs. That includes annual screening, training camp
operation, training ship operation, and unit conversions to new weapons
systems when such duties are essential. ADSW may also be authorized to
support study groups, training sites and exercises, short-term projects,
and administrative or support functions. By policy, ADSW tours are
normally limited to 139 days, or less, in 1 FY. Tours exceeding 180
days are accountable against AD or AGR end strength.
5. AD for Training (ADT). AD that is used for training members of
the RCs to provide trained units and qualified persons to fill the needs
of the Armed Forces in time of war or national emergency and such other
times as the national security requires. The member is under orders
that provide for return to inactive status when the period of ADT is
completed. ADT includes AT, special tours of ADT, school tours, and the
initial duty for training performed by NPS enlistees.
6. Annual Screening. One-day ADT or MD required each year for IRR
members so the Armed Forces can keep current on each member's physical
condition, dependency status, military qualifications, civilian
occupation skills, availability for service, and other information.
7. Annual Training (AT). The minimal period of training Reserve
members must perform each year to satisfy the training requirements
associated with their RC's assignment.
8. IMA Detachments. An administrative unit organized to assist in
training and to manage IMAs.
9. Inactive Duty Training (IDT). Authorized training performed by a
member of a RC not on AD, or ADT and consisting of regularly scheduled
unit training periods, ATPs, or equivalent training, and performed by
them in connection with the prescribed activities of the RC of which
they are a member.
10. Inactive Status. Status of Reserve members on an inactive status
list of RC or assigned to the ING. Those in an inactive status may not
train for retirement points or pay, and may not receive credit for or be
considered for promotion or be promoted.
11. Individual Mobilization Augmentees (IMAs). An individual
Selected Reservist who receives training and is preassigned to an AC
organization, a SSS or a FEMA billet that must be filled on, or shortly
after, mobilization. IMAs train with those organizations preparing for
mobilization. The IDT requirement for IMAs is decided by DoD Component
policy and can vary from 0 to 48 drills a year. A minimum of 12 days AT
is required of all IMAs.
12. Initial ADT (IADT). Basic military training and technical skill
training required for all enlisted accessions. For NPS male enlistees
beween the ages of 18 1/2 and 26 years, that IADT shall be not less than
12 weeks and start, insofar as practical, within 270 days after
enlistment. IADT for all other enlistees and inductees shall begin
within 360 days after entry into Service. Military members may not be
assigned to AD on land outside the United States or its territories and
possessions until basic training or its equivalent has been completed.
13. Key Employee. Any Reservist identified by his or her employer,
private or public, as filling a key position.
14. Key Position. A civilian position, public or private (designated
by the employer IAW DoD Directive 1200.7) that cannot be vacated during
war or national emergency.
15. Multiple IDT Periods (MIDTPS). Two scheduled IDT periods
performed in 1 calendar day, each at least 4 hours in duration. No more
than two IDT periods may be performed in 1 day.
16. Nondeployable Account. An account where Reservists (officer and
enlisted) either in units or as individuals are assigned to a RCC or a
TRC, when the individual has not completed IADT or its equivalent.
Reservists in a nondeployable account are not considered as trained
strength assigned to units or mobilization positions and are not
deployable overseas on land with those units or mobilization positions.
See also ''training pipeline,'' definition 25., below.
17. Nonprior Service (NPS) Personnel. Individuals without any prior
Military Service, who have not completed IADT or its equivalent, and who
receive a commission or warrant in, or enlist directly into, a U.S.
Armed Force.
18. Qualifying Years Creditable for Retired Pay. The time Guardsman
or Reservist must serve to be eligible for retired pay at age 60 years.
Individuals must have at least 20 years of service in which they
received at least 50 retirement points, and the last 8 years of years of
service must have been served in a RC.
19. Reserve Component (RC) Category (ROC). The category that
identifies an individual's status in a RC. The three RCCs are Ready
Reserve, Standby Reserve, and Retired Reserve. Each Reservist is
identified by a specific RCC designation.
20. Reserve Components (RCs). RCs of the U.S. Armed Forces are, as
follows:
a. The ARNG of the United States.
b. The USAR.
c. The U.S Naval Reserve (USNR).
d. The U.S. Marine Corps Reserve (USMCR).
e. The ANG of the United States.
f. The U.S. Air Force Reserve (USAFR).
g. The U.S. Coast Guard Reserve (USCGR).
21. Secretary of Military Department. The Secretaries of the Army,
the Navy, and the Air Force; or the Secretary of Transportation, when
the Coast Guard is operating as a DoT Agency.
22. Trained Strength in Units. Those personnel (Reservists, AGR, and
AC) assigned to units who, in the case of enlisted members, have
completed IADT of 12 weeks, or its equivalent, and are eligible for
deployment overseas on land when mobilized under proper authority.
Excludes personnel in nondeployable accounts or a training pipeline.
23. Training and Retired Category (TRC). The category identifying
(by specific TRC designator) a Reservist's training or retirement status
in a RCC and a RC.
24. Training Period. An authorized and scheduled regular IDT period.
A training period must be at least 4 hours. Previously used
interchangeably with other common terms such as drills, drill period,
assemblies, or periods of instructions, etc.
25. Training Pipeline. An RCC designation that identifies officers
in professional or flying training and untrained enlisted personnel who
have not completed IADT of 12 weeks, or its equivalent. See also
''nondeployable account,'' definition 16., above.
26. Training Unit. A unit established to provide military training
to individual Reservists or to RC units.
27. Unit. For an RC of the Armed Forces, denotes a Selected Reserve
unit organized, equipped, and trained for mobilization to serve on AD as
a unit or that augments or shall be augmented by another unit.
Headquarters and support functions without wartime missions are not
considered units for accounting for units and individuals in the
Selected Reserve.
28. Voluntary Training. Training in a nonpay status for IRRs and
active status Standby Reservists. Participation in voluntary training
is for retirement points only and may be achieved by training with
Selected Reserve or voluntary training units; by ADT; by completion of
authorized military correspondence courses; by attendance at designated
courses of instruction; by performing equivalent duty; by
participating in special military and professional events designated by
the Military Department; or by participating in authorized civil
defense activities. Retirees may voluntarily train with organizations
to which they are properly preassigned by orders for recall to AD in a
national emergency or declaration of war. Such training shall be
limited to that training made available within the resources authorized
by the Secretary concerned.
29. Voluntary Training Unit or Reinforcement Training Unit. A unit
formed by volunteers to provide RC training in a nonpay status for IRRs
and active status standby Reservists attached under competent orders and
participating in such unit for retirement points. Also called
''reinforcement training unit.''
32 CFR 102.6 Pt. 102, App. D
32 CFR 102.6 -- PART 103 -- ENLISTMENT, APPOINTMENT, AND ASSIGNMENT OF
INDIVIDUALS IN RESERVE COMPONENTS
Sec.
103.1 Purpose and applicability.
103.2 Policy.
32 CFR 103.1 Purpose and applicability.
This part provides standards, procedures, and priority guidelines for
enlistment, assignment or appointment of individuals in units of the
Reserve Components of the Military Departments.
(10 U.S.C. 510, 511; sec. 301, 80 Stat. 379, 5 U.S.C. 301)
(36 FR 22576, Nov. 25, 1971)
32 CFR 103.2 Policy.
(a) Physical and mental standards for male personnel enlisted in the
basic enlistment pay grade will not be higher than those prescribed by
the Military Selective Service Act of 1967, or DOD Directive 1145.1,
''Qualitative Distribution of Military Manpower,'' September 13, 1967,
/1/ which establish minimum standards for acceptability into the regular
services. Higher physical and mental standards may be specified by the
appropriate Secretary of a Military Department for initial enlistment in
a grade higher than the basic enlistment pay grade or for enlistment in
a program leading to a commission.
(b) The appropriate Secretary shall, except as otherwise provided by
law, prescribe physical, mental, moral, academic attainment,
professional and age qualifications for appointment of reserve members
of the Armed Forces of the United States.
(c) The enlistment of individuals under the provisions of section
511(a) or 511(d) of title 10 U.S. Code, and the assignment of applicants
to units of the Ready Reserve shall normally be in accordance with the
order of priorities listed below. Applicants in categories (1) through
(6) may be enlisted without regard to their date of application.
Nonprior service applicants in category (7) who are accepted on reserve
unit enlistment waiting lists will be retained in their original
priority. However, exceptions to these policies may be made when, in
the best judgment of those responsible for the procurement of reserve
personnel, an applicant's prior military service or significant civilian
training or experience in the occupational skill concerned is considered
to warrant it. In such cases, notation as to the basis of the exception
shall be made in the individual's service record.
(1) Members of the Selected Reserve who desire to reenlist.
(2) Members of Selected Reserve units applying for transfer from
another locality.
(3) Members of the Selected Reserve who were relieved from assignment
to units due to reorganization, inactivation, or relocation of their
units.
(4) Members of the Ready Reserve Pool.
(5) Prior service applicants.
(6) Nonprior service individuals who have not undergone random
selection for induction (includes all qualified female nonprior service
applicants), or who have undergone random selection for induction and
have passed through their full year of vulnerability without induction.
(7) Nonprior service individuals who have undergone random selection
for induction but have not yet passed through their full year of
vulnerability.
(d) In conjunction with the policies in paragraph (c) of this
section, the Secretaries of the Military Departments will require their
Reserve Components to actively recruit qualified individuals of all
races, creeds, and ethnic groups toward the end that all units shall
generally reflect the character of the population in the unit's
recruiting area.
(e) Prior to enlisting a draft-liable individual in one of the
Reserve Components, the applicant shall be required to sign a written
statement to the effect that he has not received orders to report for
induction, that any subsequent receipt of such orders will be reported
to his unit commander, and that he understands he is subject to an
induction order if issued before he enlists.
(1) An individual who enlists in a Reserve Component and who
subsequently receives orders to report for induction, the issuing date
of which precedes his date of enlistment, shall be discharged from his
Reserve Component for the purpose of induction into the Armed Forces.
(2) The discharge should be effected concurrently with the induction
so as to continue the individual's military obligation consistent with
50.2(d) of this title.
(3) The date of issuance of orders to report for induction shall be
considered to be the date of mailing of such orders by appropriate
authority in the Selective Service System.
(f) Individual applicants for assignment or enlistment in the Reserve
Components shall not be accepted unless there is reasonable assurance
that they will be available and able to participate satisfactorily in
the unit concerned. In this respect careful consideration shall be
given to the geographical location, future plans, and possible conflicts
with the civilian occupation of the individual applicant. Individuals
who are engaged in or preparing for a skill listed in the Department of
Labor ''List of Critical Occupations for Screening the Ready Reserve''
shall not be enlisted unless there is an overriding military necessity
for their skill consistent with Part 125 of this title.
(g) Reserve members who have enlisted under the provisions of section
511(d) of Title 10, U.S.C., and who thereafter incur either a bona fide
temporary, nonmilitary obligation requiring overseas residency outside
the United States, or a bona fide, temporary, religious missionary
obligation which would conflict with their required participation in
reserve training, may, upon their request, be reenlisted under the
provisions of section 511(a) of Title 10, U.S.C. Requests under the
provisions of this subsection, except those from members who incur a
legitimate religious missionary obligation, will be approved by the
Secretary of the Military Department concerned. Requests from members
based on a religious missionary obligation may be approved by the local
National Guard or Reserve Component Commander. Approval of all such
requests are subject to the following requirements:
(1) Certification of the obligation is made by the employer, sponsor,
or recognized church body as appropriate.
(2) Reserve members concerned have completed their initial period of
active-duty-for-training.
(3) The approving authority concerned is satisfied that the request
is bona fide.
(4) Reenlistment contracts for such individuals will include an
agreement to serve for a period of time which will include the period of
temporary, nonmilitary obligation (not to exceed 30 months) plus the
remaining obligatory military service remaining under the original
enlistment contract. Such reenlistment contracts will assure that each
individual will serve a total of six (6) years of reserve service as
required by law.
(5) The individual reservists concerned will be carried as members of
the inactive National Guard or the Ready Reserve Pool, as appropriate,
during the period of nonmilitary obligation, and as such, will be
subject to being involuntarily ordered to active duty as authorized by
law (see paragraph IV.C.2 of DOD Directive 1215.13, ''Unsatisfactory
Performance of Ready Reserve Obligation,'' October 12, 1970. /1/
(10 U.S.C. 510, 511; sec. 301, 80 Stat. 379, 5 U.S.C. 301)
(36 FR 22576, Nov. 25, 1971)
/1/ Filed as part of original.
/1/ Filed as part of the original document. Copies available from
the U.S. Naval Publications and Forms Center, 5801 Tabor Ave.,
Philadelphia, PA 19120, Attention: Code 300.
32 CFR 103.2 PART 104 -- VOLUNTARY PRIVATE HEALTH INSURANCE CONVERSION
PROGRAM
Sec.
104.1 Reissuance and purpose.
104.2 Applicability and scope.
104.3 Definitions.
104.4 Policy.
104.5 Responsibilities.
Authority: Sec. 301; 80 Stat. 379; 5 U.S. Code 301.
Source: 53 FR 1343, Jan. 19, 1988, unless otherwise noted.
32 CFR 104.1 Reissuance and purpose.
This part reissues 32 CFR Part 104 to:
(a) Respond to the congressional requests in Report 98-1080,
''Conference Report of the Committees on Armed Services on the National
Defense Authorization Act,'' Pages 301 to 303, Fiscal Year 1985, Report
99-1001, ''Conference Report of the Committees on Armed Service on the
National Defense Authorization Act,'' Page 484, Fiscal Year 1987, Report
99-718, ''Conference Report of the Committee on Armed Services, U.S.
House of Representatives on H.R. 4428, the National Defense
Authorization Act,'' Pages 211 and 212, Fiscal Year 1987 to make a
private health insurance conversion policy available for purchase
through the Department of Defense.
(b) Update policy, establish procedures, and assign responsibilities.
32 CFR 104.2 Applicability and scope.
This part:
(a) Applies to the Office of the Secretary of Defense (OSD), the
Military Departments, and, by agreement, to the other Uniformed Services
(Coast Guard, Public Health Service (PHS), and National Oceanic and
Atmospheric Administration (NOAA)).
(b) Covers Service members and their family members who lose
eligibility for Uniformed Services medical benefits and minors for whom
active duty or retiree families are responsible legally, but who are not
eligible for Uniformed Services medical benefits.
32 CFR 104.3 Definitions.
Conversion policy. A comprehensive, private-pay health insurance
policy that provides benefits similar to those available under the
Civilian Health and Medical Program of the Uniformed Services (CHAMPUS).
It must be available without exception to all eligible individuals and
cover preexisting conditions (with a maximum of a 1-year waiting period
on such conditions) at a rate lower than similar private individual
insurance policies. Initial enrollment premiums may cover no more than
a 90-day period and, unless otherwise arranged with the purchaser, no
more than 30-day periods thereafter. Insurance companies may apply
standard underwriting principles to policy expansions if they choose to
offer the policy to additional categories of beneficiaries or extend
enrollment periods. Additionally, after the Uniformed Services help in
the initial enrollment and payment process, all payments and policy
arrangements must be made between the purchasing individual and the
company offering the policy. An insurance company or companies offering
conversion policies under this part shall have financial and operational
responsibility for such policies. The U.S. Government (including the
Department of Defense, the Coast Guard, PHS, and NOAA) shall assume no
financial liability and shall have no legal or other responsibility for
those conversion policies and their administration.
Eligible. Individuals are eligible to purchase a conversion policy
when they lose their eligibility for Uniformed Services health benefits,
or are minors who become the legal responsibility of active duty or
retired members, or are survivors and are not eligible for Uniformed
Services health benefits. These eligible individuals include:
(a) Spouses of members whose marriage ends in divorce, dissolution,
or annulment after at least 1 year of marriage.
(b) Members leaving active duty (other than those separated for
health conditions existing before service) and their family members who
were covered by CHAMPUS.
(c) Unmarried children of active duty, deceased, or retired members
when such children lose their eligibility upon reaching the age of 21
(23 if in school).
(d) Children who are legal wards or previously adopted children of
active duty or retired members or survivors.
(e) Dependent grandchildren living with active duty or retired
members or survivors.
Qualifying event. The event that enables an individual to become
eligible to purchase a conversion policy.
32 CFR 104.4 Policy.
It is DoD policy that:
(a) All eligible individuals shall be given an opportunity to
purchase a conversion policy. Active duty members separating from a
Uniformed Service shall have at least 30 days after their separation to
purchase a conversion policy. Former spouses, children coming of age,
and legal dependents shall have a minimum of 90 days after their
qualifying event.
(b) An insurance company or companies offering conversion policies
under this part shall supply all designated distribution centers with
explanation brochures, applications, and updated premium schedules.
(c) Uniformed Services members and, when practical, their family
members shall be informed of the availability of conversion policies at
applicable times during their active duty service, during separation
processing, or when contacting a personnel office, a separation office,
an identification card office, a health benefits advisor in a military
medical facility, a family service center, a clergy office, or a legal
office about benefit status changes. All interested individuals shall
be:
(1) Given material explaining the costs, benefits, and enrollment
procedures of conversion policies.
(2) Advised of eligibility criteria, enrollment periods, policy
costs, and premium payment schedule.
(3) Informed of the following:
(i) Purchase of coverage under the policy is voluntary.
(ii) Cost of any policy in which they enroll shall be borne entirely
by them.
(iii) They must enroll within a specified time after their status
change occurs and must make the first payment at the time of enrollment.
(iv) All payment arrangements (with the exception of separating
members who want the first payment made as a one-time payroll deduction
or want the separation center to submit their personal check for them)
must be made directly with the insurance company offering the conversion
policy they select.
(v) All questions involving their coverage are a matter between them
and the company providing the coverage, and the U.S. Government does not
have liability or responsibility for the adminisration of the policy.
(d) Once an agreement has been signed between an insurance company
and the Department of Defense, conversion policies shall continue to be
offered until one of the two following events occurs:
(1) An insurance company offering a conversion policy provides the
Department of Defense with a 90-day notice that it is terminating the
agreement.
(2) The Department of Defense gives an insurance company a 90-day
notice that it is terminating its agreement to offer its conversion
policy.
32 CFR 104.5 Responsibilities.
(a) The Assistant Secretary of Defense (Health Affairs) (ASD(HA)), or
designee, shall:
(1) Advertise through applicable trade journals, periodicals, or
other channels, at least once every 3 years, the interest of the
Uniformed Services in making conversion policies available.
(2) Select one or more conversion policies that meet the requirements
of this Directive, determine the effective date of each conversion
policy, and sign a letter of agreement with each insurance company
offering conversion policies.
(3) Inform the Uniformed Services of the effective date of each
conversion policy, work with the applicable organizations in the
Department of Defense and the Uniformed Services to specify the
publicity and enrollment material and procedures to be used, and ensure
that information on the availability of conversion policies is offered
to eligible individuals.
(4) Monitor and evaluate the implementation of this Directive, review
periodically all conversion policies being offered and all proposed
changes to conversion policies, and, when necessary, do the following:
(i) Make recommendations to the Secretary of Defense or the Uniformed
Services on the conversion policies.
(ii) Amend the letter of agreement with an insurance company offering
a conversion policy.
(iii) Withdraw the privileges of offering a conversion policy under
this part when it is determined that the best interests of the Uniformed
Services and the persons losing eligibility to the medical benefit make
such action applicable.
(b) The Assistant Secretary of Defense (Public Affairs) (ASD(PA)), or
designee, shall direct the ASD(PA) staff to help publicize the program
through its normal channels on a periodic basis.
(c) The Secretaries of the Military Departments and, where agreed to,
the Commandant of the Coast Guard, the Secretary of Health and Human
Services, and the Secretary of Commerce, or designees, shall:
(1) Establish internal programs implementing this part.
(2) Direct their public affairs offices to help publicize the
program.
(3) Direct their Service publication distribution centers to
disseminate information on the program periodically.
(4) Require personnel offices, separation offices, identification
card offices, military medical facilities, family service centers,
clergy offices, and applicable legal offices to do the following:
(i) Stock explanation brochures, application forms, and payment
schedules specified by the Office of the ASD(HA) (OASD(HA)) and supplied
by insurance companies offering the conversion policies.
(ii) Inform eligible individuals of the availability of policies and
provide interested individuals with brochures, application forms, and
payment schedules.
(5) Require personnel or separation offices, upon request of an
individual interested in purchasing a conversion policy, to validate the
applications or supply one of the following applicable validation forms
consistent with 32 CFR Part 286a.
(i) Defense Enrollment Eligibility Reporting System (DEERS)
printouts.
(ii) Standard Form DD 214, ''Certificate of Release or Discharge from
Active Duty,'' or approved DD 1172, ''Application for Uniformed Services
Identification and Privilege Card.''
(iii) An official statement of service.
(6) Require separation or finance and accounting offices to collect
the first premium or arrange for payroll deductions to be made, when
requested by a separating member. Following transmittal directions
specified by the OASD(HA), forward, at least once a week, all
applications and payroll deductions or premium checks to the designated
office of the insurance company from which the coverage was purchased.
32 CFR 104.5 PART 105 -- EMPLOYMENT AND VOLUNTEER WORK OF SPOUSES OF
MILITARY PERSONNEL
Sec.
105.1 Purpose.
105.2 Applicability.
105.3 Definitions.
105.4 Policy.
105.5 Responsibilities.
105.6 Effective date and implementation
Authority: 10 U.S.C. 113 note.
Source: 53 FR 15205, Apr. 28, 1988, unless otherwise noted.
32 CFR 105.1 Purpose.
This part implements Pub. L. 100-180 and reissues Secretary of
Defense Memorandum for Secretaries of the Military Departments,
''Employment of Spouses of Members of the Armed Forces,'' October 22,
1987 and Secretary of Defense Memorandum for Secretaries of the Military
Departments, ''Employment of Spouses of Members of the Armed Forces,''
December 30, 1987.
32 CFR 105.2 Applicability.
This part applies to the Office of the Secretary of Defense (OSD),
the Military Departments (including their National Guard and Reserve
components), the Organization of the Joint Chiefs of Staff (OJCS), the
Unified and Specified Commands, the Defense Agencies, and the DoD Field
Activities (hereafter referred to as ''DoD Components'').
32 CFR 105.3 Definitions.
DoD official. Any commander, supervisor, or other military or
civilian official of a DoD Component.
Marital status. Married, single, divorced, widowed, or separated.
Military Services. The Army, Navy, Air Force, Marine Corps, and
Coast Guard (when operating as a part of the Navy).
Spouse. The husband or wife of a military member, if such spouse is
not also a military member.
32 CFR 105.4 Policy.
(a) No DoD official shall, directly or indirectly, impede or
otherwise interfere with the right of a spouse of a military member to
pursue and hold a job, attend school, or perform volunteer services on
or off a military installation. Moreover, no DoD official shall use the
preferences or requirements of a DoD Component to influence, or attempt
to influence, the employment, educational, or volunteer service
decisions of a spouse. Neither such decision of a spouse, nor the
marital status of the member, shall affect, favorably or adversely, the
performance appraisals or assignment and promotion opportunities of the
member, subject to the clarification in paragraph (b)(2) of this
section.
(b) In furtherance of this policy. (1) In discharging their
responsibilities, members of military promotion, continuation, and
similar personnel selection boards are prohibited from considering the
marital status of a military member, or the employment, educational, or
volunteer service activities of a member's spouse.
(2) Personnel decisions, including those related to the assignments
of military members, shall not be affected, favorably or adversely, by
the employment, educational, or volunteer service activities of a
member's spouse, or solely by reason of a member's marital status,
subject to the following clarification:
(i) When necessary to ameliorate the personal hardship of a member or
spouse upon the request of the member concerned, such as when a family
member requires specialized medical treatment, educational provisions
under DoD Instruction 1342.12 /1/ and Pub. L. 94-142, or similar
personal preference accommodations.
(ii) To facilitate the assignment of dual-career military married
couples to the same geographic area.
(iii) When otherwise required by law, such as instances in which a
prohibited conflict of interest may exist between the official duties of
a military member and the employment of the member's spouse.
(iv) When the Assistant Secretary of Defense (Force Management and
Personnel), with the concurrence of the General Counsel, determines, on
a case-by-case basis, for reasons of national security, that marital
status is an essential assignment qualification for particular military
billets or positions.
(3) Performance appraisals on members of the Military Services,
including officer and enlisted efficiency or fitness reports, shall not
contain any information regarding the employment, educational, or
volunteer service activities of the member's spouse, or reflect
favorably or adversely on the member based solely on the member's
martial status.
/1/ Copies may be obtained, if needed, from the U.S. Naval
Publications and Forms Center, Attn: Code 1052, 5801 Tabor Avenue,
Philadelphia, PA 19120.
32 CFR 105.5 Responsibilities.
(a) The Secretaries of the Military Departments and the Heads of
other DoD Components shall ensure compliance with this part.
(b) The Secretaries of the Military Departments shall issue
regulations, enforceable under the Uniform Code of Military Justice
(UCMJ), and appropriate regulations or other guidance applicable to
civilian personnel, implementing this part.
(c) The Assistant Secretary of Defense (Force Management and
Personnel) (ASD(FM&P)) shall monitor compliance with this part.
32 CFR 105.6 Effective date and implementation.
This part is effective February 10, 1988. The Secretaries of the
Military Departments shall forward two copies of implementing documents
to the Assistant Secretary of Defense (Force Management and Personnel)
within 60 days.
32 CFR 105.6 PART 107 -- PERSONAL SERVICES AUTHORITY FOR DIRECT HEALTH
CARE PROVIDERS
Sec.
107.1 Purpose.
107.2 Applicability and scope.
107.3 Definitions.
107.4 Policy.
107.5 Procedures.
107.6 Responsibilities.
Enclosure 1 -- Table of Authorized Compensation Rates
Authority: 10 U.S.C. 1091; Federal Acquisition Regulation (FAR),
Part 37.
Source: 50 FR 11693, Mar. 25, 1985, unless otherwise noted.
32 CFR 107.1 Purpose.
This part establishes policy under 10 U.S.C. 1091, ''Contracts For
Direct Health Care Providers,'' and assigns responsibility for
implementing the authority for personal services contracts for direct
health care providers.
32 CFR 107.2 Applicability and scope.
(a) This part applies to the Office of the Secretary of Defense (OSD)
and the Military Departments.
(b) It applies only to personal services contracts awarded under 10
U.S.C. 1091 for direct health care providers.
32 CFR 107.3 Definitions.
(a) Personal Services Contract. A contract that, by its express
terms or as administered, makes the contractor personnel appear, in
effect, to be government employees.
(b) Direct Health Care Providers. Health services personnel who
participate in clinical patient care and services. This does not
include personnel whose duties are primarily administrative or clerical,
nor personnel who provide maintenance or security services.
32 CFR 107.4 Policy.
(a) It is the policy of the Department of Defense that when in-house
sources are insufficient to support the medical mission of the Military
Departments, personal services contracts under 10 U.S.C. 1091 may be
executed.
(b) It is the purpose of personal services contracts to facilitate
mission accomplishment, maximize beneficiary access to military MTFs,
maintain readiness capability, reduce use of the Civilian Health and
Medical Program of the Uniformed Services (CHAMPUS), and enhance quality
of care by promoting the continuity of the patient/provider
relationship.
(c) Personal services contractors shall be subject to the same
quality assurance, credentialing processes, and other standards as those
required of military health care providers. In addition, providers,
other than para-professionals, must be licensed in accordance with state
or host country requirements to perform the contract services.
(d) In establishing lines of authority and accountability, DoD
supervisors may direct the activities of personal services contractors
on the same basis as DoD employees. However, the rights, benefits, and
compensation of personal services contractors shall be determined solely
in accordance with the personal service contract.
(e) Requests for personal services contracts contemplating
reimbursement at the maximum rate of basic pay and allowances under 10
U.S.C. 1091 shall be approved at the major command level. The 0-6 grade
shall be used sparingly and subsequently will be subject to review.
32 CFR 107.5 Procedures.
(a) Each contract under 10 U.S.C. 1091 with an individual or with an
entity, such as a professional corporation or partnership, for the
personal services of an individual must contain language specifically
acknowledging the individual as a personal services contractor whose
performance is subject to supervision and direction by designated
officials of the Department of Defense.
(b) The appearance of an employer-employee relationship created by
the DoD supervision of a personal services contractor will normally
support a limited recognition of the contractor as equal in status to a
DoD employee in disposing of personal injury claims arising out of the
contractor's performance. Personal injury claims alleging negligence by
the contractor within the scope of his or her contract performance,
therefore, will be processed as claims alleging negligence by DoD
military or civil service personnel.
(c) Compensation for personal services contractors under 10 U.S.C.
1091 shall be within the limits established in the Table of Authorized
Compensation Rates (see enclosure 1). Prorated compensation based upon
hourly, daily, or weekly rates may be awarded when a contractor's
services are not required on a full-time basis. In all cases, however,
a contractor may be compensated only for periods of time actually
devoted to the delivery of services required by the contract.
(d) Contracts for personal services entered into shall be awarded and
administered pursuant to the provisions of the Federal Acquisition
Regulation (FAR), Part 37 and DoD and departmental supplementary
contracting provisions.
32 CFR 107.6 Responsibilities.
(a) The Military Departments shall be responsible for the management
of the direct health care provider contracting program, ensuring that
effective means of obtaining adequate quality care is achieved in
compliance with the FAR, Part 37. The portion of the Military
Department regulations ensuring that compensation provided for a
particular type of service is based on objective criteria and is not
susceptible to individual favoritism shall be stressed.
(b) The Office of the Assistant Secretary of Defense (Health Affairs)
(OASD(HA)) shall be responsible for monitoring the personal services
contracting program.
32 CFR 107.6 Pt. 107, Encl. 1
32 CFR 107.6 Enclosure 1 -- Table of Authorized Compensation Rates
32 CFR 107.6 PART 110 -- STANDARDIZED RATES OF SUBSISTENCE ALLOWANCE
AND COMMUTATION INSTEAD OF UNIFORMS FOR MEMBERS OF THE SENIOR RESERVE
OFFICERS' TRAINING CORPS
Sec.
110.1 Reissuance and purpose.
110.2 Applicability.
110.3 Policy.
110.4 Responsibilities.
110.5 Procedures.
110.6 Information requirement.
Appendix A to Part 110 -- Climatic Zones Used to Determine Rates of
Commutation Allowance
Attachment to Appendix A to Part 110 -- Climatic Zones Used to
Determine Rates of Commutation Allowance (Formula)
Appendix B to Part 110 -- Formula for ROTC Commutation Rates
Appendix C to Part 110 -- Application of Basic Course Formula (Male
and Female Members) (Sample)
Appendix D to Part 110 -- Application of Advanced Course Formula
(Male and Female Members) (Sample)
Appendix E to Part 110 -- Application of 4-Week Summer Field Training
Formula (Sample)
Authority: 10 U.S.C. 2101-2111, 37 U.S.C. 209, 50 App. U.S.C.
456(a).
Source: 51 FR 26886, July 28, 1986, unless otherwise noted.
32 CFR 110.1 Reissuance and purpose.
This part reissues 32 CFR Part 110 implementing Pub. L. 88-647,
92-171, and 98-94 and updates policy, assigns responsibilities, and
prescribes procedures for determining commutation rates for Reserve
Officers' Training Corps (ROTC) detachments offered commutation funds
instead of uniforms.
32 CFR 110.2 Applicability.
This part applies to the Office of the Secretary of Defense (OSD),
the Military Departments, and the Defense Logistics Agency (DLA)
(hereafter referred to collectively as ''DoD Components''). The term
''Military Services,'' as used herein, refers to the Army, Navy, Air
Force, and Marine Corps.
32 CFR 110.3 Policy.
It is DoD policy to provide subsistence allowance in accordance with
Pub. L. 92-171 and to eligible participants of senior ROTC programs and
commutation funds instead of uniforms (section 2110, Pub. L. 88-647)
for members of senior ROTC programs at eligible schools.
32 CFR 110.4 Responsibilities.
(a) The Assistant Secretary of Defense (Force Management and
Personnel) (ADS(FM&P)), or designee, shall:
(1) Administer the overall DoD ROTC program.
(2) Maintain liaison with the Military Departments regarding the
functioning of the ROTC program.
(3) Announce the standard rates of commutation instead of uniforms to
the Military Departments not later than August 1 each year.
(b) The Director, Defense Logistics Agency (DLA), shall provide the
Military Departments during December of each year the current unit price
list of uniform items to be used the following fiscal year.
(c) The Secretaries of the Military Departments shall:
(1) Prescribe the standard uniform items for each climatic zone, sex,
and course (basic and advanced) in quantities authorized to be provided.
(2) Develop the communication rates, based on the standard Military
Service uniforms, and establish procedures for rate review on an annual
basis.
(3) Submit to the ASD(FM&P) an estimate of the rates of commutation,
based on the latest DLA clothing rate, for climatic zones by sex and
course not later than July 1 of each year.
(4) Classify educational institutions as Military Colleges (MC),
Civilian Colleges (CC), or Military Junior Colleges (MJC), hereafter
also called schools.
(5) Conduct inspections to ensure that the schools meet the
requirements for the respective classifications and that those receiving
commutation funds provide quality uniforms in sufficient quantities.
(6) Program and budget for subsistence allowance and commutation,
instead of uniforms, for members of the senior ROTC program.
32 CFR 110.5 Procedures.
(a) Classification of institutions hosting Senior ROTC Units.
Educational institutions hosting senior ROTC units maintained by the
Military Departments shall be classified as essentially military or
civilian colleges or universities.
(1) The classification MC shall be assigned to units established in:
(i) Essentially military colleges or universities that, for purposes
of qualifying as an MC under 50 U.S.C. App. 456(a)(1):
(A) Confer baccalaureate or graduate degrees.
(B) Require a course in military training throughout the
undergraduate course for all qualified undergraduate students.
(C) Organize their military students as a corps of cadets under
constantly maintained military discipline.
(D) Require all members of the corps, including those nonmembers
enrolled in the ROTC, to be habitually in uniform when on campus.
(E) Have as their objective the development of the military students'
character by means of military training and the regulation of their
conduct in accordance with the principles of military discipline.
(F) In general, meet military standards similar to those maintained
at the Military Service academies.
(ii) The designation ''all qualified undergraduate students,'' under
paragraph (a)(i)(B) of this section means all physically fit students
except:
(A) Female students who waive their right to participate as provided
by Pub. L. 95-485, section 809.
(B) Foreign nationals.
(C) Students who are not liable for induction by virtue of having
honorably completed active training and service.
(D) Students who are pursuing special undergraduate courses beyond 4
years after completing the required military training.
(E) Certain categories of students who are excused specifically by
administrative decision and approved by the ROTC unit commander.
(2) The classification CC shall be assigned when units are
established at civilian colleges and universities that are not operated
on an essentially military basis, but that confer baccalaureate or
graduate degrees.
(3) The classification MJC shall be assigned when ROTC units are
established at essentially military schools that provide junior college
or junior college and high school instruction, but DO NOT confer
baccalaureate degrees. Those units shall meet all other requirements of
an MC. (See Pub. L. 88-647).
(b) Qualifying for the special rate of commutation. (1) To qualify
for payment at the special rate of commutation instead of uniforms, an
institution classified MC or CC shall meet in addition to paragraphs (a)
(1), or (2), respectively the requirements below. An institution
classified an MJC shall meet, in addition to paragraph (a)(1) (except
paragraphs (a)(1)(i) (A) and (B)), the requirements below:
(i) Organize and maintain within their undergradute student bodies a
self-contained corps of cadets.
(ii) Require all members of the corps of cadets to be in appropriate
uniform at all times while on the campus.
(iii) House all members of the corps of cadets in barracks separate
from nonmembers.
(iv) Require all members of the corps of cadets to be under
constantly maintained military discipline on a 24-hours-per-day,
7-days-per-week basis.
(v) Require all physically qualified members of the above corps of
cadets to be enrolled in the basic course of ROTC, except:
(A) Female students who waive their right to participate as provided
by Pub. L. 95-485.
(B) Foreign nationals.
(C) Students who are not liable for induction by virtue of having
completed honorably active training and service.
(D) Certain categories of students are excused specifically by
administrative decisions.
(E) Other students whose enrollment is prevented by provisions or
appropriate regulations of a Military Department.
(2) MCs, CCs, or MJCs may be paid the special rate of commutation
only for those members of the corps of cadets meeting the requirements
set forth in paragraph (b)(1), who are enrolled in ROTC. The
requirements of paragraphs (b)(1) (iii) and (iv), may be waived for
married students, graduate students, and day students who are not housed
with the corps of cadets. Day students are those ROTC cadets who are
authorized by university officials to reside off campus within a
reasonable commuting distance to the university.
(3) Institutions designated as MCs may enroll into the ROTC, of the
appropriate Military Service, those students who, for various reasons,
are not required to be members of the corps of cadets. These
institutions shall receive, for such student only, the standard
commutation rate. The special rate shall be authorized for eligible
females who elect to participate as enrolled senior ROTC cadets,
provided that the requirements of paragraphs (b)(1) (ii), (iii), and
(iv) are met or unless these requirements are waived under the
provisions of paragraph (a)(1)(ii)(E).
(c) Subsistence allowance and commutation rates -- (1) Subsistence
allowances. Payment that is made by the Military Departments instead of
rations to each contract cadet enrolled in the advanced course and for
each scholarship cadet enrolled in the basic or advanced course.
Payments are as prescribed in the DoD Military Pay and Allowances
Entitlements Manual, Part 8, Chapter 4. The following rates are
established for payment of subsistence allowance:
(i) Except when on summer fiel training or practice cruises, when
subsistence in kind is furnished, or when otherwise on active duty, the
subsistence allowance for each enrolled member of the advanced training
program in the senior ROTC shall be $100 per month for not more than a
total of 20 months.
(ii) Except when on summer field training or practice cruises, when
subsistence in kind is furnished, the subsistence allowance for each
cadet or midshipman appointed under the financial assistance program for
specially selected members, under the provisions of Pub. L. 88-647,
shall be $100 per month for not more than a total of 20 months during
the basic course training program and $100 per month for not more than a
total of 20 months during the advanced course training program unless
the individual has been authorized extended entitlements under the
provisions of Pub. L. 98-94. The $100 per month subsistence may be
authorized for not more than a total of 30 months during the advanced
course training program when an extended financial assistance
entitlement is approved by the Military Service Secretary of the
Military Department concerned.
(2) Commutation instead of uniforms. Commutation is payment made by
the Military Departments to an institution instead of the issue of
uniforms to ROTC cadets in accordance with Pub. L. 88-647. Certain MCs,
CCs, and MJCs that maintain senior ROTC units may elect to receive
commutation instead of Government clothing. In such instances, the
commutation rate shall include not only the uniform, but the
procurement, receipt, storage, maintenance, and issue of the uniform as
outlined in paragraph (c)(2)(xi), and shown in Appendix B.
(i) The Military Departments shall develop the commutation rates and
establish procedures for their review on an annual basis. The review
shall be scheduled during May so that the current unit price list
disseminated by the DLA during the previous December of each year can be
used to develop the commutation rates and made available to institutions
for use at the beginning of the fall term. The commutation payment
shall be made to the institutions based on the number of students
enrolled and in attendance for at least 60 consecutive days.
(ii) Commutation rates for uniforms shall be based on the latest
approved items of clothing for each climatic zone and computed using the
formulas listed in Appendix B. Appendices C, D, and E are examples of
the application of the various formulas to determine the amounts that
can be paid to qualifying institutions.
(iii) Standard commutation rates for the basic course (first 2 years)
of the senior ROTC shall be payable in the indicated amount on an annual
basis not to exceed 2 years to CCs that offer Military Science (MS) I
and II or equivalent. The rates shall be paid after cadets have been
enrolled 60 days.
(iv) Standard rates for the advanced course cover the 2-year period
that each member is enrolled in advanced course training in the senior
ROTC (Appendix D). These rates shall be paid after cadets have been
enrolled for 60 days in the advanced course. Commutation funds for camp
uniforms, if paid, shall be in addition to payments for the advanced
course.
(v) Special rates of commutation shall be paid for students enrolled
at MCs, CCs, or MJCs fulfilling the requirements of paragraph (b).
(vi) Special rates of commutation shall be identical for all the
Military Services for those qualifying institutions defined in paragraph
(b). These rates shall be three times the highest standard rate
submitted by sex and course from the Military Departments for climatic
zones 1 or 2. Each Military Department shall submit special rate
estimates for zones 1 and 2 to the Assistant Secretary of Defense
(ASD(FM&P), or designee, not later than July 1. The special rates shall
be announced by the ASD(FM&P), or designee, not later than August 1 of
each year.
(vii) Special rates of commutation for students enrolled in the basic
course (MS I and II or equivalent) of MCs, CCs, and MJCs shall be paid
on an annual basis not to exceed 2 years. Special rates for students
enrolled in the advanced course (MS III and IV or equivalent) of MCs,
CCs, or MJCs shall be paid for the 2-year period that each member is
enrolled in the advanced course.
(viii) Commutation for the basic course and the advanced course shall
be paid based on Appendices C and D, respectively.
(ix) One-half of the special commutation rate shall be paid to the
institution for those students enrolled in the second year of the
advanced course for whom the institution previously has not received
commutation.
(x) The standard rates shown in Appendix E for summer field training
are not subject to the special commutation rate adjustment.
(xi) Commutation of uniform funds may be expended to support ONLY the
following activities:
(A) Procurement, receipt, storage, and issue expenses not to exceed
10 percent of the cost for standard uniform items in quantities as
prescribed by the Secretary of the Military Department concerned, or
distinctive uniforms and insignia as prescribed by those institutions
that meet the requirements of paragraph (b). Marking up or raising the
price of that paid by an institution when items are purchased from
military inventories is not authorized.
(B) Alteration and maintenance of the uniform, which is defined as
laundry, dry cleaning, renovation, alterations and sizing, not to exceed
$10 per uniform.
(C) Salary payments to the property custodian for custody of uniforms
purchased with commutation funds. Such custodial fees shall not exceed
the specified percent of the commutation funds received against the
actual enrollments in each course listed below for the immediate past
academic year:
(1) 15 percent of basic course.
(2) 5 percent of advance course.
(3) 5 percent of field training (when applicable).
(D) Purchase of hazard insurance to protect uniform inventory against
loss.
(xii) Unexpended commutation of uniform funds is the balance
remaining after all commitments or obligations relating to the immediate
past academic year and the amount of retained uniform commutation funds
(see paragraph (c)(2)(xii)(A)) have been deducted. The unexpended
balance shall be computed as of July 1 each year. Commitments or
obligations relating to new year procurement, maintenance, or other
allowable activities may not be charged against the unexpended balance.
As an exception, the unexpended balance may be used for paying bills for
procurements of past academic years that are submitted AFTER the cutoff
date of the report required by paragraph (c)(2)(xii)(C).
(A) The amount of unexpended uniform commutation funds an institution
may retain from 1 academic year to the next for continued financing of
the uniform program is the greater of $3500 or 20 percent of the uniform
entitlement for the immediate past academic year.
(B) Accumulated funds that exceed this limitation shall be returned
to the Military Services.
(C) As of July 1 of each year, a uniform commutation report DD Form
2340, ''Annual Report on Uniform Commutation Fund'' shall be completed
by the institution receiving commutation funds and submitted to the
appropriate authority for each Military Service by July 31.
(1) The uniform commutation report shall include a detailed list of
expenditures, total funds available for the immediate past academic
year, including the unexpended balance from the last report, an
explanation of any monetary adjustments and errors, the balance of funds
on hand, and the amount being refunded to the appropriate Military
Service as the unexpended balance, if any. The report shall be
coordinated with ROTC unit commanders and signed by the appropriate
institutional official who maintains records of the receipt of funds.
(2) All records on the receipt and expenditure of commutation funds
shall be subject to periodic audit and inspection. Institution
officials shall be responsive to recommendations made.
(d) Inspection. Inspections shall be conducted when an ROTC unit is
initially established at an institution that does not already host
another Military Service ROTC unit. Inspections shall ensure that only
those institutions that meet the requirements of paragraphs (a)(1) or
(3), are awarded the MC or MJC classification and only those awarded MC,
CC, and MJC classifications that meet the additional requirements of
paragraph (b) shall be authorized the special rate of commutation
instead of uniforms. Inspections of established units at MCs, CCs, and
MJCs shall be conducted on an exception basis.
(1) The Secretaries of Military Departments shall prescribe specific
inspection procedures applicable to ROTC units of their respective
Military Services.
(2) When discrepancies are noted at institutions, their
classifications shall be subject to review for resolution or withdrawal
by the Secretaries of the Military Department concerned. In the
instance of withdrawal of classification, the appropriate Military
Service's review of, and final notification to, the institution shall be
within 30 days of the date the discrepancy was noted.
32 CFR 110.6 Information requirement.
The reporting requirement for paragraph (c)(2)(xii)(C) is assigned
OMB No. 0704-0200.
32 CFR 110.6 Pt. 110, App. A
32 CFR 110.6 Appendix A to Part 110 -- Climatic Zones Used to Determine
Rates of Commutation Allowance
1. Alabama
2. Arizona, only 100 mile-wide belt along south border
3. Arkansas, southern two-thirds
4. California, except area north of 37
5. Florida
6. Georgia
7. Guam
8. Hawaii
9. Kentucky, southeastern one-third
10. Louisiana
11. Mississippi
12. New Mexico, only 100 mile-wide belt along south border
13. North Carolina
14. Oklahoma, only southeastern portion
15. Puerto Rico
16. South Carolina
17. Tennessee, except northwest corner
18. Texas, except area border of 34 north
1. Alaska
2. Arizona, except 100 mile-wide belt along south border
3. Arkansas, northern one-third
4. California, area south of 37 north
5. Colorado
6. Connecticut
7. Delaware
8. District of Columbia
9. Idaho
10. Illinois
11. Indiana
12. Iowa
13. Kansas
14. Kentucky, NW two-thirds
15. Maine
16. Maryland
17. Massachusetts
18. Michigan
19. Minnesota
20. Missouri
21. Montana
22. Nebraska
23. Nevada
24. New Hampshire
25. New Jersey
26. New Mexico, except a 100 mile-wide belt along south border
27. New York
28. North Dakota
29. Ohio
30. Oklahoma, except the southeast portion
31. Oregon
32. Pennsylvania
33. Rhode Island
34. South Dakota
35. Tennessee, only the northwest corner
36. Texas, only area north of 34 north
37. Utah
38. Vermont
39. Virginia
40. Washington
41. West Virginia
42. Wisconsin
43. Wyoming
The climate zones listed above are to be used as a guide to determine
clothing requirements for a specific detachment. Wind chill equivalent
temperatures can vary widely for areas within close proximity to each
other due to variations in wind velocity and elevation. Detachment
commanders may request a zone change by submitting evidence to the Major
Command of the appropriate Military Service that the wind chill
equivalent temperature for the coldest month has been within the limits
of the requested zone classification for the past 3 consecutive years.
The Standard and special commutation rates are based on the latest
approved items of clothing for each climatic zone. The zones are:
To determine the appropriate zone for each ROTC detachment, use the
table below. Enter the appropriate dry bulb temperature at the top and
read down. Find the wind velocity on the left and read across. The
intersection of the two lines provides the equivalent temperature. For
example, a combination of 20 degrees Fahrenheit and a 10 mile-per-hour
wind has a wind chill equivalent temperature of 3 degrees Fahrenheit.
The wind chill equivalent temperature is based on the average monthly
temperature and wind of the coldest month for each of the past 3
consecutive years.
32 CFR 110.6 Pt. 110, App. B
32 CFR 110.6 Appendix B to Part 110 -- Formula For ROTC Commutation
Rates
Total Pkg. Cost of Auth. Items+10% Procurement Cost=Adjusted Pkg.
Cost -- Amortized by: 2-Yr. Life Shoes & Socks; 2-Yr. Life Insignia;
5-Yr. Life Bal. of Pkg.
+15% Custodial Fees+$10.00 Uniform Alteration and Maint.=Net Rate Per
Yr. (Rounded to nearest $)
Total Pkg. Cost of Auth. Items^ 1/2 Amt. of Insignia Cost (2-yr.
Amortization)+5% Custodial Fees+$10.00 Uniform Alteration & Maint.=Net
Rate 2-yr. period (Rounded to nearest $)
Total Pkg. Cost of Auth. Items^Amortized by 2-yr. Life (Entire
pkg., except shoes and socks)+5% Custodial Fees+$10.00 Uniform
Alteration & Maint.=Net Rate 2-yr. period (Rounded to nearest $)
32 CFR 110.6 Pt. 110, App. C
32 CFR 110.6 -- Pt. 110, App. D
32 CFR 110.6 -- -- Pt. 110, App. E
32 CFR 110.6 -- -- -- PART 111 -- RESERVE OFFICERS' TRAINING CORPS
PROGRAM FOR SECONDARY EDUCATIONAL INSTITUTIONS
Sec.
111.1 Reissuance and purpose.
111.2 Applicability and scope.
111.3 Definitions.
111.4 Policy.
111.5 Responsibilities.
111.6 Information requirements.
111.7 Establishment of Junior ROTC at schools.
Enclosure 1 -- Examples: Computation of the Junior ROTC Instructor's
Compensation
Authority: 10 U.S.C. 2031, as amended.
Source: 47 FR 36636, Aug. 23, 1982, unless otherwise noted.
32 CFR 111.1 Reissuance and purpose.
This part is reissued to update and clarify policies for the
organization and administration of the Reserve Officers' Training Corps
(ROTC) program in all secondary schools (hereafter called Junior ROTC),
as a result of amendments to title 10 U.S.C. section 2031. Amendments
include new viability standards for Junior ROTC units, in accordance
with section 602 of the Defense Appropriation Act, Fiscal Year (FY)
1981, and the extension of the authority for section 607 in the Defense
Authorization Bill, FY 1982.
32 CFR 111.2 Applicability and scope.
(a) This part applies to the Office of the Secretary of Defense and
the Military Departments. The term ''Military Service,'' as used
herein, refers to the Army, Navy, Air Force, and Marine Corps.
(b) Its provisions include those institutions with established Junior
ROTC units and encompass the operation and administration of the Junior
ROTC program worldwide at both public and private institutions.
32 CFR 111.3 Definitions.
(a) Active duty pay and allowances. For purposes of calculating the
Junior ROTC instructor's pay, active duty pay and allowances shall be
limited to basic pay, basic allowance for quarters, allowance for
variable housing (VHA), allowance for uniforms (enlisted only), and
basic allowance for subsistence, which the individual would receive if
called to active duty.
(b) High schools. Public and private secondary educational
institutions that do not fall under the definition for military junior
colleges and military institute schools.
(c) Junior ROTC. All ROTC programs conducted at the secondary level
of education.
(d) Junior ROTC unit. An organized group of Junior ROTC students and
faculty at one secondary school.
(e) Military institute schools. Military schools at the secondary
level of instruction that:
(1) Require a 4-year course in military training.
(2) Organize their military students as a Corps of Cadets under
constantly maintained military discipline.
(3) Require all members of the Corps, including those members
enrolled in military training, to be in appropriate uniform when on
campus.
(4) Have as their objectives the development of the student's
character through military training, the regulation of the student's
conduct in accordance with the principles of military discipline, and
the meeting of military standards similar to those maintained at
Military Service academies.
(f) Military junior colleges. Schools that provide high school and
college instruction but do not confer baccalaureate degrees. Junior
ROTC units established at these schools meet all other requirements of
military college institutions, as defined in 32 CFR Part 110, and accept
and maintain a specially designated program of instruction prescribed by
the Military Department concerned.
(g) Multiple Junior ROTC unit. Any group of units organized and
sponsored under one school system in which the Junior ROTC program is
conducted concurrently in more than one school.
32 CFR 111.4 Policy.
It is the policy of the Department of Defense to sponsor and fund the
Junior ROTC program to provide an opportunity for secondary school
students to learn the basic elements and requirements for national
security and their personal obligations as Americans. The Junior ROTC
program is intended to:
(a) Develop informed and responsible citizens.
(b) Strengthen character.
(c) Promote an understanding of the basic elements and requirements
for national security.
(d) Help form habits of self-discipline.
(e) Develop respect for and an understanding of the need for
constituted authority in a democratic society.
(f) Develop an interest in the Military Services as a possible
career.
32 CFR 111.5 Responsibilities.
The Secretaries of the Military Departments. shall:
(a) Sponsor and conduct a Junior ROTC program.
(b) Provide a fair and equitable geographical distribution of their
Junior ROTC units, with no more than one Military Service's Junior ROTC
unit in a school.
(c) Prescribe a curriculum of at least 3 academic years for their
Junior ROTC units, offering students one of the following curricular
programs:
(1) Academic track (college preparatory). A minimum 3-year program
with 96 hours yearly of military instruction. The academic track shall
be offered only in those schools with a fully accredited program of
academic studies, completion of which prepares the student for entry in
a college offering Senior ROTC.
(2) Technical track (noncollege preparatory). A minimum 3-year
program with 96 hours yearly of military instruction coordinated with
technical courses having a military application. These courses may be
integrated into the required 96 hours of ROTC instruction upon approval
of the Secretary of the Military Department concerned.
(d) Prescribe advance placement.
(1) A student presenting evidence of successful completion of either
the academic or technical track of Junior ROTC under any Military
Department is entitled to advance promotion to the grade of no less than
E-2 upon initial enlistment in an active or reserve component of a
Military Service.
(2) A student presenting evidence of successful completion of a
3-year Junior ROTC program (either track) is entitled to not less than 1
year of credit in the basic course of Senior ROTC when the student
enters college.
(e) Reimburse the institution for Junior ROTC instructor salaries at
the rate of one-half the amount of the difference between the
instructor's retired or retainer pay and the amount of active duty pay
and allowances (excluding hazardous duty pay) the instructor would
receive if he or she were ordered to active duty.
(f) Ensure that the provisions of 111.7 are followed.
(g) Account for the cost incurred by the Department of Defense in
sponsoring, conducting, or disestablishing a Junior ROTC unit.
(h) Evaluate annually the operation, administration, and
effectiveness of the overall Junior ROTC program and the individual
Junior ROTC units in terms of cost and performance objectives.
32 CFR 111.6 Information requirements.
The theft of any military weapons or ammunition from a secondary
educational institution shall be reported under Report Control Symbol
DD-POL(SA&AR) 1358, as prescribed in DoD Directive 5100.76, ''Physical
Security Review Board,'' February 10, 1981.
32 CFR 111.7 Establishment of Junior ROTC at schools.
(a) Junior ROTC establishment. Secondary educational institutions
desiring to establish Junior ROTC units or to continue established units
shall agree to:
(1) Maintain a Junior ROTC enrollment of no less than 100 physcially
fit students, or 10 percent of the number of students enrolled in the
institution, who are at least 14 years of age and are citizens or
nationals of the United States.
(2) Employ as Junior ROTC instructors retired officers and enlisted
personnel whose qualifications are approved by the Secretary of the
Military Department concerned to administer the basic military
orientation courses. Officer instructors shall possess baccalaureate or
higher-level degrees. This qualification may be waived for a period of
4 years from the time of initial hire or from the date of this part
(whichever is later), if the school authority agrees and while the
instructor works toward obtaining a bachelor's degree.
(3) Pay retired personnel so employed. The institution is the
employing agency and shall pay the full amount due the Junior ROTC
instructor. The Junior ROTC instructor shall receive retired or
retainer pay from the U.S. Government. The amount due from the
institution is at least the amount equal to the difference between
retired or retainer pay and the active duty pay and allowance that the
Junior ROTC instructor would receive if ordered to active duty. The
institution shall be reimbursed for Junior ROTC instructor salaries at
the rate of one-half the difference of the instructor's retirement or
retainer pay and active duty pay and allowances. For purposes of
calulating a Junior ROTC instructor's pay, ''active duty pay and
allowances'' shall be limited to the basic pay, basic allowance for
quarters, allowance for variable housing (VHA), allowance for uniforms
(enlisted only), and basic allowance for subsistence. The level of
active duty pay and allowances, less retired or retainer pay, is the
minimum salary the institution shall pay Junior ROTC instructors. This
should not be considered an attempt to cap or limit the amount of pay
that may be agreed upon between the individual Junior ROTC instructor
and the instructor's employer. The institution may pay more than the
amount equal to the difference between retired or retainer pay and the
individual's active duty pay and allowance rate, but shall do so without
additional entitlement for reimbursement from the federal government.
(See enclosure 1 for examples of proper computation of the Junior ROTC
instructor's pay.)
(4) Contract separately with the individual Junior ROTC instructor
for any additional duties desired by the institution beyond those
connected with the instruction, operation, and administration of the
Junior ROTC program, at no cost to the Military Department concerned.
Such additional services shall be performed outside the scope of Junior
ROTC duties and hours. (This requirement does not preclude Junior ROTC
instructors from serving on routine committees or from performing other
extracurricular duties normally performed by other faculty members.)
(See enclosure 1.)
(5) Compensate a Junior ROTC instructor only for the period of time
he or she performs duties as a Junior ROTC instructor. For periods of
service as a Junior ROTC instructor for less than 12 months of a
calendar or fiscal year, the instructor shall be compensated the
difference between the amount of the retirement (or retainer) pay and
active duty pay times the length of employment as a Junior ROTC
instructor expressed as a fraction of 12 months. (Refer to enclosure 1,
Examples C and D, for clarification.)
(6) Provide an additional amount of compensation for a Junior ROTC
instructor for only that part of the summer (or interim) months, between
academic sessions, during which the instructor performs administrative
or instructional duties that are directly related to the Junior ROTC
program. Administrative and instructional duties directly related to
the Junior ROTC program that would entitle a Junior ROTC instructor to
additional compensation include, but are not limited to:
(i) Administrative and instructional duties performed in an interim
term Junior ROTC program, such as summer school;
(ii) The grading of examinations and papers during the period
immediately following the end of the school year; and
(iii) The preparation of new course materials during the period
immediately preceding the beginning of a school year.
(7) Advise the Secretary of the Military Department concerned of any
change of employment status of retired personnel employed at an
institution.
(8) Provide suitable safeguards for the government property provided.
Such safeguards shall include, but not be limited to:
(i) Employment of clerical and maintenance personnel required to
issue, account for, and maintain the government property.
(ii) Bonds or insurance (or both) to cover loss and damage of the
property.
(iii) Secure storage of U.S. military weapons and ammunition in the
inventory of Junior ROTC units. Junior ROTC units that have
U.S.-furnished military weapons and ammunition in their inventory shall
be inspected for physical security by the sponsoring Military
Department. Established security standards for arms rooms, including
separate secure storage of bolts of operable weapons, shall be
emphasized.
(9) Provide positive safeguards to prevent discrimination against
students or instructors on the grounds of sex, race, religion, or
national origin.
(10) Provide adequate facilities for classroom instruction, storage
for the unit's equipment (see paragraph (a)(8)(iii) of this section, and
adequate, suitably located drill areas, as determined by the Secretary
of the Military Department concerned.
(11) Provide the required courses of instruction and maintain the
standards prescribed by the Secretary of the Military Department
concerned.
(b) Junior ROTC instructors. (1) The Secretary of the Military
Department concerned may authorize one active duty officer, O-4 or
below, and one active duty enlisted member, E-7 or below, to be assigned
as instructor at each military institute school or high school level of
military junior college. Military institute schools and the secondary
level of military junior colleges desiring additional instructors shall
acquire them through the employment of retired personnel as set forth
above. Active duty personnel assigned to military institute schools and
the high school level of military junior colleges count against the
student-instructor ratio prescribed in paragraph (b)(2)(i) of this
section.
(2) Authorized strength of retired officer and noncommissioned
officer instructors:
(i) Single Junior ROTC units and each subunit of a mutiple Junior
ROTC unit shall be authorized one retired officer instructor per 500
enrolled ROTC students, or major fraction thereof, and one retired
enlisted instructor per 100 enrolled ROTC students, or major fraction
thereof.
(ii) As exceptions to the above, any school that qualifies for a
Junior ROTC unit shall be authorized at least one officer and, when
necessary, the Secretary of the Military Department concerned may
authorize substitution of officers for enlisted instructors, and
conversely, within the above authorizations.
(iii) Supervisory personnel for multiple Junior ROTC units shall be
obtained by organizing the multiple unit so that these limitations are
not exceeded.
(3) Retired officer and noncommissioned officer instructors are
employees of the school and are responsible to school authorities for
the conduct of the Junior ROTC program. In this regard, however, the
Secretary of the Military Department concerned shall hold the school
authorities responsible for the conduct of the program as prescribed.
Junior ROTC instructors must meet Military Service requirements and
maintain standards acceptable to the Military Department concerned.
(c) Eligibility of students. (1) To enroll in the Junior ROTC,
students shall be at least 14 years old and shall meet the physical
standards prescribed by the Secretary of the Military Department
concerned.
(2) The Secretary concerned may prescribe qualifying tests and cutoff
scores for Junior ROTC training.
(d) Supply and maintenace. (1) The Secretaries of the Military
Departments may authorize the issuance of equipment to a designated
official of the educational institution concerned, as follows:
(i) Military equipment needed for the prescribed military training
program, provided the equipment is not needed for training of their
regular and reserve components.
(ii) Surplus military equipment, allied to military requirements for
particular technical training courses (DoD Directive 5100.13, ''Donation
of Surplus Personal Property to Educational Activities of Special
Interest to the Armed Services,'' November 18, 1971), when, in the
judgment of the Secretary of the Military Department concerned, the
military training requirements is warranted.
(iii) Spare parts, tools, cleaning materials, technical publications,
and other materials necessary for maintenance of the equipment.
(iv) Necessary test materials, individual equipment, and uniforms.
(2) The Military Department concerned shall pay transportation
charges, including packaging and handling, for shipment to and from the
institution. The institution shall pay all other costs incident to
maintenance and local storage and safeguarding of the property.
(e) Disestablishment of Junior ROTC units. (1) When the Secretary of
a Military Department determines that a Junior ROTC unit does not meet
the standards specified in appropriate Military Service directives
(other than for enrollment), school authorities concerned shall be
notified that the unit has been placed on a 1-year probationary status.
Disestablishment of the unit shall be effective at the conclusion of the
probationary period if the reason for the probationary status has not
been resolved.
(2) Junior ROTC units that are in at least their 2nd year of
enrollment and do not have the statutory minimum of 100 students, or 10
percent of the number of students enrolled in the institution, who are
at least 14 years of age, whichever is less, shall be placed on
probation immediately. No later than the end of the academic year, the
Military Department concerned shall evaluate the unit's potential to
attain the minimum enrollment upon the opening of school in the fall.
If it is likely the enrollment minimum will not be met, the Military
Department concerned shall encourage school authorities to concur in
disestablishment of the unit at the end of that current school year.
The Military Department concerned shall make the final determination as
to the school's capability to meet the enrollment minimum. When the
Military Department's evaluation indicates that minimum enrollment
probably will be met at the beginning of the fall school term, the unit
may be continued. However, no later than 30 days following the
beginning of the next school term, the sponsoring Military Department
shall determine whether the enrollment minimum has been met. If it has
not, the school shall be officially notified of the unit's
disestablishment, and physical termination shall be scheduled for no
later than the end of that academic year.
(f) Junior ROTC in DoD Dependents Schools (DoDDS) high schools. (1)
The requesting high school principal shall forward applications for the
establishment of individual Junior ROTC units through established school
channels in each geographic area to the appropriate Military Department.
(2) The nomination of retired officer and noncommissioned officer
instructors shall be in accordance with applicable regulations of the
Military Departments. The respective Military Departments shall submit
the names of nominees to the Director, DoDDS, ATTN: Teacher
Recruitment, for final selection and appointment to positions in the
DoDDS high schools. Junior ROTC instructors shall be employed in
accordance with Part 69 of this title.
(3) In addition to meeting Military Department qualifications, each
applicant for a Junior ROTC instructor position must meet the criteria
required by the North Central Accreditation Association of Colleges and
Secondary Schools (NCA). NCA criteria may be obtained from the
Director, DoDDS, Office of the Assistant Secretary of Defense (Manpower,
Reserve Affairs, and Logistics).
32 CFR 111.7 Pt. 111, Encl. 1
32 CFR 111.7 Enclosure 1 -- Examples: Computation of the Junior ROTC
Instructor's Compensation
The computation of the amount due to the Junior ROTC instructor, from
the U.S. Government and the institutions is illustrated in the examples
provided below.
Example A: A Junior ROTC instructor agrees to instruct, administer,
and operate a Junior ROTC unit for 12 months at Murray High School.
Murray High School remains open 12 months of the year without the usual
summer recess.
Example B: If the school district in EXAMPLE A feels that the Junior
ROTC instructor should be compensated more than the minimum, they may do
so.
Example C: Murray High School wanted the Junior ROTC instructor to
coach the football team. A separate contract between Murray High School
and the Junior ROTC instructor was written to describe any additional
duties desired by the institution beyond those connected with the
instruction, administration, and operation of the Junior ROTC unit.
(See enclosure 2, subsection A.4.)
Example D: Central High School is open 9 months of the year for
instruction and a total of an additional month for preregistration
activities, such as preparing curricula and counseling students in
August, and postacademic activities in June, such as recording permanent
grades and taking inventory on teaching materials needed for the coming
academic year. As an instructor at Central High School, the Junior ROTC
instructor shall participate in these required duties.
The Junior ROTC instructor has accepted a 10-month contract with
Central High School to provide instruction, administration, and
operation of the Junior ROTC unit. His compensation is calculated as
follows:
Example E: The Junior ROTC instructor in EXAMPLE D has elected to
have his compensation from the school district paid in 12 equal payments
during the year. This does not change the annual minimum compensation
due from the institution as the following computation indicates.
32 CFR 111.7 PART 114 -- RESERVE COMPONENTS COMMON PERSONNEL DATA
SYSTEM (RCCPDS)
Sec.
114.1 Purpose.
114.2 Applicability and scope.
114.3 Policy.
114.4 Responsibilities.
114.5 Procedures.
114.6 Information requirements.
Appendix A to Part 114 -- Coding Instructions -- Master File, DD-RA
(M) 1147
Appendix B to Part 114 -- Transaction and Editing Procedures for
Submission Tapes
Appendix C to Part 114 -- Coding Instructions -- Transaction File,
DD-RA (M) 1148
Appendix D to Part 114 -- General Specifications for Submission Tapes
Appendix E to Part 114 -- Quality Control Edit -- Master File, DD-RA
(M) 1147
Appendix F to Part 114 -- Quality Control Edit -- Transaction File,
DD-RA (M) 1148
Appendix G to Part 114 -- Glossary
Appendix H to Part 114 -- Record Layout of Reserve Components Common
Personnel Data System (RCCPDS)
Authority: 10 U.S.C. 261, 267, 275, 511, 651, 652, 671, 1331, 6330,
and 8914.
Source: 56 FR 18699, Apr. 24, 1991, unless otherwise noted.
32 CFR 114.1 Purpose.
This part updates policy and standardize data elements affecting the
RCCPDS.
32 CFR 114.2 Applicability and Scope.
This part applies to: (a) The Office of the Secretary of Defense
(OSD); the Military Departments (including their National Guard and
Reserve components); the Chairman, Joint Chiefs of Staff and Joint
Staff; the Defense Agencies; and the U.S. Coast Guard, by agreement
with the Department of Transportation (DoT), when it is not operating as
a military service in the Navy.
(b) All officers, warrant officers, and enlisted personnel assigned
to the Ready Reserve, the Standby Reserve, and the Retired Reserve.
Reservists on Active Duty for Training (ADT) who continue their
assignment with a Reserve component are included. Reserve Officer
Training Corps (ROTC) members, who are not members of the Simultaneous
Membership Program (SMP), are excluded. Also excluded are individuals
who have elected discharge after 20 creditable years instead of transfer
to the Retired Reserve. The Defense Manpower Data Center (DMDC) shall
maintain an historical file on those individuals.
(c) Enlisted members of an active component, who also hold a Reserve
commission, shall not be reported in the RCCPDS.
(d) Service members on Extended Active Duty (EAD) who are part of the
active component or assigned to the Selective Service System (SSS) shall
not be reported. (That does not include Service members identified in
114.5(a)(1)).
32 CFR 114.3 Policy.
(a) The RCCPDS is the computerized common data base established to
meet the policy requirements and to provide statistical tabulations of
Reserve components' strengths and related data for use throughout the
Department of Defense, other Government Agencies, the Congress, and for
appropriate public release by the Assistant Secretary of Defense (Public
Affairs) (ASD(PA)) (DoD Directive 1205.17 /1/ ).
(b) The requirements and procedures prescribed by 32 CFR part 286a
must be followed to safeguard the personnel data maintained in that
reporting system. Individuals having access to identifiable personnel
information may be held personally responsible and punishable under the
law for making unauthorized disclosures.
/1/ Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
32 CFR 114.4 Responsibilities.
(a) The Assistant Secretary of Defense (Reserve Affairs) (ASD(RA))
shall:
(1) Establish policy and provide guidance for Reserve Component
Categories (RCCs), personnel transaction accounting, personnel data
items, definitions, and accuracy standards.
(2) Provide policy guidance to the DMDC on the content and use of the
RCCPDS including data fields, definitions, frequency, format, and the
content of periodic and special RCCPDS reports, in accordance with
responsibilities detailed in DoD Directives 1205.17 and 32 CFR part 379.
(3) Revise and maintain this part, as necessary, to update data
requirements and provide accurate and effective guidance on personnel
data management to the Military Departments and their Reserve
components.
(b) The Assistant Secretary of Defense (Force Management and
Personnel) (ASD(FM&P)) shall:
(1) Ensure that Reserve component military personnel information
requirements for acturial valuations and for effective Total Force
military personnel management are identified to the ASD(RA).
(2) Exercise such policy guidance and management supervision for the
DMDC, consistent with ASD(FM&P) responsibilities in 32 CFR part 384, as
required, to ensure that adequate resources are available and used by
the DMDC to fulfill its responsibilities.
(c) The Director, DMDC shall:
(1) Operate and maintain the RCCPDS, to include computer support,
software development, quality control, inquiry capabilities, and
administrative support.
(2) Develop, produce, and distribute all periodic and special RCCPDS
reports.
(3) Provide programming and analytical support to the ASD(RA) for
special studies requiring use of the RCCPDS.
(4) Modify the RCCPDS to reflect the changing nature of the Reserve
components.
(5) Inform the ASD(RA) of data produced from the RCCPDS for other
users and of the state and quality of the information submitted by the
Reserve components.
(d) The Secretaries of the Military Departments and the Commandant of
the U.S. Coast Guard (USCG) shall:
(1) Provide their respective Reserve components with the support
necessary to maintain a personnel data system.
(2) Prepare at the end of each month, and submit within 20 calendar
days, a ''Master Officer File'' and ''Master Enlisted File'' reflecting
the status of each member of the Reserve component as of the last day of
each month, as stated in Appendix A to this part.
(3) Prepare at the end of each month, and submit wthin 20 calendar
days, an ''Officer Transaction File'' and an ''Enlisted Transaction
File'' reflecting the gains, losses, reenlistments, extensions, and
transfers of Reserve component personnel that occurred during the
reporting month, as stated in Appendix C to this part. Transactions
processed within 45 days of effective day shall not be considered late,
due to data lag.
(4) Edit monthly submissions according to the editing concept defined
in appendix B to this part.
(5) Perform a quality control validation of the data before
submission to the OSD.
32 CFR 114.5 Procedures.
(a) The following categories of Full-Time Support (FTS) personnel
shall be reported in the RCCPDS:
(1) Active Guard and/or Reserve (AGR). Guardsmen and Reservists on
active duty to provide full time support to the Ready Reserve and who
are paid from the Reserve personnel appropriations of the Military
Department concerned.
(2) Military Technicians. Federal civilian personnel of a Military
Department, who occupy military technician positions and are members of
the Reserve component that they support.
(b) As the official DoD vehicle for reporting Reserve component
manpower strengths, records reported in RCCPDS (as prescribed in
114.4(d) (2) and (3)) may not be duplicated in other DoD-wide strength
reporting systems. Additionally, to support the accuracy of strength
data in the system, the DoD Components shall ensure that:
(1) All strength-effecting changes are processed and repored without
delay.
(2) All master and transaction files are edited before submission
following the procedures in appendix C to this part.
(c) Requests to provide specifically tailored reports and inquiries
to system users shall be directed to the address in paragraph (g) of
this section. A Reserve component may not be provided data relative to
another Reserve component without prior approval of that Reserve
component.
(d) Any information available to the RCCPDS required by the SSS and
the Department of Veterans' Affairs (VA) shall be provided by magnetic
tape extracts of data submitted in compliance with this part.
(e) Information from the RCCPDS shall be provided annually to Federal
Agencies screening employees who are also Reserve component members, as
prescribed by 32 CFR part 44.
(f) RCCPDS data validity shall be ensured, as follows:
(1) The following shall be critical data for all Reserve component
members, and the goal shall be 100-percent validity to ensure
acceptability in the system appendix A to this part.
(2) Each of the following (as applicable in each Reserve Component
Category) shall have as a goal at least 98-percent validity:
(3) The goal for all remaining data fields shall be:
(i) 95-percent validity for the Ready Reserve and Standby Reserve.
(ii) 95-percent validity for the Retired Reserve eligible for pay at
age 60.
(4) The data validity rates 114.6(f) (1) through (3)) shall be used
as standards for judging the validity of that data base and shall be
provided to any audit or inspection agency reviewing their accuracy.
(g) Magnetic tape files and the quality control edit report
(apendices E and F) to this part shall be delivered by the 20th of the
month following the previous report period to the following: Defense
Manpower Data Center, Attn: Reserve File Manager, 99 Pacific Street,
suite 155-A, Monterey, CA 93940-3231.
32 CFR 114.6 Information requirements.
The reporting requirements for this part are assigned the following
Report Control Symbols (RCS):
Master File: DD-RA(M)1147 (See Appendix A to this part).
Transaction File: DD-RA(M)1148 (See Appendix C to this part).
Standard data elements from DoD 5000.12-M2 /2/ are being used in
these reporting requirements where applicable.
/2/ See footnote 1 to 114.3(a).
32 CFR 114.6 Appendix B to Part 114 -- Transaction and Editing
Procedures For Submission Tapes
1. All transactions flowing into the RCCPDS from the Reserve
components apply to gains and losses (including transfers, reenlistments
and extensions). Report the appropriate Reserve Component Category
Designator (RCCD) and Reserve Component Training-Retirement Category
Designator (RCTRCD) for all transactions, as follows:
a. For accessions, use codes for gaining categories listed in record
field 92.a.
b. For transfers, use codes for categories to which transferred
listed in record field 92.d.
c. For losses, use codes for categories from which loss occurred
listed in record field 92.b.
2. The following conditions show examples of acceptable transaction
practices:
a. When a Service member is transferred from the IRR to the Standby
Reserve, submit a transfer transaction i.e. TN.
b. If a Service member transfers from one State to another, and
continues as a Selected Reservist of the same Reserve component, submit
no transaction.
c. If a Service member is transferred from the IRR and/or ING (or
Standby and/or Retired) to the Selected Reserve, submit a transfer
transaction. Do not submit a corresponding loss transaction for the
decrease in IRR strength.
d. A loss to the Reserve component shall only be reported if a change
from Reserve component appropriations to Active component appropriations
occurs. That does not apply to Reserve component members performing
duty for 180 days, or less, in support of an Active component mission
that is being funded through Active component appropriations. Reserve
component members shall be reported in RCCPDS in their current Reserve
Component Category while performing that duty.
3. The occurrence of multiple transactions during a single reporting
period is unusual. However, those must be reported against the same
record in the same update cycle. The following conditions shall apply:
a. Include only valid gains, losses, transfers, reenlistments, and
extensions.
b. Do not report record corrections resulting from erroneous gains,
losses, reenlistments, or extensions. For example, if an erroneous
''loss'' is processed and then a corresponding ''gain'' is initiated
during the same reporting cycle, do not report those transactions.
c. Ensure that the transaction effective dates of the various
transactions are different.
All data submitted to the RCCPDS must be edited by the Reserve
components for validity, reliability, and consistency before submission
to ensure that the Reserve component strengths match the official
strengths produced from the RCCPDS. At the Department of Defense, all
master files and transaction inputs are edited before file update to
ensure the accuracy of files and resulting reports. Use the following
edit procedures to screen all input:
a. Duplicate SSN in a Reserve Component's Submission. When a
duplicate SSN is found, accept the first occurrence and reject
subsequent occurrences.
b. Duplicate SSNs Between Reserve Component Files. That procedure
checks for duplication among Reserve components. It is applied after
files are updated and does not result in rejects. As agreed to by the
Reserve components, the DMDC shall provide each Reserve component
periodic output from the RCCPDS to assist in reconciling errors. That
maximally reduces the incidence of duplication, and encourages
cooperation among the Reserve components.
a. Gains and Transfers. Check all gain and transfer transactions for
Service member's status on last month's master file (previous month's
submission).
(1) A gain from outside the Reserve component is valid only if the
Service member's record did not exist on the Reserve component's last
month's master file. If the Service member's record already exists on
last month's master file, the transaction shall reject and not be
counted.
(2) A transfer from inside the Reserve component (i.e. from IRR to
Selected Reserve) is valid if the Service member's record existed on the
Reserve component's last month's master file. If that condition is not
satisfied, the transaction shall reject and not be counted.
b. Losses. All current loss transactions are also reviewed with
respect to a Service member's status on last month's master file. A
loss to the Reserve component is valid, only if the Service member's
record previously existed. If not, the loss transaction shall reject
and not be counted.
c. Gain and/or Loss. Where simultaneous gain and loss, and
reenlistment and/or extension, transactions occur against the same
record (SSN) during one reporting period, count each transaction.
d. Reenlistment and/or Extension. A reenlistment and/or extension
transaction is acceptable to the RCCPDS if the record identifies the
Service member as a Reservist and that record is in the Reserve
component's master file of the previous month. When those conditions
cannot be validated, the transaction shall reject and not be counted.
3. Master File and/or Transactions. Standard validity checks are
made on all master file and transaction inputs to ensure that they
conform to the code structure in Section 3 of this Instruction. For
example, if a ''GA'' transaction were submitted, it would reject because
its second character is ''ALPHA'' and the procedure requires a
''NUMERIC'' second character. Validity errors in a record shall cause
rejection of the entire record, only under the following circumstances:
a. When the Reserve component code equals ''9''.
b. When the SSN does not fit within the numeric boundaries
established by the Social Security Administration.
a. During the month's reporting cycle, each gain, loss, reenlistment,
extension, or transfer transaction shall have a corresponding impact on
the master file for the same period. The following relationships exist:
(1) When a gain transaction is submitted, report a master file record
on that Service member during the same cycle.
(2) When a loss transaction is reported, eliminate the master file
record showing the Service member as a Reservist.
(3) When a reenlistment and/or extension transaction is submitted,
the corresponding master file for the same period must reflect the
individual as being in a Reserve component.
(4) When a transfer transaction occurs, the corresponding master file
for the same period must reflect the individual as being in the new
Reserve component category.
b. All transactions that cannot satisfy the above relationship to the
current master file shall reject and will not be counted.
32 CFR 114.6 -- -- Appendix D to Part 114 -- General Specifications for
Submission Tapes
A. Submit magnetic tape files separately for each Reserve component
within 20 calendar days of each month's end (as of date of the file).
Separate each file into ''officer'' and ''enlisted'' files.
B. Order each file by Social Security Number (field number 3), in
ascending order, beginning with ''001010001.'' Additionally, sort
transaction records with like SSNs on the ascending transaction
effective date.
C. Multifile reels are permissible and preferred to reduce the volume
of tape handling.
D. All tapes shall be 9-track, 6250 or 1600 bytes per inch (BPI),
extended binary coded decimal interchange code (EBCDIC), with standard
IBM labels. Data set names (DSN) shall be seven positions without
spaces or periods, as follows:
1. First position; Reserve component. Enter:
G=ARNG
A=USAR
N=USNR
M=USMCR
K=ANG
F=USARF
P=USCGR
2. Second position: military personnel class: Enter:
O=Officer
E=Enlisted
3. Third through sixth position, as of date. Enter:
YYMM
4. Seventh position; type of file. Enter:
M=Master File
T=Transaction File
E. Block all files with 13,600 characters (32 data records of 425
characters per block).
F. Accompany all magnetic tape files by a computer-produced quality
control edit. Make that edit after the files have been produced, but
before submission to the OSD. The computer-produced edit may also serve
as the letter of transmittal for the files. (See Appendices E and F for
format.)
G. Mail all magnetic tape files and quality control edits to the
address shown in 114.6(g).
32 CFR 114.6 -- -- Appendix E to Part 114 -- Quality Control Edit --
Master File DD-RA (M) 1147
The format for each Master File (1147) Quality Control Edit Report
is, as follows (data is illustrative):
Reel Number: 123456.
Data Set Name: PE8//6M.
First Data Record: PE8//6M.
32 CFR 114.6 -- -- Appendix F to Part 114 -- Quality Control Edit --
Transaction File DD-RA(M) 1148
The format for each Transaction File (1148) Quality Control Edit
Report is, as follows (data is illustrative):
Reel Number: 123456.
Data Set Name: PE8//6T.
First Data Record: PE8//6T.
32 CFR 114.6 -- -- Appendix G to Part 114 -- Glossary
32 CFR 114.6 -- -- PART 115 -- ASSIGNMENT TO AND TRANSFER BETWEEN
RESERVE CATEGORIES, AND DISCHARGE FROM RESERVE STATUS
Sec.
115.1 Purpose and applicability.
115.2 Original assignment to reserve status.
115.3 Transfer to the Standby Reserve.
115.4 Transfer from the Standby Reserve.
115.5 Discharge.
Authority: Sec. 301, 80 Stat. 379; 5 U.S.C. 301, sec. 1(5)(A), 72
Stat. 1438; 10 U.S.C. 271, E.O. 11190; 3 CFR, 1964-1965 Comp. p.
272, E.O. 11382; 3 CFR, 1967 Comp. p. 327.
Source: 35 FR 2775, Feb. 10, 1970, unless otherwise noted.
32 CFR 115.1 Purpose and applicability.
This part establishes Department of Defense policy guidance to the
Military Departments for assignment of military personnel to and
transfer between reserve categories, and discharge from reserve status
under the provisions of the Military Selective Service Act of 1967 (50
App. U.S.C. 451 et seq.) and title 10 U.S.C.
32 CFR 115.2 Original assignment to reserve status.
(a) Ready Reserve. Original membership in the Ready Reserve may be
attained by:
(1) Transfer thereto under sections 269(a) and 651 of title 10 U.S.C.
upon release from active duty:
(2) Appointment as a Reserve Officer and assignment to the Ready
Reserve under section 6(d), The Military Selective Service Act of 1967
(50 App. U.S.C. 451 et seq.) and section 269(a) of title 10 U.S.C.;
(3) Entry (appointment or enlistment) into the Army National Guard of
the United States or Air National Guard of the United States in
accordance with section 269(b) of Title 10 U.S.C. as affected by
sections 510, 591, 3077, 3261, 3351, 8077, 8261, and 8351 of title 10
U.S.C.;
(4) Direct entry under section 511 of title 10 U.S.C.;
(5) Direct voluntary entry (appointment or enlistment) of an
individual into the Ready Reserve, other than as provided above.
(b) Standby Reserve. Direct assignment to the Standby Reserve
without prior membership in the Ready Reserve may be attained in
accordance with sections 269(e)(1) and 269(f) of title 10 U.S.C. upon
release from 5 or more years of active duty (other than for training) in
the Armed Forces.
(c) Retired Reserve. Direct assignment and transfer to the Retired
Reserve may be accomplished under DOD Directive 1200.4, ''The Retired
Reserve of the Reserve Forces,'' September 24, 1963. /1/
/1/ Filed as part of original document. Copies available from the
U.S. Naval Publications and Forms Center, 5801 Tabor Avenue,
Philadelphia, Pa. 19120, Attention: Code 300.
32 CFR 115.3 Transfer to the Standby Reserve.
(a) Provided they are not on active duty, the following personnel who
have not fulfilled their total military service statutory obligation
shall, upon their request, be assigned to or transferred to the Standby
Reserve:
(1) Those who have served 5 or more years on active duty (other than
for training).
(2) Those who have served on active duty (other than for training)
and participated satisfactorily in accredited training programs of the
Ready Reserve for a combined total of at least 5 years, or such shorter
period as the Secretary of a Military Department concerned, with the
approval of the Secretary of Defense, may prescribe.
(b) Individuals qualifying for assignment or transfer to the Standby
Reserve under paragraph (a) of this section, shall, if otherwise
qualified therefor and a suitable vacancy exists, be afforded the
opportunity to execute a written agreement to be assigned to or remain
in the Ready Reserve. All such voluntary agreements will provide that:
(1) The reservist may be transferred to the Standby Reserve by the
appropriate Secretary for cogent reasons;
(2) The reservist waives his right to transfer to the Standby Reserve
under the conditions stated in paragraph (a) of this section, while
serving under such agreement.
(3) The period of the agreement shall be as prescribed by Part 125 of
this subchapter.
(c) Transfer to the Standby Reserve under the screening process in
conformance with section 271 of Title 10, U.S.C. will be accomplished
under Part 125 of this subchapter.
(d) Transfer to the Standby Reserve of members of the Army National
Guard of the United States or the Air National Guard of the United
States will be subject to section 269(g) of title 10 U.S.C.
(e) Upon transfer of a member of the Ready Reserve to the Standby
Reserve, notification thereof to the Selective Service System will be
made by the Military Department concerned in accordance with Part 136 of
this subchapter.
(f) Assignment to the Inactive Status List of the Standby Reserve and
retention thereon is governed by Part 136 of this subchapter.
32 CFR 115.4 Transfer from the Standby Reserve.
(a) In accordance with section 272 of title 10 U.S.C. any member of
the Standby Reserve who has not completed his statutory obligated period
of military service in the Ready Reserve may be transferred to the Ready
Reserve whenever the reasons for his transfer to the Standby Reserve no
longer exist, provided he is otherwise qualified and a requirement
exists.
(b) Subject to such regulations as the appropriate Secretary may
prescribe, a member of either the Standby Reserve or the Retired Reserve
may, upon his own request, be transferred to the Ready Reserve if
qualified and a requirement exists for him. However, a member of the
Retired Reserve who is entitled to retired pay may not be transferred to
the Ready Reserve unless the Secretary concerned personally makes a
special finding that the member's services in the Ready Reserve are
indispensable. Such voluntary transfer will be accomplished under
section 269(d) of Title 10, U.S.C. Those who have fulfilled their Ready
Reserve statutory obligation will be required to execute a written
agreement to serve in the Ready Reserve under conditions set forth in
this paragraph (b).
(c) In any case, where an individual is transferred from the Standby
Reserve to the Ready Reserve or the Retired Reserve, notification
thereof to the Selective Service System will be made by the Military
Department concerned in accordance with Part 136 of this subchapter.
32 CFR 115.5 Discharge.
(a) Enlisted members of the Ready Reserve or the Standby Reserve not
on active duty who have completed their statutory obligation or who are
not otherwise subject to a military obligation will be discharged upon
the completion of their obligation or upon the expiration of their
enlistment, as the case may be, unless they voluntarily (1) re-enlist to
serve in the Ready Reserve or Standby Reserve, or (2), where applicable,
extend their enlistment to remain in the Ready Reserve or (3) request
transfer to the Inactive Status List of the Standby Reserve under the
provisions of Part 136 of this subchapter. Only those personnel listed
in Part 136 of this subchapter may re-enlist in the Standby Reserve.
(b) Any person who while a member of a reserve component becomes a
regular or duly ordained minister of religion shall be discharged from
such reserve component upon request under section 1162(b) of Title 10,
U.S.C. The definition of regular or duly ordained minister of religion
provided in section 16(g) of The Military Selective Service Act of 1967
(50 App. U.S.C., 451 et seq.) shall be used in connection with this
regulation.
(c) Those commissioned officers of the reserve who have accepted
indefinite appointment will not be subject to mandatory discharge upon
completion of the statutory obligation.
(d) Discharge from one's statutory obligation for hardship or other
causes will be governed by pertinent provisions of Parts 50 and 125 of
this subchapter.
(e) Discharge from the reserve components is governed by sections
1003, 1162, and 1163 of Title 10, U.S.C., subject to sections 680-681
and 1006 of the same reference.
(f) Upon the discharge of members of the Standby Reserve, due
notification thereof will be made to the Selective Service System by the
Military Department concerned.
32 CFR 115.5 PART 132 -- INITIAL ACTIVE DUTY FOR TRAINING IN RESERVE
COMPONENTS
Sec.
132.1 Reissuance and purpose.
132.2 Applicability and scope.
132.3 Policy.
132.4 Implementation.
Authority: 10 U.S.C. 511, 32 U.S.C. 302, 50 App. U.S.C.
456(c)(2)(A).
Source: 35 FR 1290, Jan. 31, 1970, unless otherwise noted.
32 CFR 132.1 Reissuance and purpose.
This part updates uniform policies governing active duty and
active-duty-for-training programs established to provide basic training
for persons enlisting directly into the Reserve Components (see
132.3(a) and (d)(1)).
32 CFR 132.2 Applicability and scope.
(a) The provisions of this part apply to the Military Departments
conducting reserve enlistment programs under the provisions of Title 10,
U.S.C. section 511, and Title 32, U.S.C. for personnel without prior
military service.
(b) Initial active duty or active-duty-for-training programs may
include, in addition to recruit or basic individual training, basic unit
training and various types of specialist training.
32 CFR 132.3 Policy.
(a) General. The reserve enlistment programs were established to
provide the Reserve Forces with trained personnel. Enlistments of
non-prior service personnel shall be accepted under Title 10, U.S.C.
section 511, and Title 32, U.S.C. only to the extent that initial
active-duty-for-training spaces are expected to be available within 180
days from dates of enlistment. The Military Departments will program
and budget for Reserve training base requirements as necessary to
preclude delaying the commencement of initial basic training of Reserve
enlistees beyond 180 days in accordance with section 511(d) of Title 10,
United States Code.
(b) Periods of enlistment. (1) Persons without prior military
service who are under 26 years of age who enlist under section 511 (a)
or (d) of Title 10, U.S.C., or section 302 of Title 32, U.S.C., and all
persons regardless of age who enlist under section 511(b) of Title 10,
U.S.C. will be enlisted for a period of 6 years.
(2) Persons without prior military service who are 26 years or over
who enlist under section 511(a) of Title 32, U.S.C. will be enlisted for
such period as is prescribed by the Secretary of the Military Department
concerned.
(c) Periods of training. (1) Persons without prior military service
who enlist in the Reserve Forces under section 511 (a) or (d) of Title
10, U.S.C., or section 302 of Title 32, U.S.C. will perform an initial
tour of active-duty-for-training of not less than four (4) consecutive
months' duration regardless of age at time of enlistment (Title 10,
U.S.C., section 671).
(i) The initial period of active-duty-for-training will be determined
within each Military Service on the basis of the amount of training
considered necessary to qualify the individual for the military
specialty for which he enlisted.
(ii) Unless otherwise provided by law, personnel shall participate in
reserve training in the Ready Reserve for the total period of enlistment
except for the period of delay in reporting for active-duty-for-training
permitted by paragraph (d) of this section.
(iii) Deferment from induction of draft-liable enlistees based on
satisfactory service in the Reserves is governed by the Military
Selective Service Act of 1967, as supplemented by Selective Service
Regulations.
(2) Persons without prior military service who enlist in the Reserve
Forces under section 511(b) of Title 10, U.S.C. will perform such
active-duty-for-training and inactive duty training as required to
qualify them as combat ready by not later than 6 months following date
of enlistment.
(d) Delay in reporting. (1) Persons entering the Reserve Components
under section 511 (a) or (d) of Title 10, U.S.C., or section 302 of
Title 32, U.S.C. shall enter initial active-duty-for-training as
prescribed in paragraph (c) of this section, with minimum practicable
delay after enlistment. Any delay authorized shall not exceed 180 days
except as follows:
(i) Persons enlisting for positions requiring security clearance for
access to or work with classified military information or equipment may
be delayed to the extent necessary to accomplish the required
clearances.
(ii) Persons with special qualifications enlisted to fill positions
requiring highly specialized skills for which appropriate formal
training courses are offered only infrequently may be delayed to the
extent necessary to insure that the enlistee receives the training
commensurate with the requirements of the position for which enlisted.
(iii) Persons who have enlisted and who subsequently incur a personal
hardship as a result of an unexpected delay in being ordered to initial
active-duty-for-training may be delayed beyond 180 days under
regulations prescribed by the Secretary of the Military Department
concerned.
(iv) Delays for such personnel shall, in no case, exceed a period of
1 year from date of enlistment. Such delays shall not be employed for
the purpose of stockpiling personnel.
(2) Participation in Reserve training by individuals during periods
of delay will be in accordance with Part 102 of this subchapter.
(3) Persons enlisting in the Reserve Components under section 511(b)
of Title 10, U.S.C., shall be ordered to active duty or advanced school
training no later than 1 year following enlistment.
(e) Officer training programs. Persons enlisting directly in the
Reserve Components to participate in officer training programs requiring
enlisted status for eligibility therefor may be exempt from the training
and delay requirements set forth in paragraphs (c) and (d) of this
section.
(f) Reserve Officers' Training Corps. Personnel enrolled in the
financial assistance program of the senior division, ROTC, or the
advanced course of the nonscholarship program of the senior division
will not participate in a paid training status (Part 102 of this
subchapter), in any training program of a Reserve Component.
(g) Army and Air National Guard. In order to assure uniformity of
training and discipline, members of the Army National Guard of the
United States and the Air National Guard of the United States ordered to
active-duty-for-training for the purpose of basic training will be
ordered to that duty as Reserves of the Army or of the Air Force, as
appropriate.
(h) Advanced individual training. In order to assure a high level of
quality among Reserve enlisted personnel and to achieve and maintain a
high level of operational readiness of units of the Selected Reserve,
National Guard and Reserve enlistees who require advanced individual
training in specific military skills to qualify them for filling unit
assignments in the Selected Reserve will be provided such training
following completion of their basic training.
(1) The Military Departments will program and budget for advanced
individual training capabilities sufficiently to fulfill the individual
training requirements of National Guard and Reserve units on a priority
consistent with mobilization missions assigned.
(2) Personnel enlisted under subsections (a) or (d) of 10 U.S.C.
511, who have received such advanced training will be required to agree
to actively participate in the Selected Reserve for the duration of
their statutory obligation.
(35 FR 1290, Jan. 31, 1970, as amended at 35 FR 12654, Aug. 8, 1970)
32 CFR 132.4 Implementation.
In the interest of maintaining reasonable uniformity and equity among
the reserve enlistment programs of the Military Departments, proposed
changes to existing reserve enlistment programs established in
conformance with this part and programs proposed for establishment under
its provisions will be submitted to the Assistant Secretary of Defense
(Manpower and Reserve Affairs) for approval.
32 CFR 132.4 PART 138 -- BIRTH REGISTRATION OVERSEAS
Sec.
138.1 Purpose.
138.2 Policy.
138.3 Procedures.
138.4 Background information: Interdepartmental relationships
concerning foreign births and citizenship.
Authority: Sec. 3, 60 Stat. 238; 5 U.S.C. 552.
Source: 27 FR 2315, Mar. 10, 1962, unless otherwise noted.
32 CFR 138.1 Purpose.
This part describes Department of Defense policy and procedures on
birth registration of infants born to U.S. citizens in Armed Forces
medical facilities overseas.
32 CFR 138.2 Policy.
(a) Armed Forces activities overseas will cooperate with U.S.
Consular Officers in accomplishing birth registration of infants born to
U.S. citizens in military medical facilities in overseas areas.
(b) Where birth registration is required by local law in overseas
areas, military medical facilities will continue to report births to
local authorities on the forms provided for such registration in
addition to the reports required by U.S. Consular Offices.
32 CFR 138.3 Procedures.
(a) Within twenty-four (24) hours and in no event later than ten (10)
days after the birth in a military medical facility of an infant whose
parent or parents are citizens of the United States, the designated
military officer shall report the birth to the U.S. Consular Office in
whose district the medical facility is located.
(b) The designated military officer shall obtain the data required,
prepare Department of State Form FS-240, /1/ ''Report of Birth Abroad of
a Citizen of the United States of America'' (also referred to as
''Consular Report of Birth''), (''down to the solid black line
immediately preceding the heading ''American Consulate'') in triplicate,
secure the signatures required on the form, and forward the report to
the U.S. Consular Office.
(1) A citizen parent will be requested to sign each of the three
Foreign Service Forms 240 (FS-240) in the box reading ''Signature of
Parent, Physician, Nurse, or Other Person Having Knowledge of Birth''.
The citizen parent shall sign under oath before a military officer
qualified to administer oaths. After administering the oath, the
officer will complete the appropriate section of the Form headed, ''When
Reported By Mail, Use This Form''.
(2) If the mother is not a U.S. citizen, the citizen father shall be
requested to sign the FS-240, if he is available. If the father is not
available or if there is any question about his citizenship status, the
parent(s) will be requested to contact the U.S. Consular Office.
(3) In the event the mother dies or is in a very serious condition
and the father, who is a U.S. citizen, is not available, the form shall
be forwarded to the U.S. Consular Office as soon as the Medical Corps
Officer who delivered the infant signs it in attest of the delivery.
The father then will be advised by his Command that the Consular Office
will contact him if it is necessary for him to appear before a Consular
Officer.
(4) The section of Form FS-240 entitled ''When Reported in Person,
Use This Form'' is not to be completed by the military officer. This
section is completed only when the person concerned signs the form in
the presence of the Consular Officer.
(c) In every case, the designated officer will prepare and send an
original and two copies of Form FS-240 to the U.S. Consular Office, and
the parents will be advised relative to the following alternative
procedures:
(1) If the citizen parent(s) have the proper documentation entered on
Form FS-240, as will be prescribed in the implementing regulations, they
will be advised that it is not necessary to go personally to the U.S.
Consular Office.
(2) In cases where the necessary documentation is questionable or not
available in the manner prescribed in the implementing regulations, the
FS-240 shall be forwarded to the U.S. Consular Office and the parent(s)
shall be advised to visit the U.S. Consular Office and take with them
documents that establish marriage and citizenship.
(d) The U.S. Consular Office will issue to the parent a copy of the
Form FS-240, Consular Report of Birth, only upon the parent's request at
the time the birth is reported to the Consular Office and upon payment
of the fee of $1.50; however, the Certification of Birth will be issued
free of charge to the parent in every case where a Consular Report of
Birth is executed by the Consular Officer, whether or not the parent
requests the copy of the Form FS-240. Additional copies of the Consular
Report of Birth or the Certification of Birth may be obtained at any
time from the Authentication Officer, Department of State, Washington,
D.C. 20525. The fees for additional copies of either form are: $2.50
for a single copy and $1.60 for each additional copy.
/1/ Filed as part of original.
32 CFR 138.4 Background information: Interdepartmental relationships
concerning foreign births and citizenship.
(a) Births abroad of children who acquire U.S. citizenship at birth
have been recorded by U.S. Consular Offices for almost 100 years. For
the past 40 years, these births have been reported on Department of
State Form FS-240, now entitled ''Report of Birth Abroad of a Citizen of
the United States of America''. Form FS-240 is also known as or
referred to as the ''Consular Report of Birth''.
(b) In addition to its use as proof of the birth facts, Consular
Reports of Birth have always been considered as a basic citizenship
document by the U.S. Department of State and by many agencies of the
Federal and State Governments. For this reason, its form and substance
differ from the usual live birth certificate filed in the United States,
and necessitate an affidavit statement from the person reporting the
birth facts.
(c) Upon submission of the necessary evidence of the child's birth
and citizenship and completion of the Consular Report of Birth by the
U.S. Consular Officer, the parent or other person in interest will
receive a copy of the Form FS-240 if he had requested one at the time
the birth was reported and had paid the fee of $1.50. The Certification
of Birth, however, will be issued free of charge to the parent in every
case where action on the Consular Report of Birth has been completed by
the Consular Officer, whether or not the parent requested the copy of
the Consular Report of Birth. Additional copies of either form may be
obtained at any time from the Authentication Officer, Department of
State, Washington, D.C. 20525. The fees for additional copies of either
form are: $2.50 for a single copy and $1.60 for each additional copy.
The Certification of Birth is a short form record of birth, and
information therein is taken from the Consular Report of Birth. The
Certification of Birth does not replace the Consular Report of Birth in
any way. The Department of State has placed the Certification of Birth
form into use to provide persons born overseas with a birth
certification form similar to those issued by State vital registration
offices of the United States. This form will prove especially useful
for children seeking to establish birth facts for school entry, work
permits, and such other requirements. Its issuance avoids the need of
certifying any embarrassing information which may appear on the Consular
Report of Birth.
(d) The distinction between Department of State Form FS-240 and the
Certificate of Citizenship issued by the U.S. Department of Justice
Immigration and Naturalization Service is important in considering the
necessity for obtaining either document. The Certificate of Citizenship
is issued under the authority contained in section 341, Immigration and
Nationality Act. It is not mandatory that the parent apply for such a
certificate, the decision in that respect being entirely within the
discretion of the parent. When issued, the certificate has the same
effect in all courts, tribunals, and public offices of the United
States, here and abroad, of the District of Columbia, and of each State,
Territory, and outlying possession of the United States, as a
certificate of naturalization issued by a court. The certificate
includes a specific finding that the person to whom it is issued has
proved to the satisfaction of the Commissioner that (s)he is now a
citizen of the United States.
(e) A child born abroad of a U.S. citizen parent, or parents, whether
or not the birth of the child has been reported to a Consular Office on
Department of State Form FS-240, who claims U.S. citizenship through a
parent, may be issued a Certificate of Citizenship by the Immigration
and Naturalization Service, in the United States only, upon application
by the parent to that Service on its Form N-600, Application for
Certificate of Citizenship. Upon satisfactory proof that the child
acquired citizenship as claimed, and after examination of the parent or
parents in the United States by an officer of that Service, a
Certificate will be issued in the name of the child evidencing the
child's citizenship. By law, this Certificate has the same effect in
all courts, tribunals, and public offices of the United States and of
each State, Territory, or outlying possession of the United States, as a
certificate of naturalization issued by a court. The possession of such
a Certificate is not mandatory and the decision as to whether
application for a Certificate should be made is entirely optional with
the parents.
(f) In contrast, Department of State Form FS-240 is not issued
pursuant to specific statutory authority similar to section 341, nor
does the law provide that the form must be given the same effect as a
certificate of naturalization. In practice the form is not executed and
issued by the American Consul unless the child in question is considered
to be a U.S. citizen. The form itself is actually a Report of Birth of a
U.S. citizen based upon an affidavit by the parent(s) or other
interested person furnishing data upon which the Department of State,
through its Consular Officer, determines that the child acquired U.S.
citizenship at birth. The execution and issuance of the Form FS-240 is
a determination by the Department of State that the child acquired U.S.
citizenship at birth.
(g) Part 138 exceptions: Inapplicable geographic areas at present
are: American Samoa; Canal Zone; Guam; Puerto Rico; Trust
Territories; and Virgin Islands. Birth registrations occurring in
these areas are registered now through special offices of the Vital
Statistics Division, Public Health Service, Department of Health,
Education, and Welfare, or local accepted Government offices.
32 CFR 138.4 PART 142 -- COPYRIGHTED SOUND AND VIDEO RECORDINGS
Sec.
142.1 Purpose.
142.2 Applicability.
142.3 Policy.
142.4 Procedures.
142.5 Responsibilities.
Authority: 10 U.S.C. 133.
Source: 49 FR 49452, Dec. 20, 1984, unless otherwise noted.
32 CFR 142.1 Purpose.
This part provides policy, prescribes procedures, and assigned
responsibilities regarding the use of copyrighted sound and video
recordings within the Department of Defense.
32 CFR 142.2 Applicability.
(a) The provisions of this part apply to the Office of the Secretary
of Defense, the Military Departments, the Organization of the Joint
Chiefs of Staff, the Unified and Specified commands, and the Defense
Agencies (hereafter referred to collectively as ''DoD Components'').
(b) This part does not regulate the procurement or use of copyrighted
works for authorized official purposes.
32 CFR 142.3 Policy.
(a) It is DoD policy: (1) To recognize the rights to copyright
owners by establishing specific guidelines for the use of copyrighted
works by individuals within the DoD community, consistent with the
Department's unique mission and worldwide commitments, and (2) Not to
condone, facilitate, or permit unlicensed public performance or unlawful
reproduction for private or personal use of copyrighted sound or video
recordings, using government appropriated or nonappropriated-fund-owned
or leased equipment or facilities.
(b) Although the policy expressed in this Directive takes into
account the copyright law of the United States, the application of that
law to specific situations is a matter for interpretation by the U.S.
Copyright Office and the Department of Justice.
32 CFR 142.4 Procedures.
(a) Permission or licenses from copyright owners shall be obtained
for public performance of copyrighted sound and video recordings.
(b) Component procedures established pursuant to 142.5, below
provide guidance for determining whether a performance is ''public.''
These general principles will be observed:
(1) A performance in a residential facility or a physical extension
thereof is not considered a public performance.
(2) A performance in an isolated area or deployed unit is not
considered a public performance.
(3) Any performance at which admission is charged normally would be
considered a public performance.
(c) Government audio and video duplicating equipment and appropriated
funded playback equipment may not be used for reproduction of
copyrighted sound or video recordings.
32 CFR 142.5 Responsibilities.
Heads of DoD Components shall establish procedures to comply with
this Directive and shall provide necessary local guidance and legal
interpretation.
32 CFR 142.5 PART 143 -- DoD POLICY ON ORGANIZATIONS THAT SEEK TO
REPRESENT OR ORGANIZE MEMBERS OF THE ARMED FORCES IN NEGOTIATION OR
COLLECTIVE BARGAINING
Sec.
143.1 Reissuance and purpose.
143.2 Applicability and scope.
143.3 Policy.
143.4 Prohibited activity.
143.5 Activity not covered by this part.
143.6 Responsibility.
143.7 Definitions.
143.8 Guidelines.
Authority: 10 U.S.C. 801-940; and 10 U.S.C. 976.
Source: 45 FR 84055, Dec. 22, 1980, unless otherwise noted.
32 CFR 143.1 Reissuance and purpose.
This rule is reissued to reflect revisions in policies and procedures
for organizations whose objective is to organize or represent members of
the Armed Forces of the United States for purposes of negotiating or
bargaining about terms or conditions of military service. The policies
and procedures set forth herein are designed to promote the readiness of
the armed forces to defend the United States. The part does not modify
or diminish the existing authority of commanders to control access to,
or maintain good order and discipline on, military installations; nor
does it modify or diminish the obligations of commanders and supervisors
under 5 U.S.C. 7101-7135 with respect to organizations representing DoD
civilian employees.
32 CFR 143.2 Applicability and scope.
(a) The provisions of this part apply to:
(1) Department of Defense Components, which include the Office of the
Secretary of Defense, the Military Departments, the Organization of the
Joint Chiefs of Staff, the Unified and Specified Commands, and the
Defense Agencies;
(2) All military and civilian personnel of the Department of Defense;
and
(3) Individuals and groups entering, using, or seeking to enter or
use military installations.
(b) This part does not limit the application of the Uniform Code of
Military Justice Title 10 U.S.C., Sections 801-940 or 10 U.S.C. 976
including the prohibitions and criminal penalties set forth therein with
respect to matters that are the subject of this part or that are beyond
its scope.
32 CFR 143.3 Policy.
It is the policy of the United States under Public Law 95-610 that:
1. Members of the armed forces of the United States must be prepared
to fight and, if necessary, to die to protect the welfare, security, and
liberty of the United States and of their fellow citizens.
2. Discipline and prompt obedience to lawful orders of superior
officers are essential and time-honored elements of the American
military tradition and have been reinforced from the earliest articles
of war by laws and regulations prohibiting conduct detrimental to the
military chain of command and lawful military authority.
3. The processes of conventional collective bargaining and
labor-management negotiation cannot and should not be applied to the
relationships between members of the armed forces and their military and
civilian superiors.
4. Strikes, slowdowns, picketing, and other traditional forms of job
action have no place in the armed forces.
5. Unionization of the armed forces would be incompatible with the
military chain of command, would undermine the role, authority, and
position of the commander, and would impair the morale and readiness of
the armed forces.
6. The circumstances which could constitute a threat to the ability
of the armed forces to perform their mission are not comparable to the
circumstances which could constitute a threat to the ability of Federal
civilian agencies to perform their functions and should be viewed in
light of the need for effective performance of duty by each member of
the armed forces.
32 CFR 143.4 Prohibited activity.
(a) Membership and enrollment. (1) A member of the armed forces,
knowing of the activities or objectives of a particular military labor
organization, may not:
(i) Join or maintain membership in such organization; or
(ii) Attempt to enroll any other member of the armed forces as a
member of such organization.
(2) No person on a military installation, and no member of the armed
forces, may enroll in a military labor organization any member of the
armed forces or solicit or accept dues or fees for such an organization
from any member of the armed forces.
(b) Negotiation or bargaining. (1) No person on a military
installation, and no member of the armed forces, may negotiate or
bargain, or attempt through any coercive act to negotiate or bargain,
with any civilian officer or employee, or any member of the armed
forces, on behalf of members of the armed forces, concerning the terms
or conditions of service of such members.
(2) No member of the armed forces, and no civilian officer or
employee, may negotiate or bargain on behalf of the United States
concerning the terms or conditions of military service of members of the
armed forces with any person who represents or purports to represent
members of the armed forces.
(c) Strikes and other concerted activity. (1) No person on a
military installation, and no member of the armed forces, may organize
or attempt to organize, or participate in, any strike, picketing, march,
demonstration, or other similar form of concerted action involving
members of the armed forces that is directed against the Government of
the United States and that is intended to induce any civilian officer or
employee, or any member of the armed forces, to:
(i) Negotiate or bargain with any person concerning the terms or
conditions of service of any member of the armed forces,
(ii) Recognize any military labor organization as a representative of
individual members of the armed forces in connection with any complaint
or grievance of any such member arising out of the terms or conditions
of service of such member in the armed forces, or
(iii) Make any change with respect to the terms or conditions of
service in the armed forces of individual members of the armed forces.
(2) No person may use any military installation for any meeting,
march, picketing, demonstration, or other similar activity for the
purpose of engaging in any activity prohibited by this Directive.
(3) No member of the armed forces, and no civilian officer or
employee, may permit or authorize the use of any military installation
for any meeting, march, picketing demonstration, or other similar
activity which is for the purpose of engaging in any activity prohibited
by this Directive.
(d) Representation. A military labor organization may not represent,
or attempt to represent, any member of the armed forces before any
civilian officer or employee, or any member of the armed forces, in
connection with any grievance or complaint of any such member arising
out of the terms or conditions of service of such member in the armed
forces.
32 CFR 143.5 Activity not covered by this part.
(a) This part does not limit the right of any member of the armed
forces to:
(1) Join or maintain membership in any lawful organization or
association not constituting a ''military labor organization'' as
defined in 143.7.
(2) Present complaints or grievances concerning the terms or
conditions of the service of such member in the armed forces in
accordance with established military procedures;
(3) Seek or receive information or counseling from any source;
(4) Be represented by counsel in any legal or quasi-legal proceeding,
in accordance with applicable laws and regulations;
(5) Petition the Congress for redress of grievances; or
(6) Take such other administrative action to seek such administrative
or judicial relief, as is authorized by applicable law and regulations.
(b) This part does not prevent commanders or supervisors from giving
consideration to the views of any member of the armed forces presented
individually or as a result of participation on command-sponsored or
authorized advisory council, committees, or organizations.
(c) This part does not prevent any civilian employed at a military
installation from joining or being a member of an organization that
engages in representational activities with respect to terms or
conditions of civilian employment.
32 CFR 143.6 Responsibility.
(a) Heads of DoD Components shall:
(1) Ensure compliance with this part and with the guidelines
contained in enclosure 1.
(2) Establish procedures to ensure that any action initiated under
this part is reported immediately to the Head of the DoD Component
concerned.
(3) Report any action initiated under this part immediately to the
Secretary of Defense.
(b) The Assistant Secretary of Defense (Manpower, Reserve Affairs,
and Logistics) shall serve as the administrative point of contact in the
Office of the Secretary of Defense for all matters relating to this
part.
32 CFR 143.7 Definitions.
(a) Member of the Armed Forces. A member of the armed forces who is
serving on active duty, or a member of a Reserve component while
performing inactive duty training.
(b) Military labor organization. Any organization that engages in or
attempts to engage in:
(1) Negotiating or bargaining with any civilian officer or employee,
or with any member of the armed forces, on behalf of members of the
armed forces, concerning the terms or conditions of military service of
such members in the armed forces;
(2) Representing individual members of the armed forces before any
civilian officer or employee, or any member of the armed forces, in
connection with any grievance or complaint of any such member arising
out of the terms or conditions of military service of such member in the
armed forces; or
(3) Striking, picketing, marching, demonstrating, or any other
similar form of concerted action which is directed against the
Government of the United States and which is intended to induce any
civilian officer or employee, or any member of the armed forces, to:
(i) Negotiate or bargain with any person concerning the terms or
conditions of military service of any member of the armed forces,
(ii) Recognize any organization as a representative of individual
members of the armed forces in connection with complaints and grievances
of such members arising out of the terms or conditions of military
service of such members in the armed forces, or
(iii) Make any change with respect to the terms or conditions of
military service of individual members of the armed forces.
(c) Civilian officer or employee. An employee, as defined in 5
U.S.C. 2105.
(d) Military installations. Includes installations, reservations,
facilities, vessels, aircraft, and other property controlled by the
Department of Defense.
(e) Negotiation or bargaining. A process whereby a commander or
supervisor acting on behalf of the United States engages in discussions
with a member or members of the armed forces (purporting to represent
other such members), or with an individual, group, organization, or
association purporting to represent such members, for the purpose of
resolving bilaterally terms or conditions of military service.
(f) Terms or conditions of military service. Terms or conditions of
military compensation or duty including but not limited to wages, rates
of pay, duty hours, assignments, grievances, or disputes.
32 CFR 143.8 Guidelines.
The guidelines for making certain factual determinations are as
follows:
(a) In determining whether an organization is a military labor
organization, whether a person is a member of a military labor
organization, or whether such person or organization is in violation of
any provision of this Directive, the history and operation of the
organization (including its constitution and bylaws, if any) or person
in question may be evaluated, along with evidence on the conduct
constituting a prohibited act.
(b) In determining whether the commission of a prohibited act by a
person can be imputed to the organization, examples of factors that may
be considered include: the frequency of such act; the position in the
organization of persons committing the act; whether the commission of
such act was known by the leadership of the organization; whether the
commission of the act was condemned or disavowed by the leadership of
the organization.
(c) Any information about persons and organizations not affiliated
with the Department of Defense needed to make the determinations
required by this Directive shall be gathered in strict compliance with
the provisions of DoD Directive 5200.27 /1/ , ''Acquisition of
Information Concerning Persons and Organizations not Affiliated With the
Department of Defense,'' January 7, 1980, and shall not be acquired by
counterintelligence or security investigative personnel. The
Organization itself shall be considered a primary source of information.
/1/ Copies may be obtained, if needed, from the U.S. Naval
Publications and Forms Center, 5801 Tabor Avenue, Philadelphia, PA.
19120. Attention: Code 301.
32 CFR 143.8 PART 144 -- SERVICE BY MEMBERS OF THE ARMED FORCES ON
STATE AND LOCAL JURIES
Sec.
144.1 Purpose.
144.2 Applicability.
144.3 Definitions.
144.4 Policy.
144.5 Responsibilities.
144.6 Procedures.
144.7 Effective date and implementation.
Authority: 10 U.S.C. 982.
Source: 53 FR 23759, June 24, 1988, unless otherwise noted.
32 CFR 144.1 Purpose.
This part implements 10 U.S.C. 982 to establish uniform Department of
Defense policies for jury service by members of the Armed Forces on
active duty.
32 CFR 144.2 Applicability.
The provisions of this part apply to active-duty members of the Armed
Forces.
32 CFR 144.3 Definitions.
(a) Armed Forces. The Army, Navy, Air Force, Marine Corps, and the
Coast Guard when it is operating as a Service in the Navy.
(b) State. Includes the fifty United States, U.S. Territories,
District of Columbia, and the Commonwealth of Puerto Rico.
(c) Active duty. Full-time duty in the active military service of
the United States. Includes full-time training duty, annual training
duty, active duty for training, and 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.
(d) Operating forces. Those forces whose primary mission is to
participate in combat and the integral supporting elements thereof.
32 CFR 144.4 Policy.
It is DoD policy to permit members of the Armed Forces maximally to
fulfill their civic responsibilities consistent with their military
duties. For service members stationed in the United States, servicing
on a State or local jury is one such civic obligation. Service members
are exempt from jury duty, when it unreasonably would interfere with
performance of their military duties or adversely affect the readiness
of a unit, command, or activity.
32 CFR 144.5 Responsibilities.
The Secretaries of the Military Departments, or designees, in
accordance with regulations prescribed by the Secretary concerned, shall
determine whether Service members shall be exempt from jury duty. This
authority may be delegated no lower than to commanders authorized to
convene special courts-martial.
32 CFR 144.6 Procedures.
The Secretaries of the Military Departments shall publish procedures
that provide the following:
(a) When a Service member on active duty is summoned to perform State
or local jury duty, the Secretary concerned, or the official to whom
such authority has been delegated, shall decide if such jury duty would:
(1) Interfere unreasonably with the performance of the service
member's military duties.
(2) Affect adversely the readiness of the unit, command, or activity
to which the member is assigned.
(b) If such jury service would interfere with the service member's
military duties or adversely affect readiness, the service member shall
be exempted from jury duty. The decision of the Secretary concerned, or
the official to whom such authority has been delegated, shall be
conclusive.
(c) All general and flag officers, commanders and commanding
officers, officers-in-charge, and all personnel assigned to the
operating forces, in a training status, or stationed outside the United
States are exempt from serving on a State or local jury. Such jury
service necessarily would interfere with the performance of military
duties by these members and adversely affect the readiness of the unit,
command, or activity to which they are assigned.
(d) Service members who serve on State or local juries shall not be
charged leave or lose any pay or entitlements during the period of
service. All fees accrued to the member for jury service are payable to
the United States Treasury. Members are entitled to any reimbursement
from the State or local jury authority for expenses incurred in the
performance of jury duty, such as for transportation costs or parking
fees.
(e) Written notice of each exemption determination shall be provided
to the responsible State or local official who summoned an exempt member
for jury duty.
32 CFR 144.7 Effective date and implementation.
This part is effective June 13, 1988.
32 CFR 144.7 PART 145 -- COOPERATION WITH THE OFFICE OF SPECIAL COUNSEL
OF THE MERIT SYSTEMS PROTECTION BOARD
Sec.
145.1 Purpose.
145.2 Applicability and scope.
145.3 Definitions.
145.4 Policy.
145.5 Responsibilities.
145.6 Procedures.
Appendix to Part 145 -- Legal Representation
Authority: 5 U.S.C. 301; 10 U.S.C. 133.
Source: 51 FR 17178, May 9, 1986, unless otherwise noted.
32 CFR 145.1 Purpose.
This part establishes policy, assigns responsibilities, and
prescribes procedures for cooperation with the Office of Special Counsel
(OSC) of the Merit Systems Protection Board (MSPB) in fulfilling the
responsibilities of the Special Counsel under Pub. L. 95-454 and 5 CFR
1201 and 1250 to conduct investigations of alleged prohibited personnel
practices and to ensure the investigation of other allegations of
improper or illegal conduct referred to the Department of Defense by the
OSC. This part provides internal guidance to DoD officials, and does
not establish an independent basis for any person or organization to
assert a right, benefit, or privilege.
32 CFR 145.2 Applicability and scope.
(a) This part applies to the Office of the Secretary of Defense
(OSD), the Military Departments, the Office of the Joint Chiefs of Staff
(OJCS), the Inspector General, Department of Defense (IG, DoD) and the
Defense Agencies (hereafter referred to collectively ''as DoD
Components'').
(b) The provisions of this part that relate to prohibited personnel
practices do not apply to the Defense Intelligence Agency (DIA) or the
National Security Agency (NSA), as prescribed by 5 U.S.C.
2302(a)(2)(C)(ii.).
(c) This part does not restrict the IG, DoD, in coordinating
investigative efforts on individual cases with the OSC where concurrent
jurisdiction exists.
32 CFR 145.3 Definitions.
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.
Office of the Secretary of Defense (OSD). (a) The immediate offices
of the Secretary, the Deputy Secretary, the Assistant Secretaries,
Assistants to the Secretary, and other officials serving the Secretary
of Defense directly.
(b) The field activities of the Secretary of Defense.
(c) The Organization of the Joint Chiefs of Staff.
(d) The Unified and Specified Commands.
Personnel action. (a) An appointment.
(b) A promotion.
(c) An adverse action under 5 U.S.C. 7501 et seq. or other
disciplinary or corrective action.
(d) A detail, transfer, or reassignment.
(e) A reinstatement.
(f) A restoration.
(g) A reemployment.
(h) A performance evaluation under 5 U.S.C. 4301 et seq.
(i) A 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.
Prohibited personnel practice. Action taken by an employee 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 (see 5 U.S.C. 2302(b)(1).
(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 (as defined in 5 U.S.C. 3110) 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. (See whistleblower)
(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.
Whistleblower. A present or former Federal employee or applicant for
Federal employment who discloses information he or she reasonably
believes evidences:
(a) A violation of any law, rule, or regulation.
(b) Mismanagement, a gross waste of funds, or an abuse of authority.
(c) A substantial or specific danger to public health or safety.
(d) Such disclosure qualifies if it is not specifically prohibited by
statute and if such information is not specifically required by
Executive Order to be kept secret in the interest of national defense or
the conduct of foreign affairs.
(e) Where the information disclosed affects only the personal
situation of the complaintant, it is generally to be regarded as an
allegation of a prohibited personnel practice or violation of other
civil service law, rule, or regulation, and the complainant will not be
considered a whistleblower.
32 CFR 145.4 Policy.
It is DoD policy that:
(a) Civilian personnel actions taken by DoD management officials,
civilian and military, shall conform to laws and regulations
implementing established merit system principles and must be free of any
prohibited personnel practices, as described in 5 U.S.C. 2302 and 145.3
of this part.
(b) It is the responsibility of each DoD management official to take
vigorous corrective action and, when appropriate, to initiate
disciplinary measures when prohibited personnel practices occur.
(c) DoD Components shall cooperate with the Office of Special Counsel
by:
(1) Promoting merit system principles in civilian employment programs
within the Department of Defense.
(2) Investigating and reporting on allegations of improper or illegal
conduct forwarded to the Component by the OSC pursuant to 5 U.S.C.
1206(b) (2) or (3).
(3) Facilitating orderly investigation by the OSC of alleged
prohibited personnel practices and other matters assigned for
investigation to the OSC by law, such as the Freedom of Information Act
and the Hatch Act.
(d) DoD Components shall cooperate with the OSC by providing
appropriate assistance and information to its representatives during
their investigations and by furnishing to the OSC investigators copies
of releasable documents requested under the authority of the Civil
Service Reform Act of 1978, 5 CFR 1250, the Privacy Act, and Civil
Service Rule V.
(e) Close coordination between DoD and OSC personnel during an OSC
investigation is encouraged to eliminate duplication of effort, and to
avoid unnecessary delay in initiating, when appropriate, corrective or
disciplinary action. This coordination shall be conducted in full
recognition of the independent statutory basis for the OSC, as provided
in Pub. L. 95-454 and of the responsibilities of the Department of
Defense.
(f) OSC investigative requests involving classified information shall
be accorded special attention and prompt consideration under existing
administrative procedures.
(g) When OSC and a DoD Component or an employee assigned DoD counsel
are engaged in litigation, release of information shall be accomplished
pursuant to MSPB rules of discovery (5 CFR 1201, Subpart B.).
32 CFR 145.5 Responsibilities.
(a) The Secretaries of the Military Departments and the Director,
Defense Logistics Agency (DLA), shall prescribe implementing documents
to ensure that:
(1) The policies, standards, and procedures set forth in this part
are administered in a manner that encourages consistency in responding
to investigations of alleged prohibited personnel practices.
(2) Alleged illegal or improper conduct referred to a Military
Department or the DLA by the OSC or by OSD is carefully investigated.
(3) There is full cooperation with the IG, DoD, and the General
Counsel, Department of Defense (GC, DoD), including assignment of
military and civilian attorneys to represent employees suspected or
accused by the OSC of committing a prohibited personnel practice or an
otherwise illegal or improper act.
(b) The General Counsel, Department of Defense (GC, DoD) shall
provide overall legal guidance, whether by the issuance of regulations
or otherwise, on all issues concerning cooperation with the OSC. This
authority extends to:
(1) Ensuring that DoD legal counsel is assigned upon request to
represent a DoD employee suspected or accused by the OSC of committing a
prohibited personnel practice or an illegal or improper act when the act
complained of was within the scope of the employee's official
responsibilities and such representation is in the interest of the
Department of Defense; or, in unusual situations, that outside legal
counsel is engaged where the use of DoD counsel would be inappropriate,
and the same conditions are satisfied.
(2) Providing DoD legal counsel to seek intervention for the purpose
of representing the interests of OSD or a Defense agency (other than the
DLA) in an MSPB hearing resulting from charges of misconduct against an
employee of OSD or a Defense agency, under the authority of the Civil
Service Reform Act of 1978.
(3) Seeking the assistance of the Department of Justice in responding
to requests by employees for legal representation in obtaining judicial
review of an order by the MSPB, under 5 U.S.C. 1207.
(4) Modifying 145.3 and Appendix to this part and issuing
supplementary instructions concerning all aspects of DoD cooperation
with the OSC, including instructions on OSC investigations of allegedly
arbitrary and capricious withholding of information under the Freedom of
Information Act or violations of the Hatch Act.
(5) Reviewing for adequacy and legal sufficiency with the IG, DoD,
each report of an investigation that must be personally reviewed by the
Secretary or Deputy Secretary of Defense on action taken or to be taken
in response to an OSC finding of reasonable cause to believe there has
been a violation of law, rule, or regulation, not including a prohibited
personnel practice or allegation referred to the Attorney General of the
United States for appropriate action.
(c) The Inspector General, Department of Defense (IG, DoD) shall:
(1) Investigate, or cause to be investigated, as appropriate, any
complaint referred to the Department of Defense by OSC.
(2) Coordinate, where feasible, investigative efforts by DoD
Components and the OSC, with particular emphasis on those conducted or
initiated by action of the OSC.
(3) Submit the results of any investigation conducted under this part
to the appropriate General Counsel.
(d) The Deputy Assistant Secretary of Defense (Administration)
(DASD(A)) shall serve as the Senior Management Official, as described in
145.6(b) concerning allegations by the OSC of prohibited personnel
practices or other illegal or improper acts in the OSD.
(e) The General Counsels of the Military Departments and the General
Counsel of the Defense Logistics Agency shall have the same authority
for their respective Components as given to the General Counsel, DoD,
under paragraphs (b) (1) and (2) of this section.
32 CFR 145.6 Procedures.
(a) Allegations of improper or illegal conduct received from the OSC
under 5 U.S.C. 1206(b)(2), (3), or (c)(3). (1) Allegations of improper
or illegal conduct referred by the OSC to the Secretary of Defense or to
a Defense agency (other than the DLA) shall be forwarded to the IG, DoD.
(2) Allegations of improper or illegal conduct referred to a Military
Department or to the DLA by the OSC shall be forwarded to the General
Counsel of that Component.
(3) Upon receipt of a referral under paragraph (a) (1) or (2) of this
section IG, DoD, or the GC of the Component concerned, as appropriate,
shall ensure compliance with the Civil Service Reform Act of 1978 by
obtaining a suitable investigation of an allegation, including
compliance with time limits for reporting results of the investigation
and personal review of the report by the head of the Component when
required.
(4) Copies of each allegation referred under paragraph (a)(2) shall
be forwarded by the General Counsel concerned to the IG, DoD.
(b) OSC Investigations of Prohibited Personnel Practices. (1) The
head of each DoD Component shall designate a Senior Management Official
to:
(i) Serve as a point of contact in providing assistance to the OSC in
conducting investigations of alleged prohibited activities before any
designation of an attorney of record for the Component or individual
respondent for matters in litigation.
(ii) Monitor those investigations.
(iii) Ensure that appropriate Component personnel are fully apprised
of the nature and basis for an OSC investigation, as well as the rights
and duties of Component personnel in regard to such investigations.
(iv) Ensure that any corrective or disciplinary action considered
appropriate because of facts disclosed by such an investigation is
accomplished under paragraph (b)(2), in a timely manner.
(2) The designated Senior Management Official shall have authority
to:
(i) Refer to responsible officials recommendations by the OSC for
corrective action.
(ii) Seek OSC approval of proposed disciplinary action against an
employee for an alleged prohibited personnel practice or illegal or
improper act under investigation by the OSC when it is determined that
such discipline is warranted.
(iii) Ensure that disciplinary action against an employee adjudged at
fault following completion of an OSC investigation has been considered
to avoid the need for a proceeding before the MSPB.
(iv) Ensure that information concerning members of the Armed Forces
who are found by the Component to have committed a prohibited personnel
practice or other violation of this Directive in the exercise of
authority over civilian personnel is referred to appropriate military
authority.
(3) The Senior Management Official shall:
(i) Establish a system under which an employee is identified to serve
as the Liaison Officer for any OSC investigator who may initiate an
investigation at a facility, base, or installation for which the
employee is assigned liaison duties. It shall be the responsibility of
the Liaison Officer to:
(A) Assist the OSC investigator.
(B) Ensure that all OSC requests for documents are in writing.
(C) Process such requests, as well as all requests for interviews.
(ii) Determine, to the extent practicable, whether an investigation
is being, or has been, conducted that replicates in whole or in part the
proposed or incomplete investigation by the OSC, and convey that
information to the OSC whenever this might avoid redundant investigative
effort.
(iii) Inform the General Counsel of the Component concerned of any
OSC investigation and consult with the General Counsel on any legal
issue related to an OSC investigation.
(iv) Ensure that Component personnel involved are given timely legal
and policy advice, through arrangements effected by the Liaison Officer,
on the nature and basis for an OSC investigation, the authority of the
OSC, and the rights and duties of Component personnel, including those
set forth in Appendix.
(v) Inform the IG, DoD, of any OSC investigation of an alleged
prohibited personnel practice that is identified as having resulted from
a whistleblower complaint or involves an allegation of otherwise illegal
or improper conduct.
32 CFR 145.6 Pt. 145, App.
32 CFR 145.6 Appendix to Part 145 -- Legal Representation
1. An employee or member of the Armed Forces asked to provide
information (testimonial or documentary) to the OSC in the course of an
investigation by that office may obtain legal advice from DoD attorneys,
both civilian and military, on that employee's or members's rights and
obligations. This includes assistance at any interviews with OSC
investigators. However, the attorney-client relationship shall not be
established unless the employee is suspected or accused by the OSC of
committing a prohibited personnel practice or other illegal or improper
act and has been assigned DoD counsel.
2. An employee who believes that he or she is suspected or has been
accused by the OSC of committing a prohibited personnel practice or
other illegal or improper act may obtain legal representation from the
Department of Defense under the conditions prescribed in 145(b)(1) of
this part, except as provided in section 7, below. The attorney
assigned shall be a military member or employee from another Component
whenever an attorney from the same Component is likely to face a
conflict between his or her ethical obligation to the employee client
and to the Component employer, and in any case where the suspected or
accused employee has requested representation from another Component.
Outside legal counsel may be retained by the Component on behalf of the
employee only under unusual circumstances and only with the personal
approval of the General Counsel of the Department of Defense.
3. The General Counsel responsible for authorizing representation
shall determine whether a conflict is liable to occur if an attorney
from the same Component is assigned to represent the employee and, in
that case or in a case in which the suspected or accused employee has
requested representation from another Component, shall seek the
assistance of another General Counsel in obtaining representation from
outside the Component. The General Counsels of the Military Departments
and the DLA shall ensure the availability of appropriately trained
counsel for assignment to such cases.
4. To obtain legal representation the employee:
a. Must request legal representation, in writing, together with all
process and pleadings served, and explain the circumstances that justify
DoD legal assistance.
b. Indicate whether he or she has retained legal counsel from outside
the Department of Defense.
c. Obtain a written certification from his or her supervisor that the
employee was acting within the scope of his of her official duties, and
that no adverse or disciplinary personnel action against the employee
for the conduct being investigated by the OSC has been initiated by the
Component.
5. Employee requests for legal representation must be approved by the
General Counsel, DoD, for employees of OSD or a Defense Agency (other
than the DLA), or by the General Counsel of a Military Department or the
General Counsel of the DLA for employees of those Components.
6. The conditions of legal representation must be explained to the
accused employee in writing and accepted in writing by that employee.
7. DoD resources may not be used to provide legal representation for
an employee with respect to a DoD disciplinary action against the
employee for committing or participating in a prohibited personnel
practice or for engaging in illegal or improper conduct, regardless of
whether that participation or conduct is also the basis for disciplinary
action proposed by the OSC.
8. After approval of an employee's request, under section 4, above, a
DoD attorney shall be assigned (or, in unusual circumstances, outside
counsel retained) as the employee's representative in matters pending
before the OSC or MSPB. This approval may be limited to representing
the employee 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 of his Directive.
9. An attorney-client relationship shall be established and continued
between the suspected or accused employee and assigned DoD counsel.
10. In representing a DoD employee under this part, a DoD attorney
designated counsel for the employee shall act as a vigorous advocate of
the employee's individual legal interests before the OSC or MSPB; the
attorney's professional responsibility to the Department of Defense and
his or her employing Component will be satisfied by fulfilling this
responsibility to the employee. Legal representation may be terminated
only with the approval of the General Counsel who authorized
representation, and normally only on the basis of information not
available at the time the attorney was assigned.
11. The attorney-client relationship may be terminated if the
assigned DoD counsel for the employee determines, with the approval of
the General Counsel who authorizes representation, that:
a. The 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.
b. Termination of the professional representation is not in violation
of the rules of professional conduct applicable to the assigned counsel.
12. The DoD attorney designated counsel may request relief from the
duties of representation or counseling without being required to furnish
explanatory information that might compromise the assurance to the
client of confidentiality.
13. This part authorizes cognizant DoD officials to approve a
represented employee's request for travel, per diem, witness
appearances, or other departmental support necessary to ensure effective
legal representation of the employee by the designated counsel.
14. An employee's participation in OSC investigations, MSPB hearings,
and other related proceedings shall be considered official departmental
business for time and attendance requirements and similar purposes.
15. The following advice to employees questioned during the course of
an OSC investigation may be appropriate in response to the most frequent
inquiries:
a. An employee 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 questions.
b. Requests for clarification of both questions and answers are
appropriate to avoid misinterpretation.
c. Means to ensure verification of an interview by OSC investigators
are appropriate, whether the employee is or is not accompanied by a
legal representative. 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 interrogator agrees to the tape recording of the
proceeding.
d. Any errors that appear in a written summary of an interview
prepared by the interviewer should be corrected before the employee
signs the statement. The employee is not required to sign any written
summary that is not completely accurate. An employee may make a copy of
the summary for his or her own use as a condition of signing.
32 CFR 145.6 PART 146 -- COMPLIANCE OF DOD MEMBERS, EMPLOYEES, AND
FAMILY MEMBERS OUTSIDE THE UNITED STATES WITH COURT ORDERS
Sec.
146.1 Purpose.
146.2 Applicability.
146.3 Definitions.
146.4 Policy.
146.5 Responsibilities.
146.6 Procedures.
Authority: 5 U.S.C. 301; 10 U.S.C. 113; 10 U.S.C. 814; Pub. L.
100-456 Section 721.
Source: 54 FR 298, Jan. 5, 1989, unless otherwise noted.
32 CFR 146.1 Purpose.
This part:
(a) Implements section 721 of Pub. L. 100-456.
(b) Establishes policy and procedures for the return to the United
States of, or other action affecting, DoD members and employees serving
outside the United States, and family members accompanying them.
(c) Prescribes procedures for treating such individuals who have been
charged with, or convicted of, a felony in a court, have been held in
contempt of a court for failure to obey the court's order, or have been
ordered to show cause by a court why they should not be held in contempt
for failing to obey the court's order.
32 CFR 146.2 Applicability.
This Part applies to the Office of the Secretary of Defense (OSD),
the Military Departments, the Joint Chiefs of Staff (JCS), the Joint
Staff, the Unified and Specified Commands, the Inspector General of the
Department of Defense (IG, DoD), the Uniformed Services University of
the Health Sciences (USUHS), the Defense Agencies, and the DoD Field
Activities (hereafter referred to collectively as ''DoD Components'').
32 CFR 146.3 Definitions.
Court. Any judicial body in the United States with jurisdiction to
impose criminal sanctions on a DoD member, employee, or family member.
DoD Employee. A civilian employed by a DoD Component, including an
individual paid from nonappropriated funds, who is a citizen or national
of the United States.
DoD Member. An individual who is a member of the Armed Forces on
active duty and is under the jurisdiction of the Secretary of a Military
Department, regardless whether that individual is assigned to duty
outside that Military Department.
Felony. A criminal offense that is punishable by incarceration for
more than 1 year, regardless of the sentence that is imposed for
commission of that offense.
United States. The 50 States, the District of Columbia, Puerto Rico,
Guam, the Northern Mariana Islands, American Samoa, and the Virgin
Islands.
32 CFR 146.4 Policy.
It is DoD policy that:
(a) With due regard for mission requirements, the provisions of
applicable international agreements, and ongoing DoD investigations and
courts-martial, the Department of Defense shall cooperate with courts
and State and local officials in enforcing court orders relating to DoD
members and employees stationed outside the United States, as well as
their family members who accompany them, who have been charged with, or
convicted of, a felony in a court, have been held in contempt by a court
for failure to obey the court's order, or have been ordered to show
cause why they should not be held in contempt for failing to obey the
court's order.
(b) This Part does not affect the authority of DoD Components to
cooperate with courts and State and local officials in enforcing orders
against DoD members and employees outside the United States on matters
not listed in paragraph (a) of this section.
(c) This Part does not create any rights or remedies and may not be
relied on by any person, organization, or other entity to allege a
denial of such rights or remedies.
32 CFR 146.5 Responsibilities.
(a) The General Counsel of the Department of Defense (GC, DoD) shall:
(1) Issue Instructions and other guidance, as necessary, to implement
this Part.
(2) Review and approve the implementing documents issued by DoD
Components under this Part.
(3) Coordinate on requests for exception to the requirements of this
Part under 146.5(b).
(b) The Assistant Secretary of Defense (Force Management and
Personnel (ASD(FM&P)), with the concurrence of the GC, DoD, shall grant
exceptions on a case-by-case basis to the requirements of 146.6. In
exercising this authority, the ASD(FM&P), on request by the DoD
Component concerned, shall give due consideration to the pertinent
mission requirements, readiness, discipline, and ongoing DoD
investigations and courts-martial.
(c) The Heads of DoD Components shall:
(1) Comply with this Part.
(2) Issue Regulations implementing this Part.
(3) Report promptly to the ASD(FM&P) and GC, DoD, any action taken
under paragraphs (a) (1) and (2) of 146.6.
32 CFR 146.6 Procedures.
(a) On receipt of a request for assistance from a court, or a
Federal, State, or local official concerning a court order described in
146.4(a), the Head of the DoD Component concerned, or designee, shall
determine whether the request is based on an order issued by a court of
competent jurisdiction. Attempts shall be made to resolve the matter to
the satisfaction of the court without the return of, or other action
affecting, the member, employee, or family member (subject). Before
action is taken under this section, the subject shall be afforded the
opportunity to provide evidence of legal efforts to resist the court
order, or otherwise show legitimate cause for noncompliance. If the
Head of the DoD Component concerned determines that such efforts warrant
a delay in taking action under this section, the DoD Component Head may
grant a brief delay (not more than 90 days). All delays promptly shall
be reported to the ASD(FM&P) and to the GC, DoD.
(1) If the request pertains to a felony or to contempt involving the
unlawful or contemptuous removal of a child from the jurisdiction of a
court or the custody of a parent or another person awarded custody by
court order, and the matter cannot be resolved with the court without
the return of the subject to the United States, the Head of the DoD
Component, or designee, promptly shall take the action prescribed in
paragraphs (b) through (d) of this section, unless the ASD(FM&P), or
designee, grants an exception.
(2) If the request does not pertain to a felony or contempt involving
the unlawful or contemptuous removal of a child from the jurisdiction of
the court or the custody of a parent or another person awarded custody
by court order, and if the matter cannot be resolved with the court
without the return of the subject to the United States, the Head of the
DoD Component, or designee, promptly shall take the action prescribed in
paragraphs (b) through (d) of this section, when deemed appropriate with
the facts and circumstances of each particular case, following
consultation with legal staff.
(b) If a DoD member is the subject of the request, the member shall
be ordered, under 10 U.S.C. 814, to return expeditiously to an
appropriate port of entry at Government expense, contingent on the party
requesting return of the member providing for transportation, and
escort, if desired, of the member from such port of entry to the
jurisdiction of the party. The party requesting return of the member
shall be notified at least 10 days before the member's return to the
selected port of entry, absent unusual circumstances.
(c) If a DoD employee is the subject of the request concerning the
court order, the employee strongly shall be encouraged to comply with
the court order. Failure to respond to the court order may be a basis
for withdrawal of command sponsorship and may be the basis for adverse
action against the DoD employee, to include removal from the Federal
Service. Proposals to take such adverse action must be approved by the
Head of the DoD Component concerned, or designee. Such proposals shall
be coordinated with the cognizant civilian personnel office and legal
counsel.
(d) If the family member of a DoD member or employee is the subject
of a request concerning the court order, the family member strongly
shall be encouraged to comply with the court order. Failure to respond
to the court order may be a basis for withdrawing the command
sponsorship of the family member.
(54 FR 298, Jan. 5, 1989, as amended at 55 FR 34555, Aug. 23, 1990)
32 CFR 146.6 SUBCHAPTER D -- REGULATIONS PERTAINING TO MILITARY JUSTICE
32 CFR 146.6 PART 150 -- COURTS OF MILITARY REVIEW RULES OF PRACTICE
AND PROCEDURE
Sec.
150.1 Name and seal.
150.2 Jurisdiction.
150.3 Scope of review.
150.4 Quorum.
150.5 Place for filing papers.
150.6 Signing of papers.
150.7 Computation of time.
150.8 Qualification of counsel.
150.9 Conduct of counsel.
150.10 Request for appellate defense counsel.
150.11 Assignment of counsel.
150.12 Retention of civilian counsel.
150.13 Notice of appearance of counsel.
150.14 Waiver or withdrawal of appellate review.
150.15 Assignments of error and briefs.
150.16 Oral arguments.
150.17 En banc proceedings.
150.18 Orders and decisions of the court.
150.19 Reconsideration.
150.20 Petitions for extraordinary relief, answer, and reply.
150.21 Appeals by the United States.
150.22 Petitions for new trial.
150.23 Motions.
150.24 Continuances and interlocutory matters.
150.25 Suspension of rules.
150.26 Internal rules.
150.27 Recording, photographing, broadcasting, or telecasting of
hearings.
150.28 Format for direction for review.
150.29 Format for assignment of errors and brief on behalf of
accused.
Authority: Sec. 866, 70A Stat 69; 10 U.S.C. 866.
Source: 51 FR 42557, Nov. 25, 1986, unless otherwise noted.
Note: This regulation appears in the following DoD Joint
Publications: AFR III-4; AR 27-13; NAVSO P-2319; CGM 5800.5B, 1
March 1985.
32 CFR 150.1 Name and seal.
(a) The titles of the Courts of Military Review of the respective
services are:
(1) U.S. Army Court of Military Review.
(2) U.S. Navy-Marine Court of Military Review.
(3) U.S. Air Force Court of Military Review.
(4) U.S. Coast Guard Court of Military Review.
(b) Each Court is authorized a seal in the discretion of the Judge
Advocate General concerned. The design of such seal shall include the
title of the Court.
32 CFR 150.2 Jurisdiction.
(a) The jurisdiction of the Court is as follows:
(1) Review under Article 66. All cases of trial by court-martial in
which the sentence as approved extends to:
(i) Death; or
(ii) Dismissal of a commissioned officer, cadet or midshipman,
dishonorable or bad conduct discharge, or confinement for one year or
longer; and the accused has not waived or withdrawn appellate review.
(2) Review upon direction of the Judge Advocate General under Article
69. All cases of trial by general court-martial in which there has been
a finding of guilty and a sentence
(i) For which Article 66 does not otherwise provide appellate review,
and
(ii) Which the Judge Advocate General forwards to the Court for
review, and
(iii) In which the accused has not waived or withdrawn appellate
review.
(3) Review under Article 62. All cases of trial by court-martial in
which a punitive discharge may be adjudged and a military judge
presides, and in which the Government appeals an order or ruling of the
military judge that terminates the proceedings with respect to a charge
or specification or excludes evidence that is substantial proof of a
fact material to the proceedings.
(4) Review under Article 73. All petitions for a new trial in cases
of trial by court-martial which are referred to the Court by the Judge
Advocate General.
(b) Extraordinary writs. The Court may, in its discretion, entertain
petitions for extraordinary relief including, but not limited to, writs
of mandamus, writs or prohibition, writs of habeas corpus, and writs or
error coram nobis.
(c) Effect of sections on jurisdiction. Nothing in these sections
shall be construed to extend or limit the jurisdiction of the Court of
Military Review as established by law.
32 CFR 150.3 Scope of review.
In cases referred to it for review pursuant to Article 66, the Court
may act only with respect to the findings and sentence as approved by
the convening authority. In determining an appeal under Article 62, the
Court may act only with respect to matters of law. The Court may, in
addition, review such other matters and take such other action as it
determines to be proper under substantive law.
32 CFR 150.4 Quorum.
(a) In panel. When sitting in panel, a majority of the judges
assigned to that panel constitutes a quorum for the purpose of hearing
or determining any matter referred to the panel. The determination of
any matter referred to the panel shall be according to the opinion of a
majority of the judges participating in the decision. However, any
judge present for duty may issue all necessary orders concerning any
proceedings pending on panel and any judge present for duty, or a Clerk
of Court or Commissioner or whom the Court has delegated authority, may
act on uncontested motions, provided such action does not finally
dispose of a petition, appeal, or case before the Court.
(b) En banc. When sitting as a whole, a majority of the judges of
the Court constitutes a quorum for a purpose of hearing and determining
any matter before the Court. The determination of any matter before the
Court shall be according to the opinion of a majority of the judges
participating in the decision. In the absence of a quorum, any judge
present for duty may issue all necessary orders concerning any
proceedings pending in the Court preparatory to hearing or decision
thereof.
32 CFR 150.5 Place for filing papers.
When the filing of a notice of appearance, brief, or other paper in
the office of a Judge Advocate General is required by these rules, such
papers shall be filed in the office of the Judge Advocate General of the
appropriate armed force. If transmitted by mail or other means, they
are not filed until received in such office.
32 CFR 150.6 Signing of papers.
All formal papers shall be signed and shall show, typewritten or
printed, the signer's name, address, military grade (if any), and the
capacity in which the paper is signed. Such signature constitutes a
certification that the statements made therein are true and correct to
the best of the knowledge, information, and belief of the person signing
the paper and that the paper is filed in good faith and not for purposes
of unnecessary delay.
32 CFR 150.7 Computation of time.
In computing any period of time prescribed or allowed by these rules,
by order of the Court, or by any applicable statute, the day of the act,
event or default after which the designated period of time begins to run
is not to be included. The last day of the period so computed is to be
included, unless it is a Saturday, Sunday, or legal holiday, in which
event the period runs until the end of the next day which is neither a
Saturday, Sunday, nor a holiday. When the period of time prescribed or
allowed is less than 7 days, intermediate Saturdays, Sundays, and
holidays shall be excluded in the computation.
32 CFR 150.8 Qualification of counsel.
(a) All counsel. Counsel in any case before the Court shall be a
member in good standing of the bar of a Federal Court, the highest court
of a State or another recognized bar.
(b) Military counsel. Assigned appellate defense and appellate
government counsel shall, in addition, be qualified in accordance with
Articles 27(B)(1) and 70(a), Uniform Code of Military Justice.
(c) Admission. Each Court may license counsel to appear before it.
Otherwise, upon entering an appearance, counsel shall be deemed admitted
pro hac vice, subject to filing a certificate setting forth required
qualifications if directed by the Court.
(d) Suspension. No counsel may appear in any proceeding before the
Court while suspended from practice by the Judge Advocate General of the
service concerned.
32 CFR 150.9 Conduct of counsel.
The conduct of counsel appearing before the Court shall be in
accordance with rules of conduct prescribed pursuant to Rule for
Courts-Martial 109 by the Judge Advocate General of the service
concerned. In addition, the Court may exercise its inherent power to
regulate counsel appearing before it, including the power to remove on
an ad hoc basis counsel misbehaving before or in relation to their
appearance before the Court. Conduct deemed by the Court to warrant
consideration of suspension or other professional discipline shall be
reported by the Court to the Judge Advocate General concerned.
32 CFR 150.10 Request for appellate defense counsel.
An accused may be represented before the court by appellate counsel
detailed pursuant to Article 70(a) or by civilian counsel provided by
the accused, or both. An accused who does not waive appellate review
pursuant to Rule for Courts-Martial 1110 shall, within 10 days after
service of a copy of the convening authority's action under Rule for
Courts-Martial 1107(h), forward to the convening authority or the Judge
Advocate General.
(a) A request for represenation by military appellate defense
counsel, or
(b) Notice that civilian counsel has been retained or that action has
been taken to retain civilian counsel (must include name and address of
civilian counsel) or,
(c) Both a request for representation by military appellate defense
counsel under Rule 10(a) and notice regarding civilian counsel under
Rule 10(b), or
(d) A waiver of representation by counsel.
32 CFR 150.11 Assignment of counsel.
(a) When a record of trial is referred to the Court,
(1) If the accused has requested representation by appellate defense
counsel, pursuant to Article 70(c)(1), counsel detailed pursuant to
article 70(a) will be assigned to represent the accused;
(2) If the accused gives notice that he or she has retained or has
taken action to retain civilian counsel, appellate defense counsel shall
be assigned to represent the interests of the accused pending appearance
of civilian counsel. Assigned defense counsel will continue to assist
after appearance by civilian counsel unless excused by the accused;
(3) If the accused has neither requested appellate counsel nor given
notice of action to retain civilian counsel, but has not waived
representation by counsel, appellate defense counsel will be assigned to
represent the accused, subject to excusal by the accused or by direction
of the Court.
(b) In any case:
(1) The Court may request counsel when counsel have not been
assigned;
(2) Pursuant to Article 70(c)(2), appellate defense counsel will
represent the accused when the United States is represented by counsel
before the Court.
32 CFR 150.12 Retention of civilian counsel.
When civilian counsel represents an accused before the Court, the
Court will notify counsel when the record of trial is received. If both
civilian and assigned appellate defense counsel represent the accused,
the Court will regard civilian counsel as primary counsel unless
notified otherwise. Ordinarily, civilian counsel will use the accused's
copy of the record. Civilian counsel may reproduce, at no expense to
the Government, appellate defense counsel's copy of the record.
32 CFR 150.13 Notice of appearance of counsel.
Military and civilian appellate counsel shall file a written notice
of appearance with the Court. The filing of any pleading relative to a
case which contains the signature of counsel constitutes notice of
appearance of such counsel.
32 CFR 150.14 Waiver or withdrawal of appellate review.
Withdrawals from appellate review, and waivers of appellate review
filed after expiration of the period prescribed by Rule for
Courts-Martial 1110(f)(1), will be referred to the Court for
consideration. At its discretion, the Court may require the filing of a
motion for withdrawal, issue a show cause order, or grant the withdrawal
without further action, as may be appropriate. The Court will return
the record of trial, in a case withdrawn from appellate review, to the
Judge Advocate General for action pursuant to Rule for Courts-Martial
1112.
32 CFR 150.15 Assignment of error and briefs.
(a) General provisions. Appellate counsel for the accused may file
an assignment of error if any are to be alleged, setting forth
separately each error asserted. The assignment of errors should be
included in a brief for the accused ( 150.29). An original of all
assignments of error and briefs, and as many additional copies as shall
be prescribed by each service, shall be submitted. Briefs and
assignments of errors shall be typewritten, double-spaced on white
paper, and securely fastened at the top. All references to matters
contained in the record shall show record page numbers and any exhibit
designations. A brief on behalf of the government shall be of like
character as that prescribed for the accused.
(b) Number of briefs. Appellate counsel shall be limited to the
filing of one brief for each side unless the Court otherwise permits or
directs.
(c) Time for filing. Any brief for an accused shall be filed within
30 days after appellate counsel has been notified of the receipt of the
record in the Office of the Judge Advocate General. If the Judge
Advocate General has directed appellate government counsel to represent
the United States, such counsel shall file an answer on behalf of the
government within 30 days after any brief and assignment of errors has
been filed on behalf of an accused. If no brief is filed on behalf of
an accused, a brief on behalf of the government may be filed within 30
days after expiration of the time allowed for the filing of a brief on
behalf of the accused.
32 CFR 150.16 Oral arguments.
Oral arguments may be heard in the discretion of the Court upon
motion by either party or when otherwise ordered by the Court. The
motion of a party for oral argument shall be made when that party's
pleading is filed or within 5 days after the filing of any response
thereto permitted under these rules.
32 CFR 150.17 En banc proceedings.
(a) A majority of the judges present for duty may order that any
appeal or other proceeding be considered or reconsidered, except as
indicated in paragraph (c), by the Court sitting as a whole. Such
consideration or reconsideration ordinarily will not be ordered except:
(1) When consideration by the full Court is necessary to secure or
maintain uniformity of decision, or
(2) When the proceedings involve a question of exceptional
importance, or
(3) When a sentence being reviewed pursuant to Article 66 extends to
death.
(b) A party may suggest the appropriateness of consideration or
reconsideration by the Court as a whole. If a party desires to suggest
in cases being reviewed pursuant to Article 66, that a matter be
considered initially by the Court as a whole, the suggestion must be
filed with the Court within 5 days after the government files its answer
to the assignment of errors, or the accused files a reply if permitted
to do so under 150.15(b). In other proceedings the suggestion must be
filed with the party's initial petition or other initial pleading, or
within 5 days after the response thereto is filed. A suggestion for
reconsideration by the Court as a whole must be made within the time
prescribed by 150.19 for filing a motion for reconsideration. No
response to the suggestion may be filed unless the Court shall so order.
(c) The suggestion of a party for consideration or reconsideration by
the Court as a whole shall be transmitted to each judge of the Court who
is present for duty, but a vote need not be taken to determine whether
the cause shall be considered or reconsidered by the Court as a whole
unless a judge requests a vote on such a suggestion made by a party. En
banc reconsideration of an en banc decision will not be held unless one
member of the original majority concurs in a vote for reconsideration.
32 CFR 150.18 Orders and decisions of the court.
The Court shall give notice of its orders and decisions pursuant to
Rule for Courts-Martial 1203. The Court shall immediately serve such
orders or decisions, when rendered, on appellate defense counsel,
government counsel and The Judge Advocate General, or designee, as
appropriate.
32 CFR 150.19 Reconsideration.
(a) The Court may, in its discretion and on its own motion, enter an
order to reconsider its decision in any case not later than 30 days
after service of such decision on the accused's appellate defense
counsel or on the accused, if the accused is not represented by
appellate counsel, provided a petition for grant of review or
certificate for review has not been filed with the U.S. Court of
Military Appeals, or a record of trial for review under Article 67(b)
has not been received by that Court. Copies of such order will be
served on appellate defense counsel and appellate government counsel.
No briefs or arguments shall be received unless the order so directs.
(b) Provided a petition for grant of review or certificate for review
has not been filed with the U.S. Court of Military Appeals, or a record
of trial for review under Article 67(b) has not been received by the
United States Court of Military Appeals, the Court may, in its
discretion, reconsider its decision in any case upon motion filed
either:
(1) By appellate defense counsel within 20 days after receipt by
counsel, or by the accused if the accused is not represented by counsel,
of a decision or order, or
(2) By appellate government counsel within 20 days after the decision
or order is received by counsel.
(c) A motion for reconsideration shall briefly and directly state the
grounds for reconsideration, including a statement of facts showing
jurisdiction in the Court. A reply to the motion for reconsideration
will be received by the Court only if filed within 5 days of receipt of
a copy of the motion. Oral arguments shall not be heard on a motion for
reconsideration unless ordered by the Court. The original of the motion
filed with the Court shall indicate the date of receipt of a copy of the
same by opposing counsel.
(d) The time limitations prescribed by this rule shall not be
extended under the authority of 150.24 or 150.25 beyond the expiration
of the time for filing a petition for review by the U.S. Court of
Military Appeals, except that the time for filing briefs by either party
may be extended for good cause.
32 CFR 150.20 Petitions for extraordinary relief, answer, and reply.
(a) Petition for extraordinary relief. A petition for extraordinary
relief in the number of copies required by the Court shall be
accompanied by proof of service on each party respondent and will
contain:
(1) A previous history of the case including whether prior actions
have been filed or are pending for the same relief in this or any other
court and the disposition or status of such actions;
(2) A concise and objective statement of all facts relevant to the
issue presented and of any pertinent opinion, order or ruling;
(3) A copy of any pertinent parts of the record and all exhibits
related to the petition if reasonably available and transmittable at or
near the time the petition if filed;
(4) A statement of the issue;
(5) The specific relief sought;
(6) Reasons for granting the writ;
(7) The jurisdictional basis for relief sought and the reasons why
the relief sought cannot be obtained during the ordinary course of
appellate review;
(8) If desired, a request for appointment of appellate counsel.
(b) Format. The title of the petition shall include the name,
military grade and service number of each named party and, where
appropriate, the official military or civilian title of any named party
acting in an official capacity as an officer or agent of the United
States. When an accused has not been named as a party, the accused
shall be identified by name, military grade and service number by the
petitioner and shall be designated as the real party in interest.
(c) Electronic message petitions. The Court will docket petitions
for extraordinary relief submitted by means of an electronic message.
The message will conclude with the full name and address of petitioner's
counsel, if any, and will state when the written petition and brief,
when required, were placed in the mail addressed to the Court and to all
named respondents.
(d) Notice to the Judge Advocate General. Immediately upon receipt
of any petition, the Clerk shall forward a copy of the petition to the
appropriate Judge Advocate General or designee.
(e) Briefs. Each petition for extraordinary relief must be
accompanied by a brief in support of the petition unless it is filed in
propria persona. The Court may issue a show cause order in which event
the respondent shall file an answer within 10 days of the receipt of the
show cause order. The petitioner may file a reply to the answer within
5 days of receipt of the answer.
(f) Initial actions by the Court. The Court may dismiss or deny the
petition, order the respondent to show cause and file an answer within
the time specified, or take whatever other action it deems appropriate.
(g) Oral argument and final action. The Court may set the matter for
oral argument. However, on the basis of the pleadings alone, the Court
may grant or deny the relief sought or make such other order in the case
as the circumstances may require. This includes referring the matter to
a special master, who need not be a military judge, to further
investigate; to take evidence; and to make such recommendations as the
Court deems appropriate.
32 CFR 150.21 Appeals by the United States.
(a) Restricted filing. Only a representative of the government
designated by the Judge Advocate General of the respective service may
file an appeal by the United States under Article 62.
(b) Counsel. Counsel must be qualified and appointed, and give
notice of appearance in accordance with these rules and those of the
Judge Advocate General concerned.
(c) Form of appeal. The appeal must include those documents
specified by Rule for Courts-Martial 908 and by applicable regulations
of the Secretary concerned. A certificate of the Notice of Appeal
described in Rule for Courts-Martial 908(b)(3) must be included. The
certificate of service must reflect the date and time of the military
judge's ruling or order from which the appeal is taken, and the time and
date of service upon the military judge.
(d) Time for filing. All procedural Rules of the Court shall apply
except as noted herein:
(1) The representative of the Government designated by the Judge
Advocate General shall decide whether to file the appeal with the Court
of Military Review. The trial counsel shall have 20 days from the date
written notice is filed with the trial Court to forward the appeal,
including an original and three copies of the record of trial, to the
representative of the Government designated by the Judge Advocate
General. The person designated by the Judge Advocate General shall
promptly file the original record with the Clerk of the Court of
Military Review and forward one copy to opposing counsel. Appellate
government counsel shall have 20 days (or more upon a showing of good
cause made by motion for enlargement within the 20 days) from the date
the record is filed with the Court to file the appeal with supporting
brief with the Court of Military Review. Should the Government decide
to withdraw the appeal after the record is received by the Court of
Military Review, appellate government counsel shall notify in writing
the Court of Military Review. Appellate brief(s) shall be prepared in
the manner prescribed by 150.15.
(2) Appellee shall prepare an answer in the manner prescribed by
150.15 and shall file such answer within 20 days after any filing of the
government brief.
(e) The government shall diligently prosecute all appeals by the
United States and the Court will give such appeals priority over all
other proceedings where practicable.
32 CFR 150.22 Petitions for new trial.
(a) General provisions. The Court shall, as soon as practicable
after receipt from the Judge Advocate General of a petition for a new
trial is a case pending before the Court, notify appellate counsel of
such receipt.
(b) Additional investigation. The Court on considering a petition
for a new trial may, when it deems appropriate, refer the matter to
Judge Advocate General who shall cause further investigation to be made
and to report the results therefor to the Court.
(c) Answer. Appellate government counsel shall file an answer to a
petition for new trial within 10 days after being notified of the
receipt thereof by the Court.
(d) Briefs. Any brief in support of a petition for new trial shall
be filed within 10 days of appellate government counsel's answer. If
appellate government counsel fails to file an answer, accused may file a
brief within 10 days after the expiration of the time allowed for the
filing of appellate government counsel's answer. Appellate government
counsel's brief shall be filed within 10 days of the filing of accused's
brief. If accused fails to file a brief, appellate government counsel
may file a brief within 10 days after the expiration of the time allowed
for filing of accused's brief.
(e) Oral argument. Except when ordered by the Court, oral argument
shall not be permitted on a petition for a new trial.
32 CFR 150.23 Motions.
(a) Content. All motions, unless made during the course of a
hearing, shall state with particularity the relief sought and the
grounds therefor. Motions, pleadings, and other papers desired to be
filed with the Court may be combined in the same document, with the
heading indicating, for example ''motion to file (supplemental
assignment of errors) (certificate of correction) (supplemental
pleasing)'', or ''assignment of errors and motion to file attached
report of medical board''.
(b) Opposition. Any opposition to a motion shall be filed within 5
days after receipt by the opposing party of service of the motion.
(c) Leave to file. Any pleading not required by these rules shall be
accompanied by a motion for leave to file such pleading.
(d) Oral argument. Except when ordered by the Court, oral argument
shall not be permitted on motions.
32 CFR 150.24 Continuances and interlocutory matters.
Except as otherwise provided in 150.19(d) the Court, in its
discretion, may extend any time limits prescribed and may dispose of any
interlocutory or other appropriate matter not specifically covered by
these rules, in such manner as may appear to be required for a full,
fair, and expeditious consideration of the case. See 150.4.
32 CFR 150.25 Suspension of rules.
For good cause shown, the Court acting as a whole or in panel may
suspend the requirements or provisions of any of these rules in a
particular case on petition of a party or on its own motion and may
order proceedings in accordance with its discretion.
32 CFR 150.26 Internal rules.
The Chief Judge of the Court has the authority to prescribe internal
rules for the Court.
32 CFR 150.27 Recordings, photographing, broadcasting, or telecasting
of hearings.
The recording, photographing, broadcasting, or televising of any
session of the Court or other activity relating thereto is prohibited
unless specifically authorized by the Court sitting as a whole.
32 CFR 150.28 Format for direction for review.
32 CFR 150.28 Format for Direction for Review in the United States
Army* Court of Military Review
1. Pursuant to the Uniform Code of Military Justice, Article 69, and
the Rules of Practice and Procedure for Courts of Military Review, Rule
2b, the record of trial in the above-entitled case is forwarded for
review pursuant to the Uniform Code of Military Justice, Article 66.
2. The accused was found guilty of a violation of the Uniform Code of
Military Justice, Article(s) XXXX, was sentenced to XXXX on XXXX at XXXX
by XXXX. The convening authority (approved the sentence) (approved only
so much of the sentence as provided for XXXX) and the case was received
in the United States Army* Judiciary on XXXX.
3. In review pursuant to Uniform Code of Military Justice, Article
66, it is requested that attention be given to the following issues:
A. WHETHER THE SPECIFICATION OF CHARGE I FAILS TO STATE AN OFFENSE
UNDER THE UNIFORM CODE OF MILITARY JUSTICE IN THAT IT DOES NOT ALLEGE
THAT ACCUSED'S ABSENCE WAS WITHOUT AUTHORITY.
B. WHETHER THE MILITARY JUDGE FAILED TO TAILOR HIS INSTRUCTIONS ON
SENTENCE TO THE MATTERS PRESENTED IN EXTENUATION AND MITIGATION.
John H. Brown,
Major General, USA, The Judge Advocate General.
Received a copy of the foregoing Direction for Review this XXXX day
of XXXX 19 -- .
Robert Jones,
Colonel, JAGC, Chief, Government Appellate Division.
Harry Arnold,
Colonel, JAGC, Chief, Defense Appellate Division.
John C. Smith, Esq.,
1 Ace Street, Union, New Jersey 07083.
*Use Navy-Marine Corps, Air Force, or Coast Guard as the case may be.
32 CFR 150.29 Format for assignment of errors and brief on behalf of
accused.
On XXXXXX, the accused was tried by general court-martial. The
charges and specifications upon which he was arraigned, his pleas, and
the court-martial's findings were as follows:
He was sentenced to dishonorable discharge, forfeiture of all pay and
allowances, confinement at hard labor for 2 years, and reduction to the
lowest enlisted grade. The convening authority approved only so much of
the sentence as provides for bad conduct discharge, forfeiture of $50.00
pay per month for 6 months, and reduction to the lowest enlisted grade.
Those facts necessary to a disposition of the assigned errors are set
forth in the argument, infra. /2/
I. Specification 1 of Charge I Fails to State an Offense Under the
Uniform Code of Military Justice.
The allegation of absence in Specification 1 of Charge I fails to
indicate that the absence was ''without proper authority.'' The U.S.
Court of Military Appeals has held that such an omission is fatal to the
legal sufficiency of the specification. United States v. Schultz, 16
U.S.C.M.A. 488, 37 C.M.R. 108 (1967); United States v. Fout, 3
U.S.C.M.A. 565, 13 C.M.R. 121 (1953).
Wherefore, the findings as to Specification 1 of Charge I should be
set aside and the sentence reassessed on the basis of the remaining
charges and specifications.
II. The Military Judge Failed to Tailor His Instructions on Sentence
to the Matters Presented in Mitigation and Extenuation.
There was extensive evidence presented on behalf of accused to
establish his proper exemplary conduct in civilian and military life.
(R. 108-133). The military judge limited his instructions on sentence to
the maximum authorized punishment and the voting procedure.
In United States v. Wheeler, 17 U.S.C.M.A. 274, 38 C.M.R. 72 (1967),
the failure of the military judge to tailor the instructions on sentence
to the evidence presented in mitigation and extenuation was held to
require a rehearing on sentence.
Wherefore, the sentence should be set aside and a rehearing
authorized thereon.
Accused is an 18-year old first time offender (Post-trial Review, p.
3) and has sincerely urged his restoration to duty. (R. 100). His
immediate superiors have expressed their willingness to have accused
return to his organization. (R. 110).
Wherefore, only so much of the sentence as provides for forfeiture of
$50.00 pay per month for 6 months, confinement at hard labor for 6
months, and reduction to the lowest enlisted grade should be approved by
his Honorable Court.
Date XXXXXXXXXXXXXXXXXXXX
John C. Smith, Esq.,
1 Ace Street, Union, New Jersey 07083.
Albert Jones,
Captain, JAGC, Appellate Defense Counsel.
Harry Arnold,
Colonel, JAGC, Appellate Defense Counsel.
I certify that a copy of the foregoing was mailed or delivered to
appellate Government counsel on the XXX day of XXXX, 19XX.
Name XXXXXXXXXXXXXXXXXXXX
Address XXXXXXXXXXXXXXXXXXXX
/1/ Use Navy-Marine Corps, Air Force, or Coast Guard as the case may
be.
/2/ Where a statement of facts generally applies to all of the
assigned errors, it may be set forth here.
32 CFR 150.29 PART 151 -- STATUS OF FORCES POLICIES AND INFORMATION
Sec.
151.1 Reissuance and purpose.
151.2 Applicability.
151.3 Policy.
151.4 Procedures and responsibilities.
151.5 Reports on the exercise of foreign criminal jurisdiction.
151.6 Resolution of ratification, with reservations, as agreed to by
the Senate on July 15, 1953.
151.7 Fair trial guarantees.
Authority: 1 U.S.C. 133, 75 Stat. 517.
Source: 45 FR 20465, Mar. 28, 1980, unless otherwise noted.
32 CFR 151.1 Reissuance and purpose.
This part is reissued to update established DoD policy and procedures
on trial by foreign courts and treatment in foreign prisons of U.S.
military personnel, nationals of the U.S. serving with, employed by, or
accompaning the Armed Forces of the United States, and the dependents of
both (hereafter referred to as U.S. personnel); and provides uniform
reporting on the exercise of foreign criminal jurisdiction.
32 CFR 151.2 Applicability.
The provisions of this part apply to the Office of the Secretary of
Defense, the Military Departments, and the Unified and Specified
Commands. As used herein, the term ''Military Services'' refers to the
Army, Navy, Air Force, and Marine Corps.
32 CFR 151.3 Policy.
It is the policy of the Department of Defense to protect, to the
maximum extent possible, the rights of U.S. personnel who may be subject
to criminal trial by foreign courts and imprisonment in foreign prisons.
32 CFR 151.4 Procedures and responsibilities.
(a) Application of Senate resolution on status of forces. This
directive implements the Senate Resolution accompanying the Senate's
consent to ratification of the North Atlantic Treaty (NATO) Status of
Forces Agreement ( 151.6). Although the Senate Resolution applies only
to countries where the NATO Status of Forces Agreement is in effect, the
same procedures for safeguarding the interests of U.S. personnel subject
to foreign jurisdiction shall be applied insofar as practicable in
overseas areas where U.S. forces are regularly stationed.
(b) Orientation of personnel. The Military Services shall issue
uniform regulations establishing an information and education policy on
the laws and customs of the host country for personnel assigned to
foreign areas.
(c) Designated commanding officer. Formal invocation of the Senate
Resolution procedure shall be the responsibility of a single military
commander in each foreign country where United States forces are
stationed. Attache personnel and other military personnel serving under
a chief of a diplomatic mission shall not be considered U.S. forces in
this part.
(1) In the geographical areas for which a unified command exists, the
commander shall designate within each country the ''Commanding Officer''
referred to in the Senate Resolution ( 151.6).
(2) In areas where a unified command does not exist, a commanding
officer in each country shall be nominated by the Military Departments.
These recommendations shall be forwarded by the Judge Advocate General
of the Army to the Secretary of Defense, for implementation through the
Office of the Assistant Secretary of Defense (International Security
Affairs). In designating the commanding officer to act for all the
Military Departments, consideration must be given to the availability of
legal officers and readiness of access to the seat of the foreign
government. Such an officer may also be appointed by the Military
Departments for countries where no U.S. forces are regularly stationed.
(d) Country law studies. (1) For each foreign country where U.S.
forces are subject to the criminal jurisdiction of foreign authorities,
the designated commanding officer for such country shall make and
maintain a current study of the laws and legal procedures in effect.
Studies of the laws of other countries shall be made when directed.
This study shall be a general examination of the substantive and
procedural criminal law of the foreign country, and shall contain a
comparison thereof with the procedural safeguards of a fair trial in the
State courts of the United States.
(2) Copies of these studies shall be forwarded by the designated
commanding officer to each of the Judge Advocates General of the
Military Services. Principal emphasis is to be placed on those
safeguards that are of such a fundamental nature as to be guaranteed by
the Constitution of the United States in all criminal trials in State
courts of the United States. See 151.7 for enumeration of safeguards
considered important. These country law studies shall be subject to a
continuing review. Whenever there is a significant change in any
country's criminal law, the change shall be forwarded by the designated
commanding officer to each of the Military Service's Judge Advocates
General.
(e) Waivers of local jurisdiction -- military personnel. (1) In
cases where it appears probable that release of jurisdiction over U.S.
military personnel will not be obtained and the accused may not obtain a
fair trial, the commander exercising general court-martial jurisdiction
over the accused shall communicate directly with the designated
commanding officer, report the full facts of the case, and supply a
recommendation.
(2) The designated commanding officer shall determine, in the light
of legal procedures in effect in that country, whether there is danger
that the accused will not receive a fair trial. A trial shall not be
considered unfair merely because it is not identical with trials held in
the United States. Due regard, however, should be given to those United
States trial rights listed in 151.7 that are relevant to the facts and
circumstances of the trial in question.
(3) If the designated commanding officer determines there is risk of
an unfair trial, the commanding officer shall decide, after consultation
with the chief of the diplomatic mission, whether to press a request for
waiver of jurisdiction through diplomatic channels. If the commanding
officer so decides, the recommendation shall be submitted through the
unified commander, if any, and The Judge Advocate General of the
accused's service, to the Office of the Secretary of Defense. The
objective in each case is to see that U.S. military personnel obtain a
fair trial in the receiving state under all circumstances.
(f) Request to foreign authorities not to exercise their criminal
jurisdiction over civilians and dependents. The following procedures
shall be followed when it appears that foreign authorities may assume
criminal jurisdiction over dependents of U.S. military personnel,
civilian personnel, and their dependents:
(1) When the designated commanding officer determines, after a
careful consideration of all the circumstances, that suitable corrective
action can be taken under existing administrative regulations, the
commanding officer may request the local foreign authorities to refrain
from exercising their criminal jurisdiction.
(2) When it appears possible that release of jurisdiction will not be
obtained and that the accused may not obtain a fair trial, the commander
exercising general court-martial jurisdiction over the command in which
such personnel are located shall communicate directly with the
designated commanding officer, reporting the full facts of the case and
supplying a recommendation.
(3) The designated commanding officer shall then determine, in the
light of legal procedures in effect in that country, whether there is
danger that the accused will not receive a fair trial.
(4) If it is determined that there is such danger, the designated
commanding officer shall decide, after consultation with the chief of
the diplomatic mission, whether a request should be submitted through
diplomatic channels to foreign authorities seeking their assurances of a
fair trial for the accused or, in appropriate circumstances, that they
forego their right to exercise jurisdiction over the accused. If the
designated commanding officer so decides, a recommendation shall be
submitted through the unified commander, if any, and The Judge Advocate
General of the Military Service concerned, to the Office of the
Secretary of Defense.
(g) Trial observers and trial observer report. (1) The designated
commanding officer shall submit to the chief of the diplomatic mission a
list of persons qualified to serve as U.S. observers at trials before
courts of the receiving state. Nominees shall be lawyers, and shall be
selected for maturity of judgment. The list shall include, where
possible, representatives of all Military Services whose personnel are
stationed in that country to enable the chief of the diplomatic mission
to appoint an observer from the same Military Service as the accused.
The requirement that nominees shall be lawyers may be waived in cases of
minor offenses. Incidents that result in serious personal injury or
that would normally result in sentences to confinement, whether or not
suspended, shall not be considered minor offenses.
(2) Trial observers shall attend and prepare formal reports in all
cases of trials of U.S. personnel by foreign courts or tribunals, except
for minor offenses. In cases of minor offenses, the observer shall
attend the trial at the discretion of the designated commanding officer,
but shall not be required to make a formal report. These reports need
not be classified, but shall be treated as For Official Use Only
documents. They shall be forwarded intact to the designated commanding
officer through such agencies as the designated commanding officer may
prescribe for transmission to the Judge Advocate General of the
accused's service, with any comments of the appropriate Military Service
commander. These reports shall be forwarded immediately upon the
completion of the trial in the lower court, and shall not be delayed
because of the possibility of a new trial, rehearing or appeal, reports
of which shall be forwarded in the same manner. Copies shall also be
forwarded to the unified commander, if any, and to the chief of the
diplomatic mission.
(3) The trial observer report shall contain a factual description or
summary of the trial proceedings. It should enable an informed judgment
to be made regarding: (i) Whether there was any failure to comply with
the procedural safeguards secured by a pertinent status of forces
agreement, and (ii) whether the accused received a fair trial under all
the circumstances. The report shall specify the conclusions of the
trial observer with respect to paragraph (g)(3)(i) of this section, and
shall state in detail the basis for the conclusions. Unless the
designated commanding officer directs otherwise, the report shall not
contain conclusions with respect to paragraph (g)(3)(ii) of this
section.
(4) The designated commanding officer, upon receipt of a trial
observer report, shall be responsible for determining: (i) Whether
there was any failure to comply with the procedural safeguards secured
by the pertinent status of forces agreement, and (ii) whether the
accused received a fair trial under all the circumstances. Due regard
should be given to those fair trial rights listed in 151.7 that are
relevant to the particular facts and circumstances of the trial.
However, a trial shall not be found unfair merely because it is not
identical with trials held in the United States. If the designated
commanding officer is of the opinion that the procedural safeguards
specified in pertinent agreements were denied or that the trial was
otherwise unjust, the commanding officer shall submit to the Office of
the Secretary of Defense, through the unified commander and the Judge
Advocate General of the Military Service concerned, a recommendation as
to appropriate action to rectify the trial deficiencies and otherwise to
protect the rights or interests of the accused. This shall include a
statement of efforts taken or to be taken at the local level to protect
the right of the accused. An information copy of the recommendation of
the designated commanding officer shall be forwarded to the diplomatic
or consular mission in the country concerned.
(h) Counsel fees and related assistance. When the Secretary of the
Military Department concerned or designee considers such action to be in
the best interests of the United States, representation by civilian
counsel and other assistance described under 10 U.S.C. 1037 may be
furnished at Government expense to U.S. personnel tried in foreign
countries.
(i) Treatment of U.S. personnel confined in foreign penal
institutions. (1) Insofar as practicable and subject to the laws and
regulations of the country concerned and the provisions of any agreement
therewith, the Department of Defense seeks to ensure that U.S. military
personnel: (i) When in the custody of foreign authorities are fairly
treated at all times and (ii) when confined (pretrial and post-trial) in
foreign penal institutions are accorded the treatment and are entitled
to all the rights, privileges, and protections of personnel confined in
U.S. military facilities. Such rights, privileges, and protections are
enunciated in present Military Service directives and regulations, and
include, but are not limited to, legal assistance, visitation, medical
attention, food, bedding, clothing, and other health and comfort
supplies.
(2) In consonance with this policy, U.S. military personnel confined
in foreign penal institutions shall be visited at least every 30 days,
at which time the conditions of confinement and other matters relating
to their health and welfare shall be observed. The Military Services
shall maintain, on a current basis, records of these visits as reports
by their respective commands. Records of each visit should contain the
following information:
(i) Names of personnel conducting visit and date of visit.
(ii) Name of each prisoner visited, serial number, and sentence.
(iii) Name and location of prison.
(iv) Treatment of the individual prisoner by prison warden and other
personnel (include a short description of the rehabilitation program, if
any, as applied to the prisoner).
(v) Conditions existing in the prison, such as light, heat,
sanitation, food, recreation, and religious activities.
(vi) Change in status of prisoner, conditions of confinement or
transfer to another institution.
(vii) Condition of prisoner, physical and mental.
(viii) Assistance given to prisoner, such as legal, medical, food,
bedding, clothing, and health and comfort supplies.
(ix) Action taken to have any deficiencies corrected, either by the
local commander or through diplomatic or consular mission.
(x) Designation of command responsible for prisoner's welfare and
reporting of visits.
(xi) Information as to discharge of a prisoner from the Military
Service or termination of confinement.
(3) When it is impracticable for the individual's commanding officer
or representative to make visits, the designated commanding officer
should be requested to arrange that another unit be responsible for such
visits or to request that the appropriate diplomatic or consular mission
assume responsibility therefor. When necessary, a medical officer
should participate in the visits and record the results of medical
examinations. If reasonable requests for permission to visit U.S.
military personnel are arbitrarily denied, or it is ascertained that the
individual is being mistreated or that the conditions of custody or
confinement are substandard, the case should be referred to the
diplomatic or consular mission concerned for appropriate action.
(4) To the extent possible, military commanders should seek to
conclude local arrangements whereby U.S. military authorities may be
permitted to accord U.S. military personnel confined in foreign
institutions the treatment, rights, privileges, and protection similar
to those accorded such personnel confined in U.S. military facilities.
The details of such arrangements should be submitted to the Judge
Advocates General of the Military Services.
(5) The military commanders shall make appropriate arrangements with
foreign authorities whereby custody of individuals who are members of
the Armed Forces of the United States shall, when they are released from
confinement by foreign authorities, be turned over to U.S. military
authorities. In appropriate cases, diplomatic or consular officers
should be requested to keep the military authorities advised as to the
anticipated date of the release of such persons by the foreign
authorities.
(6) In cooperation with the appropriate diplomatic or consular
mission, military commanders shall, insofar as possible, ensure that
dependents of U.S. military personnel, nationals of the United States
serving with, employed by or accompanying the armed forces, and
dependents of such nationals when in the custody of foreign authorities,
or when confined (pretrial and post-trial) in foreign penal institutions
receive the same treatment, rights, and support as would be extended to
U.S. military personnel in comparable situations pursuant to the
provisions of 151.4(i).
(j) Discharge. U.S. military personnel confined in foreign prisons
shall not be discharged from military service until the completion of
the term of imprisonment and the return of the accused to the United
States, except that in unusual cases such discharges may be accomplished
upon prior authorization of the Secretary of the Military Department
concerned.
(k) Information policy. It is the basic policy of the Department of
Defense that the general public and the Congress must be provided
promptly with the maximum information concerning status of forces
matters that are consistent with the national interest. Information
shall be coordinated and furnished to the public and the Congress in
accordance with established procedures, including DoD Directive 5122.5,1
''Assistant Secretary of Defense (Public Affairs),'' July 10, 1961, and
Parts 286 and 286a of this title.
1Copies may be obtained, if needed, from the U.S. Naval Publications
and Forms Center, 5801 Tabor Avenue, Philadelphia, PA 19120, Attention:
Code 301.
32 CFR 151.5 Reports on the exercise of foreign criminal jurisdiction.
The following reporting system, which has been implemented by the
Military Departments, shall be continued after revision in accordance
with the provisions herein. The Department of the Army is designated as
executive agent within the Department of Defense for maintaining and
collating information received on the basis of the reports submitted.
(a) Annual reports. Annual reports, based on information furnished
by the Military Departments covering the period December 1 through
November 30 shall be prepared by the Department of the Army and
submitted within such time as may be required but not later than 120
days after the close of the reporting period. The reports shall be
submitted in one reproducible copy to the Office of the General Counsel,
DoD, in accordance with departmental implementation of this part. The
reporting content of this requirement shall be as follows:
(1) A statistical summary (DD Form 838) by country and type of
offense of all cases involving U.S. personnel.
(2) A report signed by the appropriate Military Service commander in
each country for which DD Form 838 is prepared, concerning the
commander's personal evaluation of the impact, if any, the local
jurisdictional arrangements have had upon accomplishment of the mission
and upon the discipline and morale of the forces, together with specific
facts or other information, where appropriate, substantiating the
commanders' opinion.
(3) A report of the results of visits made and particular actions
taken by appropriate military commanders under 151.4(i).
(4) A report of the implementation of 10 U.S.C. 1037 showing by
country and Military Service:
(i) The total number of cases in which funds were expended and
(ii) Total expenditures in each of the following categories:
(A) Payment of counsel fees,
(B) Provision of bail,
(C) Court costs and other expenses.
(b) Quarterly reports. (1) Quarterly reports for the periods ending
November 30, February 28, May 31, and August 31, consisting of lists of
U.S. personnel imprisoned and released, shall be submitted, in
accordance with departmental implementation of this Part to the
Department of the Army and by the Department of the Army, as executive
agent, to the Director, Washington Headquarters Services, in four
copies, on or before the 15th day following the report quarter as
follows:
(i) An alphabetical list of U.S. personnel who were imprisoned during
the reporting period under sentence of confinement imposed by a foreign
country, indicating the individual's home address, grade, and serial
number (where applicable), offense of which found guilty, date and place
of confinement, length of sentence to confinement imposed, and estimated
date of release from confinement.
(ii) A similar list of the names of prisoners released during the
reporting period.
(2) An information copy of these lists shall be furnished by the
appropriate Military Service commander to the diplomatic or consular
mission in the country concerned.
(c) Other reports. (1) Each Military Department shall maintain, on a
current basis, and submit monthly to the Director, Washington
Headquarters Service, in four copies, a list of the most important cases
pending, with a brief summary of the salient facts in each case.
Selection of the cases to be included shall be left to the judgment of
the appropriate officials of each Military Department. Instances of
deficiency in the treatment or conditions of confinement in foreign
penal institutions or arbitrary denial of permission to visit such
personnel shall be considered important cases. Lists covering the
previous month shall be submitted on the 6th day of the month following.
(2) Important new cases or important developments in pending cases
shall be reported informally and immediately to the Office of the
General Counsel, DoD.
32 CFR 151.6 Resolution of ratification, with reservations, as agreed
to by the Senate on July 15, 1953.
Resolved (two-thirds of the Senators present concurring therein),
That the Senate advise and consent to the ratification of Executive T,
Eighty-second Congress, second session, an agreement between the parties
to the North Atlantic Treaty Regarding the Status of their Forces,
signed at London on June 19, 1951. It is the understanding of the
Senate, which understanding inheres in its advise and consent to the
ratification of the Agreement, that nothing in the Agreement diminishes,
abridges, or alters the right of the United States of America to
safeguard its own security by excluding or removing persons whose
presence in the United States is deemed prejudicial to its safety or
security, and that no person whose presence in the United States is
deemed prejudicial to its safety or security shall be permitted to enter
or remain in the United States. In giving its advise and consent to
ratification, it is the sense of the Senate that:
(a) The criminal jurisdiction provisions of Article VII do not
constitute a precedent for future agreements;
(b) Where a person subject to the military jurisdiction of the United
States is to be tried by the authorities of a receiving state, under the
treaty the Commanding Officer of the armed forces of the United States
in such state shall examine the laws of such state with particular
reference to the procedural safeguards contained in the Constitution of
the United States;
(c) If, in the opinion of such Commanding Officer, under all the
circumstances of the case, there is danger that the accused will not be
protected becase of the absence or denial of constitutional rights the
accused would enjoy in the United States, the Commanding Officer shall
request the authorities of the receiving State to waive jurisdiction in
accordance with the provisions of paragraph 3(c) of Article VII (which
requires the receiving State to give ''sympathetic consideration'' to
such request) and if such authorities refuse to waive jurisdiction, the
commanding officer shall request the Department of State to press such
request through diplomatic channels and notification shall be given by
the Executive Branch to the Armed Services Committees of the Senate and
House of Representatives;
(d) A representative of the United States to be appointed by the
Chief of Diplomatic Mission with the advice of the senior U.S. military
representative in the receiving State will attend the trial of any such
person by the authorities of a receiving State under the agreement, and
any failure to comply with the provisions of paragraph 9 of Article VII
of the Agreement shall be reported to the commanding officer of the
Armed Forces of the United States in such State who shall then request
the Department of State to take appropriate action to protect the rights
of the accused, and notification shall be given by the Executive Branch
to the Armed Services Committees of the Senate and House of
Representatives.
32 CFR 151.7 Fair trial guarantees.
The following is a listing of ''fair trial'' safeguards or guarantees
that are considered to be applicable to U.S. State court criminal
proceedings, by virtue of the 14th Amendment as interpreted by the
Supreme Court of the United States. The list is intended as a guide for
the preparation of country law studies prescribed by 151.4 and for the
determinations made by the designated commanding officer under 151.4(e)
through 151.4(g). Designated commanding officers should also consider
other factors that could result in a violation of due process of law in
State court proceedings in the United States.
(a) Criminal statute alleged to be violated must set forth specific
and definite standards of guilt.
(b) Accused shall not be prosecuted under an ex post facto law.
(c) Accused shall not be punished by bills of attainder.
(d) Accused must be informed of the nature and cause of the
accusation and have a reasonable time to prepare a defense.
(e) Accused is entitled to have the assistance of defense counsel.
(f) Accused is entitled to be present at the trial.
(g) Accused is entitled to be confronted with hostile witnesses.
(h) Accused is entitled to have compulsory process for obtaining
favorable witnesses.
(i) Use of evidence against the accused obtained through unreasonable
search or seizure or other illegal means is prohibited.
(j) Burden of proof is on the Government in all criminal trials.
(k) Accused is entitled to be tried by an impartial court.
(l) Accused may not be compelled to be a witness against him or
herself; and shall be protected from the use of a confession obtained
by torture, threats, violence, or the exertion of any improper
influence.
(m) Accused shall not be subjected to cruel and unusual punishment.
(n) Accused is entitled to be tried without unreasonable
(prejudicial) delay.
(o) Accused is entitled to a competent interpreter when the accused
does not understand the language in which the trial is conducted and
does not have counsel proficient in the language both of the court and
of the accused.
(p) Accused is entitled to a public trial.
(q) Accused may not be subjected to consecutive trials for the same
offense that are so vexatious as to indicate fundamental unfairness.
32 CFR 151.7 PART 152 -- REVIEW OF THE MANUAL FOR COURTS-MARTIAL
Sec.
152.1 Purpose.
152.2 Applicability and scope.
152.3 Policy.
152.4 Procedures.
152.5 Responsibilities.
152.6 Information requirements.
Authority: E.O. 12473; 10 U.S.C. 836; 10 U.S.C. 867(g).
Source: 50 FR 6167, Feb. 14, 1985, unless otherwise noted.
32 CFR 152.1 Purpose.
This part implements the requirement established by the President
that Manual for Courts-Martial, United States 1984, Executive Order
12473 reference be reviewed annually.
32 CFR 152.2 Applicability and scope.
(a) This part applies to the Office of the Secretary of Defense, the
Military Departments, and, by the agreement with the Secretary of
Transportation, to the Coast Guard.
(b) This part is intended only to improve the internal management of
the Federal Government; it is not intended to create any right or
benefit, substantive or procedural, enforceable at law by a party
against the United States, its agencies, its officers, or any person.
32 CFR 152.3 Policy.
It is DoD policy to review annually the Manual for Courts-Martial, to
ensure that the Manual fulfills its fundamental purpose as a
comprehensive body of law governing military justice procedures and as a
guide for lawyers and nonlawyers in the operation and application of
such law.
32 CFR 152.4 Procedures.
(a) Annual review. (1) A draft of the annual review of the Manual
for Courts-Martial required by the President under Executive Order 12473
shall be prepared by the Joint Service Committee on Military Justice.
The Joint Service Committee consists of one representative of each of
the following: the Judge Advocate General of the Army; the Judge
Advocate General of the Navy; the Judge Advocate General of the Air
Force; the Director, Judge Advocate Division, Headquarters, U.S. Marine
Corps; and the Chief Counsel, U.S. Coast Guard. In addition, the Court
of Military Appeals shall be invited to provide a staff member to serve
in a nonvoting capacity with the committee.
(2) The Joint Service Committee on Military Justice shall review the
Manual (including the Discussion and Appendices) in light of judicial
and legislative developments in civilian practice to:
(i) Ensure that the Manual, the Discussion, and the Appendices apply
the principles of law and rules of evidence generally recognized in the
trial of criminal cases in the U.S. District Courts to the extent
practicable and to the extent that such principles and rules are not
contrary to or inconsistent with the UCMJ. See Article 36, UCMJ (10
U.S.C. 836 and 10 U.S.C. 867(g)). This includes the requirement that the
Manual must be workable across the spectrum of circumstances in which
courts-martial are conducted, including combat conditions.
(ii) Ensure that the Manual, the Discussion, and the Appendices
reflect current military practice and judicial precedent.
(3) The Joint Service Committee shall send its draft review to the
General Counsel not later than April 15, 1985, and February 1 of each
year thereafter. A copy of the report shall be sent to the committee,
established by Article 67(g), UCMJ (10 U.S.C. 836 and 10 U.S.C. 867(g))
which may submit comments on the draft review to the General Counsel.
(4) The draft review shall set forth any specific recommendations for
changes in the Manual, the Discussion, or the Appendices. If no changes
are recommended, the draft review shall so state. If changes are
recommended by the Joint Service Committee, the public notice procedures
of paragraph (c) of this section, are applicable. If the Joint Service
Committee determines that an aspect of civilian practice should be
adopted, but recommends that the Manual should not be changed because
the proposal would be contrary to or inconsistent with 10 U.S.C. 836 and
867(g) the draft review should contain a legislative proposal. Minority
reports, if any, shall be included.
(5) Proposed changes to the Manual for Courts-Martial and proposed
legislative changes that are recommended in the draft review are subject
to the coordination requirements of DoD Directive 5500.1.
(b) Other changes to the Manual for Courts-Martial. (1) Normally,
changes to the Manual for Courts-Martial will be proposed as part of the
annual review set forth in paragraph (a) of this section. However, when
earlier implementation is required, proposed changes may be sent to the
General Counsel for coordination under DoDD 5000.19.
(2) Proposed changes to the Manual for Courts-Martial under this
section are subject to the public notice procedures of paragraph (c) of
this section.
(c) Public Notice. (1) Notice that the Department of Defense intends
to recommend changes to the Manual for Courts-Martial shall be published
in the Federal Register before submission of such changes to the
President, unless the Secretary of Defense proposes that the President
issue the change without such notice on the basis that notice and public
procedure thereon is unnecessary or contrary to the sound administration
of military justice.
(2) The Joint Service Committee on Military Justice shall coordinate
with the Office of General Counsel as to the timing and content of such
notice.
(3) The notice shall include a brief description of the matters
contained in the proposed change, the time and place where a copy of the
proposed change may be examined, and the procedure for obtaining a copy
of the proposed change.
(4) A period of not less than 75 days after publication of notice
shall be allowed for public comment, but a shorter period may be
prescribed when it is determined that a 75-day period is unnecessary or
contrary to the sound administration of military justice.
(5) Comments shall be submitted to the Joint Service Committee on
Military Justice.
32 CFR 152.5 Responsibilities.
(a) The General Counsel is responsible for the administration of this
part including approval of the annual review of the Manual for
Courts-Martial, coordination of any proposed changes to the Manual for
Courts-Martial under DoD Directive 5500.1, approval of any proposed
changes to the Discussion and Appendices accompanying the Manual for
Courts-Martial, and transmittal to the Congress of rules approved by the
President. See Article 36, UCMJ (10 U.S.C. 836 and 10 U.S.C. 867 (g)).
(b) The Judge Advocates General of the Military Departments; the
Director, Judge Advocate Division, Headquarters, U.S. Marine Corps; and
the Chief Counsel, U.S. Coast Guard are responsible for appointment of
representatives to the Joint Service Committee on Military Justice.
32 CFR 152.6 Information requirements.
The reporting requirement prescribed in 152.4(a) is exempt from
formal approval and licensing in accordance with subsection VII.C. of
enclosure 3 to DoD Directive 5000.19.
32 CFR 152.6 SUBCHAPTER E -- SECURITY
32 CFR 152.6 Pt. 154
32 CFR 152.6 PART 154 -- DEPARTMENT OF DEFENSE PERSONNEL SECURITY PROGRAM REGULATION
32 CFR 152.6 Subpart A -- General Provisions
Sec.
154.1 Purpose.
154.2 Applicability.
154.3 Definitions.
32 CFR 152.6 Subpart B -- Policies
154.6 Standards for access to classified information or assignment to
sensitive duties.
154.7 Criteria for application of security standards.
154.8 Types and scope of personnel security investigations.
154.9 Authorized personnel security investigative agencies.
154.10 Limitations and restrictions.
32 CFR 152.6 Subpart C -- Personnel Security Investigative Requirements
154.13 Sensitive positions.
154.14 Civilian employment.
154.15 Military appointment, enlistment, and induction.
154.16 Security clearance.
154.17 Special access programs.
154.18 Certain positions not necessarily requiring access to
classified information.
154.19 Reinvestigation.
154.20 Authority to waive investigative requirements.
32 CFR 152.6 Subpart D -- Reciprocal Acceptance of Prior Investigations
and Personnel Security Determinations
154.23 General.
154.24 Prior investigations conducted by DoD investigative
organizations.
154.25 Prior personnel security determinations made by DoD
authorities.
154.26 Investigations conducted and clearances granted by other
agencies of the Federal government.
32 CFR 152.6 Subpart E -- Requesting Personnel Security Investigations
154.30 General.
154.31 Authorized requesters.
154.32 Criteria for requesting investigations.
154.33 Request procedures.
154.34 Priority requests.
154.35 Personal data provided by the subject of the investigation.
32 CFR 152.6 Subpart F -- Adjudication
154.40 General.
154.41 Central adjudication.
154.42 Evaluation of personnel security information.
154.43 Adjudicative record.
32 CFR 152.6 Subpart G -- Issuing Clearance and Granting Access
154.47 General.
154.48 Issuing clearance.
154.49 Granting access.
154.50 Administrative withdrawal.
32 CFR 152.6 Subpart H -- Unfavorable Administrative Actions
154.55 Requirements.
154.56 Procedures.
154.57 Reinstatement of civilian employees.
32 CFR 152.6 Subpart I -- Continuing Security Responsibilities
154.60 Evaluating continued security eligibility.
154.61 Security education.
32 CFR 152.6 Subpart J -- Safeguarding Personnel Security Investigative
Records
154.65 General.
154.66 Responsibilities.
154.67 Access restrictions.
154.68 Safeguarding procedures.
154.69 Records disposition.
154.70 Foreign source information.
32 CFR 152.6 Subpart K -- Program Management
154.75 General.
154.76 Responsibilities.
154.77 Reporting requirements.
154.78 Inspections.
Appendix A to Part 154 -- Investigative Scope
Appendix B to Part 154 -- Request Procedures
Appendix C to Part 154 -- Tables for Requesting Investigations
Appendix D to Part 154 -- Reporting of Nonderogatory Cases
Appendix E to Part 154 -- Personnel Security Determination
Authorities
Appendix F to Part 154 -- Guidelines for Conducting Prenomination
Personal Interviews
Appendix G to Part 154 -- List of Designated Countries
Appendix H to Part 154 -- Adjudication Policy
Appendix I to Part 154 -- Overseas Investigations
Appendix J to Part 154 -- ADP Position Categories and Criteria for
Designating Positions
Authority: E.O. 10450; E.O. 12356; E.O. 10865; E.O. 12333.
Source: 52 FR 11219, Apr. 8, 1987, unless otherwise noted.
32 CFR 152.6 Subpart A -- General Provisions
32 CFR 154.1 Purpose.
(a) To establish policies and procedures to ensure that acceptance
and retention of personnel in the Armed Forces, acceptance and retention
of civilian employees in the Department of Defense (DoD), and granting
members of the Armed Forces, DoD civilian employees, DoD contractors,
and other affiliated persons access to classified information are
clearly consistent with the interests of national security.
(b) This part: (1) Establishes DoD personnel security policies and
procedures;
(2) Sets forth the standards, criteria and guidelines upon which
personnel security determinations shall be based;
(3) Prescribes the kinds and scopes of personnel security
investigations required;
(4) Details the evaluation and adverse action procedures by which
personnel security determinations shall be made; and
(5) Assigns overall program management responsibilities.
32 CFR 154.2 Applicability.
(a) This part implements the Department of Defense Personnel Security
Program and takes precedence over all other departmental issuances
affecting that program.
(b) All provisions of this part apply to DoD civilian personnel,
members of the Armed Forces, excluding the Coast Guard in peacetime,
contractor personnel and other personnel who are affiliated with the
Department of Defense except that the unfavorable administrative action
procedures pertaining to contractor personnel requiring access to
classified information are contained in DoD 5220.22-R and in 32 CFR Part
155.
(c) The policies and procedures which govern the National Security
Agency are prescribed by Public Laws 88-290 and 86-36, Executive Orders
10450 and 12333, DoD Directive 5210.45 /1/ , Director of Central
Intelligence Directive (DCID) 1/14 /2/ and regulations of the National
Security Agency.
(d) Under combat conditions or other military exigencies, an
authority in paragraph A, Appendix E, may waive such provisions of this
part as the circumstances warrant.
/1/ Copies may be obtained, if needed, from the U.S. Naval
Publications and Forms Center, 5801 Tabor Avenue, Attn: Code 301,
Philadelphia, PA 19120.
/2/ Copies may be obtained, if needed from Central Intelligence
Agency (CCISCMS/ICS), 1225 Ames Building, Washington, DC 20505.
32 CFR 154.3 Definitions.
(a) Access. The ability and opportunity to obtain knowledge of
classified information. An individual, in fact, may have access to
classified information by being in a place where such information is
kept, if the security measures that are in force do not prevent him from
gaining knowledge of such information.
(b) Adverse action. A removal from employment, suspension from
employment of more than 14 days, reduction in grade, reduction in pay,
or furlough of 30 days or less.
(c) Background Investigation (BI). A personnel security
investigation consisting of both record reviews and interviews with
sources of information as prescribed in paragraph 3, Appendix A, this
part, covering the most recent 5 years of an individual's life or since
the 18th birthday, whichever is shorter, provided that at least the last
2 years are covered and that no investigation will be conducted prior to
an individual's 16th birthday.
(d) Classified information. Official information or material that
requires protection in the interests of national security and that is
classified for such purpose by appropriate classifying authority in
accordance with the provisions of Executive Order 12356.
(e) Defense Central Security Index (DCSI). An automated sub-system
of the Defense Central Index of Investigations (DCII) designed to record
the issuance, denial or revocation of security clearances, access to
classified information, or assignment to a sensitive position by all DoD
Components for military, civilian, and contractor personnel. The DCSI
will serve as the central DoD repository of security related actions in
order to assist DoD security officials in making sound clearance and
access determinations. The DCSI shall also serve to provide accurate
and reliable statistical data for senior DoD officials, Congressional
committees, the General Accounting Office and other authorized Federal
requesters.
(f) DoD component. Includes the Office of the Secretary of Defense;
the Military Departments; Organization of the Joint Chiefs of Staff;
Directors of Defense Agencies and the Unified and Specified Commands.
(g) Entrance National Agency Check (ENTNAC). A personnel security
investigation scoped and conducted in the same manner as a National
Agency Check except that a technical fingerprint search of the files of
the Federal Bureau of Investigation is not conducted.
(h) Head of DoD component. The Secretary of Defense; the
Secretaries of the Military Departments; the Chairman, Joint Chiefs of
Staff; and the Commanders of Unified and Specified Commands; and the
Directors of Defense Agencies.
(i) Immigrant alien. Any alien lawfully admitted into the United
States under an immigration visa for permanent residence.
(j) Interim security clearance. A security clearance based on the
completion of minimum investigative requirements, which is granted on a
temporary basis, pending the completion of the full investigative
requirements.
(k) Limited access authorization. Authorization for access to
Confidential or Secret information granted to non-US. citizens and
immigrant aliens, which is limited to only that information necessary to
the successful accomplishment of their assigned duties and based on a
background investigation scoped for 10 years (paragraph 3, Appendix A).
(l) Minor derogatory information. Information that, by itself, is
not of sufficient importance or magnitude to justify an unfavorable
administrative action in a personnel security determination.
(m) National Agency check (NAC). A personnel security investigation
consisting of a records review of certain national agencies as
prescribed in paragraph 1, Appendix A, this part, including a technical
fingerprint search of the files of the Federal Bureau of Investigation
(FBI).
(n) National Agency Check Plus Written Inquiries (NACI). A personnel
security investigation conducted by the Office of Personnel Management,
combining a NAC and written inquiries to law enforcement agencies,
former employers and supervisors, references and schools.
(o) DoD National Agency Check Plus Written Inquiries (DNACI). A
personnel security investigation conducted by the Defense Investigative
Service (DIS) for access to SECRET information consisting of a NAC,
credit bureau check, and written inquiries to current and former
employers (see paragraph 2, Appendix A), covering a 5-year scope.
(p) National security. National security means the national defense
and foreign relations of the United States.
(q) Need-to-know. A determination made by a possessor of classified
information that a prospective recipient, in the interest of national
security, has a requirement for access to, knowledge, or possession of
the classified information in order to perform tasks or services
essential to the fulfillment of an official U.S. Government program.
Knowledge, possession of, or access to, classified information shall not
be afforded to any individual solely by virtue of the individual's
office, position, or security clearance.
(r) Periodic Reinvestigation (PR). An investigation conducted every
five years for the purpose of updating a previously completed background
or special background investigation on persons occupying positions
referred to in 154.19 (a) through (k). The scope will consist of a
personal interview, NAC, LACs, credit bureau checks, employment records,
employment references and developed character references and will
normally not exceed the most recent five year period.
(s) Personnel Security Investigation (PSI). Any investigation
required for the purpose of determining the eligibility of DoD military
and civilian personnel, contractor employees, consultants, and other
persons affiliated with the Department of Defense, for access to
classified information, acceptance or retention in the Armed Forces,
assignment or retention in sensitive duties, or other designated duties
requiring such investigation. PSIs include investigations of
affiliations with subversive organizations, suitability information, or
hostage situations (see 154.9(d)) conducted for the purpose of making
personnel security determinations. They also include investigations of
allegations that arise subsequent to adjudicative action and require
resolution to determine an individual's current eligibility for access
to classified information or assignment or retention in a sensitive
position.
(t) Scope. The time period to be covered and the sources of
information to be contacted during the prescribed course of a PSI.
(u) Security clearance. A determination that a person is eligible
under the standards of this part for access to classified information.
(v) Senior Officer of the Intelligence Community (SOIC). The DoD
Senior Officers of the Intelligence Community include: the Director,
National Security Agency/Central Security Service; Director, Defense
Intelligence Agency; Assistant Chief of Staff for Intelligence, U.S.
Army; Assistant Chief of Staff for Intelligence, U.S. Air Force; and
the Director of Naval Intelligence, U.S. Navy.
(w) Sensitive position. Any position so designated within the
Department of Defense, the occupant of which could bring about, by
virtue of the nature of the position, a materially adverse effect on the
national security. All civilian positions are either
critical-sensitive, noncritical-sensitive, or nonsensitive as described
in 154.13(b).
(x) Significant derogatory information. Information that could, in
itself, justify an unfavorable administrative action, or prompt an
adjudicator to seek additional investigation or clarification.
(y) Special access program. Any program imposing ''need-to-know'' or
access controls beyond those normally provided for access to
Confidential, Secret, or Top Secret information. Such a program may
include, but not be limited to, special clearance, adjudication,
investigative requirements, material dissemination restrictions, or
special lists of persons determined to have a need-to-know.
(z) Special Background Investigation (SBI). A personnel security
investigation consisting of all of the components of a BI plus certain
additional investigative requirements as prescribed in paragraph 4,
Appendix B, this part. The period of investigation for an SBI is the
last 15 years or since the 18th birthday, whichever is shorter, provided
that the last 2 full years are covered and that no investigation will be
conducted prior to an individual's 16th birthday.
(aa) Special Investigative Inquiry (SII). A supplemental personnel
security investigation of limited scope conducted to prove or disprove
relevant allegations that have arisen concerning a person upon whom a
personnel security determination has been previously made and who, at
the time of the allegation, holds a security clearance or otherwise
occupies a position that requires a personnel security determination
under the provisions of this part.
(bb) Service. Honorable active duty (including attendance at the
military academies), membership in ROTC Scholarship Program, Army and
Air Force National Guard, Military Reserve Force (including active
status and ready reserve), civilian employment in Government service, or
civilian employment with a DoD contractor or as a consultant involving
access under the DoD Industrial Security Program. Continuity of service
is maintained with change from one status to another as long as there is
no single break in service greater than 12 months.
(cc) Unfavorable administrative action. Adverse action taken as the
result of personnel security determinations and unfavorable personnel
security determinations as defined in this part.
(dd) Unfavorable personnel security determination. A denial or
revocation of clearance for access to classified information; denial or
revocation of access to classified information; denial or revocation of
a Special Access authorization (including access to SCI);
nonappointment to or nonselection for appointment to a sensitive
position; nonappointment to or nonselection for any other position
requiring a trustworthiness determination under this part; reassignment
to a position of lesser sensitivity or to a nonsensitive position; and
nonacceptance for or discharge from the Armed Forces when any of the
foregoing actions are based on derogatory information of personnel
security significance.
(ee) United States Citizen (Native Born). A person born in one of
the 50 United States, Puerto Rico, Guam, American Samoa, Northern
Mariana Islands, U.S. Virgin Islands; or Panama Canal Zone (if the
father or mother (or both) was or is, a citizen of the United States).
32 CFR 154.3 Subpart B -- Policies
32 CFR 154.6 Standards for access to classified information or
assignment to sensitive duties.
(a) General. Only U.S. citizens shall be granted a personnel
security clearance, assigned to sensitive duties, or granted access to
classified information unless an authority designated in Appendix E has
determined that, based on all available information, there are
compelling reasons in furtherance of the Department of Defense mission,
including, special expertise, to assign an individual who is not a
citizen to sensitive duties or grant a Limited Access Authorization to
classified information. Non-U.S. citizens may be employed in the
competitive service in sensitive civilian positions only when
specifically approved by the Office of Personnel Management, pursuant to
E.O. 11935. Exceptions to these requirements shall be permitted only for
compelling national security reasons.
(b) Clearance and sensitive position standard. The personnel
security standard that must be applied to determine whether a person is
eligible for access to classified information or assignment to sensitive
duties is whether, based on all available information, the person's
loyalty, reliability, and trustworthiness are such that entrusting the
person with classified information or assigning the person to sensitive
duties is clearly consistent with the interests of national security.
(c) Military service standard. The personnel security standard that
must be applied in determining whether a person is suitable under
national security criteria for appointment, enlistment, induction, or
retention in the Armed Forces is that, based on all available
information, there is no reasonable basis for doubting the person's
loyalty to the Government of the United States.
32 CFR 154.7 Criteria for application of security standards.
The ultimate decision in applying either of the security standards
set forth in 154.6 (b) and (c) must be an overall common sense
determination based upon all available facts. The criteria for
determining eligibility for a clearance under the security standard
shall include, but not be limited to the following:
(a) Commission of any act of sabotage, espionage, treason, terrorism,
anarchy, sedition, or attempts thereat or preparation therefor, or
conspiring with or aiding or abetting another to commit or attempt to
commit any such act.
(b) Establishing or continuing a sympathetic association with a
saboteur, spy, traitor, seditionist, anarchist, terrorist,
revolutionist, or with an espionage or other secret agent or similar
representative of a foreign nation whose interests may be inimical to
the interests of the United States, or with any person who advocates the
use of force or violence to overthrow the Government of the United
States or to alter the form of Government of the United States by
unconstitutional means.
(c) Advocacy or use of force or violence to overthrow the Government
of the United States or to alter the form of Government of the United
States by unconstitutional means.
(d) Knowing membership with the specific intent of furthering the
aims of, or adherence to and active participation in any foreign or
domestic organization, association, movement, group or combination of
persons (hereafter referred to as organizations) which unlawfully
advocates or practices the commission of acts of force or violence to
prevent others from exercising their rights under the Constitution or
laws of the U.S. or of any State or which seeks to overthrow the
Government of the U.S. or any State or subdivision thereof by unlawful
means.
(e) Unauthorized disclosure to any person of classified information,
or of other information, disclosure of which is prohibited by statute,
Executive Order or regulation.
(f) Performing or attempting to perform one's duties, acceptance and
active maintenance of dual citizenship, or other acts conducted in a
manner which serve or which could be expected to serve the interests of
another government in preference to the interests of the United States.
(g) Disregard of public law, statutes, Executive Orders or
regulations including violation of security regulations or practices.
(h) Criminal or dishonest conduct.
(i) Acts of omission or commission that indicate poor judgment,
unreliability or untrustworthiness.
(j) Any behavior or illness, including any mental condition, which,
in the opinion of competent medical authority, may cause a defect in
judgment or reliability with due regard to the transient or continuing
effect of the illness and the medical findings in such case.
(k) Vulnerability to coercion, influence, or pressure that may cause
conduct contrary to the national interest. This may be
(1) The presence of immediate family members or other persons to whom
the applicant is bonded by affection or obligation in a nation (or areas
under its domination) whose interests may be inimical to those of the
United States, or
(2) Any other circumstances that could cause the applicant to be
vulnerable.
(l) Excessive indebtedness, recurring financial difficulties, or
unexplained affluence.
(m) Habitual or episodic use of intoxicants to excess.
(n) Illegal or improper use, possession, transfer, sale or addiction
to any controlled or psychoactive substance, narcotic, cannabis or other
dangerous drug.
(o) Any knowing and willful falsification, coverup, concealment,
misrepresentation, or omission of a material fact from any written or
oral statement, document, form or other representation or device used by
the Department of Defense or any other Federal agency.
(p) Failing or refusing to answer or to authorize others to answer
questions or provide information required by a congressional committee,
court, or agency in the course of an official inquiry whenever such
answers or information concern relevant and material matters pertinent
to an evaluation of the individual's trustworthiness, reliability, and
judgment.
(q) Acts of sexual misconduct or perversion indicative of moral
turpitude, poor judgment, or lack of regard for the laws of society.
32 CFR 154.8 Types and scope of personnel security investigations.
(a) General. The types of personnel security investigations
authorized below vary in scope of investigative effort required to meet
the purpose of the particular investigation. No other types are
authorized. The scope of a PSI may be neither raised nor lowered
without the approval of the Deputy Under Secretary of Defense for
Policy.
(b) National Agency Check. Essentially, a NAC is a records check of
designated agencies of the Federal Government that maintain record
systems containing information relevant to making a personnel security
determination. An ENTNAC is a NAC (scope as outlined in paragraph 1,
Appendix A) conducted on inductees and first-term enlistees, but lacking
a technical fingerprint search. A NAC is also an integral part of each
BI, SBI, and Periodic Reinvestigation (PR). Subpart C prescribes when
an NAC is required.
(c) National Agency Check plus written inquiries. The Office of
Personnel Management (OPM) conducts a NAC plus Written Inquiries (NACIs)
on civilian employees for all departments and agencies of the Federal
Government, pursuant to E.O. 10450. NACIs are considered to meet the
investigative requirements of this regulation for a nonsensitive or
noncritical sensitive position and/or up to a Secret clearance and, in
addition to the NAC, include coverage of law enforcement agencies,
former employers and supervisors, references, and schools covering the
last 5 years.
(d) DoD National Agency check plus written inquiries. DIS will
conduct a DNACI, consisting of the scope contained in paragraph 2,
Appendix A, for DoD military and contractor personnel for access to
Secret information. Subpart C prescribes when a DNACI is required.
(e) Background investigation. The BI is the principal type of
investigation conducted when an individual requires Top Secret clearance
or is to be assigned to a critical sensitive position. The BI normally
covers a 5-year period and consists of a subject interview, NAC, LACs,
credit checks, developed character references (3), employment records
checks, employment references (3), and select scoping as required to
resolve unfavorable or questionable information. (See paragraph 3,
Appendix A). Subpart C prescribes when a BI is required.
(f) Special background investigation. (1) An SBI is essentially a BI
providing additional coverage both in period of time as well as sources
of information, scoped in accordance with the provisions of DCID 1/14
but without the personal interview. While the kind of coverage provided
for by the SBI determines eligibility for access to SCI, DoD has adopted
this coverage for certain other Special Access programs. Subpart C
prescribes when an SBI is required.
(2) The OPM, FBI, Central Intelligence Agency (CIA), Secret Service,
and the Department of State conduct specially scoped BIs under the
provisions of DCID 1/14. Any investigation conducted by one of the
above-cited agencies under DCID 1/14 standards is considered to meet the
SBI investigative requirements of this part.
(3) The detailed scope of an SBI is set forth in paragraph 4,
Appendix A.
(g) Special investigative inquiry. (1) A Special Investigative
Inquiry is a personnel security investigation conducted to prove or
disprove allegations relating to the criteria outlined in 154.7(a) of
this part except current criminal activities (see 154.9(c)(4)), that
have arisen concerning an individual upon whom a personnel security
determination has been previously made and who, at the time of the
allegation, holds a security clearance or otherwise occupies a position
that requires a trustworthiness determination.
(2) Special Investigative Inquiries are scoped as necessary to
address the specific matters requiring resolution in the case concerned
and generally consist of record checks and/or interviews with
potentially knowledgeable persons. An SII may include an interview with
the subject of the investigation when necessary to resolve conflicting
information and/or to provide an opportunity to refute or mitigate
adverse information.
(3) In those cases when there is a disagreement between Defense
Investigative Service (DIS) and the requester as to the appropriate
scope of the investigation, the matter may be referred to the Deputy
Under Secretary of Defense for Policy for resolution.
(h) Periodic reinvestigation. As referred to in 154.19(a) and other
national directives, certain categories of duties, clearance, and access
require the conduct of a PR every five years according to the scope
outlined in paragraph 5, Appendix A. The PR scope applies to military,
civilian, contractor, and foreign national personnel.
(i) Personal interview. Investigative experience over the years has
demonstrated that, given normal circumstances, the subject of a
personnel security investigation is the best source of accurate and
relevant information concerning the matters under consideration.
Further, restrictions imposed by the Privacy Act of 1974 dictate that
Federal investigative agencies collect information to the greatest
extent practicable directly from the subject when the information may
result in adverse determinations about an individual's rights, benefits,
and privileges under Federal programs. Accordingly, personal interviews
are an integral part of the DoD personnel security program and shall be
conducted in accordance with the requirements set forth in the following
paragraphs of this section.
(1) BI/PR. A personal interview shall be conducted by a trained DIS
agent as part of each BI and PR.
(2) Resolving adverse information. A personal interview of the
subject shall be conducted by a DIS agent (or, when authorized, by
investigative personnel of other DoD investigative organizations
designated in this Regulation to conduct personnel security
investigations), when necessary, as part of each Special Investigative
Inquiry, as well as during the course of initial or expanded
investigations, to resolve or clarify any information which may impugn
the subject's moral character, threaten the subject's future federal
employment, raise the question of subject's security clearability, or be
otherwise stigmatizing.
(3) Hostage situation. A personal interview shall be conducted by a
DIS agent (or, when authorized, by investigative personnel of other DoD
investigative organizations designated in this Regulation to conduct
personnel security investigations) in those instances in which an
individual has immediate family members or other persons bound by ties
of affection or obligation who reside in a nation whose interests are
inimical to the interests of the United States. (See 154.9(d).
(4) Applicants/potential nominees for DoD military or civilian
positions requiring access to SCI or other positions requiring an SBI.
A personal interview of the individual concerned shall be conducted, to
the extent feasible, as part of the selection process for
applicants/potential nominees for positions requiring access to SCI or
completion of an SBI. The interview shall be conducted by a designee of
the Component to which the applicant or potential nominee is assigned.
Clerical personnel are not authorized to conduct these interviews. Such
interviews shall be conducted utilizing resources in the order of
priority indicated below:
(i) Existing personnel security screening systems (e.g., Air Force
Assessment Screening Program, Naval Security Group Personnel Security
Interview Program, U.S. Army Personnel Security Screening Program); or
(ii) Commander of the nominating organization or such official as he
or she has designated in writing (e.g., Deputy Commander, Executive
Officer, Security Officer, Security Manager, S-2, Counterintelligence
Specialist, Personnel Security Specialist, or Personnel Officer); or
(iii) Agents of investigative agencies in direct support of the
Component concerned.
(5) Administrative procedures. (i) The personal interview required
by paragraph (i)(4) of this section shall be conducted in accordance
with Appendix F.
(ii) For those investigations requested subsequent to the personal
interview requirements of paragraph (i)(4) of this section the following
procedures apply:
(A) The DD Form 1879 (Request for Personnel Security Investigation)
shall be annotated under Item 20 (Remarks) with the statement ''Personal
Interview Conducted by (cite the duty assignment of the designated
official (e.g., Commander, Security Officer, Personnel Security
Specialist, etc.))'' in all cases in which an SBI is subsequently
requested.
(B) Unfavorable information developed through the personal interview
required by paragraph (i)(4) of this section, will be detailed in a
written report attached to the DD Form 1879 to include full
identification of the interviewer. Failure to provide such information
may result in conduct of an incomplete investigation by DIS.
(C) Whenever it is determined that it is not feasible to conduct the
personal interview required by paragraph (i)(4) of this section prior to
requesting the SBI, the DD Form 1879 shall be annotated under Item 20
citing the reason for not conducting the interview.
(j) Expanded investigation. If adverse or questionable information
relevant to a security determination is developed during the conduct of
a personnel security investigation, regardless of type, the
investigation shall be expanded, consistent with the restrictions in
154.10(e) to the extent necessary to substantiate or disprove the
adverse or questionable information.
32 CFR 154.9 Authorized personnel security investigative agencies.
(a) General. The DIS provides a single centrally directed personnel
security investigative service to conduct personnel security
investigations within the 50 states, District of Columbia, and
Commonwealth of Puerto Rico for DoD Components, except as provided for
in DoD Directive 5100.23. /1/ DIS will request the Military Departments
or other appropriate Federal Agencies to accomplish DoD investigative
requirements in other geographic areas beyond their jurisdiction. No
other DoD Component shall conduct personnel security investigations
unless specifically authorized by the Deputy Under Secretary of Defense
for Policy. In certain instances provided for below, the DIS shall
refer an investigation to other investigative agencies.
(b) Subversive affiliations -- (1) General. In the context of DoD
investigative policy, subversion refers only to such conduct as is
forbidden by the laws of the United States. Specifically, this is
limited to information concerning the activities of individuals or
groups that involve or will involve the violation of Federal law, for
the purpose of:
(i) Overthrowing the Government of the United States or the
government of a state;
(ii) Substantially impairing for the purpose of influencing U.S.
Government policies or decisions:
(A) The functions of the Government of the United States, or
(B) The functions of the government of a state;
(iii) Depriving persons of their civil rights under the Constitution
or laws of the United States.
(2) Military Department/FBI jurisdiction. Allegations of activities
covered by 154.7 (a) through (f) are in the exclusive investigative
domain of either the counterintelligence agencies of the Military
Departments or the FBI, depending on the circumstances of the case and
the provisions of the Agreement Governing the Conduct of Defense
Department Counterintelligence Activities in Conjunction with the FBI.
Whenever allegations of this nature are developed, whether before or
after a security clearance has been issued or during the course of a
personnel security investigation conducted by DIS, they shall be
referred immediately to either the FBI or to a military department
counterintelligence agency, as appropriate.
(3) DIS jurisdiction. Allegations of activities limited to those set
forth in 154.7 (g) through (j) of this part shall be investigated by
DIS.
(c) Suitability information -- (1) General. Most derogatory
information developed through personnel security investigations of DoD
military or civilian personnel is so-called suitability information,
that is, information pertaining to activities or situations covered by
154.7 (g) through (q). Almost all unfavorable personnel security
determinations made by DoD authorities are based on derogatory
suitability information, although such information is often used as a
basis for unfavorable administrative actions not of a security nature,
such as action under the Uniform Code of Military Justice or removal
from Federal employment under OPM regulations.
(2) Pre-clearance investigation. Derogatory suitability information,
except that covered in paragraph (c)(4) of this section, developed
during the course of a personnel security investigation, prior to the
issuance of an individual's personnel security clearance, shall be
investigated by DIS to the extent necessary to confirm or refute its
applicability to 154.7 (g) through (q).
(3) Postadjudication investigation. Derogatory suitability
allegations, except those covered by paragraph (c)(4) of this section
arising subsequent to clearance requiring investigation to resolve and
to determine the individual's eligibility for continued access to
classified information, reinstatement of clearance/access, or retention
in a sensitive position shall be referred to DIS to conduct a Special
Investigative Inquiry. Reinvestigation of individuals for adjudicative
reconsideration due to the passage of time or evidence of favorable
behavior shall also be referred to DIS for investigation. In such
cases, completion of the appropriate statement of personal history by
the individual constitutes consent to be investigated. Individual
consent or completion of a statement of personal history is not required
when 154.19(b) applies. Postadjudication investigation of allegations
of a suitability nature required to support other types of unfavorable
personnel security determinations or disciplinary procedures independent
of a personnel security determination shall be handled in accordance
with applicable Component administrative regulations. These latter
categories of allegations lie outside the DoD personnel security program
and are not a proper investigative function for departmental
counterintelligence organizations, Component personnel security
authorities, or DIS.
(4) Allegations of criminal activity. Any allegations of conduct of
a nature indicating possible criminal conduct, including any arising
during the course of a personnel security investigation, shall be
referred to the appropriate DoD, military department or civilian
criminal investigative agency. Military department investigative
agencies have primary investigative jurisdiction in cases where there is
probable cause to believe that the alleged conduct will be the basis for
prosecution under the Uniform Code of Military Justice.
(d) Hostage situations -- (1) General. A hostage situation exists
when a member of an individual's immediate family or such other person
to whom the individual is bound by obligation or affection resides in a
country whose interests are inimical to the interests of the United
States. The rationale underlying this category of investigation is
based on the possibility that an individual in such a situation might be
coerced, influenced, or pressured to act contrary to the best interests
of national security.
(2) DIS jurisdiction. In the absence of evidence of any coercion,
influence or pressure, hostage investigations are exclusively a
personnel security matter, rather than counterintelligence, and all such
investigations shall be conducted by DIS.
(3) Military Department and/or FBI jurisdiction. Should indications
be developed that hostile intelligence is taking any action specifically
directed against the individual concerned -- or should there exist any
other evidence that the individual is actually being coerced,
influenced, or pressured by an element inimical to the interests of
national security -- then the case becomes a counterintelligence matter
(outside of investigative jurisdiction of DIS) to be referred to the
appropriate military department or the FBI for investigation.
(e) Overseas personnel security investigations. Personnel security
investigations requiring investigation overseas shall be conducted under
the direction and control of DIS by the appropriate military department
investigative organization. Only postadjudication investigations
involving an overseas subject may be referred by the requester directly
to the military department investigative organization having
investigative responsibility in the overseas area concerned (see
Appendix I) with a copy of the investigative request sent to DIS. In
such cases, the military department investigative agency will complete
the investigation, forward the completed report of investigation
directly to DIS, with a copy to the requester.
/1/ See footnote 1 to 154.2(c).
32 CFR 154.10 Limitations and restrictions.
(a) Authorized requesters and personnel security determination
authorities. Personnel security investigations may be requested and
personnel security clearances (including Special Access authorizations
as indicated) granted only by those authorities designated in 154.31
and Appendix E.
(b) Limit investigations and access. The number of persons cleared
for access to classified information shall be kept to a minimum,
consistent with the requirements of operations. Special attention shall
be given to eliminating unnecessary clearances and requests for
personnel security investigations.
(c) Collection of investigative data. To the greatest extent
practicable, personal information relevant to security determinations
shall be obtained directly from the subject of a personnel security
investigation. Such additional information required to make the
necessary personnel security determination shall be obtained as
appropriate from knowledgeable personal sources, particularly the
subject's peers, and through checks of relevant records including
school, employment, credit, medical, and law enforcement records.
(d) Privacy Act notification. Whenever personal information is
solicited from an individual preparatory to the initiation of a
personnel security investigation, the individual must be informed of --
(1) The authority (statute or Executive order that authorized
solicitation);
(2) The principal purpose or purposes for which the information is to
be used;
(3) The routine uses to be made of the information;
(4) Whether furnishing such information is mandatory or voluntary;
(5) The effect on the individual, if any, of not providing the
information and
(6) That subsequent use of the data may be employed as part of an
aperiodic, random process to screen and evaluate continued eligibility
for access to classified information.
(e) Restrictions on investigators. Investigation shall be carried
out insofar as possible to collect only as much information as is
relevant and necessary for a proper personnel security determination.
Questions concerning personal and domestic affairs, national origin,
financial matters, and the status of physical health thus should be
avoided unless the question is relevant to the criteria of 154.7.
Similarly, the probing of a person's thoughts or beliefs and questions
about conduct that have no personnel security implications are
unwarranted. When conducting investigations under the provisions of
this part, investigators shall:
(1) Investigate only cases or persons assigned within their official
duties.
(2) Interview sources only where the interview can take place in
reasonably private surroundings.
(3) Always present credentials and inform sources of the reasons for
the investigation. Inform sources of the subject's accessibility to the
information to be provided and to the identity of the sources providing
the information. Restrictions on investigators relating to Privacy Act
advisements to subjects of personnel security investigations are
outlined in paragraph (d) of this section.
(4) Furnish only necessary identity data to a source, and refrain
from asking questions in such a manner as to indicate that the
investigator is in possession of derogatory information concerning the
subject of the investigation.
(5) Refrain from using, under any circumstances, covert or
surreptitious investigative methods, devices, or techniques including
mail covers, physical or photographic surveillance, voice analyzers,
inspection of trash, paid informants, wiretap, or eavesdropping devices.
(6) Refrain from accepting any case in which the investigator knows
of circumstances that might adversely affect his fairness, impartiality,
or objectivity.
(7) Refrain, under any circumstances, from conducting physical
searches of the subject or his property.
(8) Refrain from attempting to evaluate material contained in medical
files. Medical files shall be evaluated for personnel security program
purposes only by such personnel as are designated by DoD medical
authorities. However, review and collection of medical record
information may be accomplished by authorized investigative personnel.
(f) Polygraph restrictions. The polygraph may be used as a personnel
security screening measure only in those limited instances authorized by
the Secretary of Defense in DoD Directive 5210.48. /1/
/1/ See footnote 1 to 154.2(c).
32 CFR 154.10 Subpart C -- Personnel Security Investigative Requirements
32 CFR 154.13 Sensitive positions.
(a) Designation of sensitive positions. Certain civilian positions
within the Department of Defense entail duties of such a sensitive
nature, including access to classified information, that the misconduct,
malfeasance, or nonfeasance of an incumbent in any such position could
result in an unacceptably adverse impact upon the national security.
These positions are referred to in this part as sensitive positions. It
is vital to the national security that great care be exercised in the
selection of individuals to fill such positions. Similarly, it is
important that only positions which truly meet one or more of the
criteria set forth in paragraph (b) of this section be designated as
sensitive.
(b) Criteria for security designation of positions. Each civilian
position within the Department of Defense shall be categorized, with
respect to security sensitivity, as either nonsensitive,
noncritical-sensitive, or critical-sensitive.
(1) The criteria to be applied in designating a position as sensitive
are:
(i) Critical-sensitive.
(A) Access to Top Secret information.
(B) Development or approval of plans, policies, or programs that
affect the overall operations of the Department of Defense or of a DoD
Component.
(C) Development or approval of war plans, plans or particulars of
future major or special operations of war, or critical and extremely
important items of war.
(D) Investigative and certain investigative support duties, the
issuance of personnel security clearances or access authorizations, or
the making of personnel security determinations.
(E) Fiduciary, public contact, or other duties demanding the highest
degree of public trust.
(F) Duties falling under Special Access programs.
(G) Category I automated data processing (ADP) positions.
(H) Any other position so designated by the head of the Component or
designee.
(ii) Noncritical-sensitive.
(A) Access to Secret or Confidential information.
(B) Security police/provost marshal-type duties involving the
enforcement of law and security duties involving the protection and
safeguarding of DoD personnel and property.
(C) Category II automated data processing positions.
(D) Duties involving education and orientation of DoD personnel.
(E) Duties involving the design, operation, or maintenance of
intrusion detection systems deployed to safeguard DoD personnel and
property.
(F) Any other position so designated by the head of the Component or
designee.
(2) All other positions shall be designated as nonsensitive.
(c) Authority to designate sensitive positions. The authority to
designate sensitive positions is limited to those authorities designated
in paragraph G, Appendix E. These authorities shall designate each
position within their jurisdiction as to its security sensitivity and
maintain these designations current vis-a-vis the specific duties of
each position.
(d) Limitation of sensitive positions. It is the responsibility of
those authorities authorized to designate sensitive positions to insure
that only those positions are designated as sensitive that meet the
criteria of paragraph (b) and (c) of this section that the designation
of sensitive positions is held to a minimum consistent with mission
requirements. Designating authorities shall maintain an accounting of
the number of sensitive positions by category, i.e., critical or
non-critical sensitive. Such information will be included in annual
report required in Subpart K.
(e) Billet control system for Top Secret. (1) To standardize and
control the issuance of Top Secret clearances within the Department of
Defense, a specific designated billet must be established and maintained
for all DoD military and civilian positions requiring access to Top
Secret information. Only persons occupying these billet positions will
be authorized a Top Secret clearance. If an individual departs from a
Top Secret billet to a billet/position involving a lower level
clearance, the Top Secret clearance will be administratively rescinded.
This Top Secret billet requirement is in addition to the existing billet
structure maintained for SCI access.
(2) Each request to DIS for a BI or SBI that involves access to Top
Secret or SCI information will require inclusion of the appropriate
billet reference, on the request for investigation. Each Component head
should in corporate, to the extent feasible, the Top Secret billet
structure into the component Manpower Unit Manning Document. Such a
procedure should minimize the time and effort required to maintain such
a billet structure.
(3) A report on the number of established Top Secret billets will be
submitted each year to the DUSD(P) as part of the annual clearance
report referred to in Subpart K.
32 CFR 154.14 Civilian employment.
(a) General. The appointment of each civilian employee in any DoD
Component is subject to investigation, except for reappointment when the
break in employment is less than 12 months. The type of investigation
required is set forth in this section according to position sensitivity.
(b) Nonsensitive positions. In accordance with the OPM Federal
Personnel Manual, a NACI shall be requested not later than 3 working
days after a person is appointed to a nonsensitive position. Although
there is normally no investigation requirement for per diem,
intermittent, temporary or seasonal employees in nonsensitive positions
provided such employment does not exceed an aggregate of 120 days in
either a single continuous or series of appointments, a NAC may be
requested of DIS where deemed appropriate by the employing activity.
(c) Noncritical-sensitive positions. (1) An NACI shall be requested
and the NAC portion favorably completed before a person is appointed to
a noncritical-sensitive position (for exceptions see paragraph (e) (1)
and (2) of this section). An ENTNAC, NAC or DNACI conducted during
military or contractor employment may also be used for appointment
provided a NACI has been requested from OPM and there is no more than 12
months break in service since completion of the investigation.
(2) Seasonal employees (including summer hires) normally do not
require access to classified information. For those requiring access to
classified information the appropriate investigation is required. The
request for the NAC (or NACI) should be submitted to DIS by entering
''SH'' (summer hire) in red letters approximately one inch high on the
DD Form 398-2, Personnel Security Questionnaire (National Agency
Checklist). Additionally, to ensure expedited processing by DIS, summer
hire requests should be assembled and forwarded to DIS in bundles, when
appropriate.
(d) Critical-sensitive positions. A BI shall be favorably completed
prior to appointment to critical-sensitive positions (for exceptions see
paragraph (e) (1) and (2) of this section. Certain critical-sensitive
positions require a preappointment SBI in accordance with 154.17.
Preappointment BIs and SBIs will be conducted by DIS.
(e) Exceptions -- (1) Noncritical-sensitive. In an emergency, a
noncritical-sensitive position may be occupied pending the completion of
the NACI if the head of the requesting organization finds that the delay
in appointment would be harmful to the national security and such
finding is reduced to writing and made part of the record. In such
instances, the position may be filled only after the NACI has been
requested.
(2) Critical-sensitive. In an emergency, a critical-sensitive
position may be occupied pending completion of the BI (or SBI, as
appropriate) if the head of the requesting organization finds that the
delay in appointment would be harmful to the national security and such
finding is reduced to writing and made a part of the record. In such
instances, the position may be filled only when the NAC portion of the
BI (or SBI) or a previous valid NACI, NAC or ENTNAC has been completed
and favorably adjudicated.
(f) Mobilization of DoD civilian retirees. The requirements
contained in paragraph (a) of this section, regarding the type of
investigation required by position sensitivity for DoD civilian retirees
temporary appointment when the break in employment is greater than 12
months, should either be expedited or waived for the purposes of
mobilizing selected reemployed annuitants under the provisions of Title
5, United States Code, depending upon the degree of sensitivity of the
position to which assigned. Particular priority should be afforded to
newly assigned personnel assigned to the defense intelligence and
security agencies with respect to granting security clearances in an
expeditious manner under paragraph (a) of this section.
32 CFR 154.15 Military appointment, enlistment, and induction.
(a) General. The appointment, enlistment, and induction of each
member of the Armed Forces or their Reserve Components shall be subject
to the favorable completion of a personnel security investigation. The
types of investigation required are set forth in this section.
(b) Entrance investigation. (1) An ENTNAC shall be conducted on each
enlisted member of the Armed Forces at the time of initial entry into
the service. A DNACI shall be conducted on each commissioned officer,
except as permitted by paragraph (d) of this section, warrant officer,
cadet, midshipman, and Reserve Officers Training Candidate, at the time
of appointment. A full NAC shall be conducted upon reentry of any of
the above when there has been a break in service greater than 12 months.
(2) If an officer or warrant officer candidate has been the subject
of a favorable NAC or ENTNAC and there has not been a break in service
of more than 12 months, a new NAC is not authorized. This includes ROTC
graduates who delay entry onto active duty pending completion of their
studies.
(3) All derogatory information revealed during the enlistment or
appointment process that results in a moral waiver will be fully
explained on a written summary attached to the DD Form 398-2.
(c) Reserve Components and National Guard. Reserve Component and
National Guard personnel not on active duty are subject to the
investigative requirements of this section.
(d) Exceptions for certain commissioned officers of Reserve
Components. The requirements for entrance investigation shall be
rigidly adhered to except as follows. Health professionals, chaplains,
and attorneys may be commissioned in the Reserve Components prior to
completion of a DNACI provided that:
(1) A DNACI is initiated at the time an application for a commission
is received; and
(2) The applying health professional, chaplain, or attorney agrees in
writing that, if the results of the investigation are unfavorable, he or
she will be subject to discharge if found to be ineligible to hold a
commission. Under this exception, commissions in Reserve Components
other than the National Guard may be tendered to immigrant alien health
professionals, chaplains, and attorneys.
(e) Mobilization of military retirees. The requirements contained in
paragraph (c) of this section, regarding a full NAC upon reentry to
active duty of any officer or enlisted regular/reserve military retiree
or Individual Ready Reserve who has been separated from service for a
period of greater than 12 months, should be waived for the purposes of
partial or full mobilization under provisions of title 10, (title 14,
pertaining to the U.S. Coast Guard as an element of the Navy) U.S. Code,
to include the period of prescribed service refresher training.
Particular priority should be afforded to military retirees mobilized
and assigned to the defense intelligence and security agencies
communities.
32 CFR 154.16 Security clearance.
(a) General. (1) The authorities designated in paragraph A, Appendix
E are the only authorities authorized to grant, deny or revoke DoD
personnel security clearances. The granting of such clearances shall be
limited to only those persons who require access to classified
information for mission accomplishment.
(2) Military, DoD civilian, and contractor personnel who are employed
by or serving in a consultant capacity to the DoD, may be considered for
access to classified information only when such access is required in
connection with official duties. Such individuals may be granted either
a final or interim personnel security clearance provided the
investigative requirements set forth below are complied with, and
provided further that all available information has been adjudicated and
a finding made that such clearance would be clearly consistent with the
interests of national security.
(b) Investigative requirements for clearance -- (1) Top Secret. (i)
Final Clearance:
(A) BI.
(B) Established billet per 154.13(e) (1) through (3) (except
contractors).
(ii) Interim Clearance:
(A) Favorable NAC, ENTNAC, DNACI, or NACI completed
(B) Favorable review of DD Form 398/SF-86/SF-171/DD Form 49
(C) BI or SBI has been initiated
(D) Favorable review of local personnel, base/military police,
medical, and other security records as appropriate.
(E) Established billet per 154.13(e) (1) through (3) (except
contractors)
(F) Provisions of paragraph 154.14(e) (1) and (2) have been met
regarding civilian personnel.
(2) Secret. (i) Final Clearance:
(A) DNACI: Military (except first-term enlistees) and contractor
employees
(B) NACI: Civilian employees
(C) ENTNAC: First-term enlistees
(ii) Interim Clearance:
(A) When a valid need to access Secret information is established, an
interim Secret clearance may be issued in every case, provided that the
steps outlined in paragraphs (b)(2)(ii) (B) through (E) of this section
have been complied with.
(B) Favorable review of DD Form 398-2/SF-85/SF-171/DD Form 48.
(C) NACI, DNACI, or ENTNAC initiated.
(D) Favorable review of local personnel, base military police,
medical, and security records as appropriate.
(E) Provisions of 154.14(e) have been complied with regarding
civilian personnel.
(3) Confidential. (i) Final Clearance:
(A) NAC or ENTNAC: Military and contractor employees (except for
Philippine national members of the United States Navy on whom a BI shall
be favorably completed.)
(B) NACI: Civilian employees (except for summer hires who may be
granted a final clearance on the basis of a NAC).
(ii) Interim Clearance:
(A) Favorable review of DD Form 398-2/SF 85/SF 171/ DD Form 48.
(B) NAC, ENTNAC or NACI initiated.
(C) Favorable review of local personnel, base military police,
medical, and security records as appropriate.
(D) Provisions of 154.14(e) (1) and (2) have been complied with
regarding civilian personnel.
(4) Validity of previously granted clearances. Clearances granted
under less stringent investigative requirements retain their validity;
however, if a higher degree of clearance is required, investigative
requirements of this directive will be followed.
(c) Access to classified information by non-U.S. citizens. (1) Only
U.S. citizens are eligible for a security clearance. Therefore, every
effort shall be made to ensure that non-United States citizens are not
employed in duties that may require access to classified information.
However, when there are compelling reasons to grant access to classified
information to an immigrant alien or a foreign national in furtherance
of the mission of the Department of Defense, such individuals may be
granted a ''Limited Access Authorization'' (LAA) under the following
conditions:
(i) LAAs will be limited to Secret and Confidential level only; LAAs
for Top Secret are prohibited.
(ii) Access to classified information is not inconsistent with that
determined releasable by designated disclosure authorities, in
accordance with DoD Directive 5230.11 /1/ to the country of which the
individual is a citizen.
(iii) Access to classified information must be limited to information
relating to a specific program or project.
(iv) Favorable completion of an BI (scoped for 10 years); where the
full investigative coverage cannot be completed, a counterintelligence
scope polygraph examination will be required in accordance with the
provisions of DoD Directive 5210.48.
(v) Security clearances previously issued to immigrant aliens will be
reissued as LAAs.
(vi) The Limited Access Authorization determination shall be made
only by an authority designated in paragraph B, Appendix E.
(vii) LAAs issued by the Unified and Specified Commands shall be
reported to the central adjudicative facility of the appropriate
military department in accordance with the assigned responsibilities in
DoD Directive 5100.3 /1/ for inclusion in the Defense Central Index of
Investigation (DCII).
(2) In each case of granting a Limited Access Authorization, a record
shall be maintained as to:
(i) The identity (including current citizenship) of the individual to
whom the Limited Access Authorization is granted, to include name and
date and place of birth;
(ii) Date and type of most recent investigation to include the
identity of the investigating agency;
(iii) The nature of the specific program material(s) to which access
is authorized (delineated as precisely as possible);
(iv) The classification level to which access is authorized; and
(v) The compelling reasons for granting access to the materials cited
in (iii).
(vi) Status of the individual (i.e., immigrant alien or foreign
national).
(3) Individuals granted LAAs under the foregoing provisions shall be
the subject of a 5-year periodic reinvestigation as set forth in
paragraph 5, Appendix A.
(4) Foreign nationals who are LAA candidates must agree to submit to
a counterintelligence-scope polygraph examination prior to being granted
access in accordance with DoD Directive 5210.48.
(5) If geographical and political situations prevent the full
completion of the BI (and/or counterintelligence-scope polygraph)
issuance of an LAA shall not be authorized; exceptions to the policy
may only be authorized by the DUSD(P).
(6) A report on all LAAs in effect, including the data required in
paragraphs (d)(2) (i) through (vi) of this section shall be furnished to
the Deputy Under Secretary of Defense for Policy within 60 days after
the end of each fiscal year. (See 154.77).
(d) Access by persons outside the Executive Branch. (1) Access to
classified information by persons outside the Executive Branch shall be
accomplished in accordance with 32 CFR Part 159. The investigative
requirement shall be the same as for the appropriate level of security
clearance, except as indicated below.
(2) Members of the U.S. Senate and House of Representatives do not
require personnel security clearances. They may be granted access to
DoD classified information which relates to matters under the
jurisdiction of the respective Committees to which they are assigned and
is needed to perform their duties in connection with such assignments.
(3) Congressional staff members requiring access to DoD classified
information shall be processed for a security clearance in accordance
with 32 CFR Part 353 and the provisions of this part. The Director,
Washington Headquarters Services (WHS) will initiate the required
investigation (initial or reinvestigation) to DIS, adjudicate the
results and grant, deny or revoke the security clearance, as
appropriate. The Assistant Secretary of Defense (Legislative Affairs)
will be notified by WHS of the completed clearance action.
(4) State governors do not require personnel security clearances.
They may be granted access to specifically designated classified
information, on a ''need-to-know'' basis, based upon affirmation by the
Secretary of Defense or the head of a DoD Component or single designee,
that access, under the circumstances, serves the national interest.
Staff personnel of a governor's office requiring access to classified
information shall be investigated and cleared in accordance with the
prescribed procedures of this part when the head of a DoD Component, or
single designee, affirms that such clearance serves the national
interest. Access shall also be limited to specifically designated
classified information on a ''need-to-know'' basis.
(5) Members of the U.S. Supreme Court, the Federal judiciary and the
Supreme Courts of the individual states do not require personnel
security clearances. They may be granted access to DoD classified
information to the extent necessary to adjudicate cases being heard
before these individual courts.
(6) Attorneys representing DoD military, civilian or contractor
personnel, requiring access to DoD classified information to properly
represent their clients, shall normally be investigated by DIS and
cleared in accordance with the prescribed procedures in paragraph (b) of
this section. This shall be done upon certification of the General
Counsel of the DoD Component involved in the litigation that access to
specified classified information, on the part of the attorney concerned,
is necessary to adequately represent his or her client. In exceptional
instances, when the exigencies of a given situation do not permit timely
compliance with the provisions of 154.16(b), access may be granted with
the written approval of an authority designated in Appendix E provided
that as a minimum: a favorable name check of the FBI and the DCII has
been completed, and a DoD Non-Disclosure Agreement has been executed.
In post-indictment cases, after a judge has invoked the security
procedures of the Classified Information Procedures Act (CIPA) the
Department of Justice may elect to conduct the necessary background
investigation and issue the required security clearance, in coordination
with the affected DoD Component.
(e) Restrictions on issuance of personnel security clearances.
Personnel security clearances must be kept to the absolute minimum
necessary to meet mission requirements. Personnel security clearances
shall not be issued:
(1) To persons in nonsensitive positions.
(2) To persons whose regular duties do not require authorized access
to classified information.
(3) For ease of movement of persons within a restricted, controlled,
or industrial area, whose duties do not require access to classified
information.
(4) To persons who may only have inadvertent access to sensitive
information or areas, such as guards, emergency service personnel,
firemen, doctors, nurses, police, ambulance drivers, or similar
personnel.
(5) To persons working in shipyards whose duties do not require
access to classified information.
(6) To persons who can be prevented from accessing classified
information by being escorted by cleared personnel.
(7) To food service personnel, vendors and similar commercial sales
or service personnel whose duties do not require access to classified
information.
(8) To maintenance or cleaning personnel who may only have
inadvertent access to classified information unless such access cannot
be reasonably prevented.
(9) To persons who perform maintenance on office equipment,
computers, typewriters, and similar equipment who can be denied
classified access by physical security measures.
(10) To perimeter security personnel who have no access to classified
information.
(11) To drivers, chauffeurs and food service personnel.
(f) Dual citizenship. Persons claiming both U.S. and foreign
citizenship shall be processed under 154.16(b) and adjudicated in
accordance with the ''Foreign Preference'' standard in Appendix I.
(g) One-time access. Circumstances may arise where an urgent
operational or contractual exigency exists for cleared DoD personnel to
have one-time or short duration access to classified information at a
higher level than is authorized by the existing security clearance. In
many instances, the processing time required to upgrade the clearance
would preclude timely access to the information. In such situations,
and only for compelling reasons in furtherance of the DoD mission, an
authority referred to in paragraph (h)(1) of this section, may grant
higher level access on a temporary basis subject to the terms and
conditions prescribed below. This special authority may be revoked for
abuse, inadequate record keeping, or inadequate security oversight.
These procedures do not apply when circumstances exist which would
permit the routine processing of an individual for the higher level
clearance. Procedures and conditions for effecting emergency one-time
access to the next higher classification level are as follows:
(1) Authorization for such one-time access shall be granted by a flag
or general officer, a general court-martial convening authority or
equivalent Senior Executive Service member, after coordination with
appropriate security officials.
(2) The recipient of the one-time access authorization must be a U.S.
citizen, possess a current DoD security clearance, and the access
required shall be limited to classified information one level higher
than the current clearance.
(3) Such access, once granted, shall be cancelled promptly when no
longer required, at the conclusion of the authorized period of access,
or upon notification from the granting authority.
(4) The employee to be afforded the higher level access shall have
been continuously employed by a DoD Component or a cleared DoD
contractor for the preceding 24-month period. Higher level access is
not authorized for part-time employees.
(5) Pertinent local records concerning the employee concerned shall
be reviewed with favorable results.
(6) Whenever possible, access shall be confined to a single instance
or at most, a few occasions. The approval for access shall
automatically expire 30 calendar days from date access commenced. If
the need for access is expected to continue for a period in excess of 30
days, written approval of the granting authority is required. At such
time as it is determined that the need for access is expected to extend
beyond 90 days, the individual concerned shall be promptly processed for
the level of clearance required. When extended access has been
approved, such access shall be cancelled at or before 90 days from
original date of access.
(7) Access at the higher level shall be limited to information under
the control and custody of the authorizing official and shall be
afforded under the general supervision of a properly cleared employee.
The employee charged with providing such supervision shall be
responsible for:
(i) Recording the higher-level information actually revealed,
(ii) The date(s) such access is afforded; and
(iii) The daily retrieval of the material accessed.
(8) Access at the next higher level shall not be authorized for
COMSEC, SCI, NATO, or foreign government information.
(9) The exercise of this provision shall be used sparingly and repeat
use within any 12 month period on behalf of the same individual is
prohibited. The approving authority shall maintain a record containing
the following data with respect to each such access approved:
(i) The name, and SSN of the employee afforded higher level access.
(ii) The level of access authorized.
(iii) Justification for the access, to include an explanation of the
compelling reason to grant the higher level access and specifically how
the DoD mission would be furthered.
(iv) An unclassified description of the specific information to which
access was authorized and the duration of access along with the date(s)
access was afforded.
(v) A listing of the local records reviewed and a statement that no
significant adverse information concerning the employee is known to
exist.
(vi) The approving authority's signature certifying (h)(9) (i)
through (v) of this section.
(vii) Copies of any pertinent briefing/debriefings administered to
the employee.
(h) Access by retired flag/general officers. (1) Upon determination
by an active duty flag/general officer that there are compelling
reasons, in furtherance of the Department of Defense mission, to grant a
retired flag/general officer access to classified information in
connection with a specific DoD program or mission, for a period not
greater than 90 days, the investigative requirements of this part may be
waived. The access shall be limited to classified information at a
level commensurate with the security clearance held at the time of
retirement -- not including access to SCI.
(2) The flag/general officer approving issuance of the clearance
shall, provide the appropriate DoD Component central clearance facility
a written record to be incorporated into the DCII detailing:
(i) Full identifying data pertaining to the cleared subject;
(ii) The classification of the information to which access was
authorized.
(3) Such access may be granted only after the compelling reason and
the specific aspect of the DoD mission which is served by granting such
access has been detailed and under the condition that the classified
materials involved are not removed from the confines of a government
installation or other area approved for storage of DoD classified
information.
(52 FR 11219, Apr. 8, 1987, as amended at 55 FR 3223, Jan. 31, 1990)
/1/ See footnote 1 to 154.2(c).
32 CFR 154.17 Special access programs.
(a) General. It is the policy of the Department of Defense to
establish, to the extent possible, uniform and consistent personnel
security investigative requirements. Accordingly, investigations
exceeding established requirements are authorized only when mandated by
statute, national regulations, or international agreement. In this
connection, there are certain Special Access programs originating at the
national or international level that require personnel security
investigations and procedures of a special nature. These programs and
the special investigative requirements imposed by them are described in
this section. A Special Access program is any program designed to
control access, distribution, and protection of particularly sensitive
information established pursuant to section 4-2 of Executive Order 12356
and prior Orders. Title 32 CFR Part 159 governs the establishment of
Departmental Special Access Programs.
(b) Sensitive Compartmented Information (SCI). (1) The investigative
requirements for access to SCI is an SBI (See paragraph 4, Appendix A)
including a NAC on the individual's spouse or cohabitant. When
conditions indicate, additional investigation shall be conducted on the
spouse of the individual and members of the immediate family (or other
persons to whom the individual is bound by affection or obligation) to
the extent necessary to permit a determination by the adjudication
agency that the Personnel Security standards of DCID 1/14 are met.
(2) A previous investigation conducted within the past five years
which substantially meets the investigative requirements prescribed by
this section may serve as a basis for granting access approval provided
that there has been no break in the individual's military service, DoD
civilian employment, or access to classified information under the
Industrial Security Program greater than 12 months. The individual
shall submit one copy of an updated PSQ covering the period since the
completion of the last SBI.
(c) Single Integrated Operation Plan -- Extremely Sensitive
Information (SIOP-ESI). The investigative requirement for access to
SIOP-ESI is an SBI, including a NAC on the spouse and the individual's
immediate family who are 18 years of age or over and who are U.S.
citizens other than by birth or who are resident aliens.
(d) Presidential support activities. (1) DoD Directive 5210.55 /1/
prescribes the policies and procedures for the nomination, screening,
selection, and continued evaluation of DoD military and civilian
personnel and contractor employees assigned to or utilized in
Presidential Support activities. The type of investigation of
individuals assigned to Presidential Support activities varies according
to whether the person investigated qualifies for Category One or
Category Two as indicated below:
(i) Category one. (A) Personnel assigned on a permanent or full-time
basis to duties in direct support of the President (including the office
staff of the Director, White House Military Office, and all individuals
under his control):
(1) Presidential aircrew and associated maintenance and security
personnel.
(2) Personnel assigned to the White House communications activities
and the Presidential retreat.
(3) White House transportation personnel.
(4) Presidential mess attendants and medical personnel.
(5) Other individuals filling administrative positions at the White
House.
(B) Personnel assigned on a temporary or part-time basis to duties
supporting the President:
(1) Military Social Aides.
(2) Selected security, transportation, flight-line safety, and
baggage personnel.
(3) Others with similar duties.
(C) Personnel assigned to the Office of the Military Aide to the Vice
President.
(ii) Category two. (A) Personnel assigned to honor guards,
ceremonial units, and military bands who perform at Presidential
functions and facilities.
(B) Employees of contractors who provide services or contractors
employees who require unescorted access to Presidential Support areas,
activities, or equipment -- including maintenance of the Presidential
retreat, communications, and aircraft.
(C) Individuals in designated units requiring a lesser degree of
access to the President or Presidential Support activities.
(2) Personnel nominated for Category One duties must have been the
subject of an SBI, including a NAC on the spouse and all members of the
individual's immediate family of 18 years of age or over who are U.S.
citizens other than by birth or who are resident aliens. The SBI must
have been completed within the 12 months preceding selection for
Presidential Support duties. If such an individual marries subsequent
to the completion of the SBI, the required spouse check shall be made at
that time.
(3) Personnel nominated for Category Two duties must have been the
subject of a BI, including a NAC on the spouse and all members of the
individual's immediate family of 18 years of age or over who are U.S.
citizens other than by birth or who are resident aliens. The BI must
have been completed within the 12 months preceding selection for
Presidential Support duties. It should be noted that duties (separate
and distinct from their Presidential Support responsibilities) of some
Category Two personnel may make it necessary for them to have special
access clearances which require an SBI.
(4) The U.S. citizenship of foreign-born immediate family members of
all Presidential Support nominees must be verified by investigation.
(5) A limited number of Category One personnel having especially
sensitive duties have been designated by the Director, White House
Military Office as ''Category A.'' These personnel shall be investigated
under special scoping in accordance with the requirements of the
Memorandum of Understanding between the Director, White House Military
Office and the Special Assistant to the Secretary and Deputy Secretary
of Defense, July 30, 1980.
(e) Nuclear Weapon Personnel Reliability Program (PRP). (1) DoD
Directive 5210.42 /1/ sets forth the standards of individual reliability
required for personnel performing duties associated with nuclear weapons
and nuclear components. The investigative requirement for personnel
performing such duties is:
(i) Critical position: BI. In the event that it becomes necessary to
consider an individual for a critical position and the required BI has
not been completed, interim certification may be made under carefully
controlled conditions as set forth below.
(A) The individual has had a favorable DNACI, NAC (or ENTNAC) within
the past 5 years without a break in service or employment in excess of 1
year.
(B) The BI has been requested.
(C) All other requirements of the PRP screening process have been
fulfilled.
(D) The individual is identified to supervisory personnel as being
certified on an interim basis.
(E) The individual is not used in a two-man team with another such
individual.
(F) Justification of the need for interim certification is documented
by the certifying official.
(G) Should the BI not be completed within 150 days from the date of
the request, the certifying official shall query the Component clearance
authority, who shall ascertain from DIS the status of the investigation.
On the basis of such information, the certifying official shall
determine whether to continue or to withdraw the interim certification.
(ii) Controlled position: DNACI/NACI. (A) An ENTNAC completed for
the purpose of first term enlistment or induction into the Armed Forces
does not satisfy this requirement.
(B) Interim certification is authorized for an individual who has not
had a DNACI/NACI completed within the past 5 years, subject to the
following conditions:
(1) The individual has had a favorable ENTNAC/NAC, or higher
investigation, that is more than 5 years old and has not had a break in
service or employment in excess of 1 year.
(2) A DNACI/NACI has been requested at the time of interim
certification.
(3) All other requirements of the PRP screening process have been
fulfilled.
(4) Should the DNACI/NACI not be completed within 90 days from the
date of the request, the procedures set forth in paragraph (e)(1)(i)(G)
of this section for ascertaining the delay of the investigation in the
case of a critical position shall apply.
(iii) Additional requirements apply. (A) The investigation upon
which certification is based must have been completed within the last 5
years from the date of initial assignment to a PRP position and there
must not have been a break in service or employment in excess of 1 year
between completion of the investigation and initial assignment.
(B) In those cases in which the investigation was completed more than
5 years prior to initial assignment or in which there has been a break
in service or employment in excess of 1 year subsequent to completion of
the investigation, a reinvestigation is required.
(C) Subsequent to initial assignment to the PRP, reinvestigation is
not required so long as the individual remains in the PRP.
(D) A medical evaluation of the individual as set forth in DoD
Directive 5210.42.
(E) Review of the individual's personnel file and other official
records and information locally available concerning behavior or conduct
which is relevant to PRP standards.
(F) A personal interview with the individual for the purpose of
informing him of the significance of the assignment, reliability
standards, the need for reliable performance, and of ascertaining his
attitude with respect to the PRP.
(G) Service in the Army, Navy and Air Force Reserve does not
constitute active service for PRP purposes.
(f) Access to North Atlantic Treaty Organization (NATO) classified
information. (1) Personnel assigned to a NATO staff position requiring
access to NATO Cosmic (Top Secret), Secret, or Confidential information
shall have been the subject of a favorably adjudicated BI (10 year
scope), DNACI/NACI or NAC/ENTNAC, current within five years prior to the
assignment, in accordance with USSAN Instruction 1-69 and 154.19(f).
(2) Personnel not assigned to a NATO staff position, but requiring
access to NATO Cosmic, Secret or Confidential information in the normal
course of their duties, must possess the equivalent final U.S. security
clearance based upon the appropriate personnel security investigation
(Appendix A) required by 154.16(b) and 154.19(j) of this part.
(g) Other special access programs. Special investigative
requirements for Special Access programs not provided for in this
paragraph may not be established without the written approval of the
Deputy Under Secretary of Defense for Policy.
/1/ See footnote 1 to 154.2(c).
/1/ See footnote 1 to 154.2(c).
32 CFR 154.18 Certain positions not necessarily requiring access to
classified information.
(a) General. DoD Directive 5200.8 /1/ outlines the authority of
military commanders under the Internal Security Act of 1950 to issue
orders and regulations for the protection of property or places under
their command. Essential to carrying out this responsibility is a
commander's need to protect the command against the action of
untrustworthy persons. Normally, the investigative requirements
prescribed in this part should suffice to enable a commander to
determine the trustworthiness of individuals whose duties require access
to classified information or appointment to positions that are sensitive
and do not involve such access. However, there are certain categories
of positions or duties which, although not requiring access to
classified information, if performed by untrustworthy persons, could
enable them to jeopardize the security of the command or otherwise
endanger the national security. The investigative requirements for such
positions or duties are detailed in this section.
(b) Access to restricted areas, sensitive information or equipment
not involving access to classified information. (1) Access to
restricted areas, sensitive information or equipment by DoD military,
civilian or contractor personnel shall be limited to those individuals
who have been determined trustworthy as a result of the favorable
completion of a NAC (or ENTNAC) or who are under the escort of
appropriately cleared personnel. Where escorting such persons is not
feasible, a NAC shall be conducted and favorably reviewed by the
appropriate component agency or activity prior to permitting such
access. DoD Components shall not request, and shall not direct or
permit their contractors to request, security clearances to permit
access to areas when access to classified information is not required in
the normal course of duties or which should be precluded by appropriate
security measures. In determining trustworthiness under this paragraph,
the provisions of 154.7 and Appendix H will be utilized.
(2) In meeting the requirements of this paragraph, approval shall be
obtained from one of the authorities designated in paragraph A, Appendix
E of this part, for authority to request NACs on DoD military, civilian
or contractor employees. A justification shall accompany each request
which shall detail the reasons why escorted access would not better
serve the national security. Requests for investigative requirements
beyond a NAC shall be forwarded to the Deputy Under Secretary of Defense
for Policy for approval.
(3) NAC requests shall --
(i) Be forwarded to DIS in accordance with the provisions of
paragraph B, Appendix C,
(ii) Contain a reference to this paragraph on the DD Form 398-2, and
(iii) List the authority in Appendix E who approved the request.
(4) Determinations to deny access under the provisions of this
paragraph must not be exercised in an arbitrary, capricious, or
discriminatory manner and shall be the responsibility of the military or
installation commander as provided for in DoD Directive 5200.8.
(c) Nonappropriated fund employees. Each Nonappropriated Fund
employee who is employed in a position of trust as designated by an
official authorized in paragraph H, Appendix E, shall have been the
subject of a NAC completed no longer than 12 months prior to employment
or a prior personnel security investigation with no break in Federal
service or employment greater than 12 months in accordance with DoD
Manual 1401.1-M. An individual who does not meet established suitability
requirements may not be employed without prior approval of the
authorizing official. Issuance of a Confidential or Secret clearance
will be based on a DNACI or NACI in accordance with 154.16(b).
(d) Customs inspectors. DoD employees appointed as customs
inspectors, under waivers approved in accordance with DoD 5030.49-R
shall have undergone a favorably adjudicated NAC completed within the
past 5 years unless there has been a break in DoD employment greater
than 1 year in which case a current NAC is required.
(e) Red Cross/United Service Organizations personnel. A favorably
adjudicated NAC shall be accomplished on Red Cross or United Service
Organizations personnel as prerequisite for assignment with the Armed
Forces overseas (32 CFR Part 253).
(f) Officials authorized to issue security clearances. Any person
authorized to adjudicate personnel security clearances shall have been
the subject of a favorably adjudicated BI.
(g) Personnel security clearance adjudication officials. Any person
selected to serve with a board, committee, or other group responsible
for adjudicating personnel security cases shall have been the subject of
a favorably adjudicated BI.
(h) Persons requiring DoD building passes. Pursuant to DoD Directive
5210.46 /1/ each person determined by the designated authorities of the
Components concerned as having an official need for access to DoD
buildings in the National Capital Region shall be the subject of a
favorably, adjudicated NAC prior to issuance of a DoD building pass.
Conduct of a BI for this purpose is prohibited unless approved in
advance by ODUSD(P).
(i) Foreign national employees overseas not requiring access to
classified information. Foreign nationals employed by DoD organizations
overseas, whose duties do not require access to classified information,
shall be the subject of the following record checks, initiated by the
appropriate military department investigative organization consistent
with 154.9(e) prior to employment:
(1) Host government law enforcement and security agency checks at the
city, state (province), and national level, whenever permissible by the
laws of the host government; and
(2) DCII.
(3) FBI-HQ/ID. (Where information exists regarding residence by the
foreign national in the United States for one year or more since age
18).
(j) Special agents and investigative support personnel. Special
agents and those noninvestigative personnel assigned to investigative
agencies whose official duties require continuous access to complete
investigative files and material require an SBI.
(k) Persons requiring access to chemical agents. Personnel whose
duties involve access to or security of chemical agents shall be
screened initially for suitability and reliability and shall be
evaluated on a continuing basis at the supervisory level to ensure that
they continue to meet the high standards required. At a minimum, all
such personnel shall have had a favorably adjudicated NAC completed
within the last 5 years prior to assignment in accordance with the
provisions of DoD Directive 5210.65. /1/
(l) Education and orientation personnel. Persons selected for duties
in connection with programs involving the education and orientation of
military personnel shall have been the subject of a favorably
adjudicated NAC prior to such assignment. This does not include
teachers/administrators associated with university extension courses
conducted on military installations in the United States. Non-US
citizens from a country listed in Appendix G shall be required to
undergo a BI if they are employed in a position covered by this
paragraph.
(m) Contract guards. Any person performing contract guard functions
shall have been the subject of a favorably adjudicated NAC prior to such
assignment.
(n) Transportation of arms, ammunition and explosives (AA&E). Any
DoD military, civilian or contract employee (including commercial
carrier) operating a vehicle or providing security to a vehicle
transporting Category I, II or Confidential AA&E shall have been the
subject of a favorably adjudicated NAC or ENTNAC.
(o) Personnel occupying information systems positions designated
ADP-I, ADP-II & ADP-III. DoD military, civilian personnel, consultants,
and contractor personnel performing on unclassified automated
information systems may be assigned to one of three position sensitivity
designations (in accordance with Appendix J) and investigated as
follows:
ADP-I: BI
ADP-II: DNACI/NACI
ADP-III: NAC/ENTNAC
Those personnel falling in the above categories who require access to
classified information will, of course, be subject to the appropriate
investigative scope contained in 154.16(b).
(p) Others. Requests for approval to conduct an investigation on
other personnel, not provided for in 154.18 (b) through (o) considered
to fall within the general provisions of 154.18(a) shall be submitted,
detailing the justification therefor, for approval to the Deputy Under
Secretary of Defense for Policy. Approval of such requests shall be
contingent upon an assurance that appropriate review procedures exist
and that adverse determinations will be made at no lower than major
command level.
/1/ See footnote 1 to 154.2(c).
/1/ See footnote 1 to 154.2(c).
/1/ See footnote 1 to 154.2(c).
32 CFR 154.19 Reinvestigation.
(a) General. DoD policy prohibits unauthorized and unnecessary
investigations. There are, however, certain situations and requirements
that necessitate reinvestigation of an individual who has already been
investigated under the provisions of this part. It is the policy to
limit reinvestigation of individuals to the scope contained in paragraph
5, Appendix A to meet overall security requirements. Reinvestigation,
generally, is authorized only as follows:
(1) To prove or disprove an allegation relating to the criteria set
forth in 154.7 of this part with respect to an individual holding a
security clearance or assigned to a position that requires a
trustworthiness determination;
(2) To meet the periodic reinvestigation requirements of this part
with respect to those security programs enumerated below; and
(3) Upon individual request, to assess the current eligibility of
individuals who did not receive favorable adjudicative action after an
initial investigation, if a potential clearance need exists and there
are reasonable indications that the factors upon which the adverse
determination was made no longer exists.
(b) Allegations related to disqualification. Whenever questionable
behavior patterns develop, derogatory information is discovered, or
inconsistencies arise related to the disqualification criteria outlined
in 154.7 that could have an adverse impact on an individual's security
status, a Special Investigative Inquiry (SII), psychiatric, drug or
alcohol evaluation, as appropriate, may be requested to resolve all
relevant issues in doubt. If it is essential that additional relevant
personal data is required from the investigative subject, and the
subject fails to furnish the required data, the subject's existing
security clearance or assignment to sensitive duties shall be terminated
in accordance with 154.56(b).
(c) Access to Sensitive Compartmented Information (SCI). Each
individual having current access to SCI shall be the subject of a PR
conducted on a 5-year recurring basis scoped as set forth in paragraph
5, Appendix A.
(d) Critical-sensitive positions. Each DoD civilian employee
occupying a critical sensitive position shall be the subject of a PR
conducted on a 5-year recurring basis scoped as set forth in paragraph
5, Appendix A.
(e) Presidential support duties. Each individual assigned
Presidential Support duties shall be the subject of a PR conducted on a
5-year recurring basis scoped as set forth in paragraph 5, Appendix A.
(f) NATO staff. Each individual assigned to a NATO staff position
requiring a COSMIC clearance shall be the subject of a PR conducted on a
5-year recurring basis scoped as set forth in paragraph 5, Appendix A.
Those assigned to a NATO staff position requiring a NATO SECRET
clearance shall be the subject of a new NAC conducted on a 5-year
recurring basis.
(g) Extraordinarily sensitive duties. In extremely limited
instances, extraordinary national security implications associated with
certain SCI duties may require very special compartmentation and other
special security measures. In such instances, a Component SOIC may,
with the approval of the Deputy Under Secretary of Defense for Policy,
request PR's at intervals of less than 5 years as outlined in paragraph
5, Appendix A. Such requests shall include full justification and a
recommendation as to the desired frequency. In reviewing such requests,
the Deputy Under Secretary of Defense for Policy shall give due
consideration to:
(1) The potential damage that might result from the individual's
defection or abduction.
(2) The availability and probable effectiveness of means other than
reinvestigation to evaluate factors concerning the individual's
suitability for continued SCI access.
(h) Foreign nationals employed by DoD organizations overseas.
Foreign nationals employed by DoD organizations overseas who have been
granted a ''Limited Access Authorization'' pursuant to 154.16(d) shall
be the subject of a PR, as set forth in paragraph 5, Appendix A,
conducted under the auspices of DIS by the appropriate military
department or other U.S. Government investigative agency consistent with
154.9(e) and Appendix I of this part.
(i) Persons accessing very sensitive information classified Secret.
(1) Heads of DoD Components shall submit a request to the Deputy Under
Secretary of Defense for Policy for approval to conduct periodic
reinvestigations on persons holding Secret clearances who are exposed to
very sensitive Secret information.
(2) Generally, the Deputy Under Secretary of Defense for Policy will
only approve periodic reinvestigations of persons having access to
Secret information if the unauthorized disclosure of the information in
question could reasonably be expected to:
(i) Jeopardize human life or safety.
(ii) Result in the loss of unique or uniquely productive intelligence
sources or methods vital to U.S. security.
(iii) Compromise technologies, plans, or procedures vital to the
strategic advantage of the United States.
(3) Each individual accessing very sensitive Secret information who
has been designated by an authority listed in paragraph A, Appendix E as
requiring periodic reinvestigation, shall be the subject of a PR
conducted on a 5-year recurring basis scoped as stated in paragraph 5,
Appendix A.
(j) Access to Top Secret information. Each individual having current
access to Top Secret information shall be the subject of a PR conducted
on a 5-year recurring basis scoped as outlined in paragraph 5, Appendix
A.
(k) Personnel occupying computer positions designated ADP-1. All DoD
military, civilians, consultants, and contractor personnel occupying
computer positions designated ADP-I, shall be the subject of a PR
conducted on a 5-year recurring basis as set forth in paragraph 5,
Appendix A.
32 CFR 154.20 Authority to waive investigative requirements.
Authorized officials. Only an official designated in paragraph G,
Appendix E, is empowered to waive the investigative requirements for
appointment to a sensitive position, assignment to sensitive duties or
access to classified information pending completion of the investigation
required by this section. Such waiver shall be based upon certification
in writing by the designated official that such action is necessary to
the accomplishment of a DoD mission. A minor investigative element that
has not been met should not preclude favorable.
32 CFR 154.20 Subpart D -- Reciprocal Acceptance of Prior Investigations and Personnel Security Determinations
32 CFR 154.23 General.
Previously conducted investigations and previously rendered personnel
security determinations shall be accepted within DoD in accordance with
the policy set forth below.
32 CFR 154.24 Prior investigations conducted by DoD investigative
organizations.
As long as there is no break in military service/civilian employment
greater than 12 months, any previous personnel security investigation
conducted by DoD investigative organizations that essentially is
equivalent in scope to an investigation required by this part will be
accepted without requesting additional investigation. There is no time
limitation as to the acceptability of such investigations, subject to
the provisions of 154.8(h) and 154.25(b) of this part.
32 CFR 154.25 Prior personnel security determinations made by DoD
authorities.
(a) Adjudicative determinations for appointment in sensitive
positions, assignment to sensitive duties or access to classified
information (including those pertaining to SCI) made by designated DoD
authorities will be mutually and reciprocally accepted by all DoD
Components without requiring additional investigation, unless there has
been a break in the individual's military service/civilian employment of
greater than 12 months or unless derogatory information that occurred
subsequent to the last prior security determination becomes known. A
check of the DCII should be conducted to accomplish this task.
(b) Whenever a valid DoD security clearance or Special Access
authorization (including one pertaining to SCI) is on record, Components
shall not request DIS or other DoD investigative organizations to
forward prior investigative files for review unless:
(1) Significant derogatory information or investigation completed
subsequent to the date of last clearance or Special Access
authorization, is known to the requester; or
(2) The individual concerned is being considered for a higher level
clearance (e.g., Secret or Top Secret) or the individual does not have a
Special Access authorization and is being considered for one; or
(3) There has been a break in the individual's military
service/civilian employment of greater than 12 months subsequent to the
issuance of a prior clearance.
(4) The most recent SCI access authorization of the individual
concerned was based on a waiver.
(c) Requests for prior investigative files authorized by this part
shall be made in writing, shall cite the specific justification for the
request (i.e., upgrade of clearance, issue Special Access authorization,
etc.), and shall include the date, level, and issuing organization of
the individual's current or most recent security clearance or Special
Access authorization.
(d) All requests for non-DoD investigative files, authorized under
the criteria prescribed by paragraphs (a), (b) (1), (2), (3), and (4)
and (c) of this section shall be:
(1) Submitted on DD Form 398-2 to DIS;
(2) Annotated as a ''Single Agency Check'' of whichever agency or
agency developed the investigative file or to obtain the check of a
single national agency.
(e) When further investigation is desired, in addition to an existing
non-DoD investigative file, a DD Form 1879 will be submitted to DIS with
the appropriate security forms attached. The submission of a Single
Agency Check via DD Form 398-2 will be used to obtain an existing
investigative file or check a single national agency.
(f) Whenever a civilian or military member transfers from one DoD
activity to another, the losing organization's security office is
responsible for advising the gaining organization of any pending action
to suspend, deny or revoke the individual's security clearance as well
as any adverse information that may exist in security, personnel or
other files. In such instances the clearance shall not be reissued
until the questionable information has been adjudicated.
32 CFR 154.26 Investigations conducted and clearances granted by other
agencies of the Federal government.
(a) Whenever a prior investigation or personnel security
determination (including clearance for access to information classified
under E.O. 12356 of another agency of the Federal Government meets the
investigative scope and standards of this part, such investigation or
clearance may be accepted for the investigative or clearance purposes of
this part, provided that the employment with the Federal agency
concerned has been continuous and there has been no break longer than 12
months since completion of the prior investigation, and further provided
that inquiry with the agency discloses no reason why the clearance
should not be accepted. If it is determined that the prior investigation
does not meet the provisions of this paragraph, supplemental
investigation shall be requested.
(b) A NACI conducted by OPM shall be accepted and considered
equivalent to a DNACI for the purposes of this part.
(c) Department of Defense policy on reciprocal acceptance of
clearances with the Nuclear Regulatory Commission and the Department of
Energy is set forth in DoD Directive 5210.2. /1/
/1/ See footnote l to 154.2(c).
32 CFR 154.26 Subpart E -- Requesting Personnel Security Investigations
32 CFR 154.30 General.
Requests for personnel security investigations shall be limited to
those required to accomplish the Defense mission. Such requests shall
be submitted only by the authorities designated in 154.31. These
authorities shall be held responsible for determining if persons under
their jurisdiction require a personnel security investigation. Proper
planning must be effected to ensure that investigative requests are
submitted sufficiently in advance to allow completion of the
investigation before the time it is needed to grant the required
clearance or otherwise make the necessary personnel security
determination.
32 CFR 154.31 Authorized requesters.
Requests for personnel security investigation shall be accepted only
from the requesters designated below:
(a) Military Departments. (1) Army.
(i) Central Clearance Facility.
(ii) All activity commanders.
(iii) Chiefs of recruiting stations.
(2) Navy (including Marine Corps).
(i) Central Adjudicative Facility.
(ii) Commanders and commanding officers of organizations listed on
the Standard Navy Distribution List.
(iii) Chiefs of recruiting stations.
(3) Air Force.
(i) Air Force Security Clearance Office.
(ii) Assistant Chief of Staff for Intelligence.
(iii) All activity commanders.
(iv) Chiefs of recruiting stations.
(b) Defense Agencies -- Directors of Security and activity
commanders.
(c) Organization of the Joint Chiefs of Staff -- Chief, Security
Division.
(d) Office of the Secretary of Defense -- Director for Personnel and
Security, Washington Headquarters Services.
(e) Commanders of Unified and Specified Commands or their designees.
(f) Such other requesters approved by the Deputy Under Secretary of
Defense for Policy.
32 CFR 154.32 Criteria for requesting investigations.
Authorized requesters shall use the tables set forth in Appendix C to
determine the type of investigation that shall be requested to meet the
investigative requirement of the specific position or duty concerned.
32 CFR 154.33 Request procedures.
To insure efficient and effective completion of required
investigations, all requests for personnel security investigations shall
be prepared and forwarded in accordance with Appendix B and the
investigative jurisdictional policies set forth in 154.9.
32 CFR 154.34 Priority requests.
To insure that personnel security investigations are conducted in an
orderly and efficient manner, requests for priority for individual
investigations or categories of investigations shall be kept to a
minimum. DIS shall not assign priority to any personnel security
investigation or categories of investigations without written approval
of the Deputy Under Secretary of Defense for Policy.
32 CFR 154.35 Personal data provided by the subject of the
investigation.
(a) To conduct the required investigation, it is necessary that the
investigative agency be provided certain relevant data concerning the
subject of the investigation. The Privacy Act of 1974 requires that, to
the greatest extent practicable, personal information shall be obtained
directly from the subject individual when the information may result in
adverse determinations affecting an individual's rights, benefits, and
privileges under Federal programs.
(b) Accordingly, it is incumbent upon the subject of each personnel
security investigation to provide the personal information required by
this part. At a minimum, the individual shall complete the appropriate
investigative forms, provide fingerprints of a quality acceptable to the
FBI, and execute a signed release, as necessary, authorizing custodians
of police, credit, education, employment, and medical and similar
records, to provide relevant record information to the investigative
agency. When the FBI returns a fingerprint card indicating that the
quality of the fingerprints is not acceptable, an additional set of
fingerprints will be obtained from the subject. In the event the FBI
indicates that the additional fingerprints are also unacceptable, no
further attempt to obtain more fingerprints need be made; this aspect
of the investigation will then be processed on the basis of the name
check of the FBI files. As an exception, a minimum of three attempts
will be made for all Presidential Support cases, for SCI access
nominations if the requester so indicates, and in those cases in which
more than minor derogatory information exists. Each subject of a
personnel security investigation conducted under the provisions of this
part shall be furnished a Privacy Act Statement advising of the
authority for obtaining the personal data, the principal purpose(s) for
obtaining it, the routine uses, whether disclosure is mandatory or
voluntary, the effect on the individual if it is not provided, and that
subsequent use of the data may be employed as part of an aperiodic
review process to evaluate continued eligibility for access to
classified information.
(c) Failure to respond within the time limit prescribed by the
requesting organization with the required security forms or refusal to
provide or permit access to the relevant information required by this
part shall result in termination of the individual's security clearance
or assignment to sensitive duties utilizing the procedures of 154.59 or
further administrative processing of the investigative request.
32 CFR 154.35 Subpart F -- Adjudication
32 CFR 154.40 General.
(a) The standard which must be met for clearance or assignment to
sensitive duties is that, based on all available information, the
person's loyalty, reliability, and trustworthiness are such that
entrusting the person with classified information or assigning the
person to sensitive duties is clearly consistent with the interests of
national security.
(b) The principal objective of the DoD personnel security
adjudicative function, consequently, is to assure selection of persons
for sensitive positions who meet this standard. The adjudication
process involves the effort to assess the probability of future behavior
which could have an effect adverse to the national security. Since few,
if any, situations allow for positive, conclusive evidence of certain
future conduct, it is an attempt to judge whether the circumstances of a
particular case, taking into consideration prior experience with similar
cases, reasonably suggest a degree of probability of prejudicial
behavior not consistent with the national security. It is invariably a
subjective determination, considering the past but necessarily
anticipating the future. Rarely is proof of trustworthiness and
reliability or untrustworthiness and unreliability beyond all reasonable
doubt.
(c) Establishing relevancy is one of the key objectives of the
personnel security adjudicative process in evaluating investigative
material. It involves neither the judgment of criminal guilt nor the
determination of general suitability for a given position; rather, it
is the assessment of a person's trustworthiness and fitness for a
responsibility which could, if abused, have unacceptable consequences
for the national security.
(d) While equity demands optimal uniformity in evaluating individual
cases, assuring fair and consistent assessment of circumstances from one
situation to the next, each case must be weighed on its own merits,
taking into consideration all relevant facts, and prior experience in
similar cases. All information of record, both favorable and
unfavorable, must be considered and assessed in terms of accuracy,
completeness, relevance, seriousness, and overall significance. In all
adjudications the protection of the national security shall be the
paramount determinant.
32 CFR 154.41 Central adjudication.
(a) To ensure uniform application of the requirement of this part and
to ensure that DoD personnel security determinations are effected
consistent with existing statutes and Executive orders, the head of each
Military Department and Defense Agencies shall establish a single
Central Adjudication Facility for his/her component. The function of
such facility shall be limited to evaluating personnel security
investigations and making personnel security determinations. The chief
of each Central Adjudication Facility shall have the authority to act on
behalf of the head of the Component concerned with respect to personnel
security determinations. All information relevant to determining
whether a person meets the appropriate personnel security standard
prescribed by this part shall be reviewed and evaluated by personnel
security specialists specifically designated by the head of the
Component concerned, or designee.
(b) In view of the significance each adjudicative decision can have
on a person's career and to ensure the maximum degree of fairness and
equity in such actions, a minimum level of review shall be required for
all clearance/access determinations related to the following categories
of investigations:
(1) BI/SBI/PR/ENAC/SII:
(i) Favorable: Completely favorable investigations shall be reviewed
and approved by an adjudicative official in the civilian grade of GS-7/9
or the military rank of O-3.
(ii) Unfavorable: Investigations that are not completely favorable
shall undergo at least two levels of review by adjudicative officials,
the second of which must be at the civilian grade of GS-11/12 or the
military rank of O-4. When an unfavorable administrative action is
contemplated under 154.56(b), the letter of intent (LOI) to deny or
revoke must be approved and signed by an adjudicative official at the
civilian grade of GS-13/14 or the military rank of O-5. A final
notification of unfavorable administrative action, subsequent to the
issuance of the LOI, must be approved and signed at the civilian grade
of GS-14/15 or the military rank of O-6.
(2) NACI/DNACI/NAC/ENTNAC:
(i) Favorable: A completely favorable investigation may be finally
adjudicated after one level of review provided that the decisionmaking
authority is at the civilian grade of GS-5/7 or the military rank of
0-2.
(ii) Unfavorable: Investigations that are not completely favorable
must be reviewed by an adjudicative official in the civilian grade of
GS-7/9 or the military rank of 0-3. When an unfavorable administrative
action is contemplated under 154.56(b), the letter of intent to
deny/revoke must be signed by an adjudicative official at the civilian
grade of GS-11/12 or the military rank of 0-4. A final notification of
unfavorable administrative action subsequent to the issuance of the LOI
must be signed by an adjudicative official at the civilian grade of
GS-13 or the military rank of 0-5 or above.
(c) Exceptions to the above policy may only be granted by the Deputy
Under Secretary of Defense for Policy.
32 CFR 154.42 Evaluation of personnel security information.
(a) The criteria and adjudicative policy to be used in applying the
principles at 154.40 are set forth in 154.7(a) and Appendix H of this
part. The ultimate consideration in making a favorable personnel
security determination is whether such determination is clearly
consistent with the interests of national security and shall be an
overall common sense evaluation based on all available information.
Such a determination shall include consideration of the following
factors:
(1) The nature and seriousness of the conduct;
(2) The circumstances surrounding the conduct;
(3) The frequency and recency of the conduct;
(4) The age of the individual;
(5) The voluntariness of participation; and
(6) The absence or presence of rehabilitation.
(b) Detailed adjudication policy guidance to assist adjudicators in
determining whether a person is eligible for access to classified
information or assignment to sensitive duties is contained in Appendix
H. Adjudication policy for access to SCI is contained in DCID 1/14.
32 CFR 154.43 Adjudicative record.
(a) Each clearance/access determination, whether favorable or
unfavorable, shall be entered into the Defense Central Security Index
(DCSI), a subelement of the Defense Central Index of Investigations
(DCII). (Operational details regarding implementation of the DCSI shall
be implemented in a forthcoming change to this part.)
(b) The rationale underlying each unfavorable administrative action
shall be reduced to writing and is subject to the provisions of 32 CFR
Part 286 and 32 CFR Part 286a.
32 CFR 154.43 Subpart G -- Issuing Clearance and Granting Access
32 CFR 154.47 General.
(a) The issuance of a personnel security clearance (as well as the
function of determining that an individual is eligible for access to
Special Access program information, or is suitable for assignment to
sensitive duties or such other duties that require a trustworthiness
determination) is a function distinct from that involving the granting
of access to classified information. Clearance determinations are made
on the merits of the individual case with respect to the subject's
suitability for security clearance. Access determinations are made
solely on the basis of the individual's need for access to classified
information in order to perform official duties. Except for suspension
of access pending final adjudication of a personnel security clearance,
access may not be finally denied for cause without applying the
provisions of 154.56(b).
(b) Only the authorities designated in paragraph A, Appendix E are
authorized to grant, deny or revoke personnel security clearances or
Special Access authorizations (other than SCI). Any commander or head
of an organization may suspend access for cause when there exists
information raising a serious question as to the individual's ability or
intent to protect classified information, provided that the procedures
set forth in 154.55(b) of this part are complied.
(c) All commanders and heads of DoD organizations have the
responsibility for determining those position functions in their
jurisdiction that require access to classified information and the
authority to grant access to incumbents of such positions who have been
cleared under the provisions of this part.
32 CFR 154.48 Issuing clearance.
(a) Authorities designated in paragraph A, Appendix E shall record
the issuance, denial or revocation of a personnel security clearance in
the DSCI (see 154.43). A record of the clearance issued shall also be
recorded in an individual's personnel/security file or official
personnel folder, as appropriate.
(b) A personnel security clearance remains valid until the individual
is separated from the Armed Forces, separated from DoD civilian
employment, has no further official relationship with DoD, official
action has been taken to deny, revoke or suspend the clearance or
access, or regular access to the level of classified information for
which the individual holds a clearance is no longer necessary in the
normal course of his or her duties. If an individual resumes his or her
affiliation with DoD no single break in the individual's relationship
with DoD exists greater than 12 months, the need for regular access to
classified information at or below the previous level recurs, and no
record of an unfavorable administrative action exists, the appropriate
clearance shall be reissued without further investigation or
adjudication provided there has been no additional investigation or
development of derogatory information.
(c) Personnel security clearances of DoD military personnel shall be
granted denied or revoked only by the designated authority of the parent
Military Department. Issuance, reissuance, denial, or revocation of a
personnel security clearance by any DoD Component concerning personnel
who have been determined to be eligible for clearance by another
component is expressly prohibited. Investigations conducted on Army,
Navy, and Air Force personnel by DIS will be returned only to the parent
service of the subject for adjudication regardless of the source of the
original request. The adjudicative authority will be responsible for
expeditiously transmitting the results of the clearance determination.
As an exception, the employing DoD Component may issue an interim
clearance to personnel under their administrative jurisdiction pending a
final eligibility determination by the individual's parent Component.
Whenever an employing DoD Component issues an interim clearance to an
individual from another Component, written notice of the action shall be
provided to the parent Component.
(d) When a Defense agency, to include OJCS, initiates an SBI (or PR)
for access to SCI on a military member, DIS will return the completed
investigation to the appropriate Military Department adjudicative
authority in accordance with paragraph (c) of this section for issuance
(or reissuance) of the Top Secret clearance. Following the issuance of
the security clearance, the military adjudicative authority will forward
the investigative file to the Defense agency identified in the ''Return
Results To'' block of the DD Form 1879. The receiving agency will then
forward the completed SBI on to DIA for the SCI adjudication in
accordance with DCID 1/14.
(e) The interim clearance shall be recorded in the DCSI ( 154.43) by
the parent DoD Component in the same manner as a final clearance.
32 CFR 154.49 Granting access.
(a) Access to classified information shall be granted to persons
whose official duties require such access and who have the appropriate
personnel security clearance. Access determinations (other than for
Special Access programs) are not an adjudicative function relating to an
individual's suitability for such access. Rather they are decisions
made by the commander that access is officially required.
(b) In the absence of derogatory information on the individual
concerned, DoD commanders and organizational managers shall accept a
personnel security clearance determination, issued by any DoD authority
authorized by this part to issue personnel security clearances, as the
basis for granting access, when access is required, without requesting
additional investigation or investigative files.
(c) The access level of cleared individuals will also be entered into
the DCSI, along with clearance eligibility status, as systems are
developed and adopted which make such actions feasible.
32 CFR 154.50 Administrative withdrawal.
As set forth in 154.48 the personnel security clearance and access
eligibility must be withdrawn when the events described therein occur.
When regular access to a prescribed level of classified information is
no longer required in the normal course of an individual's duties, the
previously authorized access eligibility level must be administratively
downgraded or withdrawn, as appropriate.
32 CFR 154.50 Subpart H -- Unfavorable Administrative Actions
32 CFR 154.55 Requirements.
(a) General. For purposes of this part, an unfavorable
administrative action includes any adverse action which is taken as a
result of a personnel security determination, as defined at 154.3 and
any unfavorable personnel security determination, as defined at 154.3.
This Subpart 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 or enlarge the jurisdiction or
review authority of any court or administrative tribunal, including the
Merit Systems Protection Board.
(b) Referral for action. (1) Whenever derogatory information
relating to the criteria and policy set forth in 154.7(a) and Appendix
H of this part is developed or otherwise becomes available to any DoD
element, it shall be referred by the most expeditious means to the
commander or the security officer of the organization to which the
individual is assigned for duty. The commander or security officer of
the organization to which the subject of the information is assigned
shall review the information in terms of its security significance and
completeness. If further information is needed to confirm or disprove
the allegations, additional investigation should be requested. The
commander of the duty organization shall insure that the parent
Component of the individual concerned is informed promptly concerning
the derogatory information developed and any actions taken or
anticipated with respect thereto. However, referral of derogatory
information to the commander or security officer shall in no way affect
or limit the responsibility of the central adjudication facility to
continue to process the individual for denial or revocation of clearance
or access to classified information, in accordance with 154.56(b), if
such action is warranted and supportable by the criteria and policy
contained in 154.7(a) and Appendix H. No unfavorable administrative
action as defined in 154.3 may be taken by the organization to which
the individual is assigned for duty without affording the person the
full range of protections contained in 154.56(b) or, in the case of
SCI, Annex B, DCID 1/14.
(2) The Director DIS shall establish appropriate alternative means
whereby information with potentially serious security significance can
be reported other than through DoD command or industrial organization
channels. Such access shall include utilization of the DoD Inspector
General ''hotline'' to receive such reports for appropriate follow-up by
DIS. DoD Components and industry will assist DIS in publicizing the
availability of appropriate reporting channels. Additionally, DoD
Components will augment the system when and where necessary. Heads of
DoD Components will be notified immediately to take action if
appropriate.
(c) Suspension. The commander or head of the organization shall
determine whether, on the basis of all the facts available upon receipt
of the initial derogatory information, it is in the interests of
national security to continue subject's security status unchanged or to
take interim action to suspend subject's access to classified
information or assignment to sensitive duties (or other duties requiring
a trustworthiness determination), if information exists which raises
serious questions as to the individual's ability or intent to protect
classified information, until a final determination is made by the
appropriate authority designated in Appendix E. Every effort shall be
made to resolve a suspension action as expeditiously as possible.
(d) Final unfavorable administrative actions. The authority to make
personnel security determinations that will result in an unfavorable
administrative action is limited to those authorities designated in
Appendix E, except that the authority to terminate the employment of a
civilian employee of a military department or Defense agency is vested
solely in the head of the DoD component concerned and in such other
statutory official as may be designated. Action to terminate civilian
employees of the Office of the Secretary of Defense and DoD Components,
on the basis of criteria listed in 154.7 (a) through (f), shall be
coordinated with the Deputy Under Secretary of Defense for Policy prior
to final action by the head of the DoD Component. DoD civilian
employees or members of the Armed Forces shall not be removed from
employment or separated from the Service under provisions of this part
if removal or separation can be effected under OPM regulations or
administrative (nonsecurity) regulations of the military departments.
However, actions contemplated in this regard shall in no way affect or
limit the responsibility of the central adjudication facility to
continue for process the individual for denial or revocation of a
security clearance, access to classified information on or assignment to
a sensitive position if warranted and supportable by the criteria and
standards contained in this part.
32 CFR 154.56 Procedures.
(a) General. No final personnel security determination shall be made
on a member of the Armed Forces, an employee of the Department of
Defense, a consultant to the Department of Defense, or any other person
affiliated with the Department of Defense without granting the
individual concerned the procedural benefits set forth in paragraph (b)
of this section when such determination results in an unfavorable
administrative action (see 154.55(a)). As an exception, Red
Cross/United Service Organizations employees shall be afforded the
procedures prescribed by 32 CFR Part 253.
(b) Unfavorable administrative action procedures. Except as provided
for below, no unfavorable administrative action shall be taken under the
authority of this part unless the person concerned has been given:
(1) A written statement of the reasons why the unfavorable
administrative action is being taken. The statement shall be as
comprehensive and detailed as the protection of sources afforded
confidentiality under the provisions of the Privacy Act of 1974 (5
U.S.C. 552a) and national security permit. Prior to issuing a statement
of reasons to a civilian employee for suspension or removal action, the
issuing authority must comply with the provisions of Federal Personnel
Manual, Chapter 732, Subchapter 1, paragraph 1-6b. The signature
authority must be as provided for in 154.41(b) (1)(ii) and (2)(ii).
(2) An opportunity to reply in writing to such authority as the head
of the Component concerned may designate;
(3) A written response to any submission under subparagraph b.
stating the final reasons therefor, which shall be as specific as
privacy and national security considerations permit. The signature
authority must be as provided for in 154.41(b) (1)(ii) and (2)(ii).
Such response shall be as prompt as individual circumstances permit, not
to exceed 60 days from the date of receipt of the appeal submitted under
paragraph (b)(2) of this section provided no additional investigative
action is necessary. If a final response cannot be completed within the
time frame allowed, the subject must be notified in writing of this
fact, the reasons therefor, and the date a final response is expected,
which shall not, in any case, exceed a total of 90 days from the date of
receipt of the appeal under paragraph (b) of this section.
(4) An opportunity to appeal to a higher level of authority
designated by the Component concerned.
(c) Exceptions to policy. Notwithstanding paragraph (b) of this
section or any other provision of this part, nothing in this part shall
be deemed to limit or affect the responsibility and powers of the
Secretary of Defense to find that a person is unsuitable for entrance or
retention in the Armed Forces, or is ineligible for a security clearance
or assignment to sensitive duties, if the national security so requires,
pursuant to section 7532, title 5, U.S. Code. Such authority may not be
delegated and may be exercised only when it is determined that the
procedures prescribed in paragraph (b) of this section are not
appropriate. Such determination shall be conclusive.
32 CFR 154.57 Reinstatement of civilian employees.
(a) General. Any person whose civilian employment in the Department
of Defense is terminated under the provisions of this part shall not be
reinstated or restored to duty or reemployed in the Department of
Defense unless the Secretary of Defense, or the head of a DoD Component,
finds that such reinstatement, restoration, or reemployment is clearly
consistent with the interests of national security. Such a finding
shall be made a part of the personnel security record.
(b) Reinstatement benefits. A DoD civilian employee whose employment
has been suspended or terminated under the provisions of this part and
who is reinstated or restored to duty under the provisions of section
3571 of Title 5 U.S. Code is entitled to benefits as provided for by
section 3 of Pub. L. 89-380.
32 CFR 154.57 Subpart I -- Continuing Security Responsibilities
32 CFR 154.60 Evaluating continued security eligibility.
(a) General. A personnel security determination is an effort to
assess the future trustworthiness of an individual in terms of the
likelihood of the individual preserving the national security.
Obviously it is not possible at a given point to establish with
certainty that any human being will remain trustworthy. Accordingly the
issuance of a personnel security clearance or the determination that a
person is suitable for assignment to sensitive duties cannot be
considered as a final personnel security action. Rather, there is the
clear need to assure that, after the personnel security determination is
reached, the individual's trustworthiness is a matter of continuing
assessment. The responsibility for such assessment must be shared by
the organizational commander or manager, the individual's supervisor
and, to a large degree, the individual himself. Therefore, the heads of
DoD Components shall establish and maintain a program designed to
evaluate on a continuing basis the status of personnel under their
jurisdiction with respect to security eligibility. This program should
insure close coordination between security authorities and personnel,
medical, legal and supervisory personnel to assure that all pertinent
information available within a command is considered in the personnel
security process.
(b) Management responsibility. (1) Commanders and heads of
organizations shall insure that personnel assigned to sensitive duties
(or other duties requiring a trustworthiness determination under the
provisions of this part) are initially indoctrinated and periodically
instructed thereafter on the national security implication of their
duties and on their individual responsibilities.
(2) The heads of all DoD components are encouraged to develop
programs designed to counsel and assist employees in sensitive positions
who are experiencing problems in their personal lives with respect to
such areas as financial, medical or emotional difficulties. Such
initiatives should be designed to identify potential problem areas at an
early stage so that any assistance rendered by the employing activity
will have a reasonable chance of precluding long term, job-related
security problems.
(c) Supervisory responsibility. Security programs shall be
established to insure that supervisory personnel are familiarized with
their special responsibilities in matters pertaining to personnel
security with respect to personnel under their supervision. Such
programs shall provide practical guidance as to indicators that may
signal matters of personnel security concern. Specific instructions
should be disseminated concerning reporting procedures to enable the
appropriate authority to take timely corrective action to protect the
interests of national security as well as to provide any necessary help
to the individual concerned to correct any personal problem which may
have a bearing upon the individual's continued eligibility for access.
(1) In conjunction with the submission of PRs stated in 154.19, and
paragraph 5, Appendix A, supervisors will be required to review an
individual's DD Form 398 to ensure that no significant adverse
information of which they are aware and that may have a bearing on
subject's continued eligibility for access to classified information is
omitted.
(2) If the supervisor is not aware of any significant adverse
information that may have a bearing on the subject's continued
eligibility for access, then the following statement must be documented,
signed and dated, and forwarded to DIS with the investigative package.
I am aware of no information of the type contained at Appendix D, 32
CFR Part 154, relating to subject's trustworthiness, reliability, or
loyalty that may reflect adversely on his/her ability to safeguard
classified information.
(3) If the supervisor is aware of such significant adverse
information, the following statement shall be documented, signed and
dated and forwarded to DIS with the investigative package, and a written
summary of the derogatory information forwarded to DIS with the
investigative package:
I am aware of information of the type contained in Appendix D, 32 CFR
Part 154, relating to subject's trustworthiness, reliability, or loyalty
that may reflect adversely on his/her ability to safeguard classified
information and have reported all relevant details to the appropriate
security official(s).
(4) In conjunction with regularly scheduled fitness and performance
reports of military and civilian personnel whose duties entail access to
classified information, supervisors will include a comment in accordance
with paragraphs (c) (2) and (3) of this section as well as a comment
regarding an employee's discharge of security responsibilities, pursuant
to their Component guidance.
(d) Individual responsibility. (1) Individuals must familiarize
themselves with pertinent security regulations that pertain to their
assigned duties. Further, individuals must be aware of the standards of
conduct required of persons holding positions of trust. In this
connection, individuals must recognize and avoid the kind of personal
behavior that would result in rendering one ineligible for continued
assignment in a position of trust. In the final analysis, the ultimate
responsibility for maintaining continued eligibility for a position of
trust rests with the individual.
(2) Moreover, individuals having access to classified information
must report promptly to their security office:
(i) Any form of contact, intentional or otherwise, with a citizen of
a designated country, (Appendix G) unless occurring as a function of
one's official duties.
(ii) Attempts by representatives or citizens of designated countries
to cultivate friendships or to place one under obligation.
(iii) Attempts by representatives or citizens of foreign countries
to:
(A) Cultivate a friendship to the extent of placing one under
obligation that they would not normally be able to reciprocate, or by
offering money payments or bribery to obtain information of actual or
potential intelligence value.
(B) Obtain information of actual or potential intelligence value
through observation, collection of documents, or by personal contact.
(C) Coerce by blackmail, by threats against or promises of assistance
to relatives living under foreign control, especially those living in a
designated country.
(iv) All personal foreign travel in advance.
(v) Any information of the type referred to in 154.7 or Appendix H.
(e) Co-worker responsibility. Co-workers have an equal obligation to
advise their supervisor or appropriate security official when they
become aware of information with potentially serious security
significance regarding someone with access to classified information or
employed in a sensitive position.
32 CFR 154.61 Security education.
(a) General. The effectiveness of an individual in meeting security
responsibilities is proportional to the degree to which the individual
understands them. Thus, an integral part of the DoD security program is
the indoctrination of individuals on their security responsibilities.
Moreover, such indoctrination is essential to the efficient functioning
of the DoD personnel security program. Accordingly, heads of DoD
Components shall establish procedures in accordance with this chapter
whereby persons requiring access to classified information, or being
assigned to positions that require the occupants to be determined
trustworthy are periodically briefed as to their security
responsibilities.
(b) Initial briefing. (1) All persons cleared for access to
classified information or assigned to duties requiring a trustworthiness
determination under this part shall be given an initial security
briefing. The briefing shall be in accordance with the requirements of
32 CFR Part 159 and consist of the following elements:
(i) The specific security requirements of their particular job.
(ii) The techniques employed by foreign intelligence activities in
attempting to obtain classified information and their responsibility for
reporting such attempts.
(iii) The prohibition against disclosing classified information, by
any means, to unauthorized persons or discussing or handling classified
information in a manner that would make it accessible to unauthorized
persons.
(iv) The penalties that may be imposed for security violations.
(2) If an individual declines to execute Standard Form 189,
''Classified Information Nondisclosure Agreement,'' the DoD Component
shall initiate action to deny or revoke the security clearance of such
person in accordance with 154.56(b).
(c) Refresher briefing. Programs shall be established to provide, at
a minimum, annual security training for personnel having continued
access to classified information. The elements outlined in 32 CFR Part
159 shall be tailored to fit the needs of experienced personnel.
(d) Foreign travel briefing. (1) DoD Components will establish
appropriate internal procedures requiring all personnel possessing a DoD
security clearance to report to their security office all personal
foreign travel in advance of the travel being performed. When travel
patterns, or the failure to report such travel, indicate the need for
investigation, the matter will be referred to the appropriate
counterintelligence investigative agency.
(2) Personnel having access to classified information shall be given
a Foreign Travel Briefing by a counterintelligence agent, security
specialist, security manager, or other qualified individual, as a
defensive measure prior to travel to a designated country (Appendix G)
in order to alert them to their possible exploitation by hostile
intelligence services. These personnel will also be debriefed upon
their return. The briefings will be administered under the following
conditions:
(i) Travel to or through a designated country for any purpose.
(ii) Attendance at international, scientific, technical, engineering,
or other professional meetings in the United States or in any country
outside the United States when it can be anticipated that
representative(s) of designated countries will participate or be in
attendance.
(3) lndividuals who travel frequently, or attend or host meetings of
foreign visitors as described in paragraph (d)(2)(ii) of this section
need not be briefed for each occasion, but shall be provided a thorough
briefing at least once every 6 months and a general reminder of security
responsibilities before each such activity.
(4) Records on such employees will be maintained for 5 years.
(e) Termination briefing. (1) Upon termination of employment
administrative withdrawal of security clearance, or contemplated absence
from duty or employment for 60 days or more, DoD military personnel and
civilian employees shall be given a termination briefing, return all
classified material, and execute a Security Termination Statement. This
statement shall include:
(i) An acknowledgment that the individual has read the appropriate
provisions of the Espionage Act, other criminal statutes, DoD
Regulations applicable to the safeguarding of classified information to
which the individual has had access, and understands the implications
thereof;
(ii) A declaration that the individual no longer has any documents or
material containing classified information in his or her possession;
(iii) An acknowledgment that the individual will not communicate or
transmit classified information to any unauthorized person or agency;
and
(iv) An acknowledgment that the individual will report without delay
to the FBI or the DoD Component concerned any attempt by any
unauthorized person to solicit classified information.
(2) When an individual refuses to execute a Security Termination
Statement, that fact shall be reported immediately to the security
manager of the cognizant organization concerned. In any such case, the
individual involved shall be debriefed orally. The fact of a refusal to
sign a Security Termination Statement shall be reported to the Director,
Defense Investigative Service who shall assure that it is recorded in
the Defense Central Index of Investigations.
(3) The Security Termination Statement shall be retained by the DoD
Component that authorized the individual access to classified
information for the period specified in the Component's records
retention schedules, but for a minimum of 2 years after the individual
is given a termination briefing.
(4) In addition to the provisions of paragraphs (e)(1), (e)(2), and
(e)(3) of this section, DoD Components shall establish a central
authority to be responsible for ensuring that Security Termination
Statements are executed by senior personnel (general officers, flag
officers and GS-16s and above). Failure on the part of such personnel
to execute a Security Termination Statement shall be reported
immediately to the Deputy Under Secretary of Defense for Policy.
32 CFR 154.61 Subpart J -- Safeguarding Personnel Security Investigative Records
32 CFR 154.65 General.
In recognition of the sensitivity of personnel security reports and
records, particularly with regard to individual privacy, it is
Department of Defense policy that such personal information shall be
handled with the highest degree of discretion. Access to such
information shall be afforded only for the purpose cited herein and to
persons whose official duties require such information. Personnel
security investigative reports may be used only for the purposes of
determining eligibility of DoD military and civilian personnel,
contractor employees, and other persons affiliated with the Department
of Defense, for access to classified information, assignment or
retention in sensitive duties or other specifically designated duties
requiring such investigation, or for law enforcement and
counterintelligence investigations. Other uses are subject to the
specific written authorization of the Deputy Under Secretary of Defense
for Policy.
32 CFR 154.66 Responsibilities.
DoD authorities responsible for administering the DoD personnel
security program and all DoD personnel authorized access to personnel
security reports and records shall ensure that the use of such
information is limited to that authorized by this part and that such
reports and records are safeguarded as prescribed herein. The heads of
DoD Components and the Deputy Under Secretary of Defense for Policy for
the Office of the Secretary of Defense shall establish internal controls
to ensure adequate safeguarding and limit access to and use of personnel
security reports and records as required by 154.67 and 154.68.
32 CFR 154.67 Access restrictions.
Access to personnel security investigative reports and personnel
security clearance determination information shall be authorized only in
accordance with 32 CFR Parts 286 and 286a and with the following:
(a) DoD personnel security investigative reports shall be released
outside of the DoD only with the specific approval of the investigative
agency having authority over the control and disposition of the reports.
(b) Within DoD, access to personnel security investigative reports
shall be limited to those designated DoD officials who require access in
connection with specifically assigned personnel security duties, or
other activities specifically identified under the provisions of
154.65.
(c) Access by subjects of personnel security investigative reports
shall be afforded in accordance with 32 CFR Part 286a.
(d) Access to personnel security clearance determination information
shall be made available, other than provided for in paragraph (c) of
this section, through security channels, only to DoD or other officials
of the Federal Government who have an official need for such
information.
32 CFR 154.68 Safeguarding procedures.
Personnel security investigative reports and personnel security
determination information shall be safeguarded as follows:
(a) Authorized requesters shall control and maintain accountability
of all reports of investigation received.
(b) Reproduction, in whole or in part, of personnel security
investigative reports by requesters shall be restricted to the minimum
number of copies required for the performance of assigned duties.
(c) Personnel security investigative reports shall be stored in a
vault, safe, or steel file cabinet having at least a lockbar and an
approved three-position dial-type combination padlock or in a similarly
protected area/container.
(d) Reports of DoD personnel security investigations shall be sealed
in double envelopes or covers when transmitted by mail or when carried
by persons not authorized access to such information. The inner cover
shall bear a notation substantially as follows:
(e) An individual's status with respect to a personnel security
clearance or a Special Access authorization is to be protected as
provided for in 32 CFR Part 286.
32 CFR 154.69 Records disposition.
(a) Personnel security investigative reports, to include OPM NACIs
may be retained by DoD recipient organizations, only for the period
necessary to complete the purpose for which it was originally requested.
Such reports are considered to be the property of the investigating
organization and are on loan to the recipient organization. All copies
of such reports shall be destroyed within 90 days after completion of
the required personnel security determination. Destruction shall be
accomplished in the same manner as for classified information in
accordance with 32 CFR Part 159.
(b) DoD record repositories authorized to file personnel security
investigative reports shall destroy PSI reports of a favorable or of a
minor derogatory nature 15 years after the date of the last action.
That is, after the completion date of the investigation or the date on
which the record was last released to an authorized user -- whichever is
later. Personnel security investigative reports resulting in an
unfavorable administrative personnel action or court-martial or other
investigations of a significant nature due to information contained in
the investigation shall be destroyed 25 years after the date of the last
action. Files in this latter category that are determined to be of
possible historical value and those of widespread public or
congressional interest may be offered to the National Archives after 15
years.
(c) Personnel security investigative reports on persons who are
considered for affiliation with DoD will be destroyed after 1 year if
the affiliation is not completed.
32 CFR 154.70 Foreign source information.
Information that is classified by a foreign government is exempt from
public disclosure under the Freedom of Information and Privacy Acts.
Further, information provided by foreign governments requesting an
express promise of confidentiality shall be released only in a manner
that will not identify or allow unauthorized persons to identify the
foreign agency concerned.
32 CFR 154.70 Subpart K -- Program Management
32 CFR 154.75 General.
To ensure uniform implementation of the DoD personnel security
program throughout the Department, program responsibility shall be
centralized at DoD Component level.
32 CFR 154.76 Responsibilities.
(a) The Deputy Under Secretary of Defense for Policy shall have
primary responsibility for providing guidance, oversight, development
and approval for policy and procedures governing personnel security
program matters within the Department:
(1) Provide program management through issuance of policy and
operating guidance.
(2) Provide staff assistance to the DoD Components and defense
agencies in resolving day-to-day security policy and operating problems.
(3) Conduct inspections of the DoD Components for implementation and
compliance with DoD security policy and operating procedures.
(4) Provide policy, oversight, and guidance to the component
adjudication functions.
(5) Approve, coordinate and oversee all DoD personnel security
research initiatives and activities.
(b) The General Counsel shall ensure that the program is administered
in a manner consistent with the laws; all proceedings are promptly
initiated and expeditiously completed; and that the rights of
individuals involved are protected, consistent with the interests of
national security. The General Counsel shall also ensure that all
relevant decisions of the courts and legislative initiatives of the
Congress are obtained on a continuing basis and that analysis of the
foregoing is accomplished and disseminated to DoD personnel security
program management authorities.
(c) The Heads of the Components shall ensure that:
(1) The DoD personnel security program is administered within their
area of responsibility in a manner consistent with this part.
(2) A single authority within the office of the head of the DoD
Component is assigned responsibility for administering the program
within the Component.
(3) Information and recommendations are provided the Deputy Under
Secretary of Defense for Policy and the General Counsel at their request
concerning any aspect of the program.
32 CFR 154.77 Reporting requirements.
Personnel security program management data will be developed and
submitted by 1 December each year for the preceding fiscal year in a
report to the Deputy Under Secretary of Defense for Policy. The
information required below is essential for basic personnel security
program management and in responding to requests from the Secretary of
Defense and Congress. The report will cover the preceding fiscal year,
broken out by clearance category, according to officer, enlisted,
civilian or contractor status:
(a) Number of Top Secret, Secret and Confidential clearances issued;
(b) Number of Top Secret, Secret and Confidential clearances denied;
(c) Number of Top Secret, Secret and Confidential clearances revoked;
(d) Number of SCI access determinations issued;
(e) Number of SCI access determinations denied;
(f) Number of SCI access determinations revoked;
(g) Number of actions which resulted in nonappointment or
non-selection to a sensitive position;
(h) Total number of personnel holding a clearance for Top Secret,
Secret, Confidential and Sensitive Compartmented Information as of the
end of the fiscal year.
(i) Number of Top Secret billets established 154.13(e).
(j) Number of personnel adjudicating personnel security cases on a
full or part time basis;
(k) Number of man years expended in adjudicating personnel security
cases;
(l) Number of civilian positions designated sensitive, by designation
criteria;
(m) The number of Limited Access Authorizations in effect (in
accordance with 154.16(d)).
This reporting requirement has been assigned Report Control Symbol
DD-POL (A)1749.
32 CFR 154.78 Inspections.
The heads of DoD Components shall assure that personnel security
program matters are included in their administrative inspection
programs.
32 CFR 154.78 Pt. 154, App. A
32 CFR 154.78 Appendix A to Part 154 -- Investigative Scope
This appendix prescribes the scope of the various types of personnel
security investigations.
1. National Agency Check (NAC). Components of a NAC. At a minimum,
the first three of the described agencies (DCII, FBI/HQ, and FBI/ID)
below shall be included in each complete NAC; however, a NAC may also
include a check of any or all of the other described agencies, if
appropriate.
a. DCII records consist of an alphabetical index of personal names
and impersonal titles that appear as subjects or incidentals in
investigative documents held by the criminal, counterintelligence,
fraud, and personnel security investigative activities of the three
military departments, DIS, Defense Criminal Investigative Service
(DCIS), and the National Security Agency. DCII records will be checked
on all subjects of DoD investigations.
b. FBI/HQ has on file copies of investigations conducted by the FBI.
The FBI/HQ check, included in every NAC, consists of a review of files
for information of a security nature and that developed during
applicant-type investigations.
c. An FBI/ID check, included in every NAC (but not ENTNAC), is based
upon a technical fingerprint search that consists of a classification of
the subject's fingerprints and comparison with fingerprint cards
submitted by law enforcement activities. If the fingerprint card is not
classifiable, a ''name check only'' of these files is automatically
conducted.
d. OPM. The files of OPM contain the results of investigations
conducted by OPM under Executive Orders 9835 and 10450, those requested
by the Nuclear Regulatory Commission (NRC), the Department of Energy
(DOE) and those requested since August 1952 to serve as a basis for
''Q'' clearances. Prior to that date, ''Q'' clearance investigations
were conducted by the FBI. A ''Q'' clearance is granted to individuals
who require access to DOE information. In order to receive a ''Q''
clearance, a full field background investigation must be completed on
the individual requiring access in accordance with the Atomic Energy Act
of 1954. Also on file are the results of investigations on the
operation of the Merit System, violations of the Veterans Preference
Act, appeals of various types, fraud and collusion in Civil Service
examinations and related matters, data on all Federal employment, and an
index of all BIs on civilian employees or applicants completed by
agencies of the Executive Branch of the U.S. Government. The OPM files
may also contain information relative to U.S. citizens who are, or who
were, employed by a United Nations organization or other public
international organization such as the Organization of American States.
OPM records are checked on all persons who are, or who have been,
civilian employees of the U.S. Government; or U.S. citizens who are,
or who have been, employed by a United Nations organization or other
public international organization; and on those who have been granted
security clearances by the NRC or DOE.
e. Immigration and Naturalization Service (I&NS). The files of I&NS
contain (or show where filed) naturalization certificates, certificates
of derivative citizenship, all military certificates of naturalization,
repatriation files, petitions for naturalization and declaration of
intention, visitors' visas, and records of aliens (including government
officials and representatives of international organizations) admitted
temporarily into the U.S. I&NS records are checked when the subject is:
(1) An alien in the U.S., or
(2) A naturalized citizen whose naturalization has not been verified,
or
(3) An immigrant alien, or
(4) A U.S. citizen who receives derivative citizenship through the
naturalization of one or both parents, provided that such citizenship
has not been verified in a prior investigation.
f. State Department. The State Department maintains the following
records:
(1) Security Division (S/D) files contain information pertinent to
matters of security, violations of security, personnel investigations
pertinent to that agency, and correspondence files from 1950 to date.
These files are checked on all former State Department employees.
(2) Passport Division (P/D) shall be checked if subject indicates
U.S. citizenship due to birth in a foreign country of American parents.
This is a check of State Department Embassy files to determine if
subject's birth was registered at the U.S. Embassy in the country where
he was born. Verification of this registration is verification of
citizenship.
g. Central Intelligence Agency (CIA). The files of CIA contain
information on present and former employees, including members of the
Office of Strategic Services (OSS), applicants for employment, foreign
nationals, including immigrant aliens in the U.S., and U.S. citizens
traveling outside the U.S. after July 1, 1946. These files shall be
checked under the following guidelines.
These files shall also be checked if subject has been an employee of
CIA or when other sources indicate that CIA may have pertinent
information.
h. Military Personnel Record Center files are maintained by separate
departments of the Armed Forces, General Services Administration and the
Reserve Records Centers. They consist of the Master Personnel Records
of retired, separated, reserve, and active duty members of the Armed
Force. These records shall be checked when the requester provides
required identifying data indicating service during the last 15 years.
i. Treasury Department. The files of Treasury Department agencies
(Secret Service, Internal Revenue Service, and Bureau of Customs) will
be checked only when available information indicates that an agency of
the Treasury Department may be reasonably expected to have pertinent
information.
j. The files of other agencies such as the National Guard Bureau, the
Defense Industrial Security Clearance Office (DISCO), etc., will be
checked when pertinent to the purpose for which the investigation is
being conducted.
2. DoD National Agency Check plus Written Inquires (DNACI):
a. Scope: The time period covered by the DNACI is limited to the
most recent five (5) years, or since the 18th birthday, whichever is
shorter, provided that the investigation covers at least the last two
(2) full years of the subject's life, although it may be extended to the
period necessary to resolve any questionable or derogatory information.
No investigation will be conducted prior to an individual's 16th
birthday. All DNACI investigation information will be entered on the DD
Form 398-2 and FD-Form 258 and forwarded to the Defense Investigative
Service (paragraph D, Appendix B).
b. Components of a DNACI:
(1) NAC. This is the same as described in paragraph 1, above.
(2) Credit. (a) A credit bureau check will be conducted to cover the
50 states, the District of Columbia, Puerto Rico, Guam, and the Virgin
Islands, at all locations where subject has resided (including duty
stations and home ports), been employed, or attended school for 6 months
(cumulative) during the past five (5) years.
(b) When information developed reflects unfavorably upon a person's
current credit reputation or financial responsibility, the investigation
will be expanded as necessary.
(3) Employment. -- (a) Non-Federal Employment. (1) Verify, via
written inquiry, all employment within the period of investigation with
a duration of six (6) months or more. Current employment will be
checked regardless of duration.
(2) If all previous employments have been less than 6 months long,
the most recent employment, in addition to the current, will be checked
in all cases.
(3) Seasonal holiday, part-time and temporary employment need not be
checked unless subparagraph 2 above applies.
(b) Federal employment. All Federal employment (to include military
assignments) within the period of investigation will be verified by the
requester through locally available records, and a statement reflecting
that such checks have been favorably accomplished will be contained in
the investigative request. Those that cannot be verified in this
fashion will be accomplished via written inquiry by DIS (within the 50
United States, Puerto Rico, Guam, and the Virgin Islands).
3. Background Investigation (BI). The period of investigation for
the BI is 5 years and applies to military, civilian, and contractor
personnel.
a. NAC. See paragraph 1, above.
b. Local Agency Checks (LAC). Same as paragraph 4j, below, except
period of coverage is five years.
c. Credit checks. Same as paragraph 4i, below.
d. SUBJECT Interview (SI). This is the principal component of a BI.
In some instances an issue will arise after the primary SI and a
secondary interview will be conducted. Interviews in the latter
category are normally ''issue'' interviews that will be reported in the
standard BI narrative format.
e. Employment records. Employment records will be checked at all
places where employment references are interviewed with the exception of
current Federal employment when the requester indicates that such
employment has been verified with favorable results.
f. Employment reference coverage. A minimum of three references,
either supervisors or co-workers, who have knowledge of the SUBJECT's
activities in the work environment will be interviewed. At least one
employment reference at the current place of employment will always be
interviewed with the exception of an individual attending military basic
training, or other military training schools lasting less than 90 days.
However, if the SUBJECT has only been at the current employment for less
than 6 months, it will be necessary to go not only to his or her current
employment (for example, for one employment reference) but also to the
preceding employment of at least 6 months for additional employment
references. If the SUBJECT has not had prior employment of at least 6
months, interview(s) will be conducted at the most recent short-term
employment in addition to the current employment.
g. Developed and Listed Character References. A minimum of three
developed character references (DCR) whose combined association with the
SUBJECT covers the entire period of investigation will be interviewed.
If coverage cannot be obtained through the DCRs, listed character
reference (LCR) will be contacted to obtain coverage.
h. Unfavorable information. Unfavorable information developed in the
field will be expanded.
4. Special Background Investigation (SBI) -- a. Components of an
SBI. The period of investigation for an SBI is the last 15 years or
since the 18th birthday, whichever is the shorter period, provided that
the investigation covers at least the last 2 full years of the subject's
life. No investigation will be conducted for the period prior to an
individual's 16th birthday. Emphasis shall be placed on peer coverage
whenever interviews are held with personal sources in making education,
employment, and reference (including developed) contact.
b. NAC. In addition to conducting a NAC on the subject of the
investigation, the following additional requirements apply.
(1) A DCII, FBI/ID name check only and FBI/HQ check shall be
conducted on subject's current spouse or cohabitant. In addition, such
other national agency checks as deemed appropriate based on information
on the subject's SPH or PSQ shall be conducted.
(2) A check of FBI/HQ files on members of subject's immediate family
who are aliens in the U.S. or immigrant aliens who are 18 years of age
or older shall be conducted. As used throughout the part, members of
subject's immediate family include the following:
(a) Current spouse.
(b) Adult children, 18 years of age or older, by birth, adoption, or
marriage.
(c) Natural, adopted, foster, or stepparents.
(d) Guardians.
(e) Brothers and sisters either by birth, adoption, or remarriage of
either parent.
(3) The files of CIA shall be reviewed on alien members of subject's
immediate family who are 18 years of age or older, regardless of whether
or not these persons reside in the U.S.
(4) I&NS files on members of subject's immediate family 18 years of
age or older shall be reviewed when they are:
(a) Aliens in the U.S., or
(b) Naturalized U.S. citizens whose naturalization has not been
verified in a prior investigation, or
(c) Immigrant aliens, or
(d) U.S. citizens born in a foreign country of American parent(s) or
U.S. citizens who received derivative citizenship through the
naturalization of one or both parents, provided that such citizenship
has not been verified in a prior investigation.
c. Birth. Verify subject's date and place of birth (DPOB) through
education, employment and/or other records. Verify through Bureau of
Vital Statistics (BVS) records if not otherwise verified under d.,
below, or if a variance is developed.
d. Citizenship. Subject's citizenship status must be verified in all
cases. U.S. citizens who are subjects of investigation will be required
to produce documentation that will confirm their citizenship. Normally
such documentation should be presented to the DoD Component concerned
prior to the initiation of the request for investigation. When such
documentation is not readily available, investigative action may be
initiated with the understanding that the designated authority in the
DoD Component will be provided with the documentation prior to the
issuance of a clearance. DIS will not check the BVS for native-born
U.S. citizens except as indicated in 4.c. above. In the case of
foreign-born U.S. citizens, DIS will check I&NS records. The
citizenship status of all foreign-born members of subject's immediate
family shall be verified. Additionally, when the investigation
indicates that a member of subject's immediate family has not obtained
U.S. citizenship after having been eligible for a considerable period of
time, an attempt should be made to determine the reason. The documents
listed below are acceptable for proof of U.S. citizenship for personnel
security determination purposes:
(1) A birth certificate must be presented if the individual was born
in the United States. To be acceptable, the certificate must show that
the birth record was filed shortly after birth and must be certified
with the registrar's signature and the raised, impressed, or
multicolored seal of his office except for states or jurisdictions
which, as a matter of policy, do not issue certificates with a raised or
impressed seal. Uncertified copies of birth certificates are not
acceptable.
(a) A delayed birth certificate (a record filed more than one year
after the date of birth) is acceptable provided that it shows that the
report of birth was supported by acceptable secondary evidence of birth
as described in subparagraph (b), below.
(b) If such primary evidence is not obtainable, a notice from the
registrar stating that no birth record exists should be submitted. The
notice shall be accompanied by the best combination of secondary
evidence obtainable. Such evidence may include a baptismal certificate,
a certificate of circumcision, a hospital birth record, affidavits of
persons having personal knowledge of the facts of the birth, or other
documentary evidence such as early census, school, or family bible
records, newspaper files and insurance papers. Secondary evidence
should have been created as close to the time of birth as possible.
(c) All documents submitted as evidence of birth in the United States
shall be original or certified documents. Uncertified copies are not
acceptable.
(2) A certificate of naturalization shall be submitted if the
individual claims citizenship by naturalization.
(3) A certificate of citizenship issued by the I&NS shall be
submitted if citizenship was acquired by birth abroad to a U.S. citizen
parent or parents.
(4) A Report of Birth Abroad of A Citizen of The United States of
America (Form FS-240), a Certification of Birth (Form FS-545 or
DS-1350), or a Certificate of Citizenship is acceptable if citizenship
was acquired by birth abroad to a U.S. citizen parent or parents.
(5) A passport or one in which the individual was included will be
accepted as proof of citizenship.
e. Education. (1) Verify graduation or attendance at institutions of
higher learning in the U.S. within the last 15 years, if such attendance
was not verified during a prior investigation.
(2) Attempts will be made to review records at overseas educational
institutions when the subject resided overseas in excess of one year.
(3) Verify attendance or graduation at the last secondary school
attended within the past 10 years if there was no attendance at an
institution of higher learning within the period of investigation.
(4) Verification of attendance at military academies is only required
when the subject failed to graduate.
f. Employment. (1) Non-Federal employment. Verify all employment
within the period of investigation to include seasonal, holiday,
Christmas, part-time, and temporary employment. Interview one
supervisor and one co-worker at subject's current place of employment as
well as at each prior place of employment during the past 10 years of
six months duration or longer. The interview requirement for
supervisors and co-workers does not apply to seasonal, holiday,
Christmas, part-time, and temporary employment (4 months or less) unless
there are unfavorable issues to resolve or the letter of inquiry
provides insufficient information.
(2) Federal employment. All Federal employment will be verified
within the period of investigation to include Christmas, seasonal
temporary, summer hire, part-time, and holiday employment. Do not
verify Federal employment through review of records if already verified
by the requester. If Federal employment has not been verified by the
requester, then subject's personnel file at his/her current place of
employment will be reviewed. All previous Federal employment will be
verified during this review. In the case of former Federal employees,
records shall be examined at the Federal Records Center in St. Louis,
Missouri. Interview one supervisor and one co-worker at all places of
employment during the past 10 years if so employed for 6 months or more.
(3) Military employment. Military service for the last 15 years
shall be verified. The subject's duty station, for the purpose of
interview coverage, is considered as a place of employment. One
supervisor and one co-worker shall be interviewed at subject's current
duty station if subject has been stationed there for 6 months or more;
additionally, a supervisor and a co-worker at subject's prior duty
stations where assigned for 6 months or more during the past 10 years
shall be interviewed.
(4) Unemployment. Subject's activities during all periods of
unemployment in excess of 30 consecutive days, within the period of
investigation, that are not otherwise accounted for shall be verified.
(5) When an individual has resided outside the U.S. continuously for
over one year, attempts will be made to confirm overseas employments as
well as conduct required interviews of a supervisor and co-worker.
g. References. Three developed character references who have
sufficient knowledge of subject to comment on his background,
suitability, and loyalty shall be interviewed personally. Efforts shall
be made to interview developed references whose combined association
with subject covers the full period of the investigation with particular
emphasis on the last 5 years. Employment, education, and neighborhood
references, in addition to the required ones, may be used as developed
references provided that they have personal knowledge concerning the
individual's character, discretion, and loyalty. Listed character
references will be interviewed only when developed references are not
available or when it is necessary to identify and locate additional
developed character references or when it is necessary to verify
subject's activities (e.g., unemployment).
h. Neighborhood investigation. Conduct a neighborhood investigation
to verify each of subject's residences in the U.S. of a period of 6
months or more on a cumulative basis, during the past 5 years or during
the period of investigation, whichever is shorter. During each
neighborhood investigation, interview two neighbors who can verify
subject's period of residence in that area and who were sufficiently
acquainted to comment on subject's suitability for a position of trust.
Neighborhood investigations will be expanded beyond this 5-year period
only when there is unfavorable information to resolve in the
investigation.
i. Credit. Conduct credit bureau check in the 50 states, the District
of Columbia, Puerto Rico and overseas (where APO/FPO addresses are
provided) at all places where subject has resided (including duty
stations and home ports), been employed, or attended school for 6 months
or more, on a cumulative basis, during the last 7 years or during the
period of the investigation, whichever is shorter. When coverage by a
credit bureau is not available, credit references located in that area
will be interviewed. Financial responsibility, including unexplained
affluence, will be stressed in all reference interviews.
j. Local Agency Checks (LAC's). LACs, including state central
criminal history record repositories, will be conducted on subject at
all places of residence to include duty stations and/or home ports, in
the 50 states, the District of Columbia, and Puerto Rico, where
residence occurred during the past 15 years or during the period of
investigation, whichever is shorter. If subject's place of employment
and/or education is serviced by a different law enforcement agency than
that servicing the area of residence, LACs shall be conducted also in
these areas.
k. Foreign travel. If subject has been employed, educated, traveled
or resided outside of the U.S. for more than 90 days during the period
of investigation, except under the auspices of the U.S. Government,
additional record checks during the NAC shall be made in accordance with
paragraph 1.f. of this Appendix. In addition, the following
requirements apply:
(1) Foreign travel not under the auspices of the U.S. Government.
When employment, education, or residence has occurred overseas for more
than 90 days during the past 15 years or since age 18, which was not
under the auspices of the U.S. Government, a check of records will be
made at the Passport Office of the Department of State, the CIA, and
other appropriate agencies. Efforts shall be made to develop sources,
generally in the U.S., who knew the individual overseas to cover
significant employment, education, or residence and to determine whether
any lasting foreign contacts or connections were established during this
period. If the individual has worked or lived outside of the U.S.
continuously for over one year, the investigation will be expanded to
cover fully this period through the use of such investigative assets and
checks of record sources as may be available to the U.S. Government in
the foreign country in which the individual resided.
(2) Foreign travel under the auspices of the U.S. Government. When
employment, education, or residence has occurred overseas for a period
of more than one year, under the auspices of the U.S. Government, a
record check will be made at the Passport Office of the Department of
State, the CIA and other appropriate agencies. Efforts shall be made to
develop sources (generally in the U.S.) who knew the individual overseas
to cover significant employment, education, or residence and to
determine whether any lasting foreign contacts or connections were
established during this period. Additionally, the investigation will be
expanded to cover fully this period through the use of such
investigative assets and checks of record sources as may be available to
the U.S. Government in the foreign country in which the individual
resided.
1. Foreign connections. All foreign connections (friends, relatives,
and/or business connections) of subject and immediate family in the U.S.
or abroad, except where such association was the direct result of
subject's official duties with the U.S. Government, shall be
ascertained. Investigation shall be directed toward determining the
significance of foreign connections on the part of subject and the
immediate family, particularly where the association is or has been with
persons whose origin was within a country whose national interests are
inimical to those of the U.S. When subject or his spouse has close
relatives residing in a Communist-controlled country, or subject has
resided, visited, or traveled in such a country, not under U.S.
Government auspices, the provisions of 154.8(i)(3) of this part apply.
m. Organizations. Efforts will be made during reference interviews
and record reviews to determine if subject and/or the immediate family
has, or formerly had, membership in, affiliation with, sympathetic
association towards, or participated in any foreign or domestic
organization, association, movement, group, or combination of persons of
the type described in 154.7(a) through (d) of this part.
n. Divorce. Divorces, annulments, and legal separations of subject
shall be verified only when there is reason to believe that the grounds
for the action could reflect on subject's suitability for a position of
trust.
o. Military service. All military service and types of discharge
during the last 15 years shall be verified.
p. Medical records. Medical records shall not be reviewed unless:
(1) The requester indicates that subject's medical records were
unavailable for review prior to submitting the request for
investigation, or
(2) The requester indicates that unfavorable information is contained
in subject's medical records, or
(3) The subject lists one or more of the following on the SPH or PSQ:
(a) A history of mental or nervous disorders.
(b) That subject is now or has been addicted to the use of
habit-forming drugs such as narcotics or barbiturates or is now or has
been a chronic user to excess of alcoholic beverages.
q. Updating a previous investigation to SBI standards. If a previous
investigation does not substantially meet the minimum standards of an
SBI or if it is more than 5 years old, a current investigation is
required but may be limited to that necessary to bring the individual's
file up to date in accordance with the investigative requirements of an
SBI. Should new information be developed during the current
investigation that bears unfavorably upon the individual's activities
covered by the previous investigation, the current inquiries shall be
expanded as necessary to develop full details of this new information.
5. Periodic Reinvestigation (PR). a. Each DoD military, civilian,
consultant, and contractor employee (to include foreign nationals
holding a limited access authorization) occupying a critical sensitive
position, possessing a Top Secret clearance, or occupying a special
access program position shall be the subject of a PR initiated 5 years
from the date of completion of the last investigation. The PR shall
cover the period of the last 5 years.
b. Minimum investigative requirements. A PR shall include the
following minimum scope.
(1) NAC. A valid NAC on the SUBJECT will be conducted in all cases.
Additionally, for positions requiring SCI access, checks of DCII,
FBI/HQ, FBI/ID name check only, and other agencies deemed appropriate,
will be conducted on the SUBJECT's current spouse or cohabitant, if not
previously conducted. Additionally, NACs will be conducted on immediate
family members, 18 years of age or older, who are aliens and/or
immigrant aliens, if not previously accomplished.
(2) Credit. Credit bureau checks covering all places where the
SUBJECT resided for 6 months or more, on a cumulative basis, during the
period of investigation, in the 50 states, District of Columbia, Puerto
Rico and overseas (where APO/FPO addresses are provided), will be
conducted.
(3) Subject interview. The interview should cover the entire period
of time since the last investigation, not just the last 5-year period.
Significant information disclosed during the interview, which has been
satisfactorily covered during a previous investigation, need not be
explored again unless additional relevant information warrants further
coverage. An SI is not required if one of the following conditions
exists:
(a) The SUBJECT is aboard a deployed ship or in some remote area that
would cause the interview to be excessively delayed.
(b) The SUBJECT is in an overseas location serviced by the State
Department or the FBI.
(4) Employment. Current employment will be verified. Military and
federal service records will not routinely be checked, if previously
checked by the requester when PR was originally submitted. Also,
employment records will be checked wherever employment interviews are
conducted. Records need be checked only when they are locally
available, unless unfavorable information has been detected.
(5) Employment references. Two supervisors or co-workers at the most
recent place of employment or duty station of 6 months; if the current
employment is less than 6 months employment reference interviews will be
conducted at the next prior place of employment, which was at least a
6-month duration.
(6) Developed Character References (DCRs). Two developed character
references who are knowledgeable of the SUBJECT will be interviewed.
Developed character references who were previously interviewed will only
be reinterviewed when other developed references are not available.
(7) Local Agency Checks (LACs). DIS will conduct local agency checks
on the SUBJECT at all places of residence, employment, and education
during the period of investigation, regardless of duration, including
overseas locations.
(8) Select scoping. When the facts of the case warrant, additional
select scoping will be accomplished, as necessary, to fully develop or
resolve an issue.
32 CFR 154.78 Pt. 154, App. B
32 CFR 154.78 Appendix B to Part 154 -- Request Procedures
A. General. To conserve investigative resources and to insure that
personnel security investigations are limited to those essential to
current operations and are clearly authorized by DoD policies,
organizations requesting investigations must assure that continuing
command attention is given to the investigative request process.
In this connection, it is particularly important that the provision
of Executive Order 12356 requiring strict limitations on the
dissemination of official information and material be closely adhered to
and that investigations requested for issuing clearances are limited to
those instances in which an individual has a clear need for access to
classified information. Similarly, investigations required to determine
eligibility for appointment or retention in DoD, in either a civilian or
military capacity, must not be requested in frequency or scope exceeding
that provided for in this part.
In view of the foregoing, the following guidelines have been
developed to simplify and facilitate the investigative request process:
1. Limit requests for investigation to those that are essential to
current operations and clearly authorized by DoD policies and attempt to
utilize individuals who, under the provisions of this part, have already
met the security standard;
2. Assure that military personnel on whom investigative requests are
initiated will have sufficient time remaining in service after
completion of the investigation to warrant conducting it;
3. Insure that request forms and prescribed documentation are
properly executed in accordance with instructions;
4. Dispatch the request directly to the DIS Personnel Investigations
Center;
5. Promptly notify the DIS Personnel Investigations Center if the
investigation is no longer needed (notify OPM if a NACI is no longer
needed); and
6. Limit access through strict need-to-know, thereby requiring fewer
investigations.
In summary, close observance of the above-cited guidelines will allow
the DIS to operate more efficiently and permit more effective, timely,
and responsive service in accomplishing investigations.
B. National Agency Check (NAC). When a NAC is requested an original
only of the DD Form 398-2 (National Agency Check Request) and a
completed FD 258 (Applicant Fingerprint Card) are required. If the
request is for an ENTNANC, an original only of the DD Form 398-2 and a
completed DD Form 2280 (Armed Forces Fingerprint Card) are required.
Those forms should be sent directly to: Personnel Investigation Center,
Defense Investigative Service, P.O. Box 1083, Baltimore, Maryland 21203.
C. National Agency Check plus written Inquiries (NACI). When a NACI
is requested, an original and one copy of the SF 85 (Data for
Nonsensitive or Noncritical-sensitive Position), an SF 171 (Personal
Qualifications Statement), and an SF 87 (U.S. Civil Service Commission
Fingerprint Chart) shall be sent directly to: Office of Personnel
Management, Bureau of Personnel Investigations, NACI Center, Boyers,
Pennsylvania 16018.
The notation ''ALL REFERENCES'' shall be stamped immediately above
the title at the top of the Standard Form 85.
D. DoD National Agency Check with Inquiries (DNACI). 1. When a DNACI
is requested, one copy of DD Form 1879, an original and two copies of
the DD Form 398-2 (National Agency Check Request), two copies of FD 258
(Fingerprint Card), and an original of DD Form 2221 (Authority for
Release of Information and Records) shall be sent directly to:
Personnel Investigations Center, Defense Investigative Service, P.O. Box
1083, Baltimore, Maryland 21203.
2. The DD Form 398-2 must be completed to cover the most recent five
year period. All information, to include items relative to residences
and employment, must be complete and accurate to avoid delays in
processing.
E. Special Background Investigation (SBI)/Background Investigation
(BI). 1. When requesting a BI or SBI, one copy of DD Form 1879 (Request
for Personnel Security Investigation), an original and four copies of DD
Form 398 (Statement of Personnel History), two copies of FD 258, and an
original of DD Form 2221 (Authority for Release of Information and
Records) shall be sent directly to the: Personnel Investigations
Center, Defense Investigative Service, P.O. Box 454, Baltimore, Maryland
21203.
2. For the BI and SBI, the DD Form 398 must be completed to cover the
most recent five and 15 year period, respectively, or since the 18th
birthday, whichever is shorter.
F. Periodic Reinvestigation (PR). 1. PRs shall be requested only in
such cases as are authorized by 154.19 (a) through (k) of this part.
a. For a PR requested in accordance with 154.19 (a) and (k) and the
DD Form 1879 must be accompanied by the following documents:
(1) Original and four copies of DD Form 398.
(2) Two copies of FD-258.
(3) Original copy of DD Form 2221.
b. In processing PRs, previous investigative reports will not be
requested by the requesting organization, unless significant derogatory
or adverse information, postdating the most recent favorable
adjudication, is developed during the course of reviewing other locally
available records. In the latter instance, requests for previous
investigative reports may only be made if it is determined by the
requesting organization that the derogatory information is so
significant that a review of previous investigative reports is necessary
for current adjudicative determinations.
2. No abbreviated version of DD Form 398 may be submitted in
connection with a PR.
3. The PR request shall be sent to the address in paragraph E.1.
G. Additional investigation to resolve derogatory or adverse
information. 1. Requests for additional investigation required to
resolve derogatory or adverse information shall be submitted by DD Form
1879 (Request for Personnel Security Investigation) to the: Defense
Investigative Service, P.O. Box 454, Baltimore, Maryland 21203.
Such requests shall set forth the basis for the additional
investigation and describe the specific matter to be substantiated or
disproved.
2. The request should be accompanied by an original and four copies
of the DD Form 398, where appropriate, two copies of FD-258 and an
original copy of DD Form 2221, unless such documentation was submitted
within the last 12 months to DIS as part of a NAC or other personnel
security investigation. If pertinent, the results of a recently
completed NAC, NACI, or other related investigative reports available
should also accompany the request.
H. Obtaining results of prior investigations. Requesters requiring
verification of a specified type of personnel security investigation,
and/or requiring copies of prior investigations conducted by the DIS
shall submit requests by letter or message to: Defense Investigative
Service Investigative Files Division, P.O. Box 1211, Baltimore, Maryland
21203, Message Address: DIS PIC BALTIMORE MD/ /D0640.
The request will include subject's name, grade, social security
number, date and place of birth, and DIS case control number if known.
I. Requesting postadjudication cases. 1. Requests pertaining to
issues arising after adjudication of an investigation (postadjudication
cases) shall be addressed to DIS on a DD Form 1879 accompanied by a DD
Form 398, where appropriate.
2. All requests for initial investigations will be submitted to PIC
regardless of their urgency. If, however, there is an urgent need for a
postadjudication investigation, or the mailing of a request to PIC for
initiation of a postadjudication case would prejudice timely pursuit of
investigative action, the DD Form 1879 may be directed for initiation,
in CONUS, to the nearest DIS Field Office, and in overseas locations, to
the military investigative service element supporting the requester
(Appendix I). The field element (either DIS or the military
investigative agency) will subsequently forward either the DD Form 1879
or completed investigation to PIC.
3. A fully executed DD Form 1879 and appropriate supporting documents
may not be immediately available. Further, a case that is based on
sensitive security issues may be compromised by a request that the
subject submit a DD Form 398. A brief explanation should appear on DD
Form 1879s which does not include complete supporting documentation.
J. Requests involving contractor employees. To preclude duplicative
investigative requests and double handling of contractor employee cases
involving access to classified information, all requests for
investigation of contractor personnel must be submitted, using
authorized industrial security clearance forms, for processing through
the Defense Industrial Security Clearance Office, except for programs in
which specific approval has been obtained from the Deputy Under
Secretary of Defense for Policy to utilize other procedures.
K. Responsibility for proper documentation of requests. The official
signing the request for investigation shall be responsible for insuring
that all documentation is completed in accordance with these
instructions.
32 CFR 154.78 Pt. 154, App. C
32 CFR 154.78 Appendix C to Part 154 -- Tables for Requesting
Investigations
32 CFR 154.78 Pt. 154, App. D
32 CFR 154.78 Appendix D to Part 154 -- Reporting of Nonderogatory
Cases
Background Investigation (BI) and Special Background Investigation
(SBI) shall be considered as devoid of significant adverse information
unless they contain information listed below:
1. Incidents, infractions, offenses, charges, citations, arrests,
suspicion or allegations of illegal use or abuse of drugs or alcohol,
theft or dishonesty, unreliability, irresponsibility, immaturity,
instability or recklessness, the use of force, violence or weapons or
actions that indicate disregard for the law due to multiplicity of minor
infractions.
2. All indications of moral turpitude, heterosexual promiscuity,
aberrant, deviant, or bizarre sexual conduct or behavior,
transvestitism, transsexualism, indecent exposure, rape, contributing to
the delinquency of a minor, child molestation, wife-swapping,
window-peeping, and similar situations from whatever source. Unlisted
full-time employment or education; full-time education or employment
that cannot be verified by any reference or record source or that
contains indications of falsified education or employment experience.
Records or testimony of employment, education, or military service where
the individual was involved in serious offenses or incidents that would
reflect adversely on the honesty, reliability, trustworthiness, or
stability of the individual.
3. Foreign travel, education, visits, correspondence, relatives, or
contact with persons from or living in a designated country (Appendix
G).
4. Mental, nervous, emotional, psychological, psychiatric, or
character disorders/behavior or treatment reported or alleged from any
source.
5. Excessive indebtedness, bad checks, financial difficulties or
irresponsibility, unexplained affluence, bankruptcy, or evidence of
living beyond the individual's means.
6. Any other significant information relating to the criteria
included in paragraphs (a) through (q) of 154.7 or Appendix H of this
part.
32 CFR 154.78 Pt. 154, App. E
32 CFR 154.78 Appendix E to Part 154 -- Personnel Security
Determination Authorities
A. Officials authorized to grant, deny or revoke personnel security
clearances (Top Secret, Secret, and Confidential):
1. Secretary of Defense and/or designee
2. Secretary of the Army and/or designee
3. Secretary of the Navy and/or designee
4. Secretary of the Air Force and/or designee
5. Chairman, Joint Chiefs of Staff and/or designee
6. Directors of the Defense Agencies and/or designee
7. Commanders of the Unified and Specified Commands and/or designee
B. Officials authorized to grant Limited Access Authorizations:
1. Secretaries of the Military Departments and/or designee
2. Director, Washington Headquarters Service for OSD and/or designee
3. Chairman, JCS and/or designee
4. Directors of the Defense Agencies and/or designee
5. Commanders, Unified and Specified Commands and/or designee
C. Officials authorized to grant access to SCI:
Director, NSA -- for NSA
Director, DIA -- for OSD, OJCS, and Defense Agencies
Senior Officers of the Intelligence Community of the Army, Navy, and
Air Force -- for their respective Military Departments, or their single
designee.
D. Officials authorized to certify personnel under their jurisdiction
for access to Restricted Data (to include Critical Nuclear Weapon Design
Information): see enclosure to DoD Directive 5210.2.
E. Officials authorized to approve personnel for assignment to
Presidential Support activities: The Executive Secretary to the
Secretary and Deputy Secretary of Defense or designee.
F. Officials authorized to grant access to SIOP-ESI:
1. Director of Strategic Target Planning
2. Director, Joint Staff, OJCS
3. Chief of Staff, U.S. Army
4. Chief of Naval Operations
5. Chief of Staff, U.S. Air Force
6. Commandant of the Marine Corps
7. Commanders of Unified and Specified Commands
8. The authority to grant access delegated above may be further
delegated in writing by the above officials to the appropriate
subordinates.
G. Officials authorized to designate sensitive positions:
1. Heads of DoD Components or their designees for critical-sensitive
positions.
2. Organizational commanders for noncritical-sensitive positions.
H. Nonappropriated Fund Positions of Trust:
Officials authorized to designate nonappropriated fund positions of
trust: Heads of DoD Components and/or their designees.
32 CFR 154.78 Pt. 154, App. F
32 CFR 154.78 Appendix F to Part 154 -- Guidelines for Conducting
Prenomination Personal Interviews
A. Purpose. The purpose of the personal interview is to assist in
determining the acceptability of an individual for nomination and
further processing for a position requiring an SBI.
B. Scope. Questions asked during the course of a personal interview
must have a relevance to a security determination. Care must be taken
not to inject improper matters into the personal interview. For
example, religious beliefs and affiliations, beliefs and opinions
regarding racial matters, political beliefs and affiliations of a
nonsubversive nature, opinions regarding the constitutionality of
legislative policies, and affiliations with labor unions and fraternal
organizations are not proper subjects for inquiry. Department of
Defense representatives conducting personal interviews should always be
prepared to explain the relevance of their inquiries. Adverse
inferences shall not be drawn from the refusal of a person to answer
questions the relevance of which has not been established.
C. The interviewer. Except as prescribed in paragraph B. above,
persons conducting personal interviews normally will have broad latitude
in performing this essential and important function and, therefore, a
high premium must necessarily be placed upon the exercise of good
judgment and common sense. To insure that personal interviews are
conducted in a manner that does not violate lawful civil and private
rights or discourage lawful political activity in any of its forms, or
intimidate free expression, it is necessary that interviewers have a
keen and well-developed awareness of and respect for the rights of
interviewees. Interviewers shall never offer an opinion as to the
relevance or significance of information provided by the interviewee to
eligibility for access to SCI. If explanation in this regard is
required, the interviewer will indicate that the sole function of the
interview is to obtain information and that the determination of
relevance or significance to the individual's eligibility will be made
by other designated officials.
D. Interview procedures. 1. The Head of the DoD Component concerned
shall establish uniform procedures for conducting the interview that are
designed to elicit information relevant to making a determination of
whether the interviewee, on the basis of the interview and other locally
available information (DD 398, Personnel Security Investigation
Questionnaire, personnel records, security file, etc.), is considered
acceptable for nomination and further processing.
2. Such procedures shall be structured to insure the interviewee his
full rights under the Constitution of the United States, the Privacy Act
of 1974 and other applicable statutes and regulations.
E. Protection of interview results. All information developed during
the course of the interview shall be maintained in personnel security
channels and made available only to those authorities who have a
need-to-know in connection with the processing of an individual's
nomination for duties requiring access to SCI or those who need access
to information either to conduct the required SBI or to adjudicate the
matter of the interviewee's eligibility for access to SCI, or as
otherwise authorized by Executive order or statute.
F. Acceptability determination. 1. The determination of the
interviewee's acceptability for nomination for duties requiring access
to sensitive information shall be made by the commander, or designee, of
the DoD organization that is considering nominating the interviewee for
such duties.
2. Criteria guidelines contained in DCID 1/14 upon which the
acceptability for nomination determination is to be based shall be
provided to commanders of DoD organizations who may nominate individuals
for access to SCI and shall be consistent with those established by the
Senior Officer of the Intelligence Community of the Component concerned
with respect to acceptability for nomination to duties requiring access
to SCI.
32 CFR 154.78 Pt. 154, App. G
32 CFR 154.78 Appendix G to Part 154 -- List of Designated Countries
/1/
/1/ See Appendix G, DoD C-5102.21-M-1.
32 CFR 154.78 Pt. 154, App. H
32 CFR 154.78 Appendix H to Part 154 -- Adjudication Policy
General. The following adjudication policy has been developed to
assist DoD adjudicators in making determinations with respect to an
individual's eligibility for employment or retention in sensitive duties
or eligibility for access to classified information. Adjudication
policy relative to access to sensitive compartmented information is
contained in DCID 1/14.
While reasonable consistency in reaching adjudicative determinations
is desirable, the nature and complexities of human behavior preclude the
development of a single set of guidelines or policies that is equally
applicable in every personnel security case. Accordingly, the following
adjudication policy is not intended to be interpreted as inflexible
rules of procedure. The following policy requires dependence on the
adjudicator's sound judgment, mature thinking, and careful analysis as
each case must be weighed on its own merits, taking into consideration
all relevant circumstances, and prior experience in similar cases as
well as the guidelines contained in the adjudication policy, which have
been compiled from common experience in personnel security
determinations.
Each adjudication is to be an overall common sense determination
based upon consideration and assessment of all available information,
both favorable and unfavorable, with particular emphasis being placed on
the seriousness, recency, frequency and motivation for the individual's
conduct; the extent to which conduct was negligent, willful, voluntary,
or undertaken with knowledge of the circumstances or consequences
involved; and, to the extent that it can be estimated, the probability
that conduct will or will not continue in the future. The listed
''Disqualifying Factors'' and ''Mitigating Factors'' in this set of
Adjudication Policies reflect the consideration of those factors of
seriousness, recency, frequency, motivation, etc., to common situations
and types of behavior encountered in personnel security adjudications,
and should be followed whenever an individual case can be measured
against this policy guidance. Common sense may occasionally necessitate
deviations from this policy guidance, but such deviations should not be
frequently made and must be carefully explained and documented.
The ''Disqualifying Factors'' provided herein establish some of the
types of serious conduct under the criteria that can justify a
determination to deny or revoke an individual's eligibility for access
to classified information, or appointment to, or retention in sensitive
duties. The ''Mitigating Factors'' establish some of the types of
circumstances that may mitigate the conduct listed under the
''Disqualifying Factors''. Any determination must include a
consideration of both the conduct listed under ''Disqualifying Factors''
and any circumstances listed under the appropriate or corresponding
''Mitigating Factors''.
The adjudication policy is subdivided into sections appropriate to
each of the criteria provided in 154.7 of this part, except 154.7(i)
for which conduct under any of the ''Disqualifying Factors'' of the
adjudication policy or any other types of conduct may be appropriately
included, if it meets the definition of 154.7(i).
In all adjudications, the protection of the national security shall
be the paramount determinant. In the last analysis, a final decision in
each case must be arrived at by applying the standard that the issuance
of the clearance or assignment to the sensitive position is ''clearly
consistent with the interests of national security.''
(See 154.7 (a) through (d)).
Basis: Commission of any act of sabotage, espionage, treason,
terrorism, anarchy, sedition, or attempts threat or preparation
therefor, or conspiring with or aiding or abetting another to commit or
attempt to commit any such act. Establishing or continuing a
sympathetic association with a saboteur, spy, traitor, seditionist,
anarchist, terrorist, revolutionist, or with an espionage or other
secret agent or similar representative of a foreign nation whose
interests may be inimical to the interests of the United States, or with
any person who advocates the use of force or violence to overthrow the
Government of the United States or to alter the form of Government of
the United States by unconstitutional means. Advocacy or use of force
or violence to overthrow the Government of the United States or to alter
the form of Government of the United States by unconstitutional means.
Knowing membership with the specific intent of furthering the aims of,
or adherence to and active participation in any foreign or domestic
organization, association, movement, group or combination of persons
(hereafter referred to as organizations) which unlawfully advocates or
practices the commission of acts of force or violence to prevent others
from exercising their rights under the Constitution or laws of the
United States or of any State or which seeks to overthrow the Government
of the United States or any State or subdivision thereof by unlawful
means.
Disqualifying Factors (behavior falls within one or more of the
following categories):
1. Furnishing a representative of a foreign government information or
data which could damage the national security of the United States.
2. Membership in an organization that has been characterized by the
Department of Justice as one which meets the criteria in the above cited
''Basis.''
3. Knowing participation in acts that involve force or violence or
threats of force or violence to prevent others from exercising their
rights under the Constitution or to overthrow or alter the form of
government of the United States or of any State.
4. Monetary contributions, service, or other support of the
organization defined in ''Basis'', above, with the intent of furthering
the unlawful objectives of the organization.
5. Participation, support, aid, comfort or sympathetic association
with persons, groups, organizations involved in terrorist activities,
threats, or acts.
6. Evidence of continuing sympathy with the unlawful aims and
objectives of such an organization, as defined in the ''Basis'' above.
7. Holding a position of major doctrinal or managerial influence in
an organization as defined in the ''Basis'' above.
Mitigating Factors (circumstances which may mitigate disqualifying
information):
1. Lack of knowledge or understanding of the unlawful aims of the
organization.
2. Affiliation or activity occurred during adolescent/young adult
years (17-25), more than 5 years has passed since affiliation was
severed, and affiliation was due to immaturity.
3. Affiliation for less than a year out of curiosity or academic
interest.
4. Sympathy or support limited to the lawful objectives of the
organization.
(See 154.7(f)).
Basis: Performing or attempting to one's perform duties, acceptance
and active maintenance of dual citizenship, or other acts conducted in a
manner which serve or which could be expected to serve the interests of
another government in preference to the interests of the United States.
Disqualifying Factors (behavior falls within one or more of the
following categories):
1. The active maintenance of dual citizenship, by one or more of the
following:
a. Possession of a passport issued by a foreign nation and use of
this passport to obtain legal entry into any sovereign state in
preference to use of a U.S. passport.
b. Military service in the armed forces of a foreign nation or the
willingness to comply with an obligation to so serve, or the willingness
to bear arms at any time in the future on behalf of the foreign state.
c. Exercise or acceptance of rights, privileges or benefits offered
by the foreign state to its citizens, (e.g., voting in a foreign
election; receipt of honors or titles; financial compensation due to
employment/retirement, educational or medical or other social welfare
benefits), in preference to those of the United States.
d. Travel to or residence in the foreign state for the purpose of
fulfilling citizenship requirements or obligations.
e. Maintenance of dual citizenship to protect financial interests, to
include property ownership, or employment or inheritance rights in the
foreign state.
f. Registration for military service or registration with a foreign
office, embassy or consulate to obtain benefits.
2. Employment as an agent or other official representative of a
foreign government, or seeking or holding political office in a foreign
state.
3. Use of a U.S. Government position of trust or responsibility to
influence decisions in order to serve the interests of another
government in preference to those of the United States.
Mitigating Factors (circumstances which may mitigate disqualifying
information):
1. Claim of dual citizenship is with a foreign country whose
interests are not inimical to those of the United States and is based
solely on applicant's or applicant's parent(s)' birth, the applicant has
not actively maintained citizenship in the last ten years and indicates
he or she will not in the future act so as to pursue this claim.
2. Military service while a U.S. citizen was in the armed forces of a
state whose interests are not inimical to those of the United States and
such service was officially sanctioned by United States authorities.
3. Employment is as a consultant only and services provided is of the
type sanctioned by the United States Government.
(See 154.7 (g) and (e)).
Basis: Disregard of public law, Statutes, Executive Orders or
Regulations, including violation of security regulations or practices,
or unauthorized disclosure to any person of classified information, or
of other information, disclosure of which is prohibited by Statute,
Executive Order or Regulation.
Disqualifying Factors: (behavior falls within one or more of the
following categories):
1. Deliberate or reckless disregard of security regulations, public
law, statutes or Executive Orders which could have resulted in the loss
or compromise of classified information.
2. Deliberate or reckless violations of security regulations,
including, but not limited to, taking classified information home or
carrying classified data while in a travel status without proper
authorization, intentionally copying classified documents in order to
obsure classification markings, disseminating classified information to
cleared personnel who have no ''need to know'', or disclosing classified
information, or other information, disclosure of which is prohibited by
Statute, Executive Order or Regulation, to persons who are not cleared
or authorized to receive it.
3. Pattern of negligent conduct in handling or storing classified
documents.
Mitigating Factors (circumstances which may mitigate disqualifying
information):
1. Violation of security procedures was directly caused or
significantly contributed to by an improper or inadequate security
briefing, provided the individual reasonably relied on such briefing in
good faith.
2. Individual is personally responsible for a large volume of
classified information and the violation was merely administrative in
nature.
3. Security violation was merely an isolated incident not involving
deliberate or reckless violation of security policies, practices or
procedures.
(See 154.7(h)).
Basis: Criminal or dishonest conduct.
When it is determined that an applicant for a security clearance, or
a person holding a clearance, has engaged in conduct which would
constitute a felony under the laws of the United States, the clearance
of such person shall be denied or revoked unless it is determined that
there are compelling reasons to grant or continue such clearance.
Compelling reasons can only be shown by clear and convincing evidence of
the following:
(a) The felonious conduct (1) did not involve an exceptionally grave
offense; (2) was an isolated episode; and (3) the individual has
demonstrated trustworthiness and respect for the law over an extended
period since the offense occurred; or
(b) The felonious conduct (1) did not involve an exceptionally grave
offense; (2) was an isolated episode; (3) was due to the immaturity of
the individual at the time it occurred; and (4) the individual has
demonstrated maturity, trustworthiness, and respect for the law since
that time; or
(c) In cases where the individual has committed felonious conduct but
was not convicted of a felony, there are extenuating circumstances which
mitigate the seriousness of the conduct such that it does not reflect a
lack of trustworthiness or respect for the law.
The above criteria supersede all criteria previously used to
adjudicate criminal conduct involving commission of felonies under the
Laws of the United States. Involvement in criminal activities which
does not constitute a felony under the laws of the United States shall
be evaluated in accordance with the criteria set forth below. (For
purposes of this paragraph, the term ''felony'' means any crime
punishable by imprisonment for more than a year. The term
''exceptionally grave offense'' includes crimes against the Federal
Government, its instrumentalities, officers, employees or agents; or
involves dishonesty, fraud, bribery or false statement; or involves
breach of trust or fiduciary duty; or involves serious threat to life
or public safety.)
Disqualifying Factors: (behavior falls within one or more of the
following categories):
1. Criminal conduct involving:
a. Commission of a state felony.
b. Force, coercion, or intimidation.
c. Firearms, explosives, or other weapons.
d. Dishonesty or false statements, e.g. fraud, theft, embezzlement,
falsification of documents or statements.
e. Obstruction or corruption of government functions.
f. Deprivation of civil rights.
g. Violence against persons.
2. Criminal conduct punishable by confinement for one year or more.
3. An established pattern of criminal conduct, whether the individual
was convicted or not.
4. Failure to complete a rehabilitation program resulting from
disposition of a criminal proceeding or violation of probation, even if
the violation did not result in formal revocation of probation.
Rehabilitation should not be considered a success or failure while the
individual is still on parole/probation.
5. Criminal conduct that is so recent in time as to preclude a
determination that recurrence is unlikely.
6. Close and continuing association with persons known to the
individual to be involved in criminal activities.
7. Criminal conduct indicative of a serious mental aberration, lack
of remorse, or insufficient probability of rehabilitative success,
(e.g., spouse or child abuse).
8. Disposition:
a. Conviction.
b. Disposition on a legal issue not going to the merits of the crime.
c. Arrest or indictment pending trial when there is evidence that the
individual engaged in the criminal conduct for which arrested or
indicted.
9. Arrest record. In evaluating an arrest record, information that
indicates that the individual was acquitted, that the charges were
dropped or the subject of a ''stet'' or ''nolle prosequi'', that the
record was expunged, or that the cause was dismissed due to error not
going to the merits, does not negate the security significance of the
underlying conduct. Personnel security determinations are to be made on
the basis of all available information concerning a person's conduct and
actions rather than the legal outcome of a criminal proceeding.
Mitigating Factors: (circumstances which may mitigate disqualifying
information):
1. Immaturity attributable to the age of the individual at the time
of the offense.
2. Extenuating circumstances surrounding the offense.
3. Circumstances indicating that the actual offense was less serious
than the offense charged.
4. Isolated nature of the conduct.
5. Conduct occurring only in the distant past (such as more than 5
years ago) in the absence of subsequent criminal conduct.
6. Transitory conditions directly or significantly contributing to
the conduct (such as divorce action, death in family, severe
provocation) in the absence of subsequent criminal conduct.
(See 154.7(j)).
Basis: Any behavior or illness, including any mental condition,
which, in the opinion of competent medical authority, may cause a defect
in judgment or reliability with due regard to the transient or
continuing effect of the illness and the medical findings in such case.
Disqualifying Factors: (behavior or condition falls within one or
more of the following categories):
1. Diagnosis by competent medical authority (board certified
psychiatrist or clinical psychologist) that the individual has an
illness or mental condition which may result in a significant defect in
judgment or reliability.
2. Conduct or personality traits that are bizarre or reflect abnormal
behavior or instability even though there has been no history of mental
illness or treatment, but which nevertheless, in the opinion of
competent medical authority, may cause a defect in judgment or
reliability.
3. A diagnosis by competent medical authority that the individual
suffers from mental or intellectual incompetence or mental retardation
to a degree significant enough to establish or suggest that the
individual could not recognize, understand or comprehend the necessity
of security regulations, or procedures, or that judgment or reliability
are significantly impaired, or that the individual could be influenced
or swayed to act contrary to the national security.
4. Diagnosis by competent medical authority that an illness or
condition that had affected judgment or reliability may recur even
though the individual currently manifests no symptoms, or symptoms
currently are reduced or in remission.
5. Failure to take prescribed medication or participate in treatment
(including follow-up treatment or aftercare), or otherwise failing to
follow medical advice relating to treatment of the illness or mental
condition.
Mitigating Factors: (circumstances which may mitigate disqualifying
information):
1. Diagnosis by competent medical authority that an individual's
previous mental or emotional illness or condition that did cause
significant defect in judgment or reliability is cured and has no
probability of recurrence, or such a minimal probability of recurrence
as to reasonably estimate there will be none.
2. The contributing factors or circumstances which caused the bizarre
conduct or traits, abnormal behavior, or defect in judgment and
reliability have been eliminated or rectified, there is a corresponding
alleviation of the individual's condition and the contributing factors
or circumstances are not expected to recur.
3. Evidence of the individual's continued reliable use of prescribed
medication for a period of at least two years, without recurrence and
testimony by competent medical authority that continued maintenance of
prescribed medication is medically practical and likely to preclude
recurrence of the illness or condition affecting judgment or
reliability.
4. There has been no evidence of a psychotic condition, a serious or
disabling neurotic disorder, or a serious character or personality
disorder for the past 10 years.
(See paragraph 154.7(k)).
Basis: Vulnerability to coercion, influence, or pressure that may
cause conduct contrary to the national interest. This may be (1) the
presence of immediate family members or other persons to whom the
applicant is bonded by affection or obligation in a nation (or areas
under its domination) whose interests may be inimical to those of the
United States, or (2) any other circumstances that could cause the
applicant to be vulnerable.
Disqualifying Factors: (behavior falls within one or more of the
following categories):
1. Indications that the individual now is being blackmailed,
pressured or coerced by any individual, group, association, organization
or government.
2. Indications that a vulnerable individual actually has been
targeted and/or approached for possible blackmail, coercion or pressure
by any individual, group, association, organization or government.
3. Indications that the individual has acted to increase the
vulnerability for future possible blackmail, coercion or pressure by any
individual, group, association, organization or governments, especially
by or in a country designated hostile to the United States (See Appendix
G). Indicators include, but are not limited to the following:
a. Failure to report to security officials any evidence, indication
or suspicion that mail to relatives has been opened, unusually delayed
or tampered with in any way, or that telephone calls have been
monitored.
b. An increase in curiosity or official or quasi-official inquiries
about the individual to relatives in the country where they reside
occasioned by the receipt of mail, packages, telephone calls or visits
from the individual.
c. Contact with, or visits by officials to the individual while
visiting relatives in another country, to learn more about the
individual, or the individual's employment or residence, etc.
d. Unreported attempts to obtain classified or other sensitive
information or data by representatives of a foreign country.
4. Conduct or actions by the individual while visiting in a country
hostile to the United States that increase the individual's
vulnerability to be targeted for possible blackmail, coercion or
pressure. These include, but are not limited to the following:
a. Violation of any laws of the foreign country where relatives
reside during visits or through mailing letters or packages, (e.g.,
smuggling, currency exchange violations, unauthorized mailings,
violations of postal regulations of the country, or any criminal
conduct, including traffic violations) which may call the attention of
officials to the individual.
b. Frequent and regular visits, correspondence, or telephone contact
with relatives in the country where they reside, increasing the
likelihood of official notice.
c. Failure to report to security officials those inquiries by friends
or relatives for more than a normal level of curiosity concerning the
individual's employment, sensitive duties, military service or access to
classified information.
d. Repeated telephone or written requests to the foreign government
officials for official favors, permits, visas, travel permission, or
similar requests which increase the likelihood of official notice.
e. Reckless conduct, open or public misbehavior or commission of acts
contrary to local customs or laws, or which violate the mores of the
foreign country and increase the likelihood of official notice.
f. Falsification of documents, lying to officials, harassing or
taunting officials or otherwise acting to cause an increase in the
likelihood of official notice or to increase the individual's
vulnerability because personal freedom could be jeopardized.
g. Commission of any illicit sexual act, drug purchase or use,
drunkenness or similar conduct which increases the likelihood of
official notice, or which increases the individual's vulnerability
because personal freedom could be jeopardized.
5. Conduct or actions by the individual that increase the
individual's vulnerability to possible coercion, blackmail or pressure,
regardless of the country in which it occurred, including, but not
limited to the following:
a. Concealment or attempts to conceal from an employer prior
unfavorable employment history, criminal conduct, mental or emotional
disorders or treatment, drug or alcohol use, sexual preference, or
sexual misconduct described under that section below, or fraudulent
credentials or qualifications for employment.
b. Concealment or attempts to conceal from immediate family members,
or close associates, supervisors or coworkers, criminal conduct, mental
or emotional disorders or treatment, drug or alcohol abuse, sexual
preference, or sexual misconduct described under that section below.
Mitigating Factors (circumstances which may mitigate disqualifying
infomration):
1. The individual:
a. Receives no financial assistance from and provides no financial
assistance to persons or organizations in the designated country.
b. Has been in the United States for at least 5 years since becoming
a U.S. citizen without significant contact with persons or organizations
from the designated country (each year of active service in the United
States military may be counted).
c. Has close ties of affection to immediate family members in the
United States.
d. Has adapted to the life-style in the United States, established
substantive financial or other associations with U.S. enterprises or
community activities.
e. Prefers the way of life and form of government in the U.S. over
the other country.
f. Is willing to defend the U.S. against all threats including the
designated country in question.
g. Has not divulged the degree of association with the U.S.
government or access to classified information to individuals in the
designated country in question.
h. Has not been contacted or approached by anyone or any organization
from a designated country to provide information or favors, or to
otherwise act for a person or organization in the designated country in
question.
i. Has promptly reported to proper authorities all attempted
contacts, requests or threats from persons or organizations from the
designated country.
j. The individual is aware of the possible vulnerability to attempts
of blackmail or coercion and has taken positive steps to reduce or
eliminate such vulnerability.
(See 154.7(1)).
Basis: Excessive indebtedness, recurring financial difficulties, or
unexplained affluence.
Disqualifying Factors: (behavior falls within one or more of the
following categories):
1. History of bad debts, garnishments, liens, repossessions,
unfavorable judgments, delinquent or uncollectable accounts or debts
written off by creditors as uncollectable losses with little or no
apparent or voluntary effort by the individual to pay amounts owed.
2. Bankruptcy:
a. Due to financial irresponsibility, or
b. With continuing financial irresponsibility thereafter.
3. Indebtedness aggravated or caused by gambling, alcohol, drug
abuse, or other factors indicating poor judgement or financial
irresponsibility.
4. A history or pattern of living beyond the person's financial means
or ability to pay, a lifestyle reflecting irresponsible expenditures
that exceed income or assets, or a history or pattern of writing checks
not covered by sufficient funds or on closed accounts.
5. Indication of deceit or deception in obtaining credit or bank
accounts, misappropriation of funds, income tax evasion, embezzlement,
fraud, or attempts to evade lawful creditors.
6. lndifference to or disregard of financial obligations or
indebtedness or intention not to meet or satisfy lawful financial
obligations or when present expenses exceed net income.
7. Unexplained affluence or income derived from illegal gambling,
drug trafficking or other criminal or nefarious means.
8. Significant unexplained increase in an individual's net worth.
Mitigating Factors: (circumstances which may mitigate disqualifying
information):
1. Scheduled program or systematic efforts demonstrated over a period
of time (generally one year) to satisfy creditors, to acknowledge debts
and arrange for reduced payments, entry into debt-consolidation program
or seeking the advice and assistance of financial counselors or court
supervised payment program.
2. Change to a more responsible lifestyle, reduction of credit card
accounts, and favorable change in financial habits over a period of time
(generally one year).
3. Stable employment record and favorable financial references.
4. Unforeseen circumstances beyond the individual's control (e.g. a
major or catastrophic illness or surgery, accidental loss of property or
assets not covered by insurance, decrease or cutoff of income,
indebtedness resulting from court judgments not due to the individual's
financial mismanagement), provided the individual demonstrates efforts
to respond to the indebtedness in a reasonable and responsible fashion.
5. Indebtedness due to failure of legitimate business efforts or
business-related bankruptcy without evidence of fault or financial
irresponsibility on the part of the individual, irresponsible
mismanagement of an individual's funds by another who had fiduciary
control or access to them without the individual's knowledge, or loss of
assets as a victim of fraud or deceit, provided the individual
demonstrates efforts to respond to the indebtedness in a reasonable and
responsible fashion.
6. Any significant increase in net worth was due to legitimate
business interests, inheritance or similar legal explanation.
(See paragraph 154.7(m)).
Basis: Habitual or episodic use of intoxicants to excess.
Disqualifying Factors: (behavior falls within one or more of the
following categories):
1. Habitual or episodic consumption of alcohol to the point of
impairment or intoxication.
2. Alcohol-related incidents such as traffic violations, fighting,
child or spouse abuse, non-traffic violation or other criminal incidents
related to alcohol use.
3. Deterioration of the individual's health or physical or mental
condition due to alcohol use or abuse.
4. Drinking on the job, reporting for work in an intoxicated or
''hungover'' condition, tardiness or absences caused by or related to
alcohol abuse, and impairment or intoxication occurring during, and
immediately following, luncheon breaks.
5. Refusal or failure to accept counseling or professional help for
alcohol abuse or alcoholism.
6. Refusal or failure to follow medical advice relating to alcohol
abuse treatment or to abstain from alcohol use despite medical or
professional advice.
7. Refusal or failure to significantly decrease consumption of
alcohol or to change life-style and habits which contributed to past
alcohol related difficulties.
8. Indications of financial or other irresponsibility or
unreliability caused by alcohol abuse, or discussing sensitive or
classified information while drinking.
9. Failure to cooperate in or successfully complete a prescribed
regimen of an alcohol abuse rehabilitation program.
Mitigating Factors (circumstances which may mitigate disqualifying
information):
1. Successfully completed an alcohol awareness program following two
or less alcohol-related incidents and has significantly reduced alcohol
consumption, and made positive changes in life-style and improvement in
job reliability.
2. Successfully completed an alcohol rehabilitation program after
three or more alcohol-related incidents, has significantly reduced or
eliminated alcohol consumption in accordance with medical or
professional advice, regularly attended Alcoholics Anonymous or similar
support organization for approximately one year after rehabilitation,
and abstained from the use of alcohol for that period of time.
3. Whenever one of the situations listed below occurs, the individual
must have successfully completed an alcohol rehabilitation or
detoxification program and totally abstained from alcohol for a period
of approximately two years:
a. The individual has had one previously failed rehabilitation
program and subsequent alcohol abuse or alcohol related incidents.
b. The individual has been diagnosed by competent medical or health
authority as an alcoholic, alcoholic dependent or chronic abuser of
alcohol.
4. Whenever the individual has had repeated unsuccessful
rehabilitation efforts and has continued drinking or has been involved
in additional alcohol related incidents then the individual must have
successfully completed an alcohol rehabilitation or detoxification
program, totally abstained from alcohol for a period of at least three
years and maintained regular and frequent participation in meetings of
Alcoholics Anonymous or similar organizations.
5. If an individual's alcohol abuse was surfaced solely as a result
of self referral to an alcohol abuse program and there have been no
precipitating factors such as alcohol related arrests or incidents
action will not normally be taken to suspend or revoke security
clearance solely on the self referral for treatment.
(See 154.7(n)).
Basis: Illegal or improper use, possession, transfer, sale or
addiction to any controlled or psychoactive substance, narcotic,
cannabis, or other dangerous drug.
Disqualifying Factors (behavior falls within one or more of the
following categories):
1. Abuse of cannabis only, not in combination with any other
substance.
a. Experimental abuse, defined as an average of once every two months
or less, but no more than six times.
b. Occasional abuse, defined as an average of not more than once a
month.
c. Frequent abuse, defined as an average of not more than once a
week.
d. Regular abuse, defined as an average of more than once a week.
e. Compulsive use, habitual use, physical or psychological
dependency, or use once a day or more on the average.
2. Abuse of any narcotic, psychoactive substance or dangerous drug
(to include prescription drugs), either alone, or in combination with
another or cannabis, as follows:
a. Experimental abuse, defined as an average of once every two months
or less, but no more than six times.
b. Occasional abuse, defined as an average of not more than once a
month.
c. Frequent abuse, defined as an average of not more than once a
week.
d. Regular abuse, defined as an average of more than once a week.
e. Compulsive use, habitual use, physical or psychological
dependency, or use on an average of once a day or more on the average.
3. Involvement to any degree in the unauthorized trafficking,
cultivation, processing, manufacture, sale, or distribution of any
narcotic, dangerous drug, or cannabis or assistance to those involved in
such acts whether or not the individual was arrested for such activity.
4. Involvement with narcotics, dangerous drugs or cannabis under the
following conditions whether or not the individual engages in personal
use:
a. Possession.
b. Possession of a substantial amount, more than could reasonably be
expected for personal use.
c. Possession of drug paraphernalia for cultivating, manufacturing or
distributing (e.g., possession of gram scales, smoking devices, needles
for injecting intravenously, empty capsules or other drug production
chemical paraphernalia.
d. Possession of personal drug paraphernalia such as needles for
injecting, smoking devices and equipment, etc.
5. Information that the individual intends to continue to use
(regardless of frequency) any narcotic, dangerous drug or cannabis.
Note: There is no corresponding Mitigating Factor for this
Disqualifying Factor because it is DoD policy that, as a general rule,
if any individual expresses or implies any intent to continue use of any
narcotic, dangerous drug, or other controlled substance, including
marijuana and hashish, without a prescription, in any amount and
regardless of frequency, it is to be considered contrary to the national
interest and the interests of national security to grant or allow
retention of a security clearance for access to classified information
for that individual.)
Mitigating Factors (circumstances which may mitigate disqualifying
information):
1. Abuse of cannabis only, as follows: (Use this to assess
Disqualifying Factor 1)
a. Experimental abuse, which occurred more than six months ago and
the individual has demonstrated an intent not to use cannabis or any
other narcotic, psychoactive substance or dangerous drug in the future.
b. Occasional abuse of cannabis, which occurred more than 12 months
ago, and the individual has demonstrated an intent not to use cannabis
or any other narcotic, dangerous drug or psychoactive substance in the
future.
c. Frequent abuse of cannabis occurred more than 18 months ago, and
the individual has demonstrated an intent not to use cannabis or any
other narcotic, dangerous drug or psychoactive substance in the future.
d. Regular abuse of cannabis occurred more than two years ago, and
the individual has demonstrated an intent not to use cannabis or any
other narcotic, dangerous drug or psychoactive substance in the future.
e. Compulsive, habitual use or physical or psychological dependency
on cannabis occurred more than three years ago, the individual has
demonstrated an intent not to use cannabis or any other narcotic,
dangerous drug or psychoactive substance in the future and has
demonstrated a stable life-style, with no indication of physical or
psychological dependence.
2. For abuse other than cannabis alone. Use is considered cumulative
and each separate substance must not be considered separately. (Use
this to assess Disqualifying Factor 2).
a. Experimental abuse occurred more than 12 months ago, the
individual has demonstrated an intent not to use any drugs or cannabis
in the future and has successfully completed a drug rehabilitation
program.
b. Occasional abuse occurred more than two years ago, the individual
has demonstrated an intent not to use any drugs or cannabis in the
future, has a stable lifestyle and satisfactory employment record and
has successfully completed a drug rehabilitation program.
c. Frequent abuse occurred more than three years ago, the individual
has demonstrated an intent not to use any drugs or cannabis in the
future, has a stable lifestyle, including satisfactory employment record
with no further indication of drug abuse, and has successfully completed
a drug rehabilitation program.
d. Regular abuse occurred more than four years ago, the individual
has demonstrated an intent not to use any drugs or cannabis in the
future, has a stable lifestyle, including satisfactory employment record
with no further indication of drug abuse, and has successfully completed
a drug rehabilitation program.
e. Compulsive abuse occurred more than five years ago, the individual
has demonstrated an intent not to use any drugs or cannabis in the
future, has a stable lifestyle, including satisfactory employment record
with no further indication of drug abuse, and has successfully completed
a drug rehabilitation program.
3. Use this only to assess conduct under Disqualifying Factor 3.
a. Involvement in trafficking, cultivation, processing, manufacture,
sale or distribution occurred more than five years ago, the individual
has demonstrated an intent not to do so in the future, and has a stable
lifestyle and satisfactory employment record and has not been involved
in any other criminal activity.
b. Cultivation was for personnel use only, in a limited amount for a
limited period and the individual has not been involved in similar
activity or other criminal activity for more than three years and has
demonstrated intent not to do so again in the future.
c. Illegal sale or distribution involved only the casual supply to
friends of small amounts (not for profit or to finance a personal
supply) and occurred on only a few occasions more than two years ago,
and the individual has demonstrated an intent not to do so again in the
future.
4. Use this only to assess conduct under Disqualifying Factor 4 in
the corresponding subparagraphs.
a. No possession of drugs or other criminal activity in the last two
years.
b. The individual has not possessed drugs in the last three years,
has had no other criminal activity in the last three years and has
demonstrated an intent not to be involved in such activity in the
future.
c. The individual has not possessed drug paraphernalia used in
processing, manufacture or distribution for the last five years, has had
no other criminal activity in the last five years and has demonstrated
an intent not to be involved in such activity in the future.
d. The individual has not possessed drug paraphernalia for personal
use in the last year, has had no other criminal activity in the last two
years and has demonstrated an intent not to be involved in such activity
in the future.
1. Narcotic. Opium and opium derivatives or synethtic substitutes.
2. Dangerous Drug. Any of the nonnarcotic drugs which are habit
forming or have a potential for abuse because of their stimulant,
depressant or hallucinogenic effect.
3. Cannabis. The intoxicating products of the hemp plant, Cannabis
Sativa, including but not limited to marijuana, hashish, and hashish
oil.
(See 154.7(o)).
Basis: Any knowing and willful falsification, cover-up, concealment,
misrepresentation, or omission of a material fact from any written or
oral statement, document, form or other representation or device used by
the Department of Defense or any other Federal agency.
Disqualifying Factors (behavior falls within one or more of the
following categories):
1. Deliberate omission, concealment, falsification or
misrepresentation of relevant and material facts including, but not
limited to information concerning arrests, drug abuse or treatment,
alcohol abuse or treatment, treatment for mental or emotional disorders,
bankruptcy, military service information, organizational affiliations,
financial problems, employment, foreign travel, or foreign connections
from any Personnel Security Questionnaire, Personal History Statement or
similar form used by any Federal agency to conduct investigations,
determine employment qualifications, award benefits or status, determine
security clearance or access eligibility, or award fiduciary
responsibilities.
2. Deliberately providing false or misleading information concerning
any of the relevant and material matters listed above to an
investigator, employer, supervisor, security official or other official
representative in connection with application for security clearance or
access to classified information or assignment to sensitive duties.
Mitigating Factors (circumstances which may mitigate disqualifying
information):
1. The information was not relevant or material to reaching a
security clearance or access determination.
2. The falsification was an isolated incident in the distant past
(more than 5 years) and the individual subsequently had accurately
provided correct information voluntarily during reapplication for
clearance or access and there is no evidence of any other falsification
misrepresentation or dishonest conduct by the individual.
3. The behavior was not willful.
4. The falsification was done unknowingly or without the individual's
knowledge.
5. The individual made prompt, good faith efforts to correct the
falsification before being confronted with the facts of falsification.
6. Omission of material fact was caused by or significantly
contributed to by improper or inadequate advice of authorized personnel,
provided the individual reasonably relied on such improper or inadequate
advice in good faith, and when the requirement subsequently was made
known to the individual, the previously omitted information was promptly
and fully provided.
(See 154.7(p)).
Basis: Failing or refusing to answer or to authorize others to
answer questions or provide information required by a Congressional
committee, court or agency in the course of an official inquiry whenever
such answers or information concern relevant and material matters
pertinent to an evaluation of the individual's trustworthiness,
reliability and judgment.
Disqualifying Factors (behavior falls within one or more of the
following categories):
1. Failure or refusal to provide full, frank and truthful answers or
to authorize others to do so, in connection with any application for
security clearance or access, to include required non-disclosure and
security termination agreements.
2. Failure or refusal to provide appropriate investigative forms,
including release forms, for use by investigators in obtaining
information from medical institutions, agencies or personal physicians,
therapists, psychologists, psychiatrists, counselors, rehabilitation
treatment, agencies or personnel; from police or criminal agencies,
probation agencies or officers, financial institutions, employers,
Federal or State agencies, professional associations or any other
organizations as required as part of an investigation for security
clearance, access, appointment or assignment to sensitive duties.
3. Failure or refusal to authorize others to provide relevant and
material information necessary to reach a security clearance
determination.
4. Failure or refusal to answer questions or provide information
required by a Congressional committee, court or agency when such answers
or information concern relevant and material matters pertinent to
evaluating the individual's trustworthiness, reliability and judgment.
Mitigating Factors (circumstances which may mitigate disqualifying
information):
1. The individual was unable to provide the information despite good
faith and reasonable efforts to do so.
2. The individual was unaware of the necessity to provide the
information requested or of the possible consequences of such refusal or
failure to provide the information, and, upon being made aware of this
requirement, fully frankly and truthfully provided the requested
information.
3. The individual sought and relied in good faith on information and
advice from legal counsel or other officials that the individual was not
required to provide the information requested, and, upon being made
aware of the requirement, fully, frankly and truthfully provided the
requested information.
(See 154.7(q)).
Basis: Acts of sexual misconduct or perversion indicative of moral
turpitude, poor judgment, or lack of regard for the laws of society.
Disqualifying Factors (behavior falls within one or more of the
following categories):
1. The conduct involves:
a. Acts performed or committed in open or public places.
b. Acts performed with a minor, or with animals.
c. Acts involving inducement, coercion, force, violence or
intimidation of another person.
d. Prostitution, pandering or the commission of sexual acts for money
or other remuneration or reward.
e. Sexual harassment.
f. Self mutilation, self punishment or degradation.
g. Conduct that involves spouse swapping, or group sex orgies.
h. Adultery that is recent, frequent and likely to continue and has
an adverse effect on good order or discipline within the workplace
(e.g., officer/enlisted, supervisor/subordinate, instructor/student).
i. Conduct determined to be criminal in the locale in which it
occurred.
j. Deviant or perverted sexual behavior which may indicate a mental
or personality disorder (e.g., transexualism, transvestism,
exhibitionism, incest, child molestation, voyeurism, bestiality, or
sodomy.)
2. The conduct has been recent.
3. The conduct increases the individual's vulnerability to blackmail,
coercion or pressure.
4. Evidence that the applicant has intention or is likely to repeat
the conduct in question.
Mitigating Factors (circumstances which may mitigate qualifying
information):
1. Sexual misconduct occurred on an isolated basis during or
preceding adolescence with no evidence of subsequent conduct of a
similar nature, and clear indication that the individual has no
intention of participating in such conduct in the future.
2. Sexual misconduct was isolated, occurred more than 3 years ago,
and there is clear indication that the individual has no intention of
participating in such conduct in the future.
3. The individual was a minor or was the victim of force, or violence
by another.
4. The individual has successfully completed professional therapy,
has been rehabilitated and diagnosed by competent medical authority that
misconduct is not likely to recur.
5. Demonstration that the individual's sexual misconduct can no
longer form the basis for vulnerability to blackmail, coercion or
pressure.
32 CFR 154.78 Pt. 154, App. I
32 CFR 154.78 Appendix I to Part 154 -- Overseas Investigations
The purpose of this appendix is to establish, within the framework of
this part, 32 CFR Part 361 and Defense Investigative Service Manual
20-1, standardized procedures for the military investigative agencies to
follow when they perform administrative and investigative functions on
behalf of DIS at overseas locations.
This part describes in detail Background Investigations (BI) which
are conducted for Limited Access Authorizations and those Special
Investigative Inquiries conducted for post-adjudicative purposes.
Hereafter they are referred to as LAA and Post-adjudicative cases and
are briefly described in paragraphs a and b below:
a. Limited access authorization. A level of access to classified
defense information that may be granted to a non-U.S. citizen under
certain conditions, one of which is that a BI must have been completed
with satisfactory results. 154.16(d) further describes LAA cases.
b. Post-adjudication investigation. A Personnel Security
Investigation (PSI) predicated on new, adverse or questionable security,
suitability or hostage information that arises and requires the
application of investigation procedures subsequent to adjudicative
action on a DoD-affiliated person's eligibility for continued access to
classified information, assignment to or retention in sensitive duties
or other designated duties requiring such investigation. While these
cases are normally predicated on the surfacing of unfavorable
information subsequent to favorable adjudication, they may also be
opened when favorable information is offered to counter a previous
unfavorable adjudication. 154.9(c)(3) further describes these cases.
a. As a rule, investigative activity in most PSIs occurs in the U.S.
even when the Subject is at an overseas location. Therefore, the
submission of requests for investigation to the Personnel Investigation
Center (PIC) at Baltimore is a required procedure as it ensures uniform
application of DoD PSI policy and the efficient dispatch and
coordination of leads.
b. When the purpose of the investigation is for an LAA or
post-adjudication on a Subject overseas, much, if not all of the leads
are at an overseas location. While these cases also may be submitted
directly to PIC for action, there is an inherent delay in the mailing of
the request, the exchange of leads and reports with PIC, and transmittal
of the reports back to the requester. To avoid this delay, the military
investigative agencies, when acting for DIS overseas in accordance with
32 CFR Part 361 may, with their Headquarters approval, accept these
requests for investigations, initiate them and disseminate the results
from the same level as they open, close, and disseminate their own
cases. Usually this will greatly improve response time to the
requester.
c. Under the procedures in paragraph b., above, DIS will not often be
in a position to directly exercise its responsibility for control and
direction until the case or lead is in progress or even completed;
therefore, adherence to the policy stated in referenced documents, and
as modified herein, is mandatory. When the policy of the military
investigative agency is at variance with the above, the matter will be
referred to the respective headquarters for resolution.
d. Since DIS is ultimately responsible for the personnel security
product, it must be kept informed of all such matters referred to in
this appendix. For instance, when the investigative agency overseas
receives a DD Form 1879, Request for Personnel Security Investigation,
which sets forth an issue outside DIS jurisdiction, it will reject the
request, inform the requester of the reason and furnish an information
copy of the DD Form 1879 and rejection letter to PIC. When the
issue/jurisdiction is unclear to the investigative agency, the DD Form
1879 and the perceived jurisdictional question should be promptly
forwarded to DIS for action and, if appropriate, to the component's
headquarters for information. Questions on the interpretation of DIS or
DoD policy and Directives pertaining to individual PSI cases can usually
be resolved through direct communications with PIC.
e. 32 CFR Part 361 establishes the supporting relationship of the
military investigative agencies to DIS in overseas areas, and DIS
provides these agencies with copies of relevant policy and interpretive
guidance. For these reasons, the investigative agency vice the
requester, is responsible for evaluating the request, processing it,
collecting and evaluating the results within their jurisdiction for
sufficiency, and forwarding the completed product to the appropriate
activity.
f. The magnitude of operations at PIC requires that methods of
handling LAA and post-adjudicative cases be consistent to the maximum
extent possible. For this reason, the procedures for LAA cases are
nearly identical to those for post-adjudicative cases. Briefly, the
main exceptions are:
(1) The notification to PIC that a post-adjudication case has been
opened will be by message, since an issue is present at the outset,
whereas notification of an LAA case should normally be by mail.
(2) The scope of the LAA investigation is 10 years or since the
person's 18th birthday, whichever is shortest, whereas the leads in a
post-djudication case are limited to resolving the issue.
a. As set-forth in 32 CFR Part 361 DIS is responsible for conducting
all DoD PSIs in the 50 states, District of Columbia, and Puerto Rico,
and will request the military departments to accomplish investigative
requirements elsewhere. The military investigative agencies in overseas
locations routinely respond to personnel security investigative leads
for DIS.
b. DIS jurisdiction also includes investigation of subversive
affiliations, suitability information, and hostage situations when such
inquiries are required for personnel security purposes; however,
jurisdiction will rest with the military investigative agencies, FBI
and/or civil authorities as appropriate when the alleged subversion or
suitability issue represents a violation of law or, in the case of a
hostage situation, there is an indication that the person concerned is
actually being pressured, coerced, or influenced by interests inimical
to the United States, or that hostile intelligence is taking action
specifically directed against that person. Specific policy guidance on
the applicability of these procedures and the jurisdictional
considerations are stated in 154.9.
a. A request for investigation must be submitted by using DD Form
1879 and accompanied by supporting documentation unless such
documentation is not immediately available, or the obtaining of
documentation would compromise a sensitive investigation. Upon receipt
of the request, the military investigative component will identify the
issue(s), scope the leads, and ensure that the proposed action is that
which is authorized for DIS as delineated in this part, 32 CFR part 361
and Defense Investigative Service Manual 201-1.
b. Upon such determination, the Component will prepare an Action Lead
Sheet (ALS) which fully identifies the Subject and the scope of the
case, and specifies precisely the leads which each investigative
component (including DIS/PIC when appropriate) is to conduct.
c. Case opening procedures described above are identical for LAA and
post-adjudication cases except with respect to notification of case
opening to PIC:
(1) Post-adjudication Cases. These cases, because they involve an
issue, are potentially sensitive and must be examined as early as
possible by PIC for conformity to the latest DoD policy. Accordingly,
the initial notification to PIC of case openings will always be by
message. The message will contain at a minimum:
(a) Full identification of the subject;
(b) A narrative describing the allegation/facts in sufficient detail
to support opening of the case; and
(c) A brief listing of the leads that are planned.
The DD Form 1879 and supporting documents, along with the agency's
ALS, should be subsequently mailed to PIC.
(2) LAA Cases. The notification to PIC of case opening will normally
be accomplished by mailing the DD Form 1879, DD Form 398 (Personal
History Statement), a copy of the ALS, and any other supporting
documents to PIC. Message notification to PIC in LAA cases will only be
required if there is a security or suitability issue apparent in the DD
Form 1879 or supporting documents.
(d) Beyond initial actions necessary to test allegation for
investigative merit and jurisdiction, no further investigative action
should commence until the notification of case opening to PIC has been
dispatched.
(e) PIC will promptly respond to the notification of case opening by
mail or message specifying any qualifying remarks along with a summary
of previously existing data. PIC will also provide a DIS case control
number (CCN). This number must be used by all components on all case
related paperwork/reports.
(The investigating agency may assign its unique service CCN for
interim internal control; however, the case will be processed,
referenced, and entered into the DCII by the DIS case control number.)
The first five digits of the DIS CCN will be the Julian date of the case
opening when received at DIS.
a. The expected completion time for leads in LAA cases is 50 calendar
days and for post-adjudication cases, 30 days, as computed from the date
of receipt of the request. If conditions preclude completion in this
time period, a pending report of the results to date, along with an
estimated date of completion will be submitted to PIC.
b. Copies of all ALSs will be furnished to PIC. In addition, PIC
will be promptly notified of any significant change in the scope of the
case, or the development of an investigative issue.
c. The procedures for implementing the Privacy Act in PSI cases are
set in DIS Manual 20-1-M 1. Any other restrictions on the release of
information imposed by an overseas source or by regulations of the
country where the inquiry takes place will be clearly stated in the
report.
d. The report format for these cases will be that used by the
military investigative agency.
e. Investigative action outside the jurisdictional area of an
investigative component office may be directed elsewhere by ALS as
needed in accordance with that agency's procedures and within the
following geographical considerations:
(1) Leads will be sent to PIC if the investigative action is in the
United States, District of Columbia, Puerto Rico, American Samoa, Bahama
Islands, the U.S. Virgin Islands, and the following islands in the
Pacific: Wake, Midway, Kwajalin, Johnston, Carolines, Marshalls, and
Eniwetok.
(2) Leads to areas not listed above may be dispatched to other units
of the investigative agency or even to another military agency's field
units if there is an agreement or memorandum of understanding that
provides for such action. For case accountability purposes, copies of
such ''lateral'' leads must be sent to the PIC.
(3) Leads that cannot be dispatched as described in paragraph (2)
above, and those that must be sent to a non-DoD investigative agency
should be sent to PIC for disposition.
f. The Defense Investigative Manual calls for obtaining PIC approval
before conducting a Subject interview on a post-adjudicative
investigation. To avoid the delay that compliance with this procedure
would create, a military investigative component may conduct the
interview provided:
(1) All other investigative leads have been completed and reviewed.
(2) The CCN has been received, signifying DIS concurrence with the
appropriateness of the investigation.
(3) Contrary instructions have not been received from the PIC.
(4) The interview is limited to the resolution of the relevant issues
disclosed by the investigation.
g. Notwithstanding the provisions of paragraphs f.(1) through (4) of
this Appendix, if time is of the essence due to imminent transfer of the
subject, a subject interview may be conducted at the discretion of the
investigative agency.
Paragraph 3, above, describes the advantages of timely handling which
accrue when the military investigative components act for DIS overseas.
These actions for DIS may, however, be limited by the component's
staffing and resource limitations, especially since some cases require
more administration and management than others. Post-adjudication case
leads, for instance, will normally be within the geographical
jurisdiction of the component that accepted the request for
investigation; therefore, relatively little case management is
required. In contrast, LAA cases may require leads world-wide, and,
therefore, create more complex case management and administration,
especially in the tracking, monitoring and reviewing of leads outside
the component's geographical area. Accordingly, an investigative
component will accept the case from the requester, but only assign
itself the appropriate leads within its own geographical jurisdiction
and send the balance to PIC for appropriate disposition in accordance
with the following:
a. The investigative agency will accept the request for investigation
(thereby saving time otherwise lost in mailing to PIC) but limit its
involvement in case management by extracting only those leads it will
conduct or manage locally.
b. The agency should then prepare an ALS that shows clearly what
leads it will cover and send PIC a copy of this ALS, along with the
request for investigation and any other appropriate documentation. It
must be clear in the ALS that PIC is to act on all those leads that the
unit has not assigned to itself.
c. PIC, as case manager, will assume responsibility for the complete
investigative package and, upon receipt of the last lead, will send the
results to the appropriate activity.
d. The agency that accepted the case and assigned itself leads may
send a copy of its report to the activity in the ''Results to'' block at
the same time it sends the originals to PIC. If so, the letter of
transmittal must inform the recipient that these reports are only a
portion of the investigation, and that the balance will be forthcoming
from PIC. Similarly, PIC must be informed of which investigative
reports were disseminated. (This is normally done by sending PIC a copy
of the letter of transmittal.)
a. LAA. The scope of investigation is 10 years or from age 18,
whichever is the shortest period.
b. Post-Adjudication Cases. There is no standard scope. The
inquiries conducted will be limited to those necessary to resolve the
issue(s).
a. Whether the investigative component or PIC closes out an
investigation, there are three key elements to consider:
(1) The investigative results must be reviewed for quality and
conformance to policy.
(2) The results must be sent to the activity listed in the ''Results
to'' block of the DD Form 1879.
(3) PIC must be informed whether or not any dissemination was made by
the investigative agency and, if so, what reports were furnished.
b. Investigative results may also be sent to a requester or higher
level activity that makes a statement of need for the results. In such
instances, a copy of the letter requesting the results and the
corresponding letter of transmittal must be sent to PIC for retention.
c. When an investigative agency disseminates reports for PIC, it may
use the transmittal documents, letters, or cover sheets it customarily
uses for its own cases.
d. The material that is to be provided to PIC will consist of: The
originals of all reports, and all other case documentation such as
original statements, confidential source sheets, interview logs,
requests for investigation, letters of transmittal to
adjudicaters/requesters, or communications with the requester, such as
those that modify the scope of the investigation.
e. For DIS to fulfill its responsibilities under DoD 5220.22-R and
the Privacy Act of 1974 all inquiries conducted in its behalf must be
set forth in an ROI for the permanent file, whether the case is
completed, terminated early, or referred to another agency.
A case may require premature closing at any time after receipt of the
DD Form 1879 by the investigative component if the information
accompanying the request, or that which is later developed, is outside
DIS jurisdiction. For example, alleged violations of law, a
counterintelligence matter, or actual coercion/influence in a hostage
situation (see paragraph 4.b. of this Appendix ) must be referred to the
appropriate agency, and DIS involvement terminated. The requester will
be informed by letter or indorsement to the DD Form 1879 of the
information developed that, due to jurisdictional consideration, the
case was referred to (fill in appropriate address) and that the DIS case
is closed. The agency to which referral was made and PIC will be
furnished with the results of all investigations conducted under DIS
auspices. DIS, however, has an interest in the referral agency's
actions and no information should be solicited from that agency.
32 CFR 154.78 Pt. 154, App. J
32 CFR 154.78 Appendix J to Part 154 -- ADP Position Categories and
Criteria for Designating Positions
OMB Circular A-71 (and Transmittal Memo 1), July 1978 OMB Circular
A-130, December 12, 1985, and FPM Letter 732, November 14, 1978 contain
the criteria for designating positions under the existing categories
used in the personnel security program for Federal civilian employees as
well as the criteria for designating ADP and ADP related positions.
This policy is outlined below:
ADP-I positions. Those positions in which the incumbent is
responsible for the planning, direction, and implementation of a
computer security program; major responsibility for the direction,
planning and design of a computer system, including the hardware and
software; or, can access a system during the operation or maintenance
in such a way, and with a relatively high risk for causing grave damage,
or realize a significant personal gain.
ADP-II positions. Those positions in which the incumbent is
responsible for the direction, planning, design, operation, or
maintenance of a computer system, and whose work is technically reviewed
by a higher authority of the ADP-I category to insure the integrity of
the system.
ADP-III positions. All other positions involved in computer
activities.
In establishing the categories of positions, other factors may enter
into the determination, permitting placement in higher or lower
categories based on the agency's judgement as to the unique
characteristics of the system or the safeguards protecting the system.
Three categories have been established for designating computer and
computer-related positions -- ADP-I, ADP-II, and ADP-III. Specific
criteria for assigning positions to one of these categories is as
follows:
32 CFR 154.78 PART 155 -- DEFENSE INDUSTRIAL PERSONNEL SECURITY
CLEARANCE PROGRAM
Sec.
155.1 Purpose.
155.2 Applicability and scope.
155.3 Definitions.
155.4 Policy.
155.5 Responsibilities.
155.6 Procedures.
Appendix A to Part 155 -- Additional Procedural Guidance
Authority: 10 U.S.C. 139; E.O. 10865, 3 CFR 1959-1963 Comp., p.
398.
Source: 57 FR 5383, Feb. 14, 1992, unless otherwise noted.
32 CFR 155.1 Purpose.
This part updates policy, responsibilities, and procedures of the
Defense Industrial Personnel Security Clearance Review Program
implementing E.O. 10865.
32 CFR 155.2 Applicability and scope.
This part:
(a) Applies to the Office of the Secretary of Defense, the Military
Departments, the Chairman of the Joint Chiefs of Staff and the Joint
Staff, the Inspector General of the Department of Defense (IG, DoD), and
the Defense Agencies (hereafter referred to collectively as ''the DoD
Components'').
(b) By mutual agreement, also extends to other Federal Agencies that
include:
(1) Department of Agriculture.
(2) Department of Commerce.
(3) Department of Interior.
(4) Department of Justice.
(5) Department of Labor.
(6) Department of State.
(7) Department of Transportation.
(8) Department of Treasury.
(9) Environmental Protection Agency.
(10) Federal Emergency Management Agency.
(11) Federal Reserve System.
(12) General Accounting Office.
(13) General Services Administration.
(14) National Aeronautics and Space Administration.
(15) National Science Foundation.
(16) Small Business Administration.
(17) United States Arms Control and Disarmament Agency.
(18) United States Information Agency.
(19) United States International Trade Commission.
(20) United States Trade Representative.
(c) Applies to cases that the Defense Industrial Security Clearance
Office (DISCO) forwards to the Directorate for Industrial Security
Clearance Review (DISCR) for action under this part to determine whether
it is clearly consistent with the national interest to grant or continue
a security clearance for the applicant.
(d) Provides a program that may be extended to other security cases
at the direction of the Assistant Secretary of Defense for Command,
Control, Communications, and Intelligence (ASD(C /3/ I)).
(e) Does not apply to cases in which:
(1) A security clearance is withdrawn because the applicant no longer
has a need for access to classified information;
(2) An interim security clearance is withdrawn by the DISCO during an
investigation; or
(3) A security clearance is withdrawn for administrative reasons that
are without prejudice as to a later determination of whether the grant
or continuance of the applicant's security clearance would be clearly
consistent with the national interest.
(f) Does not apply to cases for access to sensitive compartmented
information or a special access program.
32 CFR 155.3 Definitions.
(a) Applicant. Any U.S. citizen who holds or requires a security
clearance or any immigrant alien who holds or requires a limited access
authorization for access to classified information needed in connection
with his or her employment in the private sector; any U.S. citizen who
is a direct-hire employee or selectee for a position with the North
Atlantic Treaty Organization (NATO) and who holds or requires NATO
certificates of security clearance or security assurances for access to
U.S. or foreign classified information; or any U.S. citizen nominated
by the Red Cross or United Service Organizations for assignment with the
Military Services overseas. The term ''applicant'' does not apply to
those U.S. citizens who are seconded to NATO by U.S. Departments and
Agencies or to U.S. citizens recruited through such Agencies in response
to a request from NATO.
(b) Clearance Decision. A decision made in accordance with this part
concerning whether it is clearly consistent with the national interest
to grant an applicant a security clearance for access to Confidential,
Secret, or Top Secret information. A favorable clearance decision
establishes eligibility of the applicant to be granted a security
clearance for access at the level governed by the documented need for
such access, and the type of investigation specified for that level in
32 CFR part 154. An unfavorable clearance decision denies any
application for a security clearance and revokes any existing security
clearance, thereby preventing access to classified information at any
level and the retention of any existing security clearance.
32 CFR 155.4 Policy.
It is DoD policy that:
(a) All proceedings provided for by this part shall be conducted in a
fair and impartial manner.
(b) A clearance decision reflects the basis for an ultimate finding
as to whether it is clearly consistent with the national interest to
grant or continue a security clearance for the applicant.
(c) Except as otherwise provided for by E.O. 10865 or this part, a
final unfavorable clearance decision shall not be made without first
providing the applicant with:
(1) Notice of specific reasons for the proposed action.
(2) An opportunity to respond to the reasons.
(3) Notice of the right to a hearing and the opportunity to
cross-examine persons providing information adverse to the applicant.
(4) Opportunity to present evidence on his or her own behalf, or to
be represented by counsel or personal representative.
(5) Written notice of final clearance decisions.
(6) Notice of appeal procedures.
(d) Actions pursuant to this part shall cease upon termination of the
applicant's need for access to classified information except in those
cases in which:
(1) A hearing has commenced;
(2) A clearance decision has been issued; or
(3) The applicant's security clearance was suspended and the
applicant provided a written request that the case continue.
32 CFR 155.5 Responsibilities.
(a) The Assistant Secretary of Defense of Command, Control,
Communications and Intelligence shall:
(1) Establish investigative policy and adjudicative standards and
oversee their application.
(2) Coordinate with the General Counsel of the Department of Defense
(GC, DoD) on policy affecting clearance decisions.
(3) Issue clarifying guidance and instructions as needed.
(b) The General Counsel of the Department of Defense shall:
(1) Establish guidance and provide oversight as to legal sufficiency
of procedures and standards established by this part.
(2) Establish the organization and composition of the DISCR.
(3) Designate a civilian attorney to be the Director, DISCR.
(4) Issue clarifying guidance and instructions as needed.
(5) Administer the program established by this part.
(6) Issue invitational travel orders in appropriate cases to persons
to appear and testify who have provided oral or written statements
adverse to the applicant relating to a controverted issue.
(7) Designate attorneys to be Department Counsels assigned to the
DISCR to represent the Government's interest in cases and related
matters within the applicability and scope of this part.
(8) Designate attorneys to be Administrative Judges assigned to the
DISCR.
(9) Designate attorneys to be Administrative Judge members of the
DISCR Appeal Board.
(10) Provide for supervision of attorneys and other personnel
assigned or attached to the DISCR.
(11) Develop and implement policy established or coordinated with the
GC, DoD, in accordance with this part.
(12) Establish and maintain qualitative and quantitative standards
for all work by DISCR employees arising within the applicability and
scope of this part.
(13) Ensure that the Administrative Judges and Appeal Board members
have the requisite independence to render fair and impartial decisions
consistent with DoD policy.
(14) Provide training, clarify policy, or initiate personnel actions,
as appropriate, to ensure that all DISCR decisions are made in
accordance with policy, procedures, and standards established by this
part.
(15) Provide for maintenance and control of all DISCR records.
(16) Take actions as provided for in 155.6(b), and the additional
procedural guidance in appendix A to this part.
(17) Establish and maintain procedures for timely assignment and
completion of cases.
(18) Issue guidance and instructions, as needed, to fulfill the
foregoing responsibilities.
(19) Designate the Director, DISCR, to implement paragraphs (b)(5)
through (b)(18) of this section, under general guidance of the GC, DoD.
(c) The Heads of the DoD Components shall provide (from resources
available to the designated DoD Component) financing, personnel,
personnel spaces, office facilities, and related administrative support
required by the DISCR.
(d) The ASD(C /3/ I) shall ensure that cases within the scope and
applicability of this part are referred promptly to the DISCR, as
required, and that clearance decisions by the DISCR are acted upon
without delay.
32 CFR 155.6 Procedures.
(a) Applicants shall be investigated in accordance with the standards
in 32 CFR part 154.
(b) An applicant is required to give, and to authorize others to
give, full, frank, and truthful answers to relevant and material
questions needed by the DISCR to reach a clearance decision and to
otherwise comply with the procedures authorized by this part. The
applicant may elect on constitutional or other grounds not to comply;
but refusal or failure to furnish or authorize the providing of relevant
and material information or otherwise cooperate at any stage in the
investigation or adjudicative process may prevent the DISCR from making
a clearance decision. If an applicant fails or refuses to:
(1) Provide relevant and material information or to authorize others
to provide such information; or
(2) Proceed in a timely or orderly fashion in accordance with this
part; or
(3) Follow directions of an Administrative Judge or the Appeal Board;
then the Director, DISCR, or designee, may revoke any security
clearance held by the applicant and discontinue case processing.
Requests for resumption of case processing and reinstatement of a
security clearance may be approved by the Director, DISCR, only upon a
showing of good cause. If the request is denied, in whole or in part,
the decision is final and bars reapplication for a security clearance
for 1 year from the date of the revocation.
(c) Each clearance decision must be a fair and impartial common sense
determination based upon consideration of all the relevant and material
information and the pertinent criteria in 32 CFR 154.7 and adjudication
policy in appendix H to 32 CFR part 154, including as appropriate:
(1) Nature and seriousness of the conduct and surrounding
circumstances.
(2) Frequency and recency of the conduct.
(3) Age of the applicant.
(4) Motivation of the applicant, and the extent to which the conduct
was negligent, willful, voluntary, or undertaken with knowledge of the
consequences involved.
(5) Absence or presence of rehabilitation.
(6) Probability that the circumstances or conduct will continue or
recur in the future.
(d) Whenever there is a reasonable basis for concluding that an
applicant's continued access to classified information poses an imminent
threat to the national interest, any security clearance held by the
applicant may be suspended by the ASD(C /3/ I), with the concurrence of
the GC, DoD, pending a final clearance decision. This suspension may be
rescinded by the same authorities upon presentation of additional
information that conclusively demonstrates that an imminent threat to
the national interest no longer exists. Procedures in appendix A to
this part shall be expedited whenever an applicant's security clearance
has been suspended pursuant to this section.
(e) Nothing contained in this part shall limit or affect the
responsibility and powers of the Secretary of Defense or the head of
another Department or Agency to deny or revoke a security clearance when
the security of the nation so requires. Such authority may not be
delegated and may be exercised only when the Secretary of Defense or the
head of another Department or Agency determines that the hearing
procedures and other provisions of this part cannot be invoked
consistent with the national security. Such a determination shall be
conclusive.
(f) Additional procedural guidance is in appendix A to this part.
32 CFR 155.6 Pt. 155, App. A
32 CFR 155.6 Appendix A to Part 155 -- Additional Procedural Guidance
1. When the DISCO cannot affirmatively find that it is clearly
consistent with the national interest to grant or continue a security
clearance for an applicant, the case will be promptly referred to the
DISCR.
2. Upon referral, the DISCR shall make a prompt determination whether
to grant or continue a security clearance, issue a statement of reasons
(SOR) as to why it is not clearly consistent with the national interest
to do so, or take interim actions, including but not limited to:
a. Direct further investigation.
b. Propound written interrogatories to the applicant or other persons
with relevant information.
c. Requiring the applicant to undergo a medical evaluation by a DoD
Psychiatric Consultant.
d. Interviewing the applicant.
3. An unfavorable clearance decision shall not be made unless the
applicant has been provided with a written SOR that shall be as detailed
and comprehensive as the national security permits. A letter of
instruction with the SOR shall explain that the applicant or Department
Counsel may request a hearing. It shall also explain the adverse
consequences for failure to respond to the SOR within the prescribed
time frame.
4. The applicant must submit a detailed written answer to the SOR
under oath or affirmation that shall admit or deny each listed
allegation. A general denial or other similar answer is insufficient.
To be entitled to a hearing, the applicant must specifically request a
hearing in his or her answer. The answer must be received by the DISCR
within 20 days from receipt of the SOR. Requests for an extension of
time to file an answer may be submitted to the Director, DISCR, or
designee, who in turn may grant the extension only upon a showing of
good cause.
5. If the applicant does not file a timely and responsive answer to
the SOR, the Director, DISCR, or designee, may discontinue processing
the case, deny issuance of the requested security clearance, and direct
the DISCO to revoke any security clearance held by the applicant.
6. Should review of the applicant's answer to the SOR indicate that
allegations are unfounded, or evidence is insufficient for further
processing, Department Counsel shall take such action as appropriate
under the circumstances, including but not limited to withdrawal of the
SOR and transmittal to the Director for notification of the DISCO for
appropriate action.
7. If the applicant has not requested a hearing with his or her
answer to the SOR and Department Counsel has not requested a hearing
within 20 days of receipt of the applicant's answer, the case shall be
assigned to an Administrative Judge for a clearance decision based on
the written record. Department Counsel shall provide the applicant with
a copy of all relevant and material information that could be adduced at
a hearing. The applicant shall have 30 days from receipt of the
information in which to submit a documentary response setting forth
objections, rebuttal, extenuation, mitigation, or explanation, as
appropriate.
8. If a hearing is requested by the applicant or Department Counsel,
the case shall be assigned to an Administrative Judge for a clearance
decision based on the hearing record. Following issuance of a notice of
hearing by the Administrative Judge, or designee, the applicant shall
appear in person with or without counsel or a personal representative at
a time and place designated by the notice of hearing. The applicant
shall have a reasonable time to prepare his or her case. The applicant
shall be notified at least 15 days in advance of the time and place of
the hearing, which generally shall be held at a location in the United
States within a metropolitan area near the applicant's place of
employment or residence. A continuance may be granted by the
Administrative Judge only for good cause. Hearings may be held outside
of the United States in NATO cases, or in other cases upon a finding of
good cause by the Director, DISCR, or designee.
9. The Administrative Judge may require a prehearing conference.
10. The Administrative Judge may rule on questions of procedure,
discovery, and evidence and shall conduct all proceedings in a fair,
timely, and orderly manner.
11. Discovery by the applicant is limited to non-privileged documents
and materials subject to control by the DISCR. Discovery by Department
Counsel after issuance of an SOR may be granted by the Administrative
Judge only upon a showing of good cause.
12. A hearing shall be open except when the applicant requests that
it be closed, or when the Administrative Judge determines that there is
a need to protect classified information or there is other good cause
for keeping the proceeding closed. No inference shall be drawn as to
the merits of a case on the basis of a request that the hearing be
closed.
13. As far in advance as practical, Department Counsel and the
applicant shall serve one another with a copy of any pleading, proposed
documentary evidence, or other written communication to be submitted to
the Administrative Judge.
14. Department Counsel is responsible for presenting witnesses and
other evidence to establish facts alleged in the SOR that have been
controverted.
15. The applicant is responsible for presenting witnesses and other
evidence to rebut, explain, extenuate, or mitigate facts admitted by the
applicant or proven by Department Counsel, and has the ultimate burden
of persuasion as to obtaining a favorable clearance decision.
16. Witnesses shall be subject to cross-examination.
17. The SOR may be amended at the hearing by the Administrative Judge
on his or her own motion, or upon motion by Department Counsel or the
applicant, so as to render it in conformity with the evidence admitted
or for other good cause. When such amendments are made, the
Administrative Judge may grant either party's request for such
additional time as the Administrative Judge may deem appropriate for
further preparation or other good cause.
18. The Administrative Judge hearing the case shall notify the
applicant and all witnesses testifying that 18 U.S.C. 1001 is
applicable.
19. The Federal Rules of Evidence (28 U.S.C. 101 et seq.) shall serve
as a guide. Relevant and material evidence may be received subject to
rebuttal, and technical rules of evidence may be relaxed, except as
otherwise provided herein, to permit the development of a full and
complete record.
20. Official records or evidence compiled or created in the regular
course of business, other than DoD personnel background reports of
investigation (ROI), may be received and considered by the
Administrative Judge without authenticating witnesses, provided that
such information has been furnished by an investigative agency pursuant
to its responsibilities in connection with assisting the Secretary of
Defense, or the Department or Agency head concerned, to safeguard
classified information within industry under to E.O. 10865. An ROI may
be received with an authenticating witness provided it is otherwise
admissible under the Federal Rules of Evidence (28 U.S.C. 101 et seq.).
21. Records that cannot be inspected by the applicant because they
are classified may be received and considered by the Administrative
Judge, provided the GC, DoD, has:
a. Made a preliminary determination that such evidence appears to be
relevant and material.
b. Determined that failure to receive and consider such evidence
would be substantially harmful to the national security.
22. A written or oral statement adverse to the applicant on a
controverted issue may be received and considered by the Administrative
Judge without affording an opportunity to cross-examine the person
making the statement orally, or in writing when justified by the
circumstances, only in either of the following circumstances:
a. If the head of the Department or Agency supplying the statement
certifies that the person who furnished the information is a
confidential informant who has been engaged in obtaining intelligence
information for the Government and that disclosure of his or her
identity would be substantially harmful to the national interest; or
b. If the GC, DoD, has determined the statement concerned appears to
be relevant, material, and reliable; failure to receive and consider
the statement would be substantially harmful to the national security;
and the person who furnished the information cannot appear to testify
due to the following:
(1) Death, severe illness, or similar cause, in which case the
identity of the person and the information to be considered shall be
made available to the applicant; or
(2) Some other cause determined by the Secretary of Defense, or when
appropriate by the Department or Agency head, to be good and sufficient.
23. Whenever evidence is received under item 21. or 22., the
applicant shall be furnished with as comprehensive and detailed a
summary of the information as the national security permits. The
Administrative Judge and Appeal Board may make a clearance decision
either favorable or unfavorable to the applicant based on such evidence
after giving appropriate consideration to the fact that the applicant
did not have an opportunity to confront such evidence, but any final
determination adverse to the applicant shall be made only by the
Secretary of Defense, or the Department or Agency head, based on a
personal review of the case record.
24. A verbatim transcript shall be made of the hearing. The
applicant shall be furnished one copy of the transcript, less the
exhibits, without cost.
25. The Administrative Judge shall make a written clearance decision
in a timely manner setting forth pertinent findings of fact, policies,
and conclusions as to the allegations in the SOR, and whether it is
clearly consistent with the national interest to grant or continue a
security clearance for the applicant. The applicant and Department
Counsel shall each be provided a copy of the clearance decision. In
cases in which evidence is received under items 21. and 22., the
Administrative Judge's written clearance decision may require deletions
in the interest of national security.
26. If the Administrative Judge decides that it is clearly consistent
with the national interest for the applicant to be granted or to retain
a security clearance, the DISCO shall be so notified by the Director,
DISCR, or designee, when the clearance decision becomes final in
accordance with item 36., below.
27. If the Administrative Judge decides that it is not clearly
consistent with the national interest for the applicant to be granted or
to retain a security clearance, the Director, DISCR, or designee, shall
expeditiously notify the DISCO, which shall in turn notify the
applicant's employer of the denial or revocation of the applicant's
security clearance. The letter forwarding the Administrative Judge's
clearance decision to the applicant shall advise the applicant that
these actions are being taken, and that the applicant may appeal the
Administrative Judge's clearance decision.
28. The applicant or Department Counsel may appeal the Administrative
Judge's clearance decision by filing a written notice of appeal with the
Appeal Board within 15 days after the date of the Administrative Judge's
clearance decision. A notice of appeal received after 15 days from the
date of the clearance decision shall not be accepted by the Appeal
Board, or designated Board Member, except for good cause. A notice of
cross appeal may be filed with the Appeal Board within 10 days of
receipt of the notice of appeal. An untimely cross appeal shall not be
accepted by the Appeal Board, or designated Board Member, except for
good cause.
29. Upon receipt of a notice of appeal, the Appeal Board shall be
provided the case record. No new evidence shall be received or
considered by the Appeal Board.
30. After filing a timely notice of appeal, a written appeal brief
must be received by the Appeal Board within 45 days from the date of the
Administrative Judge's clearance decision. The appeal brief must state
the specific issue or issues being raised, and cite specific portions of
the case record supporting any alleged error. A written reply brief, if
any, must be filed within 20 days from receipt of the appeal brief. A
copy of any brief filed must be served upon the applicant or Department
Counsel, as appropriate.
31. Requests for extension of time for submission of briefs may be
submitted to the Appeal Board or designated Board Member.
A copy of any request for extension of time must be served on the
opposing party at the time of submission. The Appeal Board, or
designated Board Member, shall be responsible for controlling the Appeal
Board's docket, and may enter an order dismissing an appeal in an
appropriate case or vacate such an order upon a showing of good cause.
32. The Appeal Board shall address the material issues raised by the
parties to determine whether harmful error occurred. Its scope of
review shall be to determine whether or not:
a. The Administrative Judge's findings of fact are supported by such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion in light of all the contrary evidence in the same
record. In making this review, the Appeal Board shall give deference to
the credibility determinations of the Administrative Judge;
b. The Administrative Judge adhered to the procedures required by
E.O. 10865 and this part; or
c. The Administrative Judge's rulings or conclusions are arbitrary,
capricious, or contrary to law.
33. The Appeal Board shall issue a written clearance decision
addressing the material issues raised on appeal. The Appeal Board shall
have authority to:
a. Affirm the decision of the Administrative Judge;
b. Remand the case to an Administrative Judge to correct identified
error. If the case is remanded, the Appeal Board shall specify the
action to be taken on remand; or
c. Reverse the decision of the Administrative Judge if correction of
identified error mandates such action.
34. A copy of the Appeal Board's written clearance decision shall be
provided to the parties. In cases in which evidence was received under
items 21. and 22., the Appeal Board's clearance decision may require
deletions in the interest of national security.
35. Upon remand, the case file shall be assigned to an Administrative
Judge for correction of error(s) in accordance with the Appeal Board's
clearance decision. The assigned Administrative Judge shall make a new
clearance decision in the case after correcting the error(s) identified
by the Appeal Board. The Administrative Judge's clearance decision
after remand shall be provided to the parties. The clearance decision
after remand may be appealed pursuant to items 28. to 35.
36. A clearance decision shall be considered final when:
a. A security clearance is granted or continued pursuant to item 2.;
b. No timely notice of appeal is filed;
c. No timely appeal brief is filed after a notice of appeal has been
filed;
d. The appeal has been withdrawn;
e. When the Appeal Board affirms or reverses an Administrative
Judge's clearance decision; or
f. When a decision has been made by the Secretary of Defense, or the
Department or Agency head, under item 23.
The Director, DISCR, or designee, shall notify the DISCO of all final
clearance decisions.
37. An applicant whose security clearance has been finally denied or
revoked by the DISCR is barred from reapplication for 1 year from the
date of the initial unfavorable clearance decision.
38. A reapplication for a security clearance must be made initially
by the applicant's employer to the DISCO and is subject to the same
processing requirements as those for a new security clearance
application. The applicant shall thereafter be advised he is
responsible for providing the Director, DISCR, with a copy of any
adverse clearance decision together with evidence that circumstances or
conditions previously found against the applicant have been rectified or
sufficiently mitigated to warrant reconsideration.
39. If the Director, DISCR, determines that reconsideration is
warranted, the case shall be subject to this part for making a clearance
decision.
40. If the Director, DISCR, determines that reconsideration is not
warranted, the DISCR shall notify the applicant of this decision. Such
a decision is final and bars further reapplication for an additional one
year period from the date of the decision rejecting the application.
41. Nothing in this part is intended to give an applicant reapplying
for a security clearance any greater rights than those applicable to any
other applicant under this part.
42. An applicant may file a written petition, under oath or
affirmation, for reimbursement of loss of earnings resulting from the
suspension, revocation, or denial of his or her security clearance. The
petition for reimbursement must include as an attachment the favorable
clearance decision and documentation supporting the reimbursement claim.
The Director, DISCR, or designee, may in his or her discretion require
additional information from the petitioner.
43. Claims for reimbursement must be filed with the Director, DISCR,
or designee, within 1 year after the date the security clearance is
granted. Department Counsel generally shall file a response within 60
days after receipt of applicant's petition for reimbursement and provide
a copy thereof to the applicant.
44. Reimbursement is authorized only if the applicant demonstrates by
clear and convincing evidence to the Director, DISCR, that all of the
following conditions are met:
a. The suspension, denial, or revocation was the primary cause of the
claimed pecuniary loss; and
b. The suspension, denial, or revocation was due to gross negligence
of the Department of Defense at the time the action was taken, and not
in any way by the applicant's failure or refusal to cooperate.
45. The amount of reimbursement shall not exceed the difference
between the earnings of the applicant at the time of the suspension,
revocation, or denial and the applicant's interim earnings, and further
shall be subject to reasonable efforts on the part of the applicant to
mitigate any loss of earnings. No reimbursement shall be allowed for
any period of undue delay resulting from the applicant's acts or failure
to act. Reimbursement is not authorized for loss of merit raises and
general increases, loss of employment opportunities, counsel's fees, or
other costs relating to proceedings under this part.
46. Claims approved by the Director, DISCR, shall be forwarded to the
Department or Agency concerned for payment. Any payment made in
response to a claim for reimbursement shall be in full satisfaction of
any further claim against the United States or any Federal Department or
Agency, or any of its officers or employees.
47. Clearance decisions issued by Administrative Judges and the
Appeal Board shall be indexed and made available in redacted form to the
public.
32 CFR 155.6 PART 156 -- DoD PERSONNEL SECURITY PROGRAM
Sec.
156.1 Purpose.
156.2 Applicability and scope.
156.3 Policy.
156.4 Responsibilities.
Authority: 50 U.S.C. 781 et seq.
Source: 45 FR 19227, Mar. 25, 1980, unless otherwise noted.
32 CFR 156.1 Purpose.
This part, under the authority of 50 U.S.C. 781, et seq., ''Internal
Security Act of 1950,'' Executive Order 10450, ''Security Requirements
for Government Employment,'' April 27, 1953; Executive Order 10865,
''Safeguarding Classified Information Within Industry,'' February 20,
1960; Executive Order 12036, ''United States Intelligence Activities,''
January 24, 1978; and Executive Order 12065, ''National Security
Information,'' June 28, 1978, establishes the DoD Personnel Security
Program, supersedes existing Part 156 of this title; DoD Directive
5210.8, ''Policy on Investigation and Clearance of DoD Personnel for
Access to Classified Defense Information,'' February 15, 1962; DoD
Directive 5210.9, ''Military Personnel Security Program,'' June 19,
1956; and DoD Instruction 5210.31, ''Uniform Guidelines for Arriving at
Common Sense Determinations in the Military Personnel Security
Program,'' January 16, 1957; and authorizes the issuance of DoD
5200.2-R, ''DoD Personnel Security Program.''
32 CFR 156.2 Applicability and scope.
(a) The provisions of this part apply to the Office of the Secretary
of Defense, the Military Departments, the Organization of the Joint
Chiefs of Staff, the Unified and Specified Commands, the Defense
Agencies and activities administratively supported by OSD (hereafter
referred to as ''DoD Components''), except that, with respect to the
National Security Agency, the provisions of the part apply to that
agency only to the extent that is consistent with policy and procedures
prescribed by Public Laws 86-36, ''National Security Agency -- Officers
and Employees'' and 88-290, ''Personnel Security Procedures in the
National Security Agency,'' Executive Orders 10450 and 12036, and DoD
Directive 5210.45,1 ''Personnel Security in the National Security
Agency,'' May 9, 1964.
(b) Its provisions apply to DoD civilian personnel, members of the
Armed Forces of the United States, excluding the Coast Guard in
peacetime, and other personnel who are affiliated with the Department of
Defense.
(c) Only the investigative provisions apply to contractor personnel.
Clearance procedures pertaining to contractor personnel are contained in
DoD 5220.22-R, ''Industrial Security Regulation,'' January 29, 1979, and
in Part 155 of this title.
/1/ Copies may be obtained, if needed, from the U.S. Naval
Publications and Forms Center, 5801 Tabor Avenue, Philadelphia, PA
19120, Code 301.
32 CFR 156.3 Policy.
(a) No person shall be appointed as a civilian employee of the
Department of Defense, accepted for entrance into the Armed Forces of
the United States, authorized access to classified information, or
assigned to duties that are subject to investigation under the
provisions of this part unless such appointment, acceptance, clearance,
or assignment is clearly consistent with the interests of national
security.
(b) In furtherance of this policy, a Personnel Security Investigation
shall be conducted in connection with:
(1) The appointment of each civilian employee in any DoD Component;
(2) The entry of a person in the Armed Forces of the United States;
(3) The granting of clearance for access to classified information;
or
(4) The assignment of an individual to such other duties designated
in accordance with DoD 5200.2-R which require a determination of
trustworthiness.
(c) Criteria established by the Deputy Under Secretary of Defense for
Policy Review shall be used in reaching a determination as to whether a
person meets the personnel security standard set forth in paragraph (a)
of this section. Determinations shall be made on a case-by-case basis,
depending upon the particular facts and circumstances in each case.
(d) A final adverse determination may not be taken unless
administrative procedures are made available that will give the
individual an opportunity to refute allegations made against him or her.
Implementing procedures in this connection shall be prescribed in DoD
5200.2-R.
32 CFR 156.4 Responsibilities.
(a) The Deputy Under Secretary of Defense for Policy review shall be
responsible for overall policy guidance and management of the DoD
Personnel Security Program, and shall:
(1) Develop policies and plans for the DoD Personnel Security
Program.
(2) Issue and maintain DoD 5200.2-R consistent with provisions of DoD
Directive 5025.1,1 ''Department of Defense Directives System'' November
18, 1977.
(3) Conduct an active oversight program to ensure that the DoD
Personnel Security Program requirements are complied with.
(4) Submit recommendations to the Secretary of Defense bi-annually to
correct any deficiencies in the program that are inconsistent with the
interests of national security or the rights of an individual under the
Constitution, the laws of the United States, or this directive.
(b) The General Counsel, DoD, shall exercise surveillance over the
DoD personnel Program to ensure that:
(1) The program is administered in a manner consistent with the law.
(2) All proceedings are promptly initiated and expeditiously
completed.
(3) The rights of individuals involved are protected, consistent with
the interests of national security (DoD Directive 5145.3,1
''Surveillance of DoD Security Programs,'' October 19, 1962).
(4) The Defense Investigative Service is operated in accordance with
the provisions of Part 361 of this title.
(c) The Heads of DoD Components shall:
(1) Designate a senior official within their immediate office who
shall be responsible for compliance with the implementation of this
Directive.
(2) Ensure that the DoD Personnel Security Program is administered
within their area of responsibility in a manner consistent with this
Directive.
(3) Ensure that information and recommendations are provided the
Deputy Under Secretary of Defense for Policy Review and the General
Counsel, DoD, at their request, concerning any aspect of the program.
32 CFR 156.4 PART 157 -- DISSEMINATION OF DoD TECHNICAL INFORMATION
Sec.
157.1 Purpose.
157.2 Applicability and scope.
157.3 Policy.
157.4 Responsibilities.
157.5 Definitions.
157.6 Certification for access to technical information.
Authority: R.S. 161, 5 U.S.C. 22.
Source: 45 FR 17988, Mar. 25, 1980, unless otherwise noted.
32 CFR 157.1 Purpose.
This part: (a) Consolidates into one document this part and parts of
DoD Instruction 5100.38, ''Defense Documentation Center for Scientific
and Technical Information,'' March 29, 1965;
(b) Supplements DoD Directive 5100.36, ''Department of Defense
Technical Information,'' December 31, 1962, and DoD Instruction 5129.43,
''Assignment of Functions for the Defense Scientific and Technical
Information Program,'' January 22, 1963;
(c) Provides policy and assigns responsibilities for the
dissemination of DoD technical information;
(d) Establishes certification procedures for access to DoD technical
information.
32 CFR 157.2 Applicability and scope.
(a) The provisions of this part apply to the Office of the Secretary
of Defense, the Military Departments, the Organization of the Joint
Chiefs of Staff, the Unified and Specified Commands, and the Defense
Agencies (hereafter referred to as ''DoD Components''), and other U.S.
Government agencies disseminating or requesting access to DoD technical
information.
(b) The procedures established by this part shall be used by
technical Information Dissemination Activities to control access to DoD
technical information. The access afforded through use of these
procedures does not override special consideration or approvals that
affect the flow of controlled information.
(c) This part does not apply to primary distribution of technical
information or to interlibrary loan within Department of Defense.
32 CFR 157.3 Policy.
The purpose of the DoD Technical Information Program is to ensure the
complete and timely exchange among DoD technical activities, including
both the in-house and DoD contractor communities, of all technical
information generated by or relevant to the pursuit of DoD technical
programs with due consideration of security requirements and access
restrictions. All DoD Components responsible for dissemination of
technical information shall make a positive effort to provide users
accurate and timely technical information, utilizing the most effective
media, including symposia, newsletters, technical reports, inquiry
responses, online data networks, consultation and other media, and
making optimum use of computer technology to store, sort, select, and
package data and information.
32 CFR 157.4 Responsibilities.
(a) The Under Secretary of Defense for Research and Engineering
(USDRE), or designee, the Deputy Under Secretary of Defense for Research
and Engineering (Research and Advanced Technology) shall:
(1) Manage and disseminate DoD technical information, as provided in
DoD Directive 5100.36, ''Department of Defense Technical Information,''
December 31, 1962.
(2) Approve service charges collected by Information Dissemination
Activities to provide partial reimbursement and to prevent excessive,
unwarranted use of these services.
(b) The Heads of DoD Components shall:
(1) Pursue organized, coordinated, and comprehensive programs for
technical information dissemination. These programs shall provide for
the interchange of technical information within Department of Defense;
between Department of Defense and other Federal agencies and their
contractors; among Department of Defense, NATO governments and other
allies; and between Department of Defense and the national and
international scientific and technical community in accordance with DoD
5200.1-R, ''Information Security Program Regulation,'' December 1978,
and Parts 286 and 286a of this title.
(2) Within the limits of security and access restrictions necessary
to ensure adequate intra-DoD technical information exchange.
(i) Vigorously pursue a policy that ensures that technical
information generated within activities under their cognizance is
provided for public use through appropriate Federal agencies and
technology transfer programs according to approved DoD clearance
procedures; and
(ii) Wherever possible, provide unclassified technical documents and
other information to expedite the information transfer procedures.
However, all critical technology to which the Department of Defense has
title or proprietary interest shall be classified at the appropriate
level.
(3) Certify access for DoD technical information users as described
in 157.6.
(4) Introduce an active technology transfer program aimed at
transferring to the public as much DoD-developed technology as is
consistent with the DoD mission. Active participation by DoD
laboratories, centers, and other organizations in Federal and local
government technology transfer organizations, such as the Federal
Laboratory Consortium, is encouraged.
(5) Support a program for the domestic dissemination of DoD-developed
technology that, because of its commercial significance, should be made
available as early as possible, but only by means that will ensure the
continued applicability of the International Traffic in Arms
Regulations, the Export Administration Act of 1969, Export
Administration Amendments of 1977, and the Export Administration
Regulations of the Department of Commerce as to when the technology
should not be exported.
(6) Make planning and technical requirements information available
through Industry Information Centers so that industry can plan and apply
its resources effectively.
(7) Make technical information on selected technologies available
through Information Analysis Centers to support the DoD mission.
(8) Sponsor or support technical symposia, conferences and meetings
for disseminating technical information in accordance with DoD Directive
5200.12,1 ''Security Sponsorship and Procedures for Scientific and
Technical Meetings Involving Disclosure of Classified Military
Information,'' June 15, 1979, when the requirement exists to disseminate
the information more rapidly than normal publishing procedures permit.
In accordance with DoD Instruction 5129.43, /1/ ''Assignment of
Functions for the Defense Scientific and Technical Information
Program,'' January 22, 1963, certain data concerning DoD-sponsored
technical symposia will be transmitted to the USDR&E.
(9) Ensure compliance with provisions of DoD Directive 5000.11, /1/
which prescribes policy and procedures for the ''Data Elements and Data
Codes Standardization Program,'' where applicable, to assigned functions
for disseminating DoD technical information.
(c) The Defense Technical Information Center (DTIC) shall operate and
maintain certification and registration procedures as described in
157.6 and shall provide appropriate forms and instructions.
(d) Technical information dissemination activities shall collect
service charges, as approved by the USDRE, to prevent excessive,
unwarranted use of their services and to provide partial reimbursement
of costs.
/1/ Copies may be obtained, if needed, from the U.S. Naval
Publications and Forms Center, 5801 Tabor Avenue, Philadelphia, PA.
19120. Attention: Code 301
32 CFR 157.5 Definitions.
(a) Technical information. Information, including scientific
information, which relates to research, development, engineering, test,
evaluation, production, operation, use, and maintenance of munitions and
other military supplies and equipment.
(b) Technical information dissemination activity. Any activity, such
as DTIC, that operates to assist individuals and organizations within
the Department of Defense to effect adequate and timely dissemination of
technical information describing planned or ongoing RDT&E effort and the
documented results of such efforts and to provide systems and services
to assist eligible users to identify, access, acquire, and use DoD
technical information.
(c) Primary distribution. The initial distribution of a technical
document after completion of the original manuscript or its equivalent.
(d) Critical technology. Technical data, whose acquisition by a
potential adversary would prove detrimental to the national security of
the United States. Control of critical technology requires the control
of associated critical end products (defined as ''keystone'') that
embody extractable critical technology or that consist of equipment
which completes a process line, allowing the line to be fully utilized.
(e) Technology transfer. The process through which Government
research and technology are transformed into processes, products, or
services that can be applied to actual or potential public or private
needs. It includes the application of technology that has been
developed for a particular mission and, after modification and
diversification, fills a different need in another environment.
(f) Eligible user. Any DoD office, contractor, subcontractor, DoD
potential contractor, or other U.S. Government office or its contractor
whose eligibility and need to receive DoD technical information has been
certified.
(g) Contractor. An individual or organization outside the U.S.
Government that has accepted any type of agreement or order for
providing research, supplies, or services to a U.S. Government agency.
The term specifically includes both prime contractors and
subcontractors.
(h) DoD potential contractor. An individual or organization outside
Department of Defense declared eligible for documentation services by a
sponsoring DoD activity on the basis of registration and active
participation in a program specifically designed to exchange information
concerning Defense support capability.
(i) Industry information centers. Centers established by DoD
Components to inform the Defense industrial community of DoD
acquisition, research and development requirements, plans, and future
needs. They serve as DoD access points to Defense planning and
requirements documents for representatives of industry, small business,
university and nonprofit institutions registered for access to DoD
information services.
(j) Technical information dissemination. A fundamental and integral
part of each RDT&E effort (contractual or in-house) that ensures, within
procedures established for security and other specific access
restrictions, maximum utility of and access to technical information
about and technical documents generated from Defense-supported RDT&E.
32 CFR 157.6 Certification for access to technical information.
(a) Policy. (1) The Department of Defense shall disseminate
technical information in support of its technical programs and in
support of similar programs within other U.S. Government agencies. This
dissemination shall be made to organizations whose official U.S.
Government affiliations are certified. Classified information
dissemination will be within the scope of its certified field of
interest requirements and facility clearances. However, requests from
foreign organizations for and transmittal of classified and controlled
information products shall be made only through appropriate DoD foreign
release offices under established release procedures.
(2) A uniform certification procedure shall be used for the effective
control of the flow of technical information and shall utilize the DD
Form 1540, ''Registration for Scientific and Technical Information
Services,'' cited in DoD 5220.22-R, ''Industrial Security Regulation,''
January 1979.
(3) Certification shall be according to subject fields and groups of
interest and recorded on DD Form 1540. Such certification is a warranty
that the user's oficial responsibilities require access to technical
information that can be described by one or another of the prescribed
DoD categories of science and technology.
(b) Responsibilities. (1) The Defense Technical Information Center
(DTIC) and the Defense Contract Administration Services (DCAS) shall
operate and maintain the certification procedures and DD Forms 1540 and
1541, ''Facility Clearance Register.''
(i) DTIC shall:
(A) Develop and distribute such instructions and procedural guidance
as necessary for use by DoD Components, U.S. Government contractors and
subcontractors, DoD potential contractors, and other U.S. Government
offices to maintain the most effective use of the certification
procedures within the terms of this Instruction and existing security
regulations.
(B) Maintain at DTIC the central authority file of eligible users and
notify affected dissemination activities of each new eligible user,
along with conditions and scope of coverage, and of any subsequent
changes thereto.
(C) Provide information products from DTIC to eligible users as
follows:
(a) Unclassified technical information, subject to any approvals that
may be required for controlled information.
(b) Classified technical information in only those subject fields of
interest and at the security level authorized on DD Form 1540 and in
accordance with any approvals that may be required for controlled
information.
(D) Recommend changes to DoD 5220.22-M, /1/ ''Industrial Security
Manual for Safeguarding Classified Information,'' October 1977, and
related security procedures in conformance with this part.
(ii) DCAS shall certify the DD Form 1541 and report any change
affecting a facility clearance through submission of a revised DD Form
1541 to the central authority file.
(2) Each DoD Component conducting, administering, or sponsoring
research, development, test and evaluation and other technical work
shall:
(i) Require in-house activities to complete all parts of the DD Form
1540 and submit it to the DTIC before requesting reports or information
from dissemination activities. The commanding officer, the technical
director, or their authorized designee shall review, approve, modify, or
disapprove the registration for technical information services on DD
Form 1540 submitted by their personnel.
(ii) Review, approve, modify, or disapprove DD Form 1540 submitted by
non-DoD activities or organizations under its cognizance. Personnel
selected to authorize DD Form 1540 shall have the technical competence
and familiarity with contractor or grantee programs necessary to judge
the subject fields of interest of the applicant.
(iii) Instruct and assist its sponsored activities in filling out and
submitting DD Form 1540.
(iv) Recommend changes to DoD 5220.22-M and related security
procedures in conformance with this part.
(v) Promptly report to the DTIC any changes of certification status,
such as change in mission of the DoD Component, contract termination,
and contract or grant revision.
(vi) Designate an office at each appropriate level of the
organization with responsibility for:
(A) Providing and maintaining procedures that are responsive to this
Instruction and with applicable security regulations.
(B) Reviewing special cases, such as referral of questions on DD Form
1540 from the DTIC.
(3) Each dissemination activity, within the scope of its mission,
shall make its technical information available to eligible users in
accordance with the certification terms and the applicable security and
distribution controls.
(c) Agencies outside the Department of Defense. (1) Components of
non-DoD executive branch agencies who participate in the DoD Industrial
Security Program shall follow the procedures prescribed for DoD
Components in 157.6(b)(2) when DoD technical information is required.
(2) Components of non-DoD executive branch agencies who do not
participate in the DoD Industrial Security Program shall make specific
arrangements with the DTIC for certification of DD Form 1540 and
facility clearance authorization when DoD technical information is
required.
(3) Components of the legislative and judicial branches, their
contractors, and their grantees who are in need of unclassified
information shall make specific arrangements with DTIC for certification
of DD Form 1540. Certification for classified information, if needed,
must be approved by the Office of the Deputy Under Secretary of Defense
for Research and Engineering (Research and Advanced Technology). In
these cases, submission of the completed DD Form 1540 by contractors and
grantees must be accompanied by adequate facility clearance
authorization.
1See footnote 1 to 157.4(b)(8).
32 CFR 157.6 PART 158 -- GUIDELINES FOR SYSTEMATIC DECLASSIFICATION
REVIEW OF CLASSIFIED INFORMATION IN PERMANENTLY VALUABLE DoD RECORDS
Sec.
158.1 Reissuance and purpose.
158.2 Applicability and scope.
158.3 Definitions.
158.4 Policy.
158.5 Procedures.
158.6 Responsibilities.
158.7 Categories of information that require review before
declassification.
158.8 Categories of information that require review before
declassification: Department of the Army systems.
158.9 Categories of information that require review before
declassification: Department of the Navy systems.
158.10 Categories of information that require review before
declassification: Department of the Air Force systems.
158.11 Declassification considerations.
158.12 Department of State areas of interest.
158.13 Central Intelligence Agency areas of interest.
Authority: E.O. 12356, 10 U.S.C.
Source: 48 FR 29840, June 29, 1983, unless otherwise noted.
32 CFR 158.1 Reissuance and purpose.
This part is reissued; establishes procedures and assigns
responsibilities for the systematic declassification review of
information classified under E.O. 12356 and Information Security
Oversight Office Directive No. 1, DoD Directive 5200.1 and DoD
5200.1-R, and prior orders, directives, and regulations governing
security classification; and implements section 3.3 of E.O. 12356.
32 CFR 158.2 Applicability and scope.
(a) This part applies to the Office of the Secretary of Defense (OSD)
and to activities assigned to the OSD for administrative support, the
Military Departments, the Organization of the Joint Chiefs of Staff, the
Unified and Specified Commands, and the Defense Agencies (hereafter
referred to collectively as ''DoD Components'').
(b) This part applies to the systematic review of permanently
valuable classified information, developed by or for the Department of
Defense and its Components, or its predecessor components and
activities, that is under the exclusive or final original classification
jurisdiction of the Department of Defense.
(c) Its provisions do not cover Restricted Data or Formerly
Restricted Data under the Atomic Energy Act of 1954 or information in
nonpermanent records.
(d) Systematic declassification review of records pertaining to
intelligence activities (including special activities) or intelligence
sources or methods shall be in accordance with special procedures issued
by the Director of Central Intelligence.
32 CFR 158.3 Definitions.
(a) Cryptologic information. Information pertaining to or resulting
from the activities and operations involved in the production of signals
intelligence (SIGINT) or to the maintenance of communications security
(COMSEC).
(b) Foreign government information. Information that is provided to
the United States by a foreign government or governments, an
international organization of governments, or any element thereof with
the expectation, expressed or implied, that the information, the source
of the information, or both are to be held in confidence; or produced
by the United States pursuant to or as a result of a joint arrangement
with a foreign government or governments, an international organization
of governments, or any element thereof requiring that the information,
the arrangement, or both are to be held in confidence.
(c) Intelligence method. Any process, mode of analysis, means of
gathering data, or processing system or equipment used to produce
intelligence.
(d) Intelligence source. A person or technical means that provides
intelligence.
32 CFR 158.4 Policy.
It is the policy of the Department of Defense to assure that
information that warrants protection against unauthorized disclosure is
properly classified and safeguarded as well as to facilitate the flow of
unclassified information about DoD operations to the public.
32 CFR 158.5 Procedures.
(a) DoD classified information that is permanently valuable, as
defined by 44 U.S.C. 2103, that has been accessioned into the National
Archives of the United States, will be reviewed systematically for
declassification by the Archivist of the United States, with the
assistance of the DoD personnel designated for that purpose, as it
becomes 30 years old; however, file series concerning intelligence
activities (including special activities) created after 1945,
intelligence sources or methods created after 1945, and cryptology
records created after 1945 will be reviewed as they become 50 years old.
(b) All other DoD classified information and foreign government
information that is permanently valuable and in the possession or
control of DoD Components, including that held in federal records
centers or other storage areas, may be reviewed systematically for
declassification by the DoD Component exercising control of such
information.
(c) DoD classified information and foreign government information in
the possession or control of DoD Components shall be declassified when
they become 30 years old, or 50 years old in the case of DoD
intelligence activities (including special activities) created after
1945, intelligence sources or methods created after 1945, or cryptology
created after 1945, if they are not within one of the categories
specified in 158.7 through 158.10 or in 48 FR 4403, January 31, 1983.
(d) Systematic review for declassification shall be in accordance
with procedures contained in DoD 5200 1-R. Information that falls
within any of the categories in 158.7 through 158.10 and in 44 FR 4403
shall be declassified if the designated DoD reviewer determines, in
light of the declassification considerations contained in 158.11 that
classification no longer is required. In the absence of such a
declassification determination, the classification of the information
shall continue as long as required by national security considerations.
(e) Before any declassification or downgrading action, DoD
information under review should be coordinated with the Department of
State on subjects cited in 158.12, and with the Central Intelligence
Agency (CIA) on subjects cited in 158.13.
32 CFR 158.6 Responsibilities.
(a) The Deputy Under Secretary of Defense for Policy shall:
(1) Exercise oversight and policy supervision over the implementation
of this part.
(2) Request DoD Components to review 158.7 through 158.11 of this
part every 5 years.
(3) Revise 158.7 through 158.11 to ensure they meet DoD needs.
(4) Authorize, when appropriate, other federal agencies to apply this
part to DoD information in their possession.
(b) The Head of each DoD Component shall:
(1) Recommend changes to 158.7 through 158.13 of this part.
(2) Propose, with respect to specific programs, projects, and systems
under his or her classification jurisdiction, supplements to 158.7
through 158.11 of this part.
(3) Provide advice and designate experienced personnel to provide
timely assistance to the Archivist of the United States in the
systematic review of records under this part.
(c) The Director, National Security Agency/Chief, Central Security
Service (NSA/CSS), shall develop, for approval by the Secretary of
Defense, special procedures for systematic review and declassification
of classified cryptologic information.
(d) The Archivist of the United States is authorized to apply this
part when reviewing DoD classified information that has been accessioned
into the Archives of the United States.
32 CFR 158.7 Categories of information that require review before
declassification.
The following categories of information shall be reviewed
systematically for declassification by designated DoD review in
accordance with this part:
(a) Nuclear propulsion information.
(b) Information concerning the establishment, operation, and support
of the U.S. Atomic Energy Detection System.
(c) Information concerning the safeguarding of nuclear materials or
facilities.
(d) Information that could affect the conduct of current or future
U.S. foreign relations. (Also see 158.12.)
(e) Information that could affect the current or future military
usefulness of policies, programs, weapon systems, operations, or plans
when such information would reveal courses of action, concepts, tactics,
or techniques that are used in current operations plans.
(f) Research, development, test, and evaluation (RDT&E) of chemical
and biological weapons and defensive systems; specific identification
of chemical and biological agents and munitions; chemical and
biological warfare plans; and U.S. vulnerability to chemical or
biological warfare attack.
(g) Information about capabilities, installations, exercises,
research, development, testing and evaluation, plans, operations,
procedures, techniques, organization, training, sensitive liaison and
relationships, and equipment concerning psychological operations;
escape, evasion, rescue and recovery, insertion, and infiltration and
exfiltration; cover and support; deception; unconventional warfare
and special operations; and the personnel assigned to or engaged in
these activities.
(h) Information that reveals sources or methods of intelligence or
counter-intelligence, counterintelligence activities, special
activities, identities of clandestine human agents, methods of special
operations, analytical techniques for the interpretation of intelligence
data, and foreign intelligence reporting. This includes information
that reveals the overall scope, processing rates, timeliness, and
accuracy of intelligence systems and networks, including the means of
interconnecting such systems and networks and their vulnerabilities.
(i) Information that relates to intelligence activities conducted
jointly by the Department of Defense with other federal agencies or to
intelligence activities conducted by other federal agencies in which the
Department of Defense has provided support. (Also see 158.13.)
(j) Airborne radar and infrared imagery.
(k) Information that reveals space system:
(1) Design features, capabilities, and limitations (such as antijam
characteristics, physical survivability features, command and control
design details, design vulnerabilities, or vital parameters).
(2) Concepts of operation, orbital characteristics, orbital support
methods, network configurations, deployments, ground support facility
locations, and force structure.
(l) Information that reveals operational communications equipment and
systems:
(1) Electronic counter-counter-measures (ECCM) design features or
performance capabilities.
(2) Vulnerability and susceptibility to any or all types of
electronic warfare.
(m) Information concerning electronic intelligence, telemetry
intelligence, and electronic warfare (electronic warfare support
measures, electronic countermeasures (ECM), and ECCM) or related
activities, including:
(1) Information concerning or revealing nomenclatures, functions,
technical characteristics, or descriptions of foreign communications and
electronic equipment, its employment or deployment, and its association
with weapon systems or military operations.
(2) Information concerning or revealing the processes, techniques,
operations, or scope of activities involved in acquiring, analyzing, and
evaluating the above information, and the degree of success obtained.
(n) Information concerning Department of the Army systems listed in
158.8.
(o) Information concerning Department of the Navy systems listed in
158.9.
(p) Information concerning Department of the Air Force systems listed
in 158.10.
(q) Cryptologic information (including cryptologic sources and
methods). This includes information concerning or revealing the
processes, techniques, operations, and scope of SIGINT comprising
communications intelligence, electronics intelligence, and telemetry
intelligence; and the cryptosecurity and emission security components
of COMSEC, including the communications portion of cover and deception
plans.
(1) Recognition of cryptologic information may not always be an easy
task. There are several broad classes of cryptologic information, as
follows:
(i) Those that relate to COMSEC. In documentary form, they provide
COMSEC guidance or information. Many COMSEC documents and materials are
accountable under the Communications Security Material Control System.
Examples are items bearing transmission security (TSEC) nomenclature and
crypto keying material for use in enciphering communications and other
COMSEC documentation such as National COMSEC Instructions, National
COMSEC/Emanations Security (EMSEC) Information Memoranda, National
COMSEC Committee Policies, COMSEC Resources Program documents, COMSEC
Equipment Engineering Bulletins, COMSEC Equipment System Descriptions,
and COMSEC Technical Bulletins.
(ii) Those that relate to SIGINT. These appear as reports in various
formats that bear security classifications, sometimes followed by
five-letter codewords (World War II's ULTRA, for example) and often
carrying warning caveats such as ''This document contains codeword
material'' and ''Utmost secrecy is necessary . . .'' Formats may appear
as messages having addressees, ''from'' and ''to'' sections, and as
summaries with SIGINT content with or without other kinds of
intelligence and comment.
(iii) RDT&E reports and information that relate to either COMSEC or
SIGINT.
(2) Commonly used words that may help in identification of
cryptologic documents and materials are ''cipher,'' ''code,''
''codeword,'' ''communications intelligence'' or ''COMINT,''
''communications security'' or ''COMSEC,'' ''cryptanalysis,''
''crypto,'' ''cryptography,'' ''cryptosystem,'' ''decipher,''
''decode,'' ''decrypt,'' ''direction finding,'' ''electronic
intelligence'' or ''ELINT,'' ''electronic security,'' ''encipher,''
''encode,'' ''encrypt,'' ''intercept,'' ''key book,'' ''signals
intelligence'' or ''SIGINT,'' ''signal security,'' and ''TEMPEST.''
32 CFR 158.8 Categories of information that require review before
declassification: Department of the Army systems.
The following categories of Army information shall be reviewed
systematically for declassification by designated DoD reviewers in
accordance with this part.
(a) Ballistic Missile Defense (BMD) missile information, including
the principle of operation of warheads (fuzing, arming, and destruct
operations); quality or reliability requirements; threat data;
vulnerability; ECM and ECCM); details of design, assembly, and
construction; and principle of operations.
(b) BMD systems data, including the concept definition (tentative
roles, threat definition, and analysis and effectiveness); detailed
quantitative technical system description-revealing capabilities or
unique weaknesses that are exploitable; overall assessment of specific
threat-revealing vulnerability or capability; discrimination
technology; and details of operational concepts.
(c) BMD optics information that may provide signature characteristics
of U.S. and United Kingdom ballistic weapons.
(d) Shaped-charge technology.
(e) Fleshettes.
(f) M380 Beehive round.
(g) Electromagnetic propulsion technology.
(h) Space weapons concepts.
(i) Radar-fuzing programs.
(j) Guided projectiles technology.
(k) ECM and ECCM to weapons systems.
(l) Armor materials concepts, designs, or research.
(m) 2.75-inch Rocket System.
(n) Air Defense Command and Coordination System (AN/TSQ-51).
(o) Airborne Target Acquisition and Fire Control System.
(p) Chaparral Missile System.
(q) Dragon Guided Missile System Surface Attack, M47.
(r) Forward Area Alerting Radar (FAAR) System.
(s) Ground laser designators.
(t) Hawk Guided Missile System.
(u) Heliborne, Laser, Air Defense Suppression and Fire and Forget
Guided Missile System (HELLFIRE).
(v) Honest John Missile System.
(w) Lance Field Artillery Missile System.
(x) Land Combat Support System (LCSS).
(y) M22 (SS-11 ATGM) Guided Missile System, Helicopter Armament
Subsystem.
(z) Guided Missile System, Air Defense (NIKE HERCULES with Improved
Capabilities with HIPAR and ANTIJAM Improvement).
(aa) Patriot Air Defense Missile System.
(bb) Pershing IA Guided Missile System.
(cc) Pershing II Guided Missile System.
(dd) Guided Missile System, Intercept Aerial M41 (REDEYE) and
Associated Equipment.
(ee) U.S. Roland Missile System.
(ff) Sergeant Missile System (less warhead) (as pertains to
electronics and penetration aids only).
(gg) Shillelagh Missile System.
(hh) Stinger/Stinger-Post Guided Missile System (FIM-92A).
(ii) Terminally Guided Warhead (TWG) for Multiple Launch Rocket
System (MLRS).
(jj) TOW Heavy Antitank Weapon System.
(kk) Viper Light Antitank/Assault Weapon System.
32 CFR 158.9 Categories of information that require review before
declassification: Department of the Navy systems.
The following categories of Navy information shall be reviewed
systematically for declassification by designated DoD reviewers in
accordance with this part.
(a) Naval nuclear propulsion information.
(b) Conventional surface ship information:
(1) Vulnerabilities of protective systems, specifically:
(i) Passive protection information concerning ballistic torpedo and
underbottom protective systems.
(ii) Weapon protection requirement levels for conventional, nuclear,
biological, or chemical weapons.
(iii) General arrangements, drawings, and booklets of general plans
(applicable to carriers only).
(2) Ship-silencing information relative to:
(i) Signatures (acoustic, seismic, infrared, magnetic (including
alternating magnetic (AM)), pressure, and underwater electric potential
(UEP)).
(ii) Procedures and techniques for noise reduction pertaining to an
individual ship's component.
(iii) Vibration data relating to hull and machinery.
(3) Operational characteristics related to performance as follows:
(i) Endurance or total fuel capacity.
(ii) Tactical information, such as times for ship turning, zero to
maximum speed, and maximum to zero speed.
(c) All information that is uniquely applicable to nuclear-powered
surface ships or submarines.
(d) Information concerning diesel submarines as follows:
(1) Ship-silencing data or acoustic warfare systems relative to:
(i) Overside, platform, and sonar noise signature.
(ii) Radiated noise and echo response.
(iii) All vibration data.
(iv) Seismic, magnetic (including AM), pressure, and UEP signature
data.
(2) Details of operational assignments, that is, war plans,
antisubmarine warfare (ASW), and surveillance tasks.
(3) General arrangements, drawings, and plans of SS563 class
submarine hulls.
(e) Sound Surveillance System (SOSUS) data.
(f) Information concerning mine warfare, mine sweeping, and mine
countermeasures.
(g) ECM or ECCM features and capabilities of any electronic
equipment.
(h) Torpedo information as follows:
(1) Torpedo countermeasures devices: T-MK6 (FANFARE) and NAE
beacons.
(2) Tactical performance, tactical doctrine, and vulnerability to
counter-measures.
(i) Design performance and functional characteristics of guided
missiles, guided projectiles, sonars, radars, acoustic equipments, and
fire control systems.
32 CFR 158.10 Categories of information that require review before
declassification: Department of the Air Force systems.
The Department of the Air Force has determined that the categories
identified in 158.7 of this part shall apply to Air Force information.
32 CFR 158.11 Declassification considerations.
(a) Technological developments; widespread public knowledge of the
subject matter; changes in military plans, operations, systems, or
equipment; changes in the foreign relations or defense commitments of
the United States; and similar events may bear upon the determination
of whether information should be declassified. If the responsible DoD
reviewer decides that, in view of such circumstances, the public
disclosure of the information being reviewed no longer would result in
damage to the national security, the information shall be declassified.
(b) The following are examples of considerations that may be
appropriate in deciding whether information in the categories listed in
158.7 through 158.10 may be declassified when it is reviewed:
(1) The information no longer provides the United States a
scientific, engineering, technical, operational, intelligence,
strategic, or tactical advantage over other nations.
(2) The operational military capability of the United States revealed
by the information no longer constitutes a limitation on the
effectiveness of the Armed Forces.
(3) The information is pertinent to a system that no longer is used
or relied on for the defense of the United States or its allies and does
not disclose the capabilities or vulnerabilities of existing operational
systems.
(4) The program, project, or system information no longer reveals a
current weakness or vulnerability.
(5) The information pertains to an intelligence objective or
diplomatic initiative that has been abandoned or achieved and will no
longer damage the foreign relations of the United States.
(6) The information reveals the fact or identity of a U.S.
intelligence source, method, or capability that no longer is employed
and that relates to no current source, method, or capability that upon
disclosure could cause damage to national security or place a person in
immediate jeopardy.
(7) The information concerns foreign relations matters whose
disclosure can no longer be expected to cause or increase international
tension to the detriment of the national security of the United States.
(c) Declassification of information that reveals the identities of
clandestine human agents shall be accomplished only in accordance with
procedures established by the Director of Central Intelligence for that
purpose.
(d) The NSA/CSS is the sole authority for the review and
declassification of classified cryptologic information. The procedures
established by the NSA/CSS to facilitate the review and declassification
of classified cryptologic information are:
(1) COMSEC documents and materials. (i) If records or materials in
this category are found in agency files that are not under COMSEC
control, refer them to the senior COMSEC authority of the agency
concerned or by appropriate channels to the following address:
Director, National Security Agency, Attn: Director of Policy (Q4), Fort
George G. Meade, Maryland 20755.
(ii) If the COMSEC information has been incorporated into other
documents by the receiving agency, referral to the NSA/CSS is necessary
before declassification.
(2) SIGINT information. (i) If the SIGINT information is contained
in a document or record originated by a DoD cryptologic organization,
such as the NSA/CSS, and is in the files of a noncryptologic agency,
such material will not be declassified if retained in accordance with an
approved records disposition schedule. If the material must be
retained, it shall be referred to the NSA/CSS for systematic review for
declassification.
(ii) If the SIGINT information has been incorporated by the receiving
agency into documents it produces, referral to the NSA/CSS is necessary
before any declassification.
32 CFR 158.12 Department of State areas of interest.
(a) Statements of U.S. intent to defend, or not to defend,
identifiable areas, or along identifiable lines, in any foreign country
or region.
(b) Statements of U.S. intent militarily to attack in stated
contingencies identifiable areas in any foreign country or region.
(c) Statements of U.S. policies or initiatives within collective
security organizations (for example, North Atlantic Treaty Organization
(NATO) and Organization of American States (OAS)).
(d) Agreements with foreign countries for the use of, or access to,
military facilities.
(e) Contingency plans insofar as they involve other countries, the
use of foreign bases, territory or airspace, or the use of chemical,
biological, or nuclear weapons.
(f) Defense surveys of foreign territories for purposes of basing or
use in contingencies.
(g) Reports documenting conversations with foreign officials, that
is, foreign government information.
32 CFR 158.13 Central Intelligence Agency areas of interest.
(a) Cryptologic, cryptographic, or SIGINT. (Information in this
category shall continue to be forwarded to the NSA/CSS in accordance
with 158.11(d). The NSA/CSS shall arrange for necessary coordination.)
(b) Counterintelligence.
(c) Special access programs
(d) Information that identifies clandestine organizations, agents,
sources, or methods.
(e) Information on personnel under official or nonofficial cover or
revelation of a cover arrangement.
(f) Covertly obtained intelligence reports and the derivative
information that would divulge intelligence sources or methods.
(g) Methods or procedures used to acquire, produce, or support
intelligence activities.
(h) CIA structure, size, installations, security, objectives, and
budget.
(i) Information that would divulge intelligence interests, value, or
extent of knowledge on a subject.
(j) Training provided to or by the CIA that would indicate its
capability or identify personnel.
(k) Personnel recruiting, hiring, training, assignment, and
evaluation policies.
(l) Information that could lead to foreign political, economic, or
military action against the United States or its allies.
(m) Events leading to international tension that would affect U.S.
foreign policy.
(n) Diplomatic or economic activities affecting national security or
international security negotiations.
(o) Information affecting U.S. plans to meet diplomatic contingencies
affecting national security.
(p) Nonattributable activities conducted abroad in support of U.S.
foreign policy.
(q) U.S. surreptitious collection in a foreign nation that would
affect relations with the country.
(r) Covert relationships with international organizations or foreign
governments.
(s) Information related to political or economic instabilities in a
foreign country threatening American lives and installations therein.
(t) Information divulging U.S. intelligence collection and assessment
capabilities.
(u) U.S. and allies' defense plans and capabilities that enable a
foreign entity to develop countermeasures.
(v) Information disclosing U.S. systems and weapons capabilities or
deployment.
(w) Information on research, development, and engineering that
enables the United States to maintain an advantage of value to national
security.
(x) Information on technical systems for collection and production of
intelligence, and their use.
(y) U.S. nuclear programs and facilities.
(z) Foreign nuclear programs, facilities, and intentions.
(aa) Contractual relationships that reveal the specific interest and
expertise of the CIA.
(bb) Information that could result in action placing an individual in
jeopardy.
(cc) Information on secret writing when it relates to specific
chemicals, reagents, developers, and microdots.
(dd) Reports of the Foreign Broadcast Information Service (FBIS) ( --
Branch, -- Division) between July 31, 1946, and December 31, 1950,
marked CONFIDENTIAL or above.
(ee) Reports of the Foreign Documents Division between 1946 and 1950
marked RESTRICTED or above.
(ff) Q information reports.
(gg) FDD translations.
(hh) U reports.
32 CFR 158.13 PART 159 -- DOD INFORMATION SECURITY PROGRAM
Sec.
159.1 Purpose.
159.2 Applicability and scope.
159.3 Policy.
159.4 Procedures.
159.5 Responsibilities.
Authority: E.O. 12356 and 5 U.S.C. 301.
Source: 53 FR 44877, Nov. 7, 1988, unless otherwise noted.
32 CFR 159.1 Purpose.
(a) This part updates policies and procedures of the DoD information
Security Program, implements Executive Order 12356 and 32 CFR Part 2001,
delegates authority, and assigns responsibilities.
(b) This part authorizes the development, publication, and
maintenance of the following documents, consistent with DoD 5025.1-M.
(1) DoD 5200.1-R, ''Information Security Program Regulation'';
(2) DoD 5200.1-H, ''Department of Defense Handbook for Writing
Security Classification Guidance'';
(3) DoD 5200.1-I, ''Index of Security Classification Guides'';
(4) DoD 5200.1-PH, ''A Guide to Marking Classified Documents''; and
(5) Other DoD 5200.1-PH series issuances necessary to ensure or
facilitate compliance with and implementation of DoD 5200.1-R and E.O.
12356 and 32 CFR Part 2001.
32 CFR 159.2 Applicability and scope.
(a) This part applies to the Office of the Secretary of Defense, the
Military Departments, the Organization of the Joint Chiefs of Staff, the
Unified and Specified Commands, and the Defense Agencies (hereafter
referred to as ''DoD Components'').
(b) This part covers all information that is owned, produced by or
for, or is under the control of the Department of Defense that shall be
protected from unauthorized disclosure in the interest of national
security under Executive Order 12356 and ISOO Directive No. 1 and all
such information received by the Department of Defense from other
sources, including that received from or produced pursuant to or as a
result of a joint arrangement with a foreign government or international
organization.
32 CFR 159.3 Policy.
It is the policy of the Department of Defense to assure that
information that warrants protection against unauthorized disclosure is
properly classified and safeguarded as well as to facilitate the flow of
unclassified information about DoD operations to the public.
32 CFR 159.4 Procedures.
To carry out this policy, there is established a DoD Information
Security Program that shall be administered to ensure that:
(a) Information requiring protection in the interest of national
security is properly classified and safeguarded.
(b) Overclassification and unnecessary classification are avoided.
(c) Information is classified as long as required by national
security considerations.
(d) Unnecessary expense to the Department of Defense, industry, and
the U.S. government, resulting from protection of information no longer
requiring classification, is eliminated.
(e) Declassified information is made available to the public under 32
CFR Part 285.
(f) Classified inventories are reduced to the minimum necessary to
meet operational requirements, thereby affording better protection to
that which remains.
(g) DoD military and civilian personnel, who require access to
classified information in the conduct of official business, are familiar
with the requirements of DoD 5200.1-R and E.O. 12356 and 32 CFR Part
2001, and that they comply with those requirements.
32 CFR 159.5 Responsibilities.
(a) The Deputy Under Secretary of Defense (Policy) shall:
(1) Direct and administer the DoD Information Security Program,
establish policy, standards, criteria, and procedures to comply with
E.O. 12356, except its section 3.4.
(2) Conduct an active oversight program to ensure effective
implementation of DoD 5200.1-R, Executive Order 12356, and 32 CFR Part
2001, to include security education and training.
(3) Consider and take action on complaints and suggestions from
persons within or outside the government regarding the DoD information
Security Program.
(b) The Assistant Secretary of Defense (Public Affairs) shall direct
and administer a DoD Mandatory Declassification Review Program under
section 3.4., E.O. 12356, and establish policies and procedures for
processing mandatory declassification review requests, including
appeals, under section 3.4(d) of E.O. 12356 and section
2001.32(a)(2)(iii) of Information Security Oversight Office (ISOO)
Directive No. 1 /1/ that make maximum use of DoD Component resources
and systems established to implement 32 CFR Part 285.
(c) The Head of each DoD Component shall:
(1) Designate a senior official who shall be responsible for the
direction and administration of the Component's Information Security
Program, to include active oversight, and security education and
training programs to ensure implementation of DoD 5200.1-R within the
Component.
(2) Ensure that funding and resources are adequate to carry out such
oversight, and security education and training programs.
(3) Consider and take action on complaints and suggestions from
persons within or outside the government regarding the Component's
Information Security Program.
(4) Establish procedures to limit access to classified information to
those who need to know.
(5) Develop plans for the protection, removal, or destruction of
classified material in case of fire, natural disaster, civil
disturbance, terrorist activities, or enemy action. These plans shall
include the treatment of classified information located in foreign
countries.
(d) Pursuant to E.O. 12356, the Director, National Security
Agency/Chief, Central Security Service, as the designee of the Secretary
of Defense, is authorized to impose special requirements with respect to
the marking, reproduction, distribution, accounting, and protection of
and access to classified cryptologic information. The Director,
National Security Agency/Chief, Central Security Service, will develop
special procedures for the declassification review of cryptologic
information. This authority may not be redelegated.
/1/ Copies may be obtained, if needed, from the Director, Information
Security Oversight, General Service Administration, Washington, DC
20405.
32 CFR 159.5 Pt. 159a
32 CFR 159.5 PART 159a -- INFORMATION SECURITY PROGRAM REGULATION
32 CFR 159.5 Subpart A -- Policy
Sec.
159a.1 Purpose.
159a.2 Applicability.
159a.3 Nongovernment operations.
159a.4 Combat operations.
159a.5 Atomic energy material.
159a.6 Sensitive compartmented and communications security
information.
159a.7 Automatic Data Processing systems.
32 CFR 159.5 Subpart B -- General Provisions
159a.9 Definitions.
159a.10 Policies.
159a.11 Security classification designations.
159a.12 Authority to classify, downgrade, and declassify.
32 CFR 159.5 Subpart C -- Classification
159a.14 Classification responsibilities.
159a.15 Classification principles, criteria, and considerations.
159a.16 Duration of original classification.
159a.17 Classification guides.
159a.18 Resolution of conflicts.
159a.19 Obtaining classification evaluations.
159a.20 Information developed by private sources.
159a.21 Regrading.
159a.22 Industrial operations.
32 CFR 159.5 Subpart D -- Declassification and Downgrading
159a.24 General provisions.
159a.25 Systematic review.
159a.26 Mandatory declassification review.
159a.27 Declassification of transferred documents or material.
159a.28 Downgrading.
159a.29 Miscellaneous.
32 CFR 159.5 Subpart E -- Marking
159a.31 General provisions.
159a.32 Specific markings on documents.
159a.33 Markings on special categories of material.
159a.34 Classification authority, duration, and change in
classification markings.
159a.35 Additional warning notices.
159a.36 Remarking old material.
32 CFR 159.5 Subpart F -- Safekeeping and Storage
159a.37 Storage and storage equipment.
159a.38 Custodial precautions.
159a.39 Activity entry and exit inspection program.
32 CFR 159.5 Subpart G -- Compromise of Classified Information
159a.41 Policy.
159a.42 Cryptographic and sensitive compartmented information.
159a.43 Responsibility of discoverer.
159a.44 Preliminary inquiry.
159a.45 Investigation.
159a.46 Responsibility of authority ordering investigation.
159a.47 Responsibility of originator.
159a.48 System of control of damage assessments.
159a.49 Compromises involving more than one agency.
159a.50 Espionage and deliberate compromise.
159a.51 Unauthorized absentees.
32 CFR 159.5 Subpart H -- Access, Dissemination, and Accountability
159a.53 Access.
159a.54 Dissemination.
159a.55 Accountability and control.
32 CFR 159.5 Subpart I -- Transmission
159a.57 Methods of transmission or transportation.
159a.58 Preparation of material for transmission, shipment, or
conveyance.
159a.59 Restrictions, procedures, and authorization concerning escort
or handcarrying of classified information.
32 CFR 159.5 Subpart J -- Disposal and Destruction
159a.61 Policy.
159a.62 Methods of destruction.
159a.63 Destruction procedures.
159a.64 Records of destruction.
159a.65 Classified waste.
159a.66 Classified document retention.
32 CFR 159.5 Subpart K -- Security Education
159a.68 Responsibility and objectives.
159a.69 Scope and principles.
159a.70 Initial briefings.
159a.71 Refresher briefings.
159a.72 Foreign travel briefings.
159a.73 Termination briefings.
32 CFR 159.5 Subpart L -- Foreign Government Information
159a.75 Classification.
159a.76 Declassification.
159a.77 Marking.
159a.78 Protective measures.
32 CFR 159.5 Subpart M -- Special Access Programs
159a.80 Policy.
159a.81 Establishment of special access programs.
159a.82 Review of special access programs.
159a.83 Control and central office administration.
159a.84 Codewords and nicknames.
159a.85 Reporting of special access programs.
159a.86 Accounting for special access programs.
159a.87 Limitations on access.
159a.88 ''Carve-Out'' contracts.
159a.89 Oversight reviews.
32 CFR 159.5 Subpart N -- Program Management
159a.91 Executive branch oversight and policy direction.
159a.92 Department of Defense.
159a.93 DoD components.
159a.94 Information requirements.
159a.95 Defense Information Security Committee.
32 CFR 159.5 Subpart O -- Administration Sanctions
159a.97 Individual responsibility.
159a.98 Violation subject to sanctions.
159a.99 Corrective action.
159a.100 Administrative discrepancies.
159a.101 Reporting violations.
Appendix A to Part 159a -- Equivalent Foreign and International Pact
Organization Security Classifications
Appendix B to Part 159a -- General Accounting Office Officials
Authorized to Certify Security Clearances
Appendix C to Part 159a -- Instructions Governing Use of Code Words,
Nicknames, and Exercise Terms
Appendix D to Part 159a -- Federal Aviation Administration Air
Transportation, Security Field Offices
Appendix E to Part 159a -- Transportation Plan
Authority: E.O. 12356, 5 U.S.C. 301.
Source: 54 FR 26959, June 27, 1989, unless otherwise noted.
32 CFR 159.5 Subpart A -- Policy
32 CFR 159a.1 Purpose.
Information of the Department of Defense relating to national
security shall be protected against unauthorized disclosure as long as
required by national security considerations. This part establishes a
system for classification, downgrading and declassification of
information; sets forth policies and procedures to safeguard such
information; and provides for oversight and administrative sanctions
for violations.
32 CFR 159a.2 Applicability.
This part governs the DoD Information Security Program and takes
precedence over all DoD Component regulations that implement that
Program. Under 32 CFR Part 159, E.O. 12356, and Information Security
Oversight Office (ISOO) Directive No. 1, it establishes, for the
Department of Defense, uniform policies, standards, criteria, and
procedures for the security classification, downgrading,
declassification, and safeguarding of information that is owned by,
produced for or by, or under the control of the Department of Defense or
its Components.
32 CFR 159a.3 Nongovernment operations.
Except as otherwise provided herein, the provisions of this part that
are relevant to operations of nongovernment personnel entrusted with
classified information shall be made applicable thereto by contracts or
other legally binding instruments. (See DOD Directive 5220.22 /1/ , DoD
5220.22-R /2/ , and DoD 5220.22-M /3/ .
/1/ Copies may be obtained, if needed, from the Naval Publications
and Forms Center, Attn: Code 106, 5801 Tabor Avenue, Philadelphia, PA
19120.
/2/ Copies may be obtained at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
/3/ Copies may be obtained, at cost, from the Government Printing
Office.
32 CFR 159a.4 Combat operations.
The provisions of this part relating to accountability,
dissemination, transmission, or safeguarding of classified information
may be modified by military commanders but only to the extent necessary
to meet local conditions in connection with combat or combat-related
operations. Classified information should be introduced into forward
combat areas or zones or areas of potential hostile activity only when
essential to accomplish the military mission.
32 CFR 159a.5 Atomic energy material.
Nothing in this part supersedes any requirement related to
''Restricted Data'' in the Atomic Energy Act of August 30, 1954, as
amended, or the regulations of the Department of Energy under that Act.
''Restricted Data'' and material designated as ''Formerly Restricted
Data,'' shall be handled, protected, classified, downgraded, and
declassified to conform with Pub. L. 83-703 and the regulations issued
pursuant thereto.
32 CFR 159a.6 Sensitive compartmented and communications security
information.
(a) Sensitive Compartmented Information (SCI) and Communications
Security (COMSEC) Information shall be handled and controlled in
accordance with applicable national directives and DOD Directives and
Instructions. Other classified information, while in established SCI or
COMSEC areas, may be handled in the same manner as SCI or COMSEC
information. Classification principles and procedures, markings,
downgrading, and declassification actions prescribed in this part apply
to SCI and COMSEC information.
(b) Pursuant to 32 CFR Part 159, the Director, National Security
Agency/Chief, Central Security Service may prescribe special rules and
procedures for the handling, reporting of loss, storage, and access to
classified communications security devices, equipments, and materials in
mobile, hand-held or transportable systems, or that are used in
conjunction with commercial telephone systems, or in similar
circumstances where operational demands preclude the application of
standard safeguards. These special rules may include procedures for
safeguarding such devices and materials, and penalties for the negligent
loss of government property.
32 CFR 159a.7 Automatic Data Processing systems.
This part applies to protection of classified information processed,
stored or used in, or communicated, displayed or disseminated by an
automatic data processing (ADP) system. Additional security policy,
responsibilities, and requirements applicable specifically to ADP
systems are contained in DoD Directive 5200.28 /4/ and DoD 5200.28-M.
/4/ See footnote 1 to 159a.3.
32 CFR 159a.7 Subpart B -- General Provisions
32 CFR 159a.9 Definitions.
(a) Access. The ability and opportunity to obtain knowledge of
classified information.
(b) Apllicable Associated Markings. The markings, other than
classfication markings, and warning notices listed or refered to in
159a.31(d).
(c) Carve-Out. A classified contract issued in connection with an
approved Special Access Program in which the Defense Investigative
Service has been relieved of inspection, responsibility in whole or in
part under the Defense Industrial Security Program.
(d) Classification Authority. The authority vested in an official of
the Department of Defense to make an initial determination that
information requires protection against unauthorized disclosure in the
interest of national security.
(e) Classification Guide. A document issued by an authorized
original classifier that prescribes the level of classification and
appropriate declassification instructions for specified information to
be classified derivatively. For purposes of this part, this term does
not include DD Form 254, ''Contract Security Classification
Specification.''
(f) Classified Information. Information or material that is:
(1) Owned by, produced for or by, or under the control of the U.S.
Government; and
(2) Determined under E.O. 12356 or prior orders and this part to
require protection against unauthorized disclosure; and
(3) So designated.
(g) Classifier. An individual who makes a classification
determination and applies a security classification to information or
material. A classifier may be an original classification authority or a
person who derivatively assigns a security classification based on a
property classified source or a classification guide.
(h) Communications Security (COMSEC). The protection resulting from
all measures designed to deny unauthorized persons information of value
which might be derived from the possession and study of
telecommunications and to ensure the authenticity of such
communications. COMSEC includes cryptosecurity, emission security,
transmission security, and physical security of COSMEC material and
information.
(i) Compromise. The disclosure of classified information to persons
not authorized access thereto.
(j) Confidential Source. Any individual or organization that has
provided, or that may reasonably be expected to provide, information to
the United States on matters pertaining to the national security with
the expectation, expressed or implied, that the information or
relationship, or both, be held in confidence.
(k) Continental United States (CONUS). United States territory,
including adjacent territorial waters, located within the North American
continent between Canada and Mexico.
(l) Controlled Cryptographic Item (CCI). A secure telecommunications
or information handling equipment ancillary device, or associated
cryptographic component, which is unclassified but controlled.
(Note: Equipments and components so designated bear the designator
''Controlled Cryptographic Item'' or ''CCI.'')
(m) Critical Nuclear Weapon Design Information. That Top Secret
Restricted Data or Secret Restricted Data revealing the theory of
operation or design of the components of a thermo-nuclear or
implosion-type fission bomb, warhead, demolition munition or test
device. Specifically excluded is information concerning arming, fuzing,
and firing systems; limited life components; and total contained
quantities of fissionable, fusionable, and high explosive materials by
type. Among these excluded items are the components which DoD personnel
set, maintain, operate, test, or replace.
(n) Custodian. An individual who has possession of or is otherwise
charged with the responsibility for safeguarding or accounting for
classified information.
(o) Declassification. The determination that classified information
no longer requires, in the interest of national security, any degree of
protection against unauthorized disclosure, together with a removal or
cancellation of the classification designation.
(p) Declassification Event. An event that eliminates the need for
continued classification of information.
(q) Derivative Classification. A determination that information is
in substance the same as information currently classified, and the
application of the classification markings.
(r) Document. Any recorded information regardless of its physical
form or characteristics, including, without limitation, written or
printed matter, data processing cards and tapes, maps, charts,
paintings, drawings, engravings, sketches, working notes and papers, or
reproductions by any means or process, and sound, voice, magnetic or
electronic recordings in any form.
(s) DoD Component. 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.
(t) Downgrade. A determination that classified information requires,
in the interest of national security, a lower degree of protection
against unauthorized disclosure than currently provided, together with a
changing of the classification designation to reflect such lower degree
of protection.
(u) Foreign Government Information. Information that is:
(1) Provided to the United States by a foreign government or
governments, an international organization of governments, or any
element thereof with the expectation, expressed or implied, that the
information, the source of the information, or both, are to be held in
confidence; or
(2) Produced by the United States pursuant to or as a result of a
joint arrangement with a foreign government or governments or an
international organization of governments, or any element thereof,
requiring that the information, the arrangement, or both, are to be held
in confidence.
(v) Formerly Restricted Data. Information removed from the
Restricted Data category upon a joint determination by the Department of
Energy (or antecedent agencies) and the Department of Defense that such
information relates primarily to the military utilization of atomic
weapons and that such information can be safeguarded adequately as
classified defense information. For purposes of foreign dissemination,
however, such information is treated in the same manner as Restricted
Data.
(w) Information. Knowledge that can be communicated by any means.
(x) Information Security. The result of any system of policies and
procedures for identifying, controlling, and protecting from
unauthorized disclosure, information whose protection is authorized by
executive order or statute.
(y) Intelligence Activity. An activity that an agency within the
Intelligence Community is authorized to conduct under E.O. 12333.
(z) Limited Dissemination. Restrictive controls for classified
information established by an original classification authority to
emphasize need-to-know protective measures available within the regular
security system.
(aa) Material. Any product or substance on, or in which, information
is embodied.
(bb) National Security. The national defense and foreign relations
of the United States.
(cc) Need-to-know. A determination made by a possessor of classified
information that a prospective recipient, in the interest of national
security, has a requirement for access to, or knowledge, or possession
of the classified information in order to accomplish lawful and
authorized Government purposes.
(dd) Original Classification. An initial determination that
information requires, in the interest of national security, protection
against unauthorized disclosure, together with a classification
designation signifying the level of protection required.
(ee) Regrade. A determination that classified information requires a
different degree of protection against unauthorized disclosure than
currently provided, together with a change of classification designation
that reflects such different degree of protection.
(ff) Restricted Data. All data concerning:
(1) Design, manufacture or utilization of atomic weapons;
(2) The production of special nuclear material; or
(3) The use of special nuclear material in the production of energy,
but shall not include data declassified or removed from the Restricted
Data category under Section 142 of Pub. L. 83-703.
(gg) Security Clearance. A determination that a person is eligible
under the standards of DoD 5200.2-R for access to classified
information.
(hh) Senior Information Security Authority. A senior official
designated in writing by the head of each DoD Component to be
responsible for implementation of the Information Security Program
within the Component.
(ii) Sensitive Compartmented Information. Information and material
that requires special controls for restricted handling within
compartmented intelligence systems and for which compartmentation is
established.
(jj) Special Access Program. Any program approved in accordance with
subpart M of this part which imposes need-to-know or access controls
beyond those normally required for access to Confidential, Secret, or
Top Secret information.
(kk) Special Activity. An activity, or functions in support of such
activity, conducted in support of national foreign policy objectives
abroad that is planned and executed so that the role of the U.S.
Government is neither apparent nor acknowledged publicly; but that is
not intended to influence U.S. political processes, public opinion,
policies, or media, and does not include diplomatic activities or the
collection and production of intelligence or related support functions.
(ll) Unauthorized Disclosure. A communication or physical transfer
of classified information to an unauthorized recipient.
(mm) United States and Its Territories, Possessions, Administrative,
and Commonwealth Areas. The 50 States; the District of Columbia; the
Commonwealth of Puerto Rico; the Territories of Guam, American Samoa,
and the Virgin Islands; the Trust Territory of the Pacific Islands;
and the Possessions, Midway and Wake Islands.
(nn) Upgrade. A determination that certain classified information
requires, in the interest of national security, a higher degree of
protection against unauthorized disclosure than currently provided,
together with a changing of the classification designation to reflect
such higher degree.
32 CFR 159a.10 Policies.
(a) Classification -- (1) Basic Policy. Except as provided in the
Atomic Energy Act of 1954, as amended, E.O. 12356, as implemented by the
ISOO Directive No. 1, and this part, provides the only basis for
classifying information. It is the policy of the Department of Defense
to make available to the public as much information concerning its
activities as possible consistent with the need to protect the national
security. Accordingly, security classification shall be applied only to
protect the national security.
(2) Resolution of Doubts. Unnecessary classification and higher than
necessary classification should be avoided. If there is reasonable
doubt about the need to classify information, it shall be safeguarded as
if it were classsified ''Confidential'' pending a determination by an
original classification authority, who shall make this determination
within 30 days. If there is reasonable doubt about the appropriate
level of classification, it shall be safeguarded at the higher level of
classification pending a determination by an original classification
authority, who shall make this determination within 30 days. Upon a
classification determination, markings shall be applied in accordance
with Subpart E of this part.
(3) Duration. Information shall be classified as long as required by
national security considerations. Each decision to classify requires a
simultaneous determination of the duration such classification must
remain in force or that the duration of classification cannot be
determined.
(b) Declassification. Decisions concerning declassification shall be
based on the loss of the information's sensitivity with the passage of
time or upon the occurrence of a declassification event.
(c) Safeguarding. Information classified under this part shall be
afforded the level of protection against unauthorized disclosure
commensurate with the level of classification assigned under the varying
conditions that may arise in connection with its use, dissemination,
storage, movement or transmission, and destruction.
32 CFR 159a.11 Security classification designations.
(a) General. Information or material that requires protection
against unauthorized disclosure in the interest of national security
shall be classified in one of three designations, namely: ''Top
Secret,'' ''Secret,'' or ''Confidential.'' The markings ''For Official
Use Only,'' and ''Limited Official Use'' shall not be used to identify
classified information. Moreover, no other term such as ''Sensitive,''
''Conference,'' or ''Agency'' shall be used in conjunction with the
authorized classification designations to identify classified
information.
(b) Top Secret. ''Top Secret'' shall be applied only to information
or material the unauthorized disclosure of which reasonably could be
expected to cause exceptionally grave damage to the national security.
Examples of exceptionally grave damage include armed hostilities against
the United States or its allies; disruption of foreign relations
vitally affecting the national security; the compromise of vital
national defense plans or complex cryptologic and communications
intelligence systems; the revelation of sensitive intelligence
operations; and the disclosure of scientific or technological
developments vital to national security.
(c) Secret. ''Secret'' shall be applied only to information or
material the unauthorized disclosure of which reasonably could be
expected to cause serious damage to the national security. Examples of
serious damage include disruption of foreign relations significantly
affecting the national security; significant impairment of a program or
policy directly related to the national security; revelation of
significant military plans or intelligence operations; compromise of
significant military plans or intelligence operations; and compromise
of significant scientific or technological developments relating to
national security.
(d) Confidential. ''Confidential'' shall be applied only to
information or material the unauthorized disclosure of which reasonably
could be expected to cause damage to the national security. Examples of
damage include the compromise of information that indicates strength of
ground, air, and naval forces in the United States and overseas areas;
disclosure of technical information used for training, maintenance, and
inspection of classified munitions of war; revelation of performance
characteristics, test data, design, and production data on munitions of
war.
32 CFR 159a.12 Authority to classify, downgrade, and declassify.
(a) Original Classification Authority -- (1) Control. Authority for
original classification of information as Top Secret, Secret, or
Confidential may be exercised only by the Secretary of Defense, the
Secretaries of the Military Departments, and by officials to whom such
authority is specifically delegated in accordance with and subject to
the restrictions of this Section of the part. In the absence of an
original classification authority, the person designated to act in his
or her absence may exercise the classifier's authority.
(2) Delegation of Classification Authority. Original classification
authority shall not be delegated to persons who only reproduce, extract,
or summarize classified information, or who only apply classification
markings derived from source material or as directed by a classification
guide. Delegations of original classification authority shall be
limited to the minimum number required for efficient administration and
to those officials whose duties involve the origination and evaluation
of information warranting classification at the level stated in the
delegation.
(i) Top Secret. Only the Secretary of Defense, the Secretaries of
the Military Departments, and the senior official designated by each
under 5.3(a) of E.O. 12356, provided that official has original Top
Secret classification authority, may delegate original Top Secret
classification authority. Such delegation may only be made to officials
who are determined to have a demonstrable and continuing need to
exercise such authority.
(ii) Secret and Confidential. Only the Secretary of Defense, the
Secretaries of the Military Departments, the senior official designated
by each under 5.3(a) of E.O. 12356, and officials with original Top
Secret classification authority, may delegate original Secret and
Confidential classification authority to officials whom they determine
respectively to have a demonstrable and continuing need to exercise such
authority.
(iii) Each delegation of original classification authority shall be
in writing and shall specify the title of the position held by the
recipient.
(3) Requests for Classification Authority. (i) A request for the
delegation of original classification authority shall be made only when
there is a demonstrable and continuing need to exercise such authority
and the following conditions exist:
(A) The normal course of operations or missions of the organization
results in the origination of information warranting classification;
(B) There is a substantial degree of local autonomy in operations or
missions as distinguished from dependence upon a higher level of command
or supervision for relatively detailed guidance;
(C) There is adequate knowledge by the originating level to make
sound classification determinations as distinguished from having to seek
such knowledge from a higher level of command or supervision; and
(D) There is a valid reason why already designated classification
authorities in the originator's chain of command or supervision have not
issued or cannot issue classification guidance to meet the originator's
normal needs.
(ii) Each request for a delegation of original classification
authority shall:
(A) Identify the title of the position held by the nominee and the
nominee's organization;
(B) Contain a description of the circumstances, consistent with
paragraph (a)(3)(i) of this section, that justify the delegation of such
authority; and
(C) Be submitted through established channels to the Secretary of
Defense, the Secretary of the Military Department concerned, the senior
official designated by each under 5.3(a) of E.O. 12356, or the
appropriate Top Secret classification authority.
(4) Training Requirements for Original Classification Authorities.
Heads of DoD Component shall establish procedures to ensure that all
original classification authorities in their Component, to include
themselves, are indoctrinated in the fundamentals of security
classification, limitations on their authority to classify information,
and their responsibilities as such. This indoctrination shall be a
prerequisite to the exercise of such authority and shall be a matter of
record that is subject to audit. Heads of DoD Components shall ensure
this indoctrination is given to all present original classification
authorities within 12 months of the effective date of this part.
(b) Derivative Classification Responsibility. Derivative application
of classification markings is a responsibility of those who incorporate,
paraphrase, restate, or generate in new form, information that is
already classified, or those who apply markings in accordance with
guidance from an original classification authority. Persons who apply
derivative classifications should take care to determine whether their
paraphrasing, restating, or summarizing of classified information has
removed all or part of the basis for classification. Persons who apply
such derivative classification markings shall:
(1) Respect original classification decisions;
(2) Verify the information's current level of classification as far
as practicable before applying the markings; and
(3) Carry forward to any newly created documents the assigned dates
or events for declassification and any additional authorized markings.
(c) Record and Report Requirements. (1) Records of designations of
original classification authority shall be maintained as follows:
(i) Top Secret Authorities. A current listing by title and
organization of officials designated to exercise original Top Secret
classification authority shall be maintained by:
(A) The Office of the Deputy Under Secretary of Defense (Policy)
(ODUSD(P)) for the Office of the Secretary of Defense; the Organization
of the Joint Chiefs of Staff; the headquarters of each Unified Command
and the headquarters of subordinate Joint Commands; and the Defense
Agencies.
(B) The Offices of the Secretaries of the Military Departments for
the officials of their respective departments, including Specified
Commands but excluding officials from their respective departments wo
are serving in headquarters elements of Unified Commands and
headquarters of Joint Commands subordinate thereto.
(ii) Secret and Confidential Authorities. A current listing by title
and organization of officials designated to exercise original Secret and
Confidential classification authority shall be maintained by:
(A) The ODUSD(P) for the Office of the Secretary of Defense.
(B) The offices of the Secretaries of the Military Departments for
the officials of their respective departments, including Specified
Commands but excluding officials from their respective departments who
are serving in headquarters elements of Unified Commands and
headquarters elements of Joint Commands subordinate thereto.
(C) The Director, Joint Staff, for the OJCS.
(D) The Commanders-in-Chief of the Unified Commands, for their
respective headquarters and the headquarters of subordinate Joint
Commands.
(E) The Directors of the Defense Agencies, for their respective
agencies.
(iii) If the listing of titles of positions and organizations
prescribed in paragraphs (c)(1) (i) and (ii) of this section discloses
intelligence or other information that either qualifies for security
classification protection or otherwise qualifies to be withheld from
public release under statute, some other means may be recommended by the
DoD Component by which original classification authorities can be
readily identified. Such recommendations shall be submitted to ODUSD(P)
for approval.
(iv) The listings prescribed in paragraphs (c)(1) (i) and (ii) of
this section shall be reviewed at least annually by the senior official
designated in or pursuant to 159a.92(a)(1), 159a.93 (a) or (b) or
designee to ensure that officials so listed have demonstrated a
continuing need to exercise original classification authority.
(2) The DoD Components that maintain listings of designated original
classification authorities shall, upon request, submit copies of such
listings to ODUSD(P).
(d) Declassification and Downgrading Authority. (1) Authority to
declassify and downgrade information classified under provisions of this
part shall be exercised as follows:
(i) By the Secretary of Defense and the Secretaries of the Military
Departments, with respect to all information over which their respective
Departments exercise final classification jurisdiction;
(ii) By the official who authorized the original classification, if
that official is still serving in the same position, by a successor, or
by a supervisory official of either; and
(iii) By other officials designated for the purpose in accordance
with paragraph (d)(2) of this section.
(2) The Secretary of Defense, the Secretaries of the Military
Departments, the Chairman of the Joint Chiefs of Staff, the Directors of
the Defense Agencies, or their senior officials designated under
159a.93 (b) or (c) may designate additional officials at the lowest
practicable echelons of command and supervision to exercise
declassification and downgrading authority over classified information
in their functional areas of interest. Records of officials so
designated shall be maintained in the same manner as prescribed in
159a.12(c)(1)(i) for records of designations of original classification
authority.
32 CFR 159a.12 Subpart C -- Classification
32 CFR 159a.14 Classification responsibilities.
(a) Accountability of Classifiers. (1) Classifiers are accountable
for the propriety of the classifications they assign, whether by
exercise of original classification authority or by derivative
classification.
(2) An official who classifies a document or other material and is
identified thereon as the classifier is and continues to be an
accountable classifier even though the document or material is approved
or signed at a higher level in the same organization.
(b) Classification Approval. (1) When an official signs or approves
a document or other material already marked to reflect a particular
level of classification, he or she shall review the information
contained therein to determine if the classification markings are
appropriate. If, in his or her judgment, the classification markings
are not supportable, he or she shall, at that time, cause such markings
to be removed or changed as appropriate to reflect accurately the
classification of the information involved.
(2) A higher level official through or to whom a document or other
material passes for signature or approval becomes jointly responsible
with the accountable classifier for the classification assigned. Such
official has discretion to decide whether a subordinate who has
classification authority shall be identified as the accountable
classifier when he or she has exercised that authority.
(c) Classification Planning. (1) Advance classification planning is
an essential part of the development of any plan, operation, program,
research and development project, or procurement action that involves
classified information. Classification must be considered from the
outset to assure adequate protection for the information and for the
activity itself, and to eliminate impediments to the execution or
implementation of the plan, operations order, program, project or
procurement action.
(2) The official charged with developing any plan, program or project
in which classification is a factor, shall include under an identifiable
title or heading, classification guidance covering the information
involved. The guidance shall conform to the requirements contained in
159a.17.
(d) Challenges to Classification. If holders of classified
information have substantial reason to believe that the information is
classified improperly or unnecessarily, they shall communicate that
belief to their security manager or the classifier of the information to
bring about any necessary correction.
(1) Each DoD Component shall establish procedures whereby holders of
classified information may challenge the decision of the classifier.
(2) Challenges to classification made under this subsection shall
include sufficient description of the information being challenged to
permit identification of the information and its classifier with
reasonable effort. Challenges to classification shall also include the
reason or reasons why the challenger believes that the information is
classified improperly or unnecessarily.
(3) Challenges received under this subsection shall be acted upon
within 30 days of receipt. The challenger shall be notified of any
changes made as a result of the challenge or the reasons why no change
is made.
(4) Pending final determination of a challenge to classification, the
information or document in question shall be safeguarded as required for
the level of classification initially assigned.
(5) The fact that an employee or military member of the Department of
Defense has issued a challenge to classification shall not in any way
result in or serve as a basis for adverse personnel action.
(6) The provisions of this paragraph do not apply to or affect
declassification review actions undertaken under the mandatory review
requirements of 159a.26 of this part or under the provisions of 32 CFR
Part 285.
32 CFR 159a.15 Classification principles, criteria, and considerations.
(a) Reasoned Judgment. Reasoned judgment shall be exercised in
making classification decisions. A positive basis must exist for
classification. Both advantages and disadvantages of classification
must be weighed. If, after consideration of the provisions of this
section, there is reasonable doubt, the provisions of 159a.10(a)(2)
apply.
(b) Identification of Specific Information. Before a classification
determination is made, each item of information that may require
protection shall be identified. This requires identification of that
specific information that comprises the basis for a particular national
advantage or advantages that, if the information were compromised, would
or could be damaged, minimized, or lost, thereby adversely affecting
national security.
(c) Specific Classifying Criteria. A determination to classify shall
be made only by an original classification authority when, first, the
information is within paragraphs (c) (1) through (10) of this section;
and second, the unauthorized disclosure of the information, either by
itself or in the context of other information, reasonably could be
expected to cause damage to the national security. The determination
involved in the first step is separate and distinct from that in the
second. Except as provided in paragraph (d) of this section, the fact
that the information falls under one or more of the criteria shall not
mean that the information automatically meets the damage criteria.
Information shall be considered for classification if it concerns:
(1) Military plans, weapons, or operations;
(2) Vulnerabilities or capabilities of systems, installations,
projects, or plans relating to the national security;
(3) Foreign government information;
(4) Intelligence activities including special activities, or
intelligence sources or methods;
(5) Foreign relations or foreign activities of the United States;
(6) Scientific, technological, or economic matters relating to the
national security;
(7) U.S. Government programs for safeguarding nuclear materials or
facilities;
(8) Cryptology;
(9) A confidential source; or
(10) Other categories of information that are related to national
security and that require protection against unauthorized disclosure as
determined by the Secretary of Defense or Secretaries of the Military
Departments. Recommendations concerning the need to designate
additional categories of information that may be considered for
classification shall be forwarded through channels to the appropriate
Secretary for determination. Each such determination shall be reported
promptly to the Director of Security Plans and Programs, ODUSD(P), for
promulgation in an Appendix to this part and reporting to the Director,
ISOO.
(d) Presumption of Damage. Unauthorized disclosure of foreign
government information, the identity of a confidential foreign source,
or intelligence sources or methods is presumed to cause damage to the
national security.
(e) Limitations on Classification. (1) classification may not be
used to conceal violations of law, inefficiency, or administrative
error, to prevent embarrassment to a person, organization or agency, or
to restrain competition.
(2) Basic scientific research information not clearly related to
national security may not be classified.
(3) A product of nongovernment research and development that does not
incorporate or reveal classified information to which the producer or
developer was given prior access may not be classified until and unless
the government acquires a proprietary interest in the product. This
prohibition does not affect the provisions of the Patent Secrecy Act of
1952.
(4) References to classified documents that do not reveal classified
information may not be classified or used as a basis for classification.
(5) Classification may not be used to limit dissemination of
information that is not classifiable under the provisions of E.O. 12356
or this part or to prevent or delay public release of such information.
(6) Information may be classified or reclassified after receiving a
request for it under the Freedom of Information Act, the Privacy Act, or
the mandatory review provisions of this part ( 159a.26) if such
classification is consistent with this part and is accomplished
personally and on a document-by-document basis, except as provided in
paragraph (e)(7) of this section, by the Secretary or Deputy Secretary
of Defense, by the Secretaries or Under Secretaries of the Military
Departments, by the senior official designated by each Secretary under
5.3(a) of E.O. 12356, or by an official with original Top Secret
classification authority.
(7) The Secretary of Defense and the Secretaries of the Military
Departments may reclassify information previously declassified and
disclosed, and they may classify unclassified information that has been
disclosed, if they determine in writing that the information requires
protection in the interest of national security and the information may
reasonably be recovered. Any such reclassification or classification
shall be reported to the DUSD(P) for subsequent reporting to the
Director, ISOO.
(f) Classifying Scientific Research Data. Ordinarily, except for
information that meets the definition of Restricted Data, basic
scientific research or its results shall not be classified. However,
classification would be appropriate if the information concerns an
unusually significant scientific breakthrough and there is sound reason
to believe that it is not known or within the state-of-the-art of other
nations, and it supplies the United States with an advantage directly
related to national security.
(g) Classifying Documents. Each document and portion thereof shall
be classified on the basis of the information it contains or reveals.
The fact that a document makes reference to a classified document is not
a basis for classification unless the reference citation, standing
alone, reveals classified information. The overall classification of a
document or group of physically-connected documents shall be at least as
high as that of the most highly classified component. The subject or
title of a classified document normally should be unclassified. When
the information revealed by a subject or title warrants classification,
an unclassified short title should be added for reference purposes.
(h) Classifying Material Other Than Documents. (1) Items of
equipment or other physical objects shall be classified only when
classified information may be derived from them by visual observation of
their internal or external appearance or structure, or by their
operation, test, application, or use. The overall classification
assigned to end items of equipment or objects shall be at least as high
as the highest classification of any of its integrated parts.
(2) If mere knowledge of the existence of the item of equipment or
object would compromise or nullify its national security advantage, its
existence would warrant classification.
(i) State of the Art and Intelligence. Classification requires
consideration of the information available from intelligence sources
concerning the extent to which the same or similar information is known
or is available to others. It is also important to consider whether it
is known, publicly or internationally, that the United States has the
information or even is interested in the subject matter. The
state-of-the-art in other nations may often be a vital consideration.
(j) Effect of Open Publication. Classified information shall not be
declassified automatically as a result of any unofficial publication or
inadvertent or unauthorized disclosure in the United States or abroad of
identical or similar information. Appearance in the public domain of
information currently classified or being considered for classification
does not preclude initial or continued classification. However, such
disclosures require immediate determination of the degree of damage to
the national security and reevaluation of the information to determine
whether the publication has so compromised the information that
downgrading or declassification is warranted. Similar consideration
must be given to related items of information in all programs, projects,
or items incorporating or pertaining to the compromised items of
information. Holders should continue classification until advised to
the contrary by a competent government authority.
(k) Reevaluation of Classification Because of Compromise. Classified
information, and information related thereto, that has been lost or
possibly compromised, shall be reevaluated and acted upon as follows:
(1) The original classifying authority, upon learning that a loss or
possible compromise of specific classified information has occurred,
shall prepare a written damage assessment and;
(i) Reevaluate the information involved and determine whether (A) Its
classification should be continued without change; (B) The specific
information, or parts therof, should be modified to minimize or nullify
the effects of the reported compromise and the classification retained;
(C) Declassification, downgrading, or upgrading is warranted; and (D)
Counter-measures are appropriate and feasible to negate or minimize the
effect of the compromise.
(ii) Give prompt notice to all holders of such information when the
determination is within categories (A), (C), or (D) of paragraph
(k)(1)(i) of this section.
(2) Upon learning that a compromise or probable compromise has
occurred, any official having original classification jurisdiction over
related information shall reevaluate the related information and
determine whether one of the courses of action enumerated in paragraph
(k)(1)(i) of this section should be taken or, instead, whether upgrading
of the related information is warranted. When such a determination is
within categories (B), (C), or (D) of paragraph (k)(1)(i) of this
section, that upgrading of the related items is warranted, prompt notice
of the determination shall be given to all holders of the related
information.
(l) Compilation of Information. Certain information that would
otherwise be unclassified may require classification when combined or
associated with other unclassified information. However, a compilation
of unclassified items of information should normally not be classified.
In unusual circumstances, classification may be required if the
combination of unclassified items of information provides an added
factor that warrants classification under paragraph (c) of this section.
Classification on this basis shall be fully supported by a written
explanation that will be provided with the material so classified.
(m) Extracts of Information. Information extracted from a classified
source shall be derivatively classified or not classified in accordance
with the classification markings shown in the source. The overall and
internal markings of the source should supply adequate classification
guidance. If internal markings or classification guidance are not found
in the source, and no reference is made to an applicable and available
classification guide, the extracted information shall be classified
according either to the overall marking of the source, or guidance
obtained from the classifier of the source material.
32 CFR 159a.16 Duration of original classification.
(a) General. When a determination is made by an official with
authority to classify originally information as Top Secret, Secret, or
Confidential, such official must also determine how long the
classification shall remain in effect.
(b) Duration of Classification. (1) Information shall be classified
as long as required by national security considerations.
(2) When it can be determined, a specific date or event for
declassification shall be set by the original classification authority
at the time the information is classified originally. Such dates or
events shall be consistent with national security. Any event specified
for declassification shall be an event certain to occur.
(3) Original classification authorities may not be able to
predetermine a date or event for automatic declassification in which
case they shall provide for the indefinite duration of classification.
(4) Information classified under predecessor orders and marked for
declassification review shall remain classified until reviewed for
declassification under the provisions of this part.
(c) Subsequent Extension of Duration of Classification. The duration
of classification specified at the time of original classification may
be extended only by officials with requisite original classification
authority and only if all known holders of the information can be
notified of such action before the date or event previously set for
declassification. Any decision to continue classification of
information designated for automatic declassification under E.O. 12065
or predecessor orders, other than on a document-by-document basis, shall
be reported to the DUSD(P) who shall, in turn, report to the Director,
ISOO.
32 CFR 159a.17 Classification guides.
(a) General. (1) A classification guide shall be issued for each
classified system, program, plan, or project as soon as practicable
before the initial funding or implementation of the system, program,
plan or project. Successive operating echelons shall prescribe more
detailed supplemental guides that are considered essential to assure
accurate and consistent classification. In preparing classification
guides, originators shall review DoD 5200.1-H /5/ .
(2) Classification guides shall:
(i) Identify the information elements to be protected, using
categorization to the extent necessary to ensure that the information
involved can be identified readily and uniformly;
(ii) State which the classification designations (that is, Top
Secret, Secret, or Confidential) applies to each element or category of
information;
(iii) State declassification instructions for each element or
category of information in terms of a period of time, the occurrence of
an event, or a notation that the information shall not be declassified
automatically without approval of the originating agency; and
(iv) State any special public release procedures and foreign
disclosure considerations.
(3) Each classification guide shall be approved personally and in
writing by an official who:
(i) Has program or supervisory responsibility over the information or
is the senior agency official designated by the Secretary of Defense or
Secretaries of the Military Departments in accordance with 5.3(a) of
E.O. 12356; and
(ii) Is authorized to classify information originally at the highest
level of classification prescribed in the guide.
(b) Multiservice Interest. For each classified system, program,
project, plan, or item involving more than one DoD Component, a
classification guide shall be issued by: (1) The element in the Office
of the Secretary of Defense that assumes or is expressly designated to
exercise overall cognizance over it; or (2) The DoD Component that is
expressly designated to serve as the executive or administrative agent
for the particular effort. When there is doubt which Component has
cognizance of the information involved, the matter shall be referred to
the DUSD(P) for resolution.
(c) Research, Development, Test, and Evaluation. A program security
classification guide shall be developed for each system and equipment
development program that involves research, development, test, and
evaluation (RDT&E) of classified technical information. For each such
program covered by an approved Decision Coordinating Paper (DCP) or
Program Objective Memorandum (POM), initial basic classification
guidance applicable to technical characteristics of the system or
equipment shall be developed and submitted with the proposed DCP or POM
to the Director, Defense Research and Engineering for approval. A
detailed classification guide shall be developed and issued as near in
time as possible to the approval of the DCP or POM.
(d) Project Phases. Whenever possible, classification guides shall
cover specifically each phase of transition, that is, RDT&E,
procurement, production, service use, and obsolescence, with changes in
assigned classifications to reflect the changing sensitivity of the
information involved.
(e) Review of Classification Guides. (1) Classification guides shall
be reviewed by the originator for currency and accuracy not less than
once every 2 years. Changes shall be issued promptly. If no changes
are made, the originator shall so annotate the record copy and show the
date of the review.
(2) Classification guides issued before August 1, 1982, that are in
current use must be updated to meet the requirements of paragraph (a)(2)
of this section. Such updating shall be accomplished by the next
biennial review. Converting previous declassification determinations
directed by classification guides shall be accomplished in accordance
with the following:
(i) Automatic declassification dates or events remain in force unless
changed by competent authority in accordance with 159a.16(c).
(ii) Dates for declassification review shall be changed to automatic
declassification dates or provide for the indefinite duration of
classification.
(f) Distribution of Classification Guides. (1) A copy of each
approved classification guide and changes thereto other than those
covering SCI or a Special Access Program and which discloses information
that require special access, shall be sent to the Director of Freedom of
Information and Security Review, Office of the Assistant Secretary of
Defense (Public Affairs), and to the Director of Security Plans and
Programs, ODUSD(P). A copy of each approved classification guide
covering SCI shall be submitted to and maintained by the Senior
Intelligence Officer who has security cognizance over the issuing
activity.
(2) Two copies of each approved classification guide and its changes
shall be sent by the originator to the Administrator, Defense Technical
Information Center (DTIC), Defense Logistic Agency, unless such guide is
classified Top Secret, or covers SCI, or is determined by the approval
authority of the guide to be too sensitive for automatic secondary
distribution to DoD Components, such as a Special Access Program guide
revealing the nature of the Program. Each classification guide
forwarded to DTIC must bear distribution statement B, C, D, E, F, or X
from DoD Directive 5230.24 /6/ on its front cover or first page if there
is no cover.
(g) Index of Security Classification Guides. (1) All security
classification guides, except as provided in paragraph (g)(2) of this
section, issued under this part shall be listed in DoD 5200.1-I /7/ , on
the basis of information provided on DD Form 2024, ''DoD Security
Classification Guide Data Elements.'' The originator of each guide shall
execute DD Form 2024 when the guide is approved, changed, revised,
reissued, or canceled, and when its biennial review is accomplished.
The original copy of each executed DD Form 2024 shall be forwarded to
the Director of Security Plans and Programs, ODUSD(P) who will maintain
the Index. Report Control Symbol DD-POL (B&AR)1418 applies to this
information collection system.
(2) Any classification guide that because of classification
considerations is not listed in accordance with paragraph (g)(1) of this
section, shall be reported by the originator to the Director of Security
Plans and Programs, ODUSD(P). The report shall include the title of the
guide, its date, the classification of the guide, and identification of
the originating activity. A separate classified list of such guides
will be maintained. Report Control Symbol DD-POL(B&AR)1418 applies to
this information collection system.
/5/ See footnote 2 to 159a.3.
/6/ See footnote 1 to 159a.3.
/7/ Controlled distribution.
32 CFR 159a.18 Resolution of conflicts.
(a) General. When two or more offices, headquarters, or activities
disagree concerning a classification, declassification, or regrading
action, the disagreement must be resolved promptly.
(b) Procedures. If agreement cannot be reached by informal
consultation, the matter shall be referred for decision to the lowest
superior common to the disagreeing parties. If agreement cannot be
reached at the major command (or equivalent) level, the matter shall be
referred for decision to the headquarters office having overall
classification management responsibilities for the Component. That
office shall also be advised of any disagreement at any echelon if
prompt resolution is not likely to occur.
(c) Final Decision. Disagreements between DoD Component
headquarters, if not resolved promptly, shall be referred for final
resolution to the ODUSD(P).
(d) Timing. Action under this section at each level of consideration
shall be completed within 30 days. Failure to reach a decision within
30 days shall be cause for referral to the next level for consideration.
32 CFR 159a.19 Obtaining classification evaluations.
Procedures. If a person not authorized to classify originates or
develops information that he or she believes should be safeguarded, he
or she shall:
(a) Safeguard the information in the manner prescribed for the
intended classification.
(b) Mark the information (or cover sheet) with the intended
classification designation prescribed in 159a.11;
(c) Transmit the information under appropriate safeguards to an
appropriate classification authority for evaluation. The transmittal
shall state that the information is tentatively marked to protect it in
transit. If such authority is not readily identifiable, the information
should be forwarded to a headquarters activity of a DoD Component, to
the headquarters office having overall classification management
responsibilities for a DoD Component, or to the DUSD(P). A
determination whether to classify the information shall be made within
30 days of receipt;
(d) Upon decision by the classifying authority, the tentative marking
shall be removed. If a classification is assigned, appropriate markings
shall be applied; but
(e) In an emergency requiring immediate communication of the
information, after taking the action prescribed by paragraphs (a) and
(b) of this section transmit the information and then proceed in
accordance with paragraph (c) of this section.
32 CFR 159a.20 Information developed by private sources.
(a) General. There are some circumstances in which information not
meeting the definition in 159a.9(f) may warrant protection in the
interest of national security.
(b) Patent Secrecy Act. The Patent Secrecy Act of 1952 provides that
the Secretary of Defense, among others, may determine that disclosure of
an invention by granting of a patent would be detrimental to national
security. See DoD Directive 5535.2 /8/ . A patent application on which
a secrecy order has been imposed shall be handled as follows within the
Department of Defense:
(1) If the patent application contains information that warrants
classification, it shall be assigned a classification and be marked and
safeguarded accordingly.
(2) If the patent application does not contain information that
warrants classification, the following procedures shall be followed:
(i) A cover sheet (or cover letter for transmittal) shall be placed
on the application with substantially the following language:
The attached material contains information on which secrecy orders
have been issued by the U.S. Patent Office after determination that
disclosure would be detrimental to national security (Patent Secrecy Act
of 1952, 35 U.S.C. 181-188). Its transmission or revelation in any
manner to an unauthorized person is prohibited by law. Handle as though
classified CONFIDENTIAL (or such other classification as would have been
assigned had the patent application been within the definition provided
in 159a.9(f)).
(ii) The information shall be withheld from public release; its
dissemination within the Department of Defense shall be controlled; the
applicant shall be instructed not to disclose it to any unauthorized
person; and the patent application (or other document incorporating the
protected information) shall be safeguarded in the manner prescribed for
equivalent classified material.
(3) If filing of a patent application with a foreign government is
approved under provisions of the Patent Secrecy Act of 1952 and
agreements on interchange of patent information for defense purposes,
the copies of the patent application prepared for foreign registration
(but only those copies) shall be marked at the bottom of each page as
follows:
Withheld under the Patent Secrecy Act of 1952 (35 U.S.C. 181-188).
Handle as CONFIDENTIAL (or such other level as has been determined).
(c) Independent Research and Development. (1) Information in a
document or material that is a product of government-sponsored
independent research and development conducted without access to
classified information may not be classified unless the government first
acquires a proprietary interest in such product.
(2) If no prior access was given but the person or company conducting
the independent research or development believes that protection may be
warranted in the interest of national security, the person or company
should safeguard the information in accordance with 159a.19 and submit
it to an appropriate DoD element for evaluation. The DoD element
receiving such a request for evaluation shall make or obtain a
determination whether a classification would be assigned if it were
government information. If the determination is negative, the
originator shall be advised that the information is unclassified. If
the determination is affirmative, the DoD element shall make or obtain a
determination whether a proprietary interest in the research and
development will be acquired. If so, the information shall be assigned
proper classification. If not, the originator shall be informed that
there is no basis for classification and the tentative classification
shall be canceled.
(d) Other Private Information. The procedure specified in 159a.19
shall apply in any case not specified in paragraph (c) of this section,
such as an unsolicited contract bid, in which private information is
submitted to a DoD element for a determination of classification.
/8/ See footnote 1 to 159a.3.
32 CFR 159a.21 Regrading.
(a) Raising to a Higher Level of Classification. The upgrading of
classified information to a higher level than previously determined by
officials with appropriate classification authority and jurisdiction
over the subject matter is permitted only when all known holders of the
information:
(1) Can be notified promptly of such action, and
(2) Are authorized access to the higher level of classification, or
the information can be retrieved from those not authorized access to
information at the contemplated higher level of classification.
(b) Classification of Information Previously Determined to be
Unclassified. Unclassified information, once communicated as such, may
be classified only when the classifying authority:
(1) Makes the determination required for upgrading in paragraph (a)
of this section;
(2) Determines that control of the information has not been lost by
such communication and can still be prevented from being lost; and
(3) In the case of information released to secondary distribution
centers, such as the DTIC, determines that no secondary distribution has
been made and can still be prevented (see also 159a.15(e) (6) and (7)).
(c) Notification. All known holders of information that has been
upgraded shall be notified promptly of the upgrading action.
(d) Downgrading. When it will serve a useful purpose, original
classification authorities may, at the time of original classification,
specify that downgrading of the assigned classification will occur on a
specified date or upon the occurrence of a stated event.
32 CFR 159a.22 Industrial operations.
(a) Classification in Industrial Operations. Classification of
information in private industrial operations shall be based only on
guidance furnished by the government. Industrial management may not
make original classification determinations and shall implement the
classification decisions of the U.S. Government contracting authority.
(b) Contract Security Classification Specification. DD Form 254,
''Contract Security Classification Specification,'' shall be used to
convey contractual security classification guidance to industrial
management. DD Forms 254 shall be changed by the originator to reflect
changes in classification guidance and reviewed for currency and
accuracy not less than once every 2 years. Changes shall conform with
this part and DoD 5220.22-R and DoD 5220.22-M and shall be provided to
all holders of the DD Form 254 as soon as possible. When no changes are
made as a result of the biennial review, the originator shall so notify
all holders of the DD Form 254 in writing.
32 CFR 159a.22 Subpart D -- Declassification and Downgrading
32 CFR 159a.24 General provisions.
(a) Policy. Information classified under E.O. 12356 and prior orders
shall be declassified or downgraded as soon as national security
considerations permit. Decisions concerning declassification shall be
based on the loss of sensitivity of the information with the passage of
time or on the occurrence of an event that permits declassification.
Information that continues to meet the classification requirements of
159a.15(c) despite the passage of time will continue to be protected in
accordance with this part.
(b) Responsibility of Officials. Officials authorized under
159a.12(c) to declassify or downgrade information that is under the
final classification jurisdiction of the Department of Defense shall
take such action in accordance with this subpart.
(c) Declassification Coordination. DoD Component declassification
review of classified information shall be coordinated with any other DoD
or non-DoD office, Component, or agency that has a direct interest in
the subject matter.
(d) Declassification by the Director of the ISOO. If the Director of
the ISOO determines that information is classified in violation of E.O.
12356, the Director may require the activity that originally classified
the information to declassify it. Any such decision by the Director may
be appealed through the Director of Security Plans and Programs,
ODUSD(P), to the National Security Council (NSC). The information shall
remain classified pending a prompt decision on the appeal.
32 CFR 159a.25 Systematic review.
(a) Assistance to the Archivist of the United States. The Secretary
of Defense and the Secretaries of the Military Departments shall
designate experienced personnel to assist the Archivist of the United
States in the systematic review of classified information. Such
personnel shall:
(1) Provide guidance and assistance to National Archives and Records
Administration (NARA) employees in identifying and separating documents
and specific categories of information within documents that are deemed
to require continued classification; and
(2) Refer doubtful cases to the DoD Component having classification
jurisdiction over the information or material for resolution.
(b) Systematic Review Guidelines. The Director of Security Plans and
Programs, ODUSD(P), in coordination with DoD Components, shall review,
evaluate, and recommend revisions of DoD Directive 5200.30 /9/ at least
every 5 years.
(c) Systematic Review Procedures. (1) Except as noted in this
subsection, classified information transferred to the NARA that is
permanently valuable will be reviewed systematically for
declassification by the Archivist of the United States with the
assistance of the DoD personnel designated for that purpose under
paragraph (a) of this section as it becomes 30 years old. Information
concerning intelligence (including special activities), sources, or
methods created after 1945, and information concerning cryptology
created after 1945, accessioned into the NARA will be reviewed
systematically as it becomes 50 years old. Such information shall be
downgraded or declassified by the Archivist of the United States under
E.O. 12356, the directives of the ISOO, and DoD Directive 5200.30.
(2) All DoD classified information that is permanently valuable and
in the possession or control of DoD Components, including that held in
Federal Records Centers or other storage areas, may be reviewed
systematically for declassification by the DoD Component exercising
control of such information. Systematic declassification review
conducted by DoD Components and personnel designated under paragraph (a)
of this section shall proceed as follows:
(i) Information over which the Department of Defense exercises
exclusive or final original classification authority and that under DoD
Directive 5200.30, the responsible reviewer determines is to be
declassified, shall be marked accordingly.
(ii) Information over which the Department of Defense exercises
exclusive or final original classification authority that, after review,
is determined to warrant continued protection shall remain classified as
long as required by national security considerations.
(3) Classified information over which the Department of Defense does
not exercise exclusive or final original classification authority
encountered during DoD systematic review may not be declassified unless
specifically authorized by the agency having classification jurisdiction
over it.
(d) Systematic Review of Classified Cryptologic Information.
Notwithstanding any other provision of this part, systematic review and
declassification of classified cryptologic information shall be
conducted in accordance with special procedures developed in
consultation with affected agencies by the Director, National Security
Agency/Chief, Central Security Service, and approved by the Secretary of
Defense under E.O. 12356 and DoD Directive 5200.30.
(e) Systematic Review of Intelligence Information. Systematic review
for declassification of classified information pertaining to
intelligence activities (including special activities), or intelligence
sources or methods shall be in accordance with special procedures to be
established by the Director of Central Intelligence after consultation
with affected agencies.
/9/ See footnote 1 to 159a.3.
32 CFR 159a.26 Mandatory declassification review.
(a) Information Covered. Upon request by a U.S. citizen or permanent
resident alien, a Federal agency, or a State or local government to
declassify and release such information, any classified information
(except as provided in paragraph (b) of this section) shall be subject
to review by the originating or responsible DoD Component for
declassification in accordance with this section.
(b) Presidential Information. Information originated by a President,
the White House staff, committees, commissions, or boards appointed by
the President, or others specifically providing advice and counsel to a
President or acting on behalf of a President is exempt from the
provisions of this section.
(c) Cryptologic Information. Requests for the declassification
review of cryptologic information shall be processed in accordance with
the provisions of DoD Directive 5200.30.
(d) Submission of Requests for Mandatory Declassification Review.
Requests for mandatory review of DoD classified information shall be
submitted as follows:
(1) Requests shall be in writing and reasonably describe the
information sought with sufficient particularity to enable the Component
to identify documents containing that information, and be reasonable in
scope; for example, the request does not involve such a large number or
variety of documents as to leave uncertain the identity of the
particular information sought.
(2) Requests shall be submitted to the Office of the Assistant
Secretary of Defense (Public Affairs) (ASD(PA)) (entry point for OSD
records), the Military Department, or other Component most concerned
with the subject matter that is designated under 32 CFR Part 285 to
receive requests for records under the Freedom of Information Act.
These offices are identified in appropriate Parts of Title 32 of the
Code of Federal Regulations for each DoD Component.
(e) Requirements for Processing. Unless otherwise directed by the
ASD(PA), requests for mandatory review shall be processed as follows:
(1) The designated office shall acknowledge receipt of the request.
When a request does not satisfy the conditions of paragraph (d)(1) of
this section, the requester shall be notified that unless additional
information is provided or the scope of the request narrowed, no further
action will be undertaken.
(2) DoD Component action upon the initial request shall be completed
within 60 days (45 working days). If no determination has been made
within 60 days (45 working days) of receipt of the request, the
requester shall be notified of his right to appeal and of the procedures
for making such an appeal.
(3) The designated office shall determine whether, under the
declassification provisions of this part, the requested information may
be declassified, and, if so, make such information available to the
requester, unless withholding is otherwise warranted under applicable
law. If the information may not be released in whole or in part, the
requester shall be given a brief statement as to the reasons for denial,
notice of the right to appeal the determination within 60 days (45
working days) to a designated appellate authority (including name,
title, and address of such authority), and the procedures for such an
appeal.
(4) When a request is received for information classified by another
DoD Component or an agency outside the Department of Defense, the
designated office shall:
(i) Forward the request to such DoD Component or outside agency for
review together with a copy of the document containing the information
requested, when practicable and when appropriate, with its
recommendation to withhold any of the information;
(ii) Notify the requester of the referral unless the DoD Component or
outside agency to which the request is referred objects to such notice
on grounds that its association with the information requires
protection; and
(iii) Request, when appropriate, that the DoD Component or outside
agency notify the referring office of its determination.
(5) If the request requires the rendering of services for which fees
may be charged under Title 5 of the Independent Offices Appropriation
Act in accordance with DoD Instruction 7230.7 /1/ /0/ the DoD Component
may calculate the anticipated amount of fees to be charged and ascertain
the requester's willingness to pay the allowable charges as a
precondition to taking further action upon the request.
(6) A requester may appeal to the head of a DoD Component or designee
whenever that DoD Component has not acted on an initial request within
60 days or the requester has been notified that requested information
may not be released in whole or in part. Within 30 days after receipt,
an appellate authority shall determine whether continued classification
of the requested information is required in whole or in part, notify the
requester of its determination, and make available to the requester any
information determined to be releasable. If continued classification is
required under this part, the requester shall be notified of the reasons
therefor. If so requested, an appellate authority shall communicate its
determination to any referring DoD Component or outside agency.
(7) The ASD(PA) shall act as appellate authority for all appeals
regarding OSD, OJCS, and Unified Command records.
(f) Foreign Government Information. Requests for mandatory review
for the declassification of foreign government information shall be
processed and acted upon under the provisions of this section subject to
159a.76(c).
(g) Prohibition. No DoD Component in possession of a document shall
in response to a request under the Freedom of Information Act or this
section refuse to confirm the existence or nonexistence of the document,
unless the fact of its existence or nonexistence would itself be
classifiable under this part.
(h) Restricted Data and Formerly Restricted Data. Any proposed
action on a request, including requests from Presidential libraries, for
DoD classified documents that are marked ''Restricted Data'' or
''Formerly Restricted Data'' must be coordinated with the Department of
Energy.
/1/ /0/ See footnote 1 to 159a.3
32 CFR 159a.27 Declassification of transferred documents or material.
(a) Material Officially Transferred. In the case of classified
information or material transferred under statute, E.O., or directive
from one department or agency or DoD Component to another in conjunction
with a transfer of functions, as distinguished from transfers merely for
purposes of storage, the receiving department, agency, or DoD Component
shall be deemed to be the original classifying authority over such
material for purposes of downgrading and declassification.
(b) Material Not Officially Transferred. When a DoD Component has in
its possession classified information or material originated in an
agency outside the Department of Defense that has ceased to exist and
such information or material has not been transferred to another
department or agency within the meaning of paragraph (a) of this
section, or when it is impossible to identify the originating agency,
the DoD Component shall be deemed to be the originating agency for the
purpose of declassifying or downgrading such information or material.
If it appears probable that another department, agency, or DoD Component
may have a substantial interest in the classification of such
information, the DoD Component deemed to be the originating agency shall
notify such other department, agency, or DoD Component of the nature of
the information or material and any intention to downgrade or declassify
it. Until 60 days after notification, the DoD Component shall not
declassify or downgrade such information or material without consulting
the other department, agency, or DoD Component. During this period, the
other department, agency, or DoD Component may express objections to
downgrading or declassifying such information or material.
(c) Transfer for Storage or Retirement. Whenever practicable,
classified documents shall be reviewed for downgrading or
declassification before they are forwarded to a Records Center for
storage or to the NARA for permanent preservation. Any downgrading or
declassification determination shall be indicated on each document by
markings as required by Subpart E of this part.
32 CFR 159a.28 Downgrading.
(a) Automatic Downgrading. Classified information marked for
automatic downgrading in accordance with this or prior regulations or
E.Os. is downgraded accordingly without notification to holders.
(b) Downgrading Upon Reconsideration. Classified information not
marked for automatic downgrading may be assigned a lower classification
designation by the originator or by an official authorized to declassify
the same information. Prompt notice of such downgrading shall be
provided to known holders of the information.
32 CFR 159a.29 Miscellaneous.
(a) Notification of Changes in Declassification. When clasified
material has been properly marked with specific dates or events for
declassification, it is not necessary to issue notices of
declassification to any holders. However, when declassification action
is taken earlier than originally scheduled, or the duration of
classification is extended, the authority making such changes shall
ensure prompt notification of all holders to whom the information was
originally transmitted. The notification shall specify the marking
action to be taken, the authority therefor, and the effective date.
Upon receipt of notification, recipients shall effect the proper changes
and shall notify holders to whom they have transmitted the classified
information. See 159a.34 (a) and (e) for markings and the use of
posted notices.
(b) Foreign Relations Series. In order to permit the State
Department editors of Foriegn Relations of the United States to meet
their mandated goal of publishing twenty years after the event, DoD
Components shall assist the editors in the Department of State by easing
access to appropriate classified materials in their custody and by
expediting declassification review of items from their files selected
for possible publication.
(c) Reproduction for Declassification Review. The provisions of
159a.55(f) shall not restrict the reproduction of documents for the
purpose of facilitating declassification review under the provisions of
this subpart or the Freedom of Information Act, as amended. After
review for declassification, however, those reproduced documents that
remain classified must be destroyed in accordance with Subpart J of this
part.
32 CFR 159a.29 Subpart E -- Marking
32 CFR 159a.31 General provisions.
(a) Designation. Subject to the exceptions in paragraph (c) of this
section, information determined to require classification protection
under this part shall be so designated. Designation by means other than
physical marking may be used but shall be followed by physical marking
as soon as possible.
(b) Purpose of Designation. Designation by physical marking,
notation, or other means serves to warn the holder about the
classification of the information involved; to indicate the degree of
protection against unauthorized disclosure that is required for that
particular level of classification; and to facilitate downgrading and
declassification actions.
(c) Exceptions. (1) No article that has appeared, in whole or in
part, in newspapers, magazines or elsewhere in the public domain, or any
copy thereof, that is being reviewed and evaluated to compare its
content with classified information that is being safeguarded in the
Department of Defense by security classification, may be marked with any
security classification, control or other kind of restrictive marking.
The results of the review and evaluation, if classified, shall be
separate from the article in question.
(2) Classified documents and material shall be marked in accordance
with paragraph (d) of this section unless the markings themselves would
reveal a confidential source or relationship not otherwise evident in
the document, material, or information.
(3) The marking requirements of paragraph (d) (1)(iv) and (2)(iv) of
this section do not apply to documents or other material that contain,
in whole or in part, Restricted Data or Formerly Restricted Data
information. Such documents or other material or portions thereof shall
not be declassified without approval of the Department of Energy with
respect to Restricted Data or Formerly Restricted Data information, and
with respect to any other national security information contained
therein, the approval of the originating agency.
(d) Documents or Other Material in General. (1) At the time of
original classification, the following shall be shown on the face of all
originally classified documents or clearly associated with other forms
of classified information in a manner appropriate to the medium
involved:
(i) The identity of the original classification authority by position
title, unless he or she is the signer or approver of the document;
(ii) The agency and office of origin;
(iii) The overall classification of the document;
(iv) The date or event for automatic declassification or the notation
''Originating Agency's Determination Required'' or ''OADR''; and, if
applicable,
(v) Any downgrading action to be taken and the date or event thereof.
(2) At the time of derivative classification, the following shall be
shown on the face of all derivatively classified documents or clearly
associated with other forms of classified information in a manner
appropriate to the medium involved:
(i) The source of classification, that is, a source document or
classification guide. If classification is derived from more than one
source, the phrase ''Multiple Sources'' will be shown and the
identification of each source will be maintained with the file or record
copy of the document;
(ii) The agency and office of origin of the derivatively classified
document;
(iii) The overall classification of the document;
(iv) The date or event for declassification or the notation
''Originating Agency's Determination Required'' or ''OADR,'' carried
forward from the classification source. If the classification is
derived from multiple sources, either the most remote date or event for
declassification marked on the sources or if required by any source, the
notation ''Originating Agency's Determination Required'' or ''OADR''
shall be shown; and, if applicable,
(v) Any downgrading action to be taken and the date or event thereof.
(3) In addition to the foregoing, classified documents shall be
marked as prescribed in 159a.32, Subpart L of this part, if the
document contains foreign government information, and with any
applicable special notation listed in 159a.35. Such notations shall be
carried forward from source documents to derivatively classified
documents when appropriate. Provides illustrated guidance on the
application of classification and associated markings to documents
prepared by the Department of Defense.
(4) Material other than paper documents shall show the required
information on the material itself or if that is not practical, in
related or accompanying documentation.
(e) Identification of Classification Authority. (1) Identification
of a classification authority shall be shown on the ''Classified by''
line prescribed under 159a.34(c) and shall be sufficient, standing
alone, to identify a particular official, source document or
classification guide.
(i) If all information in a document or material is classified as an
act of original classification, the classification authority who made
the determination shall be identified on the ''Classified by'' line,
unless the classifier is also the signer or approver of the document.
(ii) If the classification of all information in a document or
material is derived from a single source (for example, a source document
or classification guide), the ''Classified by'' line shall identify the
source document or classification guide, including its date when
necessary to insure positive identification.
(iii) If the classification of information contained in a document or
material is derived from more than one original classification
authority, or an original classification authority and another source,
or from more than one source document, classification guide, or
combination thereof, the ''Classified by'' line shall be marked
''Multiple Sources'' and identification of all such authorities and
sources shall be maintained with the file or record copy of the
document.
(iv) If an official with requisite classification authority has been
designated by the head of an activity to approve security
classifications assigned to all information leaving the activity, the
title of that designated official shall be shown on the ''Classified
by'' line. The designated official shall maintain records adequate to
support derivative classification actions.
(2) Guidance concerning the identification of the classification
authority on electronically transmitted messages is contained in
159a.32(h).
(3) Guidance concerning the identification of the classification
authority on DoD documents that contain only foreign or NATO classified
information is contained in 159a.77(d).
(f) Wholly Unclassified Material. Normally, unclassified material
shall not be marked or stamped ''Unclassified'' unless it is essential
to convey to a recipient of such material that it has been examined with
a view to imposing a security classification and that it has been
determined that it does not require classification. However, the
marking ''Unclassified'' may be applied to formerly classified material.
32 CFR 159a.32 Specific markings on documents.
(a) Overall and Page Marking. Except as otherwise specified for
working papers, the overall classification of a document, whether or not
permanently bound, or any copy or reproduction thereof, shall be
conspicuously marked, stamped or affixed permanently at the top and
bottom on the outside of the front cover (if any), on the title page (if
any), on the first page, and on the outside of the back cover (if any).
Each interior page, except those that are blank, shall be marked top and
bottom according to its content, to include ''Unclassified'' when no
classified information is contained on such a page. Alternatively, the
overall classification of the document may be conspicuously marked or
stamped at the top and bottom of each interior page when such marking is
necessary to achieve production efficiency and the particular
information to which classification is assigned is otherwise
sufficiently identified consistent with the intent of paragraph (c) of
159a.32. In any case, the classification marking of a page shall not
supplant the classification marking of portions paragraph (c) of this
section of the page marked with lower levels of classification.
(b) Marking Components. The major components of some complex
documents are likely to be used separately. In such instances, each
major component shall be marked as a separate document in accordance
with 159a.31. Examples include each annex, appendix, or similar
component of a plan, program, or operations order; attachments and
appendices to a memorandum or letter; and each major part of a report.
If an entire major component is unclassified, the first page of the
component may be marked at the top and bottom with the designation
''UNCLASSIFIED'' and a statement included, such as, ''All portions of
this (annex, appendix, etc.) are UNCLASSIFIED.'' When this method of
marking is used, no further markings are required on the unclassified
major component.
(c) Portion Marking. (1) Each section, part, paragraph, or similar
portion of a classified document shall be marked to show the level of
classification of the information contained in or revealed by it, or
that it is unclassified. Portions of documents shall be marked in a
manner that eliminates doubt as to which of its portions contains or
reveals classified information. Classification levels of portions of a
document, except as provided in paragraph (e) of this section, shall be
shown by the appropriate classification symbol placed immediately
following the portion's letter or number, or in the absence of letters
or numbers, immediately before the beginning of the portion. In marking
sections, parts, paragraphs, or similar portions, the parenthetical
symbols ''(TS)'' for Top Secret, ''(S)'' for Secret, ''(C)'' for
Confidential, and ''(U)'' for unclassified, shall be used. When
appropriate, the symbols ''RD'' for Restricted Data and ''FRD'' for
Formerly Restricted Data shall be added, for example, ''(S-RD)'' or
''(C-FRD).'' In addition, portions that contain Critical Nuclear Weapon
Design Information (CNWDI) will be marked ''(N)'' following the
classification, for example, ''(S-RD)(N).''
(2) Portion marking of DoD documents containing foreign government
information shall be in accordance with 159a.77(d).
(3) Illustrations, photographs, figures, graphs, drawings, charts and
similar portions of classified documents will be clearly marked to show
their classification or unclassified status. Such markings shall not be
abbreviated and shall be prominent and placed within or contiguous to
the portion. Captions of such portions shall be marked on the basis of
their content alone by placing the symbol ''(TS),'' ''(S),'' ''(C),'' or
''(U)'' immediately preceding the caption.
(4) If, in an exceptional situation, parenthetical portion marking is
determined to be impracticable, the document shall contain a statement
sufficient to identify the information that is classified and the level
of such classification. Thus, for example, each portion of a classified
document need not be marked separately if all portions are classified at
the same level, provided a statement to that effect is included in the
document. In the case of classified compilations, the explanations
required by paragraph (d) of this section meet this requirement.
(5) When elements of information in one portion require different
classifications, but segregation into separate portions would destroy
continuity or context, the highest classification required for any item
shall be applied to that portion or paragraph.
(6) Waivers of the foregoing portion marking requirements may be
granted for good cause. Any request by a DoD Component senior official
for a waiver of portion marking requirements shall be submitted to the
DUSD(P) and include the following:
(i) Identification of the information or class of documents for which
such waiver is sought;
(ii) Detailed explanation of why the waiver should be granted;
(iii) The Component's judgment of the anticipated dissemination of
the information or class of documents for which the waiver is sought,
and
(iv) The extent to which such information subject to the waiver may
be a basis for derivative classification. Waivers shall be granted only
upon a written determination by the DUSD(P) as the designee of the
Secretary of Defense, that there will be minimal circulation of the
specified documents or information, and minimal potential usage of these
documents or information as a source for derivative classification
determinations; or there is some other basis to conclude that the
benefits of portion marking are clearly outweighed by the increased
administrative burdens. The granting and revocation of portion marking
waivers shall be reported to the Director of the ISOO by the DUSD(P).
(d) Compilations -- (1) Documents. When classification is required
to protect a compilation of unclassified information pursuant to
159a.15(1), the overall classification assigned to such documents shall
be placed conspicuously at the top and bottom of each page and on the
outside of the front and back covers, if any, and an explanation of the
basis for the assigned classification shall be included on the document
or on its text.
(2) Portions of Documents. If a classified document contains
particular portions that are unclassified when standing alone, but
classified information will be revealed when they are combined or
associated, those portions shall be marked as unclassified, the page
shall be marked with the highest classification of any information on or
revealed by the page, and an explanation shall be added to the page, or
to the document, to explain the classification of the combination or
association to the holder. This method of marking also may be used if
classified portions on a page, or within a document, will reveal
information of a higher classification when they are combined or
associated than when they are standing alone.
(e) Subjects and Titles of Documents. Subjects or titles of
classified documents shall be marked with the appropriate symbol,
''(TS),'' ''(S),'' ''(C),'' or ''(U)'' placed immediately following and
to the right of the item. When applicable, other appropriate symbols,
for example, ''(RD)'' or ''(FRD),'' shall be added. (Subjects or titles
of documents should be unclassified, if possible.)
(f) File, Folder, or Group of Documents. When a file, folder, or
group of classified documents is removed from secure storage it shall be
marked conspicuously with the highest classification of any classified
document included therein or shall have an appropriate classified
document cover sheet affixed.
(g) Transmittal Documents. A transmittal document, including
endorsements and comments when such endorsements and comments are added
to the basic communication, shall carry on its face a prominent notation
of the highest classification of the information transmitted by it, and
a legend showing the classification, if any, of the transmittal
document, endorsement, or comment standing alone. For example, an
unclassified document that transmits as an attachment a classified
document shall bear a notation substantially as follows: ''UNCLASSIFIED
WHEN SEPARATED FROM CLASSIFIED ENCLOSURE.''
(h) Electronically Transmitted Messages. (1) The copy of a
classified message (for example, DD Form 173, Joint Messageform)
approved for electronic transmission and maintained as the record copy
shall be marked as required by 159a.31(d) for other documents.
Additionally, copies not electronically transmitted (such as, mail and
courier copies) shall be marked as required by 159a.31(d).
(2) The first item of information in the text of a classified
electronically transmitted message shall be its overall classification.
Paper copies of classified electronically transmitted messages shall be
marked at the top and bottom with the assigned classification. Portions
shall be marked as prescribed herein for paper copies of documents.
When such messages are printed by an automated system, classification
markings may be applied by that system, provided that page markings so
applied are clearly distinguishable on the face of the document from the
printed text.
(3) The originator of a classified electronically transmitted message
shall be considered the accountable classifier under 159a.15(a). The
highest level official identified on the message as the sender or, in
the absence of such identification, the head of the organization
originating the message, is deemed to be the classifier of the message.
Thus, a ''Classified by'' line is not required on such messages. The
originator is responsible for maintaining adequate records as required
by 159a.31(d)(2) to show the source of an assigned derivative
classification.
(4) The last line of text of a classified electronically transmitted
message shall show the date or event for downgrading, if appropriate,
and the date or event for automatic declassification or ''Originating
Agency's Determination Required,'' by abbreviated markings from
159a.34. The foregoing is not required for messages that contain
information identified as Restricted Data or Formerly Restricted Data.
(5) Any document, the classification of which is based solely upon
the classification of the content of a classified electronically
transmitted message, shall cite the message on the ''Classified by''
line of the newly created document.
(i) Translations. Translations of U.S. classified information into a
language other than English shall be marked to show the United States as
the country of origin, with the appropriate U.S. classification
markings and the foreign language equivalent thereof (see Appendix A to
this part).
32 CFR 159a.33 Markings on special categories of material.
(a) General Provisions. Security classification and applicable
associated markings (see 159a.31(d) and 159a.33(k)) assigned by the
classifier shall be conspicuously stamped, printed, written, painted, or
affixed by means of a tag, sticker, decal, or similar device, on
classified material other than paper copies of documents, and on
containers of such material, if possible. If marking the material or
container is not practicable, written notification of the security
classification and applicable associated markings shall be furnished to
recipients. The following procedures for marking various kinds of
materials containing classified information are not all inclusive and
may be varied to accommodate the physical characteristics of the
material containing the classified information and to accommodate
organizational and operational requirements.
(b) Charts, Maps, and Drawings. Charts, maps, and drawings shall
bear the appropriate classification marking for the legend, title, or
scale blocks in a manner that differentiates between the overall
classification of the document and the classification of the legend or
title itself. The higher of these markings shall be inscribed at the
top and bottom of each such document. When folding or rolling charts,
maps, or drawings would cover the classification markings, additional
markings shall be applied that are clearly visible when the document is
folded or rolled. Applicable associated markings shall be included in
or near the legend, title, or scale blocks.
(c) Photographs, Films, and Recordings. Photographs, films
(including negatives), recordings, and their containers shall be marked
to assure that a recipient or viewer will know that classified
information of a specified level of classification is involved.
(1) Photographs. Negatives and positives shall be marked, whenever
practicable, with the appropriate classification designation and
applicable associated markings. Roll negatives or positives may be so
marked at the beginning and end of each strip. Negatives and positives
shall be kept in containers bearing conspicuous classification markings.
All prints and reproductions shall be conspicuously marked with the
appropriate classification designation and applicable associated
markings on the face side of the print if possible. When such markings
cannot be applied to the face side, they may be stamped on the reverse
side or affixed by pressure tape label, stapled strip, or other
comparable means.
Note: When self-processing film or paper is used to photograph or
reproduce classified information, all parts of the last exposure shall
be removed from the camera and destroyed as classified waste, or the
camera shall be protected as classified.
(2) Transparencies and Slides. Applicable classification markings
shall be shown clearly in the image area of each transparency or slide,
if possible. In the case of a 35mm or a similar size transparency or
slide where the classification markings are not conspicuous unless
projected on a screen, for example, the classification markings also
shall be marked on its border, holder, or frame. Duplicate
classification markings in image areas and on borders, holders, or
frames are required if there is any doubt that the image area markings
are not conspicuous enough to be seen when the transparencies or slides
are not being projected. Other applicable associated markings shall be
shown in the image area, or on the border, holder, or frame, or in
accompanying documention. It is not necessary that each transparency or
slide of a set of transparencies or slides bear applicable associated
markings when the set is controlled as a single document. In such
cases, the first transparency or slide shall bear the applicable
associated markings.
(3) Motion Picture Films and Video Tapes. Classified motion picture
films and video tapes shall be marked at the beginning and end by titles
bearing the appropriate classification markings. Applicable associated
markings shall be included at the beginning of such films or tapes. All
such marking shall be visible when projected. Reels and cassettes shall
be marked with the appropriate classification and kept in containers
bearing conspicuous classification and applicable associated markings.
(4) Recordings. Sound, magnetic, or electronic recordings shall
contain at the beginning and end a clear statement of the assigned
classification that will provide adequate assurance that any listener or
viewer will know that classified information of a specified level is
involved. Recordings shall be kept in containers or on reels that bear
conspicuous classification and applicable associated markings.
(5) Microforms. Microforms are images, usually produced
photographically on transparent or opaque materials, in sizes too small
to be read by the unaided eye. Accordingly, the assigned security
classification and abbreviated applicable associated markings shall be
conspicuously marked on the microform medium or its container, so as to
be readable by the unaided eye. These markings shall also be included
on the image so that when the image is enlarged and displayed or
printed, the markings will be conspicuous and readable. Such marking
will be accomplished as appropriate for the particular microform
involved. For example, roll film microforms (or roll microfilm
employing 16, 35, 70, or 105 mm films) may generally be marked as
provided for roll motion picture film in 159a.33(c)(3) and decks of
''aperture cards'' may be marked as provided in 159a.33(d) for decks of
automatic data processing punched cards. Whenever possible, microfiche,
microfilm strips, and microform chips shall be marked in accordance with
this paragraph.
(d) Decks of ADP Punched Cards. When a deck of classified ADP
punched cards is handled and controlled as a single document, only the
first and last card require classification markings. An additional card
shall be added (or the job control card modified) to identify the
contents of the deck and the highest classification therein. Such
additional card shall include applicable associated markings. Cards
removed for separate processing or use and not immediately returned to
the deck shall be protected to prevent compromise of any classified
information contained therein, and for this purpose shall be marked
individually as prescribed in 159a.32(a).
(e) Removable ADP and Word Processing Storage Media -- (1) External.
Removable information storage media and devices, used with ADP systems
and typewriters or word processing systems, shall bear external markings
clearly indicating the classification of the information and applicable
associated markings. Included are media and devices that store
information recorded in analog or digital form and that are generally
mounted or removed by the users or operators. Examples include magnetic
tape reels, cartridges, and cassettes; removable discs, disc
cartridges, disc packs and diskettes; paper tape reels; and magnetic
cards.
(2) Internal. ADP systems and word processing systems employing such
media shall provide for internal classification marking to assure that
classified information contained therein that is reproduced or
generated, will bear applicable classification and associated markings.
An exception may be made by the DoD Component head, or designee, for the
purpose of exempting existing word processing systems when the internal
classification and applicable associated markings cannot be implemented
without extensive system modification, provided procedures are
established to ensure that users and recipients of the media, or the
information therein, are clearly advised of the applicable
classification and associated markings. For ADP systems, exceptions may
be authorized by the DoD Component Designated Approving Authority or
Authorities, designated under DoD Directive 5200.28. For purposes of
these exemption provisions, ''existing systems'' means word processing
and ADP systems already acquired, or, in the case of associated
automated information systems, those for which the life cycle management
process has already progressed beyond the ''definition/design'' phase as
set forth in DoD Directive 7920.1 /11/ . Requirements for the security
of nonremovable ADP storage media and clearance or declassification
procedures for various ADP storage media are contained in DoD 5200.28-M
/1/ /2/ .
(f) Documents Produced by ADP Equipment. The first page, and the
front and back covers, if any, of documents produced by ADP equipment
shall be marked as prescribed in 159a.32(a). Interior pages also shall
be marked as prescribed in 159a.32(a) except that the classification
markings of interior pages of fan-folded printouts may be applied by the
ADP equipment. When the application of associated markings prescribed
by 159a.31(d) by the ADP equipment is not consistent with economical
and efficient use of such equipment, such markings may be applied to a
document produced by ADP equipment by superimposing upon the first page
of such document a ''Notice of Declassification Instructions and Other
Associated Markings.'' Such notice shall include the date or event for
declassification or the notation ''Originating Agency's Determination
Required'' or ''OADR'' and all other such applicable markings. If
individual pages of a document produced by ADP equipment are removed or
reproduced for distribution to other users, each such page or group of
pages shall be marked as prescribed in 159a.31(d) or by superimposing
upon each such page or group of pages, a copy of any ''Notice of
Declassification Instructions and Other Associated Markings'' applicable
to such page or group of pages.
(g) Material for Training Purposes. In using unclassified documents
or material to simulate classified documents or material for training
purposes, such documents or material shall be marked clearly to indicate
the actual unclassified status of the information, for example,
''(insert classification designation) for training; otherwise
unclassified'' or ''UNCLASSIFIED SAMPLE.''
(h) Miscellaneous Material. Documents and material such as rejected
copy, typewriter ribbons, carbons, and similar items developed in
connection with the handling, processing, production, and of use
classified information shall be handled in a manner that assures
adequate protection of the classified information involved and
destruction at the earliest practicable time (see 159a.32). Unless a
requirement exists to retain this material or documents for a specific
purpose, there is no need to mark, stamp, or otherwise indicate that the
information is classified.
(i) Special Access Program Documents and Material. Additional
markings as prescribed in directives, regulations and instructions
relating to an approved Special Access Program shall be applied to
documents and material containing information subject to the special
access program. Such additional markings shall not serve as the sole
basis for continuing classification of the documents or material to
which the markings have been applied. When appropriate, such markings
shall be excised to ease timely declassification, downgrading, or
removal of the information from special control procedures.
(j) Secure Telecommunications and Information Handling Equipment.
Applicable classification or Controlled Cryptographic Item (CCI)
markings shall be applied to secure telecommunications and information
handling equipment or associated cryptographic components. Safeguarding
and control procedures for classified and CCI equipment and for
safeguarding COMSEC facilities are contained in DoD Instruction 5230.22
/1/ /2/ , National Communications Security Committee (NCSC) Policy
Directive 6, DoD Directive C-5200.5 /1/ /3/ , National
Telecommunications and Information Systems Security Instruction 4001,
and National COMSEC Instruction 4003, 4006, and 4008.
(k) Associated Markings. Other applicable associated markings
required for documents by 159a.31(d) shall be accomplished as
prescribed in this section or in any other appropriate manner.
/1/ /1/ See footnote 1 to 159a.3.
/1/ /2/ See footnote 7 to 159a.16(g)(1)
/1/ /2/ See footnote 1 to 159a.3.
/1/ /3/ Classified document. Not releasable to the public.
32 CFR 159a.34 Classification authority, duration, and change in
classification markings.
(a) Declassification and Regrading Marking Procedures. When
classified information is downgraded or declassified in accordance with
the assigned downgrading or declassification markings, such markings
shall be a sufficient notation of the authority for such action.
Whenever classified information is downgraded or declassified earlier
than originally scheduled, or upgraded, the material shall be marked
promptly and conspicuously to indicate the change, the authority for the
action, the date of the action and the identity of the person taking the
action. In addition, except for upgrading (see paragraph (d) of this
section), prior classification markings shall be canceled, if
practicable, but in any event those on the cover (if any) and first page
shall be canceled, and the new classification markings, if any, shall be
substituted.
(b) Applying Derivative Declassification Dates. (1) New material
that derives its classification from information classified on or after
August 1, 1982, shall be marked with the declassification date, event,
or the notation ''Originating Agency's Determination Required'' or
''OADR'' assigned to the source information.
(2) New material that derives its classification from information
classified prior to August 1, 1982, shall be treated as follows:
(i) If the source material bears a declassification date or event,
that date or event shall be carried forward to the new material;
(ii) If the source material bears no declassification date or event,
or bears an indeterminate date or event such as ''Upon Notification by
Originator,'' ''Cannot Be Determined,'' or ''Impossible to Determine,''
or is marked for declassification review, the new material shall be
marked with the notation ''Originating Agency's Determination Required''
or ''OADR''; or
(iii) If the source material is foreign government information
bearing no date or event for declassification or is marked for
declassification review, the new material shall be marked with the
notation ''Originating Agency's Determination Required'' or ''OADR.''
(3) New material that derives its classification from a
classification guide issued prior to August 1, 1982, that has not been
updated to conform with this Regulation shall be treated as follows:
(i) If the guide specifies a declassification date or event, that
date or event shall be applied to the new material; or
(ii) If the guide specifies a declassification review date, the
notation ''Originating Agency's Determination Required'' or ''OADR''
shall be applied to the new material.
(c) Commonly Used Markings. Each classified document is marked on
its face with one or more of the following markings:
(1) Original Classification. The following markings are used in
original classification 159a.31(d)(1):
Classified by XXXXXXXX (See Note 1)
Declassify on XXXXXXXX (See Note 2)
Message Abbreviation:
DECL XXXXXXXX (See Note 3)
(2) Derivative Classification. The following markings are used in
derivative classification 159a.31(d)(2):
Classified by XXXXXXXX (See Note 4)
Declassify on XXXXXXXX (See Note 5)
Message Abbreviation:
DECL XXXXXXXX (See Note 3)
(3) Downgrading. The following marking is used to specify a
downgrading 159a.31(d) (1) and (2):
Downgrade to XXXX on XXXX (See Note 6)
Message Abbreviation:
DNG/XX/XXXXXX (See Note 7)
Note 1: Insert identification (position title) of the original
classification authority. This line may be omitted if the original
classification authority is also the signer or approver of the document.
Note 2: Insert the specific date, an event certain to occur, or the
notation ''Originating Agency's Determination Required'' or ''OADR.''
Note 3: Insert day, month, and year for declassification, for
example, ''6 Jun 90,'' an event certain to occur, or ''OADR.''
Note 4: Insert identity of the single security classification guide,
source document, or other authority for the classification. If more
than one such source is applicable, insert the phrase ''Multiple
Sources.''
Note 5: Insert the specific date or event for declassification or
the notation ''Originating Agency's Determination Required'' or
''OADR.'' When multiple sources are used, either the most remote date or
event for declassification marked on the sources or, if present on any
source, the notation ''Originating Agency's Determination Required'' or
''OADR'' is applied to the new document.
Note 6: Insert Secret or Confidential and specific date or event,
for example, ''Downgrade to CONFIDENTIAL on 6 July 1988.''
Note 7: Insert ''S'' or ''C'' to indicate the downgraded
classification and specific date or event, for example, ''DNG/C/6 Jun
87.''
(4) There is no requirement for adding declassification instructions
on documents with Restricted Data or Formerly Restricted Data markings
(see 159a.31(b)(3) and 159a.35 (a) and (b)). Except for
electronically transmitted messages, only a completed ''Classified by''
line is added to documents so marked.
(5) Electronically transmitted messages do not require a ''classified
by'' line (See 159a.32(h)(3)).
(6) DoD 5200.1-PH provides additional marking guidance.
(d) Upgrading. When material is upgraded it shall be promptly and
conspicuously marked as prescribed in paragraph (a) of this section
except that in all such cases the old classification markings shall be
canceled and new markings substituted.
(e) Limited Use of Posted Notice for Large Quantities of Material.
(1) When the volume of material is such that prompt remarking of each
classified item cannot be accomplished without unduly interfering with
operations, the custodian may attach downgrading and declassification
notices to the storage unit instead of the remarking required by
paragraph (a) of this section. Each notice shall specify the authority
for the downgrading or declassification action, the date of the action,
and the storage unit to which it applies.
(2) When individual documents or materials are permanently withdrawn
from storage units, they shall be remarked promptly as prescribed by
paragraph (a) of this section. However, when documents or materials
subject to a downgrading or declassification notice are withdrawn from
one storage unit solely for transfer to another, or a storage unit
containing such documents or materials is transferred from one place to
another, the transfer may be made without remarking if the notice is
attached to or remains with each shipment.
32 CFR 159a.35 Additional warning notices.
(a) General Provisions. (1) In addition to the marking requirements
prescribed in 159a.31(d), the warning notices prescribed in this
section shall be displayed prominently on classified documents or
materials, when applicable. In the case of documents, these warning
notices shall be marked conspicuously on the outside of the front cover,
or on the first page if there is no front cover. Transmittal documents,
including those that are unclassified ( 159a.35(g)), also shall bear
these additional warning notices, when applicable. In addition,
abbreviated forms of the notices set forth in 159a.35(a), (b), and (c)
shall be included in portion markings, as applicable. Further, the
warning notice in paragraph (d) of this section, in its short form,
shall be included at least once on interior pages, as applicable.
(2) When display of warning notices on other materials is not
possible, their applicability to the information shall be included in
the written notification of the assigned classification.
(b) Restricted Data. Classified documents or material containing
Restricted Data as defined in the Atomic Energy Act of 1954, as amended
shall be marked as follows:
This material contains Restricted Data as defined in the Atomic
Energy Act of 1954. Unauthorized disclosure subject to administrative
and criminal sanctions.
(c) Formerly Restricted Data. Classified documents or material
containing Formerly Restricted Data, as defined in Section 142.d, Atomic
Energy Act of 1954, as amended, but no Restricted Data, shall be marked
as follows:
Unauthorized disclosure subject to administrative and criminal
sanctions. Handle as Restricted Data in foreign dissemination. Section
144.b, Atomic Energy Act, 1954.
(d) Intelligence Sources or Methods Information. (1) Documents that
contain information relating to intelligence sources or methods shall
include the following marking unless otherwise proscribed by DoD
Instruction 5230.22:
(2) Existing stamps or preprinted labels containing the caveat
''Warning Notice -- Intelligence Sources and Methods Involved'' may be
used on documents created on or after the effective date of this part
until replacement is required. Any replacement or additional stamps or
labels purchased after the effective date of this part shall conform to
the wording of paragraph (d)(1) of this section.
(e) COMSEC Material. Before release to contractors, COMSEC documents
will indicate on the title page, or first page if no title page exists,
the following notation:
COMSEC Material -- Access by Contractor Personnel Restricted to U.S.
Citizens Holding Final Government Clearance.
This notation shall be placed on COMSEC documents or material when
originated and when release to contractors can be anticipated. Other
COMSEC documents or material shall be marked in accordance with National
COMSEC Instruction (NACSI) 4003. Foreign dissemination of COMSEC
information is governed by NCSC Policy Directive 6.
(f) Dissemination and Reproduction Notice. Classified information
that the DoD originator has determined to be subject to special
dissemination or reproduction limitations as outlined in 159a.54(1)
shall include, as applicable, a statement or statements on its cover
sheet, first page, or in the text, substantially as follows:
Reproduction requires approval of originator or higher DoD authority.
Further dissemination only as directed by (insert appropriate office
or official) or higher DoD authority.
(g) Other Notations. Other notations of restrictions on
reproduction, dissemination or extraction of classified information may
be used as authorized by DoD Directive C-5200.5, DoD Instruction
5230.22, DoD Directive 5210.2 /1/ /4/ , DoD Directive 5100.55 /1/ /5/ ,
DoD Directive 5200.30, Joint Army-Navy-Air Force Publication 119, DoD
Directive 5230.24, and NACSI 4003.
/1/ /4/ See footnote 1 to 159a.3.
/1/ /5/ See footnote 1 to 159a.3.
32 CFR 159a.36 Remarking old material.
(a) General. (1) Documents and material classified under E.O. 12065
and predecessor E.O.s that are marked for automatic downgrading or
automatic declassification on a specific date or event shall be
downgraded and declassified pursuant to such markings. Declassification
instructions on such documents or material need not be restated to
conform with 159a.32(c). (See also 159a.34(a)). Information extracted
from these documents or material for use in new documents or material
shall be marked for declassification on the date specified in accordance
with 159a.31(d)(2).
(2) Documents and material classified under DoD C-5105.21-M-1 /16/
and predecessor E.O.s that are not marked for automatic downgrading or
automatic declassification on a specific date or event shall not be
downgraded or declassified without authorization of the originator.
Declassification instructions on such documents or material need not be
restated to conform with 159a.32(a). Information extracted from these
documents or material for use in new documents or material shall be
marked for declassification upon the determination of the originator,
that is, the ''Declassify on'' line shall be completed with the notation
''Originating Agency's Determination Required'' or ''OADR'' in
accordance with 159a.31(d)(2).
(b) Earlier Declassification and Extension of Classification.
Nothing in this section shall be construed to preclude declassification
under Subpart D of this part or subsequent extension of classification
under 159a.16(c).
/16/ See footnote 13 to 159a.33(j).
32 CFR 159a.36 Subpart F -- Safekeeping and Storage
32 CFR 159a.37 Storage and storage equipment.
(a) General Policy. Classified information shall be stored only
under conditions adequate to prevent unauthorized persons from gaining
access. The requirements specified in this part represent the minimum
acceptable security standards. DoD policy concerning the use of force
for the protection of property or information is specified in DoD
Directive 5210.56 /17/
(b) Standards for Storage Equipment. The GSA establishes and
publishes minimum standards, specifications, and supply schedules for
containers, vault doors, alarm systems, and associated security devices
suitable for the storage and protection of classified information.
Heads of DoD Components may establish additional controls to prevent
unauthorized access. Security filing cabinets conforming to federal
specifications bear a Test Certification Label on the locking drawer,
attesting to the security capabilities of the container and lock. (On
some older cabinets the label was affixed on the inside of the locked
drawer compartment). Cabinets manufactured after February 1962 indicate
''General Services Administration Approved Security Container'' on the
outside of the top drawer.
(c) Storage of Classified Information. Classified information that
is not under the personal control and observation of an authorized
person, will be guarded or stored in a locked security container as
prescribed in the following:
(1) Top Secret. Top Secret information shall be stored in:
(i) A safe-type steel file container having a built-in,
three-position, dial-type combination lock approved by the GSA or a
Class A vault or vault type room that meets the standards established by
the head of the DoD Component concerned. When located in buildings,
structural enclosures, or other areas not under U.S. Government
control, the storage container, vault, or vault-type room must be
protected by an alarm system or guarded during nonoperating hours.
(ii) An alarmed area, provided such facilities are adjudged by the
local responsible official to afford protection equal to or better than
that prescribed in paragraph (c)(1) (i) of this section. When an
alarmed area is used for the storage of Top Secret material, the
physical barrier must be adequate to prevent:
(A) Surreptitious removal of the material, and
(B) Observation that would result in the compromise of the material.
The physical barrier must be such that forcible attack will give
evidence of attempted entry into the area. The alarm system must
provide immediate notice to a security force of attempted entry. Under
field conditions, the field commander will prescribe the measures deemed
adequate to meet the storage standards contained in paragraphs (c)(1)(i)
and (ii) of this section.
(2) Secret and Confidential. Secret and Confidential information
shall be stored in the manner prescribed for Top Secret; or in a Class
B vault, or a vault-type room, strong room, or secure storage room that
meets the standards prescribed by the head of the DoD Component; or,
until phased out, in a steel filing cabinet having a built-in,
three-position, dial type combination lock; or, as a last resort, an
existing steel filing cabinet equipped with a steel lock bar, provided
it is secured by a GSA-approved changeable combination padlock. In this
latter instance, the keeper or keepers and staples must be secured to
the cabinet by welding, rivets, or peened bolts and DoD Components must
prescribe supplementary controls to prevent unauthorized access.
(3) Specialized Security Equipment -- (i) Field Safe and One-drawer
Container. One-drawer field safes, and GSA approved security containers
are used primarily for storage of classified information in the field
and in transportable assemblages. Such containers must be securely
fastened or guarded to prevent their theft.
(ii) Map and Plan File. A GSA-approved map and plan file has been
developed for storage of odd-sized items such as computer cards, maps,
and charts.
(4) Other Storage Requirements. Storage areas for bulky material
containing classified information, other than Top Secret, shall have
access openings secured by GSA-approved changeable combination padlocks
(federal specification FF-P110 series) or key-operated padlocks with
high security cylinders (exposed shackle, military specification P-43951
series, or shrouded shackle, military specification P-43607 series).
(i) When combination padlocks are used, the provisions of paragraph
(e) of this section apply.
(ii) When key-operated high security padlocks are used, keys shall be
controlled as classified information with classification equal to that
of the information being protected and:
(A) A key and lock custodian shall be appointed to ensure proper
custody and handling of keys and locks;
(B) A key and lock control register shall be maintained to identify
keys for each lock and their current location and custody;
(C) Keys and locks shall be audited each month;
(D) Keys shall be inventoried with each change of custodian;
(E) Keys shall not be removed from the premises;
(F) Keys and spare locks shall be protected in a secure container;
(G) Locks shall be changed or rotated at least annually, and shall be
replaced upon loss or compromise of their keys; and
(H) Master keying is prohibited.
(d) Procurement and Phase-In of New Storage Equipment -- (1)
Preliminary Survey. DoD activities shall not procure new storage
equipment until:
(i) A current survey has been made of on-hand security storage
equipment and classified records; and
(ii) Based upon the survey, it has been determined that it is not
feasible to use available equipment or to retire, return, declassify or
destroy enough records on hand to make the needed security storage space
available.
(2) Purchase of New Storage Equipment. New security storage
equipment shall be procured from those items listed on the GSA Federal
Supply Schedule. Exceptions may be made by heads of DoD Components,
with notification to the DUSD(P).
(3) Nothing in this subpart shall be construed to modify existing
Federal Supply Class Management Assignments made under DoD Directive
5030.47. /18/
(e) Designations and Combinations -- (1) Numbering and Designating
Storage Facilities. There shall be no external mark as to the level of
classified information authorized to be stored therein. For
identification purposes each vault or container shall bear externally an
assigned number or symbol.
(2) Combinations to Containers -- (i) Changing. Combinations to
security containers shall be changed only by individuals having that
responsibility and an appropriate security clearance. Combinations
shall be changed:
(A) When placed in use;
(B) Whenever an individual knowing the combination no longer requires
access;
(C) When the combination has been subject to possible compromise;
(D) At least annually; or
(E) When taken out of service. Built-in combination locks shall be
reset to the standard combination 50-25-50; combination padlocks shall
be reset to the standard combination 10-20-30.
(ii) Classifying Combinations. The combination of a vault or
container used for the storage of classified information shall be
assigned a security classification equal to the highest category of the
classified information authorized to be stored therein.
(iii) Recording Storage Facility Data. A record shall be maintained
for each vault, secure room, or container used for storing classified
information, showing location of the container, the names, home
addresses, and home telephone numbers of the individuals having
knowledge of the combination. Standard Form 700, ''Security Container
Information'' shall be used for this purpose. (Use of this Standard
Form is required when existing supplies of similar purpose forms are
exhausted or by September 30, 1986, whichever occurs earlier).
(iv) Dissemination. Access to the combination of a vault or
container used for the storage of classified information shall be
granted only to those individuals who are authorized access to the
classified information stored therein.
(3) Electrically Actuated Locks. Electricially actuated locks (for
example, cypher and magnetic strip card locks) do not afford the
required degree of protection of classified information and may not be
used as a substitute for the locks prescribed in paragraph (c) of this
section.
(f) Repair of Damaged Security Containers. Neutralization of
lock-outs or repair of any damage that affects the integrity of a
security container approved for storage of classified information shall
be accomplished only by authorized persons who are cleared or
continuously escorted while so engaged.
(1) A GSA-approved security container is considered to have been
restored to its original state of security integrity if:
(i) All damaged or altered parts (for example, locking drawer, and
drawer head) are replaced; or
(ii) When a container has been drilled immediately adjacent to or
through the dial ring to neutralize a lock-out, the replacement lock is
equal to the original equipment, and the drilled hole is repaired with a
tapered, hardened tool-steel pin, or a steel dowel, drill bit, or
bearing with a diameter slightly larger than the hole and of such length
that when driven into the hole there shall remain at each end of the rod
a shallow recess not less than 1/8 inch nor more than 3/16 inch deep to
permit the acceptance of substantial welds, and the rod is welded both
on the inside and outside surfaces. The outside of the drawer head
shall then be puttied, sanded, and repainted in such a way that no
visible evidence of the hole or its repair remains on the outer surface
after replacement of the damaged parts (for example, new lock).
(2) GSA-approved containers that have been drilled in a location or
repaired in a manner other than as described in paragraph (f)(1) of this
section, will not be considered to have been restored to their original
state of security integrity. The Test Certification Label on the inside
of the locking drawer and the ''General Services Administration Approved
Security Container'' label, if any, on the outside of the top drawer
shall be removed from such containers.
(3) If damage to a GSA-approved security container is repaired with
welds, rivets, or bolts that cannot be removed and replaced without
leaving evidence of entry, the cabinet is limited thereafter to the
storage of Secret and Confidential material.
(4) If the damage is repaired using methods other than those
permitted in paragraphs (f) (1) and (3) of this section, use of the
container will be limited to unclassified material and a notice to this
effect will be permanently marked on the front of the container.
/17/ See footnote 1 to 159a.3.
/18/ See footnote 1 to 159a.3.
32 CFR 159a.38 Custodial precautions.
(a) Responsibilities of Custodians. (1) Custodians of classified
information shall be responsible for providing protection and
accountability for such information at all times and for locking
classified information in appropriate security equipment whenever it is
not in use or under direct supervision of authorized persons.
Custodians shall follow procedures that ensure that unauthorized persons
do not gain access to classified information.
(2) Only the head of a DoD Component, or single designee at the
headquarters and major command levels, may authorize removal of
classified information from designated working areas in off-duty hours,
for work at home or otherwise, provided that a GSA-approved security
container is furnished and appropriate regulations otherwise provide for
the maximum protection possible under the circumstances. (See also
159a.55.) Any such arrangements approved before the effective date of
this part shall be reevaluated and, if continued approval is warranted,
compliance with this paragraph is necessary.
(b) Care During Working Hours. DoD personnel shall take precaution
to prevent unauthorized access to classified information.
(1) Classified documents removed from storage shall be kept under
constant surveillance and face down or covered when not in use. Cover
sheets shall be Standard Forms 703, 704, and 705 for, respectively, Top
Secret, Secret, and Confidential documents. (Use of these Standard
Forms is required when existing supplies of similar purpose forms are
exhausted or by September 30, 1986, whichever occurs earlier).
(2) Preliminary drafts, carbon sheets, plates, stencils, stenographic
notes, worksheets, typewriter ribbons, and other items containing
classified information shall be either destroyed immediately after they
have served their purpose; or shall be given the same classification
and secure handling as the classified information they contain.
(3) Destruction of typewriter ribbons from which classified
information can be obtained shall be accomplished in the manner
prescribed for classified working papers of the same classification.
After the upper and lower sections have been cycled through and
overprinted five times in all ribbon or typing positions, fabric ribbons
may be treated as unclassified regardless of their classified use
thereafter. Carbon and plastic typewriter ribbons and carbon paper that
have been used in the production of classified information shall be
destroyed in the manner prescribed for working papers of the same
classification after initial usage. However, any ribbon in a typewriter
that uses technology which enables the ribbon to be struck several times
in the same area before it moves to the next position may be treated as
unclassified.
(c) End-of-Day Security Checks. Heads of activities that process or
store classified information shall establish a system of security checks
at the close of each working day to ensure that the area is secure;
Standard Form 701, ''Activity Security Checklist'' shall be used to
record such checks. An integral part of the security check system shall
be the securing of all vaults, secure rooms, and containers used for the
storage of classified material; Standard Form 702, ''Security Container
Check Sheet'' shall be used to record such actions. In addition,
Standard Forms 701 and 702 shall be annotated to reflect after-hours,
weekend, and holiday activity. (Use of these Standard Forms is required
when existing supplies of similar purpose forms are exhausted or by
September 30, 1986, whichever occurs earlier).
(d) Emergency Planning. (1) Plans shall be developed for the
protection, removal, or destruction of classified material in case of
fire, natural disaster, civil disturbance, terrorist activities, or
enemy action. Such plans shall establish detailed procedures and
responsibilities for the protection of classified material to ensure
that the material does not come into the possession of unauthorized
persons. These plans shall include the treatment of classified
information located in foreign countries.
(2) These emergency planning procedures do not apply to material
related to COMSEC. Planning for the emergency protection including
emergency destruction under no-notice conditions of classified COMSEC
material shall be developed in accordance with the requirements of NSA
KAG I-D.
(3) Emergency plans shall provide for the protection of classified
material in a manner that will minimize the risk of injury or loss of
life to personnel. In the case of fire or natural disaster, the
immediate placement of authorized personnel around the affected area,
preinstructed and trained to prevent the removal of classified material
by unauthorized personnel, is an acceptable means of protecting
classified material and reducing casualty risk. Such plans shall
provide for emergency destruction to preclude capture of classified
material when determined to be required. This determination shall be
based on an overall commonsense evaluation of the following factors:
(i) Level and sensitivity of classified material held by the
activity;
(ii) Proximity of land-based commands to hostile or potentially
hostile forces or to communist-controlled countries;
(iii) Flight schedules or ship deployments in the proximity of
hostile or potentially hostile forces or near communist-controlled
countries;
(iv) Size and armament of land-based commands and ships;
(v) Sensitivity of operational assignment; and
(vi) Potential for aggressive action of hostile forces.
(4) When preparing emergency destruction plans, consideration shall
be given to the following:
(i) Reduction of the amount of classified material held by a command
as the initial step toward planning for emergency destruction;
(ii) Storage of less frequently used classified material at more
secure commands in the same geographical area (if available);
(iii) Transfer of as much retained classified material to microforms
as possible, thereby reducing the bulk that needs to be evacuated or
destroyed;
(iv) Emphasis on the priorities for destruction, designation of
personnel responsible for destruction, and the designation of places and
methods of destruction. Additionally, if any destruction site or any
particular piece of destruction equipment is to be used by more than one
activity or entity, the order or priority for use of the site or
equipment must be clearly delineated;
(v) Identification of the individual who is authorized to make the
final determination when emergency destruction is to begin and the means
by which this determination is to be communicated to all subordinate
elements maintaining classified information;
(vi) Authorization for the senior individual present in an assigned
space containing classified material to deviate from established plans
when circumstances warrant; and
(vii) Emphasis on the importance of beginning destruction
sufficiently early to preclude loss of material. The effect of
premature destruction is considered inconsequential when measured
against the possibility of compromise.
(5) The emergency plan shall require that classified material
holdings be assigned a priority for emergency evacuation or destruction.
Priorities should be based upon the potential effect on national
security should such holdings fall into hostile hands, in accordance
with the following general guidelines:
(i) Priority One. Exceptionally grave damage (Top Secret material);
(ii) Priority Two. Serious damage (Secret material); and
(iii) Priority Three. Damage (Confidential material).
(6) If, as determined by appropriate threat analysis, Priority One
material cannot otherwise be afforded a reasonable degree of protection
from hostile elements in a no-notice emergency situation, provisions
shall be made for installation of Anticompromise Emergency Destruct
(ACED) equipment to ensure timely initiation and positive destruction of
such materiala in accordance with the following standard: ''With due
regard for personnel and structural safety, the ACED system shall reach
a stage in destruction sequences at which positive destruction is
irreversible within 60 minutes at shore installations, 30 minutes in
ships, and 3 minutes in aircraft following activation of the ACED
system.''b
(7) An ACED requirement is presumed to exist and provisions shall be
made for an ACED system to protect Priority One material in the
following environments:
(i) Shore-based activities located in or within 50 miles of
potentially hostile countries, or located within or adjacent to
countries with unstable governments;
(ii) Reconnaissance aircraft, both manned and unmanned, that operate
within JCS-designated reconnaissance reporting areas (see Memorandum by
the Secretary, Joint Chiefs of Staff (SM) 701-76, Volume II, ''Peacetime
Reconnaissance and Certain Sensitive Operations'';c
(iii) Naval surface noncombatant vessels operating in hostile areas
when not accompanied by a combatant vessel;
(iv) Naval subsurface vessels operating in hostile areas; and
(v) U.S. Navy Special Project ships (Military Sealift
Command-operated) operating in hostile areas.
(8) Except in the most extraordinary circumstances, ACED is not
applicable to commands and activities located within the United States.
Should there be reason to believe that an ACED requirement exists in
environments other than in those listed in paragraph (d)(7) of this
section, a threat and vulnerability study should be prepared and
submitted to the head of the DoD Component concerned or his designee for
approval. The threat and vulnerability study should include, at a
minimum, the following data, classified if appropriate:
(i) Volume and type of Priority One material held by the activity,
that is, paper products, microforms, magnetic tape, and circuit boards.
(ii) A statement certifying that the amount of Priority One material
held by the activity has been reduced to the lowest possible level;
(iii) An estimate of the time, beyond the time frames cited above,
required to initiate irreversible destruction of Priority One material
held by the activity, and the methods by which destruction of that
material would be attempted in the absence of an ACED system;
(iv) Size and composition of the activity;
(v) Location of the activity and the degree of control it, or other
United States authority, exercises over security; and
(vi) Proximity to potentially hostile forces and potential for
aggressive action by such forces.
(9) When a requirement is believed to exist for ACED equipment not in
the GSA or DoD inventories, the potential requirement shall be submitted
to the DUSD(P) for validation in accordance with subsection V. B. of
DoD Directive 3224.3 /19/ d.
(10) In determining the method of destruction of other than Priority
One material, any method specified for routine destruction or any other
means that will ensure positive destruction of the material may be used.
Ideally, any destruction method should provide for early attainment of
a point at which the destruction process is irreversible. Additionally,
classified material may be jettisoned at sea to prevent its easy
capture. It should be recognized that such disposal may not prevent
recovery of the material. Where none of the methods previously
mentioned can be employed, the use of other means, such as dousing the
classified material with a flammable liquid and igniting it, or putting
to use the facility garbage grinders, sewage treatment plants, and
boilers should be considered.
(11) Under emergency destruction conditions, destruction equipment
may be operated at maximum capacity and without regard to pollution,
preventive maintenance, and other constraints that might otherwise be
observed.
(12) Commands and activities that are required to maintain an ACED
system pursuant to paragraph (d)(7) of this section, shall conduct
drills periodically to ensure that responsible personnel are familiar
with the emergency plan. Such drills should be used to evaluate the
anticipated effectiveness of the plan and the prescribed equipment and
should be the basis for improvements in planning and equipment use.
Actual destruction should not be initiated during drills.
(e) Telecommunications Conversations. Classified information shall
not be discussed in telephone conversations except as authorized over
approved secure communications circuits, that is, cryptographically
protected circuits or protected distribution systems installed in
accordance with National COMSEC Instruction 4009.
(f) Security of Meetings and Conferences. Security requirements and
procedures governing disclosure of classified information at
conferences, symposia, conventions, and similar meetings, and those
governing the sponsorship and attendance of U.S. and foreign personnel
at such meetings, are set forth in DoD Directive 5200.12 /20/ , DoD
Instruction 5230.20 /21/ , DoD 5220.22-R, and DoD 5220.22-M.
(g) Safeguarding of U.S. Classified Information Located in Foreign
Countries. Except for classified information that has been authorized
for release to a foreign government or international organization
pursuant to DoD Directive 5230.11 /22/ , and is under the security
control of such government or organization, the retention of U.S.
classified material in foreign countries may be authorized only when
that material is necessary to satisfy specific U.S. Government
requirements. This includes classified material temporarily transferred
into a foreign country via U.S. Government personnel authorized to
escort or handcarry such material pursuant to 159a.59, as applicable.
Whether permanently or temporarily retained, the classified materials
shall be stored under U.S. Government control as follows:
(1) At a U.S. military installation, or a location where the United
States enjoys extraterritorial status, such as an embassy or consulate.
(2) At a U.S. Government activity located in a building used
exclusively by U.S. Government tenants, provided the building is under
24-hour control by U.S. Government personnel.
(3) At a U.S. Government activity located in a building not used
exclusively by U.S. Government tenants nor under host government
control, provided the classified material is stored in security
containers approved by the GSA and is placed under 24-hour control by
U.S. Government personnel.
(4) At a U.S. Government activity located in a building not used
exclusively by U.S. Government tenants but which is under host
government control, provided the classified material is stored in
GSA-approved security containers which are further secured in a locked
room or area to which only U.S. personnel have access.
(5) When host government and U.S. personnel are co-located, U.S.
classified material that has not been authorized for release to the host
government pursuant to DoD Directive 5230.11, shall, to the extent
possible, be segregated from releasable classified material to
facilitate physical control and prevent inadvertent compromise.
However, U.S. classified material that is releasable to the host country
need not be subject to the 24-hour U.S. control requirement provided the
host government exercises its own control measures over the pertinent
areas or containers during non-duty hours.
(6) Foreign nationals shall be escorted while in areas where
nonreleasable U.S. classified material is handled or stored. However,
when required by operational necessity, foreign nationals may be
permitted, during duty hours, unescorted entry to such areas provided
the nonreleasable information is properly stored or is under the direct
personal supervision and control of cleared U.S. personnel who can
prevent unauthorized access.
aTechnological limitations, particularly as to personnel and
structural safety, place constraints on the amount of material that can
be accommodated in buildings, ships, and aircraft by current ACED
systems; therefore, only Priority One material reasonably can be so
protected at this time. Nevertheless, after processing Priority One
material in an emergency situation involving possible loss to hostile
forces, it is imperative that Priority Two material and then Priority
Three material be destroyed insofar as is possible by whatever means
available.
bThe time frames indicated above are those for the initiation of
irreversible destruction, not necessarily for the completion of such
destruction.
cSM 701-76 is available on a strict need-to-know basis from the
Chief, Documents Division, Joint Secretariat, OJCS.
/19/ See footnote 1 to 159a.3.
dInformation on ACED systems may be obtained from the Office of the
Chief of Naval Operations (OP-09N), Navy Department, Washington, DC
20350.
/20/ See footnote 1 to 159a.3.
/21/ See footnote 1 to 159a.3.
/22/ See footnote 1 to 159a.3.
32 CFR 159a.39 Activity entry and exit inspection program.
(a) Policy. (1) Commanders and heads of activities shall establish
and maintain an inspection program to deter and detect unauthorized
introduction or removal of classified material from DoD owned or leased
installations and facilities. This program does not replace existing
programs for facility and installation security and law enforcement
inspection requirements.
(2) The inspection program shall be implemented in a manner which
does not interfere unduly with the performance of assigned missions.
(3) The inspection program shall be implemented in a manner which
does not significantly disrupt the ingress and egress of persons who are
employees of, or visitors to, defense installations and facilities.
(4) Inspections carried out under this program shall be limited to
the extent feasible to areas where classified work is being performed,
and cover only persons employed within, or visiting, such areas.
(5) Inspections carried out under this program shall be performed at
a sufficient frequency to provide a credible deterrent to those who
would be inclined to remove classified materials without authority from
the installation or facility in question.
(6) The method and frequency of such inspections at a given
installation or facility is at the discretion of the commander or head
of the installation or facility, or other designated official. Such
inspections shall conform to the procedures set forth in the following:
(i) Inspection Frequency. (A) Inspections may be aperiodic, that is,
at irregular intervals.
(B) Inspections may be accomplished at one or more designated
entry/exit points; they need not be carried out at all entry/exit
points at the same time.
(C) Inspections may be done on a random basis using any standard
which may be appropriate, for example, every third person; every tenth
person; every hundredth person, at the entry/exit point(s) designated.
(D) Inspections at a particular entry/exit point(s) may be limited as
appropriate to various periods of time, for example, one week, one day,
or one hour.
(E) Inspections shall be conducted at all entry/exit points after
normal duty hours, including weekends and holidays, on a continuous
basis, if practicable.
(b) Inspection Procedures and Identification. (1) Inspections shall
be limited to that which is necessary to determine whether classified
material is contained in briefcases, shoulder or handbags, luggage,
athletic bags, packages, or other similar containers being removed from
or taken into the premises. Inspections shall not be done of wallets,
change purses, clothing, cosmetic cases, or other objects of an
unusually personal nature.
(2) DoD Components shall provide employees who have a legitimate need
to remove classified material from the installation or activity with
written or printed authorizations to pass through designated entry/exit
points. (See 159a.59(f)) This may include:
(i) The authorization statements prescribed in 159a.59.
(ii) If authorized in Component instructions, wallet-size cards which
describe in general terms the purpose(s) for authorizing the employee to
remove classified material from the facility (for example, use at
meetings or transmission to authorized recipients).
(3) Inspectors are to ensure that personnel are not removing
classified material without authorization. Where inspectors determine
that individuals do not appear to have appropriate authorization to
remove classified material, they shall request such individual to obtain
appropriate authorization before exiting the premises. If, due to the
circumstances, this is not feasible, the inspector should attempt to
verify by telephone the authority of the individual in question to
remove the classified material with the employing office. When such
verification cannot be obtained, and if removal cannot be prevented, the
inspector shall advise the employing office and appropriate security
office as soon as feasible that classified material was removed by the
named individual at a particular time and without apparent
authorization.
(4) If the employing office determines that classified material was
removed by one of its employees without authority, it shall request an
investigation of the circumstances of the removal by appropriate
investigative authorities. Where such investigation confirms a
violation of security procedures, other than espionage or deliberate
compromise, for which 159a.50 applies, appropriate administrative,
disciplinary, or legal action shall be taken.
32 CFR 159a.39 Subpart G -- Compromise of Classified Information
32 CFR 159a.41 Policy.
Compromise of classified information presents a threat to the
national security. Once a compromise is known to have occurred, the
seriousness of damage to U.S. interests must be determined and
appropriate measures taken to negate or minimize the adverse effect of
such compromise. When possible, action also should be taken to regain
custody of the documents or material that were compromised. In all
cases, however, appropriate action must be taken to identify the source
and reason for the compromise and remedial action taken to ensure
further compromises do not occur. The provisions of DoD Instruction
5240.4 /2/ /3/ and DoD Directive 5210.50 /2/ /4/ apply to compromises
covered by this subpart.
/2/ /3/ See footnote 1 to 159a.3.
/2/ /4/ See footnote 1 to 159a.3.
32 CFR 159a.42 Cryptographic and sensitive compartmented information.
(a) The procedures for handling compromises of cryptographic
information are set forth in NACSI 4006 and implementing instructions.
(b) The procedures for handling compromises of SCI information are
set forth in DoD TS-5105.21-M-2 /2/ /5/ and DoD C-5105.21-M-1 /2/ /6/ .
/2/ /5/ See footnote 13 to 159a.33(j).
/2/ /6/ See footnote 13 to 159a.33(j).
32 CFR 159a.43 Responsibility of discoverer.
(a) Any person who has knowledge of the loss or possible compromise
of classified information shall immediately report such fact to the
security manager of the person's activity (see 159a.93(e)) or to the
commanding officer or head of the activity in the security manager's
absence.
(b) Any person who discovers classified information out of proper
control shall take custody of such information and safeguard it in an
appropriate manner, and shall notify immediately an appropriate security
authority.
32 CFR 159a.44 Preliminary inquiry.
The immediate commander, supervisor, security manager, or other
authority shall initiate a preliminary inquiry to determine the
circumstances surrounding the loss or possible compromise of classified
information. The preliminary inquiry shall establish one of the
following:
(a) That a loss or compromise of classified information did not
occur;
(b) That a loss or compromise of classified information did occur but
the compromise reasonably could not be expected to cause damage to the
national security. If, in such instances, the official finds no
indication of significant security weakness, the report of preliminary
inquiry will be sufficient to resolve the incident and, when
appropriate, support the administrative sanctions under 159a.98; or
(c) That the loss or compromise of classified information did occur
and that the compromise reasonably could be expected to cause damage to
the national security or that the probability of damage to the national
security cannot be discounted. Upon this determination, the responsible
official shall:
(1) Report the circumstances of the compromise to an appropriate
authority as specified in DoD Component instructions;
(2) If the responsible official is the originator, take the action
prescribed in 159a.47; and
(3) If the responsible official is not the originator, notify the
originator of the known details of the compromise, including
identification of the classified information. If the originator is
unknown, notification will be sent to the office specified in DoD
Component instructions.
32 CFR 159a.45 Investigation.
If it is determined that further investigation is warranted, such
investigation will include the following:
(a) Identification of the source, date, and circumstances of the
compromise.
(b) Complete description and classification of each item of
classified information compromised;
(c) A thorough search for the classified information;
(d) Identification of any person or procedure responsible for the
compromise. Any person so identified shall be apprised of the nature
and circumstances of the compromise and be provided an opportunity to
reply to the violation charged. If such person does not choose to make
a statement, this fact shall be included in the report of investigation;
(e) An analysis and statement of the known or probable damage to the
national security that has resulted or may result (See 159a.15(k)), and
the cause of the loss or compromise; or a statement that compromise did
not occur or that there is minimal risk of damage to the national
security;
(f) An assessment of the possible advantage to foreign powers
resulting from the compromise; and
(g) A compilation of the data in paragraphs (a) through (f) of this
section, in a report to the authority ordering the investigation to
include an assessment of appropriate corrective, administrative,
disciplinary, or legal actions. (Also see 159a.100).
32 CFR 159a.46 Responsibility of authority ordering investigation.
(a) The report of investigation shall be reviewed to ensure
compliance with this part and instructions issued by DoD Components.
(b) The recommendations contained in the report of investigation
shall be reviewed to determine sufficiency of remedial, administrative,
disciplinary, or legal action proposed and, if adequate, the report of
investigation shall be forwarded with recommendations through
supervisory channels (See 159a.98 and 159a.99).
(c) Whenever an action is contemplated against any person believed
responsible for the compromise of classified information, damage
assessments shall be coordinated with the legal counsel of the DoD
Component where the individual responsible is assigned or employed.
Whenever a violation of criminal law appears to have occurred and a
criminal prosecution is contemplated, the DoD Component responsible for
the damage assessment shall apprise the General Counsel, Department of
Defense. See 159a.101.
32 CFR 159a.47 Responsibility of originator.
The originator or an official higher in the originator's supervisory
chain shall, upon receipt of notification of loss or probable compromise
of classified information, take action as prescribed in 159a.15(k).
32 CFR 159a.48 System of control of damage assessments.
Each DoD Component shall establish a system of controls and internal
procedures to ensure that damage assessments are conducted when required
and that records are maintained in a manner that facilitates their
retrieval and use within the Component.
32 CFR 159a.49 Compromises involving more than one agency.
(a) Whenever a compromise involves the classified information or
interests of more than one DoD Component or other agency, each such
activity undertaking a damage assessment shall advise the others of the
circumstances and findings that affect their information and interests.
Whenever a damage assessment incorporating the product of two or more
DoD Components or other agencies is needed, the affected activities
shall agree upon the assignment of responsibility for the assessment.
(b) Whenever a compromise of U.S. classified information is the
result of actions taken by foreign nationals, by foreign government
officials, or by U.S. nationals employed by international organizations,
the activity performing the damage assessment shall ensure, through
appropriate intergovernmental liaison channels, that information
pertinent to the assessment is obtained. Whenever more than one
activity is responsible for the assessment, those activities shall
coordinate the request prior to transmittal through appropriate
channels.
32 CFR 159a.50 Espionage and deliberate compromise.
Cases of espionage and deliberate unauthorized disclosure of
classified information to the public shall be reported in accordance
with DoD Instruction 5240.4 and DoD Directive 5210.50 and implementing
issuances.
32 CFR 159a.51 Unauthorized absentees.
When an individual who has had access to classified information is on
unauthorized absence, an inquiry as appropriate under the circumstances,
to include consideration of the length of absence and the degree of
sensitivity of the classified information involved, shall be conducted
to detect if there are any indications of activities, behavior, or
associations that may be inimical to the interest of national security.
When such indications are detected, a report shall be made to the DoD
Component counterintelligence organization.
32 CFR 159a.51 Subpart H -- Access, Dissemination, and Accountability
32 CFR 159a.53 Access.
(a) Policy. (1) Except as otherwise provided for in paragraph (c) of
this section, no person may have access to classified information unless
that person has been determined to be trustworthy and unless access is
essential to the accomplishment of lawful and authorized Government
purposes, that is, the person has the appropriate security clearance and
a need-to-know. Further, cleared personnel may not have access until
they have been given an initial security briefing (see 159a.70).
Procedures shall be established by the head of each DoD Component to
prevent unnecessary access to classified information. There shall be a
demonstrable need for access to classified information before a request
for a personnel security clearance can be initiated. The number of
people cleared and granted access to classified information shall be
maintained at the minimum number that is consistent with operational
requirements and needs. No one has a right to have access to classified
information solely by virtue of rank or position. The final
responsibility for determining whether an individual's official duties
require possession of or access to any element or item of classified
information, and whether the individual has been granted the appropriate
security clearance by proper authority, rests upon the individual who
has authorized possession, knowledge, or control of the information and
not upon the prospective recipient. These principles are equally
applicable if the prospective recipient is a DoD Component, including
commands and activities, other Federal agencies, DoD contractors,
foreign governments, and others.
(2) Because of the extreme importance to the national security of Top
Secret information and information controlled within approved Special
Access Programs, employees shall not be permitted to work alone in areas
where such information is in use or stored and accessible by those
employees. This general policy is an extra safeguarding measure for the
nation's most vital classified information and it is not intended to
cast doubt on the integrity of DoD employees. The policy does not apply
in those situations where one employee with access is left alone for
brief periods during normal duty hours. When compelling operational
requirements indicate the need, DoD Component heads may waive this
requirement in specific, limited cases. This waiver authority may be
delegated to the senior official ( 159a.93 (b) and (c)) of the DoD
Component who may redelegate the authority but only if so authorized by
the head of the DoD Component. (Any waiver should include provisions
for periodically ensuring the health and welfare of individuals left
alone in vaults or secure areas).
(b) Access by Persons Outside the Executive Branch. Classified
information may be made available to individuals or agencies outside the
Executive Branch provided that such information is necessary for
performance of a function from which the Government will derive a
benefit or advantage, and that such release is not prohibited by the
originating department or agency. Heads of DoD Components shall
designate appropriate officials to determine, before the release of
classified information, the propriety of such action in the interest of
national security and assurance of the recipient's trustworthiness and
need-to-know.
(1) Congress. Access to classified information or material by
Congress, its committees, members, and staff representatives shall be in
accordance with DoD Directive 5400.4 /2/ /7/ . Any DoD employee
testifying before a congressional committee in executive session in
relation to a classified matter shall obtain the assurance of the
committee that individuals present have a security clearance
commensurate with the highest classification of the information that may
be discussed. Members of Congress, by virtue of their elected
positions, are not investigated or cleared by the Department of Defense.
(2) Government Printing Office (GPO). Documents and material of all
classifications may be processed by the GPO, which protects the
information in accordance with the DoD/GPO Security Agreement of
February 20, 1981.
(3) Representatives of the General Accounting Office (GAO).
Representatives of the GAO may be granted access to classified
information originated by and in possession of the Department of Defense
when such information is relevant to the performance of the statutory
responsibilities of that office, as set forth in DoD Directive 7650.1
/2/ /8/ . Officials of the GAO, as designated in Appendix B to this
part, are authorized to certify security clearances, and the basis
therefor. Certifications will be made by these officials pursuant to
arrangements with the DoD Component concerned. Personal recognition or
presentation of official GAO credential cards are acceptable for
identification purposes.
(4) Industrial, Educational, and Commercial Entities. (i) Bidders,
contractors, grantees, educational, scientific or industrial
organizations may have access to classified information only when such
access is essential to a function that is necessary in the interest of
the national security, and the recipients are cleared in accordance with
DoD 5220.22-R.
(ii) Contractor employees whose duties do not require access to
classified information are not eligible for personnel security clearance
and cannot be investigated under the DISP. In exceptional situations,
when a military command is vulnerable to sabotage and its mission is of
critical importance to national security, National Agency Checks may be
conducted on such individuals with the approval of the DUSD(P).
(5) Historical Researchers. Persons outside the Executive Branch who
are engaged in historical research projects may be authorized access to
classified information provided that an authorized official within the
DoD Component with classification jurisdiction over the information:
(i) Makes a written determination that such access is clearly
consistent with the interests of national security in view of the
intended use of the material to which access is granted by certifying
that the requester has been found to be trustworthy pursuant to
paragraph (a)(1) of this section;
(ii) Limits such access to specific categories of information over
which that DoD Component has classification jurisdiction and to any
other category of information for which the researcher obtains the
written consent of a DoD Component or non-DoD department or agency that
has classification jurisdiction over information contained in or
revealed by documents within the scope of the proposed historical
research;
(iii) Maintains custody of the classified material at a DoD
installation or activity or authorizes access to documents in the
custody of the NARA;
(iv) Obtains the researcher's agreement to safeguard the information
and to submit any notes and manuscript for review by all DoD Components
or non-DoD departments or agencies with classification jurisdiction for
a determination that no classified information is contained therein by
execution of a statement entitled, ''Conditions Governing Access to
Official Records for Historical Research Purposes''; and
(v) Issues an authorization for access valid for not more than 2
years from the date of issuance that may be renewed under regulations of
the issuing DoD Component.
(6) Former Presidential Appointees. Persons who previously occupied
policy making positions to which they were appointed by the President
may not remove classified information upon departure from office as all
such material must remain under the security control of the U.S.
Government. Such persons may be authorized access to classified
information that they originated, received, reviewed, signed, or that
was addressed to them while serving as such an appointee, provided that
an authorized official within the DoD Component with classification
jurisdiction for such information:
(i) Makes a written determination that such access is clearly
consistent with the interests of national security in view of the
intended use of the material to which access is granted and by
certifying that the requester has been found to be trustworthy pursuant
to paragraph (a)(1) of this section;
(ii) Limits such access to specific categories of information over
which that DoD Component has classification jurisdiction and to any
other category of information for which the former appointee obtains the
written consent of a DoD Component or non-DoD department or agency that
has classification jurisdiction over information contained in or
revealed by documents with the scope of the proposed access;
(iii) Retains custody of the classified material at a DoD
installation or activity or authorizes access to documents in the
custody of the National Archives and Records Service; and
(iv) Obtains the former presidential appointee's agreement to
safeguard the information and to submit any notes and manuscript for
review by all DoD Components or non-DoD departments or agencies with
classification jurisdiction for a determination that no classified
information is contained therein.
(7) Judicial Proceedings. DoD Directive 5405.2 /2/ /9/ governs the
release of classified information in litigation.
(c) Access by Foreign Nationals, Foreign Governments, and
International Organizations. (1) Classified information may be released
to foreign nationals, foreign governments, and international
organizations only when authorized under the provisions of the National
Disclosure Policy and DoD Directive 5230.11; and
(2) Access to COMSEC information by foreign persons and activities
shall be in accordance with policy issuances of the National
Telecommunications and Information Systems Security Committee (NTISSC).
(d) Other Situations. When necessary in the interests of national
security, heads of DoD Components, or their single designee, may
authorize access by persons outside the federal government, other than
those enumerated in paragraphs (b) and (c) of this section, to
classified information upon determining that the recipient is
trustworthy for the purpose of accomplishing a national security
objective; and that the recipient can and will safeguard the
information from unauthorized disclosure.
(e) Access Required by Other Executive Branch Investigative and Law
Enforcement Agents. (1) Normally, investigative agents of other
departments or agencies may obtain access to DoD information through
established liaison or investigative channels.
(2) When the urgency or delicacy of a Federal Bureau of Investigation
(FBI), Drug Enforcement Administration (DEA), or Secret Service
investigation precludes use of established liaison or investigative
channels, FBI, DEA, or Secret Service agents may obtain access to DoD
information as required. However, this information shall be protected
as required by its classification. Before any public release of the
information so obtained the approval of the head of the activity or
higher authority shall be obtained.
(f) Access by Visitors. Procedures shall be established to control
access to classified information by visitors. (DoD Instruction 5230.20
provides further guidance regarding foreign visitors.)
(1) Except when a continuing, frequent working relationship is
established, through which current security clearance and need-to-know
are determined, DoD personnel visiting other activities of the
Department of Defense, its contractors, and other agencies shall provide
advance notification of the pending visit that establishes the visitor's
security clearance and the purpose of the visit. Visit requests shall
be signed by an official other than the visitor who is in a position to
verify the visitor's security clearance.
(2) Visit requests normally should include the following:
(i) Full name, date and place of birth, social security number, and
rank or grade of visitor;
(ii) Security clearance of the visitor;
(iii) Employing activity of the visitor;
(iv) Name and address of activity to be visited;
(v) Date and duration of proposed visit;
(vi) Purpose of visit in sufficient detail to establish need-to-know;
and
(vii) Names of persons to be contacted.
(3) Visit requests may remain valid for not more than 1 year.
/2/ /7/ See footnote 1 to 159a.3.
/2/ /8/ See footnote 1 to 159a.3.
/2/ /9/ See footnote 1 to 159a.3.
32 CFR 159a.54 Dissemination.
(a) Policy. DoD Components shall establish procedures consistent
with this Regulation for the dissemination of classified material. The
originating official or activity may prescribe specific restrictions on
dissemination of classified information when necessary. (See
159a.35(f). Particular emphasis shall be placed on traditional
need-to-know measures to aid in the strict control of classified
information.)
(b) Restraints on Special Access Requirements. Special requirements
with respect to access, distribution, and protection of classified
information shall require prior approval in accordance with Subpart M of
this part.
(c) Information Originating in a Non-DoD Department or Agency.
Except under rules established by the Secretary of Defense, or as
provided by Section 102 of the National Security Act, classified
information originating in a department or agency other than Department
of Defense shall not be disseminated outside the Department of Defense
without the consent of the originating department or agency.
(d) Foreign Intelligence Information. Dissemination of foreign
intelligence information shall be in accordance with the provisions of
DoD Instruction 5230.22 and DoD Directive C-5230.23 /3/ /0/ .
(e) Restricted Data and Formerly Restricted Data. Information
bearing the warning notices prescribed in 159a.35 (b) and (c) shall not
be disseminated outside authorized channels without the consent of the
originator. Access to and dissemination of Restricted Data by DoD
personnel shall be subject to DoD Directive 5210.2.
(f) NATO Information. Classified information originated by NATO
shall be safeguarded in accordance with DoD Directive 5100.55.
(g) COMSEC Information. COMSEC information shall be disseminated in
accordance with NACSI 4005 and implementing instructions.
(h) Dissemination of Top Secret Information. (1) Top Secret
information, originated within the Department of Defense, may not be
disseminated outside the Department of Defense without the consent of
the originating DoD Component, or higher authority.
(2) Top Secret information, whenever segregable from classified
portions bearing lower classifications, shall be distributed separately.
(3) Standing distribution requirements for Top Secret information and
materials, such as distribution lists, shall be reviewed at least
annually to verify the recipients' need-to-know.
(i) Dissemination of Secret and Confidential Information. (1) Secret
and Confidential information, originated within the Department of
Defense, may be disseminated within the Executive Branch, unless
prohibited by the originator. (See 159a.35(f)).
(2) Standing distribution requirements for Secret and Confidential
information and materials, such as distribution lists, shall be reviewed
at least annually to verify the recipients' need-to-know.
(j) Code Words, Nicknames, and Exercise Terms. The use of code
words, nicknames, and exercise terms is subject to the provisions of
Subpart M and Appendix C.
(k) Scientific and Technical Meetings. Use of classified information
in scientific and technical meetings is subject to the provisions of DoD
Directive 5200.12.
(l) Limited Dissemination (LIMDIS). This section establishes limits
on measures for the protection of information beyond those involving
access to classified information per se, but not so stringent as to
require the establishment of a Special Access Program. It prohibits use
of terminology indicating enhancements to need-to-know, such as Special
Need-to-Know (SNTK), MUST KNOW, Controlled Need-to-Know (CNTK), or other
similar security upgrade designations and associated unique security
requirements such as specialized nondisclosure statements. Limited
dissemination controls are the only security enhancement short of a
Special Access Program which may be employed for control over specific
information for specified periods of time. In this context, these
procedures may be initiated and continued on a showing that additional
access controls are required in order to assure the security of the
designated information. The decision to apply these procedures shall be
made at the original classification authority level of command or
supervision in accordance with the implementing information security
instructions promulgated by the DoD Component. Except by agreement,
such requirements shall not be imposed outside of the approving DoD
Component. LIMDIS protective measures are restricted to one or more of
the following:
(1) Decentralized maintenance of disclosure listings, briefings
concerning access limitations, and physical security restrictions
limited to requirements such as placing the material in sealed envelopes
within approved storage containers to avoid inadvertent disclosure and
the commingling with other files;
(2) Using unclassified nicknames (no code words may be assigned to
LIMDIS information);
(3) Marking the material as LIMDIS along with the assigned nickname;
(4) Marking inner envelopes containing designated LIMDIS information
with the notation: ''To be Opened Only By Personnel Authorized
Access'';
(5) Requiring electronically transmitted messages containing
designated information to be marked with the uniform caveat LIMDIS; and
(6) Prescribing unique oversight procedures to be accomplished by
Component professional security personnel (industrial security
inspections will be conducted in the normal manner by the Defense
Investigative Service).
/3/ /0/ See footnote 13 to 159a.33(j).
32 CFR 159a.55 Accountability and control.
(a) Top Secret Information. DoD activities shall establish the
following procedures:
(1) Control Officers. Top Secret Control Officers (TSCOs) and
alternates shall be designated within offices to be responsible for
receiving, dispatching, and maintaining accountability registers of Top
Secret documents. Such individuals shall be selected on the basis of
experience and reliability, and shall have Top Secret security
clearances. TSCOs need not be appointed in those instances where there
is no likelihood of processing Top Secret documentation.
(2) Accountability -- (i) Top Secret Registers. Top Secret
accountability registers shall be maintained by each office originating
or receiving Top Secret information. Such registers shall be retained
for 2 years and shall, as a minimum, reflect the following:
(A) Sufficient information to identify adequately the Top Secret
document or material to include the title or appropriate short title,
date of the document, and identification of the originator;
(B) The date the document or material was received;
(C) The number of copies received or later reproduced; and
(D) The disposition of the Top Secret document or material and all
copies of such documents or material.
(ii) Serialization and Copy Numbering. Top Secret documents and
material shall be numbered serially. In addition, each Top Secret
document shall be marked to indicate its copy number, for example, copy
-1- of -2- copies.
(iii) Disclosure Records. Each Top Secret document or item of
material shall have appended to it a Top Secret disclosure record. The
name and title of all individuals, including stenographic and clerical
personnel to whom information in such documents and materials has been
disclosed, and the date of such disclosure, shall be recorded thereon.
Disclosures to individuals who may have had access to containers in
which Top Secret information is stored, or who regularly handle a large
volume of such information need not be so recorded. Such individuals,
when identified on a roster, are deemed to have had access to such
information. Disclosure records shall be retained for 2 years after the
documents or materials are transferred, downgraded, or destroyed.
(3) Inventories. All Top Secret documents and material shall be
inventoried at least once annually. The inventory shall reconcile the
Top Secret accountability register with the documents or material on
hand. At such time, each document or material shall be examined for
completeness. DoD Component senior officials ( 159a.93 (b) and (c)) may
authorize the annual inventory of Top Secret documents and material in
repositories, libraries, or activities that store large volumes of Top
Secret documents or material to be limited to documents and material to
which access has been granted within the past year, and 10 percent of
the remaining inventory. If a storage system contains large volumes of
information and security measures are adequate to prevent access by
unauthorized persons, a request for waiver of the annual inventory
requirement accompanied by full justification may be submitted to the
DUSD(P).
(4) Retention. Top Secret information shall be retained only to the
extent necessary to satisfy current requirements. Custodians shall
destroy nonrecord copies of Top Secret documents when no longer needed.
Record copies of documents that cannot be destroyed shall be reevaluated
and, when appropriate, downgraded, declassified, or retired to
designated records centers.
(5) Receipts. Top Secret documents and material will be accounted
for by a continuous chain of receipts. Receipts shall be maintained for
2 years.
(b) Secret Information. Administrative procedures shall be
established by each DoD Component for controlling Secret information and
material originated or received by an activity; distributed or routed
to a sub-element of such activity; and disposed of by the activity by
transfer of custody or destruction. The control system for Secret
information must be determined by a practical balance of security and
operating efficiency and must meet the following minimum requirements:
(1) It must provide a means to ensure that Secret material sent
outside a major subordinate element (the activity) of the DoD Component
concerned has been delivered to the intended recipient. Such delivery
may be presumed where the material is sent electronically over secure
voice or data circuits. Ensuring physical delivery may be accomplished
by use of a receipt as provided in 159.58(c)(2) or through hand-to-hand
transfer when the receiving party acknowledges responsibility for the
Secret material.
(2) It must provide a record of receipt and dispatch of Secret
material by each major subordinate element. The dispatch record
requirement may be satisfied when the distribution of Secret material is
evident from addresses or distribution lists for classified
documentation. Records of receipt and dispatch are required regardless
of the means used to ensure delivery of the material (see paragraph
(b)(1) of this section).
(3) Records of receipt and dispatch for Secret material shall be
retained for a minimum of 2 years.
(c) Confidential Information. Administrative controls shall be
established to protect Confidential information received, originated,
transmitted, or stored by an activity.
(d) Receipt of Classified Material. Procedures shall be developed
within DoD activities to protect incoming mail, bulk shipments, and
items delivered by messenger until a determination is made whether
classified information is contained therein. Screening points shall be
established to limit access to classified information to cleared
personnel.
(e) Working Papers. (1) Working papers are documents and material
accumulated or created in the preparation of finished documents and
material. Working papers containing classified information shall be:
(i) Dated when created;
(ii) Marked with the highest classification of any information
contained therein;
(iii) Protected in accordance with the assigned classification;
(iv) Destroyed when no longer needed; and
(v) Accounted for, controlled, and marked in the manner prescribed
for a finished document of the same classification when:
(A) Released by the originator outside the activity or transmitted
electrically or through message center channels within the activity;
(B) Retained more than 90 days from date of origin;
(C) Filed permanently; or
(D) Top Secret information is contained therein.
(2) Heads of DoD Components, or their single designees, may approve
waivers of accountability, control, and marking requirements for working
papers containing Top Secret information for activities within their
Components on a case-by-case basis provided a determination is made
that:
(i) The conditions set forth in paragraph (e)(1)(v) (A), (B), or (C)
of this section, will remain in effect;
(ii) The activity seeking a waiver routinely handles large volumes of
Top Secret working papers and compliance with prescribed accountability,
control, and marking requirements would have an adverse affect on the
activity's mission or operations; and
(iii) Access to areas where Top Secret working papers are handled is
restricted to personnel who have an appropriate level of clearance, and
other safeguarding measures are adequate to preclude the possibility of
unauthorized disclosure.
(3) In all cases in which a waiver is granted under paragraph (e)(2)
of this section, the DUSD(P) shall be notified.
(f) Restraint on Reproduction. Except for the controlled initial
distribution of information processed or received electrically or as
provided by 159a.2(f) and 159a.29(c), portions of documents and
materials that contain Top Secret information shall not be reproduced
without the consent of the originator or higher authority. Any stated
prohibition against reproduction shall be observed strictly. (See
159a.35(f)) To the extent possible, DoD Components shall establish
classified reproduction facilities where only designated personnel can
reproduce classified materials and institute key control systems for
reproduction areas. Also, when possible, two people shall be involved
in the reproduction process to help assure positive control and
safeguarding of all copies. The following additional measures apply to
reproduction equipment and to the reproduction of classified
information:
(1) Copying of documents containing classified information shall be
minimized;
(2) Officials authorized to approve the reproduction of Top Secret
and Secret information shall be designated by position title and shall
review the need for reproduction of classified documents and material
with a view toward minimizing reproduction.
(3) Specific reproduction equipment shall be designated for the
reproduction of classified information. Rules for reproduction of
classified information shall be posted on or near the designated
equipment;
(4) Notices prohibiting reproduction of classified information shall
be posted on equipment used only for the reproduction of unclassified
information;
(5) DoD Components shall ensure that equipment used for reproduction
of classified information does not leave latent images in the equipment
or on other material;
(6) All copies of classified documents reproduced for any purpose
including those incorporated in a working paper are subject to the same
controls prescribed for the document from which the reproduction is
made; and
(7) Records shall be maintained for 2 years to show the number and
distribution of reproduced copies of all Top Secret documents, of all
classified documents covered by special access programs distributed
outside the originating agency, and of all Secret and Confidential
documents that are marked with special dissemination and reproduction
limitations.
(See 159a.35(f))
32 CFR 159a.55 Subpart I -- Transmission
32 CFR 159a.57 Methods of transmission or transportation.
(a) Policy. Classified information may be transmitted or transported
only as specified in this subpart.
(b) Top Secret Information. Transmission of Top Secret information
shall be effected only by:
(1) The Armed Forces Courier Service (ARFCOS);
(2) Authorized DoD Component Courier Services,
(3) If appropriate, the Department of State Courier System;
(4) Cleared and designated U.S. military personnel and Government
civilian employees traveling on a conveyance owned, controlled, or
chartered by the U.S. Government or DoD contractors;
(5) Cleared and designated U.S. Military personnel and government
civilian employees by surface transportation;
(6) Cleared and designated U.S. Military personnel and government
civilian employees on scheduled commercial passenger aircraft within and
between the United States, its Territories, and Canada, when approved in
accordance with 159a.59(d)(1).
(7) Cleared and designated U.S. Military personnel and government
civilian employees on scheduled commercial passenger aircraft on flights
outside the United States, its territories, and Canada, when approved in
accordance with 159a.59(d)(2).
(8) Cleared and designated DoD contractor employees within and
between the United States and its Territories provided that the
transmission has been authorized in writing by the appropriate
contracting officer or his designated representative, and the designated
employees have been briefed on their responsibilities as couriers or
escorts for the protection of Top Secret material. Complete guidance
for Top Secret transmission is specified in DoD 5220.22-R and DoD
5220.22-M.
(9) A cryptographic system authorized by the Director, NSA, or via a
protected distribution system designed and installed to meet the
standards included in the National COMSEC and Emanations Security
(EMSEC) Issuance System.
(c) Secret Information. Transmission of Secret information may be
effected by:
(1) Any of the means approved for the transmission of Top Secret
information except that Secret information may be introduced into the
ARFCOS only when the control of such information cannot be otherwise
maintained in U.S. custody. This restriction does not apply to SCI and
COMSEC information;
(2) Appropriately cleared contractor employees within and between the
United States and its Territories provided that:
(i) The designated employees have been briefed in their
responsibilities as couriers or escorts for protecting Secret
information;
(ii) The classified information remains under the constant custody
and protection of the contractor personnel at all times; and
(iii) The transmission otherwise meets the requirements specified in
DoD 5220.22-R and DoD 5220.22-M. In other areas, appropriately cleared
DoD contractor employees may transmit classified material only as
prescribed by DoD 5220.22-R and DoD 5220.22-M.
(3) U.S. Postal Service registered mail within and between the United
States and its Territories;
(4) U.S. Postal Service registered mail through Army, Navy, or Air
Force Postal Service facilities outside the United States and its
Territories, provided that the information does not at any time pass out
of U.S. citizen control and does not pass through a foreign postal
system or any foreign inspection;
(5) U.S. Postal Service and Canadian registered mail with registered
mail receipt between U.S. Government and Canadian Government
installations in the United States and Canada;
(6) Carriers authorized to transport Secret information by way of a
Protective Security Service (PSS) under the DoD Industrial Security
Program. This method is authorized only within the U.S. boundaries and
only when the size, bulk, weight, and nature of the shipment, or escort
considerations make the use of other methods impractical. Routings for
these shipments will be obtained from the Military Traffic Management
Command (MTMC);
(7) The following carriers under appropriate escort: government and
government contract vehicles including aircraft, ships of the U.S.
Navy, civil service-operated U.S. Naval ships, and ships of U.S.
registry. Appropriately cleared operators of vehicles, officers of ships
or pilots of aircraft who are U.S. citizens may be designated as escorts
provided the control of the carrier is maintained on a 24-hour basis.
The escort shall protect the shipment at all times, through personal
observation or authorized storage to prevent inspection, tampering,
pilferage, or unauthorized access. However, observation of the shipment
is not required during the period it is stored in an aircraft or ship in
connection with flight or sea transit, provided the shipment is loaded
into a compartment that is not accessible to any unauthorized persons or
in a specialized secure, safe-like container that is:
(i) Constructed of solid building material that provides a
substantial resistance to forced entry;
(ii) Constructed in a manner that precludes surreptitious entry
through disassembly or other means, and that attempts at surreptitious
entry would be readily discernible through physical evidence of
tampering; and
(iii) Secured by a numbered cable seal lock affixed to a substantial
metal hasp in a manner that precludes surreptitious removal and provides
substantial resistance to forced entry.
(8) Use of specialized containers aboard aircraft requires that:
(i) Appropriately cleared personnel maintain observation of the
material as it is being loaded aboard the aircraft and that observation
of the aircraft continues until it is airborne;
(ii) Observation by appropriately cleared personnel is maintained at
the destination as the material is being off-loaded and at any
intermediate stops. Observation will be continuous until custody of the
material is assumed by appropriately cleared personnel.
(d) Confidential Information. Transmission of Confidential
information may be effected by:
(1) Means approved for the transmission of Secret information.
However, U.S. Postal Service registered mail shall be used for
Confidential only as indicated in paragraph (c)(2) of this section;
(2) U.S. Postal Service registered mail for:
(i) Confidential information of NATO;
(ii) Other Confidential material to and from FPO or APO addressees
located outside the United States and its Territories;
(iii) Other addressees when the originator is uncertain that their
location is within U.S. boundaries. Use of return postal receipts on a
case-by-case basis is authorized.
(3) U.S. Postal Service first class mail between DoD Component
locations anywhere in the United States and its Territories. However,
the outer envelope or wrappers of such Confidential material shall be
endorsed ''POSTMASTER: Address Correction Requested/Do Not Forward.''
Certified or, if appropriate, registered mail shall be used for material
directed to DoD contractors and to non-DoD agencies of the Executive
Branch. U.S. Postal Service Express Mail Service may be used between
DoD Component locations, between DoD contractors, and between DoD
Components and DoD contractors.
(4) Within U.S. boundaries, commercial carriers that provide a
Constant Surveillance Service (CSS). Information concerning commercial
carriers that provide CSS may be obtained from the MTMC.
(5) In the custody of commanders or masters of ships of U.S.
registry who are U.S. citizens. Confidential information shipped on
ships of U.S. registry may not pass out of U.S. Government control. The
commanders or masters must give and receive classified information
receipts and agree to:
(i) Deny access to the Confidential material by unauthorized persons,
including customs inspections, with the understanding that Confidential
cargo that would be subject to customs inspection will not be unloaded;
and
(ii) Maintain control of the cargo until a receipt is obtained from
an authorized representative of the consignee.
(6) Such alternative or additional methods of transmission as the
head of any DoD Component may establish by rule or regulation, provided
those methods afford at least an equal degree of security.
(e) Transmission of Classified Material to Foreign Governments.
After a determination by designated officials pursuant to DoD Directive
5230.11 that classified information or material may be released to a
foreign government, the material shall be transferred between authorized
representatives of each government in compliance with the provisions of
this subpart. To assure compliance, each contract, agreement, or other
arrangement that involves the release of classified material to foreign
entities shall either contain transmission instructions or require that
a separate transportation plan be approved by the appropriate DoD
security and transportation officials prior to release of the material.
(See DoD TS-5105.21-M-3 /31/ for guidance regarding SCI.)
(1) Classified material to be released directly to a foreign
government representative shall be delivered or transmitted only to a
person who has been designated in writing by the recipient government as
its officer, agent, or employee (hereafter referred to as the designated
representative). Foreign governments may designate a freight forwarder
as their agent. This written designation shall contain assurances that
such person has a security clearance at the appropriate level and that
the person will assume full security responsibility for the material on
behalf of the foreign government. The recipient will be required to
execute a receipt for the material, regardless of the level of
classification.
(2) Classified material that is suitable for transfer by courier or
postal service, and which cannot be transferred directly to a foreign
government's designated representative as specified in paragraph (e)(1)
of this section, shall be transmitted by one of the methods specified in
paragraph (b), (c), or (d) of this section, for the designated
classification level to:
(i) An embassy, consulate, or other official agency of the recipient
government having extraterritorial status in the United States, or to
(ii) A U.S. Embassy or a U.S. military organization in the recipient
country or in a third-party country, if applicable, for delivery to a
designated representative of the intended recipient government. In
either case, the assurance in paragraph (e)(1) of this section, and a
receipt, must be obtained.
(3) The shipment of classified material as freight via truck, rail,
aircraft, or ship shall be in compliance with the following:
(i) Shipment Resulting from Foreign Military Sales (FMS). DoD
officials authorized to approve a FMS transaction that involves the
delivery of U.S. classified material to a foreign purchaser shall, at
the outset of negotiation or consideration of proposal, consult with DoD
transportation authorities (Military Traffic Management Command,
Military Sealift Command, Military Airlift Command, or other, as
appropriate) to determine whether secure shipment from the CONUS point
of origin to the ultimate foreign destination is feasible. Normally,
the United States will use the Defense Transportation System (DTS) to
deliver classified material to the recipient government. If, in the
course of FMS case processing, the foreign purchaser proposes to take
delivery and custody of the classified material in the United States and
use it own facilities and transportation for onward shipment to its
territory, the foreign purchaser or its designated representative shall
be required to submit a transportation plan for DoD review and approval.
This plan, as a minimum, shall specify the storage facilities, delivery
and transfer points, carriers, couriers or escorts, and methods of
handling to be used from the CONUS point of origin to the final
destination and return shipment when applicable. (See Appendix E to
this part) Security officials of the DoD Component that initiates the
FMS transaction shall evaluate the transportation plan to determine
whether the plan adequately ensures protection of the highest level of
classified material involved. Unless the DoD Component initiating the
FMS transaction approves the transportation plan as submitted, or it is
modified to meet U.S. security standards, shipment by other than DTS
shall not be permitted. Transmission instructions or the requirement
for an approved transportation plan shall be incorporated into the
security requirements of the United States Department of Defense Offer
and Acceptance (DD Form 1513).
(ii) Shipments Resulting from Direct Commercial Sales. Classified
shipments resulting from direct commercial sales must comply with the
same security standards that apply to FMS shipments. Defense
contractors, therefore, will consult, as appropriate, with the
purchasing government, the DIS Regional Security Office, and the owning
Military Department prior to consummation of a commercial contract that
will result in the shipment of classified material to obtain approval of
the transportation plan.
(iii) Delivery within the United States, Its Territories, or
Possessions. Delivery of classified material to a foreign government at
a point within the United States, its territories, or its possessions,
shall be made only to a person identified in writing by the recipient
government as its designated representative as specified in paragraph
(e)(1) of this section. The only authorized delivery points are:
(A) An embassy, consulate, or other official agency under the control
of the recipient government.
(B) Point of origin. When a designated representative of the
recipient government accepts delivery of classified U.S. material at the
point of origin (for example, a manufacturing facility or depot), the
DoD official who transfers custody shall obtain a receipt for the
classified material and assure that the recipient is cognizant or secure
means of onward movement of the classified material to its final
destination, consistent with the approved transportation plan.
(C) Military or commercial ports of embarkation (POE) that are
recognized points of departure from the United States, its territories,
or possessions, for onloading aboard a ship, aircraft, or other carrier
authorized under paragraph (e)(3)(v) of this section. In these cases,
the transportation plan shall provide for U.S.-controlled secure
shipment to the CONUS transshipment point and the identification of a
secure storage facility, government or commercial, at or in proximity to
the POE. A DoD official authorized to transfer custody is to supervise
or observe the onloading of FMS material being transported via the DTS
and other onloading wherein physical and security custody of the
material has yet to be transferred formally to the foreign recipient.
In the event that transfer of physical and security custody cannot be
accomplished promptly, the DoD official shall ensure that the classified
material is either returned to a secure storage facility of the U.S.
shipper (government or contractor); or segregated and placed under
constant surveillance of a duly cleared U.S. security force at the POE;
or held in the secure storage facility (government or commercial)
designated in the transportation plan.
(D) Freight forwarder facility that is identified by the recipient
government as its designated representative and that is cleared in
accordance with paragraph (e)(3)(vi) of this section, to the level of
the classified material to be received. In these cases, a person
identified as a designated representative must be present to accept
delivery of the classified material and receipt for it, to include full
acceptance of security responsibility.
(iv) Delivery Outside the United States, Its Territories, or
Possessions. -- (A) Delivery within the recipient country. Classified
U.S. material to be delivered to a foreign government within the
recipient country shall be delivered on arrival in the recipient country
to a U.S. Government representative who shall arrange for its transfer
to a designated representative of the recipient government. If the
shipment is escorted by a U.S. Government official authorized to
accomplish the transfer of custody, the material may be delivered
directly to the recipient government's designated representative upon
arrival.
(B) Delivery Within a Third Country. Classified material to be
delivered to a foreign government representative within a third country
shall be delivered to an agency or installation of the United States, or
of the recipient government, that has extraterritorial status or
otherwise is exempt from the jurisdiction of the third country. Unless
the material is accompanied by a U.S. Government official authorized to
accomplish the transfer of custody, a U.S. Government official shall be
designated locally to receive the shipment upon arrival and be vested
with authority to effect delivery to the intended recipient government's
designated representative.
(v) Overseas Carriers. Overseas shipments of U.S. classified
material shall be made only via ships, aircraft, or other carriers that
are:
(A) Owned or chartered by the U.S. Government or under U.S.
registry,
(B) Owned or chartered by or under the registry of the recipient
government, or
(C) Otherwise expressly authorized by the head of the DoD Component
having classification jurisdiction over the material involved. Overseas
shipments of classified material shall be escorted, prepared for
shipment, packaged, and stored onboard as prescribed elsewhere in this
subpart and in DoD 5220.22-R and DoD 5220.22-M.
(vi) Freight Forwarders. Only freight forwarders that have been
granted an appropriate security clearance by the Department of Defense
or the recipient government are eligible to receive, process, and store
U.S. classified material authorized for release to foreign governments.
However, a freight forwarder that does not have access to or custody of
the classified material need not be cleared.
(f) Consignor-Consignee Responsibility for Shipment of Bulky
Material. The consignor of a bulk shipment shall:
(1) Normally, select a carrier that will provide a single line
service from the point of origin to destination, when such a service is
available;
(2) Ship packages weighing less than 200 pounds in closed vehicles
only;
(3) Notify the consignee, and military transshipping activities, of
the nature of the shipment (including level of classification), the
means of shipment, the number of seals, if used, and the anticipated
time and date of arrival by separate communication at least 24 hours in
advance of arrival of the shipment. Advise the first military
transshipping activity that, in the event the material does not move on
the conveyance originally anticipated, the transshipping activity should
so advise the consignee with information of firm transshipping date and
estimated time of arrival. Upon receipt of the advance notice of a
shipment of classified material, consignees and transshipping activities
shall take appropriate steps to receive the classified shipment and to
protect it upon arrival.
(4) Annotate the bills of lading to require the carrier to notify the
consignor immediately by the fastest means if the shipment is unduly
delayed enroute. Such annotations shall not under any circumstances
disclose the classified nature of the commodity. When seals are used,
annotate substantially as follows:
DO NOT BREAK SEALS EXCEPT IN EMERGENCY OR UPON AUTHORITY OF CONSIGNOR
OR CONSIGNEE. IF BROKEN APPLY CARRIER'S SEALS AS SOON AS POSSIBLE AND
IMMEDIATELY NOTIFY CONSIGNOR AND CONSIGNEE.
(5) Require the consignee to advise the consignor of any shipment not
received more than 48 hours after the estmated time of arrival furnished
by the consignor or transshipping activity. Upon receipt of such
notice, the consignor shall immediately trace the shipment. If there is
evidence that the classified material was subjected to compromise, the
procedures set forth in Subpart G of this part for reporting compromises
shall apply.
(g) Transmission of COMSEC Information. COMSEC information shall be
transmitted in accordance with National COMSEC Instruction 4005.
(h) Transmission of Restricted Data. Restricted Data shall be
transmitted in the same manner as other information of the same security
classification. The transporting and handling of nuclear weapons or
nuclear components shall be in accordance with DoD Directives 4540.1
/32/ and 5210.41 /33/ and applicable DoD Component directives and
regulations.
(54 FR 26959, June 27, 1989; 54 FR 46610, Nov. 6, 1989)
/31/ See footnote 13 to 159a.33(j)
/32/ See footnote 1 to 159a.3
/33/ See footnote 1 to 159a.3
32 CFR 159a.58 Preparation of material for transmission, shipment, or
conveyance.
(a) Envelopes or Containers. (1) Whenever classified information is
transmitted, it shall be enclosed in two opaque sealed envelopes or
simliar wrappings when size permits, except as provided by the
following:
(2) Whenever classified material is transmitted of a size not
suitable for transmission in accordance with paragraph (a)(1) of this
section, it shall be enclosed in two opaque sealed containers, such as
boxes or heavy wrappings.
(i) If the classified information is an internal component of a
packageable item of equipment, the outside shell or body may be
considered as the inner enclosure provided it does not reveal classified
information.
(ii) If the classified material is an inaccessible internal component
of a bulky item of equipment that is not reasonably packageable, the
outside or body of the item may be considered to be a sufficient
enclosure provided the shell or body does not reveal classified
information.
(iii) If the classified material is an item or equipment that is not
reasonably packageable and the shell or body is classified, it shall be
concealed with an opaque covering that will hide all classified
features.
(iv) Specialized shipping containers, including closed cargo
transporters, may be used instead of the above packaging requirements.
In such cases, the container may be considered the outer wrapping or
cover.
(3) Material used for packaging shall be of such strength and
durability as to provide security protection while in transit, prevent
items from breaking out of the container, and to facilitate the
detection of any tampering with the container. The wrappings shall
conceal all classified characteristics.
(4) Closed and locked vehicles, compartments, or cars shall be used
for shipments of classified information except when another method is
authorized by the consignor. Alternative methods authorized by the
consignor must provide security equivalent to or better than the methods
specified herein. In all instances, individual packages weighing less
than 200 pounds gross shall be shipped only in a closed vehicle.
(5) To minimize the possibility of compromise of classified material
caused by improper or inadequate packaging thereof, responsible
officials shall ensure that proper wrappings are used for mailable bulky
packages. Responsible officials shall require the inspection of bulky
packages to determine whether the material is suitable for mailing or
whether it should be transmitted by other approved means.
(6) When classified material is hand-carried outside an activity, a
locked briefcase may serve as the outer wrapper. In such cases, the
addressing requirements of paragraph (b)(4) of this section do not
apply; however, the requirements of paragraph (b)(3) of this section
are applicable.
(b) Addressing. (1) Classified information shall be addressed to an
official government activity or DoD contractor with a facility clearance
and not to an individual. This is not intended, however, to prevent use
of office code numbers or such phrases in the address as ''Attention:
Research Department,'' or similar aids in expediting internal routing,
in addition to the organization address.
(2) Classified written information shall be folded or packed in such
a manner that the text will not be in direct contact with the inner
envelope or container. A receipt form shall be attached to or enclosed
in the inner envelope or container for all Secret and Top Secret
information; Confidential information will require a receipt only if
the originator deems it necessary. The mailing of written materials of
different classifications in a single package should be avoided.
However, when written materials of different classifications are
transmitted in one package, they shall be wrapped in a single inner
envelope or container. A receipt listing all classified information for
which a receipt is requested shall be attached or enclosed. The inner
envelope or container shall be marked with the highest classification of
the contents.
(3) The inner envelope or container shall show the address of the
receiving activity, classification, including, where appropriate, the
''Restricted Data'' marking, and any applicable special instructions.
It shall be carefully sealed to minimize the possibility of access
without leaving evidence of tampering.
(4) An outer or single envelope or container shall show the complete
and correct address and the return address of the sender.
(5) An outer cover or single envelope or container shall not bear a
classification marking, a listing of the contents divulging classified
information, or any other unusual data or marks that might invite
special attention to the fact that the contents are classified.
(6) Care must be taken to ensure that classified information intended
only for U.S. elements of international staffs or other organizations is
addressed specifically to those elements.
(c) Receipt Systems. (1) Top Secret information shall be transmitted
under a chain of receipts covering each individual who gets custody.
(2) Secret information shall be covered by a receipt when transmitted
to a foreign government (including foreign government embassies located
in the United States) and when transmitted between major subordinate
elements of DoD Components and other authorized addressees except that a
receipt is not required when there is a hand-to-hand transfer between
U.S. personnel and the recipient acknowledges responsibility for the
Secret information.
(3) Receipts for Confidential information are not required except
when the information is transmitted to a foreign government (including
foreign government embassies located in the United States) or upon
request.
(4) Receipts shall be provided by the transmitter of the material and
the forms shall be attached to the inner cover.
(i) Postcard receipt forms may be used.
(ii) Receipt forms shall be unclassified and contain only such
information as is necessary to identify the material being transmitted.
(iii) Receipts shall be retained for at least 2 years.
(5) In those instances where a fly-leaf (page check) form is used
with classified publications, the postcard receipt will not be required.
(d) Exceptions. Exceptions may be authorized to the requirements
contained in this subpart by the head of the Component concerned or
designee, provided the exception affords equal protection and
accountability to that provided above. Proposed exceptions that do not
meet these minimum standards shall be submitted to the DUSD(P) for
approval.
32 CFR 159a.59 Restrictions, procedures, and authorization concerning
escort or handcarrying of classified information.
(a) General Restrictions. Appropriately cleared personnel may be
authorized to escort or handcarry classified material between their duty
station and an activity to be visited subject to the following
conditions:
(1) The storage provisions of 159a.37 and 159a.38(g) of Subpart F
of this part shall apply at all stops enroute to the destination, unless
the information is retained in the personal possession and under
constant surveillance of the individual at all times. The hand carrying
of classified information on trips that involve an overnight stop is not
permissible without advance arrangements for proper overnight storage in
a U.S. Government facility or, if in the United States, a cleared
contractor's facility that has the requisite storage capability.
(2) Classified material shall not be read, studied, displayed, or
used in any manner in public conveyances or places.
(3) When classified material is carried in a private, public or
government conveyance, it shall not be placed in any detachable storage
compartment such as automobile trailers, luggage racks, aircraft travel
pods, or drop tanks nor, under any circumstances, left unattended.
(4) Responsible officials shall provide a written statement to all
individuals escorting or carrying classified material aboard commercial
passenger aircraft authorizing such transmission. This authorization
statement may be included in official travel orders and should
ordinarily permit the individual to pass through passenger control
points without the need for subjecting the classified material to
inspection. Specific procedures for carrying classified documents
aboard commercial aircraft are contained in paragraph (c) of this
section.
(5) Each activity shall list all classified information carried or
escorted by traveling personnel. All classified information shall be
accounted for.
(6) Individuals authorized to hand-carry or escort classified
material shall be fully informed of the provisions of this subpart, and
shall sign a statement to that effect prior to the issuance of written
authorization or identification media. This statement shall be retained
for a minimum of 2 years; it need not be executed on each occasion that
the individual is authorized to transport classified information
provided a signed statement is on file.
(b) Restrictions on Handcarrying Classified Information Aboard
Commercial Passenger Aircraft. Classified information shall not be
hand-carried aboard commercial passenger aircraft unless:
(1) There is neither time nor means available to move the information
in the time required to accomplish operational objectives or contract
requirements.
(2) The handcarry has been authorized by an appropriate official in
accordance with paragraph (d) of this section.
(3) In the case of the handcarry of classified information across
international borders, arrangements have been made to ensure that such
information will not be opened by customs, border, postal, or other
inspectors, either U.S. or foreign.
(4) The handcarry is accomplished aboard a U.S. carrier. Foreign
carriers will be utilized only when no U.S. carrier is available and
then the approving official must ensure that the information will remain
in the custody and physical control of the U.S. escort at all times.
(c) Procedures for Handcarrying Classified Information Aboard
Commercial Passenger Aircraft -- (1) Basic requirements. (i) Advance
and continued coordination by the DoD activity and contractor officials
shall be made with departure airline and terminal officials and, when
possible, with intermediate transfer terminals to develop mutually
satisfactory arrangements within the terms of this issuance and Federal
Aviation Administration (FAA) guidance. Specifically, a determination
should be made beforehand whether documentation described in paragraph
(c)(4) of this section, will be required. Local FAA Security Officers
can be of assistance in making this determination. To aid coordination
and planning, a listing of FAA field offices is at Appendix D to this
part.
(ii) The individual designated as courier shall be in possession of
either DD Form 2, ''Armed (or Uniformed) Services Identification Card''
(any color), or other DoD or contractor picture identification card and
written authorization to carry classified information.
(2) Procedures for carrying classified information in envelopes.
Persons carrying classified information should process through the
airline ticketing and boarding procedures the same as all other
passengers except for the following:
(i) The classified information being carried shall contain no metal
bindings and shall be contained in sealed envelopes. Should such
envelopes be contained in a briefcase or other carry-on luggage, the
briefcase or luggage shall be routinely offered for opening for
inspection for weapons. The screening officials may check envelopes by
X-ray machine, flexing, feel, and weight, without opening the envelopes
themselves.
(ii) Opening or reading of the classified document by the screening
official is not permitted.
(3) Procedures for transporting classified information in packages.
Classified information in sealed or packaged containers shall be
processed as follows:
(i) The government or contractor official who has authorized the
transport of the classified information shall notify the appropriate air
carrier in advance.
(ii) The passenger carrying the information shall report to the
affected airline ticket counter before boarding, present his
documentation, and the package or cartons to be exempt from screening.
The airline representative will review the documentation and description
of the containers to be exempt.
(iii) If satisfied with the identification of the passenger and his
documentation, the official will provide the passenger with an escort to
the screening station and authorize the screening personnel to exempt
the container from physical or other type inspection.
(iv) If the airline official is not satisfied with the identification
of the passenger or the authenticity of his documentation, the passenger
will not be permitted to board, and not be subject to further screening
for boarding purposes.
(v) The actual loading and unloading of the information will be under
the supervision of a representative of the air carrier; however,
appropriately cleared personnel shall accompany the material and keep it
under surveillance during loading and unloading operations. In
addition, appropriately cleared personnel must be available to conduct
surveillance at any intermediate stops where the cargo compartment is to
be opened.
(vi) DoD Components and contractor officials shall establish and
maintain appropriate liaison with local FAA officials, airline
representatives and airport terminal administrative and security
officials. Prior notification is emphasized to ensure that the airline
representative can make timely arrangements for courier screening.
(4) Documentation. (i) When authorized to carry sealed envelopes or
containers containing classified information, both government and
contractor personnel shall present an identification card carrying a
photograph, descriptive data, and signature of the individual. (If the
identification card does not contain date of birth, height, weight, and
signature, these items must be included in the written authorization.)
(A) DoD personnel shall present an official identification issued by
U.S. Government agency.
(B) Contractor personnel shall present identification issued by the
contractor or the U.S. Government. Contractors' identification cards
shall carry the name of the employing contractor, or otherwise be marked
to denote ''contractor.''
(C) The courier shall have the original of the authorization letter.
A reproduced copy is not acceptable; however, the traveler shall have
sufficient authenticated copies to provide a copy to each airline
involved. The letter shall be prepared on letterhead stationery of the
agency or contractor authorizing the carrying of classified material in
addition, the letter shall:
(1) Give the full name of the individual and his employing agency or
company;
(2) Describe the type of identification the individual will present
(for example, Naval Research Laboratory Identification Card, No. 1234;
ABC Corporation Identification Card No. 1234);
(3) Describe the material being carried (for example, three sealed
packages, 9" 8" 24", addressee and addressor);
(4) Identify the point of departure, destination, and known transfer
points;
(5) Carry a date of issue and an expiration date;
(6) Carry the name, title, and signature of the official issuing the
letter. Each package or carton to be exempt shall be signed on its face
by the official who signed the letter; and
(7) Carry the name of the government agency designated to confirm the
letter of authorization, and its telephone number. The telephone number
of the agency designated shall be an official U.S. Government number.
(ii) Information relating to the issuance of DoD identification cards
is contained in DoD Instruction 1000.13 /34/ . The green, gray, and red
DD Forms 2 and other DoD and contractor picture ID card are acceptable
to FAA.
(iii) The Director, DIS, shall establish standards for the issuance
of identification cards when required by contractor employees selected
as couriers or whose duties will involve handcarrying of classified
material.
(d) Authority to Approve Escort or Handcarry of Classified
Information Aboard Commercial Passenger Aircraft -- (1) Within the
United States, its Territories, and Canada. (i) DoD Component officials
who have been authorized to approve travel orders and designate couriers
may approve the escort or handcarry of classified information within the
United States, its Territories, and Canada.
(ii) The Director, DIS, may authorize contractor personnel to
handcarry classified material in emergency or time-sensitive situations
subject to adherence with the procedures and limitations specified in
this Section.
(2) Outside the United States, its Territories, and Canada. The head
of a DoD Component, or single designee at the headquarters or major
command level, may authorize the escort or handcarrying of classified
information outside the area encompassed by the boundaries of the United
States, its Territories, and Canada upon certification by the requestor
that:
(i) The material is not present at the destination;
(ii) The material is needed urgently for a specified official
purpose; and
(iii) There is a specified reason that the material could not be
transmitted by other approved means to the destination in sufficient
time for the stated purpose.
/34/ See footnote 1 to 159a.3.
32 CFR 159a.59 Subpart J -- Disposal and Destruction
32 CFR 159a.61 Policy.
Documentary record information originated or received by a DoD
Component in connection with the transaction of public business, and
preserved as evidence of the organization, functions, policies,
operations, decisions, procedures, or other activities of any U.S.
Government department or agency or because of the informational value of
the data contained therein, may be disposed of or destroyed only in
accordance with DoD Component record management regulations. Nonrecord
classified information, and other material of similar temporary nature,
shall be destroyed when no longer needed under procedures established by
the head of the cognizant DoD Component. These procedures shall
incorporate means of verifying the destruction of classified information
and material and be consistent with the following requirements.
32 CFR 159a.62 Methods of destruction.
Classified documents and material shall be destroyed by burning or,
with the approval of the cognizant DoD Component head or designee, by
melting, chemical decomposition, pulping, pulverizing, cross-cut
shredding, or mutilation sufficient to preclude recognition or
reconstruction of the classified information. (Strip shredders
purchased prior to June 1, 1986 may continue to be used but only in
circumstances where reconstruction of the residue is precluded.
Shredding significant amounts of unclassified material together with
classified material normally will meet this requirement.)
32 CFR 159a.63 Destruction procedures.
(a) Procedures shall be instituted that ensure all classified
information intended for destruction actually is destroyed. Destruction
records and imposition of a two-person rule, that is, having two cleared
persons involved in the entire destruction process, will satisfy this
requirement for Top Secret information. Imposition of a two-person
rule, without destruction records, will satisfy this requirement for
Secret information, as will use of destruction records without
imposition of the two-person rule. Only one cleared person needs to be
involved in the destruction process for Confidential information.
(b) When burn bags are used for the collection of classified material
that is to be destroyed at central destruction facilities, such bags
shall be controlled in a manner designed to minimize the possibility of
their unauthorized removal and the unauthorized removal of their
classified contents prior to actual destruction. When filled, burn bags
shall be sealed in a manner that will facilitate the detection of any
tampering with the bag.
(c) Procedures to ensure that all classified information intended for
destruction actually is destroyed, other than those in paragraphs (a)
and (b) of this section, shall be submitted to the DoD Component's
senior official ( 159a.93(b) and (c)) for approval.
32 CFR 159a.64 Records of destruction.
(a) Records of destruction are required for Top Secret information.
The record shall be dated and signed at the time of destruction by two
persons cleared for access to Top Secret information. However, in the
case of Top Secret information placed in burn bags for central disposal,
the destruction record may be signed by the officials when the
information is so placed and the bags are sealed. Top Secret burn bags
shall be numbered serially and a record kept of all subsequent handling
of the bags until they are destroyed. This record may be in lieu of
actual burn bag receipts and shall be maintained for a minimum of 2
years.
(b) Records of destruction of Secret and Confidential information are
not required except for NATO Secret and some limited categories of
specially controlled Secret information. When records of destruction
are used for Secret information, only one cleared person has to sign
such records. (DoD Directive 5100.55 provides guidance on the
destruction of NATO classified material.)
(c) Records of destruction shall be maintained for 2 years.
32 CFR 159a.65 Classified waste.
Waste material, such as handwritten notes, carbon paper, typewriter
ribbons, and working papers that contains classified information must be
protected to prevent unauthorized disclosure of the information.
Classified waste shall be destroyed when no longer needed by a method
described in 159a.62. Destruction records are not required.
32 CFR 159a.66 Classified document retention.
(a) Classified documents that are not permanently valuable records of
the government shall not be retained more than 5 years from the date of
origin, unless such retention is authorized by and in accordance with
DoD Component record disposition schedules.
(b) Throughout the Department of Defense, the head of each activity
shall establish at least one clean-out day each year where a portion of
the work performed in every office with classified information stored is
devoted to the destruction of unneeded classified holdings.
32 CFR 159a.66 Subpart K -- Security Education
32 CFR 159a.68 Responsibility and objectives.
Heads of DoD Components shall establish security education programs
for their personnel. Such programs shall stress the objectives of
improving the protection of information that requires it. They shall
also place emphasis on the balance between the need to release the
maximum information appropriate under the Freedom of Information Act (32
CFR Part 285) and the interest of the Government in protecting the
national security.
32 CFR 159a.69 Scope and principles.
The security education program shall include all personnel authorized
or expected to be authorized access to classified information. Each DoD
Component shall design its program to fit the requirements of different
groups of personnel. Care must be exercised to assure that the program
does not evolve into a perfunctory compliance with formal requirements
without achieving the real goals of the program. The program shall, as
a minimum, be designed to:
(a) Advise personnel of the adverse effects to the national security
that could result from unauthorized disclosure and of their personal,
moral, and legal responsibility to protect classified information within
their knowledge, possession, or control;
(b) Indoctrinate personnel in the principles, criteria, and
procedures for the classification, downgrading, declassification,
marking, control and accountability, storage, destruction, and
transmission of classified information and material, as prescribed in
this Regulation, and alert them to the strict prohibitions against
improper use and abuse of the classification system;
(c) Familiarize personnel with procedures for challenging
classification descisions believed to be improper;
(d) Familiarize personnel with the security requirements of their
particular assignment;
(e) Inform personnel of the techniques employed by foreign
intelligence activities in attempting to obtain classified information,
and their responsibility to report such attempts;
(f) Advise personnel of the penalties for engaging in espionage
activities;
(g) Advise personnel of the strict prohibition against discussing
classified information over an unsecure telephone or in any other manner
that permits interception by unauthorized persons;
(h) Inform personnel of the penalties for violation or disregard of
the provisions of this part (see 159a.97(b));
(i) Instruct personnel that individuals having knowledge, possession,
or control of classified information must determine, before
disseminating such information, that the prospective recipient has been
cleared for access by competent authority; needs the information in
order to perform his or her official duties; and can properly protect
(or store) the information.
32 CFR 159a.70 Initial briefings.
DoD personnel granted a security clearance (see 159a.53) shall not
be permitted to have access to classified information until they have
received an initial security briefing and have signed Standard Form 189,
''Classified Information Nondisclosure Agreement.'' DoD 5200.1-PH-1 /35/
provides a sample briefing and additional information regarding Standard
Form 189. Cleared personnel employed prior to June 1, 1986 must sign
Standard Form 189 as soon as practicable but not later than February 28,
1990.
/35/ See footnote 2 to 159a.3
32 CFR 159a.71 Refresher briefings.
Programs shall be established to provide, at a minimum, annual
security training for personnel having continued access to classified
information. The elements outlined in 159a.69 shall be tailored to fit
the needs of experienced personnel.
32 CFR 159a.72 Foreign travel briefings.
(a) Personnel who have had access to classified information shall be
given a foreign travel briefing, before travel, to alert them to their
possible exploitation under the following conditions:
(1) Travel to or through communist-controlled countries; and
(2) Attendance at international scientific, technical, engineering or
other professional meetings in the United States or in any country
outside the United States where it can be anticipated that
representatives of Communist-controlled countries will participate or be
in attendance. (See also DoD Directive 5240.6 /3/ /6/ .)
(b) Individuals who travel frequently, or attend or host meetings of
foreign visitors as described in paragraph (a)(2) of this section, need
not be briefed for each occasion, but shall be provided a thorough
briefing at least once every 6 months and a general reminder of security
responsibilities before each such activity.
/3/ /6/ See footnote 1 to 159a.3.
32 CFR 159a.73 Termination briefings.
(a) Upon termination of employment, administrative withdrawal of
security clearance, or contemplated absence from duty or employment for
60 days or more, DoD military personnel and civilian employees shall be
given a termination briefing, return all classified material, and
execute a Security Termination Statement. This statement shall include:
(1) An acknowledgment that the individual has read the appropriate
provisions of the Espionage Act, other criminal statutes, DoD
regulations applicable to the safeguarding of classified information to
which the individual has had access, and understands the implications
thereof;
(2) A declaration that the individual no longer has any documents or
material containing classified information in his or her possession;
(3) An acknowledgement that the individual will not communicate or
transmit classified information to any unauthorized person or agency;
and
(4) An acknowledgement that the individual will report without delay
to the FBI or the DoD Component concerned any attempt by any
unauthorized person to solicit classified information.
(b) When an individual refuses to execute a Security Termination
Statement, that fact shall be reported immediately to the security
manager of the cognizant organization concerned. In any such case, the
individual involved shall be debriefed orally. The fact of a refusal to
sign a Security Termination Statement shall be reported to the Director,
Defense Investigative Service who shall assure that it is recorded in
the Defense Central Index of Investigations.
(c) The security termination statement shall be retained by the DoD
Component that authorized the individual access to classified
information for the period specified in the Component's record retention
schedules, but for a minimum of 2 years after the individual is given a
termination briefing.
32 CFR 159a.73 Subpart L -- Foreign Government Information
32 CFR 159a.75 Classification.
(a) Classification. (1) Foreign government information classified by
a foreign government or international organization of governments shall
retain its original classification designation or be assigned a U.S.
classification designation that will ensure a degree of protection
equivalent to that required by the government or organization that
furnished the information. Original classification authority is not
required for this purpose.
(2) Foreign government information that was not classified by a
foreign entity but was provided with the expectation, expressed or
implied, that the information, the source of the information, or both,
are to be held in confidence must be classified by an original
classification authority. The two-step procedure for classification
prescribed in 159a.15(c) does not apply to the classification of such
foreign government information because E.O. 12356 states a presumption
of damage to the national security in the event of unauthorized
disclosure of such information. Therefore, foreign government
information shall be classified at least Confidential, but higher
whenever the damage criteria of 159a.11 (b) or (c) are determined to be
met.
(b) Duration of Classification. (1) Foreign government information
shall not be assigned a date or event for automatic declassification
unless specified or agreed to by the foreign entity.
(2) Foreign government information classified by the Department of
Defense under this or previous regulations shall be protected for an
indefinite period (see 159a.77(e)).
32 CFR 159a.76 Declassification.
(a) Policy. In considering the possibility of declassification of
foreign government information, officials shall respect the intent of
this regulation to protect foreign government information and
confidential foreign sources.
(b) Systematic Review. When documents containing foreign government
information are encountered during the systematic review process they
shall be referred to the originating agency for a declassification
determination. Consultation with the foreign originator through
appropriate channels may be necessary before final action can be taken.
(c) Mandatory Review. Requests for mandatory review for
declassification of foreign government information shall be processed
and acted upon in accordance with the provisions of 159a.26, except
that foreign government information will be declassified only in
accordance with the guidelines developed for such purpose and after
necessary consultation with other DoD Components or government agencies
with subject matter interest. When these guidelines cannot be applied
to the foreign government information requested, or in the absence of
such guidelines, consultation with the foreign originator through
appropriate channels normally should be effected prior to final action
taken on the request. When the responsibile DoD Component is
knowledgeable of the foreign originator's view toward declassification
or continued classification of the types of information requested,
consultation with the foreign originator may not be necessary.
32 CFR 159a.77 Marking.
(a) Equivalent U.S. Classification Designations. Except for the
foreign security classification designation RESTRICTED, foreign
classification designations, including those of international
organizations of governments, that is, NATO, generally parallel U.S.
classification designations. A table of equivalents is contained in
Appendix A to this part.
(b) Marking NATO Documents. Classified documents originated by NATO,
if not already marked with the appropriate classification in English,
shall be so marked. Markings required under 159a.34(c) shall not be
placed on documents originated by NATO. Documents originated by NATO
that are marked RESTRICTED shall be marked with the following additional
notation: ''To be safeguarded in accordance with USSAN Instruction
1-69'' (see DoD Directive 5100.55).
(c) Marking Other Foreign Government Documents. (1) If the security
classification designation of foreign government documents is shown in
English, no other classification marking shall be applied. If the
foreign classification designation is not shown in English, the
equivalent overall U.S. classification designation (see Appendix A to
this part) shall be marked conspicuously on the document. When foreign
government documents are marked with a classification designation having
no U.S. equivalent, as in the last column of Appendix A to this part,
such documents shall be marked in accordance with paragraph (c)(2) of
this section.
(2) Certain foreign governments use a fourth classification
designation as shown in the last column of Appendix A to this part.
Such designations equate to the foreign classification RESTRICTED. If
the foreign government documents are marked with any of the
classification designations listed in the last column of Appendix A to
this part, no other classification marking shall be applied. In all
such cases, the notation, ''This classified material is to be
safeguarded in accordance with DoD 5200.1-R or DoD 5220.22-M,'' shall be
shown on the face of the document.
(3) Other marking requirements prescribed by this Regulation for U.S.
classified documents are not applicable to documents of foreign
governments or international organizations of governments.
(d) Marking of DoD Classification Determinations. Foreign documents
containing foreign government information not classified by the foreign
government but provided to the Department of Defense in confidence shall
be classified as prescribed in 159a.75(a)(2) and marked with the
appropriate U.S. classification.
(e) Marking of Foreign Government Information in DoD Documents. (1)
Except where such markings would reveal that information is foreign
government information when that fact must be concealed, or reveal a
confidential source or relationship not otherwise evident in the
document or information, foreign government information incorporated in
DoD documents shall be identified in a manner that ensures that such
information is not declassified prematurely or made accessible to
nationals of a third country without consent of the originator. This
requirement may be satisfied by marking the face of the document
''FOREIGN GOVERNMENT INFORMATION,'' or with another marking that
otherwise indicates that the information is foreign government
information, and by including the appropriate identification in the
portion or paragraph classification markings, for example, (NS) or
(U.K.-C). All other markings prescribed by 159a.31(d) are applicable to
these documents. In addition, DoD classified documents that contain
extracts of NATO classified information shall bear a marking
substantially as follows on the cover or first page: ''THIS DOCUMENT
CONTAINS NATO CLASSIFIED INFORMATION.''
(2) When foreign RESTRICTED or NATO RESTRICTED information is
included in an otherwise unclassified DoD document, the DoD document
shall be marked CONFIDENTIAL. All requirements of 159a.31(d) apply to
such documents. Portion markings on such a document include, for
example ''(U),'' ''(NR),'' and ''(FRG-R).'' In addition, the appropriate
caveat from paragraph (a) of this section, shall be included on the face
of the document.
(3) The ''Classified by'' line of DoD documents containing only
foreign government information normally shall be completed with the
identity of the foreign government or international organization
involved, for example, ''Classified by Government of Australia'' or
''Classfied by NATO,'' provided that other requirements of 159a.31(e)
do not pertain to such documents.
(4) The ''Declassify on'' line of DoD documents containing foreign
government information normally shall be completed with the notation
''Originating Agency's Determination Required'' or ''OADR'' (see
159a.36 and 159a.75(b)).
32 CFR 159a.78 Protective measures.
(a) NATO Classified Information. NATO classified information shall
be safeguarded in accordance with the provisions of DoD Directive
5100.55.
(b) Other Foreign Government Information. (1) Classified foreign
government information other than NATO information shall be protected as
is prescribed by this part for U.S. classified information of a
comparable classification.
(2) Foreign government information, unless it is NATO information,
that is marked under 159a.77(c)(2) or 159a.77(e)(2) shall be protected
as U.S. CONFIDENTIAL, except that such information may be stored in
locked filing cabinets, desks, or other similar closed spaces that will
prevent access by unauthorized persons.
32 CFR 159a.78 Subpart M -- Special Access Programs
32 CFR 159a.80 Policy.
It is the policy of the Department of Defense to use the security
classification categories and the applicable sections of E.O. 12356 and
its implementing ISOO Directive, to limit access to classified
information on a ''need-to-know'' basis to personnel who have been
determined to be trustworthy. It is further policy to apply the
''need-to-know'' principle in the regular system so that there will be
no need to resort to formal Special Access Programs. Also, need-to-know
control principles shall be applied within Special Access Programs. In
this context, Special Access Programs may be created or continued only
on specific showing that:
(a) Normal management and safeguarding procedures are not sufficient
to limit ''need-to-know'' or access; and
(b) The number of persons who will need access will be reasonably
small and commensurate with the objective of providing extra protection
for the information invoved.
32 CFR 159a.81 Establishment of special access programs.
(a) Procedures for the establishment of Special Access Programs
involving NATO classified information are based on international treaty
requirements (see DoD Directive 5100.55).
(b) The policies and procedures for access to and dissemination of
Restricted Data and Critical Nuclear Weapon Design Information are
contained in DoD Directive 5210.2.
(c) Special Access Programs for foreign intelligence information
under the cognizance of the Director of Central Intelligence, or those
of the National Telecommunications and Information Systems Security
Committee originate outside the Department of Defense. However,
coordination with the DUSD(P) and the Component's central point of
contact is necessary before the establishment or implementation of any
such Programs by any DoD Component. The information required by
159a.80(f)(1) will be provided.
(d) Excluding those Programs and that information specified in
paragraphs (a)(1), (2), and (3) of this section, Special Access Programs
shall be established within the Military Departments by:
(1) Submitting to the Secretary of the Department the information
required under 159a.80(f)(1).
(2) Obtaining written approval from the Secretary of the Department;
(3) Providing to the DUSD(P) notice of the approval; and
(4) Maintaining the information and rationale upon which approval was
granted within the Military Department's central office.
(e) Excluding those Programs and that information in paragraphs
(d)(1), (2), and (3) of this section, Special Access Programs that are
desired to be established in any DoD Component other than the Military
Departments shall be submitted with the information referred to in
159a.80(f)(1) to the DUSD(P) for approval.
(f) Upon specific written notice to one of the appropriate DoD
Special Access Program approval officials, receipt of their written
concurrence, protective Special Access Program controls may be applied
to a prospective Special Access Program for up to a 6-month period from
the date of such notice. However, in all instances, the Program must be
terminated as a prospective Special Access Program or formally approved
as a Special Access Program by the end of the 6-month time period.
(g) Unless under DoD Directive S-5210.36 /3/ /7/ , Special Access
Programs which involve one or more DoD Components, or a DoD Component
and a non-DoD activity, shall be covered by a written agreement which
must document who has the principal security responsibility, who is the
primary sponsor of the Program, and who is responsible for obtaining
Special Access Program approval.
/3/ /7/ See footnote 13 to 159a.33(j)
32 CFR 159a.82 Review of special access programs.
(a) Excluding those Programs specified in 159a.81 (a), (b), or (c),
each Special Access Program shall be reviewed annually by the DoD
Component responsible for establishment of the Program. To accommodate
such reviews, DoD Components shall institute procedures to ensure the
conduct of annual security inspections, with or without prior notice,
and regularly scheduled audits by security, contract administration, and
audit organizations. Also, Program managers shall ensure that Special
Access Program activities have undergone a current review by legal
counsel for compliance with law, executive order, regulation, and
national policy. To accomplish such reviews, specially cleared pools of
attorneys may be utilized, but in all cases legal counsel shall be
provided with all information necessary to perform such reviews.
(b) Special Access Programs, excluding those specified in 159a.81
(a), (b), or (c), or those required by treaty or international
agreement, shall terminate automatically every 5 years unless
reestablished in accordance with the procedures contained in 159a.81.
32 CFR 159a.83 Control and central office administration.
(a) Special Access Programs shall be controlled and managed in
accordance with DoD Directive 5205.7 /3/ /8/ . Each DoD Component shall
appoint a Special Access Program coordinator to establish and maintain a
central office and to serve as a single point of contact for information
concerning the establishment and security administration of all Special
Access Programs established by or existing in the Component. These
officials shall report to the DUSD(P) on the status of DoD Special
Access Programs within the Component to include:
(1) The establishment of a Special Access Program as required by
159a.81(d)(3); and
(2) Changes in Program status as required by 159a.85 (b) or (c).
(b) Officials serving as single points of contact, as well as members
of their respective staffs and other persons providing support to
Special Access Programs who require access to multiple sets of
particularly sensitive information, shall be subject to a
counterintelligence-scope polygraph examination periodically but not
less than once every 5 years. Additionally, such testing will be
subject to the limitations imposed by Congress. The program for each
DoD Component, as well as requests for waiver, shall be submitted for
approval by the DUSD(P).
/3/ /8/ See footnote 1 to 159a.3
32 CFR 159a.84 Codewords and nicknames.
Excluding those Programs specified in 159a.81 (a), (b), and (c),
each Special Access Program will be assigned a classified code word, or
an unclassified nickname, or both. DoD Components other than Military
Departments may request codewords and nicknames from the DUSD(P)
individually or in block. If codewords or nicknames are obtained in
block, however, the issuing Component shall promptly notify the DUSD(P)
upon activitation and assignment.
32 CFR 159a.85 Reporting of special access programs.
(a) Report of Establishment. Reports to the Secretary of the
Military Department or the DUSD(P) required under 159a.81 for Special
Access Programs shall include:
(1) The responsible department, agency, or DoD Component, including
office identification;
(2) The codeword and/or nickname of the Program;
(3) The relationship, if any, to other Special Access Programs in the
Department of Defense or other government agencies;
(4) The rationale for establishing the Special Access Program
including the reason why normal management and safeguarding procedures
for classified information are inadequate;
(5) The estimated number of persons granted special access in the
responsible DoD Component; other DoD Components; other government
agencies; contractors; and the total of such personnel;
(6) A summary statement pertaining to the Program security
requirements with particular emphasis upon those personnel security
requirements governing access to Program information;
(7) The date of Program establishment;
(8) The estimated number and approximate dollar value, if known, of
carve-out contracts that will be or are required to support the Program;
and
(9) The DoD Component official who is the point of contact (last
name, first name, middle initial; position or title; mailing address;
and telephone number).
(10) A security plan and appropriate security classification guide
and notification that a proper DD Form 254, ''Contract Security
Classification Specification,'' has been issued to contractors
participating in the Program.
(b) Annual Reports. DoD Component annual reports from other than the
Military Departments to the DUSD(P) shall be submitted not later than
January 31 of each year, showing the changes in information provided
under paragraph (a) of this section, as well as the date of last review.
Annual reports shall reflect actual rather than estimated numbers of
carve-out contracts and persons granted access and shall summarize the
results of the inspections and audits required by 159a.82(a). Reports
from the Military Departments which have approval authority will
summarize the required reviews which have been conducted during the year
by the central offices, to include details and numbers of carve-out
contracts associated with approved Special Access Programs and their
overall security posture and numbers of approved Programs by type.
Additionally, the Military Department Secretaries authorized to approve
such Programs shall furnish a name listing, by unclassified nickname if
practicable, or approved Special Access Programs under their cognizance,
and they will report any changes to the listing as they occur pursuant
to the notification requirements of 159a.81(d)(3), that is, additions,
deletions, and corrections to the DUSD(P). The effective date of
information in the annual reports shall be December 31.
(c) Termination Reports. The DUSD(P) shall be notified upon
termination of a Special Access Program.
32 CFR 159a.86 Accounting for special access programs.
Each of the central offices which must be identified in accordance
with 159a.83(a) shall maintain a complete listing of currently approved
DoD Special Access Programs which encompasses the information outlined
in 159a.85(a). These listings shall be readily available to the DUSD(P)
or his designated representatives.
32 CFR 159a.87 Limitations on access.
Access to data reported under this subpart shall be limited to the
DUSD(P) and the minimum number of properly indoctrinated staff necessary
to perform the functions assigned the DUSD(P) herein. Access may not be
granted to any other person for any purpose without the approval of the
DoD Components sponsoring the Special Access Programs concerned.
32 CFR 159a.88 ''Carve-Out'' contracts.
(a) The Secretaries of the Military Departments and the DUSD(P), or
their designees, shall ensure that, in those Special Access Programs
involving contractors, special access controls are made applicable by
legally binding instruments.
(b) To the extent necessary for DIS to execute its security
responsibilities with respect to Special Access Programs under its
security cognizance, DIS personnel shall have access to all information
relating to the administration of these Programs.
(c) Excluding those Programs specified in 159a.81(c), the use of
''carve-out'' contracts that relieve the DIS from inspection
responsibility under the Defense Industrial Security Program is
prohibited unless:
(1) Such contract supports a Special Access Program approved and
administered under 159a.81;
(2) Mere knowledge of the existence of a contract or of its
affiliation with the Special Access Program is classified information;
and
(3) Carve-out status is approved for each contract by the Secretary
of a Military Department, the Director, NSA, the DUSD(P), or their
designees.
(d) Approval to establish a ''carve-out'' contract must be requested
from the Secretary of a Military Department, or designee(s), the
Director, NSA, or designee(s), or in the case of other DoD Components,
from the DUSD(P). Approved ''carve-out'' contracts shall be assured the
support necessary for the requisite protection of the classified
information involved. The support shall be specified through a system
of controls that shall provide for:
(1) A written security plan, oral waivers of which are prohibited
except in critical situations that must be documented as soon as
possible after the fact.
Note: The plan must identify that DD Forms 254 have been distributed
to the Defense Investigative Service as outlined in DoD Directive
5205.7.
(2) Professional security personnel at the sponsoring DoD Component
performing security inspections at each contractor's facility which
shall be conducted, at a minimum, with the frequency prescribed by
paragraph 4-103 of DoD 5220.22-R;
(3) ''Carve-out'' contracting procedures;
(4) A central office of record; and
(5) An official to be the single point of contact for security
control and administration. DoD Components other than the Military
Departments and NSA shall submit such appropriate rationale and security
plan along with requests for approval to the DUSD(P).
(e) An annual inventory of carve-out contracts shall be conducted by
each DoD Component which participates in Special Access Programs.
(f) This subsection relates back to the date of execution for each
contract to which carve-out contracting techniques are applied. The
carve-out status of any contract expires upon termination of the Special
Access Program which it supports.
32 CFR 159a.89 Oversight reviews.
(a) DUSD(P) shall conduct oversight reviews, as required, to
determine compliance with this subpart.
(b) Pursuant to statutory authority, the Inspector General,
Department of Defense, shall conduct oversight of Special Access
Programs.
32 CFR 159a.89 Subpart N -- Program Management
32 CFR 159a.91 Executive branch oversight and policy direction.
(a) National Security Council. Pursuant to the provisions of E.O.
12356, the NSC shall provide overall policy direction for the
Information Security Program.
(b) Administrator of General Services. The Administrator of General
Services is responsible for implementing and monitoring the Information
Security Program established under E.O. 12356. In accordance with E.O.
12356, the Administrator delegates the implementation and monitorship
functions of the Program to the Director of the ISOO.
(c) Information Security Oversight Office -- (1) Composition. The
ISOO has a full-time director appointed by the Administrator of General
Services with approval of the President. The Director has the authority
to appoint a staff for the office.
(2) Functions. The Director of the ISOO is charged with the
following principal functions that pertain to the Department of Defense:
(i) Oversee DoD actions to ensure compliance with E.O. 12356
implementing directives, for example, the ISOO Directive No. 1 and this
part;
(ii) Consider and take action on complaints and suggestions from
persons within or outside the government with respect to the
administration of the Information Security Program;
(iii) Report annually to the President through the NSC on the
implementation of E.O. 12356;
(iv) Review this Regulation and DoD guidelines for systematic
declassification review; and
(v) Conduct on-site reviews of the Information Security Program of
each DoD Component that generates or handles classified information.
(3) Information Requests. The Director of the ISOO is authorized to
request information or material concerning the Department of Defense, as
needed by the ISOO in carrying out its functions.
(4) Coordination. Heads of DoD Components shall ensure that any
significant requirements levied directly on the Component by the ISOO
are brought to the attention of the Director of Security Plans and
Programs, ODUSD(P).
32 CFR 159a.92 Department of Defense.
(a) Management Responsibility. (1) The DUSD(P) is the Senior DoD
Information Security Authority having DoD-wide authority and
responsibility to ensure effective and uniform compliance with and
implementation of E.O. 12356 and its implementing ISOO Directive No. 1.
As such, the DUSD(P) shall have primary responsibility for providing
guidance, oversight and approval of policy and procedures governing the
DoD Information Security Program. The DUSD(P) or his designee may
approve waivers or exceptions to the provisions of this part to the
extent such action is consistent with E.O. 12356 and ISOO Directive No.
1.
(2) The heads of DoD Components may approve waivers to the provisions
of this part only as specifically provided for herein.
(3) The Director, NSA/Chief, Central Security Service, under 32 CFR
Part 159, is authorized to impose special requirements with respect to
the marking, reproduction, distribution, accounting, and protection of
and access to classified cryptologic information. In this regard, the
Director, NSA, may approve waivers or exceptions to these special
requirements. Except as provided in 159a.6 the authority to lower any
COMSEC security standards rests with the Secretary of Defense. Requests
for approval of such waivers or exceptions to established COMSEC
security standards which, if adopted, will have the effect of lowering
such standards, shall be submitted to the DUSD(P) for approval by the
Secretary of Defense.
32 CFR 159a.93 DoD components.
(a) General. The head of each DoD Component shall establish and
maintain an Information Security Program designed to ensure compliance
with the provisions of this part throughout the Component.
(b) Military Departments. In accordance with 32 CFR Part 159 the
Secretary of each Military Department shall designate a Senior
Information Security Authority who shall be responsible for complying
with and implementing this part within the Department.
(c) Other Components. In accordance with 32 CFR Part 159, the head
of each other DoD Component shall designate a Senior Information
Security Authority who shall be responsible for complying with and
implementing this Regulation within their respective Component.
(d) Program Monitorship. The Senior Information Security Authorities
designated under paragraphs (b) and (c) of this section, are responsible
within their respective jurisdictions for monitoring, inspecting with or
without prior announcement, and reporting on the status of
administration of the DoD Information Security Program at all levels of
activity under their cognizance.
(e) Field Program Management. (1) Throughout the Department of
Defense, the head of each activity shall appoint, in writing, an
official to serve as security manager for the activity. This official
shall be responsible for the administration of an effective Information
Security Program in that activity with particular emphasis on security
education and training, assignment of proper classifications,
downgrading and declassification, safeguarding, and monitorship, to
include sampling classified documents for the purpose of assuring
compliance with this part.
(2) Activity heads shall ensure that officials appointed as security
managers either possess, or obtain within a reasonable time after
appointment, knowledge of and training in the Information Security
Program commensurate with the needs of their positions. The Director of
Security Plans and Programs, ODUSD(P) shall, with the assistance of the
Director, Defense Security Institute, develop minimum standards for
training of activity security managers. Such training should result in
appropriate certifications to be recorded in the personnel files of the
individuals involved.
(3) Activity heads shall ensure that officials appointed as security
managers are authorized direct and ready access to the appointing
official on matters concerning the Information Security Program. They
also shall provide sufficient resources of time, staff, and funds to
permit accomplishment of the security manager's responsibilities, to
include meaningful oversight of the Information Security Program at all
levels of the activity.
32 CFR 159a.94 Information requirements.
(a) Information Requirements. DoD Components shall submit on a
fiscal year basis a consolidated report concerning the Information
Security Program of the Component on SF 311, ''Agency Information
Security Program Data,'' to reach the ODUSD(P) by October 20 of each
year. SF 311 shall be completed in accordance with the instructions
thereon and augmenting instructions issued by the ODUSD(P). The
ODUSD(P) shall submit the DoD report (SF 311) to the ISOO by October 31
of each year. Interagency Report Control Number 0230-GSA-AN applies to
this information collection system as well as to that contained in
159a.12.
32 CFR 159a.95 Defense Information Security Committee.
(a) Purpose. The Defense Information Security Committee (DISC) is
established to advise and assist the DUSD(P) and the Director, Security
Plans and Programs (ODUSD(P) in the formulation of DoD Information
Security Program policy and procedures.
(b) Direction and Membership. The DISC shall meet at the call of the
DUSD(P) or the Director, Security Plans and Programs. It is comprised
of the DUSD(P) as Chairman; the Director, Security Plans and Programs,
as Vice Chairman; and the senior officials (designated in accordance
with section E.3.a., DoD Directive 5200.1, /39/ or their
representatives) responsible for directing and administering the
Information Security Program of the OJCS, the Departments of the Army,
Navy, and Air Force, the Defense Intelligence Agency, the Defense
Nuclear Agency, the National Security Agency, and the Defense
Investigative Service. Other DoD Components may be invited to attend
meetings of particular interest to them.
/39/ See footnote 1 to 159a.3
32 CFR 159a.95 Subpart O -- Administrative Sanctions
32 CFR 159a.97 Individual responsibility.
All personnel, civilian or military, of the Department of Defense are
responsible individually for complying with the provisions of this part.
32 CFR 159a.98 Violations subject to sanctions.
(a) DoD Military and civilian personnel are subject to administrative
sanctions if they:
(1) Knowingly and willfully classify or continue the classification
of information in violation of E.O. 12356, any implementing issuances,
or this part.
(2) Knowingly, willfully, or negligently disclose to unauthorized
persons information properly classified under E.O. 12356 or prior
orders; or
(3) Knowingly and willfully violate any other provision of E.O.
12356, any implementing issuances or this part.
(b) Sanctions include but are not limited to a warning notice,
reprimand, termination of classification authority, suspension without
pay, forfeiture of pay, removal or discharge, and will be imposed upon
any person, regardless of office or level of employment, who is
responsible for a violation specified under this paragraph as determined
appropriate under applicable law and DoD regulations. Nothing in this
part prohibits or limits action under the Uniform Code of Military
Justice based upon violations of that Code.
32 CFR 159a.99 Corrective action.
The Secretary of Defense, the Secretaries of the Military
Departments, and the heads of other DoD Components shall ensure that
appropriate and prompt corrective action is taken whenever a violation
under 159a.98(a) occurs or repeated administrative discrepancies or
repeated disregard of requirements of this Regulation occur (see
159a.100). Commanders and supervisors, in consultation with appropriate
legal counsel, shall utilize all appropriate criminal, civil, and
administative enforcement remedies against employees who violate the law
and security requirements as set forth in this part and other pertinent
DoD issuances.
32 CFR 159a.100 Administrative discrepancies.
Repeated administrative discrepancies in the marking and handling of
classified information and material such as failure to show
classification authority; failure to apply internal classification
markings; failure to adhere to the requirements of this part that
pertain to dissemination, storage, accountability, and destruction, and
that are determined not to constitute a violation under 159a.98(a) may
be grounds for adverse administrative action including warning,
admonition, reprimand or termination of classification authority as
determined appropriate under applicable policies and procedures.
32 CFR 159a.101 Reporting violations.
(a) Whenever a violation under 159a.98(a)(2) occurs, the Director of
Counterintelligence and Investigative Programs, ODUSD(P) shall be
informed of the date and general nature of the occurrence including the
relevent parts of this part, the sanctions imposed, and the corrective
action taken. Whenever a violation under 159a.98(a) (1) or (3) occurs,
the Director of Security Plans and Programs, OSUSD(P) shall be provided
the same information. Notification of such violations shall be
furnished to the Director of the ISOO in accordance with 5.4(d) of E.O.
12356 by the ODUSD(P).
(b) Any action resulting in unauthorized disclosure of properly
classified information that constitutes a violation of the criminal
statutes and evidence reflected in classified information of possible
violations of federal criminal law by a DoD employee and of possible
violations by any other person of those federal criminal laws specified
in guidelines adopted by the Attorney General shall be the subject of a
report processed in accordance with DoD Directive 5210.50 and DoD
Instruction 5240.4.
(c) Any action reported under paragraph (b) of this section, shall be
reported to the Attorney General by the General Counsel, Department of
Defense.
(d) Reports shall be made to appropriate counterintelligence,
investigative, and personnel security authorities concerning any
employee who is known to have been responsible for repeated security
violations over a period of a year, for appropriate evaluation,
including readjudication of the employee's security clearance.
32 CFR 159a.101 Pt. 159a, App. A
Insert Illustration 0527
(54 FR 26959, June 27, 1989, as amended at 54 FR 31334, July 28,
1989)
32 CFR 159a.101 -- Pt. 159a, App. B
32 CFR 159a.101 -- Appendix B to Part 159a -- General Accounting Office
Officials Authorized To Certify Security Clearances (See 159a.53(b)(3))
The Comptroller General, Deputy Comptroller General and Assistant
Comptroller General and Assistants to the Comptroller General
The General Counsel and Deputy General Counsel
The Director and Deputy Director, Personnel; the Security Officer
The Director and Deputy Director, Office of Internal Review
The Director and Assistants to the Director of the Office of Program
Planning and the Office of Policy
The Director and Deputy Directors of the Community and Economic
Development Division
The Director, and Deputy Directors, Associate Directors, Deputy
Associate Directors, Senior Group Directors, and the Assistant to the
Director for Planning and Administration of the Energy and Minerals
Division
The Director, Deputy Directors, Associate Directors and Division
Personnel Security Officer of the Human Resources Division
The Directors, Deputy Directors, and Associate Directors, of the
following Divisions:
Claims
Field Operations
Financial and General Management Studies
General Government
International
Logistics and Communications
Procurement and Systems Acquisition
Program Analysis Division
Directors and Managers of International Division Overseas Offices as
follows:
Director European Branch, Frankfurt, Germany
Director Far East Branch, Honolulu, Hawaii
Manager, Sub Office, Bangkok, Thailand
Regional Managers and Assistsant Regional Managers of the Field
Operations Division's Regional Offices as follows:
Atlanta, Georgia
Boston, Massachusetts
Chicago, Illinois
Cincinnati, Ohio
Dallas, Texas
Denver, Colorado
Detroit, Michigan
Kansas City, Missouri
Los Angeles, California
New York, New York
Norfolk, Virginia
Philadelphia, Pennsylvania
San Francisco, California
Seattle, Washingotn
Washington, D.C.
32 CFR 159a.101 -- Pt. 159a, App. C
32 CFR 159a.101 -- Appendix C to Part 159a -- Instructions Governing
Use of Code Words, Nicknames, and Exercise Terms (See 159a.54(j))
a. Using Component. The DoD Component to which a code word is
allocated for use, and which assigns to the word a classified meaning,
or which originates nicknames and exercise terms using the procedure
established by the Joint Chiefs of Staff.
b. Code Word. A single word selected from those listed in Joint
Army-Navy-Air Force Publication (JANAP) 299 and later volumes, and
assigned a classified meaning by appropriate authority to insure proper
security concerning intentions, and to safeguard information pertaining
to actual military plans or operations classified as Confidential or
higher. A code word shall not be assigned to test, drill or exercise
activities. A code word is placed in one of three categories:
(1) Available. Allocated to the using component. Available code
words individually will be unclassified until placed in the active
category.
(2) Active. Assigned a classified meaning and current.
(3) Canceled. Formerly active, but discontinued due to compromise,
suspected compromise, cessation, or completion of the operation to which
the code word pertained. Canceled code words individually will be
unclassified and remain so until returned to the active category.
c. Nickname. A combination of two separate unclassified words which
is assigned an unclassified meaning and is employed only for
unclassified administrative, morale, or public information purposes.
d. Exercise Term. A combination of two separate unclassified words,
normally unclassified, used exclusively to designate a test, drill, or
exercise. An exercise term is employed to preclude the possibility of
confusing exercise directions with actual operations directives.
a. Code Words. The Joint Chiefs of Staff are responsible for
allocating words or blocks of code words from JANAP 299 to DoD
Components. DoD Components may request allocation of such code words as
required and may reallocate available code words within their
organizations, in accordance with individual policies and procedure,
subject to applicable rules set forth herein.
(1) A permanent record of all code words shall be maintained by the
Joint Chiefs of Staff.
(2) The using Component shall account for available code words and
maintain a record of each active code word. Upon being canceled, the
using component shall maintain the record for 2 years; thence the
record of each code word may be disposed of in accordance with current
practices, and the code word returned to the available inventory.
b. Nicknames
(1) Nicknames may be assigned to actual events, projects, movement of
forces, or other nonexercise activities involving elements of
information of any classification category, but the nickname, the
description or meaning it represents, and the relationship of the
nickname and its meaning must be unclassified. A nickname is not
designed to achieve a security objective.
(2) Nicknames, improperly selected, can be counterproductive. A
nickname must be chosen with sufficient care to ensure that it does not:
(a) Express a degree of bellicosity inconsistent with traditional
American ideals or current foreign policy;
(b) Convey connotations offensive to good taste or derogatory to a
particular group, sect, or creed; or,
(c) Convey connotations offensive to our allies or other Free World
nations.
(3) The following shall not be used as nicknames:
(a) Any two-word combination voice call sign found in JANAP 119 or
ACP 110. (However, single words in JANAP 119 or ACP 110 may be used as
part of a nickname if the first word of the nickname does not appear in
JANAP 299 and later volumes.)
(b) Combination of words including word ''project,'' ''exercise,'' or
''operation.'' (The word ''project'' often is used as the first or
second word with an unclassified nickname originating outside the
Department of Defense.)
(c) Words that may be used correctly either as a single word or as
two words, such as ''moonlight.''
(d) Exotic words, trite expressions, or well-known commercial
trademarks.
(4) The Joint Chiefs of Staff shall:
(a) Establish a procedure by which nicknames may be authorized for
use by DoD Components.
(b) Prescribe a method for the using Components to report nicknames
used.
(5) The heads of DoD Components shall:
(a) Establish controls within their Components for the assignment of
nicknames authorized under subparagraph 2.b.(4)(a), above.
(b) Under the procedures established, advise the Joint Chiefs of
Staff of nicknames as they are assigned.
c. Exercise Term
(1) Unclassified exercise terms may be assigned only to tests,
drills, or exercises for the purpose of emphasizing that the event is a
test, drill, or exercise and not an actual operation. However, the
description or meaning it represents, and the relationship of the
exercise term and its meaning can be classified or unclassified. A
classified exercise term is not authorized.
(2) Selection of exercise terms will follow the same guidance as
contained in subparagraphs 2.b.(2) and (3), above.
(3) The Joint Chiefs of Staff shall:
(a) Establish a procedure by which exercise terms may be authorized
for use by DoD Components.
(b) Prescribe a method for using Components to report exercise terms
used.
(4) The heads of DoD Components shall:
(a) Establish controls within their Component for the assignment of
exercise terms authorized under subparagraph 2.c.(3), above.
(b) Under the procedures established, advise the Joint Chiefs of
Staff of exercise terms as they are assigned.
a. The DoD Component responsible for the development of a plan or the
execution of an operation shall be responsible for determining whether
to assign a code word.
b. Code words shall be activated for the following purposes only:
(1) To designate a classified military plan or operation;
(2) To designate classified geographic locations in conjunction with
plans or operations referred to in subparagraph 3.b.(1), above; or,
(3) To cancel intentions in discussions and messages or other
documents pertaining to plans, operations, or geographic locations
referred to in subparagraphs 3.b.(1) and (2), above.
c. The using Component shall assign to a code word a specific meaning
classified Secret or Confidential. Code words shall not be used to
cover unclassified meanings. The assigned meaning need not in all cases
be classified as high as the overall classification assigned to the plan
or operation. Top Secret code words may be issued only with DUSD(P) or
DoD Component head approval.
d. Code words shall be selected by each using Component in such
manner that the word used does not suggest the nature of its meaning.
e. A code word shall not be used repeatedly for similar purposes;
that is, if the initial phase of an operation is designated ''Meaning,''
succeeding phases shall not be designated ''Meaning II'' and ''Meaning
III,'' but should have different code words.
f. Each DoD Component shall establish policies and procedures for the
control and assignment of classified meanings to code words, subject to
applicable rules set forth herein.
a. The using Component shall promptly notify the Joint Chiefs of
Staff when a code word is made active, indicating the word, and its
classification. Similar notice shall be made when any changes occur,
such as the substitution of a new word for one previously placed in use.
b. The using Component is responsible for further dissemination of
active code words and meanings to all concerned activities, to include
classification of each.
c. The using Component is responsible for notifying the Joint Chiefs
of Staff of canceled code words. This cancellation report is considered
final action, and no further reporting or accounting of the status of
the canceled code word will be required.
a. During the development of a plan, or the planning of an operation
by the headquarters of the using Component, the code word and its
meaning shall have the same classification. When dissemination of the
plan to other DoD Components or to subordinate echelons of the using
Component is required, the using Component may downgrade the code words
assigned below the classification assigned to their meanings in order to
facilitate additional planning implementation, and execution by such
other Components or echelons, but code words shall, at a minimum, be
classified Confidential.
b. A code word which is replaced by another code word due to a
compromise or suspected compromise, or for any other reason, shall be
canceled, and classified Confidential for a period of 2 years, after
which the code word will become unclassified.
c. When a plan or operation is discontinued or completed, and is not
replaced by a similar plan or operation but the meaning cannot be
declassified, the code word assigned thereto shall be canceled and
classified Confidential for a period of 2 years, or until the meaning is
declassified, whichever is sooner, after which the code word will become
unclassified.
d. In every case, whenever a code word is referred to in documents,
the security classification of the code word shall be placed in
parentheses immediately following the code word, for example, ''Label
(C).''
e. When the meaning of a code word no longer requires a
classification, the using Component shall declassify the meaning and the
code word and return the code word to the available inventory.
a. The meaning of a code word may be used in a message or other
document, together with the code word, only when it is essential to do
so. Active code words may be used in correspondence or other documents
forwarded to addresses who may or may not have knowledge of the meaning.
If the context of a document contains detailed instructions or similar
information which indicates the purpose or nature of the related
meaning, the active code word shall not be used.
b. In handling correspondence pertaining to active code words, care
shall be used to avoid bringing the code words and their meanings
together. They should be handled in separate card files, catalogs,
indexes, or lists, enveloped separately, and dispatched at different
times so they do not travel through mail or courier channels together.
c. Code words shall not be used for addresses, return addresses,
shipping designators, file indicators, call signs, identification
signals, or for other similar purposes.
All code words formerly categorized as ''inactive'' or ''obsolete''
shall be placed in the current canceled category and classified
Confidential. Unless otherwise restricted, all code words formerly
categorized as ''canceled'' or ''available'' shall be individually
declassified. All records associated with such code words may be
disposed of in accordance with current practices, provided such records
have been retained at least 2 years after the code words were placed in
the former categories of ''inactive,'' ''obsolete,'' or ''canceled.''
Nicknames or code words originating outside of the Department of
Defense that are jointly used by the originating organization and the
Department of Defense shall be registered with the DUSD(P) to prevent
confusion with DoD-originated words.
32 CFR 159a.101 -- Pt. 159a, App. D
32 CFR 159a.101 -- Appendix D to Part 159a -- Federal Aviation
Administration Air Transportation, Security Field Offices (See
159a.59(c)(1)(i))
32 CFR 159a.101 -- Pt. 159a, App. E
32 CFR 159a.101 -- Appendix E to Part 159a -- Transportation Plan (See
159a.57(e))
The provisions of 159a.57(e) of this part require that transmission
instructions or a separate transportation plan be included with any
contract, agreement or other arrangement involving the release of
classified material to foreign entities. The transportation plan is to
be submitted to and approved by applicable DoD authorities. As a
minimum, the transportation plan shall include the following provisions:
a. A description of the classified material together with a brief
narrative as to where and under what circumstances transfer of custody
will occur;
b. Identification, by name or title, of the designated representative
of the foreign recipient government or international organization who
will receipt for and assume security responsibility for the U.S.
classified material (person(s) so identified must be cleared for access
to the level of the classified material to be shipped);
c. Identification and specific location of delivery points and any
transfer points;
d. Identification of commercial carriers and freight forwarders or
transportation agents who will be involved in the shipping process, the
extent of their involvement, and their security clearance status;
e. Identification of any storage or processing facilities to be used
and, relative thereto, certification that such facilities are authorized
by competent government authority to receive, store, or process the
level of classified material to be shipped;
f. When applicable, the identification, by name or title, of couriers
and escorts to be used and details as to their responsibilities and
security clearance status;
g. Description of shipping methods to be used as authorized by the
provisions of subpart I, together with the identification of carriers
(foreign and domestic);
h. In those cases when it is anticipated that the U.S. classified
material or parts thereof may be returned to the United States for
repair, service, modification, or other reasons, the plan must require
that shipment shall be via a carrier of U.S. or recipient government
registry, handled only by authorized personnel, and that the applicable
Military Department (for foreign military sales (FMS)) or Defense
Investigative Service (for commercial sales) will be given advance
notification of estimated time and place of arrival and will be
consulted concerning inland shipment;
i. The plan shall require the recipient government or international
organization to examine shipping documents upon receipt of the
classified material in its own territory and advise the responsible
Military Department in the case of FMS, or Defense Investigative Service
in the case of commercial sales, if the material has been transferred
enroute to any carrier not authorized by the transportation plan; and
j. The recipient government or international organization also will
be required to inform the responsible Military Department or the Defense
Investigative Service promptly and fully of any known or suspected
compromise of U.S. classified material while such material is in its
custody or under its cognizance during shipment.
32 CFR 159a.101 -- SUBCHAPTER F -- DEFENSE CONTRACTING
32 CFR 159a.101 -- PART 160 -- DEFENSE ACQUISITION REGULATORY SYSTEM
Sec.
160.1 Purpose.
160.2 Applicability.
160.3 Definitions.
160.4 Policy and procedures.
Authority: 5 U.S.C. 301; 10 U.S.C. 137.
Source: 43 FR 15150, Apr. 11, 1978, unless otherwise noted.
32 CFR 160.1 Purpose.
This part establishes policy and procedures for the management and
operation of the Department of Defense acquisition regulatory system.
32 CFR 160.2 Applicability.
The provisions of this part apply to the Office of the Secretary of
Defense, the Organization of the Joint Chiefs of Staff, the Military
Departments and the Defense Agencies. These provisions also apply to
other Federal agencies that are directed by the Office of Federal
Procurement Policy (OFPP), Office of Management and Budget, to comply
with the provisions of this part.
32 CFR 160.3 Definitions.
(a) Acquisition. Any relationship entered into to acquire property
or services for the direct benefit or use of the Department of Defense
to include the management and business functions and disciplines
involved in establishing and continuing the relationship.
(b) Contracts. A function including tasks, skills and activities
essential in conducting contractual relationships in the acquisition of
property and services by the Department of Defense. The term
''contracts'' shall replace the term ''procurement'' as used in the
context of an acquisition function throughout the Department.
(c) Procurement. The term ''procurement'' shall not be used to
identify functions of the Department of Defense to acquire property and
services except as relates to the budgetary process.
32 CFR 160.4 Policy and procedures.
(a) Defense Acquisition Regulatory System. The Defense Acquisition
Regulatory System (DARS) is a system of policies and regulations to
guide managers in the conduct of DoD acquisition activities and also to
provide the detailed functional regulations required to govern DoD
contractual actions in accordance with applicable laws and the need for
efficiency. The DARS focuses on the business management needs at the
operating levels and on the Government's actions at the interface with
the marketplace in the acquisition of services and materiel. Attention
shall be given to the unique business demands in the area of major
system acquisitions consistent with policies set forth in 32 CFR Part
213, DoD Directive 5000.2 /1/ and OMB Circular A-109.
(1) The DARS shall be managed as a system of integrated, coordinated
policies and regulations, responsive to the needs of the Department of
Defense and to the provisions of the Federal Procurement Regulatory
System. Where feasible, the DARS will achieve uniform policies with the
Federal Procurement Regulation.
(2) The Deputy Under Secretary of Defense for Research and
Engineering (Acquisition Policy), OUSD/R&E, is responsible for the DARS
and for the development and implementation of the necessary policy and
procedures of the regulatory system.
(b) DARS Regulations. DARS policy and procedures shall be published
in the Defense Acquisition Regulation (DAR) and in DoD Directives,
Instructions, Circulars and Manuals as appropriate to the action. The
DAR replaces the Armed Services Procurement Regulation (ASPR), and all
laws, policy and procedures applicable to the ASPR apply equally to the
DAR except as those policies and procedures not directed by law are
changed by the provisions of this part. Effective with the issue of
this part, the ASPR is redesignated as the DAR and all policies and
procedures continue in force.
(c) Defense Acquisition Regulatory Council. The Defense Acquisition
Regulatory Council (DARC) is established to support the Council Director
in the management of the DARS and in the development and implementation
of required policy and procedures. The DARC includes all functions
formerly performed by the Armed Services Procurement Regulation
Committee.
(1) Council membership. The DARC membership shall include a Policy
and a Legal representative frome ach of the Military Departments and
from the Defense Logistics Agency (DLA). Each Military Department
Policy member shall be appointed by the Assistant Secretary having
responsibility for the acquisition function in the Department. The
Legal representative shall be appointed by the Department General
Counsel. The DLA members shall be appointed by the Director, DLA. Each
appointment to the Council shall be made for a minimum term of 2 years
and a maximum of 4 years as a principal full-time assignment approved by
the Deputy Under Secretary of Defense (Acquisition Policy). Members
appointed to the DARC shall have extensive acquisition experience in
order to deal with the matters to come before the Council. Policy
members shall be authorized to develop and state the final positions of
their respective organizations on all matters before the Council. Each
member shall have a TOP SECRET security clearance.
(2) Council Director. The Director (Contracts and System
Acquisition), OUSD/R&E, shall appoint the Council Director. Such
appointment shall be subject to the approval of the Deputy Under
Secretary of Defense (Acquisition Policy).
(3) Council Executive Secretary. The Executive Secretary, DARC,
shall be appointed by and serve under the direction of the Council
Director.
(d) Operation of the DARC. The Council shall operate under the
direction of the Council Director to develop and implement acquisition
policy and procedures.
(1) Council activities shall be conducted according to rules and
procedures established by the Council Director within the policy
guidance issued by the Director (Contracts and Systems Acquisition),
OUSD/R&E.
(2) The DARC shall consider all matters determined by the Council
Director to be within the scope of the Council's responsibilities.
(3) Substantive changes to DARS policy and procedures may be proposed
by submitting appropriate recommendations to include specific regulatory
language to the Director (Contracts and System Acquisition), through the
following officials. Proposed routine administrative changes may be
submitted directly to the Council Director.
(i) DOD organizations. The Military Departments, the Defense
Agencies and the Office of the Joint Chiefs of Staff shall submit
recommendations through a designated senior official responsible for
acquisition policy matters, OSD staffs shall submit recommendations
through the staff principals.
(ii) Federal agencies. Other Federal agencies, required by OFPP to
conduct acquisition functions in accordance with DARS policy, shall
submit proposed changes through a senior agency official designated by
the agency head to represent the agency on all matters involving the
DARS. The designated official shall be authorized to communicate
directly with the DARC and to give final coordination for the agency.
(iii) Private sector. Private sector entities with an interest in
DARS policy will submit proposed changes directly. Industry
associations will designate an individual to the Council Director and
establish procedures for the individual to represent the association in
commenting on DARS policy actions prior to final action by the Council.
The procedures will provide for the completion of industry actions with
the Council on a schedule not to exceed 60 days.
(4) The Council Director is authorized to establish working groups to
support the Council in dealing with issues in specialized areas. The
Council Director will request the participation of representatives with
the required expertise from OSD staff elements, Military Departments and
Defense Agencies. Working groups will be assigned specific tasks by the
Council Director to be completed on a schedule established with the task
assignment.
(5) The Council Director is authorized to designate a Military
Department of DLA to be the lead agency in developing a specific policy
or procedure for the DARS. The Council Director shall make the
assignment through the Policy member of the designated lead agency. The
lead agency shall develop the proposed language for the DARS, complete
the coordination requested by the Council Director, document
nonconcurrences together with the position of the lead agency, and
submit the completed action to the Council Director through the lead
agency's Policy member. The procedure for accomplishing the task shall
be determined by the lead agency. DOD activities shall provide support
as requested by the lead agency.
(6) The Council Director shall establish schedules for the completion
of each case before the Council based on the needs and urgency of the
individual cases. Schedules shall require completion of the Council's
action in a period not to exceed 120 days independent of industry
coordination, except in specific cases where the Council Director
determines an extended schedule is required. In such cases, the
schedule will be approved by the Deputy Under Secretary of Defense
(Acquisition Policy) or his designated representative.
(7) On matters of major policy or issues where a consensus of the
Policy members has not been achieved after a reasonable period of
debate, the Council Director shall present the Departmental and Agency
positions to the Deputy Under Secretary (Acquisition Policy), or his
designated representative for resolution after consultation with the
appropriate senior officials of the Military Departments and DLA. The
decision of the Deputy Under Secretary of Defense (Acquisition Policy),
or his designated representative shall be implemented without further
coordination.
(8) The Council Director shall require summary minutes of Council
meetings to be maintained as a permanent record by the Executive
Secretary. Minutes will clearly document the positions of the
participating organizations on matters before the Council. The
positions stated by other organizations shall be documented when in
disagreement with the final decision.
(9) The Council Director shall report periodically to the Deputy
Under Secretary of Defense (Acquisition Policy) on specific activities
of the Council.
(e) Supplementing Instructions. Additional policies and procedures
essential to the operation of the DARS shall be issued by the Under
Secretary of Defense for Research and Engineering.
/1/ Filed as part of original. Copies may be obtained, if needed,
from the U.S. Naval Publications and Forms Center, 5801 Tabor Avenue,
Philadelphia, Pa. 19120. Attention: Code 301.
32 CFR 160.4 PART 162 -- PRODUCTIVITY ENHANCING CAPITAL INVESTMENT
(PECI)
Sec.
162.1 Purpose.
162.2 Applicability and scope.
162.3 Definitions.
162.4 Policy.
162.5 Responsibilities.
162.6 Procedures.
162.7 Information requirements.
Appendix A to Part 162 -- Reporting Procedures
Authority: 10 U.S.C. 136: E.O. 12367, 3 CFR, 1988 Comp., p. 566.
Source: 56 FR 50271, Oct. 4, 1991, unless otherwise noted.
32 CFR 162.1 Purpose.
This part:
(a) Updates policy, responsibilities, procedures, and guidance for
the PECI process under DoD Directive 5010.31. /1/
(b) Authorizes the publication of DoD 5010.36 36-H- /2/
''Productivity Enhancing Capital Investment (PECI) Handbook,''
consistent with DoD 5025.1-M. /3/
/1/ Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
/2/ Copies will be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
/3/ See footnote 1 to 162.1(a).
32 CFR 162.2 Applicability and scope.
This part.
(a) Applies to the Office of the Secretary of Defense (OSD); the
Military Departments; Chairman, Joint Chiefs of Staff and the Joint
Staff; the Defense Agencies; and the DoD Field Activities (hereafter
referred to collectively as the ''DoD Components'').
(b) Encompasses the acquisition of equipment and facilities to
improve the following:
(1) Productivity, quality, and processes of DoD Components including
major facilities, equipment, or process modernization.
(2) Performance of individual jobs, tasks, procedures, operations,
and processes.
(c) Encompasses PIF investments at appropriated and industrially
funded activities, if they are not participating in the Defense Business
Operations Fund. For industrially funded activities, projects may be
submitted for PIF on an exception basis; primarily, this includes
facilities, multi-function projects, prototypes, demonstrations, and
cross-service initiatives. Investments at Government-owned,
contractor-operated (GOCO) facilities are limited to those for which the
Department of Defense has responsibility to provide equipment or
facilities and from which productivity benefits can be recovered within
existing contractual provisions.
32 CFR 162.3 Definition.
(a) Capital Investment. The acquisition, installation,
transportation, and other costs needed to place equipment or facilities
in operation meeting DoD capitalization requirements.
(b) Economic Life. The time period over which the benefits to be
gained from a project may reasonably be expected to accrue to the
Department of Defense.
(c) Internal Rate of Return (IRR). The discount rate that equates
the present value of the future cash inflows, e.g. savings and cost
avoidances, with the present value costs of an investment.
(d) Life-Cycle Savings. The estimated cumulative budgetary savings
expected over the life of the project.
(e) Net Present Value of Investment. The difference between the
present value benefit and the present value cost at a given discount
rate.
(f) Off-the-Shelf. Equipment that is readily available through
Government or commercial sources or that can be fabricated through
combination or modification of existing equipment.
(g) Pay-Back Period. The number of years required for the cumulative
savings to have the same value as the investment cost.
(h) PECI Benefits. Benefits resulting from PECIs are classified as
savings or as cost avoidance:
(1) Savings. Benefits that can be precisely measured, quantified,
and placed under management control at time of realization. Savings can
be reflected as specific reductions in the approved program or budget,
after they have been achieved. Examples include costs for manpower
authorizations and or funded work-year reductions, reduced or eliminated
operating costs (utilities, travel, and repair), and reduced or
eliminated parts and contracts.
(2) Cost-Avoidance. Benefits from actions that obviate the
requirements for an increase in future levels of manpower or costs that
would be necessary, if present management practices were continued. The
effect of cost-avoidance savings is the achievement of a higher level of
readiness or increased value (quantity, quality or timeliness) of output
at level staffing cost or the absorption of a growing work load at the
same level of staffing or cost.
(i) Post-Investment Assessment (PIA). A PIA is conducted by DoD
Components to establish accountability and provide information to
improve future investment strategies.
(j) Productivity. The efficiency with which resources are used to
provide a government service or product at specified levels of quality
and timeliness.
(k) Productivity Enhancement (or Productivity Improvement). A
decrease in the unit cost of products and services delivered with equal
or better levels of quality and timeliness.
(l) Productivity Enhancing Capital Investment (PECI). Equipment or
facility funding that shall improve Government service, products,
quality, or timeliness. PECI projects are funded using PIF, PEIF, and
CSI programs. These programs are defined as follows:
(1) Productivity Investment Fund (PIF). PIF projects cost over
$100,000 and must amortize within 4 years from the date they become
operational. In FY 1994 the threshold changes to $150,000.
(2) Productivity Enhancing Incentive Fund (PEIF). PEIF projects cost
under $100,000 and are expected to amortize within 2 years of the date
they become operational. In FY 1994 the limit changes to $150,000.
(3) Component-Sponsored Investment (CSI). CSI projects are fast
pay-back or high interest investments that may have different DoD
Component selection criteria than those specified for PIF or PEIF
projects.
(m) Quality. The extent to which a product or service meets customer
requirements and customer expectations.
32 CFR 162.4 Policy.
It is DoD Policy that:
(a) The PECI program shall be an integral part of DoD Component
investment planning and of the Defense Planning, Programming, and
Budgeting System (PPBS) DoD Instruction 7045.7. /4/ PECI planning shall
include the productivity investment fund (PIF), the productivity
enhancing incentive fund (PEIF), and component-sponsored investments
(CSIs). The PECI program is a major DoD strategy to achieve
productivity goals under E.O. 12637. /5/
(b) PECI projects shall be selected to improve quality and
productivity, or to reduce unit cost of outputs in defense operations.
PECI projects shall be evaluated and approved for funding based on
recognized principles of economic analysis. Each PECI project shall be
subject to all restrictions established by public law, DoD policy, and
other regulatory constraints.
(c) DoD personnel at all levels shall be encouraged to seek out and
identify opportunities for quality and productivity improvement. Those
efforts shall be supported by using the PECI as a means of financing the
improvements. The PECI Program shall provide incentives for
participation, supported by the financial management system and
policies.
(d) Individuals or groups who successfully identify PECI
opportunities that result in significant savings or improvements in
quality or productivity or who aggressively promote PECI incentives
within their organizations should be recognized through the DoD
Incentive Awards Program, DoD Instruction 5120.16, /6/ the Secretary of
Defense Productivity Excellence Awards Program, performance appraisal,
or other appropriate means. All these savings derived through PECI will
remain with the originating DoD Component. As an incentive a portion of
these savings, when possible, should remain at the submitting activity.
(e) Funds provided through FY 1993 from the centrally managed OSD PIF
may not be reprogrammed for non-PIF purposes without prior approval of
the Assistant Secretary of Defense (Force Management and Personnel)
(ASD(FM&P)). The Heads of DoD Components shall monitor obligation rates
to ensure PIF projects are executed quickly. If project funding cannot
be obligated within the specified fiscal year(s) for the type of
funding, the Head of the DoD Component must reprogram PIF funds to
alternate approved PIF projects. The PIF projects shall be monitored to
ensure timely implementation and to validate savings through the
amortization period. The PECIs are subject to audit as established by
DoD Instruction 7600.2 /7/ (reference (g)) policy.
/4/ See footnote 1 to 162.1(a).
/5/ See footnote 1 to 162.1(a).
/6/ See footnote 1 to 162.1(a).
/7/ See footnote 1 to 162.1(a).
32 CFR 162.5 Responsibilities.
(a) The Assistant Secretary of Defense (Force Management and
Personnel (ASD (FM&P)) shall:
(1) Develop policies and guidance for the overall DoD PECI program.
(2) Maintain oversight of the PECI program to ensure implementation
of this instruction. Through FY 1993 that oversight includes total
process control and coordination of PIF actions to identify, select and
approve, reprogram, and disapprove projects. Starting FY 1994 and ASD
(FM&P) shall retain central oversight of the PECI program which is
decentralized to the Components.
(3) Evaluate program results and training requirements and provide
additional guidance, as necessary.
(4) Develop, maintain, and publish a DoD 5010.36-H consistent with
DoD 5025.1-M /8/
(5) Coordinate PECI efforts with the Heads of the DoD Components on
matters that affect their particular areas of responsibility.
(6) Use the Defense Productivity Program Office (DPPO) to:
(i) Provide technical guidance and support for PECI efforts.
(ii) Monitor and evaluate DoD Component PECI efforts.
(iii) Ensure compliance with DoD Directive 7750.5 /9/
(b) The Inspector General of the Department of Defense (IG, DoD)
shall provide policy and guidance for the audit of the PECI and
incorporate the requirement for audit into audit planning and program
documents.
(c) The Heads of the DoD Components shall:
(1) Develop and sustain a formal PECI program that:
(i) Emphasizes and encourages the improvement of day-to-day
operations through PECI funding.
(ii) Provides motivation and opportunities for personnel, at all
levels, to participate in the identification, documentation, and
implementation of PECI proposals.
(iii) Includes PIF, PEIF, and CSI efforts, as appropriate.
(iv) Reviews and approves submitted projects, broadens project
applicability when reasonable, applies off-the-shelf technology, and
integrates capital investment planning into the PPBS.
(2) Designate an official to be the central point of contact (POC)
who shall oversee and monitor the PECI program.
(3) Establish procedures ensuring that the policies contained in
162.4, above, are adhered to.
/8/ See footnote 1 to 162.1(a).
/9/ See footnote 1 to 162.1(a).
32 CFR 162.6 Procedures.
The following procedures shall be followed by the DoD Components in
the identification, documentation, selection, and financing of PECI
projects:
(a) Document each PECI project to ensure that it is:
(1) A desirable action in accordance with the DoD Component's
long-range planning and programing objectives, quality objectives, and
customer and/or user satisfaction.
(2) Needed to perform and improve valid operations, functions, or
services (as established by assigned missions and taskings) that cannot
be performed as effectively or economically by other means, such as the
use of existing facilities, methods, processes, or procedures.
(3) Justified on the basis of a valid economic analysis done in
accordance with DoD Instruction 7041.3.
(4) Validated as to reasonableness, completeness, and correct
appropriation.
(5) Classified properly as having savings or cost avoidance benefits
(b) Include resources for PECI in programming documents and budget
submissions. The level of funding shall be established under quality
and productivity plans and goals established by the Component.
(c) Use guidelines for project documentation, pre-investment
analysis, financing, and post-investment accountability of PECI
projects, when DoD 5010.36-H is published.
(d) Classify PECI projects for financing and aggregated reporting as
follows:
(1) PIF projects. PIF projects are competitively selected from
candidate proposals and financed through traditional budget
appropriation processes from funds set aside for this purpose. PIF
projects must cost over $100,000 and must amortize within 4 years from
the date that they become operational. Both equipment and facilities
investments that conform to public law, or DoD policies governing their
qualification, may be included. Projects may include a function at
several activities or locations and be Service-wide or Agency-wide. In
FY 1994 the threshold will change to $150,000.
(2) PEIF projects. PEIF projects are financed from the DoD Component
accounts established in annual appropriations and are expected to
amortize within 2 years of the date they become operational. Funding
for PEIF projects shall be included in the DoD Component annual
appropriations as a single amount to cover projects, as they are
proposed throughout the budget year. PEIF projects cannot exceed
$100,000 or cost limitations established by the OSD (whichever is
greater) and are limited to facility modification and acquisition of
''off-the shelf'' equipment requiring little or no modification before
use. In FY 1994 the limit changes to $150,000. Justification for those
projects shall be based on the potential to improve quality and
productivity that is realized through improvements in operating methods,
quality, processes, or procedures.
(3) CSI. CSI projects are investments financed from the DoD
Component accounts that may have longer amortization periods than the
PEIF and may have different DoD Component cost or benefit criteria than
those specified for PIF projects. The CSI projects shall be identified
and included in the DoD Component's annual budget.
32 CFR 162.7 Information requirements.
(a) DoD Components shall submit to the ASD (FM&P), by December 15th
of each year, an annual status report on all PECI programs as outlined
in appendix A to this part. The DoD Components shall maintain the data
at a central point to support reporting requirements.
(b) The Summary Report, ''PECI Program Status,'' is assigned Report
Control Symbol FM&P (A) 1561, in accordance with DoD Directive 7750.5.
32 CFR 162.7 Appendix to Part 162 -- Reporting Procedures
The PECI reporting requirements provide the OSD with summary
information required to provide program accountability, and satisfy the
congressional concerns on program management. Information may be
submitted in memorandum, letter, or other acceptable form.
1. PIF. Each DoD Component that has a funded PIF project must
annually report summary PIF information. The information required for
each project follows:
a. Project Identification. Provide the 11-digit code for each
project that has been approved for desired funding, such as follows:
(1) A92BAxxxxxx
(a) ''A'' is for an Army project.
(b) ''92'' is for a FY92 project.
(c) ''BA'' is an Approved PIF project.
(d) ''xxxxxx'' is a DoD Component identifier.
(2) DoD Component PECI points of contact should establish identifiers
to ensure each project is unique.
b. Total Funds Provided. For each project provide the cumulative
amount of PEIC funds invested in the project
c. Total Amount Obligated. For each project provide the cumulative
amount of funds obligated against the project.
d. Actual Savings. For each project provide the cumulative actual
savings generated.
e. Projected Life-Cycle Savings. For each PIF project provide the
estimated amount of savings the project is projected to earn over the
project's economic life.
f. Projected Life-Cycle Cost Avoidance. For each PIF project provide
the estimated amount of cost avoidance the project is projected to
achieve.
2. PEIF. Each DoD Component that has funded PEIF projects must
annually report summary information that includes:
a. Total Number of Projects.
b. Total Funds Provided.
c. Total Amount Obligated.
d. Total Projected Life-Cycle Savings.
e. Total Projected Life-Cycle Cost Avoidance.
3. CSI. Each DoD Component that has funded CSI projects must annually
report summary information that includes:
a. Total Number of Projects.
b. Total Funds Provided.
c. Total Amount Obligated.
d. Total Projected Life-Cycle Savings.
e. Total Projected Life-Cycle Cost Avoidance.
4. PIA Post-Investment assessments, articles, pictures, and brief
description of projects and their results are encouraged and may be
attached to the annual report or submitted throughout the year.
32 CFR 162.7 PART 168a -- NATIONAL DEFENSE SCIENCE AND ENGINEERING
GRADUATE FELLOWSHIPS
Sec.
168a.1 Purpose.
168a.2 Applicability.
168a.3 Definition.
168a.4 Policy and procedures.
168a.5 Responsibilities.
Authority: 10 U.S.C. 2191.
Source: 55 FR 29844, July 23, 1990, unless otherwise noted.
32 CFR 168a.1 Purpose.
This part:
(a) Establishes guidelines for the award of National Defense Science
and Engineering Graduate (NDSEG) Fellowships, as required by 10 U.S.C.
2191.
(b) Authorizes, in accordance with 10 U.S.C. 2191 and consistent with
DoD 5025.1, the publication of a regulation which will be codified at 32
CFR part 168b.
32 CFR 168a.2 Applicability.
This part applies to the Office of the Secretary of Defense (OSD),
the Military Departments, and the Defense Agencies (hereafter referred
to collectively as ''DoD Components'').
32 CFR 168a.3 Definition.
Sponsoring Agency. A DoD Component or an activity that is designated
to award NDSEG fellowships under 168a.5(a).
32 CFR 168a.4 Policy and procedures.
(a) Sponsoring Agencies, in awarding NDSEG fellowships, shall award:
(1) Solely to U.S. citizens and nationals who agree to pursue
graduate degrees in science, engineering, or other fields of study that
are designated, in accordance with 168a.5(b)(2), to be of priority
interest to the Department of Defense.
(2) Through a nationwide competition in which all appropriate actions
have been taken to encourage applications from members of groups
(including minorities, women, and disabled persons) that historically
have been underrepresented in science and engineering.
(3) Without regard to the geographic region in which the applicant
lives or the geographic region in which the applicant intends to pursue
an advanced degree.
(b) The criteria for award of NDSEG fellowships shall be:
(1) The applicant's academic ability relative to other persons
applying in the applicant's proposed field of study.
(2) The priority of the applicant's proposed field of study to the
Department of Defense.
32 CFR 168a.5 Responsibilities.
(a) The Deputy Director, Defense Research and Engineering (Research
and Advanced Technology) (DDDR&E(R&AT)), shall:
(1) Administer this part and issue DoD guidance, as needed, for NDSEG
fellowships.
(2) Designate those DoD Components that will award NDSEG fellowships,
consistent with relevant statutory authority.
(3) Issue a regulation in accordance with 10 U.S.C. 2191 and DoD
5025.1-M.
(b) The Heads of Sponsoring Agencies, or their designees, in
coordination with a representative of the Deputy Director, Defense
Research and Engineering (Research and Advanced Technology)
(DDDR&E(R&AT)), shall:
(1) Oversee the nationwide competition to select NDSEG fellowship
recipients.
(2) Determine those science, engineering and other fields of priority
interest to the Department of Defense in which NDSEG fellowships are to
be awarded.
(3) Prepare a regulation, in accordance with 10 U.S.C. 2191, that
prescribes.
(i) Procedures for selecting NDSEG fellows.
(ii) The basis for determining the amounts of NDSEG fellowships.
(iii) The maximum NDSEG fellowship amount that may be awarded to an
individual during an academic year.
32 CFR 168a.5 PART 169 -- COMMERCIAL ACTIVITIES PROGRAM
Sec.
169.1 Purpose.
169.2 Applicability and Scope.
169.3 Definitions.
169.4 Policy.
169.5 Responsibilities.
Authority: 5 U.S.C. 301 and 552 and Pub. L. 93-400.
Source: 54 FR 13373, Apr. 3, 1989, unless otherwise noted.
32 CFR 169.1 Purpose.
This document:
(a) Revises 32 CFR Part 169.
(b) Updates DoD policies and assigns responsibilities for commercial
activities (CAs) as required by E.O. 12615, Pub. L. 100-180, Sec 1111,
and OMB Circular A-76.
32 CFR 169.2 Applicability and scope.
This part:
(a) Applies to the Office of the Secretary of Defense (OSD), the
Military Departments, and the Defense Agencies (hereafter referred to
collectively as ''DoD Components'').
(b) Encompasses DoD policy for CAs in the United States, its
territories and possessions, the District of Columbia, and the
Commonwealth of Puerto Rico.
(c) Is not mandatory for CAs staffed solely with DoD civilian
personnel paid by nonappropriated funds, such as military exchanges.
However, this part is mandatory for CAs when they are staffed partially
with DoD civilian personnel paid by or reimbursed from appropriated
funds, such as libraries, open messes, and other morale, welfare, and
recreation (MWR) activities. When related installation support
functions are being cost-compared under a single solicitation, a DoD
Component may decide that it is practical to include activities staffed
solely with DoD civilian personnel paid by nonappropriated funds.
(d) Does not apply to DoD governmental functions as defined 169.3.
(e) Does not apply when contrary to law, Executive orders, or any
treaty or international agreement.
(f) Does not apply in times of a declared war or military
mobilization.
(g) Does not provide authority to enter into contracts.
(h) Does not apply to the conduct of research and development, except
for severable in-house CAs that support research and development, such
as those listed in enclosure 3 of DoD Instruction 4100.33 /1/ (32 CFR
Part 169a).
(i) Does not justify conversion to contract solely to avoid personnel
ceilings or salary limitations.
(j) Does not authorize contracts that establish an employer-employee
relationship between the Department of Defense and contractor employees,
as described in FAR 37.104.
/1/ Copies may be obtained, if needed, from the U.S. Naval
Publications and Forms Center, ATTN: Code 1053, 5801 Tabor Avenue,
Philadelphia, PA 19120.
32 CFR 169.3 Definitions.
Commercial Activity Review. The process of evaluating CAs for the
purpose of determining whether or not a cost comparison will be
conducted.
Commercial Source. A business or other non-Federal activity located
in the United States, its territories and possessions, the District of
Columbia, or the Commonwealth of Puerto Rico that provides a commercial
product or service.
Conversion to Contract. The changeover of a CA from performance by
DoD personnel to performance under contract by a commercial source.
Conversion to In-House. The changeover of a CA from performance
under contract to performance by DoD personnel.
Core Logistics. Those functions identified as core logistics
activities pursuant to section 307 of Pub. L 98-525 and section 1231 of
Pub. L. 99-145, codified at section 2464, Title 10 that are necessary
to maintain a logistics capability (including personnel, equipment, and
facilities) to ensure a ready and controlled source of technical
competence and resources necessary to ensure effective and timely
response to a mobilization, national defense contingency situation, and
other emergency requirements.
Cost Comparison. The process of developing an estimate of the cost
of performance of a CA by DoD employees and comparing it, in accordance
with the requirements in DoD Instruction 4100.33 to the cost of
performance by contract.
Direct-Conversion. Conversion to contract performance of an in-house
commercial activity based on a simplified cost comparsion or the
conversion of an in-house commerical activity performed exclusively by
military personnel.
Displaced DoD Employee. Any DoD employee affected by conversion to
contract operation (including such actions as job elimination, or grade
reduction). It includes both employees in the function converted to
contract and employees outside the function who are affected adversely
by conversion through reassignment or the exercise of bumping or retreat
rights.
DoD Commercial Activity (CA). An activity that provides a product or
service obtainable (or obtained) from a commerical source. A DoD CA may
be the mission of an organization or a function within the organization.
It must be type of work that is separable from other functions or
activities so that it is suitable for performance by contract. A
representative list of the functions performed by such activities is
provided in enclosure 3 of DoD Instruction 4100.33. A DoD CA falls into
one of two categories:
(a) Contract CA. A DoD CA managed by a DoD Component, but operated
with contractor personnel.
(b) In-House CA. A DoD CA operated by a DoD Component with DoD
personnel.
DoD Employee. Civilian personnel of the Department of Defense.
DoD Governmental Function. A function that is related so intimately
to the public interest as to mandate performance by DoD personnel.
These functions include those that require either the exercise of
discretion in applying Government authority or the use of value judgment
in making the decision for the Department of Defense. Services or
products in support of Governmental functions, such as those listed in
enclosure 3 of DoD Instruction 4100.33, are CAs and are subject to this
part and its implementing Instructions. Governmental functions normally
fall into two categories:
(a) Act of Governing. The discretionary exercise of Governmental
authority. Examples include criminal investigations, prosecutions, and
other judicial functions; management of Government programs requiring
value judgments, as in direction of the national defense; management
and direction of the Armed Services; activities performed exclusively
by military personnel who are subject to deployment in a combat, combat
support, or combat service support role; conduct of foreign relations;
selection of program priorities; direction of Federal employees;
regulation of the use of space, oceans, navigable rivers, and other
natural resources; management of natural resources on Federal Property;
direction of intelligence and counterintelligence operations; and
regulation of industry and commerce, including food and drugs.
(b) Monetary Transactions and Entitlements. Refers to such actions
as tax collection and revenue disbursements; control of treasury
accounts and the money supply, and the administration of public trusts.
DoD Personnel. Military and civilian personnel of the Department of
Defense.
Expansion. The modernization, replacement, upgrading, or enlargement
of a DoD CA involving a cost increase exceeding either 30 percent of the
total capital investment or 30 percent of the annual personnel and
material costs. A consolidation of two or more CAs is not an expansion,
unless the proposed total capital investment or annual personnel and
material costs of the consolidation exceeds the total of the individual
CAs by 30 percent or more.
Installation. An installation is the grouping of facilities,
collocated in the same vicinity, that supports particular functions.
Activities collocated and supported by an installation are considered to
be tenants.
Installation Commander. The commanding officer or head of an
installation or a tenant activity, who has budget and supervisory
control over resources and personnel.
New Requirement. A recently established need for a commercial
product or service. A new requirement does not include interim in-house
operation of essential services pending reacquisition of the services
prompted by such action as the termination of an existing contract
operation.
Preferential Procurement Programs. Preferential procurement programs
include mandatory source programs such as Federal Prison Industries
(FPI) and the workshops administered by the Committee for Purchase from
the Blind and Other Severely Handicapped under Pub. L. 92-98. Small,
minority, and disadvantaged businesses; and labor surplus area
set-asides and awards made under Pub. L. 85-536, section 8(a) and Pub.
L. 95-507 are included under preferential procurement programs.
Right of First Refusal of Employment. Contractors provide Government
employees, displaced as a result of the conversion to contract
performance, the right of first refusal for employment openings under
the contract in positions for which they are qualified, if that
employment is consistent with post-Government employment conflict of
interest standards.
32 CFR 169.4 Policy.
(a) Ensure DoD Mission Accomplishment. When complying with this part
and its implementing Instruction, DoD Components shall consider the
overall DoD mission and the defense objective of maintaining readiness
and sustainability to ensure a capability for mobilizing the defense and
support structure.
(b) Achieve Economy and Quality through Competition. Encourage
competition with the objective of enhancing quality, economy, and
performance. When performance by a commercial source is permissible, a
comparsion of the cost of contracting and the cost of in-house
performance shall be performed to determine who shall provide the best
value for the Government, considering price and other factors included
in the solicitation. The restriction of a solicitation to a
preferential procurement program does not negate the requirement to
perform a cost comparison. Performance history will be considered in
the source selection process, and high quality performance should be
rewarded.
(c) Retain Governmental Functions In-House. Certain functions that
are inherently governmental in nature, and intimately related to the
public interest, mandate performance by DoD personnel only. These
functions are not in competition with commercial sources; therefore,
these functions shall be performed by DoD personnel.
(d) Rely on the Commercial Sector. DoD Components shall rely on
commercially available sources to provide commercial products and
services except when required for national defense, when no satisfactory
commercial source is available, or when in the best interest of direct
patient care. DoD Components shall not consider an in-house new
requirement, an expansion of an in-house requirement, conversion to
in-house, or otherwise carry on any CAs to provide commercial products
or services if the products or services can be procured more
economically from commercial sources.
(e) Delegate Decision Authority and Responsibility. DoD Components
shall delegate decision authority and responsibility to lower
organization levels, giving more authority to the doers, and linking
responsibility with that authority. This shall facilitate the work that
installation commanders must perform without limiting their freedom to
do their jobs. When possible, the installation commanders should have
the freedom to make intelligent use of their resources, while preserving
the essential wartime capabilities of U.S. support organizations in
accordance with DoD Directive 4001.1. /2/
(f) Share Resources Saved. When possible, make available to the
installation commander a share of any resources saved or earned so that
the commander can improve operations or working and living conditions on
the installation.
(g) Provide Placement Assistance. Provide a variety of placement
assistance to employees whose Federal jobs are eliminated through CA
competitions.
(54 FR 13373, Apr. 3, 1989; 54 FR 21726, May 19, 1989)
/2/ See footnote 1 to 169.2(h)
32 CFR 169.5 Responsibilities.
(a) The Assistant Secretary of Defense (Production and Logistics)
(ASD (P&L)), or designee, shall:
(1) Formulate and develop policy consistent with this part for the
DoD CA program.
(2) Issue Instructions to implement the policies of this part.
(3) Maintain an inventory of in-house DoD CAs and the Commercial
Activities Management Information System (CAMIS).
(4) Establish criteria for determining whether a CA is required to be
retained in-house for national defense.
(5) Approve or disapprove core logistics waiver requests.
(b) The Comptroller of the Department of Defense (C, DoD) shall
provide inflation factors and/or price indices and policy guidance to
the DoD Components on procedures and systems for obtaining cost data for
use in preparing the in-house cost estimate.
(c) The Heads of DoD Components shall:
(1) Comply with this part and DoD Instruction 4100.33.
(2) Designate an official at the Military Service Assistant Secretary
level, or equivalent, to implement this part.
(3) Establish an office as a central point of contact for
implementing this part.
(4) Encourage and facilitate CA competitions.
(5) Delegate, as much as practicable, broad authority to installation
commanders to decide how best to use the CA program to accomplish the
mission. Minimally, as prescribed by P.L. 100-180, section 1111 and
E.O. 12615, installation commanders shall have the authority and
responsibility to carry out the following:
(i) Prepare an inventory each fiscal year of commercial activities
carried out by Government personnel on the military installation in
accordance with DoD Instruction 4100.33.
(ii) Decide which commercial activities shall be reviewed under the
procedures and requirements of E.O. 12615, OMB Circular A-76, and DoD
Instruction 4100.33. This authority shall not be applied retroactively.
Cost comparisons and direct conversions initiated, as of December 4,
1987, shall be continued.
(iii) Conduct a cost comparison of those commercial activities
selected for conversion to contractor performance under OMB Circular
A-76.
(iv) To the maximum extent practicable, assist in finding suitable
employment for any DoD employee displaced because of a contract entered
into with a contractor for performance of a commercial activity on the
military installation.
(6) Develop specific national defense guidance consistent with DoD
Instruction 4100.33.
(7) Establish administrative appeal procedures consistent with DoD
Instruction 4100.33.
(8) Ensure that contracts resulting from cost comparisons conducted
under this part are solicited and awarded in accordance with the FAR and
the DFARS.
(9) Ensure that all notification and reporting requirements
established in DoD Instruction 4100.33 are satisfied.
(10) Ensure that the Freedom of Information Act Program is complied
with in responding to requests for disclosure of contractor-supplied
information obtained in the course of procurement.
(11) Ensure that high standards of objectivity and consistency are
maintained in compiling and maintaining the CA inventory and conducting
the reviews and cost comparisons.
(12) Provide, when requested, assistance to installation commanders
to ensure effective CA program implementation and technical competence
in management and implementation of the CA program.
(13) Ensure that maximum efforts are exerted to assist displaced DoD
employees in finding suitable employment, to include, as appropriate:
(i) Providing priority placement assistance for other Federal jobs.
(ii) Training and relocation when these shall contribute directly to
placement.
(iii) Providing outplacement assistance for employment in other
sectors of the economy with particular attention to assisting eligible
employees to exercise their right of first refusal with the successful
contractor.
(14) Maintain the technical competence necessary to ensure effective
and efficient management of the CA program.
(15) Ensure, once the cost comparison is initiated, that the
milestones are met, and completion of the cost comparison is without
unreasonable delay.
32 CFR 169.5 PART 169a -- COMMERCIAL ACTIVITIES PROGRAM PROCEDURES
32 CFR 169.5 Subpart A -- General
Sec.
169a.1 Purpose.
169a.2 Applicability and scope.
169a.3 Definitions.
169a.4 Policy.
32 CFR 169.5 Subpart B -- Procedures
169a.8 Inventory and review schedule (Reports Control Symbol
DD-P&L(A)1540).
169a.9 Reviews: Existing in-house commercial activities.
169a.10 Contracts.
169a.11 Expansions.
169a.12 New requirements.
169a.13 CAs involving forty-five or fewer DoD civilian employees.
169a.14 Military personnel commerical activity.
169a.15 Special considerations.
169a.16 Independent review.
169a.17 Solicitation considerations.
169a.18 Administrative appeal procedures.
32 CFR 169.5 Subpart C -- Reporting Requirements
169a.21 Reporting requirements.
169a.22 Responsibilities.
Appendix A to Part 169a -- Codes and Definitions of Functional Areas
Appendix B to Part 169a -- Commercial Activities Inventory Report and
Five-year Review Schedule
Appendix C to Part 169a -- Simplified Cost Comparisons for Direct
Conversion of Commercial Activities
Appendix D to Part 169a -- Commercial Activities Management
Information System (CAMIS)
Appendix E to Part 169a -- Public Law 96-342, as Amended by Pub. L.
97-252 (Hereafter referred to as sec. 502)
Authority: 5 U.S.C. 301 and 552.
Source: 50 FR 40805, Oct. 7, 1985, unless otherwise noted.
32 CFR 169.5 Subpart A -- General
32 CFR 169a.1 Purpose.
This part:
(a) Reissues DoD Instruction 4100.33 /1/ to update policy,
procedures, and responsibilities required by DoD Directive 4100.15 /2/
and OMB Circular A-76 /3/ for use by the Department of Defense (DoD) to
determine whether needed commercial activities (CAs) should be
accomplished by DoD personnel or by contract with a commercial source.
(b) Cancels DoD 4100.33-H,4 ''DoD In-House vs. Contract Commercial
and Industrial Activities Cost Comparison Handbook.''
/1/ Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161
/2/ See footnote 1 to 169a.1(a).
/3/ Copies may be obtained if needed, from the Office of Management
and Budget, Executive Office Building, Washington, DC 20503.
4See footnote 1 to 169a.1(a).
32 CFR 169a.2 Applicability and scope.
This part:
(a) Applies to the Office of the Secretary of Defense (OSD), the
Military Departments, the Defense Agencies and DoD Field Activities
(hereafter referred to collectively as the ''DoD Components'').
(b) Contains DoD procedures for CAs in the United States, its
territories and possessions, the District of Columbia, and the
Commonwealth of Puerto Rico.
(c) Is not mandatory for CAs staffed solely with DoD civilian
personnel paid by nonappropriated funds, such as military exchanges.
However, this part is mandatory for CAs when they are staffed partially
with DoD civilian personnel paid by or reimbursed from appropriated
funds, such as libraries, open messes, and other morale, welfare, and
recreation (MWR) activities. When related installation support
functions are being cost-compared under a single solicitation, a DoD
Component may decide that it is practical to include activities staffed
solely with DoD civilian personnel paid by nonappropriated funds.
(d) Does not apply to DoD governmental functions are defined in
169a.3.
(e) Does not apply when contrary to law, Executive orders, or any
treaty or international agreement.
(f) Does not apply in times of a declared war or military
mobilization.
(g) Does not provide authority to enter into contracts.
(h) Does not apply to the conduct of research and development, except
for severable in-house CAs that support research and development, such
as those listed in Appendix A to this part.
(i) Does not justify conversion to contract solely to avoid personnel
ceilings or salary limitations.
(j) Doe not authorize contracts that establish employer-employee
relations between the Department of Defense and contractor employees as
described in the Federal Acquisition Regulation (FAR), 48 CFR 37.104.
(k) Does not establish and shall not be construed to create any
substantive or procedural basis for anyone to challenge any DoD action
or inaction on the basis that such action or inaction was not in
accordance with this part except as specifically set forth in
169a.15(d).
(57 FR 29207, July 1, 1992)
Effective Date Note: At 57 FR 29207, July 1, 1992, 169a.2 was
revised, effective July 8, 1992. For the convenience of the reader, the
superseded text is set forth below.
169a.2 Applicability and scope.
(a) This part applies to the Office of the Secretary of Defense
(OSM), the Military Departments, and the Defense Agencies (hereafter
referred to collectively as ''DoD Components'').
(b) Its provisions contain DoD procedures for commercial activities
in the United States, its territories and possessions, the District of
Columbia and the Commonwealth of Puerto Rico.
(c) Its provisions are not mandatory for commercial activities
staffed solely with civilian personnel paid by nonappropriated funds,
such as military exchanges. However, its provisions are mandatory for
commercial activities when they are staffed partially with civilian
personnel paid by or reimbursed from appropriated funds, such as
libraries, open messes, and other morale, welfare, and recreation (MWR)
activities. When related installation support is being cost compared
under a single solicitation, a DoD Component may decide that it is
practical to include activities staffed solely with civilian personnel
paid by nonappropriated funds.
(d) This part does not:
(1) Apply to governmental functions as defined in 169a.3.
(2) Apply when contrary to law, executive orders, or any treaty or
international agreement.
(3) Apply in times of a declared war or military mobilization.
(4) Provide authority to enter into contracts.
(5) Apply to the conduct of research and development, except for
severable in-house commercial activities in support of research and
development, such as those listed in Part IV of the supplement to OMB
circular A-76.
(6) Justify conversion to contract solely to avoid personnel ceilings
or salary limitations.
(7) Authorize contracts that establish an employer-employee
relationship between the Department of Defense and contractor employees
as described in the Federal Acquisition Regulation (FAR) (48 CFR Chapter
1).
32 CFR 169a.3 Definitions.
Commercial activity review. The process of evaluating CAs for the
purpose of determining whether or not a cost comparison will be
conducted.
Commercial source. A business or other non-Federal activity located
in the United States, its territories and possessions, the District of
Columbia, or the Commonwealth of Puerto Rico that provides a commercial
product or service.
Conversion to contract. The changeover of a CA from performance by
DoD personnel to performance under contract by a commercial source.
Conversion to in-house. The changeover of a CA from performance
under contract by a commercial source to performance by DoD personnel.
Cost comparison. The process of developing an estimate of the cost
of performance of a CA by DoD employees and comparing it, in accordance
with the requirements in this part, to the cost to the Government for
contract performance of the CA.
Directly affected parties. DoD employees and their representative
organizations and bidders or offerers on the solicitation.
Displaced DoD employee. Any DoD employee affected by conversion to
contract operation (including such actions as job elimination, grade
reduction, or reduction in rank). It includes both employees in the
function converted to contract and to employees outside the function who
are affected adversely by conversion through reassignment or the
exercise of bumping or retreat rights.
DoD Commercial Activity (CA). An activity that provides a product or
service obtainable (or obtained) from a commercial source. A DoD CA is
not a Governmental function. A DoD CA may be an organization or part of
another organization. It must be a type of work that is separable from
other functions or activities so that it is suitable for performance by
contract. A representative list of the functions performed by such
activities is provided in Enclosure 1. A DoD CA falls into one of two
categories:
(a) In-house CA. A DoD CA operated by a DoD Component with DoD
personnel.
(b) Contract CA. A DoD CA managed by a DoD Component operated with
contractor personnel.
DoD Employee. Refers to only civilian personnel of the Department of
Defense.
DoD governmental function. A function that is related so intimately
to the public interest as to mandate performance by DoD personnel.
These functions require either the exercise of discretion in applying
Government authority or the use of value judgement in making the
decision for the Department of Defense.
Services or products in support of Governmental functions such as
those listed in enclosure 3 of DoD Instruction 4100.33 are normally
subject to this part and its implementing instructions. Governmental
functions normally fall into two categories:
(a) The act of governing; that is, the discretionary exercise of
Governmental authority. Examples include criminal investigations,
prosecutions, and other judicial functions; management of Governmental
programs requiring value judgments, as in direction of the national
defense; management and direction of the Armed Services; activities
performed exclusively by military personnel who are subject to
deployment in a combat, combat support, or combat service support role;
conduct of foreign relations; selection of program priorities;
direction of Federal employees; regulation of the use of space, oceans,
navigable rivers, and other natural resources; direction of
intelligence and counterintelligence operations; and regulation of
industry and commerce, including food and drugs.
(b) Monetary transactions and entitlements, such as tax collection
and revenue disbursements; control of the money supply treasury
accounts; and the administration of public trusts.
DoD personnel. Refers to both military and civilian personnel of the
Department of Defense.
Expansion. The modernization, replacement, upgrading, or enlargement
of a DoD CA involving a cost increase exceeding either 30 percent of the
total capital investment or 30 percent of the annual personnel and
material costs. A consolidation of two or more CAs is not an expansion
unless the proposed total capital investment or annual personnel and
material costs of the consolidation exceeds the total of the individual
CAs by 30 percent or more.
New requirement. A recently established need for a commercial
product or service. A new requirement does not include interim in-house
operation of essential services pending reacquisition of the services
prompted by such action as the termination of an existing contract
operation.
Preferential procurement programs. Mandatory source programs such as
Federal Prison Industries (FPI) and the workshops administered by the
Committee for Purchase from the Blind and Other Severely Handicapped
under the Javits-Wagner-O'Day Act. Also included are small, minority
and disadvantaged businesses, and labor surplus area set-asides and
awards made under 15 U.S.C. section 637.
(50 FR 40805, Oct. 7, 1985, as amended at 57 FR 29207, July 1, 1992)
Effective Date Note: At 57 FR 29207, July 1, 1992, 169a.3 was
amended by revising the definition ''Preferential procurement program'',
effective July 8, 1992. For the convenience of the reader, the
superseded text is set forth below.
169a.3 Definitions
Preferential procurement programs. Preferential procurement programs
are mandatory source programs such as Federal Prison Industries (FPI)
and the workshops administered by the Committee for Purchase from the
Blind and Other Severely Handicapped under the Javits-Wagner-O'Day Act.
Also included are small, minority and disadvantaged businesses, and
labor surplus area set-asides and awards made under section 8(a) of the
Small Business Act.
32 CFR 169a.4 Policy.
(a) Ensure DoD mission accomplishment. The implementation of this
part shall consider the overall DoD mission and the defense objective of
maintaining readiness and sustainability to ensure a capability for
mobilizing the defense and support structure.
(b) Retain governmental functions in-house. Certain functions that
are inherently governmental in nature, and intimately related to the
public interest, mandate performance by DoD personnel only. These
functions are not in competition with commercial sources; therefore,
these functions shall be performed by DoD personnel.
(c) Rely on the commercial sector. DoD Components shall rely on
commercially available sources to provide commercial products and
services, except when required for national defense, when no
satisfactory commercial source is available, or when in the best
interest of direct patient care. DoD Components shall not consider an
in-house new requirement, an expansion of an in-house requirement,
conversion to in-house, or otherwise carry on any CAs to provide
commercial products or services if the products or services can be
procured more economically from commercial sources.
(d) Achieve economy and enhance productivity. Encourage competition
with the objective of enhancing quality, economy, and performance.
When performance by a commercial source is permissible, a comparison
of the cost of contracting and the cost of in-house performance shall be
performed to determine who shall provide the best value for the
Government, considering price and other factors included in the
solicitation. If the installation commander has reason to believe that
it may not be cost effective to make an award under mandatory source
programs, section 8(a) of the Small Business Act or any other
noncompetitive preferential procurement program, a cost comparison, or
any other cost analysis, although not required by OMB Circular A-76, may
be performed. Performance history will be considered in the source
selection process, and high quality performance should be rewarded.
(e) Delegate decision authority and responsibility. DoD Components
shall delegate decision authority and responsibility to lower
organization levels, giving more authority to the doers, and linking
responsibility with that authority. This shall facilitate the work that
installation commanders must perform without limiting their freedom to
do their jobs. When possible, the installation commanders should have
the freedom to make intelligent use of their resources, while preserving
the essential wartime capabilities of U.S. support organizations in
accordance with DoD Directive 4001.15. /5/
(f) Share resources saved. When possible, make available to the
installation commander a share of any resources saved or earned so that
the commander can improve operations or working and living conditions on
the installation.
(g) Provide Placement Assistance. Provide a variety of placement
assistance to employees whose Federal jobs are eliminated through CA
competitions.
(h) Permit interim-in-house operation. A DoD in-house CA may be
established on a temporary basis if a contractor defaults. Action shall
be taken to resolicit bids or proposals in accordance with this part.
(57 FR 29207, July 1, 1992)
Effective Date Note: At 57 FR 29207, July 1, 1992, 169a.4 was
revised, effective July 8, 1992. For the convenience of the reader, the
superseded text is set forth below.
169a.4 Policy.
It is DoD Policy to:
(a) Ensure DoD mission accomplishment. The implementation of this
part shall consider the overall mission of the Department of Defense and
the defense objective of maintaining readiness and sustainability to
ensure a capability to mobilize the defense force and support structure.
(b) Retain governmental functions in-house. Certain functions
inherently are governmental in nature, being so intimately related to
the public interest as to mandate performance only by DoD personnel.
These functions are not in competition with commercial sources;
therefore, these functions shall be performed by DoD personnel.
(c) Rely on the commercial sector. DoD Components shall rely on
commercially available sources to provide commercial products and
services. Except when required for national defense, when no
satisfactory commercial source is available, or when in the best
interest of direct patient care, DoD Components will not start, expand,
or carry on any commercial activities to provide commercial products or
services if the products or services can be procured more economically
from commercial sources.
(d) Achieve economy and enhance productivity. Competition enhances
quality, economy, and productivity. Whenever performance by a
commercial source of a DoD in-house commercial activity is permissible,
in accordance with this part and its implementing instructions, a
comparison of the cost of contracting and the cost of in-house
performance normally shall be performed to determine who will do the
work. The restriction of a solicitation to a preferential procurement
program does not negate this requirement.
(e) Permit interim-in-house operation. A DoD in-house commercial
activity may be established on a temporary basis if a contractor
defaults. Action shall be taken to resolicit bids or proposals in
accordance with this part.
/5/ See footnote 1 to 169a.1(a).
32 CFR 169a.4 Subpart B -- Procedures
32 CFR 169a.8 Inventory and review schedule (Report Control Symbol
DD-P&L(A).
(a) Information in each DoD Component's inventory shall be used to
assess DoD implementation of OMB Circular A-76 and for other purposes.
Each Component's inventory shall be updated at least annually to reflect
changes to their review schedule and the results of reviews, cost
comparisons, and direct conversions. Updated inventories for all DoD
Components except National Security Agency/Central Security Service
(NSA/CSS) and the Defense Intelligence Agency (DIA) Shall be submitted
to the Assistant Secretary of Defense Production and Logistics)
(ASD(P&L)) within 90 days after the end of each fiscal year. Inventory
data pertaining to NSA/CSS and DIA shall be held at the specific Agency
concerned for subsequent review by properly cleared personnel. Appendix
A to this part provides the codes and explanations for functional areas
and Appendix B to this part provides procedures for submitting the
inventory.
(b) DoD component's review schedules should be coordinated with the
DoD Component's Efficiency Review Program and the Defense Regional
Interservice Support (DRIS) Program to preclude duplication of efforts
and to make use of information already available.
(c) Review of CAs that provide interservice support shall be
scheduled by the supplying DoD Component. Subsequent cost comparisons,
when appropriate, shall be executed by the same DoD Component. All
affected DoD Components shall be notified of the intent to perform a
review.
(50 FR 40805, Oct. 7, 1985, as amended at 57 FR 29208, July 1, 1992)
Effective Date Note: At 57 FR 29208, July 1, 1992, in 169a.8, the
heading was amended by revising ''DD-MIL(A)'' to read ''DD-P&L(A)''s;
paragraph (a) was amended by revising ''(Acquisition and Logistics)
(ASD(A&L)'' to read ''(Production and Logistics) (ASD(P&L)'';
''Enclosure 1'' was revised to read ''Appendix A to this part'';
''Enclosure 2'' was revised to read ''Appendix B to this part''; and
paragraph (c) was revised, effective July 8, 1992. For the convenience
of the reader, the superseded text is set forth below.
169a.8 Inventory and review schedule (Report Control Symbol
DD-P&L(A).
(c) Reviews of commercial activities that provide interservice
support shall be scheduled by the supplying DoD Component. Subsequent
cost comparisons, when appropriate, shall be executed by the same DoD
Component. All affected DoD Components shall be notified of the intent
to perform a review.
32 CFR 169a.9 Reviews: Existing in-house commercial activities.
(a) DoD components shall conduct reviews of in-house CAs in
accordance with their established review schedules. Existing in-house
CAs, once reviewed shall be retained in-house without a cost comparison
only when certain conditions are satisfied. (Detailed documentation
will be maintained to support the decision to continue in-house
performance). These conditions are as follows:
(1) National Defense. In most cases, application of this criteria
shall be made considering the wartime and peacetime duties of the
specific positions involved rather than in terms of broad functions.
(i) A CA, staffed with military personnel who are assigned to the
activity, may be retained in-house for national defense reason when the
following apply.
(A) The CA is essential for training or experience in required
military skills;
(B) The CA is needed to provide appropriate work assignments for a
rotation base for overseas or sea-to-shore assignments; or
(C) The CA is necessary to provide career progression to needed
military skill levels.
(ii) Core logistics activities. The core logistics capability
reported to Congress, March 29, 1984, under the provisions of 10 U.S.C.
2646 is comprised of the facilities, equipment, and management personnel
at the activities listed in the report. The work at those activities
may be performed by either government or contractor personnel, whichever
is more cost effective. Core logistics activities reported to Congress
under the provisions of 10 U.S.C. 2646, shall be retained in-house
unless the Secretary of Defense grants a waiver as provided for in 10
U.S.C. 2464. Requests for waivers shall be submitted to the ASD (P&L).
DoD Components may propose to the ASD (P&L) additional core lostistics
capability for inclusion in the list of core logistics activities. Core
logistics activities reported to Congress as additions to the original
list shall be retained in-house unless subsequently waived by the
Secretary of Defense.
(iii) If the DoD Component has a larger number of similar CAs with a
small number of essential military personnel in each CA, action shall be
taken, when appropriate, to consolidate the military positions
consistent with military requirements so that economical performance by
either DoD civilian employees or by contract can be explored for
accomplishing a portion of the work.
(iv) The DoD Components may propose to the ASD (P&L) other criteria
for exempting CAs for national defense reasons.
(2) No satisfactory commercial source available. A DoD commercial
activity may be performed by DoD personnel when it can be demonstrated
that:
(i) There is no satisfactory commercial source capable of providing
the product or service that is needed. Before concluding that there is
no satisfactory commercial source available, the DoD Component shall
make all reasonable efforts to identify available sources.
(A) DoD Components' efforts to find satisfactory commercial sources
shall be carried out in accordance with the FAR and Defense FAR
Supplement (DFAS) including review of bidders lists and inventories of
contractors, consideration of preferential procurement programs, and
requests for help from Government agencies such as the Small Business
Administration.
(B) Where the availability of commercial sources is uncertain, the
DoD Component will place up to three notices of the requirement in the
Commerce Business Daily (CBD) over a 90-day period. (Notices will be in
the format specified in FAR, 48 CFR part 5 and part 7, subpart 7.3) When
a bona fide urgent requirement occurs, the publication period in the CBD
may be reduced to two notices, 15 days apart. Specifications and
requirements in the notice will not be unduly restrictive and will not
exceed those required of Government personnel or operations.
(ii) Use of a commercial source would cause an unacceptable delay or
disruption of an essential program. In-house operation of a commercial
activity on the basis that use of a commercial source would cause an
unacceptable delay or disrupt an essential DoD program requires a
specific documented explanation.
(A) The delay or disruption must be specific as to cost, time, and
performance measures.
(B) The disruption must be shown to be a lasting or unacceptable
nature. Temporary disruption caused by conversion to contract is not
sufficient support for the use of this criteria.
(C) The fact that a DoD commercial activity involves a classified
program, or is part of a DoD Component's basic mission, or that there is
the possibility of a strike by contract employees is not adequate reason
for Government performance of that activity. Further, urgency alone is
not an adequate reason to continue Government operation of a commercial
activity. It must be shown that commercial sources are not able, and
the Government is able, to provide the product or service when needed.
(D) Use of an exemption due to an unacceptable delay or disruption of
an essential program shall be approved by the DoD Component's central
point of contact office. This authority may be redelegated.
(3) Patient Care. Commercial activities at DoD hospitals may be
performed by DoD personnel when it is determined by the head of the DoD
Component or his designee, in consultation with the DoD Component's
chief medical director, that performance by DoD personnel would be in
the best interest of direct patient care.
(50 FR 40805, Oct. 7, 1985, as amended at 57 FR 29208, July 1, 1992)
Effective Date Note: At 57 FR 29208, July 1, 1992, 169a.9 was
amended by revising paragraph (a) introductory text, (a)(1) introductory
text and paragraph (a)(1)(i); paragraph (a)(1)(ii) was amended in the
first and third sentences by revising ''Pub. L. 98-525, section 307''
to read ''10 U.S.C. 2646''; the third sentence was amended by revising
''section 307'' to read ''10 U.S.C. 2464''; ''(A&L)'' was revised to
read ''(P&L)'' in the fourth sentence each time it appears. Paragraph
(a)(1)(iv) was amended by revising ''(A&L)'' to read ''(P&L)''.
Paragraph (a)(2)(i)(A) was amended by revising ''DoD FAR'' to read
''Defense FAR'' and ''(DFAR)'' to read ''(DFAS)''. Paragraph
(a)(2)(i)(B) was amended by revising ''at least'' to read ''up to'', and
after ''part 5'' adding ''and part 7, subpart 7.3''. ''CBA'' was revised
to read ''CBD'', and ''over a 30-day period'' was revised to read '', 15
days apart''. Paragraph (a)(2)(ii)(D), last sentence, was amended by
removing the word ''not'', effective July 8, 1992. For the convenience
of the reader the superseded text appears as set forth below.
169a.9 Reviews: Existing in-house commercial activities.
(a) DoD Components shall conduct reviews of in-house commercial
activities in accordance with their established review schedules.
Existing in-house commercial activities, once reviewed shall be retained
in-house without a cost comparison only when certain conditions are
satisfied. (Detailed documentation will be maintained to support the
decision to continue in-house performance. ASD(A&L) shall be notified
within 30 days of any such decision.) These conditions are as follows:
(1) National Defense. In most cases, application of this criteria
shall be made considering the wartime and peacetime duties of the
specific positions involved rather than in terms of broad functions.
(i) A commercial activity staffed with miltary personnel who are
assigned to the activity, may be retained in-house for national defense
reasons when the following apply:
(A) The commercial activity is essential for training or experience
in required military skills;
(B) The commercial activity is needed to provided appropriate work
assignments for a rotation base for overseas or sea-to-shore
assignments; or
(C) The commercial activity is necessary to provide career
progression to needed military skill levels.
32 CFR 169a.10 Contracts.
When contract cost becomes unreasonable or performance becomes
unsatisfactory, the requirement must be resolicited. If the DoD
Component competes in the resolicitation, then a cost comparison of a
contracted CA shall be performed in accordance with Part III of the
Supplement to OMB Circular A-76 (Office of Federal Procurement Policy
pamphlet No. 4) /6/ , Part II of the Supplement to OMB Circular A-76
(Management Study Guide) /7/ , Part IV of the Supplement to OMB Circular
A-76 (Cost Comparison Handbook) /8/ , if in-house performance is
feasible. When contracted CAs are justified for conversion to in-house
performance, the contract will be allowed to expire (options will not be
exercised) once in-house capability is established.
(57 FR 29208, July 1, 1992)
Effective Date Note: At 57 FR 29208, July 1, 1992, 169a.10 was
revised, effective July 8, 1992. For the convenience of the reader the
superseded text appears as set forth below.
169a.10 Reviews: Contracts.
(a) When contract costs become unreasonable or performance becomes
unsatisfactory, a cost comparison of a contracted CA shall be performed
in accordance with OMB Circular No. A-76 (Office of the Federal
Procurement Pamphlet No. 4)5, Part III of the Supplement to OMB Circular
No. A-76 (Commercial Activities (CA) Management Study Guide)6 and Part
IV of the Supplement to OMB Circular No. A-76 (Cost Comparison
Hardbook)7, if the following apply:
(1) Re-competition with other satisfactory commercial sources does
not result in reasonable prices.
(2) In-house performance is feasible.
(b) Contracted commercial activities that are justified for
conversion to in-house performance based on cost comparisons, national
defense, or in the best interest of direct patient care will be allowed
to expire (options will not be exercised) once in-house capability is
established. If the required authorizations cannot be accommodated
within the the DoD Component's available resources, a request for
adjustment shall be submitted to OSD.
/6/ See footnote 3 to 169a.1(a).
/7/ See footnote 3 to 169a.1(a).
/8/ See footnote 3 to 169a.1(a).
5See footnote 3 to 169a.1(a)
6See footnote 3 to 169a.1(a)
7See footnote 3 to 169a.1(a)
32 CFR 169a.11 Expansions.
In cases where expansion of an in-house commercial activity is
anticipated, a review of the entire commercial activity, including the
proposed expansion, shall be conducted to determine if performance by
DoD personnel is authorized for national defense reasons, because no
commercial source is available, or because it is in the best interest of
direct patient care. If performance by DoD personnel is not justified
under these criteria, a cost comparison of the entire activity shall be
performed. Government facilities and equipment normally will not be
expanded to accommodate expansions if adequate and cost effective
contractor facilities and equipment are available.
(50 FR 40805, Oct. 7, 1985, as amended at 57 FR 29208, July 1, 1992)
Effective Date Note: At 57 FR 29208, July 1, 1992, 169a.11 was
amended in the last sentence, after the word ''facilities'', the second
time it appears by adding ''and equipment'', effective July 8, 1992.
32 CFR 169a.12 New requirements.
(a) In cases where a new requirement for a commercial product or
service is anticipated, a review shall be conducted to determine if
performance by DoD personnel is authorized for national defense reasons,
because no commercial source is available, or because it is in the best
interest of direct patient care. If performance by DoD personnel is not
justified under these criteria, then the new requirement normally shall
be performed by contract.
(b) If there is reason to believe that commercial prices may be
unreasonable, a preliminary cost analysis shall be conducted to
determine whether it is likely that the work can be performed in-house
at a cost that is less than anticipated for contract performance. If
in-house performance appears to be more economical, a cost comparison
shall be scheduled. The appropriate conversion differentials will be
added to the preliminary in-house cost before it is determined that
in-house performance is likely to be more economical.
(c) Government facilities and equipment normally will not be expanded
to accommodate new requirements if adequate and cost-effective
contractor facilities are available. The requirement for Government
ownership of facilities does not obviate the possibility of contract
operation. If justification for in-house operation is dependent on
relative cost, the cost comparison may be delayed to accommodate the
lead time necessary for acquiring the facilities.
(d) Approval or disapproval of in-house performance of new
requirements involving a capital investment of $500,000 or more will not
be redelegated below the level of DAS or equivalent.
(e) Approval to budget for a major capital investment associated with
a new requirement will not constitute OSD approval to perform the new
requirement with DoD personnel. Government performance shall be
determined in accordance with this part.
32 CFR 169a.13 CAs involving forty-five or fewer DoD civilian
employees.
(a) When adequately justified under the criteria required in Appendix
C to this part, CAs involving 11 to 45 DoD civilian employees may be
competed based on simplified cost comparison procedures and 10 or fewer
DoD civilian employees may be directly converted to contract without the
use of a simplified cost comparison. Such conversion shall be approved
by the DoD Component's central point of contact office having the
responsibility for implementation of this part. Part IV of the
Supplement to OMB Circular A-76 and Appendix C to this part shall be
utilized to define the specific elements of costs to be estimated in the
simplified cost comparison.
(b) In no case shall any CA involving more than forty-five employees
be modified, reorganized, divided, or in any way changed for the purpose
of circumventing the requirement to perform a full cost comparison.
(c) The decision to perform a simplified cost comparison on a CA
involving military personnel and 11 to 45 DoD Civilian employees
reflects a management decision that the work need not be performed
in-house. Therefore, all direct military personnel costs will be
estimated in the simplified cost comparison (see Appendix C to this
part) on the basis of civilian performance.
(d) A most efficient and cost-effective organization analysis
certification is required for studies involving 11 to 45 DoD civilian
employees (see Appendix C to this part).
(57 FR 29208, July 1, 1992)
Effective Date Note: At 57 FR 29208, July 1, 1992, 169a.13 was
revised, effective July 8, 1992. For the convenience of the reader the
superseded text appears as set forth below.
169a.13 Commercial activities involving ten or fewer DoD civilian
employees.
(a) When adequately justified under the criteria required in Appendix
C, commercial activities involving ten or fewer DoD civilian employees
may be converted directly to contract based on simplified cost
comparison procedures. Such conversions shall be approved by the Office
of the Assistant Secretary of Defense (Acquisition and Logistics)
Installation Assistance (OASD(A&L)IA). Part IV of the Supplement to OMB
Circular No. A-76 /8/ shall be utilized to define the specific elements
of cost to be estimated in the simplified cost comparison.
(b) In no case shall any commercial activity involving more than ten
DoD civilian employees be modified, reorganized, divided, or in any way
changed for the purpose of circumventing the requirement to perform a
full cost comparison.
(c) The decision to directly convert a commercial activity involving
military personnel reflects a management decision that the work need not
be performed by military personnel. Therefore, all direct personnel
costs will be estimated in the simplified cost comparison on the basis
of civilian performance.
/8/ See footnote 3 to 169a.1(a).
32 CFR 169a.14 Military personnel commercial activity.
Commercial activities performed exclusively by military personnel not
subject to deployment in a combat, combat support, or combat service
support role may be converted to contract without a cost comparison,
when adequate competition is available and reasonable prices can be
obtained from qualified commercial sources.
32 CFR 169a.15 Special considerations.
(a) Signals Intelligence, Telecommunications (SIGINT) and Automated
Information System (AIS) security.
(1) Before making a determination that an activity involving SIGINT
as prescribed in Executive Order 12333, and AIS, security should be
subjected to a cost comparison, the DoD Component shall specifically
identify the risk to national security and complete a risk assessment to
determine if the use of commercial resources poses a potential threat to
national security. Information copies of the risk assessment and a
decision memorandum containing data on the acceptable and/or
unacceptable risk will be maintained within the requesting DoD
Component's contracting office.
(2) The National Security Agency (NSA) considers the polygraph
program an effective means to enhance security protection for special
access type information. The risk to national security is of an
acceptable level if contractor personnel assigned to the maintenance and
operation of SIGINT, Computer Security (COMPUSEC) and Communications
Security (COMSEC) equipment agree to an aperiodic counter-intelligence
scope polygraph examination. The following clause should be included in
every potential contract involving SIGINT, Telecommunications, and AIS
systems:
Contract personnel engaged in operation or maintaining SIGINT, COMSEC
or COMPUSEC equipment or having access to classified documents or key
material must consent to an aperiodic counter-intelligence scope
polygraph examination administered by the Government. Contract
personnel who refuse to take the polygraph examination shall not be
considered for selection.
(b) National intelligence. Before making a determination that an
activity involving the collection/processing/production/dissemination of
national intelligence as prescribed in Executive Order 12333 should be
subjected to a cost comparison, the DoD Component must specifically
identify the risk to national intelligence of using commercial sources.
Except as noted in paragraph (a) of this section, the DoD Component
shall provide its assessment of the risk to national intelligence of
using commercial sources to the Director, DIA, who shall make the
determination if the risk to national intelligence is unacceptable. DIA
shall consult with other organizations as deemed necessary and shall
provide the decision to the DoD Component. (Detailed documentation
shall be maintained to support the decision).
(c) Accountable Officer. (1) The functions and responsibilities of
the Accountable Officer are defined by DoD 7200.10-M. /9/ Those
functions of the Accountable Officer that involve the exercise of
substantive discretionary authority in determining the Government's
requirements and controlling Government assets cannot be performed by a
contractor and must be retained in-house. The responsibilities of the
Accountable Officer as an individual and the position of the Accountable
Officer are not contractable.
(2) Contractors can perform functions in support of the Accountable
Officer and functions where they are performing in accordance with
criteria defined by the Government. For instance, contractors can
process requisitions, maintain stock control records, perform storage
and warehousing, and make local procurements of items specified as
deliverables in the contract.
(3) The responsibility for administrative fund control must be
retained in-house. The contractor can process all required paperwork up
to funds obligation which must be done by the Government employee
designated as responsible for funds control. The contractor can also
process such documents as reports of survey and adjustments to stockage
levels, but approval must rest with the Accountable Officer. In all
cases, the administrative control of funds must be retained by the
Government since contractors or their employees cannot be held
responsible for violations of the United States Code.
(d) Cost Comparison Process. If performance of a commercial activity
by DoD personnel cannot be justified under national defense,
non-availability of commercial source, or patient care criteria, than a
full cost comparison shall be conducted in accordance with Part II of
the Supplement to OMB Circular No. A-76, Part III of the Supplement to
OMB Circular No. A-76, and Part IV of the Supplement to OMB Circular
A-76, to determine if performance by DoD employees is justified on the
basis of lower cost (unless the criteria of 169a. and 169a. are met).
The conclusion that a commercial activity will be cost compared
reflects a management decision that the work need not be accomplished by
military personnel. Therefore, all direct personnel costs shall be
estimated on the basis of civilian performance. Funds shall be budgeted
to cover either the cost of the appropriate in-house operation required
to accomplish the work or the estimated cost of the contract. Neither
funds nor manpower authorizations shall be removed from the activity's
budget in anticipation of the outcome of a study.
(1) Notification. (i) Congressional notification. DoD Components
shall notify Congress of the intention to do a cost comparison involving
46 or more DoD civilian personnel. DoD Components shall annotate the
notification when a cost comparison is planned at an activity listed in
the report to Congress on core logistics (see section 169a.9(a)(1)(ii)).
The DoD Component shall notify the ADS(P&L) of any such intent at least
5 working days before the Congressional notification. The cost
comparison process begins on the date of Congressional notification.
(ii) DoD employee notification. DoD Components shall, in accordance
with 10 U.S.C. 2467(b), at least monthly during the development and
preparation of the performance work statement (PWS) and management
study, consult with DoD civilian employees who will be affected by the
cost comparison and consider the views of such employees on the
development and preparation of the PWS and management study. DoD
Components may consult with such employees more frequently and on other
matters relating to the cost comparison. In the case of DoD employees
represented by a labor organization accorded exclusive recognition under
5 U.S.C. 7111, consultation with representatives of the labor
organization satisfies the consultation requirement. Consultation with
nonunion DoD civilian employees may be through such means as group
meetings. Alternatively, DoD civilian employees may be invited to
designate one or more representatives to speak for them. Other methods
may be implemented if adequate notice is provided to the nonunion DOD
civilian employees and the right to be represented during the
consultations is ensured.
(iii) Local notification. It is suggested that upon starting the
cost comparison process, the installation make an announcement of the
cost comparison, including a brief explanation of the cost-comparison
process to the employees of the activity and the community. The
installations' labor relations specialist also should be apprised to
ensure appropriate notification to employees and their representatives
in accordance with applicable collective bargaining agreements. Local
Interservice Support Coordinators (ISCs) and the Chair of the
appropriate Joint Interservice Regional Support Group (JIRSG) also
should be notified of a pending cost comparison.
(2) Performance Work Statement (PWS). (i) The PWS and its Quality
Assurance Plan shall be prepared in accordance with part II of the
Supplement to OMB Circular No. A-76 5 for full cost comparison,
simplified cost comparisons, and direct conversions of DoD personnel
commercial activities. The PWS shall include reasonable performance
standards that can be used to ensure a comparable level of performance
for both Government and contractor and a common basis for evaluation.
Employees and/or their bargaining unit representatives should be
encouraged to participate in preparing or reviewing the PWS.
(ii) Each DoD Component shall:
(A) Prepare PWSs that are based on accurate and timely historical or
projected workload data and that provide measurable and verifiable
performance standards.
(B) Monitor the development and use of prototype PWSs.
(C) Review and initiate action to correct disagreements on PWS
discrepancies.
(D) Approve prototype PWSs for Component-wide use.
(E) Coordinate these efforts with the other DoD Components to avoid
duplication and to provide mutual assistance.
(iii) Guidance on Government Property:
(A) For the purposes of this instruction, Government property is
defined in accordance with the 48 CFR part 45.
(B) The decision to offer or not to offer Government property to a
contractor shall be determined by a cost-benefit analysis justifying
that the decision is in the government's best interest. The
determination on Government property must be supported by current,
accurate, complete information and be readily available for the
independent reviewing activity. The design of this analysis shall not
give a decided advantage or disadvantage to either in-house or contract
competitors. The management of Government property offered to the
contractor shall also be in compliance with 48 CFR part 45.
(iv) If a commercial activity provides critical or sensitive
services, the PWS shall include sufficient data for the in-house
organization and commercial sources to prepare a plan for expansion in
emergency situations.
(v) DoD Components that provide interservice support to other DoD
Components or Federal agencies through interservice support agreements
or other arrangements shall ensure that the PWS includes this work load
and is coordinated with all affected Dod Components and Federal
Agencies.
(vi) If there is a requirement for the commercial source to have
access to classified information in order to provide the product or
service, the commercial source shall be processed for a facility
security clearance under the Defense Industrial Security Program in
accordance with DoD Directive 5220.2210 and DoD Regulation 5220.22-R.11
However, if no bona fide requirement for access to classified
information exists, no action shall be taken to obtain security
clearance for the commercial source.
(vii) Employees of commercial sources who do not require access to
classified information for work performance, but require entry into
restricted areas of the installation, may be authorized unescorted entry
only when the provisions of DoD Regulation 5200.2-R12 apply.
(3) Management Study. A management study shall be performed to
analyze completely the method of operation necessary to establish the
most efficient and cost-effective in-house organization (MEO) needed to
accomplish the requirements in the PWS. The MEO must reflect only
approved resources for which the commercial activity has been
authorized. As a part of the management study, installations should
determine if specific requirements can be met through an
Inter/Intraservice Support Agreement (ISA) with other activities or
Government Agencies which have excess capacity or capability.
(i) The commercial activity management study is mandatory. Part III
of the Supplement to OMB Circular No. A-76 provides guidance on how to
conduct the management study. The study shall identify essential
functions to be performed, determine performance factors, organization
structure, staffing, and operating procedures for the most efficient and
cost effective in-house performance of the commercial activity. The MEO
becomes the basis of the Government estimate for the cost comparison
with potential contractors. In this context, ''efficient'' (or
cost-effective) means that the required level of workload (output, as
described in the performance work statement) is accomplished with as
little resource consumption (input) as possible without degradation in
the required quality level of products or services.
(ii) DoD Components have formal programs and training for the
performance of management studies, and those programs are appropriate
for teaching how to conduct commercial activity management studies.
Part III of the Supplement to OMB Circular No. A-76 does not purport to
replace the DoD Component's own management techniques, but merely to
establish the basic criteria and the interrelationship between the
management study and the PWS.
(iii) If a commercial activity provides critical or sensitive
services, the management study shall include a plan for expansion in
emergency situations.
(iv) Early in the management study, management will solicit the views
of the employees in the commercial activity under review, and/or their
representatives for their recommendations as to the MEO or ways to
improve the method of operation.
(v) The management study will be the basis on which the DoD Component
certifies that the Government cost estimate is based on the most
efficient and cost effective organization practicable.
(vi) Implementation of the MEO shall be initiated no later than 1
month after cancellation of the soliciation and completed within 6
months. DoD Components shall take action, within 1 month, to schedule
and conduct a subsequent cost comparison when the MEO is not initiated
and completed as prescribed above. Subsequent cost comparisons may be
delayed by the DoD Component's central point of contact office, when
situations outside the control of the DoD Component prevent timely or
full implementation of the MEO. This authority may not be redelegated.
(vii) DoD Components shall establish procedures to ensure that the
in-house operation, as specified in the MEO, is capable of performing in
accordance with the requirements of the PWS. The procedures also shall
ensure that the resources (facilities, equipment, and personnel)
specified in the MEO are available to the in-house operation and that
in-house performance remains within the requirements and resources
specified in the PWS and MEO for the period of the cost comparison,
unless documentation to support changes in workload/scope is available.
(viii) A management study is not required for simplified cost
comparisons however, a MEO analysis and certification is required.
(4) Cost Comparisons. Cost comparisons shall include all significant
costs of both Government and contract performance. Common costs; that
is, costs that would be the same for either in-house or contract
operation, need not be computed, but the basis of those common costs
must be identified and included in the cost comparison documentation.
Part IV of the Supplement to OMB Circular A-76 (Cost Comparison
Handbook) provides the basic guidance for conducting full cost
comparisons. Appendix D provides guidance for conducting simplified
cost comparisons. The supplemental guidance contained below is intended
to establish uniformity and to ensure all factors are considered when
making cost comparisons. Deviation from the guidance contained in Part
IV of the Supplement to OMB Circular A-76, will not be allowed, except
as provided in the following subparagraphs.
(i) In-house Cost Estimate. (A) The in-house cost estimate shall be
based on the most efficient and cost-effective in-house organization
needed to accomplish the requirements in the PWS.
(B) Heads of DoD Components or their designees shall certify that the
in-house cost estimate is based on the most efficient and cost-effective
operation practicable. Such certification shall be made before the bid
opening or the date for receipt of initial proposals.
(C) The ASD(P&L) shall provide inflation factors for adjusting costs
for the first and subsequent performance periods. These factors shall
be the only acceptable factors for use in cost comparisons. Inflation
factors for outyear (second and subsequent) performance periods will not
be applied to portions of the in-house estimate that are comparable with
those portions of the contract estimate subject to economic price
adjustment clauses.
(D) Military positions in the organization under cost comparison
shall be converted to civilian positions for costing purposes. Civilian
grades and series shall be based on the work described in the PWS and
the MEO, determined by the management study rather than on the current
organization structure.
(E) DoD Components shall not use the DLA Wholesale Stock Fund Rate
and/or the DLA Direct Delivery rate for supplies and materials as
reflected in paragraph 3.a. (1) and (2) of Part IV of the Supplement to
OMB Circular No. A-76. The current standard and pricing formula
includes full cost under the Defense Business Operations Fund (DBOF).
No further mark-up is required.
(F) DoD Components shall assume for the purpose of depreciation
computations that residual value is equal to the disposal values listed
in Appendix C of part IV of the Supplemental to OMB Circular No. 76
(Cost Comparison Handbook) if more precise figures are not available
from the official accounting records or other knowledgeable authority.
Therefore, the basis for depreciation shall be the original cost plus
the cost of capital improvements (if any) less the residual value. The
original cost plus the cost of capital improvements less the residual
value shall be divided by the useful life (as projected for the
commercial activity cost comparison) to determine the annual
depreciation.
(G) Purchased services which augment the current in-house work effort
and that are included in the PWS should be included in line 3 (other
specifically attributable costs). When these purchased services are
long-term and contain labor costs subject to economic price adjustment
clauses, then the applicable labor portion will not be escalated by
outyear inflation factors. In addition, purchased services shall be
offset for potential Federal income tax revenue by applying the
appropriate rate in Appendix D of part IV of the Supplement to OMB
Circular A-76 (Cost Comparison Handbook) to total cost of purchased
services.
(H) Overhead costs shall be computed only when such costs will not
continue in the event of contract performance. This includes the cost
of any position (full time, part time, or intermittent) that is
dedicated to providing support to the activity(ies) under cost
comparison regardless of the support organization's location. Military
positions provided overhead support shall be costed using current
military composite standard rates that include PCS costs multiplied by
the appropriate support factor.
(ii) Cost of Contract Performance. (A) The contract cost estimate
shall be based on firm bids or negotiated proposals solicited in
accordance with the FAR and the DoD FAR Supplement (DFARS) for full cost
comparisons. Existing contract prices (such as those from GSA Supply
Schedules) will not be used in a cost comparison. For simplified cost
comparisons, the guidance in Appendix C of this part applies.
(B) Standby costs are costs incurred for the upkeep of property in
standby status. Such costs neither add to the value of the property nor
prolong its life, but keep it in efficient operating condition or
available for use. When an in-house activity is terminated in favor of
contract performance and an agency elects to hold Government equipment
and facilities on standby solely to maintain performance capability,
this is a management decision, and such standby costs will not be
charged to the cost of contracting.
(C) A specific waiver is required to use contract administration
factors that exceed the limits established in Table 3-1 of Part IV of
the Supplement to OMB Circular No. A-76 (Cost Comparison Handbook).
The reason for the deviation from the limits, the supporting alternative
computation, and documentation supporting the alternative method, shall
be provided to the DoD Component's central point of contact office for
advance approval on a case-by-case basis. The authority may not be
redelegated. ASD(A&L) shall be notified within 30 days of any such
decisions.
(D) The following guidance pertains to one-time conversion costs:
(1) Material Related Costs. The cost factors below shall be used, if
more precise costs are not known, to estimate the cost associated with
disposal/transfer of excess government material which result from a
conversion to contract performance:
(2) Labor-Related Costs. If unique circumstances prevail when a
strict application of the 2 percent factor for computation of severance
pay results in a substantial overstatement or understatement of this
cost, an alternative methodology may be employed. The reason for the
deviation from this standard, the alternative computation, and
documentation supporting the alternative method shall be provided to the
appropriate DoD Component's central point of contact office for advance
approval on a case-by-case basis. This authority may not be
redelegated.
(3) Other Transition Costs. Normally, government personnel
assistance after the contract start date (to assist in transition from
in-house performance to contract performance) should not be necessary.
When transition assistance will not be made available, this condition
should be stated clearly in the solicitation so that contractors will be
informed that they will be expected to meet full performance
requirements from the first date of the contract. Also, when
circumstances require full performance on the contract start date, the
solicitation shall state that time will be made available for contractor
indoctrination prior to the start date of the contract. The inclusion
of personnel transition costs in a cost comparison requires advance
approval of the DoD Component's central point of contact office. This
authority may not be redelegated.
(E) Gain or Loss on Disposal/Transfer of Assets. If more precise
costs are not available from the Defense Reutilization and Marketing
Office or appropriate authority, then:
(1) The same factors for PCH and transportation costs as prescribed
in 169a.12E(ii)(D)(1) for the costs associated with disposal/transfer
of materials may be used.
(2) The estimated disposal value may be calculated from the net book
value as derived from the table in Appendix C of part IV of the
Supplement to OMB Circular No. A-76 (Cost Comparison Handbook), minus
the disposal/transfer costs. This figure shall be entered as a gain or
loss on line 11 or line 13 of the cost comparison form as appropriate.
Note: If a cost-benefit analysis, as prescribed in 169a.12(B)(iii),
indicates that the retention of Government-owned facilities, equipment,
or real property for use elsewhere in the Government is cost
advantageous to the Government, then the cost comparison form shall
reflect a gain to the Government and therefore a decrease to the cost of
contracting on line 11 or line 13 of the cost comparison form as
appropriate.
(50 FR 40805, Oct. 7, 1985, as amended at 57 FR 29208, July 1, 1992)
Effective Date Note: At 57 FR 29208, July 1, 1992, 169a.15 was
amended by revising paragraphs (a), (b), the last sentence of paragraph
(c)(3), (d)(1), (d)(2)(ii)(A), (d)(2)(iii), and (d)(4)(i)(E); paragraph
(d)(2)(i), first sentence, was amended by revising ''military'' to read
''DoD''; paragraph (d)(2)(v) was amended by revising ''components'' to
read ''DoD Components'' and ''agencies'' to read ''Federal Agencies'';
paragraph (d)(3)(viii) was amended by removing the period at the end of
the sentence and adding, ''however, a MEO analysis and certification is
required.''; paragraph (d)(4)(i)(C) was amended by revising ''ASD
(A&L)'' to read ''ASD (P&L)''; paragraph (d)(4)(i)(F) was amended by
revising ''property disposal officer'' to read ''official accounting
records''; paragraph (d)(4)(i)(H) was amended by revising the third
sentence; paragraph (d)(4)(ii)(A) was amended by removing the words
''competitively obtained and''; by revising ''DFAR'' to read ''DFARS'';
and in the last sentence after ''Appendix C'' add ''of this part'';
paragraphs (d)(4)(ii)(D)(2) and (3) were amended by removing the last
sentence; paragraph (d)(4)(ii)(E) introductory text was amended by
revising ''Property Disposal'' to read ''Defense Reutilization and
Marketing'', effective July 8, 1992. For the convenience of the reader
the superseded text appears as set forth below.
169a.15 Special considerations.
(a) Communications Security and Signals Intelligence. Before making
a determination that an activity involving Signals Intelligence
(SIGINT), as prescribed in Executive Order 12333 or the full maintenance
of communications security (COMSEC) equipment should be subjected to a
cost comparison, a determination must be made of the risk to national
security of using commercial sources. The DoD Component shall provide
its assessment of the risk to national security of using commercial
sources to the Director, NSA, who shall make the determination if the
risk to national security is unacceptable. NSA shall notify the
ASD(A&L) within 30 days of action taken by the Director, NSA, to grant
or deny a request for a waiver to the provisions of DoD Directive
4100.15 and its implementing instructions.
(b) National Intelligence. Before making a determination that an
activity involving the collection/processing/production/dissemination of
national intelligence as prescribed in Executive Order 12333 should be
subjected to a cost comparison, the DoD Component must specifically
identify the risk to national intelligence of using commercial sources.
Except as noted in subparagraph (a) above, the DoD Component shall
provide its assessment of the risk to national intelligence of using
chemical sources to the Director, DIA, who shall make the determination
if the risk to national intelligence is unacceptable. DIA shall notify
ASD(A&L) within 30 days of action taken by the Director, DIA, to grant
or deny a request for a waiver to the provisions of DoD Directive
4100.15 and its implementing instructions.
(c) * * *
(3) * * *
In all cases the administrative control of funds must be retained by
the Government since a contractor or his employees cannot be held
responsible for violations of former section 3679 of the revised
statutes (now codified at sections 1341, 1342, and 1517 of title 31,
United States Code).
(d) * * *
(1) Notification -- (i) Congressional Notification. DoD Components
shall notify Congress of the intention to do a cost comparision for each
CA. DoD Components shall annotate the notification when a cost
comparison is planned at an activity listed in the report to Congress on
core logistics (see 169a.8(a)(ii) of this part). The DoD Component
shall notify the ASD(A&L) of any such intent at least 5 working days
before the Congressional notification. The cost comparison process
begins on the date of Congressional notification.
(ii) Commerce Business Daily/Federal Register Notification. DoD
Components shall publish their schedules for conducting cost comparisons
as soon as practicable after Congressional notification, but at least
annually, in the CBD and the Federal Register (FR). Schedules for cost
comparisons not requiring Congressional notification and decisions to
convert commercial activities directly to contract also shall be
published in the CBD/FR as soon as practicable after the decision. The
cost comparison schedule shall include for each activity, the name,
location, and date the cost comparison began or the estimated date the
direct conversion will occur.
(iii) Local Notification. It is suggested that upon Congressional
notification the installation make an announcement of the cost
comparison, including a brief explanation of the cost-comparison process
to the employees of the activity and the community. The installation's
labor relations specialist also should be apprised to ensure appropriate
notification to employees and their representatives in accordance with
applicable collective bargaining agreements. Local Interservice Support
Coordinators (ISCs) and the Chairman of the appropriate Joint
Interservice Resources Study Group (JIRSG) also should be notified of a
pending cost comparison.
(2) * * *
(ii) * * *
(A) Prepare PWSs where needed.
(iii) Government-owned facilities, equipment, and real property shall
be made available to contractors, unless a cost-benefit analysis
indicates that retention of use elsewhere is more cost advantageous to
the Government. If a cost-benefit analysis is not performed, then the
solicitation and cost comparison itself must reflect both options.
Decisions to not provide facilities, equipment, or real property to
contractors shall be made at a level no lower than the DoD Component's
central point of contact office unless both options are an integral part
of the solicitation and cost comparison.
(4) * * *
(i) * * *
(E) All DoD Components shall use the Wholesale Stock Fund Rate of
24.5 percent and the Direct Delivery rate of 13.4 percent for supplies
and materials acquired from the DoD Component supply systems.
(H) * * * Military positions providing overhead support shall be
costed using current military composite standard rates and applicable
add-on factors for operating appropriation support. These rates are
issued on a fiscal year basis by each Military Service.
/9/ See footnote 1 to 169a.1(a).
10See footnote 1 to 169a.1(a).
11See footnote 1 to 169a.1(a).
12See footnote 1 to 169a.1(a).
32 CFR 169a.16 Independent review.
(a) The estimates of in-house and contracting costs that can be
computed before the cost comparison shall be reviewed by a qualified
activity, independent of the Task Group preparing the cost comparison.
This review shall be completed far enough in advance of the bid or
initial proposal opening date to allow the DoD Component to correct any
discrepancies found before sealing the in-house cost estimate.
(b) The independent review shall substantiate the currency,
reasonableness, accuracy, and completeness of the inhouse estimate. The
review shall ensure that the in-house cost estimate is based on the same
required services, performance standards, and workload contained in the
solicitation. The reviewer shall scrutinize and attest to the adequacy
and authenticity of the supporting documentation. Supporting
documentation shall be sufficient to require no additional
interpretation.
(c) The purpose of the independent review is to ensure costs have
been estimated and supported in accordance with provisions of this
Instruction. If no (or only minor) discrepancies are noted during this
review, the reviewer indicates the minor discrepancies, signs, dates,
and returns the CCF to the preparer. If significant discrepancies are
noted during the review, the discrepancies shall be reported to the
preparer for recommended correction and resubmission.
(d) The independent review is not required for simplified cost
comparisons.
(50 FR 40805, Oct. 7, 1985, as amended at 57 FR 29208, July 1, 1992)
Effective Date Note: At 57 FR 29208, July 1, 1992, 169a.16 was
amended in paragraph (a) by revising ''contract'' to read
''contracting'' and paragraph (b) by revising ''cost comparison'' to
read ''in-house estimate'', effective July 8, 1992.
32 CFR 169a.17 Solicitation considerations.
(a) Every effort must be made to avoid postponement or cancellation
of CA solicitations even if there are significant changes, omissions, or
defects in the Government's in-house cost estimate. Such corrections
shall be made before the expiration of bids or proposals and may require
the extensions of bids or proposals. When there is no alternative,
contracting officers must clearly document the reason(s).
(b) Bidders or offerers shall be informed that an in-house cost
estimate is being developed and that a contract may or may not result.
(c) Bids or proposals shall be on at least a 3-year multi-year basis
(when appropriate) or shall include prepriced renewal options to cover 2
fiscal years after the initial period.
(d) All contracts awarded as a result of a conversion (whether or not
a cost comparison was performed) shall comply with all requirements of
the FAR and DFARS.
(e) Solicitations shall be restricted for preferential procurement
when the requirements applicable to such programs (such as, small
business set-asides or other required sources of supplies and services)
are met, in accordance with the FAR.
(f) Solicitations will not be restricted for preferential procurement
unless the contracting officer determines that there is a reasonable
expectation that the commercial prices will be fair and reasonable, in
accordance with the FAR.
(g) Contract defaults may result in temporary performance by
Government personnel or other suitable means; such as, an interim
contract source. Personnel detailed to such a temporary assignment
should be clearly informed that they will return to their permanent
assignment when a new contract is awarded. If the default occurs within
the first year of contract performance, the following procedures apply:
(1) If the Government was the next lowest bidder/offerer, and
in-house performance is still feasible, the function may be returned to
in-house performance. If in-house performance is no longer feasible,
the contracting officer shall obtain the requirement by contract in
accordance with the requirements of the FAR, 48 CFR part 49. A return
to in-house performance under the above criteria shall be approved by
the DoD Component's central point of contact office. This authority may
not be redelegated.
(2) If the contract wage rates are no longer valid or if the
contracting officer, after a review of the availability of the next
lowest responsible and responsive bidders/offerers, determines that
resolicitation is appropriate, the Government may submit a bid for
comparison with other bids/offers from the private sector. Submission
of a Government bid requires a determination by the DoD Component that
performance by DoD employees is still feasible and that a likelihood
exists that such performance may be more economical than performance by
contract. In such cost comparisons, the conversion differentials will
not be applied to the costs of either in-house or contract performance.
(h) If contract default occurs during the second or subsequent year
of contract performance, the procedures of 169a.8(b)(2)(i) of this part
apply.
(1) Grouping of Commercial Activities.
(i) The installation commander shall determine carefully which CAs
should be grouped in a single solicitation. The installation commander
should keep in mind that the grouping of commercial activities can
influence the amount of competition (number of commercial firms that
will bid or submit proposals) and the eventual cost to the Government.
(2) The installation commander shall consider the adverse impacts
that the grouping of commercial activities into a single solicitation
may have on small and small disadvantaged business concerns. Commercial
activities being performed wholly by small or small disadvantaged
businesses will not be incorporated into a cost comparison unless
consolidation is necessary to meet mission requirements. Actions must
be taken to ensure that such contractors are not displaced merely to
accomplish consolidation. Similarly, care must be taken so that
nonincumbent small and small disadvantaged business contractors are not
handicapped or prejudiced unduly from competing effectively at the prime
contractor level.
(3) In developing solicitations for commercial activities, the
procurement plan should reflect an analysis of the advantages and
disadvantages to the Government that might result from making more than
one award. The decision to group commercial activities should reflect
an analysis of all relevant factors including the following:
(A) The effect on competition.
(B) The duplicative management functions and costs to be eliminated
through grouping.
(C) The economies of administering multifunction vs. single function
contracts, including cost risks associated with the pricing structure of
each.
(D) The feasibility of separating unrelated functional tasks or
groupings.
(E) The effect grouping will have on the performance of the
functions.
(4) When the solicitation package includes totally independent
functions which are clearly divisible, severable, limited in number, and
not price interrelated, they shall be solicited on the basis of an ''any
or all'' bid or offer. Commerical bidders or offerors shall be
permitted to submit bids or offers on one or any combination of the
functions being solicited. These bids or offers shall be evaluated to
determine the lowest aggregate contract cost to the Government. This
lowest aggregate contract cost then will be compared to the in-house
cost estimate based on the MEO for performance of the functions in the
single solicitation. The procedures in Part IV of the Supplement to OMB
Circular No. A-76 (Cost Comparison Handbook) apply.
(5) There are instances when this approach to contracting for CAs may
not apply; such as, situations when physical limitations of site (where
the activities are to be performed) preclude allowing more than one
contractor to perform, when the function cannot be divided for purposes
of performance accountability, or for other national security
considerations. However, if an ''all or none'' solicitation is issued,
the decision to do so must include a cost analysis to reflect that the
''all or none'' solicitation is less costly to the Government or an
analysis indicating it is otherwise in the best interest of the
Government, all factors considered.
(6) It is recognized that in some cases, decisions will result in the
elimination of prime contracting opportunities for small business. In
such cases special measures shall be taken. At a minimum, small and
small disadvantaged business concerns shall be given preferential
consideration by all competing prime contractors in the award of
subcontracts. For negotiated procurements the degree to which this is
accomplished will be a weighted factor in the evaluation and source
selection process leading to contract award.
(7) The contract files shall be documented fully to demonstrate
compliance with these procedures.
(i) If no bids or proposals, or no responsive or responsible bids or
proposals are received in response to a solicitation, the in-house cost
estimate shall remain unopened. The contracting officer shall examine
the solicitation to ascertain why no responses were received. Depending
on the results of this review, the contracting officer shall consider
restructuring the requirement, if feasible and reissue it under
restricted or unrestricted solicitation procedures, as appropriate.
(j) Continuation of an in-house CA for lack of a satisfactory
commercial source will not be based upon lack of response to a
restricted solicitation.
(k) The guidance of subparagraph E.3.f. applies to sumplified cost
comparisons and direct conversions of military personnel CAs.
(l) To ensure that bonds and/or insurance requirements are being used
in the best interest of the Government, as a general rule, requirements
(for other than construction related services) above the levels
established in the FAR and DFARS should not be included in acquisitions.
(50 FR 40805, Oct. 7, 1985; 56 FR 27901, June 18, 1991; 57 FR
29210, July 1, 1992)
Effective Date Note: At 57 FR 29210, July 1, 1992, 169a.17 was
amended by revising paragraphs (a), (d) and (g)(1) and adding a new
paragraph (l), effective July 8, 1992. For the convenience of the
reader, the superseded text is set forth below.
169a.17 Solicitation considerations.
(a) The solicitation will not be canceled even if there are
significant changes, omissions, or defects in the Government's in-house
cost estimate. Such corrections shall be made before the expiration of
bids or proposals and may require the extensions of bids or proposals.
(d) All contracts awarded as a result of a conversion (whether or not
a cost comparison was performed) shall:
(1) Comply with all requirements of the FAR (48 CFR Chapter 1) and
DFAR (48 CFR Chapter 2).
(2) When determined to be necessary in accordance with FAR
22.101-1(e), include the clause at FAR 52.222.1, Notice to the
Government of Labor Disputes, requiring the contractor to provide notice
of actual and impending labor disputes.
(3) Include in contracts for critical or sensitive services a
requirement for the contractor to develop a contingency plan explaining
how the contractor will expand operations in emergency situations and
ensure there will be no significant interruption of routine contract
services due to labor disputes.
(4) Include all applicable clauses and provisions related to the
right of first refusal for employment by displaced DoD employees, equal
employment opportunities, veterans preference, and minimum wages and
fringe benefits.
(g) * * *
(1) If, after consultation with the Department of Labor, it is
determined that the contract wage rates are still valid, the contracting
officer will review the availability among the next lowest responsible
and responsive bidders/offerers for a successor contract without
resolicitation in accordance with established contracting practice. If
the next low bidder/offerer is willing to accept the balance of the
contract work at the price bid/offered, adjusted on an appropriate
prorata basis for the remainder of the contract term, the contracting
officer may award to that bidder/offerer. If the Government is the next
lowest bidder/offerer, the function may be returned to in-house
performance, as bid, if still feasible. If performance by DoD employees
is no longer feasible, the contracting officer may elect either to award
to the next lowest responsive and responsible commercial bidder/offerer
if that firm is willing to perform at its bid/offered price, adjusted
appropriately for the remainder of the term, or to resolicit as
specified in the next subparagraph, A return to in-house performance
under the above criteria shall be approved by the DoD Component's
central point of contact office. This authority may not be redelegated.
ASD(A&L) shall be notified within 30 days of any such decision.
32 CFR 169a.18 Administrative appeal procedures.
(a) Appeals of Cost Comparison Decisions. (1) Each DoD Component
shall establish an administrative appeals procedure to resolve questions
from directly affected parties relating to determinations resulting from
cost comparisons performed in compliance with this part. The appeal
procedure will not apply to questions concerning the following:
(i) Award to one contractor in preference to another;
(ii) DoD management decisions.
(2) The appeals procedure is to provide an administrative safeguard
to ensure that DoD Component decisions are fair, equitable, and in
accordance with procedures in this part. The procedure does not
authorize an appeal outside the DoD Component or a judicial review.
(3) The appeals procedure shall be independent and objective and
provide for a decision on the appeal within 30 calendar days of receipt
of the appeal. The decision shall be made by an impartial official at a
level organizationally higher than the official who approved the cost
comparison decision. The appeal decision shall be final, unless the DoD
Component procedures provide for further discretionary review within the
DoD Component.
(4) All detailed documentation supporting the initial cost comparison
decision shall be made available to directly affected parties upon
request when the initial decision is announced. The detailed
documentation shall include, at a minimum, the following: the in-house
cost estimate with detailed supporting documentation (see 169a.5(c)(ii)
of this part), the completed CCF, name of the tentative winning
contractor (if the decision is to contract), or the price of the bidder
whose bid or proposal would have been most advantageous to the
Government (if the decision is to perform in-house). If the
documentation is not available when the initial decision is announced,
the time alloted for submission of appeals shall be extended the number
of days equal to the delay.
(5) To be considered eligible for review under the DoD Component
appeals procedures, appeals shall:
(i) Be received by the DoD Component in writing within 15 working
days after the date the supporting documentation is made available to
directly affected parties.
(ii) Address specific line items on the CCF and the rationale for
questioning those items.
(iii) Demonstrate that the result of the appeal may change the
decision.
(b) Appeals of Simplified Cost Comparisons and Direct Conversions.
(1) Directly affected parties may appeal decision to convert to
contract based on a simplified cost comparison involving 11-45 DoD
civilian employees or a direct conversion involving 10 or fewer DoD
civilian employees. The appeal must address reasons why fair and
reasonable prices will not be obtainable.
(2) Each DoD Component shall establish an administrative appeal
procedure that is independent and objective; Installation Commanders
must make available, upon request, the documentation supporting the
decision to directly convert activities; appeals of direct conversions
must be filed within 30 calendar days after the decision is announced in
the Commerce Business Daily and/or Federal Register, and the supporting
documentation is made available; an impartial official one level
organizationally higher than the official who approved the direct
conversion decision shall hear the appeal; officials shall provide an
appeal decision within 30 calendar days of receipt of the appeal.
(c) Since the appeal procedure is intended to protect the rights of
all directly affected parties, the DoD Component's procedures, as well
as the decision upon appeal, will not be subject to negotiation,
arbitration, or agreement.
(d) DoD Components shall include administrative appeal procedures as
part of their implementing documents.
(50 FR 40805, Oct. 7, 1985, as amended at 57 FR 29210, July 1, 1992)
Effective Date Note: At 57 FR 29210, July 1, 1992, 169a.18 was
amended by revising paragraph (b), effective July 8, 1992. For the
convenience of the reader, the superseded text is set forth below.
169a.18 Administrative appeal procedures.
(b) Appeals of Direct Conversions. (1) Directly affected parties may
appeal decisions to convert to contract based on a simplified cost
comparison. The appeal must address reasons why fair and reasonable
prices will not be obtainable.
(2) Directly affected parties shall file appeals within 30 calendar
days of the date of CBD and FR notification of a decision to convert a
CA directly to contract. 169a.5(c)(1)(ii) of this part applies.
(3) Appeals shall be filed with the ASD(A&L). The ASD(A&L) shall
forward the appeal and the decision package relating to the original
approval of a DoD Component's direct conversion request to the Office of
the Assistant Inspector General for Auditing, Office of the Inspector
General, Department of Defense, within 10 working days. The result of
the Inspector General's administrative review of the decision package
shall be provided to the ASD(A&L) within 30 calendar days of receipt of
a request for review from the ASD(A&L). Appeal decisions by the
ASD(A&L) shall be final.
32 CFR 169a.18 Subpart C -- Reporting Requirements
32 CFR 169a.21 Reporting requirements.
(a) Inventory and Review Schedule (Report Control Symbol DD-P&L
1540). See 169a.8(a) of this part.
(b) Commercial Activities Management Information System (CAMIS)
(Report Control Symbol DD-P&L 1542). (1) The purpose of CAMIS is to
maintain an accurate DoD data base of commercial activities that undergo
an OMB Circular A-76 cost comparison and CAs that are converted directly
to contract without a cost comparison. The CAMIS is used to provide
information to the Congress, Office of Management Budget (OMB), General
Accounting Office (GAO), OSD, and others. The CAMIS is divided into two
parts. Part I contains data on CAs that undergo cost comparison. Part
II contains data on commercial activities converted to contract without
a full cost comparison.
(2) The CAMIS report shall be submitted in accordance with the
procedures in Appendix C.
(c) Annual Reports to Congress. To ensure consistent application of
the requirements stated in 10 U.S.C. 2641, the following guidance is
provided:
(1) The geographic scope of section 10 U.S.C. 2461 applies to the
United States, its territories and possessions, the District of
Columbia, and the Commonwealth of Puerto Rico.
(2) Section 10 U.S.C. 2461 applies to proposed conversions of DoD CAs
that on October 1, 1980, were being performed by more than forty-five
DoD civilian employees.
(3) DoD Components must not proceed with a CA study until
notification to Congress, when in session, as required by 10 U.S.C.
2461. DoD Components shall notify the ASD (P&L) of any such intent at
least 5 working days before congressional notification.
(4) DoD Components shall annotate announcements to Congress when a
cost comparison is planned at an activity listed in the report to
Congress on Core Logistics (see 169a.8(b)(1)(i)(2) of this part).
(5) The DoD Components shall notify Congress, when in session at
least 5 working days before sending the detailed summary report required
by 10 U.S.C. 2461 to Congress. The detailed summary of the cost shall
include: the amount of the offer accepted for the performance of the
activity by the private contractor; the costs and expenditures that the
Government will incur because of the contract; the estimated cost of
performance of the activity by the most efficient Government
organization; a statement indicating the life of the contract; and
certifications that the entire cost comparison is available, and that
the Government calculation for the cost of performance of such function
by DoD employees is based on an estimate of the most efficient and
cost-effective organization for performance of such function by DoD
employees.
(6) The potential economic effect on the employees affected, the
local community, and the Federal Government of contracting for
performance of the function shall be included in the report to accompany
the above certifications, if more than 75 total employees (including
military and civilian, both permanent and temporary) are potentially
affected. It is suggested that the Army Corps of Engineers' model (or
equivalent) be used to generate this information. The potential impact
on affected employees shall be included in the report, regardless of the
number of employees involved. Also include in the report a statement
that the decision was made to convert to contractor performance, the
projected date of contract award, the projected contract start date, and
the effect of contracting the function on the military mission of that
function.
(7) By December 15th of each year, each DoD Component shall submit to
the ASD(P&L) the data required by 10 U.S.C. 2461(c). In describing the
extent to which CA functions were performed by DoD contractors during
the preceding fiscal year, include the estimated number of work years
for the in-house operation as well as for contract operation (including
percentages) by major OSD functional areas in Appendix A to this part;
such as, Social Services, Health Services, Installation Services, etc.
For the estimate of the percentage of CA functions that will be
performed in-house and those that will be performed by contract during
the fiscal year during which the report is submitted, include the
estimated work years for in-house CAs as well as for contracted CAs and
the rationale for significant changes when compared to the previous
year's data. Also, include the number of studies you expect to complete
in the next fiscal year showing total civilian and military FTEs.
(50 FR 40805, Oct. 7, 1985, as amended at 57 FR 29210, July 1, 1992)
Effective Date Note: At 57 FR 29210, July 1, 1992, 169a.21
paragraph (a) was amended by revising ''DD-MIL(A)'' to read ''DD-P&L'.
Paragraph (b) heading was amended by revising ''DD-MIL(Q)'' to read
''DD-P&L'' and paragraph (b)(1), last sentence, after the words
''without a'' by adding the word ''full''. Paragraph (c), introductory
text, was amended by removing ''Pub. L. 96-342 as amended by Pub. L.
97-252, hereafter referred to as section 502 (Appendix E)'' and after
the word ''in'' by adding ''10 U.S.C. 2641''. Paragraphs (c) (1) and
(2) were amended by revising ''502'' to read ''10 U.S.C. 2461'';
paragraph (c)(2) was amended by revising ''ten'' to read ''forty-five'';
paragraph (c)(3) is revised; paragraph (c)(5) was amended by revising
''ASD(A&L)'' to read ''Congress, when in session'' and by revising
''section 502(a)(2)(B)'' to read ''10 U.S.C. 2461''; paragraph (c)(6)
was amended by revising ''50'' to read ''75''; Paragraph (c)(7) was
amended by revising ''ASD(A&L)'' to read ''ASD(P&L)'', by revising
''section 502(c)'' to read ''10 U.S.C. 2461(c)'', by revising
''Enclosure 1'' to read ''Appendix A to this part'' and by adding a new
sentence at the end, effective July 8, 1992. For the convenience of the
reader, the supersed text appears below.
169a.21 Reporting requirements.
(c) * * * * *
(3) DoD Components shall notify Congress of the intention to do a
cost comparison for each CA, as required by section 502(a)(2)(A). DoD
Components shall notify the ASD(A&L) of any such intent at least 5
working days before to the congressional notification.
32 CFR 169a.22 Responsibilities.
The responsibilities for implementing the policies and procedures of
the DoD CA Program are prescribed in DoD Directive 4100.15 (32 CFR part
169) and appropriate paragraphs of this part.
(57 FR 29210, July 1, 1992)
Effective Date Note: At 57 FR 29210, July 1, 1992, 169a.22 was
revised, effective July 8, 1992. For the convenience of the reader, the
superseded text appears below.
169a.22 Responsibilities.
(a) The responsibilities for implementing the policies and procedures
for the DoD CA Program are prescribed in DoD Directive 4100.15 and
appropriate subparagraphs of this part.
(b) The Assistant Inspector General for Auditing, Office of the
Inspector General, Department of Defense shall:
(1) Independently review the decision package relating to the
OASD(A&L)IA approval of a DoD Component's request for conversion of an
in-house DoD CA directly to contract without a cost comparison when an
appeal of that decision is received by the ASD(A&L).
(2) Provide results of the administrative review to the ASD(A&L)
within 30 calendar days of receipt of a request for review.
32 CFR 169a.22 Pt. 169a, App. A
32 CFR 169a.22 Appendix A to Part 169a -- Codes and Definitions of
Functional Areas
This list of functional codes and their definitions does not restrict
the applicability or scope of the commerical activity Program within
DoD. Section B. of DoD Directive 4100.15 defines the applicability and
scope of the program. The commerical activity program still applies to
CAs not defined in this listing. These codes and definitions are a
guide to assist reporting. As new functions are identified, codes will
be added or existing definitions will be expanded.
G001 Care of Remains of Deceased Personnel and/or Funeral Services.
Includes CAs that provide mortuary services, including transportation
from aerial port of embarkation (APOE) to mortuary of human remains
received from overseas mortuaries, inpection, restoration, provision of
uniform and insignia, dressing, flag, placement in casket, and
preparation for onward shipment.
G008 Commissary Store Operation. Includes CAs that provide all
ordering, receipt, storage, stockage, and retailing for commissaries.
Excludes procurement of goods for issue or resale.
G008A: Shelf Stocking.
G008B: Check Out.
G008C: Meat Processing.
G008D: Produce Processing.
G008E: Storage and Issue.
G008F: Other.
G008G: Troop Subsistance Issue Point.
G009 Clothing Sales Store Operation. Includes commercial activities
that provide ordering, receipt, storage, stockage, and retailing of
clothing. Stores operated by the Army and Air Force Exchange Services,
Navy Exchange Services, and Marine Corps Exchange Services are excluded.
G010 Recreational Library Services. Includes operation of libraries
maintained primarily for off-duty use by military personnel and their
dependents.
G011 Other Morale, Welfare, and Recreation Services. Operation of
commercial activities maintained primarily for the off-duty use of
military personnel and their dependents, including both appropriated and
partially nonappropriated fund activities. The operation of clubs and
messes, and morale support activities are included in code G011.
Examples of activities performing G011 functions are arts and crafts,
entertainment, sports and athletics, swimming, bowling, marina and
boating, stables, youth activities, centers, and golf. DoD Directive
1015.11 contains amplification of the categories reflected below.
(NOTE: commercial activities procedures are not mandatory for functions
staffed solely by civilian personnel paid by nonappropriated funds.)
G011A: All Category II Nonappropriated Fund Instrumentalities
(NAFIs), except Package Beverage Branch.
G011B: Package Beverage Branch.
G011C: All Category IIIa NAFIs.
G011D: All Category IIIb1, except Libraries.
G011E: Category IIIb2 Arts and Crafts.
G011F: Category IIIb2 Music & Theatre.
G011G: Category IIIb2 Outdoor Recreation.
G011H: Category IIIb2 Youth Activities.
G011I: Category IIIb2 Child Development Service.
G011J: Category IIIb2 Sports -- Competitive.
G011K: All Category IIIb3 except Armed Forces Recreation Center
(AFRC) Golf Bowling, and membership associations converted from Category
VI.
G011L: Category IIIb3 AFRC.
G011M: Category IIIb3 Golf.
G011N: Category IIIb3 Bowling.
G011O: Category IIIb3 membership associations converted from
Category VI.
G011P: Category III Information Tour and Travel (ITT).
G011Q: All Category IV.
G011R: All Category V.
G011S: All Category VI, except those converted to Category IIIb3.
G011T: All Category VII.
G011U: All Category VIII, except billeting and hotels.
G011V: Category VIII Billeting.
G011W: Category VIII Hotels.
G012 Community Services. DoD Directive 1015.1 contains further
amplification of the categories.
G012A: Information and Referral.
G012B: Relocation Assistance.
G012C: Exceptionl Family Member.
G012D: Family Advocacy (Domestic Violence).
G012E: Foster Care.
G012F: Family Member Employment.
G012G: Installation Volunteer Coordination.
G012H: Outreach.
G012I: Volunteer Management.
G012J: Office Management.
G012K: Consumer Affairs/Financial Assistance.
G012L: General and Emergency Family Assistance.
G900 Chaplain Activities and Support Services. Includes commercial
activities that provide non-military unique support services that
supplement the command religious program such as non-pastoral
counseling, organists, choir directors, and directions of religious
education. The command religious program, which includes chaplains and
enlisted support personnel, is a Governmental function and is excluded
from this category.
G901 Berthing BOQ/BEQ. Includes commercial activities that provide
temporary or permanent accommodations for officer or enlisted personnel.
Management of the facility, room service, and daily cleaning are
included.
G904 Family Services. Includes commercial activities that perform
various social services for families, such as family counseling,
financial counseling and planning, the operation of an abuse center,
child care center, or family aid center.
G999 Other Social Services. This code will only be used for unusual
circumstances and will not be used to report organizations or work that
can be accommodated under a specifically defined code.
H101 Hospital Care. Includes commercial activities that provide
outpatient and inpatient care and consultative evaluation in the medical
specialties, including pediatrics and psychiatry; the coordination of
health care delivery relative to the examination, diagnosis, treatment,
and disposition of medical inpatients.
H102 Surgical Care. Includes commercial activities that provide
outpatient and inpatient care and consultative evaluation in the
surgical specialties, including obstetrics, gynecology, ophthalmology
and otorhinolaryngology; the coordination of health care delivery
relative to the examination, treatment, diagnosis, and disposition of
surgical patients.
H105 Nutritional Care. Includes commercial activities that provide
hospital food services for inpatients and outpatients, dietetic
treatment, counseling of patients, and nutritional education.
H106 Pathology Services. Includes commercial activities involved in
the operation of laboratories providing comprehensive clinical and
anatomical pathology services; DoD military blood program and blood
bank activities; and area reference laboratories.
H107 Radiology Services. Includes commercial activities that provide
diagnostic and therapeutic radiologic service to inpatients and
outpatients, including the processing, examining, interpreting, and
storage and retrieval of radiographs, fluorographs, and radiotherapy.
H108 Pharmacy Services. Includes commercial activities that produce,
preserve, store, compound, manufacture, package, control, assay,
dispense, and distribute medications (including intravenous solutions)
for inpatients and outpatients.
H109 Physical Therapy. Includes commercial activities that provide
care and treatment to patients whose ability to function is impaired or
threatened by disease or injury; primarily serve patients whose actual
impairment is related to neuromusculoskeletal, pulmonary, and
cardiovascular systems; evaluate the function and impairment of these
systems, and select and apply therapeutic procedures to maintain,
improve, or restore these functions.
H110 Materiel Services. Includes commercial activities that provide
or arrange for the supplies, equipment, and certain services necessary
to support the mission of the medical facility; responsibilities
include procurement, inventory control, receipt, storage, quality
assurance, issue, turn-in, disposition, property accounting, and
reporting actions for designated medical and nonmedical supplies and
equipment.
H111 Orthopedic Services. Includes commercial activities that
construct orthopedic appliances such as braces, casts, splints,
supports, and shoes from impressions, forms, molds, and other
specifications.
H112 Ambulance Service. Includes commercial activities that provide
transportation for personnel who are injured, sick, or otherwise require
medical treatment, including standby duty in support of military
activities and ambulance bus services.
H113 Dental Care. Includes commercial activities that provide oral
examinations, patient education, diagnosis, treatment, and care
including all phases of restorative dentistry, oral surgery,
prosthodontics, oral pathology, periodontics, orthodontics, endodontics,
oral hygiene, preventive dentistry, and radiodontics.
H114 Dental Laboratories. Includes commercial activities that
operate dental prosthetic laboratories required to support the provision
of comprehensive dental care; services may include preparing casts and
models, repairing dentures, fabricating transitional, temporary, or
orthodontic appliances, and finishing dentures.
H115 Clinics and Dispensaries. Includes commercial activities that
operate freestanding clinics and dispensaries that provide health care
services. Operations are relatively independent of a medical treatment
facility and are separable for in-house or contract performance. Health
clinics, occupational health clinics, and occupational health nursing
offices.
H116 Veterinary Services. Includes commercial activities that
provide a complete wholesomeness and quality assurance food inspection
program, including sanitation, inspection of food received, surveillance
inspections, and laboratory examination and analysis; a complete
zoonosis control program; complete medical care for Government-owned
animals; veterinary medical support for biomedical research and
development; support to other Federal agencies when requested and
authorized; assistance in a comprehensive preventive medicine program;
and determination of fitness of all foods that may have been
contaminated by chemical, bacteriological, or radioactive materials.
H117 Medical Records Transcription. Includes commercial activities
that transcribe, file, and maintain medical records.
H118 Nursing Services. Includes commercial activities that provide
care and treatment for inpatients and outpatients not required to be
performed by a doctor.
H119 Preventive Medicine. Includes commercial activities that
operate wellness or holistic clinics (preventive medicine), information
centers, and research laboratories.
H120 Occupational Health. Includes commercial activities that
develop, monitor, and inspect installation safety conditions.
H121 Drug Rehabilitation. Includes commercial activities that
operate alcohol treatment facilities, urine testing for drug content,
and drug/alcohol counseling centers.
H999 Other Health Services. This code will only be used for unusual
circumstances and will not be used to report organizations or work that
can be accommodated under a specifically defined code.
Definition. Maintenance authorized and performed by designated
maintenance commercial activities in support of using activities.
Normally, it is limited to replacement and overhaul of unserviceable
parts, subassemblies, or assemblies. It includes (1)
intermediate/direct/general maintenance performed by fixed activities
that are not designed for deployment to combat areas and that provide
direct support of organizations performing or designed to perform combat
missions from bases in the United States, and (2) any testing conducted
to check the repair procedure. Commercial activities engaged in
intermediate/direct/general maintenance and/or repair of equipment are
to be grouped according to the equipment predominantly handled, as
follows:
J501 Aircraft. Aircraft and associated equipment. Includes
armament, electronic and communications equipment, engines, and any
other equipment that is an integral part of an aircraft.
J502 Aircraft Engines. Aircraft engines that are not repaired while
an integral part of the aircraft.
J503 Missiles. Missile systems and associated equipment. Includes
mechanical, electronics, and communication equipment that is an integral
part of missile systems.
J504 Vessels. All vessels, including armament, electronics,
communications and any other equipment that is an integral part of the
vessel.
J505 Combat Vehicles. Tanks, armored personnel carriers,
self-propelled artillery, and other combat vehicles. Includes armament,
fire control, electronic, and communications equipment that is an
integral part of a combat vehicle.
J506 Noncombat Vehicles. Automotive equipment, such as tactical,
support, and administrative vehicles. Includes electronic and
communications equipment that is an integral part of the noncombat
vehicle.
J507 Electronic and Communications Equipment. Stationary, mobile,
portable, and other electronic and communications equipment. Excludes
electronic and communications equipment that is an integral part of
another weapon/support system. Maintenance of Automatic Data Processing
Equipment (ADPE) not an integral part of a communications system shall
be reported under functional code W825; maintenance of tactical ADPE
shall be reported under function code J999.
J510 Railway Equipment. Locomotives of any type or gauge, including
steam, compressed air, straight electric, storage battery, diesel
electric, gasoline, electric, diesel mechanical locomotives, railway
cars, and cabooses. Includes electrical equipment for locomotives and
cars, motors, generators, wiring supplies for railway tracks for both
propulsion and signal circuits, and on-board communications and control
equipment.
J511 Special Equipment. Construction equipment, weight lifting,
power, and materiel handling equipment (MHE).
J512 Armament. Small arms, artillery and guns, nuclear munitions,
chemical, biological, and radiological (CBR) items, conventional
ammunition, and all other ordnance items. Excludes armament that is an
integral part of another weapon or support system.
J513 Dining Facility Equipment. Dining facility kitchen appliances
and equipment.
J514 Medical and Dental Equipment. Medical and dental equipment.
J515 Containers, Textiles, Tents, and Tarpaulins. Containers, tents,
tarpaulins, other textiles, and organizational clothing.
J516 Metal Containers. Container Express (CONEX) containers,
gasoline containers, and other metal containers.
J517 Training Devices and Audiovisual Equipment. Training devices
and audiovisual equipment. Excludes maintenance of locally fabricated
devices and functions reported under codes T807 and T900.
J519 Industrial Plant Equipment. That part of plant equipment with
an acquisition cost of $3,000 or more, used to cut, abrade, grind,
shape, form, join, test, measure, heat, or otherwise alter the physical,
electrical, or chemical properties of materiels, components, or end
items entailed in manufacturing, maintenance, supply processing,
assembly, or research and development operations.
J520 Test, Measurement, and Diagnostic Equipment. Test, measurement,
and diagnostic equipment (TMDE) that has resident in it a programmable
computer. Included is equipment referred to as automated test equipment
(ATE).
J521 Other Test, Measurement, and Diagnostic Equipment. Test,
measurement, and diagnostic equipment not classified as ATE or that does
not contain a resident programmable computer. Includes such items as
electronic meters, armament circuit testers, and other specialized
testers.
J522 Aeronautical Support Equipment. Aeronautical support equipment
excluding TMDE (and ATE). Includes such items as ground electrical
power carts, aircraft tow tractors, ground air conditioners, engine
stands, and trailers. Excludes aeronautical equipment reported under
J501.
J999 Other Intermediate, Direct, or General Repair and Maintenance of
Equipment. This code will only be used for unusual circumstances and
will not be used to report organizations or work that can be
accommodated under a specifically defined code.
Definition. The maintenance performed on materiel that requires major
overhaul or a complete rebuild of parts, assemblies, subassemblies, and
end items, including the manufacture of parts, modifications, testing,
and reclamation, as required. Depot maintenance serves to support lower
categories of maintenance. Depot maintenance provides stocks of
serviceable equipment by using more extensive facilities for repair than
are available in lower level maintenance activities. (See DoD
Instruction 4151.152 for further amplification of the category
definitions reflected below.) Depot or indirect maintenance functions
are identified by the type of equipment maintained or repaired.
K531 Aircraft. Aircraft and associated equipment. Includes
armament, electronics and communications equipment, engines, and any
other equipment that is an integral part of an aircraft. Aeronautical
support equipment not reported separately under code K548.
K532 Aircraft Engines. Aircraft engines that are not repaired while
an integral part of the aircraft.
K533 Missiles. Missile systems and associated equipment. Includes
mechanical, electronic, and communications equipment that is an integral
part of missile systems.
K534 Vessels. All vessels, including armament, electronics, and
communications equipment, and any other equipment that is an integral
part of a vessel.
K535 Combat Vehicles. Tanks, armored personnel carriers,
self-propelled artillery, and other combat vehicles. Includes armament,
fire control, electronics, and communications equipment that is an
integral part of a combat vehicle.
K536 Noncombat Vehicles. Automotive equipment, such as tactical
support and administrative vehicles. Includes electronic and
communications equipment that is an integral part of the vehicle.
K537 Electronic and Communications Equipment. Stationary, mobile,
portable, and other electronics and communications equipment. Excludes
electronic and communications equipment that is an integral part of
another weapon/support system. Maintenance of ADPE, not an integral
part of a communications system, is reported under functional code W825.
K538 Railway Equipment. Locomotives of any type or gauge, including
steam, compressed air, straight electric, storage battery, diesel
electric, gasoline, electric, diesel mechanical locomotives, railway
cars, and cabooses. Includes electrical equipments for locomotives and
cars, motors, generators, wiring supplies for railway tracks for both
propulsion and signal circuits, and on-board communication and control
equipment.
K539 Special Equipment. Construction equipment, weight lifting,
power, and materiel-handling equipment.
K540 Armament. Small arms; artillery and guns; nuclear munitions,
CBR items; conventional ammunition; and all other ordnance items.
Excludes armament that is an integral part of another weapon or support
system.
K541 Industrial Plant Equipment. That part of plant equipment with
an acquisition cost of $3,000 or more, used to cut, abrade, grind,
shape, form, join, test, measure, heat, or otherwise alter the physical,
electrical, or chemical properties of materials, components, or end
items entailed in manufacturing, maintenance, supply, processing,
assembly, or research and development operations.
K542 Dining Facility Equipment. Dining facility kitchen applicances
and equipment. This includes field feeding equipment.
K543 Medical and Dental Equipment. Medical and dental equipment.
K544 Containers, Textiles, Tents and Tarpaulins. Containers, tents,
tarpaulins, and other textiles.
K545 Metal Containers. CONEX containers, gasoline containers, and
other metal containers.
K546 Test Measurement and Diagnostic Equipment. Test measurement and
diagnostic equipment (TMDE) that has resident in it a programmable
computer. Included is equipment referred to as automated test equipment
(ATE).
K547 Other Test Measurement and Diagnostic Equipment. Test
measurement and diagnostic equipment not classfied as ATE or that does
not contain a resident programmable computer. Includes such items as
electronic meters, armament circuit testers, and other specialized
testers.
K548 Aeronautical Support Equipment. Aeronautical support equipment
excluding TMDE (and ATE). Includes such items as ground electrical
power carts, aircraft tow tractors, ground air conditioners, engine
stands, and trailers. Excludes aeronautical support equipment reported
under code K531.
K999 Other Depot Repair, Maintenance, Modification, Conversion, or
Overhaul of Equipment. This code will only be used for unusual
circumstances and will not be used to report organizations or work that
can be accommodated under a specifically defined code.
P100 Base Maintenance/Multifunction Contracts. Includes all
umbrella-type contracts where the contractor performs more than one
function at one or more installations. (Identify specific functions as
nonadd entries.)
R660 RDT&E Support. Includes all effort not reported elsewhere
directed toward support of installation or operations required for
research, development, test, and evaluation use. Included are
maintenance support of laboratories, operation and maintenance of test
ranges, and maintenance of test aircraft and ships.
S700 Natural Resource Services. Includes those commercial activities
that provide products or services that implement natural resource
management plans in the areas of fish, game, wildlife, forestry,
watershed areas or ground water table, erosion control, and mineral
deposit management. Natural resources planning and management is a
governmental function and will not be reported.
S701 Advertising and Public Relations Services. Includes commercial
activities responsible for advertising and public relations in support
of public affairs offices, installation newspapers and publications, and
information offices.
S702 Financial and Payroll Services. Includes commercial activities
that prepare payroll, print checks, escrow, or change payroll accounts
for personnnel. Includes other services normally associated with
banking operations.
S703 Debt Collection. Includes commercial activities that monitor,
record, and collect debts incurred by overdrafts, bad checks, or
delinquent accounts.
S706 Installation Bus Services. Includes commercial activities that
operate local, intrapost, and interpost scheduled bus services.
Includes scheduled movement of personnel over regular routes by
administrative motor vehicles to include taxi and dependent school bus
services.
S706A Scheduled Bus Services.
S706B Unscheduled Bus Services
S706C Dependent School Bus Services.
S706D Other Bus Services.
S708 Laundry and Dry Cleaning Services. Including commercial
activities that operate and maintain laundry and dry cleaning
facilities.
S709 Custodial Services. Includes commercial activities that provide
janitorial and housekeeping services to maintain safe and sanitary
conditions and preserve property.
S710 Pest Management. Includes commercial activities that provide
control measures directed against fungi, insects, rodents, and other
pests.
S712 Refuse Collection and Disposal Services. Includes commercial
activities that operate incinerators, sanitary fills, and regulated
dumps, and perform all other approved refuse collection and disposal
services.
S713 Food Services. Includes commercial activities engaged in the
operation and administration of food preparation and serving facilities.
Excludes operation of central bakeries, pastry kitchens, and central
meat processing facilities that produce a product and are reported under
functional area X934. Excludes hospital food service operations (under
code H105).
S713A: Food Preparation and Administration.
S713B: Mess Attendants and Housekeeping Services.
S714 Furniture. Includes commercial activities that repair and
refurbish furniture.
S715 Office Equipment. Includes commercial activities that maintain
and repair typewriters, calculators, and adding machines.
S716 Motor Vehicle Operation. Includes commercial activities that
operate local administrative motor transportation services. Excludes
installation bus services reported in functional area S706.
S716A: Taxi Service.
S716B: Bus Service (unless in S706).
S716C: Motor Pool Operations.
S716D: Crane Operation (includes rigging, excludes those listed in
T800G).
S716E: Heavy Truck Operation.
S716F: Construction Equipment Operation.
S716I: Driver/Operator Licensing & Test.
S716J: Other Vehicle Operations (Light Truck/Auto).
S716K: Fuel Truck Operations.
S716M: Tow Truck Operations.
S717 Motor Vehicle Maintenance. Includes commercial activities that
perform maintenance on automotive equipment, such as support and
administrative vehicles. Includes electronic and communications
equipment that are an integral part of the vehicle.
S717A: Upholstery Maintenance and Repair.
S717B: Glass Replacement and Window Repair.
S717C: Body Repair and Painting.
S717D: Accessory Overhaul.
S717E: General Repairs/Minor Maintenance.
S717F: Battery Maintenance and Repair.
S717G: Tire Maintenance and Repair.
S717H: Major Component Overhaul.
S717I: Material Handling Equipment Maintenance.
S717J: Crane Maintenance.
S717K: Construction Equipment Maintenance.
S717L: Frame and Wheel Alignment.
S717M: Other Motor Vehicle Maintenance.
S718 Fire Prevention and Protection. Includes commercial activities
that operate and maintain fire protection and preventive services.
Includes routine maintenance and repair of fire equipment and the
installation of fire prevention equipment.
S718A: Fire Protection Engineering.
S718B: Fire Station Administration.
S718C: Fire Prevention.
S718D: Fire Station Operations.
S718E: Crash and Rescue.
S718F: Structural Fire Suppression.
S718G: Fire & Crash/Rescue Equipment Major Maintenance.
S718H: Other Fire Prevention and Protection.
S719: Military Clothing. Includes commercial activities that order,
receive, store, issue, and alter military clothing and repair military
shoes. Excludes repair of organizational clothing reported under code
J515.
S724: Guard Service. Includes commercial activities engaged in
physical security operations that provide for installation security and
intransit protection of military property from loss or damage.
S724A: Ingress and egress control. Regulation of persons, material,
and vehicles entering or exiting a designated area to provide protection
of the installation and Government property.
S724B: Physical security patrols and posts. Mobile and static
physical security guard activities that provide protection of
installation or Government property.
S724C: Conventional arms, ammunition, and explosives (CAAE)
security. Dedicated security guards for CAAE.
S724D: Animal control. Patrolling for, capture of, and response to
complaints about uncontrolled, dangerous, and disabled animals on
military installations.
S724E: Visitor information services. Providing information to
installation resident and visitors about street, agency, unit, and
activity locations.
S724F: Vehicle impoundment. Removal, accountability, security, and
processing of vehicles impounded on military installations.
S724G: Registration functions. Administration, filing, processing,
and retrieval information about privately owned items that must be
registered on military installations.
S724S: Other guard service.
S725 Electrical Plants and Systems. Includes commercial activities
that operate, maintain, and repair Government-owned electrical plants
and systems.
S726 Heating Plants and Systems. Includes commercial activities that
operate, maintain, and repair Government-owned heating plants and
systems over 750,000 British Thermal Unit (BTU) capacity. Codes Z991 or
Z992 will be used for systems under 750,000 BTU capacity, as applicable.
S727 Water Plants and Systems. Includes commercial activities that
operate, maintain, and repair Government-owned water plants and systems.
S728 Sewage and Waste Plants and Systems. Includes commercial
activities that operate, maintain, and repair Government-owned sewage
and waste plants and systems.
S729 Air Conditioning and Refrigeration Plants. Includes commercial
activities that operate, maintain, and repair Government-owned air
conditioning and refrigeration plants over 5-ton capacity. Codes Z991
or Z992 shall be used for plants under 5-ton capacity as applicable.
S730 Other Services or Utilities. Includes commercial activities
that operate, maintain, and repair other Government-owned services or
utilities.
S731 Base Supply Operations. Includes commercial activities that
operate centralized installation supply functions providing supplies and
equipment to all assigned or attached units. Performs all basic supply
functions to determine requirements for all requisition, receipt,
storage, issuance, and accountability for materiel.
S732 Warehousing and Distribution of Publications. Includes
commercial activities that receive, store, and distribute publications
and blank forms.
S740 Installation Transportation Office. Includes technical,
clerical, and administrative commercial activities that support traffic
management services related to the procurement of freight and passenger
service from commercial ''for hire'' transportation companies. Excludes
restricted functions that must be performed by Government employees such
as the review, approval, and signing of documents related to the
obligation of funds; selection of mode or carrier; evaluation of
carrier performance; and carrier suspension. Excludes installation
transportation functions described under codes S706, S716, S717, T810,
T811, T812, and T814.
S740A: Installation Transportation Management and Administration.
S740B: Materiel Movements.
S740C: Personnel Movements.
S740D: Personal Property Activities.
S740E: Quality Control and Inspection.
S740F: Unit Movements.
S750 Museum Operations.
S760 Contractor-Operated Parts Stores and Contractor-Operated Civil
Engineering Supply Stores.
S999 Other Installation Services. This code will only be used for
unusual circumstances and will not be used to report organizations or
work that can be accommodated under a specifically defined code.
T800 Ocean Terminal Operations. Includes commercial activities that
operate terminals transferring cargo between overland and sealift
transportation. Includes handling of Government cargo through
commercial water terminals.
T800A: Pier Operations. Includes commercial activities that provide
stevedore and shipwright carpentry operations supporting the loading,
stowage, and discharge of cargo and containers on and off ships, and
supervision of operations at commercial piers and military ocean
terminals.
T800B: Cargo Handling Equipment. Includes commercial activities
that operate and maintain barge derricks, gantries, cranes, forklifts,
and other materiel handling equipment used to handle cargo within the
terminal area.
T800C: Port Cargo Operations. Includes commercial activities that
load and unload railcars and trucks, pack, repack, crate, warehouse, and
store cargo moving through the terminal, and stuff and unstuff
containers.
T800D: Vehicle Preparation. Includes commercial activites that
prepare Government and privately owned vehicles (POVs) for ocean
shipment, inspection, stowage in containers, transportation to pier,
processing, and issue of import vehicles to owners.
T800E: Lumber Operations. Includes commercial activities that
segregate reclaimable lumber from dunnage removed from ships, railcars,
and trucks; remove nails; even lengths; inspect; and return the
lumber to inventory for reuse. Includes receipt, storage, and issue of
new lumber.
T800F: Materiel Handling Equipment (MHE) Operations. Includes
commercial activities that deliver MHE to user agencies, perform onsite
fueling, and operate special purpose and heavy capacity equipment.
T800G: Crane Operations. Includes commercial activities that
operate and perform first-echelon maintenance of barge derricks,
gantries, and truck-mounted cranes in support of vessels and terminal
cargo activities.
T800H: Breakbulk Cargo Operations. Includes commercial activities
that provide stevedoring, shipwright carpentry, stevedore
transportation, and the loading and unloading of noncontainerized cargo.
T800I: Other Ocean Terminal Operations.
T801 Storage and Warehousing. Includes commercial activities that
receive materiel into depots and other storage and warehousing
facilities, provide care for supplies, and issue and ship materiel.
Excludes installation supply in support of unit and tenet activities
described in S731.
T801A: Receipt. Includes commercial activities that receive supplies
and related documents and information. This includes materiel handling
and related actions, such as materials segregation and checking, and
tallying incident to receipt.
T801B: Packing and Crating of Household Goods. Includes commercial
activities performing packing and crating operations described in T801H,
incident to the movement or storage of household goods.
T801C: Shipping. Includes commercial activities that deliver stocks
withdrawn from storage to shipping. Includes onloading and offloading
of stocks from transportation carriers, blocking, bracing, dunnage,
checking, tallying, and materiel handling in central shipping area and
related documentation and information operations.
T801D: Care, Rewarehousing, and Support of Materiel. Includes
commercial activities that provide for actions that must be taken to
protect stocks in storage, including physical handling, temperature
control, assembly placement and preventive maintenance of storage aids,
and realigning stock configuration; provide for movement of stocks from
one storage location to another and related checking, tallying, and
handling; and provide for any work being performed within general
storage support that cannot be identified clearly as one of the
subfunctions described above.
T801E: Preservation and Packaging. Includes commercial activities
that preserve, represerve, and pack materiel to be placed in storage or
to be shipped. Excludes application of final (exterior) shipping
containers.
T801F: Unit and Set Assembly and Disassembly. Includes commercial
activities that gather or bring together items of various nomenclature
(parts, components, and basic issue items) and group, assemble, or
restore them to or with an item of another nomenclature (such as parent
end item or assemblage) to permit shipment under a single document.
This also includes blocking, bracing, and packing preparations within
the inner shipping container; physical handling and loading; and
reverse operation of assembling such units.
T801G: Special Processing of Non Stock Fund-Owned Materiel.
Includes commercial activities performing special processing actions
described below that must be performed on Inventory Control Point
(ICP)-controlled, nonstock fund-owned materiel by technically qualified
depot maintenance personnel, using regular or special maintenance tools
or equipment. Includes disassembly or reassembly or reserviceable
ICP-controlled materiel being readied for movement, in-house storage, or
out-of-house location such as a port to a commercial or DoD-operated
maintenance or storage facility, property disposal or demilitarization
activity, including blocking, bracing, cushioning, and packing.
T801H: Packing and Crating. Includes commercial activities that
place supplies in their final, exterior containers ready for shipment.
Includes the nailing, strapping, sealing, stapling, masking, marking,
and weighing of the exterior container. Also, includes all physical
handling, unloading, and loading of materiel, within the packing and
shipping area; checking and tallying material in and out; all
operations incident to packing, repacking, or recrating for shipment,
including on-line fabrication of tailored boxes, crates, bit inserts,
blocking, bracing and cushioning shrouding, overpacking,
containerization, and the packing of materiel in transportation
containers. Excludes packing of household goods and personnel effects
reported under code T801B.
T801I: Other Storage and Warehousing.
T802 Cataloging. Includes commercial activity that prepare supply
catalogs and furnish cataloging data on all items of supply for
distribution to all echelons worldwide. Includes catalog files,
preparation, and revision of all item identifications for all logistics
functions; compilation of Federal catalog sections and allied
publication; development of Federal item identification guides, and
procurement identification descriptions. Includes printing and
publication of Federal supply catalogs and related allied publications.
T803 Acceptance Testing. Includes commercial activities that inspect
and test supplies and materiel to ensure that products meet minimum
requirements of applicable specifications, standards, and similar
technical criteria; laboratories and other facilities with inspection
and test capabilities; and activities engaged in production acceptance
testing of ammunition, aircraft armament, mobility material, and other
military equipment.
T803A: Inspection and Testing of Oil and Fuel.
T803B: Other Acceptance Testing.
T804 Architect-Engineering Services. Includes commercial activities
that provide Architect/Engineer (A/E) services. Excludes Engineering
Technical Services (ETS) reported in functional area T813, and those
required under 40 U.S.C. 541-554.
T805 Operation of Bulk Liquid Storage. Includes commercial
activities that operate bulk petroleum storage facilities. Includes
operation of off-vessel discharging and loading facilities, fixed and
portable bulk storage facilities, pipelines, pumps, and other related
equipment within or between storage facilities or extended to using
agencies (excludes aircraft fueling services); handling of drums within
bulk fuel activities. Excludes aircraft fueling services reported under
code T814.
T806 Printing and Reproduction. Includes commercial activities that
print, duplicate, and copy. Excludes user-operated office copying
equipment.
T807 Audiovisual and Visual Information Services. Includes
commercial activities that provide base audiovisual (AV) and visual
information (VI) support, production, depositories, technical
documentation, and broadcasting.
T807A: Base VI Support. Includes commercial activities that provide
production activities that provide general support to all installation,
base, facility or site, organizations or activities. Typically, they
supply motion picture, still photography, television, and audio
recording for nonproduction documentary purposes, their laboratory
support, graphic arts, VI libraries, and presentation services.
T807B: AV Production. Includes commercial activities that provide a
self-contained, complete presentation, developed according to a plan or
script, combining sound with motion media (film, tape or disc) for the
purpose of conveying information to, or communicating with, an audience.
(An AV production is distinguished from a VI production by the absence
of combined sound and motion media in the latter.)
T807C: VI Depositories. Includes commercial activities that are
especially designed and constructed for the low-cost and efficient
storage and furnishing of reference service on semicurrent records
pending their ultimate disposition. Includes records centers.
T807D: VI Technical Documentation. Includes commercial activities
that provide a technical documentation (TECDOC) which is a continuous
visual recording (with or without sound as an integral documentation
component) of an actual event made for purposes of evaluation.
Typically, TECDOC contributes to the study of human or mechanical
factors, procedures and processes in the context of medicine, science
logistics, research, development, test and evaluation, intelligence,
investigations and armament delivery.
T807E: Electronic Media Transmission. Includes commercial
activities that transmit and receive audio and video signals for closed
circuit local and long distance multi-station networking and broadcast
operations.
T807F: VI Documentation. Includes commercial activities that
provide motion media (film or tape) still photography and audio
recording of technical and nontechnical events, as they occur, usually
not controlled by the recording crew. VI documentation (VIDOC)
encompasses Operational Documentation (OPDOC) and TECDOC. OPDOC is VI
(photographic or electronic) recording of activities, or multiple
perspectives of the same activity, to convey information about people,
places and things.
T807G: AV Central Library (Inventory Control Point). Includes
commercial activities that receive, store, issue, and maintain AV
products at the central library level. May or may not include records
center operations for AV products.
T807K: AV or VI Design Service. Includes commercial activities that
provide professional consultation services involving the selection,
design, and development of AV or VI equipment or facilities.
T808 Mapping and Charting. Includes commercial activities that
design, compile, print, and disseminate cartographic and geodetic
products.
T809 Administrative Telephone Service. Includes commercial
activities that operate and maintain the common-user, administrative
telephone systems at DoD installations and activities. Includes
telephone operator services; range communications; emergency action
consoles; and the cable distribution portion of a fire alarm, intrusion
detection, emergency monitoring and control data, and similar systems
that require use of a telephone system.
T810 Air Transportation Services. Includes commercial activities
that operate and maintain nontactical aircraft that are assigned to
commands and installations and used for administrative movement of
personnel and supplies.
T811 Water Transportation Services. Includes commercial activities
that operate and maintain nontactical watercraft that are assigned to
commands and installations and are used for administrative movement of
personnel and supplies.
T811A: Water Transportation Services (except tug operations).
T811B: Tug Operations.
T812 Rail Transportation Services. Includes commercial activities
that operate and maintain nontactical rail equipment assigned to
commands and installation and used for administrative movement of
personnel and supplies.
T813 Engineering and Technical Services. Includes commercial
activities that advise, instruct, and train DoD personnel in the
installation, operation, and maintenance of DoD weapons, equipment, and
systems.
These services include transmitting the technical skill capability to
DoD personnel in order for them to install, maintain, and operate such
equipment and keep it in a high state of military readiness.
T813A: Contractor Plant Services. Includes commercial manufacturers
of military equipment contracted to provide technical and engineering
services to DoD personnel. Qualified employees of the manufacturer
furnish these services in the manufacturer plants and facilities.
Through this program, the special skills, knowledge, experience, and
technical data of the manufacturer are provided for use in training,
training aid programs, and other essential services directly related to
the development of the technical capability required to install,
operate, maintain, supply, and store such equipment.
T813B: Contract Field Services (CFS). Includes commercial
activities that provide services of qualified contractor personnel who
provide onsite technical and engineering services to DoD personnel.
T813C: In-house Engineering and Technical Services. Includes
commercial activities that provide technical and engineering services
described in codes T813A and T813B above that are provided by Government
employees.
T813D: Other Engineering and Technical Services.
T814 Fueling Service (Aircraft). Includes commercial activities that
distribute aviation petroleum/oil/lubricant products. Includes
operation of trucks and hydrants.
T815 Scrap Metal Operation. Includes commercial activities that bale
or shear metal scrap and melt or sweat aluminum scrap.
T816 Telecommunication Centers. Includes commercial activities that
operate and maintain telecommunication centers, nontactical radios,
automatic message distribution systems, technical control facilities,
and other systems integral to the communication center. Includes
operations and maintenance of air traffic control equipment and
facilities.
T817 Other Communications and Electronics Systems. Includes
commercial activities that operate and maintain communications and
electronics systems not included in T809 and T816.
T818 Systems Engineering and Installation of Communications Systems.
Includes commercial activities that provide engineering and installation
services, including design and drafting services associated with
functions specified in T809, T816, and T817.
T819 Preparation and Disposal of Excess and Surplus Property.
Includes commercial activities that accept, classify, and dispose of
surplus Government property, including scrap metal.
T820 Administrative Support Services. Includes commercial activities
that provide centralized administrative support services not included
specifically in another functional category. These activities render
services to multiple activities throughout an organization or to
multiple organizations; such as, a steno or typing pool rather than a
secretary assigned to an individual. Typical activities included are
word processing centers, reference and technical libraries,
microfilming, messenger service, translation services, publication
distribution centers, etc.
T820A: Word Processing Centers.
T820B: Reference and Technical Libraries.
T820C: Microfilming.
T820D: Internal Mail and Messenger Services.
T820E: Translation Services.
T820F: Publication Distribution Centers.
T820G: Field Printing and Publication. Includes those activities
that print or reproduce official publications, regulations, and orders.
Includes management and operation of the printing facility.
T820H: Compliance Auditing.
T820I: Court Reporting.
T821 Special Studies and Analyses. Includes commercial activities
that perform research, collect data, conduct time-motion studies, or
pursue some other planned methodology in order to analyze a specific
issue, system, device, boat, plane, or vehicle for management.
Such activities may be temporary or permanent in nature.
T821A: Cost Benefit Analyses.
T821B: Statistical Analyses.
T821C: Scientific Data Studies.
T821D: Regulatory Studies.
T821E: Defense, Education, Energy Studies.
T821F: Legal/Litigation Studies.
T821G: Management Studies.
T900 Training Devices and Simulators. Includes commercial activities
that provide training aids, devices, simulator design, fabrication,
issue, operation, maintenance, support, and services.
T900A: Training Aids, Devices, and Simulator Support. Includes
commercial activities that design, fabricate, stock, store, issue,
receive, and account for and maintain training aids, devices, and
simulators (does not include audiovisual production and associated
services or audiovisual support).
T900B: Training Device and Simulator Operation. Includes commercial
activities that operate and maintain training device and simulator
systems.
T999 Other Nonmanufacturing Operations.
Includes commercial activities that conduct courses of instruction
attended by civilian or military personnel of the Department of Defense.
Terminology of categories and subcategories primarily for military
personnel (marked by an asterisk) follows the definitions of the
statutory Military Manpower Training Report submitted annually to the
Congress. This series includes only the conduct of courses of
instruction; it does not include education and training support
functions (that is, Base Operations Functions in the S series and
Nonmanufacturing Operations in the T series). A course is any
separately identified instructional entity or unit appearing in a formal
school or course catalog.
U100 Recruit Training.* The instruction of recruits.
U200 Officer Acquisition Training.* Programs concerned with officer
acquisition training.
U300 Specialized Skill Training.* Includes Army One-Station Unit
Training, Naval Apprenticeship Training, and health care training.
U400 Flight Training.* Includes flight familiarization training.
U500 Professional Development Education*
U510 Professional Military Education.* Generally, the conduct of
instruction at basic, intermediate, and senior Military Service schools
and colleges and enlisted leadership training does not satisfy the
requirements of the definition of a DoD CA and is excluded from the
provision of this Instruction.
U520 Graduate Education, Fully Funded, Full-Time*
U530 Other Full-Time Education Programs*
U540 Off-Duty (Voluntary) and On-Duty Education Programs.* Includes
the conduct of Basic Skills Education Program (BSEP), English as a
Second Language (ESL), skill development courses, graduate,
undergraduate, vocational/technical, and high school completion programs
for personnel without a diploma.
U600 Civilian Education and Training. Includes the conduct of
courses intended primarily for civilian personnel.
U700 Dependent Education. Includes the conduct of elementary and
secondary school courses of instruction for the dependents of DoD
overseas personnel.
U800 Training Development and Support (not reported elsewhere)
U999 Other Training. This code will only be used for unusual
circumstances and will not be used to report organizations or work that
can be accommodated under a specifically defined code.
W824 Data Processing Services. Includes commercial activities that
provide ADP processing services by using Government-owned or -leased ADP
equipment; or participating in Government-wide ADP sharing program; or
procuring of time-sharing processing services (machine time) from
commercial sources. Includes all types of data processing services
performed by general purpose ADP and peripheral equipment.
W824A: Operation of ADP Equipment.
W824B: Production Control and Customer Services.
W824C: ADP Magnetic Media Library.
W824D: Data Transcription/Data Entry Services.
W824E: Transmission and Teleprocessing Equipment Services.
W824F: Acceptance Testing and Recovery Systems.
W824G: Punch Card Processing Services.
W824H: Other ADP Operations and Support.
W825 Maintenance of ADP Equipment. Includes commercial activities
that maintain and repair all Government-owned ADP equipment and
peripheral equipment.
W826 Systems Design, Development, and Programing Services. Includes
commercial activities that provide software services associated with
nontactical ADP operation.
W826A: Development and Maintenance of Applications Software.
W826B: Development and Maintenance of Systems Software.
W827 Software Services for Tactical Computers and Automated Test
Equipment. Includes commercial activities that provide software
services associated with tactical computers and TMDE and ATE hardware.
W999 Other Automatic Data Processing. This code will only be used
for unusual circumstances and will not be used to report organizations
or work that can be accommodated under a specifically defined code.
Commercial activities that manufacture and/or fabricate products
in-house are grouped according to the products predominantly handled as
follows:
X931 Ordnance Equipment. Ammunition and related products.
X932 Products Made from Fabric or Similar Materials. Including the
assembly and manufacture of clothing, accessories, and canvas products.
X933 Container Products and Related Items. Including the design,
engineering, and manufacture of wooden boxes, crates, and other
containers; includes the fabrication of fiberboard boxes, and assembly
of paperboard boxes with metal straps. Excludes on-line fabrication of
boxes and crates reported in functional area T801.
X934 Food and Bakery Products. Including the operation of central
meat processing plants, pastry kitchens, and bakery facilities.
Excludes food services reported in functional areas S713 and H105.
X935 Liquid, Gaseous, and Chemical Products. Including the providing
of liquid oxygen and liquid nitrogen.
X936 Rope, Cordage, and Twine Products; Chains and Metal Cable
Products
X937 Logging and Lumber Products. Logging and sawmill operations.
X938 Communications and Electronic Products.
X939 Construction Products. The operation of quarries and pits,
including crushing, mixing, and concrete and asphalt batching plants.
X940 Rubber and Plastic Products.
X941 Optical and Related Products.
X942 Sheet Metal Products.
X943 Foundry Products.
X944 Machined Parts.
X999 Other Products Manufactured and Fabricated In-House. This code
will only be used for unusual circumstances and will not be used to
report organizations or work that can be accommodated under a
specifically defined code.
Z991 Buildings and Structures -- Family Housing. Includes commercial
activities that are engaged in exterior and interior painting and
glazing; roofing, interior plumbing; interior electric; interior
heating equipment, including heat sources under 750,000 BTU capacity;
installed food service and related equipment, air conditioning and
refrigeration under a 5-ton capacity; elevators; and other equipment
affixed as part of the building and not included in other activities.
Includes fencing, flagpoles, and other miscellaneous structures
associated with family housing.
Z991A: Rehabilitation -- Tenant Change.
Z991B: Roofing.
Z991C: Glazing.
Z991D: Tiling.
Z991E: Exterior Painting.
Z991F: Interior Painting
Z991G: Flooring.
Z991H: Screens, Blinds, etc.
Z991I: Appliance Repair.
Z991J: Electrical Repair. Includes elevators, escalators, and
moving walks.
Z991K: Plumbing.
Z991L: Heating Maintenance.
Z991M: Air Conditioning Maintenance.
Z991N: Emergency/Service Work.
Z991T: Other Work.
Z992 Buildings and Structures (Other Than Family Housing). Includes
commercial activities that are engaged in exterior and interior painting
and glazing; roofing, interior plumbing; interior electric; interior
heating equipment, including heat sources under 750,000 BTU capacity;
installed foor service and related equipment; air conditioning and
refrigeration under a 5-ton capacity; elevators; and other equipment
affixed as part of the building and not reported under other functional
codes. Includes fencing, flagpoles, guard and watchtowers, grease
racks, unattached loading ramps, training facilities other than
buildings, monuments, grandstands and bleachers, elevated garbage racks,
and other miscellaneous structures.
Z992A: Rehabilitation -- Tenant Change.
Z992B: Roofing.
Z992C: Glazing.
Z992D: Tiling.
Z992E: Exterior Painting.
Z992F: Interior Painting.
Z992G: Flooring.
Z992H: Screens, Blinds, etc.
Z992I: Appliance Repair.
Z992J: Electrical Repair. Includes elevators, escalators, and
moving walkways.
Z992K: Plumbing.
Z992L: Heating Maintenance.
Z992M: Air Conditioning Maintenance.
Z992N: Emergency/Service Work.
Z992T: Other Work.
Z993 Grounds and Surfaced Areas. Commercial activities that
maintain, repair, and alter grounds and surfaced areas defined in codes
Z993A, B, and C, below.
Z993A: Grounds (Improved). Includes improved grounds, including
lawns, drill fields, parade grounds, athletic and recreational
facilities, cemeteries, other ground areas, landscape and windbreak
plants, and accessory drainage systems.
Z993B: Grounds (Other than Improved). Small arms ranges, antenna
fields, drop zones, and firebreaks. Also grounds such as wildlife
conservation areas, maneuver areas, artillery ranges, safety and
security zones, desert, swamps, and similar areas.
Z993C: Surfaced Areas. Includes airfield pavement, roads, walks,
parking and open storage areas, traffic signs and markings, storm
sewers, culverts, ditches, and bridges. Includes sweeping and snow
removal from streets and airfields.
Z997 Railroad Facilities. Includes commercial activities that
maintain, repair, and alter narrow and standard gauge two-rail tracks,
including spurs, sidings, yard, turnouts, frogs, switches, ties,
ballast, and roadbeds, with accessories and appurtenances, drainage
facilities, and trestles.
Z998 Waterways and Waterfront Facilities. Includes commercial
activities that maintain, repair, and alter approaches, turning basin,
berth areas and maintenance dredging, wharves, piers, docks, ferry
racks, transfer bridges, quays, bulkheads, marine railway dolphins,
mooring, buoys, seawalls, breakwaters, causeways, jetties, revetments,
etc. Excludes waterways maintained by the Army Corps of Engineers (COE)
rivers and harbors programs. Also excludes buildings, grounds,
railroads, and surfaced areas located on waterfront facilities.
Z999 Other Maintenance, Repair, Alteration, and Minor Construction of
Real Property. This code will only be used for unusual circumstances
and will not be used to report organizations or work that can be
accommodated under a specifically defined code.
(50 FR 40805, Oct. 7, 1985, as amended at 57 FR 29210, July 1, 1992)
Effective Date Note: At 57 FR 29210, July 1, 1992, Appendix A was
amended by revising the title to read: ''Appendix A to Part 169a --
Codes and Definitions of Functional Areas''; footnotes ''13-14'' were
redesignated as footnotes ''1-2''; section T804 was amended by revising
''the Brooks Act'' to read ''40 U.S.C. 541-554'', effective July 8,
1992.
1See footnote 1 to 169.1(a).
2See footnote 1 to 169a.1(a).
32 CFR 169a.22 Pt. 169a, App. B
32 CFR 169a.22 Appendix B to Part 169a -- Commercial Activities
Inventory Report and Five-Year Review Schedule
A. General Instructions
1. Forward inventory reports before 1 January to the Defense Manpower
Data Center (DMDC). Use Report Control Symbol ''DD-P&L(A) 1540'' and
send by microcomputer magnetic tape, or terminals as a medium.
2. Transmit by use of nine-track extended binary coded decimal
interchange code (EBCDIC) or 6250 density, even parity for tape medium.
Data records must have 132 characters and blocked ten logical records to
a block. Omit headers and trailers. Use a tape mark (end of file) to
follow the data. An external label shall be used on the reel to
identify the organization to which the reel is to be returned, the title
of the report, the fiscal year covered, and the tape characteristics.
3. Prior permission for interface requirements must be established
between DMDC and the sender before transmission of data.
4. Data Format: In-House DoD Commercial Activities
5. When definite coding instructions are not provided, reference must
be made to DoD 5000.12-M. /1/ Failure to follow the coding instructions
contained in this document, or those published in DoD 5000.12-M makes
the DoD Component responsible for noncompliance or required concessions
in data base communication.
/1/ See Footnote 1 to 169a.1(a).
32 CFR 169a.22 B. Entry Instructions
01 Alabama
02 Alaska
04 Arizona
05 Arkansas
06 California
08 Colorado
09 Connecticut
10 Delaware
11 District of Columbia
12 Florida
13 Georgia
15 Hawaii
16 Idaho
17 Illinois
18 Indiana
19 Iowa
20 Kansas
21 Kentucky
22 Louisiana
23 Maine
24 Maryland
25 Massachusetts
26 Michigan
27 Minnesota
28 Mississippi
29 Missouri
30 Montana
31 Nebraska
32 Nevada
33 New Hampshire
34 New Jersey
35 New Mexico
36 New York
37 North Carolina
38 North Dakota
39 Ohio
40 Oklahoma
41 Oregon
42 Pennsylvania
44 Rhode Island
45 South Carolina
46 South Dakota
47 Tennessee
48 Texas
49 Utah
50 Vermont
51 Virginia
53 Washington
54 West Virginia
55 Wisconsin
56 Wyoming
60 American Samoa
66 Guam
69 Northern Marianna Islands
71 Midway Islands
72 Puerto Rico
75 Trust Territory of the Pacific Islands
76 Navassa Islands
78 Virgin Islands
79 Wake Island
81 Baker Island
86 Jarvis Island
89 Kingman Reef
95 Palmyra Atoll
32 CFR 169a.22 Attachment 2 to Appendix B to Part 169a -- Codes for
Denoting Compelling Reasons for In-House Operations of Planned Changes
in Method or Performance
1. PERFORMANCE (for entry in field A8)
2. USE OF OTHER CODES. Other codes may be assigned as designated by
the ODASD (I).
( 50 FR 40805, Oct. 7, 1985, as amended at 57 FR 29210, July 1, 1992)
Effective Date Note: At 57 FR 29210, July 1, 1992, appendix B was
amended by revising the heading of Attachment 1 to appendix B; the
heading for section a. was revised; section b. was revised. Appendix
B and attachment 2 to appendix B to part 169a were revised, effective
July 8, 1992. For the convenience of the reader the superseded text
appears below.
32 CFR 169a.22 Appendix B to Part 169a -- Commercial Activities
Inventory Report and Five-Year Review Schedule
1. Submit reports to the Assistant Secretary of Defense (Acquisition
and Logistics) before 1 January. Reports are assigned Reports Control
Symbol DD-MIL(A) 1540 and may be transmitted using punched cards,
magnetic tape, or terminals as a medium.
2. If cards are used, wrap securely with the outer wrapper containing
identification of the submitting department, the title of the report,
''Commercial Activities Inventory Report and Five-Year Review
Schedule,'' and the fiscal year covered. Cards shall be interpreted.
3. If tape is medium chosen, then use nine-track tape Extended Binary
Coded Decimal Interchange Code (EBCDID), 1600 or 6250 density, even
parity. The data record must contain 68 characters, blocked 10 logical
records to a block. Omit headers and trailers. Use a tape mark (end of
file) to follow the data. An external label shall be used on the reel
to identify the organization to which the reel is to be returned, the
title of the report, the fiscal year covered, and the tape
characteristics.
4. If a remote work station terminal is to be used as the transmittal
medium, then concurrence and interface requirements shall be established
between the Defense Manpower Data Center (DMDC) and sender before
transmission of data.
5. Data Format: In-House DOD Commercial Activities
Coding shall be as indicated in the instructions. When specific
coding instructions are not provided, reference must be made to DoD
5000.12-M.15 Failure to comply with the coding instructions contained
herein or those published in DoD 5000.12-M will make the noncomplier
responsible for required concessions in data base communication. Items
marked with an asterisk (*) have been registered in the DoD Data Element
Dictionary.
6. Instruction for Preparing Data Entries
A -- Enter an A to designate that the data to follow on this record
pertains to a particular DoD commercial activity.
A1a -- Enter the two-position numeric code for State or U.S.
territory or possession as shown in attachment 1.
A1b -- Enter the unique alpha-numeric code established by the DoD
Component for military installation, named populated place, or related
entity where the commercial activity workload was performed during the
fiscal year covered by this submission. A separate look-up listing or
file should be provided showing each unique place code and its
corresponding place name.
A2 -- Enter the function code from enclosure 3 that best describes
the type of commercial activity workload principally performed by the
commercial activity covered by this submission. Left justify.
A3 -- Enter total (full- and part-time) in-house civilian workyear
equivalents applied to the performance of the function during the fiscal
year. Round off to nearest whole workyear equivalent. (If amount is
equal to or greater than .5, round up. If amount is less than .5, round
down. Amounts between zero and 0.9 should be entered as one.) Right
justify. Zero fill.
A4 -- Enter total military workyear equivalents applied to the
performance of the function in the fiscal year. Round off to the
nearest whole workyear equivalent. (Amounts between zero and one should
be entered as one). Right justify. Zero fill.
A8 -- Enter the reason for in-house operation of the commercial
activity as shown in attachment 2.
A9 -- Enter the last two digits of the most recent fiscal year
corresponding to the reason for in-house operation of the commercial
activity as stated in field A8. If field A8 is coded ''N,'' this field
should be left blank; otherwise an entry is required.
A10 -- Enter the last two digits of the fiscal year in which next
review is scheduled to begin for the DoD commercial activity. (Data
element reference YE-NA.) Enter WR if a waiver of review has been
approved by the ASD(A&L).
and Possessions of the United States.
b. Numeric Codes for Territories and Possessions
60 American Samoa
66 Guam
67 JA Johnston Atoll
69 Northern Marianna Islands
71 Midway Islands
72 Puerto Rico
75 Trust Territory of the Pacific Islands
76 Navassa Island
78 Virgin Islands
79 Wake Island
in-House Operations of Planned Changes in Method of
Performance
A. -- Indicates that the DoD commercial activity has been retained
in-house for national defense reasons in accordance with 169a.9(a)(1)
of this part other than commercial activities reported under code ''C''
below.
C. -- Indicates that the DoD commercial activity is retained in-house
because the commercial activity is essential for training or experience
in required military skills, or the commercial activity is needed to
provide appropriate work assigments for a rotation based for overseas or
sea-to-shore assignments, or the commercial activity is necessary to
provide career progression to a needed military skill level in
accordance with 169a.9(a)(1)(i) of this part.
D. -- Indicates procurement of a product or service from a commercial
source would cause an unacceptable delay or disruption of an essential
DoD program.
E. -- Indicates that there is no satisfactory commercial source
capable of providing the product or service needed.
F. -- Indicates that a cost comparison has been conducted and that
the Government is providing the product or service at a lower total cost
as a result of a cost comparison.
G. -- Indicates that the commercial activity is being performed by
DoD personnel now, but decision to continue in-house or convert to
contract is pending the results of a scheduled cost comparison.
H. -- Indicates that the commercial activity is being performed by
DoD employees now, but will be converted to contract because of cost
comparison results.
J. -- Indicates that the commercial activity is performed at a DoD
hospital and, in the best interests of direct patient care, is being
retained in-house.
K. -- Indicates that the commercial activity is being performed by
DoD employees now, but a decision has been made to convert to contract
for reasons other than cost.
Enter an ''N'' in tape and card field A8 if the method of performance
has never been reviewed and approved. Do not make an entry in tape or
card field A9.
Enter a ''Z'' in tape and card field A8 if the cost comparison study
has been held in abeyance because of direction from higher authority
(such as, congressional moratorium).
15See footnote 1 to 169.1(a).
32 CFR 169a.22 Pt. 169a, App. C
32 CFR 169a.22 Appendix C to Part 169a -- Simplified Cost Comparison
and Direct Conversion of CAs
A. This appendix provides guidance on procedures to be followed in
order to convert a commercial activity employing 45 or fewer DoD
civilian employees to contract performance without a full cost
comparison. DoD Components may directly convert functions with 10 or
fewer civilian employees without conducting a simplified cost
comparison. Simplified cost comparisons may only be conducted on
activities with 45 or fewer DoD civilian employees.
B. Direct conversions with 10 or fewer DoD civilian employees must
meet the following criteria:
1. The activity is currently performed by 10 or fewer civilian
employees.
2. The direct conversion makes sense from a management or performance
standpoint.
3. The direct conversion is cost effective.
4. The installation commander must certify that all affected civilian
employees will be offered jobs at that installation, or within the local
area, commensurate with their current skills and pay grades. If no such
vacancies exist, the employees will be offered retraining opportunities
for existing or projected vacancies at that installation or within the
local area. The employees potential right-of-first-refusal with
civilian contractors does not satisfy this requirement. If this
condition can not be met, simplified cost comparison procedures must be
used to justify conversion to contract.
C. The following provides general guidance for completion of a
simplified cost comparison:
1. Estimated contractor costs should be based on either the past
history of similar contracts at other installations or on the
contracting officer's best estimate of what would constitute a fair and
reasonable price.
2. For activities small in total size (45 or fewer civilian and
military personnel):
a. Estimated in-house cost generally should not include overhead
costs, as it is unlikely that they would be a factor for a small
activity.
b. Similarly, estimated contractor costs generally should not include
contract administration, on-time conversion costs, or other contract
price add-ons associated with full cost comparisons.
3. For activities large in total size (including those with a mix of
civilian and military personnel) all cost elements should be considered
for both in-house and contractor estimated costs.
4. In either case, large or small, the 10 percent conversion
differential contained in Part IV of the Supplement to OMB Circular No.
A-76 should be applied.
5. Part IV of the Supplement to OMB Circular No. A-76 shall be
utilized to define the specific elements of cost to be estimated.
6. Clearance for CA simplified cost comparison decisions are required
for Agencies without their own Legislative Affairs (LA) and Public
Affairs (PA) offices. Those Agencies shall submit their draft decision
brief to the Deputy Assistant Secretary of Defense (Installations) room
3E787, the Pentagon, Washington, DC 20301 for release to Congress.
7. Provide CA simplified cost comparison approvals containing a
certification of the MEO analysis, a copy of the approval to convert, a
copy of the cost comparison, with back-up data, before conversion to the
following:
a. Committee on Appropriations of the House of Representatives and
the Senate (11-45 civilian employees only).
b. Copies of the following:
(1) Assistant Secretary of Defense (LA), room 3D918, the Pentagon,
Washington, DC 20301.
(2) Assistant Secretary of Defense (PA), room 2E757, the Pentagon,
Washington, DC 20301.
(3) Office of Economic Adjustment, room 4C767, the Pentagon,
Washington, DC 20301.
(4) Deputy Assistant Secretary of Defense, (Installations), room
3E787, the Pentagon, Washington, DC 20301. (exception -- no copies
required from Agencies that do not have legislative and public affairs
offices).
8. The installation commander must certify that the estimated
in-house cost for activities involving 11 to 45 DoD civilian employees
are based on a completed most efficient and cost effective organization
analysis. Certification of this MEO analysis, as required by Public Law
102-172, shall be provided to the Committee on Appropriations of the
House of Representatives and the Senate before conversion to contract
performance.
(57 FR 29212, July 1, 1992)
Effective Date Note: At 57 FR 29212, July 1, 1992, appendix C to
part 169a was revised, effective July 8, 1992. For the convenience of
the reader, the superseded text appears below.
32 CFR 169a.22 Appendix C to Part 169a -- Simplified Cost Comparisons
for Direct Conversion of Commercial Activities
This appendix provides guidance regarding procedures to be followed
in order to obtain OASD(A&L)IA approval to convert a commercial activity
employing 10 or fewer DoD civilian employees directly to contract
performance without a full cost comparison. Simplified cost comparisons
are to be conducted to these smaller activities to ensure that cost data
are fully considered in decisions on commercial activities.
The proposed direct conversion must meet the following criteria:
1. The activity is currently performed by 10 or fewer civilian
employees.
2. The direct conversion makes sense from a management of performance
standpoint.
3. The direct conversion is cost effective.
4. The affected civilian employees can be placed elsewhere within the
government or with the private contractor through a right of first
refusal clause.
Attachment 1 is a format for submitting direct conversion requests
for approval. Each potential candidate for direct conversion shall be
reviewed on a case-by-case basis to ensure that both the in-house and
contractor cost estimates are as accurate as possible without a
performing full cost comparisons.
The following provides general guidance for completion of a
simplified cost comparison:
1. Estimated contractor costs should be based on either the past
history of similar contracts at other installations or on the
contracting officer's best estimate of what would constitute a fair and
reasonable price.
2. For activities small in total size (10 or fewer civilian and
military personnel):
a. Estimated in-house costs generally should not include overhead
costs, as it is unlikely that they would be a factor for a small
activity.
b. Similarly, estimated contractor costs generally should not include
contract administration, one-time conversion costs, or other contract
price add-ons associated with full cost comparisons.
3. For activities large in total size (10 or fewer civilian employees
but a significant number of military personnel) all cost elements should
be considered for both in-house and contractor estimated cost.
4. In either case, large or small, the 10 percent conversion
differential contained in part IV of the Supplement to OMB Circular No.
A-76 (Cost Comparison Handbook) should be applied.
5. Part IV of the Supplement to OMB Circular No. A-76 (Cost
Comparison Handbook) shall be utilized to define the specific elements
of cost to be estimated in the simplified cost comparison.
6. A brief description of how both the in-house and contract cost
estimates were prepared should be forwarded along with the request for a
direct conversion submitted to OASD(A&L)IA.
TITLE: Direct Conversion Request for
at
(Activity/Function (Installation)
Description of activity:
Number of affected personnel:
CIV
(Authorizations)
MIL
(Authorizations)
Status of affected civilian
employees:
(Special considerations such as a number of employees classified as
Section 3310 preference eligible veterans, minorities, handicapped.
Also, include number of civilian authorizations currently vacant or
filled by temporaries.)
Placement plans for affected
civilian employees:
Justification for direct
conversion:
(Narrative justification other than cost.)
Simplified Cost Comparison (details attached):
Point of Contact:
32 CFR 169a.22 Pt. 169a, App. D
32 CFR 169a.22 Appendix D to Part 169a -- Commercial Activities
Management Information System (CAMIS)
Each DoD Component shall create and manage their CAMIS data base.
The CAMIS data base shall have a comprehensive edit check on all input
data in the computerized system. All data errors in the CAMIS data base
shall be corrected as they are found by the established edit check
program. The data elements described in this appendix represents the
DoD minimum requirements.
On approval of a full cost comparison, a simplified cost comparison,
or a direct conversion CA, the DoD Component shall create the initial
entry using the data elements in Part I for full cost comparisons and
data elements in Part II for all other conversions. Within 30 days of
the end of each quarter, the DoD Component shall submit automated tape
or diskette, annotated with the number of records submitted and the
record length. The data shall be in the format that has been agreed to
by the Defense Manpower Data Center (DMDC) at least 60 days prior to the
end of the quarter. All data shall be in upper case. (TAPE MEDIUM --
Use 9 track tape Extended Binary Coded Decimal Interchange Code (EBCDIC)
1600 or 6250 density, even parity). The DMDC shall use the automated
data to update the CAMIS. If the DoD Component is unable to provide
data in an automated format, the DMDC shall provide quarterly printouts
of cost comparison records (CCR) and conversion and/or comparison
records (DCSCCR) that may be annotated and returned within 30 days of
the end of each quarter to the DMDC. The DMDC then shall use the
annotated printouts to update the CAMIS. The data elements that
comprise the six sections in Part I are defined in the CAMIS Entry and
Update Instructions, Part I -- Cost Comparisons.
The record for each cost comparison is divided into six sections.
Each of these sections contains information provided by the DoD
Components. The first five sections are arranged in a sequence of
milestone events occurring during a cost comparison. Each section is
completed immediately following the completion of the milestone event.
These events are as follows:
1. Cost comparison is approved by DoD Component.
2. Solicitation is issued.
3. In-house and contractor costs are compared.
4. Contract is awarded/solicitation is canceled.
5. Contract starts.
The events are used as milestones because upon their completion some
elements of significant information concerning the cost comparison
become known.
A sixth section is utilized for CCRs that result in award of a
contract. This section contains data elements on contract cost and
information on subsequent contract actions during the second and third
year of contract operation.
The data elements that comprise these six sections are defined in
this enclosure.
The record for each direct conversion and simplified cost comparison
is divided into six sections. Each of the first five sections is
completed immediately following the completion of the following events:
1. DoD Component approves CA action.
2. The solicitation is issued.
3. In-house and contractor costs are compared.
4. Contract is awarded or solicitation is canceled.
5. Contract starts.
A sixth section is utilized for tracking historical data after the
direct conversion or simplified cost comparison is completed. This
section contains data elements on contracts and cost information during
the second and third performance period. The data elements that
comprise the six sections in Part II, of this Appendix, are defined in
the CAMIS Entry and Update Instruction, Part II -- Direct Conversions
and Simplified Cost Comparisons.
The bracketed number preceding each definition in sections one
through five is the DoD data element number. All date fields should be
in the format MMDDYY (such as, June 30, 1983 = 063083).
Comparison
All entries in this section of CCR shall be submitted by DoD
Components on the first quarter update after approving the start of a
cost comparison.
These entries shall be used to establish the CCR and to identify the
geographical, organizational, political, and functional attributes of
the activity (or activities) undergoing cost comparison as well as to
provide an initial estimate of the manpower associated with the activity
(or activities). The initial estimate of the manpower in this section
of the CCR will be in all cases those manpower figures identified in the
correspondence approving the start of the cost comparison.
DoD Components shall enter the following data elements to establish a
CCR:
(1) Cost Comparison Number. The number assigned by the DoD Component
to uniquely identify a specific cost comparison. The first character of
the cost comparison number must be a letter designating DoD Component as
noted in data element (3), below. The cost comparison number may vary
in length from five to ten characters, of which the second and
subsequent may be alpha or numeric and assigned under any system desired
by the DoD Component.
(2) Announcement and/or approval date. Date Congress is notified
when required by 10 U.S.C. 2461, of this part or date DoD Component
approves studies being performed by 45 or fewer DoD civilian employees.
(3) DOD Component Code. Use the following codes to identify the
Military Service or Defense Agency conducting the cost comparison:
A -- Department of the Army
B -- Defense Mapping Agency
C -- Strategic Defense Initiatives Organization
D -- Civilian Health and Medical Program of the Uniformed Services
(CHAMPUS) (3D1)
E -- Defense Advanced Research Projects Agency
F -- Department of the Air Force
G -- National Security Agency/Central Security Service
H -- Defense Nuclear Agency
J -- Joint Chiefs of Staff (including the Joint Staff, Unified and
Specified Commands, and Joint Service Schools)
K -- Defense Information Systems Agency (DISA)
L -- Defense Intelligence Agency
M -- United States Marine Corps
N -- United States Navy
R -- Defense Contract Audit Agency
S -- Defense Logistics Agency
T -- Defense Security Assistance Agency
V -- Defense Investigative Service
W -- Uniform Services University of the Health Sciences
X -- Inspector General, Department of Defense
Y -- U.S. Army Corps of Engineers (USACE) Civil Works
2 -- Defense Finance & Accounting Service (DFAS)
3 -- Defense Commissary Agency (DeCA)
(4) Command Code. The code established by the DoD Component
headquarters to identify the command responsible for operating the
commercial activity undergoing cost comparison. A separate look-up
listing or file shall be provided to DMDC showing each unique command
code and its corresponding command name. If the DoD Component chooses
to submit the look-up table or diskette or tape, the format should be as
follows:
1-6 (left justify) -- command code
7 -- blank
8-80 (left justify) -- command name
(5) Installation code. The code established by the DoD Component
headquarters to identify the installation where the CA(s) under cost
comparison is and/or are located physically. Two or more codes (for
cost comparison packages encompassing more than one installation) should
be separated by commas. A separate look-up listing or file shall be
provided to the DMDC showing each unique installation code and its
corresponding installation name. Also submission of the installation
name in each record is allowed. If the DoD Component chooses to submit
the look-up listing on diskette or tape, the format shall be as follows:
The DMDC shall generate the installation name corresponding to the
installation code submitted by the DoD Component, and display it with
the code on the CAMIS.
(6) State code. A two-position numeric code for the State (Data
element reference ST-GA.) or U.S. Territory (FIPS 55-2), as shown in
attachment 1 to appendix B to this part, where element (5) is located.
Two or more codes shall be separated by commas.
(7) Congressional District (CD). Number of the congressional
district(s) where (5) is located. If representatives are elected ''at
large,'' enter ''01'' in this data element; for a delegate or resident
commissioner (such as, District of Columbia or Puerto Rico) enter
''98.'' If the installation is located in two or more CDs, all CDs
should be entered and separated by commas.
(8) (Reserved)
(9) Title of Cost Comparison. The title that describes the
commercial activity(s) under cost comparision (for instance,
''Facilities Engineering Package,'' ''Installation Bus Service,'' or
''Motor Pool''). Use a clear title, not acronyms of function codes in
this data element.
(10) DOD Functional Area Code(s). The four of five alpha/numeric
character designators listed in Appendix A of this part that describe
the type of CA undergoing cost comparison. There would be one code for
a single CA or possible several codes for a large cost comparison
package. A series of codes shall be separated by commas.
(11) Prior Operation Code. A single alpha character that identifies
the mode of operation for the activity at the time the cost comparison
is started. Despite the outcome of the cost comparison, this code does
not change. The coding as as follows:
I -- In-house
C -- Contract
N -- New requirement
E -- Expansion
(12) Cost Comparison Status Code. A single alpha character that
identifies the current status of the cost comparison. Enter one of the
following codes:
P -- In progress
C -- Complete
X -- Canceled. The CCR shall be excluded from future updates.
Z -- Consolidated. The cost comparison has been consolidated with
one or more other cost comparisons into a single cost comparison
package. The CCR for the cost comparison that has been consolidated
shall be excluded from future updates. (See data element (15).)
B -- Broken out. The cost comparison package has been broken into
two or more separate cost comparisons. The previous CCR shall be
excluded from future updates. (See data element (15).)
(13) Announcement -- personnel estimate civilian, and (14)
announcement -- personnel estimate military. The number of civilian and
military personnel allocated to the CAs undergoing cost comparison when
the cost comparison is approved by the DoD Component or announced to
Congress. This number in all cases shall be those personnel figures
identified in the correspondence announcing the start of a cost
comparison and will include authorized positions, temporaries, and
borrowed labor. The number is used to give a preliminary estimate of
the size of the activity.
(15) Revised and/or original cost comparison number. When a
consolidation occurs, create a new CCR containing the attributes of the
consolidated cost comparison. In the CCR of each cost comparison being
consolidated, enter the cost comparison number of the new CCR in this
data element and code ''Z'' in data element (12) of this attachment. In
the new CCR, this data element should be blank and data element (12) of
this attachment should denote the current status of the cost comparison.
Once the consolidation has occurred, only the new CCR requires future
updates. When a single cost comparison is being broken into multiple
cost comparisons, create a new CCR for each cost comparison broken out
from the original cost comparison. Each new CCR shall contain its own
unique set of attributes; in data element (15) of this attachment enter
the cost comparison number of the original cost comparison from which
each was derived, and in data element (12) of this attachment enter the
current status of each cost comparison. For the original cost
comparison, data element (15) of this attachment, should be blank and
data element (12) of this attachment should have a code ''B'' entry.
Only the derivative record entries require future updates. When a
consolidation or a breakout occurs, an explanatory remark shall be
entered in data element (57) of this attachment (such as, ''part of SW
region cost comparison,'' or, ''separated into three cost
comparisons'').
The entries in this section of the CCR provide information on the
personnel authorized to perform the workload in the PWS, the number of
workyears used to accomplish the workload in the PWS, and the type and
kind of solicitation.
The DoD Component shall enter the following data elements at the
first quarterly update subsequent to the issuance of the solicitation:
(17) (Reserved)
(18) Solicitation-Type Code. A one-character alpha designator that
identifies the type of solicitation used to obtain contract bids or
offers. Use either the CBD as the source document or information
received from the contracting officer for this entry. Solicitations
under Section 8(a) of the Small Business Act are negotiated. Enter one
of the following codes:
S -- Sealed Bid
N -- Negotiated
(19) Solicitation Kind Code. A one-character (or two-character, if
''W'' suffix is used) alpha designator indicating whether the
competition for the contract has been limited to a specific class of
bidders or offerors. Use either the CBD as the source document or
information received from the contracting officer to enter one of the
following codes:
A -- Restrict to small business
B -- Small Business Administration 8(a) Set Aside
C -- Javits-Wagner-O'Day Act (JWOD)
D -- Other mandatory sources
U -- Unrestricted
W -- (optional suffix) Unrestricted after initial restriction
(20) Current Authorized Civilians and (21) Current Authorized
Military. The number of civilian and military authorizations allocated
on the DoD Component's manpower documents to perform the work described
in the PWS. This number refines the initial authorization estimate
(section one, data elements (13) and (14)).
(22) Baseline Annual Workyears Civilian and (23) Baseline Annual
Workyears Military. The number of annual workyears it has taken to
perform the work described by the PWS before the DoD Component conducts
the MEO study of the in-house organizations; do not include contract
monitor requirements. Military workyears include assigned, borrowed,
diverted, and detailed personnel.
An annual workyear is the use of 2,087 hours (including authorized
leave and paid time off for training). For example, when full-time
employees whose work is completely within the PWS are concerned, ''one
workyear'' normally is comparable to ''one employee'' or two part-time
employees, each working 1,043 hours in a fiscal year. Also include in
this total the workyears for full-time employees who do not work on a
full-time basis on the work described by the PWS. For example, some
portion of the workload is performed by persons from another work center
who are used on an ''as needed'' basis. Their total hours performing
this workload is 4,172 hours. This would be reflected as two workyears.
Less than one-half year of effort should be rounded down, and one-half
year or more should be rounded up.
These workyear figures shall be the baseline for determining the
manpower savings identified by the management study.
Operation are Compared
The entries in this section provide information on the date of the
cost comparison (initial decision), the preliminary results, the number
of bids or offers received, and the costing method used in the cost
comparison.
The DoD Component shall enter the following data elements in the
first quarterly update subsequent to the date of the comparison of
in-house and contractor costs (date of initial decision):
(24) Scheduled Initial Decision Date. Date the initial decision is
scheduled at the start of a cost comparison.
(24A) Actual Initial Decision Date. Date the initial decision is
announced. The initial decision is based on the apparent low bid or
offer and is subject to preaward surveys and resolution of all appeals
and protests. In a sealed bid procurement, the initial decision is
announced at bid opening. In a negotiated procurement, the initial
decision is announced when the cost comparison is made between the
in-house estimate and the proposal of the selected offeror.
(25) Cost Comparison Preliminary Results Code. A one-character alpha
designator indicating the results of the cost comparison as announced by
the contracting officer at the time the bids or offers are compared.
The entries are limited to two possibilities:
I -- In-house
C -- Contract
(26) -- (27) (Reserved)
Contract or Commercial Activity Cancels the
Solicitation
The entries in this section identify the final result, information on
the contract, the in-house bid, and costing information from the cost
comparison record.
The DoD Component shall enter the following data elements in the
first quarterly update subsequent to the date the contracting officer
either awards a contract or cancels the solicitation:
(28) Contract Award/Solicitation Commercial Activity Cancellation
Date. For conversions to contract, this is the date a contract was
awarded in a sealed bid solicitation or the date the contractor was
authorized to proceed on a conditional award contract in a negotiated
solicitation. For retentions in-house, this is the date the
solicitation was canceled (when the contracting officer publishes an
amendment to the solicitation canceling it).
(29) Cost Comparison Final Result Code. A one-character alpha
designator identifying the final result of the comparison between
in-house and contractor costs; the contracting officer either awards
the contract or cancels the solicitation. Enter one of the following
codes:
I -- In-house
C -- Contract
(30) Decision Rationale Code. A one-character alpha designator that
identifies the rationale for awarding a contract or canceling the
solicitation. The work shall be performed in-house or by contractor,
based on cost, or the work shall be performed in-house because no
satisfactory commercial source was available (no bids or offers were
received or the preaward survey resulted in the determination that no
commercial sources were responsive or responsible). Enter one of the
following codes:
C -- Cost
N -- No satisfactory commercial source
O -- Other
(31) (Reserved)
(31a) Prime Contractor Size. Enter one of the following
S -- Small or small/disadvantaged business
L -- Large business
(32) MEO Workyears. The number of annual workyears it takes to
perform the work described in the PWS after the MEO study has been
conducted. Do not include the minimum cost differential (line 14 in CCF
or line 16 in the ENCR CCF) in the computation of any of these data
elements.
For data elements (33) through (36), enter all data after all
adjustments required by appeals board decisions. Do not include the
minimum cost differential (line 31 old CCF or line 14 new CCF or line 16
new ENRC form) in the computation of any of these data elements. If a
valid cost comparison was not conducted (that is, all bidders or
offerors disqualified, no bids or offers received, etc.) do not complete
data elements (33) through (36). Explain lack of valid cost data in
data element (57), DOD Component Comments.
(33) First Performance Period. Expressed in months, the length of
time covered by the contract. Do not include any option periods.
(34) Cost Comparison Period. Expressed in months, the total period
of operation covered by the cost comparison; this is the period used as
the basis for data elements (35) and (36), below.
(35) Total in-house Cost ($000). Enter the total cost of in-house
performance in thousands of dollars, rounded to the nearest thousand.
This is the total of line 6 of the new CCF or line 8 of the ENCR CCF.
An entry is required although the activity remains in-house due to
absence of a satisfactory commercial source.
(36) Total Contract Cost ($000). Enter the total cost of contract
performance in thousands of dollars, rounded to the nearest thousand.
This is the total of line 13 of the CCF or line 15 of the ENCR CCF.
(37) Scheduled Contract or MEO Start Date. Date the contract and/or
MEO was scheduled to start at the beginning of a cost comparison.
The entries in this section identify the contract or MEO start date
and the personnel actions taken as a result of the cost comparison.
The DoD Component shall enter the following data elements in the
first quarterly update subsequent to the start of the contract:
(38) Contract/MEO Start Date. The actual date the contractor began
operation of the contract or the Government implements the MEO.
(39) Permanent Employees Reassigned to Equivalent Positions. The
number of permanent employees who were reassigned to positions of
equivalent grade as of the contract start date.
(40) Permanent Employee Changed To Lower Positions. The number of
permanent employees who were reassigned to lower grade positions as of
the contract start date.
(41) Employees Taking Early Retirement. The number of employees who
took early retirement as of the contract start date.
(42) Employees Taking Normal Retirement. The number of employees who
took normal retirement as of the contract start date.
(43) Permanent Employees Separated. The number of permanent
employees who were separated from Federal employment as of the contract
start date.
(44) Temporary Employees Separated. The number of temporary
employees who were separated from Federal employment as of the contract
start date.
(45) Employees Entitled To Severance Pay. The estimated number of
employees entitled to severance pay on their separation from Federal
employment as of the contract start date.
(46) Total Amount of Severance Entitlements ($000). The total
estimated amount of severance to be paid to all employees, in thousands
of dollars, rounded to the nearest thousand, as of the contract start
date.
(47) Number Of Employees Hired by The Contractor. The number of
estimated DoD civilian employees (full-time or otherwise) that will be
hired by the contractors, or their subcontractors, at the contract start
date.
(48) Filed. Were administrative appeals filed?
N -- No
Y -- Yes
(49) Source. Who filed the appeal?
B -- Both
C -- Contractor
I -- In-house
(50) Result. Were the appeals finally upheld? (If both appealed,
explain result in data element (57), of this section).
N -- No
P -- Still in progress
Y -- Yes
(51) Filed. Was a protest filed with GAO?
N -- No
Y -- Yes
(52) Source. Who filed the protest?
B -- Both
C -- Contractor
I -- In-house
(53) Result. Was the protest finally upheld? (Explain result in
data element (57), below).
N -- No
P -- Still in progress
Y -- Yes
(54) Requested. Was there a request for arbitration?
N -- No
Y -- Yes
(55) Result. Was the case found arbitrable? (Explain result in data
element (57), below).
N -- No
P -- Still in progress
Y -- Yes
+(56) Total Staff-Hours Expended. Enter the estimated number of
staff-hours expended by the installation for the cost comparison.
Include direct and indirect hours expended from the time of PWS until a
final decision is made.
+(56a) Estimated Cost Of Conducting The Cost Comparison. Enter the
estimated cost of the total staff-hours identified in data element (56)
of this section non-labor (travel, reproduction costs, etc.) associated
with the cost comparision.
+Data elements (56) and (56A) will only be completed by DoD
Components that are participating in the pilot test of these data
elements.
(57) DoD Component Comments. Enter comments, as required, to explain
situations that affect the conduct of the cost comparision. Where
appropriate, precede each comment with the CAMIS data element being
referenced.
(58) Effective Date. ''As of'' date of the most current update for
the cost comparison. This data element will be completed by the DMDC.
(59) (Leave blank, for DoD computer program use).
The entries in this section identify original costs, savings,
information on subsequent performance periods and miscellaneous contract
data. The DoD Component shall enter the following data elements in the
first quarterly update annually.
(60) Original Cost of Function(s) ($000). The estimated total cost
of functions before to development of an MEO in thousands of dollars,
rounded to the nearest thousand for the base year and option years.
(Begin entry when study began for data element (2) after 1 October
1989).
(60A) Estimated Dollar Savings ($000). The DoD Component's estimated
savings from the cost comparison for the base year plus option years, in
thousands of dollars, rounded to the nearest thousand, for either
in-house or contract performance. Documentation will be available at
the DoD Component level. (Begin entry after 1 October 1989).
(61) Contract Or In-House Bid First Performance Period ($000). For
studies resulting in continued in-house performance, enter the total
in-house cost (Line 6 from the CCF) for the first performance period.
For studies resulting in conversion to contract performance, enter the
contract price (Line 7 from the CCF) for the first performance period.
Figures shall be shown in thousands of dollars, rounded to the nearest
thousand.
(61A) Actual Contract or In-House Costs First Performance Period
($000). Enter the actual first performance period contract cost
including all change orders (Plus changes in the scope of work) or
actual in-house performance cost including changes in the scope of work,
in thousands of dollars, rounded to the nearest thousand. No entry is
required for actual in-house performance during the second and third
performance periods.
(61B) Adjusted Contract Costs First Performance Period ($000). Enter
an adjusted first performance period contract cost that includes actual
DoL wage increases and costs for omissions and/or errors in the original
PWS, but exclude new requirement costs and their associated wage
increases, in thousands of dollars, rounded to the nearest thousand.
(Begin entry after 1 October 1989).
(61C) Adjusted In-House Costs First Performance Period ($000). Enter
the total first performance period in-house cost of the MEO, including
civil service pay increases, but excluding increases associated with new
mission requirements not included in the original scope of work of the
function. Show costs in thousands of dollars, rounded to the nearest
thousand. Entry is required even if the function went to contract.
(Begin entry after 1 October 1989).
(62) Contract Or In-House Bid Second Performance Period ($000). For
studies resulting in continued in-house performance, enter the total
in-house cost (Line 6 from the CCF) for the second performance period.
For studies resulting in conversion to contract performance, enter the
contract price (Line 7 from the CCF) for the second performance period.
Figures shall be shown in thousands of dollars, rounded to the nearest
thousand.
(62A) Actual Contract Costs Second Performance Period ($000). Enter
the actual second performance period contract cost including all change
orders (Plus changes in the scope of work), in thousands of dollars,
rounded to the nearest thousand. No entry is required when the function
remained in-house.
(62B) Adjusted Contract Costs Second Performance Period ($000).
Enter an adjusted second performance period contract cost that includes
actual DoL wage increases and costs for omissions and/or errors in the
original PWS, but exclude new requirement costs and their associated
wage increases, in thousands of dollars, rounded to the nearest
thousand. (Begin entry after 1 October 1989).
(62) Adjusted In-House Costs Second Performance Period ($000). Enter
the total second performance period in-house cost of the MEO, including
civil service pay increases, but excluding increases associated with new
mission requirements not included in the original scope of work of the
function. Show costs in thousands of dollars, rounded to the nearest
thousand. Entry is required even if the function went to contract.
(Begin entry after 1 October 1989).
(63) Contract Or In-house Bid Third Performance Period ($000). For
studies resulting in continued in-house performance, enter the total
in-house cost (Line 6 from the CCF) for the third performance period.
For studies resulting in conversion to contract performance, enter the
contract price (Line 7 from the CCF) for the third performance period.
Figures shall be shown in thousands of dollars, rounded to the nearest
thousand.
(63A) Actual Contract Costs Third Performance Period ($000). Enter
the actual third performance period contract cost including all change
orders (Plus changes in the scope of work), in thousands of dollars,
rounded to the nearest thousand. No entry is required when the function
remained in-house.
(63B) Adjusted Contract Costs Third Performance Period ($000). Enter
an adjusted third performance period contract cost that includes actual
DoL wage increases and costs for omissions and/or errors in the original
PWS, but exclude new requirement costs and their associated wage
increases, in thousands of dollars, rounded to the nearest thousand
(Begin entry after 1 October 1989).
(63C) Adjusted In-House Costs Third Performance Period ($000). Enter
the total third performance period in-house cost of the MEO, including
civil service pay increases, but excluding increases associated with new
mission requirements not included in the original scope of work of the
function. Show costs in thousands of dollars, rounded to the nearest
thousand. Entry is required even if the function went to contract
(Begin entry after 1 October 1989).
(64) Contractor Change. Enter one of the following alpha designators
to indicate whether the contract for the second or third performance
period has changed from the original contractor.
N -- No, the contractor has not changed.
Y -- Yes, the contractor has changed.
Data elements (65) through (66) of this section are not required if
the answer to (64) of this section is no (N).
(65) New Contractor Size (If data element (66) of this section
contains the alpha designator ''I'' or ''R,'' no entry is required).
L -- New contractor is large business.
S -- New contractor is small and/or small disadvantaged business.
(66) Reason For Change. DoD Components shall enter one of the
following designators listed in this section, followed by the last two
digits of the fiscal year which the change occurred.
C -- Contract workload consolidated with other existing contract
workload.
D -- New contractor takes over because original contractor defaults.
I -- Returned in-house because original contractor defaults within 12
months of start date and in-house bid is the next lowest.
N -- New contractor replaced original contractor because Government
opted not to renew contract in option years.
R -- Returned in-house temporarily pending resolicitation due to
contract default, etc.
U -- Contract workload consolidated into a larger (umbrella) cost
comparison.
X -- Other-function either returned in-house or eliminated because of
base closure, realignment, budget reduction or other change in
requirements.
(67) Contract Administration Staffing. The actual number of contract
administration personnel hired to administer the contract.
The bracketed number preceding each definition in sections One
through six of this section, is the DoD data element number. All date
fields should be in the format YYMMDD (Data element reference DA-FA).
All entries in this section of the DCSCCR record shall be submitted
by DoD Components on the first quarter update after approving the start
of a cost comparison. These entries shall be used to establish the
DCSCCR and to identify the geographical, organizational, political, and
functional attributes of the activity (or activities) undergoing
conversion and/or comparison as well as to provide an initial estimate
of the manpower associated with the activity (or activities). The
initial estimate of the personnel in this section of the DCSCCR will be,
in all cases, those personnel figures identified in the correspondence
approving the start of the conversion and/or comparison. DoD Components
shall enter the following data elements to establish a DCSCCR:
(1) Direct Conversion/Simplified Cost Comparison Number. The number
assigned by the DoD Component to uniquely identify a specific conversion
and/or comparison. The first character of the conversion and/or
comparison number must be a letter designating the DoD Component as
noted in data element (3) of this section. The conversion and/or
comparison number may vary in length from five to ten characters, of
which the second and subsequent may be alpha or numeric and assigned
under any system desired by the DoD Component.
(2) Approval Date. The date has simplified cost comparison or direct
conversion was approved.
(3) DoD Component Code. Use the following codes to identify the
Military Service or Defense Agency and/or Field Activity conducting the
cost comparison:
A -- Department of the Army
B -- Defense Mapping Agency (DMA)
D -- Civilian Health and Medical Program of the Uniformed Services
(CHAMPUS) (3D1)
D -- Washington Headquarters Service (WHS) (3D2)
F -- Department of the Air Force
G -- National Security Agency/Central Security Service (NSA/CSS)
H -- Defense Nuclear Agency (DNA)
J -- Joint Chiefs of Staff (JCS) (including the Joint Staff, Unified
and Specified Commands, and Joint Service Schools)
K -- Defense Information Systems Agency (DISA)
L -- Defense Intelligence Agency (DIA)
M -- United States Marine Corps (USMC)
N -- United States Navy (USN)
R -- Defense Contract Audit Agency (DCAA)
S -- Defense Logistics Agency (DLA)
T -- Defense Security Assistance Agency (DSAA)
V -- Defense Investigative Service (DIS)
W -- Uniformed Services University of the Health Sciences (USUHS)
Y -- U.S. Army Corps of Engineers (USACE) Civil Works
2 -- Defense Finance & Accounting Service (DFAS)
3 -- Defense Commissary Agency (DeCA)
(4) Command Code. The code established by the DoD Component
headquarters to identify the command responsible for operating the CA
undergoing conversion and/or comparison. A separate look-up listing or
file shall be provided to the DMDC showing each unique command code and
its corresponding command name. If the DoD Component chooses to submit
the look-up table on diskette or tape, the format should be as follows:
(5) Installation Code. The code established by the DoD Component
headquarters to identify the installation where the CA(s) under
conversion and/or comparison is and/or are located physically. Two or
more codes (for conversion and/or comparison packages encompassing more
than one installation) should be separated by commas. A separate
look-up listing or file shall be provided to the DMDC showing each
unique installation code and its corresponding installation name. Also
submission of the installation name in each record is allowed. It the
DoD Component chooses to submit the look-up listing on diskette or tape,
the format shall be as follows:
The DMDC shall generate the installation name corresponding to the
installation code submitted by the DoD Component, and display it with
the code on the CAMIS.
(6) State Code. A two-position numeric code for the State (Data
element reference ST-GA.) or U.S. Territory (FIPS 55-2), as shown in
attachment 1 to Appendix B of this part, where element (5) is located.
Two or more codes shall be separated by commas.
(7) Congressional District (CD). Number of the CDs where (5) of this
section, is located. If representatives are elected ''at large,'' enter
''01'' in this data element; for a delegate or resident commissioner
(i.e., District of Columbia or Puerto Rico) enter ''98.'' If the
installation is located in two or more CDs, all CDs should be entered
and separated by commas.
(8) (Leave blank)
(9) Title of Conversion and/or Comparison. The title that describes
the CA(s) under conversion/comparison (for instance, ''Facilities
Engineering Package'', ''Installation Bus Service,'' or ''Motor Pool'').
Use a clear title, not acronyms or function codes in this data element.
(10) DoD Functional Area Code(s). The four- or five-alpha and/or
numeric character designators listed in Appendix A of this part that
describes the type of CA undergoing conversion and/or comparison. This
would be one code for a single CA or possibly several codes for a large
cost comparison package. A series of codes shall be separated by
commas.
(11) Prior Operation Code. A single alpha character that identifies
the mode of operation for the activity at the time the conversion and/or
comparison is started. Despite the outcome of the conversion and/or
comparison, this code does not change. The coding is as follows:
C -- Contract
E -- Expansion
I -- In-house
N -- New requirement
(12) Conversion and/or Comparison Status Code. A single alpha
character that identifies the current status of the conversion and/or
comparison. Enter one of the following codes:
B -- Broken out. The cost comparison package has been broken into
two or more separate cost comparisons. The previous DCSCCR shall be
excluded from future updates. (See data element (15) of this section.)
C -- Complete
P -- In progress
X -- Canceled. The DCSCCR shall be excluded from future updates.
Z -- Consolidated. The cost comparison has been consolidated with
one or more other cost comparisons into a single cost comparison
package. The DCSCCR for the cost comparison that has been consolidated
shall be excluded from future updates. (See data element (15) of this
section.)
(13) Announcement -- personnel estimate civilian, and (14)
announcement -- personnel estimate military. The number of civilian and
military personnel allocated to the CAs undergoing conversion and/or
comparison at the time the start of the conversion and/or comparison is
approved. This number is all cases shall be those personnel figures
identified when the conversion and/or comparison was approved and will
include authorized positions, temporaries, and borrowed labor. The
number is used to give a preliminary estimate of the size of the
activity.
(15) Revised and/or original cost comparison number. When a
consolidation occurs, create a new DCSCCR containing the attributes of
the consolidated conversion and/or comparison. In the DCSCCR of each
conversion and/or comparison being consolidated, enter the conversion
and/or comparison number of the new DCSCCR in this data element and code
''Z'' in data element (12) of this section. In the new DCSCCR, this
data element should be blank and data element (12) of this section
should denote the current status of the conversion and/or comparison.
Once the consolidation has occurred, only the new DCSCCR requires future
updates.
When a single conversion and/or comparison is being broken into
multiple conversion and/or comparisons, create a new DCSCCR for each
conversion and/or comparison broken out from the original conversion
and/or comparison. Each new DCSCCR shall contain its own unique set of
attributes; in data element (15) of this section enter the conversion
and/or comparison number of the original conversion and/or comparison
from which each was derived, and in data element (12) of this section
enter the current status of each conversion and/or comparison. For the
original conversion and/or comparison, data element (15) of this section
should be blank and data element (12) of this section should have a code
''B'' entry. Only the derivative record entries require future updates.
When a consolidation or a breakout occurs, an explanatory remark
shall be entered in data element (56) of this section (such as, ''part
of SW region cost comparison,'' or, ''separated into three cost
comparisons'').
(16) (Leave blank)
The entries in this section of the DCSCCR provide information on the
personnel authorized to perform the workload in the PWS, the number of
workyears used to accomplish the workload in the PWS, and the type and
kind of solicitation.
The DoD Component shall enter the following data elements at the
first quarterly update subsequent to the issuance of the solicitation:
(17) (Leave blank)
(18) Solicitation-Type code. A one-character alpha designator that
identifies the type of solicitation used to obtain contract bids or
offers. Use either the CBD as the source document or information
received from the contracting officer for this entry. Solicitations
under Section 8(a) of ''The Small Business Act'' are negotiated. Enter
one of the following codes:
N -- Negotiated
S -- Sealed Bid
(19) Solicitation-Kind code. A one-character (or two-character, if
''W'' suffix is used) alpha designator indicating whether the
competition for the contract has been limited to a specific class of
bidders or offerors. Use either the CBD as the source document or
information received from the contracting officer to enter one of the
following codes:
A -- Restrict to small business
B -- Small Business Administration 8(a) Set Aside
C -- ''Javits-Wagner-O'Day Act'' (JWOD)
D -- Other mandatory sources
U -- Unrestricted
W -- (Optional suffix) Unrestricted after initial restriction
(20) Current Authorized Civilians, and (21) Current Authorized
Military. The number of civilian and military authorizations allocated
on the DoD Component's manpower documents to perform the work described
in the PWS. This number refines the initial authorization estimate
(Section One, data elements (13) and (14) of this section).
(22) Baseline Annual Workyears Civilian, and (23) Baseline Annual
Workyears Military. The number of annual workyears it has taken to
perform the work described by the PWS before the DoD Component conducts
the MEO analysis of the in-house organization. Do not include contract
monitor requirements. Military workyears include assigned, borrowed,
diverted, and detailed personnel. Less than one-half a year of effort
should be rounded down, and one-half a year or more should be rounded
up. These workyear figures shall be the baseline for determining the
personnel savings identified by the most efficient organization
analysis.
Operations Are Compared
The entries in this section provide information on the date of the
conversion and/or comparison (initial decision), the preliminary
results, the number of bids or offers received, and the costing method
used in the conversion and/or comparison.
The DoD Component shall enter the following data elements in the
first quarterly update subsequent to the date of the comparison of
in-house and contractor costs (date of initial decision):
(24) Scheduled Initial Decision Date. Date the initial decision is
scheduled at the start of a conversion and/or comparison
(24A) Actual Initial Decision Date. Date the initial decision is
announced. The initial decision is based on the apparent low bid or
offer and is subject to preaward surveys and resolution of all appeals
and protests. In a sealed bid procurement, the initial decision is
announced at bid opening. In a negotiated procurement, the initial
decision is announced when the cost comparison is made between the
in-house estimate and the proposal of the selected offeror. In a
conversion, the initial decision is announced when the in-house cost
estimate is evaluated against proposed contractor proposals.
(25) Cost Comparison Preliminary Results Code. A one-character alpha
designator indicating the results of the cost comparison as announced by
the contracting officer at the time of the comparison (No entry required
for a direct conversion). The entries are limited to two possibilities:
C -- Contract
I -- In-house
(26) (Leave blank)
(27) (Leave blank)
Contract or Cancels The Solicitation
The entries in this section identify the final result, information on
the contract, the in-house bid, and costing information from the direct
conversion and/or simplified cost comparison fact sheet.
The DoD Component shall enter the following data elements in the
first quarterly update subsequent to the date the contracting officer
either awards a contract or cancels the solicitation:
(28) Contract Award or Solicitation Cancellation Date. For
conversions to contract, this is the date a contract was awarded in a
sealed bid solicitation or the date the contractor was authorized to
proceed on a conditional award contract in a negotiated solicitation.
For retentions in-house, this is the date the solicitation was canceled
(when the contracting officer publishes an amendment to cancel the
solicitation).
(29) Cost Comparison Final Result Code. A one-character alpha
designator identifying the final result of the comparison between
in-house and contractor costs; the contracting officer either awards
the contract or cancels the solicitation. Enter one of the following
codes:
C -- Contract
I -- In-house
(30) Decision Rationale Code. A one-character alpha designator that
identifies the rationale for awarding a contract or canceling the
solicitation. The work shall be performed in-house or by contractor
based on cost, for other than cost, or the work shall be performed
in-house because no satisfactory commercial source was available (no
bids or offers were received or the pre-award survey resulted in the
determination that no commercial sources were responsive or
responsible). Enter one of the following codes:
C -- Cost
N -- No satisfactory commercial source
O -- Other
(31) (Leave blank)
(31A) Prime Contractor Size. Enter one of the following:
L -- Large business
S -- Small or small and/or disadvantaged business
(32) MEO Workyears. The number of annual workyears it takes to
perform the work described in the PWS after the MEO analysis has been
conducted. This entry will be equal to the number of annual workyears
in the in-house bid (No entry required for a direct conversion).
For data elements (33) through (36) of this section enter all data
after all adjustments required by appeal board decisions. Do not
include minimum cost differential in the computation of any of these
data elements. If a valid conversion and/or comparison was not
conducted (i.e., all bidders or offerors disqualified, no bids or offers
received, etc.) do not complete data elements (33), (34) and (36) of
this section. Explain lack of valid cost data in data element (56),
''DoD Component Comments'' of this section.
(33) First Performance Period. Expressed in months, the length of
time covered by the contract. Do not include any option periods.
(34) Conversion and/or Comparison Period. Expressed in months, the
total period of operation covered by the conversion or cost comparison;
this is the period used as the basis for data elements (35) and (36) of
this section.
(35) Total In-House Cost ($000). Enter the total estimated cost of
in-house performance for the base year plus option years, in thousands
of dollars, rounded to the nearest thousand. An entry is required
although the activity remains in-house due to absence of a satisfactory
commercial source (No entry required for a direct conversion).
(36) Total Contract Cost ($000). Enter the total estimated cost of
contract performance for the base year plus option years, in thousands
of dollars, rounded to the nearest thousand.
(37) Scheduled Contract or MEO Start Date. Date the contract and/or
MEO was scheduled to start at the beginning of a conversion and/or
comparison.
The entries in this section identify the contract or MEO start date
and the personnel actions taken as a result of the conversion and/or
comparison.
The DoD Component shall enter the following data elements in the
first quarterly update subsequent to the start of the contract:
(38) Contract and/or MEO Start Date. The actual date the contractor
began operation of the contract or the Government implements the MEO.
(39) Permanent Employees Reassigned to Equivalent Positions. The
number of permanent employees who were reassigned to positions of
equivalent grade as of the contract start date.
(40) Permanent Employees Changed to Lower Positions. The number of
permanent employees who were reassigned to lower grade positions as of
the contract start date.
(41) Employees Taking Early Retirement. The number of employees who
took early retirement as of the contract start date.
(42) Employees Taking Normal Retirement. The number of employees who
took normal retirement as of the contract start date.
(43) Permanent Employees Separated. The number of permanent
employees who were separated from Federal employment as of the contract
start date.
(44) Temporary Employees Separated. The number of temporary
employees who were separated from Federal employment as of the contract
start date.
(45) Employees Entitled to Severance Pay. The estimated number of
employees entitled to severance pay on their separation from Federal
employment as of the contract start date.
(46) Total Amount of Severance Entitlements ($000). The total
estimated amount of severance to be paid to all employees, in thousands
of dollars, rounded to the nearest thousand, as of the contract start
date.
(47) Number of Employees Hired by the Contractor. The number of
estimated DoD civilian employees (full-time or otherwise) that will be
hired by the contractors, or their subcontractors, at the contract start
date.
(48) Filed. Were administrative appeals filed?
N -- No
Y -- Yes
(49) Source. Who filed the appeal?
B -- Both
C -- Contractor
I -- In-House
(50) Result. Were the appeals finally upheld? (if both appealed,
explain result in data element (56) of this section).
N -- No
P -- Still in Progress
Y -- Yes
(51) Filed. Was a protest filed with GAO?
N -- No
Y -- Yes
(52) Source. Who filed the protest?
B -- Both
C -- Contractor
I -- In-House
(53) Result. Was the protest finally upheld? (explain result in
data element (56), of this section).
N -- No
P -- Still in Progress
Y -- Yes
(54) Requested. Was there a request for arbitration?
N -- No
Y -- Yes
(55) Result. Was the case found arbitrable? (explain result in data
element (56), of this section).
N -- No
P -- Still in Progress
Y -- Yes
(56) DoD Component Comments. Enter comments, as required, to explain
situations that affect the conduct of the conversion and/or comparison.
Where appropriate, precede each comment with the CAMIS data element
being referenced.
(57) Effective Date. ''As of'' date of the most current update for
the conversion and/or comparison. This data element will be completed
by the DMDC.
(58) (Leave blank, for DoD computer program use).
The entries in this section identify information on subsequent
performance periods and miscellaneous contract data. The DoD Component
shall enter the following data elements in the first quarterly update
annually:
(59) Actual Contract Cost First Performance Period ($000). Enter the
actual contractor cost for the first performance period, in thousands of
dollars, rounded to the nearest thousand.
(60) Actual Contract Cost Second Performance Period ($000). Enter
the actual contractor cost for the second performance period, in
thousands of dollars, rounded to the nearest thousand.
(61) Actual Contract Cost Third Performance Period ($000). Enter the
actual contractor cost for the third performance period, in thousands of
dollars, rounded to the nearest thousand.
(62) Contractor Change. Enter one of the following alpha designators
to indicate whether the contractor for the second or third performance
period has changed from the original contractor.
N -- No, the contractor has not changed
Y -- Yes, the contractor has changed
Data elements (63) through (64) of this section are not required if
the answer to (62) of this section is no (N).
(63) New Contractor Size. (If data element (64) of this section
contains the alpha designator ''I'' or ''R,'' no entry is required)
L -- New contractor is large business
S -- New contractor is small and/or small disadvantaged business.
(64) Reason For Change. DoD Components shall enter one of the
following designators listed in the following, followed by the last two
digits of the FY in which the change occurred.
C -- Contract workload consolidated with other existing contract
workload.
D -- New contractor takes over because original contractor defaults.
I -- Returned in-house because of original contractor defaults;
etc., within 6 months of start date and in-house bid is the next lowest.
N -- New contractor replaced original contractor because Government
opted not to renew contract in option years.
R -- Returned in-house temporarily pending resolicitation due to
contract default, etc.
U -- Contract workload consolidated with other existing contract
workload.
X -- Other-Function either returned in-house or eliminated because of
base closure, realignment, budget reduction or other change in
requirements.
(65) Contract Administration Staffing. The actual number of contract
administration personnel hired to administer the contract.
(50 FR 40805, Oct. 7, 1985, as amended at 57 FR 29212, July 1, 1992)
32 CFR 169a.22 Pt. 169a, App. D., Note
Effective Date Note: At 57 FR 29212, July 1, 1992, appendix D to
part 169 was amended by revising the two undesignated paragraphs in the
introductory text and part II in the introductory text; Camis Entry and
Update Instruction, Part I, Section One is amended by Paragraph (16)
being redesignated as (15); paragraph (10) was amended after ''Appendix
A'' by adding ''of this part''; revising ''activity'' to read ''CA'';
and by revising ''This'' to read ''There''; paragraph (12) was amended
by revising ''update'' to read ''updates'' and by removing the word
''listings''; paragraph (12)B was amended in the parenthetical phrase
by revising ''(16)'' to read ''(15)''. Paragraphs (2), (3)D, (3)K,
(3)Y, (5), (6), (13). (14), and new (15) were revised. Paragraph (8)
was removed. Section Two, the introductory text, was amended by
revising ''manpower'' to read ''personnel''; paragraph (20) was amended
by revising ''(14) and (15)'' to read ''(13) and (14)''; paragraph (22)
was amended in the heading after the word ''Baseline'' both times it
appears by adding ''Annual''. Paragraph (17) was removed and paragraphs
(19) B and C were revised. Section Four, the introductory text, was
amended by revising ''form'' to read ''record''; paragraph (28) was
amended by revising ''formal advertised'' to read ''sealed bid'';
paragraph (30) was amended by removing ''either'' and adding a new entry
''O'' to read: ''O -- Other''; paragraph (31) was removed and
reserved; paragraph (31a) was amended by adding a period at the end of
the heading and adding the phrase ''Enter one of the following'' after
the heading. Paragraph (32) was amended by revising the second sentence
to read ''* * * Do not include the minimum cost differential 9line 14 in
CCF or line 16 in the ENCR CCF) in the computation of any of these data
elements. * * *''. Paragraph (35) was amended by revising the last
sentence to read ''This is the total of line 6 of the new CCF or line 8
of the ENCR CCF. An entry is required although the activity remains
in-house due to absence of a satisfactory commercial source.'' Paragraph
(36) was amended by revising the last sentence to read: ''This is the
total of line 13 of the CCF or line 15 of the ENCR CCF.'' Paragraph (37)
was revised. Sections Five and Six and Part II were revised, effective
July 8, 1992. For the convenience of the reader, the superseded text
appears below.
32 CFR 169a.22 Appendix D to Part 169a -- Commercial Activities
Management Information System (CAMIS)
Upon approval of a full cost comparison, a simplified cost
comparison, or a direct conversion of an exclusively military personnel
commercial activity, the DoD Component shall create the initial entry
using the format at attachment 1 for cost comparisions and attachment 2
for direct conversions. Quarterly printouts of cost comparison records
(CCRs) and direct conversion records (DCRs) shall be provided to the DoD
Component by the DMDC. The DoD Component shall annotate the printout
and return it to DMDC within 30 days of the end of each quarter. DMDC
then shall use these annotated printouts to update the CAMIS and shall
return the updated printout along with the annotated printout within 2
weeks. Instead of this manual update procedure, the DoD Component may
submit automated data (tape or cards) to the DMDC.
At the completion of all required data entries, DMDC shall flag the
record as being complete and it will no longer be included in the
printout provided quarterly to the DoD Component for update. All
records, flagged or ongoing, shall be included in the printout provided
to each DoD Component at the end of the fiscal year and upon request.
The record for each direct conversion is divided into five sections.
Each of the first four sections is completed immediately following the
completion of the following events.
1. Direct conversion is approved.
2. Solicitation is issued.
3. Contract is awarded
4. Contract starts.
The fifth section is utilized to record contract cost and subsequent
contract actions during the second and third year of contract operation.
The data elements that comprise these five sections are defined in
this appendix.
All entries in this section of the CCR shall be submitted by DoD
Components upon approving the start of a cost comparison.
(2) Announcement/Approval Date. The date of the congressional
notification required by Section 502(a)(2)(A) or the date the DoD
Component headquarters approves a cost comparison that does not require
congressional notification.
D -- Office of the Secretary of Defense -- OCHAMPUS
K -- Defense Communications Agency
Y -- Defense Audio Visual Agency
(4)* * * * *
If the DoD Component chooses to submit this on cards or tape, the
format should be as follows:
(5) Installation Code. The code established by the DoD Component
headquarters to identify the installation where the commercial
activity(s) under cost comparison is/are located physically. Two or
more codes (for cost comparison packages encompassing more than one
installation) should be separated by commas. A separate look-up listing
or file shall be provided to DMDC showing each unique installation code
and its corresponding installation name. If the DoD Component chooses
to submit this on cards or tape, the format should be as follows:
1-10 (left justify) -- installation code
11 -- blank
12-80 (left justify) -- installation name
DMDC shall generate the installation name corresponding to the
installation code submitted by the DoD Component and display it with the
code on the quarterly printout that is provided to the DoD Component for
update.
(6) State Code. A two-position numeric code for the State or U.S.
Territory as shown in Appendix B, attachment 1, where element (5) is
located. Two or more codes shall be separated by commas.
(8) JIRSG AREA CODE. The JIRSG Area that (5) is assigned to for
coordination of the DRIS Program. This is a four-character
alpha/numeric data element. For instance, ''N015'' is the National
Capitol Region (as published in the DRIS Point of Contact Directory).
NOTE: A DoD Component may, at its option, report corresponding
multiple values for the following geographical data elements: state
code, congressional district, and JIRSG area code. These values shall
be grouped and punctuated as shown in the example below so that the
proper relationship can be established between each installation code
value and its corresponding set of geographical attribute values.
When multiple values within a data element are reported for a single
installation code semicolons shall be used to separate each series of
values and to indicate correspondence of each series to its respective
installation value; commas shall be used to separate the values within
a series. When only a single value (within a data element) is reported
for each installation, the value shall be separated by commas. To
denote an unknown or missing number of a series of values, the asterisk
(*) symbol should be used.
The cost comparison package above involves three installations:
AAAAA, BBBBB, and CCCCC. The first is located in Georgia, the second in
California, and the third in New Jersey. AAAAA is in the Georgia's 5th
and 6th congressional districts, BBBBB is in California's 42nd district,
and CCCCC is in New Jersey's 15th. The first two installations are in
JIRSG areas S003, and WE10, respectively; CCCCC is not in a JIRSG area.
(13) CBD/FR Dates. 169a.15 of this part requires DoD Components to
publish their schedules for conducting cost comparisons in the CBD and
the FR. These dates will reflect when the activity undergoing cost
comparison was indentified in these publications as a cost comparison.
The CBD date shall be listed first, followed by a comma and the FR date.
(15) Revised/Original Cost Comparison Number. The number of the cost
comparison (revised cost comparison number). This cost comparison has
been consolidated into or the number of the cost comparison (original
cost comparison number) from which cost comparison has been broken out.
When a consolidation occurs a new CCR containing the attributes of
the consolidated cost comparison. In the CCR of each cost comparison
being consolidated, enter the cost comparison number of the new CCR in
data element (16) and code ''Z'' in data element (12). In the new CCR,
data element (16) should be blank and data element (12) should denote
the current status of the cost comparison. Once the consolidation has
occured, only the new CCR requires future updates.
When a single cost comparison is being broken into multiple cost
comparisons, create a new CCR for each cost comparison broken out from
the original cost comparison. Each new CCR shall contain its own unique
set of attributes; in data element (16) enter the cost comparison
number of the original cost comparison from which each was derived, and
in data element (12), enter the current status of each cost comparison.
For the original cost comparison, data element (16) should be blank and
data element (12) should have a code ''B'' entry. Only the derivative
record entries require future updates.
When a consolidation or a breakout, an explanatory remark shall be
entered in data element (57) (such as, ''part of SW region cost
comparison,'' or, ''separated into three cost comparisons'').
(17) Date Solicitation Issued. The date the solicitation is issued
by the contracting officer.
(19)* * * * *
B -- Small Business Administation 8(a)
C -- National Industries for the Severely Handicapped (NISH)
(24) Cost Comparison/Initial Decision Date. Date the initial
decision is announced. The initial decision is based on the apparent
low bid or offer and is subject to preaward surveys and resolution of
all appeals and protests. In a formal advertised procurement, the
initial decision is announced at bid opening. In a negotiated
procurement, the initial decision is announced when the cost comparison
is made between the in-house estimate and the proposal of the selected
offeror.
(26) Cost Method Code. A one-character numeric designator indicating
the procedures under which the cost comparison was/is being conducted.
Enter one of the following codes:
1 -- Cost comparison conducted under the incremental costing
procedures in effect before 1980.
2 -- Cost comparison conducted using the full costing procedures in
DoD 4100.33-H of February 1980.
3 -- Cost comparison conducted under the alternative costing
procedures implemented in Department of Defense in March 1982.
4 -- Cost comparison conducted under the new costing procedures in
the OMB Circular A-76 published August 4, 1983 and implemented in
Department of Defense DoD in March 1984.
(27) Number of Bids or Offers Received. The number of commercial
bids or offers received by the contracting officer in response to the
solicitation.
Contract or Commercial Activity Cancels the
Solicitation
The entries in this section identify the final result, information on
the contract, the in-house bid, and costing information from the cost
comparison form.
The DoD Component shall enter the following data elements in the
first quarterly update subsequent to the date the contracting officer
either awards a contract or cancels the solicitation:
(31) Contract-Type Code. Enter one of the following alpha codes for
the type of contract used in the cost comparison. This entry is
required for all completed studies, regardless of their outcome.
FFP -- Firm Fixed Price
FP-EPA -- Fixed Price with Economic Price Adjustment
FPI -- Fixed Price Incentive
CPIF -- Cost Plus Incentive Fee
CPAF -- Cost Plus Award Fee
CPFF -- Cost Plus Fixed Fee
(32)* * * * *This entry will be equal to the number of annual
workyears in the in-house bid.
(35)* * * * *This is the total of line 9 plus line 22 of the old CCF
(line 6 of the new CCF or line 8 of the new ENRC CCF).
(36)* * * * *This is the total of line 17 plus line 30 of the old
cost comparison form (line 13 of the new CCF or line 15 of the new ENRC
CCF.
(37)NOTIFIcommercial activityTION DATE. The date Congress is
notified, if required, that the DoD Component intends to convert a
commercial activity to contract performance.
The entries in this section identify the contract start date and the
personnel actions taken as a result of the cost comparison.
The DoD Component shall enter the following data elements in the
first quarterly update subsequent to the start of the contract:
(38) Contract Start Date. The actual date the contractor began full
operation of the commercial activities, as reflected in the contracting
documents.
(39) Permanent Employees Transferred to Equal Positions. The number
of permanent employees who were reassigned to positions of equivalent
grade as of the start date of the contract.
(40) Permanent Employees Transferred to Lower Positions. The number
of permanent employees who were changed to lower grade positions as of
the start date of the contract.
(41) Employees Taking Early Retirement. The number of employees who
took early retirement as of the start date of the contract.
(42) Employees Taking Normal Retirement. The number of employees who
took normal retirement as of the start date of the contract.
(43) Permanent Employees Separated. The number of permanent
employees who were separated from Federal employment as of the start
date of the contract.
(44) Temporary Employees Separated. The number of temporary
employees who were separated from Federal employment as of the start
date of the contract.
(45) Employees Entitled to Severance. The estimated number of
employees entitled to severance upon their separation from Federal
employment as of the start date of the contract.
(46) Total Amount of Severance Entitlements ($000). The total
estimated amount of severance to be paid to all employees, in thousands
of dollars as of the start date of the contract.
(47) Number of Employees Hired by the Contractor. The number of DoD
civilian employees (full-time or otherwise) that will be hired by the
contractors, or his or her subcontractors estimated at the start date of
the contract.
(48) Filed -- Were administrative appeals filed? Answer: Y or N
(49) Source -- Who filed the appeal? Answer: In-house (enter I),
contractor (C), or both (B).
(50) Result -- Were the appeals finally upheld? Answer: Y or N (if
both appealed, explain result in data element (57)).
(51) Filed -- Was a protest filed with GAO? Answer: Y or N
(52) Source -- Who filed the protest? Answer: In-house (enter I),
contractor (C -- ), or both (B).
(53) Result -- Was the protest finally upheld? Answer: Y or N
(explain result in data element (57)). If GAO protest is still in
progress as of the start date of the contract, enter P.
(54) Requested -- Was the Federal Labor Relations Authority (FLRA)
asked to arbitrate? Answer: Y or N
(55) Result -- Was the case found arbitrable. Answer: Y or N
(explain result in data element (57)). If arbitration is still in
progress as of the start date of the contract, enter P.
(56) Staff-Hours Expended. Reflect the estimated number of staff
hours expended by the installation on the cost comparison from the time
it was announced until the final decision was made. Do not include any
time that was spent on general policy or procedures applicable to all
studies.
(57) DOD Component Comments. Enter comments, as required, to explain
situations that affect the conduct of the cost comparison.
(58) Effective Date. ''As of'' date of the most current update for
the cost comparison. Will be generated by DMDC.
(59) (Leave blank, for DoD Computer Program use).
The entries in this section identify actual contract costs and
original contract bid and information or subsequent contract actions.
This data shall be utilized to determine the accuracy of the cost
comparison.
The DoD Component shall enter the following data elements in the
first quarterly update subsequent to the receipt of actual annual
contract cost data.
(60) Contract Bid/Offer ($000). Enter the contractor bid price or
offer reflected in column one (the first performance period) of the CCF
in thousands of dollars, rounded to the nearest thousand. This is line
10, column 1, of the old CCF (line 7 of the new CCF or line 9 of the new
ENRC CCF).
(61) Actual Contract Cost First Performance Period ($000). Enter the
actual contract for the first performance period, including all change
orders, in thousands of dollars, rounded to the nearest thousand.
(62) Actual Contract Cost Second Performance Period ($000). Enter
the actual contract cost for the second performance period, including
all change orders, in thousands of dollars, rounded to the nearest
thousand.
(63) Actual Contract Cost Third Performance Period ($000). Enter the
actual contract cost for the third performance period, including all
change orders, in thousands of dollars, rounded to the nearest thousand.
(64) Contractor Change. Enter one of the following alpha codes to
indicate whether the contract for the second or third performance period
has changed from the original contractor.
Y -- Yes, the contractor has changed
N -- No, the contractor has not changed
Data elements (65) through (66) are not required if the answer to
(64) is no (N).
(65) Prime Contractor Size
S -- New contractor is small/small disadvantaged business
L -- New contractor is large business
(66) Reason for Change
I -- Performance Returned In-House
U -- Contract workload consolidated into a larger (umbrella) cost
comparison
C -- Contract workload consolidated with other existing contract
workload
The bracketed number preceding each definition in sections one
through four is the DoD data element number. All date fields should be
in the format MMDDYY (such as, June 30, 1983=063083).
All entries in this section of the DCR shall be submitted by DoD
Components upon approval of a direct conversion. These entries shall be
used to establish the DCR and to identify the geographical,
organizational, political, and functional attributes of the commercial
activity(s) scheduled for conversion to contract without a cost
comparison.
DoD Conponents shall enter the following data elements to establish a
DCR:
(1) Direct Conversion Number. The number assigned by the DoD
Component to uniquely identify a specific direct conversion. The first
character of the direct conversion number must be a letter designating
the DoD Component as noted in data element (3), below. The number may
vary in length from five to ten characters, of which the second and
subsequent may be alpha or numeric and assigned under any system desired
by the DoD Component.
(2) Approval Date. The date the direct conversion was approved.
(3) DOD Component Code. Use the following codes to identify the
Military Service or Defense Agency converting the commercial activity(s)
to contract:
A -- Department of the Army
B -- Defense Mapping Agency
C -- Strategic Defense Initiatives Organization
D -- Office of the Secretary of Defense -- OCHAMPUS
E -- Defense Advanced Research Projects Agency
F -- Department of the Air Force
G -- National Security Agency/Central Security Service
H -- Defense Nuclear Agency
J -- Joint Chiefs of Staff (including the Joint Staff, Unified and
Specified Commands, and Joint Service Schools)
K -- Defense Communications Agency
L -- Defense Intelligence Agency
M -- United States Marine Corps
N -- United States Navy
R -- Defense Contract Audit Agency
S -- Defense Logistics Agency
T -- Defense Security Assistance Agency
V -- Defense Investigative Service
W -- Uniformed Services University of the Health Sciences
X -- Inspector General, Department of Defense
Y -- Defense Audio Visual Agency
(4) Command Code. The code established by the DoD Component's
headquarters to identify the command responsible for operating the
commercial activity to be converted to contract. A separate look-up
listing or file shall be provided to DMDC showing each unique command
code and its corresponding command name. If the DoD Component chooses
to submit this on cards or tape, the format shall be as follows:
1-6 (left justify) -- command code
7 -- blank
8-80 (left justify) -- command name
(5) Installation Code. The code established by the DoD Component
headquarters to identify the installation where the commercial activity
to be converted to contract is located physically. Two or more codes
(for packages encompassing more than one installation) shall be
separated by commas. A separate look-up listing or file shall be
provided to DMDC showing each unique installation code and its
corresponding installation name. If the DoD Component chooses to submit
this on cards or tape, the format shall be as follows:
1-10 (left justify) -- installation code
11 -- blank
12-80 (left justify) -- installation name
DMDC shall generate the installation name corresponding to the
installation code submitted by the DoD Component, and display it with
the code on the quarterly printout that is provided to the DoD Component
for update.
(6) State Code. A two-position numeric code for the State or U.S.
Territory as shown in Appendix A, attachment 1, where element (5) is
located. Two or more codes should be separated by commas.
(7) Congressional District (CD). Number of the CD(s) where (5) is
located. If representatives are elected ''at large,'' enter ''01'' in
this data element; for a delegate or resident commissioner (such as,
District of Columbia or Puerto Rico) enter ''98''. If the installation
is located in two or more CDs, all CDs, should be entered and separated
by commas.
(8) JIRSG Area Code. The JIRSG area that (5) is assigned to for
coordination of the DRIS Program. This is a four-character
alpha/numeric data element. For instance, ''NO15'' is the National
Capitol Region (as published in the DRIS Point of Contact Directory).
Note: The DoD Component may, at its option, report corresponding
multiple values for the following geographical data elements: State
code, congressional district, JIRSG area code. These values shall be
grouped and punctuated as shown in the example below so that the proper
relationship can be established between each installation code value and
its corresponding set of geographical attribute values.
When multiple values within a data element are reported for a single
installation code, semicolons shall be used to separate each series of
values and to indicate correspondence of each series to its respective
installation code; commas shall be used to separate the values within a
series. When only a single value (within a data element) is reported
for each installation, the values should be separated by commas. To
denote an unknown or missing member of a series of values the asterisk
(*) symbol shall be used.
The direct conversion above involves three installations: AAAAA,
BBBBB, and CCCCC. The first is located in Georgia, the second in
California, and the third in New Jersey. AAAAA is in Georgia's 5th and
6th congressional districts (of Georgia), BBBBB is in California's 42nd
district, and CCCCC is in New Jersey's 15th. The first two
installations are in JIRSG areas SO03, and WE10, respectively; CCCCC is
not in a JIRSG area.
(9) DOD Functional Area Code(s). The four or five alpha/numeric
character designator listed in enclosure 3 that describes the type of
commercial activity to be converted to contract. This would be one code
for a single commercial activity or possibly several codes for a large
package. A series of codes shall be separated by commas.
(10) Status Code. A single alpha character that identifies the
current status of the conversion. Enter one of the following codes:
P -- In progress
C -- Complete
X -- Canceled. The DCR shall be excluded from future update
listings.
Z -- Consolidated. The conversion has been consolidated with one or
more other contracts into a single contract package. The DCR for the
contract that has been consolidated shall be excluded from future update
listings. (See data element (16).)
B -- Broken out. The conversion has been broken into two or more
separate contracts. The previous DCR shall be excluded from future
update listings. (See data element (16).)
(11a) Manpower Estimate Civilian and (11b) Manpower Estimate
Military. The number of civilian and military authorizations allocated
to the commercial activity(s) to be converted. This number in all cases
shall be those manpower figures identified in the correspondence
requesting the direct conversion.
(11c) Estimated In-House Cost. The annualized in-house cost
estimated in the simplified cost comparison prepared for request to
directly convert a commercial activity. This data element is not
applicable to direct conversions of exclusively military personnel
commercial activities.
(12) Estimated Contract Cost. The annualized contract cost estimated
in the simplified cost comparison prepared for request to directly
convert a commercial activity. Do not include the 10% cost of
conversion differential. This data element is not applicable to direct
conversions of exclusively military personnel commercial activities.
The entries in this section of the DCR provide information on the
manpower authorized to perform the workload in the PWS, the number of
workyears used to accomplish the workload in the PWS, the type and kind
of solicitation, and the number of bids or offers received.
The DoD Component shall enter the following data elements at the
first quarterly update subsequent to the issuance of the solicitation:
(13) Date Solicitation Issued. The date the solicitation was issued
by the contracting officer.
(14) Solicitation-Type Code. A one-character alpha designator that
identifies the type of solicitation used to obtain contract bids or
offers. Use either the CBD as the source document or information
received from the contracting officer for this entry. Solicitations
under Section 8(a) of the Small Business Act are negotiated. Enter one
of the following codes:
S -- Sealed Bid
N -- Negotiated
(15) Solicitation-Kind Code. A one-character (or two-character, if
''W'' suffix is used) alpha designator indicating whether the
solicitation for the contract has been limited to a specific class of
bidders or offerors. Use either the CBD as the source document or
information received from the contracting officer to enter one of the
following codes:
A -- Restricted to small business
B -- Small Business Administration 8(a)
C -- National Industries for the Severely Handicapped (NISH)
D -- Other mandatory sources
U -- Unrestricted
W -- (optional suffix) Unrestricted after initial restriction
(16) Current Authorized Civilians and (17) Current Authorized
Military. The number of civilian and military authorizations allocated
on the DoD Component's Manpower documents to perform the work described
in the PWS. This number refines the initial authorization estimate
(section one, data elements (11) and (12)).
(18) Baseline Annual Workyears Civilian and (19) Baseline Annual
Workyears Military. The number of annual workyears it has taken to
perform the work described in the PWS.
(20) Number of Bids or Offers Received. The number of commercial
bids or offers received by the contracting officer in response to the
solicitation.
or Cancels the Solicitation
The entries in this section provide information on the contract.
The DoD Component shall enter the following data elements in the
first quarterly update subsequent to the date of contracting officer
either awards a contract or cancels the solicitation:
(21) Contract Award/Solicitation Cancellation Date. This is the date
a contract shall be awarded in a formal advertised solicitation or the
date the contractor shall be authorized to proceed on a conditioned
award contract in a negotiated solicitation. For retentions in-house,
this is the date the solicitation is canceled (when the contracting
officer publishes an amendment to the solicitation canceling it).
(22) Contract-Type Code. Enter one of the following alpha codes for
the type of contract used in the direct conversion.
FFP -- Firm Fixed Price
FP-EPA -- Fixed Price with Economic Price Adjustment
FPI -- Fixed Price Incentive
CPIF -- Cost Plus Incentive Fee
CPAF -- Cost Plus Award Fee
CPFF -- Cost Plus Fixed Fee
(23) Prime Contractor Size
S -- Small/small disadvantaged business
L -- Large business
(24) Performance Period. Expressed in months, the length of time
covered by the contract. Do not include any option periods.
The entries in this section identify the contract start date and the
personnel actions taken as a result of the direct conversion.
The DoD Component shall enter the following data elements in the
first quarterly update subsequent to the start of the contract:
(25) Contract Start Date. The actual date the contractor began full
operation of the commercial activity(s) as reflected in the contracting
documents.
(26) Permanent Employees Reassigned to Equivalent Positions. The
number of permanent employees who were reassigned to positions of equal
grade as of the start date of the contract.
(27) Permanent Employees Changed to Lower Positions. The number of
permanent employees who were reassigned to lower grade positions as of
the start date of the contract.
(28) Employees Taking Early Retirement. The number of employees who
took early retirement as of the start date of the contract.
(29) Employees Taking Normal Retirement. The number of employees who
took normal retirement as of the start date of the contract.
(30) Permanent Employees Separated. The number of permanent
employees who were separated from Federal employment as of the start
date of the contract.
(31) Temporary Employees Separated. The number of temporary
employees who were separated from Federal employment as of the start
date of the contract.
(32) Employees Entitled to Severance. The estimated number of
employees entitled to severance upon their separation from Federal
employment.
(33) Total Amount of Severance Entitlement ($000). The total
estimated amount of severance to be paid to all employees, in thousands
of dollars, as of the start date of the contract.
(34) Number of Employees Hired by the Contractor. The number of DoD
civilian employees (full-time or otherwise) that will be hired by the
contractor, or his or her subcontractors estimated at the start of the
contract.
(35) FILED -- Were administrative appeals filed? Answer: Y or N
(36) SOURCE -- Who filed the appeal? Answer: in-house (enter I),
contractor (C), or both (B).
(37) RESULT -- Were the appeals finally upheld? Answer: Y or N (if
both appealed, explain the result in data element (43)).
(38) FILED -- Was a protest filed with GAO? Answer: Y or N
(39) SOURCE -- Who filed the protest? Answer: in-house (enter I),
contractor (C), or both (B).
(40) RESULT -- Was the protest finally upheld? Answer: Y or N
(explain result in data element (43)). If GAO protest is still in
progress as of the start date of the contract, enter P.
(41) REQUESTED -- Was the FLRA asked to arbitrate? Answer: Y or N
(42) RESULT. Was the case found arbitrable? Answer: Y or N
(explain result in data element (43).) If arbitration is still in
progress as of the start date of the contract, enter P.
(43) DOD Component Comments. Enter comments, as required, to explain
situations that affect the direct conversion.
(44) Effective Date. ''As of'' date of the most current update for
the direct conversion. Shall be generated by DMDC.
The entries in this section five identify actual contract costs and
original contract bid and information on subsequent contract actions.
This data shall be utilized to determine the accuracy of the cost
comparison.
The DOD Component shall enter the following data elements in the
first quarterly update subsequent to the receipt of actual annual
contract cost data.
(45) Contract Bid/Offer ($000). Enter the contractor bid price or
offer.
(46) Actual Contract Cost First Performance Period ($000). Enter the
actual contract cost for the first performance period, including all
change orders, in thousands of dollars, rounded to the nearest thousand.
(47) Actual Contract Cost Second Performance Period ($000). Enter
the actual contract cost for the second performance period, including
all change orders, in thousands of dollars, rounded to the nearest
thousand.
(48) Actual Contract Cost Third Performance Period ($000). Enter the
actual contract cost for the third performance period, including all
change orders, in thousands of dollars, rounded to the nearest thousand.
(49) Contractor Change. Enter one of the following alpha codes to
indicate whether the contractor for the second or third performance
period has changed from the original contractor.
Y -- Yes, the contractor has changed
N -- No, the contractor has not changed
Data elements (50) through (51) are not required if the answer to
(49) is no (N).
(50) Prime Contractor Size
S -- New contractor is small/small disadvantaged business
L -- New contractor is large business
(51) Reason for Change
I -- Performance returned in-house
U -- Contract workload consolidated into a larger (umbrella) cost
comparison
C -- Contract workload consolidated with other existing contract
workload
(1) Cost Comparison Number:
(2) Announcement/Approval Date:
(3) DoD Component Code:
(4) Command Code:
(5) Installation Code:
(6) State Code:
(7) Congressional District:
(8) JIRSG Area Code:
(9) Title of Cost Comparison:
(10) DOD Function Area Code(s):
(11) Prior Operation Code:
(12) Cost Comparison Status Code:
(13) CBD/FR Dates ---- , ----
(14) Approval Announcement -- Manpower
Estimate Civilian:
(15) Approval Announcement -- Manpower
Estimate Military:
(16) Revised/Original Cost Comparison
Number:
(17) Date Solicitation Issued:
(18) Solicitation-Type Code:
(19) Solicitation-Kind Code:
(20) Current Authorized Civilians:
(21) Current Authorized Military:
(22) Baseline Workyears Civilian:
(23) Baseline Workyears Military:
(24) Cost Comparison/Initial
Decision Date:
(25) Cost Comparison Preliminary
Results Code:
(26) Cost Method Code:
(27) Number of Bids or
Offers Received:
(28) Contract Award/Solicitation
Cancellation Date:
(29) Cost Comparison Final
Result Code:
(30) Decision Rational Code:
(31) Contract-Type Code:
(31a) Prime Contractor Size:
(32) MEO Workyears:
(33) First Performance Period:
(34) Cost Comparison Period:
(35) Total In-House ($000):
(36) Total Contract Cost ($000):
(37) Notification Date:
(38) Contract Start Date:
(39) Permanent Employees Transferred
to Equal Positions:
(40) Permanent Employees Transferred
to Lower Positions:
(41) Employees Taking Early
Retirement:
(42) Employees Taking Normal
Retirement:
(43) Permanent Employees
Separated:
(44) Temporary Employees
Separated:
(45) Employees Entitled to
Severance:
(46) Total Amount of Severance
Entitlements ($000):
(47) Number of Employees Hired
by the Contractor:
Administrative Appeal
(48) Filed:
(49) Source:
(50) Result:
(51) Filed:
(52) Source:
(53) Result:
(54) Requested:
(55) Result:
(56) Staff Hours Expended:
(57) DoD Component Comments:
(58) Effective Date:
(59) (Leave blank)
(60) Contract Bid/Offer ($000):
(61) Actual Contract Cost First
Performance Period ($000):
(62) Actual Contract Cost Second
Performance Period ($000):
(63) Actual Contract Cost Third
Performance Period ($000):
(64) Contractor Change:
(65) Prime Contractor Size:
(66) Reason for Change:
(1) Direct Conversion Number:
(2) Approval Date:
(3) DoD Component Code:
(4) Command Code
(5) Installation Code:
(6) State Code:
(7) Congressional District:
(8) JIRSG Area Code:
(9) DoD Functional Area
Code(s):
(10) Status Code:
(11a) Manpower Estimate
Civilian:
(11b) Manpower Estimate
Military
(11c) Estimated In-House
Cost:
(12) Estimated Contract
Cost:
(13) Date Solicitation
Issued:
(14) Solicitation-Type
Code:
(15) Solicitation-Kind
Code:
(16) Current Authorized
Civilians:
(17) Current Authorized
Military:
(18) Baseline Annual Workyears
Civilian:
(19) Baseline Annual Workyears
Military:
(20) Number of Bids or
Offers Received:
(21) Contract Award/Solicitation
Cancellation Date:
(22) Contract-Type Code:
(23) Prime Contractor Size:
(24) Performance Period:
(25) Contract Start Date:
(26) Permanent Employees Reassigned to
Equivalent Positions:
(27) Permanent Employees Changed
to Lower Positions:
(28) Employees Taking Early
Retirement:
(29) Employees Taking Normal
Retirement
(30) Permanent Employees
Separated:
(31) Temporary Employees
Separated:
(32) Employees Entitled to
Severance:
(33) Total Amount of Severance
Entitlement ($000):
(34) Number of Employees Hired
by the Contractor:
(35) Filed:
(36) Source:
(37) Result:
(38) Filed:
(39) Source:
(40) Result:
(41) Requested:
(42) Result:
(43) DoD Component Comments:
(44) Effective Date:
(45) Contract Bid/Offer ($000):
(46) Actual Contract Cost First
Performance Period ($000):
(47) Actual Contract Cost Second
Performance Period ($000):
(48) Actual Contract Cost Third
Performance Period ($000):
(49) Contractor Change:
(50) Prime Contractor Size:
(51) Reason for Change:
Effective Date Note: At 57 FR 29218, July 1, 1992, appendix E to
part 169a was removed. effective July 8, 1992. For the convenience of
the user the removed appendix E reads as follows.
32 CFR 169a.22 Pt. 169a, App. E, Note
32 CFR 169a.22 Appendix E to Part 169a -- Public Law 96-342, as Amended
by Public Law 97-252 (Hereafter Referred to as Section 502)
Section 502. (a) No commercial or industrial type function of the
Department of Defense that on October 1, 1980, is being performed by the
Department of Defense civilian employees may be converted to performance
by a private contractor --
(1) to circumvent any civilian personnel ceiling or
(2) unless the Secretary of Defense provides to the Congress in a
timely manner --
(A) notification of any decision to study such commercial or
industrial type function for possible performance by a private
contractor
(B) a detailed summary of a comparison of the cost of performance of
such function by Department of Defense civilian employees and by private
contractor which demonstrates that the performance of such function by a
private contractor will result in a cost savings to the Government over
the life of the contract and a certification that the entire cost
comparison is available;
(C) a certification that the Government calculation for the cost of
performance of such function by Department of Defense civilian personnel
is based on an estimate of the most efficient and cost effective
organization for performance of such function by Department of Defense
personnel; and
(D) a report to be submitted with the certification required by
subparagraph (C) showing --
(i) the potential economic effect on employees affected, and the
potential economic effect on the local community and the Federal
Government if more than 50 employees are involved of contracting for
performance of such function;
(ii) the effect of contracting for performance of such function on
the military mission of such function; and
(iii) the amount of the bid accepted for the performance of such
function by the private contractor whose bid is accepted and the cost of
performance of such function by Department of Defense civilian
employees, together with costs and expenditures which the Government
will incur because of the contract.
(b) If, after completion of the studies required for completion of
the certification and report required by subparagraphs (C) and (D) of
subsection (a)(2), a decision is made to convert to contractor
performance, the Secretary of Defense shall notify Congress of such
decision.
(c) The Secretary of Defense shall submit a written report to the
Congress by February 1 of each fiscal year describing the extent to
which commercial and industrial type functions were performed by
Department of Defense contractors during the preceding fiscal year. The
Secretary shall include in each such report an estimate of the
percentage of commercial and industrial type functions of the Department
of Defense that will be performed by Department of Defense civilian
employees, and the percentage of such functions that will be performed
by private contractors, during the fiscal year during which the report
is submitted.
(d) Except as provided in subsection (a)(1), subsections (a) through
(c) shall not apply to a commercial or industrial type function of the
Department of Defense that is being performed by ten or fewer Department
of Defense civilian employees.
(e) In no case may any commercial or industrial type function being
performed by Department of Defense personnel be modified, reorganized,
divided, or in any way changed for the purpose of exempting from the
requirements of subsection (a)(2) the conversion of all or any part of
such function to performance by a private contractor.
(f) The provisions of this section shall not apply during war or a
period of national emergency declared by the President or the Congress.
Effective Date Note: At 57 FR 29128, July 1, 1992, appendix E to
part 169a was removed, effective July 8, 1992.
32 CFR 169a.22 PART 172 -- DISPOSITION OF PROCEEDS FROM DOD SALES OF
SURPLUS PERSONAL PROPERTY
Sec.
172.1 Purpose.
172.2 Applicability and scope.
172.3 Policy.
172.4 Responsibilities.
172.5 Procedures.
172.6 Information requirements.
Appendix A to Part 172 -- Efforts and Costs Associated With the
Disposal of Recyclable Material
Appendix B to Part 172 -- Disposition of Amounts Collected From
Successful Bidders
Authority: 40 U.S.C. 484 and 485, 10 U.S.C. 2577.
Source: 54 FR 35483, Aug. 28, 1989, unless otherwise noted.
32 CFR 172.1 Purpose.
This document provides revised and expanded instructions on the
collection and disposition of cash and cash equivalents received by the
DoD Components for the DoD sale of surplus personal property.
32 CFR 172.2 Applicability and scope.
This part:
(a) Applies to the Office of the Secretary of Defense (OSD), the
Military Departments, the Joint Chiefs of Staff (JCS) and the Joint
Staff, the Unified and Specified Commands, the Inspector General of the
Department of Defense (IG, DoD), the Defense Agencies, and DoD Field
Activities (hereafter referred to collectively as ''DoD Components'').
(b) Applies to the proceeds resulting from sales made under authority
of Public Law 152 and to the following:
(1) Personal property governed by DoD 4160.21-M.
(2) Surplus Government-owned personal property in the possession of
contractors, as described in FAR subpart 45.6.
(3) Recyclable material governed by 10 U.S.C. 2577. Such materials
would otherwise be sold as scrap or discarded as waste, but are capable
of being reused after undergoing some type of physical or chemical
processing. The recycling of hazardous materials or hazardous waste
shall be accomplished with due recognition of the types of materials
being processed and the applicable regulation governing the handling and
disposal of such materials. Qualified recyclable materials do not
include the following:
(i) Precious metal-bearing scrap and those items that may be used
again for their original purposes or functions without any special
processing; e.g., used vehicles, vehicle or machine parts, bottles (not
scrap glass), electrical components, and unopened containers of oil or
solvent.
(ii) Ships, planes, or weapons that must undergo demilitarization or
mutilation before sale.
(iii) Scrap generated from DoD industrial fund (IF) operations that
has been routinely sold with the proceeds being used to offset customer
costs.
(iv) Bones, fats, and meat trimmings generated by a commissary store
or exchange.
32 CFR 172.3 Policy.
(a) Cash or cash equivalents in the prescribed amounts shall
accompany bid deposits for a bid to be considered responsive.
Similarly, cash or cash equivalents for the total sales price shall be
received by the DoD Components or, in authorized cases, by contractors
before the transfer of physical possession to the successful bidder.
(b) Amounts collected by the DoD Components in connection with the
sale of excess and surplus property shall be deposited promptly to the
U.S. Treasury accounts prescribed in accordance with this instruction.
The use of suspense accounts shall be minimal. If the account,
ultimately to be credited with the proceeds of a sale, can be determined
reasonably at the time funds are collected, the deposit shall be made
immediately to that account.
(c) The Secretary of each Military Department shall establish
qualified recycling programs. The effort associated with the
collecting, processing and selling of recyclable material is in appendix
A to this part.
(1) Proceeds from the sale of recyclable material shall be used to
reimburse installation-level costs incurred in operation of the
recyclable program.
(2) After reimbursement of the cost incurred by the installation to
operate the recycling program, installation commanders may use up to 50
percent of remaining sale proceeds for pollution abatement, energy
conservation, and occupational safety and health activities. A project
may not be carried out for an amount greater than 50 percent of the
amount established by law as the maximum amount for a minor construction
project.
(3) Any sale proceeds remaining after paragraphs (c)(1) and (2) of
this section may be transferred to installation morale or welfare
activities.
32 CFR 172.4 Responsibilities.
The Heads of DoD Components that sell surplus personal property shall
implement the procedures prescribed in this part for the disposition of
cash and cash equivalents received in connection with such sales.
32 CFR 172.5 Procedures.
(a) Required bid deposits. When a sale conducted by a DoD Component
provides for bid deposit with subsequent removal, the following
procedures shall apply:
(1) Term bid. This type of bid deposit is applicable when the sale
involves the purchase of scrap or disposable material that will be
generated over time with periodic removal by the successful bidder. The
amount of the bid deposit required to accompany such bids is the average
estimated quantity of such material to be generated during a 3 month
period multiplied by 20 percent of the bid price. The calculation is
illustrated, as follows:
(2) Other than term bid. With the exception of term bids, payment in
the amount of 20 percent of the bid shall accompany the bid.
(b) Payment terms. When a sale conducted by a DoD Component provides
for immediate pickup, the entire amount of the sales price shall be
collected from the buyer at the conclusion of the sale. If the sale
provides for a bid deposit, the balance of the bid price shall be paid
before removal of the property.
(c) Form of payment -- (1) Cash and certified checks. When a sale is
conducted by a DoD Component, cash or its equivalent shall be collected
for bid deposits and for remaining amounts due. Guaranteed negotiable
instruments, such as cashiers checks, certified checks, travelers
checks, bank drafts, or postal money orders are acceptable as a cash
equivalent.
(2) Personal checks. Personal checks may be accepted by a DoD
Component only when a performance bond or a bank letter of credit is on
hand that will cover the amount due. If the check is dishonored,
amounts due shall be collected from the issuer of the performance bond
or letter of credit.
(i) If a bidder intends to use a bond or letter of credit without an
accompanying personal check, the claim against the performance bond or
letter of credit shall be made for any amounts due.
(ii) If personal checks are used, the bond or letter of credit shall
be returned intact after the applicable personal checks are honored,
unless other instructions have been received from the bidder.
(2) Credit cards. Approved credit cards may be accepted by a DoD
Component for payment.
(i) Before initiating any credit card transactions, the selling DoD
Component shall enter into an agreement with a network commercial bank.
Currently, the Treasury has approved the use of ''Master Card'' and
''Visa'' charge cards. Changes or additions to approved credit cards
are announced in Comptroller of the Department of Defense (C, DoD)
memoranda or in changes to the TFM. Except for equipment and
communication costs, the Treasury pays any fees normally charged to
sellers. If the Treasury policy of paying such charges is changed, any
charges for the processing of approved credit card transactions shall be
assessed to the buyer.
(ii) If a credit card is used for the bid deposit and authorization
is declined, the bid shall be rejected as nonresponsive and other
bidders considered.
(iii) Approval for charges against credit cards shall be processed as
follows:
(A) The credit card presented shall be passed through the DoD
installation's credit card swiper. The swiper is connected
electronically with the network commercial bank selected by the DoD
Component, and keys are provided to enter the proposed charge amount.
If the charge is approved, the swiper will provide an approval number
that shall be recorded on the charge slip.
Note: A swiper is an electronic device that is used to capture the
magentic information contained on a credit card and transmit it to the
network commercial bank for validation and authorization of a sale. The
information captured normally includes the account number, issuing bank,
date of expiration of the card, and any credit restrictions that may
apply.
(B) The bidder shall sign a standard credit card charge form at the
sale contracting office. A copy of this form shall be returned to the
card holder at that time. A copy of the charge slip shall be retained
by the selling DoD activity as a record of the sale. On the following
business day, the installation finance and accounting officer or the
activity providing accounting support shall submit the signed credit
card forms with a supporting cover sheet showing the total charges to
the network commercial bank. Accounting control must be maintained over
such in-transit deposits.
(C) On receipt of the credit card charge forms, the network
commercial bank shall charge the bidder's credit card account and
deposit the funds to the Treasury general account. The network
commercial bank also is required to forward a copy of the deposit slip
to the DoD installation making the sale within 1 business day. On
receipt of the deposit slip, the in-transit account shall be cleared and
appropriate accounts credited following the procedures in paragraph (d)
of this section:
(iv) If a contractor's bid is provided by message, mail, or telephone
to the U.S. Government using a credit card instead of other forms of
payment, the following information is required:
(A) Account number.
(B) Bidders name, as it appears on the credit card.
(C) Date of expiration of the card.
(D) Issuing bank.
(E) Type of card.
Any additional cost incurred by the Department of Defense in
connection with the use of the charge card, such as telephone calls to
obtain approval from the network bank, shall be billed to the purchaser
as an additive charge.
(d) Disposition of proceeds. (1) Proceeds from the sale of surplus
personal property shall be deposited by the collecting DoD Component
promptly to the U.S. Treasury accounts prescribed in appendix B to this
part. The use of suspense accounts shall be minimal. If the account
ultimately to be credited with the proceeds of a sale can be determined
reasonably at the time the funds are collected, the deposit shall be
made immediately to that account.
(2) See paragraph (f) of this section for special instructions on the
processing of proceeds resulting from the sale of recyclable material.
(e) Return of bid deposits to unsuccessful bidders. (1) Cash
collected from unsuccessful bidders by a DoD Component shall be
deposited to account X6875, ''Suspense,'' and a check shall be drawn on
that account to reimburse unsuccessful bidders.
(2) Normally, noncash bid deposits shall be returned to unsuccessful
bidders by DoD Components through the mail. However, when a bidder has
requested expedited return and has provided the name of a carrier and a
charge account number, the designated carrier shall be called to pick up
the deposit with the explicit condition that applicable carrier costs
will be charged to the bidder's account.
(f) Sales of recyclable material. The efforts associated with
collection and processing of recyclable material are reflected in
appendix A to this part. The following transactions for others (TFO)
procedures apply:
(1) Proceeds from the sale of recyclable material shall be deposited
in F3875, ''Budget Clearing Account (Suspense).'' The deposit to F3875
shall identify the fiscal station and the name of the installation (use
the full name and do not abbreviate) that is to receive the proceeds.
Deposits that do not provide the necessary information shall be referred
formally to the property disposal cashier for the required information.
(2) The Military Department's finance and accounting office receiving
the sales proceeds shall mail a copy of the cash collection voucher to
the fiscal station shown on the collection voucher. This advance copy
shall be used by the fiscal station to record the collection of proceeds
to its account and shall be used for followup purposes, as necessary.
The copy received through the financial network shall be used to clear
the undistributed collection. These vouchers shall be mailed in the
weekly TFO cycle.
(3) The Military Department's finance and accounting office shall:
(i) Report weekly transactions to the responsible fiscal station
cited on the collection voucher.
(ii) Report the collections within the same month in the ''Statement
of Transactions'' to the Treasury.
(g) Contractor sales of surplus Government-furnished property. (1)
DFARS 245.610 provides overall direction for crediting proceeds from
contractor conducted sales of surplus Government furnished property.
Paragraph (g)(5) of this section provides the procedures that shall be
used to ensure proper accounting for such proceeds.
(2) The contractor making the sale may follow normal company policy
on bid deposits and form of payment. However, any loss associated with
dishonored payment shall be the contractor's responsibility.
(3) The plant clearance officer (PLCO) is responsible for notifying
the appropriate accounting office of the amounts collected by the
contractor. The PLCO shall also notify the accounting office whether
such collections:
(i) Represent an increase in the dollar value of the applicable
contract(s).
(ii) Were made instead of disbursements on the applicable
contract(s).
(iii) Were returned to miscellaneous receipt account 972651, ''Sale
of Scrap and Salvage, Materials, Defense.''
(4) The accounting office for the contract is identified in the
accounting classification code. See DoD 7220.9-M, chapter 17 for
additional information.
(5) The accounting office shall prepare the source documents
necessary to account properly for the transaction. The value of
applicable Government property general-ledger-asset accounts shall be
reduced for each alternative set forth in paragraph (g)(3) of this
section. Additionally, for alternatives (addressed in paragraph
(g)(3)(i) or (g)(3)(ii) of this section, an accounting entry shall be
made to reflect the creation of reimbursable obligational authority and
the use of such authority.
32 CFR 172.6 Information requirements.
The reports cited in 172.5(f)(3) (i) and (ii) of this part are
exempt from licensing in accordance with paragraph E.4g. of DoD
7750.5-M.
32 CFR 172.6 Pt. 172, App. A
Insert illustration 0 426
32 CFR 172.6 Pt. 172, App. B
(55 FR 13903, Apr. 13, 1990)
32 CFR 172.6 -- PART 173 -- COMPETITIVE INFORMATION CERTIFICATE AND
PROFIT REDUCTION CLAUSE
Sec.
173.1 Scope.
173.2 Competitive information certification
173.3 Profit reduction clause.
Appendix to Part 173 -- List of Contractors for Whom Certification is
Required
Authority: 10 U.S.C. 2202.
Source: 53 FR 42948, Oct. 25, 1988, unless otherwise noted.
32 CFR 173.1 Scope.
(a) The purpose of the Competitive Information Certificate is to
provide the Contracting Officer sufficient information and assurance to
support award of a contract in those circumstances where certification
is required.
(b) Although a Competitive Information Certificate provides
reasonable assurance to the Government, the possibility remains that
even a diligent internal review by the contractor may fail to identify
illegal or improper actions. The purpose of the Profit Reduction Clause
is to ensure effective protection of the Government's interest in making
contract awards when a Competitive Information Certification is
required. The Profit Reduction Clause is required in all competitively
awarded new contracts over $100,000 when a Competitive Information
Certificate is required prior to award.
32 CFR 173.2 Competitive Information Certification.
(a) The Competitive Information Certificate is required prior to
award of all competitively awarded new contracts of a value exceeding
$100,000 to contractors subject to the requirement.
(1) Corporate activities required to provide the Certificate are
corporations or corporate divisions which have been the subject of
search warrants, or as to which other official information indicates
such certification should be required, and their subsidiaries and
affiliates. A list of contractors from whom certification is required
is maintained and published as required under authority of the
Department of Defense Procurement Task Force.
(2) The requirement to provide the Certificate may be further limited
to certain divisions or subsidiaries, contracts or programs upon the
basis of official information, furnished by the contractor or otherwise,
sufficient to establish to the satisfaction of the Department of Defense
that the investigation is so limited. Such information may include
copies of search warrants, subpoenas and affidavits from corporate
officials concerning the scope and conduct of the investigation. The
sufficiency of such information is solely within the discretion of the
Department of Defense.
(3) Contractors from whom certification in certain instances is
required will be relieved of the certification requirement when the
Department of Defense determines that information developed in the ''Ill
Wind'' investigation has been resolved in such a manner that
certification is no longer required to protect the interests of the
Government.
(4) A Certificate will not be required prior to the exercise of
options or noncompetitive award of contracts. This does not limit in
any manner the Government's ability to inquire into, or require
information concerning, the circumstances surrounding an underlying
competitive award.
(b) With respect to information disclosed under paragraph (1) of the
Certificate, the offeror must attach to the Certificate a written
statement detailing what information was obtained, and how, when, and
from whom it was obtained. This information shall be evaluated at the
levels prescribed by the contracting component to determine whether
award of the contract should be made to the offeror. If during this
review it is determined that the offeror may have obtained an unfair
competitive advantage from the information and that there is no other
reason for denying award to the offeror, the reviewing authority shall
consider whether action may be taken to neutralize the potential unfair
competitive advantage. Any decision to deny award to an offeror based
upon information disclosed in the Certificate shall be reviewed and
approved by the Service Acquisition Executive.
(c) This certificate and any accompanying statements required, must
be executed by the offeror's corporate president or his designee at no
more than one level below the president's level.
(d) If a contractor from whom certification is required is uncertain
as to whether competitive information otherwise required to be disclosed
was generally available to offerors, the uncertainty should be resolved
by disclosure.
(e) Contracting Officers may continue to accept Certificates of
Business Ethics and Integrity complying with the Interim rule in lieu of
Competitive Information Certificates.
(f) The Competitive Information Certificate shall be in the following
form:
(1) (Name of the offeror) certifies, to the best of its knowledge and
belief, that
(i) With the exception of any information described in an attachment
to this certificate, and any information the offeror reasonably believes
was made generally available to prospective offerors, the offeror has
not knowingly obtained, directly or indirectly from the Government, any
written information or oral extract or account thereof relating to this
solicitation which was
(A) Submitted to the Government by offerors or potential offerors in
response to the Government's solicitation for bid or proposal;
(B) Marked by an offeror or potential offeror to indicate the
information was submitted to the Government subject to an assertion of
privilege against disclosure;
(C) Marked or otherwise identified by the Government pursuant to law
or regulation as classified, source selection sensitive, or for official
use only; or
(D) The disclosure of which to the offeror or potential offeror by a
Government employee would, under the circumstances, otherwise violate
law or regulation.
(ii) The offeror named above
(A) Determined the prices in its offer independently, without, for
the purpose of restricting competition, any consultation,
communications, or agreement, directly or indirectly, with any other
offeror or competitor relating to (1) those prices, (2) the intention to
submit an offer, or (3), the methods or factors used to calculate the
prices offered;
(B) Has not knowingly disclosed the prices in its offer, directly or
indirectly, to any other offeror or competitor before bid opening (in
the case of a sealed bid solicitation) or contract award (in the case of
a negotiated solicitation) unless otherwise required by law;
(C) Has not attempted to induce any other concern to submit or not to
submit an offer for the purpose of restricting competition.
(iii) The offeror has attached an accurate description of the
internal review forming the basis for the certifications provided
herein.
Corporate President or Designee.
32 CFR 173.3 Profit Reduction Clause.
The following profit reduction clause is required in all
competitively awarded new contracts over $100,000 when a Competitive
Information Certificate is required prior to award.
Profit Reduction for Illegal or Improper Activity
(a) The government, at its election, may reduce the contract price by
the amount of any anticipated profit determined as set forth in
paragraph (b) of this section; if
(1) A person or business entity is convicted for violating 18 U.S.C.
201-224 (bribery, graft, and conflicts of interest), 18 U.S.C. 371
(conspiracy), 18 U.S.C. 641 (theft of public money, property, or
records), 18 U.S.C. 1001 (false statements), 18 U.S.C. 1341 (fraud), 18
U.S.C. 1343 (fraud by wire) for any act in connection with or related to
the obtaining of this contract; or
(2) The Secretary of Defense, or his designee, determines that the
Competitive Information Certificate submitted by the offeror in
connection with award of this contract
(i) Was materially false at the time it was filed, or
(ii) Notwithstanding the offeror's best knowledge and belief, was
materially incomplete or inaccurate.
Prior to making such a determination, the Secretary or his designee,
shall provide to the contractor a written statement of the action being
considered and the basis therefor. The contractor shall have not less
than 30 calendar days after receipt to submit in person, in writing, or
through a representative, information and argument in opposition to the
proposed reduction. The Secretary or his designee may, upon good cause
shown, determine to reduce the contract price by less than the amount of
any profit determined under paragraph (b) of this section.
(b) The amount of anticipated profits referred to in 173.3(a) shall
be:
(1) In the case of a cost-plus-fixed-fee contract, the amount of the
fee specified in the contract at the time of award;
(2) In the case of fixed-price-incentive-profit or
cost-plus-incentive-fee contract, the amount of the target profit or fee
specified in the contract at the time of award; or
(3) In the case of a firm-fixed-price contract, the amount of
anticipated profit determined by the contracting officer, after notice
to the contractor and opportunity to comment, from records or documents
in existence prior to the date of the award of the contract.
(c) The rights and remedies of the government provided in this cluase
shall not be exclusive and are in addition to any other rights and
remedies provided by law or under this contract.
32 CFR 173.3 Appendix to Part 173 -- List of Contractors for Whom Certification Is Required
32 CFR 173.3 Pt. 173, App.
Armtec, Incorporated, 410 Highway 19 South, Palatka, FL 32077
Cubic Corporation, 9333 Balboa Avenue, San Diego, CA 92123 as to
contracts originating in the following division:
Cubic Defense Systems, Incorporated, San Diego, CA
Executive Resource Associates, 2011 Crystal Drive, Suite 813,
Arlington, VA 22202
Hazeltine Corporation, 500 Commack Road, Commack, NY 11725 and all
divisions and subsidiaries as follows:
Hazeltine Corporation, Electro-Acoustic Division, 115 Bay State
Drive, Braintree, MA 02184
Hazeltine Corporation, Government Systems & Products Division, Cuba
Hill Road, Greenlawn, NY 11740
Hazeltine Research, Incorporated, 188 Industrial Drive, Elmhurst, IL
60126
Kane Paper Corporation, 2365 Milburn Avenue, Baldwin, NY 11510
Litton Data Systems, Incorporated, 8000 Woodley Ave., Van Nuys, CA
91408
Loral Defense Systems Akron, 1210 Massillon Rd., Akron, OH 44315
McDonnel Douglas Corporation, Banshee Rd., P.O. Box 516, St. Louis,
MO 63166 as to contracts originating in the following division:
McDonnell Aircraft Company, St. Louis, MO
Northrop Corporation, Ventura Division, 1515 Rancho Conejo Boulevard,
Newbury Park, CA 91320
Teledyne Electronics, 649 Lawrence Drive, Newbury Park, CA 91320
Unisys Corporation, One Unisys Place, Detroit, MI 48232, as to
contracts originating in the following divisions or subsidiaries:
Unisys Corporation, Defense Systems Division, 3333 Pilot Knob Road,
Eagan, MN
Unisys Corporation, Defense Systems Division, Neil Armstrong
Boulevard, Eagan, MN
Unisys Shipboard & Ground Systems Group, Marquis Avenue, Great Neck,
NY 11020
United Technologies Corporation, UT Bldg., Hartford, CT 06101 as to
contracts originating in the following divisions or subsidiaries:
Norden Systems, Incorporated
Pratt & Whitney
Varian Associates, Incorporated, 611 Hansen Way, Palo Alto, CA as to
contracts originating in the following division:
*Continental Electronics Manufacturing Company, Dallas, TX
Whittaker Corporation (Lee Telecommunications Corporation (LTC),
Route 1, Farmington, AR 72730)
Zubier Enterprises, 6201 Pine Street, Harrisburg, PA.
*Firm suspended as of July 6, 1988.
32 CFR 173.3 SUBCHAPTER G -- TRANSPORTATION
32 CFR 173.3 PART 174 -- (RESERVED)
32 CFR 173.3 PART 177 -- EMERGENCY REQUIREMENTS, ALLOCATIONS,
PRIORITIES, AND PERMITS FOR DoD USE OF DOMESTIC CIVIL TRANSPORTATION
Sec.
177.1 Purpose.
177.2 Applicability and scope.
177.3 Concept.
177.4 Policy.
177.5 Responsibilities.
Authority: 5 U.S.C. 301.
Source: 44 FR 5883, Jan. 30, 1979, unless otherwise noted.
32 CFR 177.1 Purpose.
This part is reissued to update Department of Defense (DoD) policy
and guidance concerning emergency requirements, allocations, priorities
and permits governing DoD use of civil transportation within the
continental United States (CONUS) except that (a) provided by the Civil
Reserve Air Fleet (CRAF); (b) involving the Defense Civil Preparedness
Agency; and (c) related to civil works projects performed by the Corps
of Engineers.
32 CFR 177.2 Applicability and scope.
(a) The provisions of this part apply to the Office of the Secretary
of Defense, the Military Departments, the Organization of the Joint
Chiefs of Staff, and the Defense Agencies (hereafter referred to
collectively as ''DoD Components'').
(b) Its provisions cover peacetime emergency planning as well as
transportation operations during periods of national emergency.
32 CFR 177.3 Concept.
The Department of Transportation (DoT) provides national emergency
civil transportation policies, plans, and procedures. The Department of
Defense receives emergency guidance on the use of civil transportation
from the (a) Secretary of Transportation, in time of national emergency,
and (b) Department of Transportation Emergency Organization (DoT EO)
Regional Offices, in case of regional isolation.
32 CFR 177.4 Policy.
(a) DoD transportation plans for and operations during national
emergencies will: (1) Conform to national policies and guidance; and
(2) be carried out by DoD organizational elements rather than by a new
organizational structure created specifically for that purpose. Actual
operations under the provisions of this part will be effected in the
event of an emergency.
(b) Control of transportation and traffic management by the
Department of Defense will remain at the national level (see 177.5(a)),
unless conditions of isolation require independent regional action. In
this case, regional authorities will assume the responsibility detailed
in 177.5(b), and will act in conformance with approved plans
implementing this part.
32 CFR 177.5 Responsibilities.
(a) National control -- (1) The Assistant Secretary of Defense
(Manpower, Reserve Affairs, and Logistics) (ASD(MRA&L)), will:
(i) Establish in conjunction with the Assistant Secretary of Defense
(Program Analysis and Evaluation) priorities within the Department of
Defense to conform with national program priorities. These priorities
will be coordinated with the Joint Chiefs of Staff (JCS).
(ii) Analyze and validate DoD short-term requirements for civil
transportation received from the JCS, and ensure the coordination of the
ASD(PA&E) on those requirements affecting DoD strategic mobility.
(iii) Submit requests for civil transportation, and receive alloted
capability from the DoT.
(iv) Transmit allocation of civil transportation capability to the
JCS, together with guidance on procurement and related comments, and
ensure coordination with the ASD(PA&E).
(2) The Assistant Secretary of Defense (Program Analysis and
Evaluation) will:
(i) Analyze, validate, and submit long-term requirements for civil
transportation to the ASD(MRA&L) for subsequent submission to the DoT.
(ii) Coordinate with the DoT and the DoD Components concerned to
determine data requirements and develop methods of analysis to
accurately project DoD long-term civil transportation requirements.
(3) The Joint Chiefs of Staff will: (i) Review DoD transportation
requirements (as submitted by the other DoD Components through the
Military Traffic Management Command (MTMC)), and (ii) forward them with
appropriate recommendation to the ASD(MRA&L) or ASD(PA&E), as
appropriate. Upon receipt of allocations from the ASD(MRA&L), the JCS
will determine the relative urgency of the requirements submitted by the
DoD Components and suballocate among them in accordance with such
determinations.
(4) The Military Departments and other DoD Components will:
(i) Develop and submit to the MTMC their requirements for all CONUS
movements to be accomplished by civil transportation resources.
(ii) Prescribe their priorities of movement within guidance provided
by the ASD(MRA&L) in coordination with the JCS.
(5) The MTMC will:
(i) In accordance with DoD Directive 5160.53,1 ''Single Manager
Assignment for Military Traffic, Land, Transportation, and Common-User
Ocean Terminals,'' March 24, 1967, manage the movement of passengers and
cargo, consistent with established national and DoD Component movement
priorities.
(ii) Consolidate, collate, and evaluate requirements from a traffic
management standpoint and submit the consolidated transportation
requirements with analyses indicating shortages of capability and
recommended action to the JCS. After suballocation to the DoD
Components by the JCS, MTMC will manage the movement of passengers and
cargo in conformance with established allocations and movement
priorities in coordination with the DoD Components.
(iii) Administer permits when required for the movement of passengers
and cargo, in accordance with national policies and guidance.
(b) Regional Isolation. In the event of regional isolation during a
national emergency:
(1) Regional Representatives of DoD Components will develop and
submit their transportation requirements to the MTMC area commander,
together with information as to the relative urgency of movement. If
communication is not possible with the area commander, such
transportation requirements will be submitted direct to the DoD Regional
Military Emergency Coordinator at the Regional Preparedness
Committee/Regional Resources Advisory Board (RPC/RRAB). The locations
and geographical areas of responsibility for these regions are
identified in enclosures (3) and (4) of DoD Directive 5030.45,1
''Department of Defense Representation on Office of Preparedness (OP),
GSA, Regional Preparedness Committee,'' December 14, 1973.
(2) The MTMC area commanders will:
(i) Consolidate, collate and evaluate requirements from a traffic
management standpoint and submit such requirements, with a request for
allocation, to the DoT EO Regional Office.
(ii) Manage the movement of passengers and cargo in accordance with
established allocations and DoD Component movement priorities.
(iii) Inform the DoD Regional Military Emergency Coordinator of any
deficit in allocations to meet requirements.
(3) The DoD Regional Military Emergency Coordinator, as principal DoD
representative to the Federal Preparedness Agency Regional Preparedness
Committee (or Office of Defense Resources Regional Resources Advisory
Board) (DoD Directive 5030.45,1) will establish relative priorities of
movement for DoD traffic and resolve matters of major policy impact, as
required.
(c) Preallocations. General responsibilities for the preallocation
of civil transport capability are the same as those responsibilities
defined for national control in paragraph (a) of this section. A
Memorandum of Understanding between the Departments of Defense and
Transportation concerning the Defense Emergency Prestocked Bulk Fuel
Distribution Plan, provides for preallocation of civil motor carrier
tractor-tank trailer capability to support the plan. Specific
responsibilities for preallocations to support this plan are defined as
follows:
(1) The ASD(MRA&L) will serve as the primary DoD point of contact
with the DoT on all matters relating to military requirements and policy
coordination.
(2) The Commander, MTMC, will maintain direct liaison with DoT on
allocation matters.
(3) The Commander, Defense Fuel Supply Center (DFSC), will:
(i) Maintain the plan; develop and submit requirements through the
Defense Logistics Agency (DLA) for civil motor carrier tractor-tank
trailer capability to support the plan.
(ii) Release civil carriers tractor-trailer after completing required
workload.
(iii) Maintain direct liaison with participating carriers in matters
relating to mission planning, control, and operational agreement.
1Copies may be obtained, if needed, from the U.S. Naval Publications
and Forms Center, 5801 Tabor Avenue, Philadelphia, PA 19120. Attention:
Code 301.
1See footnote 1 to paragraph (a)(5)(i) of this section.
32 CFR 177.5 PART 179 -- USE OF CONTRACTOR AND DoD RESOURCES FOR
MAINTENANCE OF MATERIEL
Sec.
179.1 Reissuance and purpose.
179.2 Applicability and scope.
179.3 Definitions.
179.4 Policy.
179.5 Procedures.
179.6 Particular considerations concerning OMB Circular No. A-76.
179.7 Responsibilities.
Authority: 5 U.S.C. 301.
Source: 47 FR 35962, Aug. 18, 1982, unless otherwise noted.
32 CFR 179.1 Reissuance and purpose.
This part is reissued to update policies and responsibilities
concerning the use of contractor and DoD resources for DoD materiel
maintenance, consistent with DoD Directive 4151.16, ''DoD Equipment
Maintenance Program,'' August 30, 1972, Parts 168 and 169 of this title,
and DoD Directive 4000.19, ''Interservice, Interdepartmental, and
Interagency Support,'' October 14, 1980.
32 CFR 179.2 Applicability and scope.
(a) This part applies to the Office of the Secretary of Defense
(OSD), the Military Departments, the Organization of the Joint Chiefs of
Staff, the Unified and Specified Commands, and the Defense Agencies
(hereafter referred to collectively as ''DoD Components''). The term
''Military Service,'' as used herein, refers to the Army, Navy, Air
Force, and Marine Corps.
(b) This part will not be applied when to do so would be contrary to
law or would be inconsistent with the terms of any treaty or
international agreement.
32 CFR 179.3 Definitions.
(a) Commercial activity expansion. The modernization, replacement,
upgrade, or enlargement of a DoD CA that involves adding a capital
investment of $100,000 or more, or increasing the annual operating costs
by $200,000 or more, provided the increase exceeds 20 percent of the
total investment or annual operating cost. A consolidation of two or
more activities is not an expansion unless the total capital investment
or annual operating cost exceeds the total from the individual
activities by the amount of the threshold.
(b) ''Decision tree''. A mobilization and combat support base
decision methodology that is applied and used by the DoD Components as
the basis for determining
(1) The minimum resources (facilities, plant equipment, and skilled
labor) required in support of the mobilization scenario and
(2) The organic capabilities and physical capacities to be
established and retained as a DoD Component's miminum organic peacetime
base.
(c) Depot maintenance activity. An industrial-type facility
established to perform depot-level maintenance on weapon systems,
equipment, and components. The term includes DoD installations and
commercial contractors.
(d) Direct combat support. Work that is essential to the direct
support of combat operations, that is, work that if not performed could
cause immediate impairment of combat capability.
(e) Direct maintenance support. Maintenance performed to materiel
while it remains under the custody of the using military command.
(f) DoD commercial activity. An activity operated and managed by a
DoD Component that provides a product or service obtainable from a
private, commercial source. A DoD CA can be identified with an
organization or type of work, but shall be separable from other
functions so as to be suitable for performance either in-house or by
contract, and shall be a regularly needed activity of an operational
nature, not a one-time activity of short duration associated with
support of a particular project.
(g) Engineering and technical services. Advice, instruction, and
training in the installation, operation, and maintenance of weapon
systems, equipment, and components used by DoD Components. These
services are provided by qualified DoD military and civilian personnel,
or by employees of defense contractors.
(h) Indirect maintenance support. Maintenance performed on materiel
after its withdrawal from the custody of the using military command.
(i) Interservice maintenance support. Maintenance either recurring
or nonrecurring, performed by the organic capability of one Military
Service or element thereof in support of another Military Service or
element thereof.
(j) Maintenance capability. Availability of resources, such as
facilities, skills, tools, test equipment, drawings, technical
publications, training, maintenance personnel, engineering support, and
spare parts, that are required to perform maintenance.
(k) Maintenance support. Functions that are not a part of depot,
intermediate, or organizational maintenance, but that facilitate and
perpetuate any or all of those levels of maintenance. Categories
include programing and planning support, maintenance technical and
engineering support, technical and engineering data, and technical and
administrative training.
(l) Major end item. A final combination of assemblies, components,
parts, and materials that performs a major, complete operational
function and is ready for its intended use.
(m) Mission-essential materiel. That Military Service-designated
materiel authorized to combat, combat support, combat service support,
and combat readiness training forces and activities, including reserve
and National Guard activities, that is required to support approved
emergency or war plans, and that is used to destroy the enemy or his
capacity to continue war; provide battlefield protection of personnel;
communicate under war conditions; detect, locate, or maintain
surveillance over the enemy; provide combat transportation and support
of men and materiel; and support training functions, but that is
suitable for employment under emergency plans to meet purposes
enumerated above.
(n) Organic maintenance. That maintenance performed by a Military
Service under military control using government-owned or controlled
facilities, tools, test equipment, spares, repair parts, and military or
civilian personnel.
(o) Physical capacity. A quantitative measure of maintenance
capability usually expressed as the amount of direct labor work hours
that can be applied within a specific industrial shop, or other entity,
during a 40-hour week (one shift -- 5 days).
(p) Weapon system. A final combination of subsystems, components,
parts, and materials of an entity used in combat, either offensively or
defensively, to destroy, injure, defeat, or threaten the enemy.
Examples are the F-4 aircraft, FBM submarine, frigate, HAWK missile, and
AH-1 Cobra helicopter.
(q) Workload. Total direct actual labor hours represented by the
product of quantity of items programed multiplied by the direct actual
labor hours per unit.
32 CFR 179.4 Policy.
It is DoD policy that maintenance support of DoD materiel is
essential to the rapid and sustained application of military power. DoD
Components shall provide an adequate program for maintenance of assigned
materiel to:
(a) Provide for mobilization and surge requirements as specified in
the most current Defense Guidance.
(b) Meet efficiently and effectively peacetime readiness and combat
sustainability objectives.
32 CFR 179.5 Procedures.
(a) DoD Components combat and direct combat support activities shall
provide, to the maximum extent possible, direct (intermediate and
organizational) maintenance support for assigned materiel. Engineering
technical service activities shall comply with Part 168 of this title.
During the introduction of new weapon systems, contract maintenance
shall be used for those items for which a capability does not exist and
cannot be developed at minimal costs. This contract maintenance shall
be used until system design, reliability and maintainability
characteristics, maintenance procedures, and maintenance training
requirements are stabilized. Contractor personnel shall be used
throughout system operating life if there are shortages in Military
Service skilled maintenance personnel and if such contractor personnel
shall provide wartime support in a combat zone. (See Part 170 of this
title and DoD Directive 5000.39, ''Acquisition and Management of
Integrated Logistic Support for Systems and Equipment,'' January 17,
1980.)
(b) The source (DoD military or civilian personnel, contractors, or
host nation support) of direct maintenance support for other than combat
and direct combat support activities shall be based on:
(1) The need to maintain a training and rotational base for military
technical personnel.
(2) The security implications involved.
(3) The timely availability of private, commercial sources or host
nation support.
(4) Cost and effectiveness.
(c) Initial plans for contractor and organic support of new systems
shall be established as part of the integrated logistic support planning
process, prior to the item production decision. (See DoD Directive
5000.39)
(d) When applicable, use of maintenance and repair contracts for
common-use items, such as office machines, materiel handling equipment,
and furniture, shall be in accordance with Section 5-205 of the Defense
Acquisition Regulation. DoD Components shall prescribe instructions on
the calculation and use of one-time repair limits and on replacement
criteria for these items. The data and method applied in determining
repair limits and replacement criteria shall be reviewed periodically
for currency.
(e) To the extent possible, a competitive commercial depot
maintenance industrial base shall be established and, as required, shall
be capable of expanding during mobilization.
(f) Indirect (depot) maintenance support of DoD materiel shall be
planned and accomplished by contractual sources and organic capability.
(See DoD Directive 4005.1, ''DoD Industrial Preparedness Production
Planning,'' July 29, 1972.)
(g) Normally, each DoD Component shall provide for the indirect
maintenance support of DoD mission-essential materiel. Interservice
maintenance support arrangements shall be established and executed
wherever such actions will prove more efficient. (See DoD Directive
4000.19)
(h) Pursuant to Part 169 of this title, prime consideration shall be
given to use of contractor support for indirect maintenance when such
support would:
(1) Improve the industrial base for maintenance or for equipment,
spares, and parts manufacture.
(2) Improve peacetime readiness and combat sustainability through
planning for postproduction support of weapon systems and equipment.
(3) Be cost-effective.
(4) Enable program managers to implement contract incentives for
reliability and maintainability (for example, reliability improvement
warranty contracts and failure-free contracts).
(i) Organic depot maintenance capabilities and physical capacities
established or retained within the DoD Components for support of DoD
materiel shall be kept to the minimum required to ensure a ready,
controlled source of technical competence and resources necessary to
meet military contingencies.
(1) Peacetime and time-phased mobilization depot maintenance workload
plans for DoD Components shall be quantified in terms of required
resources consistent with DoD Directive 3005.6, ''Civilian Workforce
Mobilization Planning and Management,'' May 8, 1981 and projected
annually as an integral part of the DoD Planning, Programing, and
Budgeting (PPB) process. Mobilization workloads shall be based upon
scenarios contained in the most current annual Defense Guidance. DoD
Component depot maintenance workload plans shall address total
requirements and shall be identified by work breakdown structure,
customer, and fund sources supported by respective customers. Workloads
shall be displayed according to monthly requirements for at least a
12-month period. Organic capabilities and physical capacities to be
established and retained as a DoD Component's minimum organic peacetime
base shall be determined by use of a ''decision tree'' for assigning
source of repair responsibilities (organic, interservice, and contract)
and for determining the minimum (organic) resources required in support
of the mobilization scenario. The ''decision tree'' use shall consider
mobilization depot maintenance materiel resources that must be available
in the organic depot maintenance establishment at the outset of
mobilization. The ''decision tree'' also, as a minimum, shall consider
the required facilities, plant equipment, and labor (by skill) related
to their planned application during the mobilization period. Each DoD
Component's ''decision tree'' shall be approved by the Assistant
Secretary of Defense (Manpower, Reserve Affairs, and Logistics)
(ASD(MRA&L)).
(2) The appropriate Secretary of a Military Department or Director of
a Defense Agency, except as delegated in 169.4(b)(3) of this chapter,
annually shall approve the organic physical capacity and capability and
the peacetime workload distribution plan. Major changes to the
distribution of peacetime workloads during the program execution year
also shall be approved by the appropriate Military Department Secretary
or Defense Agency Director.
(3) Unless otherwise justified under paragraphs (i)(1) and (2) of
this section each DoD Component's organic depot maintenance peacetime
physical capacity shall be planned to accomplish no more than 70 percent
of its gross mission-essential depot maintenance workload requirements.
At least 30 percent of the gross mission-essential and all of the
nonmission essential workload requirements shall be decided on the basis
of economy, the timely availability of private, commercial sources, and
the need to maintain a commercial industrial mobilization base. The
70/30 ratio will not apply to each individual weapon system and
subsystem workload. However, it shall apply to homogenous commodity
groupings within the gross mission essential requirement. Furthermore,
consideration shall be given to contracting for the depot maintenance of
an entire weapon system or subsystem when the industrial base
considerations stated herein can be achieved.
(4) DoD Component facility utilization (by depot) in peacetime shall
be planned to accomplish the equivalent of 100 percent of peacetime
workload capacity on a 40-hour week, one-shift basis as defined in DoD
Instruction 4151.15, ''Depot Maintenance Programming Policies,''
November 22, 1976, with the equivalent of an organic facility
utilization of 185 percent physical capacity under mobilization. In
sizing organic capability and physical capacity of shops susceptible to
high surge, or cost intensive facilitization, consideration shall be
given to limiting individual shop utilization to a maximum of 250
percent of physical capacity during mobilization. When 250 percent of
physical capacity would be exceeded due to a mobilization surge, a lower
shop utilization of peacetime physical capacity may be justified.
(j) A Joint Support Plan, participated in by all users, shall be
developed by the lead DoD Component whenever the same weapon system or
equipment is being procured for use by two or more DoD Components.
Joint Support Plans also may be required selectively for jointly used
major end items and components when such plans are in the best overall
interest of the Department of Defense. The Joint Support Plan shall
include as assessment of existing depot maintenance capabilities of the
DoD Components involved and shall address basic considerations; how the
proposed assignment of depot maintenance responsibilities makes maximum
use of existing DoD cababilities required to satisfy mobilization
demands while reducing to a minimum new investment in additional
resources; and the planned distribution of depot maintenance workloads
between component organic and commercial sources over the weapon
system's planned life in consideration of both peacetime and
mobilization demands. Proposed plans shall be submitted to the
ASD(MRA&L) for approval. (See Part 352 of this title and DoD Directive
5000.39).
(k) Supplemental procedural guidance is contained in Parts 169 and
169a of this title and DoD 4100.33-H ''DoD In-House vs Contract
Commercial and Industrial Activities Cost Comparison Handbook,'' April
1980, which implement Office of Management and Budget (OMB) Circular No.
A-76, ''Policies for Acquiring Commercial or Industrial Products and
Services needed by the Government,'' March 29, 1979, as amended.
32 CFR 179.6 Particular considerations concerning OMB Circular No.
A-76.
(a) Approval by the appropriate Secretary of a Military Department or
Director of a Defense Agency, except as delegated in 169.4(b)(13) of
this chapter of the peacetime workload distribution plan cited in
paragraphs (i) (1) and (2) of this section, shall, for in-house depot
maintenance activities, be considered as approval for in-house
performance of a DoD commercial activity (CA) needed for support of
national defense. Also see 169.3(b)(1)(iv).
(b) When new maintenance work, approved as part of the minimum
organic peacetime base, is being introduced, every effort shall be made
to retain current employees on this new work through the use of
retraining. Contracts for maintenance-related services that are shown
to be justified for in-house performance in accordance with Part 169a of
this title shall be terminated as quickly as in-house capability can be
established. When the additional manpower spaces required cannot be
accommodated within the DoD Component's personnel authorized ceiling, a
request for adjustment normally shall be submitted to the Secretary of
Defense in conjunction with the annual budget review process.
(c) If a particular DoD CA no longer is required as part of the
minimum organic peacetime base, justification for in-house performance
shall be in accordance with Part 169 of this title that is, no
satisfactory private commercial source is available or in-house
performance is more economical than contract.
32 CFR 179.7 Responsibilities.
(a) The Assistant Secretary of Defense (Manpower, Reserve Affairs,
and Logistics) shall monitor compliance with this part. In discharging
this responsibility, the ASD (MRA&L) shall:
(1) Concurrently review departmental depot maintenance programs and
the annual Program Objectives Memoranda (POMs) and budgets.
(2) Review DoD depot maintenance capabilities and physical
capacities; assess alternative plans for depot maintenance support;
and review and approve proposed plans for depot maintenance support of
multiservice-use weapons and selected end items (See also DoD Directive
5124.1).
(3) Review each major system Integrated Logistic Support plan to
determine adequacy of the maintenance concept and related plans, and
recommend changes to the acquisition executive when program planning is
inadequate.
(4) Make final determination on all requests for exceptions to this
part.
(b) The Head of each DoD Component shall:
(1) Quantify in terms of appropriate resources (facilities, plant
equipment, and personnel by skill), and annually submit to the OSD as a
part of the PPB process, projections of peacetime and time-phased
mobilization workloads for DoD weapon systems and equipment depot
maintenance.
(2) Annually determine minimum organic depot maintenance capabilities
and physical capacities required to ensure a ready, controlled source of
technical competenace and resources necessary to meet military
contingencies.
(3) Annually develop a peacetime workload distribution plan
consistent with the minimum determined in paragraph (b)(2) of this
section.
(4) Develop and present the annual depot maintenance program as a
part of the PPB cycle. The program shall reflect the total Military
Department or Defense Agency peacetime requirements for accomplishment
by organic contract, or interservice sources, as appropriate. (See DoD
Instruction 7110.1, ''DoD Budget Guidance,'' October 30, 1980.)
(5) Ensure that efficient utilization is being realized from that
organic capability retained for the depot maintenance support of
materiel.
(6) Maintain the technical competence necessary to ensure efficient
management of the total depot maintenance workload program.
(7) Foster the establishment and retention of a competitive
commercial depot maintenance industrial base.
(8) Ensure that the same degree of management emphasis and attention
is given to workloads accomplished by contract sources as that given to
workloads performed by organic sources. (See Part 170 of this title.)
(9) Request that the ASD (MRA&L) approve exceptions to this part to
accommodate peculiar circumstances or other overriding factors.
(10) Determine, by the production decision milestone for each new
weapon system or equipment, whether sufficient numbers of skilled
Military Service personnel will be available for direct maintenance
support (for all systems including combat and direct combat support).
The Head of each DoD Component shall develop a plan to use contractors
when an adequate number of Military Service skilled personnel are not
available. (See DoD Directive 5000.39.)
(11) Develop cost-accounting systems that will provide total cost of
organic maintenance support in order to:
(i) Make cost-effectiveness determinations.
(ii) Assist in life cycle cost estimation and verification.
32 CFR 179.7 SUBCHAPTER H -- CIVIL DEFENSE
32 CFR 179.7 PART 185 -- MILITARY SUPPORT OF CIVIL DEFENSE
Sec.
185.1 Reissuance and purpose.
185.2 Applicability and scope.
185.3 Definitions.
185.4 Policy.
185.5 Responsibilities.
185.6 Financing.
Authority: The Federal Civil Defense Act of 1950 (64 Stat.
1245-1257), as amended; E.O. 12148, July 20, 1979, as amended.
Source: 46 FR 48189, Oct. 1, 1981, unless otherwise noted.
32 CFR 185.1 Reissuance and purpose.
This part is reissued to establish DoD policies and responsibilities
for DoD support of the national civil defense program under the
proponency of the Federal Emergency Management Agency (FEMA), in
compliance with the Federal Civil Defense Act of 1950, as amended and
Executive Order 12148, ''Federal Emergency Management,'' July 20, 1979,
as amended; and defines policy for the military support of civil
defense under a national emergency involving an attack, or a condition
that might precede an attack, on the United States.
32 CFR 185.2 Applicability and scope.
(a) The provisions of this part apply to the Office of the Secretary
of Defense, the Military Departments and their Reserve and National
Guard components, the Organization of the Joint Chiefs of Staff (OJCS),
the Unified and Specified Commands, and the Defense Agencies (hereafter
called ''DoD Components''). The term ''Military Service,'' as used
herein, refers to the Army, Navy, Air Force, Marine Corps, and Coast
Guard.
(b) The provisions of this part shall govern military support of
civil defense actions by all DoD Components in the 50 states, the
District of Columbia, Puerto Rico, and the territories and possessions
of the United States.
32 CFR 185.3 Definitions.
(a) Military Support of Civil Defense. Those military activities and
measures taken by DoD Components to assist the civilian population and
designed to minimize the effects upon the civilian population caused or
which would be caused by an enemy attack upon the United States, its
territories and possessions; deal with the immediate emergency
conditions which would be created by any such attack; and effect
emergency repairs to or the emergency restoration of vital utilities and
facilities destroyed or damaged by any such attack. When directed by
the Secretary of Defense to implement military support of civil defense
plans, military support of civil defense actions shall encompass those
responsibilities and functions identified in DoD Directives 3025.11,
''Use of Military Resources During Peacetime Civil Emergencies within
the United States, its Territories and Possessions,'' May 23, 1980 and
32 CFR Part 215.
(b) Military Resources. Military and civilian personnel of the
active and reserve components, facilities, equipment and supplies under
the control of DoD Components, and services performed by DoD Components,
to include airlift and other transportation services.
(c) Civil Defense Emergency. A national emergency resulting from
devastation created by an enemy attack and requiring emergency
operations during and following an attack. This emergency may also be
proclaimed by appropriate authority in anticipation of an attack.
Note: This is distinct from ''Civil Emergency'' and ''Civil
Disturbance,'' as defined in DoD directives 3025.11, and 32 CFR Part
215.
(d) Automatic Response. Actions taken independently by a military
commander before implementation of military support of civil defense
plans and in anticipation of or during a civil defense emergency and to
save lives or prevent human suffering.
(e) Crisis Relocation. The orderly relocation of the population of
metropolitan and other risk areas during a period of acute international
crisis to low risk areas to reduce vulnerability to the effect of
nuclear, biological, chemical or conventional weapons attack. For the
commander of a military installation or facility, a similar relocation
of military forces and other personnel from the installation or
facility.
1Copies may be obtained, if needed, from the U.S. Naval Publications
and Forms Center, 5801 Tabor Avenue, Philadelphia, PA 19120. Attention:
Code 301.
32 CFR 185.4 Policy.
(a) The national civil defense program is an intergral part of
national security and is an essential element of the deterrent posture
of the United States. Accordingly, subject to the priorities prescribed
in 185.4(b) military support of civil defense is an appropriate mission
for DoD Components. The JCS shall have overall responsibility for
providing military support of civil defense. In performing this
mission, the JCS are authorized to call upon the Military Services and
the Defense Agencies to make available military resoures needed for the
performance of this mission.
(b) In event of nuclear, biological, chemical, or conventional weapon
attack on the United States, its territories and possessions, the degree
of military involvement in military support of civil defense will depend
upon the commitment of military resources to military operations, the
extent of damage sustained in the civilian community, and the status and
disposition of active and reserve component forces. In all cases,
however, military operations shall have first priority. Other missions
that will have precedence over military support of civil defense include
continuity of Federal Government operations, military personnel and
property survival, and rehabilitation of military facilities that
support the war-waging capacity of the armed forces.
(c) Accomplishment of the military support of civil defense misssion
requires coordination between the Department of Defense and the Federal
Emergency Management Agency at the national and regional levels. DoD
commanders charged with planning and execution responsibilities shall
coordinate plans and procedures with FEMA regional offices. In the
event of conflicting demands on DoD resources, appropriate DoD
Components shall seek clarification through military command channels.
(d) Subject to JCS approval, the Military Services and Defense
Agencies shall make available to state or local authorities during a
civil defense emergency those resources not otherwise committed to
current or planned military operations or to other priority missions
cited in 185.4(b) in accordance with the policies enumerated below.
(1) Planning for military support of civil defense shall contain
provisions for emergency preparations in crisis situations and be
directed toward the most disastrous damage anticipated from an attack
under minimum warning.
(2) The executive agent functions assigned to the Secretary of the
Army by DoD Directive 3025.11 and 23 CFR Part 215 shall be suspended or
terminated in accordance with procedures established by the Secretary of
Defense for enemy attack situations. In such a case, responsibility for
these functions shall be transferred to the JCS for accomplishment by
commanders responsive to the JCS.
(3) Military support of civil defense shall complement and not be a
substitute for civil participation in civil defense operations.
Military plans and plans developed by civil authority shall recognize
that civil resources must be the first used to support civil
requirements and that military resources must be used only when
available and within resource capability to supplement the civil
resources. DoD-expendable materials used by the Military Services and
Defense Agencies for military support of civil defense missions shall be
resupplied through civil resource claimancy procedures and channels in
accordance with DoD Directive 5030.451, ''Department of Defense
Representation of Federal Emergency Management Agency (FEMA) Regional
Preparedness Committees,'' (Under Revision).
(4) Subject to the priorities prescribed in 185.4(b), military
forces, active and reserve, and the National Guard when federalized,
shall be considered potentially available to provide military support of
civil defense to civil authorities during a civil defense emergency.
The actual use of military resources will also be determined by
casualties and damage incurred by the military during an attack.
(5) The Commander-in-Chief, U.S. Readiness Command (USCINCRED) has
military support of civil defense planning and execution
responsibilities for the continental United States (CONUS). Within the
48 contiguous states and the District of Columbia, each Military
Department shall periodically or upon request provide to USCINCRED,
through appropriate headquarters designated by the parent Military
Service, listings of all military forces and DoD Components located in
CONUS. Forces shall be listed in order of priority of probable
availability to provide military support of civil defense based on their
military missions, their locations, and their capabilities as follows:
(i) Priority I. Those forces with a high probability of
availability.
(ii) Priority II. Those forces with a lower probability of
availability.
(iii) Priority III. Those forces least likely to be available
because of high priority combat and combat support missions.
(6) For Alaska, Hawaii, Puerto Rico, and U.S. territories and
possessions, the commander of the appropriate Unified Command or the
commander designated by the JCS has military support of civil defense
planning and execution responsibility for his respective areas. These
commanders shall maintain a listing of forces as described in
185.4(d)(5).
(7) Priorities of availability of forces shall be reflected in
appropriate military support of civil defense plans. All forces listed
shall be prepared and ready to execute the tasks contemplated. Those
forces furnished to perform military support of civil defense in CONUS
may be withdrawn by the military commanders of the parent Military
Service for operational missions contingent upon notification of
USCINCRED. For other areas, similar notification is required with the
commander of the appropriate Unified Command or other commander
designated by the JCS.
(8) A military commander, in making military resources available to
civil authorities for military support of civil defense, is subject to
no authority other than that established in the military chain of
command.
(e) Military support of civil defense includes the following: (1)
Coordination with FEMA of plans and procedures for providing military
support of civil defense to the civil sector.
(2) Use, under the direction of USCINCRED, of the existing military
command structure in CONUS to plan for and execute military support of
civil defense, using the Adjutants General and their headquarters.
(3) Use of appropriate commands in Alaska, Hawaii, Puerto Rico, and
U.S. territories and possessions, as designated by JCS, to plan for and
conduct military support of civil defense using the Adjutants General
and their headquarters.
(4) Designation and training of personnel of alternate headquarters
in conformity with continuity of operations plans, to assume
responsibility in the event the principal headquarters is inoperative.
(5) Allocating time to the training of military forces in the basic
functions of military support of civil defense, consistent with the need
for those forces first to achieve an adequate level of readiness to
perform their primary wartime mission. The present emergency-related
DoD and FEMA facilities and courses shall be used to accomplish that
training.
(6) Law enforcement: (i) In those areas in which martial law has
been proclaimed, military resources may be used for local law
enforcement. Normally a state of martial law will be proclaimed by the
President. However, in the absence of such action by the President, a
senior military commander may impose martial law in an area of his
command where there has been a complete breakdown in the exercise of
government functions by local civilian authorities. Military assumption
of judicial, law enforcement, and administrative functions of local
government will be based on necessity that is actual and present, and
the performance of these functions will continue only so long as
necessity of that extreme nature requires interim military intervention.
Civil administration will be restored as soon as civil authorities are
able to resume their local government roles.
(ii) In the absence of martial law the performance of law enforcement
functions by the military will be limited to those actions that are
necessary to prevent loss of life and the wanton destruction of
property. Intervention by the military for these purposes is
permissible only when a serious breakdown in law and order has occurred
or is imminent and only when appropriate civilian authorities have
requested military assistance. Such assistance will be terminated as
soon as civilian authorities are able to resume their responsibilities
in these respects.
(7) Making provisions for commanders at appropriate echelons to
provide within the commander's capability immediate and independent
automatic response support to requests from civil authorities. This
include developing and maintaining plans and capabilities to assist
civilian authorities in restoring Federal, State and local civil
operations. Such interim emergency assistance shall be in coordination
with and supplementary to the capabilities of state and local
governments and other nonmilitary organizations, and shall be concerned
with assistance which includes but is not limited to:
(i) Restoration of facilities and utilities, including
transportation, communications, power, fuel, water, and other essential
facilities.
(ii) Emergency clearance of debris and rubble, including explosive
ordnance from streets, highways, rail centers, dock facilities,
airports, shelters, and other areas, to permit rescue or movement of
people, access to and recovery of critical resources, and emergency
repair or reconstruction of facilities.
(iii) Fire protection.
(iv) Rescue, evacuation, and emergency medical treatment or
hospitalization of casualties, recovery of critical medical supplies,
and safeguarding of public health. This may involve sorting and
treating casualties and preventive measures to control the incidence and
spread of infectious diseases.
(v) Recovery, identification, registration, and disposition of
deceased personnel.
(vi) Radiation monitoring and decontamination, as well as chemical
and biological monitoring, to include identifying contaminated areas,
and reporting information through the national warning system. Initial
decontamination will be directed primarily at personnel and vital
facilities.
(vii) Movement control, to include plans and procedures for essential
movements.
(viii) Issue of food, essential supplies, and materiel, to include
collection, safeguarding, and issue of critical items.
(ix) Emergency provision of personnel, equipment, and facilities for
food preparation, should mass or community subsistence support be
required.
(x) Damage assessment.
(xi) Provision of interim communications, using available mobile
military equipment to provide command and control.
1See footnote 1 to 185.3.
32 CFR 185.5 Responsibilities.
(a) On behalf of the Secretary of Defense, the Under Secretary of
Defense for Policy shall provide policy guidance on matters associated
with military support of civil defense.
(b) The Joint Chiefs of Staff shall: (1) Advise the Secretary of
Defense and Under Secretary of Defense for Policy on policies,
responsibilities, and programs relating to military support of civil
defense as a contingency mission of all military forces, and provide
recommendations on allocating military resources for military support of
civil defense as numerated in 185.4(e).
(2) In consultation with the Director, FEMA, and the Military
Services, issue instructions for the conduct of military support of
civil defense to Commanders of Unified Commands and other designated
commanders. Such instructions shall provide for establishment of
liaison with FEMA.
(3) Ensure compatibility of military support of civil defense plans
with other military plans.
(c) The Secretary of the Army shall: (1) Provide for the execution
of the tasks in 185.4(e) in accordance with approved guidance.
(2) Provide for a reporting system to USCINCRED to identify all
Department of the Army forces by CONUS Army area according to priority
of probable availability, in accordance with 185.4 (c) through (e);
determine specific availability of forces following an actual attack;
and, for CONUS, designate commands to assist in preattack planning and
provide for control of Department of the Army forces made available for
military support to civil defense. The reporting system shall be
developed in accordance with the provisions of DoD Directive 5000.11,
/1/ ''Data Elements and Data Codes Standardization Program,'' December
7, 1964, and DoD Directive 500.19, /1/ ''Policies for the Management and
Control of Information Requirements,'' March 12, 1976. Data elements
and codes shall be registered with the Office of the Assistant Secretary
of Defense (Comptroller) (OASD)(C)), Attention: Director for Management
Information Control and Administration (DMIC&A).
(3) Assure readiness of active and reserve units of the Army to
execute plans for military support of civil defense.
(4) Provide explosive ordnance disposal service and planning
assistance to civil authorities in the development and operation of any
military support of civil defense explosive ordnance disposal program.
(5) Assist the Department of the Air Force, to the extent that
conditions and resources available permit, in executing postattack
aerial reconaissance within the CONUS for nuclear damage assessment
purposes.
(d) The Secretary of the Navy shall: (1) Provide for the execution
of tasks enumerated in 185.4(e), in accordance with approved guidance.
(2) Provide for a reporting system to USCINCRED to identify all
Department of the Navy forces by CONUS Army area according to priority
of probable availability, in accordance with 185.4 (c) through (e),
determine specific availability of forces following an actual attack;
and, for CONUS, designate commands to assist in preattack planning and
provide for control of Department of the Navy forces made available for
military support of civil defense. The reporting system shall be
developed in accordance with the provisions of DoD Directive 5000.11,1
and DoD Directive 5000.19.1 Data elements and codes shall be registered
with DMIC&A, OASD(C).
(3) Assure readiness of active and reserve units of the Navy and
Marine Corps to execute plans for military support of civil defense.
(4) Assist the Department of the Air Force, to the extent that
conditions and available resources permit, in executing postattack
aerial reconnaissance within the CONUS for nuclear damage assessment
purposes.
(5) Maintain liaison and coordinate planning with the U.S. Coast
Guard regarding the participation of Coast Guard forces in military
support of civil defense.
(6) Furnish technical training in explosive ordnance disposal, and
provide underwater explosive ordnance and nuclear material disposal
service for coastal areas to and including the high water mark for
enclosed bodies of water and for rivers or canals and at all Navy and
Marine Corps installations; provide for disposal of explosive ordnance
or nuclear materials aboard naval aircraft.
(e) The Secretary of the Air Force shall: (1) Provide for the
execution of the tasks enumerated in 185.4(e) in accordance with
approved guidance.
(2) Provide for a reporting system to USCINCRED to identify all
Department of the Air Force forces by CONUS Army area according to
priority of probable availability, in accordance with 185.4 (c) through
(e); determine specific availability of forces following an actual
attack; and, for CONUS, designate commands to assist in preattack
planning and to provide for control of Department of the Air Force
forces made available for military support of civil defense. The
reporting system shall be developed in accordance with the provisions of
DoD Directive 5000.11, /1/ and DoD Directive 5000.19. /1/ Data elements
and codes shall be registered with DMIC&A, OASD(C).
(3) Assure readiness of active and reserve units of the Air Force to
execute plans for military support of civil defense.
(4) Furnish appropriate assistance to units of Civil Air Patrol
engaged in missions related to military support of civil defense.
(5) Conduct postattack aerial photo reconnaissance missions for
damage assessment purposes. Information derived therefrom shall be made
available to civil defense authorities as expeditiously as possible, in
accordance with standing arrangements and procedures.
(6) Provide explosive ordnance disposal service on Air Force
installations for disposal of explosive ordnance or nuclear materials in
the physical possession of the Air Force at the time of any incidents or
accidents.
(f) The Directors of the Defense Agencies shall provide advice and
assistance on matters within their spheres of competence to the JCS in
the discharge of the responsibilities enumerated in paragraph (b) of
this section, provide advice and assistance and make available resources
not otherwise committed to the Military Departments in the discharge of
their responsibilities enumerated in paragraphs (c) through (e) of this
section.
/1/ See footnote to 185.3.
1See footnote to 185.3.
32 CFR 185.6 Financing.
Financial planning under this Directive shall assume that in the
event of a declared civil defense emergency, actions will be taken by
military authorities on the basis of the President's constitutional war
powers.
32 CFR 185.6 PART 186 -- THE DoD EXPLOSIVES SAFETY BOARD
Sec.
186.1 Purpose.
186.2 Applicability.
186.3 Definition.
186.4 Organization.
186.5 Responsibilities.
186.6 Functions.
186.7 Relationships.
Authority: 10 U.S.C. 172.
Source: 49 FR 10118, Mar. 19, 1984, unless otherwise noted.
32 CFR 186.1 Purpose.
(a) This part is reissued and establishes the DoD Explosives Safety
Board (DDESB) as a joint activity of the Department of Defense under
title 10, United States Code, assigns responsibilities, and prescribes
procedures.
(b) This part authorizes publication of DoD 6055.9-STD, ''DoD
Ammunition and Explosives Safety Standards,'' consistent with DoD
5025.1-M, ''DoD Directives System Procedures,'' April 1981.
32 CFR 186.2 Applicability.
This part applies to the Office of the Secretary of Defense (OSD),
the Military Departments, the Defense Nuclear Agency (DNA), and the
Defense Logistics Agency (DLA) (hereafter referred to collectively as
''DoD Components''). The term ''Military Services,'' as used herein,
refers to the Army, Navy, Air Force, and Marine Corps.
32 CFR 186.3 Definition.
Ammunition and explosives. Include liquid and solid propellants and
explosives, pyrotechnics, riot control agents, smokes, incendiaries and
chemical agents in any of the following: bulk form, ammunition,
rockets, missiles, warheads, devices, and components thereof, used by
the Military Services, but exclude wholly inert items and nuclear
warheads and devices, except for considerations of blast, fire, and
nonnuclear fragment hazards associated with the explosives.
32 CFR 186.4 Organization.
(a) The DDESB shall be composed of a chairman, a member from each
Military Department, and be supported by a permanent civilian and
military secretariat. The normal tour of duty for military personnel is
3 years.
(1) The Assistant Secretary of Defense (Manpower, Reserve Affairs,
and Logistics) (ASD(MRA&L)) shall select and appoint the chairman from
officers in the grade of 0-6 or higher, nominated by a Military
Department Secretary or designee. The chairmanship will rotate among
the Military Department every 3 years. The ASD(MRA&L), or designee,
shall evaluate the chairman's performance.
(2) The Secretary of each Military Department shall (i) select one
qualified officer in the grade of 0-6 or higher to serve as a member of
the DDESB in addition to his or her assigned duties, and one alternate
of equivalent grade who shall act for his or her principal, if absent,
with plenary powers. The alternate may be a qualified civilian employee
of the Military Department concerned; and (ii) assign one qualified
officer in the grade of 0-6 to the DDESB secretariat to advise the
chairman on the Department's policies and procedures concerning
explosives safety matters.
(3) The Directors of the DNA and DLA shall designate a knowledgeable
official from each of their Agencies who, in addition to assigned
duties, shall serve as a nonvoting member of the DDESB when the business
before the DDESB concerns that agency.
32 CFR 186.5 Responsibilities.
(a) The Assistant Secretary of Defense (Manpower, Reserve Affairs,
and Logistics) shall have principal OSD staff responsibility for DDESB
activities.
(b) The Heads of DoD Components, or their designees, shall:
(1) Consistent with DoD Directive 5000.19, ''Policies for the
Management and Control of Information Requirements,'' March 12, 1976,
provide the DDESB with information and support necessary to discharge
its assigned responsibilities and functions.
(2) Submit plans for construction or modification of pertinent
facilities, outlining the type, character, and siting of the proposed
construction or modification to the chairman, DDESB, for review and
approval before inclusion of the project in proposed legislation for the
current budget year, or before NATO or host country approval of funds.
If plans provide less than prescribed safety, they shall be accompanied
by a certification letter from the head of the DoD Component concerned
that such siting is essential because of operational necessity or other
compelling reasons.
(3) Submit to the chairman, DDESB, for review and approval, plans for
leasing, transferring, or disposing of DoD real property where
ammunition and explosives contamination exists or is suspected to exist.
(4) Set interim safety standards for the manufacture, storage, and
handling of ammunition and explosives pending the publication of DoD
6055.9-STD.
(5) Keep the DDESB informed on safety problems related to ammunition
and explosives development, manufacturing, testing, handling,
transportation, storage, maintenance, demilitarization, and disposal.
(6) Comply with DoD 6055.9-STD. With respect to explosives to which
the United States holds title, but that are located in overseas areas
and are not in U.S. custody and under effective U.S. control, carry out
this function to the extent consistent with agreements or arrangements
with the host country concerned. However, since both local law and DoD
6055.9-STD apply, the more restrictive sets the minimum standards for
DoD compliance. Waive or exempt compliance with DoD 6055.9-STD when
justified by strategic or other compelling reasons.
(7) Provide qualified personnel for DDESB working groups when
requested by the chairman, DDESB.
(8) Perform those tests and evaluations necessary for the assignment
of explosives hazard classifications in accordance with Department of
Defense Explosives Hazard Classification Procedures, September 1982
(Joint Regulation, TB 700-2).
(i) Military hazard classification and compatibility group.
(ii) Transportation hazard class, commodity description, and
markings. /1/
(9) Appeal to the ASD(MRA&L) any DDESB decision with which they
disagree.
(c) The Secretary of the Army shall provide administrative support
for the DDESB and its secretariat to include budgeting, funding,
civilian personnel security, and any other required administrative
services.
(d) The Chairman, DDESB, shall:
(1) Preside at DDESB meetings.
(2) Establish and maintain a system, consistent with the provisions
of DoD Directive 5000.19, that will provide the Secretary of Defense and
DoD Components with current information on all DDESB matters.
(3) Resolve conflicts within DDESB jurisdiction.
(4) Manage and evaluate the activities and personnel of the
secretariat.
(5) Establish and direct the activities of temporary working groups
to assist the DDESB.
(6) Provide an annual report to the Secretaries of the Military
Departments and the ASD(MRA&L) on the status of explosives safety within
the DoD Components.
/1/ If unable to comply with the provisions of 186.5.(b)(8) or TB
700-2 or, in the case of unresolved differences between DoD Components
concerned, complete documentation shall be submitted to the chairman,
DDESB, for resolution.
32 CFR 186.6 Functions.
The DoD Explosives Safety Board shall:
(a) Provide impartial and objective advice to the Secretary of
Defense, the Secretaries of the Military Departments, and the Directors
of the Defense Agencies on ammunition and explosives manufacturing,
testing, handling, maintenance, developing, demilitarization, disposal,
transportation, and storage and on the construction and siting of
facilities within the United States and overseas when under U.S.
jurisdiction, or when planned or intended for U.S-titled ammunition and
explosives. This advice shall be structured to prevent conditions that
will endanger life and property both inside and outside DoD or host
country installations.
(b) Develop and submit to the ASD(MRA&L), for approval, DoD safety
standards, to be published as DoD 6055.9-STD, designed to prevent or
eliminate hazardous conditions associated with ammunition and
explosives.
(c) In coordination with DoD Components, establish joint procedures
for explosives hazard classification and arbitrate or otherwise resolve
differences resulting from or pertinent to the assignment of hazard
classification.
(d) Maintain liaison with other federal and state agencies, allied
governments, and industry having mutual interests or responsibilities in
ammunition and explosives safety.
(e) Keep informed on safety problems within the DoD Components
relating to ammunition and explosives development, manufacture, testing,
handling, transportation, storage, maintenance, demilitarization, and
disposal; and within its capability, provide advice and assistance on
request.
(f) Survey, study, and evaluate DoD Components' performance on
explosives safety procedures to ensure their compliance with DoD
6055.9-STD and to detect conditions that may endanger life and property
inside or outside DoD installations. Provide reports to DoD Components
on violations of the DoD 6055.9-STD and recommend corrective action.
(g) Review and analyze reports, data, and information on ammunition
and explosives hazards and accidents, except nuclear.
(h) Review and approve the explosives safety aspects of all plans for
siting and construction or modification of fixed or movable ammunition
and explosives facilities, including facilities in their proximity.
Facilities being constructed during combat conditions or the immediate
expectations of combat conditions are exempted from this requirement.
With respect to plans for new construction providing less than
prescribed safety, a certification by the head of the DoD Component
concerned justifying that such siting is essential because of
operational necessity or other compelling reason shall be required.
(i) Review and approve plans for leasing, transferring, or disposing
of DoD real property where ammunition and explosives contamination exist
or is suspected to exist.
(j) Conduct programs for investigation, research, study, and tests
concerning explosives hazards required to develop and maintain safety
standards.
32 CFR 186.7 Relationships.
The chairman and DDESB members are authorized and expected to
communicate freely with all DoD offices and other U.S. governmental,
foreign, and private organizations having a mutual interest or
responsibility in safety matters that involve ammunition and explosives.
In technical relationships with foreign governments, agencies, or
organizations, the chairman and DDESB members shall observe such policy
and procedural guidance as may be prescribed by the chief of a
diplomatic mission and the senior U.S. military representative in the
country. With regard to nuclear weapons, access and communication shall
be in accordance with the established procedures of the DNA and the
Department of Energy.
32 CFR 186.7 SUBCHAPTER I-K -- (RESERVED)
32 CFR 186.7 SUBCHAPTER L -- ENVIRONMENT
32 CFR 186.7 PART 187 -- ENVIRONMENTAL EFFECTS ABROAD OF MAJOR
DEPARTMENT OF DEFENSE ACTIONS
Sec.
187.1 Purpose.
187.2 Applicability.
187.3 Definitions.
187.4 Policy.
187.5 Responsibilities.
187.6 Information requirements.
Enclosure 1 -- Requirements for Environmental Considerations --
Global Commons
Enclosure 2 -- Requirements for Environmental Considerations --
Foreign Nations and Protected Global Resources
Authority: Title 10 U.S.C. 131.
Source: 44 FR 21786, Apr. 14, 1979, unless otherwise noted.
Redesignated at 56 FR 64481, Dec. 10, 1991.
32 CFR 187.1 Purpose.
Executive Order 12114 provides the exclusive and complete requirement
for taking account of considerations with respect to actions that do
significant harm to the environment of places outside the United States.
This part provides policy and procedures to enable Department of
Defense (DoD) officials to be informed and take account of environmental
considerations when authorizing or approving certain major federal
actions that do significant harm to the environment of places outside
the United States. Its sole objective is to establish internal
procedures to achieve this purpose, and nothing in it shall be construed
to create a cause of action. Guidance for taking account of
considerations with respect to the environment of places within the
United States is set out in 32 CFR part 188 (under rev.) That guidance
is grounded on legal and policy requirements different from those
applicable to this part.
(44 FR 21786, Apr. 14, 1979. Redesignated and amended at 56 FR 64481,
Dec. 10, 1991)
32 CFR 187.2 Applicability.
The provisions of this part apply to the Office of the Secretary of
Defense, the Military Departments, the Organization of the Joint Chiefs
of Staff, the Unified and Specified Commands, and the Defense Agencies
(hereafter referred to as ''DoD components'').
32 CFR 187.3 Definitions.
(a) Environment means the natural and physical environment, and it
excludes social, economic, and other environments. Social and economic
effects do not give rise to any requirements under this part.
(b) Federal Action means an action that is implemented or funded
directly by the United States Government. It does not include actions
in which the United States participates in an advisory,
information-gathering, representational, or diplomatic capacity but does
not implement or fund the action; actions taken by a foreign government
or in a foreign country in which the United States is a beneficiary of
the action, but does not implement or fund the action; or actions in
which foreign governments use funds derived indirectly from United
States funding.
(c) Foreign Nation means any geographic area (land, water, and
airspace) that is under the jurisdiction of one or more foreign
governments; any area under military occupation by the United States
alone or jointly with any other foreign government; and any area that
is the responsibility of an international organization of governments.
''Foreign nation'' includes contiguous zones and fisheries zones of
foreign nations. ''Foreign government'' in this context includes
governments regardless of whether recognized by the United States,
political factions, and organizations that exercise governmental power
outside the United States.
(d) Global Commons are geographical areas that are outside the
jurisdiction of any nation, and include the oceans outside territorial
limits and Antarctica. Global commons do not include contiguous zones
and fisheries zones of foreign nations.
(e) Major Action means an action of considerable importance involving
substantial expenditures of time, money, and resources, that affects the
environment on a large geographic scale or has substantial environmental
effects on a more limited geographical area, and that is substantially
different or a significant departure from other actions, previously
analyzed with respect to environmental considerations and approved, with
which the action under consideration may be associated. Deployment of
ships, aircraft, or other mobile military equipment is not a major
action for purposes of this part.
(f) United States means all States, territories, and possessions of
the United States; and all waters and airspace subject to the
territorial jurisdiction of the United States. The territories and
possessions of the United States include the Virgin Islands, American
Samoa, Wake Island, Midway Island, Guam, Palmyra Island, Johnston Atoll,
Navassa Island, and Kingman Reef.
32 CFR 187.4 Policy.
(a) Executive Order 12114 is based on the authority vested in the
President by the Constitution and the laws of the United States. The
objective of the Order is to further foreign policy and national
security interests while at the same time taking into consideration
important environmental concerns.
(b) The Department of Defense acts with care in the global commons
because the stewardship of these areas is shared by all the nations of
the world. The Department of Defense will take account of environmental
considerations when it acts in the global commons in accordance with
procedures set out in Enclosure 1 and its attachment.
(c) The Department of Defense also acts with care within the
jurisdiction of a foreign nation. Treaty obligations and the
sovereignty of other nations must be respected, and restraint must be
exercised in applying United States laws within foreign nations unless
Congress has expressly provided otherwise. The Department of Defense
will take account of environmental considerations in accordance with
Enclosure 2 and its attachments when it acts in a foreign nation.
(d) Foreign policy considerations require coordination with the
Department of State on communications with foreign governments
concerning environmental agreements and other formal arrangements with
foreign governments concerning environmental matters under this part.
Informal working-level communications and arrangements are not
included in this coordination requirement. Consultation with the
Department of State also is required in connection with the utilization
of additional exemptions from this part as specified in paragraph C.3.b.
of Enclosure 2. Coordination and consultation with the Department of
State will be through the Assistant Secretary of Defense (International
Security Affairs).
(e) Executive Order 12114, implemented by this part prescribes the
exclusive and complete procedural measures and other actions to be taken
by the Department of Defense to further the purpose of the National
Environmental Policy Act with respect to the environment outside the
United States.
32 CFR 187.5 Responsibilities.
(a) The Assistant Secretary of Defense (Manpower, Reserve Affairs,
and Logistics) shall:
(1) Serve as the responsible Department of Defense official for
policy matters under Executive Order 12114 and this part;
(2) Modify or supplement any of the enclosures to this part in a
manner consistent with the policies set forth in this part;
(3) Maintain liaison with the Council on Environmental Quality with
respect to environmental documents;
(4) Participate in determining whether a recommendation should be
made to the President that a natural or ecological resource of global
importance be designated for protection; and
(5) Consult with the Assistant Secretary of Defense (International
Security Affairs) on significant or sensitive actions or decisions
affecting relations with another nation.
(b) The Assistant Secretary of Defense (International Security
Affairs) shall:
(1) Maintain liaison and conduct consultations with the Department of
State as required under this part; and
(2) Serve as the responsible official, in consultation with the
Assistant Secretary of Defense (Manpower, Reserve Affairs, and
Logistics), for monitoring the continuing cooperation and the exchange
of information with other nations concerning the environment.
(c) The General Counsel, DoD, shall provide advice and assistance
concerning the requirements of Executive Order 12114 and this part.
(d) The Secretaries of the Military Departments, Directors of the
Defense Agencies, and Commanders of the Unified and Specified Commands,
for operations under their jurisdiction, shall:
(1) Prepare and consider environmental documents when required by
this directive for proposed actions within their respective DoD
component (this reporting requirement has been assigned Report Control
Symbol DD-M(AR) 1327 ( 187.6));
(2) Insure that regulations and other major policy issuances are
reviewed for consistency with Executive Order 12114 and this part;
(3) Designate a single point-of-contact for matters pertaining to
this part; and
(4) Consult with the Assistant Secretary of Defense (International
Security Affairs) on significant or sensitive actions or decisions
affecting relations with another nation.
(44 FR 21786, Apr. 14, 1979. Redesignated and amended at 56 FR 64481,
Dec. 10, 1991)
32 CFR 187.6 Information requirements.
The documents to be prepared under 187.5(d) and Enclosures 1 and 2,
''Requirements for Environmental Considerations -- Global Commons,'' and
''Requirements for Environmental Considerations -- Foreign Nations and
Protected Global Resources,'' respectively, are assigned Report Control
Symbol DD-M(AR) 1327.
(44 FR 21786, Apr. 14, 1979. Redesignated and amended at 56 FR 64481,
Dec. 10, 1991)
32 CFR 187.6 Pt. 187, Encl. 1
32 CFR 187.6 Enclosure 1 -- Requirements for Environmental
Considerations -- Global Commons
A. General. This enclosure implements the requirements of Executive
Order 12114 with respect to major Department of Defense actions that do
significant harm to the environment of the global commons. The focus is
not the place of the action, but the location of the environment with
respect to which there is significant harm. The actions prescribed by
this enclosure are the exclusive and complete requirement for taking
account of environmental considerations with respect to Department of
Defense activities that affect the global commons.
B. Actions included. The requirements of this enclosure apply only
to major federal actions that do significant harm to the environment of
the global commons.
C. Environmental Document Requirements -- 1. General. When an action
is determined to be a major federal action that significantly harms the
environment of the global commons, an environmental impact statement, as
described below, will be prepared to enable the responsible
decision-making official to be informed of pertinent environmental
considerations. The statement may be a specific statement for the
particular action, a generic statement covering the entire class of
similar actions, or a program statement.
2. Limitations on Actions. Until the requirements of this enclosure
have been met with respect to actions involving the global commons, no
action concerning the proposal may be taken that does significant harm
to the environment or limits the choice of reasonable alternatives.
3. Emergencies. Where emergency circumstances make it necessary to
take an action that does significant harm to the environment without
meeting the requirements of this enclosure, the DoD component concerned
shall consult with the Assistant Secretary of Defense (Manpower, Reserve
Affairs, and Logistics). This includes actions that must be taken to
promote the national defense or security and that cannot be delayed, and
actions necessary for the protection of life or property.
4. Combining Documents. Environmental documents may be combined with
other agency documents to reduce duplication. If an environmental
impact statement for a particular action already exists, regardless of
what federal agency prepared it, no new statement is required by this
part.
5. Collective Statements. Consideration should be given to the use
of generic and program statements. Generic statements may include
actions with relevant similarities such as common timing, environmental
effects, alternatives, methods of implementation, or subject matter.
6. Tiering. Consideration should be given to tiering of environmental
impact statements to eliminate repetitive discussions of the same issue
and to focus the issues. Tiering refers to the coverage of general
matters in broader environmental impact statements, with succeeding
narrower statements or environmental analyses that incorporate by
reference the general discussion and concentrate only on the issues
specific to the statement subsequently prepared.
7. Lead Agency. When one or more other federal agencies are involved
with the Department of Defense in an action or program, a lead agency
may be designated to supervise the preparation of the environmental
impact statement. In appropriate cases, more than one agency may act as
joint lead agencies. The following factors should be considered in
making the lead agency designation:
a. The magnitude of agency involvement;
b. Which agency or agencies have project approval and disapproval
authority;
c. The expert capabilities concerning the environmental effects of
the action;
d. The duration of agency involvement; and
e. The sequence of agency involvement.
8. Categorical Exclusions. The Department of Defense may provide
categorical exclusions for actions that normally do not, individually or
cumulatively, do significant harm to the environment. If an action is
covered by a categorical exclusion no environmental assessment or
environmental impact statement is required. Categorical exclusions will
be established by the Assistant Secretary of Defense (Manpower, Reserve
Affairs, and Logistics) and will be identified in Attachment 1 to this
enclosure, to be entitled, ''Categorical Exclusions -- Global commons.
''DoD components identifying recurring actions that have been
determined, after analysis, not to do significant harm to the
environment should submit recommendations for cateorical exclusions and
accompanying justification to the Assistant Secretary of Defense
(Manpower, Reserve Affairs, and Logistics).
9. Environmental Assessments. The purpose of an environmental
assessment is to assist DoD components in determining whether an
environmental impact statement is required for a particular action. The
assessment should be brief and concise but should include sufficient
information on which a determination can be made whether the proposed
action is major and federal, and whether it significantly harms the
environment of the global commons. As a minimum, the assessment should
include consideration of the need for the proposed action and the
environmental effect of the proposed action. The environmental
assessment will be made available to the public in the United States
upon request, but there is no requirement that it be distributed for
public comment.
D. Environmental Impact Statements. 1. General. Environmental impact
statements will be concise and no longer than necessary to permit an
informed consideration of the environmental effects of the proposed
action on the global commons and the reasonable alternatives. If an
action requiring an environmental impact statement also has effects on
the environment of a foreign nation or on a resource designated as one
of global importance, the statement need not consider or be prepared
with respect to these effects. The procedures for considering these
effects are set out in Enclosure 2, of this part.
2. Draft Statement. Environmental impact statements will be prepared
in two stages and may be supplemented. The first, or draft statement,
should be sufficiently complete to permit meaningful analysis and
comment. The draft statement will be made available to the public, in
the United States, for comment. The Department of State, the council on
environmental Quality, and other interested federal agencies will be
informed of the availability of the draft statement and will be afforded
an opportunity to comment. Contacts with foreign governments are
discussed in 187.4(d) and subsection D.11. of this enclosure.
3. Final statement. Final statements will consider, either
individually or collectively, substantive comments received on the draft
statement. The final statement will be made available to the public in
the United States.
4. Supplemental statement. Supplements to the draft or final
statement should be used when substantial changes to the proposed action
are made relative to the environment of the global commons or when
significant new information or circumstances, relevant to environmental
concerns, bears on the proposed action or its environmental effects on
the global commons. Supplemental statements will be circulated for
comment as in subsection 2. of this enclosure unless alternative
procedures are approved by the Assistant Secretary of Defense (Manpower,
Reserve Affairs, and Logistics).
5. Statement content. The statement will include: A section on
consideration of the purpose of and need for the proposed action; a
section on the environmental consequences of the proposed action and
reasonable alternatives; a section that provides a succinct description
of the environment of the global commons affected by the proposed action
and reasonable alternatives; and a section that analyzes, in
comparative form, the environmental effects on the global commons of the
proposed action and reasonable alternatives.
6. Incomplete Information. The statement should indicate when
relevant information is missing due to unavailability or scientific
uncertainty.
7. Hearings. Public hearings are not required. consideration should
be given in appropriate cases to holding or sponsoring public hearings.
Factors in this consideration include: Foreign relations sensitivities;
whether the hearings would be an infringement or create the appearance
of infringement on the sovereign responsibilities of another government;
requirements of domestic and foreign governmental confidentiality;
requirements of national security; whether meaningful information could
be obtained through hearings; time considerations; and requirements
for commercial confidentiality. There is no requirement that all
factors listed in this section be considered when one or more factors
indicate that public hearings would not produce a substantial net
benefit to those responsible for authorizing or approving the proposed
action.
8. Decision. Relevant environmental documents developed in accordance
with this enclosure will accompany the proposal for action through the
review process to enable officials responsible for authorizing or
approving the proposed action to be informed and to take account of
environmental considerations. One means of making an appropriate record
with respect to this requirement is for the decision-maker to sign and
date a copy of the environmental impact statement indicating that it has
been considered in the decision-making process. Other means of making
an appropriate record are also acceptable.
9. Timing. No decision on the proposed action may be made until the
later of 90 days after the draft statement has been made available and
notice thereof published in the Federal Register, or 30 days after the
final statement has been made available and notice thereof published in
the Federal Register. The 90-day period and the 30-day period may run
concurrently. Not less than 45 days may be allowed for public comment.
The Assistant Secretary of Defense (Manpower, Reserve Affairs, and
Logistics) may, upon a showing of probable important adverse effect on
national security or foreign policy, reduce the 30-day, 45-day, and
90-day periods.
10. Classified Information. Environmental assessments and impact
statements that address classified proposals will be safeguarded and
classified information will be restricted from public dissemination in
accordance with Department of Defense procedures (32 CFR 159)
established for such information under Executive Order 12065. The
requirements of that Executive Order take precedence over any
requirement of disclosure in this part. Only unclassified portions of
environmental documents may be disseminated to the public.
11. Foreign Governments. Consideration will be given to whether any
foreign government should be informed of the availability of
environmental documents. Communications with foreign governments
concerning environmental agreements and other formal arrangements with
foreign governments concerning environmental matters under this part
will be coordinated with the Department of State. Informal,
working-level communications and arrangements are not included in this
coordination requirement. Coordination with the Department of State
will be through the Assistant Secretary of Defense (International
Security Affairs).
(44 FR 21786, Apr. 14, 1979. Redesignated and amended at 56 FR 64481,
Dec. 10, 1991)
32 CFR 187.6 Pt. 187, Encl. 2
32 CFR 187.6 Enclosure 2 -- Requirements for Environmental
Considerations -- Foreign Nations and Protected Global Resources
A. General. This enclosure implements the requirements of Executive
Order 12114 to provide for procedural and other actions to be taken to
enable officials to be informed of pertinent environmental
considerations when authorizing or approving certain major Department of
Defense actions that do significant harm to the environment of a foreign
nation or to a protected global resource.
B. Actions included. 1. The requirements of this enclosure apply
only to the following actions:
a. Major federal actions that significantly harm the environment of a
foreign nation that is not involved in the action. The involvement of
the foreign nation may be directly by participation with the United
States in the action, or it may be in conjunction with another
participating nation. The focus of this category is on the geographical
location of the environmental harm and not on the location of the
action.
b. Major federal actions that are determined to do significant harm
to the environment of a foreign nation because they provide to that
nation: (1) A product, or involve a physical project that produces a
principal product, emission, or effluent, that is prohibited or strictly
regulated by federal law in the United States because its toxic effects
on the environment create a serious public health risk; or (2) a
physical project that is prohibited or strictly regulated in the United
States by federal law to protect the environment against radioactive
substances. Included in the category of ''prohibited or strictly
regulated'' are the following: asbestos, vinyl chloride, acrylonitrile,
isocyanates, polychlorinated biphenyls, mercury, beryllium, arsenic,
cadmium, and benzene.
c. Major federal actions outside the United States that significantly
harm natural or ecological resources of global importance designated for
protection by the President or, in the case of such a resource protected
by international agreement binding on the United States, designated for
protection by the Secretary of State. Such determinations by the
President or the Secretary of State to be listed in Attachment 1 to this
enclosure, entitled, ''Protected Global Resources''.
2. The actions prescribed by this enclosure are the exclusive and
complete requirement for taking account of environmental considerations
with respect to federal actions that do significant harm to the
environment of foreign nations and protected global resources as
described in subsection B.1., of this enclosure. No action is required
under this enclosure with respect to federal actions that affect only
the environment of a participating or otherwise involved foreign nation
and that do not involve providing products or physical projects
producing principal products, emissions, or effluents that are
prohibited or strictly regulated by federal law in the United States, or
resources of global importance that have been designated for protection.
C. Environmental Document Requirements.
1. General. a. There are two types of environmental documents
officials shall use in taking account of environmental considerations
for actions covered by this enclosure:
(1) Environmental studies -- bilateral or multilateral environmental
studies, relevant or related to the proposed action, by the United
States and one or more foreign nations or by an international body or
organization in which the United States is a member or participant; and
(2) Environmental reviews -- concise reviews of the environmental
issues involved that are prepared unilaterally by the United States.
b. This section identifies the procedures for the preparation of
environmental studies or reviews when required by this enclosure and the
exceptions from the requirement to prepare environmental studies or
reviews. If an environmental document already exists for a particular
action, regardless of what federal agency prepared it, no new document
is required by this enclosure.
2. Lead Agency. When one or more other federal agencies are involved
with the Department of Defense in an action or program, a lead agency
may be designated to supervise the preparation of environmental
documentation. In appropriate cases, more than one agency may act as
joint lead agencies. The following factors should be considered in
making the lead agency designation:
a. The magnitude of agency involvement;
b. Which agency or agencies have project approval and disapproval
authority;
c. The expert capabilities concerning the environmental effects of
the action;
d. The duration of agency involvement; and
e. The sequence of agency involvement.
3. Exemptions. There are general exemptions from the requirements of
this enclosure provided by Executive Order 12114, and the Secretary of
Defense has the authority to approve additional exemptions.
a. General Exemptions. The following actions are exempt from the
procedural and other requirements of this enclosure under general
exemptions established for all agencies by Executive Order 12114:
(1) Actions that the DoD component concerned determines do not do
significant harm to the environment outside the United States or to a
designated resource of global importance.
(2) Actions taken by the President. These include: Signing bills
into law; signing treaties and other international agreements; the
promulgation of Executive Orders; Presidential proclamations; and the
issuance of Presidental decisions, instructions, and memoranda. This
includes actions taken within the Department of Defense to prepare or
assist in preparing recommendations, advice, or information for the
President in connection with one of these actions by the President. It
does not include actions taken within the Department of Defense to
implement or carry out these instruments and issuances after they are
promulgated by the President.
(3) Actions taken by or pursuant to the direction of the President or
a cabinet officer in the course of armed conflict. The term ''armed
conflict'' refers to: hostilities for which Congress has declared war
or enacted a specific authorization for the use of armed forces;
hostilities or situations for which a report is prescribed by section
4(a)(1) of the War Powers Resolution, 50 U.S.C.A. 1543(a)(1) (Supp.
1978); and other actions by the armed forces that involve defensive use
or introduction of weapons in situations where hostilities occur or are
expected. This exemption applies as long as the armed conflict
continues.
(4) Actions taken by or pursuant to the direction of the President or
a cabinet officer when the national security or national interest is
involved. The determination that the national security or national
interest is involved in actions by the Department of Defense must be
made in writing by the Assistant Secretary of Defense (Manpower, Reserve
Affairs, and Logistics).
(5) The activities of the intelligence components utilized by the
Secretary of Defense under Executive Order 12036, 43 FR 3674 (1978).
These components include the Defense Intelligence Agency, the National
Security Agency, the offices for the collection of specialized
intelligence through reconnaissance programs, the Army Office of the
Assistant Chief of Staff for Intelligence, the Office of Naval
Intelligence, and the Air Force Office of the Assistant Chief of Staff
for Intelligence.
(6) The decisions and actions of the Office of the Assistant
Secretary of Defense (International Security Affairs), the Defense
Security Assistance Agency, and the other responsible offices within DoD
components with respect to arms transfers to foreign nations. The term
''arms transfers'' includes the grant, loan, lease, exchange, or sale of
defense articles or defense services to foreign governments or
international organizations, and the extension or guarantee of credit in
connection with these transactions.
(7) Votes and other actions in international conferences and
organizations. This includes all decisions and actions of the United
States with respect to representation of its interests at international
organizations, and at multilateral conferences, negotiations, and
meetings.
(8) Disaster and emergency relief actions.
(9) Actions involving export licenses, export permits, or export
approvals, other than those relating to nuclear activities. This
includes: Advice provided by DoD components to the Department of State
with respect to the issuance of munitions export licenses under section
38 of the Arms Export Control Act, 22 U.S.C. 2778 (1976); advice
provided by DoD components to the Department of Commerce with respect to
the granting of export licenses under the Export Administration Act of
1969, 50 U.S.C. App. 2401-2413 (1970 & Supp. V 1975); and direct
exports by the Department of Defense of defense articles and services to
foreign governments and international organizations that are exempt from
munitions export licenses under section 38 of the Arms Export Control
Act, 22 U.S.C. 2778 (1976). The term ''export approvals'' does not mean
or include direct loans to finance exports.
(10) Actions relating to nuclear activities and nuclear material,
except actions providing to a foreign nation a nuclear production or
utilization facility, as defined in the Atomic Energy Act of 1954, as
amended, or a nuclear waste management facility.
b. Additional Exemptions. The Department of Defense is authorized
under Executive Order 12114 to establish additional exemptions that
apply only to the Department's operations. There are two types of
additional exemptions: Case-by-case and class.
(1) Case-by-Case Exemptions. Exemptions other than those specified
above may be required because emergencies, national security
considerations, exceptional foreign policy requirements, or other
special circumstances preclude or are inconsistent with the preparation
of environmental documentation and the taking of other actions
prescribed by this enclosure. The following procedures apply for
approving these exemptions:
(a) Emergencies. This category includes actions that must be taken
to promote the national defense or security and that cannot be delayed,
and actions necessary for the protection of life or property. The heads
of the DoD components are authorized to approve emergency exemptions on
a case-by-case basis. The Department of Defense is required to consult
as soon as feasible with the Department of State and the Council on
Environmental Quality with respect to emergency exemptions. The
requirement to consult as soon as feasible is not a requirement of prior
consultation. A report of the emergency action will be made by the DoD
component head to the Assistant Secretary of Defense (Manpower, Reserve
Affairs, and Logistics), who, with the Assistant Secretary of Defense
(International Security Affairs), shall undertake the necessary
consultations.
(b) Other Circumstances. National security considerations,
exceptional foreign policy requirements, and other special circumstances
not identified in paragraph C.3.a. of this enclosure, may preclude or be
inconsistent with the preparation of environmental documentation. In
these circumstances, the head of the DoD component concerned is
authorized to exempt a particular action from the environmental
documentation requirements of this enclosure after obtaining the prior
approval of the Assistant Secretary of Defense (Manpower, Reserve
Affairs, and Logistics), who, with the Assistant Secretary of Defense
(International Security Affairs), shall consult, before approving the
exemption, with the Department of State and the Council on Environmental
Quality. The requirement for prior consultation is not a requirement
for prior approval.
(2) Class Exemptions. Circumstances may exist where a class
exemption for a group of related actions is more appropriate than a
specific exemption. Class exemptions may be established by the
Assistant Secretary of Defense (Manpower, Reserve Affairs, and
Logistics), who, with the Assistant Secretary of Defense (International
Security Affairs), shall consult, before approving the exemption, with
the Department of State and the Council on Environmental Quality. The
requirement for prior consultation is not a requirement for prior
approval. Requests for class exemptions will be submitted by the head
of the DoD component concerned to the Assistant Secretary of Defense
(Manpower, Reserve Affairs, and Logistics) after coordination with other
interested DoD components. Notice of the establishment of a class
exemption will be issued as Attachment 2 to this enclosure to be
entitled, ''Class Exemptions -- Foreign Nations and Protected Global
Resources.''
4. Categorical Exclusions. The Department of Defense is authorized
by Executive Order 12114 to provide for categorical exclusions. A
categorical exclusion is a category of actions that normally do not,
individually or cumulatively, do significant harm to the environment.
If an action is covered by a categorical exclusion, no environmental
document is required. Categorical exclusions will be established by the
Assistant Secretary of Defense (Manpower, Reserve Affairs, and
Logistics), and will be identified in Attachment 3 to this enclosure to
be entitled, ''Categorical Exclusions -- Foreign Nations and Protected
Global Resources.'' DoD components identifying recurring actions that
have been determined, after analysis, not to do significant harm to the
environment should submit requests for categorical exclusions and
accompanying justification to the Assistant Secretary of Defense
(Manpower, Reserve Affairs, and Logistics).
D. Environmental studies. 1. General. Environmental studies are one
of two alternative types of documents to be used for actions described
by section B. of this enclosure.
a. An environmental study is an analysis of the likely environmental
consequences of the action that is to be considered by DoD components in
the decision-making process. It includes a review of the affected
environment, significant actions taken to avoid environmental harm or
otherwise to better the environment, and significant environmental
considerations and actions by the other participating nations, bodies,
or organizations.
b. An environmental study is a cooperative action and not a
unilateral action undertaken by the United States. It may be bilateral
or multilateral, and it is prepared by the United States in conjunction
with one or more foreign nations, or by an international body or
organization in which the United States is a member or participant. The
environmental study, because it is prepared as a cooperative
undertaking, may be best suited for use with respect to actions that
provide strictly regulated or prohibited products or projects to a
foreign nation (B.l.b.) and actions that affect a protected global
resource (B.l.c.).
2. Department of State Coordination. Communications with foreign
governments concerning environmental studies and other formal
arrangements with foreign governments concerning environmental matters
under this directive will be coordinated with the Department of State.
Informal, working-level communications and arrangements are not included
in this coordination requirement. Coordination with the Department of
State will be through the Assistant Secretary of Defense (International
Security Affairs).
3. Whether to Prepare an Environmental Study. The judgment whether
the action is one that would do significant harm to one of the
environments covered by this enclosure normally will be made in
consultation with concerned foreign governments or organizations. If a
negative decision is made, the file will be documented with a record of
that decision and the decision-makers who participated. If a decision
is made to prepare a study then, except as provided by this enclosure,
no action concerning the proposal may be taken that would do significant
harm to the environment until the study has been completed and the
results considered.
4. Content of the Study. The document is a study of the
environmental aspects of the proposed action to be considered in the
decision-making process. The precise content of each study must be
flexible because of such considerations as the sensitivity of obtaining
information from foreign governments, the availability of useful and
understandable information, and other factors identified under
''Limitations,'' (subsection D.6., of this enclosure). The study
should, however, include consideration of the following:
a. A general review of the affected environment;
b. The predicted effect of the action on the environment;
c. Significant known actions taken by governmental entities with
respect to the proposed action to protect or improve the environment;
and
d. If no actions are being taken to protect or enhance the
environment, whether the decision not to do so was made by the affected
foreign government or international organization.
5. Distribution of the Study. Except as provided under
''Limitations,'' (subsection D.6., of this enclosure), and except where
classified information is involved, environmental studies will be made
available to the Department of State, the Council on Environmental
Quality, other interested federal agencies, and, on request, to the
public in the United States. Interested foreign governments also may be
informed of the studies, subject to the ''Limitations'' (subsection
D.6., of this enclosure) and controls on classified information, and
furnished copies of the documents. No distribution is required prior to
the preparation of the final version of the study or prior to taking the
action that caused the study to be prepared.
6. Limitations. The requirements with respect to the preparation,
content, and distribution of environmental studies in the international
context must remain flexible. The specific procedures must be
determined on a case-by-case basis and may be modified where necessary
to:
a. Enable the component to act promptly. Considerations such as
national security and foreign government involvement may require prompt
action that must take precedence in the environmental review process;
b. Avoid adverse impacts on relations between the United States and
foreign governments and international organizations;
c. Avoid infringement or the appearance of infringement on the
sovereign responsibilities of another government. The collection of
information and the preparation and distribution of environmental
documentation for actions in which another nation is involved, or with
respect to the environment and resources of another nation, unless done
with proper regard to the sovereign authority of that nation, may be
viewed by that nation as an interference in its internal affairs and its
responsibility to evaluate requirements with respect to the environment;
d. Ensure consideration of:
(1) Requirements of governmental confidentiality. This refers to the
need to protect sensitive foreign affairs information and information
received from another government with the understanding that it will be
protected from disclosure regardless of its classification;
(2) National security requirements. This refers to the protection of
classified information and other national security interests;
(3) Availability of meaningful information. Information on the
environment of foreign nations may be unavailable, incomplete, or not
susceptible to meaningful evaluation, particularly where the affected
foreign nation is not a participant in the analysis. This may reduce or
change substantially the normal content of the environmental study;
(4) The extent of the participation of the DoD component concerned
and its ability to affect the decision made. The utility of the
environmental analysis and the need for an in-depth review diminishes as
DoD's role and control over the decision lessens; and
(5) International commercial, commercial confidentiality,
competitive, and export promotion factors. This refers to the
requirement to protect domestic and foreign trade secrets and
confidential business information from disclosure. Export promotion
factors includes the concept of not unnecessarily hindering United
States exports.
7. Classified Information. Classified information will be
safeguarded from disclosure in accordance with the Department of Defense
procedures (32 CFR 159) established for such information under Executive
Order 12065. The requirements of that Executive Order take precedence
over any requirement of disclosure in this directive.
E. Environmental Reviews. 1. General. Environmental reviews are the
second of the two alternative types of documents to be used for actions
covered by section B. of this enclosure.
a. An environmental review is a survey of the important environmental
issues involved. It includes identification of these issues, and a
review of what if any consideration has been or can be given to the
environmental aspects by the United States and by any foreign government
involved in taking the action.
b. An environmental review is prepared by the DoD component concerned
either unilaterally or in conjunction with another federal agency.
While an environmental review may be used for any of the actions
identified by section B., it may be uniquely suitable, because it is
prepared unilaterally by the United States, to actions that affect the
environment of a nation not involved in the undertaking (B.l.a.).
2. Department of State Coordination. Communications with foreign
governments concerning environmental agreements and other formal
arrangements with foreign governments concerning environmental matters
under this enclosure will be coordinated with the Department of State.
Informal working-level communications and arrangements are not included
in this coordination requirement. Coordination with the Department of
State will be through the Assistant Secretary of Defense (International
Security Affairs).
3. Whether to Prepare an Environmental Review. Sufficient
information will be gathered, to the extent it is reasonably available,
to permit an informed judgment as to whether the proposed action would
do significant harm to the environments covered by this enclosure. If a
negative decision is made, a record will be made of that decision and
its basis. If a decision is made to prepare a review, then, except as
provided by this enclosure, no action concerning the proposal may be
taken that would do significant environmental harm until the review has
been completed.
4. Content of the Review. An environmental review is a survey of the
important environmental issues associated with the proposed action that
is to be considered by the DoD component concerned in the
decision-making process. It does not include all possible environmental
issues and it does not include the detailed evaluation required in an
environmental impact statement under Enclosure 1 of this part. There is
no foreign government or international organization participation in its
preparation, and the content therefore may be circumscribed because of
the availability of information and because of foreign relations
sensitivities. Other factors affecting the content are identified under
''Limitations,'' (subsection E.6., of this enclosure). To the extent
reasonably practical the review should include consideration of the
following:
a. A statement of the action to be taken including its timetable,
physical features, general operating plan, and other similar broad-guage
descriptive factors;
b. Identification of the important environmental issues involved;
c. The aspects of the actions taken or to be taken by the DoD
component that ameliorate or minimize the impact on the environment;
and
d. The actions known to have been taken or to be planned by the
government of any participating and affected foreign nations that will
affect environmental considerations.
5. Distribution. Except as provided under ''Limitations,''
(subsection E.6., of this enclosure), and except where classified
information is involved, environmental reviews will be made available to
the Department of State, the Council on Environmental Quality, other
interested federal agencies, and, on request, to the public in the
United States. Interested foreign governments also may be informed of
the reviews and, subject to the ''Limitations'' (subsection E.6., of
this enclosure) and controls on classified information, will be
furnished copies of the documents on request. This provision for
document distribution is not a requirement that distribution be made
prior to taking the action that is the subject of the review.
6. Limitations. The requirements with respect to the preparation,
content, and distribution of environmental reviews in the international
context must remain flexible. The specific procedures must be
determined on a case-by-case basis and may be modified where necessary
to:
a. Enable the component to act promptly. Considerations such as
national security and foreign government involvement may require prompt
action that must take precedence in the environmental review process;
b. Avoid adverse impacts on relations between the United States and
foreign governments and international organizations;
c. Avoid infringement or the appearance of infringement on the
sovereign responsibilities of another government. The collection of
information and the preparation and distribution of environmental
documentation for actions in which another nation is involved or with
respect to the environment and resources of another nation, unless done
with proper regard to the sovereign authority of that nation, may be
viewed by that nation as an interference in its internal affairs and its
prerogative to evaluate requirements with respect to the environment;
and
d. Ensure consideration of:
(1) Requirements of governmental confidentiality. This refers to the
need to protect sensitive foreign affairs information and information
received from another government with the understanding that it will be
protected from disclosure regardless of its classification;
(2) National security requirements. This refers to the protection of
classified information;
(3) Availability of meaningful information. Information on the
environment of foreign nations may be unavailable, incomplete, or not
susceptable to meaningful evaluation, and this may reduce or change
substantially the normal content of the environmental review;
(4) The extent of the participation of the DoD component concerned
and its ability to affect the decision made. The utility of the
environmental analysis and the need for an in-depth review diminishes as
the role of the Department of Defense and control over the decision
lessens; and
(5) International commercial, commercial confidentiality,
competitive, and export promotion factors. This refers to the
requirements to protect domestic and foreign trade secrets and
confidential business information from disclosure. Export promotion
factors includes the concept of not unnecessarily hindering United
States exports.
7. Classified Information. Classified information will be
safeguarded from disclosure in accordance with the DoD procedures (32
CFR 159) established for such information under Executive Order 12065.
The requirements of that Executive Order take precedence over any
requirement of disclosure in this part.
32 CFR 187.6 PART 188 -- ENVIRONMENTAL EFFECTS IN THE UNITED STATES OF
DoD ACTIONS
Sec.
188.1 Reissuance and purpose.
188.2 Applicability and scope.
188.3 Definitions.
188.4 Policy.
188.5 Responsibilities.
188.6 Information requirements.
Enclosure 1 -- DoD Implementing Procedures
Annex A -- DoD List of Categorical Exclusions
Authority: 42 U.S.C. 4321.
Source: 44 FR 46842, Aug. 9, 1979, unless otherwise noted.
Redesignated at 56 FR 64481, Dec. 10, 1991.
32 CFR 188.1 Reissuance and purpose.
This part implements the Council on Environmental Quality (CEQ)
regulations (40 CFR parts 1500-1508), and provides policy and procedures
to enable DoD officials to be informed of and take into account
environmental considerations when considering the authorization or
approval of major DoD actions in the United States. The CEQ regulations
implement section 102(2) of the National Environmental Policy Act (NEPA)
of 1969, Pub. L. No. 91-190 (1970), 42 U.S.C. 4321, 4331-4335,
4341-4347 (1976) (and Executive Order 11514, as amended.
32 CFR 188.2 Applicability and scope.
(a) This part applies to the Office of the Secretary of Defense, the
Military Departments, the Organization of the Joint Chiefs of Staff, the
Unified and Specified Commands, and the Defense Agencies (hereafter
referred to as ''DoD Components'').
(b) This part is limited to DoD actions with environmental effects in
the United States.
(c) The civil works activities under the jurisdiction of the
Secretary of the Army and the Chief of Engineers are excluded from this
part.
32 CFR 188.3 Definitions.
(a) United States means all states, the District of Columbia,
territories and possessions of the United States, and all waters and
airspace subject to the territorial jurisdiction of the United States.
The territories and possessions of the United States include the Virgin
Islands, American Samoa, Wake Island, Midway Island, Guam, Palmyra
Island, Johnston Atoll, Navassa Island, and Kingman Reef. For the
purpose of this Directive, United States also includes the commonwealth
of Puerto Rico and the Commonwealth of the Northern Marianas.
(b) Other terms used in this part are defined in 40 CFR part 1508 of
the CEQ regulations.
32 CFR 188.4 Policy.
(a) The Department of Defense must act with care to ensure to the
maximum extent possible that, in carrying out its mission of providing
for the national defense, it does so in a manner consistent with
national environmental policies. Care must be taken to ensure that,
consistent with other considerations of national policy and with
national security requirements, practical means and measures are used to
protect, restore, and enhance the quality of the environment, to avoid
or minimize adverse environmental consequences, and to attain the
objectives of:
(1) Achieving the widest range of beneficial uses of the environment
without degradation, risk to health and safety, or other consequences
that are undesirable and unintended;
(2) Preserving important historic, cultural, and natural aspects of
our national heritage, and maintaining, where possible, an environment
that supports diversity and variety of individual choice;
(3) Achieving a balance between resource use and development within
the sustained carrying capacity of the ecosystem involved; and
(4) Enhancing the quality of renewable resources and working toward
the maximum attainable recycling of depletable resources.
(b) The Department of Defense shall: (1) Assess environmental
consequences of proposed DoD actions that could affect the quality of
the environment in the United States in accordance with enclosure 1 and
40 CFR parts 1500-1508.
(2) Use a systematic, interdisciplinary approach that will ensure the
integrated use of the natural and social sciences and environmental
considerations in planning and decisionmaking where there may be an
impact on man's environment.
(3) Ensure that presently unmeasured environmental amenities are
considered in the decisionmaking process;
(4) Consider reasonable alternatives to recommended actions in any
proposal that would involve unresolved conflicts concerning alternative
uses of available resources;
(5) Make available to states, counties, municipalities, institutions,
and individuals advice and information useful in restoring, maintaining,
and enhancing the quality of the environment; and
(6) Utilize ecological information in planning and developing
resource-oriented projects.
32 CFR 188.5 Responsibilities.
(a) The Assistant Secretary of Defense (Manpower, Reserve Affairs,
and Logistics) shall: (1) Serve as the responsible official for all DoD
environmental matters;
(2) Modify or supplement enclosure 1 of this part, when required, in
a manner consistent with the policies set forth here;
(3) Provide assistance in the preparation of environmental
assessments and statements, and assign, in consultation with appropriate
Assistant Secretaries of Defense and heads of DoD Components, lead
agency responsibility to prepare environmental documentation when more
than one DoD Component is involved and agreement among the Components
cannot be reached;
(4) Direct the preparation of environmental documents for specific
proposed actions, when required;
(5) Provide, when appropriate, consolidated Department of Defense
comments requested by other Federal agencies on draft and final
environmental impact statements;
(6) Review proposed issuances of the Office of the Secretary of
Defense that may have environmental implications; and
(7) Maintain liaison with the Council on Environmental Quality, the
Environmental Protection Agency, the Office of Management and Budget,
other Federal agencies, and state and local groups with respect to
environmental analyses for proposed DoD actions affecting the quality of
the environment in the United States.
(b) The General Counsel, DoD, shall provide advice and assistance
concerning the requirements of this part.
(c) The Secretaries of the Military Departments, Chairman of the
Joint Chiefs of Staff, Directors of Defense Agencies, and Commanders of
the Unified and Specified Commands, for operations under their
jurisdiction, shall:
(1) Assess environmental consequences of proposed programs and
actions within their respective DoD Component;
(2) Prepare and process environmental documents as required by this
part;
(3) Integrate environmental considerations into their decisionmaking
processes;
(4) Ensure that regulations and other major policy issuances are
reviewed for consistency with the requirements of this part;
(5) Provide comments on environmental impact statements for actions
within their area of expertness of concern; and
(6) Designate a single point of contact for matters pertaining to
this part.
32 CFR 188.6 Information requirements.
The environmental documents to be prepared under 188.5, Enclosure 1,
and 40 CFR parts 1500-1508 are assigned Report Control Symbol
DD-M(AR)1327 (formerly DD-H&E(AR)1327).
(44 FR 46842, Apr. 9, 1979. Redesignated and amended at 56 FR 64481,
Dec. 10, 1991)
32 CFR 188.6 Enclosure 1 -- DoD Implementing Procedures
32 CFR 188.6 Pt. 188, Encl. 1
1. Section 1507.3, Council on Environmental Quality regulations
directs that Federal agencies shall as necessary adopt procedures to
supplement the CEQ regulations. This enclosure provides those DoD
implementing procedures.
2. This enclosure must be read together with the CEQ regulations and
the Act when applying the NEPA process.
3. This enclosure is organized sequentially from early planning to
final implementation of an action. Throughout this enclosure,
references to the CEQ regulations identify the applicable section of
those regulations; e.g., CEQ 1501.2.
1. Early Planning. DoD Components shall integrate the NEPA process
during the initial planning stages of proposed DoD actions to ensure
that planning and decisions reflect environmental values, to avoid
delays later in the process, and to preclude potential conflicts.
2. Lead Agency. a. To determine the lead agency for preparing
environmental documentation for proposed actions in which more than one
DoD Component is involved, and in which no other Federal agency is
involved, DoD Components shall apply the criteria in CEQ 1501.5. The
ASD(MRA&L) shall resolve disagreements.
b. When another Federal agency is involved and there is disagreement
in lead agency determination, the ASD(MRA&L) shall attempt to resolve
the differences. If unsuccessful, the ASD(MRA&L) shall file a request
with CEQ for lead agency determination.
3. Advising Applicants. CEQ 1501.2(d) provides for advising private
applicants or other non-Federal entities when DoD involvement is
reasonably foreseeable. Actions involving applications by private
applicants or other non-Federal entities are limited within the
Department of Defense and pertain primarily to permits, leases, and
related actions concerning the use of DoD lands and property.
a. The following are types of actions initiated by private persons,
state or local agencies, and other non-Federal entities for which DoD
involvement may be reasonably foreseeable:
(1) Requests for easements and rights-of-way on DoD lands,
(2) Grazing and agricultural leases, and
(3) Requests for permits, licenses, or other agreements for use of
DoD real property by non-DoD entities.
b. When DoD involvement is reasonably foreseeable, DoD Components
shall consult early with appropriate state and local agencies and Indian
tribes and with interested private persons and organizations.
c. Public notices or other means used to inform or solicit applicants
for permits, leases, or related actions shall describe the studies or
information foreseeably required for later DoD Component action.
d. When considering leasing or otherwise providing real property to
non-DoD entities, DoD Components shall initiate the NEPA process, when
required, as early as possible.
4. Determination of Requirement for an Environmental Impact
Statement. DoD Components shall determine as early as possible whether
to prepare an environmental impact statement. Early determination
ensures that necessary environmental documentation is prepared and
integrated with the decisionmaking process. To determine whether to
prepare an environmental impact statement, DoD Components shall
determine whether the proposal is one that:
a. Normally requires an environmental impact statement,
b. Normally does not require either an environmental impact statement
or an environmental assessment (categorical exclusion), or
c. Normally requires an environmental assessment but not necessarily
an environmental impact statement.
5. Actions That Normally Require an Environmental Impact Statement.
a. DoD Components shall determine if a proposal is one that normally
requires an environmental impact statement. In some cases, it is
readily apparent that a proposed action would have a significant impact
on the environment. In that event, an environmental assessment is not
required, and the DoD Component may begin the environmental impact
statement phase. To determine those actions that normally do require
the preparation of an environmental impact statement, the following
considerations, which DoD Components may supplement, are provided:
(1) Potential for significant degradation of environmental quality,
(2) Potential for threat or hazard to the public,
(3) Potential for significant impact on protected natural or historic
resources.
b. DoD component procedures will identify those typical classes of
actions that normally require the preparation of environmental impact
statements.
c. In any case involving a proposed action of the sort that normally
does require an environmental impact statement, a DoD Component may
still prepare an environmental assessment to determine if an
environmental impact statement is required based on the particular
facts. If a determination is made based on the assessment that no
environmental impact statement is required on the particular facts, a
finding of no significant impact will be prepared and made available to
the public in accordance with paragraph C.4. of this enclosure.
6. Categorical Exclusion. The CEQ regulations provide for the
establishment of categorical exclusions (CEQ 1507.3(b)) for those
actions which do not individually or cumulatively have a significant
effect on the human environment and for which, therefore, neither an
environmental assessment nor an environmental impact statement is
required. Categorical exclusions will help DoD Components avoid
unnecessary effort and concentrate resources on significant
environmental issues.
a. Criteria. Considerations to assist in identifying categories of
actions that normally do not require either an environmental impact
statement or an environmental assessment include:
(1) Minimal or no significant effect on environmental quality,
(2) No significant change to existing environmental conditions,
(3) No significant cumulative environmental impact,
(4) Social and economic effects only,
(5) Similarly to actions previously assessed and found to have no
significant environmental impact.
b. List of Categorical Exclusions. Categories of actions that the
Department of Defense has determined to have no significant effect on
the quality of the human environment and for which environmental impact
statements and environmental assessments are not required are identified
in Annex A to this enclosure.
c. Changes to the List of Categorical Exclusions. (1) The DoD list
of categorical exclusions is reviewed and refined as additional
categories are identified. DoD Components may recommend additions or
changes to this list. Recommendations shall be submitted to the ASD
(MRA&L).
(2) DoD Components are encouraged to include in their regulations to
implement this Directive addition categorical exclusions that they
identify. Categorical exclusions that one DoD Component identifies that
may be applicable to other DoD Coponents should be brought to the
attention of the ASD(MRA&L).
d. Extraordinary Circumstances. If extraordinary circumstances exist
indicating that a normally excluded action may have a significant
environmental effect, an environmental assessment will be prepared for
such otherwise categorically excluded action. Factors to consider in
determining whether extraordinary circumstances exist include:
(1) Greater scope or size than normally experienced for a particular
category of action,
(2) Potential for degradation, even though slight, of already
existing poor environmental conditions,
(3) Presence of endangered species, archeological remains, or other
cultural, historic, or protected resources, and
(4) Use of hazardous or toxic substances.
7. Actions That Normally Require an Environmental Assessment. When a
proposal is not one that normally requires an environmental impact
statement and does not qualify for categorical exclusion, the DoD
Component shall prepare an environmental assessment.
1. When to Prepare. DoD Components shall begin preparation of an
environmental assessment as early as possible after the determination
that an assessment is to be prepared.
2. Content and Format. The environmental assessment is a concise
public document to determine whether to prepare an environmental impact
statement or whether to prepare a finding of no significant impact, to
aid in compliance with NEPA when no environmental impact statement is
necessary, and to facilitate preparation of a statement when one is
necessary. Preparation of an environmental assessment generally does
not require extensive research or lengthy documentation. The
environmental assessment shall contain brief discussions of the
following:
a. Need for the proposed action,
b. Alternatives considered when the proposed action involves
unresolved conflicts concerning alternative uses of available resources,
c. Environmental impacts of the proposed action and alternatives,
d. Listing of agencies and persons consulted, and
e. Conclusion of whether to prepare an environmental impact statement
or a finding of no significant impact.
3. Public Participation. DoD Components shall involve environmental
agencies, applicants, and the public, to the extent practicable, in
preparing environmental assessments. In determining ''to the extent
practicable,'' factors that may be considered include:
a. Magnitude of the proposal,
b. Likelihood of public interest,
c. Need to act quickly, and
d. National security classification issues.
4. Finding of No Significant Impact. If a DoD Component determines
on the basis of the environmental assessment not to prepare an
environmental impact statement, the DoD Component shall prepare a
finding of no significant impact in accordance with CEQ 1501.4(e) and
make the finding of no significant impact available to the affected
public as specified in CEQ 1501.4(e) and CEQ 1506.6. A finding of no
significant impact is not required when the decision not to prepare an
environmental impact statement is based on a categorical exclusion.
1. Notice of Intent. When a DoD Component decides to prepare an
environmental impact statement, it shall publish a notice of intent in
the Federal Register. The notice of intent shall be published before
initiation of the scoping process.
2. Scoping. After determinination that an environmental impact
statement should be prepared and publication of the notice of intent,
the DoD Component shall initiate the scoping process in accordance with
CEQ 1501.7.
3. Preparation Detailed procedures for preparation of the
environmental impact statement are provided in CEQ 1502. The
recommended format provided in CEQ 1502.10 is the standard format for
DoD environmental impact statements. Requests for exception will be
submitted to the ASD(MRA&L) for approval on a case-by-case basis.
4. Supplemental Environmental Impact Statements. DoD Components may
at any time supplement a draft or final environmental impact statement.
DoD Components shall prepare a supplement to either the draft or final
environmental impact statement in accordance with CEQ 1502.9(c). DoD
Components normally will prepare, circulate, and file a supplement to a
statement in the same manner (exclusive of scoping) as a draft or final
statement. The supplement shall be included as part of the formal
administrative record to be considered in the decisionmaking process.
Exceptions to these procedures shall be requested from the ASD(MRA&L),
who may undertake the discussions with the CEQ.
5. Tiering. DoD Components should emphasize the use of tiering (CEQ
1502.20) of environmental impact statements to eliminate repetitive
discussions of the same issues and to focus the issues.
6. Combining Documents. Any environmental document prepared in the
NEPA process may be combined with any other agency document to reduce
duplication (CEQ 1506.4). If an environmental impact statement for a
particular action already exists, regardless of what Federal agency
prepared it, no new statement is required by this Directive (CEQ
1506.3).
7. Incorporation by Reference. DoD Components shall incorporate
material into the environmental impact statement by reference when the
effect will be to cut down on bulk without impeding agency and public
review of the action (CEQ 1502.21).
8. Information on the NEPA Process. Information or status reports on
environmental impact statements and other elements of the NEPA process
shall be provided to interested persons upon request. This does not,
however, encompass standing or blanket requests.
a. Each DoD Component shall designate in its regulation implementing
this part where interested persons can obtain information.
b. For those actions relating to the Office of the Secretary of
Defense, information is available by writing the Assistant Secretary of
Defense (Manpower, Reserve Affairs, and Logistics), Washington, D.C.
20301.
9. Circulation of Environmental Impact Statements. DoD Components
shall circulate draft and final environmental impact statements as
prescribed in CEQ 1502.19. In addition, DoD Components shall provide one
copy of each draft and each final statement to the ASD(MRA&L).
10. Classified Material. It may be necessary for DoD Components to
include classified material in environmental documentation. Classified
information in environmental documents shall be safeguarded in
accordance with Executive Order 12065 implemented by DoD 5200.1-R (32
CFR part 159). The requirements for circulation (CEQ 1502.19) and
public involvement (CEQ 1506.6) do not apply to classified environmental
documents except where segregation of material and circulation and
involvement can be accomplished consistently with the provisions of DoD
5200.1-R. When feasible, environmental documents may be organized in
such a manner that classified portions can be included as annexes so
that unclassified portions can be made available to the public in the
normal manner. This normally will not be possible when the proposal
itself is classified.
1. Decisionmaking. DoD Components shall ensure that the NEPA process
is integrated into the decisionmaking process. Because of the size and
diversity of the Department of Defense, it is not feasible to describe
in this part the decisionmaking process for each of the various DoD
programs. Proposals and actions may be initiated at any level.
Similarly, review and approval authority may be exercised at various
levels depending on the nature of the action, funding, and authority.
It is necessary, therefore, that DoD Components provide further
guidance, commensurate with their programs and organization, for
integration of environmental considerations into the decisionmaking
process. That guidance should include procedures to ensure that:
a. Major decision points are designated for principal programs and
proposals likely to have a significant effect on the quality of the
human environment, and steps are taken to ensure that the NEPA process
coincides with these decision points.
b. Relevant environmental documents, comments, and responses
accompany a proposal through existing DoD Component review processes so
that they can be considered by DoD Component decisionmakers.
c. The alternatives considered by the decisionmaker are encompassed
by the range of alternatives discussed in relevant environmental
documents, and the decisionmaker considers all the alternatives
described in the environmental impact statement.
2. Record of Decision. In those cases requiring environmental impact
statements, DoD Components, at the time of the decision or, if
appropriate, the proposal to Congress, shall prepare a concise public
record of agency decision. The record of decision is not intended to be
an extensive, detailed document. Rather, it is a concise document that
sets forth the decision, identifies the alternatives considered in
reaching the decision, specifies the environmentally preferable
alternative or alternatives, indicates other factors that were balanced
in the decisionmaking process, and states whether all practicable means
to avoid or minimize environmental harm have been adopted, and if not,
why not (CEQ 1505.2).
3. Mitigation. Throughout the NEPA process, DoD Components shall,
where possible, give consideration to mitigation measures to avoid or
minimize environmental harm. Mitigation measures or programs shall be
identified, when appropriate, in the environmental documents and made
available to decisionmakers. Mitigation and other conditions that have
been established in the environmental impact statement or during its
review, and that have been committed as part of the decision, shall be
implemented.
4. Monitoring. If a DoD Component determines that monitoring is
necessary to ensure that mitigation measures, to which a commitment has
been made, are carried out, it shall adopt a monitoring program. DoD
Components shall, upon request, provide monitoring information to the
public and to cooperating and commenting agencies, as specified in CEQ
1505.3. This does not, however, include standing or blanket requests for
periodic reporting.
5. Emergencies. In the event of an emergency, DoD Components may be
required to take immediate action with significant environmental impact.
This includes actions that must be taken to promote the national
defense or security and that cannot be delayed, and actions necessary
for the protection of life or property. DoD Components shall notify the
ASD(MRA&L) of the emergency, who shall undertake the required
consultation with the CEQ. In no event shall DoD Components delay an
emergency action necessary to the national security, or for preservation
of human life, for the purpose of complying with the provisions of this
Directive or the CEQ regulations. If an emergency requires that an
action be taken without delay, the ASD(MRA&L) shall be notified as
promptly as is possible. The requirement for notification where action
must be taken without delay is not a requirement for prior notification.
32 CFR 188.6 Annex A -- DoD List of Categorical Exclusions
32 CFR 188.6 Pt. 188, Annex A
1. Preparation of regulations, directives, manuals, or other guidance
documents that implement, without substantial change, the regulations,
directives, manuals, or other guidance documents from higher
headquarters or another Federal agency.
2. Preparation of regulations, directives, manuals, and other
guidance documents related to actions that qualify for categorical
exclusion.
3. Routine installation maintenance and grounds-keeping activities.
4. Minor construction conducted in accordance with an approved
installation master plan that does not significantly alter land use,
provided that the operation of the completed project would not of itself
have a significant environmental impact.
5. Studies that involve no commitment of resources other than
manpower and funding.
6. Proposed actions that, based on sound judgment, are of such an
environmentally insignificant nature as clearly not to meet the
threshold for requiring an environmental assessment or environmental
impact statement.
7. Other categories as identified by DoD Components in their
regulations implementing this part.
32 CFR 188.6 PART 189 -- MINERAL EXPLORATION AND EXTRACTION ON DoD
LANDS
Sec.
189.1 Purpose.
189.2 Applicability and scope.
189.3 Definitions.
189.4 Policy.
189.5 Responsibilities.
189.6 Procedures.
189.7 Summary of mineral leasing authorities.
Authority: 30 U.S.C. 21a, 22, 181 et seq., 351 et seq., 601 et seq.,
1001 et seq., 1601 et seq. 40 U.S.C. 471. 43 U.S.C. 155 et seq.
Source: 48 FR 48824, Oct. 21, 1983, unless otherwise noted.
Redesignated at 56 FR 64481, Dec. 10,1991.
32 CFR 189.1 Purpose.
Under 30 U.S.C. 21a, 22, 181 et seq., 351 et seq., 601 et seq., 1001
et seq., and 1601 et seq., 40 U.S.C. 471, and 43 U.S.C. 155 et seq.,
this rule establishes policy, assigns responsibilities, and provides
procedures for making DoD lands available for mineral exploration and
extraction.
32 CFR 189.2 Applicability and scope.
(a) This Directive applies to the Office of the Secretary of Defense
and the Military Departments (including their National Guard and reserve
components).
(b) It applies to DoD-controlled lands acquired or withdrawn from the
public domain (including Army civil works lands) within the United
States and its territories and possessions for which the mineral rights
are owned by the United States, with the following exceptions:
(1) Mineral leasing of lands situated within incorporated cities,
towns, and villages (30 U.S.C. 351 et seq. and 181 et seq.).
(2) Mineral leasing of tidelands or submerged lands (30 U.S.C. 351).
(3) Certain hardrock minerals known as locatables (30 U.S.C. 22).
(4) A class of minerals composed of sand and gravel known as
saleables (30 U.S.C. 601 et seq. and 41 CFR 101-47.302-2).
32 CFR 189.3 Definitions.
(a) Leasable minerals. Minerals, such as oil and gas, that are owned
by the United States and that have been authorized under statute as
potential minerals for extraction under a mineral lease (30 U.S.C. et
seq., 181 et seq., and 1001 et seq.
(b) Locatable minerals. Minerals, such as gold and silver, that are
owned by the United States, that are on public domain lands, that are
subject to discovery and claim, and that are not leasable or saleable
(30 U.S.C. 22).
(c) Mineral lease. A grant of a right to explore for and extract
leasable minerals. No surface occupancy, drilling, or other mineral
extraction is permitted until an operations plan is approved by the DoI
in consultation with the Military Department concerned.
(d) Multiple-use principle. The integrated management of all
resources, each with the other, to achieve their optimum use and
enjoyment while maintaining environmental and other qualities in
balance.
(e) Permit. Temporary permission to conduct seismic or other
geological and geopohysical tests before requesting a mineral lease.
(f) Saleable minerals. Common variety minerals, such as sand, clay,
and gravel, that are sold under certain statutory authorities (30 U.S.C.
et seq. and 41 CFR 101-47.302-2
32 CFR 189.4 Policy.
In accordance with established DoD policy to promote optimal use of
real property under the multiple-use principle (DoD Directive 4700.1),
DoD lands shall be made available for mineral exploration and extraction
to the maximum extent possible consistent with military operations,
national defense activities, and Army civil works activities.
32 CFR 189.5 Responsibilities.
(a) The Assistant Secretary of Defense (Manpower, Reserve Affairs,
and Logistics) shall:
(1) Have primary responsibility for developing DoD policy for mineral
exploration and extraction on DoD lands.
(2) Ensure that the Military Departments issue regulatory documents
implementing this Directive.
(b) The Secretaries of the Military Departments shall:
(1) Review and approve or disapprove requests from the Department of
the Interior (DoI), the federal mineral leasing agency, to lease DoD
lands under 43 U.S.C. 155 et seq. and DoD Directive 5160.63.
(2) Issue regulatory documents implementing this Directive to
prescribe procedures relating to the issuance of permits and leases and
the approval of plans of operations for mineral exploration and
extraction.
(3) Formulate a system for maintaining records of land status to
assist the DoI in mineral leasing. This system shall be established in
accordance with DoD Directive 5000.11 and shall use existing standard
data elements from DoD 5000.12-M, whenever possible.
32 CFR 189.6 Procedures.
(a) If a Military Department cannot consent to exploration or
extraction, it also may not approve testing or leasing. Exclusion of
lands from exploration and extraction shall be justified and supported.
Availability of lands is subject to certain conditions and stipulations
that also shall be justified. Granting approval for leasing usually
shall be construed as consent ultimately to allow drilling or other
forms of mineral extraction. Accordingly, initial approval clearly
shall indicate the conditions, if known, under which further exploration
or extraction shall be allowed. For example, classified operations,
ammunition and explosives operational storage requirements, and
contaminated lands may restrict or exclude leasing or may require no
surface disturbance stipulations (DoD 5154.4-S).
(b) The Military Departments may issue permits to parties interested
in conducting seismic or other geophysical tests on DoD lands. In
unusual circumstances, the Military Departments may refer permit
applications to the DoI for issuance. Permits are subject to the
approval of, and conditions imposed by, the Military Department
concerned. The issuing agency shall make any required environmental and
cultural studies. For permits issued by the DoI, the Military
Department concerned shall provide, upon request, environmental and
cultural information held by the Department.
(c) Leases. The DoI receives and processes all mineral lease
requests and then forwards such lease offers and title report requests
to the Military Department concerned. The Military Department then
shall decide whether and under what conditions its land may be made
available for leasing.
(1) Environmental and cultural considerations for leases. As the
lead agency, the DoI obtains all environmental and cultural
documentation before deciding to lease. The responsibilities of the
Military Department concerned, when acting as a cooperating agency,
shall be limited to providing to the DoI, upon request, any available
environmental and cultural information.
(2) Title search. The Military Department concerned shall furnish to
the DoI available information for acquired lands. DoI title records
shall be relied upon for withdrawn public domain lands, except that the
Military Departments shall identify all outstanding interests, such as
easements and licenses. When title information is incomplete, the
Military Department shall so advise the DoI.
(3) Plans of operations. After the lease is executed, the lessee
submits a plan of operations (Application for Permit to Drill for oil
and gas or Mining Plan for other minerals) to the DoI for technical
review and coordination with the Military Department concerned. As a
cooperating agency, the Military Department shall supply appropriate
stipulations; available environmental, endangered species, and cultural
information; and concurrence with the plan. The DoI then formalizes
the environmental considerations and approves the plan with the
stipulations supplied by the Military Department. Stipulations shall be
tied directly to the details of the proposed plan of operations, and
each stipulation shall be objectively justifiable.
(4) The DoI has the responsibility for the collection and disposition
of proceeds derived from mineral leasing.
32 CFR 189.7 Summary of mineral leasing authorities.
(a) 30 U.S.C. 351 et seq. authorizes leasing of coal, phosphate,
sodium, potassium, oil, oil shale, gas, or sulfer within acquired DoD
lands. 30 U.S.C. 181 et seq. authorizes leasing of coal, phosphate,
sodium, oil, oil shale, native asphalt, solid or semi-solid bitumen, and
bituminous rock or gas within DoD-withdrawn public domain lands under
certain conditions and in certain places. Under the leasing statutes,
the Secretary of the Interior is responsible for granting and
administering such leases. 30 U.S.C. 101 et seq. authorizes the
Secretary of the Interior to issue leases for development of geothermal
steam and associated resources on public lands. This includes public
lands withdrawn for use by the Military Departments.
(b) 30 U.S.C. 351 et seq. specifically provides for consent of the
head of the executive department having jurisdiction over the lands
containing the mineral deposit before leasing. For public domain lands
withdrawn for use of the Department of Defense 43 U.S.C. 155 et seq.
provides that there will be no disposition of or exploration for
minerals on public domain lands when the Secretary of Defense, in
consultation with the Secretary of the Interior, determines that such
disposition or exploration is inconsistent with the military use of the
land.
32 CFR 189.7 FINDING AIDS
A list of CFR titles, subtitles, chapters, subchapters and parts and
an alphabetical list of agencies publishing in the CFR are included in
the CFR Index and Finding Aids volume to the Code of Federal Regulations
which is published separately and revised annually.
Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
List of CFR Sections Affected
Chap.